Ansar KM v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945** **CRL.MC NO. 1593 OF 2022** **AGAINST THE ORDER/JUDGMENT SC 290/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA** ## **PETITIONER/2ND ACCUSED :** ANSAR KM AGED 35 YEARS S/O USMAN, PANANGOD, CHORODE EAST, MANGOTTUPARA, KOZHIKODE DISTRICT, PIN - 673106 BY ADV P.M.HABEEB ## **RESPONDENT/STATE & COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CIRCLE INSPECTOR OF POLICE, VADAKARA POLICE STATION), PIN - 682031 BY ADV. SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.1593 of 2022 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.1593 of 2022** **---------------------------------------------Dated this the 08[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioner was the original accused in Crime No.380/2007 of Edachery Police Station and he is now accused in S.C.No.290/2019 on the file of the Assistant Sessions Judge, Vadakara. The above case is charge sheeted against the petitioner and others alleging offences punishable under Sections 143, 147, 148, 324, 326, 307, r/w Section 149 IPC. 3. The original accused Nos.1, 4 and 5 appeared before the lower court and faced trial. They Crl.M.C.No.1593 of 2022 3 were acquitted as per Annexure B judgment. The 3[rd] accused also surrendered before the lower court and even though he was convicted by the trial court he was acquitted by the Sessions court as per Annexure C judgment. It is submitted that the continuation of the proceedings against the petitioner will be an abuse of process of court in the light of Annexure B and Annexure C judgments. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section Crl.M.C.No.1593 of 2022 4 482 of the Code. 5. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgement of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner will be an abuse of process of court. It will be beneficial to extract the relevant Crl.M.C.No.1593 of 2022 5 ## portions of Annexure B and Annexure C judgments by which the co-accused were acquitted: ## Annexure B judgment: _“8. The prosecution allegation is that the accused together have formed themselves an unlawful assembly armed with deadly weapons and with the common object to commit murder of CW1 came in a jeep and in a Scorpio car attacked PW1 with sticks and caused injuries to him and also attacked PW2. The defacto complainant was examined as PW1. He has deposed the case before court. According to him the accused herein along with 10 others have attacked him and caused injuries to him. He was taken first to the Co-operative Hospital, Orkkatteri then to the Asha Hospital, Vadakara and after taking first aid has taken to the Baby Memorial Hospital at Kozhikode. Immediately after the admission in the hospital the F.I statement given by him was recorded by PW10. According to PW1 the incident took place when he came to the road in front of Malabar Travels. The occurrence witnesses cited by the prosecution were examined as Pws 2 to 5. PW2 also has sustained injury in the incident and according to him he has seen the accused attacking PW1 and it was 5[th] accused who attacked PW2. Pws_ Crl.M.C.No.1593 of 2022 6 _4 and 5 also have tendered evidence in support of the case of prosecution. Admittedly as pointed out by the learned counsel for the accused PW1 or PW2 have not revealed the name of assailants to the doctor when they have narrated the incident first. According to PW1 all the accused were known to him. earlier. But it is deposed by him that he lost his 4 tooth in the incident and he has the difficulty to talk when he was taken to the hospital. According to him the doctor has not enquired about the assailants and that was the reason why he has not mentioned the names of accused to the doctor. It is to be noted that immediately after the incident l.e., by 3.30 A.M PW1 has given the F.I statement to the police. In the F.I statement he has mentioned the names of accused. The accused have categorically denied their involvement in the incident. The contention raised is that several political disputes were there between Muslim League and N.D.F during the relevant period and several incidents and group attacks have also taken place at that time. Accused are the workers of N.D.F. So the accused are falsely implicated in the case. Admittedly PW1 was the Vadakara Muslim Youth League President at the relevant period and the accused are the followers of rival political group. Though Pws 4 and 5 have tendered evidence in support of the case of prosecution it is brought out in_ Crl.M.C.No.1593 of 2022 7 _evidence that PW5 was the Secretary of Muslim League and PW4 also was a worker of Muslim League party. Their présence at the place of incident at the relevant time is seems to be doubtful. According to them they were returning after the committee meeting of the party. It is deposed by them that PW1 also has participated in that meeting. But evidence tendered by PW1 reveals that he was in his office before the incident. None of the witnesses has tendered any sufficient evidence to prove the time by which the meeting was over._ _9. The only independent witnesses examined before court are Pws 2 and 3. PW3 has deposed about the incident but stated that he could not identify the assailants as the incident took place during night. PW2 is the employee of PW1 and working in the office of PW1. He also has sustained injury in the incident. According to him he has seen the accused attacking PW1 and that he was attacked by accused No.5 Sajeer. Though he has deposed that he know the accused by name he has even failed to identify or point out the 5[th] accused Sajeer from the accused. It is evident from the testimony of PW2 that he is not in a position to identify the accused who allegedly attacked them. The Injury sustained by Pws 1 and 2 are properly proved by examining Pws 9 and 11. It is clearly revealed that PW1 has sustained_ Crl.M.C.No.1593 of 2022 8 _serious injuries in the incident. According to PW1 he lost 4 teeth in the incident including one artificial teeth. As per the scene mahazar marked as Ext.P8 PW13 has seized 3 teeth from the place of incident and are marked as MO.2 series. The prosecution has not taken any steps to get a scientific opinion to prove that MO.2 series has any connection with PW1 or incident. According to PW13 he has shown the same to PW11, and ascertained that MO.2 series are the lost tooth of PW1. But the records reveals that MO.2 series are produced before court immediately after the incident and at the time of recording the statement of Pws 9 and 11 the same were before court. Moreover even according to PW1 when he was taken to the Asha Hospital he was given first aid and one teeth embedded in his mouth was removed by the doctor from Asha Hospital. He has no case that it was the artificial teeth lost in the incident. So the evidence tendered by PW13 is not sufficient to prove that MO.2 series produced before court has any connection to PW1. But as mentioned above the testimony of Pws 1, 2,9 and 11 coupled with Exts.P5 and 6 statements are sufficient to prove the incident and the serious nature of injury sustained by PW1 in the incident. It is also clear that PW2 also has sustained injury when he tried to obstruct the attack towards PW1. By the examination of Pws 1, 2 and 3_ Crl.M.C.No.1593 of 2022 9 _and by producing document the prosecution has successfully proved the incident and the allegation that Pws 1 and 2 were attacked by a group of people and that the attack was with an intention to commit murder of PW1. It Is also proved that Pws 1 and 2 have sustained serious injuries in the incident. But the evidence adduced by the prosecution is not sufficient to prove the involvement of the accused herein. As mentioned above the independent witnesses have failed to identify the assailants properly. According to PW13 he has arrested accused No.2 and 3 as identified by Cws 3 and 4. But CW3 while examination as PW3 has categorically stated that he has not seen or identify any of the assailants as the incident took place during night and in darkness. CW4 the other independent occurrence witness was not examined before court. Prosecution has failed to procure his presence before court even after taking repeated coercive steps. So the evidence reveals that the alleged identification of accused by the witnesses at the time of arrest itself has no basis. Prosecution has miserably failed to prove the involvement of the accused in the incident. Moreover PW4 has deposed that he has mentioned the involvement of some other accused and stated their names to the police. No investigation is seen conducted on that aspect. Admittedly as mentioned_ Crl.M.C.No.1593 of 2022 10 _above due to the political rivalry pending between 2 groups during the relevant period several incidents have been taken place. In the circumstances evidence tendered by Pws 1, 4 and 5 who are the leaders of one group alone cannot be relied upon or found basis to conclude that the accused have committed the offences. Considering the entire circumstances of the case it is held that the prosecution has failed to prove the allegations against the accused beyond any reasonable doubt. In the circumstances the points are answered against the prosecution.”_ ## Annexure C judgment: _“21. So it can be vividly said that the evidence tendered by the prosecution are grossly inadequate to prove the guilt of the accused/ appellant beyond reasonable doubt. Thus on an over all evaluation of evidence and the materials on records I'm of the view that the accused/appellant is entitled for benefits of doubt. The impugned judgment is not sustainable in law or facts. Therefore the same is set aside and the accused /appellant is found not guilty for the offences under sections 143,147, 148,323 and 325r/w 149 of IPC. Points 1 and 2 are answered accordingly.”_ Crl.M.C.No.1593 of 2022 11 From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the coaccused. Therefore, this Court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in S.C.No.290/2019 on the file of the Assistant Sessions Judge, Vadakara arising from Crime No.380/2007 of Edachery Police Station are quashed. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.1593 of 2022 12 ## **APPENDIX OF CRL.MC 1593/2022** PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF FINAL REPORT DATED 27.12.2007 IN CRIME NO. 380/2007 OF EDACHERY POLICE STATION, KOZHIKODE DISTRICT ANNEXURE B CERTIFIED COPY OF THE JUDGMENT DATED 12.04.2013 IN S.C.NO.257/2008 OF SESSIONS COURT, KOZHIKODE ANNEXURE C CERTIFIED COPY OF THE JUDGMENT DATED 07.09.2021 IN CRL APPL 156/2019 OF SESSIONS COURT, KOZHIKODE RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE