Calcutta High Court (Appellete Side)
Atanu Ghorai vs The State Of West Bengal & Ors on 24 June, 2024
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
WPA 11305 of 2024
Atanu Ghorai
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Srijib Chakraborty
Mr. Aditya Mondal
Ms. Rupsa Sreemani
.....Advocates
For the State : Mr. Sirsanya Bandopadhyay
Mr. Ritesh Kumar Ganguly
.....Advocates
Heard lastly on : 22.05.2024
Judgment on : 24.06.2024
Jay Sengupta, J:
1.This is an application under Article 226 of the Constitution of India praying for transfer of investigation of Kharagpur Police Station Case No. 252 of 2024 dated 23.03.2024, under Sections 302, 120B and 34 of the Indian Penal Code and Kharagpur Police Station U.D. Case No. 23 of 2024 2 dated 23.03.2024 to the CBI, handing over the post mortem report conducted on 24.03.2024 and for preservation of the dead body for further post mortem by a Central Agency.
2. Learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner's brother was a post holder of the Bharatiya Janata Party. On 22.03.2024 he left his house and became missing. On 22.03.2024 his dead body was found on a field and an FIR was lodged on the same date. A post mortem examination was done on the next date. There were photographs and videos of the dead body which showed that there were injuries inflicted, possibly by electric shock and cigarette stubs. The hands of the victim were found tied. Although the cause of death was shown as drowning, the nearby water body was about 400 meters away from the field. The death could not have been caused there. A second post mortem report was required to be done. The second opinion given by the medical expert is a mere replica of the post mortem report. It did not deal with relevant issues. All of the attending conditions for a death by drowning, as per Modi's Treatise on Medical Jurisprudence, are not made out in the instant case.
3. Learned counsel appearing on behalf of the State denied the allegations made in the writ petition and submitted as follows. The deceased (petitioner's brother) was not to be found since 22.03.2024. The dead body was noticed on 23.03.2024 morning at around 9.30 am by the local people lying in a prone position on the agricultural land of one Harendra Nath Ghorai. On receipt of this information, the Officer-in-Charge, Kharagpur Local PS alongwith the CI, Khargapur Circle and SDPO, Kharagpur and 3 other officers and force of Kharagpur (Local) PS reached the spot. On receipt of the written information from one Barun Manna, Kharagpur (Local) PS U/D Case No. 23 of 2024 dated 23.03.2024 was started. SI Manas Kumar Hait conducted inquest over the body of the deceased in the presence of local witnesses and family members of the deceased. Photography and videography of the same were done accordingly. Videography had been provided to the writ petitioner. Hands of deceased Santanu Ghoroi were not tied with towel. Rather, he was wearing a bermuda pant/half pant and a towel (Gamcha) was hanging around his neck. The two ends of his towel came close to the hands. Over the written complaint of one Atanu Ghoroi, Kharagpur Local PS Case No. 252 of 2024 dated 23.03.2024 under Sections 302, 120B and 34 of the Indian Penal Code was started against 5 accused. The post mortem examination over the body of the deceased was held on 24.03.2024 under proper videography (video handed over to petitioner). Neither the petitioner nor any of his family members or any other person known to the deceased made any oral or written request to the police station for obtaining the post mortem report. Autopsy surgeons Dr. Sundarlal Hembram, Demonstrator and Dr. Priyaman Basu, Junior Resident both of Deptt. F.S.M., Midnapore Medical College and Hospital opined that "Death was due to the effects of drowning as noted above, ante mortem in nature. Further opinion, if any, can given after receipt of FSL report." Further Viscera and blood samples of the deceased had been collected from the Midnapore Medical College and Hospital and deposited at the FSL, Kolkata on 01.04.2024 for examination. Statements under Section 161 Cr.P.C. were 4 recorded. In course of investigation, several local witnesses, neighbours, relatives, friends, wife of the deceased, etc. were examined and it came to light that the deceased used to consume alcohol on regular basis. As per statements of witnesses, Santanu Ghoroi's dead body was found lying in prone position on the watery paddy land beside the "aal" of the paddy land, about 150 meters away from the deceased's house in the Barbansi village. The investigation also revealed that water was supplied from submersible pumps (i.e., mini-deep tube well) to the land for paddy cultivation. Hence, there was water in the land as well as adjacent paddy lands. In compliance with the Order of this Court, the I.O. has visited SSKM Hospital, Kolkata on 30.04.2024 and submitted a written prayer to the Superintendent (i.e. the MSVP) of I.P.G.M.E. & R. & SSKM Hospital, Kolkata to obtain another opinion from the medical expert of the SSKM Hospital, Kolkata regarding the post mortem report in question vis-a-vis the death of the victim. On 06.05.2024 the I.O. collected another opinion dated 03.05.2024 of the medical expert. Chemical examination report of viscera from Toxicology Division, FSL dated 10.05.2024 was also obtained and filed in Court separately, with a copy given to the petitioner. Inquest Report showed that the body was in prone position, froth mixed with blood was found oozing out from nose, eyes and mouth. There was presence of goose skin on the hands and feet of the dead body of the deceased. There was presence of mud mixed with water on the face as well as that portion of the body was touching the field with muddy water. Search/Seizure List showed that the muddy water was measured with a scale and the depth was 5/6 inches of water. Post 5 mortem report revealed (i) "All bruises were blackish in colour", (ii) "No other injuries except" those on the right hand dorsum, (iii) Larynx and Trachea -
"Evidence of sand and mud present in trachea", (iv) Mouth, Pharynx - "Evidence of sand and mud present over inner aspect of lower lip", (v) "Death was due to the effects of drowning as noted above, ante mortem in nature."
Opinion dated 03.05.2024 of the medical expert of the SSKM Hospital, Kolkata by Dr. Indrani Das opined as follows. Cause of death - Considering the findings noted in the post mortem report and also the type, sites and distribution of injuries, the Medical Expert was in agreement with the opinion of the Autopsy surgeons, i.e., death was due to effects of ante mortem drowning. Manner of death - No defense wound noted over the body. The bruises noted over the dorsum of right hand, were not sufficient to cause death in ordinary course of nature. No other injury noted over the body. Reports of the Chemical Examiner on the articles preserved during post mortem examination and forensic report of the place of occurrence. Toxicology Report by the State FSL suggested that "Ethyl Alcohol has been detected" in the viscera of the deceased. Modi's "A Textbook of Medical Jurisprudence and Toxicology" (27th Edition, Reprint of 2023) ought to be relied upon to stitch together the evidence collected so far. Chapter 20.6.1 of the said Textbook stated that - "Drowning could be defined as death due to submersion in a liquid. Death could occur in an ocean or water as shallow as 15 cm (6 inches) in the case of alcoholic stupor, epileptics or infants." It went on to say, "Drowning is a form of death in which the atmospheric air is prevented from entering the lungs due to submersion of body in water, or 6 any other medium. It is not necessary that there should be complete submersion. Death is sure to occur, even if the face alone is submerged, because air is prevented from entering the respiratory orifices." Seizure List and Inquest Report suggested 5/6 inches of water and submersion of head only preventing air from entering respiratory orifices. Chapter 20.6.8.1 of the said Textbook stated that - "A fine, lathery tenacious forth or foam rarely tinged with blood is seen at the mouth and the nostrils." Inquest Report suggested froth mixed with blood was present. Chapter 20.6.8.1 further stated - "Occasionally, grass, gravel, sticks, weeds, twigs, or leaves may be found firmly grasped in the hands, because of cadaveric spasm. The presence of this sign is indicative of death from drowning as it shows the struggles of the victim for his life." Such grasping of grass could be seen from the photographs at pages 13 and 14 of Report. Chapter 20.6.8.2 stated at the second paragraph that - "The larynx, trachea and the bronchial tubes usually contain profuse and persistent fine white forth - lathery forth and may contain some foreign matter, such as sand, mud or fragments of aquatic plants." Passage relied upon by the petitioner was on the aspect of poisoning. Here, the suspected cause of death was drowning after intake of alcohol and not alcohol-poisoning. Circumstantial evidence so far indicated that under intoxication of alcohol, deceased fell in muddy water, 5 to 6 inches deep, which water was supplied by submersible pumps for the purpose of cultivation. The deceased clutched onto some grass, being the cadaveric spasm. As per expert's report, no defence wound noted over body. Bruises over dorsum of right hand are not sufficient to cause death in 7 ordinary course. The investigation conducted so far was fair and impartial. Allegations of political motivation were unsubstantiated. Prima facie conclusions were based on evidence and expert opinion. Laches of first post mortem were not pointed out. Second post mortem could not be sought for as a matter of course.
4. I heard the learned counsels for the parties and perused the writ petitions, the reports and the case diary.
5. It appears that soon after the instant FIR was lodged, an inquest was done in the presence of the victim's relatives. Photography and videography of the same were done. Even for the post mortem examination of the dead body, videography and photos were handed over to the victim's family members.
6. The photographs of the victim coupled with the inquest report and the statements of witnesses available would not prima facie sustain the initial stand taken on behalf of the present petitioner that the victim's hands were found tied.
7. The submissions made on behalf of the petitioner on the first day that the death could have been caused by electric shock or the like do not appear to have much support either, especially if one considers the pictures, the videos, the statements of witnesses, the inquest report, the post mortem report and the views of the medical experts.
8. It is unfortunate that all these facts are having to be referred to and at least discussed in some way at this stage, even before the conclusion of 8 investigation. But some of these would have to be referred to as the petitioner has raised such questions of fact while praying for transfer of investigation and for preserving the dead body for second post mortem. However, due care has to be taken not to make any unnecessary finding of facts that might have a chance of influencing the trial Court.
9. The death undoubtedly took place in rather mysterious circumstances. The body of the deceased was found in a face-down position on a muddy field where the height of the muddy water would be about 5/6 inches. A hand was found to be clasping grass available in the field. There was also a foam like substance coming out of the mouth. The post mortem examination detected mud and sand in the trachea and on the lips. Viscera detected alcohol in the stomach.
10. In this context, it is also relevant to refer to the statements of local witnesses who had stated that the victim was an alcoholic.
11. Modi's Treatise on Medical Jurisprudence, as discussed above, does contain certain indicators that apparently support the inferences drawn by the post mortem doctor and the medical expert that the death was caused by drowning.
12. At this stage, this Court does not find any infirmity in the manner in which the dead body was examined at different stages or the mode in which the medical experts came to their respective findings.
13. Moreover, the inquest and the autopsy were all videographed. 9
14. Therefore, this Court does not find any need for directing a second post mortem examination. Even if another view is to be taken of the above facts, the same can be done on the basis of materials already available.
15. The investigating agency also seems to be doing their duty in recording statements of witnesses and collecting materials during investigation.
16. It is only in extremely exceptional circumstances that this Court can think of transferring investigation to any other agency. After going through the materials collected during investigation and assessing the actions of the investigating agency, this Court does not find any reason to transfer the investigation of the case to any other agency, at least at this stage.
17. However, the Investigating Agency shall proceed with an open mind. They shall videograph the further steps taking by them during investigation. They shall also have statements of witnesses including the ones that may have been referred to by the petitioner recorded under Section 164 of the Code.
18. The investigation shall continue, albeit under the supervision of the concerned SP, and be concluded in accordance with law and as expeditiously as possible.
19. With these observations the writ petition is disposed of, however, without any order as to costs.
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20. Certain facets of the case have been referred to, but only for the purpose of deciding the prayers made in the writ petition and the trial Court shall not be swayed by any observations made herein.
21. Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.
(Jay Sengupta, J.)