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Gujarat High Court · body

2014 DIGILAW 134 (GUJ)

Praveen Kumar Agarwal v. State of Gujarat

2014-01-30

HARSHA DEVANI

body2014
JUDGEMENT HARSHA DEVANI, J. 1. Rule. Mr. Himanshu Patel, learned Additional Public Prosecutor waived service of notice of rule on behalf of the respondent. 2. By this petition under Article 226 and 227 of the Constitution of India, the petitioner (original first informant) seeks the following reliefs: “9. The petitioner most humbly prays: (i) That the Hon’ble Court may be pleased to direct the independent agency to investigate the unnatural death of deceased Shubra and the surrounding circumstances to determine the nature of the offence committed by the accused and others if their involvement is emerging from fresh/further investigation. (ii) That any proper and just direction may be issued for securing the ends of justice in respect of the unnatural death of the deceased Shubra. (iii) That any just and proper order may be passed.” 3. The facts of the case as averred in the petition are that the petitioner filed a complaint before the Deputy Superintendent of Police, Bharuch on 01.07.2013 at 12:30 p.m. which came to be registered as a first information report vide Bharuch “C” Division Police Station I – C.R. No. 108 of 2013. The concerned Police Officer of Bharuch “C” Division Police Station did not record the complaint when the first informant reached Bharuch on 30.06.2013 at about 10:00 p.m. On receipt of the information regarding the unnatural death of his daughter Shubra, the petitioner had informed the police authorities to wait for the postmortem till their arrival and accordingly, the police had not proceeded for the postmortem examination. The petitioner had serious doubts about the circumstances relating to the death of his daughter Shubra and on his arrival at Bharuch, he had gone to see the dead body in cold storage at Rangun Hospital at night on 30.06.2013. Thereafter, petitioner revisited the cold storage at Rangun Hospital on 01.07.2013 and took photographs of his daughter on his mobile. According to the petitioner, these photographs raised serious doubt and suspicion about the manner of the death of his daughter. 4. According to the petitioner, various aspects which are reflected in the photographs are not reflected in the postmortem report as well as the inquest report. That initially, the petitioner had revealed the facts as conveyed to him by the family of the accused and he was desirous of having proper investigation. 4. According to the petitioner, various aspects which are reflected in the photographs are not reflected in the postmortem report as well as the inquest report. That initially, the petitioner had revealed the facts as conveyed to him by the family of the accused and he was desirous of having proper investigation. During the course of investigation, the petitioner raised certain points and provided scripts of conversation on Whats-App between the complainant and her sister Neha and similar scripts of conversations between the accused Devesh with deceased Shubra and Neha. 5. It is the case of the petitioner that though the High Court had not entertained the regular bail application of accused Devesh who was in custody from 02.07.2013, the Investigating Officer, without waiting for the final report as to the cause of death from the Medical Officer who performed the postmortem and without receipt of the FSL report, submitted the charge-sheet on 05.08.2013 for the offence under section 306 of the Indian Penal Code. Moreover, the transcript of Whats-App conversation between Neha and Devesh on 29th June upto 9:24 p.m. and between Shubra and Devesh upto 8:08 p.m. have not been produced with the papers of the charge-sheet. Thus, on an incomplete investigation, the Investigating Officer submitted the charge-sheet on 05.08.2013 for the offence under section 306 IPC. It is the case of the petitioner that the fact that the death took place within four and half months of the married life and the details of conversation on Whats-App prima facie suggesting cruelty meted out and disclosing the commission of offence under section 498A IPC, the charge-sheet merely reflected the offence under section 306 IPC, when the final cause of death was not prima facie available to the investigating agency. These aspects clearly revealed facts about the highly perfunctory and biased investigation having been carried out by the investigating agency only with a view to help the accused. The petitioner has narrated various infirmities in the investigation carried out by the investigating agency in the light of which, the present petition has been filed seeking the reliefs noted hereinabove. 6. In response to the averments made in the memorandum of petition, an affidavit-in-reply has been filed by one Sarjibhai Devjibhai Gamit, Police Sub Inspector “C” Division Police Station, Bharuch, denying the allegations made in the memorandum of petition. 6. In response to the averments made in the memorandum of petition, an affidavit-in-reply has been filed by one Sarjibhai Devjibhai Gamit, Police Sub Inspector “C” Division Police Station, Bharuch, denying the allegations made in the memorandum of petition. It is stated therein that after carrying out due investigation, a charge-sheet has been lodged against the accused. That the petitioner instead of approaching the concerned court by filing an application under section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), has directly approached this court and has prayed for fresh/further investigation and as such, the petition itself is not maintainable, in view of there being an efficacious alternative remedy under the Code. It is further stated that as per the FSL report dated 19.08.2013, no poisonous material has been detected from the viscera and as per histopathological report from the SSG Hospital, Vadodara, the cause of death is due to asphyxia due to hanging. It is further stated that since the marriage span of the deceased and the accused was less than seven years, the Deputy Superintendent of Police had carried out the investigation under section 174 of the Code. Subsequently, the first information report came to be lodged for the offence under section 306 IPC and the statements recorded by the Deputy Superintendent of Police during the inquiry into the accidental death form part of the investigation carried out pursuant to the said first information report. It is further averred that the Scientific Officer, Forensic Science Investigation Van, Bharuch had visited the scene of offence on 30.06.2013 and had given his report, wherein he has opined that prima facie the deceased had committed suicide by climbing on the chair and tying her odhani (dupatta) with the ceiling fan. It is also stated that the conversation on Whats-App provided by the petitioner is already forming part of the charge-sheet. It is further stated that in the statement of the petitioner recorded by the Deputy Superintendent of Police on 01.07.2013, there is not even a whisper about any allegation which would constitute an offence under section 498A of the Indian Penal Code. A copy of the postmortem report, various photographs, and other documents have been annexed along with the said affidavit-in-reply. 7. Mr. A copy of the postmortem report, various photographs, and other documents have been annexed along with the said affidavit-in-reply. 7. Mr. A.D. Shah, learned counsel for the petitioner submitted that the conversation on Whats-App between the deceased and Devesh clearly reveal the cruelty meted out by the accused which resulted into the unnatural death of his daughter Shubra. Despite the fact that the death took place within four and half months of her married life and the details of conversations on Whats-App, prima facie, suggesting that the deceased was subjected to cruelty, thereby constituting the offence under section 498 of the Indian Penal Code, the charge-sheet has been filed merely in respect of the offence under section 306 IPC despite the fact that at the relevant time, the final cause of death was not available with the Investigating Agency. Thus, a highly perfunctory and biased investigation has been made only with a view to help the accused. It was pointed out that despite the fact that in the postmortem report, ligature mark was present and certain injuries were disclosed, the Investigating Officer did not bother to obtain clarifications as regards the cause of death. It was contended that in the absence of any material suggestive of suicide by the deceased and excluding the possibility of homicidal death, the submission of the charge-sheet for the offence under section 306 IPC only is highly unwarranted. It was urged that the Investigating Officer appears to have been carried away by the statement of the accused about the circumstances in which the death of the deceased Shubra was reported by him. According to the learned counsel, the Investigating Officer failed to properly appreciate the scene of offence, viz. that considering the distance between the blades of the fan and the floor, it is very difficult to believe that the deceased could have committed suicide in the manner suggested. It was pointed out that the panchnama clearly reveals that the chair was lying near the wall touching the cupboard which clearly rules out the possibility of suicide as alleged by the husband. Moreover, considering the height of the deceased and the height of the chair, it would not have been possible for her to tie a knot on the iron rod and blade of the fan. Moreover, considering the height of the deceased and the height of the chair, it would not have been possible for her to tie a knot on the iron rod and blade of the fan. Moreover, the conduct of the accused in not calling or taking help of Mobile 108 soon after bringing down the dead body as alleged by him and doing the same only on the advice of neighbours who arrived later, was also required to be considered. It was pointed out that it was the case of the accused that the laundry man had come to take the laundry; however, his statement had not been recorded. The statements of the persons from Mobile 108 have also not been recorded to ascertain as to what was the information conveyed and what they had noticed on reaching the bed-room of the flat. It was urged that all these aspects have been purposely ignored during the course of investigation and valuable evidences have not been collected properly. It was also pointed out that the complainant was not very conversant with the Gujarati language and hence, non-recording of the complaint in Hindi has resulted into misinterpreted facts and the version as given by the complainant has not been properly reflected in the first information report. It was, accordingly, urged that the unholy haste on the part of the Investigating Officer in submitting the charge-sheet without the final medical opinion based on the final forensic science laboratory report clearly reflects bias on the part of the Investigating Agency as well as the perfunctory manner in which the investigation had been carried out. It was, accordingly, urged that it is absolutely essential that some independent agency should be directed to investigate all the relevant aspects about the unnatural death of the deceased and the relevant circumstances to establish the nature of the offence committed by the accused. 8. Vehemently opposing the petition, Mr. Himanshu Patel, learned Additional Public Prosecutor raised a preliminary objection to the very maintainability of the petition. It was submitted that in effect and substance, what the petitioner seeks is further investigation into the offence in question, under the circumstances, the remedy that was available to the petitioner was to move an application under sub-section (8) of section 173 of the Code before the concerned court. It was submitted that in effect and substance, what the petitioner seeks is further investigation into the offence in question, under the circumstances, the remedy that was available to the petitioner was to move an application under sub-section (8) of section 173 of the Code before the concerned court. However, the petitioner has failed to avail of the appropriate remedy under the Code and has directly approached this court by way of the present petition under Article 226 of the Constitution of India. The petition, therefore, deserves to be dismissed on this count alone. 8.1 Reliance was placed upon the affidavit-in-reply filed on behalf of the respondents, to submit that the Investigating Agency had duly carried out the investigation in accordance with the provisions of the Code and that the allegations made in the petition are without any basis. It was submitted that in fact, pursuant to the incident which took place on 29.06.2013, the police authorities were informed by the petitioner to preserve the dead body of the deceased in the cold room till he arrived at Bharuch. Accordingly, the postmortem was carried out on 01.07.2013 by a panel of two doctors in the Civil Hospital, at Bharuch after the arrival of the petitioner. It was submitted that as per the postmortem report, the cause of death was kept pending and the viscera report was sent to the Forensic Science Laboratory for chemical analysis and also to the SSG Hospital, Vadodara for histopathological examination. That as per the FSL report dated 19.08.2013, no poisonous material was detected from the viscera and as per the histopathological report, the cause of death is due to asphyxia due to hanging. It was further pointed out that since the marriage span of the deceased and the accused was less than seven years, the investigation was carried out by the Deputy Superintendent of Police under section 174 of the Code and statements were recorded during the course of inquiry of accidental death of the petitioner. Subsequently, the first information report in question came to be lodged for the offence under section 306 of the Indian Penal Code and the statements recorded by the Deputy Superintendent of Police during the course of inquiry under section 174 of the Code forms part of the investigation in respect of the offence in question. Subsequently, the first information report in question came to be lodged for the offence under section 306 of the Indian Penal Code and the statements recorded by the Deputy Superintendent of Police during the course of inquiry under section 174 of the Code forms part of the investigation in respect of the offence in question. 8.2 It was submitted that during the course of investigation, the police authorities had recorded the statements of other witnesses also. Besides, when the first information report was lodged, the concerned Deputy Superintendent of Police was present and the statements of the witnesses were also recorded by him. It was contended that the present petition has been filed only on the basis of doubt about the circumstances pertaining to the death of the daughter of the petitioner. The police had taken photographs of the dead body on 30.06.2013 and the petitioner had also taken photographs on his mobile phone on 01.07.2013 at the hospital. However, in view of the fact that in the photographs taken by the petitioner, some discharge of fluid/foam was found from the nose of the deceased, which was not there in the photographs taken by the Investigating Officer, the opinion of the Medical Officer, General Hospital, Bharuch was sought for by a communication dated 28.09.2013. In response thereto, the Medical Office had given his opinion on 28.09.2013 to the effect that in case of asphyxia due to strangulation or drowning, the discharge of fluid/foam is possible and in case where the dead body is preserved for longer period, the discharge of fluid/foam is found from the nose and mouth of the dead body. 8.3 In respect of the contention raised by the learned counsel for the petitioner that having regard to the situation of the scene of incident, it was not possible for the deceased to commit suicide, it was submitted that the Scientific Officer, Forensic Science Investigation Van, Bharuch had visited the scene of offence on 30.06.2013 and had given his report wherein it was opined that prima facie the deceased had committed suicide by climbing on the chair and tying her odhani (dupatta) with the ceiling fan. As regard the scripts of conversation on WhatsApp between the deceased, her sister Neha and accused Devesh, it was stated that the same forms part of the charge-sheet papers and that, a perusal of the conversation indicates that there were minor and routine altercations between the accused and the deceased and there is no material whatsoever so as to warrant fresh/further investigation. In any case, a first information report under section 306 IPC has already been lodged. 8.4 It was further submitted that the statement of the petitioner was recorded by the Deputy Superintendent of Police on 01.07.2013, however, there is not even a whisper of about any allegation which would constitute an offence under section 498A of the Indian Penal Code and that the Investigating Officer has not been carried away by the statement of the accused about the circumstances in which the death of deceased Shubra as alleged. It was argued that the Investigating Officer had taken into consideration the report submitted by the Scientific Officer, Forensic Science Investigation Van, Bharuch during the course of investigation. The statement of the laundry man had also been recorded, however, since nothing fruitful was disclosed, such statement was not placed along with the charge-sheet papers. It was, accordingly, urged that the Investigating Officer has carried out the investigation in a proper manner and in accordance with law and as such does not warrant any interference by this court. It was, accordingly, urged that the petition being devoid of merit, deserves to be dismissed. 9. On the facts and contentions noted hereinabove, the sole question that arises for consideration in the present case is as to whether there is any deficiency in the investigation carried out by the investigating agency so as to call for handing over the investigation to an independent agency and/or directing further/fresh investigation into the offence in question. 10. On behalf of the respondents, a preliminary objection has been raised to the very maintainability of the petition on the ground that the petitioner has an efficacious remedy available under sub-section (8) of section 173 of the Code, whereby he can make an application seeking further investigation before the concerned court where the proceedings have been initiated. 10. On behalf of the respondents, a preliminary objection has been raised to the very maintainability of the petition on the ground that the petitioner has an efficacious remedy available under sub-section (8) of section 173 of the Code, whereby he can make an application seeking further investigation before the concerned court where the proceedings have been initiated. Dealing with the preliminary contention first, while it is true that the petitioner could have filed an application under sub-section (8) of section 173 of the Code seeking further investigation into the offence in question, but at the same time it cannot be gainsaid that the availability of an alternative remedy would not bar the remedy under Article 226 of the Constitution of India. Under the circumstances, the contention as regards the maintainability of the petition does not merit acceptance. 11. The next question that arises for consideration is as to whether the investigation carried out by the investigating agency is perfunctory and as to whether there are serious defects in the manner in which investigation has been carried out so as to call for a change in the investigating agency or further/fresh investigation. 12. The record of the case reveals that the marriage between the deceased and the accused Devesh took place on 14th February, 2013, whereas the incident in question took place on 29th June, 2013, that is, within a span of about four months from the date of the marriage. On a perusal of the Whats-App conversation between the deceased and the accused as well as the deceased and her sister Neha and between Neha and Devesh, it appears that between 8:32 p.m. till 09:24 p.m. on th June, i.e. the date of the incident, conversation was going on between Neha and Devesh wherein he told her that they were drinking liquor and at 9:24 he said they would be having dinner after a little while. On the very same day, the deceased was also interacting with the accused Devesh on Whats-App till 6:55 p.m. From the contents of the conversation immediately before the incident, there does not appear to be any serious problem between the couple, but the accused seems to be curt and in an argumentative mood. On the very same day, the deceased was also interacting with the accused Devesh on Whats-App till 6:55 p.m. From the contents of the conversation immediately before the incident, there does not appear to be any serious problem between the couple, but the accused seems to be curt and in an argumentative mood. An overall perusal of the Whats-App conversation between them shows that the accused has the tendency of using cheap and vulgar language and at times crossing the limit to the extent of being abusive. However, on the other hand the deceased seems to be quite balanced, tolerant and caring and at times appears to be offended by the language used by the accused. However, there is nothing in the conversation as would lead one to think that she would take the extreme step of hanging herself. From the statements of the accused and his parents, it appears that there was an altercation on account of extinguishment of the flame of a diya; however, it is difficult to believe that merely on account of such an altercation she would take such a drastic step. On the other hand the conduct of the accused before and after the incident is also required to be kept in mind. As is borne out from the statement of Anilkumar Bachchanchand, father of the accused, till 09:00 p.m., the deceased and accused-Devesh had talked with him and his wife, and had said that they were enjoying themselves. From the Whats-App record, it appears that till 09:20 p.m. Devesh was chatting with Neha. Thereafter, according to the father of the accused, at 10:30 p.m. Devesh had called him up on phone and informed him that Shubra had committed suicide by hanging from the fan, whereupon he had told him to immediately take her down and to call the doctor who resides on the opposite side and that, they (he and his wife) were coming immediately. In the statement of the accused, which of course would not form part of the charge-sheet, he has stated that he had returned home at 07:00 p.m. and thereafter, he and his wife had consumed liquor and on account of a small altercation with respect to a Diya which had extinguished, his wife had gone into the room at 09:30 p.m. and after sometime when he went there, the room was closed from inside, hence, he had checked from the kitchen window and found that his wife was hanging from the ceiling. Therefore, he had broken down the door and with an aid of a pair of scissors, cut the odhani by means of which she was hanging and brought her down and had called 108 mobile and had taken her to the Civil Hospital. However, from the statement of Devkumar Jagdish Prasad Sharma a neighbour of the accused, at about 11:00 p.m. while he was attending an annual meeting of the township, his daughter had called him up and told him that the uncle from the neighbourhood was worried and was calling him. He had therefore gone to Flat No.102 where the accused was residing and found that the deceased was made to lie down on a bed in the bedroom and there was a noose of the odhni round her neck. He checked her pulse and respiration which appeared to be almost nil, hence he told Devesh to immediately call 108 mobile as she would have to be taken to the Civil Hospital. Thus, the conduct of the accused in not immediately taking down the deceased and in first informing his father about the incident and thereafter cutting the odhani and bringing her down, does raise certain doubts about the manner in which the incident had taken place. Besides, from the photographs produced on record, it appears that even after cutting the odhni (dupatta), the noose was not removed from her neck and it was there even at the time when the body of deceased was lying in the morgue. 13. Apart from the conduct of the accused, certain questions have been raised by the petitioner with regard to the possibility or otherwise of the deceased being able to hang herself, having regard to the situation of the scene of incident. 13. Apart from the conduct of the accused, certain questions have been raised by the petitioner with regard to the possibility or otherwise of the deceased being able to hang herself, having regard to the situation of the scene of incident. On behalf of the respondent, it has been stated that the opinion of the Forensic Science Laboratory was sought in this regard, and it was opined that prima facie that deceased had committed suicide by climbing on the chair and tying the odhani with the ceiling. However, though in the affidavit-in-reply it is stated that such report is annexed therewith, the same does not appear to have been placed on record. Also as submitted by the learned counsel for the petitioner, the charge-sheet has been submitted as early as 05.08.2013, without waiting for the final medical report based on the final FSL report. 14. On an overall view of the matter, in the present case, as noticed earlier, certain facts are glaring. The span of marriage was very short, about four months only; the deceased did not have any serious differences with her in-laws; just before the incident, she had talked with her parents-in-law and told them that things were fine and they were enjoying themselves; from her Whats-App conversations she comes across as a balanced and tolerant person, which makes it difficult to believe that over a mere incident of extinguishment the flame of the perpetual diya, she would take such a drastic step of committing suicide unless something serious had happened; the intemperate language employed by the accused on Whats-App as well his attitude towards the deceased as reflected from the conversations; the conduct of the accused in not attempting to save his wife by bringing her down immediately and first calling his father to ask for advice and thereafter cutting the odhani and taking her down; in not removing the noose after bringing her down; the fact that there was a bottle of liquor and two glasses at the scene of incident; all raise some suspicion regarding the manner in which the incident has occurred. Therefore, without commenting on the involvement of the accused in the offence in question, the court is of the view that the ends of justice would be met if further investigation is made into the offence in question by another agency like the CID Crime. Therefore, without commenting on the involvement of the accused in the offence in question, the court is of the view that the ends of justice would be met if further investigation is made into the offence in question by another agency like the CID Crime. This is not to cast any aspersions or doubt about the integrity of the Investigating Officer who carried out the investigation in question, but because considering the nature of the offence in question, investigation by a specialized agency would be more desirable. 15. In the light of the aforesaid discussion, the petition is allowed, by granting the reliefs prayed for in the petition to the following extent: The CID Crime is directed to take over the investigation of the case and carry out further investigation in connection with the offence in question to determine the nature of the offence committed by the accused and others, if their involvement emerges from such further investigation. The Investigating Officer shall forthwith hand over the record of the case to the CID Crime, Gandhinagar. 16. Rule is made absolute accordingly. 17. It is clarified that the observations made in this order have been made solely for the purpose of deciding the controversy involved in the present case and the same shall have no bearing on the investigation that may be carried out by the Investigating Officer or during the course of trial. The Investigating Officer as well as the trial court shall proceed further without in any manner being influenced by any of the observations made in this order. Direct Service is permitted.