Crl.MC/8119/2017 of SREELEKHA @ LEKHA Vs DEPUTY SUPERINTENDENT OF POLICE, CBCID, KANNUR on 21 May 2025

O R D E R

The accused Nos.2 and 3, in SC No.488/2012, aggrieved by Annexure A1 order of the Sessions Court Kasaragod, by which invoking section 319 Cr.P.C., they were arrayed as accused Nos. 2 & 3 and were issued with summons to appear before the court below, have approached this Court to quash the above order.

2. The case arises from the murder of one Jisha. She was residing in her matrimonial house along with her brother-in-law and his wife, who are the petitioners 1 and 2 herein. There were other members in the family. The first accused Tushar Sen Malik was employed in the house. The husband of the deceased was abroad. On 19/2/2012, Jisha sustained serious stab injuries in the kitchen of the house. She was immediately rushed to the hospital by 2nd petitioner along with others. She succumbed to the injuries. In the course of investigation, first accused was arrested from the terrace of the house on 20/2/2012. After investigation, final report was laid arraying the first accused as the sole accused, for offence punishable under section 302 IPC.

3. The trial of the case started and 35 witnesses were examined. Exts. P1 to P 31 were admitted. MOs 1 to 17 were marked. Petitioners herein were examined as PWs 1 and 3.The court below on the basis of the materials let in by the prosecution, passed the impugned order by which the petitioners were added as accused 2 and 3 and summons were issued to them to appear before the court to answer the charge under sections 120B, 109, 302 and section 201 IPC read with section 34 IPC. This is under challenge in this Crl.M.C.

4. Heard the learned counsel for the petitioners herein and the learned Additional Director General of Prosecution.

5. The basic premise on which the court below concluded that, there were prima facie materials to proceed against the petitioners and that they have committed offence, were that there was difference in the time of commission of offence from that available on record, that PW1 alone was present in the house at the time of the incident but she did not intimate the name of the accused to the police on the same day, that there was delay in taking the victim to hospital and that the accused was intercepted from the terrace on 21s. It is, however, revealed that Jisha in her statement has deposed that, the accused had stabbed her. It was also pointed out that, the accused was found hiding on the terrace of the two storied house and was found on 21/2/2012. There are reasons to doubts that the accused was concealed in the house by the petitioners herein.

6. Learned counsel for the petitioners vehemently contended that, the court below, merely based on surmises and assumptions issued notice to the petitioners herein invoking section 319 Cr.P.C. and issued summons. It was contended that, there was absolutely no reliable and credible materials on record to conclude that the petitioners had committed offences alleged against them. The learned Additional Director General of Prosecution also found it extremely difficult to sustain the impugned order on merits. Additional statement has been filed by the Investigating Officer answering each and every finding of the court below.

7. Regarding the time of incident, the explanation is that the incident happened at 8.45 p.m. However, the time of incident was wrongly mentioned by the first informant as 8.15 p.m.. The mistake was corrected by the first informant in his additional statement recorded on next day. Further, the victim was taken to hospital, which is 6 kms. away, at 9.15 p.m. Considering the time of incident as 8.45 p.m., there is no delay also.

8. It is pertinent to note that, even though PW1 was present in the house at the time of the incident, she did not intimate the name of the accused to the police on the same day, though Jisha had revealed about the identity of the accused. PW1 admitted that she did not inform the police about the accused on 19th. This was explained by the learned Additional Director General of Prosecution that FIR was got registered at 12.15 a.m. on 20/2/2012. The statement 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 had revealed about the accused, orally. This was not clarified by the Public Prosecutor also. Hence, there was nothing suspicious in the version of PW1 to doubt that she concealed the name of the accused.

9. The accused was found on the terrace of the house in the condition of utter starvation and tired. According to the prosecution version, after commission of offence, the accused escaped with blood stained cloth. However, he found that, his train ticket, money and dresses were kept in his bag at the house. So he had to return. By the time, the people had reached the house and he hid on the terrace. He could not escape from there till he was caught. The tracker dog which reached the house did not locate the accused in the house. Evidently, if the petitioners herein had hidden the first accused in their house, definitely at the time of search of the house by the police, he would have been caught. Further, if he was hid by the petitioners herein, definitely he would not have been in a condition of starvation. Further he was intercepted with blood stained dress.

10. A perusal of the impugned order clearly shows that, the court below has proceeded without requisite materials. The materials on record do not appear to indicate that the petitioners herein have committed offences. It is also to be noted that, PW1 and PW3 are the crucial witnesses. Arraying them as accused may virtually affect the prosecution case.

11. Having considered the above facts, I am inclined to quash Annexure A1 order leaving it open for the court below to proceed with the trial and to pass final judgment in accordance with law, untrammeled by any of the observations made above. It is made clear that, nothing will preclude the court below from proceeding against the petitioners herein,if definite cogent materials are brought out in the course of trial. Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to Annexure A1 stand quashed. Sd/- SUNIL THOMAS Judge dpk /true copy/ PS to Judge.