Mr. Bhaskar Rao Nimbalkar vs State Of Karnataka
2021 Latest Caselaw 4715 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF NOVEMBER, 2021         R
                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.21794 OF 2017 (GM- RES)


BETWEEN:

MR. BHASKAR RAO NIMBALKAR
S/O MR.SHANKAR RAO NIMBALKAR
AGED 54 YEARS
RESIDENT OF NO. 174-B,
RAUBANDHA SECTOR , BHILALI
DURG DISTRICT, CHATTISGARH STATE
PIN : 490 001.
                                                ... PETITIONER

(BY SRI VENKATESH P.DALWAI, ADVOCATE (VIDEO
    CONFERENCING))

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY
       THE PRINCIPAL SECRETARY
       HOME DEPARTMENT
       VIDHANA SOUDHA
       BENGALURU - 560 001.

2.     THE ASSISTANT COMMISSIONER
       OF POLICE
       J.C.NAGAR SUB- DIVISION
       R.T.NAGAR
       BENGALURU - 560 032.
                                2



3.   STATION HOUSE OFFICER
     HEBBAL POLICE STATION
     HEBBAL, BENGALURU - 560 024.
                                                  ... RESPONDENTS

(BY SMT.NAMITHA MAHESH B.G., AGA (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS OF CRIME
NO.177/2016 FROM THE HEBBAL POLICE STATION BANGALORE
AND REJECT THE FINAL REPORT OF THE POLICE FILED IN THE
SAID CASE; ISSUE A WRIT IN THE NATURE OF MANDAMUS
ENTRUSTING THE INVESTIGATION EITHER TO THE CENTRAL
BUREAU OF INVESTIGATION OR THE CRIMINAL INVESTIGATION
DEPARTMENT, GOVT., OF KARNATAKA, BANGALORE AND ORDER A
REINVESTIGATION INTO THE CASE AFRESH AND ETC.,


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.11.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-


                             ORDER

The petitioner in this writ petition seeks a direction by

issuance of writ in the nature of mandamus to call for the

records in Crime No.177 of 2016 and direct reinvestigation into

the matter at the hands of either Central Bureau of Investigation

or Criminal Investigation Department.

2. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioner is the father of the deceased. Marriage of

petitioner's daughter Mrs. Khushboo Nimbalkar takes place with

one Amit Sheshrao Tayade on 29.01.2015. It appears that the

relationship between the members of the family, husband and

daughter of the petitioner was not good right from the date of

marriage of the daughter of the petitioner. After about 18

months of marriage, which according to the averments was quite

tormenting, the daughter is alleged to have committed suicide.

The daughter was last seen on 20.08.2016 at about 11 a.m. and

on the next day at about 6 p.m. brother-in-law of the petitioner

receives a call that the daughter of the petitioner died by

hanging herself. It is on 23.08.2016 the petitioner registers a

complaint with the Hebbal Police in Crime No.177 of 2016 for

offences punishable under Sections 304(B), 498A, 302 read with

Section 34 of the Indian Penal Code and Sections 3 and 4 of the

Dowry Prohibition Act, 1961. Proceedings in Crime No.177 of

2016 are pending against the family members of the husband.

Those petitions which did call in question the proceedings

pending against the husband and other family members are

dismissed by this Court and the trial is directed to be continued

against those accused. The present petition though arises out of

the same incident and the same crime number, is filed seeking

further investigation into the matter.

3. Heard Sri Venkatesh P.Dalwai, learned counsel for the

petitioner and Smt. B.G. Namitha Mahesh, learned Additional

Government Advocate for the respondents.

4. The learned counsel Sri Venkatesh P.Dalwai appearing

for the petitioner would contend that the Police have conducted

a shoddy investigation and would take this Court to several

lacunae in the investigation conducted and have also filed

charge sheet where the offence of Section 302 of IPC is dropped.

It is for this purpose the present petition is filed by the

petitioner.

5. The learned Additional Government Advocate

representing the respondents would submit that the

investigation is conducted in its entirety and what the Police

found during investigation was no offence of murder to be

included. Therefore, Section 302 of IPC was omitted from the

charge sheet and if this Court were to direct further investigation

the Police would conduct such further investigation.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. Before embarking upon consideration of the plea of the

petitioner for further investigation into the matter, I deem it

appropriate to notice the law laid down by the Apex Court with

regard to further investigation of a crime and the stage at which

such further investigation could be ordered at the instance of

representatives of the deceased. Apex Court in the case of

DAYAL SINGH v. STATE OF UTTARANCHAL1 has held as

follows:

(2012) 8 SCC 263

"21. The investigating officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the Police Manual and the known canons of medical practice, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can sometimes prove fatal to the case of the prosecution. An investigating officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/ omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. But, at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot- free. We may illustrate such kind of investigation with an example where a huge recovery of opium or poppy husk is made from a vehicle and the investigating officer does not even investigate or make an attempt to find out as to who is the registered owner of the vehicle and whether such owner was involved in the commission of the crime or not. Instead, he merely apprehends a cleaner and projects him as the principal offender without even reference to the registered owner. Apparently, it would prima facie be difficult to believe that a cleaner of a truck would have the capacity to buy and be the owner, in possession of such a huge quantity i.e. hundreds of bags of poppy husk. The investigation projects the poor cleaner as the principal offender in the case without even reference to the registered owner.

... ... ... ...

39. The Indian law on expert evidence does not proceed on any significantly different footing. The skill and experience of an expert is the ethos of his opinion,

which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the court, it has to be well authored and convincing. Dr C.N. Tewari was expected to prepare the post-mortem report with appropriate reasoning and not leave everything to the imagination of the Court. He created a serious doubt as to the very cause of death of the deceased. His report apparently shows an absence of skill and experience and was, in fact, a deliberate attempt to disguise the investigation.

40. We really need not reiterate various judgments which have taken the view that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be well reasoned. In such case, the court has to critically examine the basis, reasoning, approach and experience of the expert to come to a conclusion as to which of the two reports can be safely relied upon by the court. The assistance and value of expert opinion is indisputable, but there can be reports which are, ex facie, incorrect or deliberately so distorted as to render the entire prosecution case unbelievable. But if such eyewitnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye-version given by the eyewitnesses, the court will be well within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the court. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution

witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise."

(Emphasis Supplied)

The Apex Court in the case of Vinay Tyagi v. Irshad Ali2 holds

as follows:

"22. "Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation.

(2013) 5 SCC 762

23. However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation". This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of "fresh"/"de novo" investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation".

... ... ... ...

43. At this stage, we may also state another well- settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation"

are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

45. The power to order/direct "reinvestigation" or "de novo" investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

46. The Code does not contain any provision which deals with the court competent to direct "fresh investigation", the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a "fresh"/"de novo" investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon "further investigation" or a report upon "fresh investigation", shall have to be

construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the court of competent jurisdiction.

... ... ... ...

48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons."

Later, the Apex Court in the case of POOJA PAL v. UNION OF

INDIA3 following the judgment in the case of VINAY TYAGI has

held as follows:-

"24. Be that as it may, the High Court eventually by the impugned judgment and order [Pooja Pal v. Union

(2016) 3 SCC 135

of India, 2014 SCC OnLine All 6350] has dismissed the writ petition. It held the view that if the appellant was not satisfied with the charge-sheet submitted by the Civil Police as well as CB-CID and the materials collected by these two agencies in course of their separate and independent investigation, and is also of the view that further investigation was required, or that some additional evidence was to be collected, she was at liberty to file an application before the Magistrate concerned to that effect so as to enable the trial court to pass appropriate orders thereon. It further held that so far as the adduction of additional evidence was concerned, the appellant would have every opportunity to produce the same or ask there for also by making an appropriate application at the time of trial.

... ... ... ...

64. The content and scope of the power under Article 226 of the Constitution of India to direct investigation by CBI in a cognizable offence, alleged to have taken place within the territorial jurisdiction of the State, without the consent of the State Government fell for scrutiny of this Court in Committee for Protection of Democratic Rights [State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571: (2010) 2 SCC (Cri) 401]. While examining the issue in the context of the power of judicial review as embedded in the constitutional scheme, it was held that no Act of Parliament could exclude or curtail the powers of the constitutional courts in that regard. Reiterating, that the power of judicial review is an integral part of the basic structure of the Constitution, it was underlined that the same was essential to give a pragmatic content to the objectives of the Constitution embodied in Part III and other parts thereof. In elaboration, it was held that Article 21 of the Constitution not only takes within its fold, the enforcement of the rights of the accused but also the rights of the deceased. It was predicated that the State has a duty to enforce the human rights of the citizens providing for fair and impartial investigation, against any person accused of commission of any cognizable offence.

      ...            ...                  ...            ...
       67. In Bharati         Tamang         case [Bharati

Tamang v. Union of India, (2013) 15 SCC 578: (2014) 6 SCC (Cri) 566] on behalf of the appellant, accusation of tardy prosecution of the case, and free and open movement of the key accused persons in the city avoiding arrest were made as well. The plea of the impleaded accused persons that the appellant after the demise of her husband had initiated the writ proceedings for political gain was rejected. Their contention based on Section 319 of the Code that in course of the trial, on availability of sufficient evidence, any person not being an accused could be ordered to be tried, was also negated. The propositions expounded in Zahira Habibulla H. Sheikh [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] qua the duty of the court to ensure fair investigation by remedying the deficiencies and defaults therein so as to bring forth full and material facts to prevent miscarriage of justice were reiterated. It was concluded that when the courts find extraordinary or exceptional circumstances rendering reinvestigation imperative, in such eventualities even de novo investigation can be ordered. While ruling that in case of discernible deficiency in investigation or prosecution, the courts have to deal with the same with iron hand appropriately within the framework of law, it was underlined that in appropriate cases, even if charge-sheet was filed, it was open for the High Court and also this Court to direct investigation of the case to be handed over to CBI or to any other agency or to direct investigation de novo in order to do complete justice, in the facts of the case.

... ... ... ...

69. This Court in Babubhai [Babubhai v. State of Gujarat, (2010) 12 SCC 254: (2011) 1 SCC (Cri) 336] while examining the scope of Section 173(8) of the Code, did recall its observations in Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6

SCC 1: (2010) 2 SCC (Cri) 1385] that it is not only the responsibility of the investigating agency but as well as of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. It underlined that the equally enforceable canon of criminal law is that high responsibility lies upon the investigating agency, not to conduct an investigation in a tainted and unfair manner and that such a drill should not, prima facie, be indicative of a biased mind and every effort should be made to bring the guilty to law dehors his position and influence in the society as nobody stands above law. It propounded that the word "ordinarily" applied under Section 173(8) of the Code, did attest that if the investigation is unfair and deliberately incomplete and has been done in a manner with an object of helping a party, the court may direct normally for further investigation, and not for reinvestigation. It was, however, added as a sequitur that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, and if it is considered necessary, may direct for de novo investigation as well. It was observed that if an investigation has not been conducted fairly, the resultant charge-sheet would be invalid. It was held as well that such investigation would ultimately prove to be a precursor of miscarriage of criminal justice and the court in such a contingency would be left to guess or conjecture, as the whole truth would not be forthcoming to it. It was held that fair investigation is a part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India and thus, the investigating agency cannot be permitted to conduct an investigation in a tainted or biased manner. It was emphasised that where non-interference of the court would ultimately result in failure of justice, the court must interfere and in the interest of justice choose an independent agency to make a fresh investigation.

... ... ... ...

87. Any criminal offence is one against the society at large casting an onerous responsibility on the State, as

the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation.

88. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762:(2013) 4 SCC (Cri) 557] to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction."

(Emphasis Supplied)

8. The Apex Court in the afore-extracted judgments has

laid down the parameters of consideration of the issue while

directing reinvestigation. It is also indicated that the Court

considering the plea for reinvestigation should clearly narrate on

going through the material on record as to the grounds for re-

investigation. Therefore, it becomes imperative to notice the facts

and grounds on which the petitioner has sought re-investigation

into the matter and its tenability.

9. The incident happened on 20.08.2016 as the deceased

was last seen at 2 p.m. and later it was informed that the

deceased died by hanging herself. FIR was registered for

offences punishable under Sections 498A, 304B, 302 and 34 of

the IPC and Sections 3 and 4 of the Dowry Prohibition Act

against all the four accused. The accused were the husband,

sister-in-law, mother-in-law and father-in-law of the deceased.

The version of the prosecution is that on 21.08.2016 at 2.30

p.m. the deceased locked herself into the room and later hanged

herself. Accused No.1, husband broke open the door and then

took the deceased for treatment to V Care Hospital. Doctors at

V Care Hospital advised accused No.1 to take the deceased to

Jain Hospital. This was at 3.30 p.m. Treatment at Jain Hospital

was not successful and the deceased died at 4.40 p.m.

Therefore, the deceased did not die in the house. After the death

of the deceased, post-mortem was conducted.

10. The observations in the post-mortem become the

bedrock for consideration of the present case. The projection is

that the deceased died by hanging herself. The final opinion

given by the Department of Forensic Medicine in the post-

mortem report is that the 'death was due to asphyxia' as a

result of hanging. The Forensic report is rendered on

11.02.2017. In the light of the final opinion being 'asphyxia' it is

necessary to notice the post-mortem report itself. The post-

mortem report narrates that the 'Thyroid cartilage and Hyoid

bone are intact'. Neck tissues underlying the ligature mark are

dry, white and glistening. If the death had occurred due to

hanging Thyroid cartilage is the first to break. That being intact

it would prima facie indicate that the death was not due to

hanging. The detailed description of injury reads as follows:

"Thyroid cartilage and Hyoid bone are intact.

... ... ...

- Antemortem ligature mark.

- Contusions are blue in colour, antemortem in nature, caused due to blunt force impact and the age of contusions is about few hours to three days at the time of death."

The Investigating Officer ought to have noticed the fact that the

thyroid cartilage and Hyoid bone were intact at the time when

the post mortem of the deceased was carried out. In cases

where the Hyoid bone would be intact it would sometimes

become homicidal and not suicidal. The difference between

hanging and strangulation depends on the aforesaid medical

condition as observed in the post mortem report. The difference

between hanging and strangulation is delineated by the

celebrated author P.Modi in the text book of medicine which is

referred to by the Apex Court in plethora of cases. The

difference indicated in the said book is as follows:

"Differences between Hanging and Strangulation. - The differences between hanging and strangulation are given below in a tabulated form:-

            Hanging                         Strangulation
  1. Mostly suicidal.                1. Mostly homicidal.

  2. Ligature    mark,    oblique,   2. Ligature mark, horizontal or
     noncontinuous, placed high         transverse, continuous, low
     up in the neck between the         down in the neck below the
     chin and the larynx,      the      thyroid, the base of the
     base of the groove or furrow       groove or furrow being soft
     being hard, yellow and             and reddish.
     parchment- like.




  3. Abrasions and ecchymoses        3. Abrasions and ecchymoses
     round about the edges of the       round about the edges of the
     ligature mark, rare.               ligature mark, common.

  4. Subcutaneous tissues under      4. Subcutaneous tissues under
     the mark, white, hard, and         the mark, ecchymosed.
     glistening.

  5. Injury to the muscles of the    5. Injury to the muscles of the
     neck, rare.                        neck, common.

  6. Carotid arteries, internal      6. Carotid arteries, internal
     coats ruptured in violent          coats ordinarily ruptured.
     cases of a long drop.

  7. Fracture of the larynx and      7. Fracture of the larynx and
     trachea, very rare and that        trachea, often found.
     too in judicial hanging.

  8. Fracture-dislocation of the     8. Fracture-dislocation of     the
     cervical vertebrae, common         cervical vertebrae, rare.
     in judicial hanging.

  9. Scratches, abrasions and        9. Scratches, abrasions and
     bruises on the face, neck          bruises on the face, neck
     and other parts of the body,       and other parts of the body,
     usually not present.               usually present.

  10.     Face, usually     pale     10.     Face, congested, livid
     and no petechiae.                  and marked with petechiae.

  11.      Neck, stretched and       11.       Neck, not so."
     elongated in fresh bodies.

Therefore, it was necessary for the investigation to be carried out

on the premise of the report of the post mortem and not closing

it down in a particular manner relying on the final opinion.

11. Investigation conducted would further reveal that

statements of doctors at V Care Hospital or Jain Hospital are not

even taken by the Police. The narration of events is that the

deceased was first taken to V Care Hospital and then she was

advised to go to Jain Hospital. If this was the sequence of events,

the Police ought to have recorded the statements of doctors as to

whether the deceased was alive at the time when she was taken

either to V Care Hospital or Jain Hospital. It is surprising to note

as to why dying declaration of the deceased was not recorded. It

is also seen that the deceased died at 4.40 p.m. at Jain Hospital.

Therefore, the deceased was presumed to be alive when she was

taken to V Care Hospital or when she entered Jain Hospital. The

statements of doctors are not forthcoming.

12. The Police have visited the place of the incident two

days after the incident despite being aware of the incident and

the complaint being lodged on the same day. The Police visited

the spot on 25.08.2016 and not immediately on 23.8.2016. No

witness who was present at the scene has seen the deceased

hanging herself to death. Two witnesses have deposed stating

that the deceased was lying on the floor with the saree tied to

the fan. The Police without conclusive investigation have

followed the final opinion of the forensic lab that the death has

occurred due to asphyxia as a result of hanging without

conducting proper investigation.

13. A friend of the deceased Mr. Karan Kashyap with

whom the deceased had done the last chat has also deposed that

the deceased was stating that her husband tried to kill her three

times by pressing her neck. The print out of the chat was

handed over to the Investigating Officer by Mr. Karan. This is

neither considered nor reflected in the final report, though the

document is found in the list of documents. Mr. Karan Kashyap

has also sworn to an affidavit about the fact as narrated

hereinabove which is not even taken into consideration while

conducting investigation. A request also appears to have been

made to consider the evidence, the same is also not considered.

A letter dated 24.10.2016 is sent by the petitioner and is

appended to the writ petition. The document communicated to

the investigating officer by the petitioner reads as follows:

"Document send by: Shri Bhaskarrao Shankarrao Nimbalkar R/o:174, Raubandha Bhilai, Dist: Durg.

Res/Sir,

That the applicant's daughter has been murdered by the accused persons and Hebbal P.S. has registered an offence wide crime No.177/2016.

That one of the main witness Karan Kashyap to whom the deceased has massage in facebook chatting on 20th August 2016 that the accused has attempt to murder three times same day, and he has given his statement on affidavit and I am sending the said copy to you to file in the Court, further accused is threatening to the informant for not to proceed further and the complaint is filed by informant to Bhilai Police Station and copy of the same is also sent along with this letter to file in the court.

It is important to mention that informant meet personally to the president of the society, who disclosed that no one has seen the body in hanging position and when he has seen the body of deceased that was chilled and the room was completely filled with water and body was wet, hence there is possibility that accused may keep the body in ice to keep the body fresh, further main servant disclosed a fact that they have not taken any effort to break open the door and same was opened only by pushing the door and she has not seen the body in hanging position and total conversation has been recorded by the informant but unfortunately brother-in-law of the informant meet with an accident and same contents are in his mobile, hence the same will sent to you later for further investigation.

Kindly receive and acknowledge the documents."

(Emphasis added)

The afore-extracted document has not even been taken into

consideration by the Investigating Officer.

14. In the teeth of the entire aforesaid facts the

investigation ought to have been conducted in its proper

perspective. Therefore, in the light of the judgments of the Apex

Court as afore-extracted and the facts with regard to the dearth

in the investigation, I deem it appropriate to direct further

investigation to be conducted in the case at hand and a

supplementary report to be placed before the Criminal Court

hearing the matter.

15. For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) The prayer with regard to entrustment of investigation to Central Bureau of Investigation or

Criminal Investigation Department stands rejected.

(iii) The 2nd respondent is directed to conduct further investigation into the matter in Crime No.177 of 2016, bearing in mind the observations made in the course of this order.

(iv) Pursuant to such further investigation, the police shall file a supplementary report/charge sheet before the competent Criminal Court, which Court shall take into consideration the supplementary report submitted by the police while holding trial against the accused.

(iv) The further investigation, as directed, shall be conducted and concluded within three months from the date of receipt of a copy of this order and a report thereon shall be filed within one month on conclusion of the three months period.

Sd/-

JUDGE

bkp CT:MJ