Gangi Devi vs State of H.P. and Another

Kamlesh Sharma, J.—In this petition, the Petitioner Smt. Gangi Devi, wife of late Damodar Dass, resident of village Rangar, Post Office Seoh, Tehsil Sarkaghat, District Mandi, has prayed that Central Bureau of Investigation may be directed to investigate the matter of alleged murder of her husband late Damodar Dass. The allegations made in the writ petition are that late Damodar Dass was working as Multipurpose Health Worker in the Primary Health Centre, at village Rangar, Tehsil Sarkaghat, District Mandi He was deputed for temporary duty at Primary Health Centre Seoh with effect from 22nd August, 1991 on which date he had gone to attend his duties at Primary Health Centre, Seoh but did not return to his village Rangar in the evening. As per the information received by the Petitioner he was seen in village Praun in the evening of 22nd August, 1994 and on the search made his clothes and shoes were found in Solang Nallah flowing between village Praun and village Rangar but his dead body was not found.

The complaint of the Petitioner is that the local police has not conducted proper investigation and has wrongly closed the case on the ground that late Damodar Dass was swept away in Solang Nallah- It is also stressed by the Petitioner that in the absence of any part history of any man or animal having been flown away in Solang Nallah the possibility of late Damodar Dass being swept away, as per the version of the police, is non-existent as in that case his clothes and shoes would not have been there in Solang Nallah The Petitioner is of the confirmed view that her husband late Damodar Dass has been murdered by some anti social elements and the local police is trying to shield them with some ulterior motives. The Petitioner has also placed newspaper reports in respect of alleged murder of late Damodar Dass on record as Annexures P-1 to P-4 According to the Petitioner, since the representation-by her as well as one of the brOrs. of late Damodar Dass, namely, Des Raj, made to the authorities brought no result and no headway was made in the investigation by the local police, she is compelled to approach this Court by filing the present writ petition.

The Respondents in their reply filed on the affidavit of Shri Pardeep Kumar, Superintendent of Police, C .I.D. (Crime Branch), Himachal Pradesh, have denied the allegations made in the writ petition It is stated that in the application of the Petitioner which was handed over in Police Station, Sarkaghat on 25-8 1994 at 11.0 a m by the brother of late Damodar Dass, namely, Roop Lal. she had herself expressed her suspicion that due to heavy rains during the night of 22nd August, 1994 her husband might have swept away in Solang Nallah, It is also alleged that after entering complaint in the daily dairy, investigation team headed by Sub Inspector Gian Chand and Assistant Sub-Inspector Ishwar Dass from Police Station, Sarkaghat had inspected the spot, made enquiry from 19 persons and searched for late Damodar Dass but his dead body could not be located. Thereafter, on 13-9-1994 Anr. brother of Damodar Dass, namely, Kashmir Singh, who is serving as Subedar in the Army, got a criminal case registered u/s 364 I.P.C. in Police Station, Sarkaghat, in pursuance to which Dy S. P. Chain Singh, S.D.P.O. Sarkaghat, had again visited the spot alongwith Sub Inspector Gian Chand. Assistant Sub Inspector Lekh Ram and S. H. O. Sarkaghat to investigate the case, during the course of which four persons, namely, Amar Singh, resident of village Rangar, Ajeet Singh, Duni Chand and Pandoo alias Braham Dass residents of village Praun, were arrested on 11-1994 but they were released on bail on 2-11-1994 by Judicial Magistrate Ist Class, Mandi, in the absence of any evidence against them It is further stated in the reply affidavit that clothes of Damodar Dass were sent to Forensic Science Laboratory, Bharari Shimla, and its opinion is as under:

(i) There is no blood on pant, underwear, shirt, shoes and "smoking bidis".

(ii) The tearing of clothes and scratch could be due to fall and the corresponding cut marks on clothes could be due to striking of the stones whenever the clothes came in between.

(iii) From the sand soil, small pebbles found on the clothes it appears that aforesaid exhibit had been swayed in the strong current of water. The condition of clothes and its separation from the body shows that the same is due to whirls of the water in all probability and no other opinion is possible.

It is further alleged in the reply affidavit that on the representation of the Petitioner that, site is not satisfied with the investigation conducted by the local police, the case was transferred for investigation to State C. I. D. by Director General of Police vide order No. A-6/Comp/Mandi/11/94 43890-93, dated 23-11-1994. An investigation team of State C. I. D. consisting of Dy S.P. Crime Branch, Sub-Inspector Prem Singh and Constable Rajiv Mehta also visited the spot on 27-11 1994 and recorded the statements of 12/15 residents of the area but no incriminating clue and motive of murder came to light It is further stated in the reply affidavit that during the investigation it was found that late Darnodar Dass was in the habit of drinking and on 22nd August, 1994 about 11/12 a. m. he had taken liquor in village Seoh and was last seen alive at about 8.00 p.m. near the shop of Pandoo alias Braham Dass of village Praun wherefrom he was seen going towards his house in village Rsngar. It is not disputed that Solang Nallah is at a Idistance of half a Kilometre from village Praun and falls on the way to will age Ran gar and the clothes i.e. Pant, shirt underwear and boot (P T shoes) of late Damodar Dass were recovered from nallah by the villagers during the search on 24-8-1991, It is also stated that during investigation it has come on record that there was continuous and heavy rain during the night of 22nd and 23rd August, 1994 and lot of whirlpools were found in the water of nallah As per the reply affidavit, the relatives of late Damodar Dass were also associated during the investigation and all the places suspected by them were searched but with no result ft was also found that late Damodar Dass had no enmity with anyone in the village. On the complaint of the Petitioner that Damodar Dass has; altercation with one Amar Singh of village Ranga about two years ago he was arrested by the police but released on bail by She Court, From the evidence collected during the investigation, the Respondents have come to the conclusion that on 22nd August, 1994 at about 8.30 p. m-Damodar Dass had reached near Solang Nallah, on his way to his house, he fell down from the ''Dhank'' into the water of Solang Nallah as same brand of bidis were found scattered at the ''Dhank'' which he used to stroke, and was swept away into the river Beas. It is also stated that: as per the report of Investigating Officer, there are lot of whirls and gorges in the Solang Nallah which joins river Beas and there is possibility that clothes of late Darnodar Dass were got separated while his body was flown through these whirls and gorges.

In the rejoinder to the reply affidavit of Respondents, the Petitioner has reiterated her allegations in the writ petition and denied the contrary stated in the reply affidavit. According to her, the Pradhan of Gram Panchayat, Seoh is in league with the assailants of late Damodar Dass who had got her signatures on a blank piece of paper on which her application made to the authorities was written stating inter alia that there was heavy rain during the night of 22/23rd August, 1994 and late Damodar Dass might be swept away in the water of Solang Nallah. She has again stressed that had late Damodar Dass been flown in the water of Solang Nallah his clothes specially the underwear and shoes could have not been taken off from his body According to her, delay of 22 days in registering the F.I.R. and thereafter delay of 2-1/2 months in arresting four persons, who were bailed out the very next day and the procured report of Forensic Science Laboratory, Bharari clearly show that the local police has shielded the accused persons. It is also denied that there was heavy rain during the night of 22/23rd August, 1994 and also that late Damodar Dass had fallen from the ''Dhank'' into the water of Solang Nallah and thereafter swept away into River Beas she has also placed on record her additional affidavit giving the list of persons who might give some clue that what had happened to late Damodar Dass if they are properly interrogated by the police Though, this additional affidavit is placed on the record of this case in a sealed cover yet a copy thereof was sent to Director General of Police, Himachal Pradesh, in order to conduct the investigation and interrogate the persons named therein and thereafter to place the report of the investigation on record of this writ petition. Despite opportunities granted to the Respondents neither the report of the enquiry has been placed on record nor additional affidavit has been filed on behalf of the Respondents. In these circumstances,, we have proceeded to hear the writ petition on merits.

We have been told that the prosecution has already filed an application in the Court of Judicial Magistrate Ist Class, Sarkaghat on 22-8-1996 for cancellation of the F. I R. u/s 364, I.P.C. in which notice has been issued to the complainant and final order is yet to be passed Learned Counsel appearing for the Petitioner has vehementaly urged that in view of the facts and circumstances of this case and considering the agony suffered by the Petitioner, a young widow of late Damodar Dass having four minor children, whose husband has not been traced out dead or alive since 22nd August, 1994, and who has expressed complete lack of faith in the local police, it is a fit case in which the investigation should he handed over to Central Bureau of Investigation. In support of his submission he has relied upon the judgment of Supreme Court in R.S. Sodhi Vs. State of U.P. and others, and that of Punjab and Haryana High Court in Chandler Kala v. State of Haryana 1996 (1) Recent Criminal Reports 212 On the other hand, learned Additional Advocate General, appearing for Respondents, has urged that no useful purpose will be served by referring the case for further investigation to Central Bureau of Investigation as the local Police as well as Crime Branch of C. I. D. has already conducted detailed investigation and has found that the husband of the Petitioner late Damodar Dass has fallen from the ''Dhank'' into the water of Solang Nallah and swept away into river Beas.

After giving our best consideration to the respective contentions of learned Counsel for the parties, the facts and circumstances on record and in the light of ratio of judgments in R.S. Sodhi v. State of U.P. and Chander Kala v. State of Haryana (supra), we are of the view that it is a fit case where the investigation should be entrusted to Central Bureau of Investigation in order to in still confidence in the public minds, which will be in the larger interest of the society and also to put and end to the mental agony being suffered by the Petitioner who will finally come to know whether her husband late Damodar Dass was swept away in the water of Solang Nallah into the river Beas as reported by the police or was murdered, as apprehended by her. We want to make it clear that by referring the case to the Central Bureau of Investigation we are not agreeing with the Petitioner that the investigation, conducted by the local police and Crime Branch of C.I.D., was mala fide. We are guided by the larger requirements of justice and no reflection is caused on the credibility of the local police and the Crime Branch of the C. I. D. who have conducted investigation in the matter.

In the result, the writ petition is allowed and the Himachal Branch of Central Bureau of Investigation directed to conduct the investigation in the case F.I.R. u/s 364, I.P.C. registered in Police Station, Sarkaghat, District Mandi, and the complaint of the Petitioner. We except that Central Bureau of Investigation will act promptly in the matter and complete its investigation as far as possible within a period of six months and thereafter place its report on the file of this writ petition, The records of this case he made available to the Himachal Branch of Central Bureau of Investigation by the police. Costs easy.