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2021 Supreme(Online)(KER) 2812
HIGH COURT OF KERALA
M.R.ANITHA, J
JANEESH – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl./6808/2021
A.RAJASIMHAN, VYKHARI.K.U
The judgment underscores the importance of prima facie evidence in determining bail applications in cases of domestic violence and IPC offences.
Headnote:
Criminal Law - Domestic Violence - IPC Sections [498-A, 323, 294(b), 506, 308, 341] - The court analyzed the allegations of physical and mental torture against the first and second petitioners, emphasizing the prima facie evidence against the first petitioner while allowing bail for the second petitioner.
Fact of the Case:
The petitioners are accused of physically and mentally torturing the defacto complainant post-marriage and have been charged under various IPC sections following specific instances of assault on the complainant, including threats and physical violence.
Finding of the Court:
The court found that there was sufficient prima facie evidence against the first petitioner to deny pre-arrest bail, while considering bail for the second petitioner due to lack of substantial evidence against her.
Issues: The issue revolved around whether the allegations of torturous conduct warranted the grant of pre-arrest bail for both petitioners.
Ratio Decidendi: The court held that the medical evidence and previous allegations provided sufficient grounds to deny bail to the first petitioner, while the case against the second petitioner lacked sufficient incriminating materials.
Final Decision: Bail granted to the second petitioner, and denied to the first petitioner.
O R D E R
The petitioners are accused No.1 & 2 in crime No.596/2021 of Kurathikadu Police Station, Alappuzha, which is registered under Sections 341 , 323, 294(b), 506, 498-A and 308 r/w.34 IPC .
2. It is alleged that 1st petitioner/1st accused married the defacto complainant on 03.02.2014 and from the date of marriage onwards she had been subjected to physical and mental torture at the instance of the petitioners. On 28.8.2021 at 10.00 a.m the first accused hit at the cheek of defacto complainant asking to go out and also attacked her asking about the gold ornaments. When she replied that gold ornaments have been taken for the expenses of his house, he abused the mother of the defacto complainant over phone and also intimidated to do away with her. Again he hit at the mouth and hand muscles of the defacto complainant thereby caused contusion. When she went out of the house out of the attack, second accused alleged to have caught hold of her neck and wrongfully restrained her and when she fell down the accused again manhandled her, thereby accused committed the offence aforementioned.
3. According to the learned counsel for the petitioners, this case has been falsely foisted against them and the first petitioner is an NRI and he had just returned to the native place due to loss of his job. Then he found that his wife has developed an extra marital relationship with an autorickshaw driver and they pledged 32 sovereigns of gold ornaments and first petitioner's chain weighing 49 gms in Pooja Finance, Kurathikadu and replaced the gold with spurious items and auto driver purchased a new auto using that money, which led to an outburst in the family and the petitioners never attempted to commit any offence.
4. The learned Public Prosecutor produced report filed by the SHO along with copy of FIR FIS. The Report would show that subsequently on investigation it has been revealed that the offence u/s.308 IPC has also revealed to have been committed and reported that it has already been sent to the court.
5. The learned counsel for the petitioners on the other hand would contend that ASI of the concerned Station has got relation with the autorickshaw driver with whom the defacto complainant alleged to have got some illicit relation. However petitioners could not produce any material to prove the allegation.
6. Respondents have produced medical certificate dated
28.8.2021 which would show that she had been examined by the doctor with the alleged history of assault by the husband and one contusion on upper orbit and another contusion on upper back are the injuries noted and the abrasion on lower lip is also noted. X-ray was also taken and ortho consultation was also advised as per the medical records. The learned counsel for the petitioners would contend that the wound certificate would not prima facie show anything to attract the offence u/s. 308 IPC .
7. On going through the FIS it appears that on previous occasion also there is allegation of torture at the hands of the first petitioner. There is also allegation that she was physically and mentally tortured stating the gold and money brought by her are less. FIS would also go to show that after the initial treatment from Mavelikkara Hospital, she was shifted to Medical Mission Hospital, Panthalam. Body-note attached to the FIS also show that she had been assaulted at her cheek, ear, muscle portion of both hands, on her back, below left eye etc. Second petitioner is the mother of the first petitioner, who is aged 60 years and the allegation as per the FIR against her is that she caught hold of the neck of the defacto complainant and wrongfully restrained her. Taking into account the facts and circumstances of the case, I am of the view that application for bail can be considered with respect to the 2nd petitioner. But in view of the medical certificate and the specific allegation in the FIS and the report filed by the SHO, there are prima facie materials to attract the offence as alleged agai
