Radhamma vs The Director General Of Police
2023 Latest Caselaw 2445 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                        WP(CRL.) NO. 394 OF 2021
PETITIONER/S:

          RADHAMMA
          AGED 67 YEARS
          W/O.LATE VENUGOPAL, THAZHUVALLIL HOUSE, MUTTOM P.O.,
          HARIPAD, ALAPPUZHA.
          BY ADVS.
          S.SANAL KUMAR
          BHAVANA VELAYUDHAN
          T.J.SEEMA


RESPONDENT/S:

    1     THE DIRECTOR GENERAL OF POLICE
          POLICE HEAD QUARTERS, VAZHUTHACAUD, SHASTHAMANGALAM
          POST, NEAR VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.
    2     THE DEPUTY SUPERINTENDENT OF POLICE
          CBCID, ALAPPUZHA-688012.
    3     THE CENTRAL BUREAU OF INVESTIGATION
          REPRESENTED BY ITS DIRECTOR, PLOT NO.5-B, 10TH FLOOR,
          B-WING, CGO COMPLEX, NEW DELHI-110003.

          R2 & R3 BY MANU S., ASG OF INDIA


OTHER PRESENT:

          R1 BY ADV. C. S. HRITHWIK -SR PP


     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
28.11.2022, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING:
 WP(Crl) No.394 /2021                     2


                               JUDGMENT

The petitioner is the mother of one Aneesh

Venugopal, a Dental doctor by profession, who

was found dead in his Dental clinic. His body

was found hanging on 24.3.2019 in the morning in

a decomposed stage. The relief sought by the

petitioner in the Writ Petition is to direct the

1st respondent to hand over the investigation of

the said case to the Central Bureau of

Investigation from the present investigation

agency i.e. CBCID, Alappuzha.

2. The facts which led to the filing of

this Writ Petition are as follows:

As mentioned above, the petitioner's son was

a dental doctor conducting a dental clinic about

15 km. away from his residence. The petitioner's

son used to come home in the evening after

closing the dental clinic barring a few

occasions of overstaying at night. On

22.03.2019, he came to his home at Harippad and

returned to the dental clinic after lunch. In

the night, her son did not come back to the

residence and the petitioner and her husband

were under the belief that he might have decided

to overstay in his clinic as being done on some

occasions. Later, the next day, he did not turn

up for lunch as well. Even then, the petitioner

and her husband were under the belief that he

must be busy in his clinic as, by that time, her

son had acquired a good practice. However, when

the son of the petitioner did not turn up even

by 9 p.m., they became frantic. Even though

repeated calls were made to his mobile phone,

there was no response. Therefore, on the next

day, i.e. on 24.03.2019, the petitioner's

husband went in search of his son to the dental

clinic at Vandikappally, Muthukulam. Upon

reaching, he saw that the shutters leading to

the dental clinic were slightly open. Therefore,

the petitioner's husband went to the nearby

mobile shop which was being run by a friend of

his son, named Aneesh. Being informed, the said

Aneesh, along with his friends, went in search

of the deceased Aneesh Venugopal. As part of the

same, they lifted the shutter of the dental

clinic and found that the glass door of the

clinic was locked from inside. Therefore, they

forcibly opened the glass door and went inside

to find that the body of the said Aneesh was

hanging on a PVC pipe fitted on the roof inside

the clinic.

3. Immediately, the matter was informed to

the local police and in connection with the

same, Crime No.364/2019 was registered by the

Kanakakkunnu Police Station under Section 174 of

the Cr.PC. Exhibit P1 is the F.I.R. After that,

the body was taken from the scene of occurrence

for a postmortem on 25.03.2019.

4. While the investigation was being

conducted by the Sub Inspector of Police,

Kanakakkunnu, the husband of the petitioner,

approached this Court by filing

WP(C)No.13487/2019, highlighting that the

investigation by the local police was not

satisfactory. According to him, the death of the

deceased could be a case of homicide as there

was no reason for his son to commit suicide. He

also highlighted certain aspects which would

throw some suspicion with regard to the cause of

death and indicate the possibility of a

homicide. A statement was submitted on behalf of

the investigating officer in the said Writ

Petition and the Writ Petition was ultimately

disposed of as per Exhibit P4 judgment passed by

this Court, as per which the direction was

issued to hand over the investigation to Crime

Branch.

5. On the basis of the same, the Crime

Branch took over the investigation. In the

meantime, the husband of the petitioner passed

away. According to the petitioner, the

investigation now being conducted by the Crime

Branch is not at all satisfactory and apart from

visiting the residential house of the petitioner

to take down her statement, nothing so far has

happened as part of the investigation. This Writ

Petition was submitted in such circumstances

seeking a direction to hand over the

investigation to the Central Bureau of

Investigation.

6. In response to the averments in the Writ

Petition, the Detective Inspector, Crime Branch,

Alappuzha, submitted a detailed statement of

facts. The allegation that he was conducting no

proper investigation is denied. In the said

statement, they have clearly averred that the

Crime Branch had taken over the investigation on

5.3.2020, and since lock-down was declared by

the Government of Kerala at the relevant time,

the investigation could not be conducted by

visiting and seeing more witnesses at the place

of occurrence immediately after that. However,

when the restrictions of the lockdown were

relaxed, they started an effective

investigation, and as part of the same, more

than 70 witnesses have been examined as of now.

The samples collected during the course of the

investigation were sent to the Regional Forensic

Science Laboratory. The apprehension and

allegations raised by the father of the deceased

in various complaints filed by him and also in

the Writ Petition submitted were specifically

taken into consideration and all the

possibilities of the incident being homicide

were also thoroughly examined. After conducting

all such investigations, so far, the impression

they could gather is that the case is that of a

suicide and not of homicide. However, the

investigation is now being conducted and

immediately the same will be completed and a

final report in this regard shall be submitted.

7. Heard Sri.S.Sanal Kumar, the learned

counsel for the petitioner, Sri.C.S.Hrithwik,

the learned Public Prosecutor for respondents 1

and 2 and Sri. Manu S., Assistant Solicitor

General of India appears for the 3rd respondent.

8. The learned counsel for the petitioner

reiterated the averments in the Writ Petition.

He specifically contends that, several aspects

are in existence which lead to a clear suspicion

that it is a case of homicide. According to him,

the body was found in a room where the food

items were found scattered. At the time when the

body was found, two table fans were in working

condition, and one of them was found fallen,

which according to him, indicates a scuffle. The

shutter of the Dental clinic was found to be

slightly open. The legs of the deceased were

found touching the ground and the PVC pipe on

which the body was found hanging was not capable

of bearing the weight of the deceased. The

washed clothes but still wet dress of the

deceased was found in the room. The body was

found in a condition where one of the earphones

was found attached to one of the ears, and the

other earphone was found hanging from the other

ear.

9. On the other hand, the learned

Government Pleader reiterated the averments made

by the Investigating Officer in the statement

produced and submitted that a proper

investigation is being conducted, and so far, no

materials could be collected by the

Investigation team consistent with the

allegation of homicide.

10. The learned counsel appearing for the

3rd respondent-Central Bureau of Investigation

contented that the prayer sought by the

petitioner is not sustainable. It is pointed

out that, this is not a case which warrants an

investigation by the Central Bureau of

Investigation and from the records, it is seen

that the Crime Branch is conducting a proper

investigation. It is also pointed out that, at

present, the Central Bureau of Investigation

does not have the manpower to take up the

investigation of this case and in the event the

same being entrusted with the C.B.I., it would

cause serious prejudice to C.B.I. mainly when

the facts of this case do not contain any

necessity indicating an investigation by the

C.B.I.

11. I have gone through the materials on

record and heard the contentions raised by the

respective counsels appearing for the parties.

12. The learned Public Prosecutor also made

available the case diary and I have thoroughly

examined the contents of the same.

13. One of the crucial contentions raised

by the petitioner in her Writ Petition, which

was reiterated during the course of the

argument, was the suspicious circumstances under

which the body was found. According to the

petitioner, the main reasons leading to an

inference of homicide are that the deceased's

body was found naked at the time and the legs

were found touching the ground. It was also

pointed out that, the blood was seen on the

ground just below the body and according to the

petitioner, this would indicate a case of

homicide.

14. I have examined the documents and the

findings arrived at by the Investigating team

with the assistance of medical experts as well

as forensic experts. When considering the

postmortem report, it is seen that, the finding

as to the cause of death is that it is

consistent with the possibility of death by

hanging. No external or internal antemortem or

postmortem injuries were noticed on the body. As

per the finding in the postmortem report the

presence of any poison also could not be

detected in the blood. It is seen from the case

diary that, after the Crime Branch had taken

over the investigation, the place of occurrence

was thoroughly examined by the forensic team and

as part of the same, an inspection was conducted

by Dr. Anoop K. Thankappan, Assistant Professor,

Department of Forensic Medicine, Government T.D.

Medical College, Alappuzha and Smt. Susan

Antony, Assistant Director, Regional Forensic

Science Laboratory, Kochi. The aforesaid

inspection was conducted jointly by the said

persons along with the investigating officer on

14.7.2021. They have examined the place of

occurrence along with the help of other

documents, including the photographs and medical

reports made available by the investigating

team.

15. As mentioned above, one of the reasons

highlighted by the petitioner as a suspicious

circumstance is the blood found on the ground

just below the body of the deceased. After

examining the materials, the experts arrived at

a specific conclusion in this regard. According

to them, the same was not, in fact, the blood

but was blood-stained fluid which came out of

the body naturally as part of the decomposition

process. With regard to the suspicion in respect

of the fact that the legs of the deceased were

found touching the ground, it was explained that

the dead body was hanging from the pipe, which

was 212 cm above the floor and 107 cm below the

sealing. It was a case of partial atypical

hanging; hence, the lower limbs were seen

touching the floor, and both knees were

partially flexed. There also, the experts came

to a definite finding that the said aspect would

not indicate that it is a case of homicide.

16. The forensic team on 14.7.2021 examined

the load-bearing capacity of the pipe on which

the body was found hanging. As part of the same,

they hanged 78 kgs soil bags at the same point

of suspension and it was proven beyond doubt

that the PVC pipe could hold such a weight

during the scene examination. Therefore, that

possibility was also specifically ruled out by

the forensic team. The statements/reports of Dr.

Anoop K.Thankappan and Smt.Susan Antony is found

on pages 153 and 173, respectively, of the case

diary (Vol-3) made available to me.

17. In addition to the above, I have also

examined the inquest report, which was available

in the case diary maintained by the local

police. From the inquest report, it is evident

that a lungy was found on the ground just below

the body was found hanging. Apparently, that

explains why the body was found naked at the

relevant time. It is evident from the records

that the body was found after about 40 hours of

the death and was in a swollen condition due to

decomposition. Therefore, in all probability,

the lungy worn by the deceased might have fallen

down by passage of time.

18. The other grounds raised by the

petitioner as suspicious circumstances are also

seen clearly examined by the investigating

officer, and a specific investigation is seen

conducted in that regard. On perusal of the case

diary, it is seen that the Investigating Officer

explained the existence of washed wet clothes by

stating that, on 22.03.2019 at 10.30 p.m., the

previous day, the deceased was found entering

the clinic along with food which he had

purchased. Therefore, it is evident that the

deceased wanted to stay inside the clinic, and

he must have washed the clothes and kept the

same for drying them. With regard to the food,

the article was found scattered on the table, it

is explained that it was the remaining food

which he was found carrying while entering the

clinic by 10.30 p.m. on the previous day, and

according to the investigating officer, it is

not an indication of any scuffle. Another point

highlighted by the petitioner was that the

shutter of the dental clinic was slightly open.

However, the said fact by itself would not

establish that it was a case of homicide.

Moreover, it is revealed from the statements of

various persons who were residing/conducting

business in the vicinity of the dental clinic

that the deceased used to stay in his clinic for

several days occasionally.

19. Another contention raised by the

learned counsel for the petitioner is that when

the body was found, the earphone was found

attached to one of the ears, and the other was

found hanging. This aspect was also seen

investigated by the Investigating officer. It is

seen that all the call data records of the phone

numbers used by the petitioners were thoroughly

examined, and regular contacts were identified.

All the said persons with whom the deceased had

connections through the phone were contacted. It

is seen that on 22.3.2019 from the mobile phone

number 7012736366 used by the deceased, a call

is seen made at 23.47 hours which lasted for

3810 seconds. In the police case diary, even

though it is stated that, the investigation

officer contacted the persons with whom the

petitioner was talking, much details are not

there. However, as the investigation is even now

in progress, some measures ought to be taken by

the investigation officer in this direction.

However, merely because of that reason, I do not

find it necessary to entrust the investigation

with the CBI.

20. Similarly, the possibility of any

assault being made on the deceased by any third

person to commit robbery was also considered.

One of the reasons highlighted by the petitioner

was that the deceased used to wear some gold

ornaments, but apart from one 'elass', no other

ornaments were found on the body at the relevant

time. However, the investigation revealed that

on various dates, such as 23.10.2018, 12.2.2019

and 14.2.2019, the deceased himself pledged the

said ornaments with M/s.Mini Muthoot Finance

in its Karthikappally branch and obtained

amounts of Rs.26,500/-, 17,400/- and 18,000/-

respectively. Later, after the death of the

deceased, the parents have already collected the

said ornaments after paying the amounts to the

said Company. Therefore, they have ruled out the

possibility of any robbery being committed. It

is also highlighted in this regard by the

investigating officer that in the postmortem

report also, there is absolutely no mention of

any antemortem injury on the body, which could

be a direct or indirect cause of death. It is

also discernible from the case diary that call

data records indicate the tower location of the

deceased on the previous day as the place of

occurrence. There is no other evidence showing

the entry of any third person at the clinic at

the relevant time. Thus, after taking into

account all the aforesaid aspects, the

Investigating Officer has arrived at a

prima facie conclusion to the effect that the

incident, which is the subject matter of this

case, is not a case of homicide, but it is a

suicide. The reason which prompted the deceased

to commit such suicide is not clearly revealed

from the examinations so far conducted. But,

there are some indications that he was having

some relationship with some persons and

financial transactions with them. The call data

records would indicate regular contacts of the

deceased with such persons and some of the phone

conversations extended for long hours. Even

though investigation with regard to the persons

was seen thoroughly conducted, no materials are

revealed indicating any culpability on the part

of such persons.

21. Apart from the above, the learned

counsel for the petitioner vehemently contended

that, as per the post mortem report,Pharynx and

upper part of the oesophagus contained pieces of

sliced onion. In the stomach also a hand ful

pieces of sliced onion, curry leaves and other

unidentifiable food particles were found. By

placing reliance on existence of food particles

on Pharynx, it was contended by the learned

counsel for the petitioner that, the same would

indicate the possibility of a sudden attack on

the victim and a homicide by choking, while he

was consuming food. However, on perusal of the

case diary, I could not find any materials

indicating any possibility of the same. As

mentioned above, there are no external/internal

injuries on the body suggestive of occurrence of

any scuffle inside the clinic. As per the police

report, when Sri. Aneesh, who had seen the body

of the victim at first, reached the dental

clinic in search of the deceased, he found the

clinic locked from inside and he forcibly opened

the same to find the dead body. Therefore the

chances of entry of any other person to the

clinic at the relevant time, is highly

improbable. Further, the petitioner pointed out

that, one the two table fans was found fallen

on the ground and it indicates a scuffle.

However, from the case diary it is evident that,

one of persons who first entered the room where

the deceased was found hanging, had stated that,

when they entered the room, to find the body,

one of the table fans had fallen down when one

of them hit on it accidentally. I do not find

any reason to disbelieve the same. Therefore, in

my view, the above aspect cannot be given much

emphasis to arrive at the conclusion that a

proper investigation in that direction had not

been conducted by the crime branch. It is true

that the learned counsel for the petitioner,

raised a contention that the statement of the

said Aneesh the clinic was closed from inside is

suspicious, I do not find any materials to

accept the said contention.

22. Another contention raised by the

petitioner was regarding the ligature material

used. As per the records it was a synthetic rope

forming an interlacing net (hammock). It is

pointed out by the learned counsel for the

petitioner that, since the hammock is not an

article which can be ordinarily expected in a

dental clinic, it suggests the intervention of

third party and this is not being properly

investigated. However, I do not find any ground

to accept the said contention. Existence of such

material in the clinic cannot be simply ruled

out, unless there are materials suggesting that

a third party brought the same for the purpose

homicide. In the earlier paragraphs of this

judgment, I have already found that, the

possibility of a third party entering into

clinic at the relevant time is practically nil.

Moreover, Aneesh, who was the friend of the

victim stated that, one year ago, the victim

purchased a hammock. Therefore, I do not find

any sustainability in the contention of the

learned counsel for the petitioner in this

regard.

23. Thus, after going through the entire

materials placed before me, including the case

diary made available for perusal, I am of the

view that, the investigation so far conducted by

the Crime Branch is satisfactory. Almost all the

grounds cited by the petitioner and her husband

were seen thoroughly examined by resorting to

all possible methods. The scientific and medical

examinations conducted in connection with the

investigation through experts in this regard

also are consistent with the finding of suicide.

However, some attention is to be given to the

persons with whom the petitioner was talking

over phone, before his death, as revealed from

the call data records.

24. It is a well settled position of law

that the order of transfer of investigation to

the Central Bureau of Investigation can be

passed by the High Court, invoking the powers of

Article 227 of the Constitution of India only in

the rarest of rare cases. In State of West

Bengal v. Committee for Protection of Democratic

Rights [(2010) 3 SCC 571], it was observed by

the Hon'ble Supreme Court in the manner as

follows:

"70..........despite wide powers conferred by Articles

32 and 226 of the Constitution, while passing any order, the Courts must bear certain self-imposed limitations these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations, where the incident may have national and international ramifications, or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." (Emphasis supplied)

In K.V. Rajendran v. CBCID [(2013)12 SCC 480],

it was observed by the Hon'ble Supreme Court as

follows:

"17...the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased."

25. A Division Bench of this Court, in the

decision reported in State of Kerala v. Krishnan

and Others [2020 (5) KLT (SN 25) C.No.26], the

powers of this Court under Section 226 of the

Constitution of India in the matter of transfer

of investigation to Central Bureau of

Investigation was considered and held that such

power being extraordinary in nature, must be

exercised sparingly, cautiously and in

exceptional circumstances.

26. Thus, when considering the materials

that could be collected by the investigating

team as of now, in the light of the principles

laid down by the Hon'ble Supreme Court as well

as this Court in the decisions cited above, I am

of the view that no circumstances are in

existence in this case, warranting transfer of

investigation to the Central Bureau of

Investigation. The Crime Branch is conducting

the investigation satisfactorily; therefore, it

is only proper that they may be allowed to

continue the investigation to enable them to

complete the same as expeditiously as possible.

The change of investigation agency at this

juncture would not serve any fruitful purpose.

However, on perusal of the materials, it is

evident that, the reasons which prompted the

victim to commit suicide is not detected so far

and this has to be found out. While

investigating this aspect, every endeavour shall

be taken by the investigation officer, to find

out the same from the person/persons who had

talked to the victim over phone for

significantly longer duration, immediately

before the death of the victim. Therefore, even

while declining the relief sought for the

petitioner to entrust the investigation with the

CBI, a direction is hereby issued to the

investigation officer, to continue the

investigation effectively, to find out the

reason for the suicide, and in this regard,

specific investigation has to be continued by

questioning the persons with whom the deceased

last interacted, as revealed from the call data

records.

In such circumstances, this writ petition is

disposed of with the above direction.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk

APPENDIX OF WP(CRL.) 394/2021

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE FIRST INFORMATION REPORT WITH FIRST INFORMATION REPORT IN CRIME NO.364/2019 DATED 24.03.2019.

Exhibit P2 TRUE COPIES OF THE PHOTOGRAPHS OF THE HANGING POSTURE OF THE CORPSE.

Exhibit P3 TRUE COPY OF THE POSTMORTEM CERTIFICATE DATED 25.03.2019.

Exhibit P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 22.01.2020 IN WP(C)NO.13487 OF 2019.

Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN COC NO.542/2020 DATED 09.03.2020. Exhibit P6 A TRUE COPY OF THE STATEMENT DATED 15.06.2019 FILED BY SONY MATHEW, SUB INSPECTOR OF POLICE, KANAKAKUNNU POLICE STATION, IN WP(C)NO.13487/2019.