IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 Crl.L.P..No. 994 of 2008() -------------------------- CC.1341/2005 of J.M.F.C.-II,KOTTARAKKARA .................... : PETITIONER/COMPLAINAN T ---------------------------------------- SARADA, D/O.KURUMBA, CHARUVILA VEEDU, AAKAL MURI, VELINALLOOR VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENTS: ACCUSED & STATE ---------------------------- 1. ARIFA BEEVI, W/O.SHANSUDHEEN, KIZHAKKUMKARA PUTHEN VEEDU, AAKAL MURI, VELINALLOOR VILLAGE, KOTTARAKARA, KOLLAM DISTRICT. 2. SAIFUNIZA, D/O.ARIFA BEEVI, KIZHAKKUMKARA PUTHEN VEEDU, AAKKAL MURI, VELINALLOOR VILLAGE, KOTTARAKARA, KOLLAM DISTRICT. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.L.P. No.994 of 2008 ------------------------------------- Dated this the 4th day of August, 2008 ORDER This application for special leave under Section 378(4) Cr.P.C is filed by the complainant, a woman, who, before the court below in a private complaint, had alleged that the accused persons had committed the offences punishable under Sections 341 and 323 r/w 34 I.P.C against her. The crux of the allegations is that on account of prior animosity and in furtherance of their common intention, accused persons, two ladies, had beaten the complainant at 1.30 p.m on 03.07.07. The 1st accused had allegedly indulged in the specific overt act of beating, whereas the 3rd accused had allegedly pushed the complainant down. 2. Pws 1 to 4 were examined and Ext.P1 wound certificate marked. PW2 is the victim/complainant. PW3 is her sister. PW1 claimed to be an independent witness who had witnessed the occurrence. PW4 is the doctor who issued Ext.P1 wound certificate after the examination of PW2 shortly after the incident. The accused took up a defence of total denial. No defence evidence was adduced. Crl.L.P. No.994 of 2008 2 3. The court below on an anxious consideration of all the relevant inputs, came to the conclusion that it was not safe to place reliance on the oral evidence of Pws 1 to 3. 3 reasons appear to have weighed with the court. First of all the court noted that the witnesses were interested witnesses and disinterested testimony which could have been made available had not been made available. The court further found that there was unjustifiable long delay between the date of the incident and the date of lodging of the complaint, which suggests want of bona fides in the complaint. Thirdly and finally the learned Magistrate took note of the fact that the oral evidence of Pws 1 to 3 is not supported convincingly by the medical certificate Ext.P1, issued by PW4. The court took note of the fact that in Ext.P1, no injuries are seen suffered by the victim though the victim had a specific case that she had suffered serious injuries. It is on these grounds that the learned Magistrate took the view that the complainant has not succeeded in proving her case. 4. The petitioner has come to this Court seeking leave. Not a meticulous consideration on merits of the challenge raised in the appeal, but only a prima facie evaluation of the sustainability of the challenge need be undertaken by this Court Crl.L.P. No.994 of 2008 3 in a petition for grant of leave under Section 378(4) Cr.P.C. But this Court is bound to consider the prayer for grant of leave conscious of the nature, quality and contours of the jurisdiction of this Court while considering an appeal against acquittal. Unless there is a reasonable possibility of success in the appeal and reasonable necessity to interfere with findings of fact recorded by the trial court, the jurisdiction in appeal against acquittal shall not be lightly invoked. 5. The learned counsel for the petitioner has made available to me the depositions of Pws 1 to 4 as also Ext.P1. Having anxiously evaluated the nature of the challenge, I am satisfied that there is no worthwhile challenge raised which can persuade this Court to interfere with the challenge raised in appeal. It is not necessary for me to consider the challenge in appeal. But I must say that I am satisfied that there is no reasonable chance whatsoever of success in this appeal and in these circumstances it is not necessary to grant the requisite leave under Section 378(4) Cr.P.C. 6. This Leave Petition is accordingly dismissed. (R.BASANT, JUDGE) rtr/- Crl.L.P. No.994 of 2008 4