Rajamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 CRL.MC NO. 4711 OF 2016** **CRIME NO.2075/2015 OF Muvattupuzha Police Station SC 238/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT(SPECIAL COURT FOR THE TRIAL OF CASES RELATING TO ATTRICITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN), ERNAKULAM** ## **PETITIONER/ACCUSED NO.2** RAJAMMA, AGED 49, WIFE OF SUKUMARAN, MULLENKUZHIYIL HOUSE, THEKKADA KAVALA BHAGOM, ANIKADU KARA, NOORONMAVU VILLAGE, PATHANAMTHITTA. BY ADVS. SRI.GEO PAUL SRI.S.ASHOK KUMAR. SRI.JERRY VARGHESE SRI.LENIN P. SUKUMARAN SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SRI.SANU MATHEW SRI.K.S.SREENATH ## **RESPONDENT/COMPLAINANT** 1.STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN:682031. 2. XXX (VICTIM) (Impleaded as per order dated 18.10.16 in Crl.M.A.10638/16) 3. THAMPI, AGED 56 YEARS, VAYALIL HOUSE, KIZHAKKEKKARA, Crl.M.C.4711/2016 2 MUVATTUPUZHA -686661 (Impleaded as per order dated 18.10.16 in Crl.M.A.10817/16) PP SANGEETHARAJ N.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.11.2021, THE COURT ON 1.12.2021 DELIVERED THE FOLLOWING: Crl.M.C.4711/2016 3 ## **ORDER** Dated : 1[st] December, 2021 1. Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioner/second accused in S.C.238/2016 which arose out of Crime No.2075/2015 of Muvattupuzha police station which has been registered for the offence punishable under Sections 342, 328, 376(1) r/w 109 and 506(1) r/w 34 of the Indian Penal Code (in short 'the Code'). 2. Prosecution case is that the first accused pretending love towards the de facto complainant who has been specifically impleaded as additional second respondent and brought her to his incomplete house at Aanikkadu. Thereafter from 2.10.2015 upto 5.10.2015, she had been kept under illegal confinement and on 4.10.2015 during night after taking food, the second accused administered a juice containing some drugs thereby making her semi conscious. Thereafter first accused removed her clothes and committed rape upon her. The first accused also copied nude photographs and videos Crl.M.C.4711/2016 4 of the second accused in his mobile phone. Subsequently on 5.11.2015, first accused send the nude photographs and videos to the mobile number of additional third respondent and also taken copies of the same and kept in the memory cards. Thereafter first and second accused threatened her stating that if she is not giving consent to marry the first accused, they would circulate the nude photographs in medias and thereby defamed her and drove to commit suicide. Thereby accused committed the offence aforementioned. 3. Subsequently the de facto complainant and the victim were impleaded as additional second and third respondents. Memo was filed by the learned Public Prosecutor. Statement was filed by the Investigating Officer in which it has been stated that during the course of investigation it was revealed that accused persons committed the offence as alleged and the second accused has taken active participation in the commission of offence. 4. The Apex Court as well as this Court has repeatedly held the factors which have to be taken note of by the Crl.M.C.4711/2016 5 High Court while quashing the proceedings against the accused persons. 5. It is relevant in this context to quote **R.P. Kapur v. State of Punjab [AIR 1960 SC 866]** wherein while dealing with the inherent power of the High Court it has been held that inherent power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also held that the ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. 6. In **CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872]** , it has been held that the inherent jurisdiction is to be exercised carefully and with caution and only when such exercise is justified by the tests specifically Crl.M.C.4711/2016 6 laid down in the section itself. 7. In **State of West Bengal v. Swapan Kumar Guha [AIR 1982 SC 949]** and also in **Rupam Deol Bajaj v. Kanwar Pal Singh Gill [AIR 1996 SC 309]** it has been held that the power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. 8. It has been held in **State of Karnataka v. L. Muniswamy [AIR 1977 SC 1489]** that High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require it. 9. In **Gorige Pentaiah v. State of A.P [(2008) 12 SCC 531]** it has been held while dealing with Section 482 that if Crl.M.C.4711/2016 7 any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 10. In the present case, according to the learned counsel for the petitioner, even if the entire allegation of the prosecution is admitted in toto, it will not attract any of the offence as alleged against her. The learned counsel would vehemently contend that the only statement connecting her is the statement of the victim which is produced as Annexure-A2/A3. 11. According to her, the crime was registered at the instance of the father of the de facto complainant under Section 66A of the IT Act alone (However copy of FIR has not been produced for perusal). Annexure-A2/3 statement given by the de facto complainant on 9.12.2015 also, she had not made any mention of the rape alleged to have been committed by the petitioner's son or the administration of poison at the instance of the petitioner or stay in the house of the petitioner Crl.M.C.4711/2016 8 and she also categorically stated that she had no illicit relationship with the son of the petitioner. Only when the statement was given on 30.12.2015 as per Annexure-A2, A4 to A6 was given she had revealed about the administration of the same drugs by the petitioner thereby she became unconscious and thereafter the son of the petitioner ravished her and captured nude photographs in his mobile phone and it was sent to her Uncle's phone by the petitioner. It is also stated by her that only because of fear of the reaction of her parents about the incident that she did not disclose it to anybody till that time and she also categorically stated that the intention of the son of the petitioner is to book her in sex racket and sell her amassed wealth out of it. So even though the alleged act of administration of same drugs and the commission of rape by the petitioner's son was not disclosed in her initial statement made on 9.12.2015, she has given a clear expression for suppressing that fact initially. The report of the investigating Officer would also go to show that the bottle and cup in which the juice was Crl.M.C.4711/2016 9 served with intoxicating substance was also shown to her and the bed sheet used by her on that day and the blanket used by her on that particular day also had been identified by her. She also categorically stated that it is the mother of the first accused who is the petitioner herein who has given the juice containing intoxicating substance. So from the statement of the victim it could be gathered that she has given statement clearly to the effect that it is the petitioner herein who has given juice containing intoxicating substance in a glass and on consuming the same, she became unconscious and thereafter the first accused committed rape upon her and her nude photographs were taken. So when there is clear statement by the victim given to the Investigating Officer and when materials also seized and identified by the witness to prima facie show that the juice containing intoxicating substance was administered by the petitioner herein and when the charge under Sections 376, 328, 342, 354(1), 506(1) r/w 34 IPC has been registered against the petitioner. This Court Crl.M.C.4711/2016 10 cannot found at this stage that there are no material to connect the second accused with the alleged act charged against her. 12. The learned counsel brought to my attention **Abdul Hassan v. State of Kerala (2009 CriLJ 3664 = 2009 KLT 5754)** . That was a case in which the appellant/accused challenged the conviction under Sections 328 and 379 IPC and while disposing the appeal, the Honourable High Court found that any situation of suspected case by poisoning the burden is heavy upon the prosecution to prove conclusively that poison or intoxicant was administered to the victim and the prosecution also failed to produce any medical report on the record of the Forensic Science Laboratory that mouth wash of the informant or his brother contained intoxicating substance sufficient to cause sedation if administered in required quantity. In the said circumstances it was found that the prosecution failed to prove any poisoning or any stupefying,intoxicating drug was administered to the victim with intent to cause her so as to attract the charge under Section 328 IPC. Crl.M.C.4711/2016 11 13. The learned counsel also placed reliance on **Joseph Kurian v. State of Kerala (1994 (6) SCC 535 = AIR 1995 SC 4)** . That also arose out of appeal against conviction in a charge including Section 328 IPC and the Apex Court while disposing the appeal in paragraph 10, it has been found that in order to prove the offence under Section 328, prosecution is required to prove that a substance in question was poison or any stupefying or intoxicating drug etc., that the accused administered the substance to the complainant or caused the complainant to take such substance that he did so with intent to cause her or knowing it to be likely it. He would thereby caused her or with intent to commit or facilitate the commission of an offence. It was further found that it is essential for the prosecution to prove that accused was directly responsible for administering poison or causing it to be taken by any person through another person. 14. According to the learned counsel, in this case also no material was collected and send for analysis to the Forensic Science Laboratory to prove any drug or Crl.M.C.4711/2016 12 intoxicating substance was administered to the petitioner at the instance of this accused. On going through the charge-sheet produced from the side of the petitioner, it appears that the petitioner has been arrayed with the first accused with the aid of Section 34 IPC also and the prosecution also has got a case that victim has been wrongfully confined in the house of the petitioners from 2.10.2015 to 5.10.2015 and on 4.10.2015, the petitioner has given some drink like juice containing some intoxicating substance and she became semi conscious and thereafter the first accused raped her and took nude photographs of her in the mobile phone and sent it to the mobile phone of CW3 by the first accused. The victim has given clear statement about the act of the petitioner/second accused in giving juice like liquid and on taking the same she became semi conscious and the first accused caught hold of her and due to intoxication of taking drink she could not resist the act of the first accused and thereafter he committed rape on her. So there is clear statement by the victim against the petitioner and Crl.M.C.4711/2016 **==> picture [13 x 9] intentionally omitted <==** hence at this stage, this Court can not analyze or verify the truthfulness of the statement given or its evidentiary value and that can be done only during trial. So on an evaluation of the totality of the facts and circumstances, I am not satisfied that this is a fit case to quash the proceedings against the petitioner/second accused. 15. In the result, Crl.M.C is found to be devoid of any merit and hence dismissed. Sd/- M.R.Anitha, Judge Mrcs Crl.M.C.4711/2016 14 ## **APPENDIX OF CRL.MC 4711/2016** ANNEXURES ANNEXURE A1: ANNEXURE A1: CERTIFIED COPY OF THE CHARGE IN S.C.NO.238/2015 ON THE FILES OF ADDITIONAL SESSIONS COURT (SPECIAL COURT) ERNAKULAM. ANNEXURE A2 SER CERTIFIED COPIES OF THE 161 STATEMENTS OF THE VICTM IN S.C.NO.238/2015 ON THE FILES OF ADDITIONAL SESSIONS COURT (SPECIAL COURT), ERNAKULAM.