Sunday, 24 March 2019

Whether prosecution for murder can be quashed if suicide note is in handwriting of deceased?

 No doubt, it is recorded
in the post-mortem report that the cause of death in this case was
asphyxia due to ante-mortem hanging and the suicide note is in the
handwriting of deceased, but this by itself cannot rule out the possibility
of murder being committed by petitioners. It is so said because the
suicide note is undated and the aspect of ante-mortem hanging cannot be
considered in abstract by this Court in the light of medical literature,
sought to be relied upon by respondents. Whether death of deceased was

homicidal or suicidal is an aspect which cannot be pre-judged at this initial stage. In any case, presence of lividity over the back and other areas prima facie justifies framing of charge under Section 302/34 IPC, as at this initial stage, only a prima facie opinion is to be formed. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: March 12, 2019
 CRL.REV.P. 645/2017 & Crl.M.A. 14133/2017

SUKHBIR KATARIA Vs  STATE GOVT OF NCT OF DELHI 

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR



In the above captioned four petitions, the challenge is to the
impugned order of 5th June, 2017 vide which petitioners have been put on
trial for the offence under Section 304B/34 IPC and in the alternative,
under Section 302/34 IPC and also for the offence under Section 306/34
IPC and 498A/34 IPC. Petitioners are the husband, father-in-law, sisterin-
law (nanad) and distant cousin of husband of deceased.
With the consent of counsel representing both the sides, these
petitions have been heard together and are being disposed of by this
common order.
Learned senior counsel for petitioners assails the impugned order
while submitting that there is no material on record which justifies
putting petitioners on trial for the offence under Section 302/34 IPC.
Attention of this Court is drawn to impugned order, wherein it is noted
that the post-mortem report of deceased showed lividity and as per the
medical history, this normally happens when the dead body is lying in
sleeping posture and so, according to trial court, a prima facie case of
murder is also made out. Attention of this Court is also drawn to Suicide
Note (Annexure P-4) to point out that it is a case of suicide and there is no
basis to frame charge of murder. To submit so, reliance is placed upon

Supreme Court’s decision in Richhpal Singh Meena Vs. Ghasi alias
Ghisa and Ors. (2014) 8 SCC 918. It is pointed out that on perusal of post
mortem report, it becomes clear that lividity is a post mortem symptom
and the cause of death, as given in the post mortem report, is asphyxia
due to ante-mortem hanging and this was affirmed by subsequent opinion
from All India Institute of Medical Sciences (AIIMS), New Delhi,
wherein it is clearly recorded that the cause of death in this case was
asphyxia due to ante-mortem hanging.
Learned senior counsel for petitioners points out that father of
deceased in his response to notice under Section 91 Cr.P.C. has affirmed
the Suicide Note being in the hand writing of deceased and has clearly
stated that it is signed by deceased. Thus, it is submitted that the charge
under Section 302/34 framed against petitioners needs to be set aside.
On the contrary, learned Additional Public Prosecutor for
respondent-State and counsel for complainant, support the impugned
order and submit that on the day of incident, the deceased had made a
PCR call at around 10:15 p.m. regarding her being beaten by her in-laws
and when the PCR reached the place of incident, the deceased had said
that she would be making a complaint to the Crime Against Women Cell
on the next day. It is submitted that on the next day police reached the
spot and they found that bangles of deceased were broken and blood was
lying in the house and the TV in room was on with full volume and
petitioners were absconding. It is pointed out that police had discovered
that deceased was hanging from the ceiling fan and the lividity found in

the post-mortem report belies the case of suicide. It is also pointed out
that the suicide note is undated and so, it cannot be made the sole basis to
plead that no offence under Section 302/34 IPC is made out. Reliance is
placed upon medical literature i.e. “Forensic Medicine and Toxicology”
by J.B.Mukherjee to submit so. Reliance is also placed upon decision of
Supreme Court in Santosh De & Anr. Vs. Archna Guha & Ors. (1994) 2
SCC 420 by counsel for complainant in support of above submissions.
Upon hearing and on perusal of impugned order, material on record
and decisions cited, I find that Supreme Court in Amit Kapoor v. Ramesh
Chander and Another (2012) 9 SCC 460 has reiterated that discretion to
quash criminal proceedings, particularly at the charge stage, is to be
exercised sparingly and with circumspection and that too, in rarest of rare
cases. Meaning thereby, no meticulous examination of the record is to be
undertaken, particularly when it is the question of framing alternate
charge.
Whether a prima facie case under Section 302/34 IPC is made out
or not, is the point of consideration in this case. No doubt, it is recorded
in the post-mortem report that the cause of death in this case was
asphyxia due to ante-mortem hanging and the suicide note is in the
handwriting of deceased, but this by itself cannot rule out the possibility
of murder being committed by petitioners. It is so said because the
suicide note is undated and the aspect of ante-mortem hanging cannot be
considered in abstract by this Court in the light of medical literature,
sought to be relied upon by respondents. Whether death of deceased was

homicidal or suicidal is an aspect which cannot be pre-judged at this initial stage. In any case, presence of lividity over the back and other areas prima facie justifies framing of charge under Section 302/34 IPC, as at this initial stage, only a prima facie opinion is to be formed. Reliance placed by petitioner’s counsel upon Supreme Court’s decision in Richhpal Singh Meena (Supra), is of no assistance, as in the said decision, conviction under Section 304 IPC was altered to Section 302 IPC while taking into consideration the medical jurisprudence and in the factual background of the said case. In the considered opinion of this Court, impugned order does not suffer from any illegality or infirmity. Finding no merit in the above captioned petitions and applications, they are dismissed while refraining to comment upon merits of the case, lest it may prejudice petitioners before the trial court. (SUNIL GAUR) JUDGE MARCH 12, 2019 r
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