Cause of death could not be ascertained
2. The appellants before this Court are the two cousins of the deceased who was found dead in her rented accommodation in House No.424B, Ground Floor, Chirag Delhi on 29.05.2013. The deceased was a 25 years old young girl who was a permanent resident of Manipur and at the relevant time was working in a call centre at Delhi. The post mortem was conducted next day on 30.05.2013 which recorded following observations:
“a) Part of nose is missing over right side and piece of it is attached on the left side.
b) Nibbling marks present over both the upper eye lids
c) wound size of 5 cm is present over dorsum of right foot; margins are irregular and show nibbling marks
d) all wounds are post mortem in origin”
The cause of death could not be ascertained in the post mortem report.
Case initially registered against unknown persons under section 306 IPC and then converted into section 302 IPC
3. Some puzzling facts of this case leading to this appeal are that the First Information Report (for short ‘FIR’) was only registered by the police on 31.05.2013, initially under Section 306 of Indian Penal Code (for short ‘IPC’), against unknown persons, when there was blood spattered all over the room and the face of the deceased was smashed, as we are given to understand. It was only later converted to a case under Section 302 of IPC. Initially, investigation was conducted by the Crime Branch and a second post mortem report was submitted again with no clear cause of death determined.
First post mortem done by AIIMS doctor and opinion as to cause of death was not given
4. The body of the deceased was discovered on 29.05.2013 by the landlord of the tenanted premises who alerted PCR at 11am on the same day and this was recorded as DD No. 20A. The postmortem of the deceased was conducted on 30.05.2013 by a Senior Resident of the All India Institute of Medical Sciences (AIIMS) who recorded injuries on the body of deceased, while opinion about the cause of death was not given and the viscera analysis report and other reports from Central Forensic Science Laboratory (CFSL), were yet to come.
After the representations by the appellants section 302 IPC was added
5. The FIR No. 253 of 2013 was registered on 31.05.2013 at Police Station, Malviya Nagar against unknown accused persons under Section 306 of the Indian Penal Code, 1860 (hereafter “IPC”). The investigation was transferred to the Crime Branch, Malviya Nagar the next day, i.e., 01.06.2013 and pursuant to representations by the appellants, offence under Section 302 of IPC was added. On 04.06.2013 a second postmortem was conducted by a Medical Board of three doctors from Maulana Azad Medical College & Lok Nayak Hospital, and noted eleven injuries on the person of deceased victim, however, the opinion regarding the cause of death was not given due to the pendency of viscera chemical analysis and histopathology reports.
Writ petition was filed for change of investigation agency (CBI)
6. Meanwhile, the appellants herein had filed Writ Petition (Criminal) No. 1364 of 2013 before the Delhi High Court praying for direction for the investigation to be given to the Central Bureau of Investigation (for short ‘CBI’), who is also respondent No. 3 in the present matter. During the pendency of this Writ Petition, an order dated 11.04.2017 was passed recording the submission made by the counsel for Government of NCT that the final report which was submitted on 24.02.2015 under Section 173 of CrPC before the Chief Metropolitan Magistrate (South), has been agreed to be withdrawn and matter will be subjected to further investigation.
Hon’ble High Court dismissed the Writ Petition
7. The High Court ultimately dismissed this Writ Petition for reasons which are fourfold. Firstly, it was noted that polygraph test had been conducted on the suspects Raj Kumar and Amit Sharma on 26.12.2013, however, no opinion could be formed about their involvement. Secondly, the DNA of the semen samples recovered from the undergarment of the deceased did not match with the DNA samples of the accused. Thirdly, the boyfriend of the deceased had not joined investigation, he was absconding and could not be traced. Fourthly, despite the post mortem conducted on the deceased, there was no conclusive cause of death which could be ascertained.
Challenge
9. This order of the High Court is presently under challenge before this Court, where the appellants pray that a thorough investigation be done by CBI. Vide Order dated 05.02.2019, this Court had constituted Special Investigation Team (SIT) to monitor the investigation. The SIT so constituted submitted two status reports on 25.07.2019 and 21.10.2019. All the same, the investigation which has been conducted by the police and later by the SIT yielded no conclusive result. The SIT in its report has reached the following conclusion:
“……………..”
10. The present appellants, who are close relatives of the deceased and are residents of the State of Manipur, have always claimed that it is a case of rape and murder, and the police is trying to shield the accused. The deceased comes from a “Ukhrul” District in the State of Manipur, which is far away from Delhi. The kith and kin of the deceased, who are before this Court are only praying for an effective investigation so that the culprits can be apprehended and brought to justice.
Powers of constitutional court to direct CBI investigation
13. In a seminal judgment reported as State of West Bengal and Others vs Committee for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571, this Court has discussed in detail inter alia the circumstances under which the Constitutional Courts would be empowered to issue directions for CBI enquiry to be made. This Court noted that the power to transfer investigation should be used sparingly, however, it could be used for doing complete justice and ensuring there is no violation of fundamental rights. This is what the Court said in Para 70:
“44…Whether it be due to political rivalry or personal vengeance or for that matter for any other motive a murder takes place, it is the responsibility of the police to come up to the expectation of the public at large and display that no stone will remain unturned to book the culprits and bring them for trial for being dealt with under the provisions of the criminal law of prosecution. Any slackness displayed in that process will not be in the interest of public at large and therefore as has been pointed out by this Court in the various decisions, which we have referred to in the earlier paragraphs, we find that it is our responsibility to ensure that the prosecution agency is reminded of its responsibility and duties in the discharge of its functions effectively and efficiently and ensure that the criminal prosecution is carried on effectively and the perpetrators of crime are duly punished by the appropriate court of law.”
15. This Court has expressed its strong views about the need of Courts to be alive to genuine grievances brought before it by ordinary citizens as has been held in Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158.
Direction given to the CBI for investigation
16. It is to observe that unresolved crimes tend to erode public trust in institutions which have been established for maintaining law and order. Criminal investigation must be both fair and effective. We say nothing on the fairness of the investigation appears to us, but the fact that it has been ineffective is self evident. The kith and kin of the deceased who live far away in Manipur have a real logistical problem while approaching authorities in Delhi, yet they have their hope alive, and have shown trust and confidence in this system. We are therefore of the considered view that this case needs to be handed over to CBI, for a proper investigation and also to remove any doubts in the minds of the appellants, and to bring the real culprits to justice.
Party
AWUNGSHI CHIRMAYO AND ANR … APPELLANTS versus OVERNMENT OF NCT OF DELHI AND OTHERS …RESPONDENTS – CRIMINAL APPEAL NO OF 2024 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.8034 OF 2018) – 2024 INSC 249 MARCH 22, 2024
https://main.sci.gov.in/supremecourt/2018/31532/31532_2018_10_1501_51726_Judgement_22-Mar-2024.pdf
