Anil Kumar K.S. v. The State of Kerala

Crl.M.C.No.1708/2019 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944_ _CRL.MC NO. 1708 OF 2019_ _AGAINST THE ORDER/JUDGMENTCC 2036/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR_ ## _PETITIONER/12th ACCUSED:_ _ANIL KUMAR K.S., AGED 48 YEARS, S/O.SIVARAMA PILLAI, CHAKKULATHU VEEDU, POOZHIKKADUMURI, KURAMPALA VILLAGE, PANDALAM._ _BY ADVS. ROSHEN.D.ALEXANDER TINA ALEX THOMAS_ ## _RESPONDENT/S:_ _1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031._ - _2 SUB INSPECTOR OF POLICE, PANDALAM POLICE STATION, PIN-689 692,_ ## _SRI.SANGEETARAJ-N R-PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.1708/2019 2 ## **O R D E R** The petitioner is the 12[th] accused in Crime No.123 of 2011 of Pandalam Police Station, which is now pending as C.C.No.2036 of 2018 on the file of the Judicial First Class Magistrate Court, Adoor. The aforesaid crime was registered against the petitioner and 14 others for the offences punishable under Sections 143, 147, 148, 435, 427, read with 149 IPC. 2. The prosecution case is that, pursuant to the death of one Ajayakumar, who was riding a motor bike bearing Registration No.KL-05 G/2554, in a road accident occurred due to rash and negligent driving of the driver of a tipper lorry bearing Registration No.KL-31 A/336, the accused persons formed themselves into an unlawful assembly on 12.03.20211 at about 1:15 P.M at PandalamNooranad public road with deadly weapons and set ablaze the said tipper lorry, which caused the accident. On account of the acts of the accused, a loss of Rs.15,00,000/- was caused. It was also alleged that they also pelted stones on a stage carriage named ‘Morning Star’ and thereby caused a loss of Rs.5,000/-. Annexure- Crl.M.C.No.1708/2019 3 A1 is the FIR registered in connection with the same, and Annexure-A2 is the final report submitted. 3. Earlier, cognizance was taken by the Judicial First Class Magistrate Court, Adoor, as C.C.No.756 of 2011 and in the trial followed, accused Nos.1, 2, 4, 5, 6, 7, 8, 10,13 and 14 participated, and Annexure-A3 is the judgment passed, by which all the said accused persons were found to be not guilty and acquitted. The case against the petitioner was split up, and the same now stands re-filed as C.C.No.2036 of 2018 and pending before the Judicial First Class Magistrate Court, Adoor. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A2. 4. Heard Sri.Roshen D.Alexander, learned counsel for the petitioner and Sri.Sangeethraj N.R., learned Public Prosecutor for the State. 5. The main contention put forward by the learned counsel for the petitioner is that, consequent to the order of acquittal passed by the learned Magistrate in Annexure-A3 judgment, the substratum of the prosecution case is lost, and hence, no fruitful purpose would be served by continuing the prosecution. Reliance Crl.M.C.No.1708/2019 4 ## was also placed on the principles laid by a Full Bench of this Court in **Moosa v. Sub Inspector of Police [2006(1) KLT 552].** 6. On the other hand, the learned Public Prosecutor would oppose the said contention by highlighting that the question of the involvement of the petitioner is a question of fact which has to be adjudicated during the course of the trial. Under no circumstances the prayer sought by the petitioner can be granted merely because of the reason that some of the accused persons were acquitted. 7. I have gone through the records and heard the contentions raised by either side. It is seen that, in the AnnexureA3 judgment, a detailed discussion has been made by the learned Magistrate as to the evidence adduced by the prosecution. It is discernible from Anneuxre-A3 judgment that PW1 and PW3 are A.S.I of Police and C.P.O, respectively, of Pandalam Police Station who reached the place upon getting information of the accident. They stated that the incident of setting fire to the lorry occurred in their presence. However, the evidence of PW1 indicates that, other than the 1[st] accused, he could not identify any of the accused persons specifically. Even though he claimed that some of the accused persons were present in the court, he failed to identify Crl.M.C.No.1708/2019 5 every accused by name, and he was not in a position to speak about the specific overt acts committed by each of the accused persons. PW3 was the C.P.O, who deposed the name of some of the assailants as Subash, Gireesh, Satheesh and Saji, who had set fire to the lorry. However, he was not in a position to remember the name of the other accused. PW3 also could not identify the accused persons. It has come out in evidence that none of the witnesses had prior acquaintance with the accused persons. Even though PW1 clearly mentioned the name of the 1[st] accused, after carefully scrutinizing the evidence of PW1, the learned Magistrate arrived at a specific conclusion that the identification of the 1[st] accused by PW1 cannot be believed. 7. The learned Magistrate also had taken note of the fact that both the PW1 and PW3 could not clearly mention the number of the tipper lorry, which was allegedly set ablaze. It was also noticed that even the name of the stage carriage was also mentioned by them differently. Apart from the evidence of PW1 and PW3, the prosecution could not produce any witnesses who could depose about the incident specifically. All the witnesses examined by the prosecution as occurrence witnesses have turned 6 Crl.M.C.No.1708/2019 hostile to the prosecution. Another discrepancy found by the learned Magistrate is with regard to the delay in registering the crime. The incident occurred at 12:55 P.M, but the FIR was registered only at 5:00 P.M. It was found that, as per the deposition of PW1, immediately after the incident, he went back to the Police Station. Despite the above, FIR was seen registered only at 5:00 P.M. It was observed that the lack of explanation for the delay in registering the FIR was crucial. Thus after taking into account all the relevant materials, a categorical finding was arrived by the learned Magistrate that the prosecution failed to establish the case beyond doubt. When carefully scrutinizing the nature of the evidence adduced by the Prosecution and the finding arrived at by the learned Magistrate after appreciating the same, it can be seen that the said findings have the impact of destroying the substratum of the prosecution case. Even though the order of acquittal was passed in respect of the accused persons who faced the trial, the ultimate finding in Annexure-A3 judgment is to the effect that the prosecution failed to establish the case advanced by them as such. Therefore, continuing the prosecution against the petitioner based on materials which the prosecution relied on would not serve any Crl.M.C.No.1708/2019 7 fruitful purpose, and the chances of conviction of the petitioner herein are bleak. In such circumstances, I am of the view that this is a fit case in which the principles laid down by this Court in **Moosa’s case** (supra) are to be applied. In the result, this Crl.M.C. is allowed. Annexure-A2 final report submitted in Crime No.123 of 20211 of Pandalam Police Station and all further proceedings pursuant to it as against the petitioner, including the proceedings in C.C.No.2036 of 2018 on the file of the Judicial First Class Magistrate Court, Adoor, are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/5.11.22 Crl.M.C.No.1708/2019 8 ## _APPENDIX OF CRL.MC 1708/2019_ _PETITIONER ANNEXURES_ _ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CR. NO. 123/2011 ON THE FILES OF PANDALAM POLICE STATION._ _ANNEXURE A2 TRUE COPY OF THE CHARGE SHEET DTD. 25.06.2011 IN CR. NO. 123/2011 OF PANDALAM POLICE STATION AND TAKEN ON FILES OF C.C. NO. 756/2011._ _ANNEXURE A3 TRUE OF THE JUDGMENT DTD. 31.08.2018 IN C.C. NO. 756/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR._ _EXHIBIT P1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CR. NO. 123/2011 ON THE FILES OF PANDALAM POLICE STATION._