T. D. Preetha v. Sarada Sivasankaran Nair, Sivasankaran Nair, State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934 Crl.L.P..No. 63 of 2013 ----------------------[AGAINST THE ORDER/JUDGMENT IN CC.43/2005 of C.J.M.,PATHANAMTHITTA DATED 09-01-2009] PETITIONER/COMPLAINANT: ----------------------- T.D.PREETHA D/O.T.G.DIVAKARAN NAIR, THADASSERIL VEEDU VELLIYARA P.O., AYROOR, RANNY PATHANAMTHITTA DIST. BY ADV. SRI.BIJI MATHEW RESPONDENTS/2ND ACCUSED AND 3RD ACCUSED IN CC.NO.43/2005 & STATE: ----------------------------------------------------------------- 1. SARADA SIVASANKARAN NAIR AMBATTU VEEDU, VALLOKODE P.O., KOZHENCHERRY, PATHANAMTHITTA DT. 2. SIVASANKARAN NAIR, AMBATTU VEEDU, VALLOKODE P.O., KOZHANCHERRY PATHANAMTHITTA DT. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI.T.RAMPRASAD UNNI. R11 & R2 BY ADV. SRI.S.MUHAMMED HANEEFF R1,R2 BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 63 of 2013** **---------------------------------------Dated this the 8[th] day of February, 2013** ## **O R D E R** The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate in his complaint, acquit the accused under Section 248(i) of the Cr.P.C. 2. C.C.No.43 of 2005 is instituted in the court of the Chief Judicial Magistrate, Pathanamthitta based upon a complaint preferred by the petitioner herein alleging the offence under Section 498A read with Section 34 I.P.C. against the accused three in numbers who are the husband, mother-in-law and father-in-law of the petitioner. The trial court, by judgment dated 9.1.2009, found that the first CRL.L.P.NO. 63 of 2013 :-2-: accused/the husband of the petitioner is guilty of the offence under Section 498A of I.P.C. whereas the accused Nos.2 and 3 are found not guilty and accordingly, they were acquitted under Section 248(i) of the Cr.P.C. Challenging the above order of acquittal in favour of accused Nos.2 and 3, the petitioner proposes to file an appeal for which she seeks leave of this Court under Section 378(4) of the Cr.P.C. 3. I have heard Sri.Biji Mathew, learned counsel for the petitioner and I have perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that though the learned Magistrate inclined to accept the document Ext.P1 and found that the first accused is guilty, the very same evidence of PW1 is rejected by the learned Magistrate and accordingly, acquitted accused Nos.2 and 3. According to the learned counsel, the above approach of the learned Magistrate is arbitrary and illegal. It is also pointed out by the learned counsel for the petitioner that the incident has taken place during the period from 15.3.2004 to 17.3.2004 and on CRL.L.P.NO. 63 of 2013 :-3-: 19.3.2004, PW1 was treated by PW6 and issued Ext.P1 wound certificate. So, the fact that PW1 sustained injury on the above date, though found by the learned Magistrate in favour of the prosecution, the learned Magistrate refused to accept the case of the prosecution with respect to the overt act of the second accused though the evidence of PW1 is crystal clear in this respect. Thus, according to the learned counsel, the findings of the court below and the order of acquittal recorded in favour of the accused are liable to be interfered with. 5. I have carefully considered the contentions of the learned counsel for the petitioner and the respondents and I have carefully gone through the judgment sought to be impugned. 6. From the facts and circumstances involved in the case and in the light of the evidence and materials referred to by the learned Chief Judicial Magistrate in the judgment sought to be impugned, it can be seen that according to PW1, she was subjected to torture on 15.3.2004 CRL.L.P.NO. 63 of 2013 :-4-: at the hands of the first accused/her husband and at the hands of her mother-in-law, the second accused. It is the case of PW1 that on 15.3.2004, the second accused/the mother-in-law assaulted on her and according to PW1, on 15.3.2004 at 8.30 p.m. in the night, the second accused caught hold of her by hair and the head was dashed against the wall. It is also alleged that the second accused slapped her when the first accused joined the second accused and manhandled her. In this juncture, it is relevant to note that when PW1 was subjected to medical examination on 19.3.2004, PW6 noted the injury on the neck of the complainant/PW1, which is corresponded to the injury allegedly sustained by PW1 at the hands of the first accused. Though PW1 submitted that the second accused dashed her head against the wall, no corresponding injury noted by PW6 in Ext.P1 wound certificate. To get over this adverse situation, PW1 deposed before the court that she had headache as a result of the said attack. The learned Magistrate refused to accept the above version of PW1 because there is no CRL.L.P.NO. 63 of 2013 :-5-: satisfactory evidence other than the interested version of PW1. In this juncture, it is relevant to note that after the marriage between A1 and PW1, which was solemnised on 26.10.2002, the alleged occurrence had taken place on 15.3.2004 within two years from the date of marriage. So, it can be safely presumed that the evidence of PW1 cannot be swallowed unless the same corroborated by any other supporting evidence since PW1 is inimical to all the accused including accused Nos.2 and 3. In this juncture, according to me, the learned Chief Judicial Magistrate, after proper appreciation of the evidence, found that there is no legal evidence to connect accused Nos.2 and 3 with the alleged incident. According to me, the above finding of the learned Chief Judicial Magistrate appears to be correct, proper and legal. The available evidence on record which is referred to by the learned Magistrate in the impugned judgment shows that the above finding and order of acquittal are proper and legal and the same cannot be treated as perverse or illegal. CRL.L.P.NO. 63 of 2013 :-6-: 7. In a recent decision of the Apex Court reported in **State of** ## v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.”_ Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. CRL.L.P.NO. 63 of 2013 :-7-: Therefore, I find no ground to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. sd/- V.K.MOHANAN, Judge MBS/ - _true copy-_ _P.S.TO JUDGE_ CRL.L.P.NO. 63 of 2013 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R ## CRL.L.P.NO. 63 of 2013 :-9-: Dated:2. ..2011