orissa high court

Orissa High Court: In a criminal application filed under Section 482 of the Code of Criminal Procedure, 1973, (‘CrPC’), the father of the deceased was seeking fresh investigation or reinvestigation of death of his son, wherein, Birendra Lakra, a former hockey player was one of the accused persons, the Single Judge Bench of Sashikanta Mishra, J., allowed the application and directed the Criminal Investigation Department-Crime Branch (‘CID’) to reinvestigate the case.

Factual Matrix

On 28-02-2022 at about 12 noon, the Petitioner (father of the deceased) received a call from Birendra Lakra/ accused person, that his son Anand Toppo (‘deceased’) was unconscious and shifted to Capital Hospital, Bhubaneswar in an Ambulance. The doctor, however, declared him brought dead. Suspecting foul play, the Petitioner attempted to lodge a complaint, but the same was not accepted on the ground that a First Information Report (‘FIR’) was already lodged for an Unnatural Death (U.D. Case) by suicide. The Petitioner had submitted a written complaint on 01-04-2022 with a request to register the same and convert the U.D. Case into a murder case. Being aggrieved by inaction of the Inspector in Charge (‘IIC’), the Petitioner sent the substance of information along with his previous complaint in writing to the Deputy Commissioner of Police (‘DCP’), Bhubaneswar-Cuttack requesting to register the case under Section 302 of IPC and to conduct proper investigation. Thereafter, the Petitioner sent another complaint on 17-05-2022 to the Commissioner of Police, Bhubaneswar-Cuttack for redressal of his grievance, since no action was taken despite such steps, the petitioner had approached the Court. Meanwhile, the said case was pending, the Police acknowledged the written complaint of the Petitioner and registered the FIR. A final report was submitted stating that, no prima facie evidence was made out under Section 302 of the Penal Code, 1860 (‘IPC’) against the alleged accused persons beyond all reasonable doubts.

Therefore, aggrieved by the said final report, the petitioner approached the Court with the present criminal application.

Court’ Decision

On perusing the statements of the girl staying with the deceased and that of Birendra Lakra recorded under Section 164 and 161 of the CrPC respectively, the Court said that the statements show certain palpable incongruities and significant aspects which have not been considered by the Investigating Officer (‘I.O’), namely;

i. that the deceased was found hanging from the ceiling fan with his knees 2” to 3” above the floor which is strange since nothing has been said as to what the position of his feet was. This would obviously imply that the lower part of his leg (below the knees) must have been folded backwards with his feet touching the ground;

ii. in such background, the statement of the girl- ‘that having seen the deceased hanging from the ceiling fan she herself brought him down and opened the noose of the saree’, was difficult to believe.

iii. the statement of the girl that she attempted mouth to mouth respiration and thereafter called Birendra Lakra, militates against the natural reaction expected of a young girl on witnessing such a sight. In ordinary course, she should have shouted for help or called Birendra Lakra, who was in the adjacent room.

iv. the statements of both, the girl and Birendra Lakra, that they had used earphones at the relevant time appear to have been made out of context. Moreover, while Birendra Lakra himself stated that he was playing a game on his mobile phone, the I.O. had mentioned in the charge sheet that he was listening to music on his iPod.

v. Birendra Lakra had admitted that due to family disturbances, he had stayed in the said Flat for 20 days with permission of the deceased and used to visit the Flat even in the absence of the deceased.

vi. The postmortem report had clearly showed the presence of a ligature mark on the neck of the deceased. The chemical examination report of the viscera showed the presence of alcohol and barbiturate.

Further, the Court said that the implication of the statements of the accused persons were not properly considered by the IO. The Court also noted the opinion of the Additional Professor, Department of Forensic Medicine Toxicology, AIIMS, Bhubaneswar, that the deceased had consumed both the alcohol and barbiturate prior to death, the Court said that it was surprising as to how the doctor could positively opine that the deceased had intentionally consumed both the compounds. The Court also said that the doctor had not given a conclusive opinion, rather his opinion suggested that the death could be either due to ante-mortem hanging or the result of consumption of alcohol with barbiturate.

The Court added that it must be kept in mind that death of a human being had occurred and there was an allegation of foul play. Thus, the Court said that the matter should therefore have been investigated thoroughly, touching all possible angles keeping in view the allegations. In fact, the evidence collected by the IO was not such as would completely rule out foul play. There were glaring gaps in the investigation, for which, it could not be so easily concluded that the death of the deceased was certainly due to suicidal hanging and nothing else.

The Court said that proper and fair investigation is sine qua non of criminal jurisprudence. The very purpose of investigation is to find out the truth, but if relevant aspects were ignored or overlooked by the investigating agency, it cannot be said that there was fair and proper investigation. Therefore, the Court had doubts that the investigation in the present case was conducted properly and thus, the Court considered the present case to be fit for reinvestigation.

Regarding the question that by which agency the reinvestigation should be conducted, the Court said that it is settled position of law that the High Court in exercise of its power under Section 482 of the CrPC can direct investigation to be conducted by an independent/specialized agency in appropriate cases. The Court added that in the present case, there is an allegation that the IIC collaborated with the I.O. to ensure submission of the final report as mistake of fact. The Court also noted that Birendra Lakra is a high-ranking Police Officer belonging to the grade of DSP. Therefore, the Petitioner’s allegation that the investigation was biased or in any case not impartial appeared to be reasonable. Thus, the Court did not consider it proper to direct the same agency to reinvestigate the case.

Thus, the Court allowed the present criminal application and directed the Criminal Investigation Department-Crime Branch (‘CID’) to reinvestigate the case for the ends of justice. The Court also directed the Additional Director General (Crime Branch) to entrust the investigation to a Senior Officer not below the rank of Deputy Inspector General of Police, as Birendra Lakra is himself a Senior Police Officer in the rank of Deputy Superintendent of Police. The previous IO was directed to transmit the entire case diary and all other records/documents collected during investigation to the CID (Crime Branch) forthwith.

[Bandhna Toppo v. State of Orissa, 2023 SCC OnLine Ori 4472, Decided on 05-07-2023]

Advocates who appeared in this case :

For the petitioner: Advocate Shivsankar Mohanty;

For the respondent: Additional Standing Counsel S.N. Das.

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