Chaya W/O Biji Kolla And Another vs Superintendent Of Police, ...
2016 Latest Caselaw 1560 Bom

      cwp758.14                                                                       1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH




                                                                             
               CRIMINAL WRIT PETITION  NO.  758  OF  2014




                                                     
      1. Chaya w/o Biju Kolla,
         aged 24, occupation -
         Housewife, r/o Vikaspalli,




                                                    
         Post - Kasansur, Taluka -
         Ettapalli, District - Gadchiroli,
         Maharashtra.

      2. Sitaram Maharu Kolla,




                                        
         aged 21 years, Student,
         r/o Vikaspalli, Post - Kasansur,
                             
         Taluka - Ettapalli, District -
         Gadchiroli, Maharashtra.                 ...   PETITIONERS
                            
                    Versus

      1. Superintendent of Police,
         having his office at Gadchiroli,
         Maharashtra.
      


      2. Collector, Gadchiroli,
   



         having his office at Collectorate,
         Gadchiroli, Maharashtra.

      3. Central Bureau of Investigation,





         through its Director, New Delhi.         ...  RESPONDENTS




      Shri Nihalsingh Rathod, Advocate for the petitioner.





      Shri   S.M.   Ukey,     Additional   Government   Pleader   for   respondent
      Nos. 1 & 2.
      Shri S.B. Ahirkar, Advocate for respondent No. 3.
                                          .....


                       CORAM : B.P. DHARMADHIKARI &
                               V.M. DESHPANDE, JJ.

DATE OF RESERVING JUDGMENT : FEBRUARY 16, 2016.

DATE OF PRONOUNCEMENT : APRIL 16, 2016.

JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

By this petition filed under Article 226 read with

Article 21 of the Constitution of India, the petitioner - wife of

the deceased and his brother claim a direction to Respondent

No. 3 - Central Bureau of Investigation (CBI) to carry out

investigation into the death of Biju Maharu Kolla and to

submit a report to this Court. A direction to register First

Information Report (FIR) against the concerned Police officers

who killed Biju, for offence under Section 302 of Indian Penal

Code (IPC), is also sought. A mandatory compensation of Rs.

One crore is also prayed for.

2. Petitioner No. 1 is wife of the deceased - Biju while

petitioner No. 2 is his real brother. They state that Biju had

purchased a Tractor on bank loan and used to let it out for

agricultural work. At relevant time, his tractor was at work at

village Kerkatta, at a distance of 25 kms from village -

Vikaspalli where he and his family resided and had about 3

Acres of agricultural land. To supervise the work there, Biju

on 14.06.2014 left his house early in the morning. He left his

village wearing a black striped white shirt and black pant. He

had to pass through Mandoli forest. The petitioners claim that

on way, Biju was stopped, his bike key was confiscated and he

was murdered by Police by shooting him in head, neck and

chest. It was later on shown as an encounter with naxals and

Police Officers claimed that they destroyed Training camp

which was held in the forest.

3. Petitioner No. 2 had come back on vacation and he

had to go to Gadchiroli to collect Medical certificate. He,

therefore, left his village at 11.00 AM on 14.06.2014 along

with his friend Devrao Dobala Wadde. As there was heavy

rains, he decided to go to Kerkatta village where his tractor

was working. At Kerkatte, driver of the tractor informed him

that Biju had not come. He then stayed with his friend at

Kerkatta near Tractor in the field. On 15.06.2014, they started

back for village - Vikaspali and came across the motorcycle of

Biju, on the path of Mandoli forest. He searched for Biju in

adjacent area but in vain. After reaching home, he enquired

about Biju and learnt that Biju had not returned. Hence, along

with others, they searched in nearby villages. On 16.06.2014,

petitioner Nos. 1, 2 and 6 to 7 other villagers went to Sub-

Police Station Kasansur to register missing person complaint.

Shri Wagh, in-charge at concerned police station refused to

register it and advised to search for him for two days more.

Then petitioner Nos. 1 & 2 went to Potegaon in search of Biju.

4. At Potegaon, petitioner No. 2 read the news about

police encounter, however, nobody in that village was aware

about it. Newspaper also carried photograph of a naxalite

killed by police and that photograph was of Biju. Petitioner

No. 2 then contacted local MLA Shri Namdeo Usendi and on

17.06.2014, at his intervention, family members of the

petitioners were permitted to see the body which was kept at

mortuary in Nagpur. The petitioners alleged that though body

could have been kept at Gadchiroli mortuary, it was

deliberately taken to Nagpur. The body was in rotten state

and stinking. The police authorities then at the cost of

department, delivered the body of Biju at village - Vikaspalli,

where he was cremated on 18.06.2014.

5. On 18.06.2014, Respondent No. 1 - Superintendent

of Police, issued a statement to the Press indicating that Biju

had a naxal profile and a pistol was found with Biju.

According to the petitioners, FIR does not reveal finding of any

such pistol. Biju was alleged to be a militia member and

according to the petitioners, such members work underground

and never wear naxal outfit while according to police Biju was

found wearing green uniform. The petitioners plead that these

inconsistencies show that encounter was fake. Respondent

No. 1 ought to have registered a FIR and carried out

investigation in said episode in fair and free manner but all

efforts were made to protect guilty police officers. Petitioner

No. 2 learnt that FIR was registered against Biju for the

offence punishable under Sections 307, 353, 143 of IPC along

with Arms Act at Kasansur Sub-Police Station where the

petitioners had gone to lodge missing report on 16.06.2014.

The officer in-charge of that Police Station had not disclosed

incident of FIR or firing. FIR stated that 308 rounds from

various guns, 1 bomb and 1 granade was used by the police

officers. While Police team was on search, they were attacked

by naxals ensuing into a fierce combat at about 9.00 AM. The

petitioners pleaded that in this situation, finding of only one

pistol reveals falsehood therein. The petitioners also state that

contradictory claims have been made by the Police department

with media and none of the villagers residing in the vicinity

were called for carrying out spot panchnama. As per FIR

against Biju, he was taken to Primary Health Centre Potegaon

located at 20 kms from Police Station Kasansur. Spot of

encounter and Sub-Police Station Kasansur are separated by a

distance of 10 kms but no FIR was registered at Kasansur,

though an anti dated FIR is shown to be lodged by giving it '0'

number on 16.06.2014 at Gadchiroli,. The petitioners also

submit that number of injuries on the body of Biju do not

match with number of rent over or holes on the shirt of Biju.

Petitioner No. 2, therefore, approached Police Station on

21.06.2014 and 25.06.2014 to lodge FIR and to seek

investigation into it. However, he was turned down without

giving any reasons, though a cognizable offence was made out.

6. Petitioner No. 2 then approached the Collector, who

directed probe. The Sub-Divisional Police Officer called for

statements from the witnesses and other concerned persons.

The relatives and people knowing Biju recorded their

depositions in the form of affidavits and supported the

petitioners. The SDPO did not visit the spot and thus enquiry

conducted by him was not free and fair.

7. The petitioners pointed out that thus the respondents

refused to honour the judgments delivered by the Hon'ble

Apex Court and guidelines issued by the National Human

Rights Commission by avoiding to register FIR and in the

process protected murderers. It is in this background that this

Court has been approached.

8. We have heard Shri Rathod, learned counsel for the

petitioners, Shri Ukey, learned Additional Government

Pleader, for respondent Nos. 1 & 2 and Shri Ahirkar, learned

counsel for respondent No. 3.

9. After narrating the facts in brief, Shri Rathod, learned

counsel invited our attention to the order dated 30.06.2015

passed by this Court and submitted that the encounter is

alleged to have taken place in a nalla. In this situation,

according to him, when shirt worn by Biju had holes, why his

full pant was not torn if injury to his leg was caused in the

encounter. He also contends that absence of rigour mortis is

the important factor which needs to be taken note of. He has

invited our attention to a drawing placed on record to urge

that injuries sustained by Biju are possible only if he was

forced to sit on his knees bent forward with his both wrists

near chin and arms folded with elbows under chest near body.

It is only in this position that entry and exit points of bullets as

explained in postmortem or by the police can be explained.

He states that thus the path or trajectory of travel of each

bullet in the body of Biju shows that Biju was apprehended by

police and thereafter mercilessly killed by firing bullets from

close range, while he was begging for his life. He points out

that all these bullets are allegedly fired through a 9 mm pistol

and FIR though dated 14.06.2014 is actually lodged on

16.06.2014. It does not make any reference to nalla and 9

mm pistol was not with the deceased. He also invites

attention to FIR lodged by the petitioners on 21.06.2014.

10. Our attention is drawn to report of preliminary

enquiry submitted by SDPO and it is contended that therein

reference to nalla as spot of incident appears. However, body

of Biju is not found in nalla and there is no pistol with it. He

invites attention to post mortem report to demonstrate that it

does not mention that body was initially taken to Potegaon

PHC at 4.00 PM. He further states that except for three bullet

wounds, there were no other wounds on the body and rigor

mortis was also found absent. Each wound had a dirt collar

near its entry place. He has invited attention to assertions in

this respect in his rejoinder and to Book on Medical

Jurisprudence written by Modi. He states that spot

panchnama prepared on 19.06.2014 is also looked into in this

enquiry report and report received from Forensic laboratory

finds consideration. However, there is no other mode to find

out who could have used pistol which caused injuries to the

deceased. Our attention is drawn to book authored by

Sharma on Ballestic, to explain position of injuries on the

deceased. Shri Rathod, learned counsel contends that in the

preliminary enquiry, there is no mention of use of pistol.

11. To rebut the contentions of the respondents about

availability of alternate remedy and option of filing private

complaint, he seeks support of the judgment in the case of

State of Maharashtra vs. Farook Md. Kasim, reported at AIR

2010 SC 2971. He states that in such matters of violation of

human rights, that too by the police authorities, harsher

punishment is essential. To buttress this submission, he draws

support from the judgment in the case of Prakash Kadam vs.

Rampradad and Anr., in Criminal Appeal Nos. 1174-1178 of

2011 delivered by the Hon'ble Apex Court on 13.05.2011.

12.

Shri Ukey, learned Additional PP invites attention to

the affidavit filed on record by Respondent No. 1 on

27.08.2015. He submits that after death of Biju, naxals

erected monuments in his memory or honour, and such a

monument was also seen on 02.08.2014. They also

distributed pamphlets and mentioned the encounter with

police as fake encounter.

13. Explaining the spot & situation of encounter, the

learned Additional PP submits that number of casualties or

number of injured personnel on either side are not decisive in

such circumstances. He states that FIR is not an encyclopedia

and during investigation, several factors become apparent.

Though FIR does not mention nalla, nalla is reflected in the

spot panchnama.

14. To explain three injuries on the deceased caused by 9

mm pistol, he has invited our attention to FIR pointing out

type of weapons and explosives used by the police machinery

and also to post mortem report. He further submits that for

every bullet wound, there has to be a dirt collar. Post mortem

report, particularly clause 8 therein dealing with conditions of

clothes is pressed into service to show that for every bullet

wound, there is a tear and, therefore, there are six wounds on

body even as per shirt holes. A diagram with description of

rent over clothes and wounds (page 135 of record) is also

relied upon by him. The subsequent report submitted by the

Doctor in this respect is also explained by urging that the

Doctor was not given access to that shirt again on 15.11.2014.

It is pointed out that post mortem itself was videographed and

the Doctor had access to that videograph. Report of Doctor

dated 15.11.2014 on bullet wounds and corresponding holes

in shirt of Biju is based on that videographed shooting. The

shirt carries three entry holes and three exit holes.

15. On absence of rigor mortis, the learned counsel states

that it defers from case to case. He draws support from book

of Modi to substantiate this submission.

16. The encounter was with naxals representing

Kasansur LOC and, therefore, after encounter, it would have

been risky for Police force to go to Kasansur Police Station.

Potegaon PHC is on way to Gadchiroli and hence after taking

the deceased to Potegaon PHC first, police squad went to

Gadchiroli where FIR is registered as '0' FIR . He submits that

in such case, the normal and standard practice has been

followed by the police force.

17. The absence of rigor mortis is again explained by him

by inviting attention to the fact that there is every possibility

that rigor mortis broke or disappeared and it may be because

of travel on rough road or handling of body. He draws

support from Book authored by J.B. Mukharjee (4 th Edt.) for

this purpose. He submits that rigor mortis at the most may

enable one to guess estimate time of death. Book of Modi is

also relied upon by him for this purpose. The judgment in the

case of Baso Prasad Vs. State of Bihar reported at (2006) 13

SCC 65, particularly paragraphs 19 to 22 are pressed into

service. According to him, rigor mortis may have been

partially broken when after encounter, body was moved.

18. About dirt collar, he invites attention to commentary

by Dr. C.K. Parikh on Medical Jurisprudence and Toxicology.

He points out that burning, scorching were not seen and there

was no smoke powder or its residue. He also relies upon "fire

arms in criminal investigation and trial" by B.R. Sharma, to

urge that as observed by the author, the sign of dirt ring is at

entrance wound & it cannot be a guide to the range from

which firearm was used. To explain what is close shot, near

shot and a distance shot, he refers to Textbook of Forensic

Medicine & Toxicology by V.V. Pillay (16 th Edt.- Paras). He

further makes a statement that charge sheet is ready for filing

but because of present pending petition, it has not been filed

so far.

19. According to the respondents, one 9 mm pistol was

with police force on the spot. One was lost by the police force

in past previously and it was also found on the spot. However,

this was never used in the encounter, though in working

condition. There is difference in size of bullet wounds because

all bullet wounds are not caused by the same weapon. He

presses post mortem report into service for said purpose. He

concludes by urging that as in this matter, there are

inconsistencies in the story narrated by the Petitioners, the

Petitioners must be asked to file private complaint & this Court

should not use its extra ordinary powers in this matter.

20. In reply arguments, Shri Rathod, learned counsel

submits that the Court of J.M.F.C. had received FIR allegedly

dated 16.06.2014 on 23.06.2014 though it is claimed that it

was sent on 17.06.2014. He, therefore, submits that the

respondents are not acting honestly in this matter and hence

investigation by CBI was necessary. There were 63 officers

with satellite phones and hence additional help could & should

have been sought. He also argues that when the petitioners

visited Kisansur Police Station on 16.06.2014, they were not

aware of any firing or FIR. He, therefore, submits that the

alleged FIR is ante dated.

21. Inviting attention to the reply affidavit filed on behalf

of Respondent No. 1 on 12.12.2014, he states that there only

three holes on alleged uniform of the deceased have been

disclosed. Thus, story of six holes is by way of after thought

and cannot be accepted. He further contends that the alleged

videography was never disclosed to the petitioners.

22. He has further stated that witnesses to alleged

ambush or encounter whose statements were recorded by the

police under Section 161 of Criminal Procedure Code, have

filed affidavits contradicting their earlier statements before

this Court. Report of SDPO also relies upon these statements &

hence, said report is also liable to be discarded.

23. Inviting attention to use of words "fresh injuries" in

post mortem report, he contends that the deceased, therefore,

was alive for quite some time and contention that he was

killed in the morning on 14.06.2014 is, therefore, incorrect. It

is contended that, therefore, there is no mention of the fact of

the deceased being taken to Potegaon PHC.

24. If the death has taken place about 12 hours back, the

process of putrefaction starts. To explain it, he draws support

from the book of Modi and Tailor. He points out that this

process cannot be avoided or broken & as the Doctor

conducting post mortem did not notice any putrefaction, the

story of prosecution cannot be accepted. He reiterates the

contention on how three bullet injury wounds with entry and

exit points as seen in postmortem could have been caused. He

also attempts to urge that if the picture drawn by the

prosecution on path taken by each bullet within the body of

deceased and presented to this Court is accepted, then the

wound 'A' is not as per its description in post mortem. He

again cites book written by B.R. Sharma to point out

differences between wounds caused by different types of

bullets. He relies heavily upon a statement in the book

authored by V.V. Pillay that the scorching effect, singeing and

snudging may be absent, if firing has occurred through

clothing. He states that here uniform allegedly worn by the

deceased was thick and hence this material also cannot help

police authorities.

25. Shri Ahirkar, learned counsel appearing for

respondent No. 3 - CBI submits that in present matter when

charge sheet is ready and can be filed, the petitioners must be

asked to participate in those proceedings and raise appropriate

grievance in that Court by filing the independent proceedings.

He draws support from the judgment in the case of Sakiri Vasu

vs. State of Uttar Pradesh & Ors., reported at (2008) 2 SCC

409.

26. The petitioners have produced before this Court a

written report dated 21.06.2014 addressed to the Officer in-

charge of Police Station Kasansur. This report is by petitioner

No. 2. Petitioner No. 2 has in said report stated that he is a

student of B.A. Final year. He then mentions about deceased

leaving on 14.06.2014 early in the morning, he himself

proceeding to Gadchiroli, starting of rain, his night stay at

Kerkatta and ultimately finding motor cycle of his brother at

Mandoli forest. He mentions that at Mouza Potegaon at Pan

stall on 16.06.2014, he saw news item and photograph of his

brother Biju. He then mentions visit to MLA Dr. Usendi and

learning about taking of body of the deceased to Nagpur. He

states that on 16.06.2014 in the night, they stayed at

Gadchiroli. On 17.06.2014, as advised by MLA, he contacted

Police Superintendent, Gadchiroli. The said officer told him

that the mother of petitioner No. 2 and other relatives had

already contacted him and that they had gone to Nagpur. He

then saw photograph of the deceased in Mobile phone of

Police Superintendent. He also states that he raised question

as to how uniform of naxals was put on the body of the

deceased. He also demanded the body and Superintendent of

Police told him that his mother and other persons would bring

it from Nagpur. The Superintendent of Police then sent him to

SDPO and SDPO recorded his statement. Body was then

brought to Gadchiroli at costs of police at 8.00 PM and then, it

was also delivered at the village of the petitioners. Last rites

were performed on 18.06.2014. He has mentioned that when

body was delivered in his possession, it was stinking and they

could not verify the part or place of body where the injuries

were sustained by the deceased. He has further mentioned

that when deceased had left for Kerkatta, he was wearing

black and white strips shirt and black pant. He has alleged

that the police killed his brother by firing a bullet in his hand

and also put on green uniform on the body.

27. The statement of one Nangsu Tirukola dated

14.07.2014 is also available on record. He has mentioned that

the deceased had worn a shirt having black and while blocks

(squares) and black pant when he left for Kerkatta. In the

statement dated 14.07.2014 given by one Sannu Kotu Matami,

shirt of the deceased is described on the same lines. The

statement of Sitaram Maharu Kola dated 14.07.2014 recorded

on oath shows that the deceased was wearing a shirt with

black and white blocks and a black pant on 14.06.2014.

28. It, therefore, appears that there is some inconsistency

about the type or pattern of shirt allegedly put on by the

deceased on 14.06.2014. He left his house in the morning.

The records also show that one Samari Maharu Kolla, aged

about 19 years had told petitioner No.1 that on earlier day in

the morning, she had heard noise of firing at Mandoli forest.

29. In this respect, narration of story by Jaini Maharu

Kolla appears to be different. She states that they initially

went to Kasansur Police Station for lodging report of lost

person and thereafter they came to Potegaon, where they saw

photograph of her son in the Newspaper. In the statement

given to SDPO, she has mentioned that petitioner No. 2, her

daughter-in-law Chhaya and other family members went to

Kisansur Police Station to lodge complaint. Varlu, the elder

brother of her daughter-in-law and one Janu Kotavi then came

to their house and at that juncture, Samari Kolla (aged about

19 years) informed about noise of gun shots at Mandoli forest.

The brother Varlu of her daughter-in-law informed that

motorcycle of the deceased was standing on said road. Varlu

apprehended that Biju may have been injured in firing and,

therefore, he felt need to go to Gadchiroli to verify. She also

expressed her desire to accompany and came on motorcycle

with them to Gadchiroli. Enquiry was made at Government

hospital and then the Police Officer at Police Outpost had

asked them to contact Superintendent of Police. At that time,

they have shown Aadhar card, Election card and photo of Biju

to Superintendent of Police and then Superintendent of Police

enquired whether their son was a naxalite.

30. Thereafter one woman employee took them to other

office where enquiry was made and food was served to them.

They were asked to identify photographs on computer and

they identified photograph of Biju. Then they were told that

his body was taken to Nagpur. Hence, on 16.06.2014, they

stayed at Gadchiroli and went to Nagpur on next day. They

were shown the body in Government hospital at Nagpur and

they returned with body to Gadchiroli at 8.00 PM. They

reached their village in the morning on 18.06.2014. Thus,

there is difference in narration of story by this witness.

31. Varlu has supported the story of hearing of firing by

Samary Kolla, visit to Gadchiroli, identifying photo on

computer and going to Nagpur. Keye Jogi Kolla has also

supported hearing noise of gun firing towards Mandoli forest

area on 14.06.2014. Even Dalsu Gonglu Wadde has supported

this firing on 14.06.2014 in the morning.

32. Thus, mother of the deceased got knowledge either

at Gadchiroli itself or at Potegaon on 16.06.2014 that her son

was no more. Her reasons for coming to Gadchiroli on

16.06.2014 are also at variance with each other. The

circumstances in which petitioner No. 2 claimed that he got

knowledge, are already mentioned by us above. This gives rise

to few vital questions which can not be resolved & answered

here.

33. One Kanu Mahu Pada examined as witness No. 10

before SDPO has stated that his village was in naxalite affected

area and two days prior to incident, there was visit by naxalite

persons. He heard noise of firing between 9.00 AM to 10.30

AM on 14.06.2014 at Mandoli to Paddy forest. He also learnt

that one Biju Maharu Kola was killed in an encounter but he

was not knowing that person.

34. All these facts, therefore, show some inconsistency in

the story of the petitioners.

35. Before embarking upon the alleged lacunae in

investigation which the petitioners attempt to demonstrate, we

have to keep in mind the fact that as per prosecution,

investigation is already over and charge sheet has not been

filed because of this Criminal Writ Petition. If the charge sheet

is filed, the entire material looked into by the Investigating

Agency will become available to the Competent Court and also

to the present petitioners. In the light of material looked into,

there,the contentions raised before us can then be better

appreciated.

36. The copy of FIR lodged by Police Sub-Inspector -

Praful Prabhakar Kadam reveals that the incidence has taken

place when the Police party was carrying out search in

Mandoli forest area on 14.06.2014 at about 9.00 AM. It is

mentioned that about 30 to 40 men and women naxalites in

green uniform were hiding and suddenly started firing at

Police party. The Police officer also gives detail and points

out the weapons and material seen scattered on the spot. A

male naxalite was found lying motionless and he was taken in

custody. The ammunition used by Police party is also detailed

therein. It is mentioned that superior Police officers were

informed by satellite phone and the naxalite who was lying on

the spot was lifted and carried to PHC Potegaon where

Medical Officer declared him dead. This FIR was registered as

Crime No. 00 of 2014 on 14.06.2014 at Gadchiroli and

thereafter the same was transferred to Police Station Kasansur

where it was received on 16.06.2014. The Sub Police Station,

Kasansur recorded offence and then its copy was sent to JMFC,

Aheri.

37. The report lodged by Petitioner No. 2 - Sitaram on

21.06.2014 shows that on 16.06.2014, he had gone to

Kasansur to lodge a report of his missing brother. He then

states that he came back to his village Vikaspalli and thereafter

total 8 persons went to Mouza - Potegaon to search for Biju.

They enquired and on pan stall, in Newspaper, saw

photograph of his brother. His statement recorded by the

Police on 25.06.2014 is on the same lines. Mother - Jaini of

Biju has mentioned that her younger son Sitaram and 6 to 7

other persons left for lodging report at Kasansur Police

Station. Shri Varlu Pandu and one other person went to

Mouza - Potegaon in search of Biju. At that time she saw

photograph of his son in the Newspaper and she identified

him. Then she states that they went to Hospital at Gadchiroli

and then to the office of Superintendent of Police. In the

report of SDPO, her statement has been referred to. She

points out that her daughter Samary Kolla, aged about 19

years had disclosed about firing at Mandoli forest and then

Warlu Pandu voicing the need of proceeding to Gadchiroli to

find out whether Biju is injured. Jaini then told him that she

would accompany Varlu Pandu and she came directly to

Gadchiroli. She does not disclose her visit to Potegaon or

seeing photograph of Biju in the Newspaper at Pan stall at

Potegaon and identifying it. Her statement reveals that she for

the first time saw the photograph of the deceased on the

computer.

38. Thus, in the story narrated by close relatives of Biju,

there is material contradiction which cannot be explained at

this stage. This is at stage when the factors like influence of

Police or wrong recording of version by Police, had still not

entered the story. Whether Warlu and Jaini saw photograph

at Potegaon, whether Jaini saw and identified the photograph

at Pan stall at Potegaon, whether she for the first time saw

photograph at Gadchiroli are the moot questions which raise

the cloud on Petitioners' bonafides.

39. The difference or inconsistency about the description

of shirt allegedly put on by Biju when he left on 14.06.2014 to

Vikaspalli for Kerkatta is also noted by us above. These facts,

therefore, throw doubt on correctness of the pleadings of the

petitioners. The petitioners do not disclose that they have

knowledge of the fact of hearing of firing at Mandoli forest.

40. It is no doubt true that before this court the persons

whose statements were recorded by SDPO have given

affidavits to the contrary and contended that the Police

authorities have recorded twisted version of their statements.

This cannot be accepted since the petitioners on 16.06.2014

itself contacted local MLA - Dr. Namdeo Usendi and he had

helped them.

41. In this situation, when enquiry was being conducted

by SDPO, we are not in a position to hold in this jurisdiction

that an incorrect statement was recorded by said officer. The

persons accompanying the witnesses or the petitioners could

have immediately raised grievance about such incorrect

recording. Samary Kolla or other persons who disclosed

hearing of sound of gun-shots in the morning at Mandoli forest

are not examined before the SDPO by the petitioners. Thus,

the very narration of events leading to or resulting in a cause

of action is shrouded with suspicion. The Petitioners do not

point out why the police force should apprehend Biju or then

kill him and then create a farce of an encounter. Facts noted

in spot panchanama show an encounter and if, fabrication of a

story was required, the police force could have done it with

more proficiency without giving the petitioners any ground to

doubt. The size of the bullet wounds show that bullets may

not have been fired from the same weapon. Videographic film

of the Post Mortem shall be also seen then. When law as laid

down in Sakiri Vasu vs. State of Uttar Pradesh & Ors. (supra)

by the Hon'ble Apex Court, particularly paragraph Nos. 17 to

23 therein is seen, we find no exceptional case being made out

to intervene under Section 482 of the Cr. P.C. or Article 226 of

the Constitution of India.

42. In this situation, we do not find it proper to dwell

more on any of the issues argued by the parties. The

Petitioners can raise their grievance more effectively with

relevant material after the Police presents charge sheet against

deceased Biju and, at that stage, the petitioners can also seek

appropriate relief. At that juncture, the Trail Court can

comprehensively evaluate the rival contentions and reach

suitable conclusion. That consideration must be uninfluenced

and uneclipsed by the observations of this Court. To preserve

its sanctity, we have not delved more into the controversy and

refrained from recording any finding on the facets presented

to us by the respective learned Counsel.

43. As a result, all the rival contentions are kept open

and the Criminal Writ Petition is dismissed. No order as to

costs.

                    JUDGE                                    JUDGE
                                       *****
      *GS.