Balakrishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944** ## **WP(CRL.) NO. 443 OF 2021** ## **PETITIONER:** BALAKRISHNAN, AGED 60 YEARS S/O. RAMAN NAIR, THAYYATHAM HOUSE,CHENAKKALANGADI, THENJIPPALAM, MALAPPURAM 673 636. BY ADV E.NARAYANAN ## **RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 2 THE DIRECTOR GENERAL OF POLICE, KERALA, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001 - 3 THE ASSISTANT COMMISSIONER OF POLICE, CRIME BRANCH, CID, HHW-III, KOZHIKODE 673 001. - 4 CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, PLOT NO. 5-B, CGO COMPLEX, LODHI ROAD, NEW DELHI 110 003. - 5 THE STATION HOUSE OFFICER, FEROKE POLICE STATION, FEROKE P.O, KOZHIKODE, PIN 673 631. BY ADV MANU S., ASG OF INDIA WP(Crl) No.443/2021 -:2:- ## **OTHER PRESENT:** SMT T V NEEMA - SR PP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON 6.06.2022 DELIVERED THE FOLLOWING: WP(Crl) No.443/2021 -:3:- J U D G M E N T Dated this the 6[th ] day of June, 2022 This writ petition has been filed with a prayer to entrust the investigation of Crime No.52/11CBKKD to the Central Bureau of Investigation (for short, 'CBI'), who is the 4[th] respondent. 2. The petitioner's daughter Smt.Nisha was married to Sri.Krishnadas on 24/10/2010. She was a graduate and was aged 22 years at the time of marriage. On 22/2/2011 at 9.30 a.m., she was found dead hanging at the bed room of her matrimonial home. A crime was registered by the Feroke Police Station on the same day as Crime No.113/2011 u/s 174 of Cr.P.C. After completing the investigation, the Assistant Commissioner of Police submitted a final report on 4/6/2011 before the Sub Divisional Magistrate Court, Kozhikode as Further Action Dropped (FAD). It was stated in the final report that in the course of the investigation it was revealed that Smt.Nisha committed suicide by hanging. Thereafter, the petitioner herein, the father of the deceased, filed a petition before the Home Minister of Kerala WP(Crl) No.443/2021 -:4:- on 2/5/2012 raising suspicion about the death of his daughter. He alleged that it was not a case of suicide, but a homicide. The Home Minister ordered to investigate the case by Crime Branch on 11/2/2013. Accordingly, Crime Branch HHWIII, Kozhikode took over and conducted the investigation. After completing the investigation, Crime Branch submitted a final report as Further Action Dropped. Their finding was also that it was a case of suicide. Thereafter the petitioner herein approached this court by filing WP(C) No. 24551/2016 alleging that the police did not investigate the case properly and that he was not satisfied with the report filed by the two investigating agencies. The petitioner sought for entrustment of the investigation to a competent agency including CBI. This Court as per the judgment dated 4[th] April, 2017 disposed of the writ petition with a direction to the State and Director General of Police to constitute a team of officers of proved investigative skill led by an officer not below the rank of Dy.S.P. of Crime Branch and to entrust the investigation with them. Accordingly, a Special Investigation Team was formed, they took over the investigation, completed it and filed final report stating that the death of Smt.Nisha was a WP(Crl) No.443/2021 -:5:- suicide. 3. According to the petitioner, no effective investigation has been undertaken and conducted by any of the investigating agencies to find out the truth of unnatural death of his daughter. He asserted that it is not a case of suicide, but a case of homicide. He suspects that the husband of the deceased committed the murder of his daughter. It is his case that the investigating agency is conducting the investigation in an arbitrary manner. It is alleged that the Special Investigating Team constituted as per the directions of this court miserably failed to comply with the directions of this court in the judgment dated 4[th] April, 2017. It is in these circumstances he approached this court to issue an order or direction to the 4[th] respondent to take over the investigation. 4. I have heard Sri.E.Narayanan, the learned counsel for the petitioner, Smt.T.V.Neema, the learned Senior Public Prosecutor and the learned Assistant Solicitor General of India. 5. The learned counsel for the petitioner submitted that initially the investigation was conducted in a shabby manner and WP(Crl) No.443/2021 -:6:- various material facts to rule out the possibility of suicide and to suggest that it was a case of homicide were not adverted to by the investigating agency. According to the learned counsel, subsequent investigations conducted by the Crime Branch as well as the Special Investigating Team were just a face saving measure and they merely confirmed the findings of the earlier investigating agency. On the other hand, the learned Senior Public Prosecutor submitted that the apprehension expressed by the petitioner is on the basis of mere surmises and thorough investigation conducted by the local police as well as the crime branch and the Special Investigation Team thereafter confirmed that it was a case of suicide. It was further submitted that the investigations conducted was a foolproof one and the conclusion was mainly based on the medical and scientific evidence. There is no need for any further investigation at all, added the Public Prosecutor. 6. A perusal of the case records would show that in the initial investigation conducted by the local police, 66 witnesses were questioned and several documents such as post-mortem WP(Crl) No.443/2021 -:7:- certificate, reports from FSL, RCL etc. were seized and perused. After the investigation it was revealed that Smt.Nisha committed suicide by hanging. The reason for committing suicide as per the findings in the investigation was that Smt.Nisha was mentally pained due to the clash in between her husband and his mother for purchasing fish at the morning of 22/2/2011. The investigation further revealed that her married life with her husband and the relationship with the relatives of the husband was cordial and smooth. The post-mortem examination confirmed that the death was due to hanging. In the investigation conducted by the Crime Branch, it was borne out that Smt.Nisha committed suicide due to the frustration of the dishonest act from the side of her father as he had asked to bring back 10.5 sovereigns of gold ornaments for pledging the same in order to settle his debt. Thereafter, he sold it instead of pledging. It was found by the investigating agency that this incident caused mental pain to her and that she was a person with feelings of mental breakdown for trivial issues. 7. This court in the judgment in WP(C) No. WP(Crl) No.443/2021 -:8:- No.24551/2016 dated 4[th] April, 2017 found that what exactly transpired just prior to the death of Smt.Nisha, what led to her death and whether anybody’s conduct had led to her death, were not answered by the investigating agency and a direction was given to the Special Investigation Team to be constituted to conduct a detailed investigation into the circumstances that led to her death. The Special Team constituted gave more importance as to whether any issue persisted between Smt.Nisha and her husband or with the relative of her husband, the exact reason that led to her death, why the blood was oozing from her nose, whether there was any deliberate act on the part of her husband and relatives to conceal the real fact of her death etc. The Special Team questioned 33 more witnesses and seized relevant documents and materials. They also verified the statement of the witnesses already questioned as well as the call details of mobile phone, post-mortem certificate, RCL report, FSL report etc. They also questioned the experts like the Doctor who conducted the post-mortem examination as well as the scientific expert. The Doctor who conducted the post-mortem examination opined that oozing out of blood from the nose of Smt.Nisha and WP(Crl) No.443/2021 -:9:- the bloodstains found on the floor at the time of her death were common in hanging case. The Doctor also stated that no injury was noticed on the body of the deceased. The post-mortem examination findings were consistent that death was due to hanging. The Special Investigation Team conducted enquiry as to whether there existed any family dispute between Smt.Nisha and her husband or with the family members of her husband. It was revealed that there was no such dispute and Smt.Nisha and her husband led a happy and smooth family life. The Special Investigation Team had also conducted enquiry as to whether Smt.Nisha faced any kind of domestic violence at the hands of her husband or relatives. They further enquired if any abetment has been done by her husband or relatives to commit suicide. But, no such evidence was obtained. On the basis of the materials collected, the Special Investigation Team came to the firm conclusion that Smt.Nisha committed suicide by hanging. It was a case where three investigating agencies after conducting thorough investigation ruled out the possibility of homicide. It does not appear to me that it is one of those cases WP(Crl) No.443/2021 -:10:- where this court will be justified in ordering investigation by the CBI. It is trite that re-investigation/further investigation should be directed by superior courts sparingly, only in exceptional cases where investigation already conducted so far is so unfair, tainted, malafide and in violation of settled principles of investigative canons that it pricks the judicial conscience of the courts. (see _**Vinay Tyagi. v. Irshad Ali @ Deepak and Others**_ (2013) 5 SCC 762) Certainly it is not such a case. For these reasons, I find no merit in the writ petition. Accordingly, it is dismissed. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** ## **Rp** WP(Crl) No.443/2021 ## -:11:- ## **APPENDIX OF WP(CRL.) 443/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POSTMORTEM REPORT BEARING PM NO. 265/11 DATED 23.02.2011. Exhibit P2 TRUE COPY OF JUDGMENT DATED 4.4.2017 IN W.P.(C) NO. 24551/2016 ON THE FILE OF THIS HON'BLE COURT. Exhibit P3 TRUE COPY OF REPLY GIVEN BY THE INSPECTOR OF POLICE, FEROKE POLICE STATION, DATED 31.08.2021 TO THE PETITIONER. Exhibit P4 TRUE COPY OF THE REPLY DATED 01.09.2021 ISSUED BY THE DY. S.P. CRIME BRANCH. Exhibit P5 TRUE COPY OF THE REPLY DATED 06.10.2021 ISSUED FROM THE OFFICE OF THE SUB COLLECTOR, KOZHIKODE. Exhibit P6 TRUE COPY OF THE ANONYMOUS LETTER DATED 23.01.2013.