The High Court · 2018

Crl.MC.No. 8119 of 2017 () APPENDIXPETITIONER(S)' EXHIBITSANNEXURE A1 TRUE COPY OF ORDER PASSED BY THE ADDITIONAL SESSIONS COURT II, KASARGOD.RESPONDENTS EXHIBITS” NIL/TRUE COPY/ PS TO JUDGE. SUNIL THOMAS, J.- - - - - - - - - - - - - - - - - - Crl.M.C.No.8119 of 2017- - - - - - - - - - - - - - - - - -Dated this the 19th day of January, 2018O R D E RThe accused Nos.2 and 3, in SC No.488/2012, aggrieved byAnnexure A1 order of the Sessions Court Kasaragod, by whichinvoking section 319 Cr.P.C., they were arrayed as accused Nos. 2& 3 and were issued with summons to appear before the courtbelow, have approached this Court to quash the above order. 2. The case arises from the murder of one Jisha. She wasresiding in her matrimonial house along with her brother-in-law andhis wife, who are the petitioners 1 and 2 herein. There were othermembers in the family. The first accused Tushar Sen Malik wasemployed in the house. The husband of the deceased was abroad.On 19/2/2012, Jisha sustained serious stab injuries in the kitchen ofthe house. She was immediately rushed to the hospital by 2ndpetitioner along with others. She succumbed to the injuries. In thecourse of investigation, first accused was arrested from the terraceof the house on 20/2/2012. After investigation, final report was laidarraying the first accused as the sole accused, for offencepunishable under section 302 IPC.3. The trial of the case started and 35 witnesses were Crl.M.C.No.8119/20172examined. Exts. P1 to P 31 were admitted. MOs 1 to 17 weremarked. Petitioners herein were examined as PWs 1 and 3.Thecourt below on the basis of the materials let in by the prosecution,passed the impugned order by which the petitioners were added asaccused 2 and 3 and summons were issued to them to appearbefore the court to answer the charge under sections 120B, 109,302 and section 201 IPC read with section 34 IPC. This is underchallenge in this Crl.M.C.4. Heard the learned counsel for the petitioners herein andthe learned Additional Director General of Prosecution.5. The basic premise on which the court below concludedthat, there were prima facie materials to proceed against thepetitioners and that they have committed offence, were that therewas difference in the time of commission of offence from thatavailable on record, that PW1 alone was present in the house atthe time of the incident but she did not intimate the name of theaccused to the police on the same day, that there was delay intaking the victim to hospital and that the accused was interceptedfrom the terrace on 21s. It is, however, revealed that Jisha in herstatement has deposed that, the accused had stabbed her. It wasalso pointed out that, the accused was found hiding on the terraceof the two storied house and was found on 21/2/2012. There arereasons to doubts that the accused was concealed in the house bythe petitioners herein. Crl.M.C.No.8119/201736. Learned counsel for the petitioners vehemently contendedthat, the court below, merely based on surmises and assumptionsissued notice to the petitioners herein invoking section 319 Cr.P.C.and issued summons. It was contended that, there was absolutelyno reliable and credible materials on record to conclude that thepetitioners had committed offences alleged against them. Thelearned Additional Director General of Prosecution also found itextremely difficult to sustain the impugned order on merits.Additional statement has been filed by the Investigating Officeranswering each and every finding of the court below. 7. Regarding the time of incident, the explanation is that theincident happened at 8.45 p.m. However, the time of incident waswrongly mentioned by the first informant as 8.15 p.m.. The mistakewas corrected by the first informant in his additional statementrecorded on next day. Further, the victim was taken to hospital,which is 6 kms. away, at 9.15 p.m. Considering the time of incidentas 8.45 p.m., there is no delay also. 8. It is pertinent to note that, even though PW1 was presentin the house at the time of the incident, she did not intimate thename of the accused to the police on the same day, though Jishahad revealed about the identity of the accused. PW1 admitted thatshe did not inform the police about the accused on 19th. This wasexplained by the learned Additional Director General of Prosecutionthat FIR was got registered at 12.15 a.m. on 20/2/2012. The Crl.M.C.No.8119/20174statement of PW1 was recorded on 20/2/2012. In that statement,PW1 had clearly stated about the involvement of the first accused.No statement was given by PW1 on 19/2/2012, though she hadrevealed about the accused, orally. This was not clarified by thePublic Prosecutor also. Hence, there was nothing suspicious in theversion of PW1 to doubt that she concealed the name of theaccused. 9. The accused was found on the terrace of the house in thecondition of utter starvation and tired. According to theprosecution version, after commission of offence, the accusedescaped with blood stained cloth. However, he found that, his trainticket, money and dresses were kept in his bag at the house. So hehad to return. By the time, the people had reached the house andhe hid on the terrace. He could not escape from there till he wascaught. The tracker dog which reached the house did not locatethe accused in the house. Evidently, if the petitioners herein hadhidden the first accused in their house, definitely at the time ofsearch of the house by the police, he would have been caught.Further, if he was hid by the petitioners herein, definitely he wouldnot have been in a condition of starvation. Further he wasintercepted with blood stained dress.10. A perusal of the impugned order clearly shows that, thecourt below has proceeded without requisite materials. Thematerials on record do not appear to indicate that the petitioners Crl.M.C.No.8119/20175herein have committed offences. It is also to be noted that, PW1and PW3 are the crucial witnesses. Arraying them as accused mayvirtually affect the prosecution case. 11.Having considered the above facts, I am inclined to quashAnnexure A1 order leaving it open for the court below to proceedwith the trial and to pass final judgment in accordance with law,untrammeled by any of the observations made above. It is madeclear that, nothing will preclude the court below from proceedingagainst the petitioners herein,if definite cogent materials arebrought out in the course of trial. Accordingly, Crl.M.C.is allowed. All further proceedingspursuant to Annexure A1 stand quashed. Sd/- SUNIL THOMAS Judge dpk /true copy/ PS to Judge.