IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936
WP(C).No. 7662 of 2013 (G) ---------------------------
PETITIONER(S):
----------------
BINNY DEVASSIA, AGED 49 YEARS W/O.DEVASSIA, PEZHATHU MOOTTIL HOUSE, CHETTUPUZHA.P.O. PULLAZHI VILLAGE, THRISSUR TALUK, THRISSUR.
BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE
RESPONDENT(S):
- -------------------
1. STATE OF KERALA
- REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, NEW DELHI.
3. SUPERINTENDENT OF POLICE
CB CID, HHW-11, ERNAKULAM
4. DEPUTY SUPERINTENDENT OF POLICE CB CID, HHW-11, PALAKKAD-678001.
R1 BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBOOKAN R2 TO R4 BY SRI.P.CHANDRASEKHARAPILLAI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.5.2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 7662 of 2013 (G)
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## APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT-P1: TRUE COPY OF THE POST MORTEM CERTIFICATE DT.6.12.2005. EXHIBIT-P2: TRUE COPY OF CHEMICAL ANALYSIS REPORT DT.12.06.2006. EXHIBIT-P3: TRUE COPY OF ORDER DT.22.10.2008 IN WP(C) 13157 OF 2008. EXHIBIT-P4: TRUE COPY OF ORDER DT.22.2.2012.
RESPONDENT(S)' EXHIBITS:NIL
-----------------------------------
//TRUE COPY//
P.A.TO JUDGE
## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.7662 OF 2013 ==========================**
Dated this the 26[th] day of May, 2014
## **JUDGMENT**
The suspicious circumstances that shrouded the death of Jeesamol, a 21 years old girl, made the petitioner who is her unfortunate mother to approach this Court yet again. Jeesamol was a
final year General Nursing student in San Joes Parish Hospital, Pavaratty in Thrissur District. She was preparing to appear for the final year examinations. On 5.12.2005, during the model examination, the invigilator allegedly found her engaging in copying and thereupon, took her to the Principal's room at about 9.30 a.m. The Principal was there. The invigilator left the room after requiring her to remain there and enter the class only after taking permission from the Principal. However, Jeesamol went from there to her room in the hostel and allegedly attempted to hang herself on the fan using her
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own shawl. Her fellow students and friends who came to know about this, attempted to rescue her and in that bid, cut the shawl and brought her down. The two injuries found on her left hand were taken to suggest an attempt to commit suicide by cutting blood vessels. She was taken to hospital and was declared dead. Consequently, crime No.504 of 2005 of Pavaratty Police Station was registered under the caption 'unnatural death'. The room of Jeesamol which is the scene of occurrence was allegedly noted as closed from inside by her by putting a cot across the door and that was found as the practice in the hostel for closing the doors as the doors in all the rooms in the hostel are latchless. The investigating officers drawn the conclusion that Jeesamol committed suicide, in the circumstances, to escape the trauma of insult. Ext.P1 post mortem certificate carried the following opinion as to cause of death:- “Post mortem findings were consistent with death due to hanging”. Obviously, vaginal swab and the smear were preserved for chemical analysis. In Ext.P1, it was noticed that all the neck structures were intact. However, the notings in Ext.P1
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certificate created seeds of suspicion in the minds of the petitioner. As per Ext.P1, the ligature material was neither brought by the police nor present in situ and uterus, os circular, cavity contained thick film of menstrual blood. Incised wound of 2.5x0.8 cms. skin deep on inner and front of left elbow and incised wound of 4.5x0.6 cms. skin deep on inner and front of left wrist were also found on the body. Thereupon, the petitioner filed W.P.(C).No.10032 of 2006. During its pendency, Ext.P2 Chemical Aanalysis Report of vaginal swab and smear was obtained. The report reads thus:- “Human semen and spermatozoa were detected on the vaginal smear and swab covered by item numbers 'a' and 'b' contained in the bottle”. Later, as per judgment dated 10.10.2006 in W.P.(C).No.10032 of 2006 it was ordered to hand over the investigation to CBCID, Thrissur. Later, the investigation was taken over by CBCID, Ernakulam and it was then registered as CBCID Cr.339/CR/EKM/2006. Shortly thereafter, alleging non-progression in the investigation the petitioner filed W.P. (C).No.11554 of 2007 and it was disposed of taking note of the fact
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that the investigation was taken over only on 12.12.2006 and observing that it was an early stage of investigation. The petitioner had again approached this Court by filing W.P.(C).13157 of 2008 availing the liberty granted by this Court in W.P.(C).No.11554 of 2007. Taking note of the various contentions and after perusing the case diary placed before the court, the court formed the opinion that the investigation conducted thus far did not bring credit to the investigators and investigating agency. Upon satisfying that the grievance of the petitioner deserved serious consideration, without expressing specifically on any particular deficiency in the investigation, it was found only befitting to direct a different set of officers to continue the investigation. Accordingly, after hearing the learned Government Pleader, the Special Investigating Group- II, Ernakulam of the Crime Branch constituted specifically to investigate into more serious crimes was directed to take over and continue with the investigation. As per Ext.P3, it was further directed to file bimonthly reports about the progress of the investigation made by
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them. The first report was directed to be filed before this Court by 01.01.2009. Subsequent to Ext.P3, a report was submitted on 20.10.2010 and thereafter, no report was filed by the investigating officer and some or how, the matter again came up before the Bench and as per Ext.P4 judgment dated 22.2.2012 the very same writ petition viz., W.P.(C).No.13157 of 2008 was allowed and a writ of mandamus was issued commanding the first respondent to issue orders consenting to hand over the investigation to the Central Bureau of Investigation (for short 'CBI') and the second respondent to take over the investigation as early as possible. Consequential directions were also issued. Later, on 9.4.2012, Ext.P4 judgment was recalled taking note of the fact that W.P.(C).No.13157 of 2008 was actually allowed as early as on 22.10.2008. The contention of the petitioner is that Ext.P4 judgment was recalled only on the technical reason that W.P.(C).No.13157 of 2008 was allowed earlier as per Ext.P3 judgment. According to the petitioner, Ext.P4 judgment would reveal that taking note of the attending circumstances, this Court thought it
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only appropriate to issue a writ of mandamus directing the respondents to hand over the investigation to the CBI. Subsequent to Ext.P4, no report was filed by the investigating officer, in tune with the directions in Ext.P3 judgment except on 30.5.2012 and a perusal of the same would reveal that practically there was no progress in the investigation despite Ext.P3 judgment. Evidently, even the bimonthly reports have not been filed in terms of the directions in Ext.P3. This writ petition has been filed in the circumstances, with the prayer to issue a writ of mandamus commanding the respondents to entrust the investigation in Crime No.504 of 2005 of Pavaratty Police Station which was re-registered as CBCID Cr.339/CR/EKM/2006 and presently under investigation by the CBCID to the CBI for effective, meaningful and honest investigation.
2. I have heard the learned senior counsel appearing for the petitioner, the learned Government Pleader and also the learned standing counsel appearing for the CBI. In view of Ext.P3 judgment,
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I do not think it necessary to deal with the investigation conducted unto the date of passing of the said judgment. I will refer to Ext.P3 judgment appositely. Paragraph 7 of Ext.P3 judgment would reveal that the case diary was placed before the Court and this Court has gone through the diary exhaustively and thereafter it was held thus:-
“But, I agree that the investigation from 05.12.05 to this date does not bring credit to the investigators and investigating agency. Many loose ends are still there and I am satisfied that the grievance of the petitioner that justice does not at least appear to be done, deserves to be considered seriously. I am in these circumstances satisfied that without expressing specifically on any particular deficiency in the investigation a different set of officers can be directed to continue the investigation in the hope that better, more efficient and more professional investigation shall be made and some break through shall be achieved by such investigators.”
3. Evidently, pursuant to Ext.P3 judgment, the investigation was taken over by the SIG-II Ernakulam of the Crime Branch. Subsequently, two reports were submitted taking into account the directions in Ext.P3 judgment. One such report was submitted subsequent to Ext.P4 judgment which came to be passed directing the
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handing over of the investigation to the CBI. As noticed hereinbefore, later, Ext.P4 judgment was recalled on the ground that W.P.(C). No.13157 of 2008 was allowed earlier as per Ext.P3 judgment. The learned senior counsel appearing for the petitioner submitted that Ext.P4 would reveal that this Court took note of the virtual stalemate in the investigation and passed the said judgment on getting satisfied of the requirement to hand over the investigation to the CBI for doing complete justice in the circumstances. True that Ext.P4 judgment was subsequently recalled for the aforementioned reason. It is submitted that despite its recalling for the aforesaid reason the circumstances that made this Court to pass the same still survive and subsist. It is further submitted that the failure to submit bimonthly reports in tune with the direction in Ext.P3 judgment and the two reports submitted with long intervals would reveal the failure to suss the suspicious circumstances out. The learned senior counsel also took me through the different situations and circumstances for establishing that the investigation is
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infected with lackadaisical attitude and for justifying the prayer of the petitioner for handing over the investigation to the CBI.
4. Before adverting to those contentions it is only appropriate to refer to a decision of a Constitutional Bench the Hon'ble Apex Court in State of **West Bengal and others. v. Committee for Protection of Democratic Rights, West Bengal and others** reported in **2010 (3) SCC 571** . In paragraph 70 thereunder, it was held thus:-
Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations
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against the local police. This extraordinary power must be exercised sparingly, provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete . justice and enforcing the fundamental rights
5. In fact, that was a case wherein the Hon'ble Apex Court was considering the question whether the CBI could be directed to investigate a cognizable offence in a State without the consent of the State Government. It was held that directions issued in exercise of power of judicial review to protect and enforce fundamental rights in general and Article 21 in particular, is valid and is not incompatible with doctrines of federal structure and separation of powers but the said extraordinary power should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility to and instill confidence in investigations or for doing complete justice. Certainly, the findings of the Hon'ble Apex Court that the extra ordinary power of judicial review is to be exercised sparingly, cautiously and in exceptional situation where it becomes
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necessary to provide credibility to and instill confidence in investigations or for doing complete justice will apply in all cases carrying prayers for handing over the investigations to CBI. An investigation agency has to ensure fair and impartial investigation to provide credibility and also to instill confidence in investigation. The question is whether the investigation till now conducted in this case by the state investigating agencies is capable of providing credibility and instilling confidence in it and if not, whether there are exceptional circumstances to order handing over the investigation to CBI or whether for doing complete justice such an order is necessary? In this case the petitioner relies on Exts.P3 and P4 judgments of this Court passed in W.P.(C).No.13157 of 2008 moved by the petitioner. How far Ext.P4 judgment can be relied on by the petitioner is doubtful as the same was admittedly recalled.
6. As noticed earlier, originally, Crime No.504 of 2005 of Pavaratty Police Station was registered under the caption 'unnatural
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death' and that the investigating officers of the local police after investigation gravitated to the conclusion that it was a case of suicide by the hapless girl who was caught for copying solely for escaping from the trauma of the said insult. Ext.P1 is the post mortem report that carries the opinion consistent with death due to hanging. Ext.P1 would reveal that all neck structures were in tact. Ext.P2 chemical analysis report of the vaginal smear and swab of the deceased Jeesamol reports the presence of human semen and spermatozoa in them. In Ext.P3 this Court observed that the person who is responsible for the deposit of semen in the vagina was not traced out though the death had occurred on 5.12.2005. This aspect was seriously taken note of by this Court in Ext.P3 judgment. If the deceased Jeesamol who was caught for copying and was taken to the principal by the invigilator returned from principal's room to the hostel disturbed but, determined to commit suicide can anyone think that such girl on her way to the hostel went somewhere to have sexual intercourse and then returned to the room for committing suicide to
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escape the trauma of the incident of being caught while copying in the model examination? So also, can anyone simply comprehend to any suggestion that on that day prior to the examination she had sexual intercourse with someone and then appeared for the model examination? Admittedly, the deceased Jeesamol was a hosteller and it is nobody's case that she was missing from the hostel on the previous night or any immediately preceding days. Thus, in any view of the matter identifying the person who deposited semen in her vagina and the approximate time when he had sexual intercourse with the deceased Jeesamol, whether she had sexual intercourse on her own will or whether she was made to yield for that, are material facts. In this context, the following recital in paragraph 6 of Ext.P3 judgment assumes relevance:-
“All possible steps are being taken to ascertain the cause of presence of semen in the vagina of the girl. The investigating officer does not at the moment entertain any doubt or suspect about the cause of death, but only after completing the investigation can all the doubts be eliminated. In spite of his best efforts, no clue has been obtained as to who might have
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had sexual relationship with the girl and when. According to the investigating officer, the available indications do not at all suggest that there was or could have been a sexual inter course with the girl after she was caught copying and before she died. At any rate, a final opinion can be reached only after the investigation is completed and all possible efforts are made to collect the clues. It is true that death had occurred on 5.12.2005 and the police have not been able to trace the person responsible for the deposit of semen in the vagina.”
7. Paragraph 4 of Ext.P3 judgment is also relevant in the
contextual situation. It, in so far as relevant, reads thus:-
“Even now the person who is responsible for the presence of semen in the vagina of the girl has not been ascertained. The petitioner believes that identification of such person will afford a clinching clue to the cause of death of the deceased. She has other grievance also. According to her, the neck structures are found in tact in the post mortem certificate and on the basis of that the petitioner suspects the theory of the girl attempting suicide by hanging. The petitioner further asserts that her daughter had the blood group 'O positive', whereas the blood in the clothes of the deceased were found to be of 'B positive'. The petitioner has suspicion against 5 persons. She has intimated that suspicion to the police. The police have not
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effectively worked on those suspicions/apprehensions expressed by the petitioner. The petitioner points out that right from the beginning, no proper investigation is being conducted. In fact, the Superintendent of Police has proceeded against the Sub Inspector of Police, who had not conducted the initial investigation properly. From this the petitioner apprehends that at the very beginning the police had played a negative role to help and support persons who, she thinks, are really responsible for the death of her child. The petitioner has further suspicion on the basis of cleaning of the room hurriedly by the hostel/college authorities. She suspects and draws negative inference from the fact that the clothes which were worn by the girl were removed before she was taken to the hospital. She points out that no tangible reason is there for suicide. According to her, her daughter may not have committed copying and at any ate that reason could not have persuaded a strong willed girl, like the deceased, to commit suicide. The petitioner further laments that, the ligature, which was used for the alleged attempt to commit suicide, has not been subjected to any proper test. Though records reveal that the fibres from one hand had been taken using cello tape for scientific tests, no such test has been conducted to confirm the theory of suicide with the fibres of the ligature used.”
8. True that this Court, in Ext.P3, desisted from expressing
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specifically on any particular deficiency in the investigation but at the same time found that many loose ends were still there and taking note of the various circumstances, as stated in the above extracted portions, ordered for changing the set of officers for continuing with the investigation. Consequently, the investigation was directed to be continued by SIG- II Ernakulam of Crime Branch and bimonthly reports were directed to be filed from 1.1.2009. Despite such directions, it is to be noted that only twice such reports viz., one each prior and after Ext.P4, were filed. The fact remains that despite the death of the petitioner's daughter on 5.12.2005, the investigating officers who are conducting the investigation are groping in the dark and the investigation is yet to produce any tangible and reasonable result. Despite the circumstances pointedly referred to in Ext.P3 judgment no reports revealing any serious and effective investigation was submitted before this Court and it is fairly submitted by the learned Government Pleader that the investigating officers are yet to have any clue regarding the presence of foreign blood on the dress worn by
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Jeesamol at the relevant point of time and also regarding the person who had sexual intercourse with the deceased Jeesamol. Whether it happened prior or subsequent to the alleged incident of copying and whether she was threatened to yield for sexual intercourse are also matters, which the petitioner thinks, would throw light to the real cause of death. What is the progress in the investigation, if at all made, relating the removal of dresses and the alleged hurried cleaning of the room? Why the ligature which was used for the alleged attempt to commit suicide, was not subjected to proper tests? Despite the change of investigating agencies and the new set of investigating officers also did not have any clue of such material aspects.
9. The failure on the part of the investigating officers to file bimonthly reports complying with the directions in Ext.P3 judgment is a matter that calls for proper explanation. The said failure on the part of the investigating officers constrained this Court to pass an order on 20.3.2013 directing the investigating officer in Crime
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No.504 of 2005 of Pavaratty Police Station, re-registered as CBCID Cr.339/CR/EKM/2006 to file a report regarding the present stage of investigation. Accordingly, a statement of facts was filed on 4.4.2013. Paragraphs 1 to 11 of the statement carry narration of facts which were already furnished to this Court. In paragraph 12 it is stated that consequent to the re-organization of the CB CID all the units of Crime Branch CID including SIG-II were abolished and reorganized into three wings with effect from 1.1.2010 and later, the case was transferred to Homicide & Hurt Wing-II, Ernakulam and as per the direction of the Superintendent of Police, CB CID HHW-II, Ernakulam Sri.K.K.Aji, DySP, CB CID, HHW-II, Palakkad sub unit took over the investigation of the case on 10.2.2010. The question is whether there is any progress in the investigation of the case subsequently. A careful consideration of the statements in the rest of the paragraphs of the statement filed on 4.4.2013 would not actually reveal any progress in the investigation of the case. True that, it would reveal that the investigating officer questioned the Doctor who
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conducted the autopsy, the Assistant Chemical Examiner and Assistant Director, Serology Division, Forensic Science Laboratory, Thiruvananthapuram and the Joint Chemical Examiner, Chemical Examiners Laboratory, Thiruvananthapuram to get clarification on the blood grouping results which were actually different when tested in different labs. A perusal of the statements in paragraphs 14 and 15 of the aforesaid statement would reveal that the Assistant Chemical Examiner Sri.V.I.Sreekumar stated that on chemical analysis a light positive reaction of `O' group obtained in item numbers 1 (Shawl piece), 4 (Churidar pant), 6 (Sheddy) and 7 (Shawl piece with seminal stain). However, it was stated that the predominant reactions were obtained for `B' group and that is why he had given opinion in the report regarding the presence of blood belonging to `B' group. Dr.Thomas Alexander who conducted the scientific examination at Serology Division, Forensic Science Laboratory, Thiruvananthapuram gave the reasons as to how he came to the conclusion that the blood stains found in Item Nos.1, 3 and 5 to 7 in the materials sent for
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analysis as belonging to group `O'. The earlier statement would reveal that the blood group of the deceased Jeesamol was `O' group. As noticed hereinbefore, the report by Sri.V.I.Sreekumar revealed the presence of blood stains belonging to `B' group on certain items of material objects sent for chemical analysis. Certain disturbing facts are revealed from paragraph 17 of the statement. The death occurred on 5.12.2005. MOs item Nos. 1 to 6 (shawl piece, brassier, churidar top, pants, petty coat, sheddy) were seized by S.I. of Police Police, Pavaratty only on 9.12.2005 at 10.00 hrs. nearly 96 hrs. after the time of occurrence and that too, when they were produced by the Principal of San Joes Nursing School, Pavaratty, Thrissur. In paragraph 17 of the said statement, it is stated therein that both the material objects were produced before the SDM Court on 20.6.2006 and 19.6.2006 respectively that is, after about 6½ months from the date of occurrence. In the next sentence of the said paragraph it is stated that the dress worn by the deceased at the time of hanging viz., MOs item Nos.1 to 6, was removed from her body at the side room of the
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casualty by the nurse-in-charge of casualty namely, Sister Elsi since the deceased passed urine and stool. The facts revealed from paragraph 17 would show that MOs item Nos.1 to 6 were removed from the body at the side room of the casualty by the nurse-in-charge namely, Sister Elsi and in the very same paragraph it is stated that they were actually produced by the Principal of San Joes Nursing School, Pavaratty on 9.12.2005 and they were seized by the S.I. of Police, Pavaratty at 10.00 hrs. on that day. Why such a delay occurred in the matter of seizure of the material objects ? There is considerable delay in the matter of production of the material objects before the SDM Court viz., about 6½ months from the date of occurrence and there is considerable delay even after the seizure of the material objects. True that the further statements in paragraphs 18 to 21 would reveal the fact that the investigating officer had questioned certain male staff and doctors of San Joes Hospital as also the priests who had access to the institutions to verify their complicity in this case. In paragraph 22 it is stated that a further detailed
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questioning of the experts is highly essential to ascertain certain facts. It is stated in paragraph 24 of the statement that from the investigation conducted so far the exact motive behind the suicide committed by Jeesamol could not be found out. I have already adverted to the suspicious circumstances that shrouded the death. Without identifying the person who had sexual intercourse with the deceased Jeesamol how could, with precision such a conclusion be drawn that it is a case of suicide. I have no hesitation to hold that the investigation conducted since Ext.P3 judgment would reveal absolute absence of progress in investigation. In the said circumstances, it cannot be said that the matter was appositely investigated so as to instil confidence in the investigation especially taking into account the fact that the death of Jeesamol occurred on 5.12.2005. Statement filed on 4.4.2013 itself would reveal the lackadaisical attitude on the part of the investigating officers who conducted the investigation at the initial stage. There is nothing on record to show that whether any investigation was conducted to find out the cause of the delay in the
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matter of production/seizure of MOs item Nos.1 to 6 despite the fact that the incident occurred on 5.12.2005. As noticed hereinbefore, all these factors would suggest that there is failure to suss out the suspicious circumstances. In the circumstances I am of the view that the petitioner is justified in approaching this Court with the aforementioned prayer. The three reports submitted subsequent to Ext.P3 judgment would not provide credibility to the investigation. In the totality of the circumstances and considering the plight of the petitioner who lost her daughter I am of the view that the petitioner is justified in seeking transfer of the investigation to CBI. As noticed hereinbefore the death had occurred on 5.12.2005. Despite the long lapse of years the crucial aspect as to the identity of the person who had sexual intercourse with deceased Jeesamol which if detected would give clue to the entire circumstances that culminated in her death, is yet to be unearthed. To ensure that the case was appositely investigated and to instill confidence in the investigation I am of the view that the investigation has to be transferred to the CBI.
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I have heard the learned standing counsel for the CBI as well. The learned standing counsel fairly submitted that it is a fit case to be investigated by the CBI. In such circumstances, I find that it would only be appropriate to allow this writ petition and to order transfer of investigation to the second respondent. In the result, this writ petition is allowed. The first respondent is directed to issue orders giving consent to hand over the investigation of the case to the second respondent expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment and on receipt of the same, the second respondent shall take over the investigation in accordance with law as early as possible. I hope and trust that the CBI would conduct the investigation with utmost objectivity and speed up the investigation and file a final report at the earliest.
## **Sd/-**
## **C.T. RAVIKUMAR (JUDGE)**
**spc**
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**C.T. RAVIKUMAR, J.**
**JUDGMENT September, 2010**
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