Calcutta High Court (Appellete Side)
For The vs State Of Kerala on 17 January, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1 7.1.2014
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p.b.
C.R.R. No.4241 of 2013 Mrs. Chandreyi Alam.
......For the Petitioner.
Ms. Rituparna De.
....For the State.
The petitioner accused persons have challenged the order no.15 dated 30th September, 2013 passed by the ld. trial court in S.C. Case No.180 June, 2012 u/s.354/379/323/308/506/34 IPC.
Mrs. Alam appearing for the petitioner accused persons submits that out of previous grudge and enmity, one Somarani Pradhan lodged a false complaint in the court of learned ACJM, Contai, Purba Medinipore u/s.156(3) Cr.P.C. that too belatedly. She submits that investigation was entrusted to CID in terms of an order of this Court, and that after investigation I.O. submitted charge sheet u/s.354/379/323/308/506/34 IPC. It is submitted that the alleged stealing away of necklace from the person of the defacto complainant was not proved even during investigation as no said article was ever recovered from the possession of any of the accused persons. It is further submitted that no ingredients of Section 308 IPC was present. It is further submitted that even the injury report collected by I.O. during investigation belied the allegation of attempt to commit culpable homicide. It is submitted that the ld. trial court substantially erred in law by rejecting the application for discharge filed by the present 2 petitioner accused persons by the order impugned. In support of her contention, she refers a case law reported in (2010) 2 SCC 398 (P. Vijayan Vs. State of Kerala & Anr.) to impress upon this Court that if two views are possible and one of them gives rise suspicion only, as distinguished from grave suspicion as to the guilt of the accused, the trial court will be empowered to discharge the accused.
Ms. De appearing for the O.P. State submits by producing C.D. that the victim defacto complainant as well as her husband and other witness stated before I.O. during the examination u/s.161 Cr.P.C. that the petitioner accused persons pressed the throat, chest and stomach of the defacto complainant with the intention of killing. She further submits that medical report shows severe neck pain and other injuries on the person of the victim defacto complainant and her husband. She submits that before trial it cannot be said that the ingredients of offences u/s.379 and/or u/s.308 were not present. Accordingly, she prays for dismissal of this revisional application.
There is no dispute that admittedly there was enmity between the parties. However, the enmity cuts in both ways. For enmity one may file a false complaint. Again for enmity one may be assaulted. It appears that after the incidence the defacto complainant lodged G.D. in the local P.S. but no investigation was initiated for which the defacto complainant had to approach this Court for necessary direction. It is also an admitted fact that as per direction of this Court in CRR 3439/2010 there was investigation by CID. It appears that after completion of the investigation CID has submitted a charge sheet u/s.354/379/323/308/506/34 IPC.
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It is true that in the injury report of the victim defacto complainant there was only mention of severe neck pain along with some other injuries on other parts of the body. But it cannot be said that if a person is pressed on his neck with the intention of causing murder then he will always receive severe marks of injury on neck. So absence of any mark of injury on neck cannot ipso facto throw away the allegation of the defacto complainant and her witnesses on that score.
In view of the allegations made in the complaint coupled with statement of witnesses and the medical report it cannot be said that there was no grave suspicion on the point of alleged commission of offence u/s.308 IPC.
There is a specific allegation of theft of a necklace. It is true that said property could not be recovered from the possession of the accused persons during investigation. But that fact by itself cannot throw away the allegation of theft if it can be proved by other cogent evidence.
In view of the submissions made by the ld. advocates for the parties and considering the materials lying in the CD and keeping in mind the ratio of the case law as referred to above, I do not find any patent infirmity in the order impugned calling for interference by this Court at this stage. Accordingly, the application is hereby dismissed on contest.
However, I make it clear that the observations made herein are merely tentative in nature for the purpose of disposal of this application and that the ld. court below should not be influenced by the same at any stage of the trial. Return the C.D. 4 Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Tarun Kumar Gupta, J.)