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VIDYA PRAKASH PANEY versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Vidya Prakash Paney v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 3738 of 2006 [2007] RD-AH 13937 (13 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

(RESERVED)

Crl.   Misc. Writ Petition    No. 3738 of 2006

 Vidya Prakash Pandey  Vs. State of U.P. and others.

CONNECTED WITH

Crl.   Misc. Writ Petition    No. 2937 of 2006

Smt. Rajkumari Devi and another   Vs. State of U.P. and others

........................

Hon'ble Imtiyaz Murtaza, J.

Hon'ble Amar Saran, J.

(Delivered by Hon. Amar Saran, J.)

We have heard learned counsel for the petitioner, learned AGA, Sri G.S. Hajela, learned counsel for the CBI, Sri Manu Khare, learned counsel for the   Central Vigilance Commissioner.

The facts of this case were were that an FIR was lodged on 31.1.2006 by the petitioner, Vidya Prakash Pandey, at case crime no. 38 of 2006 under section 302 IPC at P.S. Kotwali, Padrauna, which alleged that the deceased Ramesh Chand Pandey had become mentally disturbed after the death of his wife. Taking advantage of his depressed condition, the accused Constable Manokamna Tewari and his wife, Smt. Rajkumari Devi, who used to visit the informant's  house, showed sympathy to the deceased, who was the informant's nephew and started keeping him in their residence in Kasba Padrauna. They even got a sale-deed made of some land of the deceased Ramesh Chand in the name of Smt. Rajkumari Devi. One month prior to the incident the deceased had started coming to the house of the informant and complaining to him that deceptively the accused wanted to grab his property and he was thinking of taking some legal action against them. On the date of  incident i.e. 28.1.2006 at about 8.30 pm information was received through Ashutosh, son of the informant, that Constable Manokamna Tewari and his wife Rajkumari Devi and son and other relatives had entered into a conspiracy and committed murder of the deceased. They had spread a rumour in the mohalla that the deceased had died due to heart attack. When the informant received the information on his mobile, he gave verbal information about the crime to police station Kotwali Padrauna. Then inquest was conducted and thereafter postmortem on the dead body of R.C. Pandey was conducted  on 29.1.2006 at 3.00 pm by Dr. S.N. Tripathi, MO, PHC Padrauna, Kushi Nagar. The postmortem report showed that the deceased had died about one day earlier. He had the following ante-mortem injuries:

1.Abraded contusion 10 cm x 6 cm over occipital region of head. 7 cm above from C-7 vertebrae

2.Abraded contusion 6 cm x 4 cm over left side of face. 7.5 cm lateral from left mouth.

3.Lacerated wound 5 cm x 1.2 cm x muscular  deep over left ear (lobule of left ear missing).

4.Contusion 10 cm x 6 cm over front of neck. 1 cm above from supra sternal notch.

5.Contusion 5 cm x 4 cm over left side of neck. Just below from left Mandibulor Angle.

6.Contusion 6 cm x 5 cm over top of left shoulder. Dislocation of left shoulder joint present.

7.Incised wound 3 cm x 0.2 cm x muscle deep over right side of face

8.Multiple contusion in area of 12 cm x 10 cm over left side back of close - 7 cm below from C7 vertebrae    

In the opinion of the doctor, the cause of death was haemorrhage, shock  and coma as a result of ante mortem injuries.

However, as there was no progress in the investigation nor was any attempt made to arrest the accused, the petitioner made a representation dated 7.3.2006 to the SP, Kushi Nagar, stating that as the accused Constable Manokamna Tewari was posted in the police department in Kushinagar as a constable, hence the local police were avoiding taking any action in the case and instead the accused were extending threats to the petitioner. His real brother Rajendra Prasad Pandey made an application dated 2.3.2006 to the IG, Gorakhpur. He, was therefore not hopeful of getting justice from the local police and the same should be transferred to some higher officer, or Special Task Force for investigating the case. He, thereafter, file the writ petition in this Court praying that coercive measures should be taken for the arrest of the accused in the impugned FIR or for such direction which this Court may consider proper in the circumstances.

An order was passed on 3.4.2006 by an earlier Division Bench directing learned AGA to summon the investigating officer to file a counter affidavit indicating the progress of investigation in the case. As a writ petition had also been filed in the meanwhile by Smt. Rajkumari (being Crl. Misc. Writ Petition No. 2937 of 2006) for quashing the FIR dated 31.1.2006 and with a prayer not to arrest her in which no relief had been granted and it was postponed for non-appearance of the counsel and an order had been passed on 30.3.2006 by the Division Bench of Hon. R.C. 'Deepak',  and Hon. M.K. Mittal, JJ. for listing the case in the next cause-list, hence it was also directed by the same Division Bench on 3.4.2006 in Crl. Misc. W.P. No. 3738 of 2006 preferred by the petitioner and informant, Vidya Prakash Pandey that the writ petition should be connected with Crl. Misc. Writ Petition No. 2937 of 2006 filed by Smt. Rajkumari. On 8.5.2006 this Division bench had passed an order for listing the case on 18.5.2006 to enable the leaned AGA to comply with the earlier order directing the investigating officer to be present in person. Thereafter the case was adjourned on one or two dates on the request of the learned AGA. However, on 26.5.2006 a long order was passed after we had examined the investigating  officer and the case-diary and the counter affidavit filed by the investigating officer, who mentioned therein that he agreed with the suggestion of the accused that as a matter of fact the deceased Ramesh Chand Pandey had died from a heart attack as he was treated by MM Nursing Home, Gorkhpur, run by Javneet Jaipuria and Dr. A. Shaqil from 26.12.2005 to 29.12.2005 for some heart ailment and the investigating officer had found the postmortem report of Dr. S.N. Tewari, MO, Sadar Hospital, Padrauna, Kushi Nagar, who had conducted the postmortem on 29.1.2006 to be unreliable and he submitted a final report in the case on 28.4.2006. As we felt that the conclusions of the investigating officer appeared highly suspicious, we had directed that the case be transferred to the CBI and the CJM was restrained from accepting the final report submitted by the investigating officer until the conclusion of the investigation by the investigating officer of the CBI vide order dated 26.5.2006 and the case was listed for further orders in the first week of September, 2006.

On 19.2.2007, we received a copy of the report of the CBI. As we found that the CBI was also toeing the same line as the local police, we had directed that the matter be put up on 28.2.2007 and asked Sri G.S. Hajela to obtain detailed instructions and try to find out if there was fair and honest investigation in the matter. On 28.2.2007, as Sri Hajela sought further time, we had directed that the case be listed on 12.3.2007.

On 12.3.2007, after perusing the two investigation reports dated 4.9.2006 and 8.3.2007 submitted by the CBI, we had passed a reasoned  order expressing our disappointment with what appeared to be one-sided investigation by the CBI pursuant to our order dated 26.5.2006. We also mentioned in the said  order that all the points that we had already raised in our detailed order dated 26.5.2006 wherein we had expressed some suspicion about the investigation conducted by the local police Inspector Ram Nagina Singh, did not appear to have merited the consideration they deserved by the CBI and we had directed that the order dated 12.3.2007 and the earlier order dated 26.5.2006 and the investigating papers of the case be placed before the Central Vigilance  Commissioner who was entrusted with the task of overseeing the efficiency of the investigations conducted by the CBI and its  insulation from any extraneous influences because we felt that if the confidence of the  public and the court is shaken about the credibility of the investigations conducted by the CBI, it would be disastrous for the country, as still the public and the courts regard the CBI as the last hope for fair investigation. We had also directed by our order dated 12.3.07 that the investigation be transferred to a new team of the CBI, free from the influence of the earlier team.  

The investigation was then transferred from the Special Crime Region, Delhi which was earlier investigating the case, to the CBI's Special Crime Region - 3, New Delhi. Sadly, the status reports dated 5.4.2007 and 15.5.2007 submitted by the  Special Crime Region - 3, New Delhi, again failed to allay some of the doubts and questions raised in our  earlier orders. By our order dated 18.5.2007, we have again emphasized how important it was that the investigation by the CBI should be completely above board and we had expressed our disappointment that the Central Vigilance Commissioner was not made a party to the proceedings in spite of the directions in our earlier order dated 12.3.2007. Unfortunately, in spite of our directions for cleansing the investigating system by the CBI, we find that an affidavit has been filed by the Under Secretary of the Central Vigilance Commissioner on 13.7.2007 which appears to suggest that CVC itself is keen to divest itself of its powers for supervising the investigations conducted by the CBI by relying on section 8(a) of the Central Vigilance Commission Act, 2003. Under this provision, according to the learned counsel for the Commission, the Chief Vigilance Commissioner can only exercise superintendence over the functioning of the Delhi Special Police and Establishment insofar as it relates to the investigation of offences alleged  to have been committed under the Prevention of Corruption Act, 1988, or offences connected with the same. The said provision suggests that in other cases investigated by the CBI only the Central Government has some limited powers for overseeing the investigation by the CBI. By introduction of such a provision under the Central Vigilance Commission Act we realise that the directions and hope of the Apex Court in the case of "Vineet Narain v. Union of India," AIR 1998 SUPREME COURT 889 which in paragraph 59(3) had emphasized that "the CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused" has to all intents and purposes been nullified. The Supreme Court has nowhere restrained superintendence of cases other than cases under the Prevention of Corrruption Act by the CVC. But regretfully this is what section 8(a) of the Central Vigilance Commission Act, 2003 has sought to achieve. We cannot hope for any evaluation of the investigation by a complex and ill-defined entity like the Central Government, when we feel that the superior officers in the CBI who were qualified for the work have not been able to discharge this function and to ensure free and fair investigation.

The problems in this case and the reasons for our suspicion that we see with the line of the investigation that has been conducted in the present case, some of which have already been alluded to in our detailed earlier orders dated 26.5.2006 and 12.3.2007 are:

1.How could the deceased suddenly have died a natural death due to heart attack in the residence of constable Manokamna Tewari and his wife Smt. Rajkumari Devi, when there was a bleeding injury on the ear of the deceased, and part of the lobe was found to be missing by Dr. S.N. Tripathi which was not possible if the deceased had only suffered a heart attack, which the accused claimed was the apparent cause of his death.  

2.Why, except for supporting the plea that the deceased had died as a result of heart attack, was the said injury missing from the inquest report in the writ petition filed by Smt. Rajkumari Devi wherein the relevant column on the inquest report simply read 'shav par koi zahira chot nahin hai'?

3.Why in the counter affidavit filed by the first investigating officer in the writ petition preferred by the petitioner in the inquest report the said words had been interpolated after the line 'shav par koi zahira chot nahin hai',  which reads 'bayen kan se khoon baha hai' and has this interpolation only been introduced because the first investigating officer Ram Nagina Singh was trying to confront  Dr. S.N. Tripathi, who conducted the postmortem with some photograph where no other injuries were visible on the face except the injury on the ear?

4.Was the explanation imputed to Shubh Narain Yadav SI who conducted the inquest which appears to have found favour in the report dated 15.5.2007 given by the second CBI investigation team that the line 'bayen kan se khoon baha hai'  was interpolated subsequently because on the first night i.e. 28.1.2006 when Shubh Narain started writing the inquest report there was insufficient light and he could not spot the injury mark including blood and then he spotted the blood oozed out from the left ear of the body, hence he had written the words subsequently on 29.1.2006 'bayen kan se khoon baha hai' when he continued with the inquest?

5.If that  was the position, and the interpolated words had already been added, then how did   Smt. Rajkumari Devi file her writ petition on 3.3.2006, which contained the inquest report dated 29.1.2006 without the interpolation 'bayen kan se khoon baha hai' ?

6.Why would the deceased transfer three of his properties in the name of Smt. Rajkumari Devi, wife of Manokamna Tewari, admittedly, without consideration (as per the second CBI report dated 15.5.07) when he was not stating that the deceased R.C. Pandey had become a recluse or a sadhu as the case of the accused was that a girl stayed with R.C. Pandey at their residence, and the accused suggested that the deceased was trying to marry her. Why would the deceased then hand over his properties to the accused for no consideration? Do all these circumstances not suggest that the accused were using every ploy to grab the property of the deceased free of cost and without consideration?

7.What was the value of the properties transferred free of cost to Smt. Rajkumari w/o Constable Manokamna Tiwari? Why was no attempt made by the local I.O. who submitted the final report and the two I.O.s of the CBI who subsequently investigated the case to estimate the value of the properties transferred to the accused, if the investigations by these agencies was bona fide?

8.Why should Dr. S.N. Tripathi, MO, who conducted the postmortem at the postmortem house, Kasaya, give a postmortem report stating that the cause of death was due to haemorrhage, shock and coma as a result of ante mortem injuries and then proceed to describe the injuries and also to mention that the neck showed fracture of hyoid cartilage. Under the skull the occipital bone was fractured. The membranes were lacerated with 200 ml of clotted blood in its cavity? Would the doctor give such a report only because of his closeness to a journalist; what financial or other benefits would the doctor derive from giving the false medical report?

9.Should the second report dated 15.5.2007 proceed on the footing that Sri Gobri, the sweeper, who helped the doctor conducting the postmortem and identified the photograph of the deceased, had given a more reliable opinion that the doctor for holding that there were no ante mortem injuries, except blood on the ear and no internal injuries on the body of the deceased?

10.Was it proper to prefer the opinion of some private doctors such as Javneet Jaipuria who ran the M.M. Nursing Home, Gorakhpur and Dr. A. Shaqeel who claimed to have examined the deceased for some heart disease between 26.12.05 to 29.12.05 (one month prior to the incident) to the opinion of Dr. S.N. Tripathi the govt. doctor who conducted the post mortem in his routine on orders of the CMO.

11.Was it such a big flaw in the post mortem examination which is basically aimed at determining the cause of death, if Dr. Tripathi did not examine the blood vessels of the heart in the primitive and deprived conditions where post mortem was done at the Kasaya PHC, and is it a fatal error if a doctor does not refer a matter to a a third doctor if their discrepancies of the post mortem report and the inquest? What is to prevail, the post mortem report conducted by a government doctor or the opinion of medically laypersons like the I.O. who perfunctorily note the injuries on the body of the deceased during inquest?

12.Why was the team of AIIMS doctors whose report dated 7.3.07 is on record not asked whether the bleeding injury in the left ear could have been the result of a heart attack, as evinced from the previous heart record of the deceased preserved by the Padrauna and Gorakhpur private doctors?

13.Whether it was also not important to ask the AIIMS team whether the AB human blood group found on the kurta, lower (trouser), inner (banian), sweater, underwear, banian, bunch of threads, and pyjama as per the serology division report of Suresh Kumar Singla of the Central Forensic Laboratory, CBI, dated 13.10.2006 could have been the result of a heart attack as suggested by the accused. And also whether the injury on the face viz. an abraded contusion 6 cm * 4 cm over left side of face, which contained no tear, and the incised wound 3 cm * .2 cm * muscle deep over right side of face which was very superficial would necessarily be noticed in the photograph?

14.Could it be ruled out, considering the high stakes that were involved in this case, that the photographer might have taken more photographs which he may have concealed or even doctored the photographs when he may have been prevailed upon by police accused for whom he worked, which might have given a better picture of the missing part of the lobule of the ear noticed by Dr. Tripathi?

15.Does not a suspicion of undue influence arise, when we notice that after the CBI Serologist Sri Suresh Kumar Singla had described the AB human blood in all the parts of clothing as mentioned above in his report dated 13.10.06, an opinion dated 27.12.06 appears to have been obtained from one Dr. Rajinder Singh, a Principal Scientific Officer in the department that the blood stained clothes exts. 1a to 1h do not reveal any signs of struggle/violence, when the relevant question which ought to have been asked by an honest investigating agency would have been, whether in the case of a heart attack such human blood of the accused would have been detected on all those clothes?

16.Likewise was it not a bit suspicious that John George Moses, Senior Scientific Officer, Grade II in the Lie Detection Division of the CBI has found all the relevant answers of Dr. S.N. Tripathi except the answer Yes to the question "whether he performed the post mortem of Ramesh Chand Pandey" to be false? Likewise he found all the answers of Ram Savare Pathak, a journalist,  (except his "yes" to the question whether he had talked to Dr. S.N. Tripathi on the phone on 29.01.06 to be false. However he found the accused Manokamna Tiwari to be a paragon of truthfulness. The basis and materials for reaching these conclusions was not attached to Sri Moses' s reports dated 2.8.06 and 20.9.06. Do not the results mentioned by Sri Moses appear to be pre-scripted to favour the accused and the investigating agency which seems highly supportive of the accused? Also we have already mentioned in our earlier order dated 26.506 that "if suspects are subjected to lie detector tests under emotional pressures there may be major fluctuations in the measures recorded." Also the reliability of lie detector tests are open to question, and hence are not treated as reliable or even corroborative evidence by Courts.  

17.In a case such as the present one where the deceased was residing in the house of the accused who were not his relatives, and had been found dead in that house, three of his properties had already been transferred in the name of one of the accused Smt. Rajkumari Devi w/o Constable Manokammna Tiwari, admittedly without any payment or consideration, the accused had taken the plea that the deceased had died due to heart attack, whereas Dr. S.N. Tripathi M.O., PHC Kasaya who conducted the post mortem examination found substantial injuries and some external injuries on the deceased which suggested that assault and strangulation to be the cause of death, whether in such circumstances the onus lay on the accused to give a satisfactory explanation of the cause of death, or whether the second investigating officer of the CBI, in his report dated 15.5.07 was justified in shifting the onus on the prosecution in such circumstances, and in observing "He (referring to the complainant Vidya Shankar Pandey) could not provide any clinching evidence to show why Manokamna Tiwari and his family were behind the alleged murder of R.C. Pandey?"

18.As the incident in question took place on 28.1.06, when it was first investigated by the local I.O. who submitted a final report on 28.4.06, which final report in our opinion did not prima facie  inspire much confidence. Hence by our detailed order dated 26.5.06 we had transferred investigation to the CBI which we had hoped would investigate the matter honestly and meet the lacunae in investigation mentioned in our order dated 26.5.06. However to our dismay this did not happen. On 12.3.07 we asked for monitoring by the Director CBI and other higher officials and by the CVC and by a detailed order we again sought transfer of the investigation by a completely new team of the CBI. As our orders indicate that the said investigation also appears to have left many unanswered queries. One very important circumstance is that if in the opinion of the local I.O. who submitted a final report and the subsequent CBI investigating officers the accused was speaking the truth and his version that the deceased died as a a result of heart attack in his home, and Dr. S.N. Tripathi, M.O. who conducted the post mortem examination had submitted a fabricated report what was the impediment stopping these officers from prosecuting this doctor. Is it because they feel that when if the the doctor would successfully defend himself against themselves against such a charge and they might find themselves in the dock for false prosecution and other offences.

As the investigation has now been conducted for a sufficiently long time of more than a year since our order dated 26.5.06 by the CBI also, the investigating officer is directed to complete the investigation and to submit a final report or a charge sheet as he may choose before the CJM, Kushinagar, within two months. The CJM may either take cognizance or refuse to take cognizance after applying his judicial mind to the charge-sheet or final report, whatever is submitted. He shall expeditiously pass the order taking or refusing to take cognizance after giving an opportunity to the complainant/informant to be heard in the matter in case the investigating officer decides to submit a final report in this case. We direct that the entire record of the two writ petition, including the order sheets, copies of detailed orders including the present one, counter, rejoinder and supplementary affidavits, interim and other reports by the investigating agencies concerned and all other documents on the file of this case be forwarded to the CJM Kushinagar through the District Judge Kushinagar within a week for ensuring that the investigating officer of the CBI complies with our aforesaid direction for completion of the investigation. A copy of the said documents (in the cases where two copies are available, and photostat copies of other documents, where duplicates are not available) shall be kept in the file in this Court also. The CJM Kusinagar shall submit a compliance report of this order after three months. The CBI shall also file a copy of its final report/charge sheet before this Court on the next date of listing. List on 26.11.2007 for obtaining the compliance reports of this order and for further orders. Copy of this order may be given to the Counsel for the petitioner, learned AGA, Counsel for the CBI Sri G.S. Hajela and Counsel for CVC Sri Manu Khare within 48 hours for communication to the parties concerned and  for necessary action.  

Dated: August  13, 2007.

AS-148/sks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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