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2017 DIGILAW 842 (ORI)

Prasanta Pattanaik v. State of Orissa

2017-08-04

B.K.NAYAK

body2017
JUDGMENT B.K. NAYAK, J. - This writ petition has been filed by the petitioner praying to handover the investigation of Cuttack, Sadar P.S. Case No.221 of 2016 to State Crime Branch Police or to the C.B.I. 2. Cuttack, Sadar P.S. Case No.221 of 2016 was registered under Section 302, IPC on the basis of F.I.R. lodged by the present petitioner alleging that his nephew (Brother’s Son), Soumya Ranjan Patnaik, aged about 13 years went to the market at about 9.30 P.M. on 17.6.2016 after finishing his tuition study. Since he did no return from the market for a long time the informant and other family members searched for him in the market as well as in the houses of his friends and ultimately found him hanging inside a dark, open house at the backside of the Bazar. They immediately un-tied him and took him to the SCB Medical College and Hospital, Cuttack where the doctor declared him dead. The F.I.R. was lodged with the assumption that somebody committed the murder of the child, Soumya Ranjan Patnaik and hung him inside the dark house. 3. It is stated in the writ petition that the body of the deceased child was hung from a bamboo beam about 10 feet above the floor of the house, which was used for storing tent materials, and that it was not possible on the part of the deceased to climb on to the beam and hang himself. It is further stated that the deceased was a normal child and that he completed his tuition study in the evening of the occurrence in a normal way and that there was no disturbance in the family and, therefore, there is no reason as to why he could commit suicide by hanging. It is further stated that the deceased was hung by a lady’s scarf (Odhani), which neither belongs to the petitioner nor to any of his family members and that no such scarf (Odhani was available beforehand in the house where the body was found hanging. It is stated that the police is proceeding with the investigation since the date of registration of the F.I.R., which is by now more than a year, but unable to trace out the owner of the scarf (Odhani) with which the deceased was hung. It is stated that the police is proceeding with the investigation since the date of registration of the F.I.R., which is by now more than a year, but unable to trace out the owner of the scarf (Odhani) with which the deceased was hung. It is stated the loop in the scarf (Odhani) was present with the type of knot, which the deceased boy could not have tied. It is alleged that though some witness gave some clue to the investigating police, which if pursued earnestly and diligently, may lead to a breakthrough, the Investigating Authority is not diligent to pursue the same and is proceeding with the investigation on the assumption that the deceased committed suicide. It is stated that some young persons and teenagers used to visit the said open, occurrence house in a very suspicious manner, which fact was disclosed to the police by some witnesses, but the police did not direct its investigation to that aspect. It is further stated that the statements of witnesses are not being recorded properly by the Investigating Officer. 4. It is stated that being dissatisfied with the lackadaisical manner and the tardy pace of investigation the petitioner and the mother of the deceased approached Senior Police Officials and the Odisha State Commission for Protection of Child Rights, but to no effect. 5. During the pendency of the writ petition the affidavits of some persons including the petitioner, his other family members and the private tutor of the deceased have been filed. The affidavit of the private tutor goes to show that he comes to the residence of the deceased and teaches regularly in the evening and that the deceased was a good and sincere student with normal mental condition and his behaviour was as usual during the course of tuition on 17.06.2016 evening and the deceased had done his homework on that day and the tutor did not get angry with him nor chided him. The affidavit of the mother of the deceased reveals that the statements of the witnesses are being recorded in a very casual manner. It is stated that the deceased has a sister aged about only 8 years whose statement was recorded by the Investigating Officer, but in the statement her age has been mentioned as 17 years by the Investigating Officer. It is stated that the deceased has a sister aged about only 8 years whose statement was recorded by the Investigating Officer, but in the statement her age has been mentioned as 17 years by the Investigating Officer. The affidavits also say that some vital witnesses have not yet been examined even after a year of the occurrence. In the aforesaid circumstances the petitioner has lost faith in the investigating police and prays for transfer of investigation of the case to the CBI or to the State Crime Branch Police. 6. Considering the question under what circumstances investigation of a case can be transferred to the C.B.I. or any other specialized agency, the Hon’ble Supreme Court in the case of Sudipta Lenka v. State of Odisha and others; (2014) 3 SCC (Cri.) 428 held as follows : “14. Rubabbuddin Sheikh v. State of Gujarat, really, carries forward the law laid down in Guddalure M.J. Cherian and Punjab & Haryana High Court Bar Assn. Which position finds reflection in para 60 of the Report which is in the following terms: (Rubabbuddin Sheikh case, SCC p. 216). 60.... Therefore, it can safely be concluded that in an appropriate case when the Court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the Court to hand over the investigation to an independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the Court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI. 15. The position has also been succinctly summed up in Disha to which one of us (the learned Chief Justice) was a party by holding that transfer of the investigation to the Central Bureau of Investigation or any other specialized agency, notwithstanding the filing of the charge-sheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. Further investigation of a criminal case after the charge-sheet has been filed in a competent Court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal Procedure. Further investigation of a criminal case after the charge-sheet has been filed in a competent Court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal Procedure. Hence it is imperative that the said power, which, though, will always vest in a constitutional Court, should be exercised only in situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law.” 7. Case Diary so far prepared by Investigating Police Officer during the course of investigation reveals that the case has been registered under Section 302, IPC on the basis of written report lodged by the petitioner. Since the deceased was found hanging inside a tent house from a bamboo beam, instead of registering the FIR under Section 302, IPC, the police could have registered the case as an Un-natural Death case, as normally happens in case of suicide. This has not been done. There is nothing on record or in the case diary to indicate that the Investigating Officer is conducting investigation with the assumption that the deceased committed suicide. 8. The post mortem report and the inquest report indicate that post mortem was conducted promptly at 12.35 P.M. on 18.06.2016 and the doctor found a ligature mark on the neck over and above the thyroid cartilage running obliquely upwards and backwards on right side of neck below right angle of mandible and below right mastoid tip to merge with posterior hair line on right side of nape on neck. On the left side the pressure abrasion passes obliquely upwards and backward 2.5 cm. Below left angle of mandible and 3.5 cm. below left mastoid tip and merges with posterior hairline on left side of neck. It was radish brown in color having width of 1.5 cm. on right side of neck. Other parts and organs of the body were normal having no mark of any injury. The opinion of the Autopsy Doctor is that the pressure abrasion is consistent with ligature mark of hanging which could have been caused due to pressure compression of neck and is antemortem in nature and the death of the deceased could have been caused due to combined effect of asphyxia and venous congestion as a result of antemortem hanging. The opinion of the Autopsy Doctor is that the pressure abrasion is consistent with ligature mark of hanging which could have been caused due to pressure compression of neck and is antemortem in nature and the death of the deceased could have been caused due to combined effect of asphyxia and venous congestion as a result of antemortem hanging. On further query by the Investigating Officer, on verification of some photographs of the deceased taken soon after the investigation commenced, the Doctor opined that the conditions of the deceased as per the photographs cannot be considered as a case of strangulation, and that the ligature mark which was noticed at the time of autopsy clearly shows that it is high up in the neck and oblique at different levels on both sides of the neck and the non-continuance ate the back which is indicative of antemortem hanging rather than a case of strangulation. It is further opined that in the absence of any other associated injury, both external and internal, the death due to asphyxia and venous congestion as a result of antemortem hanging is suggestive of suicidal manner, which need further corroboration from circumstantial evidences. 9. It is evident from the case diary that the statement of some suspected persons named by the family members of the deceased were recorded and they were subjected to polygraph test on their consent and the test reports are completely negative. 10. It also appears from the case diary that on 18.06.2016 the Investigating Officer visited the spot with the scientific team. The spot visit report reveals that the deceased was hanging from a bamboo pole (beam) used for making the roof of the tent-house. The height of the beam from ground was nine feet seven inches. Several decoration articles used for event management had been kept in the tent-house. Near a lady statue two numbers of fibre tree base with peacocks were placed just below the beam. The height of the tree base was’ and with the peacock it was 5’-7", above which one part of the scarf (Odhani), by which the deceased was hanging, was there. The tree base which was nearer to the Chunri (Odhani) contained some sand particles whereas the others contained uniform dust particles. The height of the tree base was’ and with the peacock it was 5’-7", above which one part of the scarf (Odhani), by which the deceased was hanging, was there. The tree base which was nearer to the Chunri (Odhani) contained some sand particles whereas the others contained uniform dust particles. The sand particles collected from the said tree base and sample sand collected from the tent-house have been sent to the State Forensic Science Laboratory for physical examination and opinion. 11. It appears that the additional D.C.P., Cuttack, Mr. Mayadhar Sethy is supervising the investigation and imparted necessary instructions to the Investigating Officer. It further appears from the case diary that on confidential inquiry it was learnt that the scarf (Odhani) by which the deceased was hanging belongs to some family members of the deceased but none of the family members accept ownership. The owner of the tent-house during examination by the Investigating Officer stated that no scarf (Odhani) was used by him for any event management nor was preserved inside the tent-house. 12. From the case diary it is apparent that the Investigating Officer has engaged spies to collect confidential information. Except the fact that the Investigating Officer has not yet been able to identify the ownership of the scarf (Odhani) and that the investigation so far conducted has been a little tardy after the initial momentum, there does not appear to be any grave deficiency in the investigation. 13. In the aforesaid circumstances and having regard to the principles and guidelines enunciated by the Hon’ble Apex Court in the case of Sudipta Lenka (Supra) this Court does not find any justification for transfer of investigation to the C.B.I. or any other specialized agency. However, in order to achieve expedition in the investigation it is desirable that a more experienced police officer, not below the rank of Inspector of Police should do the investigation in place of the present Investigating Officer. Accordingly it is directed that the Deputy Commissioner of Police, Cuttack shall handover investigation of Sadar P.S. Case No.221 of 2016 to an experienced officer, not below the rank of Inspector of Police, and ensure expeditious completion of investigation. The writ petition is accordingly disposed of. The case diary be returned to the learned State Counsel. Petition disposed of.