Criminal Misc. Petition No. 1312 of 2016. Case: Nehru Raj Vs State of Chhattisgarh. Chhattisgarh High Court

Case Number:Criminal Misc. Petition No. 1312 of 2016
Party Name:Nehru Raj Vs State of Chhattisgarh
Counsel:For Appellant: Sudha Bhardwaj, Advocate and For Respondents: Ashish Shukla, Govt. Advocate
Judges:P. Sam Koshy, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Sections 173, 173(8), 190, 2(h), 482, 53, 54; Constitution Of India - Articles 20(3), 21; Indian Evidence Act, 1872 - Section 114; Indian Medical Council Act, 1956 - Section 2; Indian Penal Code 1860, (IPC) - Sections 302, 376, 450
Judgement Date:February 02, 2017
Court:Chhattisgarh High Court
 
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Judgment:

P. Sam Koshy, J., (At Bilaspur)

  1. The present is a petition by poor father whose daughter has been raped and brutally murdered in her residence on the intervening night of 27-28th April, 2015.

  2. The petitioner by way of present petition seeks for a direction to the court below as well as the investigating agency under the respondent No. 1 to hold a further investigation in the crime so that additional evidence can be gathered and which would be very relevant to establish the offence against the accused or against the perpetrators of the heinous crime. Alternatively, the petitioner has also sought for a direction for appointment of an independent investigating agency to take over the case and to conduct a fresh investigation.

  3. True it is that the law is by now well settled by catena of decisions of the Supreme Court that the powers under Section 482 CrPC should not be exercised by the High Court as a matter of routine. It has also been repeatedly held by the Supreme Court that extraordinary powers conferred upon the High Court under Section 482 CrPC should be exercised in the rarest of rare cases only to ensure that there is no abuse of process of the court or it can be used for ensuring the achievement of ends of justice. Normally, this court would also not have entertained the petition at the fag end of the trial when it is fixed for either final argument or for delivery of the judgment, but the nature of the offence involved in the present case and the gruesome and brutal manner in which the victim was assaulted and there were also sings of victim being raped before the incident and such nature of incidents are on the rise in the society and in case if for the weak and improper investigation, further in case if the prosecution does not lead proper evidence particularly on the forensic and scientific evidence, the advantage of the same goes to the accuse person.

  4. When these lapses are brought to the notice of the court, and if the court turns a blind eye to these lapses on the part of the prosecution, such non interference by this court shall result in miscarriage of justice as also failure of doing complete justice. Once when such lapses is brought to its notice, in the opinion of this court, in the prevailing situation where every second day are such incident is reported in the media and if court does not come down heavily on the faulty and weak investigation on the part of the prosecution, the same can be a booster to the accused person. At the same time if this court directs the prosecution to conduct the inquiry more judiciously and scientific manner and with which the trial court could ultimately reach to the conviction of the accused on the basis of such fool proof investigation and evidence and proving the case beyond all reasonable doubts, the same would be a deterrent for others and would also ensure achieving the ends of justice.

  5. The facts relevant for adjudication of the instant case that would be necessary is that, the daughter of the petitioner Ms. Pingla Raj, aged about 26 years was found murdered at her rented accommodation. Immediately the matter was reported at Police Station Arjuni, District Dhamtari wherein Crime No. 106 of 2015 for the offence under Section 302 and 450 IPC was registered. The dead-body was sent for postmortem and in the course of investigation the vaginal slides and cloths of the deceased were seized and sent for forensic examination. In the forensic examination report, the presence of human sperm and semen were found. Based upon which the offence under Section 376 IPC was also added.

  6. Initially the offence was registered against the unknown person, but in the course of investigation it was found that the deceased was having an affair with accused person namely Rakesh Chandrakar who was also employed along with the deceased and both were known to each other for quit sometime. Since the deceased was from so called lower caste, the deceased was not acceptable to the family members of the accused. That the accused was ready and willing to marry the deceased but had put a condition that the deceased would have to cut of all sort of relationship with her parents and other family members, on account of which there was some sort of discard between the two. Meanwhile, the accused was informed that the deceased and her family members were planning her marriage elsewhere. When this fact was known by the accused, he got annoyed and in the night he reached the house of deceased and thereafter having sexual relation with her, hit the deceased with hammer on her head and subsequently stabbed her with screw driver all over her body as a result of which she succumbed to the injuries. Now to give an impression that incident was a case of loot, the accused is said to have taken her mobile phone and some jewellery etc. from the house of deceased.

  7. During the course of investigation it is submitted that the accused had admitted his guilt by way of making a memorandum statement and at his behest the mobile phone of the deceased was also recovered from a far away place near the Rudri Anicut (Bairaz) where the stolen property belonging to the deceased was thrown by the accused person. Subsequently, the charge sheet was also filed based upon the memorandum statement of the accused under 27 of the Indian Evidence Act. Seizure of the Car belonging to the accused, his bloodstained clothes, mobile phone, mobile phone belonging to the deceased etc. were recovered. Further, during the investigation the call detail records from the mobile phone of the accused it was found that the location of the mobile phone which the accused was using was found to be near the place of incident which becomes an incriminating factor against the accused.

  8. The call details also reveals that the two i.e. the accused and the deceased were in conversation just a few hours preceding. It has been also reflected from the charge sheet that the finger prints of the articles at the site of incident such as jewellery box and also the other places have been collected. It has been informed that the police authorities requested the jail authorities to get the finger prints from the accused so that the same can be matched from the finger prints that were there in the articles at the place of incident. The accused is said to have refused to provide his finger prints. After the refusal of the accused in providing the finger print, no efforts have been made by the police authorities to collect the finger print of the accused, thus the police seems to be casual in their approach and is supporting the accused person. That the forensic report showed semen to be found on the undergarment and in the vagina of the deceased establishing the sexual intercourse, but the police authorities have not gone for the DNA profiling of the accused and getting the DNA test conducted of the semen and blood collected during the course of investigation which could enable to identify the person who participated in the act of sexual intercourse. It could also establish in ascertaining whether accused was the person who had committed rape with the deceased.

  9. Though the forensic laboratory has given a report that the sample collected during the course of the investigation is not adequate for serum scientific analysis but it is not clear as to why adequate sample could not be collected at the first instance and why the same cannot be sent to a better laboratory with more specialized testing facilities for obtaining the report. Neither has the police authorities shown any interest in the collection of sperm or semen from the accused which could also be sent for DNA testing.

  10. The grievance of the petitioner in the instant case is that right from the initial stage he had been insisting upon the police authorities as well as prosecuting agency for a proper, thorough and detailed investigation with a sole intention of establishing the offence against the accused person and he has been repeatedly making an approach before the higher authorities to intervene in the matter so that the shortcomings in the investigation could be improved upon and the accused person may not get the advantage of the lacuna and loopholes in the investigation resulting in an acquittal of the accused person. It is also the contention of the petitioner that after the memorandum statement of the accused was recorded, the police had recovered the Car he was driving on the fateful day and in the course of search, the seat cover, steering wheel, handle and dashboard of the Car were also found with blood. The cloths of the accused was also seized in which also bloodstains were found. These articles when sent for forensic examination. Report of same was received that samples so collected were degraded and it cannot be established of which blood group it belongs, but it was established that it was human blood.

  11. It is submitted by the petitioner that the investigating agency under some influence have deliberately and systematically left out certain vital evidence with which the accused could have been inculpated. That, it is with this intention that the petitioner has filed the present petition so that this court in exercise of its extraordinary discretionary power conferred upon it under Section 482 CrPC can order for further investigation in the case so that in case if the act has been done by the accused who has been charged for the offence of rape and murder of his daughter, his case can be established fool proof. That in case if he has not committed the said offence then the police authorities can look for other clues and for other suspected persons. According to the petitioner, with the...

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