Himachal Pradesh High Court
Raj Kumari vs State Of Himachal Pradesh & Others on 30 August, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 114 of 2019-B
Judgment reserved on : 8.8.2019
Date of Decision : August 30 , 2019
Raj Kumari ....Petitioner
Versus
State of Himachal Pradesh & others
r ...Respondents
Coram:
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO For the petitioner : Mr. Chander Shekhar Sharma, Advocate. For the respondents : Mr. Ashok Sharma, Advocate General with M/s J.K. Verma, Ritta Goswmi, Adarsh Sharma, Ashwani Sharma & Nand Lal Thakur, Additional Advocates General.
Per : Anoop Chitkara, Judge.
Aggrieved by the closure report filed by the fourth respondent, in the case of an unnatural death of a young man, his mother Smt. Raj Kumari has come up before this Court with the above writ petition, seeking transfer of the investigation to the Central Bureau of Investigation.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 2FACTS
2. On 8.11.2012, the Medical Officer of the Civil Hospital, Nurpur, .
telephonically informed the Police Station, Nurpur, that one person has been brought to the hospital for treatment and inquiry be conducted. On this, the police party led by ASI Joginder Singh reached the Civil Hospital, Nurpur. On reaching the Civil Hospital, the Police found the said person to be dead and on inquiry came to know of his name as Chaman Lal. On further inquiry the Investigating Officer came to know that the deceased was a permanent resident of Village Hindoraghat, P.O. Sadwan, Tehsil Nurpur, Distt. Kangra, H.P. and he was a driver by profession. At that time he used to work with one Dipu who was a co-villager. On 07.11.2012, Chaman Lal had consumed large quantity of liquor and in the condition of intoxication, Dipu along with his brother Sunny, had dropped Chaman Lal at his home, at around 9.00 p.m. At that time, Puja wife of Chaman Lal, was present there. In the inquiry, it further came to the notice of the police that at 2.30 in the night, Chaman Lal vomited and then became unconscious. On this, he was brought to the hospital, where he died. In the inquiry, it was further revealed that the parents of Chaman Lal (deceased) were not having cordial relations and they were living separately. The investigation further pointed out that at that point, neither anybody ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 3 raised any suspicion nor did they find any suspicious circumstance and, as such, proceeded under Section 174 CrPC.
.
3. The police sent the dead body for post mortem examination at RPGMC Tanda, where the examining Doctor preserved the viscera of the deceased. On the examination of the dead body, neither any injury nor any fracture was found on any portion of the body of the deceased. The police obtained the viscera from the hospital and sent the same to the RFSL, Dharamshala, which subjected it to various scientific tests and detected Organophosphorus Insecticide as well as Ethyl Alcohol, which, in the blood was found to 175.91mg %. As per the report of RFSL the cause of death was consumption of alcohol and some poisonous substance containing Organophosphorus.
4. The mother of the deceased, who is the petitioner herein, was not satisfied with the filing of the report by the police under Section 174 CrPC and she came up before this Court by way of a writ petition being CWP No. 6985 of 2014, seeking registration of an FIR. Vide judgment dated 9th December, 2014, a Division Bench of this Court ordered the registration of FIR. Consequently FIR No.329/2014, dated 17.12.2014, was registered in the file of the Police Station Nurpur, Distt. Kangra, H.P., for the commission of offence under Section 302 read with Section 34 of the Indian Penal ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 4 Code. Although, this FIR was registered pursuant to the directions issued by this Court, but the police took a formal statement of the .
petitioner, in which she levelled direct allegations against Dipu and his brother Sunny, who were co-villagers, stating that they had called her son under the pretext of a party and then they killed him by administering poison.
5. After the registration of FIR, the investigation was entrusted to SI Desh Raj and SHO Megh Nath Chauhan. After the completion of the investigation the Investigating Officers came to the conclusion that at the time of intake of poison, the deceased was under the influence of alcohol and he either took the poison by mistake or on his own. Therefore, they did not find any cause to proceed any further with Section 302 IPC and sought closure of the investigation.
6. The petitioner is not satisfied with this conclusion and has come up to this Court seeking a mandamus to transfer the investigation to the Central Bureau of Investigation.
7. We have heard Sh. Chander Shekhar Sharma, learned counsel for the petitioner and Sh. Ashwani Sharma, learned Additional Advocate General for the respondent and also gone through the entire police file.
::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 5DISCUSSIONS AND ANALYSIS:
8. Since the case is based on circumstantial evidence, therefore, .
the following circumstances need to be examined to arrive at a conclusion that whether the investigation conducted by the respondents is up to the mark and satisfactory or not:
(a) On 7.11.2012 at 9.00 p.m., when Dipu and his brother Sunny had dropped Chaman Lal (deceased) at his home then his wife Puja was present there. Both these persons are the co-villagers and if there was any enmity between them, then such a situation would have created a doubt in the mind of the wife of Chaman Lal (deceased). However, she did not raise any suspicion. During investigation, the Investigating Officer did not find any enmity between the deceased and these two persons.
(b) In the FIR, the petitioner has levelled specific allegations against Dipu and his brother Sunny, stating that these two brothers had called her son, by making a phone call, and then killed him by administering poison. The allegations are confined to these two brothers only. There is no allegation whatsoever, of any prior animosity. When the allegations were focused against these two brothers then motive would assume a significant importance. In the absence ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 6 of motive, this circumstance breaks and does not lead to an inference about the guilt of these two brothers.
.
(c) A perusal of the postmortem report dated 8.11.2012, which was conducted by a team of Doctors, headed by Dr. Vijay Arora, Associate Professor, RPGMC, Tanda, reveals that they noticed only the following single injury on the body of the deceased:
One lacerated wound 1.0 X 0.2 cm present horizontally over upper part of the nose. Clotted blood present.
Apart from the above injury, there was no other injury around the mouth, lips, neck or other parts of the body. This lacerated injury on the nose, is of such a small nature, that it may not be sufficient to lead to forcible administration of poison. In case of forcible administration of poison there is a great possibility of injury on the lips and specially on its inner portion. Even otherwise, Organophosphorus is a compound with a pungent smell. During the postmortem, the Doctors had preserved the viscera and the report of the RFSL, Dharamshala, dated 31.12.2012 is extracted as follows:
"Parcel No. 1. On opening the parcel following four exhibits each bearing one seal of impression 'ssq' were found.
Exhibit No. 1. Plastic jar stated to contain parts of stomach small intestine with contents marked as P/1-1.::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 7
Exhibit No. 2. Plastic jar stated to contain parts of liver, spleen and kidney marked as P/1-2.
Exhibit No. 3. Plastic tube stated to contain blood marked as P/1-3.
.
Exhibit No. 4. Plastic tube stated to contain preservative marked as P/1-4.
Parcel No. 2. Cloth packet stated to contain bed sheet stained with vomit marked as P/2.
Parcel No. 3. Plastic jar stated to contain faecal matter marked as P/3.
RESULT The contents of above said parcels/exhibits have been analyzed physically and chemically.
ORGANOPHOSPHORUS INSECTICIDE was detected in the contents of parcels exhibits P/1-1, P/1-2, P/1-3 and P/2 but the same could not be detected in the contents of parcel/exhibits P/1-4 and P/3. ETHYL ALCOHOL was also detected in the contents of exhibit P/1-1, P/1-2 and r P/1-3 but the same could not be detected in the contents of parcels/exhibits P/1-4, P/2 and P/3. Quantity of the same in P/1-3 (blood) is 175.91 mg%. No other poison could be detected in the contents of above described parcels/exhibits."
If there was forcible administration of poison, there was a possibility of some injury on the lips and especially on its inner portion.
(d) Organophphosphorus Insecticide is a compound with a pungent smell. In Dr. K.S. Narayan Reddy's book on Medical Jurisprudence and Toxicology {1st Edition}, Chapter 35 deals with Agricultural Poisons and in relation to Organophosphorus poisons it is mentioned as under:
Absorption: It is absorbed by inhalation, through the skin, mucus membranes and the gastrointestinal tract.::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 8
Many of them have a high specificity of action, and others confer a systemic insecticidal activity on .
the tissues and juices of plants by which they are taken up after application at the roots to the aerial parts. They are mixed with a solvent, usually aromax, which is responsible for kerosine- like smell in the body cavities, stomach contents, vomit, froth, etc. Some of the solvents used are odourless.
Signs and Symptoms: Onset of systemic symptoms is most rapid following inhalation, and least rapid following absorption from the skin. With massive ingestion or inhalation, symptoms may begin within five minutes, or may be delayed, for half to one hour and are at a maximum in 2 to 8 hours. ...
Thus, if the deceased had been administered poison, before he was dropped at his home, then his wife would have come to know about it.
(e) The police also conducted the spot investigation of the place where the deceased had taken alcohol, and found it to be a public place, where there was movement of people. The Investigating Officer also came to the conclusion that at that kind of a place, where there was movement of people, it would be difficult for anyone to forcibly administer poison to someone.::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 9
(f) In the investigation it came to the notice of police that the petitioner had quarreled with his son on account of a .
dealing of `2,000/- (rupees two thousand), and he revealed this fact to his wife Puja and told her that it is better to die.
The Investigating Officer concluded that the possibility cannot be ruled out that in a fit of anger, the deceased might have consumed poison. The family had tethered a large number of goats and such insecticide was available in the house of the deceased.
(g) The most significant aspect of the matter is that, the deceased had walked up to his home. In case he was administered poison where he had taken alcohol, then it would have been very difficult for him to walk to his home keeping in view the fact that he had consumed alcohol which in his blood was found to be 175.91mg%.
9. The above circumstances do not lead to any inference about the death of the deceased being culpable homicide amounting to murder. There is no allegation of any bias against the Investigating Officers. There is no allegation that the suspects Dipu and Sunny were influential or rich people and had capacity to interfere in the outcome of the investigation. These two persons were co-villagers and of the same class to which the deceased belonged. There is no ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 10 possibility to cast any doubt on the authenticity and fairness of the investigation conducted by the police.
.
10. The following judicial precedent spell out the circumstances and situations under which the investigating can be transferred to the Central Bureau of Investigation:
In K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and others, (2013) 12 SCC 480, a three member bench of r to Supreme Court holds as follows:
"13. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court , where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 11 accusation against any individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38;
.
Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors., 1994(1) R.C.R. (Criminal) 205 ; Vineet Narain & Ors., v. Union of India & Anr., AIR 1996 SC 3386; Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC 314; Disha v. State of Gujarat & Ors., 2011(3) R.C.R.(Criminal) 694 : 2011(4) Recent Apex Judgments (R.A.J.) 190 ; Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors., 2011(3) R.C.R.(Criminal) 827 : 2011(4) Recent Apex Judgments (R.A.J.) 439 : (2011) 13 SCC 329; and State of Punjab v.
Davinder Pal Singh Bhullar & Ors. etc., 2012(1) R.C.R. (Criminal) 126 : 2011(6) Recent Apex Judgments (R.A.J.) 303 ).
14. In Rubabbuddin Sheikh v. State of Gujarat & Ors., 2010(1) R.C.R.(Criminal) 738 : (2010)2 SCC 200, this Court dealt with a case where the accusation had been against high officials of the police department of the State of Gujarat in respect of killing of persons in a fake encounter and the Gujarat police after the conclusion of the investigation, submitted a charge sheet before the competent criminal court. The Court came to the conclusion that as the allegations of committing murder under the garb of an encounter are not against any third party but against the top police personnel of the State of Gujarat, the investigation concluded by the State investigating agency may not be satisfactorily held. Thus, in order to do justice and instil confidence in the minds of the victims as well of the public, the State police authority ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 12 could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. Thus, the Court held that even if a chargesheet .
has been filed by the State investigating agency there is no prohibition for transferring the investigation to any other independent investigating agency.
15. In State of West Bengal v. Committee for Protection of Democratic Rights, 2010(2) R.C.R.(Criminal) 141 : 2010(1) Recent Apex Judgments (R.A.J.) 664 , a Constitution Bench of this Court has clarified that extraordinary power to transfer the investigation from State investigating agency to any other investigating agency must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. (See also: Ashok Kumar Todi v. Kishwar Jahan & Ors., 2011(2) R.C.R.(Criminal) 145 : 2011(2) Recent Apex Judgments (R.A.J.) 139 ).
16. This Court in the case of Sakiri Vasu v. State of UP, 2008(1) R.C.R.(Criminal) 392 held :
"31...This Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them."
(Emphasis added) ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP 13
17. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State .
investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."
11. In view of the analysis of the investigation and applicability of the judicial precedent, no case is made out to transfer the case to the Central Bureau of Investigation. Therefore, the petition is dismissed. Pending applications, if any, also stand disposed of accordingly.
Police file is returned to the learned Additional Advocate General, appearing for the respondents.
(V. Ramasubramanian), Chief Justice.
(Anoop Chitkara), Judge.
August 30 , 2019 (PK) ::: Downloaded on - 29/09/2019 02:54:45 :::HCHP