AYSHABEE v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **Crl.MC.No. 372 of 2016** **-------------------------------------** ## **C.P.NO. 59/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM** ## **CRIME NO. 1264/2015 OF CHAVAKKAD POLICE STATION , THRISSUR DISTRICT** **--------------------------** ## **PETITIONER(S) :** **------------------------** **AYSHABEE, AGED 70 YEARS, W/O. KOYAMON, ANDATHODUCHALIL, CHAVAKKAD, THRISSUR.** **BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE) ADVS. SRI.SUJESH MENON V.B. SRI.R.ANIL** ## **RESPONDENT(S) :** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, THRISSUR (RURAL)-682 002.** ## *** ADDITIONAL R4 IMPLEADED** **4. A.C.KOYA, ANDATHOTTU CHALIL HOUSE, THIRUVATHRA P.O., CHAVAKKAD, THRISSUR.** - **ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 28.03.2016 IN** - **CRL.M.A NO. 2812 OF 2016.** **..2/-** **..2..** ## **Crl.MC.No. 372 of 2016** ## **-------------------------------------** ## **** ADDITIONAL R5 IMPLEADED** **5. ASSURA, AGED 45 YEARS, W/O. HANEEFA, THONDAMPIRI HOUSE, MANATHALA VILLAGE, BABY ROAD, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **** ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 03.10.2016 IN CRL.M.A.NO. 2837 OF 2016.** ## ***** ADDITIONAL R6 IMPLEADED** **6. GOPAPRATHAPAN, AGED 43 YEARS, S/O. APPU, CHOZHIDAKATH HOUSE, P.O.THIRUVATHRA, CHAVAKKAD, THRISSUR.** ***** ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 03.10.2016 IN CRL.M.A.NO. 6085 OF 2016.** **R1 TO R3 BY ADV. SRI. C.SREEDHARAN NAIR, D.G.P ADDL.R4 BY ADV. SRI.L.RAJESH NARAYAN ADDL.R5 BY ADV. SRI.RAJIT ADDL.R6 BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) ADVS. SRI.M.REVIKRISHNAN SMT.MITHA SUDHINDRAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-09-2016, THE COURT ON 03-10-2016 PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 372 of 2016 ()** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A THE TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH FIRST INFORMATION STATEMENT.** **ANNEXURE B THE TRUE COPY OF THE INQUEST REPORT. ANNEXURE C THE TRUE COPY OF THE FINAL REPORT. ANNEXURE D THE TRUE COPY OF THE ALLEGED PURPORTED STATEMENT DATED 08-08-2015. ANNEXURE E THE TRUE COPY OF THE REPRESENTATION TO THE HOME MINISTER DATED 02-12-2015. ANNEXURE E1 THE TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD.** **ANNEXURE F THE TRUE COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO. 1264/2015 OF CHAVAKKAD POLICE STATION.** **ANNEXURE G THE TRUE COPY OF THE FINAL REPORT IN CRIME NO. 1264/2015 OF CHAVAKKAD POLICE STATION.** ## **RESPONDENT(S)' ANNEXURES :** **ANNEXURE R4(A): TRUE COPY OF THE COMPLAINT DATED 06.08.2015. ANNEXURE R4(B): TRUE COPY OF THE COMPLAINT. ANNEXURE R4(C): TRUE COPY OF THE REQUEST DATED 10.01.2016.** **//TRUE COPY//** **P.S.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No. 372 of 2016** -----------------------------------------Dated this the 3[rd] day of October, 2016 ## **O R D E R ------------** 1.In a macabre incident which took place in the presence of the petitioner, her son A.C. Haneefa, a 42 year old man, was murdered in the car porch of his own house by a group of assailants. The incident was allegedly witnessed by not less than five persons, which included the petitioner herein. A crime was registered in less than an hour and a half and the law was set in motion and after investigation by an officer of the rank of Deputy Superintendent of Police, final report was laid before the jurisdictional Court. The petitioner bemoans that the investigation has been unfair, biased and prejudiced and interspersed with manipulated materials. Her prayer in this petition is to order further investigation in Crime No.1264/2015 of the Crl.M.C. No.372 of 2016 **-2-** Chavakkad Police Station. 2.As stated above, the center of controversy is Annexure-C final report laid before the jurisdictional Magistrate by the third respondent, the Deputy Superintendent of Police, District Crime Branch, Thrissur. Before delving into the issues raised, it will be apposite to look at the prosecution case in some detail. - 3.The ghastly incident allegedly took place at 9.45 p.m. on - 7.8.2016. The First information statement lodged at 11 p.m on the same day, by an alleged eye witness, contains graphic details of the incident. It reveals that the first informant and his friend Shakkeer, who were on their way back to the house of the first informant in a Bike, were intercepted by a group of persons comprising of Shemeer, Shafi, Ansar, Sachin, Afsal and Fasalu in front of the shop room of one Janardhanan. They were allegedly assaulted and fearing the worst, they managed to make good their Crl.M.C. No.372 of 2016 **-3-** escape in their bike and rode off to Shafi Nagar, where the deceased resided. The assailants followed them in their vehicles and after some exchange of words Shemeer, Shafi, Ansar, Sachin, Afsal and Fasalu are alleged to have rushed inside the house of the deceased. The deceased Haneefa was sitting in the veranda and was talking Sharafuddin, a neighbour. The assailants are alleged to have caught Haneefa and pulled him to the car porch. When the first informant and his friend tried to intervene, knives were brandished at them. Shakeer sustained an injury on his hand. Three of the accused held the arms of Haneefa firmly behind his back and Shameer is alleged to have taken out a knife and stabbed the deceased on his chest and stomach. Sharaffudin and Salam, who came to the spot on hearing the hue and cry, were also threatened. Some persons were seen standing outside the gate. After the incident, the accused are alleged to Crl.M.C. No.372 of 2016 **-4-** have left the scene in their vehicles. The petitioner also claims to have witnessed this horrendous incident and her presence at the scene of crime is spoken to by the first informant as well. A factional fight within the Congress party is alleged to be the motive for the murder. - 4.On the basis of information furnished by Faisal, Crime No.1264/2015 was registered by the Chavakkad Police arraying Shameer ( A1), Shafi (A2), Ansar ( A3), Sachin (A4), Afsal (A5), Fasalu (A6) and 4, 5 identifiable persons, for offences punishable under sections 143, 147, 140, 341, 323, 324, 447, 448, 506 (ii), 302 r/w 149 of the Indian Penal Code. - 5.Inquest was conducted and a report was prepared by the Deputy Police Superintendent, Kunnankulam on 8.8.2015 at 8. am. The statements of Salam and Sharafuddin, the alleged witnesses were recorded. They also gave a detailed version of the incident which took place and Crl.M.C. No.372 of 2016 **-5-** named the persons who were responsible. - 6.Thereafter, investigation was taken over by the Deputy Superintendent of Police, District Crime Branch, Thrissur on 9.8.2016. Later, the same was completed and Annexure-C final report was laid before the Jurisdictional Magistrate. 7.The petitioner claims that the investigation was grossly unfair and an eye wash. She points out that she was an eye witness to the incident but she has not been questioned. A one line 161 statement is produced along with the final report wherein an obnoxious reason is given for not recording her statement. The assailants who were clearly named in the earliest statements were left out and only accused Nos. 1 to 3 are charged for the offences under Sections 341, 323, 324, 506 (1), 449, 211, 212, 302 read with section 34 of the IPC. Offences under sections 143, 147, 148, 448 read with section 149 of the Crl.M.C. No.372 of 2016 **-6-** IPC has been deleted without any palpable reason. The accused No 4 to 8, ridiculously enough, are alleged to have committed offence punishable only under section 212 of the IPC. Accused Nos. 2 and 4, who were specifically named in the FIR, have been given a clean chit and has been left out in the final report. Fasalu, who is alleged to have participated along with the main accused, is arrayed as accused No.6 with an allegation of having committed a minor offence. These are the main grounds raised by the petitioner to persuade this Court to order further investigation in the aforesaid case. 8. The father's brother of deceased Haneefa filed an application to get himself impleaded in this petition. The mother of the 2[nd] accused also filed an application to get herself impleaded. One Gopaprathapan, against whom certain references are made by the petitioner in the application, also filed an application to implead himself in Crl.M.C. No.372 of 2016 **-7-** this petition. All the applications were allowed. This was to enable various parties to advance their versions and to avoid prejudice. - 9.I have heard Sri B.Raman Pillai, learned Senior Counsel appearing for the petitioner, Sri.Suman Chakravarthy, the learned Senior Government Pleader, Sri L.Rajesh Narayanan, the learned Counsel appearing for the additional 4[th] respondent, Sri Rajit, the learned Counsel appearing for the additional 5[th] respondent and Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the additional 6[th] respondent. - 10.Sri.B.Raman Pillai, the learned Senior Counsel, persuasively submitted that the investigation has been improper, biased and unfair. Taking this Court through the statements of the eye witnesses and the various reports submitted by the Investigating officer, it was argued that the conclusion is inescapable that the attempt is only to Crl.M.C. No.372 of 2016 **-8-** deny the petitioner a fair trial. The witnesses had all given a true version of the incident, as can be seen from the statements recorded within hours of the incident. In a callous manner their statements have been ignored and the main assailants have been given a reprieve. Only a askew version is now placed before Court and this is only to enable the accused to secure an acquittal. It is submitted that the petitioner was admitted in the hospital immediately after the murder and her statement was not even recorded. The first information statement would reveal that she was also a witness to the tragic incident. According to the learned counsel, there was no reason for the investigating officer to delete accused Nos.2 and 4 from the array of the accused. Gross exception was taken to the act of the investigating officer in concluding that there was no unlawfully assembly and that only accused Nos.1 to 3 in the final report had shared the common Crl.M.C. No.372 of 2016 **-9-** intention to murder Haneefa. It is further pointed out that the conspiracy element was not even investigated by the investigating officer and therefore the final report is incomplete. It is further submitted that the statements actually recorded of the eye witness have been suppressed and certain facts which were not even mentioned by the witnesses have been included. This is for the purpose of shielding the actual culprits, is the submission of the learned senior counsel.The learned Senior Counsel would also submit that the Police had been acting under the dictates of a very influential politician , who has impleaded in this petition as additional 6[th] respondent , and there are reasons to suspect that the investigation was channeled down the wrong path at his instance . It is also pointed out that as many as eight cases were registered against prime witnesses in the aforesaid crime and relatives of the deceased to sabotage ## Crl.M.C. No.372 of 2016 **-10-** the case and to make it appear that the incident had not happened as alleged . - 11.Sri Suman Chakravarty, the learned Senior Government Pleader submitted that at an earlier stage this Court had recorded the submission of the learned Public Prosecutor that the State had no objection in ordering further investigation. In the peculiar facts, it is submitted that the State has no objection to the prayer sought for. - 12.Sri.Rajesh Narayanan, the learned Counsel, supported the arguments of the learned Senior Counsel appearing for the petitioner and submitted that the Investigating officers have registered several crimes against the prime witnesses on the basis of statements recorded several days after the incident with a view to sabotage the instant case. It is submitted that writ petitions have been filed by the witnesses in those cases seeking further investigation. - 13.Sri Rajit, the learned Counsel appearing for the mother of **-11-** Crl.M.C. No.372 of 2016 the 2[nd] accused would submit that the 2[nd] accused is still languishing in custody. If further investigation is ordered his agony will only be prolonged further and prayed that this petition be dismissed. - 14.Sri.P.Vijayabhanu, the learned Senior Counsel appearing - for the Additional 6[th] respondent submitted that the allegations in the petition attributing various acts and omissions on the part of the 6[th] respondent are just figments of imagination of the petitioner and is not supported by materials. The learned Counsel sought for dismissal of the petition. - 15.I have considered the rival submissions and have anxiously gone through the materials. - 16.The gory incident in which the son of the petitioner was done away with in a brutal manner took place in the car porch of the house, where the petitioner and the deceased resided. The FI Statement was furnished by an eye Crl.M.C. No.372 of 2016 **-12-** witness to the incident. He had narrated the sequence of events, which ultimately led to the murder of Haneefa. His statement goes well with the statement of Shakeer, who was with him all through. During the stage of inquest, the statements of Sharafudden and Salam were recorded by the Deputy Superintendent of Police, Kunnamkulam. The presence and participation of 8 persons are avidly mentioned in the said statements. However accused Nos.2 and 4, named in the FIR, have been omitted in the final report. It is not borne out from the Case diary or from the statement as to which the said accused whose presence is specifically mentioned in the earliest records by the eye witnesses have been omitted in the final report . The statement filed by the Investigating officer also does not provide any clue . The case diary would reveal that separate reports have been submitted before the Court on 14.8.2015 deleting Accused No 2 and 4 and omitting Crl.M.C. No.372 of 2016 **-13-** certain sections of the Indian Penal Code . This aspect vindicates the grievance of the Petitioner that they have been omitted from the Final report without any basis . - 17.The first informant as well as his friend Shakeer , who was also with him speaks about the involvement of 6 accused who had barged inside the house of Haneefa . However in the final report , grave offences are attributed only against three of the accused . The explanation offered by the Investigating officer that no other materials were obtained as regards their presence and participation does not go well with the witness statements . - 18.The investigating officer also has no explanation as to why the petitioner was not questioned , when the eye witnesses have all stated that the petitioner was a witness to the incident. The statement of the petitioner produced along with the Final report is a one liner wherein the inability of the petitioner to give a statement is stated . Crl.M.C. No.372 of 2016 **-14-** 19.Some of the accused whose presence inside the house was specifically stated by the eye witnesses have been accused of having committed offences under section 212 of the IPC. 20.In the final report submitted arraying 8 persons as the accused, accused Nos.1 to 3 are alleged to have committed offences punishable under sections 341, 323, 324, 506(1), 449, 201, 212, 302, 34 of the IPC and accused Nos.4 to 8 are alleged to have committed the offence punishable under Section 212 alone. Three of the accused in the final report have been implicated for harboring the principal offenders and for providing shelter to them. This has been done on the premise that only accused Nos.1 to 3 in the final report had participated in the incident and they alone shared the common intention to commit the murder of Haneefa. Section 143, 147, 148, 448 read with section 149 of the IPC were also deleted Crl.M.C. No.372 of 2016 **-15-** and in its place section 450, 452 and section 34 of the IPC were added. 21.The strong assertions of the petitioner that the removal of persons from the array of the accused and the dilution of the final report could have been given a go by and the investigation could have been said to be proper, if there was a proper explanation for the prosecution for the drastic alterations made in the final report. However, the reports submitted by the investigating officer dated 11.2.2016 and 15.4.2016 are deafeningly silent with regard to the above aspects. It is stated that the investigating officer was not able to collect any material against accused Nos.4 to 8 in the final report so as to attract the offences under section 302 read with section 149 of the IPC. As to why the accused Nos.4 to 8 were left out, though their presence is stated in the earliest records, remain unanswered. The omission to array Crl.M.C. No.372 of 2016 **-16-** accused Nos.2 and 4 in the final report and the failure on the part of the investigating officer to record the statement of the petitioner all point to the fact that the investigation was flawed. Curiously enough, in the statement dated 15.4.2016, it is stated that the investigating agency is ready to probe the whole matter afresh, if the petitioner makes available the necessary materials. This statement made by the investigating officer can only be termed as unfortunate, that too, in a case of cold blooded murder. None of the flaws pointed out by the petitioner has been addressed to by the investigating officer in the statement filed before Court. 22.From these materials , the petitioner cannot be blamed if she felt that the investigation conducted has been totally one - sided, biased and mala fide. There cannot be any doubt that the petitioner has been prejudiced . The final report , which is the outcome of an investigation which is Crl.M.C. No.372 of 2016 **-17-** flawed cannot be sustained as it would result in gross miscarriage of justice . The trial Court will not be in a position to arrive at the truth. Fair trial and fair investigation is also part of Constitutional rights guaranteed to the petitioner under Art.20 and Art.21 of the Constitution of India.( See **Babubhai v. State of Gujarat (** 2010 (12) SCC 254 ; **Karan Singh v. State of Haryana and Another** (2013 (12) SCC 529) . The petitioner, being the victim, cannot be afforded to be treated as an alien or total stranger to the criminal trial as has been held by the Apex Court in **Rattiram and Ors. v. State of Madhya Pradesh** (2012) 4 SCC 516). Her apprehension that the interest of justice will not be served cannot be ignored in the facts and circumstances . 23. In conclusion this Court is of the considered view that the Investigating agency has not been able to dispel the apprehension of the complainant or this Court that a 'fair Crl.M.C. No.372 of 2016 **-18-** and proper investigation' has not been conducted. It does not appear that the investigation was unbiased, honest, just and in accordance with law. On a perusal of the Prosecution records, it is doubtful whether the endeavor was to bring out the unvarnished truth of the case before the court of competent jurisdiction. 24. It need not be doubted that in appropriate cases in which non interference would lead to failure of justice superior Courts have the jurisdiction under S.482 of the Code or even Art.226 of the Constitution of India to direct ‘further investigation’, ‘fresh’ or ‘de novo’ and even ‘reinvestigation’. The superior Courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior Courts very sparingly and with great circumspection. ( See **Vinay** Crl.M.C. No.372 of 2016 **-19-** **Tyagi V Irshad Ali @ Deepak and Others** [2013 (5) SCC 762). - 25.The Senior Government Pleader, Sri Suman Chakravarthy has already submitted that the State has no serious objection in handing over the further investigation of the Crime to the Crime Branch. - 26.Before parting it has to be mentioned that the observations in this order may not taken to mean that this Court has taken a view that all the persons whose names are mentioned by the witnesses had actually participated in the incident. That is for the investigating agency to investigate and find out by a truthful, fair and transparent investigation .Such observations have been made in view of the flaws and fallacies pointed by the petitioner in the Investigation carried out in the aforesaid crime which culminated in the filing of Annexure C Final Report. Crl.M.C. No.372 of 2016 **-20-** 27.In the result the Final report filed in crime No 372 of 2016 of the Chavakkad Police Station shall be reopened and further Investigation shall be conducted by the Crime Branch Police. The 2nd respondent shall pass formal orders entrusting the investigation of the above case with a Special Investigation Team of the Crime Branch Police under the able leadership of a superior officer of unquestionable integrity and proven investigative skills. The Petition will stand allowed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps