Agasthyanath vs Principal Secretary
2022 Latest Caselaw 11777 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
 WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944
                        WP(CRL.) NO. 389 OF 2022
PETITIONER/S:

          AGASTHYANATH,
          AGED 70 YEARS
          SON OF SUBBAYYAN, SANTIYACASA, EDAKULANGARA, KARODE
          VILLAGE, KARODE P.O., THIRUVANANTHAPURAM, PIN 695506.
          BY ADVS.
          R.T.PRADEEP
          M.BINDUDAS
          K.C.HARISH


RESPONDENT/S:

    1     PRINCIPAL SECRETARY,
          DEPARTMENT OF HOME, SECRETARIAT, THIRUVANANTHAPURAM,
          PIN 695001.
    2     STATE POLICE CHIEF
          POLICE HEADQUARTERS, VAZHUTHACAUD P.O.,
          THIRUVANANTHAPURAM, PIN 695014
    3     DISTRICT POLICE CHIEF
          DISTRICT CRIME BRANCH, EANCHAKKAL P O.
          THIRUVANANTHAPURAM, PIN 695008
    4     C.B.C.I.D
          REPRESENTED BY ITS SUPERINTENDENT, OFFICE OF
          SUPERINTENDENT OF CBCID, PAZHAVANGADI,
          THIRUVANANTHAPURAM, PIN 695024
    5     CENTRAL BUREAU OF INVESTIGATION,
          REPRESENTED BY SUPERINTENDENT OF POLICE, SPECIAL
          BRANCH, CBI OCR COMPLEX PO, VALLAKADAVU ROAD,
          MUTTATHARA, THIRUVANANTHAPURAM, PIN 695008.
    6     STATION HOUSE OFFICER,
          VITHURA POLICE STATION, VITHURA P.O.,
          THIRUVANANTHAPURAM-695551.
    7     JOSE,
          AGED 50 YEARS
          VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
          THIRUVANANTHAPURAM-695125.
    8     SHIBU,
          AGED 48 YEARS
          VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
          THIRUVANANTHAPURAM-695125.
    9     ANEESH,
 WP(CRL) No.389 of 2022            2
             AGED 30 YEARS
             S/O. PUTHUVAL MANIYAN, VETTUVILAYIL, MAILACHAL,
             OTTASEKHARAMANGALAM P.O., THIRUVANANTHAPURAM-695125.
     10      JOY,
             VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
             THIRUVANANTHAPURAM-695125.
             BY ADVS.
             FOR R1 TO R4 AND R6 BY SHRI.SUDHEER GOPALAKRISHNAN,
             PUBLIC PROSECUTOR

             FOR R5 BY SRI.MANU S., ASGI

             FOR R7 TO R10 BY SRI. V.G.ARUN.


s




      THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
16.12.2022, THE COURT ON 21.12.2022 DELIVERED THE FOLLOWING:
 WP(CRL) No.389 of 2022                  3

                                O R D E R

This Writ Petition is filed by the defacto

complainant in Crime No.167/2022 of Vithura

Police Station, which is registered under

Sections 174 of the Code of Criminal Procedure

in respect of the premature death of his son.

Under suspicious circumstances.

2. The incident occurred on 5.2.2022 at

12.30 a.m. The deceased fell from the top of a

building while he was watering the concrete of a

two-storeyed building late at night on 5.2.2022.

The petitioner was informed of the matter by one

Suman Raj on 5.2.2022 in the early morning of 6

a.m., and it was conveyed to him that the

incident occurred when his son's legs slipped

while watering the building. While undergoing

treatment at Medical College hospital,

petitioner's son succumbed to the injuries on

11.02.2022. Regarding the said incident, Vithura

Police registered Crime No.167/2022 under

Section 174 of the Cr.PC and the investigation

is now in progress.

3. This Writ Petition is submitted by the

petitioner with a specific averment that the

investigation is not being conducted properly by

the 6th respondent. According to the petitioner,

his son's death could be a homicide at the hands

of respondents 7 to 10. It is also pointed out

that, right from the inception, the petitioner

was highlighting about role of the said

respondents and submitting complaints after

complaints, before the authorities concerned,

but no investigation was being conducted, this

Writ Petition is filed by the petitioner in such

circumstances seeking the following reliefs:

i. To issue a writ of mandamus or any other appropriate writ order or direction to respondents 1 to 3 and 6 to invoke offences under Indian Penal Code for criminal conspiracy, murder and destruction of evidence as against respondents 7 to 10 and to handover the investigation of the Crime to CBI, CBCID or Special Investigation Team headed by a police officer not below the rank of Deputy

Superintendent of Police with impeccable honesty and integrity so as to have a free and fair investigation in the matter and to complete the investigation within such time fixed by this Hon'ble Court.

ii. Such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice."

4. In response to the averments in the writ

petition, a statement has been filed by the 6th

respondent. In the said statement, various steps

which they have taken as part of the

investigation have been mentioned. It is stated

that the statement of several witnesses were

already recorded, and statements of more

witnesses are to be taken. It was also stated

that, the applications were filed to the cyber

cell to send the mobile tower dumps of the

alleged persons and to collect call data

records. The other inquiries are being carried

out as part of the investigation. It is further

stated that an effective investigation would be

conducted and a final report would be submitted.

5. Heard Sri. R.T.Pradeep, the learned

counsel for the petitioner, Sri. Sudheer

Gopalakrishnan, the learned Public Prosecutor

for respondents 1 to 4 and 6, Sri. Manu S., the

learned Additional Solicitor General of India

for the 5th respondent and Sri. V.G.Arun, the

learned counsel for respondents 7 to 10.

6. The learned counsel for the petitioner

raised various contentions pointing out the

discrepancies and omissions in conducting the

investigation by the Police. The learned counsel

also pointed out specific instances which can be

construed as suspicious circumstances indicating

the possibility of the case being a homicide.

The instances specifically referred to by the

learned counsel for the petitioner and also

averred explicitly in the Writ Petition are as

follows:

i) The ambulance driver who had taken the

deceased from the spot to the Medical College

Hospital stated that, he was called to the place

of occurrence on the information that a person

who suffered injuries in a motor cycle accident

had to be taken to hospital. According to the

said Ambulance driver, when he reached the spot

he found 4-5 persons indulged in a brawl

accusing and abusing each other. Immediately,

when the Ambulance driver reached the spot, they

stopped the verbal abuse and taken the person in

the ambulance to the hospital.

ii) Daughter, son-in-law and daughter-in-law

of the petitioner were the bystanders of the

deceased while he was undergoing treatment in

the hospital. According to the said bystanders,

when the deceased became conscious, he revealed

that he was cheated and was hit at his head

while coming in the bike and knocked down.

iii)According to the petitioner, the doctor

who treated the deceased repelled the

affirmation of causing injury to the deceased by

falling from a two-storeyed building as there is

no internal bleeding in the head and no fracture

at the neck and vertebrae.

iv) The petitioner also relies on the

description of injuries sustained to the

deceased, and according to him, the same is

suggestive of the possibility of an assault. To

substantiate the same, the petitioner relies on

the Ext.P5 opinion expressed by Dr.Rajaram, a

former Professor and Head of the Department of

Forensic Medicine and Toxicology, Government

Medical College, Thrissur, having more than 36

years of experience in the field. After

analysing the postmortem certificate and

injuries, it was observed by him as follows:

"Injury 1 was a sutured wound 9 cm long across midline 13 cm above root of nose. Perusal of the clinical photograph revealed that the placement was front to back & not across. The sutures could have been removed to see whether the wound was incised/lacerated.

The manner of production of the injury possible was possible during a fall; where the victim landed on is head; but taking into consideration of injuries 3,4,10 & 16 production of injury on the top of head was not possible during a fall. Usually when a person falls from a height he could land up on his head, buttocks, or feet. Fracture femur can

occur when a person lands up on his feet due to transmitted force. The injury on the top of head was resulted only by an assault. As said earlier I may say that examination of brain tissue was necessary to find out microscopic haemorrhages involving brain to arrive to the cause of death. It was also customary to incise the sole of foot to examine for calcaneal fracture & it was not seen done in this case. Injury number 2 was a contusion of moderate size over the back of head; difficult to be sustained during a fall because if he made his landing on his top of head. It also pointed towards assault."

v) The petitioner also contends that the

demeanour of respondents 7 to 10 after the

incident also creates suspicion. The mobile

phone of the deceased was handed over by the 9 th

accused after deleting the details and

formatting the same. Notably, 8th and 9th

respondents were the persons employed along with

the petitioner at the worksite. The bystanders

of the deceased had stated that, whenever the

deceased became conscious during the treatment,

he named respondents 7,8 and 9 as the persons

who assaulted him. The 8th and 9th respondents

were at the place of the incident at the

relevant time. The 8th respondent did not turn up

at the hospital. The 7th respondent was a

contractor of the said site, who engaged the

deceased for the work. The 8th respondent is the

brother-in-law of the 7th respondent, and the

petitioner alleges that the wife of the 8th

respondent was close to the deceased, which

probably resulted in the deceased's death.

7. From the above, it can be seen that the

petitioner in the Writ Petition specifically

highlighted certain instances which create some

suspicion as to the death of the deceased. Those

aspects are to some extent suggestive of the

case being one of homicide. Even though specific

instances as referred to above are mentioned in

the writ petition, the statement submitted by

the 6th respondent in response to the averments

are very vague. No details about the persons

whose statements were recorded by the

Investigating Officer are not seen mentioned.

None of the instances mentioned in the Writ

Petition are referred to in the said statement,

which would clearly indicate that no

investigation has been conducted so far to that

direction. The discrepancies highlighted by the

petitioner with the support of the expert

opinion of the Medical Professionals having

experience in the field also creates a suspicion

that this case is a homicide. However, no proper

explanation is forthcoming from the part of

Station House Officer for not conducting any

investigation in that direction.

8. After perusing the entire materials, I

am of the view that the vague nature of the

statements submitted by the 6th respondent is

very conspicuous in the facts and circumstances

of the case particularly in view of the fact

that, even in the inquest report, the close

relatives of the deceased have stated about the

suspicion in the death of the deceased. As

mentioned above, specific instances are

highlighted in the Writ Petition, which prima

facie creates a doubt in a prudent mind as to a

case of homicide.

9. Thus, after perusing the records, I am

of the view that the investigation now being

conducted is not proceeding in the correct

direction, and the same is to be entrusted with

more experienced persons. Therefore, I find that

the relief sought in the Writ Petition is to be

allowed.

In such circumstances, This Writ Petition is

disposed of directing the 2nd respondent to pass

appropriate orders to entrust the investigation

of Crime No.167/2022 of Vithura Police Station

to the 4th respondent, who shall take necessary

steps to conduct an investigation into the case

through an officer, not below the rank of Deputy

Superintend of Police. The 2nd respondent shall

pass appropriate orders in this regard within a

period of one month from the date of receipt of

a copy of this judgment, and an effective

investigation shall be conducted by taking note

of the points highlighted by the petitioner as

referred to above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk

APPENDIX OF WP(CRL.) 389/2022

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF E.I.R. DATED 11.2.2022 IN CRIME NO. 167/2022 OF VITHURA POLICE STATION BEFORE SUB DIVISIONAL MAGISTRATE, NEDUMANGAD Exhibit P2 TRUE COPY OF INQUEST REPORT DATED 12.2.2022 IN CRIME NO. 167/2022 OF VITHURA POLICE STATION.

Exhibit P3 TRUE COPY OF SCENE MAHAZAR DATED 12.2.2022 IN CRIME NO.167/2022 OF VITHURA POLICE STATION.

Exhibit P4 TRUE COPY OF POSTMORTEM CERTIFICATE DATED 12.2.2022.

Exhibit P5 TRUE COPY OF EXPERT OPINION TENDERED BY DR.

RAJARAM. N. DATED 16.3.2022.

Exhibit P6 TRUE COPY OF REPRESENTATION DATED 12.4.2022 BY PETITIONER BEFORE 2ND RESPONDENT