In your case it is PM report which is relevant. Violent asphyxia death leaves ligature marks and other signs such as blotted eyes etc. Forced constriction of wind pipe and asphyxia due to fluid in air passage have different forensic pathology If the PM establishes homicidal death then only last seen theory becomes relevant. If Police has registered a case of murder, there shall be something incriminating in the report. You take help of lawyers who are expert in medico-legal cases. As such a general advice on criminal procedure would be of no help to you
False FIR and arrest under section 302 & 201 IPC
My brother has been named as an accused and arrested (currently in Police Custody) in a murder case and section 302 and 201 IPC have been registered in the FIR. The incident happened in the year 2012 wherein the victim (a good friend of my brother) and my brother had went out late night for a night out/dinner. While returning back home they were stopped at a police nakabandi and were asked for identification which was promptly provided by both of them. The friend was riding the bike and he dropped my brother home and was returning back to his place at around 2.45am, he met with an accident on the way home (approx. 1-2 kms away from our place). The body was found next day and panchnama was conducted. The post-mortem report states case of "unnatural death", death was due to suffocation as the victim's bike skidded off the road and he fell into a nullah (murky water was found in his lungs). The victim's mother named my brother as he was the last person to be seen with the victim (police nakabandi being an evidence), whereas my brother was at home when this accident occured. The case is currently in District court and we will be filing it at Sessions court after the remand period gets over. In this case scenario, I would like to know from legal criminal experts on what should be our next course of action, how strong is the case and how can he prove himself innocent in this matter. Although my brother has been in remand from more than a week, no formal inquiry/interrogation has been made. Please guide me.
Asked 9 years ago in Criminal Law
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7 Answers
1. Passing through police nakabandi is no proof of the culpability of your brother in the death of his friend until and unless the PM report inculpates your brother. I have not yet come across a case where the prosecution was founded on the deceased being last seen with the accused except if the PM report lent credence to the version given to the police. On the mere statement of the deceased's mother your brother could not have been prosecuted.
2. As per the facts furnished by you the death took place in the year 2012. It is not clear to me as to how is your brother still in police custody if the case dates back to 2012. Was the FIR registered recently?
3. The emphasis at this stage should be to get him out on bail which will not be easy considering the fact that it is a murder case.
4. As regards proving his innocence, he will be declared innocent only if the exculpatory evidence outlaws the inculpatory evidence. That stage is quite far away. A threadbare perusal of the FIR is required to be made to ascertain the loopholes in the story manufactured and how they can be maneuvered in your brother's favour.
5. Take the case very seriously. You must be knowing that murder carries death penalty in India.
6. It is advisable that you show the FIR and police report immediately to a lawyer.
1. When was your brother arrested?
2. When the incident occured in the year then how come he has been arrested just 'more than a week back'?
3. However, just been 'seen with the victim last' is no ground to accuse your brother,
4. Wait for the post mortem report which will make it clear as to how had he died,
5. If PM shows that he had died due to the accident, it will be easy for you to get bail for your brother.
Dear Querist
You query is purely based on the postmortem report and the PM report is very useful evidence for your brother.
contact a lawyer personally with all documents.
Thanks for replying to my question. The exact cause of death as mentioned in the PM is as below: “Asphyxia as a result of combined effect of suffocation and choking consequent to complete impaction of respiratory passages and oral cavity with brown clay murky matter in a person having body surface injuries. “Investigation officer to investigate the manner of death”. We already have an lawyer for this case who is working towards getting my brother out on bail. Here are some facts of the case: 1) After the accident my brother was called for inquiry numerous times but he was able to remain present at the police station only once as he was working in Mumbai and was not able to get leave. The IO kept asking him to come to meet him at the PS but he was afraid that they might put a false case and arrest him. Eventually on our lawyer’s advice he applied for an anticipatory bail which was granted to him as the police had not registered any case against him and they needed him only for inquiry. 2) In the meanwhile my brother got a job abroad and applied for an PCC which was issued to him and he traveled abroad in 2013. They however kept calling him for inquiry and were told that he was out of country so they registered a FIR against him. 3) He was informed by our lawyer that an FIR has been registered against him and he has to be present to come out of the case clean. Accordingly he was returning back to appear at the police station when he was arrested at the airport by Immigration officials and since then he has been handed over to the local police and is under remand. 4) The police remand gets over today and he will be sent to judicial custody, we will be applying for bail at sessions court. I would like to know the following: 1) Although my brother is at fault as he did not co-operate with the IO for the inquiry into this case, has this made the matters worse for him? 2) As he applied for an anticipatory bail, does he become the prime suspect? 3) Does his traveling abroad meanwhile during this case makes him an absconding accused? 4) During the last argument at district court for extension of police remand the public prosecutor argued and stressed on the “last seen” theory as the base of the FIR and said that they need investigate further, if they had any further incriminating evidence should not that have been the base of the argument? From the time of his arrest till the expiry of his remand period he has not been interrogated,just kept in the lock up. We also got an offer to “settle” this issue at a hefty price as my brother was now an NRI. Your expert advise is highly appreciated.
Asked 9 years ago
1. It will certainly put him in more disadvantageous position unless proper reason for his such act be given,
2. No. Applying for AB does not make anybody prime suspect,
3. Yes,
4. No. They are entitled to pray for extend the police remand to interrogate him to have further incriminating evidence.
1. You have stated that anticipatory bail was given to your brother. If this is the case, how did the police arrest your brother? Anticipatory bail is a complete protection against an arrest.
2. Applying for bail is the right of every accused. Nobody becomes a suspect on filing for anticipatory bail.
3. Travelling abroad while the FIR has been registered speaks volumes about the individual concerned trying to evade the law.
4. Remand is sought to unearth evidence. So the public prosecutor was well within his right to seek extension of remand.
there is only one circumstantial evidence that is last seen theory. prior to the death your brother was with him so burden of proof is shifted on your brother to prove what happened at that time and what was the reason of his death. last seen theory is rebuttable. you should collect all evidence in your support and prove your innocence. what happened in police custody or during investigation is immaterial. unless and until you prove your innocence there is chance to escape, ant. bail is temporary relief and after getting this you can not to abroad. face the trial.
