B. Jeeja v. Sooraj Prakash and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934** **Crl.Rev.Pet.No. 44 of 2001 ( )** **------------------------------** **CC.294/1998 of J.F.C.M.,VADAKARA** **REVISION PETITIONER(S): ----------------------** **B.JEEJA, SREEDEVI BHAVANAM, PODUPPANAM, VADAKARA.** **BY ADV.SRI.S.VIJAYAKUMAR** **COMPLAINANT(S):** **---------------** **1. SOORAJ PRAKASH, S/O.NARAYANAN KIDAVU ANANDA BHAVAN, PALLIAD AMSOM, PATHIYARAKARA, VADAKARA.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.T. SHEEBA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 44 of 2001 -----------------------------------------Dated this the 31[st] day of October, 2012 ## **O R D E R** This revision is filed by the de facto complainant challenging the verdict of acquittal in a case charge sheeted by the Police against the 1[st] respondent alleging commission of offences under section 448 and 506(ii) of IPC. 2. PW1 – the de facto complainant is the wife of the respondent. In the marital relationship they were blessed with a child. There were matrimonial dispute alleging cruelty at the hands of the respondent. The complainant had to leave the matrimonial home. She started residing in her parental house with her child. It is alleged that on 24.9.1997 at 8.15 a.m., the accused/respondent trespassed into the verandah of that house. He kicked the door. On hearing the noise, the complainant opened the window and **-2-** ## **Crl.R.P. No: 44/2001** then she could see the accused. He abused PW1 using obscene words and also threatened her that he will throw bomb and would kill the complainant and the inmates of the house. It was also her case that the accused had threatened that he will put poison in the well in order to kill them. The complainant telephoned the police. The police reached there after about 10 minutes. On seeing the police party the accused sped away from the scene. The incident was alleged to have been witnessed by PW2 and CW4. (CW4 was not examined before court.) The First Information Statement was given by PW1 on the very same day in the evening. After conducting investigation, charge sheet was laid against the respondent. 3. PWs 1 to 5 were examined and Exts. P1 to P4 were marked. Ext.D1 was marked on the side of the defence. The learned Magistrate, after analysing the **-3-** ## **Crl.R.P. No: 44/2001** evidence, found that the prosecution could not prove the case beyond reasonable doubt and as such the respondent was acquitted. 4. Smt. Meera Nambiar, the learned counsel appearing on behalf of the revision petitioner, argued with vehemence that the learned Magistrate did not appreciate the evidence correctly. Even if there are some minor inconsistencies in the evidence given by PWs 1 and 2, that should not have been projected by the court below to disbelieve the case of the prosecution, the counsel submits. Even if the accused was given permission to see the child from the house of the complainant, that does not give him the right to go to the house of the complainant and kick the door or threaten and put PW1 in fear of death. There was no reason to disbelieve the evidence of PW1, the learned counsel further submits. ## **Crl.R.P. No: 44/2001** **-4-** 5. The learned counsel has taken me through the evidence given by the prosecution witnesses, especially the evidence given by PWs 1 and 2, who deposed with regard to the incident alleged in this case. According to PW1 the incident took place at about 8.15 a.m. on 24.9.1997. It is seen from the evidence given by PW1 that there was a petition filed by the accused before the Family Court, Kozhikode, which was pending as O.P. No:204/1995. Ext. D1 is the order of the Family Court in that O.P. The learned Judge, Family Court had held that opportunity should be afforded to the accused herein to see the child at least once in a month either at the school or at the house of the respondent. It was specifically mentioned that the petitioner (PW1) shall afford sufficient opportunity to the accused to do so. Of course, it was further mentioned that the accused should not create any disorderly scene when he goes to the house of PW1 to see the child. When PW1 was ## **Crl.R.P. No: 44/2001** **-5-** examined she feigned ignorance regarding Ext.D1 Order. That itself will tell upon the credibility of PW1. 6. According to PW1, when she heard the noise she opened the window and then she could confirm that it was the accused who kicked the door. She further deposed that the accused had threatened her stating that he will throw bomb and would kill all the members of the house. The contention that was raised by the defence before the court below was that this was actually a case filed by PW1, in order to see that the accused does not go to the house of PW1 to see the child and thereby to prevent the accused from seeing the child. It was to deprive his valuable right to see his child. The evidence would also show that the uncle, brothers and other relatives of PW1 are in a high and influential position. According to the defence, it was the brother of PW1, who went to the Police Station and fetched ## **Crl.R.P. No: 44/2001** **-6-** the police in their own car. That suggestion was denied by PW1. According to PW1, the police had reached there, as she had telephoned the police, within 10 minutes. But PW5, the Police Officer, denies that statement. The F.I. Statement, according to PW1, was given in the evening of 24.9.1997. There was no allegation in Ext.D1 that the accused had used obscene words against PW1. 7. PW2 has stated that he had gone to the house of PW1 for the purpose of purchasing his scooter. But he says that he was not a close friend or associate of Ajith, the brother of PW1. The court below, who had the opportunity to watch the demeanour of the witness, was not impressed by the evidence given by PW2. There is inconsistency in evidence given by PW2 and PW1. Of course, there would be inconsistencies in the evidence given by the witnesses when they speak about the incident after one or two years. ## **Crl.R.P. No: 44/2001** **-7-** The learned counsel has relied upon the decision in **Mohanan v. State of Kerala 2000 (2) KLT 562** in support of her submission that minor discrepancies will not affect the prosecution case and that the evidence of the witnesses has to be read as a whole. So far as the case on hand is concerned, the evidence given by PW1 has to be appreciated in the particular factual background. There was a matrimonial dispute between PW1 and the accused and an order was passed by the Family Court, as evidenced by Ext.D1, on 31.07.1997 itself. 8. After scanning the evidence given by PW2, the court below has rightly found him unworthy of credence. I have scrutinized the evidence given by him. I find no reason to differ from the view taken by the court below. It is also important to note that though there are so many houses very near to the house of PW1, nobody from those houses ## **Crl.R.P. No: 44/2001** **-8-** were cited as witnesses. PW2 is not a neighbour. His presence at the scene of occurrence is also found doubtful. In the particular factual background, I am not persuaded to accept the evidence given by PWs 1 and 2. It is worthwhile to note that it is only a revision petition filed by the de facto complainant. Unless there are glaring incongruities or total non-consideration of the evidence or any perverse approach, it is not just or proper to interfere with the order of acquittal. The verdict of acquittal passed by the court below is well justified. In the result this revision petition is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj