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2019 DIGILAW 731 (GAU)

Dulal Ghosh v. State of Assam

2019-06-11

N.KOTISWAR SINGH

body2019
ORDER : 1. Heard Mr. M.K. Das, learned counsel for the petitioner. Also heard Mr. D. Nath, learned State Counsel for respondent Nos. 1 to 5 and Mr. K.K. Parasar, learned CGC for respondent No. 6. 2. In this petition, the petitioner has sought for a direction to be issued to the State respondents for handing over the investigation of the case relating to the death of his son to the Central Bureau of Investigation (CBI). 3. The facts leading to filing of this writ petition may be briefly stated as follows: (i) It is the case of the petitioner that on 16.4.2011, at around 9.00 P.M. the petitioner saw his son Pritam Ghosh, aged about 16 years hanging from a ceiling fan. Immediately, thereafter, he got his son removed from the ceiling fan and got him admitted at Fakiragram Sub-Health Centre. However, the Doctors there declared the boy dead. The dead body of the deceased was accordingly sent for postmortem examination and a U.D. Case was registered in this connection being U.D. Case No. 03/2011 on 17.04.2011. (ii) The Doctor, who conducted the post-mortem gave the opinion that the death was due to asphyxia following strangulation which was homicidal in nature. (iii) On the basis of the said postmortem report, the said U.D. Case was converted to a regular FIR case in the Fakiragram Police Station as Fakiragram P.S. Case No. 41/2012 under Section 302/201 IPC. (iv) Though the police conducted an investigation into the matter and examined a number of witnesses, the police failed to identify the actual offender. 4. Accordingly, the police submitted the Final Report on 29.05.2012 because of lack of evidence. According to the petitioner, the police authorities have not conducted the investigation fairly and properly, more so, when there was specific medical evidence to show that his son was killed as the post-mortem report clearly mentioned that the death was homicidal in nature. It has been submitted that the police never contradicted the said medical evidence in course of investigation but opted to close the investigation on the ground of lack of evidence against any of the suspects. 5. It has been submitted that the police never contradicted the said medical evidence in course of investigation but opted to close the investigation on the ground of lack of evidence against any of the suspects. 5. As regards the contention raised by the State counsel that since the Final Report has been submitted under Section 173 Cr.P.C. it is open to the petitioner to raise all the objections against the closure of the said investigation before the concerned Magistrate and as such, it may not be appropriate at this stage for the petitioner to seek for any handing over the investigation to any other agency before objecting to the Final Report. However, this contention has been rebutted by the learned counsel for the petitioner by submitting that filing of an objection before the learned Magistrate under Section 173 Cr.P.C. against the Final Report would be of no use in view of the lackadaisical investigation conducted by the police. It has been submitted that at best the learned Magistrate can order for further investigation under Section 173 Cr.P.C. and cannot order fresh investigation. 6. It has been submitted that perusal of the Final Report would indicate that the police have not properly investigated the matter. Referring to the Final Report in which a reference has been made that there was some differences in the statement between one of the suspects, who was arrested and interrogated, namely, Smt. Joyda Ghosh and a girl, namely, Pinki Ghosh. The police, however, did not proceed with the investigation on the ground that said Pinky Ghosh hesitated to give certain information. Accordingly, it has been submitted that even if the learned Magistrate directs further investigation, it may not make any difference as there were many aspects which would require reinvestigation and accordingly, it has been submitted that it is a fit case where the investigation should be handed over to Central Bureau of Investigation (CBI) for proper investigation. 7. Heard learned counsel for the parties and also perused the materials on record. It is not in dispute that in the post-mortem report, the concerned Doctor, who conducted the post-mortem gave the opinion that the death was homicidal in nature due to asphyxia following strangulation. In his words, the cause of death was as follows: "In my opinion death is due to asphyxia following strangulation which is homicidal in nature." 8. It is not in dispute that in the post-mortem report, the concerned Doctor, who conducted the post-mortem gave the opinion that the death was homicidal in nature due to asphyxia following strangulation. In his words, the cause of death was as follows: "In my opinion death is due to asphyxia following strangulation which is homicidal in nature." 8. Perusal of the Final Report would also indicate that a pair of hawaii chappal and sleepers were seized from the place of occurrence. Though the police interrogated one boy namely, Nayan Nath, he denied having come to house of the deceased on the day of the death and that he had left any pair of sleepers in the house of the deceased. 9. This Court is of the view that it was incumbent upon the police to examine as to who was the owner of the said pair of chappal/sleepers. If the said pair of chappal belong to the deceased person, perhaps, there would not be any need to investigate about the pair of chappal but if it did not belong to the deceased, Pritam Ghosh, there was further need to examine as to the owner of the said pair of chappal and find out the circumstances in which the said chappal not belonging to the deceased have found in the place of occurrence. However, there is nothing in the Final Report to indicate that the police had made any investigation regarding the said pair of chappal except for examining one boy, namely, Nayan Nath, who disclaimed any association with the pair of chappal or his presence on the date of death. 10. In the Final Report, the police themselves had mentioned that subsequently, on the basis of the statement of the guardian of the victim and Smt. Joyda Ghosh a girl, namely, Pinki Ghosh also interrogated but there were some differences between the statement of said Joyda Ghosh and Pinki Ghosh and the said Pinki Ghosh seemed to hesitate to give certain information. There is nothing in the Report as to what steps the police had taken to elicit more information from the said Pinki Ghosh. There is nothing in the Report as to what steps the police had taken to elicit more information from the said Pinki Ghosh. Since, the police also have not denied that it is not a case of homicide but the police sought to close the investigation only on the ground of lack of evidence, this Court is of the view that it would be appropriate to constitute a Special Investigation Team (SIT) headed by Officer not below the rank of Superintendent of Police (SP) to examine the circumstances under which the said Pritam Ghosh was found hanging by a rope from the electric ceiling fan, though as per medical evidence, he died due to asphyxia following strangulation and it was homicidal in nature. 11. Learned counsel for the petitioner also referred to the decision rendered by this Court in Phijam Manikumar vs. Union of India and Others, 2017 (5) GLT 805 as well as the decision of Hon'ble Supreme Court rendered in Pooja Pal vs. Union of India and Others, (2016) 3 SCC 135 . 12. This Court is of the view that constituting the SIT to reinvestigate the matter and to examine the death of the boy would be more appropriate rather than allowing to close the investigation as sought to be done by the police by submitting the Final Report or directing the petitioner to approach the Magistrate as the scope of investigation which can be ordered by a Magistrate on the report submitted under Section 173 Cr.P.C. is limited one as the Magistrate cannot direct for reinvestigation or fresh investigation except for further investigation. 13. Considering the circumstances of the case as narrated above, this Court is of the opinion that it would be more appropriate if it is properly investigated by another team of investigators for which the State Government may constitute a Special Investigating Team and examine the entire matter afresh without being restricted by the investigation made so far by the police. 14. Accordingly, the present petition is allowed directing the State respondents, more particularly, respondent Nos. 14. Accordingly, the present petition is allowed directing the State respondents, more particularly, respondent Nos. 1 and 2 to constitute a Special Investigating Team (SIT), headed by Officer not below the rank of Superintendent of Police (SP) specifically for this case to investigate the unnatural death of the petitioner's son regarding which the medical opinion has been given as due to asphyxia following strangulation which is homicidal in nature and accordingly, proceed in accordance with law. 15. The State Government shall constitute the aforesaid Special Investigation Team (SIT) within a period of one month from the date of receipt of a certified copy of this order and the SIT may immediately commence the fresh investigation as directed above. 16. Copies of this order may be furnished to learned counsel for the parties.