- (1.) Sushil Mandal, a distraught father, is knocking on the doors of this 'Temple of Justice', seeking production of his 17 year old son Sandesh, a student of Class XI of Maharishi Vidya Mandir, Hosur, whom he firmly believes to be still alive and is in the illegal custody of one Rajkumar, the second respondent herein. This case has a chequered history and the factual matrix is as under: (a) Sandesh and Monisha (the daughter of Rajkumar, the second respondent), being in the cusp of adolescence, developed mutual infatuation, which came to the knowledge of the teachers in the School, and sometime in July 2011, the parents of both were called to the School and were give advice by the school authorities to keep their children in check. (b) While so, on 15.10.2011, around 8.00 p.m. Sandesh went out of his house and did not return. Frantic search made for him proved futile and Sushil Mandal lodged a complaint with the SIPCOT police, who registered a case of "boy missing" in Cr.No. 368/2011 on 18.10.2011. On 24.10.2011, an unidentified body of a person was fished out from a lake in Arasanatti area in Hosur and based on the report lodged by the Village Administrative Officer, a case in Cr.No. 374/2011 under Section 174 Cr.P.C. was registered by the SIPCOT police. The Inspector of Police, SIPCOT Police Station conducted inquest over that body, in which he has noted the age as 40 years. The apparel on the body was noted as: * Green colour full hand shirt * Thick blue colour pant * White sleeveless banian * Dark blue colour underwear (c) The body was found to be bloated, as it appears to have been in water for quite some time. After conducting the inquest, the body was sent by the police for post-mortem to Government Hospital, Hosur, where Dr. Karthik Pandian, M.D. performed autopsy on 24.10.2011 around 12.15 hrs. In the post-mortem report, the age has been noted as 40 years, which is of course based on the information provided by the police and not on any scientific basis. (d) With regard to identification and caste marks, in the post-mortem report it is noted "not able to make out (body fully decomposed)". Certain relevant features noted in the post-mortem report may be worth extracting: "Hyoid bone in tact; Neck specimen shows underlying contusion" Sternum was preserved and diatom was not detected in it. (e) The final opinion in the Post-mortem Certificate states as follows: "No definite opinion could be given. However, death due to compression of the neck cannot be ruled out." It is opined in the Post-mortem Report that the deceased would appear to have died about 5 to 7 days prior to autopsy. The following viscera were preserved: * Kidney * Portion of liver * Stomach and its contents * A loop of small intestine and its contents * Preservative used NaCl * Hyoid bone in formalin * Neck tissues in formalin * Skull in formalin (f) Thereafter, the police posted the details of this unidentified body in their official website. Sushil Mandal sent representations to several authorities complaining about the lackadaisical manner in which the case relating to his missing son was being handled and he was pointing accusing finger at Rajkumar/the second respondent herein. Ultimately he filed HCP No. 1908/2011 for the issuance of a writ of Habeas Corpus to produce his son. (g) On notice to the police, the police were filing several status reports before this Court explaining about the efforts taken by them to trace Sandesh. In April 2012, this Court directed the Superintendent of Police, Krishnagiri to monitor this probe and take effective steps for producing Sandesh when the Court reopens after summer vacation. In May 2012, the police collected some photographs of Sandesh from Sushil Mandal for conducting superimposition test with the skull of the unidentified person in Cr.No. 374/2011. On the request of the Executive Magistrate-cum-Tahsildar, Hosur, the skull was forwarded on 06.06.2012 by the Medical Officer, Government Hospital, Hosur to the Tamil Nadu Forensic Sciences Department, where experts conducted Superimposition Test and by Report dated 29.06.2012 came to the conclusion that the 'skull could very well have belonged to the male individual seen in the photographs'. The Report dated 29.06.2012 together with the reasons and annexures showing the Superimposition of the skull with the head portion in the photograph of Sandesh is before us and we also perused it. The skull was forwarded to the Professor of Forensic Medicines, Government Mohan Kumaramangalam Hospital, Salem for age determination and in the report dated 01.07.2012, the age was determined as above 17 years and below 22 years. (h) A status report was filed before this Court in HCP 1908/2011, with which, Sushil Mandal was not happy. Sushil Mandal took a stand that he went to the lake on 24.10.2011 and told the police that it was not his son's body. This is the bone of contention now. The police strongly deny this and say that Sushil Mandal never knew about this fact as claimed by him now. We also note that even at the earliest point of time, namely in the affidavit filed by Sushil Mandal in support of HCP No. 1908/2011, he had not whispered about this fact. (i) While so, on 07.07.2012, this Court transferred the investigation from the file of SIPCOT police to Crime Branch CID for investigation. While CB CID was seized of the matter, one Naveen kumar @ Naveen, a student of an Engineering College surrendered before the Village Administrative Officer of Mukundapalli, Hosur on 22.09.2012 confessing that he had pushed Sandesh into the lake in the evening on 15.10.2011. He was arrested and released on bail. (j) On the request made by the CB CID, the Judicial Magistrate No. 2, Hosur, in whose jurisdiction the case in Cr.No. 374/2011 is pending, sent the skull and the blood samples of Sushil Mandal and his wife to the Tamil Nadu Forensic Sciences Department for extraction of DNA profile and comparison. A report dated 27.11.2012, was received from the Tamil Nadu Forensic Sciences Department, the conclusion portion of which is as under: "From the DNA typing results of the above samples, it is found that i) the skull with mandible belongs to a human male individual. ii) the child to whom the skull with mandible belongs was the biological son of Mr. Sushil Mandal and Mrs. Prema Mandal." (k) With regard to the conclusion arrived at by the CB CID that the body recovered on 24.10.2011 was that of Sandesh, Sushil Mandal seriously disputed this and prayed for a CBI enquiry. This Court by order dated 01.04.2013 in HCP 1908/2011, transferred the investigation of the case from CB CID to CBI and closed the Habeas Corpus Petition. (l) After the CBI took up the case in mid-May 2013, steps were taken to send the skull to the Centre for DNA Fingerprinting and Diagnostics, (in short 'CDFD'), Hyderabad, through the office of the Chief Judicial Magistrate, Coimbatore for extraction of DNA. This Centre in Hyderabad is undoubtedly a premier institution in the country and has the State of the art facilities for scientific examinations. (m) In the presence of Mr. T.V. Hemanandakumar, the Chief Judicial Magistrate, Coimbatore (in-charge), on 16.09.2013, the blood samples of Sushil Man.dal and his wife Prema Mandal were taken in the Coimbatore Medical College and Hospital and under the supervision of the Chief Judicial Magistrate, it was despatched to CDFD, Hyderabad. DNA profiling was done by the CDFD, Hyderabad and the report dated 30.09.2013, clearly states as follows: "The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit A (skull) is from the biological son of the sources of exhibit B (Smt. Prema Mandal) and exhibit C (Shri. Sushil Mandal)" (n) Not satisfied with this, Sushil Mandal has filed the present HCP No. 801/2014 for producing his son Sandesh and for direction to the CBI, New Delhi, to constitute a new team of Investigating Officers, preferably drawn from North India and investigate this case. (o) Notice was ordered on the CBI and a detailed counter has been filed on behalf of the CBI. Even in this Habeas Corpus Petition, Mr. Rajkumar has been arrayed as second respondent and he has also filed a counter refuting the allegations made by Sushil Mandal.
(2.) Heard Mr. R. Sankara Subbu, learned counsel for Sushil Mandal, Mr. L. Baskaran, the learned counsel appearing for Rajkumar and Mr. N. Chandrasekaran, the learned Special Public Prosecutor for CBI cases.
(3.) Mr.Sankarasbbu, learned counsel for the petitioner, contended as follows: * That the unidentified body that was fished out of the lake on 24.10.2011 is that of a person who is 40 years old, but whereas, Sandesh was only 17 years old. * That Sushil Mandal went to the lake on 24.10.2011 and even on that day he had told the police that the body is not that of his son. * The Post-mortem report also shows the age as 40 years. * The police website also shows the description of the unidentified person as a 40 year old male.;