T. Vaidyalingam vs The Deputy Superintendent of Police

R. Subbiah, J.—This criminal original petition has been filed by the petitioner seeking to order for reinvestigation/further investigation of the

case in Crime No. 410/2011 of Karumalaikoodal Police Station, Salem District, by an impartial agency of C.B.I. for fair and proper investigation

to bring to book the real offenders of murder of Selvaraj, petitioner''s son, and for filing final report/charge-sheet. The brief facts, which are

necessary to decide this petition, are as follows:--

2(a) During the year 2002, the petitioner''s elder son Selvaraj married one Vanitha, who is the accused in the present case in Crime No. 410 of

2011 on the file of the Karumalaikoodal Police station. Their marriage was a love marriage. Due to the wedlock, they begot a male child by name

Yuvan Santhosh. The petitioner''s son Selvaraj was residing along with his wife Vanitha and son Yuvan Santhosh, in Kunjandiyur at Nagavlli Road,

Pudur, in the ground floor of a house belonging to one Paramasivam on rental basis. While so, on 04.09.2011 at night, the petitioner received

information from the house owner Paramasivam that on 04.09.2011 at about 10.00 p.m., the accused Vanitha alerted him to save her husband

Selvaraj, who was in an unconscious state, and that Selvaraj was taken to hospital, where he was declared brought dead. Subsequently, the

petitioner herein, father of the deceased Selvaraj, went to the house at Kunjandiyur, where the deceased and accused Vanitha were residing, and

found blood stains on the bureau, bathroom, bedroom & floor and also a swinging rope & blood stained blade. Since the petitioner got suspicion

over the death of his son Selvaraj in a mysterious circumstance, he preferred a complaint on 05.09.2011 with the Police.

2(b) Based on the said complaint, a case in Crime No. 410 of 2011 u/s 174(3)(IV) of Cr.P.C., on the file of the Karunmalaikoodal Police Station,

was registered by the then Inspector of Police Mr. M. Natarajan. During the course of the investigation, the then Inspector of Police examined as

many as 16 witnesses and recorded their statements. On the same day i.e., on 5.09.2011, post-mortem was conducted over the dead body at

Government Mohan Kumaramangalam Medical College Hospital, Salem, but opinion was kept reserved pending chemical analysis. Later on

11.10.2011, a final opinion was issued by the Forensic Medicine Department, Salem, wherein it is stated that ""the deceased would appear to have

died of effects of Asphyxia due to strangulation"". Hence, the then Inspector of Police altered the offence from Section 174(3)(IV) of Cr.P.C. into

Section 302 IPC on 12.10.2011.

2(c) Thereafter, the then Inspector of Police arrested the accused Vanitha, wife of the deceased Selvaraj, who was present along with the

deceased at the time of occurrence, and recorded her confession statement.

2(c) In her confession statement, the accused Vanitha admitted the offence of murder of the deceased Selvaraj by strangulation. She further stated

in her confession given before the then Inspector of Police that in a melee between herself and the deceased on the date of occurrence, the

deceased inflicted two bleeding injuries on her right hand wrist with a blade, which was the cause for blood stains found in the house. In the

confession statement, the accused Vanitha had further stated that on the date of occurrence, she and her husband consumed liquor and while they

were having sex using condom, the deceased told the accused that he would like to have sex with another virgin lady. Enraged over his remarks,

the accused Vanitha quarrelled with the deceased and in the melee, the deceased caused two cut injuries on the right hand of the accused Vanitha.

She pushed him away forcefully, due to which the deceased fainted. Thereafter, she went to bath room and washed her hands. On the same date

at 10.00 pm., when the deceased was in a deep sleep under the influence of alcohol, the accused Vanitha strangulated his neck with a help of a

rope. Thereafter, out of fear, she raised alarm to the house owner Paramasivam to save her husband. Thereafter, the house owner Paramasivam

took him to the hospital, where he was declared brought dead. Thereafter, the body of the deceased was taken to house of the father of the

deceased, the petitioner herein at Pon Nagar, Mettur, Salem District.

2(d) The then Inspector of Police went to the scene of occurrence, prepared observation mahazar and rough-sketch in the presence of the

witnesses. He also went to the petitioner''s house at Pon Nagar, wherein the body of the deceased was kept, and conducted inquest over the dead

body in the presence of panchayatdars. He found only a contusion on the neck of the deceased, but no bleeding injuries were found and the post-

mortem was conducted on the same day.

2(e) In this situation, while the investigation was under progress, the petitioner herein filed a petition in Crl.O.P. No. 23596 of 2011 before this

Court seeking to transfer the investigation of the said case in Crime No. 410 of 2011 to CB CID from the file of the Inspector of Police,

Karumalaikoodal Police Station, stating that the Inspector of Police is not conducting the investigation in a proper and fair manner. This Court by

order dated 22.11.2011 transferred the investigation in the present case from the Inspector of Police to the Police Officer not below the rank of

Deputy Superintendent of Police.

2(f) Pursuant to the order of this Court in Crl.O.P. No. 23596 of 2011 dated 22.11.2011, the Deputy Superintendent of Police, Mettur Sub-

Division, Salem District (Respondent herein) took up the investigation in the case in Cr. No. 410/2011 on 01.01.2012. During the course of

investigation, the Deputy Superintendent of Police examined as many as 71 witnesses including the 16 witnesses examined by the then Inspector of

Police and recorded their statements.

Since the accused Vanitha was arrested and her confession statement was already recorded by the then Inspector of Police, after transfer of the

investigation, the Deputy Superintendent of Police examined the accused Vanitha and recorded her further confession statement, wherein she has

denied her earlier confession statement given before the then Inspector of Police and further stated that, on the date of occurrence, she and her

husband consumed liquor and while they were having sex using condom, the deceased told the accused that he would like to have sex with another

virgin lady and enraged over his remarks, the accused Vanitha pushed him away forcefully, due to which the deceased fainted. Then, the accused

Vanitha inflicted injuries to herself with a blade.

2(g) After completion of the investigation and obtaining legal opinion from the Deputy Director of Prosecution, Salem, the respondent herein filed a

charge-sheet before the learned Judicial Magistrate No. II, Mettur on 21.02.2012. The case was taken cognizance by the learned Magistrate as

P.R.C. No. 8 of 2012 on 16.03.2012. Later, on 18.09.2012, the case was committed to the District Sessions Court, Salem and the same is yet to

be taken on file. In these circumstances, now once again the father of the deceased, the petitioner herein, has filed the present petition for

reinvestigation/further investigation of the case in Crime No. 410 of 2011.

The present petitioner has been filed by the petitioner stating that the following persons are involved in the murder of his son viz., Salvaraj:--

1) The owner of the house namely Paramasivam, S/o. Siddhagounder, Oor Gounder Street, Kunjandiyur.

2) Vanith W/o. deceased Selvaraj

3) Shankar @ Jayasankar S/o. Ponnusamy, Pon Nagar, Mettur Dam-1.

4) Kumar @ Sivakumar S/o. Balu Pon Nagar, Mettur Dam-1.

5) Coupling @ Prabhakaran S/o. Balu Pon Nagar, Mettur Dam-1.

6) Ranjith Kumar S/o. Velu Veerapandiya Kattapomman Nagar, Mettur Dam.

7) Balu S/o. Muthu, Pon Nager, Mettur Dam-1.

8) Sathiesh Kumar S/o. Mariyappan, Pon Nagar Mettur Dam-1.

9) Babu Saravanan S/o. Settu, Pon Nagar Mettur Dam-1.

10) Mathan Kumar S/o. Manickam, E.B. Quaters, Opp. Bus Stand, Mettur Dam.

11) Saraswathi, Mother of Vanitha, Pon Nagar Mettur Dam-1.

12) Rukmani, Aunt of Vanitha, Pon Nagar Mettur Dam-1.

13) Kumatha @ Kumuthavalli, Pon Nagar Mettur Dam-1.

In fact, the petitioner sent letters dated 22.09.2011, 26.09.2011, 07.10.2011, 29.12.2011 and 02.05.2012 furnishing the details of the above said

suspected persons to the Director General of Police, Mylapore, Chennai, inter alia requesting to transfer the investigation of the case in Crime No.

410 of 2011 of Karumalaikoodal Police Station to CB CID for fair and proper investigation. The petitioner stated that the investigation conducted

by the respondent-Police is not in proper and fair manner. Hence, he has come forward with the present petition for reinvestigation/further

investigation.

The learned counsel for the petitioner submitted that the Inspector of Police, who first investigated the case, suppressed the two mobile phones

of the deceased Selvaraj, which was taken by the petitioner from the place of occurrence and handed over to the then Inspector of Police on

05.09.2011. The respondent herein and the then Inspector of Police have deliberately failed and neglected to take steps to ascertain the

conversations of both incoming and outgoing calls in the said two mobile phones used by the deceased Selvaraj. Both the respondent herein and

the then Inspector of Police failed and neglected to seize the condoms available at the scene of occurrence and failed to take steps for necessary

chemical examination or DNA test for arriving at a correct conclusion of facts.

In this regard, the learned counsel for the petitioner invited the attention of this Court to the statement given by Dr. Justin on 08.01.2012 and

submitted that the Doctor has not noted down any injuries on the hands of the accused Vanitha and therefore, the case of the prosecution that the

deceased had inflicted injuries on the hand of the accused Vanitha cannot be true. The learned counsel for the petitioner invited the attention of this

Court to the statement of the witness Pachamuthu also and submitted that in his statement, the witness Pachamuthu had stated that it is impossible

to murder the said Selvaraj by one or two persons. Thus, the learned counsel for the petitioner submitted that there is a suspicion that the other

persons might have also involved in the murder of the deceased Selvaraj and therefore, further investigation has to be ordered.

In support of his contention that the High Court can order for reinvestigation/further investigation of a case by exercising the powers u/s 482 of

Cr.P.C., the learned counsel for the petitioner relied upon the following judgment:--

Ramachandran Vs. R. Udhayakumar and Others,

Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others,

Sasi Thomas Vs. State and Others,

Sohan Lal Juneja and Others Vs. State of Punjab,

State of Karnataka Vs. T.B. Ramakrishna Reddy (2007) 14 SCC 791

Per contra, the learned Additional Public Prosecutor submitted that the then Inspector of Police, who originally registered the case in Crime No.

410 of 2011 u/s 174(3)(IV) of Cr.P.C. himself altered the offence in the FIR as 302 IPC and he examined 16 witnesses and also conducted

inquest over the dead body. Subsequently, the petitioner herein filed Crl.O.P. No. 23596 of 2011 before this Court seeking to transfer the

investigation. This Court vide order dated 22.11.2012 in Crl.O.P. No. 23596 of 2011 ordered for transfer of the investigation and directed the

investigation to be conducted by a Police Officer not below the rank of Deputy Superintendent of Police. Accordingly, the respondent herein viz.,

the Deputy Superintendent of Police, Mettur, Salem District, took up the investigation and examined as many as 71 witnesses including the 16

witnesses examined by the then Inspector of Police. In the confession statement given before the respondent-Police, though the accused Vanitha

denied her earlier confession statement given before the then Inspector of Police, she has stated that enraged over the remarks made by the

deceased that he would like to have physical relationship with another virgin girl, the accused Vanitha pushed him forcefully, due to which the

deceased became fainted and thereafter, the accused Vanith inflicted herself injuries on her right hand with a blade.

The learned Additional Public Prosecutor invited the attention of this Court to the statement given by Dr. Paneerselvam and submitted that Dr.

Paneerselvam has given his opinion to the effect that there is an injury on the right hand of the accused Vanitha and the deceased had died only due

to strangulation. But, the petitioner, who is the father of the deceased, out of frustration over the death of his son, is making false allegations. In

fact, the investigation revealed that the then Inspector of Police, while giving his reply to the letter sent under RTI Act, denied the allegation with

regard to the receipt of mobile phones and seizure of any condoms. Even in the FIR which was given on 05.09.2011, no averment was made by

the petitioner with regard to handing over of mobile phones by the petitioner to the then Inspector of Police. Pursuant to the order of this Court in

Crl.O.P. No. 23596 of 2011 dated 22.11.2011, the Deputy Superintendent of Police took up the investigation of this case and conducted the

investigation in a proper and fair manner and the investigation revealed that no other persons are involved in the commission of the offence in this

case, except the accused Vanitha. Further, the petitioner, who was all along with the investigating officer, did not raise any suspicion over the

persons mentioned in the present petition, during the investigation. The learned Public Prosecution relied upon the following judgments in support of

his contentions:--

1) Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others,

2) Reeta Nag Vs. State of West Bengal and Others,

3) Vinay Tyagi Vs. Irshad @ Deepak & ors in Criminal Appeal Nos. 2040-2041 of 2012, dated 13.12.2012.

Thus, the learned Additional Public Prosecutor prayed for dismissal of the present petition.

I have carefully hearing the submissions made by the learned counsel for the petitioner as well as the learned Additional Public Prosecutor and

perused the material available on record.

The present petition has been filed by the petitioner raising a suspicion that thirteen persons mentioned in the petition might have involved in the

murder of his son Selvaraj. It is the main submission of the learned counsel for the petitioner that though the petitioner handed over two mobile

phones to the then Inspector of Police on 05.09.2011, which were taken by him from the scene of occurrence, the respondent-Police as well as

the then Inspector of Police failed to take any steps to ascertain the conversations of both incoming and outgoing calls in the said mobile phones

used by the deceased to find out the real facts. Further, the respondent-Police as well as the then Inspector of Police failed to seize the two

condoms used by the deceased, which were available at the scene of occurrence, and failed to take steps for necessary chemical examination or

DNA test for arriving at a correct conclusion of facts. According to the prosecution, no mobile phone found in the scene of occurrence was

handed over by the petitioner to the then Inspector of Police. Even in the complaint, the petitioner has not stated that he had found out two mobile

phones in the scene of occurrence and handed over the same to the Inspector of Police. According to the prosecution, since the Deputy

Superintendent of Police has examined as many as 71 witnesses including the 16 witnesses, who were examined by the then Inspector of Police,

and the investigation revealed that except the accused Vanitha, wife of the deceased Selvaraj, no other person is involved in the murder of the

petitioner''s son. Therefore, sending of any condoms to the chemical examination does not arise in this case.

Irrespective of the submissions made on either side, this Court has to decide whether the request for reinvestigation/further investigation can be

allowed or not, based on the dictum laid down by the Hon''ble Supreme Court in various judgments.

The learned counsel for the petitioner relied on the judgment in reported in (2007) 14 SCC 791 [State of Karnataka Vs. T.B. Ramakrishna

Reddy] in support of his contention that the High Court is having power u/s 482 of Cr.P.C., to order for reinvestigation. But, this Court is of the

opinion that the reinvestigation of a case cannot be ordered mechanically, since there is a suspicion in the mind of the defacto-complainant about

the involvement of the other persons in the offence. In the present, the reinvestigation/further investigation cannot be ordered on the ground of

suspicion. Only if the Court comes to the conclusion that the investigation conducted by the Police is not in proper and fair manner, and is in

violation of settled principals of investigative canons, reinvestigation could be ordered. In this regard, a reference could be place to the judgment of

the Hon''ble Supreme Court in Vinay Tyagi Vs. Irshad @ Deepak & ors in Criminal Appeal Nos. 2040-2041 of 2012, dated 13.12.2012,

wherein it has been held as follows:--

The scheme of Section 173 of the Code even deals with the scheme of exclusion of documents or statements submitted to the Court. In this

regard, one can make a reference to the provisions of Section 173(b) of the Code, which empowers the investigating agency to make a request to

the Court to exclude that part of the statement or record and from providing the copies thereof to the accused, which are not essential in the

interest of justice, and where it will be inexpedient in the public interest to furnish such statement. The framers of the law, in their wisdom, have

specifically provided a limited mode of exclusion, the criteria being no injustice to be caused to the accused and greater public interest being

served. This itself is indicative of the need for a fair and proper investigation by the concerned agency. What ultimately is the aim or significance of

the expression ''fair and proper investigation'' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest,

just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the Court of

competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to

interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in

accordance with law would essentially repel the very basis of an unfair, trained investigation or cases of false implication. Thus, it is inevitably for a

court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles

of investigative canons.

In the instant case, the entire submissions made by the learned counsel for the petitioner are based only on the suspicion of the defacto-

complainant about the involvement of the other persons. I am of the opinion that since there is a suspicion in the mind of the defacto-complainant

about the involvement of the other persons in the murder of his son, the same cannot be taken as a ground to order for a reinvestigation by this

Court while exercising the power u/s 482 of Cr.P.C. Only on perusal of the materials if the Court comes to the conclusion that the investigation

was not conducted by the respondent-Police in a proper and fair manner and the investigation was conducted in violation of the settled principles

of investigative cannons, then the Court can order for reinvestigation. In the instant case, originally the investigation was conducted by the Inspector

of Police and he had examined 16 witnesses and thereafter, pursuant to the order passed by this Court, the Deputy Superintendent of Police took

up the investigation and examined 71 witnesses. The learned counsel for the petitioner is not able to produce any material to show that the

investigation was not conducted in proper and fair manner. Hence, I am of the opinion that when there is no material to show that the investigation

was not conducted in proper and fair manner, this Court is not obliged to order for reinvestigation.

Moreover, on completion of the investigation, the respondent-Police has filed the charge-sheet before the concerned Magistrate and the

concerned Magistrate has also taken cognizance and committed the case to the concerned Sessions Court.

Hence, in view of the above, this Court is not inclined to entertain the prayer sought for by the petitioner in this petition at this stage. In the

result, the criminal original petition is dismissed. Consequently connected Miscellaneous Petition is closed.