A.M. ABOOBAKER S/O MOIDEEN KUTTY v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WP(C) NO. 29469 OF 2012** ## **CRL.M.P. NO. 3672/2012 OF ADDITIONAL SESSIONS COURT (ADHOC-II)** ## **KASARAGOD** ## **PETITIONER:** **A.M. ABOOBAKER S/O.MOIDEEN KUTTY, RESIDING AT THOTTI, PANALAM, CHENGALA VILLAGE, KASARAGOD TALUK.** **BY ADVS.SRI.P.K.MUHAMMED SRI.C.N.IBRAHIM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (THE DEPUTY SUPERINTENDENT OF POLICE) KASARAGOD-671121. 2 THE SUB INSPECTOR OF POLICE KASARAGOD, PIN 671121. 3 UMMER K.M. S/O.MOHAMMED, RESIDING AT PERUMBALAKADAVU ROAD, CHENGALA VILLAGE, KASARAGOD TALUK, 671121.** **R1 & R2 BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR R3 BY SRI.T.MADHU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON 21.12.2021 DELIVERED THE FOLLOWING:** W.P.(C.).No.29469 OF 2012 2 ## **JUDGMENT** Petitioner is the father of Haseena who left the matrimonial home on 08.08.2008, after picking a quarrel with her husband, the third respondent. The sequence of events that led to the registration of Crime No. 560/2008 of Kasargod police station can be stated thus:- The said Haseena was married to the third respondent on 13.11.2005. They had a child aged less than two years. The residence of the petitioner is about one kilometer away from the matrimonial home of Haseena. On the evening of 08.08.2008, Haseena wanted to go to her parents' house and had made preparations. But before going, some quarrel erupted between the couple and the third respondent slapped her on the face. Provoked by the same, going by the prosecution records, Haseena created wounds on the left arm and then ran out of the house and jumped into the Chandragiri river which passes near by and thus committed suicide. On 09.08.2008 on the basis of the information ## W.P.(C.).No.29469 OF 2012 3 furnished by the third respondent, Crime No. 560/2008 was registered for man-missing. Later, her body was found floating in the river downstream in the evening which was removed to the hospital, subjected to postmortem examination and then it came out that death was by drowning. However, it was revealed that she was subjected to cruelty in the husband’s house, both physically and mentally and that had driven her to commit suicide by jumping in the river. Thus after deleting Section 174 of the Code of Criminal Procedure, offence under Sections 498A and 306 of the Indian Penal Code was incorporated and the charge sheet was laid before court. On committal, the case reached before the Additional Sessions Court, Kasaragod as S.C. No. 36/2009. Then the petitioner, who is the father of the deceased Haseena moved a petition seeking further investigation. According to him, there are serious doubts regarding the alleged suicide. The contention that it was a suicidal drowning cannot be believed. He strongly believes ## W.P.(C.).No.29469 OF 2012 4 that it was a clear case of murder committed by the third respondent and other in-laws of Haseena. Therefore, he wanted a crime to be registered under Section 302 of the IPC. After evaluating various materials, by Ext. P1 order dated 16.09.2009, the Additional Sessions Court ordered further investigation and directed the Superintendent of Police, Kasargod to entrust the investigation with an efficient and sincere officer and to give proper guidance for the investigation. Thus a re-investigation was conducted. 3. It has come out that the third respondent had moved this Court challenging that order, but this Court dismissed that application and that decision has been reported in **Ummer** v. **State of Kerala [2010(1) KLT 963]** . Thus a re-investigation was conducted and further report was filed which also toed the earlier line of opinion. Again, the petitioner moved Ext.P2 petition before the Additional Sessions Court, Kasargod seeking further investigation under Section 173(8) of the Cr.P.C. There he raised various points, W.P.(C.).No.29469 OF 2012 5 which were allegedly missed by the Investigating Officers. There also he reiterated his submission that it was a case of murder committed by the third respondent and members of his family. According to him, the said Haseena was an educated bold lady, she would have never committed suicide, the members of the family of the third respondent are suppressing material facts, investigating officers did not conduct proper investigation nor material witnesses were examined; even the doctor who conducted postmortem examination was not examined and thus various lacunae highlighted by the petitioner were accepted by the court. He also pointed out that immediately prior to the alleged incident, third respondent had assaulted Haseena. Haseena had gone missing at 7.00 P.M. on 08.08.2008. Still the matter was not promptly reported to him who is residing only one kilometer away. At 9.00 P.M, when he reached the residence of the third respondent, the third respondent was not there, blood stained shirt of the third respondent was found in the ## W.P.(C.).No.29469 OF 2012 6 bedroom. The bedsheet and dresses worn by the mother of the third respondent also were stained with blood. There were blood stains on the wall of the bedroom and still proper investigation was not conducted by the police. The police also should have resorted to scientific methods of investigation like brain mapping, polygraph, Narco analysis test etc. The prosecution wanted to say that after the third respondent had beaten her, provoked by it, she caused self injuries on her left arm and with blood oozing from the arm, she ran out of the house and went to the river and jumped into the river. But according to him, it is not believable that she had gone to that area which is full of growths and bushes and people are afraid even during day time to move through the area. Moreover, it is a marshy land through which it is not possible to move ahead. So he says that it is improbable that she had run towards the river in the dead of night. It was also pointed out that one Haneefa, whose subsequent conduct is suspicious, was not examined by the police. ## W.P.(C.).No.29469 OF 2012 7 Similarly, when he had gone to the residence of the third respondent, the third respondent was not found there and no investigation has been conducted into such aspects. So he believes that it was not a case of suicidal drowning but she might have died at the hands of the third respondent and others and later, the body might have been thrown to the river, to make it a case of drowning. 4. After considering Ext.P3 petition, Ext.P4 order was passed by the learned Additional Sessions Judge. This time also upholding the doubts raised by the petitioner the court directed the police to conduct a detailed further investigation. In the Ext.P4 order, the Deputy Superintendent of Police, Kasargod was directed to conduct further investigation and complete investigation and file additional report within two months. 5. The petitioner is dissatisfied by the said direction of the court. According to him, material aspects highlighted by him were not adverted to by the Additional Sessions ## W.P.(C.).No.29469 OF 2012 8 Judge, circumstances of the bite injury sustained by the third respondent at the time of the alleged incident have not been enquired into. So according to him, at first a crime should be registered under Section 302 of the IPC and then further investigation should be conducted. Investigation already conducted are not all effective. The police has not enquired into the anti-mortem injuries found on the body of the deceased and therefore, he prays for granting the following reliefs:- - “ i) Issue a writ of mandamus or other appropriate writ, order or direction to the first respondent to handover the investigation to Crime Branch in Kasaragod Crime No. 560/2008 in S.C. No. 36/2009, further investigation ordered in Crl.M.P. No. 3672/2012 by the Additional District and Sessions Court (Adhoc-II), Kasaragod; - ii) Stay further proceedings in S.C. No. 36/2009 on the file of the Additional District and Sessions Court (Adhoc – II), Kasaragod till a final report and additional charge sheet is filed by the Crime Branch;” 6. The police filed various statements in the writ petition. At first, on 25.01.2013, one Assistant Sub Inspector of Police in the Office of the Deputy Superintendent of ## W.P.(C.).No.29469 OF 2012 9 Police, Kasaragod filed as statement, ultimately contending that they have no objection in transferring the investigation of the case to the Crime Branch if the Court so directs. Thereafter, on 27.05.2019, Assistant Superintendent of Police, Kasaragod filed a statement opposing the application. According to the Assistant Superintendent, investigations have been made into all possible angles. It was conducted by the officers in the rank of Dy.S.P. At first one Dy.S.P., Sri. P.A.Valsan had conducted the investigation and thereafter, Dy.S.P. Bijoy and Vikraman were conducting investigation. Thereafter, Dy.S.P., one Reghuraman conducted investigation and all have consistently formed opinion that it was a case of suicidal death. 7. I heard the learned counsel for the petitioner, the learned counsel for the third respondent and also the learned Senior Public Prosecutor. 8. The learned counsel for the petitioner submitted that the police did not conduct proper investigation, at the W.P.(C.).No.29469 OF 2012 10 time of death, Haseena was pregnant about five months, she had no need to commit suicide and the testimony of Dr. Gopalakrishnan who conducted postmortem examination also suggests that it was not a death by drowning. So the petitioner strongly believes that the third respondent was behind the death. Even though his daughter had went missing, police was alerted only after her dead body was found in the river. Investigation was conducted in a biased and arbitrary manner under the influence of the third respondent. A cold blooded murder has been painted as a case of offence under Sections 498A and 306 of the Indian Penal Code. The learned counsel also reiterated various lacunae in investigation conducted by the prosecution. On the other hand, learned Senior Public Prosecutor and the learned counsel for the third respondent pointed out that three rounds of investigation have already been over and therefore, it is futile to direct further investigation in the matter. ## W.P.(C.).No.29469 OF 2012 11 9. There are undisputed facts. Firstly, the marriage between Haseena and the third respondent had taken place in November, 2005 and she was residing in the marital home. In the marriage, a girl child is born to them who was about nearly two years on the date of the incident. Even according to the petitioner, there was no hassles in the life of the third respondent and the petitioner. On the day prior to the incident, i.e., on 07.08.2008, both petitioner and his wife had visited Haseena and the members of the family and they were treated well by the members. That day they returned with the child and Haseena promised to join them on the following day. It appears from the documents available before court that Haseena had made preparations to accompany the third respondent to proceed to her house on 08.08.2008 and she wanted to carry two bags with her. But the third respondent said that it is not possible to move with bags on the bike and asked her not to carry dresses and bag with her. According to the prosecution, provoked by the W.P.(C.).No.29469 OF 2012 12 same some quarrel erupted between the couple and then the third respondent had beaten her on her face and that led to her inflicting injuries with a blade on her left arm from where blood started oozing. Then the third respondent called his mother, sister-in-law etc., who were in house and when they reached the room, they found blood oozing from the wound; when the sister-in-law of the third respondent, i.e., co-sister of the deceased, tried to wrap the wound with a cloth, she pushed her aside and then hurriedly went out of the house through the kitchen and disappeared in darkness. Thereafter, the members in the household and people in the neighbourhood started to trace her but in vain. Then somebody was sent to the residence of the petitioner to ascertain whether Haseena had reached there. But she had not reached there. At 9.00 P.M., after about two hours, two brothers of the third respondent had reached the house of the petitioner and informed that she is missing and thereafter, the petitioner went to the house of the third respondent and ## W.P.(C.).No.29469 OF 2012 13 found blood stains in the room, in the bedsheet, in the shirt of the third respondent which was found in the room and the clothes worn by the mother of the third respondent. He was told that she had created some wounds on her left arm and then hurriedly went out of the house and they are tracing for her. Whatever it may be, on the following day evening, her body was found floating in the Chandragiri river and was removed to the hospital and postmortem examination was conducted. The doctor who conducted the postmortem examination stated that she had died of drowning. 10. Petitioner, as noticed earlier, wanted to convince the court that it is a case of murder committed by the third respondent and others and that he is totally dissatisfied with the charge filed by the police under Sections 498A and 306 of the IPC. It has also come out that Haseena was pregnant about four months and the foetus in her womb was dead. 11. Two petitions were moved by the petitioner before the trail court. Both were allowed. Against Ext.P1 ## W.P.(C.).No.29469 OF 2012 14 order, though the third respondent had moved this Court that was in vain and thus the second investigation, the first further investigation was conducted by Dy.S.P. Sri. Valsan and found that there are no reasons to think that it was a case of murder committed by the third respondent and others. Thus they reiterated the earlier stand of the police. Again the petitioner moved Ext.P3 petition before the trial court which ended in allowing the application for further investigation. Ext.P4 is now under challenge. The second further investigation has already been laid and a report has been filed which is before court. There also the police only reiterated the earlier stand. 12. Merely on the basis of suspicion, it cannot be said that murder was committed by the third respondent and others. If only there is legal evidence, which should be cogent and convincing, the police can be directed to register a crime for offence under Section 302 of the IPC and commence investigation. The petitioner cannot be heard to W.P.(C.).No.29469 OF 2012 15 say that the third respondent had influenced every police officer who conducted investigation and made them to toe his lines and hush up a case of murder. It is true that the original part of the incident had happened within the four walls of the residence of the third respondent. Even then, if it was a case of murder, there should have been corresponding injury on the person of the deceased and therefore, it cannot be thought that it was a case of murder. Secondly, even though the alleged cause of action had arisen inside the house of the third respondent, it cannot be thought that all including the sister-in-law of the third respondent etc., had hushed up a case of murder. On the other hand, witnesses examined on the side of the prosecution i.e., inmates of the house have uniformly stated that some quarrel had erupted between the couple and the third respondent had beaten her and provoked by the same, she had created self inflicted wounds on her left arm from which blood started oozing and that was how, she had gone out. Of course, no one had seen ## W.P.(C.).No.29469 OF 2012 16 Haseena running towards the river or jumping into the river. All the same the petitioner had reached the house of the third respondent within two hours of the missing of his daughter. At that time, except the third respondent all were there. If it was a case of murder, there should have been other material pieces of evidence also. Of course, there was blood on the wall, on the shirt left by the third respondent in the room, in the bedsheet and also the dresses worn by the mother of the third respondent. But for that reason it cannot be assumed that it was a case of murder. On the other hand, the investigating agency after conducting investigation came to the conclusion that she had caused self-inflicting injuries on the left arm from where blood was oozing and in all probability, blood found in the bedroom and the dresses of the third respondent and the mother must have been that blood. 13. I have also gone through the statement of witnesses recorded in the second further investigation W.P.(C.).No.29469 OF 2012 17 produced by the prosecution. The statement of the Doctor who conducted postmortem examination also do not indicate that it was a case of murder. Of course, he has stated that there is no positive findings to say that the death was due to drowning by 100% certainty. Three superficial cuts were found on the left wrist and forearm caused by sharpened weapon and it looked like suicidal hesitation cuts. The doctor has also stated to the Investigating Officer that the injuries on the wrist were typical of self inflicted injuries suggestive of hesitation cuts trying to cut the wrist for committing suicide. According to the doctor, when it fails, it is not unusual for the victim to adopt other methods of suicide like hanging, taking poison or jumping into the water etc. 14. As noticed earlier, now three rounds of investigation have been conducted by the police and all have consistently come to the opinion that, it was a case of suicide after cutting injuries on her left arm. So far, no evidence W.P.(C.).No.29469 OF 2012 18 could be traced by the police that she was murdered by the third respondent and others. Suspicion cannot not take the place of court. Therefore, this court is not convinced that the petitioner is entitled to get any such relief. Therefore, the writ petition is dismissed, with regrets. sd/- **K.HARIPAL JUDGE** **DCS/18.12.2021** W.P.(C.).No.29469 OF 2012 19 ## **APPENDIX** ## **PETITIONER EXHIBITS:-** |**EXHIBIT P1**|**TRUE COPY OF THE ORDER IN CRL.M.P.**| |---|---| ||**NO.2655/2009 OF THE ADDITIONAL DISTRICT AND**| ||**SESSIONS COURT (ADHOC-II), KASARAGOD DATED**| ||**16-09-2009.**| |**EXHIBIT P2**|**TRUE COPY OF THE ADDITIONAL REPORT DATED**| ||**14-03-2011 FIELD BY DEPUTY SUPERINTENDENT**| ||**OF POLICE, KASARAGOD.**| |**EXHIBIT P3**|**TRUE COPY OF THE CRL.M.P.NO.3672/2012 FIELD**| ||**BY PETITIONER BEFORE THE ADDITIONAL**| ||**DISTRICT AND SESSIONS COURT (ADHOC-II),**| ||**KASARAGOD.**| |**EXHIBIT P4**|**TRUE COPY OF THE ORDER DATED 29-10-2012 IN**| ||**CRL.M.P. NO.3672/2012 OF THE ADDITIONAL**| ||**DISTIRCT AND SESSIONS COURT, (ADHOC-II)**| ||**KASARAGOD.**| |**EXHIBIT P5**|**TRUE COPY OF THE NOTICE ISSUED BY 1ST**| ||**RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P6**|**TRUE COPY OF THE REPORT DATED 22-09-2018**| ||**FILED BY DEPUTY SUPERINTENDENT OF POLICE,**| ||**KASARAGOD BEFORE THE DISTRICT AND SESSIONS**| ||**COURT (ADHOC-II), KASARAGOD.**|