Kerala High Court
Shihabudheen vs The Director General Of Police on 6 March, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
Crl.MC.No. 283 of 2014
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(CRIME NO.234/CR/HHW1/11 OF CBCID, KOLLAM UNIT, KOLLAM DISTRICT)
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PETITIONER(S)/ACCUSED 3,4 AND 5:
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1. SHIHABUDHEEN,
S/O.SHAJI, MAMBRAYIL THEKKATHIL VEEDU,
CHIRAYIL THEKKATHIL, SOORANADU, KOLLAM DIST,
KERALA.
2. SELVAN,
S/O.A. RAMAYYAN, PONYAKULAM, THRIPPARAPPU,
PECHIPPARA, JAINAGAR, KANYAKUMARI DIST.,
TAMILNADU.
3. NOUSHAD S.,
S/O.SHAJI, MAMBRAYIL THEKKATHIL VEEDU,
CHIRAYIL THEKKATHIL, SOORANADU, KOLLAM DIST,
KERALA.
BY ADVS.SRI.C.K.PRASAD
SRI.ABHILASH S.FRANCIS
RESPONDENTS:
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1. THE DIRECTOR GENERAL OF POLICE,
STATE OF KERALA, THIRUVANANTHAPURAM.
2. THE SUPERINTENDENT OF POLICE,
CBCID, KOLLAM UNIT.
3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 TO R3 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06-03-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.MC.No. 283 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE A1:-TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED
BY THE SASTHAMCOTTAPOLICE DTD 7/5/2011.
ANNEXURE A2:-THE TRUE COPY OF THE INQUEST REPORT DTD 7/5/2011.
ANNEXURE A3:-TRUE COPYOF THE REMAND APPLICATION DTD 7/8/2011 OF THE
1ST AND 2ND ACCUSED IN CRIME NO 514/11 BY THE SASTHAMCOTTE POLICE.
ANNEXURE A4:-A TRUE COPY OF THE REMAND APPLICATION OF THE
PETITIONERS 1 AND 2 DTD 7/12/2012 BEFORE THE JFCM COURT,
SASTHAMCOTTA.
ANNEXURE A5:-A TRUE COPY OF THE REMAND APPLICATION OF THE 3RD
PETITITIONER DTD 12/12/12 BEFORE THE JFCM COURT, SASTHAMCOTTA.
ANNEXURE A6:-A TRUE COPY OF THE REPRESENTATION DTD 23/9/2013.
RESPONDENT(S)' ANNEXURES:
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/TRUE COPY/
P.A.TO JUDGE
Kss
K. RAMAKRISHNAN, J.
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Crl. M.C. No.283 of 2014
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Dated this the 6th day of March, 2014
O R D E R
This criminal miscellaneous case is filed by the petitioners, seeking intervention of this court for giving direction to the respondents to conduct investigation in a proper manner under Section 482 of the Code of Criminal Procedure (hereinafter called the `Code').
2. It is alleged in the petition that, the petitioners are now shown as accused Nos.3 to 5 in Crime No.514/2011 of Sasthamcotta Police Station. Later it was transferred to Crime Branch, where it was re-numbered as Crime No.234/CR/HHW1/11 of CBCID Kollam Unit. There were now eight persons arrayed as accused and the offence alleged are punishable under Sections 120B, 302 and 34 of the Indian Penal Code. It is alleged in the petition that on 07.05.2011 the deceased Abdul Sathar was found dead in a Crl. M.C. No.283 of 2014 2 pond near Musaliar Farm, Bharanikavu. Sasthamcootta Police registered a crime originally as Crime No.514/2011 under the caption 'unnatural death', as Annexure-A1 and the inquest was conducted evidenced by Annexure-A2. Since it requires intensive investigation, the investigation was entrusted to Crime Branch on 21.06.2011 and the Crime Branch has taken investigation as it was ordered on the basis of a representation given by the father of the deceased and now the investigation is being done by the Crime Branch. On 06.08.2011, first accused was arrested and as per his confession, 2nd accused was also arrested on the same day. The first investigation team had conducted sufficient investigation and recorded the statements of sufficient witnesses and developed the prosecution version of the crime. By considering the contradictions in the statements of first accused and also the extra judicial confessions made by him, it was revealed that first accused is a neighbour of the deceased and the deceased had been Crl. M.C. No.283 of 2014 3 in continuous illegal relationship with the wife of the accused by name Seenath and the same has seen by the accused on several occasions and that was the motive for the first accused to conspire with the second accused and commit the offence after giving excessive alcohol to him. The remand report produced is Annexure-A3. Thereafter, the confession statement of the accused was taken under Section 164 of the `Code' on 20.11.2012 and it was recorded by the Judicial First Class Magistrate Court, Karunagappally. It is on the basis of that statement, that six other accused persons were implicated including the present petitioners. The petitioner Nos. 1 and 2 were arrested and they were remanded to judicial custody and the 3rd petitioner was also arrested on 11.12.2012. The 2nd investigating officer is now come with new story that third petitioner had previous enmity with the deceased and decided to kill him with the help of the other accused persons and he had conspired with other accused persons Crl. M.C. No.283 of 2014 4 and it is on that basis that now the investigation is in progress.
3. According to the petitioners, there are contradictory versions in respect of the incident and the present investigating officer is not considering those aspects and the investigation is not proceeded in the right direction and the attempt of the present investigating officer is to rope the present petitioners without conducting proper investigation and allow the real culprits to escape. So they have no other option except to approach this court with this petition, seeking the following relief:
1. To pass an order directing the respondents to conduct an effective investigation in both the versions reached by the first and the present investigation officers respectively.
2. To pass an order directing the respondents to resort to scientific methods such as poly graph, narco analysis or brain mapping tests, if the parties are willing.
3. To pass an order directing the 1st respondent to change the investigation officer and to entrust the investigation to a higher official or under his supervision."
4. On the basis of the allegations made in the Crl. M.C. No.283 of 2014 5 petition, a statement has been called for from the 2nd respondent regarding the present stage of the investigation etc and he had field a statement which reads as follows:
"The above Crl. MC was filed by Shihabudeen and two others who are the accused Nos.3, 4 and 5 respectively in Crime No.514/2011 of Sasthamcotta Police Station and later re-numbered as 234/CRHW1 of 2011 by the CBCID Kollam Unit. The above Criminal MC was filed with a prayer to direct the respondents to conduct an effective investigation on the different versions reached by the first and present investigating officers and also to pass an order directing the State Police Chief to change the investigation officer and to entrust the same to a higher official under his supervision.
2. When the case came up for admission on 07.02.2014, the Hon'ble Court directed the respondents to file a statement regarding the present stage of investigation. Now the superintendent of Police, Internal Security Investigation Team Kerala is the present Investigation Officer. Now the statement is being filed by the present Investigating Officer on behalf respondent No.2.
3. This petition is not maintainable either in facts or law. It is a well settled principle that accused cannot choose the investigating officer of their case and hence the petition is prima face unsustainable.
4. The gist of the case is that the dead body of one Abdul Sathar was found in half nude form in a pond near Musaliyar farm, Bharanikkavu in Kollam District. A crime has been registered at Sasthamkotta PS vide Cr.No.514/11 U/s. 174 Cr.P.C on 07.05.2011 pursuant to the unnatural death of Abdul Sathar. Later the investigation was handed over to CBCID on 02.06.2011 and renumbered the case as Cr.No.234/CR/HHW/11. On 06.08.2011 two accused were arrested and both gave confession statement before the investigation officer.Crl. M.C. No.283 of 2014 6
Though they were remanded to Judicial custody the story stated by them was found to be suspicious. Both accused gave statement that the dead body was dragged to the pond where as no corresponding injury were noted in the body in the post mortem certificate. The subsequent questioning of accused also revealed missing links in the story put forth by them. The motive alleged by A1 for doing away with Sathar was also found to be false and incorrect. In this circumstance, the investigating officer resorted to scientific examination methods to unravel the true facts and to clear the doubts about the alleged incident. In the meantime the then investigation officer retired from service on superannuation and present investigation officer took over the investigation as per the order of Additional Director General of Police vide Order No.D1/7992/CR/2011 Dtd 06.01.2012. Present investigation officer also felt doubt regarding the genuineness of confession given by A1 and A2. In the polygraph examination of A1 on 21.06.2012, 22.06.2012 and 23.08.2012 and that of A2 on 21.06.2012 and 13.07.2012, relevant questions were put to unravel the truth and to clear the doubt about confession statement. A2 was found to be non deceptive in all questions put to him in different angles. Polygraph examination of A1 revealed deceptive answers on material particulars which was suggestive of his involvement and concocted confession at the first investigation. Investigation revealed that A2 is absolutely innocent in this case and was coerced by A1 for admitting the guilt.
5. Later first accused wrote a letter to the investigation officer intimating his willingness to state true facts as he has got repentance in imputing false story about his wife and involving innocent A2 in this case. Based on the said letter his confession statement was recorded on 20.11.2012 before JFMC I, Karunagappilly. As his statement was voluntary and true, he was transpond as an approver. Again his statement U/s 306(4) Cr.PC was recorded by the JFMC Sasthamkotta on 01.01.2013.
6. In his 164 statement, the 1st Accused clearly mentioned his role in the incident and the fact that he was induced by the petitioners for stating a false story Crl. M.C. No.283 of 2014 7 before the police. He was offered two lakhs rupees for concealing offence of the petitioners. The investigation officer thoroughly cross checked the statement of approver and same was found to be cogent by tangible evidence.
7. The grounds mentioned in the petition are devoid of merit. The reason for giving a false statement before CBCID at first instance was clearly mentioned by the approver. At the time of arrest of 1st accused he was offered two lakhs rupees by the petitioners for owning the offence. The 1st accused gave a false information as per the direction of the petitioners to cover up the illegal act of the petitioners. Now the petitioners want to take shelter on their illegal acts. Further the investigating officer at every point of time were apprehensive about the genuineness of story stated by 1st accused. Hence ground No.1 has to bearing.
8. Petitioners were arrayed on the basis of 164 statement confirmed by investigation. It is not on solitary basis of letter written by the approver. The petitioners were arrayed as stated in the Ground No.2.
9. Investigation Officer resorted to scientific evidences of 1st and 2nd accused so as to realise the truth. The evidence as against the petitioners were marshelled in the light of statement of approver and confirmed correctness of the same. It is respectfully submitted that even without the aid of scientific examination, the investigation officer has satisfied the offences committed by the petitioners. Scientific examinations are only external aids to aid investigation and the same will not be evidence as against the accused. As the investigation officer has satisfied about the involvement of petitioners there is no need for scientific examination in this case. Nevertheless if the petitioners are ready to undergo scientific examination as per law and it they agree that they are bound by such test results investigation officer is ready to perform the same. It is submitted that the plea for scientific evidence shall not be permitted since the same may be used as a delaying tactics. If the petitioners are ready to accept an incriminating test results as Crl. M.C. No.283 of 2014 8 against them investigation officers is ready to perform scientific investigation on them of otherwise such examination will be a futile exercise as there is cogent evidences against them. Hence Ground No.3 and 4 are untenable.
10. It is submitted that the true facts behind the incident can be unearthed only during the course of investigation. Prosecution case will be finalised only on completion of investigation and there is no inflexible rule that investigation officer has to stick on only one version throughout the investigation. A specific reason for the approver to state false story before the investigation officer had been revealed from the 164 statement and hence Ground No.5 and 6 are not maintainable. It is pertinent to submit that petitioners wilfully concealed the fact revealed in the statement of the approver under section 164 Cr.PC.
11. Investigation revealed deliberate attempt from the part of the petitioners set up plea of alibi. The deliberate act to cover up the illegal activities of accused were unraveled in investigation. Mobile phones details were collected and the deliberate attempt of the accused to use mobile phone for setting of plea of alibi also has been unearthed. Hence Paragraph 7 and 8 are untenable."
5. According to the counsel for the petitioner, though it is mentioned that, they are taking steps to ascertain the genuineness of the contradictory versions, in fact no effective investigation has been conducted on that aspect. But on going through the statement filed by the investigating officer, it appears that, they are conducting investigation regarding that aspect as well. It is clear from Crl. M.C. No.283 of 2014 9 paragraph 10 of the statement that, they have not merely relying on the statements alone and they are conducting the investigation regarding that aspect as well. So under the circumstances, this court felt that, there is no necessity to give any direction regarding the manner in which the investigation has to be conducted or to change the investigation or the investigating officer as claimed in the petition. A reading of the statement filed by the investigating officer shows that, they are taking all earnest attempt to find out the real culprits in the commission of the crime. Further they have not come to any definite conclusion regarding the evidence collected so far as well, as they are still conducting investigation to find out the genuineness of the allegations and the statements made as well. So under the circumstances, the apprehension of the petitioners that, the investigation is not going in the right direction and the investigating agency is trying to help the real culprits to escape etc., appears to be not genuine at Crl. M.C. No.283 of 2014 10 this stage, as this court is satisfied with the manner in which the investigation is being conducted at this stage. No further direction is required to be given invoking the power under Section 482 of the 'Code'. If the petitioners are not satisfied as with the final out come of the investigation, they are at liberty to approach the appropriate authorities at appropriate time.
The counsel for the petitioner also submitted that they are prepared to undergo narco analysis test also. It is left to the investigating officer to consider that aspect also and take appropriate steps.
With the above direction and observation the petition is disposed of.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss