Kerala High Court
Shaji Varghese vs State Of Kerala on 11 September, 2024
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W.P.(C)No.31901 of 2017
2024:KER:68936
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024/20TH BHADRA, 1946
WP(C) NO. 31901 OF 2017
PETITIONER:
SHAJI VARGHESE
AGED 50 YEARS
S/O VARGHESE,RESIDING AT ENNACKAPPILLIL HOUSE,
MULAKULAM NORTH P.O.,ERNAKULAM-686 664.
BY ADVS.SASTHAMANGALAM S. AJITHKUMAR (SR.)
SREEJITH S. NAIR
RESPONDENTS:
1 STATE OF KERALA
THROUGH ITS DEPARTMENT OF HOME AFFAIRS,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM-696 001,REPRESENTED
BY ITS PRINCIPAL SECRETARY
2 THE DIRECTOR GENERAL OF POLICE & STATE POLICE
CHIEF OF THE STATE OF KERALA
KERALA STATE POLICE HEADQUARTERS,
VELLAYAMBALAM P O, THIRUVANANTHAPURAM-695 010.
3 THE ADDITIONAL DIRECTOR GENERAL OF POLICE (CRIMES)
CRIME BRANCH HEADQUARTERS, VELLAYAMBALAM P.O.,
THIRUVANANTHAPURAM-695 010.
4 THE SUPERINTENDENT OF POLICE (CBCID-CRIME)
THRIPUNITHURA 682 301.
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W.P.(C)No.31901 of 2017
2024:KER:68936
5 THE CENTRAL BUREU OF INVESTIGATION
REPRESENTED BY ITS DIRECTOR, CBI HEAD QUARTERS,
NEW DELHI.
6 ADDL.R6. CRONIN ALEXANDER BABY
AGED 29 YEARS
S/O. BABY.M.C., MOLEL HOUSE, PIRAVOM.P.O.,
ERNAKULAM-686664. (ADDL. RESPONDENT NO.6 IS
IMPLEADED AS PER ORDER DATED 2-11-2020 IN IA
1/2020).
BY ADVS.VIPIN NARAYAN, SR.GOVERNMENT PLEADER
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
SREELAL WARRIAR
PHILIP T.VARGHESE
JOHN S.RALPH, AMICUS CURIAE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 30.8.2024, THE COURT ON 11.09.2024, DELIVERED THE
FOLLOWING:
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W.P.(C)No.31901 of 2017
2024:KER:68936
C.S.SUDHA, J.
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W.P.(C)No.31901 of 2017
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Dated this the 11th day of September 2024
JUDGMENT
In this writ petition under Article 226 of the Constitution of India filed on 05/10/2017, the petitioner, the distraught father of Mishel Shaji Varghese, seeks a writ of mandamus directing the fifth respondent Central Bureau of Investigation (CBI), to take over the investigation in Crime no.671/2017, Central Police Station, Ernakulam or in the alternative to direct the second respondent, namely, the State Police Chief, to consider Ext.P3 representation and pass appropriate orders/directions for conducting an impartial and proper investigation within a time frame to be stipulated by this Court. According to the petitioner, the investigation so far conducted is totally unsatisfactory. The local police and thereafter the fourth respondent, namely, the CBCID-Crime, were never ready to listen to the grievances/complaints of the petitioner and are 4 W.P.(C)No.31901 of 2017 2024:KER:68936 proceeding on the wrong and preconceived notion that Mishel committed suicide.
2. This case relates to Mishel Shaji going missing on 05/03/2017 and thereafter recovery of her dead body on 06/03/2017 from the Vembanad lake (Kollam-Kottapuram Waterway in Cochin). Mishel Shaji was undergoing foundation course for Chartered Accountant course and was staying at St.Teresas' Hostel, Kacheripadi, Ernakulam. She left the hostel for St.Antony's Shrine, Kaloor by about 05:00 p.m. on 05/03/2017 and never returned. The hostel authorities realised that she did not return when attendance was taken in the evening. They informed her parents at Piravom, who rushed to Ernakulam. The petitioner and family along with two nuns of the hostel went to the Women's Police Station, Ernakulam and made a complaint. The Station House Officer (SHO) directed them to go to the North Police Station, Ernakulam, from where they were directed to the Central Police Station, Ernakualm. However, the Civil Police Officers present there were 5 W.P.(C)No.31901 of 2017 2024:KER:68936 reluctant to register a crime or initiate any action. They directed the petitioner and his family to come by 08:30 a.m. the next day by which time the Sub Inspector would also be available in the Station.
2.1. The petitioner along with his family and the nuns then went to St.Antony's Shrine and got the CCTV footage with the help of the priest and a technician. On inspecting the footage, they found Mishel's presence in the church in the previous evening of 05/03/2017. The petitioner again went back to the Central Police Station, Ernakulam along with the technician and made a further complaint. The Civil Police Officers quite reluctantly after much persuasion, received the complaint and registered a crime by about 02:00 a.m. on 06/03/2017. At about 05:30 p.m. on 06/03/2017, Mishel's body was recovered from the Vembanad Lake. It was only thereafter the police actually recorded the First Information Statement and registered Ext.P1 FIR, which is seen registered on 06/03/2017 at 17.58 hrs. By the said time, the petitioner and his family had already returned to their native place at Piravom. The 6 W.P.(C)No.31901 of 2017 2024:KER:68936 SHO, Central Police Station has manipulated Ext.P1 with ulterior intentions.
2.2. The dead body was identified by the petitioner's brother-in-law. The body was not decomposed and appeared to be quite fresh. Symptoms of death due to drowning were not visible. Dark blue scars were found on either side of her nose and arms, indicating use of force. Her footwear and wrist watch were missing. As per Ext.P2 postmortem report, death was due to drowning. The death of Mishel became a sensational news and the matter was raised on the floor of the Legislative Assembly. It was declared on the floor of the Legislative Assembly by the Minister concerned that the investigation would be handed over to the Crime Branch. Thus, investigation was taken over by the fourth respondent. The fourth respondent/Crime Branch has reached the conclusion that Mishel committed suicide by 08:00 p.m. on 05/03/2017 by jumping into the backwaters from the second bridge between Ernakulam and Vypin. According to the police, the 7 W.P.(C)No.31901 of 2017 2024:KER:68936 additional respondent no.6 abetted the commission of suicide and so was arrested and later released on bail. The investigating officers were changed several times during the crucial stages of investigation. The petitioner firmly believes that his daughter was murdered and there was foul play in the course of investigation. He submitted a detailed complaint, the copy of which is Ext.P3 to the second respondent pointing out the shortcomings in the investigation and the missing links in the story propounded by the police. But the second respondent also firmly maintained that Mishel had committed suicide and that there exists no foul play in her death. The petitioner and his family firmly believe that Mishel was murdered by certain rich and influential set of people and that the police is reluctant to book the real culprits. Hence, the writ.
3. The allegations in the petition are disputed by the fourth respondent who has filed a detailed counter affidavit stating that a proper, fair and independent investigation has been conducted. All angles have been probed and investigated. No materials have come 8 W.P.(C)No.31901 of 2017 2024:KER:68936 up to show that it is a case of homicide. On the other hand, the materials collected show abetment of suicide by additional sixth respondent, who had been in a relationship with the deceased. The investigation is nearly over. The final report/charge sheet has not been filed only because of the pendency of the writ petition.
4. As per order dated 02/11/2020, Adv.John S.Ralph was appointed as the amicus curiae. As per order dated 17/11/2020, the learned amicus was directed to peruse the documents CD containing about VII distinct volumes and submit a report. Accordingly, the CD files were perused by the learned Amicus in the presence of the Prosecutor and a report has been submitted.
4.1. Heard Adv.Sasthamangalam S.Ajithkumar, the learned Senior counsel for the petitioner, instructed by Sreejith S.Nair ; Adv.Vipin Narayan, the learned Senior Public Prosecutor and Adv.John S.Ralph, the learned amicus curiae.
5. Before I go into the merits of the allegations and 9 W.P.(C)No.31901 of 2017 2024:KER:68936 counter allegations, I make a brief reference to the precedents on the point. It has been held in CBI v. Rajesh Gandhi, 1996 KHC 1338 : 1996 (11) SCC 253 that no one can insist that an offence be investigated by a particular agency. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
5.1. In Secretary, Minor Irrigation and Rural Engineering Services U.P. v. Sahngoo Ram Arya, 2002 KHC 1280 : AIR 2002 SC 2225 it has been held that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation. 10 W.P.(C)No.31901 of 2017
2024:KER:68936 5.2. In Union of India v. Sushil Kumar Modi, (1997)1 SCALE 432 it has been held that it must be borne in mind that the scope and purpose is to ensure proper and faithful performance of its duty by the police officer by resort to the prerogative writ of mandamus. If, however, the investigation shows either sluggishness or a deviation from a normal, honest and objective investigation, the Court could give guidance the CBI rather than express anything on the merits of the investigation. Further, what the court is concerned with is ensuring proper and honest performance of its duty by the C.B.I. and not the merits of the accusations being investigated, which are to be determined at the trial on the filing of the charge sheet in the competent Court, according to the ordinary procedure prescribed by law. Care must, therefore, be taken by the High Court to avoid making any observation which may be construed as the expression of its opinion on merits relating to the accusation against any individual. Any such observation made on the merits of the 11 W.P.(C)No.31901 of 2017 2024:KER:68936 accusation by the High Court are not to be treated as final. Such observations should not, in any manner, influence the decision on merits at the trial on the filing of the charge sheet. The task of the High Court has been described as a "delicate one" which has to be handled with dexterity and tact. It was observed that the delicate task of ensuring implementation of the rule of law by requiring proper performance of its duty by the CBI and other governmental agencies, while taking care to avoid the likelihood of any prejudice to the accused at the ensuing trial because of any observation made on the merits of the accusation in the present proceedings, has to be performed with dexterity and tact needed in the conduct of such a proceeding.
5.3. In Anukul Chandra Pradhan v. Union of India, (1996)6 SCC 354 it has been held that the High Court must see that publicity in these matters does not diminish or dilute the requirement of our criminal law for a fair trial in case a charge sheet is registered, and the matter goes to trial. No occasion should 12 W.P.(C)No.31901 of 2017 2024:KER:68936 arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. Any observation made by the Court for the purposes of the writ proceedings shall have no bearing on the merits of the accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermined in any manner.
6. Having thus reminded myself of the precedents on the point, I proceed to examine the merits and demerits of the allegations raised in the petition. A few reasons have been cited by the petitioner in support of the theory that this is a case of homicide. I will refer to the grounds raised by the petitioner and answers given by the fourth respondent to the same.
7. Delay in recording FIS and registering the crime In the counter affidavit of the fourth respondent, it is stated 13 W.P.(C)No.31901 of 2017 2024:KER:68936 that Mishel Shaji went missing from 19:15 hrs. on 05/03/2017 after she is said to have gone to the St.Antony's church, Kaloor. As per the statement of the Sister in charge of the hostel, when attendance was taken on 05/03/2017 at 08:05 p.m., it was found that Mishel had not returned to the hostel. She tried calling Mishel on her mobile phone, which was found to be switched off. She then informed the parents who came to the hostel by about 10:00 p.m. She along with the parents and brother of Mishel went to the church at Kaloor in search of the girl. From there they proceeded to the police station. According to the petitioner, they first went to the Women's Police Station, from where they were directed to the North Police Station, Ernakulam. The officials at the said Station directed them to the Central Police Station, Ernakulam. However, the officers there were also reluctant to register a crime or initiate any action. It was after much persuasion; the police finally recorded his statement by about 02:00 a.m. on 06/03/2017. But as per Ext.P1 FIR, the FIS of the petitioner is stated to have been 14 W.P.(C)No.31901 of 2017 2024:KER:68936 recorded on 06/03/2017 at 05:58 p.m., that is 17:58 hrs. and thereafter the FIR registered. This is one major issue which has raised suspicions in the mind of the petitioner and his family. According to the petitioner, this is the first manipulation done by the police with ulterior intentions.
7.1. In response to this allegation, the fourth respondent contends in paragraph no.28 of the counter affidavit that suitable departmental action has been taken against the police officers of all the three police stations and that departmental enquiry against the said officers are ongoing. The allegation of the petitioner that the FIS was in fact given during the intervening night of 05/03/2017 and 06/03/2017 is thus not seen disputed.
8. No decomposition of the body According to the petitioner, when the body was recovered, it appeared quite fresh though it was in the water for about 20 hours or so; no signs of decomposition were seen ; no signs of death due to drowning were visible; dark blue scars were found on either side 15 W.P.(C)No.31901 of 2017 2024:KER:68936 of the nose and arms indicating use of force and blood was found oozing from the nose and ears even when the body was taken for postmortem examination. The lack of signs of decomposition unlike other dead bodies that were recovered from the area where the body of Mishel was recovered, according to the petitioner, is another factor which raises doubts about the theory of suicide.
8.1. According to the learned amicus, the following factors must have slowed down the process of decomposition - (i) the backwater of Kochi is high in salinity; (ii) from 08:00 p.m. to 06:00 a.m. there would be no sunlight; (iii) underwater temperature would be low; (iv) the deceased was fully dressed which included jeans. The body comes to the surface of the water once putrefaction starts. Once the body is on the surface, necrophagous insects start acting on it which would speed up decomposition. Referring to the CD, it was pointed out that the police had also done a comparative study of twelve bodies drowned in the backwaters of Kochi. The bodies recovered were about 04:00 hrs. 16 W.P.(C)No.31901 of 2017 2024:KER:68936 to two days old. The photographs contained in Volume III of the CD show bodies without any decomposition changes and without any bite by fish, crab etc.
9. Presence of injuries/scars on body The petitioner pointed out the presence of dark blue scars on either side of the nose and arms. This is explained by referring to the statement of the then Sub Inspector, Harbour Police Station, who stated that when the body was lifted out of the water, a crab was seen near the lips of the deceased, which might have caused an 'injury like appearance' near the lips. As far as dark scars on either side of nose and arms are concerned, it is pointed out that no signs of or possibility of forceful drowning has been made out. The possibility of forceful drowning is ruled out for the following reasons - (i) forceful drowning usually happens in shallow water, which would result in the palms holding mud/vegetation etc. in the struggle. But this was absent in this case; (ii) the places near the banks in the backwater of Kochi are shallow and muddy. But no 17 W.P.(C)No.31901 of 2017 2024:KER:68936 mud was seen in the dress or body; (iii) no signs of use of force like nail marks on the neck etc., common in forceful drowning was seen; (iv) features like water in the lungs and absence of water in stomach are suggestive of fall from a considerable height, resulting in dry drowning. The postmortem examination does not show signs of any physical violence. Though about 350 people were questioned, no material has come to show any abduction had taken place. The postmortem findings are consistent with death due to drowning.
10. CCTV footage of two men following Mishel According to the petitioner, the visuals captured by the CCTV footage maintained in St. Antony's Shrine, Kaloor indicates that two young men were following Mishel while she was leaving the church. The investigating officers have not been able to detect these young men till date. This, according to the petitioner, is a serious lacuna in the investigation conducted. This is explained by the police thus - the CCTV footage shows two unidentified persons 18 W.P.(C)No.31901 of 2017 2024:KER:68936 on a motorcycle when Mishel came out of the church. Investigation was conducted by examining around 350 persons but still the identity of the said persons could not be established. The church at Kaloor is a place visited by many people. From CCTV footage which lacks clarity, the possibility of identifying the said persons is remote. The police also published a news item including a clipping from the CCTV in the dailies on 17/07/2017 for the purpose of identifying them. But it has yielded no results till date.
11. Presence of pieces of carrot in stomach Another aspect pointed out is the presence of half-digested food containing pieces of carrot and green chilies in the stomach of the deceased during autopsy. The hostel authorities maintained that carrots were not used in the menu provided on that day. The police have been unable to explain this and so the petitioner alleges that the deceased must have been in the company of some others, raising doubts of foul play. According to the fourth respondent, the statement of the cook of the hostel was recorded on 17/03/2017. 19 W.P.(C)No.31901 of 2017
2024:KER:68936 The cook has stated that there was no carrot in the menu of the day, that is, on 05/03/2017. However, there was carrot on the previous night's dinner, that is, on 04/03/2017. The cook has also stated that the inmates do bring food from outside. The cook was unable to say whether the deceased had food on 05/03/2017. Mishel's friends did not see her taking food on the said day. The time gap between the presence of Mishel at the church at Kaloor as seen in the CCTV footage and the time of her jump into the backwaters is around 2½ hours. The news of the incident had been widely published in the media. But till date, none have reported that Mishel had visited any of the restaurants/hotels situated in the distance between the church at Kaloor and the Goshree bridge.
12. Place from where body found According to the petitioner, if Mishel had jumped from the second Goshree bridge, her body would never have reached the Mattancherry wharf area. The learned amicus points out that the police has recorded the statement of the locals who are acquainted 20 W.P.(C)No.31901 of 2017 2024:KER:68936 with the flow of water in the area which is consistent with the place where the body was found. The body was found in the direction towards the Arabian sea. The people of the locality are seen to have given statements to the effect that there is a small island near the jetty at Embarkation and another small island near the oil tanker jetty. This would prevent the body from going towards the mouth of the sea and that the body would return without entering the sea- mouth. They have also stated that the undercurrent water-flow would be very high in the said area. The police had also conducted a dummy test which also confirmed and is consistent with the opinion expressed by the people of the locality. Due to the undercurrent and tidal waves, the corpse would move towards the Mattancherry wharf and then move to and fro for the next 20 hours or so. According to the learned amicus, the police had only checked the time at which Mishel is stated to have jumped into the water and based on the tide chart prepared by the Port trust, concluded that the body would reach the wharf in the low tide. But 21 W.P.(C)No.31901 of 2017 2024:KER:68936 they overlooked the fact that in the intervening 20 hours, not less than three tidal cycles would be there. However, it was pointed out by the learned amicus based on materials collected from the internet, there was low tide at 05:00 p.m. on 06/03/2017, the day on which the body was found. The low tide would push the body towards the Mattancherry wharf and so the finding of the police on this aspect is right, though they omitted to calculate the intervening tidal waves. Referring to these aspects, it was submitted that it is quite probable/natural for the corpse to have been present in the place from where it was recovered as the deceased is stated to have jumped into the water from the second Goshree bridge.
13. Non recovery of personal belongings of the deceased The personal belongings of the deceased like handbag, wristwatch, shoes etc. have not been traced out from the place where the deceased is stated to have jumped into the water. The stand of the fourth respondent as pointed out by the learned amicus 22 W.P.(C)No.31901 of 2017 2024:KER:68936 referring to the CD, is that a diving team based in Kochi had been employed by the investigating agency to search for these items. They searched the place from where Mishel is stated to have jumped into the water, but nothing could be traced. This was done under the belief that she had jumped from the second Goshree bridge. This in turn was arrived at based on the statement of a witness, named, Amal George. The learned amicus points out that the version of this witness suffers from the following defects - (i) when the witness was questioned on 19/03/2017, his version was that he had seen a girl in a dark coloured churidar in and around the place from where she is alleged to have jumped into the water. But on the said day he did not identify the deceased from the photo shown to him; (ii) when he was again questioned on 18/04/2017, that is after one month, he stated that it was the girl seen in the photos that he had seen on 05/03/2017 on the bridge; (iii) in the second statement he stated that the girl was wearing a light coloured churidar. However, the fact is that the deceased was 23 W.P.(C)No.31901 of 2017 2024:KER:68936 wearing a red coloured T-shirt though she was having a light- coloured shawl which might have confused the witness into saying that the girl was wearing a churidar because of bad light. But his explanation for the improvement in his statement is that the police had not shown him the full-size photographs of Mishel when he was questioned for the first time. The album shown by the investigating agency contains several photographs of the deceased. Amal George was first questioned after fourteen days of the death by which time, the police had several photographs in their custody. Therefore, it was pointed out that it was improbable and unlikely for the police not to have shown him the full-size photographs of the deceased and had shown only one profile photo. Further, the dress mentioned in both the statement of the witness is not matching with the dress worn by the deceased. The deceased was wearing a T-shirt and jeans and not a churidar as stated by the witness. The witness claims that he had seen the girl near the second Goshree bridge, that is, when one comes from the Vypin 24 W.P.(C)No.31901 of 2017 2024:KER:68936 direction to Kochi. However, there are two bridges at this point - one towards Vypin from Kochi and the other coming from Vypin towards Kochi. Further, it remains a mystery as to why Mishel chose the second bridge rather than the first bridge to jump into the water. The distance between the centre of these two bridges is about 1000 metres and the distance between the landing of the first bridge and the starting of the second bridge is around 500 metres. Pointing to these aspects, it was submitted by the learned amicus that the failure to recover the personal belongings of the deceased might be because the police had never searched the area near the first bridge and had searched only the waters near the second bridge as they proceeded on the assumption that Mishel had jumped into the water from the second bridge.
14. The other factors pointed out against the theory of homicide.
The scientific evidence, that is the report of the Assistant Chemical Examiner dated 18/03/2017 rules out the possibility of 25 W.P.(C)No.31901 of 2017 2024:KER:68936 homicide as no signs of sexual abuse or signs of any poison or alcohol were found in the body of the deceased. This rules out the possibility of Mishel having been pushed into or accidentally falling into the water in an intoxicated state caused by administration of poison or alcohol.
14.1. The possibility of accidental fall is also ruled out by pointing out to the fact that Mishel had switched off her mobile phone by evening, assuming that she is the person seen in the CCTV footage recovered by the investigating agency. She is seen walking towards the Goshree bridge. Mishel had no reason(s) to go near the Goshree bridge or the wharf. The side walls of the bridges have a height of about 4 feet, which would also rule out the possibility of any accidental fall.
15. No possibility of suicide as Mishel was smart, intelligent and strong willed.
It was pointed out by the learned counsel for the petitioner that Mishel was quite a smart and brilliant girl and therefore, there 26 W.P.(C)No.31901 of 2017 2024:KER:68936 was absolutely no possibility of her committing suicide and there was no reason(s) for her to end her life also. The parents and friends of Mishel assert that she was strong and smart. On the day on which she went missing, she had spoken to her mother over the phone at about 03:00 p.m. at which time she is stated to have sounded quite cheerful. Mishel is stated to have expressed her desire to go to her parents' house at Piravom to take a book. But her mother dissuaded her due to the forthcoming exams. The theory of suicide put forward by the police also needs to be looked into or explored. According to the fourth respondent, the additional sixth respondent had been in a relationship with Mishel right from her school days. Once Mishel joined for Chartered Accountancy course, the sixth respondent appear to have felt that she was drifting away from him. It appears that he did not even like Mishel talking or interacting with her male friends. On 05/03/2017, the additional sixth respondent is seen to have made five phone calls and bombarded her or sent her a barrage of texts, that is, 60 SMS 27 W.P.(C)No.31901 of 2017 2024:KER:68936 between 09:59 a.m. and 14:57 hrs (02:57 p.m.). This certainly is a matter that needs to be looked into especially when all the said texts were deleted by the sixth respondent on the next day when he came to know that Mishel had gone missing. The last phone call was made by the sixth respondent to Mishel at 03:32 p.m. after which, there were no calls to or from her phone. Five phone calls were made by the sixth respondent on the day, that is, at 07:28 p.m. when the call lasted for 05 minutes 46 seconds; at 09:39 a.m. for three minutes; at 12:03 p.m. for ten minutes; at 03:00 p.m. for twenty- two minutes and finally at 03:32 p.m. for twelve seconds. As the sixty SMS texts sent to Mishel were deleted from the phone of the accused, it is stated that CDAT was unable to retrieve the said texts. However, there was one text that could be retrieved from the phone of the accused dated 01/03/2017 which was seen as 'unsend'. The said message is indeed quite a disturbing one. I refrain from extracting the said message in this order, as I do not want to cause any prejudice whatsoever to either side in the trial to ensue as the 28 W.P.(C)No.31901 of 2017 2024:KER:68936 sixth respondent is alleged to have committed the offence punishable under Section 306 IPC.
15.1. The fact that the sixty text messages sent on 05/03/2017 were deleted by the sixth respondent does raise suspicions. The messages might have triggered/stirred strong emotions in Mishel. This is especially so when one goes through the unsent message retrieved from the phone of the sixth respondent. On 06/03/2017, three messages are seen sent by the sixth respondent to the phone of Mishel. The said messages have not been deleted. There is a distinct change/shift seen in the tone and tenor of the messages sent on 06/03/2017 when he seems to have realised that Mishel had gone missing. Mishel may have appeared quite normal till 03:00 p.m. on the said day. After 03:00 p.m. to 03:22 p.m. there was no conversation between the deceased and the sixth respondent. This is also strange especially considering the fact that sixty texts were sent in a short span of five hours or so during which time five phone calls are also seen made. 29 W.P.(C)No.31901 of 2017
2024:KER:68936 The last call between the sixth respondent and the deceased at 15:32 hrs was only for about twelve seconds. This also, as rightly pointed out by the learned amicus, points to the possibility that they were no longer in talking terms and that probably appears to be the reason, why no SMS texts were sent by the sixth respondent to the deceased after the last call. Immediately thereof, Mishel is seen to have switched off her mobile phone, that is, after the call from the additional sixth respondent at 15:32 p.m. After that there was only one service SMS at 15:47 hrs seen received in her mobile phone. This suggests that Mishel did not want to contact or talk to anybody, by which time she probably might have taken a decision. From the statement of the additional sixth respondent also, it appears that Mishel had told him that she had taken some decision and that he would know about it by Monday, that is, the next day.
16. Conclusion It was no doubt insensitive on the part of the police to have sent the distraught parents from one police station to another. They 30 W.P.(C)No.31901 of 2017 2024:KER:68936 ought to have taken action at the earliest, especially, when it was a case of missing of a young girl and when the parents had taken the pains to procure the CCTV footage and tried to convince the police officials into taking prompt action. This no doubt was a failure on the part of the officials concerned. But this delay in registering the crime does not seem to have affected the investigation thereafter conducted as no suspicious circumstance(s) is/are made out to substantiate the allegation that the police is trying to screen the actual / real culprits. The parents of Mishel seem to be in no mood to accept the relationship of their daughter with the sixth respondent. As parents, they can never be faulted for the same. From the statement of the additional sixth respondent, it appears that Mishel's mother got wind of the relationship, and she seems to have expressed her displeasure over the same also. The phone calls and the unsent SMS coupled with the deleted texts, do certainly probablise the case of relationship between the two which seem to have turned sour. Mishel did not take her purse or money 31 W.P.(C)No.31901 of 2017 2024:KER:68936 with her when she went out of the hostel to the church. She went on foot from Kaloor till the Goshree bridge, a distance of about 5 to 6 kms or so. The police are seen to have probed, investigated and explored all possibilities and angles. The investigating team has recorded the statement of nearly 350 persons. CCTV visuals showing the movement of the deceased has been collected. The reports of the scientific experts have been collected. They have collected materials in support of suicidal drowning. CDRs of the persons concerned in the incident have also been collected and the data retrieved. They have also done a comparative study of the drowned cases in Kochi waters to rule out the suspicions raised regarding the lack of decomposition. All these as pointed out by the amicus, strongly suggest that the finding of death by drowning is consistent with the scientific evidence. There is also nothing to suggest homicide. Therefore, the materials on record do not make out a case for handing over the investigation of the case to the CBI.
16.1. It is true that the police are unable to explain the 32 W.P.(C)No.31901 of 2017 2024:KER:68936 presence of pieces of carrot in the stomach of the deceased. The police ought to have conducted necessary investigation then at the hotels/restaurants etc. situated between the church at Kaloor and the Goshree bridge. But as more than 7 years have elapsed, no purpose would be served by directing the fourth respondent now to conduct investigation on the said aspect by questioning the owners/ managers/persons who were then manning the hotels/restaurants.
17. The omissions which need to be rectified by the fourth respondent.
There is no clear proof of Mishel having jumped from the second Goshree bridge. From the CD now produced, the investigating agency seems to have concluded that Mishel jumped from the second bridge based on the statement of Amal George. It is true that there are certain discrepancies in his statements regarding the colour of the dress worn by Mishel. But he does not appear to be a wholly unreliable witness. It was dark at which time he is supposed to have seen the girl. He might have mistaken that 33 W.P.(C)No.31901 of 2017 2024:KER:68936 she was wearing a churidar because she is stated to have been wearing a shawl also at that time. He has no acquaintance with Mishel or her family and hence no reason for him to give a false statement. As the learned prosecutor points out, he is not a witness propped up by the police but a witness who voluntarily went to the police station and gave a statement when he heard about the incident from the media. The failure to recover the personal belongings may be because the investigating agency relying on the statement of Amal George concluded that Mishel must have jumped from the second bridge and hence searched only the area near the said bridge. To rule out all other possibilities, the fourth respondent needs to take steps and conduct a search in and around the first bridge also.
17.1. Another omission that is seen on the part of the police is the failure to conduct diatom test of water sample collected from the place where Mishel is alleged to have jumped into the water. They have conducted test only from the water 34 W.P.(C)No.31901 of 2017 2024:KER:68936 sample collected from the place where the dead body was found. The fourth respondent shall conduct diatom test of water samples collected from near the first as well as the second bridge.
17.2. The fourth respondent shall in addition to the attempt already made to retrieve the deleted SMS texts from the phone of the additional 6th respondent, make all earnest efforts to explore the other possibilities if any available to retrieve the same.
17.3. The conclusion that the body would reach the wharf in low tide is based on the tide chart prepared by the Port trust. According to the learned amicus, the police overlooked the fact that in the intervening 20 hours when the body was in the water, there would have been not less than three tidal cycles. Based on materials collected from the internet, the amicus says that there was low tide at 05:00 p.m. on 06/03/2017, that is, the day on which the body was found. The low tide would have pushed the body towards the Mattancherry wharf and so the finding of the police on this aspect is right, though they omitted to calculate the intervening 35 W.P.(C)No.31901 of 2017 2024:KER:68936 tidal waves. The fourth respondent shall investigate this aspect also and ensure that the conclusion presently arrived at by the police is right after taking into consideration the number of tidal cycles pointed out.
17.4. The fourth respondent shall undertake the aforesaid steps within a period of two months from the date of receipt of a copy of this judgment. Thereafter the investigation will be completed at the earliest and before the final report/charge sheet is submitted before the jurisdictional magistrate, the fourth respondent personally or by any such senior officer shall go through the final report and ensure that no mistakes/omissions have crept in.
18. Further, it is made clear that I have only looked into the question whether a fair, honest and impartial investigation covering all angles has been made by the fourth respondent. Any observations made in this order is solely for the purpose of the present proceedings and shall have no bearing at all on the merits of 36 W.P.(C)No.31901 of 2017 2024:KER:68936 the accusation made against the additional sixth respondent and it shall not in any manner influence the trial. The allegation of the commission of the offence of abetment of suicide as contemplated under Section 306 IPC by the additional sixth respondent is a matter that shall be determined by the competent court untrammelled by any observations made by this Court.
The writ petition is disposed of as aforesaid. Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/ 37 W.P.(C)No.31901 of 2017 2024:KER:68936 APPENDIX OF WP(C) 31901/2017 PETITIONER EXHIBITS EXHIBIT P1 A TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME NO.
0671/2017 OF ERNAKULAM CENTRAL POLICE STATION.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE POST-MORTEM REPORT NO. PM NO. 45/17 DATED 07.03.2017 ISSUED BY DR.MEENA K.S HOD, FORENSIC MEDICINE, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER WITH THE 2ND RESPONDENT.
EXHIBIT P4 PHOTOGRAPH OF THE DEADBODY OF DECEASED MISHEL SHAJI TAKEN AROUND 6 PM ON 07.03.2017 EXHIBIT P5 PHOTOGRAPH OF THE DEADBODY OF DECEASED MISHEL SHAJI TAKEN AROUND 6 PM ON 07.03.2017 EXHIBIT P6 COPY OF THE DISCHARGE SUMMARY OF THE DECEASED MISHEL SHAJI WITH THE MOSC MEDICAL COLLEGE HOSPITAL ON 26.09.2014 EXHIBIT P7 COPY OF THE BILL CUM CASH RECEIPT ISSUED FROM RENAL MEDICITY, PALARIVATTOM