Rajan @ Ramu v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 04TH DAY OF MAY 2020 / 14TH VAISAKHA, 1942 WP(C).No.30976 OF 2018(V)** ## **PETITIONER:** **RAJAN @ RAMU AGED 49 YEARS S/O.KUNJIRAMAN, POONTHAKONATH THEKKETHIL, KOCHANJILIMOODU, EZHUKONE VILLAGE AND P O, KOLLAM DISTRICT, PIN-691505.** **BY ADVS. SRI.S.K.BALACHANDRAN SRI.V.K.NANDAKUMARAN SRI.K.M.BIJU SMT.N.D.DEEPA** ## **RESPONDENTS:** **1 STATE OF KERALA REP. BY THE SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695001.** - **3 THE DISTRICT POLICE SUPERINTENDENT KOLLAM (RURAL), PIN-691506.** 2 W.P.(C) No.30976 of 2018 **4 THE INSPECTOR OF POLICE EZHUKONE POLICE STATION, PIN-691505.** **R1 BY SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-01-2020, THE COURT ON 04-05-2020 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.30976 of 2018 ## **P.B.SURESH KUMAR, J.** **-----------------------------------------------** ## **W.P.(C) No.30976 of 2018** **----------------------------------------------Dated this the 4[th] day of May, 2020.** ## **J U D G M E N T** This is an unusual litigation where the accused, who has been tried and acquitted in a case registered for offences punishable under Sections 305 and 376(2)(f) of the Indian Penal Code and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, seeks orders for further investigation in the case for the purpose of bringing the real culprit to justice. 2. The petitioner, his elder brother Mohanan and his elder sister Sarasamma were residing in adjoining houses. Mohanan had a daughter named Arya, aged 13 years. She committed suicide on 2.2.2015 by hanging herself in a tree near 4 W.P.(C) No.30976 of 2018 her house. The deceased was studying in 8[th] standard at the relevant time. It was Sarasamma who first found Arya hanging in the three. The petitioner went to the spot hearing the hue and cry of Sarasamma. The matter was informed to the Police thereupon by the petitioner. In the autopsy, it was revealed that the deceased was subjected to both vaginal as also anal intercourse. The case which was registered earlier under Section 174 of the Code Of Criminal Procedure (the Code) was consequently amended as one under Sections 305 and 376 of the Indian Penal Code (the IPC) and also under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act (the POCSO Act). In the investigation conducted thereupon, the Police came to the conclusion that it was the petitioner who has abused the deceased sexually and she committed suicide on account of the said reason. Consequently, final report was filed in the case under Sections 305 and 376 (2) (f) of the IPC and Section 3 read with Section 4 and Section 5(l) read with Section 6 of the POCSO 5 W.P.(C) No.30976 of 2018 Act. Exhibit P2 is the final report in the case. The accusation in the case is that the petitioner who was residing alone in the neighbourhood of the house of the deceased has raped and committed penetrative sexual assault on the deceased on 10.1.2015 and on several occasions thereafter at her house and thereby abetted the deceased to commit suicide. 3. In the meanwhile, the petitioner was arrested on 6.2.2015 and as he was not enlarged on bail, he continued in custody. It is seen that on filing the final report in the case, the petitioner preferred Criminal M.P.No.1325 of 2016 before the Special Court, invoking Section 173(8) of the Code, seeking orders for further investigation in the matter. In the affidavit filed in support of the application, the petitioner stated that he is innocent and he is prepared to to prove his innocence by subjecting himself to any scientific investigations. Various circumstances which would cast suspicion of the commission of the offences on other close relatives of the deceased were also 6 W.P.(C) No.30976 of 2018 stated by the petitioner in the affidavit. On an examination of the materials on record, the Special Court took the view that it is a case where further investigation is essential to find out the real culprit and accordingly allowed the application and directed the Police officer concerned to conduct further investigation in the matter, having regard to the allegations in the application as also, after subjecting the petitioner to scientific investigative tests such as brain mapping, polygraph etc. Exhibit.P4 is the order passed by the Special Court in this connection. Exhibit P5 is the report filed by the investigating officer in this regard. In Exhibit P5, the investigating officer has stated that various persons towards whom the petitioner has pointed his finger are innocent and has also given reasons for arriving at the said conclusion. It is also stated by the investigating officer in the report that insofar as the materials on record establish the guilt of the petitioner beyond doubt, it is unnecessary to subject the petitioner to any scientific investigative tests. 7 W.P.(C) No.30976 of 2018 4. The Special Court accepted Ext.P5 report and proceeded with the trial of the case. In fact, the prosecution was relying on circumstantial evidence to prove the guilt of the petitioner. In order to prove the circumstances, the prosecution was relying mainly on the evidence of PW1, the mother of the deceased, PW4, the father of the deceased, PW5, the paternal aunt of the deceased and PW6, the neighbour of the deceased. All of them except PW1 turned hostile. They have even deposed that they do not even suspect the accused. PW1 though deposed in tune with the prosecution case, the court found that the evidence of PW1 which is not even supported by the father of the deceased, would only show that PW1 entertains a grave suspicion over the petitioner and the same cannot substitute proof in a case of the instant nature. Accordingly, the petitioner was acquitted. Ext.P3 is the judgment rendered by the Special Court in this regard. 5. Immediately on release from custody, the 8 W.P.(C) No.30976 of 2018 petitioner preferred Ext.P6 representation to the Director General of Police stating that he is innocent in the case, and sought appropriate action to bring the real culprit to justice. It is seen that Ext.P6 representation was forwarded by the Director General of Police to the Station House Officer concerned for his remarks. Ext.P7 is the remarks forwarded by the Station House Officer on Ext.P6 representation. The stand taken in Ext.P7 is that Ext.P6 representation is only an attempt made by the petitioner to save his face from the social stigma on account of the accusation in the case. It is aggrieved by the inaction on the part of the Director General of Police in taking appropriate action on Ext.P6 representation, that the petitioner has approached this Court in this writ petition seeking orders for further investigation in the matter to bring the real culprit to justice. 6. A statement has been filed in the matter by the Station House Officer concerned. The stand taken in the statement is that there are no laches at all in the investigation 9 W.P.(C) No.30976 of 2018 and that the final report in the case has been filed with the approval of the District Government Pleader concerned. 7. Heard the learned counsel for the petitioner as also the learned Public Prosecutor. 8. The learned counsel for the petitioner forcefully contended that it is a case where there was no investigation at all, much less any fair and proper investigation, and the final report was filed arraying the petitioner as the accused solely based on suspicion. It was also contended by the learned counsel that the materials placed along with the final report were not sufficient to establish the guilt of the accused and though the Special Court having noticed the same, ordered further investigation in the matter, the investigating officer refused to conduct a fair and proper investigation even thereafter. It was also contended by the learned counsel for the petitioner that it was a case where scientific investigations should have been conducted, and despite the specific directions issued by the 10 W.P.(C) No.30976 of 2018 Special Court, the investigating officer has not taken pain to conduct the same. It was further contended by the learned counsel that on account of the callous indifference and negligence on the part of the investigating officer in conducting a fair and proper investigation, the real culprit in the case could escape from the clutches of law, and in addition, the petitioner who is innocent in the matter had to suffer incarceration unnecessarily for about three years. In short, the submission of the learned counsel was that the real culprit in a case of this nature should not be left scot-free and it is the duty of the State to bring him to justice by conducting further investigation in the matter. 9. Per contra, the learned Public Prosecutor has reiterated the stand taken by the State in the statement filed in the matter. 10. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties on 11 W.P.(C) No.30976 of 2018 either side. 11. It is beyond cavil that a person suspected of or accused of having committed an offence has a fundamental right to have a fair and proper investigation in the case. The aforesaid right flows from Articles 21 and 22 of the Constitution. The concept of fair and proper investigation postulates mainly two aspects. The first aspect is that the investigation shall be unbiased, honest, just and in accordance with the law. The second aspect is that the same should bring out the truth of the case. No doubt, the investigation in terms of the provisions of the Code is the prerogative of the Police and in the light of Section 173(8) of the Code, the Police is empowered to conduct further investigation even in a case where the final report has already been filed. It is settled that if the court before whom the final report is filed finds that either the materials on record are not sufficient to prove the guilt of the accused or it is necessary to order further investigation in the matter to book the real culprit, it 12 W.P.(C) No.30976 of 2018 is also empowered to order further investigation in the case. It is also settled that on receipt of new evidence, the Police is empowered to conduct further investigation even in cases where the accused has been tried [See **Zahira Habibulla H. Sheikh v. State of Gujarat** (2004) 4 SCC 158 and **Mani M.M. v. State of Kerala** 2012 (3) KLT 118]. Similarly, it is also settled that where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, superior courts are empowered even to set at naught the investigation and direct de-novo investigation, if necessary, even by another independent agency [See **Vinay Tyagi v. Irshad Ali** (2013) 5 SCC 762]. In the light of the aforesaid propositions, there cannot be any doubt that in an appropriate case where this Court finds that the investigation was not fair and proper, it is obliged to order re-investigation or further investigation in the matter, notwithstanding the fact that there has been a trial pursuant to the final report already filed and the person arrayed as accused has been acquitted, for, otherwise the faith and 13 W.P.(C) No.30976 of 2018 confidence of the people in the criminal justice administration would be eroded. 12. Now I shall consider the merits of the matter. As noted, the petitioner has filed Criminal M.P.No.1325 of 2016 before the Special Court stating that he is willing to undergo scientific investigative tests such as brain mapping, polygraph etc. to establish his innocence and despite the fact that the court directed the investigating officer to subject the petitioner to the said scientific investigative tests, the investigating officer refused to do so on the premise that the materials placed on record along with the final report would establish the guilt of the accused and it is unnecessary to subject the petitioner to any scientific investigative tests. Exhibit P4 order passed by the Special Court in this connection reveals that the Special Court has in fact found in the said order that a further investigation is necessary in the case to book the real culprit and it is in the said background that the court ordered further investigation including scientific 14 W.P.(C) No.30976 of 2018 investigations. Exhibit P5 report filed by the investigating officer in the case pursuant to Exhibit P4 order proceeds on the premise that it is the responsibility of the petitioner to find out the real culprit, if he is not the real culprit, and consequently the investigating officer has only ruled out the suspicion on the part of the persons against whom the petitioner has pointed his fingers for having committed the offence. 13. What is expected from the investigating officer in a case of the instant nature is not merely to find out the offender, but to place on record the evidence, on the basis of which the guilt of the offender could be proved. True, in every case, it may not be possible to collect direct evidence, and in such cases, the guilt of the accused is to be proved by reliable circumstantial evidence. A Police Officer empowered to investigate a heinous crime of the instant nature is expected to know at least that the law relating to circumstantial evidence is that the circumstances relied on to prove the guilt of the accused should form a chain from which the 15 W.P.(C) No.30976 of 2018 only inference possible would be the guilt of the accused. The final report filed in the case is part of the records and I have meticulously perused the same. The circumstances sought to be proved by the prosecution through the evidence of the mother of the deceased were that the petitioner who is the brother of the father of the deceased has been residing alone in the house adjacent to the house of the deceased; that the petitioner used to have food from the house of the deceased; that the petitioner used to express love and affection towards the deceased; that the petitioner used to give to the deceased eatables; that the petitioner has once taken the deceased to his house in the pretext of giving her dress bought by him for her and has not given the same as agreed; that the petitioner used to peep into the house of the deceased during late hours and that the petitioner has once misbehaved with the mother of the deceased as well. The father of the deceased was also cited to give evidence in the aforesaid lines. The paternal aunt of the deceased was cited to prove that 16 W.P.(C) No.30976 of 2018 the accused has unusually required her to take care of the deceased on the date of occurrence. In addition to the aforesaid three persons, the prosecution has cited a neighbor of the deceased also to give evidence to the effect that he has seen the petitioner near the house of the deceased on the date of occurrence. As stated above, the father of the deceased as also the paternal aunt of the deceased have not supported the prosecution case. Even if both of them had deposed in tune with the prosecution case, the same along with the evidence tendered by the mother of the deceased would not, according to me, constitute circumstances sufficient to come to the irresistible conclusion that the petitioner is the culprit in the case. In other words, it is a case where final report was filed without sufficient materials. It is stated in the final report that the accused has voluntarily confessed during interrogation that it is he who has committed the crime. It is therefore, clear that it is on that premise that the final report has been filed in the matter, and not 17 W.P.(C) No.30976 of 2018 based on evidence collected by the investigating officer. To say the least, there is callous indifference and negligence on the part of the investigating officer in conducting the investigation in the case. Needless to say, there has not been a fair and proper investigation in the matter. As noted, if a fair and proper investigation is not conducted in cases of the instant nature so as to bring the real culprit to justice, the faith and confidence of the people in the criminal justice administration would be eroded. I am conscious of the fact that in the light of the protection available to the petitioner under the principle of 'autrefois acquit', the writ petition might be a safe game for the petitioner to save his face from the social stigma on account of the accusation in the case. At the same time, having regard to the manner in which the investigation in the case has been conducted as discernible from the materials on record, I am of the view that a further investigation in the matter is necessary in the interest of justice. In the result, the writ petition is allowed and the second 18 W.P.(C) No.30976 of 2018 respondent is directed to entrust the matter relating to Crime No.127 of 2015 of Ezhukone Police Station to an appropriate officer with a direction to conduct a re-investigation or further investigation as the case warrants. It is also directed that the officer to whom the investigation is entrusted shall be free to subject the petitioner to appropriate scientific investigative tests. A report as to the progress of the investigation shall be filed before the special court within six months. **Sd/P.B.SURESH KUMAR, JUDGE.** Tgs 19 W.P.(C) No.30976 of 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE FIR NO.127/2015 OF EZHUKONE POLICE STATION.** - **EXHIBIT P2** - **TRUE COPY OF THE FINAL REPORT DATED 30/04/2015 IN CRIME NO.127/2015 SUBMITTED BEFORE THE DISTRICT AND SESSIONS COURT, KOLLAM.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 30/01/2018 IN SC NO.555/2015 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT & SESSIONS COURT, KOLLAM.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 06/08/2016 IN CRL. M.P. NO.1325/2016 PASSED BY THE 1ST ADDITIONAL DISTRICT COURT, KOLLAM.** - **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 30/09/2016 SUBMITTED BY THE INSPECTOR OF POLICE, EZHUKONE BEFORE THE 1ST ADDITIONAL DISTRICT COURT, KOLLAM.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 17/04/2018 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS.** - **EXHIBIT P7 TRUE COPY OF THE REPORT DATED 02/06/2018 SUBMITTED BY THE INSPECTOR OF POLICE BEFORE THE DISTRICT POLICE SUPERINTENDENT, KOLLAM RURAL.**