Snoby Sourabhan v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 CRL.REV.PET NO. 144 OF 2023** **CRIME NO.621/2011 OF Petta Police Station,** **Thiruvananthapuram** **AGAINST Crl.M.P. 236/2022 IN SC 241/2020 OF PRINCIPAL ASSISTANT SESSIONS COURT, THIRUVANANTHAPURAM** **REVISION PETITIONER/ACCUSED NO.2:** **SNOBY SOURABHAN AGED 31 YEARS, D/O SULEKHA, SANNIDHANAM-VEEDU, CRA 253, CHENTHIMURI, PONGUMOODU-DESOM, EDAVAKKODE-WARD, ULLOOR-VILLAGE, THIRUVANANTHAPURAM-DIST., PIN - 673573** **BY ADVS. SRI.BIJU ANTONY ALOOR SRI.K.P.PRASANTH SRI.VISHNU DILEEP SMT.T.S.KRISHNENDU SMT.ARCHANA SURESH SMT.SUNITHA K.G.** ## **RESPONDENTS/STATE/COMPLAINANTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM PIN - 682031**| |**2**|**STATION HOUSE OFFICER**| ||**PETTAH P.S.,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN - 695024**| |***3**|**BABU RAJENDRAN**| ||**AGED 86 YEARS,**| ||**RESIDING AT DHANYA KRA-120 TC130/1171**| ||**NEAR RAILWAY STATION, PETTAH**| ||**THIRUVANANTHAPURAM**| ||***(ADDL.R3 IS IMPLEADED AS PER ORDER DATED**| ||**10.03.2023 IN CRL.M.A. NO.2/2023)**| Crl.R.P. No.144/23 **-:2:-** **BY ADVS. SRI.NOUSHAD K.A., PUBLIC PROSECUTOR SMT.S.KARTHIKA SMT.PREETHY KARUNAKARAN SMT.K.MEERA SMT.ANJANA M VADHYAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON 07.09.2023 DELIVERED THE FOLLOWING:** Crl.R.P. No.144/23 **-:3:-** ## **BECHU KURIAN THOMAS, J. ----------------------------------Crl.R.P No.144 of 2023** ## **-----------------------------------** Dated this the 7[th] day of September, 2023 ## **ORDER** Rancour in a matrimonial relationship has brought the two families to a marriage, fighting criminal cases for over a decade. The wife in the marriage, which is stated to have been subsequently dissolved, is facing a criminal prosecution as the second accused. Her father is the first accused and they are facing prosecution for offences, including an attempt to commit culpable homicide under section 308 of the Indian Penal Code, 1860 (for short ‘IPC’). The discharge petition filed by her as Crl.M.P. No.236 of 2022 in S.C. No.241 of 2020 on the files of the Principal Assistant Sessions Court, Thiruvananthapuram, was dismissed, resulting in this criminal revision petition. 2. Revision petitioner is the second accused in S.C. No.241 of 2020 on the files of the Principal Assistant Sessions Court, Thiruvananthapuram. The third respondent is the defacto complainant and he was the revision petitioner’s father-in-law. Crl.R.P. No.144/23 **-:4:-** 3. Prosecution allegations relate to an incident that occurred on 16.07.2011 while the marriage was subsisting. According to the F.I.R in Crime No. 621 of 2011 of Pettah Police Station registered at the instance of the third respondent, the first accused is alleged to have trespassed into the house of the defacto complainant armed with a chopper and inflicted injuries on the head and forehead of the defacto complainant and bit on the shoulder of the son of the defacto complainant and thereby committed the offences under sections 447, 294(b), 323 and 324 IPC. When the final report was filed, on 30.09.2011, the offence under section 308 IPC was added and section 447 was deleted. 4. Subsequently, at the request of the defacto complainant, a further investigation was ordered. In the further final report, the revision petitioner was added as the second accused after incorporating section 34 IPC. 5. As per the further final report in the incident that occurred on 16.07.2011, narrated above, the revision petitioner is alleged to have hit her husband (CW2) with a tile and bit him on his shoulder and both accused are alleged to have acted with a common intention to commit the offences under sections 447, 294(b), 323, 324 and 308 Crl.R.P. No.144/23 **-:5:-** r/w section 34 IPC. The case was committed to the court of sessions by order in C.P. No.46 of 2011 and thereafter it is pending before the Principal Assistant Sessions Court, Thiruvananthapuram as S.C. No.241 of 2020. 6. Though the order permitting further investigation was challenged, and both accused had even approached this Court earlier under section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) to quash the proceedings against them, those are not being referred to in detail for the purpose of brevity. Suffice it to say that, by judgment dated 22.11.2019, the Supreme Court dismissed the Special Leave Petition filed by the accused against the judgment of this Court, refusing to quash the case against both of them. However, while dismissing the SLP, it was observed that it is open for the accused to apply for discharge before the trial court, which can be considered in accordance with law, without being influenced by the findings in the judgment of this Court. 7. Thereafter, the revision petitioner alone filed an application under section 227 Cr.P.C, seeking discharge. By the impugned order dated 02.02.2023, the application was dismissed. Thus, this revision petition under section 397 Cr.P.C. **-:6:-** Crl.R.P. No.144/23 8. Sri. Biju Antony Aloor, learned counsel, contended that the revision petitioner was not at all involved in the crime and was only a spectator. But due to matrimonial rivalry, she has been roped in as an accused, that too for a serious offence. It was further submitted that in the statements given by the ocular witnesses initially, there was no reference at all to any act committed by the revision petitioner. However, under the cover of further investigation, minor allegations were levelled against her since in the meantime, she had initiated a complaint alleging matrimonial cruelty. It was also pointed out that the injury allegedly inflicted by the revision petitioner is not supported by the wound certificate. It was further contended that the offences alleged are not made out against the revision petitioner since she could not have trespassed into her own house, nor has the alleged words of abuse spoken to by any of the witnesses and that there is nothing to show any common intention shared between the accused to attack anyone. Thus, it was contended that there was no material whatsoever to proceed against the second accused by incorporating section 34 IPC. It was also submitted that the proceedings are totally malafide and hence she ought to be discharged. **-:7:-** Crl.R.P. No.144/23 9. Adv. S.Karthika, learned counsel for the third respondent, on the other hand, submitted that the purpose of further investigation itself was to bring out the falsity of the earlier investigation wherein revision petitioner's role was completely excluded and that the witnesses subsequently examined had specifically spoken about her involvement. It was pointed out that the revision petitioner had bit on the shoulders of CW2-her husband and even hit him on his back with a tile. The learned counsel also asserted that no cause had been made out to discharge the revision petitioner as the principles that govern such an application clearly indicate that the matter is required to be considered only during the trial and that the court cannot, at this stage, conduct a mini-trial by appreciating the probative value of the materials on record. 10. I have heard Sri. K.A.Noushad, the learned Public Prosecutor also. 11. While considering an application for discharge of an accused, the principles laid down in **Sajjan Kumar v. Central Bureau of Investigation** [(2010) 9 SCC 368] are necessary to be borne in mind. In the said decision, the Supreme Court reiterated seven principles to guide the consideration of applications for Crl.R.P. No.144/23 - **-:8:-** ## discharge. They are as follows: - _“(i) The Judge while considering the question of framing the charges under section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case._ - _(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial._ - _(iii) The court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial._ - _(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence._ - _(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible._ - _(vi) At the stage of sections 227 and 228, the court is required to evaluate the material and documents on record with a view to_ **-:9:-** Crl.R.P. No.144/23 _find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case._ - _(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. (emphasis supplied)”_ 12. Thus, at the stage of considering an application for discharge, the court ought not to enter into a roving enquiry and weigh the evidence as if in a trial and if the court is of the view that the accused might have committed the offence, a charge can be framed. However, the court at the stage of discharge is not a mere post office but can consider the broad possibilities and apply its judicial mind to the materials placed on record to satisfy itself that there is a possibility that the accused could have committed the offence. Further, the court can evaluate the materials and need not accept all that the prosecution states as gospel truth. Also, if two views are possible, one of them giving rise to only a suspicion as Crl.R.P. No.144/23 **-:10:-** distinct from grave suspicion, the court will be empowered to discharge the accused. 13. For the above purpose, the case diary was perused. While considering the relevant contentions advanced, a brief recap of the circumstances that led to the petition seeking the discharge of the second accused is necessary. Initially, the crime was registered on the basis of the statement of the injured/defacto complainant. The FIR and the First Information Statement only made allegations against the first accused, who is the father of the revision petitioner. In the meantime, the revision petitioner filed a criminal case against the defacto complainant and her husband, alleging matrimonial cruelty, which was also charge-sheeted. Subsequently, at the instance of the defacto complainant, a further investigation was ordered and in the further investigation, statements have been given by witnesses that the revision petitioner had bit on the shoulder and hit CW2 with a tile. 14. According to the prosecution, there are two injured persons. In the initial final report that was filed, there was no whisper about any role played by the revision petitioner. Except for two chance witnesses, none attributed any overt act to the revision Crl.R.P. No.144/23 **-:11:-** petitioner. In the first final report, the offence under section 308 was added by the investigating officer against the first accused. The contention of the revision petitioner is that after the matrimonial relationship became seriously strained and after she filed the criminal case for cruelty under section 498A IPC, her husband and in-laws plotted to include her as an accused by seeking a further investigation. Thereafter, they planted witnesses and even had, with malafides, managed to rope in the revision petitioner also as an accused. 15. A perusal of the FIR registered on 16.07.2011 reveals that the allegations were made only against the father of the revision petitioner - the first accused. There was no reference to any involvement or any overt act done by the revision petitioner. The FIR alleged that after the first accused inflicted a cut injury on the defacto complainant using a chopper when the son of the defacto complainant intervened, the first accused pushed him down, and CW2 sustained injuries. The First Information Statement, as well as the statements of CW1, CW2 and CW3, had all referred to the involvement of the first accused alone in the commission of the offence. In fact, an additional statement is seen to have been given Crl.R.P. No.144/23 **-:12:-** by CW1 after the FIS, wherein he clarified that the first accused had bit the shoulder of CW2. Even at the time of the additional statement, CW1 had no allegation of any involvement of the revision petitioner. On the other hand, his specific case was that the first accused (father of the revision petitioner) had bit him on his shoulder. The mother of CW2 stated that the first accused and her son had fallen down, and the first accused bit her son. Smt. Mini, the defacto complainant's daughter, also stated that it was the first accused who bit on the shoulder of her brother CW2. Even CW2 gave a statement that it was the first accused who bit him on his shoulder. There could not have been any mistake in identifying the accused as they were known to each other. 16. However, during further investigation, one Jayakumar, who seems to be a chance witness, alleged that a lady standing there at the time of the incident bit on the right shoulder of CW2. Another witness, who is a taxi driver by the name Soman, stated that the revision petitioner had bit on the right shoulder of CW2. During further investigation, the witnesses had improvised upon their case and alleged that the revision petitioner had bit on the right shoulder of CW2 and even hit him with a tile and when the locals gathered, the **-:13:-** Crl.R.P. No.144/23 first accused took the second accused and went away in their car. 17. In this context, the wound certificate of CW2 refers to some minor injuries, including an ‘abrasion of 1.5 cms wide’ over the right shoulder and an abrasion over the left chest. The doctor who treated him was Dr.Vishwanathan. The statement of the said doctor reveals that the said injured witness had told him that a relative had caused hurt to him. No injury is noted as a bite mark on the shoulder of CW2, nor any injury caused by a tile. There was no reference that his wife had caused any hurt to him. Apart from the above, no tile has been recovered. The injury noted on CW2 as per the wound certificate, is only an abrasion, which does not indicate any bite. The Doctor has also stated that the injuries were not serious. 18. Bearing in mind the principles laid down in **Sajjan Kumar’s case** (supra), the broad probabilities of the case cannot be ignored. In such a context, this Court cannot ignore the criminal case filed by the revision petitioner against her husband and her in-laws as Crime No.637 of 2011, alleging matrimonial cruelty, which was also admittedly charge-sheeted. 19. The shift in the nature of allegations by including the revision petitioner arose after Crime No.637 of 2011 was registered. Crl.R.P. No.144/23 **-:14:-** None of the main charge witnesses had spoken about the involvement of the revision petitioner at that stage. Specific references were made only to the involvement of the first accused. Neither the father-in-law nor the husband nor the mother-in-law of the revision petitioner or even the sister-in-law had a case that the revision petitioner had done any overt act to cause any injury. 20. Further, as noted earlier, the material objects recovered do not include any tile. None of the witnesses had stated that the revision petitioner had abused the witnesses. Revision petitioner could not have been alleged as trespassing into her own matrimonial house especially since on 16.07.2011, there were no cases between them. The injury on the shoulder of CW2, as seen from the wound certificate, is only a small abrasion and does not even refer to or indicate any bite mark. There is nothing to indicate that there was any common intention shared by the revision petitioner with the first accused or of any such intention that developed during the incident. None of the witnesses have spoken about any common intention shared by them. Therefore, the prosecution's case cannot give rise to any common intention between the first and second accused to commit culpable homicide. Crl.R.P. No.144/23 **-:15:-** 21. As held in **Abdul Sayeed v. State of Madhya Pradesh** (2010) 10 SCC 259), the phrase ‘common intention’ implies a prearranged plan and acting in concert pursuant to the plan. It was also held therein that the common intention must be there prior in point of time to the commission of the offence though to bring about a particular result, it may also well develop on the spot as between a number of persons, with reference to the facts and circumstances of the case. The term ‘common intention’ has to be understood in a different sense from the terms ‘same intention’, or ‘similar intention’ or ‘common object’. Persons having a similar intention, which is not the result of the prearranged plan, cannot be held guilty of a criminal act with the aid of section 34 IPC. Similarly, in the decision in **Jai Bhagwan and Others v. State of Haryana** [(1999) 3 SCC 102], it was held that if participation is proved, but the common intention is absent, section 34 IPC cannot be invoked and that inference of common intention has to be drawn with a certain degree of assurance. 22. Based on the above principles of law and in the light of the circumstances arising from the materials collected and the broad probabilities of the case, the offences alleged against the second Crl.R.P. No.144/23 **-:16:-** accused are not made out at all. Further, even if it is assumed for argument's sake that the allegations are correct, they can only give rise, at the most, to a suspicion of the involvement of the revision petitioner in the crime and not a grave suspicion. In this context, it cannot be forgotten that at the time when the incident occurred, the relationship between the revision petitioner and her husband was not fully strained. Though there were disputes between them, the incident in question had aggravated the strain in their relationship. Therefore, at the time of registering the FIR and at the time of giving the statements initially, the witnesses would not have possibly given a version different from what actually happened. 23. Thus, considering the entire circumstances of the case, this Court is of the opinion that the materials placed on record do not indicate the revision petitioner as having committed any of the offences alleged. Therefore, the revision petitioner ought to be discharged for the crime. 24. Hence, I set aside the order dated 02.02.2023 in Crl.M.P. No.236 of 2022 in S.C. No.241 of 2020 before the Principal Assistant Sessions Court, Thiruvananthapuram. Crl.M.P No.236 of 2022 in S.C. No.241 of 2020 on the files of the Principal Assistant Sessions Crl.R.P. No.144/23 **-:17:-** Court, Thiruvananthapuram, is therefore allowed, and the revision petitioner/second accused is discharged. This Criminal Revision Petition is allowed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps Crl.R.P. No.144/23 **-:18:-** ## **APPENDIX** ## **PETITIONER'S/S' ANNEXURES** **ANNEXURE 1 FREE COPY OF ORDER IN CRL MP NO. 236/2022 IN SC NO.241/2020 DATED 02/02/2023 ON THE FILES OF PRL. ASST. SESSIONS COURT, THIRUVANANTHAPURAM**