Arsha v. State of Kerala and Sara B. Ismail

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939 Crl.MC.No. 3558 of 2016 () --------------------------- CC 1032/2015 of JUDL.M.F.C.-I,ERNAKULAM CRIME NO. 42/2014 OF VANITHA CELL, EKM , ERNAKULAM ## PETITIONER/ACCUSED: ------------------------------- ARSHA AGED 26, D/O. RAJENDRAN. GRALMA, KAZHUNADU VILLAGE, VATTAPPARAKARA, THIRUVANANTHAPURAM. ## BY ADV. SRI.SHAJIN S.HAMEED RESPONDENTS/STATE & CW1 ---------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, VANITHA POLICE STATION, KOCHI CITY, ERNAKULAM, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SARA. B. ISMAIL, AGED 25, D/O. MUHAMMED ISMAIL, PADIPPURA HOUSE, VETTOR VILLAGE, VARKALA, THIRUVANANTHAPURAM- 695141 BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-072017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## CRL.M.C.3558/2016 ## **APPENDIX** ## PETITIONER'S EXHIBITS: ANNEX.A : PHOTOCOPY OF THE FIR IN CRIME NO.934/2014 OF KALAMASSERY POLICE STATION ANNEX.B : PHOTOCOPY OF THE FIRM IN CRIME NO.42/2014 OF VANITHA POLICE STATION. ANNEX.C : CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.42/2014 OF VANITHA POLICE STATION. ## RESPONDENTS' EXHIBITS : NIL // True Copy // PA to Judge **C.R.** ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C. No.3558 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of July 2017 ## O R D E R The petitioner is the accused in C.C. No.1032/2015 on the files of the court of the Judicial Magistrate of First Class-1, Ernakulam. The offences alleged are offences punishable under Sections 341 and 323 I.P.C. 2. The prosecution allegation can be briefly stated as were follows:- The petitioner and the _de-facto complainant_ studying for L.L.M. at NUALS, Ernakulam. They were staying together in a room in the ladies hostel of the college. While so, on 13.5.2014 at about 7.30 p.m., there was a quarrel between the petitioner and the _de-facto_ Crl.M.C.3558/2016 -: 2 :- _complainant_ in connection with the marriage proposal of the _de-facto complainant_ . A relative of the petitioner was proposed as bride to the _de-facto complainant_ . When the _de-facto complainant_ asked about the same to the petitioner, the petitioner pleaded ignorance. This led to the quarrel between them. In the quarrel, the petitioner beat the _de-facto complainant_ . She cried aloud. Thereafter, also, there was fight between the _de-facto complainant_ and the petitioner. 3. This Crl.M.C. has been filed praying for quashing the final report and all further proceedings against the petitioner in the above case. 4. Service is complete. However, there is no appearance for the 2[nd ] respondent, who is the _de-facto_ Crl.M.C.3558/2016 -: 3 :- _complainant_ . Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. I have gone through the statement of witnesses including the _de-facto complainant_ . It appears that the _defacto complainant_ and another witness, namely, Varoma had given statement to the police about the incident. 6. The learned counsel for the petitioner has argued were that the petitioner and the _de-facto complainant_ studying for L.L.M. in the same college, residing in the same room in the hostel and that the _de-facto complainant_ did not sustain any bodily injury in the incident and in the said circumstances, the further proceedings against the petitioner are liable to be quashed. 7. Section 95 I.P.C. provides that nothing is an offence by reason that it causes, or that it is intended to Crl.M.C.3558/2016 **==> picture [28 x 9] intentionally omitted <==** cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. 8. Three Judge Bench of the Apex Court in Veeda Menesez v. Yusuf Khan Haji Ibrahim Khan and another (AIR 1966 SC 1773) held that Section 95 I.P.C. applies if the act causes harm or is intended to cause harm, or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm. 9. Now the question to be considered is as to whether, having regard to the circumstances, the harm caused to the petitioner was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 I.P.C. is intended to prevent penalisation of negligible Crl.M.C.3558/2016 -: 5 :- wrongs or of offences of trivial character. 10. The Apex Court in Veeda Menesez (supra) observed thus:- “ Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending act was done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. It cannot be judged solely by the measure of physical or other injury the act causes.” 11. The Apex Court in Veeda Menesez (supra) further observed thus:- **“** A soldier assaulting his colonel, a policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heinousness of Crl.M.C.3558/2016 -: 6 :- which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of discipline. An assault by one child on another, or even by a grown up person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused, that the victim ordinarily may not complain of the harm.” It is now settled law that whether an act, which amounts to an offence, is trivial or not, would undoubtedly depend upon the nature of the injury, the relationship between the parties, the knowledge or intention with which the offending act was done, the situation in which the parties are placed and other related circumstances. There cannot be any absolute standard or degree of harm which may be Crl.M.C.3558/2016 -: 7 :- regarded as slight that person of ordinary sense and tamper would not complain of the harm. 12 **.** In this case, the petitioner and the _de-facto complainant_ were students studying in the same class in the same college. They were staying in the same hostel. They were also room-mates. They were doing L.L.M. The statement would show that both the petitioner and the _defacto complainant_ were close friends. The _de-facto complainant_ sustained only trivial physical injury. It appears from the statements that the assault was not with any intention or pre-meditation. Considering the life of the parties as students, the relationship between the students, the situation in which the parties were placed and the other related circumstances in which the harm was caused, I am of the view that the act of the petitioner Crl.M.C.3558/2016 -: 8 :- falls within the ambit of Section 95 of I.P.C. as the victim ordinarily would not have complained of the harm under the above circumstances as the harm caused to the _defacto complainant_ was trivial in nature. In the said circumstances, it is only just and proper to quash the final report and all further proceedings against the petitioner in C.C. No.1032/2015 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice and accordingly, I order so. In the result, this Crl.M.C. stands allowed. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/31.7.2017_ The lower court case number “ **C.C.No.1032/2015”** occurring in the first line of paragraph 1 at page 1 and in the 20[th] line of the Crl.M.C.3558/2016 -: 9 :- paragraph 12 at page 8 of the final order dated 27.7.2017 in Crl.M.C. No.3558/2016 is corrected and substituted as “ **C.C.No.1032/2014** ' as per order dated 2.2.2018 in Crl.M.A. No.13674/2017 in Crl.M.C. No.3558/2016. ## Sd/- Registrar ( Judicial)