A division bench citing its plenary powers under section 226 on Monday ordered a new investigation into the murder of a migrant worker after concluding the previous investigation was a farce to jail a fellow migrant worker.
Appellant Sanjay Oraon challenged the additional sessions court order convicting and sentencing him for causing the death of his friend Hafijul Mohammed. The accused and the deceased are both from Jalpaiguri district, West Bengal, and were employed in a furniture and wood-craft industry.
The prosecution had sued the accused on the grounds of the last theory taken together, the motive for the incident and the recovery of his pants with the blood type of the deceased to establish an unbroken chain of circumstances.
State Memory Adv PP Padmalaya, while appearing for the appellant, vehemently argued that the entire investigation was tainted with protecting the real culprits and falsely implicating the accused as a poor migrant worker.
The appellant advanced several arguments to prove the flaw in the investigation. To begin with, the alleged motive was fragile and unproven. It was also alleged that the police sub-inspector responsible for obtaining information on the crime had not visited the scene. In addition, there was an excessive delay in the registration of the FIR. Moreover, the Prosecution has failed to prove the connecting links in the chain of circumstances pointing to the guilt of the accused.
For these reasons, the appeal asked that the conviction and sentence imposed on the accused be declared unlawful and untenable and be quashed.
Judge K. Vinod Chandran and Judge M. Anitha while allowing the appeal, agreed with the appellant that the “the whole investigation was a jokeThe following reasons are given to reach this conclusion:
- Unlikely explanation for delay in FIR hosting
In this case, there was a 6 hour delay in the FIS filing. The Court observed that while a mere delay in filing the FIS is not necessarily fatal to the prosecution, the fact that the FIR was filed late is a relevant factor for the court to take into account. The explanation given by the prosecution for the delay proved to be fraught with improbability, according to the Chamber.
“The delay in filing the FIS appears to us to be a flagrant inconsistency, and the delay is certainly disproportionate and fatal to the prosecution case., observed the Court.
- The alleged motive is not proven and is fragile
The Division bench also observed that the motive for the alleged incident is extremely weak, fragile and unproven. Although the prosecution cited minor quarrels between the accused and the deceased, these are normal in any friendship and certainly cannot be the motive for murder. While agreeing that there should be much more to establish a motive for murder, he was ruled as follows:
“Such fatal injuries are unlikely to be caused by a close friend, also for such fragile reasons. We are of the opinion that the motive proposed by the prosecution is quite incredible and imaginary and therefore cannot be accepted as sufficient to be treated as a circumstance allowing the guilt of the accused to be understood.. “
- No probative value attributable to recovery of appellant’s pants
The prosecution had produced before the Court a pair of trousers containing the blood group of the deceased claiming to belong to the accused. It was alleged that this was collected from the owner’s rubber plantation near the toilets used by the workers, which is an open place.
While the discovery of an open spot is no reason to dismiss the evidence, the crucial question is whether it was planted there by someone. During questioning, the accused replied that it was not the one he was wearing on that date. In such circumstances, he should have been given the opportunity to explain the presence of human blood.
Accordingly, the Court held that âIn the absence of it, one cannot rely on this circumstance. The accused’s blood was also not sent for examination to determine the group. In the above circumstances, no probative value can be attributed to the recovery of the accused’s pants.“
- The facts do not support the assertion of the last sight theory
The Bench Division admitted that the âlast seen togetherâ theory is not always reliable and that the time gap should be tested on the facts and circumstances of each case. In the present case, according to the depositions of the witnesses testified, the accused and the deceased were seen in the hall at 3:00 p.m. But the deceased was found dead at 5:45 p.m., and the prosecution admits that the accused was not present in the lobby at the time.
The court also noted a finding that the key witnesses were all industry employees and that there is a possibility that a concerted attempt could be made to charge the accused with the murder. In addition, the exact time of death was also not decipherable. Therefore, the Court refused to rely on the latter theory taken together.
- Discrepancies in the arrest of the accused
The prosecution claimed that the accused was arrested three days after the incident at the private Pandalam bus stop, but this was denied by the appellant. The state file indicates that he was taken into police custody on the same day of the incident and remained at the police station for three days until his arrest was recorded.
The High Court noted that if the accused was arrested at the bus stop, his intention would be to flee the place. In this case, he should have had money, his personal identity card, a bag or a purse, although nothing was seized from him during his arrest. Therefore, the arrest version of the charge cannot be accepted, which strengthens the appellant’s contention that he was taken into police custody on the day of the incident.
- Failure to seize cell phones of deceased and accused persons
The court found it curious that the sub-inspector, who conducted the majority of the investigation, did not seize the cell phones of the deceased or the accused. Their cell phones would have proved whether the accused was at the scene of the incident during the incident.
It was noted that the investigator could not ignore these factors and it was likely a case of ineffective rank or deliberate removal of important facts to help someone.
- Removal of important facts from the investigation
The prosecution tried to suppress a series of facts. For example, it has been observed that “the non-summoning of an independent witness from the locality and of the two Bengal workers residing in the room amounts to the suppression of the facts and the dishonest intention of the public prosecutor to set up a case according to their wish with ulterior motives. “
The Bench Division concluded that the prosecution’s attempt to suppress the facts early on is fairly decipherable from the facts and circumstances which in turn create serious doubts about the investigation being conducted.
- Suspicious conduct of the sub-inspector
There was evidence on file to prove that the Deputy Police Inspector attended the scene after the crime was recorded. However, he attempted to suppress this fact, which explains his highly suspicious conduct and obvious dereliction of duty. If he had indeed visited the premises and falsely filed, it would also be perjury.
The Court observed that all the facts and circumstances implied that he was lethargic and that he did not perform his official duties as soon as possible despite knowing that a poor young migrant worker had been brutally beaten and declared dead. Consequently, a ministerial investigation was ordered against the sub-inspector.
Since there was no evidence of the accused’s guilt, the accused’s conviction and sentence were quashed. He was acquitted for lack of evidence, which is the direct result of the flawed and unfair investigation.
However, the Bench Division made an important observation later.
The fate of migrant workers
In this case, the accused and the deceased were migrant workers, belonging to a marginalized part of society. Kerala is a safe haven for migrant workers from these sections, who engage in labor requiring hard manual labor. The Court appreciated the contribution they make to the state’s development activities while asserting that they live and work in abject conditions and limited facilities.
“They live far from their relatives, in a country whose culture and language are foreign to them, just to eat a minimum. An environment should be created which enables them to work without fear with adequate protection of their life and property. “
The present case has been cited as a typical example of the plight of these workers. The accused here had already been incarcerated for more than five years on trumped up charges for the murder of his own friend.
The lack of a proper, fair and efficient investigation led to the indictment of the accused in this case who is a close friend of the deceased. The real culprits in this case are still at large and the murder of a poor worker who left his land to earn a living remains unclear. This does not have to be repeated.
The simple acquittal of the accused will encourage a resurgence of these vestiges of feudalism, which will bring the blame of innocent marginalized migrants for every crime in their neighborhood. Accordingly, this Court ordered a review of the above-mentioned case.
Therefore, a new investigation without relying on any of the facts gathered in the previous investigation has been ordered to serve the ends of justice. A special investigative team headed by a senior police officer at the rank of deputy superintendent was appointed to be assembled by the state government. The investigative agency has been instructed to complete the proceedings at the earliest, no later than the end of this year.
Title: Sanjay Oraon V. State of Kerala