Allahabad High Court
Vidya Prakash Pandey Son Of Late Surya ... vs State Of U.P. Through Ministry Of Home, ... on 26 May, 2006
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT
Imtiyaz Murtaza and Amar Saran, JJ.
1. This writ petition was filed by Vidya Prakash Pandey, informant in case crime No. 38 of 2006 under Section 302 IPC for a direction in the nature of mandamus commanding the respondents to arrest the accused in the FIR lodged by him on 31.1.2006 at P.S. Kotwali Padrauna, District Kushinagar. An order was passed on 3.4.2006 calling for a counter affidavit. This petition was also connected with Crl. W.P. 2937 of 2006, which was filed by an accused in the petitioner's FIR Smt. Rajkumari Devi, wife of Manokamna Tewari for quashing of the FIR under Section 302 IPC.
2. Counter affidavit and rejoinder affidavit have been filed in this case.
3. We have heard learned Counsel for the petitioner, learned Counsel for Smt. Rajkumari Devi, Sri R.C. Dwivedi, in the connected writ petition and the learned AGA.
4. The investigating officer, Ram Nagina Singh, who is posted as inspector Kotwali Hata, District Kushinagar, appeared in court on 18.5.2006 and 19.5.2006. Thereafter he failed to appear on 22.5.06 and 25.5.06 inspite of our orders as he claimed to be ill. His counter affidavit mentions that he agrees with the suggestion of the accused that as a matter of fact the deceased Ramesh Chand Pandey died from a heart attack, as he was earlier treated in MM. Nurshing Home, Gorakhpur, run by Javneet Jaipuria and Dr. A. Shaqeel from 26.12.2005 till 29.12.2005 for some heart ailment According to the I.O. the postmortem report of Dr. S.N. Tewari, MO at Sadar Hospital, Padrauna, Kushinagar, who conducted the post mortem on 29.1.2006 at 3 pm, was unreliable. The investigating officer had submitted a final report in this case on 28.4.2006.
5. It was contended by the learned Counsel for the petitioner that the investigating officer appears to have colluded with the accused persons for some illegal gratification and also because Manokamna Tewari, the main accused in the FIR of Vidya Prakash Pandey, was a constable, posted at PS Tarkulwa, District Kushinagar. The investigating officer was wholly unjustified in discarding the clear and categorical postmortem report of the deceased Ramesh Chand Pandey which showed the presence of injuries on the deceased on the basis of conjectures and surmises and for preferring the version set up by the accused which was supported by some private doctors. It was further contended by the learned Counsel for the petitioner that the deceased had lost his wife some years back because of which he became mentally unbalanced and taking advantage of his depressed state the accused Manokamna Tewari and his wife, Smt. Rajkumari Devi, had kept him 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, and the petitioner, 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 he had started visiting the house of the informant, Vidya Shanker Pandey, as he was afraid that Manokamna Tewari and his wife were interested in grabbing his entire property. To forestall the deceased from coming out of their clutches, the deceased had been done to death by Manokamna Tewari and Suit. Rajkumari Devi and the body of the deceased was admittedly recovered from their house, hence the I.O.'s finding of absence of motive for the crime was incorrect. It was also not material that the petitioner who was not an eye witness had failed to describe the weapons used for the crime.
6. After considering the arguments of the parties, in our opinion, the final report appears to have been submitted in this case in a highly suspicious manner.
7. According to the post mortem conducted by Dr. S.N. Tewari, the deceased, who was about 58 years in age, had 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. As the body of the deceased had admittedly been recovered from the house of the accused, the onus lay on the accused to give a satisfactory explanation of the cause of his death, in view of Section 106 of the Evidence Act.
8. The investigating officer has sought to question the reliability of the Government doctor's opinion who conducted the post mortem examination by confronting him with a photograph of the dead body which only revealed some bleeding from the left ear, but did not did not show any bleeding or incised wound on the right side of the face. In our view as the incised wound was 3 cm x 0.2 cm muscle deep only, the doctor's explanation that as the deceased was sporting a small beard the slight bleeding may not have been so visible, could not be rejected outright. The rival explanation put forward by the accused for which he has sought the support of some private doctors that the deceased may have died due to heart attack, as sometimes according to these doctors a heart attack may cause bleeding from the ear, appears less acceptable. There is also no explanation for the missing of lobule of the ear, (which was visible to us even on the examination of the photograph produced by the I.O.) on the hypothesis of a heart attack.
9. 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 "Shav par koi zahira chot nahin hai. " But this is only our immediate impression which needs to be deeply probed by a thorough and independent investigation.
10. The investigating officer has also sought to rely on three mobile calls made by a journalist to Dr. S.N. Tiwari who conducted the postmortem examination for reaching a finding that as the journalist was a friend of the petitioner (as there were some calls between the journalist and the petitioner), hence the journalist had influenced the doctor to give a wrong report. In our opinion much importance need not be given to these calls, as the petitioner may have felt uneasy when he realized that the deceased (his nephew) appeared to have been murdered by the accused persons in their house who were trying to grab his property, and who were then setting up the theory of heart attack as the cause of his death in spite of the visible injury on the ear of the deceased. The failure of the I.O. to prosecute Dr. Tewari if indeed he had prepared a false post mortem report is another reason why the investigation by this investigating officer does not inspire confidence.
11. In view of all these suspicious circumstances, we think that the CBI be directed to investigate this case. The CBI will also investigate the role of the investigating officer of the case and also the doctors, private and government who have given rival opinion of the cause of death, and whether the version of heart attack of the deceased as the cause of his death as set up by the accused and supported by some private doctors was correct or whether the opinion of Dr. S.N. Tewari of the death being homicidal as mentioned in the post mortem report was correct.
12. The investigating officer of the CBI is directed to conclude the investigation of this case if possible within 3 months from the date of production of this order before the competent authority of the CBI. The CBI shall also take steps for arresting the accused in accordance with law, if needed. He shall submit a progress report of the investigation in pursuance of the aforesaid directions of this Court in the first week of September, 2006.
13. Considering the prima facie dubious role played by the investigating officer of submitting a final report in the present case in the circumstances alluded to above, we think that the SSP/SP, Kushinagar, should consider the appropriateness of entrusting investigation of serious cases like murder to this investigating officer Ram Nagina Singh or taking other action against him.
14. It is however being clarified that the observations hereinabove, have only been made in support of our direction that the case be investigated by the CBI and the same shall not prejudice the conduct of the investigation by the investigating officer of the CBI who is entrusted with the investigation of this case.
15. The CJM, Kushinagar, is also restrained from accepting the final report submitted by the investigating officer in this case until completion of the investigation by the I.O. of the CBI. The Registrar General is directed to communicate this order to the CJM, and to SSP/SP of Kushinagar and Director CBI within 10 days for compliance. A copy of this order may be given to Learned AGA and Sri G.S. Hajela, learned Counsel for CBI within a week.
16. List this case for further orders in the first week of September, 2006.