Ajimshad and Hamza @ Dilshad v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944 ``` ``` CRL.MC NO. 3329 OF 2022 ``` ``` CRIME NO.87/CR/02/2002 OF CBCID, PATHANAMTHITTA, AGAINST THE ORDER/JUDGMENT IN SC 683/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA ``` ## **`PETITIONERS:`** ``` 1AJIMSHAD AGED 42 YEARS YAZEEN MANZIL, KUMBAZHA P.O PATHANAMTHITTA DISTRICT, PIN – 689653 2HAMZA@DILSHAD AGED 40 YEARS KEEZHAYATHU PURAYIDOM, KUMBAZHA P.O PATHANAMTHITTA DISTRICT, PIN – 689653 ``` ``` BY ADVS. UNNI SEBASTIAN KAPPEN M REVIKRISHNAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BYPUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` ADV.SUDHEER GOPALAKRISHNAN – PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3329 OF 2022 ``` ``` 2 ``` ## **ORDER** The petitioners are the accused Nos.55 and 57 in Crime No.87/CR/02 of CBCID, Pathanamthitta which is registered for the offences punishable under Sections 143, 144, 145, 147, 148, 150, 151, 152, 153-A, 307, 435, 436, 332, 353 and 427 r/w Section 149 of the Indian Penal Code and also under the provisions of 3(2)(e) of Prevention of Damages to Public Property Act. 2. In the aforesaid crime, a total of 109 persons were arraigned as accused. The prosecution case is that the accused persons, who are the workers of political factions namely PDP and NDF, formed themselves into an unlawful assembly with deadly weapons, on 07.12.2011, at 10.30.P.M, and had a wordy quarrel with Sabarimala pilgrims. When the police intervened and tried to disperse them, they obstructed the lawful discharge of the duty of the Policeman. It was alleged that they also attempted to commit the murder of a DYSP and also caused damage to public property. The crime was ``` CRL.MC NO. 3329 OF 2022 ``` ``` 3 ``` registered, and a final report was submitted against the said persons after completing the investigation. Initially, the case was tried by the Additional Sessions Court (Ad-Hoc) Fast Track Court-1, Pathanamthitta, in which all the accused persons except 5, 6, 14, 18, 20, 23, 27, 31, 32, 36, 55, 56, 57, 66, 67, 80 and 106 have participated. Annexure-1 is the judgment passed in the said Sessions Case, and as per the same, all the accused who faced the trial were acquitted. Subsequently, in SC No.613/2012, eight accused persons participated in the trial. Annexure-3 is the judgment passed in the said case, and they were acquitted. The petitioners herein are the accused Nos.55 and 57 in the charge sheet, and prosecution against them are going on as SC No.683/2018 before the Additional Sessions Court-II, Pathanamthitta, wherein they are arraigned as 5[th] and 6[th] accused. This Crl.M.C. is filed challenging the prosecution against them. 3. Heard Sri.M.Revikrishnan, learned counsel appearing for the petitionerS and Sri.Sudheer Gopala Krishnan, learned ``` CRL.MC NO. 3329 OF 2022 ``` ``` 4 ``` Public Prosecutor for the state. 4. The specific case put forward by the learned counsel for the petitioners is that consequent to the finding of acquittal by the learned Sessions Judge in Annexure-1 and Annexure-3 judgments, the substratum of the case is lost, and hence no fruitful purpose would be served by continuing the prosecution as against the petitioners herein. Reliance was also placed on the principles laid down by the Full Bench of this Court in _**Moosa**_ v. _**Sub Inspector of Police**_ [2006 (1) KLT 552]. 5. On the other hand, learned Public Prosecutor would oppose the aforesaid contention. It is pointed out that whether the petitioners were involved in the commission of the offence is a question of fact which cannot be gone into in a proceeding of this nature. It is pointed out that merely because of the reason that the other accused persons were acquitted, they cannot seek to quash the prosecution against them. 6. I have perused the records and heard the rival contentions. As of now, out of the total 109 accused, 100 ``` CRL.MC NO. 3329 OF 2022 ``` ``` 5 ``` accused persons were already acquitted. It is discernible from Annexure-2 Final report that the petitioners herein were not assigned with any specific overt acts. On perusal of Annexure-1 judgment, it can be seen that all the material witnesses had turned hostile to the prosecution, and all of them had categorically stated that they could not identify any of the assailants. PW-34 is the DYSP who was allegedly assaulted and attempted to be murdered by the assailants. His evidence is that he could not identify the person who attacked him. After appreciating the entire evidence, the learned Sessions Judge in Annexure-1 concluded that the prosecution could not establish the offence against any of the accused persons who faced the trial. Accordingly, all of them were acquitted. In Annexure-3 judgment also, all the material witnesses who were examined to prove the prosecution case stated that they could not identify any of the assailants. On perusal of the observations made by the learned Sessions Judge in Annexure-1 and Annexure-3 judgments, it can be seen that none of the material witnesses identified any of the persons. In such circumstances, taking into ``` CRL.MC NO. 3329 OF 2022 ``` ``` 6 ``` account the nature of the evidence that has been adduced by the prosecution and the observations made by the learned Sessions Judge upon appreciating the same, it can be safely concluded that the substratum of the prosecution case is destroyed. In _**Moosa’s case**_ , it was held by this Court that when the substratum of the case is lost consequent to the order of acquittal of the co-accused persons, the powers of this Court under Section 482 of Cr.P.C. can be invoked for quashing the proceedings against the other accused persons. In this case, as rightly pointed out by the learned counsel for the petitioner, Annexure-2 Final Report does not contain any specific overt act against the petitioners. Out of 109 accused, 100 accused persons were already acquitted as none of the witnesses identified them. In such circumstances, I am inclined to hold that this is a fit case in which the principles laid down by the Full Bench of this Court in _**Moosa’s case**_ can be applied. In the result, this Crl.M.C. is allowed. Annexure-2 final report submitted in Crime No 903 of 2001 of Pathanamthitta ``` CRL.MC NO. 3329 OF 2022 ``` ``` 7 ``` Police Station, which was renumbered as 87/CR/02 of CBCID, Pathanamthitta, wherein the petitioners are accused Nos 55 and 57, and all further proceedings in SC No.683/2018 before the Additional Sessions Court-II, Pathanamthitta, as against the petitioners, are hereby quashed. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** nak ``` CRL.MC NO. 3329 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 3329/2022`** ``` PETITIONER ANNEXURES ``` |`Annexure1`|`TRUE COPY OF THE JUDGMENT DATED`| |---|---| ||`13.04.2012 IN SC NO:422/2006 OF THE COURT`| ||`OF THE ADDITIONAL DISTRICT AND SESSIONS`| ||`JUDGE (AD-HOC) FAST TRACK COURT-1 ,`| ||`PATHANAMTHITTA`| |`Annexure2`|`TRUE COPY OF THE FINAL REPORT IN CRIME`| ||`NO: 903/2001 OF PATHANAMTHITTA POLICE`| ||`STATION , SUBSEQUENTLY TRANSFERRED AND`| ||`RENUMBERED AS 87/CR/02 OF CB-`| ||`CID ,PATHANAMTHITTA`| |`Annexure3`|`TRUE COPY OF THE JUDGMENT DATED`| ||`18.04.2018 IN SC NO: 613/2012 PASSED BY`| ||`THE COURT OF THE ADDITIONAL SESSIONS`| ||`JUDGE-II , PATHANAMTHITTA`|