Rajesh N Pai vs State Of Kerala

G. Girish, J

Accused Nos.1 and 2 in C.C.No.95/2020 on the files of the Additional Chief Judicial Magistrate’s Court, Ernakulam, who are husband and wife, have filed this petition under Section 482 Cr.P.C to quash the proceedings in the said case. The charge against the petitioners is that they committed the offence under Section 323 I.P.C read with Section 34 I.P.C and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, in connection with the physical torture and mental cruelty meted out to the 8½ year old son born to the second accused in her prior marriage.

As per the prosecution case, CW2, the child victim of the crime involved, had undergone physical and mental torture of the petitioners during the period from 03.05.2019 to 10.05.2019 at the residence of the petitioners. The first petitioner allegedly had beaten the child on various parts of his body and squeezed his ears, and the second petitioner remained as mute spectator to the above assault committed upon her son. It is also stated that the child suffered severe mental torture at the hands of the petitioners. The aforesaid criminal acts committed by the petitioners are said to have been disclosed by the child to the second respondent (CW1), his biological father, at the time when the petitioners had left the child at the house of CW1, when they went for honeymoon trip.

Heard the learned counsel for the petitioners, the learned counsel for the second respondent and the learned Public Prosecutor representing the State of Kerala.

It is argued by the learned counsel for the petitioners that a false case has been foisted against the petitioners by the second respondent due to personal vendetta in connection with the cases pending before the family court between him and the second petitioner. It is further argued that the second respondent had made the child a pawn to wreak vengeance upon the second petitioner. According to the learned counsel for the petitioners, the statement of the child procured by the investigating agency is totally unbelievable since it is the translated version of the statement given by the child in Konkani language, and that the person who translated the above statement is a close associate of the second respondent. It is also pointed out that the statement of the second respondent before the investigating agency is also inconsistent insofar as it relates to the revelation said to have been made by the child about the alleged physical and mental torture perpetrated by the petitioners. The learned counsel for the petitioners would also contend that the nature of the language and the way in which the petitioners are referred in the statement of the child would go to show that it is the creation of the second respondent who nurtured enmity with the petitioners.

The learned counsel for the second respondent argued that there is absolutely no scope of making a meticulous analysis of the statements of witnesses in the final report, in a proceedings like this. It is also submitted by the learned counsel for the second respondent that the accusations levelled by the child against the petitioners, have been reiterated by him in the statement given before the Family Court. Thus, it is contended that the criminal prosecution against the petitioners cannot be terminated by drawing presumptions on the basis of the wordings and the nature of the language used in the statements given by the child, and the second respondent in the case.

It could be seen from the final report filed by the investigating agency that the victim child has stated before the Investigating Officer in clear and consistent terms about the physical and mental torture meted out to him by the petitioners, which would clearly constitute the offence under Section 323 I.P.C and Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2015. The above statement cannot be discarded for the reason that it is the translated version from Konkani language to Malayalam, and that the translator was not a person identified by the police. As rightly pointed out by the learned counsel for the second respondent, the statements given by the child before the Family Court, which are marked as Annexure R-2(f) and Annexure R-2(g), also contain the same allegations which he had raised in the statement given to the police. At any rate, it is not possible to evaluate the credibility of the aforesaid statements in a proceedings under Section 482 Cr.P.C. Likewise, the inconsistency which the petitioners attribute to the statement of the second respondent to the police, cannot be subjected to meticulous scrutiny by this Court in a proceedings like this. The acceptability of the statements of the prosecution witnesses are to be tested in the trial to be conducted before the learned Magistrate. It is not possible to wind up the criminal prosecution initiated against the petitioners, since the final report filed in this case and the accompanying records would prima facie disclose the commission of the offence alleged against the petitioners. Nothing could be brought out by the petitioners to show that the prosecution in this case is the outcome of abuse of process of court. It is also not possible to say that the quashment of the proceedings is necessary to secure the ends of justice. Therefore, the prayer of the petitioners in this petition is prima facie unsustainable.

In the result, the petition is hereby dismissed. It is made clear that the Trial Court shall decide the case before it, untrammelled by the observations made by this Court in this order.