Salini V. Sasi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945** **CRL.MC NO. 3540 OF 2023** **AGAINST THE ORDER/JUDGMENT SC 140/2022 OF FAST TRACK SPECIAL** **COURT, CHENGANNUR** **PETITIONER:** **SALINI V. SASI AGED 27 YEARS RESIDING AT VELLACHIMAMMOODU, KALLIMOODU, MANNAMKONAM P.O, VELLARADA,THIRUVANANTHAPURAM, PIN - 695125** **BY ADVS. S.SABARINADH INDULEKHA JOSEPH** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **04.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC NO. 3540 OF 2023 2 ## **K.BABU, J** . -------------------------------------- ## Crl.M.C. No.3540 of 2023 --------------------------------------Dated this the 4[th] day of August, 2023 ## **O R D E R** The prayers in this Crl.M.C. are as follows:- “(i) Quash (1) all proceedings in S.C. No. 140/2022 pending before the Fast Track Special Court, chengannur, (2) Annexure A1 FIR and (3) Annexure A2 Final Report to the extent that it is against the Petitioner/Accused. (ii) Pass such any other order, direction or reliefs as this Hon'ble Court May deem fit in the interest of justice, equity and good conscience.” 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The petitioner is the accused No.5 in Crime No.1167/2019 of Kayamkulam Police Station. The case against the petitioner is now pending as SC.No.140/2022 on the file of the Fast Track Special Court, Chengannur. 4. The offences alleged against the petitioner are punishable under Sections 366, 354, 376 and 34 of the Indian Penal Code. 5. The prosecution case in brief is as follows:- On a day after 15[th] of March 2018 in the night, accused 3 CRL.MC NO. 3540 OF 2023 No.1, the husband of the victim, took her in a car bearing Regn.No.KL-31-C-4352 and forced her to have sexual connection with accused No.2 who was travelling in the said car. After a lapse of about one month, accused No.1 again took the victim to a building bearing No.8/69 of Keralapuram Panchayat in the possession of accused Nos. 7 and 8 and forced her to have sex with accused No.7. Thereafter, on the last day of March 2019 and on 08/04/2019, accused No.1 had taken PW1 to a rented house bearing No.7/793 of Kulasekharapuram Panchayat in the possession of accused Nos.3 and 4. There, accused No.1 along with accused No.3 compelled the victim to have sex with accused No.4. On 13/04/2019 again accused No.1 took the victim to a rented house bearing No.6/143 of Payippad Panchayat in the possession of accused Nos.5 and 6. There also the petitioner/accused No.1 along with accused No.6 compelled her to have sex with accused No.6. 6. The victim lodged FIS before the Kayamkulam Police. Based on her statement, Crime No.1167/2019 was registered. On 23.03.2020, after completion of the investigation, final CRL.MC NO. 3540 OF 2023 4 report was submitted before the jurisdictional Magistrate. The learned Magistrate committed the case against accused Nos.1, 3 , 4, 6 and 7 to the Sessions Court Alappuzha. The case against the remaining accused, including the petitioner, was split up and kept pending before the jurisdictional Magistrate. The case against the petitioner was later committed to the Sessions Court, Alappuzha from where it was made over to the Assistant Sessions Court, Mavelikkara and numbered as SC.No.140/2022. The petitioner now faces trial before the Assistant Sessions Court, Mavelikkara. The case was later transfered to the Fast Track Special Court, Chengannur, where the petitioner now faces the above mentioned charges. 7. Accused Nos.1, 3, 4, 6 and 7 faced trial in Sessions case No.178/2021 before the Fast Track Special Court, Harippad. After the conclusion of the trial, the Fast Track Court found accused Nos. 1, 3, 4, 6 and 7 not guilty of the offences alleged and they were acquitted of the charges. 8. The learned counsel for the petitioner submitted that the only allegation against the petitioner is that she instigated the victim to have sexual connection with accused No.6. It is CRL.MC NO. 3540 OF 2023 5 submitted that accused No.6, the husband of the petitioner, who was alleged to have committed rape has been acquitted by the Court due to want of evidence. It is further submitted that the chances of ultimate conviction is absolutely bleak in the case and moreover, even if the whole prosecution case is accepted, ingredients of the offences alleged against the petitioner are not attracted. The materials placed before the Court, including the FIS, Final Report and statements given by the victim and other witnesses before the Fast Track Special Court, Harippad, where the trial against the other accused was conducted, would show that the petitioner herein had consensual sexual connection with some others. 9. The learned Special Judge, Fast Track Special Court, Harippad, conducted trial in the matter in which PWs 1 to 7 were examined and Exts. P1 to P17 were marked. The learned Sessions Judge came to the following conclusions; (i). PW.1, the victim herein, has testified that the FIS and statements under Section 164 Cr.P.C. were given under compulsion and the accused have not committed any of the offences alleged against them. CRL.MC NO. 3540 OF 2023 6 (ii). Parents of the victim pleaded ignorance of the incident and submitted that they had not given any statement to the police. (iii). The victim specifically stated that no incident as alleged had taken place. (iv). The version given by the victim would indicate that nobody ravished her and the accused never had sex with her against her will. (v). The report given by the Forensic Science Laboratory, does not indicate that the wearing apparels of PW1 bore seminal stains and human spermatozoa. (vi) The other witnesses had no direct knowledge regarding the incident, and hence, they were rightfully not examined by the prosecution. 10. The conclusions arrived at by the Sessions Court as mentioned above would show that she never had any sexual intercourse with anybody including the husband of the petitioner herein. 11. In **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** , a full bench of this Court held that though the CRL.MC NO. 3540 OF 2023 7 reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under Section 482 of the Code of Criminal Procedure, a case where the substratum of the case is lost, is an exception to the above rule. 12. The only allegation against the petitioner herein is that she instigated the victim to have sexual connection with her husband, accused No.6. Things being so, the continuation of the prosecution against the petitioner will have no purpose as materials are totally lacking, even to prima facie show that the petitioner had any involvement in the alleged offences. In **Manik Thaneja v State of Karnataka [(2015) 7 SCC 423]** the Apex Court held that where in the opinion of the Court, the chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceedings even though it may be at a preliminary stage. Another aspect that requires consideration is that the prosecution materials do not bring forth any elements of mens rea on the part of the petitioner in the commission of the alleged offences. The CRL.MC NO. 3540 OF 2023 8 basic principle of Criminal jurisprudence is that element of mens rea must accompany the culpable act or conduct of the accused. The materials placed by the prosecution before the Court, do not disclose anything to bring in that the petitioner had the necessary mens rea in the alleged instigation or compulsion. The continuation of the prosecution against the petitioner will only result in abuse of the process of law. Therefore, the entire proceedings as against the petitioner are liable to be quashed. In the result, the Crl.M.C. is allowed. The proceedings against the petitioner in SC.No.140/2022 on the file of the Fast Track Special Court, Chengannur are hereby quashed. Sd/- **K.BABU JUDGE** saap CRL.MC NO. 3540 OF 2023 9 ## **APPENDIX OF CRL.MC 3540/2023** ## **PETITIONER ANNEXURES** **A CERTIFIED COPY OF THE FIR DATED 25.04.2019 IN CRIME NO.1167/2019 OF Annexure A1 KAYAMKULAM POLICE STATION. Annexure A2 A CERTIFIED COPY OF THE FINAL REPORT DATED 23.03.2020 IN CRIME NO.1167/2019 OF KAYAMKULAM POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM. Annexure A3 A TRUE PHOTO COPY OF THE JUDGMENT DATED 06.12.2022 IN SC NO.178 OF 2021 PRONOUNCED BY THE FAST TRACK SPECIAL JUDGE, HARIPAD. A TRUE PHOTOCOPY OF THE PETITION TO RECALL WARRANT, UNDER SECTION 70 (2) OF CRIMINAL Annexure A4 PROCEDURE CODE, 1973 SUBMITTED AND REFUSED TO BE ACCEPTED BY THE JUDGE OF THE FAST TRACK SPECIAL COURT, CHENGANNUR Annexure A5 A TRUE PHOTOCOPY OF THE E-COURT STATUS DATED 27.04.2023 OF THE FAST TRACK SPECIAL COURT, CHENGANNUR IN S.C.NO.140/2022** //True copy //PA to Judge