Afsal, Asharaf, Musthafa and Raheem v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **Crl.MC.No.6326 OF 2019(A)** **AGAINST THE ORDER/JUDGMENT IN CC 796/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NADAPURAM** **CRIME NO.421/2011 OF Nadapuram Police Station , Kozhikode** ## **PETITIONER/S:** |**1**|**AFSAL**| |---|---| ||**AGED 32 YEARS**| ||**S/O.HAMSA, RESIDING AT KUTTANKANDY HOUSE,**| ||**KUMMAMKODE, NADAPURAM.P.O., VADAKARA TALUK,**| ||**KOZHIKODE DISTRICT-673504.**| |**2**|**ASHARAF**| ||**AGED 40 YEARS**| ||**S/O.KUNHAMMED, THAZHE KAVUTHEEYILLATH HOUSE,**| ||**VARIKKOLI, NADAPURAM.P.O., VADAKARA TALUK,**| ||**KOZHIKODE DISTRICT-673504.**| |**3**|**MUSTHAFA**| ||**AGED 29 YEARS**| ||**S/O.AMMED, RESIDING AT VALUTHAPARAMBATH HOUSE,**| ||**NADAPURAM.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT-**| ||**673504.**| |**4**|**RAHEEM**| ||**AGED 31 YEARS**| ||**S/O.ANDRU, RESIDING AT KUTTANKANDY HOUSE,**| ||**NADAPURAM.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT-**| ||**673504.**| **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S. SMT.PARVATHY S.KRISHNAN SHRI.MITHUN P.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **2 RAJAN, S/O.KANNAN, AGED 56 YEARS, RESIDING AT VANNATTANKANDY HOUSE, KUMMAMKODE, NADAPURAM.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT-673504.** - **3 KALLYANI, W/O.KANNAN, AGED 70 YEARS, RESIDING AT VANNATTANKANDY HOUSE, KUMMAMKODE, NADAPURAM.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT-673504.** **4 CHANDRI, W/O.RAJAN,AGED 70 YEARS, RESIDING AT VANNATTANKANDY HOUSE, KUMMAMKODE, NADAPURAM.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT-673504.** ## **R2-4 BY ADV. AJOY VENU** ## **OTHER PRESENT:** ## **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 6326 of 2019 ================== Dated this the 4[th] day of September, 2019 ## **O R D E R** The petitioners herein are original accused Nos.1, 3, 4 and 7 among the 7 accused in Crime No.421/2011 of Nadapuram Police Station, registered for offences registered under Secs.143, 147, 148, 452, 323, 324 read with Sec.149 of the I.P.C. Original accused Nos.2, 5 and 6 faced trial. After meticulous apprisal of the evidence on record, the trial court concluded in Anx.A-2 judgment that there is no evidence to connect the said co-accused persons (accused Nos.2, 5 and 6) with the impugned criminal charges and had accordingly acquitted the said co-accused. The case against the petitioners herein (accused Nos.1, 3, 4 and 7) has subsequently been re-numbered as C.C.No.796/2018 on the file of the Judicial First Class Magistrate's Court, Nadapuram. The petitioners have filed the instant Criminal Miscellaneous Case with the prayer for quashment of the impugned criminal proceedings pending against them on the ground that the substratum of the prosecution case has been shattered by the acquittal of the said co-accused persons as per Anx. A-2 judgment. 2. Heard Sri.J.R.Prem Navaz, learned counsel for the Crl.M.C.No. 6326/19 - : 4 :- petitioners, Smt.Priya Shanavas, learned Prosecutor appearing for R-1 State of Kerala and Sri.Ajoy Venu, learned counsel appearing for respondents 2 to 4. ## 3. Paragraphs 6 to 9 of Anx. A-2 judgment read as follows: _“6. Following points arise for consideration in this case._ _1. Whether the accused in prosecution of their common object formed an unlawful assembly with others ?_ _2. Whether the accused in prosecution of their common object committed riot with others ?_ _3. Whether the accused committed riot armed with dangerous weapon as alleged?_ _4. Whether the accused in prosecution of their common object trespassed into the house of P.W-1 after making preparation to commit offence as alleged?_ _5. Whether the accused in prosecution of their common object voluntarily caused hurt to P.W-1 as alleged ?_ _6. Whether the accused in prosecution of their common object voluntarily caused hurt to P.W-1 with dangerous weapons as alleged?_ _7. If any of the offences are proved, what is the order as to sentence ?_ _7.Point Nos. 1 to 6: For the sake of convenience both points are considered together. The Defacto complainant was examined as P.W-1. According to him, on 23.08.2015, some persons trespassed into his house and attacked him while he was watching television. They had also threatened him. He sustained injury and was treated at Vatakara Government hospital. He could not identify the assailants. He had given Ext.P-1 FIS and mentioned the name of the accused based on the information given by others. P.W-2 and 3 deposed in tune with P.W-1. But they could not identify the assailants. They had also sustained injuries in the above incident. PW4 deposed that he did not witness any such incident. Though learned Assistant Public Prosecutor cross examined the witnesses, nothing could be brought out to fasten the accused with the alleged offences. Since the material witnesses examined failed to support the case of the prosecution, learned Assistant Public Prosecutor has rightly given up the remaining witnesses._ _8. On an overall appreciation of the evidence on record, all the points are answered against the prosecution. I conclude that the prosecution failed to prove the guilt of the accused. Thus the accused Nos.2, 5 and 6 are entitled for an acquittal. The accused Nos.2, 5 and 6 are found not guilty of the offences punishable u/s.143, 147, 148, 452,_ Crl.M.C.No. 6326/19 - : 5 :- _323, 324 r/w 149 of I.P.C._ _9. Point No.7. In view of the findings in point Nos.1 to 6, this point does not arise for consideration._ _In the result, accused Nos.2, 5 and 6 are found not guilty of the offences punishable u/s.143, 147, 148, 452, 323, 324 r/w.149 of the I.P.C. and they are acquitted u/s.248(1) of Cr.P.C. of the abovesaid offences. Their bail bonds stand cancelled and they are set at liberty. Case against others are split up and refiled as C.C.No. 796/18.”_ 4. On a perusal of Anx. A-2 judgment it can be seen that the trial court has conclusively held that there is no evidence to connect the said co-accused persons with the impugned charges and acquitted the said co-accused persons. From a mere reading of Anx. A-2 judgment it is crystal clear that the substratum of the prosecution has been shattered by the acquittal of the said co-accused persons. No meaningful purpose will be subserved by prolonging the agony of the impugned criminal proceedings now pending against the petitioners herein. Any further continuance of the impugned criminal proceedings would amount to mere wastage of precious resources of the State including that of the judiciary. This Court in the cases as in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552, _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011(2) KHC 8123, and _**Abbas v. State of Kerala** 2013_ (2) KLT 976, has held that if the substratum of the prosecution is demolished by the Crl.M.C.No. 6326/19 - : 6 :- acquittal of the co-accused, this Court could exercise the powers under Sec.482 of the Cr.P.C. to consider the prayer of quashment of the impugned criminal proceedings against the other accused. 5. Moreover, it is seen that the the petitioners and contesting respondent Nos.2 to 4 have settled their disputes (arising out of the impugned crime) as borne out by Anxs. A-3 to A-5 affidavits sworn to by respondents 2 to 4 respectively, who are stated to have injured in the incident, in which they have stated that they have no objection for quashment of the impugned criminal proceedings against the petitioners. 6. In the light of the abovesaid aspects, it is ordered in the interest of justice that the impugned Anx. A-1 FIR in the impugned Crime No.421/2011 of Nadapuram Police Station, which has led to the pendency of C.C.No. 796/2018 on the file of the Judicial First Class Magistrate's Court, Nadapuram, and all further proceedings arising therefrom pending against the petitioners herein will stand quashed. The petitioners will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of Crl.M.C.No. 6326/19 - : 7 :- this order to the investigating officer concerned for information. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** sdk+ Crl.M.C.No. 6326/19 - : 8 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**THE ACCUSED COPY OF THE CRIME NO. 421 OF 2011**| |---|---| ||**OF NADAPURAM POLICE STATION KOZHIKODE**| ||**DISTRICT.**| |**ANNEXURE A2**|**THE CERTIFIED COPY OF THE JUDGMENT DATED**| ||**24.09.2018 IN C.C. NO. 120/2016 PASSED BY THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**NADAPURAM, KOZHIKODE DISTRICT.**| |**ANNEXURE A3**|**THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 2ND**| ||**RESPONDENT/DEFACTO COMPLAINANT.**| |**ANNEXURE A4**|**THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 3RD**| ||**RESPONDENT/INJURED PERSON.**| |**ANNEXURE A5**|**THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 4TH**| ||**RESPONDENT/DEFACTO COMPLAINT.**|