R. BALAN Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) THE son of the petitioner's brother Kochukunju namely, Ratheesh was found missing on 13.6.2010. He was then aged 20 years. Later, his corpse was found on 16.6.2010 morning in an open pit for septic tank that was nearing completion of its construction in the residential premises of his neighbour Mr. Kalliyikkara Haneefa. According to the petitioner, on 15.6.2010 Kochukunju lodged Ext. P1 complaint with the 4th respondent regarding the missing of his son Ratheesh from 13.6.2010, but no action was taken thereon and no case was registered pursuant to its receipt. However, Ext. P2 F.I.R. would suggest that it was based on the First Information Statement given by one Ayyappan that Ext. P2 F.I.R. was registered. An inquest report was prepared on 16.6.2010 and then the body was taken to the hospital for postmortem. Ext. P4 is the postmortem certificate. No opinion as to the cause of death was recorded in Ext. P4 postmortem certificate and in the column for opinion as to the cause of death it was entered "Reserved pending the Results of chemical Examination". One Sunny @ John Philip who is a witness to the inquest stated that in the night of 13.6.2010 at about 9.30 he heard a cry from the house of Haneefa and when he reached the road he had seen a person running through the courtyard on the eastern side of the house of Haneefa towards south. It is further stated that when he enquired about it he was informed that the deceased Ratheesh was seen hiding in the bathroom of the house of Haneefa when Haneefa's wife went to the bathroom to bathe and thereupon she made a hue and cry and then Ratheesh fled from there after pushing her down. He along with some others searched for Ratheesh but, in vain and according to him, later he came to know from Ratheesh's kinsfolk about his absentment. Though the wife of Haneefa had a case that Ratheesh criminally trespassed into their property and lurked in the bathroom no complaint was lodged in respect of the said incident and no crime was also registered, it is contended by the petitioner. According to the petitioner, his brother Kochukunju told him that on 13.6.2010 at about 11 p.m. the 4th respondent, the Sub Inspector of Police and his party accompanied by one Subair, the owner of "MPS cloth shop", came to his house in search of Ratheesh and the S.I. took away photographs of Ratheesh as also a note book besides directing him to produce Ratheesh in the Police Station on the next day. According to the petitioner, there was undue hasty attempt to complete the construction of the septic tank in question since the lodging of the complaint on 15.6.2010 and his brother, Kochukunju too, noticed some preparations to cover up the septic tank in a hasty manner despite non -completion of its construction and the information passed on to the police in that regard was ignored. It is on the next day viz., on 16.6.2010 that the corpse of Ratheesh was found in the pit dug for constructing septic tank at 6.30 a.m. The petitioner, his brother Kochukunju and others in the family got strong suspicion regarding the cause of death of Ratheesh and according to them he was murdered. It is their belief that Ratheesh's murder took place elsewhere and his body was then brought and placed in the aforesaid pit during the late hours on 15.6.2010. The contention and grievance is that the investigation in the case is not moving in the right direction and there is an attempt on the part of the investigating officers to save the real culprits. Though the names of certain suspected persons such as Subair, Sunny, Haneefa and his wife Raziya who had lastly seen Ratheesh, were intimated to the police no proper investigation was made and they were not interrogated. Though body of Ratheesh who was missing from 13.6.2014 was found on 16.6.2014 hitherto the culprits were not identified and arrested solely because of the lackadaisical attitude on the part of the investigating officers. It is in the circumstances and with the aforesaid allegations that this writ petition has been filed mainly with the prayer to issue a writ of mandamus commanding the first respondent to appoint a special team of efficient police officers to investigate into the cause of death of Ratheesh and to book the accused without further delay.

(2.) A statement has been filed for and on behalf of the third respondent, the District Police Chief, Kollam. In paragraph 2 therein it is stated that on 13.6.2010 at about 9.30 p.m. the deceased was found, in a suspicious circumstance viz., lurking in the bath room of one Muhammed Haneefa, Shams Vilasom Veedu, Kannimeltheri at Pattazhy and he took to his heels when Smt. Raziya Beevi, the wife of Muhammed Haneefa, saw him and made a hue and cry when she went there to bathe. After three days from the incident that is, on 16.6.2010 the body of Ratheesh was found in a pit filled with water, dug for the construction of a septic tank in Haneefa's premises. It is stated therein that in this regard Crime No. 595 of 2010 under Section 174 Cr.P.C. was registered at Kunnikode Police Station on 16.6.2010 at 10.15 hours based on a statement given by one Raghavan, the petitioner's father and thereafter investigation was conducted by Sri. M.G. Vinod who was the then S.I. of Police, Kunnikode Police Station. It is further stated in paragraph 4 of the statement that on 14.6.2010 at 18.30 hours Crime No. 586 of 2010 under Section 511 of 380 of the Indian Penal Code was registered at Kunnikode Police Station based on the statement of Muhammed Haneefa against Ratheesh, the deceased for trespassing and lurking in the bathroom. It is also stated therein that after conducting investigation, abate charge was submitted before the court on 21.6.2010. The statements in paragraph 5 assume relevance for the purpose of the case. It is stated therein that on 15.9.2010 Sri. B. Vinod, the then Sub Inspector of Police, Punalur took over the investigation pursuant to an order issued by proceedings No. 2071/GL/PSD/2010 dated 6.9.2010 of Deputy Superintendent of Police, Punalur. Later, a memo vide No. 09/GL/Memo/ 2010/E dated 16.6.2010 was given to the initial Investigating Officer for the serious lapses on his part by not conducting proper search in the pit and not registering the case in time. The explanation submitted by the investigating officer was not satisfactory and later, the Deputy Superintendent of Police, Kollam instructed to submit a special report in respect of the lapses in the investigation conducted by Sri. M.G. Vinod. A special report was submitted on 8.8.2010 against Sri. M.G. Vinod regarding his lethargic and irresponsible approach which actually led to certain agitations and demand to conduct a Crime Branch enquiry. It is also stated therein that a timely appropriate action and steps by Sri. M.G. Vinod could have avoided such unpleasant situations. Going by the statement, the Doctor who conducted autopsy on the body of Ratheesh from Medical College Hospital, Thiruvananthapuram was questioned and the Doctor gave the statement that opinion on the cause of death could be given only after the receipt of the result of chemical examination report as also the result of Diatom test. On 18.9.2011 another Sub Inspector of Police took over the investigation and he visited the scene of occurrence and questioned the witnesses. On 16.7.2012 the certificate of chemical analysis report was received from the Department of Forensic Medicine, Medical College Hospital, Thiruvananthapuram. Later, based on the postmortem findings and the results of chemical analysis the Professor and Head and Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram furnished the final postmortem report viz., Annexure R3(b). As per the same, the final opinion on the cause of death was given as hereunder: - -

(3.) I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader.