Kerala High Court
Carmeli.M vs S.I.Of Police on 30 August, 2010
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12061 of 2009(Q)
1. CARMELI.M,PEERUPILLA VILAKAM PURAYIDOM,
... Petitioner
Vs
1. S.I.OF POLICE,ARANMULA POLICE STATION,
... Respondent
2. THE SUB DIVISIONAL MAGISTRATE,ADOOR.
3. THE DETECTIVE INSPECTOR,C.B.C.I.D,
4. THE ADDITIONAL DIRECTOR GENERAL OF
5. STATE OF KERALA REP.BY THE CHIEF
6. CENTRAL BUREAU OF INVESTIGATION,RE;BY
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/08/2010
O R D E R
V. RAMKUMAR,J.
.........................................................
W.P.C. 12061 OF 2009
............................................................
Dated: 30th August, 2010
JUDGMENT
In this Writ Petition filed under Article 226 of the Constitution of India , the petitioner who is the younger sister of one pastor Joseph Roache seeks a direction to the 5th respondent State of Kerala to entrust the Investigation of Crime No. 146 of 2005 of Aranmula Police Station to the Central Bureau of Investigation (the C.B.I. for short) for investigation and report.
2. The case of the petitioner can be summaried as follows:-
Deceased Joseph Roache hailing from Pulluvila, Thiruvananthapuram was serving as the Pastor in the Pentecost Mission Faith Home at Mezhuveli in Pathanamthitta District. Deceased had entered the service of the Pentecost Mission since 1995. For the past ten months he was serving as a Pastor in the Faith Home at Mezhuveli, Thekkemala, Kuzhikkala in Pathanamthitta District until his sudden death on 5-3-2005 at the age of 52. The shocking W.P.C. 12061 OF 2009 -:2:- news of the unexpected death of the petitioner's brother at 8.30 p.m. on Saturday, the 5th March, 2005 was conveyed to the petitioner at Thiruvananthapuram through telephone message received in the same night. The Pastor was allegedly found dead in the aforesaid Faith Home around 8.30 p.m. on 5-3-2005.The information received was that the Pastor died of cardiac arrest . The petitioner and a few close relatives of the deceased reached Mezhuveli at about 1.30 p.m. on 6-3-2005 to attend the funeral ceremony .
When they looked at the dead body of Joseph Roache laid in a mobile mortuary, they were convinced at first sight itself that it was not a case of natural death and that there was something suspicious about the death of Joseph Roache. To the utter disappointment of the petitioner and others, certain persons in the Faith Home had deliberately formed an artificial cordon around the mobile mortuary preventing the petitioner and other close relatives from going close to the dead body and having a close look at the same.
Eventhough death had reportedly taken place at 8.30 p.m. on 5-3-2005 blood was oozing out through the mouth and nostrils of the deceased even at 1.30 p.m. on 6-3-2005 and there was no notable change in the colour of the blood. W.P.C. 12061 OF 2009 -:3:- When the dead body was shifted from the mobile mortuary to the coffin it was found that the back of the body was soaked in blood. There was an injury on the right aspect of the chest from where blood was gushing forth. As an attempt to conceal the wound it was covered with thick cotton pads which were also soaked in blood. There were signs of manhandling the deceased on his face and neck. Both his fists and fingers were tightly held upward . His teeth were found firmly held together as if trying to resist something which might have been poured forcibly into his mouth. His face was seen darkened . Contrary to the custom, the dead body was merely draped in a white cloth and was not appropriately dressed up. Since both the hands of the deceased were held upward, it was unable to close the coffin properly. The coffin was placed in Cellar Number 14 of the Kuzhikkala Pentecost Mission Cemetery after completing the funeral ceremony in a lackadaisical manner. The above circumstances have led the petitioner and others to firmly believe that the death of Pastor Joseph Roache was not on account of heart attack but a deliberate and cold blooded murder. Since the petitioner and her companions were a few in number and also since the W.P.C. 12061 OF 2009 -:4:- place was strange to them, they did not raise any suspicion about the death of the pastor for fear of their lives. Since the Aranmula Police had failed to conduct a proper enquiry in order to ascertain the cause of death of the petitioner's brother, the petitioner approached the Government by filing Ext.P3 petition. Thereafter, the Sub Divisional Magistrate before whom the first information report had been filed conducted an exhumation of the dead body which was already burried. The coffin was opened on 29-4-2005 and the dead body was taken out and sent for post-mortem examination . Dr. Umesh, the District Police Surgeon,, General Hospital, Pathanamthitta conducted autopsy over the dead body of pastor Joseph Roache. Ext.P4 is the true copy of the post-mortem report. The autopsy surgeon reported that the fourth rib on the left side showed an oval shaped hole 2x 1.2 cms. at the costochondrial junction between the bony portion of the rib and the cartilage. The autopsy surgeon who had preserved for chemical analysis the soft tissues of heart, lungs, abdominal cavity and stomach had reserved his opinion regarding the cause of death pending report of forensic/chemical analysis on the tissues preserved by him. The petitioner understands that her W.P.C. 12061 OF 2009 -:5:- brother died on account of the ante-mortem injury sustained by him. The person responsible for committing the murder of the petitioner's brother was not traced out by the police. Ultimately the petitioner sent Ext.P5 representation to the Government for transferring the case to the Crime Branch Police for investigation . On 5-8-2006 the Director General of Police as per Ext.P6 order transferred the case for investigation by the Crime Branch Police. But even thereafter there was no progress in the investigation. The petitioner reasonably apprehends that the investigating officers of the Crime Branch Police are refraining from taking proper steps to apprehend the culprit of the petitioner's brother due to political influence. The petitioner reasonably believes that on 5-3-2005 while her brother was engaged in divine teachings he was beaten on the chest and cyanide which is a deadly poisonous substance was thrust into his mouth after forcibly opening his mouth. The apprehension of the petitioner is that the inmates of the establishment and the neighbouring people are responsible for committing the above act. The FIR is even now pending before the Sub Divisional Magistrate. Being a citizen of this country and also the sister of the W.P.C. 12061 OF 2009 -:6:- deceased the petitioner is entitled to know what exactly was the reason for the death of her brother. Since there was inordinate delay in conducting the investigation and filing the final report before Court the petitioner approached this Court by filing a Writ Petition as W.P. ( C) No. 35076/2008 . The outcome was Ext.P8 final report filed by the Crime Branch Police to the effect that the petitioner's brother died as a result of severe heart attack. Ext.P7 is the statement filed by the Investigating Officer in the above Writ Petition in conformity with Ext.P8 final report. The conclusion formed in the above statement that there was no characteristic features of a bullet injury in the oval shaped wound on the rib of the deceased by taking the opinion of the doctor rather than the opinion of the ballistic expert, is unsustainable. If according to the Investigating Officer it was not a gun shot injury, then how that injury was caused should have been found out. There is no explanation forthcoming. Eventhough in Ext.P8 final report it is admitted that the viscera and other internal organs of the deceased were taken for analysis, no reasons are stated as to why the preserved materials were not sent for chemical analysis. From the final report it is not clear whether the W.P.C. 12061 OF 2009 -:7:- chemical analysis report was in fact obtained by the autopsy surgeon. The fact that the deceased had vomitted two or three times shows that some poison had entered his system. When the postmortem report does not reveal that the death of the petitioner's brother was on account of cardiac arrest, the theory of cardiac arrest put forward in the final report cannot be believed . There are several lapses on the part of the investigating agency in conducting the investigation of this case and as a result of the same the petitioner has suffered serious prejudice. Hence, the investigation of this case should be entrusted with the C.B.I.
3. One Devamanohar, Detective Inspector, Crime Branch C.D.I. Pathanamthitta has filed a statement inter alia raising the following contentions:-
Deceased Joseph Roache was working as a Pastor in the Pentecostal Mission (Chani Sabha) , Thiruvananthapuram since 1994. He then moved to Munnar T. P. M. Sabha and came to Mezhuveli Thundukadu T.P. M. Sabha at Pandalam in the year 2004. Since then he had been working as a Priest in the said Church . He was 52 years of age when he died at about 8.30 p.m. on 5-3-2005. He was suffering from gastroenteritis and other diseases. He was having stomach related diseases on 4-3-2005 while he was performing W.P.C. 12061 OF 2009 -:8:- church offerings in the home of a believer by name Kunjamma at Mezhuveli . He had vomitted while performing services. As is customary of pentecost believers he was not given any medication for his illness. After his death in the night of 5-3-2005 his dead body was buried on 6-3-2005 in the presence of his relatives including the petitioner. On the basis of a complaint launched by the petitioner before the Director General of Police, Kerala, a case was registered as Crime No. 146 of 2005 of Aranmula Police Station under Section 174 Cr.P.C. The case was later re-registered as Crime No. 156 /2005 of Pandalam Police Station since the place of occurrence fell within the jurisdiction of that police station. The dead body of Joseph Roache was exhumed under the supervision of the Sub Divisional Magistrate and inquest was held on the dead body on 29-4-2005 after 55 days of burrial . Autopsy over the dead body was conducted by the District Police Surgeon, Pathanamthitta . The doctor who conducted the autopsy reported that the fourth rib on the left side showed an oval defect having the size of 2x1.2 cms. at the costochondrial junction between the bony portion and the cartilage.
The doctor opined to the Sub Inspector of Police, Pandalam that the oval defect noted above might be a bullet injury. Sternum along with a broken portion of the rib concerned was sent for F.S.L. examination. The result of the said examination showed that there was no presence of lead on the broken rib or sternum and that characteristic features of a bullet injury could not be detected on microscopic examination . It was Dr.K.Mohandas, Asst. Director, Ballistic Expert, F.S.L., Thiruvananthapuram who conducted the W.P.C. 12061 OF 2009 -:9:- forensic examination. Eventhough in the postmortem certificate it is shown that soft tissues of the heart, lungs, abdominal cavity and stomach were preserved for chemical analysis, Vinod Pillai and Prafulachandran the Detective Inspectors questioned the doctor in this regard and the doctor stated that the soft tissues collected for chemical analysis were not sent to the Chemical Examiner's Laboratory due to the advanced stage of decomposition of the tissues. The doctor had ruled out the doubts regarding the oval defect on the rib and had opined that death of Joseph Roache might be due to heart attack. Since the Ballistic Expert had ruled out the possibility of a bullet injury during F.S.L. examination, the contention of the petitioner that the Ballistic Expert was not consulted is not true. The further contention of the petitioner that chemical analysis report regarding the soft tissues preserved during autopsy was not obtained is unfounded since the soft tissues collected were not sent for chemical examination due to their advanced stage of decomposition. Since the witnesses who were questioned and the doctor who conducted the autopsy had not said anything about beating the deceased on his chest or forcible administration of cyanide into his mouth, the allegations made otherwise are baseless. The postmortem examination was conducted by Dr. Umesh, Forensic Surgeon, General Hospital, Pathanamthitta . Eventhough this Honourable Court had called upon the said doctor to file an affidavit as to why no report of chemical analysis was obtained regarding the soft tissues which were collected and preserved for chemical analysis, the said doctor had suddenly taken ill and was hospitalised on 24-1-2010 and was W.P.C. 12061 OF 2009 -:10:- admitted in the Intensive Care Unit of Sree Chithira Medical Centre, Thiruvananthapuram, from where he died on 9-2-2010. The investigation of this case was conducted by K.A. Abraham, Vinod Pillai, M.A. Muraleedharan and K.V. Prafulachandran, all Detective Inspectors of the Crime Branch Police. 50 witnesses were questioned. The C.B.C.I.D., Pathanamthitta had conducted the investigation in a fair and efficient manner. The case was finally reported as a case of natural death due to heart attack and a final report to that effect was submitted after obtaining the sanction of the A.D.G.P. (Crimes). The Writ Petition which is filed raising untenable contentions may kindly be disposed of accepting this statement.
4. After hearing both sides and after perusing the case diary files , I find it difficult to accept the statement filed on behalf of the Crime Branch Police. Joseph Roache who belonged to Pulluvila in Thiruvanantpauram District had served as a priest under the Pentecost Mission in various places. From the year 2004 onwards he was serving as a Pastor in the T.P.M. Sabha at Mezhuveli within the limits of the Pandalam Police Station. On 4-3-2005 while he was performing services to one Kunjamma at Mezhuveli he had taken ill W.P.C. 12061 OF 2009 -:11:- and had vomitted blood. There was no sincere effort by those in the Faith Home to bring medical succor to the Priest. By about 8.30 p.m. on 5-3-2005 his condition became worse and he succumbed to the morbid condition in which he was struggling. No attempt was made to report his death to the police . Instead his burrial was hurriedly conducted on 6-3-2005 at Pathanamthitta itself. By the time the petitioner who is his sister and other relatives came to Pandalam from Pulluvila in Thiruvannthapuram District the funeral ceremonies were at the fag end . The petitioner would say that a cordon had been formed to ensure that nobody came closer to the dead body. The petitioner has detailed the various suspicious features noted on the dead body. The dead body was buried at Mezhuveli itself without giving any option to the petitioner and others to take the dead body to Thiruvananthapuram. Since no crime was registered with regard to the unnatural death of the Priest, the petitioner had to move the Director General of Police as per Ext.P3 petition dated 30-3-2005 even for the purpose of formally registering W.P.C. 12061 OF 2009 -:12:- a crime. Crime No. 146 of 2005 was registered by the Aranmula Police only on 18-4-2005. Thereafter it was transferred to the Pandalam Police Station where it was re-registered as Crime No. 156 of 2005. Even after registering the crime the dead body was exhumed under the supervision of the Sub Divisional Magistrate, Adoor only on 29-4-2005. After holding the inquest over the dead body, Dr. Umesh, Forensic Surgeon, General Hospital, Pathanamthitta conducted postmortem examination. Since the doctor had noted the oval shaped hole on the fourth rib on the left side he had a suspicion that it could be a bullet injury. He, therefore, preserved the relevant portion of the fourth rib on the left side along with a portion of sternal body for forensic/chemical examination to rule out the possibility of bullet injury. Similarly, the doctor had also preserved the soft tissues of heart, lungs, abdominal cavity and stomach for chemical analysis. In Ext.P4 postmortem certificate itself the doctor has mentioned the above steps undertaken by him. He had also mentioned therein that the heart and the lungs had W.P.C. 12061 OF 2009 -:13:- undergone advanced stage of decomposition preventing him from giving an opinion as to whether there was any injury or disease to the heart or lungs. In spite of that he had preserved the soft tissues of heart, lungs, abdominal cavity and stomach as recorded in Ext.P4 postmortem certificate dated 29-4-2005. In fact, against the column showing "opinion as to the cause of death" in Ext.P4 certificate Dr. Umesh had not given his opinion but had stated that the opinion was reserved pending report of forensic/chemical analysis. While there is a report dated 15-3-2008 from K. Mohanan, Asst. Director (Ballistics) Forensic Science Laboratory, Thiruvananthapuram, addressed to Dr. M.S. Umesh, regarding the sternum along with the broken portion of the left side rib , there is no report regarding the soft tissues preserved by Dr. Umesh. Resultantly, there is no written opinion given by the autopsy surgeon regarding the cause of death of Joseph Roache. At page 209 of the case diary M.A. Muraleedharan, Detective Inspector, CB CID after conducting investigation on 21-12-2007 has concluded as follows:- W.P.C. 12061 OF 2009 -:14:-
"
F.S.L. ."
Thus, the Investigating Officer had no doubt that the body parts including the rib concerned had been forwarded to the F.S.L. Ext.P8 is the final report submitted by Sri. K.B. Prafulachandran , Detective Inspector, CB CID, Pathanamthitta, before the Sub Divisional Magistrate, Adoor to the effect that Joseph Roache died as a result of severe heart attack. In the said report there is a statement (at running page 31 of the Writ Petition) to the following effect:-
"
.
F. S. L. ".
W.P.C. 12061 OF 2009 -:15:-
5. Since two of the Investigating Officers had entertained no doubt at all about the fact that the internal organs of the deceased had been forwarded to the F.S.L. for chemical analysis and also since report of the chemical analysis of the internal organs was not forthcoming, Sasidharan Nambiar, J. as per order dated 8-1-2010 called upon doctor M.S. Umesh to file an affidavit regarding the despatch of the soft tissues, the report of analysis, if any, received by him and the final opinion regarding the cause of death. The case was posted to 9-2-2010. But, the affidavit of the autopsy surgeon was not filed. Instead, a statement was filed on 5-4-2010 by the Investigating Officer to the effect that Dr. Umesh had suddenly fallen ill and was hospitalised on 24-1-2010 and later admitted in the Intensive Care Unit of Sree Chithira Medial Centre, Thiruvananthapuram, from where the doctor died on 9-2-2010. What the Crime Branch Police wants this Court to accept is that on 28-4-2008 Dr. M.S. Umesh was questioned and the doctor had stated that since the tissues were in an advanced stage of W.P.C. 12061 OF 2009 -:16:- decomposition, they were not sent for chemical analysis. Apart from the fact that in the unsigned statement dated 28-4-2008 of Dr. Umesh occurring at page 240 of the case diary files it is not stated that the soft tissues of heart, lungs, abdominal cavity and stomach of the deceased were not sent for chemical examination, there is a statement that the cause of death cannot be accurately stated from the F.S.L. report and the postmortem certificate. Moreover, if the doctor had stated that the soft tissues had not been despatched to the F.S.L. as they were in an advanced stage of decomposition, then the statement dated 21-12-2007 by M.A. Muraleedharan at page 209 of the case diary files and the further statement by Prafullachandran in the final report dated 6-12-2008 to the effect that the internal body parts were despatched for F.S. L. examination, are diametrically opposed to the statement dated 28-4-2008 of Dr. Umesh. There is every reason to assume that the unsigned statement dated 28-4-2008 of Dr. Umesh is a product of fertile imagination by the investigating officer who unwittingly overlooked the fact that he W.P.C. 12061 OF 2009 -:17:- had already put it in black and white that the soft tissues of the internal organs had already been despatched for F.S.L. examination.
6. After bestowing my anxious consideration to the facts and circumstances of the case, there are several missing links in the conclusion reached by the Crime Branch Police to the effect that Joseph Roache died as a result of severe heart attack. There seems to be some vested interest at play to see that the real truth behind the death of Pastor Joseph Roache is kept shrouded in mystery if not projected falsely. It appears that the Crime Branch Police has not either stumbled upon the real truth or has played into the hands of those forces which are interested in suppressing the truth presumably to salvage those who are responsible for the death of Pastor Joseph Roache. I am, therefore, of the opinion that a deeper probe by an independent and specialised agency is necessary in the matter. Accordingly, the investigation of Crime No. 146/2005 of Aranmula Police Station, re-registered as Crime No. 156 of 2005 of Pandalam Police Station and again re-registered as Crime No. W.P.C. 12061 OF 2009 -:18:- 240/CR/KTM/06 of CB CID, Pathanamthitta shall be entrusted with the Central Bureau of Investigation forthwith. The Investigation files shall be transferred by the Crime Branch Police to the Superintendent of Police (SPE, C.B.I., Thiruvananthapuram Branch ) immediately. The State Government shall extend the necessary infrastructural and other facilities to the C.B.I. In the result, this Writ Petition is allowed as above. Dated this the 30th day of August, 2010.
V.RAMKUMAR, JUDGE.