IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 8TH DAY OF MARCH 2010/17TH PHALGUNA,1931 Crl.MC.No. 2802 of 2007 --------------------------- CC.337/2005 of J.M.F.C.-II,NEYYATTINKARA PETITIONERS/ACCUSED 1 & 2: --------------------------- 1. P.GOPAKUMARAN NAIR, S/O. PARAMESWARAN NAIR, MANGLAVIL VEEDU, VENGANOOR PO VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. VENUGOPALAN NAIR, GOPIKA, VENGANOOR PO, VIZHINJAM VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.SREEKUMAR STATE &COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N. UNNIKRISHNAN NAIR, S/O. NARAYANA PILLAI, KALA SADANAM, VENGANOOR P.O. VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA BY ADV. SRI.S.V.RAJAN BY ADV. SRI.S.ARUN RAJ THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------ Crl.M.C.No. 2802 of 2007 ------------------------------------ Dated this the 8 th day of March, 2010 ORDER This petition is filed to quash proceedings initiated against petitioners on the basis of Annexure-A complaint. Petitioners are accused nos.1 and 2. 2. As per allegations in the complaint second respondent herein is an ex-service man. There is some dispute in respect of a property regarding the boundary. First and second accused wanted the compound wall to be constructed, for which complainant was not prepared. The complainant was therefore, threatened by accused on 4.5.2002 at about 7.15 p.m. 3. While second respondent was walking along the Neelakesi road near the lower primary school, a person called him as “Anna” and when he turned back, first accused and goondas who were present along with him attacked defacto complainant. The first accused beat several times with a stick and he sustained serious injuries including a fracture below the elbow. Goondas also attacked him, and he sustained injuries on several parts of the body. Crl.M.C.No. 2802 of 2007 2 4. The acts were committed to the intention to kill the defacto complainant. The incident was immediately reported to the police station on the same day. The police registered FIR as crime No.101/2002. The defacto complainant was went to Medical College hospital on the same day and he was put on plaster cast. After 21 days the plaster was removed. Because of influence of first accused, no proper investigation was conducted on the complaint made by him to police and the case was referred. First and second accused conspired to commit the offences and pursuant to the conspiracy first accused and goondas had assaulted the defacto complainant. The accused thus, committed offence under Sections “120B, 116, 148, 149, 324, 326 and 506 (ii) of IPC”. 5. Learned counsel for petitioners submitted that there are lot of contradictions between private complaint Annexure-A and First Information Statement given by defacto complainant in respect of the very same incident to police. The First Information Statement is Annexure-C as per which, defacto complainant has not stated anything against first accused regarding his direct involvement in the offence. It will appear Crl.M.C.No. 2802 of 2007 3 from a reading of Annexure-C that at the instance of first accused some goondas had attacked him and he was caused to be assaulted by goondas. But in the present complaint specific allegation is made that first accused has beaten him with a stick and caused injuries etc. In the light of the contradictions themselves the complaint may be quashed, it is submitted. 6. Learned counsel for respondent/defacto complainant argued that it cannot be said that there are contradictions in the First Information Statement and Annexure-A complaint. According to him, police has wrongly referred the case under the influence of first accused who was a Sub Inspector at the time of offence and that is why complainant has filed a private complaint. Petitioners have not made out any ground to get the complaint quashed, it is submitted. 7. On hearing both sides and on going through Annexure-A to C, I find that there is merit in the arguments advanced by petitioners' counsel. It will appear from the allegations made in Annexure-A to C that first accused was personally known to the defacto complainant and he threatened the defacto complainant in respect of a property dispute involving first accused's sister Crl.M.C.No. 2802 of 2007 4 and the defacto complainant's niece. But in the First Information Statement given by petitioner as Annexure-C which is a signed statement he has not mentioned that he was attacked by first accused. 8. It is true that he made allegations that he was assaulted by certain people. But he has no case that it was first accused, who had beaten him. On the other hand in Annexure-C, the case is that petitioner caused him to be assaulted by goondas because of the property dispute. The defacto complainant has no case that Annexure-C First Information Statement is a forged one or that no such statement given by him to police. 9. On the other hand defacto complainant has a definite case that after the incident he gave a statement to the Vizhinjam Police Station. A reading of Annexure-C would show that there is absolutely no whisper about the first accused's assault on defacto complainant on the date of occurrence. In Annexure-A complaint, specific allegations are made against first accused that he himself assaulted him. There is no specific allegation against second accused also. Crl.M.C.No. 2802 of 2007 5 10. It is not mentioned anywhere in Annexure-A or C that second accused assaulted the defacto complainant in any manner. There is only a vague allegation about second accused that he had conspired with first accused and that defacto complainant was assaulted by first accused and certain goondas who are identifiable by sight. In the light of the patent discrepancies and contradictions in Annexure-A and C, I find that it will amount to an abuse of process of court, if petitioners are prosecuted on the basis of Annexure-A complaint. Hence the following order is passed: 1) Annexure-A complaint is hereby quashed. 2) Petitioners shall not be proceeded against, on the basis of Annexure-A. Petition is allowed. K.HEMA, JUDGE cms