Muraleedharan vs Sajikumar Nair and Others

Thomas P. Joseph, J.—This petition is filed under Article 226 of the Constitution of India seeking a direction to the 7th Respondent, the Central Bureau of Investigation (CBI) to investigate "into the mysterious role of Respondents 1 to 4" in implicating Petitioner u/s 308 of the Indian Penal Code, the role of first Respondent in Crime No. 44 of 2003 of Muhamma Police Station and the role of Respondents 1 to 3 and 6 in Crime No. 313 of 2003 of Mararikulam Police Station.

Petitioner appeared in person and I have heard him and the learned Public Prosecutor.

Petitioner is accused in Crime No. 255 of 2004 of Mararikulam Police Station for offence punishable u/s 308 of the IPC on the allegation that he attempted to cause the death of one Sajikumar by assaulting him with sword. Mararikulam Police submitted final report and the case was committed for trial to the Court of learned Sessions Judge, Alappuzha who made over the case to the Assistant Sessions Judge, Alappuzha where the case was numbered as S.C. No. 31 of 2006. After the trial Petitioner was convicted and sentenced to undergo imprisonment. Petitioner challenged conviction and sentence in Crl. Appeal No. 320 of 2009 and the learned Sessions Judge, Alappuzha by Ext. P6, judgment dated February 2, 2010 remanded the case to the Assistant Sessions Judge, Alappuzha for fresh disposal with a direction that learned Assistant Sessions Judge shall give opportunity to the Petitioner for cross-examination of P.Ws. 1 to 3, 6 to 12. I am told that the said case is pending trail before learned Assistant Sessions Judge. In the meantime Petitioner filed W.P(C) No. 22562 of 2004 in this Court seeking a fresh investigation into Crime No. 255 of 2004 and other reliefs. This Court vide Ext. P2, judgment disposed of that case on August 2, 2005. While rejecting the claim for re/further investigation of the case, this Court directed the Superintendent of Police, Alappuzha to dispose of the representation (Ext. P5 in that case) as per law. Pursuant to that judgment the Superintendent of Police considered the said representation and addressed Ext. P5, letter dated February 2, 2006 to the Director General of Police, Thiruvananthapuram.

In the meantime Petitioner has also a case that Sajikumar, de facto complainant in Crime No. 255 of 2004 caused a false case to be registered as Crime No. 44 of 2003 of Muhamma Police Station alleging that while the said Sajikumar was riding the motor cycle belonging to the Petitioner on 17.02.2003, he was hit by the motor cycle ridden by one Chandrasekharan Nair and the said Sajikumar suffered injuries. Sajikumar filed a compliant on 23.02.2003 based on which the police registered Crime No. 44 of 2003 and investigated. It is also the case of Petitioner that the said Sajikumar caused Crime No. 313 of 2003 to be registered at Mararikulam Police Station alleging that on 17.02.2003 motor cycle bearing KL-4/C-557 belonging to the Petitioner hit the said Sajikumar and he suffered injury. It was alleged in that case that one Prithviraj was riding the said motor cycle. Based on that crime Sajikumar is said to have approached the Motor Accidents Claims Tribunal, Alappuzha claiming compensation against Petitioner as well. Petitioner says that he learned about Crime No. 313 of 2003 only when he got summons from the MACT, Alappuzha in respect of the claim made by Sajikumar.

In Ext. P5, the Superintendent of Police, Alappuzha stated that on investigation Crime No. 44 of 2003 of Muhamma police was found to be a false case and a refer report was submitted. So far as Crime No. 313 of 2003 is concerned, Superintendent of Police reported that in that case police investigated and submitted final report that Prithviraj appeared before learned Magistrate, pleaded guilty, was convicted and sentenced to pay fine of 2,000/-. Grievance of Petitioner is that all these matters are inter-related and there should be an investigation by the CBI into all these matters.

So far as Crime No. 255 of 2004 which has given rise to S.C. No. 31 of 2006 is concerned, admittedly there is no connection between Crime Nos. 44 and 313 of 2003 referred to above so that re-investigation of the said Crimes is required. That request of Petitioner cannot be allowed. I must also bear in mind that Ext. P5, letter was submitted by the Superintendent of Police to the DGP on 10.02.2006 and it is after five years that Petitioner has come up with a request for investigation by the CBI into Crime Nos. 44 and 313 of 2003. Hence that request of Petitioner cannot be entertained.

So far as the request for investigation of Crime No. 255 of 2004 is concerned having regard to the facts and circumstances I am inclined to think that re/further investigation is not required. Learned Sessions Judge while disposing of Crl. Appeal No. 320 of 2009 found that in the interest of justice Petitioner must be given opportunity to cross-examine P. Ws. 1 to 3, 6 to 12. I must also bear in mind that there is no challenge to Ext. P6, judgment of the Sessions Judge.

According to the Petitioner injury allegedly suffered by Sajikumar on account of his allegedly assaulting him and as revealed by Ext. P4, wound certificate is minor in nature and it is unlikely that such an injury is caused by assaulting with a sword. That of course is a matter which is to be ascertained from the Medical Officer who has treated Sajikumar and issued the wound certificate. It is not clear from Ext. P6, judgment whether Petitioner is given the opportunity to cross examine the Medical Officer who treated Sajikumar and issued the wound certificate. Assuming that P. W1 to 3 and 6 to 12 do not include the Medical Officer as well, I am inclined to give Petitioner an opportunity to further cross examine the Medical Officer as well.

It is also to be borne in mind that if Petitioner has got a case that opinion given by the Medical Officer who treated Sajikumar and issued the wound certificate is not correct it is within the right of Petitioner to cite any other Expert on the point and examine him as a defence witness. It is not clear whether Petitioner has already availed such an opportunity and if not, I make it clear that it will be open to the Petitioner to examine an Expert on the point if he is so advised, to convince the trial Court that no injury as stated in the wound certificate of Sajikumar could have been caused in the manner alleged by prosecution.

Writ Petition is disposed of in the following lines:

(i) Request for further or re-investigation into Crime No. 44 of 2003 of Muhamma Police Station and Crime No. 313 of 2003 of Mararikulam Police Station is rejected.

(ii) Request for re/further investigation into Crime No. 255 of 2004 of Mararikulam Police Station is rejected.

(iii) It is made clear that if not already permitted it is open to the Petitioner to recall the Medical Officer (examined by the prosecution) who treated Sajikumar and issued wound certificate and further cross-examine him.

(iv) It is open to the Petitioner if it is not already done to summon any Expert on the subject and examine such Expert as a defence witness to prove that no such injury as allegedly inflicted on Sajikumar in Crime No. 255 of 2004 could be caused with the weapon allegedly used by Petitioner.

(v) I make it clear that Petitioner will also get an opportunity to produce relevant documents if any if not already produced in the trial Court on his side.