Raj Singh Toofan vs State and Another

S. Ravindra Bhat, J.—The present revision petition questions the order dated 27.4.2005 passed by the learned Metropolitan Magistrate

(hereafter ''the trial Court'') accepting the cancellation report filed by the investigating agency in FIR No. 270/2001.

The brief facts necessary to decide this petition are that the petitioner''s son Ajay Kumar (hereinafter referred to as ''the deceased'') was

working as a commando and constable with the Delhi Police. He married one Sarita (hereinafter referred to as ''the wife'') on 19.11.95. On

20.3.2000 he was found dead by hanging at his in-laws'' place.

The petitioner alleges that the wife Sarita lodged a false complaint against the deceased and her in-laws in the Crime against Women Cell,

Nanak Pura, alleging dowry demand. However, the matter was compromised and the couple started living separately, in a rented house, in village

Said-ul-ajab; but their relations did not improve. The wife shifted to her parents'' house at Lado Sarai since her only brother expired in 1998, in a

road accident. The petitioner further alleges that the deceased earlier changed his residence due to the pressure from the wife. The wife allegedly

did not like her husband visiting his parents. The deceased used to visit his wife and in-laws occasionally.

The petitioner alleges that the deceased''s wife had an illicit relationship with a local model called Amit Latha and for that, reason she wanted to

live away from the rest of the family members. He further alleges that on 20.3.2000, after playing Holi with his friends the deceased left for his in-

laws residence, at 4 p.m. The petitioner further alleges that on 21.3.2000 he got a message informing that his son had died. On reaching the place,

he found that the dead body was hanging from the ceiling fan in a first floor bed-room. It was noticed that the feet of the deceased were bent on

the double bed lying there.

A team of three doctors from AIIMS conducted autopsy of the deceased. As per the report the cause of the death was asphyxia as a result of

ante mortem hanging by ligature. The viscera of the deceased was preserved and the analysis report received was negative for common poison.

The petitioner filed a petition before this Court (Cr.W.P. No. 368/2000) and it was directed that a medical board should give its opinion in the

matter. The petitioner alleges that the medical board had to depend upon the initial post-mortem report, viscera report and five photographs of the

deceased as the body had been already cremated. The medical board examined the reports and observed that there was Cyanosis of the lips,

which appeared to be a contusion due to some blunt force impact. This was visible in the photograph but not mentioned in the postmortem report.

Three muscular haematoma of 3 x 4 cm on the right side lower chest, 2 x 2cm on the left side lower chest and 2 x 1 cm on upper sternum was also

recorded in the report. The medical board opined that the reasons for the haematoma maybe enquired from the doctors who have conducted the

post-mortem on the body. The board also opined that on the reports that ''the vast majority of hanging are of suicidal.

This Court perused the report of the board and ordered registration of the case and investigation. The petitioner alleges that the police

reluctantly and ten days after the order registered FIR No. 270/01 on 31.3.2001 under Sections 302/34, IPC. He also alleges that the

investigation was not done properly as the deceased''s in-laws were well connected with the police; a cancellation report was filed before the

Court of Metropolitan Magistrate. The petitioner filed a protest to the cancellation report but the Court through its order dated 27.4.2005

accepted the cancellation report and rejected the protest petition. The petitioner has approached this Court against the impugned order dated

27.4.2005

The petitioner has alleged, and his Counsel contended, that the deceased was a strongman and there could be no chances of his committing

suicide; the unfortunate incident was a cold blooded, meticulously planned murder. The deceased was found hanging at his in-laws'' place with

whom he had strained relations, but no reasons were brought out, during investigation, particularly when the deceased had taken two meals and

also had bath. The investigating agency filed the cancellation report without a proper appreciation of facts. The Court rejected the protest

application without recording any cogent and convincing ground. Counsel contends that the trial Court presumed that the initial post-mortem report

cannot be confronted with any other opinion or examination subsequently made.

The Counsel contends that the trial Court did not consider that the initial autopsy was not conducted by any one of the doctors because each

doctor had a different story to tell in respect to the post-mortem done. None of them agreed that he had conducted the post-mortem. The

petitioner also alleges that the three muscular hecatombs of the chest were unexplained in the initial post-mortem report and the second report of

the medical board relied stated that the chest injuries are suggestive of assault, fresh in duration, caused just before death and chest muscles

hecatombs are painful developments. The grade of incapacitation of an individual shall depend upon the individual tolerance. Definitely respiration

of an individual becomes painful with these injuries. The minority report was also that injuries may be accidental in nature, however the possibility

of these injuries being caused by assault.

The relevant extracts of the trial Court order are as follows:

We cannot loose sight of the fact that in order to put the matter to trial or in order to take cognizance there has to be evidence in support of the

case. Merely on the basis of suspicion the case cannot be put to trial. Even otherwise in the present case the suspicion is also not sufficient enough

to proceed further. There is absolutely no evidence on record to take cognizance. The complainant has pointed out various contradictions in the

statement of witnesses given to various authorities. But that is also not enough evidence. Since the body has been cremated the point raised by the

complainant regarding injuries and lacuna''s in the initial postmortem cannot be confronted now.

The petitioner has approached this Court against the impugned order of the trial Court dated 27.4.2005 accepting the cancellation report. He

alleges that the initial post-mortem report did not contain few crucial remarks regarding the dead body, which was later on found out. The

Petitioner has alleged that the death of his son was a preplanned, cold blooded murder.

The medical report states that the ''vast majority of hanging are suicidal''. The expert evidence in this case cannot be sidelined. A perusal of the

evidence shows that the deceased, after celebrating Holi with his friends went to his in-laws'' place at 4 p.m. He thereafter had watched television,

had meals and went to his room to sleep. The next day his wife found him dead. There is nothing on record to suggest that the deceased was

killed, as is alleged by the petitioner, then hanged by his in-laws. The Polygraph test also was negative, it does not support the version of the

petitioner, about any foul play. Even if the strained relations between the husband and wife are considered that is by itself not sufficient to say that

the wife had motive to get her husband murdered or abetted his suicide.

The initial post-mortem and observations of the medical team, led by Dr. Murthy, were considered, and a Review board was ordered. The

first board comprised three doctors; the second, review board too was of the same number. The final opinion, gleaned from the report (which is

part of the record) is as stated in the cancellation report. According to the opinion, the death was caused by hanging; it was also stated that ''partial

hanging'' could cause death. The predominant medical opinion was that the injuries found were ante mortem; to specific queries whether such

injuries could be the cause of death, the answer was in the negative.

This is an unfortunate case where a healthy young man, in the prime of his youth, died. The facts and circumstances surrounding his death may

be suggestive of involvement of the wife. Yet, the autopsy reports do not corroborate the allegations leveled. The petitioner''s anguish, as a father,

at losing a son, under such mysterious circumstances, is understandable. As a grieving parent, his agony and attempt to get at the bottom of the

mystery cannot be faulted. Yet, one cannot go by suspicions. It is tempting to go by surmises but the Court should not be swayed by it.

The procedure whereby a complainant informant is to be heard by the Court, upon an application, has been outlined in Section 173(2)(ii) of

the Criminal Procedure Code. If after considering the materials, the magistrate finds that the complaint does not disclose any offence to take further

action, he is empowered to dismiss the application, and accept the report. In case he finds that the evidence recorded prima facie discloses an

offence, he is empowered to take cognizance of the offence and would issue process to the accused. There is no dispute that the petitioner was

heard before the impugned order was issued. The impugned order, deciding not to proceed further, was made after considering the circumstance

that there were two medical reports, and the contentions.

The jurisdiction of this Court, u/s 397, Code of Criminal Procedure, is of a limited nature. The Covert is clothed with the power to reach out

wherever it finds miscarriage of justice, in cases where the Courts below have acted with material irregularity, or manifestly improper appreciation

of evidence or manifest miss-appreciation of law. I am, after considering the materials on the record, and the submission of the parties, that the

case does not call for exercise of such jurisdiction.

In view of the above findings, the petition is liable to be rejected, and is accordingly dismissed without any order as to costs.