Allahabad High Court
Vidya Prakash Pandey Son Of Late Surya ... vs State Of U.P. Through Ministry Of Home, ... on 12 March, 2007
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT
Imtiyaz Murtaza and Amar Saran, JJ.
1. We have heard learned Counsel for the petitioner and Sri G.S. Hajela for the CBI. We have also perused the two investigation progress reports submitted by the CBI dated 4.9.06 and 8.3.07.
2. At the outset we must mention our utter disappointment with the one sided nature of the investigation conducted by the CBI in ten months pursuant to our order dated 26.5.06. We were also a little puzzled as although Sri Hajela mentioned that he had no knowledge of the contents of the sealed envelop handed over to the Court he was fully aware of its contents and raised some arguments in defence of the same referring to averments made in the documents therein such as the report of the Medical Board of the AIIMS. We need say nothing more on this.
3. We had handed over the investigation to the CBI by our order dated 26.5.06 because we had found the investigation by the local police Ram Nagina Singh, Inspector Kotwali Hata, Dist. Kushinagar highly suspicious and were hopeful that the investigation by the CBI would be totally above board and help unravel the truth. But we regret to note that the investigation being conducted by the CBI has belied our expectation, and leaves much to be desired.
4. The facts of this case as mentioned in our earlier order were that that the deceased Ramesh Chand Pandey had lost his wife some years back because of which he had become mentally depressed. Taking advantage of his depressed state the accused Manokamna Tewari (who was a police constable posted at P.S. Tarkulwa, Kushinagar) and his wife, Smt. Rajkumari Devi, had persuaded him to stay in their house and they were trying to grab the landed property owned by the deceased. Smt. Rajkumari Devi had even obtained a sale-deed of some property of the deceased. The petitioner, the informant who was the uncle of the deceased, had filed a suit No. 233 of 2005 before the Civil Judge (SD) Deoria, for an injunction to restrain Ramesh Chand Pandey from alienating the landed property inherited by him. One month prior to his murder on 28.1.2006 the deceased had started visiting the house of the informant/petitioner Vidya Shanker Pandey, and had started complaining that he was afraid that Manokamna Tewari and his wife were deceptively trying to grab his entire property. To forestall the deceased from coming out of their clutches, the deceased had been done to death by Manokamna Tewari and Smt. Rajkumari Devi in their house, about which the informant received information on 28.1.06 at about 8.30 pm, and that the accused had spread a rumour that the deceased had died due to heart attack. It seems that the FIR was lodged by the informant Vidya Prakash Pandey on 31.1.06 at 6.30 pm at P.S. Kotwali, Padrauna, District Kushinagar, after a post mortem conducted on the deceased by Dr. S.N. Tripathi, M.O. Sadar Hospital, Padrauna, Kushinagaron 29.1.06 at 3 pm showed ante-mortem injuries which included abraded contusions on the occipital region of the head and face, a lacerated wound 5 cm x 1.2 cm x muscle deep over left ear (lobule of left ear was missing), contusions over the front of neck 1 cm above supera sternal notch, on the left side of the neck and on top of left shoulder (with dislocation of left shoulder joint), incised wound 3 cm x 0.2 cm x muscle deep over the right side face and multiple contusions over the left side back of the chest. The internal examination showed fractures of Hyoid cartilage, and occipital bone, lacerations of the membranes of skull and brain with presence of clotted blood in cavity of the brain and in the thoracic cavity. Both lungs and trachea were congested and the cause of death was haemorrhage, shock and coma due to ante-mortem injuries.
5. The investigating officer of the local police had submitted a Final report on the grounds that the version of the accused police constable that the deceased had died due to heart attack appeared more probable than the findings in the post mortem report, which appeared to be concocted only because some journalist had telephoned the doctor one or two times, and according to the I.O. of the local police there appeared to be no motive for the crime, and the weapons of assault were not mentioned (although admittedly the informant was not an eye witness of this incident which had taken place in the house of the accused). As prima facie we found these conclusion of the investigating officer highly suspicious we had desired that the investigation be conducted by the CBI which we regarded as an impartial investigating agency which would be free from any influence. The motive for the crime that the accused had got the deceased's land transferred in the name of accused Smt. Raj Kumari w/o constable Manokammna Tiwari, and he had lately begun protesting the transfer was suggested in the FIR itself. Admittedly as his dead body was found last in the house of the accused, a heavy onus lay on the accused under Section 106 of the Evidence Act for explaining the cause of death particularly as Dr. S.N. Tripathi who conducted the post mortem had found ante mortem injuries as abovementioned to be the cause of death. We had noted in our earlier order that simply because a journalist had contacted Dr. Tiwari one or two times on his mobile at the instance of the informant, (perhaps because the informant may have felt that the accused who was in the police force may not allow a proper conduct of the post mortem, and in fact the FIR could only be registered after the receipt of the Post mortem report on the deceased) and therefore he was impelled to seek the help of the journalist which may not be desirable in ordinary circumstances, but in this case the informant may have felt that he had no other option because of the pressures which were being brought to prevent the lodging of the FIR as the accused was a member of the police force. But as the findings of the post mortem report were quite clear and cogent, and details of the external and internal injuries of the deceased were mentioned therein we thought that the inference of the investigating officer of the local police that the post mortem report of Dr. Tripathi was incorrect, and the accused's version that the deceased had died due to heart attack ought to be preferred did not prima facie appear to be acceptable to us, in the background of the case as described above. We had accordingly ordered investigation into the case by the CBI as aforesaid. We also think that simply because the incised wound 3 cm x 0.2 cm x muscle deep over the right side face which was a very superficial injury and simply because it was not visible in the particular photograph of the deceased and which could have been hidden behind the deceased's sparse beard, as claimed by Dr. Tripathi, provided no reason for doubting the genuineness of the doctor's postmortem report, especially as there was no other bleeding injury involving tear of the skin except the injury on the left ear of the deceased, which was visible in the photograph. It is also not impossible that there were other photographs of the deceased which may have given a better view of the missing lobe, but which may have been suppressed by the investigating agency because of the undue influence which appears to be working in this case at all stages. The serological examination showing AB blood group on all the clothes of the deceased including lower trouser and pyajama also confirms that the deceased had received bleeding injuries, which prima facie is inconsistent with the theory of death due to heart attack, set up by the accused and readily accepted by the I.O. of the local police, and which seems at this stage to be finding favour by the CBI's investigating officer.
6. More suspiciously in the copy of the inquest filed in the writ petition of Smt. Raj Kumari for quashing of the FIR, the inquest report mentioned that there were no apparent injury on the deceased. We had made the following observations in our order 26.5.06 : "There is a much more serious suspicious circumstance about the conduct of the I.O. and his complicity with the accused in propping up his version of heart attack of the deceased, because in the connected writ petition filed by Smt. Raj Kumari Devi, the inquest report of the deceased (Annexure 4) under the heading "Chot" only mentions "Shav par koi zahira chot nahin hai." Whereas in the inquest report (at CA 1) filed by the I.O. with his Counter-affidavit dated 17.5.06, the words "Baye kan se khun baha hai" appear to be interpolated after the line "Shavpar koi zahira chot nahin hai." But this is only our immediate impression which needs to be deeply probed by a thorough and independent investigation." This line may have been added when the I.O. of the local police grilled the doctor and showed him the photograph containing the bleeding injury on the ear, about which he asked some questions. Then he may have needed to add that line to his own inquest report. But if the investigation by the CBI was fair and free from any taint or influence it had to examine these two copies of the inquest report of this case to see if there was any interpolation as above described.
7. The needle of suspicion on the fairness of the investigation by the present CBI Investigating officer and the determination to pin the blame at all costs on Dr. Tripathi is strengthened by what we think was the unnecessary grilling during the examination of Dr. S.N. Tripathi which was full of loaded questions for showing that either the facilities for conducting the post mortem examination at the centre where it was conducted were not adequate or that it was not above board. There is no effort on part of the CBI's investigating officer to pursue the rival line of investigation that the deceased may not have died due to heart attack, and he may have received the injuries as found by Dr. Tripathi, and that the motive of the accused for committing the murder (transferring the land of the deceased in their name), and the circumstances how two inquest reports, one of which contained an interpolation as abovementioned do not appear even to have been examined by the CBI's investigating officer at all. The pre-determined nature of the investigation is also apparent from the fact that the medical board of the AIIMS does not appear to have been questioned as to whether on the basis of the previous heart record (if any) of the Padrauna doctors produced by the accused, the bleeding from the ear of the deceased could have been caused by heart attack. Also we think that the conclusion of the AIIMS board that they could not see the missing lobule noticed by the Dr. S.N. Tiwari in the particular photograph produced before them where bleeding from the ear was shown, could not be preferred to Dr. S.N. Tripathi who had directly examined the deceased. We also fail to understand when so many documents were placed before the medical board of the AIIMS why our order dated 26.5.06 was not placed before the Medical Board.
8. The one-sidedness of the investigation by the CBI is also apparent from the fact that no importance has been given to the allegation that the accused Raj Kumari Devi had succeeded in getting the deceased's property transferred in her name and had made no payment for the same to the deceased, for which he may have been annoyed as alleged in the FIR. The CBI Investigating Officer also does not appear to have questioned the I.O. of the local police to explain how the words "Baye kan se khun baha hai" were interpolated in the inquest report filed by the I.O. which were not there in the copy of the inquest report filed by Smt. Raj Kumari in Annexure 4 of her writ petition in this Court as mentioned above, in spite of the fact that we had mentioned in our earlier that this matter requires thorough probe as it goes to the root of the matter. Suspicion is cast on the investigation by the CBI also because there is no explanation why Dr. Tripathi is not being prosecuted by the CBI if his postmortem report is being declared to be concocted after 10 months of investigation by the CBI. Is it because the CBI officers feel that if Dr. Tripathi is prosecuted, he may be able to successfully defend himself, and the CBI officers may find themselves in the dock along with the accused?
9. We now direct that this matter be immediately placed before the Director, (CBI) who is directed to transfer the investigation to a senior officer of impeccable and proven integrity to investigate the case. We further direct that none of the persons/officers who were associated with the earlier investigation by the CBI shall be present in the new team which shall now investigate the case. Let our earlier order dated 26.5.06 also be placed before the Director (CBI) New Delhi. We direct the new investigating officer to appear in this Court on 9.4.2007 with his further investigation report and also produce the case diary of this Case.
10. We also require Sri John George Moses, Senior Scientific Officer-II (LD) CFSL/CBI/New Delhi who conducted the Lie Detection test on the accused Ved Prakash Tiwari, Ram Savare Pathak, journalist and Dr. S.N. Tripathi on 13.9.2006 to be present in this Court on 9.4.07 along with his data to explain how he reached the finding that Ved Prakash Tiwari was honest and that Dr. S.N. Tripathi and Ram Savare Pathak were not speaking the truth. He should produce scientific literature to show to the Court the reliability and mechanism of how conclusions of Lie Detector Tests are reached, as we are aware that if suspects are subjected to lie detector tests under emotional pressure there may be major fluctuations in the measures recorded. The Director (CBI) shall point out to this Court the names of other independent agencies engaged in the exercise of conducting Lie Detection tests.
11. We also direct that the copy of this order and our earlier order dated 26.5.06 and the investigation papers of this case be also placed before the Central Vigilance Commissioner (who has been entrusted with the responsibility of overseeing the efficiency of the investigations, conducted by the CBI and its insulation from any extraneous influences) within ten days who may ascertain whether there are any black sheep in the investigating machinery of the CBI who deserve to be removed, because if the faith of the public and the Courts is shaken about the credibility of investigation by the CBI it can be disastrous for the country, as still the public and Courts regard the CBI as the last straw, and once faith is eroded in this premier institution, it shall signify the end of any hope of the public for justice and we desire that not a single finger should be raised against this investigating agency and it acquires an image of absolute sanctity, purity and reliability in the eyes of the Courts and the general public.
12. List this case for further orders on 9.4.07.
13. Copy of this order may be given to Sri G.S. Hajela for compliance within 48 hours. The Registry is also directed to communicate this order to the Director CBI, New Delhi within a week.