Jisha Murder - Father Seeks CBI Probe [Read Petition]
BEFORE THE
HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) /2016
(Special
Original Jurisdiction)
Petitioner:
K.V. Pappu( Paapu)
S/o. Vellani, aged
63
Kuttikattuparambil
House,
Asamannur Village,
Cherukunnam Kara
KunnathunaduTaluk,
Perumbavoor,
Ernakulam
District.
Vs.
Respondents:
1. State of Kerala
Rep. by
it’s Secretary to Government
Home
Department
Government
Secretariat, Thiruvananthapuram- 695 001
2. Director
General of Police,
Police
Head Quarters,
Thiruvananthapuram-695
001
3.
Superintendent of Police
Special
Branch CID, Kozhikode-
4. Central
Bureau of Investigation
Plot No. 5-B, 6th Floor, CGO Complex,
Lodhi Road, Jawaharlal Nehru Stadium Marg,
New Delhi, Delhi 110003
5.
Superintendant of Police
Central
Bureau of Investigation/ SPE
Kathrukadavu,
Cochin- 682017
6. Union
of India
Rep. by
it’s Secretary to Government
Ministry
to Home affairs
New
Delhi-110003
WRIT
PETITION ( C )FILED UNDER ARTICLE 226 OF
THE
CONSTITUTION OF INDIA
(A)
All the processes and
notices to the petitioner may be served on to his Counsel G. Krishna Kumar, Basil Kuriakose , Ani Joseph K.A. , Elizabath
Oliver & Remya M.L, , Advocates, IInd
Floor , MASS Complex, Jew Street,
Ernakulam, Kochi-35
(B) All the processes and notices to the
respondents may be served on the above address or to their counsel engaged if
any
STATEMENT OF FACTS
The petitioner begs to submit as follows.
1.
The petitioner is the
father of JishaMol who was found brutally murdered on 28.04.2016. In respect of
this offence Crime No. 909/2016 was registered by Kuruppampady Police Station.
The investigating officer has filed a final report in the last week of
September 2016, charge sheeting the accused under Sec. 449,342,376, 376 (A),
302,201 R/W Sec 3 (1) (W) (1) & (ii), 3(1) (a) & Sec 3 (2) (v) of the
SC & ST Prevention of Atrocities Act.
2.
Prosecution case is that
the accused with an intent to fulfill
his uncontrolled sexual desire and with an intention to have sexual
relationship with the victim, On 28.04.2016 in between 5.30-6 P.M, keeping the
knife in his hand, trespassed into the residence of the victim Jisha Mol and
grabbed her pressing her nose and mouth with his hands and when she resisted
the attempt of the accused to commit
rape on her, Jisha Mol bite the index finger of the right hand of the accused
so as to escape and whileso, accused bit below the left shoulder causing
injuries to her, strangled her with a shawl around her neck and confined her
without allowing her to escape the clutches , again tried to subdue her.
Whileso the accused stabbed with the material object knife on her neck and face
several times causing injuries to her, poured Alcohol into her mouth and with
an intention to commit rape on her, rolled her churidhar top up, churidhar
bottom and the undergarment was removed completely from the right leg and from
the left leg upto knee and committed rape on her and on account of the anger
and hatred because of the resistance of Jisha Mol with an intent to cause her
death, drawing the knife back and again stabbed
her several times and thereby murdered Jisha Mol in the most brutal
manner. Accused thereafter washed the knife from the house and got out from the
house throw the knife to the compound having wild growth on the northern side
of the Canal Bund. Thereafter while he was moving on the southern side of the
Canal Bund, to the Road, abandoned M.O Chappals on the northern side of the
Canal Bund road and made good to his native place Assam by train and while on
his way, he throw the blood stained dresses worn by him at some unknown place
and this caused destruction of evidence.
3.
The investigation team
headed by the 2nd respondent arrested one Muhammed Amirul Islam as
the accused in the case, from Tamilnadu. Thereafter, the police filed final
report, charge sheeting the accused under Sec449,342,376, 376 (A), 302,201 R/W
Sec 3 (1) (W) (1) & (ii), 3(1) (a) & Sec 3 (2) (v) of the SC & ST
Prevention of Atrocities Act. True copy of the Final Report filed in SC
662/2016 on the file of Principal Sessions Court, Ernakulam is produced
herewith and marked as Exhibit P1.
4.
It is submitted that the investigation is not conducted in a
proper and fair manner and is conducted in a perfunctory manner. As per the
final report, Jisha Mol was murdered on 28. 04.2016 in between 5.30 – 6 P.M. As
per the Post Mortem Report, the body of Jisha Mol was brought for post mortem
at about 2.50 P.M on 29.04.2016 and post mortem was started at 3 P.M. Page 2 of
the Post Mortem report stays the
condition of the body when it was taken
for postmortem “ corneate cloudy, Rigor Mortis passed off from all parts of
body except at ankles. Post Mortem staining at the back, not fixed. There was
marbling on both side of lower part of face, chin front of neck, upper part of chest and top of
shoulders”. True copy of the Post Mortem Report filed in SC 662/2016 on the file of Session court,
Ernakulam is produced herewith and marked as Exhibit P2.
5.
Condition of the body is
reported in Exhibit P2, As per Exhibit P2 Post mortem report, at the time when the body was taken for Post
Mortem (1) ‘Rigor Morties’ was passed off on all parts of body except on ankles
(2) there are marbling on both side of lower part of face, clin, front of neck,
upper part of chest and top of shoulder. That means body was decomposition
stage and at least not less than 36 hours is elapsed when the body is taken for
post mortem.
6.
It is respectfully
submitted that the purpose of Post Mortem is to find out the time and cause of
death . Usually, both should be mentioned in the Post Mortem Report. Though
cause of death is mentioned, time of death is omitted to mention either
willfully or a serious lapse.
7.
It is further submitted
that as per Ext P2 Report, condition of the internal organs in Ext P2 post
mortem report is as follows
(i)
Stomach.
“ Stomach was full with undigested
soft rice, garlic pieces and other unidentified food particles…….”
Infact the stomach usually starts to
empty within 10 minutes after the first mouthful has entered. The bulk of the meal
leaves the stomach within 1-2 hours after being eaten. Investing officer has
not at all adverted to this vital aspect of the Medical Evidence.
This aspect, if read with marbling and Rigor Mortis, the
time of death is immediately after the meals and not at 6 P.M.
(ii)
Lungs
. Lungs
were soft, reddish & odematous .Page
5 of the Post Mortem Report says that
Lungs were soft, reddish and edematous
The lungs putrefy at about the same as the
heart. The First sign of putrescence in the lungs is the formation of gaseous
bullae under the planal membrames .
Later the lungs became soft, collapse and are reduced to small black mass,
which is ultimately completely destroyed.
(iii)
Heart
( Heart 190 gm) were flaby,
walls, valves and chamberswere normal. Softening is the final stage of
decomposition.
The heart because of muscular tissue
putrefies much later than the stomach, intestine and liver.
Usually stomach putrifies from 24-36 hours in summer and 3 to
6 days in winter. The murder was took
place in summer. Hence on going through the records, the murder might have
done before 36 hours from 3 P.M on 29.04.2016 at any rate not in the time as
stated by the prosectution This vital
aspect ought to have investigated which was not done.
(iv)
Uterus
As
per post mortem report, all internal organs were pale, soft and showed early
decomposition changes.It is submitted that the Virgin Uterus being fibro
muscular is the last putrify like heart and lungs. So the murder was not at 6
AM on 28.04.2016 at least before 36 hours from the time of Post Mortem.
(V) Spleen
As
per the Post mortem report spleen was pale, pinkish and soft. It is humbly
submitted that spleen become to soft in two, three days after the death. If so
the condition of the spleen reported in para 5 of Post Mortem report does not
match the prosecution case, that the murder was took place at 6 P.M on
28.04.2016.
Hence on the basis of the Phenomenon (1) Rigor Mortis passed off (2) Marbling and
(3) Stage of decomposition of internal organs, , the death occurred not in
between 5.30- 6 PM on 28.04.2016 as stated by the Police.
7.
The petitioner humbly submit that Suspicious Knife alleged to have recovered:
It is having 35.5 c.m length and width of 3.5 cm. So naturally the injuries
should have width of 3.5 meters and above. Injuries are described in page 2
it’s depth and width are narrated. If a knife having 3.5 width is used to stab, naturally width of the
wound should also be 3.5 cm and more than it.
The injuries noted in page 2 of the Post Mortem Report do not match with
the weapon alleged to have been used for commission of the crime.
(i)
Injuries
as per Ext P2 Post Mortem Report
(a) Lacerated Wounds
Wounds No.9- 1.5 x 1x 5 c.m
10-0.5x0.2x01 c.m
Lacerated wounds are teens or split
produced by blows from blunt objects and missiles, by violent falls on sharp
and hard projecting , projecting surfaces, by machinery and railway accidents,
by the wheels of vehicle causing a grounding compression.
Hence
the said injuries are not caused by the MO knife recorded. The investigation
team has not conducted any investigation about how it occurred.
(b) Contusion/ Bruises
No.5,6,8,11,21,22,23,25,29 bruises
or contusion are injuries which are caused by a blow from a bunt weapon, such as a club( lathu) whip, iron
bar, stone etc. The said injuries can not be caused by MO Knife.
(c) Abrasions
Injury No. 3 to 6,11,12, 21 to 23,
29, 32 to 38 . Abrasions can not be implicated by the MO knife.
(d) Incised Wound
(i)Injury 13 -20, 24, 26-28,30 . Incised wounds mentioned in the Post
Mortem report can not be implicated by MO knife. Thickness of knife is not
mentioned any where
(ii)This vital aspect shows that
investigation is not conducted properly. Knife mentioned in the sizure Mahazar
is of unusual size. The investing team, for a successful prosecution has to investigate the source from which the
accused got the knife. That was not at all investigated.
(iii).Like wise the Police has not
investigated whether the knife had been used by the accused or procured from
some other source. Thickness of knife is not mentioned any where.
8.
Mobile
Phone Used by the Victim .The investigating team has not made any
efforts or attention to collect this very valuable evidence and to trace call details of incoming and outgoing
calls in the mobile number of Jisha Mol and incoming and outgoing SMS. There is no whisper about this very valuable
piece of evidence. This is very valuable aspect and is very relevant as statements were made
by CW2 after the incident in visual medias and print medias that they were facing threats.
9.
Pen
Camera- CW2 Rajewsari had made statements to the
print and visual medias that CW2 & Victim was facing threats and she has
preferred complaints earlier to the Police which was not at all investigated.
So Cw2 had purchased a Pen Camera and had given it to Jisha Mol and she was
wearing the said Pen Camera with her dress.
On going through page No.
19 of the Charge Police has recovered pen camera, diary and code. These are
vital records which will leads evidence to the incident but nothing was
mentioned about the contents in the pen camera. Police ought to have conducted investigation in this direction and the contents of the pen camera and diary.
10.
Mobile
Call Details of CW2 & CW 40 Deepa sister of the Victim CW2 and Deepa
are having mobile phones. Call details of the said mobile numbers are
also very vital information in this incident especially in the backdrop of the
fact that the victim and CW2 was facing threats and had been preferring
complaints before the police .
11.
Incident
happened on 27.04.2016
CW2 has made statement that on 27.04.2016 on the previous day of the
murder, somebody had thrown soil on the
roof of the house wherein CW2 and Victim were residing. She also stated that on
the next day morning she saw a lighter and piece of Beedi kept in the hollow
bricks kept in her premises. No attempt was made by the investigating team to
find out the persons responsible for this.
12.
Statement of CW2
CW2
has stated that she came to know about the murder when she was admitted in the
hospital. On going by the charge sheet she started to cry even before knowing
the incident and the police who reached therein took her to hospital and she
came to know about the incident only thereafter while she was in the hospital. This apparent contradiction has not
been properly investigated by the Police. True copy of the statement of
CW2 recorded by the 3rd
respondent is produced herewith and marked as Exhibit P3
13.
Absence
of Alcohol Content in the body
As
per the charge sheet, the accused forcefully poured liquor in to the mouth of the victim. But the
Post Mortem Report not supporting this
version. Nothing is mentioned about the
presence of Alcohol content in the body of the deceased. If it is poured
on her mouth , naturally it would
percolate on her dress worn by the victim . But no investigation is conducted
to ascertain it . So the version of the police that the accused
poured liquor to the mouth of the Victim is not supported by post mortem
report.
14.
Victim
was Healthy
Victim was a healthy lady having 30 years. It is highly improbable that
the brutal murder of this nature was done by a person single handedly. There is
every possibility of involvement of another person. After the incident the
police top officials themselves had aired their view that it was not a single
handed murder. But when charge sheeted, they turn around. No investigation is
made in the direction with regard to involvement of other person.
15.
Water
in Canal
There
was no water in the Canal on 28.04.2016. But on the very same day night water
was excessively allowed to flow from the source i.e Bhoothathan Kettu.
There
was wide spread rumors that this act was done only with an intention to destroy
evidence. The investigating team has not made any efforts to investigate and
collect evidence in this regard.
16.
Throwing
away Chappals & Knife
The
story of disposal of knife and chappals is inherently improbable. The accused
took care to dispose of the knife and chappal adjascent to scene of occurrence,
whereas he disposed of blood stained dresses in unknown place while he was
going to Assam by Train and thereby
caused to destroy the evidence. This is highly improbable.
17.
Crime
No.1024/2016 of Kurupumpdy Police.
The above crime is not based on
the complaint of the petitioner herein who is arrayed as CW 96. He never made
any such complaint. While the petitioner was in hospital, one Sunil Kumar, Ward
Member of Assamannur Grama Panchayath and one Police Constable named Vinod had
approached him and obtained signature on a blank paper. Though the petitioner
made complaint about the same, no investigation was done in this direction.
18. In such circumstance, pointing out the
material defects in the investigation, the petitioner had filed MP 3313/2016 in
SC 662/2016 before the trial court. The
trial court as per order dated 10.11.2016 dismissed the same for the reason
that the trial court has no power to invoke Sec. 173(8) after cognizance is
taken and also for the reason that the petitioner has not challenged the charge
framed by the court. Assailing the said
order, the petitioner has already filed Crl. R.P No. 1583/2016 before this Hon’ble
Court. True copy of the MP 3313/2016 in
SC 662/2016 before the Principal Sessions Court, Ernakulam is produced herewith
and marked as Exhibit P4. But the court below without appraising the
facts and circumstances of the case dismissed Ext P4 M.P.,for the reason that
it has no jurisdiction to order further investigation after the cognizance is
taken. The petitioner being aggrieved by the said order, has preferred CrRP
1583/2016 before this Honourable court and is posted to 29.11.2016
19. It
is further submitted though FIR was seen registered at 9 P.M on 28.04.2016, it was
forwarded to the Jurisdictional Magistrate only on 30.04.2016. True copy of the
FIR in Crime No. 909/2016 of
Kuruppumpady Police Station is produced herewith and marked as Exhibit P5. It is further
submitted that as per seizure mahazar
dated 30.04.2016, the police have seized one ‘ knife’ from the upper
portion of the Doors of the residence of the victim . On the very same day, a
diary of the victim was seized. True copy of the Seizure Mahazar dated
07.05.2016 is produced herewith and marked as Exhibit P6. The victim was facing threats to life and she
had been wearing pen camera. Diary note contained in the dairy which was seized as per
Ext P6 “…
.
” . But investigation is not conducted regarding the dairy note which is very relevant link to connect all the
real accused in the case. But nothing
was investigated in this direction. As
per seizure mahazar dated 30.04.2016, MO knife used to commit the offence was
seized. But the same was forwarded to the Magistrate only on 04.05.2016. True copy of the Seizure Mahazar dated
30.04.2016 is produced herewith and marked as Exhibit P7.
20. It is humbly submitted that the police had not
guarded the scene and it was guarded only after 04.05.2016. On 03.05.2016 the
then Home Minister with officials had visited the house of the victim and the
video clippings of the Asianet clearly
shows that it was not guarded till 03.05.2016
21. The
police has not conducted any enquiry regarding the threat to the life faced by the victim .CW2 had been making
repeated statements in the visual media after the incident that they have been
facing threat and several complaints were lodged before the police, which was
not enquired by the police. No enquiry was conducted whether the murder was
preplanned and what prompted the accused to chose the victim to fulfill his
uncontrolled sexual desire and to kill her. No investigation is conducted to
ascertain the exact time of death. Time o f death as stated by the police and
P2 report are contrary. No investigation
was conducted to ascertain the source of the food item scene in the stomach.
The police ought to have ascertained whether the said food item was prepared in the home or taken from
outside. In either case they ought to have conducted investigation to ascertain
when at what time it was prepared or brought from outside. It was brought from
outside, they ought to have conducted investigation with regard to the place
from which it was brought and person who brought it
22. Many
of the material objects including MO knife seized as per Exhibit P6 seized are
produced not in time before the Jurisdictional Magistrate , so as to enable
the accused/ or to help the accused to
take a contention that it is tampered.
It is most respectfully submitted that the investigation in the present
case was conducted in a hapazard manner.
23. Mass
agitation was conducted by various socio- cultural organizations as well as
Political Parties. On 05.05.2016, LDF conducted a Dy SP office march in Perumbavoor. District
Committee Secretary of the CPI ( M) had pointed out the serious lapses occurred
in the preliminary stage of investigation. This statement was published in all
dailies of the next day ie on 6.5.2016
24. The
police have committed serious lapses from the inception of investigation itself.
It may be because of interference from
external forces. The scene was not protected till 03.05.2016 and people were
freely passing in the scene of occurance which resulted in destruction of
evidence. His Lordship Justice Narayana Kurup ( Chief of State Police Complaint
Authority) had criticized the act of the police in not guarding the scene and
had initiated proceedings based on a complaint.
25. .
The Ex- Prime Minister Sri. H.D. Deva
Gowda had visited the place on 09.5.2016. He participated in the mass agitation
led by LDF and demanded CBI Probe on
09.05.2016. The Government itself in
Reply affidavit filed in OA446/2016 filed by Sri. Senkumar, the former DGP has stated that “ the manner in which the police officers
proceeded with the investigation of the crime in the initial stage was on
everlasting shame to the State Police “ .
26. It
is further submitted that the investigation in the above case is not conducted
in a true, fair and in professional manner. The time of death is not that as
stated by the Police considering the totality of the materials available. The
investigation team has not conducted any investigation in this direction. This
facts are admitted by the Chief
secretary of the first respondent in his
reply filed in O.A. No 446/2016 filed before the C.A. T., Ernakulam Bench.
The O.A. 446/2016 filed by the former DGP T.P.Sen Kumar . The chief secretary of the first respondent , was the 2nd respondent in the
said O.A. It was
stated in the reply filed on
behalf of the chief secretary that there was serious lapses from the part of
police officials in detecting the offence. Para 5 of the Reply in O.A. 446/2016 before
the CAT, Ernakulam , details the lapses/
irregularities in collection of evidence. It is specifically stated that there
were many willful lapses on the part of the State Police Chief. It also stated that
the former Police Chief was protecting
the delinquent officers. The reply affidavit states “ As a result, the image of the State
government before the Public and sense of security to the public, were
adversely affected. This was resulted in an unfortunate situation. There was
not only failure in prevention but also failure in detection”. The reply
further states “ The manner in which the
police officers proceeded with the investigation of this crime is an
everlasting shame to State Police”. True copy of the reply dtd 24.06.2016 and
additional reply dtd 04.07.2016 filed on
behalf of the 2nd respondent in O.A. No 446/2016
filed before the C.A. T., Ernakulam Bench are produced and marked as Exhibit P8 & P9 respectively. It is
specifically mentioned in Exhibit P8 that “ No measures were taken to safeguard the
available evidence”
27. It
is respectfully submitted that the prosecution story as stated in Exhibit P1 is
suffers from various flows and will help
the accused to get an easy acquittal . Lapses in the investigation even from
the initial stage of investigation, non collection of entire materials, missing
links leads to the circumstance, non mentioning motive which prompted the
accused to go to the victim residence to fulfill his sexual desire are very
fatal and shows that the investigator is succumbed to external pressure. The 1st
respondent sworn affidavit that the then
DGP had interfered with the investigation and causing destruction of materials
is having much significance.
28. The
investigation carried out by the State Police is in a highly unprofessional
manner. The basic principles of criminal
trial is that investigation should not only be fair, in order to instill
confidence in the mind of the victim and public. The police has closed the
investigation by caught hold of one
accused as an eyewash. Police officers who were in the investigation , ought
to have investigated about the
connection of many of the objects seized from the scene of occurrence. The said
objects such as a knife from the ‘ upper portion of the Door’ of the house, ‘ A diary of the deceased in which
it is written in Malayalam” are very relevant
piece of evidence. Police have finished their attempt on seizing it.
This shows that the deceased was apprehending threat to life . The police have
no case in Exhibit P1 final report that the accused went to the victim’s house
with the an intent to kill her. Likewise,
seizure of Ajith Beedi’ and ‘ Cigarette, lighter’ from the premises of deceased’s
residence is also very material piece of
evidence . But no attempt is made to connect the same with the incident or to
find out the motive of the person/
persons who committed mischief on the
previous night ie on 27.4.2016 .
Investigation is to be conducted to connect the said incident , the
motive behind it etc. which was not done In this context, it is pertinent to
note that the Union Minister for SC, ST welfare who visited the spot after
the incident had made statement about serious lapses in the Investigation and
offered that the Central Government is ready to investigate the case through
the CBI.
29. It
is respectfully submitted that if the trial proceeds as now stands it will
amount to traversity of justice and will lose the faith in the criminal justice
system . Trial if proceeds based on the present materials it will only secure
acquittal to the accused
In such circumstances , the
petitioner has no efficacious, alternate remedy than to approach this Hon’ble
Court under Article 226 of the Constitution of India on the following among
other.
G
R O U N D S
A. Soul
of Jishamol , the petitoenr’s daughter ,
the victim of cold blooded murder, need justice. The very foundation of
criminal justice system is to punish the culprit and thereby do justice to the
victim .
B. Cold Blooded Murder of Jisha has shocked the entire nation. Nature of
injuries inflicted on her has created a
helplessness in the mind of woman folk and parents of girl child .
Investigation was not conducted in a professional manner to regain security feeling among the public.
C.
Prosecution version is
that accused to fulfill uncontrolled sexual desire went to the residence of the
victim to rape her as she resisted for rape, he raped her and do away her. The
investigation is not conducted (1) why the accused chosen the victim to
fulfill his uncontrolled sexual desire (2) Whether there was any previous
animosity or affection between them to choose the particular person. (3) Why he
went with a knife of unusual size having 35 Cm length and 3.5 cm width to the
residence of victim to fulfill his sexual desire (4) Whether the murder was
preplanned.(5) if so what prompted the accused to kill the victim , a law
student . Investigation on these
aspects is highly necessary for the effective prosecution of the case.
D.
The investigation turns it’s farce against scientific proofs and
natural phenomena like ‘putrefaction’,’
rigormortis’ and ‘marbling’ which all point to the fact that ,the actual
time of death of the deceased is in no way matching with the time of death
recorded by the investigating agency. Infact the post mortem report ought to have
contain time of death . But the same is absent in the report . Hence on
considering totality of the ‘passing off
of rigor mortis’ ‘ marbling’ , ‘ putrefaction’ of the internal organs of the body as stated in the post mortem report,
time of death is not as stated by the
police. Based on the above aspects , time of death is much before 5.30-6PM on
28.4.2016 as stated in Ext P1 .
The 3rd respondent has not made
any attempt to ascertain the time of
death .
E.
It is serious lapse that
a vital document like Ext P2 post mortem report does not contain time of death Ext
P2 report doe not mention about the time of death. “ The
object of the Post Mortem examination of a body is to establish its identity
when not known, and to ascertain the time
since death and the cause of death, natural or unnatural homicidal,
suicidal or accidental………….” . Modi, Medical Jurisprudence and Toxicology,
12 th Edn , 62. Investigation is not conducted why the time of death is
not mentioned in the post mortem report
F.
Dairy note
in Malayalam , seizure of a knife from the upper portion of the door
from the victim’s house, acquisition and possession of pen camera by the
deceased all are pointing to the "apprehension of death" on the
part of the deceased. The statements
by the mother of the victim also points in that direction. But it is very
shocking that ,no inquiry has been conducted in this direction . Exhibit P8 reply
statement filed on behalf of the Chief Secretary states that “ the
manner in which the police officers proceeded with investigation of this crime
is an everlasting shame to the State Police”. .
G.
Proper and fair
investigation on the part of the investigating officer is the back borne of
rule of law. The job of investigating officer is to make investigation in right
direction. The investigation must be in consonance with the ingredients of the
offence. It should not be haphazard , vague , hazy and unmethodical . A proper and effective investigation into
cold blooded murder which shocked the
entire society . As there is no direct
evidence in the present case assumes great significance as investigation should be done all aspects to
link the chain of all circumstances and collection of adequate materials to
prove the circumstantial evidence become essential. Unfortunately intestigation
is conducted in a haphazard manner from the inception .
H.
Unauthorized entry of a person into somebody’s
house with deadly weapons is for causing death and not for having an
intercourse .The most significant question in the context of apprehension
of death on the part of the accused and the carrying of pen camera which makes
the above fact clear. Likewise incident
happened in the night on 27.4.2016 and ‘
Ajith Beedi’ ‘cigarette Lighter ’seized are relevant . But no investigation was
conducted in this regard
I.
The State Police ought to
have conducted proper, fair and
impartial enquiry into the cold Blooded murder and to bring all the
culprits before the law in a fool proof manner . The lapses/ deliberate
omission to carry out a proper and fair investigation clearly violates the
statutory duties cast upon the police
The investigation is conducted by the investigation team is in haphazardous
manner, hazy and in an unprofessional manner. The state police from the
inception was lethargic and haphazard to investigate the crime, collect
evidence, produce the evidence collectedd safely before the court immediately. The
investigation has left out all possible chances to get the accused honorable
acquittal from the court . If the trial proceeds as now stand it will be
travesty to justice.
J. The
investigation carried out by the State Police is helpful to the accused who is already
arrayed and allowed to the other accused from the clutches of law by willful
lapses and omission. Exhibit P8 and P8
itself are self explanatory. The investigation conducted
is unfair and defective in so far as no attempt was made to ascertain main
aspects which will reveal the entire truth about the cold blooded murder of the
petitioner’s daughter.
K. The
State Police have failed in its duty to
conduct fair and impartial investigation free from external influence/
pressure. A fair and proper investigation is fundamental right to live in a criminal
free society, which is part of right to life guaranteed under Article 21. If
the State fails in that duty, it will adversely affect the criminal justice
system and ultimately may lead to private retribution which no civilized
society can afford to bean.
L. Purpose
of criminal investigation and trial is to find out the guilty and to punish
him. If all the guilty persons and not booked and the accused already booked
will easily get acquittal, the entire system will be a mockery. So as to
prevail the “majesty of law” every endeavors should be made to book all the
guilty persons and to ensure punishment, to install the confidence of the
society in the system .Object and purpose of investigation of a criminal case
is to find out the real culprits and to bring him to face trial. Criminal trial
is a process to search of truth. If the investigation is defective and
improper, it will ultimately affect the criminal justice system and the
confidence instilled by the public will lose.
M.
Concept of fair
investigation and fair trial has to be given privacy. The Apex Court was
pleased to held that “ it is the bounden
duty of a court of law to uphold the truth and truth means absence of decei1t, absence
of fraud and in a criminal investigation
a real and fair investigation, not an investigation that reveals itself as a
sham one”as held by the Apex court
N. Usually,
the post mortem report should contain the time and cause of death. Exhibit P2
report does not mention about the time of death. Based on the Phenomenons ‘ passing
off of Rigor Mortis’ ‘ Marbling’, ‘Stage
of Putrification’ of internal organs, the time of death is not in between
5.30 to 6 P.M on 28.04.2016 as set up by the investigation.
O. The
State Police is not able to connect the
incident happened in the night on 27.04.2016 as stated by CW2 and with the
offence. The police also failed to conduct investigation on the basis of Diary Notes to the effect that “… ………………………….” This
is very vital aspect which shows that the deceased was facing threat of life.
P. The
State Police also not made any
investigation on the basis of contents of Pen Camera, Mobile calls of the
deceased ( both incoming and outgoing including SMS). This is very significant
as the CW2 had been making statements in
visual media that they were facing threats to life and had made repeated to the
complaints to the Police which were ignored. The 3rd respondent has not made any attempts to investigation on
the contents of the said complaints and from whom the deceased was facing such
threat?. Whether the said person is involved in the crime.
Q. If
trial based on the final report and charge framed on the final report is proceed
with it will be resulted in the acquittal of the accused arrayed in the present
case and it will be resulted in total loss of confidence in the criminal
justice system. Even the state itself has made allegation against the investigating
official for lethargic attitude and interference in the investigation. Hence to
do complete to the deceased victim of cold blooded murder, to the petitioner
and to the society at large, the case is to be re- investigated by an
independent agency.
R. Exhibit
P8 and P9 reply filed on behalf of the
Chief Secretary reveals the delinquency of the State Police. As per Exhibit P7
the Former Police Chief was enthusiastic in protecting the delinquent officers.
Itfurther states “ As a result, the image of the State Government before the Public and
sense of security to the public, was adversely affected”.
S. Para
4 of Exhibit P8, the Government detailed about the lapses of Police Officers
and made accusation against the former DGP for not taking against the delinquent
Police Officers. In page 7 Para 7 of
Exhibit P8 reply filed in C.A.T., it is
admitted that there is failure on the
part of the Police which has shaken the
confidence the public in the Police as an impartial and efficient force charged
with dual responsibilities of maintaining law and order and preventing and
detecting crime.
T. The
investigation is not conducted (1) why the accused particularly chosen ( or
chosen by random) the victim to fulfill his uncontrolled sexual desire (2)
Whether there was any previous animosity or affection between them to choose
victim. (3) Why he went with a knife of
unusual size having to the residence of the
victim to fulfill his sexual desire (4) Whether the murder was a preplanned. (5) if so what prompted him to do
so
U. Investigation is not conducted in a
methodical manner to connect all chains of circumstances to lead the
culpability of the accused There is
no direct evidence in the present case . It assumes great significance
and investigation should be done on all aspects to link the chain of all
circumstances and collection of adequate materials . Unfortunately
investigation is conducted in a haphazard manner from the inception . If the
trial is conducted based on the present stage it will leads to gross
miscarriageof justice not only to the vicatim but also to the entire
society.
V. In
the facts and circumstances it becomes necessary to provide credibility
and instill confidence in the entire system, interference of this
Honourable court by directing the CBI to
conduct re- investigation/ further investigation is highly necessary .
W. The
State Police has not investigated about
the motive what prompted the accused to choose the deceased victim to fulfill
his uncontrolled sexual desire. This is very essential as the entire case is
set up based on circumstantial evidence . Investigation is also necessary whether it is a preplanned murder by more
than one person. No investigation is conducted to connect the incident happened
on 27.04.2016 and ‘ Ajith Beedi’ and ‘ Cigarette lighter’ seized on 03.06.2016
to connect with the case.
On
these among other grounds to be urged at the
time of hearing it is most humbly prayed that this Hon’ble Court may be pleased
to:
i.
Issue a writ of mandamus
or any other appropriate writ, order or direction commanding the 4th
and 5th respondents to
appoint an officer not below the rank of Superintendent of Police, CBI and
carry out re investigation leading to
the cold blooded murder of Jisha Mol KP.
ii.
Direct the respondents 1-3 to hand over the entire case files relating to
Crime No909/2016 of Kuruppumpady Police
Station which is numbered as SC 166/2016 on the File of Sessions Court,
Ernakulam to the officer so appointed by the 4th respondent to carry
out the investigation.
iii.
issue such other
appropriate writ, order or direction as deem just and fit to this Hon’ble
Court;
And
iv.
allow this Writ
Petition(Civil) with cost.
Dated
this the day of November , 2016
Petitioner:
G.Krishna Kumar
Counsel for the
Petitioner.
I N T E R I M R E L I E F
For the reasons stated in the writ petition, in the
affidavit it is most humbly prayed that this Hon’ble Court may be pleased
to pass an order of stay of al Ext P1
final report till the disposal of the
Writ Petition.
Dated this the day of November,
2016.
G.Krishna
Kumar
Counsel
for the Petitioner.
BEFORE THE
HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C)
No. /2016
K.V. Pappu (
Paapu) - Petitioner
Vs
State of Kerala & Ors - Respondents
|
A FF ID AVIT
I, K.V. Pappu ( Paapu) , aged 63
years, S/o. Vellani residing at ; do
hereby solemnly affirm and state as follows.
1.I
am the petitioner in the above W.P (C) . I am conversant with the facts of the
case. The above writ is filed praying for issuance of writ of mandamus or any other appropriate
writ, order or direction commanding the 4th and 5th respondents to appoint an officer not below
the rank of Superintendent of Police, CBI and carry out re investigation leading to the cold blooded
murder of Jisha Mol KP
2. Averments made in the Writ petition may
be treated as part of this affidavit. The Exhibits produced are true copies of the
original documents .
Being
deeply aggrieved by efficacious, alternate remedy I approach this
Honourable Court under Art 226 of the Constitution. I have not approached earlier this Honourable
Court seeking for identical relief. For
the reason stated in WP© it is humbly prayed that this Hon’ble Court be pleased
to grant the relief sought for in the WP© and interim relief prayed for . Otherwise I will be put to irreparable loss
and injury.
All the
facts stated above are true and correct to the best of my knowledge and
belief.
Dated
this the day of November 2016.
Deponent
Solemnly
affirmed & Signed before me by the deponent who is personally known to me
on this the day of November 2016 in my office at Ernakulam.
G. Krishna Kumar
Advocate
Presented On: 24.11.2016
Subject: Criminal- CBI enquiry- Praying
for a direction to conduct CBI enquiry into the cold blooded murder of the
petitioner’s daughter Jishamol.
BEFORE THE
HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C)
No. /2016
(Special Original
Jurisdiction)
K.V. Pappu ( Paapu) - Petitioner
Vs
State of
Kerala & Ors - Respondents
WRIT
PETITION ( C) FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA
G. KRISHNA KUMAR ( K-101)
BASIL KURIAKOSE (B- 729)
ANI JOSEPH K.A (A-1210)
REMYA M.L ( R- 1331)
Elizabeeth Oliver ( E )
Counsel for the Petitioner
BEFORE THE
HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) No. /2016
K.V. Pappu ( Paapu) - Petitioner
Vs
State of
Kerala & Ors - Respondents
S Y N O
P S I S
The Petitioner is father of Jisha who was brutally murdered in
April 2016 Cold Blooded Murder of Jisha
has shocked the entire nation. Nature of injuries inflicted on her has created a helplessness in the mind of
woman folk and parents of girl child . Investigation was not conducted in a
professional manner to render justice to
the victim and to the society at large
There are serious lapses from the part of state police to investigate
the matter, collect evidence , preserve the evidence collected and to produce
before the court at the earliest point of time , to link all chain of
circumstances to ensure conviction , as the case is based on circumstantial
evidence . Even from the inception of
getting report of the death, the act of the police was helpful to the
accused involved in the case . .
Though FIR is seen registered on
28.4.2016 at 9 PM , it was forwarded to the jurisdictional Magistrate only on
30.4.2016. MO knife which was used for crime , is seizes as per Ext P7 Mahazr
on 30.4.2016 , it was produced before the court only on
4.5.2016 only to assist the accused to take plea that it is tampered . The offence and manner in which it was committed
is very serious which shocked the entire nation except the investigators. No efforts
were made to rush to the scene, guard the scene of occurrence, to conduct
investigation in a professional manner to instill confidence in the mind of
public. Scene was not guarded till 4.5.2016 and even the State Police
Complaints Authority had criticized this willful omission and initiated action.
There is serious lapse in not reporting the time of death in the post report.
In a medico legal case, purpose of post
mortem report is to ascertain time and cause of death
Case set up by the prosecution is that
accused to fulfill uncontrolled sexual desire went to the residence of the
victim to rape her as she resisted for rape, he raped her and do away her. The
investigation is not conducted (1) why the accused particularly chosen ( or
chosen by random) the victim to fulfill his uncontrolled sexual desire (2)
Whether there was any previous animosity or affection between them to choose victim.
(3) Why he went with a knife of unusual size having to the residence of the victim to fulfill his sexual desire (4)
Whether the murder was preplanned.
Ext
P2 post mortem report is very relevant .There is serious lapse in not reporting
the time of death in the post report. In a
medico legal case, purpose of post mortem report is to ascertain time
and cause of death . Based on the condition
of the body ie ‘passing off of Rigor Mortis’, ‘ Marbling’ ‘ stage of
putrefaction of internal organs’ as stated in the post mortem report , time of death is not matching in any way
with the prosecution case . Though a diary seized as per Ext P5 Mahazr , which
contain statements of the victim to the
effect “
……….
” . Likewise a knife is seized from the upper portion of the doors of
the victim’s residence. Cw2 has stated
that one incident happened on previous day night and she found a packet of ‘Ajith Beedi’ and a cigarette lighter from
the premises on the next day. Though it was seized by the police, no
investigation is conducted to ascertain about the person who created mischief
on 27.4.2016 . This indicates that the
victim was facing threat from some corner . No investigation was conducted in
this direction by the police.
On
9.5.2016 the Union Minister for SCST welfare Sr T.C.Gehlot has submitted report
before the Parliament stating grave lapse in the Jisha Murder case and recommended CBI enquiry
The Chief secretary of the
state itself in Ext P8 and P9 reply statement filed before the C.A.T, Ernakulam
bench admits the serious lapses and wilfull omissions from the part of the
investing officers. Exhibit P8 reply
statement filed on behalf of the Chief Secretary states that “ the
manner in which the police officers proceeded with investigation of this crime
is an everlasting shame to the State Police’. .
If the trial is conducted based on Ext P1
report and in the present stage it will leads to gross miscarriage of justice
not only to the victim but also to the entire society, as it will only help the
accused to get an easy acquittal . The investigation has provided
not loopholes but royal path to the
accused to get easy acquittal . Hence
father of the victim begs interference
of this Honourable court by issuing direction to the CBI , to reinvestigate the
matter
Dated this the 17th day of November, 2016
G. Krishna Kumar
Counsel for the Petitioner
Dated
this the day of
November , 2016.
G.
Krishna Kumar
Counsel
for the Petitioner
BEFORE THE
HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C)
No. /2016
K.V. Pappu ( Paapu) - Petitioner
Vs
State of
Kerala & Ors - Respondents
I N D E X
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.
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Particulars
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Pages
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1.
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Synopsis
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A
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2.
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Writ
Petition
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3.
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Affidavit
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4.
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Exhibit
P1 : True copy of the Final Report filed in SC
662/2016 on the file of Principal Sessions Court, Ernakulam
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7
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45.
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Exhibit
P2: True copy of the Post Mortem Report filed
in SC 662/2016 on the file of Session
court, Ernakulam
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6.
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Exhibit
P3; True
copy of the statement of CW2 recorded
by the 3rd respondent
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7.
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Exhibit
P4: True
copy of the MP 3313/2016 in SC 662/2016 before the Principal Sessions Court,
Ernakulam
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8
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Exhibit
P5: True
copy of the FIR in Crime No. 909/2016
of Kuruppumpady Police Station
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9
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Exhibit
P6 True
copy of the Seizure Mahazar dated 07.05.2016
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10
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Exhibit
P7: True
copy of the Seizure Mahazar dated 30.04.2016
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11
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Exhibit
P8: True
copy of the reply dtd 24.06.2016 filed on behalf of the 2nd
respondent in O.A. No 446/2016 filed before the C.A. T., Ernakulam Bench
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12
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Exhibit
P9: True
copy of the additional reply dtd 04.07.2016
filed on behalf of the 2nd respondent in O.A. No 446/2016 filed before the C.A. T., Ernakulam Bench
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Dated
this the day of
November , 2016.
G.
Krishna Kumar
Counsel
for the Petitioner
APPENDIX
Petitioner/
Exhibits
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Exhibit
P1 : True copy of the Final Report filed in SC
662/2016 on the file of Principal Sessions Court, Ernakulam
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Exhibit
P2: True copy of the Post Mortem Report filed
in SC 662/2016 on the file of Session
court, Ernakulam
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Exhibit
P3; True copy of the statement of CW2 recorded by the 3rd respondent
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Exhibit
P4: True
copy of the MP 3313/2016 in SC 662/2016 before the Principal Sessions Court,
Ernakulam
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Exhibit
P5: True
copy of the FIR in Crime No. 909/2016
of Kuruppumpady Police Station
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Exhibit
P6 True
copy of the Seizure Mahazar dated 07.05.2016
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Exhibit
P7: True
copy of the Seizure Mahazar dated 30.04.2016
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Exhibit
P8: True
copy of the reply dtd 24.06.2016 filed on behalf of the 2nd
respondent in O.A. No 446/2016 filed before the C.A. T., Ernakulam Bench
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Exhibit
P9: True
copy of the additional reply dtd 04.07.2016
filed on behalf of the 2nd respondent in O.A. No 446/2016 filed before the C.A. T., Ernakulam Bench
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