Alfonsa Thomas @ Shanti Thomas v. State of Kerala and Diana Alexander

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **Crl.MC.No.7833 OF 2017** **(SC NO.153/2016 PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, II, KOTTAYAM ARISED FROM CRIME NO.1414/2013 OF CHANGANACHERRY POLICE STATION, KOTTAYAM REGISTERED FOR OFFENCES PUNISHABLE UNDER SECTIONS 376, 377, 506(1) & 34 OF IPC)** ## **PETITIONER/ACCUSED NO.2:** **ALFONSA THOMAS@SHANTI THOMAS AGED 56/15 YEARS, W/O K.S THOMAS, KARIMATTOM HOUSE,PERUNNA PO, CHANGANACHERRY VILLAGE, CHAGANACHERRY TALUK, KOTTAYM DISTRICT.** **BY ADVS. SRI.V.S.THOSHIN SHRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENTS/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH THESUB INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION, KOTTAYAM.** **2 *VICTIM DIANA ALEXANDER, AGED 25 YEARS, D/O.ALEXANDER, SUNNIES HOUSE, UNICHIRA, CHANGAMPUZHA NAGAR, EDAPPALLY, ERNAKULAM-682024** ***THE NAME AND ADDRESS OF R2 IS CHANGED AS 'VICTIM' TO PROTECT THE IDENTITY OF VICTIM AS THE CRIME IS REGISTERED UNDER SECTION 376 OF IPC.** **R1 PP SRI.SUMODU P.N R2 BY ADV. SRI.K.A.SALIL NARAYANAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-11-2020, THE COURT ON 20-11-2020 PASSED THE FOLLOWING:** Crl.MC.No.7833 OF 2017 2 ## **O R D E R** The petitioner herein is the second accused in SC.No.153/2016 pending before the Additional District and Sessions Court-II, Kottayam, arising from Crime No.1414/2013 of Changanacherry Police Station, for offences punishable under Sections 376, 377, 506(1) read with Section 34 of the Indian Penal Code. 2. The prosecution allegation is that the first accused who is the son of the petitioner herein, with the intention to have sexual relationship with the defacto complainant, who is the second respondent herein, made a false promise to marry her and under the colour of the false promise raped her on various occasions at different places at Bangalore, as well as at Changanacherry, during the period from 1.12.2011 to 5.12.2012. Thereafter, first accused withdrew from the promise. The defacto complainant along with her mother went to the house of the accused at Changanacherry on 5/11/2012 at 6.30. pm to meet the parents of the first accused and 3 Crl.MC.No.7833 OF 2017 to complain about the conduct of the first accused. From there, the second accused allegedly committed criminal intimidation by threatening the defacto complainant that she will be killed. The defacto complainant and her mother returned from the house. Thereafter, alleging that the first accused on a false promise to marry, committed rape on her and thereafter both accused committed criminal intimidation and thereby they committed the offences punishable under sections 417, 376, 377, 506(1) and 34 of the Indian Penal Code, a private complaint was laid by the defacto complainant. Crime was registered against the petitioner and her son. After investigation, final report was laid. Both accused appeared and pleaded not guilty. Charges were framed on 27.7.2018. The present Crl.M.C is filed by the petitioner to quash the above proceedings as against the second accused. 3. Heard the learned counsel for the second accused, the learned counsel for the defacto complainant and the learned Public Prosecutor. Crl.MC.No.7833 OF 2017 4 4. It was contended by the learned counsel for the second accused that a cursory perusal of the materials on record would indicate that the ingredients of the offences alleged against her, were not made out. The allegations are bald and not distinct and specific, which thereby disable the second accused to meet out the allegations in a proper and effective manner. It was contended that even if the entire words allegedly spoken by the second accused are believed, still, it does not make out the offence under section 506(1) of the Indian Penal Code. Hence the petitioner sought to quash the proceedings. It was contended that to constitute an offence of section 506 (1) IPC, mere expression of words without any intention to cause alarm would not be sufficient. To support this contention, the learned counsel referred to the decision of this court in _**Jos v. Subramanyan and another**_ [(2015) 4 KHC 332] 6. The court charge framed on 27.7.2018 shows that the first accused is charged with offences under Sections 417, 376 and 377 of the Indian Penal Code. Crl.MC.No.7833 OF 2017 5 The specific charge against the second accused is that on 5.12.2012 at 6.30 pm., when the defacto complainant and her mother went to the house of second accused, first accused and second accused with the common intention of committing crime, criminally intimidated the defacto complainant by threatening that if she talked anything about the relationship, she will be killed. Thus they committed the offences punishable under Section 506(1) read with Section 34 of the Indian Penal Code. Hence, the second accused was charged with offence under section 506 (1) read with section 34 IPC. 7. The prosecution is essentially relying on the evidence of the defacto complainant, her mother and that of the driver of the car, who took them to the house of the second accused on 5.12.2012. Annexure-A is the complaint filed by the defacto complainant before the Magistrate Court. Paragraph 8 of the complaint discloses the allegation that, when the defacto complainant and her mother went to the house of the second accused on 5.12.2012 and complained that the complainant was Crl.MC.No.7833 OF 2017 6 raped by first accused on many occasions, the second accused, at the instance of the first accused insulted the defacto complainant. Second accused threatened the defacto complainant and her mother and declared that youngsters may commit such mischief and they need not come and complain to her. The second accused threatened that if they came to her house again, they would be killed. Defacto complainant and her mother rushed to the car and returned. Defacto complainant stated that subsequent to the incident, she felt mentally upset and disturbed. Later she started showing symptoms of mental disorder and was referred to the Department of Psychiatry. She underwent treatment there. This version of the defacto complainant in the complaint is substantially reiterated by the victim, her mother and the driver in their statements given to police. 8. The complaint shows that the allegations and the factual materials constituting the offence have been disclosed in detail. Three witnesses have spoken with 7 Crl.MC.No.7833 OF 2017 reference to the above. It is a different question whether the above would withstand cross examination at the time of evidence. With these materials it cannot be held that there are no materials to support the case. There are materials to proceed with the trial against the second accused. Considering the nature of words spoken, the circumstances under which the controversial words were uttered and the reaction of victim and witnesses, I feel that principle laid down in Jose's case (supra) cannot be applied at this stage. Having considered the entire materials , I find no merits in the Crl.M.C, which is accordingly dismissed. Sd/- ## **SUNIL THOMAS, JUDGE** R.AV Crl.MC.No.7833 OF 2017 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **THE TRUE COPY OF THE COMPLAINT FILED BY THE DEFACTO COMPLAINANT AS C.M.P NO.2269/2013 DATED 29.07.2013 BEFORE THE JFMC-1, CHANGANACHERRY , KOTTAYAM.** ## **ANNEXURE B** **THE TRUE COPY OF THE FIR DATED 3.08.2013 IN CRIME NO.1414/13 OF CHANGANCHERRY POLICE STATION, KOTTAYAM.** ## **ANNEXURE C** **THE TRUE COPY OF THE ORDER DATED 13.08.2013 IN CRL.M.P NO.2439/2013 OF SESSIONS COURT, KOTTAYAM.** ## **ANNEXURE D** **THE TRUE COPY OF THE FINAL REPORT IN S.C NO.153/2016 PENDING BEFORE THE ADDITIONAL DISTRICT & SESSIONS JUDGE-II, KOTTAYAM.** ## **RESPONDENT'S/S EXHIBITS** ## **ANNEXURE R2(A)** **MEMO CLEARLY STATING THAT 'I HAVE BEEN MADE RESPONDENT TO THIS CASE AND NO NOTICE/COPY WAS SERVED TO ME'. A TRUE COPY OF THE MEMO SUBMITTED BY 2ND RESPONDENT ON 13.4.2018 IS PRODUCED HEREWITH.** ## **ANNEXURE R2(B)** **PRINT-OUT OF POST A/D SIGNED BY RESPONDENT FOR RECEIVING COPY OF CASE/NOTICE ON 13/10/2018 WHICH IS AFTER 1 YEAR OF CASE PROCEEDINGS** ## **ANNEXURE R2(C)** **LAST HEARING/NEXT HEARING OF THE CASE BEING NON-UPDATED ON THE OFFICIAL HIGH COURT WEBSITE EVEN DAYS AFTER THE POSTINGS.** Crl.MC.No.7833 OF 2017 9 ## **ANNEXURE R2(D)** ## **ANNEXURE R2(E)** **ANNEXURE R2(F)** ## **ANNEXURE R2(G)** **ANNEXURE R2(H)** **TRUE COPY OF THE COMPLAINT PREFERRED BY THE SECOND RESPONDENT BEFORE THE C.I OF POLICE VANITHA CELL ON 17TH JUNE 2013 AND ITS RECEIPT** **COPY OF THE PHOTOGRAPHS OF THE PETITIONER AND THE SECOND RESPONDENT ON VARIOUS OCCASSIONS.** **COPY OF THE JUDGMENT IN THE W.P.(C)NO.27635/2013 OF THIS HONOURABLE COURT.** **TRUE COPY OF THE REPORT SUBMITTED BY THE DETECTIVE INSPECTOR C B C I D (HHW)-II, ERNAKULAM.** **TRUE COPY OF THE JUDGMENT IN CRL.R.P.NO.1231/2018 OF THIS HON'BLE COURT.**