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2019 DIGILAW 26 (JK)

Rattan Lal v. State of J&K

2019-01-28

DHIRAJ SINGH THAKUR

body2019
JUDGMENT : 1. In the present petition, the petitioner seeks a Mandamus directing the State to hand over the investigation to an independent agency like Central Bureau of Investigation (CBI) or to any other specially constituted investigation team in regard to the murder of the petitioner’s daughter, namely, Neha Kumari. Briefly stated, the material facts are as under: 2. On 26.02.2018, an information was received at Police Station, Pacca Danga, Jammu that one Neha Kumari W/o Vivek Bhasin R/o H.No. 06, Ustad Mohalla, Jammu, had received a gun shot at her house and had thus got seriously injured. It appears that during treatment, the petitioner’s daughter succumbed to her injuries. Inquest proceedings under Section 174 Cr.P.C were initiated vide DDR No. 12 dated 26.02.2018 at Police Station, Pacca Danga, Jammu and enquiry initiated by Sub-Inspector, Deeraj Nagpal, SHO of the said Police Station. 3. As per the response filed by the State, during the course of enquiry, the Enquiry Officer, i.e., SHO, Police Station, Pacca Danga visited the spot, prepared a site plan and got the post-mortem of the deceased conducted from Government Medical College, Jammu. Thereafter, the body was handed over to the legal heirs for last rites. FSL team was also summoned on the spot, who lifted the blood stained samples, clothes, pistols along with magazine and 14 live cartridges and one empty cartridge from the scene of the crime and sent it to the FSL Jammu/Srinagar for expert opinion. 4. According to the reply affidavit, the suspect, Vivek Bhasin, husband of the deceased was subjected to a Lie Detector Test. Statements of one Arti Devi W/o Ashok Kumar R/o H. No. 387 Rehari Colony Jammu and Smt. Asha Devi W/o Rakesh Chander R/o Ustad Mohalla, Jammu were also recorded. It was stated that as per the Lie Detector test of aforementioned suspect/witnesses, no foul play was suspected on the part of the husband. A report was also sought from the Ballistic expert, FSL Jammu for expert opinion about the gun shot and the scene of crime. A Narco Analysis Test of the suspect Vivek Bhasin was also proposed for which an amount of Rs. 55,000/- was required. A request for sanctioning the amount for conducting the aforesaid test was made vide communication dated 25.03.2018 which was still awaited on the date of the filing of the reply affidavit which was filed on 06.08.2018. 5. A Narco Analysis Test of the suspect Vivek Bhasin was also proposed for which an amount of Rs. 55,000/- was required. A request for sanctioning the amount for conducting the aforesaid test was made vide communication dated 25.03.2018 which was still awaited on the date of the filing of the reply affidavit which was filed on 06.08.2018. 5. The viscera report from the FSL, Jammu is stated to have been received on 05.04.2018 and the FSL report from Srinagar was received on 23.04.2018. The Ballistic Report was received from FSL Jammu vide communication dated 16.05.2018. The report from the Ballistic expert which has been reproduced in the reply affidavit reads as under:— “i. 9 MM Calibre Semi-automated Glock Pistol marked RBI138/18 has been found in working condition and bearing sings of discharge prior to test firing. ii. 9 MM X 19 MM Cartridge case marked RB141/18 has been fired from 9 MM calibre Semi-Automatic Glock Pistol Marked RB138/18. iii. 9 MM X 19 MM Ammunition Bullet marked RB140/18 has been fired from 9MM calibre Semi Automatic Glock Pistol marked RB138/2 Cartridge case marked RB141/18 has been fired from 9MM calibre Semi Automatic Glock Pistol marked RB138/18. iv. 0.00g cement plaster like material removed from Nose of 9 MM X 19 MM ammunition fired Bullet marked RB140/18 has been found similar to cement plaster like material marked RB144/18. v. Cement Plaster like materials marked RB144/18 and RB145/18 have been found bearing sings of firearm discharge.” 6. Based upon the enquiry conducted by the officer concerned and the report of the Ballistic expert from FSL, Jammu as also the post-mortem report, it was established by the enquiry officer that deceased, Neha Kumari had died due to a gun shot from the service weapon of her husband, Vivek Bhasin and, therefore, inquest proceedings were converted into a case bearing FIR No. 85 of 2018 under Sections 498-A/304-B RPC read with Section 30 of the Arms Act and investigation initiated by the concerned SHO. 7. In the response, it is stated that the concerned officer during the course of investigation took up the matter with the Commandant IRP 7th Batallion for presence/arrest of Inspector, Vivek Bhasin but the said Inspector had proceeded on casual leave and did not report back on time and was marked as absent. Visits to the house of the accused also reflected that the house was locked. Visits to the house of the accused also reflected that the house was locked. In the meantime, it is stated that a Co-ordinate Bench of this Court issued an order whereby coercive action against the said accused was stayed. The said petition is also stated to be pending. 8. Learned counsel for the petitioner urged that the manner in which the police authorities have proceeded showed a clear attempt on their part to shield the accused. It was urged that the accused was an Inspector, who was working as a Security Officer with the Chief Minister in the Chief Minister’s Security Wing and was, thus, quite influential. It was urged that it was because of the influence of the accused that the investigating officer had not only failed to investigate the case in its correct perspective in a free and fair manner, but had also managed to shield the accused by not registering a case for murder, but only under Sections 498-A/304-B RPC read with section 30 of the Arms Act. It was urged that the statement of the petitioner was recorded as late as on 13.07.2018 under Section 164-A despite the fact that the petitioner had been approaching the investigating officer for getting his statement recorded. It was the urged that there was no reason for the investigating officer to have totally ignored the angle of murder by the accused and instead relied only on the Lie Detector Test with a view to shield the accused and book him in a much lesser offence under Sections 498-A/304-B RPC read with section 30 of the Arms Act. It was urged that the petitioner had in his statement recorded under Section 164-A of Cr. P.C. deposed that the deceased was a right hander, whereas the gun shot was fired on her left side and had made the exit from the right side of the head. It was also stated that the deceased had no knowledge about handling the revolver which had been officially issued in favour of the accused. Learned counsel also took pains to read at length the statement of the petitioner given in terms of Section 164-A of the Cr.P.C. 9. Admittedly, the accused, as per the reply affidavit, has not at all been arrested till date despite the fact that the offence is stated to have been committed on 26.02.2018. Learned counsel also took pains to read at length the statement of the petitioner given in terms of Section 164-A of the Cr.P.C. 9. Admittedly, the accused, as per the reply affidavit, has not at all been arrested till date despite the fact that the offence is stated to have been committed on 26.02.2018. No steps at all were taken by the official respondents to get the interim orders passed by a Co-ordinate Bench in a petition under Section 561-A vacated, which would enable the investigating officer to subject the accused to interrogation. Witnesses, namely, Arti Devi and Smt. Asha Devi also appear to be witnesses belonging to the family of the accused. Although the accused had been subjected to a polygraph test, no effort was made by the investigating officer to even carry forward the process in regard to obtaining sanction for subjecting the accused to a Narco Analysis test which request had been made as early as on 25.03.2018. The Investigating Officer also does not appear to have taken up the issue with the Ballistic expert as to what was the distance from which the weapon had been fired to determine as to whether it was a case of suicide or one of murder. 10. The report of the Ballistic expert also appears to be illusory and cryptic and does not lay down the basic scientific parameters, based upon which, an expert investigator could come to a definite conclusion. If the report of the Ballistic expert was cryptic, the investigating officer should have been quick to get the necessary clarifications which are found conspicuously absent in the present case. 11. As per the report of the Ballistic expert, the gun shot had been fired through a Semi-Automatic Glock pistol which might have been issued to the accused in his capacity as a part of the security wing of the Chief Minister. In such a position, where the accused was a part of the security apparatus of the Chief Minister, the fact that he would have a considerable influence to derail the fair investigation in the matter, cannot be denied. 12. On a perusal of the post-mortem report, which was prepared on 26.02.2018, the following observations have been recorded. 1. In such a position, where the accused was a part of the security apparatus of the Chief Minister, the fact that he would have a considerable influence to derail the fair investigation in the matter, cannot be denied. 12. On a perusal of the post-mortem report, which was prepared on 26.02.2018, the following observations have been recorded. 1. Firearm entry wound: A punctured wound measuring 1.5 X 1 cm with irregular, invested and abraded margins is present on the left side of the head on left parietal Region, 4.5 above left ear helix. No tattooing or blackening present. 2. Firearm exit Wound: A lacerated wound measuring 4.5 X 4 cm, irregular in shape with overted margins and ragged flaps present on Right side of head on Right temporal area, 1.5 cm above the Right helix. On dissection from Injury No. 1, the track is directed forward and inward towards the Right side of cranial cavity, piercing the skin, Subcutaneous tissue including muscles of scalp, fracturing the skull bone, damaging the brain tissue and making an exit wound through the Right temporal Region of head, thereby causing multiple fractures of skull bones and protruding out of brain substance and part of fractured skull bone through exit wound. All injuries are ante-mortem in nature.” 13. With reference to the aforementioned report, learned counsel for the petitioner had urged that there was no tattooing or blackening present on the left side of the head i.e. the entry point of the bullet, from which it could only be inferred that the shot was not a close contact shot and, therefore, the only inference that could be drawn is that the deceased was murdered. 14. Another factor highlighted by the learned counsel for the petitioner was that if the injuries sustained by the deceased as per the post-mortem examination report were all ante-mortem in nature and if it had been established that the deceased had died on account of bullet shot, the officer concerned should not have waited till 18.05.2018 to register a case and that the Investigating officer had no reason to sit over and continue with the inquest proceedings till 18.05.2018. 15. 15. While it may not be open to this Court to opine whether it was a case of murder or not, with reference to the report of the Ballistic expert, one thing is certain that the Investigating Officer does not appear to have acted fairly in conducting the investigation. There is considerable force in the arguments of the learned counsel for the petitioner which find support in Apex Court Judgment of Ashok Kumar Todi v. Kishwar Jahan and Others, 2011 (3) SCC 758 , wherein at paragraph 52 of the judgment, the Apex Court held as under:— “52. The inquiry/investigation under section 174 read with Section 175 of the Code may continue till the outcome of the cause of the death. Depending upon the cause of the death, police has to either close the matter or register an FIR. In the case on hand, as per the post mortem report dated 22.09.2007, the cause of death of Rizwanur Rahman was due to the effect of ten injuries on the body and which were ante-mortem in nature. In such circumstances, the proceedings under Section 174 of the Code were not permissible beyond 22.09.2007 and registration of an FIR was the natural outcome to ascertain whether the death was homicidal or suicidal......................” 16. In Mithilesh Kumar Singh v. State of Rajasthan, 2015 (9) SCC 795 , the Apex Court under lined the importance of fairness of the investigation, which it held ought to be judicious, transparent and expeditious to ensure compliance with the basic rule of law. Reliance was also placed on Sasi Thomas v. State and Ors., 2006 (12) SCC 421 , which held as under:— “15. Proper and fair investigation on the part of the investigating officer is the backbone of rule or law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential. Unfortunately, the appellant has not been treated fairly. When a death has occurred in a suspicious circumstance and in particular when an attempt had been made to bury the dead body hurriedly and upon obtaining apparently an incorrect medical certificate, it was expected that upon exhumation of the body, the investigating authorities of the State shall carry out their statutory duties fairly.” 17. When a death has occurred in a suspicious circumstance and in particular when an attempt had been made to bury the dead body hurriedly and upon obtaining apparently an incorrect medical certificate, it was expected that upon exhumation of the body, the investigating authorities of the State shall carry out their statutory duties fairly.” 17. What was held by their lordships in paragraph 12 of the judgment in Mithilesh Kumar Singh’s case can beneficially be reproduced hereunder:— “12. Even so the availability of power and its exercise are two distinct matters. This court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court’s satisfaction whether the facts and circumstances of a given case demand such an order. No hard and fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the court may step in and exercise its extra ordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily, much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are commonplace when State Police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate process of any investigation and who can do it better than an agency that is independent.” 18. In Kashmiri Devi v. Dehli Administration, 1988 (Supp) Supreme Court Cases 482, the Apex Court had transferred the investigation to be conducted by the CBI on the ground that the investigation with regard to death in police custody had not been conducted fairly and that an effort had been made to protect and shield the guilty officers of the police, who had perpetrated the offence of murdering the deceased Gopi Ram by beating and torturing. 19. In the present case also, since the accused is a police officer, there appears to be a definite attempt to shield the said accused by fellow police officers which is amply reflected in the manner in which investigation has been conducted. In my opinion, a case has been made out for transferring the case for investigation by the Central Bureau of Investigation. CBI shall forthwith conduct the investigation and investigate the circumstances leading to the death of deceased, Neha Kumari and determine whether the case was suicidal or homicidal. Notwithstanding the fact that the case is registered only in terms of Sections 498-A/304-B RPC read with Section 30 of the Arms Act, depending upon the investigation so conducted, it shall be open to the CBI to book the accused under such offences as the CBI determines during the course of the investigation. 20. With the aforementioned direction, this petition along with connected IA(s) stands disposed of accordingly.