Noushad Thekkayil vs State Of Kerala

A. Badharudeen, J

Accused Nos.1 and 2 in Crime No.786/2019 of Kunnamangalam Police Station, Kozhikode seek the relief of quashment of the above said Crime where the prosecution alleges commission of offences punishable under Sections 448, 323, 354, 427 read with 34 of the Indian Penal Code.

Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the records produced by the learned counsel for the petitioners and the final report in the present crime.

As per the final report, the prosecution allegation is that, in between 20:30 hours and 21:30 hours, the accused herein trespassed upon the residence of the defacto complainant due to animosity arose out of an occurrence whereby the 2nd respondent was beaten by the brother of the husband of the defacto complainant and broken the glasses of windows of the house. Further, they attacked the defacto complainant when she was alone in the house and they caught hold on the chest of the defacto complainant with intention to outrage her modesty. This is the base on which the prosecution alleges commission of the above offences.

While canvassing quashment of the present crime, the learned counsel for the petitioner argued that this crime was registered as a retaliatory measure as against Crime No.785/2019 of Kunnamangalam Police Station, where the husband of the defacto complainant herein got arrayed as accused alleging commission of offences under Sections 448, 323, 354 and 506 of the Indian Penal Code. It is pointed out further that prior to that, Crime No.781/2019 also registered against the relatives of the defacto complainant herein, alleging commission of offence punishable under Sections 143, 147, 148, 341, 323, 324 read with 149 of the Indian Penal Code. The 1st petitioner herein is a social activist. When questioned about the delay in registering Crime No.781/2019, the Police registered FIR vide Crime No.782/2019 of Kunnamangalam Police Station alleging commission of offence punishable under Section 117(e) of the Kerala Police Act. According to the learned counsel for the petitioner, as per the FIR in Crime No.782/2019, registration of the said crime was at 20:10 hours on 16.12.2019 and as per the allegations in FIR of the present crime, the time of occurrence is in between 07:30 and 08:00 (19:30 – 20:00). Therefore the allegations as against the 1st accused is absolutely false because he alleged to have committed offences in the present crime when his presence before the police station is not at all believable.

Accordingly, the learned counsel for the petitioners pressed for quashment proceedings on the submission that the entire case is foisted.

The learned Public Prosecutor submitted that though the time of occurrence in the present FIR is shown as 19:30 - 20:30 hours, the correct time of occurrence is stated in the final report, and as per which the time of occurrence in the present crime is in between 20:30 – 21:30 hours. Therefore, the anomaly regarding the time of occurrence is a matter of evidence for which trial is necessary.

While summarising the matter in dispute, two crimes registered prior to registration of this crime. That does not mean that the occurrence in the present crime is false for the said reason alone. The learned counsel for the petitioner banks upon the time of occurrence stated in the FIR as 19:30 – 20:30 hours on contending that, during this time, the 1st accused was at the Police Station in connection with Crime No.782/2019. But the time of occurrence as per the final report is in between 20:30 – 21:30 hours. In fact, this aspect is a matter of evidence. Therefore, merely for the said anomaly, the quashment sought for is not liable to be granted, where the prosecution allegations make a prima facie case, warranting trial of the matter, permitting the prosecution to tender evidence, in support of the allegations. As such, the quashment sought for is liable to fail.

Therefore, this petition stands dismissed.