"Real Culprits Are Still At Large": Kerala High Court Orders Reinvestigation In Bengali Migrant Murder Case

Appellant Sanjay Oraon challenged the order of the Additional Sessions Court convicting and sentencing him for causing the death of his friend Hafijul Mohammed. Both the accused and the deceased hail from the Jalpaiguri District in West Bengal, and were employees at a furniture and woodcraft industry.

The prosecution had proceeded against the accused on the ground of last seen together theory, motive behind the incident, and recovery of his pants with deceased's blood group to establish an unbroken chain of circumstances.

State Brief Adv P. P. Padmalayan, while appearing for the appellant, vehemently contended that the entire investigation was tainted to protect the actual culprits and to falsely implicate the accused a poor migrant labourer.

The appellant put forth several arguments to prove the defective investigation. To start with, motive alleged was flimsy and not proved. It was also argued that the Sub Inspector of Police on getting information about the crime did not visit the spot. Moreover, there was inordinate delay in registering the FIR. Additionally, the Prosecution failed to prove the connecting links in the chain of circumstances pointing to the guilt of the accused.

On these ground, the appeal prayed that the conviction and sentence passed against the accused be declared illegal and unsustainable and be set aside.

Justice K. Vinod Chandran and Justice M.R. Anitha while allowing the appeal, agreed with the appellant that the "entire investigation was a farce". The following reasons for cited for coming to this conclusion:

• Improbable Explanation For Delay in lodging FIR

In the present matter, there was a delay of 6 hours in lodging the FIS . The Court observed that although mere delay in lodging the FIS is not necessarily fatal to the prosecution case, the fact that FIR was lodged belatedly is a relevant factor which the court must take notice. The explanation given by the prosecution for this delay was found to be fraught with improbabilities according to the Bench.

"The delay in lodging the FIS strikes us as a glaring inconsistency, and definitely the delay is inordinate and fatal to the prosecution case," the Court observed.

• Motive Alleged is Unproven and Flimsy

The Division bench also observed that the motive behind the incident alleged is extremely feeble, flimsy and not proved. Although the prosecution has cited petty quarrels among the accused and the deceased, these are normal in any friendship, and definitely cannot be the motive for murder. While agreeing that there should be a lot more to establish a motive for murder, it was held thus:

"It is quite unlikely that such fatal injuries would be caused by a close friend, that too for such flimsy reasons. We are of the view that the motive projected by the prosecution is quite unbelievable and imaginary and hence cannot be accepted as sufficient to be treated as a circumstance to bring home the guilt of the accused."

• No Evidentiary Value Attributable to Recovery of Appellant's Pants

The prosecution had produced before the Court a pair of pants containing blood group of the deceased claiming to be belonging to the accused. It was submitted that this was recovered from the rubber estate of the owner near the toilet used by the workers, which is an open place.

Although discovery from open place is not a reason to discard the evidence, the crucial question is whether they were planted there by someone. During examination, the accused answered was that it was not the one worn by him on that date. In such circumstances, he should have been given an opportunity to explain the presence of human blood.

Accordingly, the Court held that "In the absence of the same no reliance can be placed on that circumstance. Blood of the accused was also not sent for examination for determination of group. In the above circumstances no evidentiary value can be attributed to recovery of pants of accused"

• Facts Do Not Support The Claim Of Last Seen Theory

The Division Bench admitted that the 'last seen together' theory is not always reliable and the time gap has to be tested on the facts and circumstances of each case. In the present matter, according to witness depositions deposed, the accused and deceased were seen at the hall room at 3.00 p.m. But the deceased was found dead at 5.45 p.m., and prosecution acknowledges that the accused was not present in the hall room then.

The Court also noted a finding that the material witnesses were all employees at the industry, and that there is a possibility of concerted attempt being made to frame the accused with the murder. Moreover, the exact time of death was also not decipherable. Consequently, the Court refused to place any reliance on the last seen together theory.

• Discrepancies In The Arrest Of The Accused

The prosecution claimed that the accused was arrested three days after the incident from the Pandalam Private bus stand, but this has been denied by the appellant. The State Brief submits that he was taken into custody by the Police on the same day of the incident, and was in the Police Station for three days till his arrest was recorded.

The High Court noted that if at all the accused was arrested from the Bus Stand, his intention would be to flee from the place. In that case, he should have possessed some money, his personal identity card, a bag or purse, whereas nothing was seized from him at the time of arrest. Hence, the prosecution version of the arrest cannot be accepted, and this fortifies the appellant's contention that he was taken into custody by the police on the day of the incident itself.

• Failure to Seize the Mobile Phones of Deceased and Accused

The Court found it curious that the Sub Inspector, who conducted a majority of the investigation, did not seize the mobile phones of the deceased or accused. Their mobile phones would have proved whether accused was at the scene of occurrence during the incident.

It was noted that the investigating officer could not have been ignorant of these factors and that it was likely to be a case of rank inefficiency or willful suppression of material facts to aid somebody.

• Suppression of Material Facts in the Investigation

The prosecution attempted to suppress a series of facts. For instance, it was observed that "non-citing of an independent witnesses of the locality and the two workers from Bengal residing in the hall amounts to suppression of facts and malafide intention of the prosecuting agency to frame a case as per their wish with ulterior motives."

The Division Bench found that the attempt of the prosecution to suppress the facts from the inception is fairly decipherable from the facts and circumstances which in turn create serious doubts about the investigation held.

• Suspicious Conduct of the Sub Inspector

There was evidence on record to prove that the Sub Inspector of Police came to the scene of occurrence after the registration of crime. However, he attempted to suppress this fact, which accounts for his highly suspicious conduct and clear dereliction of duty. If he had in fact visited the spot and deposed falsely, it would also be perjury.

The Court observed that all the facts and circumstances implied that he was lethargic and failed to discharge his official duties promptly in spite of knowing that a poor young migrant labourer had been beaten up brutally and was reported dead. Hence, departmental enquiry was ordered against the Sub Inspector.

Since there was no evidence to bring home the guilt of the accused, the conviction and sentence passed against the accused was set aside. He was acquitted on the ground of lack of evidence, which is a direct result of the tainted and unfair investigation.

However the Division Bench made a significant observation thereafter.

The Plight of Migrant Labourers

In this case, the accused and deceased were migrant laborers, belonging to marginalised section of society. Kerala is a haven for migrant labourers from such sections, who engage in jobs requiring strenuous manual labour. The Court valued the contribution they make to the developmental activities of the State while addressing that they live and work under abject conditions and limited facilities.

"They reside far away from their dear and near, in a land the culture and language of which are alien to them, just to eke out a minimum sustenance. There should be created an environment for them to work fearlessly with adequate protection to their life and property."

The present case was cited to be a typical example of the plight of such laborers. The accused here had already undergone incarceration for more than five years on trumped up charges for the murder of his own friend.

The want of proper, fair and effective investigation resulted in inculpating 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 labourer who left his land to eke out a livelihood remains unsolved. This should not be repeated.

Mere acquittal of the accused will encourage a resurgence of such vestiges of feudalism, resulting in the innocent marginalized migrants being blamed for every crime in their vicinity. Hence, this Court ordered a re-investigation in the above case.

Consequently, a re-investigation without placing any reliance on any of the facts collected in the earlier investigation was ordered to serve the ends of justice. A special investigation team headed by a superior police officer not below the rank of Deputy Superintendent was directed to be constituted by the State Government. The investigating agency was directed to complete the proceedings at the earliest, not later than the end of this year.

Title: Sanjay Oraon V. State Of Kerala