Sunday, May 26, 2013

498a wife takes box & turns hostile! Case shattered. do you think deal done & money milked already?

    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    PRESENT:

    THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

    WEDNESDAY, THE 23RD DAY OF JANUARY 2013/3RD MAGHA 1934

    Crl.MC.No. 545 of 2013 ()
    ........................
    CC.1296/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HOSDURG.
    .................

PETITIONER/ACCUSED:
..................................

           C.A. MUHAMMADKUNHI, AGED 49 YEARS,
           S/O.AHAMMADKUNHI, CHETTUMKUZHI,
           MADOOR VILLAGE, KASARAGOD TALUK.

           BY ADV. SRI.K.P.HARISH.

RESPONDENTS/STATE & DEFACTO COMPLAINANT (CW1):
...............................................................................

        1. STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

        2. RAHMATH, AGED 39 YEARS,
           D/O.LATE MOOSAKUTTY, RESIDING AT PADANNA,
           PADANNA VILLAGE, HOSDURG TALUK,
           KASARAGOD DISTRICT.


           R1 BY PUBLIC PROSECUTOR MR.N. SURESH.
           R2 BY ADV. SMT.K.K.MEERA NAMBIAR.


           THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
           ON 23-01-2013, THE COURT ON THE SAME DAY PASSED THE
           FOLLOWING:




rs.

                                 APPENDIX


PETITIONER'S ANNEXURES:-


ANNEXURE-A I.       TRUE COPY OF THE FIR IN CRIME NO.98/2004 DATED 16/3/2004
                    OF CHANDERA POLICE.

ANNEXURE-A II.      TRUE COPY OF THE CHARGE SHEET IN CC NO.415/2004 OF
                    THE JUDICIAL MAGISTRATE COURT-I, HOSDURG.

ANNEXURE-A III.     TRUE COPY OF THE JUDGMENT DATED 27/11/2006 IN
                    CC NO.415/2004 OF JUDICIAL FIRST CLASS MAGISTRATE
                    COURT-I, HOSDURG.

ANNEXURE-A IV.      TRUE COPY OF THE AFFIDAVIT SIGNED BEFORE AN
                    ADVOCATE NOTARY BY THE 2ND RESPONDENT.




RESPONDENT'S ANNEXURES:-                NIL.




                                            //TRUE COPY//


                                            P.S. TO JUDGE




rs.



                        T.R.RAMACHANDRAN NAIR, J.
               ..................................................
                        Crl. M.C.No. 545 of 2013
               ..................................................
                DATED THIS THE 23rd DAY OF JANUARY, 2013

                                 O R D E R


      The petitioner is the second accused originally in C.C. No.415/2004 of the Judicial First Class Magistrate Court-I, Hosdurg. The offences alleged are under Section 498(A) read with Section 34 I.P.C. The defacto complainant is the second respondent herein. Apart from the petitioner, the husband of the second respondent and the uncle of the husband were accused in the criminal case and they have been acquitted after trial, as per Annexure AIII judgment. The case against the petitioner was split up and refiled as C.C. No.1125/2006. It is stated that after his appearance, he was enlarged on bail and the case was re-numbered as C.C. No.1296/2008.

      2.   Annexure AIV is the affidavit filed by the defacto complainant stating about the acquittal of the other accused as well as the fact that there is a settlement between the parties.             She also stated that she has no complaint against the petitioner herein. She has further averred that she has no objection for settling the case also.

      3. It is evident from the affidavit also that the marriage has been severed and the same has been dissolved. Annexure AIII judgment has analysed the evidence in the matter and the court was of the view that the accused are not in any way connected with the crime.       Accordingly, they were acquitted also. In fact, para 8 of the judgment will show that P.W.1 admitted that the accused have not harassed her mentally or physically. Even though she was cross examined after declaring her as hostile, even in the cross examination she deposed that she has no complaint against the accused and the matter has been settled out of court.

      4. In the light of the above, it can be seen that the substratum of the prosecution case has been shattered.     In that view of the matter, since the criminal complaint arose only due to a matrimonial dispute, this Court will be justified in exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, in the light of the decision of the Apex Court in Gian Singh v. State of Punjab (2012 (2) KLT 1098 ..SC). I am also of the view that there will not be any chance of a successful prosecution and it will be a sheer waste of time of the court also.

      Accordingly, the Crl.M.C. is allowed.

The proceedings in    C.C. No.1296/2008 on the file of the Judicial First Class Magistrate Court-I, Hosdurg, will stand quashed. No Costs.

(T.R.RAMACHANDRAN NAIR, JUDGE)

kav/