Kerala High Court
Radhamma vs The Director General Of Police on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
WP(CRL.) NO. 394 OF 2021
PETITIONER/S:
RADHAMMA
AGED 67 YEARS
W/O.LATE VENUGOPAL, THAZHUVALLIL HOUSE, MUTTOM P.O.,
HARIPAD, ALAPPUZHA.
BY ADVS.
S.SANAL KUMAR
BHAVANA VELAYUDHAN
T.J.SEEMA
RESPONDENT/S:
1 THE DIRECTOR GENERAL OF POLICE
POLICE HEAD QUARTERS, VAZHUTHACAUD, SHASTHAMANGALAM
POST, NEAR VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.
2 THE DEPUTY SUPERINTENDENT OF POLICE
CBCID, ALAPPUZHA-688012.
3 THE CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY ITS DIRECTOR, PLOT NO.5-B, 10TH FLOOR,
B-WING, CGO COMPLEX, NEW DELHI-110003.
R2 & R3 BY MANU S., ASG OF INDIA
OTHER PRESENT:
R1 BY ADV. C. S. HRITHWIK -SR PP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
28.11.2022, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING:
WP(Crl) No.394 /2021 2
JUDGMENT
The petitioner is the mother of one Aneesh Venugopal, a Dental doctor by profession, who was found dead in his Dental clinic. His body was found hanging on 24.3.2019 in the morning in a decomposed stage. The relief sought by the petitioner in the Writ Petition is to direct the 1st respondent to hand over the investigation of the said case to the Central Bureau of Investigation from the present investigation agency i.e. CBCID, Alappuzha.
2. The facts which led to the filing of this Writ Petition are as follows:
As mentioned above, the petitioner's son was a dental doctor conducting a dental clinic about 15 km. away from his residence. The petitioner's son used to come home in the evening after closing the dental clinic barring a few WP(Crl) No.394 /2021 3 occasions of overstaying at night. On 22.03.2019, he came to his home at Harippad and returned to the dental clinic after lunch. In the night, her son did not come back to the residence and the petitioner and her husband were under the belief that he might have decided to overstay in his clinic as being done on some occasions. Later, the next day, he did not turn up for lunch as well. Even then, the petitioner and her husband were under the belief that he must be busy in his clinic as, by that time, her son had acquired a good practice. However, when the son of the petitioner did not turn up even by 9 p.m., they became frantic. Even though repeated calls were made to his mobile phone, there was no response. Therefore, on the next day, i.e. on 24.03.2019, the petitioner's husband went in search of his son to the dental clinic at Vandikappally, Muthukulam. Upon reaching, he saw that the shutters leading to WP(Crl) No.394 /2021 4 the dental clinic were slightly open. Therefore, the petitioner's husband went to the nearby mobile shop which was being run by a friend of his son, named Aneesh. Being informed, the said Aneesh, along with his friends, went in search of the deceased Aneesh Venugopal. As part of the same, they lifted the shutter of the dental clinic and found that the glass door of the clinic was locked from inside. Therefore, they forcibly opened the glass door and went inside to find that the body of the said Aneesh was hanging on a PVC pipe fitted on the roof inside the clinic.
3. Immediately, the matter was informed to the local police and in connection with the same, Crime No.364/2019 was registered by the Kanakakkunnu Police Station under Section 174 of the Cr.PC. Exhibit P1 is the F.I.R. After that, the body was taken from the scene of occurrence for a postmortem on 25.03.2019.
WP(Crl) No.394 /2021 5
4. While the investigation was being conducted by the Sub Inspector of Police, Kanakakkunnu, the husband of the petitioner, approached this Court by filing WP(C)No.13487/2019, highlighting that the investigation by the local police was not satisfactory. According to him, the death of the deceased could be a case of homicide as there was no reason for his son to commit suicide. He also highlighted certain aspects which would throw some suspicion with regard to the cause of death and indicate the possibility of a homicide. A statement was submitted on behalf of the investigating officer in the said Writ Petition and the Writ Petition was ultimately disposed of as per Exhibit P4 judgment passed by this Court, as per which the direction was issued to hand over the investigation to Crime Branch.
5. On the basis of the same, the Crime WP(Crl) No.394 /2021 6 Branch took over the investigation. In the meantime, the husband of the petitioner passed away. According to the petitioner, the investigation now being conducted by the Crime Branch is not at all satisfactory and apart from visiting the residential house of the petitioner to take down her statement, nothing so far has happened as part of the investigation. This Writ Petition was submitted in such circumstances seeking a direction to hand over the investigation to the Central Bureau of Investigation.
6. In response to the averments in the Writ Petition, the Detective Inspector, Crime Branch, Alappuzha, submitted a detailed statement of facts. The allegation that he was conducting no proper investigation is denied. In the said statement, they have clearly averred that the Crime Branch had taken over the investigation on 5.3.2020, and since lock-down was declared by WP(Crl) No.394 /2021 7 the Government of Kerala at the relevant time, the investigation could not be conducted by visiting and seeing more witnesses at the place of occurrence immediately after that. However, when the restrictions of the lockdown were relaxed, they started an effective investigation, and as part of the same, more than 70 witnesses have been examined as of now. The samples collected during the course of the investigation were sent to the Regional Forensic Science Laboratory. The apprehension and allegations raised by the father of the deceased in various complaints filed by him and also in the Writ Petition submitted were specifically taken into consideration and all the possibilities of the incident being homicide were also thoroughly examined. After conducting all such investigations, so far, the impression they could gather is that the case is that of a suicide and not of homicide. However, the WP(Crl) No.394 /2021 8 investigation is now being conducted and immediately the same will be completed and a final report in this regard shall be submitted.
7. Heard Sri.S.Sanal Kumar, the learned counsel for the petitioner, Sri.C.S.Hrithwik, the learned Public Prosecutor for respondents 1 and 2 and Sri. Manu S., Assistant Solicitor General of India appears for the 3rd respondent.
8. The learned counsel for the petitioner reiterated the averments in the Writ Petition. He specifically contends that, several aspects are in existence which lead to a clear suspicion that it is a case of homicide. According to him, the body was found in a room where the food items were found scattered. At the time when the body was found, two table fans were in working condition, and one of them was found fallen, which according to him, indicates a scuffle. The shutter of the Dental clinic was found to be slightly open. The legs of the deceased were WP(Crl) No.394 /2021 9 found touching the ground and the PVC pipe on which the body was found hanging was not capable of bearing the weight of the deceased. The washed clothes but still wet dress of the deceased was found in the room. The body was found in a condition where one of the earphones was found attached to one of the ears, and the other earphone was found hanging from the other ear.
9. On the other hand, the learned Government Pleader reiterated the averments made by the Investigating Officer in the statement produced and submitted that a proper investigation is being conducted, and so far, no materials could be collected by the Investigation team consistent with the allegation of homicide.
10. The learned counsel appearing for the 3rd respondent-Central Bureau of Investigation contented that the prayer sought by the WP(Crl) No.394 /2021 10 petitioner is not sustainable. It is pointed out that, this is not a case which warrants an investigation by the Central Bureau of Investigation and from the records, it is seen that the Crime Branch is conducting a proper investigation. It is also pointed out that, at present, the Central Bureau of Investigation does not have the manpower to take up the investigation of this case and in the event the same being entrusted with the C.B.I., it would cause serious prejudice to C.B.I. mainly when the facts of this case do not contain any necessity indicating an investigation by the C.B.I.
11. I have gone through the materials on record and heard the contentions raised by the respective counsels appearing for the parties.
12. The learned Public Prosecutor also made available the case diary and I have thoroughly examined the contents of the same.
WP(Crl) No.394 /2021 11
13. One of the crucial contentions raised by the petitioner in her Writ Petition, which was reiterated during the course of the argument, was the suspicious circumstances under which the body was found. According to the petitioner, the main reasons leading to an inference of homicide are that the deceased's body was found naked at the time and the legs were found touching the ground. It was also pointed out that, the blood was seen on the ground just below the body and according to the petitioner, this would indicate a case of homicide.
14. I have examined the documents and the findings arrived at by the Investigating team with the assistance of medical experts as well as forensic experts. When considering the postmortem report, it is seen that, the finding as to the cause of death is that it is consistent with the possibility of death by WP(Crl) No.394 /2021 12 hanging. No external or internal antemortem or postmortem injuries were noticed on the body. As per the finding in the postmortem report the presence of any poison also could not be detected in the blood. It is seen from the case diary that, after the Crime Branch had taken over the investigation, the place of occurrence was thoroughly examined by the forensic team and as part of the same, an inspection was conducted by Dr. Anoop K. Thankappan, Assistant Professor, Department of Forensic Medicine, Government T.D. Medical College, Alappuzha and Smt. Susan Antony, Assistant Director, Regional Forensic Science Laboratory, Kochi. The aforesaid inspection was conducted jointly by the said persons along with the investigating officer on 14.7.2021. They have examined the place of occurrence along with the help of other documents, including the photographs and medical reports made available by the investigating WP(Crl) No.394 /2021 13 team.
15. As mentioned above, one of the reasons highlighted by the petitioner as a suspicious circumstance is the blood found on the ground just below the body of the deceased. After examining the materials, the experts arrived at a specific conclusion in this regard. According to them, the same was not, in fact, the blood but was blood-stained fluid which came out of the body naturally as part of the decomposition process. With regard to the suspicion in respect of the fact that the legs of the deceased were found touching the ground, it was explained that the dead body was hanging from the pipe, which was 212 cm above the floor and 107 cm below the sealing. It was a case of partial atypical hanging; hence, the lower limbs were seen touching the floor, and both knees were partially flexed. There also, the experts came to a definite finding that the said aspect would WP(Crl) No.394 /2021 14 not indicate that it is a case of homicide.
16. The forensic team on 14.7.2021 examined the load-bearing capacity of the pipe on which the body was found hanging. As part of the same, they hanged 78 kgs soil bags at the same point of suspension and it was proven beyond doubt that the PVC pipe could hold such a weight during the scene examination. Therefore, that possibility was also specifically ruled out by the forensic team. The statements/reports of Dr. Anoop K.Thankappan and Smt.Susan Antony is found on pages 153 and 173, respectively, of the case diary (Vol-3) made available to me.
17. In addition to the above, I have also examined the inquest report, which was available in the case diary maintained by the local police. From the inquest report, it is evident that a lungy was found on the ground just below the body was found hanging. Apparently, that explains why the body was found naked at the WP(Crl) No.394 /2021 15 relevant time. It is evident from the records that the body was found after about 40 hours of the death and was in a swollen condition due to decomposition. Therefore, in all probability, the lungy worn by the deceased might have fallen down by passage of time.
18. The other grounds raised by the petitioner as suspicious circumstances are also seen clearly examined by the investigating officer, and a specific investigation is seen conducted in that regard. On perusal of the case diary, it is seen that the Investigating Officer explained the existence of washed wet clothes by stating that, on 22.03.2019 at 10.30 p.m., the previous day, the deceased was found entering the clinic along with food which he had purchased. Therefore, it is evident that the deceased wanted to stay inside the clinic, and he must have washed the clothes and kept the same for drying them. With regard to the food, WP(Crl) No.394 /2021 16 the article was found scattered on the table, it is explained that it was the remaining food which he was found carrying while entering the clinic by 10.30 p.m. on the previous day, and according to the investigating officer, it is not an indication of any scuffle. Another point highlighted by the petitioner was that the shutter of the dental clinic was slightly open. However, the said fact by itself would not establish that it was a case of homicide. Moreover, it is revealed from the statements of various persons who were residing/conducting business in the vicinity of the dental clinic that the deceased used to stay in his clinic for several days occasionally.
19. Another contention raised by the learned counsel for the petitioner is that when the body was found, the earphone was found attached to one of the ears, and the other was found hanging. This aspect was also seen WP(Crl) No.394 /2021 17 investigated by the Investigating officer. It is seen that all the call data records of the phone numbers used by the petitioners were thoroughly examined, and regular contacts were identified. All the said persons with whom the deceased had connections through the phone were contacted. It is seen that on 22.3.2019 from the mobile phone number 7012736366 used by the deceased, a call is seen made at 23.47 hours which lasted for 3810 seconds. In the police case diary, even though it is stated that, the investigation officer contacted the persons with whom the petitioner was talking, much details are not there. However, as the investigation is even now in progress, some measures ought to be taken by the investigation officer in this direction. However, merely because of that reason, I do not find it necessary to entrust the investigation with the CBI.
20. Similarly, the possibility of any WP(Crl) No.394 /2021 18 assault being made on the deceased by any third person to commit robbery was also considered. One of the reasons highlighted by the petitioner was that the deceased used to wear some gold ornaments, but apart from one 'elass', no other ornaments were found on the body at the relevant time. However, the investigation revealed that on various dates, such as 23.10.2018, 12.2.2019 and 14.2.2019, the deceased himself pledged the said ornaments with M/s.Mini Muthoot Finance in its Karthikappally branch and obtained amounts of Rs.26,500/-, 17,400/- and 18,000/- respectively. Later, after the death of the deceased, the parents have already collected the said ornaments after paying the amounts to the said Company. Therefore, they have ruled out the possibility of any robbery being committed. It is also highlighted in this regard by the investigating officer that in the postmortem report also, there is absolutely no mention of WP(Crl) No.394 /2021 19 any antemortem injury on the body, which could be a direct or indirect cause of death. It is also discernible from the case diary that call data records indicate the tower location of the deceased on the previous day as the place of occurrence. There is no other evidence showing the entry of any third person at the clinic at the relevant time. Thus, after taking into account all the aforesaid aspects, the Investigating Officer has arrived at a prima facie conclusion to the effect that the incident, which is the subject matter of this case, is not a case of homicide, but it is a suicide. The reason which prompted the deceased to commit such suicide is not clearly revealed from the examinations so far conducted. But, there are some indications that he was having some relationship with some persons and financial transactions with them. The call data records would indicate regular contacts of the WP(Crl) No.394 /2021 20 deceased with such persons and some of the phone conversations extended for long hours. Even though investigation with regard to the persons was seen thoroughly conducted, no materials are revealed indicating any culpability on the part of such persons.
21. Apart from the above, the learned counsel for the petitioner vehemently contended that, as per the post mortem report,Pharynx and upper part of the oesophagus contained pieces of sliced onion. In the stomach also a hand ful pieces of sliced onion, curry leaves and other unidentifiable food particles were found. By placing reliance on existence of food particles on Pharynx, it was contended by the learned counsel for the petitioner that, the same would indicate the possibility of a sudden attack on the victim and a homicide by choking, while he was consuming food. However, on perusal of the case diary, I could not find any materials WP(Crl) No.394 /2021 21 indicating any possibility of the same. As mentioned above, there are no external/internal injuries on the body suggestive of occurrence of any scuffle inside the clinic. As per the police report, when Sri. Aneesh, who had seen the body of the victim at first, reached the dental clinic in search of the deceased, he found the clinic locked from inside and he forcibly opened the same to find the dead body. Therefore the chances of entry of any other person to the clinic at the relevant time, is highly improbable. Further, the petitioner pointed out that, one the two table fans was found fallen on the ground and it indicates a scuffle. However, from the case diary it is evident that, one of persons who first entered the room where the deceased was found hanging, had stated that, when they entered the room, to find the body, one of the table fans had fallen down when one of them hit on it accidentally. I do not find WP(Crl) No.394 /2021 22 any reason to disbelieve the same. Therefore, in my view, the above aspect cannot be given much emphasis to arrive at the conclusion that a proper investigation in that direction had not been conducted by the crime branch. It is true that the learned counsel for the petitioner, raised a contention that the statement of the said Aneesh the clinic was closed from inside is suspicious, I do not find any materials to accept the said contention.
22. Another contention raised by the petitioner was regarding the ligature material used. As per the records it was a synthetic rope forming an interlacing net (hammock). It is pointed out by the learned counsel for the petitioner that, since the hammock is not an article which can be ordinarily expected in a dental clinic, it suggests the intervention of third party and this is not being properly investigated. However, I do not find any ground WP(Crl) No.394 /2021 23 to accept the said contention. Existence of such material in the clinic cannot be simply ruled out, unless there are materials suggesting that a third party brought the same for the purpose homicide. In the earlier paragraphs of this judgment, I have already found that, the possibility of a third party entering into clinic at the relevant time is practically nil. Moreover, Aneesh, who was the friend of the victim stated that, one year ago, the victim purchased a hammock. Therefore, I do not find any sustainability in the contention of the learned counsel for the petitioner in this regard.
23. Thus, after going through the entire materials placed before me, including the case diary made available for perusal, I am of the view that, the investigation so far conducted by the Crime Branch is satisfactory. Almost all the grounds cited by the petitioner and her husband WP(Crl) No.394 /2021 24 were seen thoroughly examined by resorting to all possible methods. The scientific and medical examinations conducted in connection with the investigation through experts in this regard also are consistent with the finding of suicide. However, some attention is to be given to the persons with whom the petitioner was talking over phone, before his death, as revealed from the call data records.
24. It is a well settled position of law that the order of transfer of investigation to the Central Bureau of Investigation can be passed by the High Court, invoking the powers of Article 227 of the Constitution of India only in the rarest of rare cases. In State of West Bengal v. Committee for Protection of Democratic Rights [(2010) 3 SCC 571], it was observed by the Hon'ble Supreme Court in the manner as follows:
"70..........despite wide powers conferred by Articles WP(Crl) No.394 /2021 25 32 and 226 of the Constitution, while passing any order, the Courts must bear certain self-imposed limitations these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations, where the incident may have national and international ramifications, or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." (Emphasis supplied) In K.V. Rajendran v. CBCID [(2013)12 SCC 480], it was observed by the Hon'ble Supreme Court as follows:
"17...the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased."WP(Crl) No.394 /2021 26
25. A Division Bench of this Court, in the decision reported in State of Kerala v. Krishnan and Others [2020 (5) KLT (SN 25) C.No.26], the powers of this Court under Section 226 of the Constitution of India in the matter of transfer of investigation to Central Bureau of Investigation was considered and held that such power being extraordinary in nature, must be exercised sparingly, cautiously and in exceptional circumstances.
26. Thus, when considering the materials that could be collected by the investigating team as of now, in the light of the principles laid down by the Hon'ble Supreme Court as well as this Court in the decisions cited above, I am of the view that no circumstances are in existence in this case, warranting transfer of investigation to the Central Bureau of Investigation. The Crime Branch is conducting the investigation satisfactorily; therefore, it WP(Crl) No.394 /2021 27 is only proper that they may be allowed to continue the investigation to enable them to complete the same as expeditiously as possible. The change of investigation agency at this juncture would not serve any fruitful purpose. However, on perusal of the materials, it is evident that, the reasons which prompted the victim to commit suicide is not detected so far and this has to be found out. While investigating this aspect, every endeavour shall be taken by the investigation officer, to find out the same from the person/persons who had talked to the victim over phone for significantly longer duration, immediately before the death of the victim. Therefore, even while declining the relief sought for the petitioner to entrust the investigation with the CBI, a direction is hereby issued to the investigation officer, to continue the investigation effectively, to find out the WP(Crl) No.394 /2021 28 reason for the suicide, and in this regard, specific investigation has to be continued by questioning the persons with whom the deceased last interacted, as revealed from the call data records.
In such circumstances, this writ petition is disposed of with the above direction.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk WP(Crl) No.394 /2021 29 APPENDIX OF WP(CRL.) 394/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE FIRST INFORMATION REPORT WITH FIRST INFORMATION REPORT IN CRIME NO.364/2019 DATED 24.03.2019.
Exhibit P2 TRUE COPIES OF THE PHOTOGRAPHS OF THE HANGING POSTURE OF THE CORPSE.
Exhibit P3 TRUE COPY OF THE POSTMORTEM CERTIFICATE DATED 25.03.2019.
Exhibit P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 22.01.2020 IN WP(C)NO.13487 OF 2019.
Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN COC NO.542/2020 DATED 09.03.2020. Exhibit P6 A TRUE COPY OF THE STATEMENT DATED 15.06.2019 FILED BY SONY MATHEW, SUB INSPECTOR OF POLICE, KANAKAKUNNU POLICE STATION, IN WP(C)NO.13487/2019.