ATANU GHORAI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India praying for transfer of investigation of Kharagpur Police Station Case No. 252 of 2024 dtd. 23/3/2024, under Ss. 302, 120B and 34 of the Indian Penal Code and Kharagpur Police Station U.D. Case No. 23 of 2024 dtd. 23/3/2024 to the CBI, handing over the post mortem report conducted on 24/3/2024 and for preservation of the dead body for further post mortem by a Central Agency.

(2.) Learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner's brother was a post holder of the Bharatiya Janata Party. On 22/3/2024 he left his house and became missing. On 22/3/2024 his dead body was found on a field and an FIR was lodged on the same date. A post mortem examination was done on the next date. There were photographs and videos of the dead body which showed that there were injuries inflicted, possibly by electric shock and cigarette stubs. The hands of the victim were found tied. Although the cause of death was shown as drowning, the nearby water body was about 400 meters away from the field. The death could not have been caused there. A second post mortem report was required to be done. The second opinion given by the medical expert is a mere replica of the post mortem report. It did not deal with relevant issues. All of the attending conditions for a death by drowning, as per Modi's Treatise on Medical Jurisprudence, are not made out in the instant case.

(3.) Learned counsel appearing on behalf of the State denied the allegations made in the writ petition and submitted as follows. The deceased (petitioner's brother) was not to be found since 22/3/2024. The dead body was noticed on 23/3/2024 morning at around 9.30 am by the local people lying in a prone position on the agricultural land of one Harendra Nath Ghorai. On receipt of this information, the Officer-in-Charge, Kharagpur Local PS alongwith the CI, Khargapur Circle and SDPO, Kharagpur and other officers and force of Kharagpur (Local) PS reached the spot. On receipt of the written information from one Barun Manna, Kharagpur (Local) PS U/D Case No. 23 of 2024 dtd. 23/3/2024 was started. SI Manas Kumar Hait conducted inquest over the body of the deceased in the presence of local witnesses and family members of the deceased. Photography and videography of the same were done accordingly. Videography had been provided to the writ petitioner. Hands of deceased Santanu Ghoroi were not tied with towel. Rather, he was wearing a bermuda pant/half pant and a towel (Gamcha) was hanging around his neck. The two ends of his towel came close to the hands. Over the written complaint of one Atanu Ghoroi, Kharagpur Local PS Case No. 252 of 2024 dtd. 23/3/2024 under Ss. 302, 120B and 34 of the Indian Penal Code was started against 5 accused. The post mortem examination over the body of the deceased was held on 24/3/2024 under proper videography (video handed over to petitioner). Neither the petitioner nor any of his family members or any other person known to the deceased made any oral or written request to the police station for obtaining the post mortem report. Autopsy surgeons Dr. Sundarlal Hembram, Demonstrator and Dr. Priyaman Basu, Junior Resident both of Deptt. F.S.M., Midnapore Medical College and Hospital opined that "Death was due to the effects of drowning as noted above, ante mortem in nature. Further opinion, if any, can given after receipt of FSL report." Further Viscera and blood samples of the deceased had been collected from the Midnapore Medical College and Hospital and deposited at the FSL, Kolkata on 1/4/2024 for examination. Statements under Sec. 161 Cr.P.C. were recorded. In course of investigation, several local witnesses, neighbours, relatives, friends, wife of the deceased, etc. were examined and it came to light that the deceased used to consume alcohol on regular basis. As per statements of witnesses, Santanu Ghoroi's dead body was found lying in prone position on the watery paddy land beside the "aal" of the paddy land, about 150 meters away from the deceased's house in the Barbansi village. The investigation also revealed that water was supplied from submersible pumps (i.e., mini-deep tube well) to the land for paddy cultivation. Hence, there was water in the land as well as adjacent paddy lands. In compliance with the Order of this Court, the I.O. has visited SSKM Hospital, Kolkata on 30/4/2024 and submitted a written prayer to the Superintendent (i.e. the MSVP) of I.P.G.M.E. and R. and SSKM Hospital, Kolkata to obtain another opinion from the medical expert of the SSKM Hospital, Kolkata regarding the post mortem report in question vis-a-vis the death of the victim. On 6/5/2024 the I.O. collected another opinion dtd. 3/5/2024 of the medical expert. Chemical examination report of viscera from Toxicology Division, FSL dtd. 10/5/2024 was also obtained and filed in Court separately, with a copy given to the petitioner. Inquest Report showed that the body was in prone position, froth mixed with blood was found oozing out from nose, eyes and mouth. There was presence of goose skin on the hands and feet of the dead body of the deceased. There was presence of mud mixed with water on the face as well as that portion of the body was touching the field with muddy water. Search/Seizure List showed that the muddy water was measured with a scale and the depth was 5/6 inches of water. Post mortem report revealed (i) "All bruises were blackish in colour", (ii) "No other injuries except" those on the right hand dorsum, (iii) Larynx and Trachea -