Kerala High Court

Ponnamma Thomas vs State Of Kerala on 15 February, 2022

W. A. No. 141 of 2022        -1-


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                      WA NO. 141 OF 2022
 AGAINST THE JUDGMENT IN WP(C) 19712/2020 OF HIGH COURT OF
                            KERALA
APPELLANT/S:

           PONNAMMA THOMAS
           AGED 60 YEARS
           W/O LATE GEORGE THOMAS,
           RESIDING AT VELIYATH HOUSE, VETTIPURAM,
           PATHANAMTHITTA.P.O,
           PATHANAMTHITTA, KERALA, INDIA, PIN-689645.
           BY ADV SADHANA KUMARI ESWARI
           SREESHMA B. CHANDRAN


RESPONDENT/S:

    1      STATE OF KERALA
           REPRESENTED BY HOME SECRETARY, GOVERNMENT
           SECRETARIAT, TRIVANDRUM,
           PIN-695001.
    2      UNION OF INDIA
           REPRESENTED BY SECRETARY,DEPARTMENT OF HOME
           AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI,PIN-
           110001.
    3      MINISTER OF EXTERNAL AFFAIRS,
           CENTRAL SECRETARIAT,SOUTH BLOCK, NEW DELHI,PIN-
           110001.
    4      THE CONSULATE OFFICER,
           INDIAN CONSULATE, EMBASSY OF INDIA, JUBA, PLOT
           NO.209-245, BLOCK 3K, JUBA NA BARI, JUBA(SOUTH
           SUDAN)[email protected]
    5      SUPERINTENDENT OF POLICE
           PATHANAMTHITTA, PIN-689645.
    6      CENTRAL BUREAU OF INVESTIGATION
           NEW DELHI, PIN-110003,REPRESENTED BY ITS
           SUPERINTENDENT OF POLICE.
 W. A. No. 141 of 2022              -2-


    7       CENTRAL BUREAU OF INVESTIGATION
            KADAVANTHRA, ERNAKULAM, PIN-682017, REPRESENTED
            BY ITS SUPERINTENDENT OF POLICE.
    8       THE DEPUTY SUPERINTENDENT OF POLICE
            TIRUVALLA POLICE STATION, TIRUVALLA, PIN-689113.
    9       LEENA ABRAHAM,
            KATTAPURATHU PATHINALIL, AZHIYIDATHUCHIRA.P.O,
            THIRUVALLA, PIN-689113.
   10       K.V.ABRAHAM,
            KATTAPURATHU PATHINALIL, AZHIYIDATHUCHIRA.P.O,
            THIRUVALLA, PIN-689113.
   11       THE DIRECTOR GENERAL OF POLICE
            PATTAM PALACE,KERALA STATE, TRIVANDRUM, PIN-
            695004.
   12       THE INSPECTOR OF POLICE
            PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA,
            PIN-689645.
            BY ADVS.
            ADDL.DIRECTOR GENERAL OF PROSECUTION
            MANU S., ASG OF INDIA


OTHER PRESENT:

            SRI. GRASHIOUS KURIAKOSE, ADGP
            SMT MINI GOPINATH CGC


     THIS    WRIT    APPEAL   HAVING      COME   UP    FOR    ADMISSION   ON
15.02.2022,    THE    COURT   ON    THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W. A. No. 141 of 2022             -3-




                          JUDGMENT

Shaji P. Chaly, J.

The appeal is preferred by the petitioner in W. P. (C) No. 19712

of 2020 challenging the judgment of the learned Single Judge dated

11.11.2021, by which the writ petition was dismissed declining the

relief sought for by the petitioner for a direction to respondent Nos. 2,

3 and 4 to conduct proper and necessary investigation in Sudan; and to

direct respondent No. 1 to handover investigation of the case to

respondent Nos. 6 and 7, the CBI, New Delhi and Kerala, to conduct

proper and necessary investigation.

2. Brief material facts for the disposal of the appeal are as

follows:-

3. The appellant is a widow. Her husband was working in

Sudan; while so, died of a heart attack. Her son Bipin Daniel Thomas

was employed in 'Star contracting oil and gas company Ltd', which

has its head office at Khartoum, Sudan.

4. On 08.01.2020, appellant received an information that her son

had committed suicide by hanging in Sudan. His body was taken to

India on 13.01.2020 and then buried in St. Stephens Orthodox

Cathedral cemetery, at Makkamkunnu, Pathanamthitta on 15.01.2020.

The petitioner has serious doubts about the cause of death of her son.

5. Firstly, he had absolutely no need to commit suicide and

under no circumstances he might have taken such an extreme step. He

had talked to her over phone even a few hours before the alleged

commission of suicide; that at that time he had talked in a very normal

way and offered to call her again after taking the dinner. He had also

told her that he plans to come back to Kerala and start a share trading

business after settling down in the State.

6. Secondly, it was alleged that he had committed suicide by

hanging on the hook of the door of the toilet. Referring to Ext.P5

photograph, which she had obtained from some of the colleagues of

the deceased, she said that the said door is neither big nor heavy, tall

or sturdy and the death on a hook fixed at the top of a creaky

bathroom door is a near impossibility. She has also complained that

the local Police at Sudan did not conduct a serious investigation into

the cause of the death and therefore she is of the view that he might

have been killed by somebody.

7. Appellant also highlights various contradictions with regard

to the height of the deceased noted in the documents. According to

her, there was no ligature mark on the neck, which should be normally

present on a person committing suicide by hanging. On the other

hand, there was a knife made line on the neck which is suspicious.

Moreover, his face around the nose was found dark when the body

was taken to India.

8. It is also contended that, though he was married only in 2018,

was not in cordial terms with the wife; in July 2018, when he was in

India, he fell ill and was admitted in Believers Church Hospital in

Thiruvalla. At that time he was attended by respondents 9 and 10, the

wife and her father. Even when he was suffering from fever, they

made him take bath in cold water and that ultimately caused severe

shivering and high temperature; on getting information about the

same, the appellant went there and that caused annoyance to the wife

and her parents. Thereafter, the 9 th respondent left the hospital and

never returned to the hospital. In other words, the husband and wife

were not in cordial terms.

9. Moreover, the deceased had three mobile phones and an ipad;

except one mobile phone, nothing was returned to her. To her

knowledge the remaining mobile phones and the ipad were handed

over to the 9th respondent which were never taken into custody and its

contents and call details are not examined by the Police. Deceased had

installed an application in the mobile phone of his wife / 9 th

respondent through which he could tap all the incoming and outgoing

calls of the wife and in one such call, he had told the mother that he

had heard that the wife wanted to get rid of the husband before May

2020, and this incident had happened in January 2020. But such an

instrument was not seized or examined by the Investigating Officer.

10. Appellant had given representations before the 5th

respondent and also before the State Police Chief but they did not

conduct a serious investigation into the allegations and thus she

insisted the investigation be handed over to the CBI, which alone will

bring out the truth behind the death of Bipin.

11. Moreover, on the basis of the representations given by

respondents 9 and 10, the 8th respondent Dy.S.P, Thiruvalla is

pressurizing the appellant to open the bank locker and to hand over

gold ornaments to the wife of the deceased, the 9 th respondent. In fact,

the police and politicians are acting hand in glove and they want to

give a premature closure to the investigation. Even though she had

made representations before respondents 2 to 4, they also are not

taking the matter in right seriousness and that made her to approach

this Court.

12. Inspector of Police, Pathanamthitta, the 12 th respondent has

filed a statement of facts in the writ petition, wherein it is submitted

that the petitioner submitted a petition before the District Police Chief,

Pathanamthitta about the death of her son which was forwarded to

Deputy Superintendent of Police, Pathanamthitta, who recorded the

statements, analyzed the call details and submitted a report before the

District Police Chief, Pathanamthitta, which was forwarded to

Pathanamthitta Police station for registering a case. As per the

instruction received from the District Police Chief, Pathanamthitta,

Crime. No. 2713/2020 U/s 174 Cr.P.C. is registered in Pathanamthitta

Police Station by the Inspector of Police, Pathanamthitta on

16.07.2020, and conducted the primary investigation.

13. It is submitted that the post mortem was already done at

Sudan and the post mortem certificate from the Republic of Sudan

indicates that the cause of death is Asphyxiation due to internal

airways destructions (suicidal act). In the death certificate issued by

the Republic of South Sudan, cause of death is entered as sudden

death. On perusing the documents submitted by the appellant, it is also

revealed that the Police of Malut County has investigated the matter as

Police case No. 6 u/s 53 code of Criminal Procedure Act, 2008 and

dismissed the case as suicide. Appellant had stated that all the

properties of the deceased were not handed over to the appellant.

Hence the details of mobile phones and i-pad are to be investigated.

14. It is further submitted that after the death of the petitioner's

son, respondents 9 and 10 submitted a petition before Deputy

Superintendent of Police, Thiruvalla for opening their bank locker

where the ornaments were kept. But the petitioner did not cooperate

with them. On the basis of the matter, the 8 th respondent, Dy.S.P.

Thiruvalla deliberated the matter with the appellant, and summoned

the appellant for disposing of the petition. No threat or harassment

occurred from the part of the 8th respondent. The call details of

respondents 9 and 10 are also verified. But no evidence was obtained

to connect them with the incident.

15. It is also submitted that as the place of occurrence is abroad,

there exists some difficulty in investigation, but the investigation is

continuing. As to find out the actual facts behind the death, it is most

necessary to conduct the exhumation and re-post mortem of the buried

body. Hence the matter was discussed with the Professor of Forensic

Medicine, MCH, Kottayam and a re-autopsy was recommended by the

Forensic Professor. The District Magistrate authorized the Revenue

Divisional Officer, Adoor for exhumation and inquest vide order No.

DCPTA 2696/20. A letter was sent to the church authorities to take

necessary steps for exhumation and the Church authorities produced a

no objection letter. The exhumation date was scheduled on

05.11.2020. But as the petitioner obtained an order from this Court,

the exhumation was yet not conducted.

16. As per the direction of this Court, learned Public Prosecutor

has filed a statement, which is in tune with the statement filed by the

Inspector of Police, Pathanamthitta.

17. By order dated 30.11.2020, this Court directed to conduct a

re-post mortem on the body of the deceased. It was also directed that

the same shall be done by an expert team of Doctors and the procedure

shall be videographed.

18. Inspector of Police, Pathanamthitta in his statement dated

25.03.2021 submitted that the body of deceased was exhumed from

the vault of the Church cemetery in the presence of the Revenue

Divisional Officer, Adoor and prepared an inquest report in the

presence of relatives of the deceased and the church authorities. The

post mortem examination was conducted by an expert team of

Doctors, HOD & Police surgeon and Assistant Professor & Assistant

Police Surgeon at the premises of the cemetery. Findings in the post

mortem certificate are consistent with history of death due to hanging

and there was no evidence of violence in the body of the deceased.

19. Appellant has filed an objection declining the contentions of

the Inspector of Police, Pathanamthitta, and basically contended that

the statement filed by the Inspector of Police, Pathanamthitta, is not

based on a proper re-post mortem conducted by the experts and sought

for dismissal of the re-post mortem report.

20. A statement dated 30.10.2020 has been filed by the Central

Government Counsel on behalf of respondents 2 to 4 wherein it is

submitted that the Embassy of India, Juba (South Sudan) received an

email on 09.01.2020 informing about the death of appellant's son

along with passport copy of the deceased, Health Incident Report

along with photo of the deceased body lying on the floor, request letter

addressed to Ambassador from the appellant for post mortem and

release of the body for transportation to India, authorization letter

from the appellant for transportation of mortal remains and the Death

Certificate issued by the Ministry of Health, Republic of Sudan.

21. It is submitted that there was no information from the family

to the Embassy regarding the death. Above papers were sent by e-mail

by the authorized person of the family and an Administrative officer of

Star Contracting Oil and Gas Company Ltd. to seek NOC from the

Embassy to transport the mortal remains on 09.01.2020. They also

submitted Medical Forensic Report dated 08.01.2020 signed by the

Medical Officer, Juba Teaching Hospital certifying the cause of death

as Asphyxiation due to internal airways destructions (suicidal act).

22. On the Embassy's insistence for the family's written letter to

the Embassy for their wish for transportation of mortal remains with

or without autopsy, the wife of the deceased sent an email requesting

for handing over the body of her husband to the authorized person by

the family after completion of all legal formalities from South Sudan.

The Embassy thereafter issued the requisite papers to complete the

formalities for transportation of the mortal remains after necessary

investigation on 09.01.2021.

23. On completion of all formalities, the Embassy spoke to the

family members of the deceased before transporting the body through

the authorized person by the family. On their consent, the death

certificate and NOC were issued by the Embassy for embalming and

transportation of mortal remains of the deceased. The mortal remains

were transported to India on 10.01.2020. The family confirmed the

receipt of the body of the deceased on 13.01.2020. It is submitted that

the Embassy acted in accordance with the wishes of the family in

autopsy and transportation of mortal remains, as per prescribed

procedure and local laws.

24. The learned writ court after considering the rival

submissions and taking into account the pleadings contained in the

writ petition, and the statements filed by the respondents and the

documents on record, has dismissed the writ petition holding as

follows:-

"20. The entire case has been built up by the petitioner on mere suspicion. She says that respondents 9 and 10 and their henchmen might have caused the death of Bipin. But it is mere suspicion. On the basis of mere surmises and conjunctures a person cannot be proceeded against. The death had taken place in Sudan whereas the respondents 9 and 10 are in Thiruvananthapuram only. The police could not find any lead to say that they have any connection whatsoever with the men and matters in that country and has completely ruled out any role of respondents 9 and 10 in the death. All the materials point towards death by hanging. There is nothing to suggest that anyone had played role in the death or for abetting suicide. There must be credible legal evidence to proceed further. There is an ocean of difference between suspicion and proof. On the basis of mere suspicion the matter cannot be proceeded with. On these considerations, I do not find any valid reason to direct the CBI to take over the investigation and proceed with the matter.

21. There is also no convincing material to say that any harassment was caused to the petitioner by the 8 th respondent. Petitioner has not named any particular police officer or politician who had shown undue interest in the matter. It is submitted that police has no undue interest in the matter; when respondents 8 and 9 had given a petition facilitating them to open the locker, petitioner was summoned for disposing the petition. That is a natural procedure followed by the police. If she is not inclined, police cannot make her toe the line of the daughter-in- law and her father. Then the aggrieved will have to resort to other remedies known to law."

25. It is thus challenging the legality and correctness of the

judgment, the appeal is preferred.

26. The paramount contentions advanced by the appellant are

that the submission of the ADGP that he has absolutely no objection in

handing over the case to CBI, admitting that the State Police have

their own limitations, which can only be unraveled by the CBI, itself

shows that the investigation cannot be properly done by the local

Police; the re-postmortem report is only a preliminary report; the

cause of death stated in Ext. P1 death certificate is "sudden death" and

contrary to that, Ext. P4 death certificate states that the cause of death

is due to "asphyxiation - due to internal airway obstructing due to

hanging suicide" and without any supporting reason suicide is

asserted; no investigation is done and without investigation or looking

into supporting evidence, the Doctor comes to a conclusion that it is

suicide and not murder in the postmortem report; Ext. P8 postmortem

report from Sudan states that the body was 179 cms height when the

petitioner's son was only 165 cms tall; none of the bones or neck

bones of the deceased were broken or damaged is presumed even

without an X-ray being taken to assert a suicide; no proper

investigation has been conducted by the Police against respondents 9

and 10 with the death of the appellant's son and the mobile phone of

the 9th respondent containing spy ware installed by the appellant's son

was not even sent for proper technical analysis.

27. It is further contended that the learned Single Judge

erroneously found that the death is by hanging and that it is a suicide

without any evidence to corroborate suicide. The investigating agency

taking the clue has also shut down the investigation without taking

any steps to find the real person who killed the appellant's son and the

non-examination of the bones of the exhumed body clearly shows that

the callous indifferent investigation by the State Police is only an

eyewash.

28. It is further submitted that, though the learned Single Judge

concluded that there is delay in filing a complaint for investigating the

death of the appellant's son and that the complaint was filed because

the 9th respondent demanded for her gold ornaments, it is very much

clear that Ext. P13 complaint was filed on 02.07.2020 by the appellant

and it is only after 14 days that a crime was registered by the local

Police and in fact the complaint for return of gold was filed by the 9 th

respondent only as a counter blast to the appellant's complaint.

29. It is further contended that in the absence of the evidence

that the suicide was abetted by someone and that there is no further

scope for investigation, it is settled fact that every death should be

considered homicide till proved to be suicide.

30. It is also contended that the learned Single Judge failed to

note that no statements of respondents 9 and 10 were produced before

the Court and the writ court fully relied on the State counsel regarding

the statements saying that there was nothing suspicious in her call

details also when every call detail can be erased by anyone. The

learned Single Judge ought to have sent the phone to the lab to assure

that there were no calls leading to the death of appellant's son and

erroneously concluded that the entire case was built by the appellant

on mere suspicion.

31. We have heard Smt. Sadhana Kumari E., learned counsel for

the appellant, Sri. Grashious Kuriakose, learned Additional Director

General of Prosecution for the State, and its officials, and Smt. Mini

Gopinath, learned Central Government Counsel and perused the

pleadings and material on record.

32. The sole question that emerges for consideration is whether

any manner of interference is required to the judgment of the learned

Single Judge.

33. The facts involved in the writ petition are deliberated above

in detail and therefore we do not propose to discuss the same again.

34. The learned Single Judge has taken into consideration the

entire aspects involved in the matter and all the documents produced

by the petitioner along with the writ petition, right from the

registration of crime by the Police at Sudan and the consequential

documents including the post mortem report, and the re-post mortem

conducted in Kerala, on the basis of the directions issued by this Court

in a proceeding after exhuming the body.

35. It is contended by the appellant that there are certain

discrepancies in the descriptions made in the post mortem report in

respect of the height etc. of the deceased person, however that by itself

cannot be a ground to order a CBI investigation.

36. That apart, contentions are advanced by the appellant in the

writ petition pointing guilt towards respondents 9 and 10, who are

none other than the wife of the deceased and her father. Admittedly,

there are some disputes pending by and between the appellant and the

daughter-in-law, i.e. the wife of the deceased.

37. It was after assimilating the intrinsic factual aspects that the

learned Single Judge found that the case projected by the appellant is

built upon mere suspicion of the petitioner, which is unsupported by

any materials worth consideration.

38. It is also relevant and significant to note that even though

allegations are made against the wife of the deceased and her father,

who are residents of Thiruvananthapuram, the report of the Police

shows that on account of the complaint filed by the appellant,

thorough investigation was made by examining the mobile phones of

the wife and the father-in-law of the deceased through proper channel

and adopting scientific methods, however nothing worth suspicious

could be unearthed to point the finger against the wife and the father-

in-law of the deceased as is alleged in the writ petition.

39. It is also clear from the perusal of the documents and the

pleadings put forth by the petitioner that the Police has made

appropriate investigation into the complaint filed by the appellant,

however no sufficient material could be gathered to proceed further by

registering a crime against the wife and father-in-law or anyone else.

40. Learned Single Judge has also gone through authoritative

text books on medical toxicology and has arrived at the conclusion

that the mark pointed out by the petitioner as knife - made line is the

effect of the material used for hanging and consequential block to the

air passage. The findings rendered by the learned Single Judge in that

regard in paragraphs 12 and 13 are relevant in the context, which reads

thus:-

"12. The postmortem certificates issued both from Sudan and India suggest uniformly that it was a suicidal death. Secondly, there was no other injury or evidence of force having been used against Bipin suggestive of homicide. Thirdly, even though the petitioner said that there was a knife made line on the neck, none of the medical records indicate such a matter. She also said that there was discolouration on the face and nose etc., but the medical officers did not notice any such feature on the body. In the circumstances, in the absence of any material suggesting use of external force, it can not be assumed that he was killed by somebody.

13. It seems that the ligature mark noticed on the neck has been taken by the petitioner as the 'knife made line' on the neck. Medical records from Sudan indicate about 'asphyxiation'. According to Dr.P.C.Ignatius, 'asphyxia' is produced by

constriction of larynx and trachea by the ligature and by forcing up the root of tongue to the roof of mouth and jamming against the hard plate. A tension of 15kg is sufficient to block the 'air passage' (Forensic Medicine and Toxicology, 4th edition, page 232, by Dr.P.C. Ignatius). In Modi's Medical Jurisprudence and Toxicology, in similar cases, 'asphyxia is the most common cause of death. The ligature is usually situated above the thyroid cartilage, and the effect of its pressing the neck in that situation is to force up the epiglottis and the root of the tongue against the posterior wall of the pharynx. Hence, the floor of the mouth is jammed against its roof, and occludes the air passage, also the uvula and soft palate are pushed upwards and laryngeal opening is blocked by the depressed epiglottis. A tension of about 15kg is effective'."

41. One thing seriously to be borne in mind while considering a

case of this nature is that, unnecessarily, no third persons can be put to

difficulties and prejudices and therefore without adequate and material

circumstances leading to the allegations made, are substantiated, a writ

court is not expected to order investigation by CBI, on mere asking by

anyone.

42. We do not find any material to grant the reliefs sought for by

the appellant and we are also of the view that the learned Single Judge

was right in dismissing the writ petition.

Taking into account the above factual and other circumstances,

we have no hesitation to hold that the appellant has not made out any

case of jurisdictional error or other legal infirmities justifiable to be