Suraj Babu v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **Crl.MC.No. 341 of 2014** **AGAINST THE ORDER/JUDGMENT IN CC 1558/2011 of J.M.F.C.-I, KOLLAM** **CRIME NO. 747/2011 OF KUNDARA POLICE STATION , KOLLAM** ## **PETITIONER(S)/5TH ACCUSED IN CC NO.1558/2011** **SURAJ BABU, SON OF SUKUMARAN, RESIDING AT SUKU BHAVAN, PARUNTHUPARA, MUKKOODU PO, KUNDARA, KOLLAM.** **BY ADVS.SRI.JOHNSON GOMEZ** **SRI.S.BIJU (KIZHAKKANELA)** ## **RESPONDENT(S)/STATE 7 DEFACTO COMPLAINANT IN CC NO. 1558/2011** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT.** **2. KUMARI SHYAMALA,** **WIFE OF SUDHARSANA BABU, MUNDUMAMVILA VEEDU PALLIMUKKU, KUNDARA EAST PO, KOLLAM 691 301** **R2 BY ADV. SRI.LIJOY P.VARGHESE** **R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 341 of 2014 ()** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNX.A1 - A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE SECOND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I KOLLAM AS CMP NO.2638 OF 2011** **ANNX.A2 - A TRUE COPY OF THE FIR IN CRIME NO.747 OF 2011 OF KUNDARA POLICE STATION** **ANNX.A3 - A TRUE COPY OF THE FINAL REPORT WHICH LEAD TO THE REGISTRATION OF CC NO.1558 OF 2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I KOLLAM** **ANNX.A4 - A TRUE COPY OF THE ORIGINAL PETITION IN OP NO.282 OF 2011 ON THE FILE OF THE FAMILY COURT, KOLLAM.** **ANNX.A5 - A TRUE COPY OF THE PETITION IN MC NO.72 OF 2011 ON THE FILE OF THE FAMILY COURT, KOLLAM FILED BY THE SECOND RESPONDENT AGAINST HER HUSBAND** **ANNX.A6 -A TRUE COPY OF THE CMP NO.966 OF 2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM.** **ANNX.A7 - A TRUE COPY OF THE JUDGMENT DATED 24-8-1994 IN OS NO.240 OF 1994 PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM.** **ANNX.A8 - A TRUE COPY OF THE INDIAN PASSPORT OF THE PETITIONER (3 NOS.)** **RESPONDENTS EXHIBITS : NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.341 of 2014** - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of June, 2018 ## **O R D E R** The petitioner herein, who is the 5[th] accused in Crime No.747/2011 of Kundara Police station, now pending as CC No. 1558/2011 on the files of the JFMC I, Kollam is the petitioner herein. The second respondent is the defacto complainant therein, The case of the defacto complainant, as is discernible from Annexure A1 complaint, is that she got married to the first accused on 2/5/1985. Three children were born in the matrimonial relationship. The second accused is the mother of the first accused and accused Nos. 3 to 5 are the brothers of the first accused. The 5[th] accused is the youngest among the brothers. The crux of the allegation was that, after the marriage, the husband and the inlaws subjected her to matrimonial cruelty, both physically and mentally. Ultimately, she got separated from matrimonial home and set up her independent house. Private complaint was laid by her alleging various offences, which was numbered as CMP No.2638/2011 of the Judicial First Class Magistrate Court 1, Crl.M.C.No.341/2014 2 Kollam, and referred for investigation to the police. Annexure A2 FIR was registered and after investigation, Annexure A3 final report was laid. Faced with the trial, the petitioner herein has approached this court with prayer to quash the proceedings on the ground that the facts on record did not justify his prosecution and that, he cannot be compelled to face agony of the trial. He sought to quash the proceedings on that premise. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor. Perused the available records. 3. The contention of the learned counsel for the petitioner is that the complaint is absolutely vague, bereft of any details and general in nature. It was contended that specific allegations were raised against the petitioner only, in paragraphs 6,8 and 12 of the complaint. All other paragraphs either relate to general allegations or specifically attributed to the first accused alone. It was also contended that, allegations are absolutely bereft of details regarding the date, time and place where the incident occurred. A perusal of the complaint shows that, general allegations are raised regarding the conduct of the accused. Specific allegation against the petitioner herein are seen only at paragraph 6. In that there is an allegation that on 22/2/2011, accused Nos. 3,4 and 5 came to the house of the defacto complainant, threatened her and assaulted Crl.M.C.No.341/2014 3 her. She was consequently hospitalized. In paragraph 8, there is a further allegation that on an unspecified day, the petitioner along with other brothers assaulted the defacto complainant and she had to be hospitalized. Third allegation, as seen in paragraph 12, is that 5[th] accused called the defacto complainant, abused her and threatened to set her house on fire. 4. As indicated above, though three specific instances are referred, except the alleged incident on 22/2/2011, all other instances are raised without mentioning the date on which the incident happened. There is also an allegation that on several occasions, the accused had attempted to smother her using pillow. Again, this allegation is raised without reference to any specific date, which is likely to prejudice the petitioner herein. Though the defacto complainant has specifically claimed that she was taken to the hospital, the hospital records are not brought on record either by herself or in the course of investigation to prove the allegation. 5. Regarding the solitary reference to the incident with reference to date, the learned counsel for the petitioner contended that, it is also false. According to the petitioner, he is working abroad since 16/12/1987 and the passport details indicate that in the year 2011, he reached India only on 4/8/2011. He claimed that, he returned on 17/9/2011. In other words, on 22/2/2011, which is the crucial date of the alleged incident, he was not in Crl.M.C.No.341/2014 4 India. To substantiate it, learned counsel relied on Annexure A8 which is a copy of the passport with its relevant entries. Clearly, the petitioner was not in India on the date on which he allegedly assaulted defacto complainant. 6. The defacto complainant cannot set up a case that date was mistakenly mentioned. In her statement to the police and thereafter, she had never set up a case that the incident did not happen on 22/11/2017 or any other date. Crl.M.C.was filed in the year 2014. Till now the petitioner herein has not set up a contention that the incident happened on another day. The petitioner has no case that details mentioned in Crl.M.C. regarding the travel of the petitioner herein is false. She has also no case that Annexure A8 cannot be relied on at this point of time. Hence, I am inclined to primafacie accept it for the purpose of consideration of Crl.M.C. 7. Perusal of the facts disclose that as against the petitioner herein, defacto complainant has no case of cruelty as well as the demand for dowry satisfying either of the limbs of cruelty as defined under section 498A of the IPC. Learned counsel for the petitioner invited my attention to the decision of the Supreme Court in **Varala Bharath Kumar and Another v. State of Telangana and another (2017 KHC 6626)** and **Kartik Chandra Majee and Others v. State of Jharkhand and Another ( 2017** Crl.M.C.No.341/2014 5 **KHC 4079).** Both relate to the scope of section 498A and its ingredients. 8. Having considered the above facts, I feel that materials on record is too insufficient to direct the petitioner herein to face trial under section 498A IPC. Necessarily, it follows that the prosecution charged against the petitioner herein is liable to be quashed. Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to Annexure A3 final report as against the petitioner herein alone in CC No. 1558/2011 of the Judicial First Class Magistrate Court, 1 Kollam stands quashed. Prosecution of remaining accused can continue. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.341/2014 6