Allowed

Thayyullathil Ratheesan v. Moothattil Sreedharan

Kerala HC13 Jul 2022Crl.MC/799/2018

Case brief

AI extract

What is this about?

The Court quashed an order recording sufficient ground to proceed for trial regarding murder under Section 302 IPC. It held that the Magistrate committed illegality by not recording reasons and failing to examine doctors who conducted post-mortem, despite earlier findings that no offence under Section 302 was made out.

What did the court decide?

Quashment of Annexure V order recording sufficient ground to proceed for trial for offence under Section 302 IPC.

Thayyullathil Ratheesan Vs Moothattil Sreedharan — Criminal Trial and Appeal | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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WEDNESDAY, THE 13^TH DAY OF JULY 2022 / 22ND ASHADHA, 1944

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CRL.MC NO. 799 OF 2018

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AGAINST THE ORDER/JUDGMENT IN CP 56/2017 OF JUDICIAL

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MAGISTRATE OF FIRST CLASS, PAYYOLI

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PETITIONERS/ACCUSED Nos. 2 TO 7:

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1 THAYYULLATHIL RATHEESAN

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AGED 59 YEARS AGED 59 YEARS, S/O.KELAPPAN, RAJASREE, ERAMANGALAM P.O., KOKKALLUR, BALUSSERY,

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KOZHIKODE DISTRICT.

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2 THAYYULLATHIL REETHA

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AGED 49 YEARS, W/O.RATHEESAN, RAJASREE, ERAMANGALAM P.O., KOKKALLUR, BALUSSERY, KOZHIKODE DISTRICT.

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3 THAYYULLATHIL VIJAYAN

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AGED 55 YEARS, S/O.KELAPPAN, NARAYANI BHAVAN, THRIKOTTUR AMSOM, PALOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.

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4 THAYYULLATHIL BINDU

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AGED 45 YEARS, W/O.VIJAYAN, NARAYANI BHAVAN, THRIKOTTUR AMSOM, PALOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.

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5 MUKUNDAN AGED 61 YEARS, S/O.KUNHIRAMAN, AMRITHAPURI HOUSE, KURUVANGHOD, KOYILANDY TALUK, KOZHIKODE DISTRICT.

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6 VINODINI AGED 53 YEARS, W/O.MUKUNDAN, AMRITHAPURI HOUSE, KURUVANGHOD, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.P.V.KUNHIKRISHNAN

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SRI.P.V.ANOOP

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RESPONDENTS/COMPLAINANT & STATE:

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Crl. M.C. No. 799 of 2018

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1 MOOTHATTIL SREEDHARAN AGED 58 YEARS, S/O.KUNHIRAMAN, MOODADI VILLAGE, VELLARAKKAD DESOM, MOODADI NORTH P.O., KOYILANDI, KOZHIKODE DISTRICT, PIN-

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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SRI SANGEETHA RAJ-PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl. M.C. No. 799 of 2018

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ORDER

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This Crl.M.C. has been filed to quash Annexure V order

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passed by the Judicial First Class Magistrate's Court, Payyoli (for short, “the Court below”).

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A crime was registered by the Payyoli police as Crime No. 16/2007 for the unnatural death of one Kalyani. The police, after investigation found that no offence was made out, and refer report was filed. Thereafter, the 1^st respondent herein, who is the brother of the deceased Kalyani, filed a private complaint at the Court below against eight persons. Annexure B is the private complaint. The petitioners herein are arrayed as the accused Nos. 2 to 7. The 1^st and 8^th accused are no more. The deceased 1^st accused is the husband of the deceased Kalyani. The remaining accused 2 to 8 are children and in-laws.

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The allegation in the complaint was that, during the lifetime of Kalyani, the petitioners, subjected her to cruelty, both

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Crl. M.C. No. 799 of 2018

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physically and mentally and the petitioners with common intention committed murder of Kalyani and also caused disappearance of the evidence of the offence. The offences alleged in the private complaint are punishable under Sections 120(b), 302, 201 read with 149 of the IPC. Annexure B is the copy of the private complaint. The Court below after conducting an inquiry under Section 202 of the Cr.P.C. took the complaint on file as C.C No. 1089/2014 for the offences punishable under Section 498A read with 34 of the IPC against the petitioners as well as the deceased accused Nos. 1 and 8 as per Annexure P order. It is specifically stated in the said order that, there are no materials to attract the offence punishable under Section 302 of the IPC against the accused persons.

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Thereafter, the petitioners appeared at the Court below.

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The Court below proceeded under Chapter-XIX of the Cr.P.C. and recorded the evidence produced by the prosecution under Section 244 of the Cr.P.C. Five witnesses were examined as PWs 1 to 5. Based on the said evidence, the learned Magistrate found that there

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Crl. M.C. No. 799 of 2018

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is sufficient ground to proceed against the petitioners for the offence punishable under Section 302 of the IPC as well. Accordingly, the case was renumbered as C.P. No. 56/2017 as per Annexure V order. The said order is under challenge in this Crl.M.C.

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I have heard the learned counsel for the petitioners and

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the learned Public Prosecutor. Even though notice has been served to the 1^st respondent, there is no appearance.

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The records would show that during the inquiry conducted by the learned Magistrate under Section 202 of the Cr.P.C., as many as twelve witnesses were examined. The sworn statement of the de facto complainant was also recorded. The postmortem certificate was marked through CW9, the head of the Department of Forensic Medicine, Medical College, Calicut. The re-postmortem of the body of the deceased was also conducted and the statement of the said Doctor was recorded as CW12. Postmortem certificate shows that death was due to drowning. CW12, categorically stated that the death was due to drowning.

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Crl. M.C. No. 799 of 2018

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After perusal of the statement of twelve witnesses, the Court below in Annexure P order, categorically found that no offence under Section 302 was made out. The complaint was taken only for the offence punishable under Section 498A read with 34 of the IPC. Thereafter, in the inquiry conducted under Section 244 of the Cr.P.C., the Court below recorded the evidence of five witnesses in chief as PWs 1 to 5. A reading of the evidence adduced by PWs 1 to 5 in the inquiry under Section 244 of the Cr.P.C. will show that the same evidence was given by them, in the inquiry under Section 202 of the Cr.P.C. Even though, in Annexure P order, the Court below found that their statement will not make an offence under Section 302 of the IPC in Annexure V order, the Court below based on the same set of evidence adduced by PWs 1 to 5 found that there is sufficient ground to proceed against the petitioners for the offence punishable under Section 302 of the IPC. That apart, at the stage of inquiry under Section 244 of the Cr.P.C., the Doctors who conducted postmortem and re-postmortem were not examined also. Without

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any further materials, the Court below in Annexure V order found that offence under Section 302 of the IPC was also made out. No reason has been given by the Court below to include the offence under Section 302 of the IPC. Annexure V order is not a speaking one. In these circumstances, I am of the view that the Court below committed illegality in finding that there is sufficient ground to proceed against the accused for the offence under Section 302 of the IPC. Accordingly, Annexure V order is hereby quashed.

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Crl.M.C. is allowed as above.

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Sd/-

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DR.KAUSER EDAPPAGATH, JUDGE

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RMV

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Crl. M.C. No. 799 of 2018

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APPENDIX OF CRL.MC 799/2018

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PETITIONE	R ANNEX	URES
ANNEXURE	A-	TRUE COPY OF THE OF PAYOLI POLICE.	FIR INC RIME NO.16/2007
ANNEXURE	B-	TRUE COPY OF THE 1ST RESPONDENT DA JUDICIAL FIRST CL PAYOLI.	COMPLAINT FILED BY THE TED 25/06/2007 BEFORE THE ASS MAGISTRATE COURT,
ANNEXURE	C-	TRUE COPY OF THE 1ST RESPONDENT DA C.M.P.NO.851/2007 FIRST CLASS MAGIS	SWORN STATEMENT OF THE TED 08/04/2008 IN BEFORE THE JUDICIAL TRATE COURT, PAYOLI.
ANNEXURE	D-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW1 DATED 06/06/2008.
ANNEXURE	E-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW2 DATED 06/06/2008.
ANNEXURE	F-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW3 DATED 06/06/2008.
ANNEXURE	G-	TRUE COPY OF THE SECTION 202 CR.P. OF CW4 DATED 06/0	STATEMENT RECORDED UNDER C. IN C.M.P.NO.851/2007 6/2008.
ANNEXURE	H-	TRUE COPY OF THE SECTION 202 CR.P. OF CW5 DATED 06/0	STATEMENT RECORDED UNDER C. IN C.M.P.NO.851/2007 6/2008.
ANNEXURE	I-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW6 DATED 02/08/2008.
ANNEXURE	J-	CERTIFIED COPY OF UNDER SECTION 202	THE STATEMENT RECORDED CR.P.C. IN
		C.M.P.NO.851/2007	OF CW7 DATED 02/08/2008.
ANNEXURE	K-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW8 DATED 25/10/2008.
ANNEXURE	L-	CERTIFIED COPY OF UNDER SECTION 202 C.M.P.NO.851/2007	THE STATEMENT RECORDED CR.P.C. IN OF CW9 DATED 20/12/2008.

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ANNEXURE M-	CERTIFIED COPY OF THE STATEMENT RECORDED UNDER SECTION 202 CR.P.C. IN C.M.P.NO.851/2007 OF CW10 DATED 28/02/2009.
ANNEXURE N-	TRUE COPY OF THE STATEMENT RECORDED UNDER SECTION 202 CR.P.C. IN C.M.P.NO.851/2007 OF CW11 DATED 28/03/2009.
ANNEXURE O-	TRUE COPY OF THE STATEMENT RECORDED UNDER SECTION 202 CR.P.C. IN C.M.P.NO.851/2007 OF CW12 DATED 20/03/2014.
ANNEXURE P-	TRUE COPY OF THE ORDER DATED 27/12/2014 IN C.M.P.NO.851/2007 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYOLI.
ANNEXURE Q-	TRUE COPY OF THE DEPOSITION OF PW1 DATED 10/03/2016.
ANNEXURE R-	TRUE COPY OF THE DEPOSITION OF PW2 DATED 10/03/2016.
ANNEXURE S-	TRUE COPY OF THE DEPOSITION OF PW3 DATED 10/03/2016.
ANNEXURE T-	TRUE COPY OF THE DEPOSITION OF PW4 DATED 02/04/2016.
ANNEXURE U-	TRUE COPY OF THE DEPOSITION OF PW5 DATED 18/11/2016.
ANNEXURE V-	TRUE COPY OF THE ORDER DATED 19/10/2017 IN C.P.NO.56/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYOLI.

Thayyullathil Ratheesan v. Moothattil Sreedharan

Case brief

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Thayyullathil Ratheesan v. Moothattil Sreedharan

Case brief

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