Abdul Afthaf v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **Crl.MC.No. 2647 of 2016 ()** ## **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 587/2015 of III ADDL.DISTRICT COURT, PALAKKAD DATED CRIME NO. 683/2004 OF MANNARKKAD POLICE STATION , PALAKKAD** **PETITIONER(S):** **-------------** **ABDUL AFTHAF, S/O. SAITHU MUHAMMED, KULAKKADAN VEEDU, KUNTHIPUZHA, MANNARKAD TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** **RESPONDENT(S):** **--------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R BY PUBLIC PROSECUTOR, SRI.T.R.RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CONTD...** **:2:** **Crl.MC.No. 2647 of 2016 () ---------------------------** ## **PETITIONER'S EXHIBITS :** **ANNEXURE A1 - CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT AND FIRST IFORMATION REPORT IN CRIME NO. 683 OF 2004, MANNARKKAD POLICE STATION** **ANNEXURE A2 - CERTIFIED COPY OF FINAL REPORT IN CRIME NO. 683 OF 2004 SUBMITTED BY POLICE BEFORE JUDICIAL FIRST CLASS MAGISTRATE, MANNARKKAD IN C.P.NO. 130/ 2007** **ANNEXURE A3 - CERTIFIED COPY OF THE DEPOSITION DATED 14.3.2014 OF PW8- BABY IN S.C.NO. 3/2010, ADDITIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD.** **ANNEXURE-A4 - CERTIFIED COPY OF THE DEPOSITION DATED 04.3.2015 OF PP10-SREEKUMAR IN S.C.NO. 3/2010, ADDITIIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD.** **ANNEXURE A5 - CERTIFIED COPY OF THE DEPOSITION DATED 4.3.2015 OF PW11-NAGARAJAN IN S.C.NO.3/2010, ADDITIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD** **ANNEXURE-A6 - CERTIFIED COPY OF THE DEPOSITIION DATED 4.3.2015 OF PW12-BINOJ IN S.C. NO. 3/2010, ADDITIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD.** **ANNEXURE A7 - CERTIFIED COPY OF THE DEPOSITION DATED 4.3.2015 OF PW13- SABU IN S.C.NO.3/2010, ADDITIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD** **ANNEXURE A8 - CERTIFIED COPY OF THE DEPOSITION DATED 27.3.2015 OF PW14- SATHEESH IN S.C.NO. 3./2010, ADDITIONAL DISTRICT & SESSIONS COURT NO. III, PALAKKAD** **ANNEXURE A9 - CERTIFIED COPY OF THE JUDGMENT DATED 3.7.2015 IN S.C.NO. 3/2010, ADDITIONAL DISTRICT & SESSIONS COURT NO.III, PALAKKAD** **RESPONDENT'S EXHIBITS : NIL** **----------------------** **//TRUE COPY//** **P.A. TO JUDGE** **SKS** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 2647 of 2016 - - - - - - - - - - - - - - - - ## Dated 27[th ] September, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioner herein is the sole accused in S.C. No.587 of 2015 on the file of Additional District & Sessions Court-III, Palakkad. The aforesaid case has originated from Crime No. 683 of 2004 of Mannarkkad Police Station, registered _inter alia_ for offences punishable under Section 143, 147, 148, 332, 333 , 324, 225, 307 r/w 149 of the IPC and Section 3 (1) of Prevention of Damage to Public Property Act. - 2.After investigation, final report was laid before the Jurisdictional Court and the case was committed to the Court of Session and was numbered as S.C. No.3 of 2010. The accused Nos. 4 and 10 had expired in the course of trial and charge against them abated. The petitioner was the 11[th] accused in the final report. The specific allegation Crl.M.C. No. 2647 of 2016 2 against the petitioner and the 8[th] accused in the final report is that they harboured the principal accused and had sheltered them knowing that they had committed the offence and was therefore, charged under section 212 of the IPC. 3. In the absence of the petitioner who was not available for trial, the case was proceeded against the other accused. By Annexure-9 judgment, dated 03.07.2015, the accused were found not guilty and were acquitted. - 4.The learned counsel appearing for the petitioner, referring to Annexures A1 to A9, would contend that there was no evidence worth the name to connect the accused with the crime and it was on its basis, that the learned Sessions Judge had passed an order of acquittal. It is also submitted that no appeal has been preferred against A-9 Judgment, which has become final. - 5.I have heard the learned Public Prosecutor as well and have perused the materials on record. Crl.M.C. No. 2647 of 2016 3 6.Annexure-A2 is the final report. The prosecution allegation is that on 14.11.2004 at about 5.30 p.m., the SubInspector of Police, Mannarkkad took into custody three persons who had attacked the bar by name, “Highway Bar” at Mannarkkad. The specific allegation is that the accused Nos. 1 to 7, having formed themselves into an unlawful assembly intentionally offered resistance and rescued the assailants by attacking the Sub-Inspector and his team. As stated earlier, the petitioner and the 8[th] accused are alleged to have harboured the accused Nos.1 to 7 after the commission of the crime. 7.The learned Sessions Judge after analysing the evidence have concluded in Para (42) as follows: _“A careful consideration of all the facts narrated and the discussions held above would lead me to the irresistible conclusion that the prosecution has not placed the true facts before the court. The investigation done in this case is not fair and transparent as rightly contended by the learned counsel for the accused. The combined effect of the infirmities noticed and discussed above persists me to hold that prosecution has not succeeded in establishing the charges leveled against the accused beyond any_ Crl.M.C. No. 2647 of 2016 4 _reasonable doubt.”_ 8.Further more, in so far as the role played by the petitioner herein and the 8[th] accused is concerned, it has been observed thus, in Para (38): _“38. According to the prosecution A8 and absconding accused A11 harboured the offenders viz A1 to 7 by knowing that an offence has been committed by A1 to A7. For an offence u/s.212 IPC, it is to be proved that an offender was harboured or concealed by a person with the knowledge or having reason to believe that such person was the offender and such harbouring or concealment was made with an intention of screening him from legal punishment. There is no independent evidence to show that A8 harboured the offenders as alleged by the prosecution. The materials on record do no indicate that accused harboured or concealed some offender. Except a statement by PW17 viz the investigating Officer that he received information regarding the harbouring of the offenders in the above crime by A8, there is no reliable evidence to show that A8 harboured the offenders as alleged by the prosecution. Absolutely there is no evidence to show that A8 harboured the offenders as alleged by the prosecution.”_ 9.These observations of the learned Sessions Judge, according to me, would definitely affect the very substratum of the prosecution case. As held by three Crl.M.C. No. 2647 of 2016 5 Judge Bench of this Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552),** though the reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under Section 482 of the Code, a case where the substratum of the case is lost is an exception to the above rule. - 10.I am of the firm view that no purpose is going to be served by directing the petitioner to face the trial at this stage. It can only be a futile exercise and will only serve to waste precious judicial time which can be used for more productive work. The prospects of conviction is extremely remote as no evidence of worth could be adduced by the prosecution during the previous trial. This Court will be justified in quashing the proceedings under Section 482 of the Code . In the result, this petition is allowed. Annexure A2 final report and all proceedings pursuant thereto against the Crl.M.C. No. 2647 of 2016 6 petitioner now pending as SC 587 of 2015 on the file of the Additional District & Sessions Court - III, Palakkad are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE