Azeez v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **Crl.MC.No.8388 OF 2019(G)** **AGAINST CP NO.63/2015 PENDING AT JFCM-I, PALAKKAD** **CRIME NO.1151/2014 OF Kuzhalmannam Police Station , Palakkad** ## **PETITIONER/2ND ACCUSED:** **AZEEZ AGED 45 YEARS S/O. AHAMMED, PALLIKKAPARAMBU, NOCHULLI, KUZHALMANNAM, PALAKKAD.** **BY ADV. SRI.K.K.RAJEEV** ## **RESPONDENTS/COMPLAINANTS:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADVS. SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl M.C. No.8388 of 2019 2 ALEXANDER THOMAS, J. ---------------------------------Crl M.C. No.8388 of 2019 ---------------------------------Dated this the 27[th] day of November, 2019 ## **O R D E R** The case projected in this Crl.MC filed under Sec.482 is as follows. The petitioner is the 2[nd] accused in SC No.865/2005 in crime No.1151/2014 of Kuzhalmannam Police Station for offences punishable under Sec.143, 147, 341, 323, 324, 447 r/w 149 of the IPC and under Sec.3(1)(X) of SC/ST (POA) Act. As per the final report there are altogether 11 accused persons arrayed as A1 to A11. In the committal proceedings accused No.2 Azeez (petitioner herein) failed to appear and hence the learned Magistrate committed the case only against the other 10 accused and the case against the petitioner (A2) was split up and refiled as C.P No.63/2015. 2. The prosecution case is that, PW1 and her family belong to Scheduled Caste and they are residing at Kollapparambu, Kuzhalmannam No.1 village. All the accused are from the same locality and they do not belong to Scheduled Caste/Scheduled Tribe. Taking revenge upon a prior incident involving the 1[st] accused Vasu and Crl M.C. No.8388 of 2019 3 PW2, the husband of PW1, on 26-10-2014 at 5.30 p.m the accused framed themselves into an unlawful assembly and in prosecution of the common object of that assembly, criminally trespassed into the courtyard of residential house of PW1 and PW2, and thereafter, abused and insulted PW2 by calling caste name, dragged PW2 catching hold on the bath towel put around his neck, and taken near to a tree in the courtyard and from there all the accused fisted and kicked PW2. When PW1 and her daughter PW3, try to intervene and rescue PW2, the accused outraged their modesty tearing of their dress, there by all the accused have committed the offence mentioned above. 3. In trial prosecution examined PW1 to PW9 and marked Ext.P1 to P25 documents. MO1 and MO2 were also identified and marked. On conclusion of the trial the learned Sessions Judge found that A1 and A3 to A11 as per the final report are found not guilty of the offences under Sec.143, 147, 341, 323, 324, 447 r/w 149 of IPC and under Sec.3(1)(X) of SC/ST (POA) Act and they are acquitted under Sec.235(1) of Cr.PC. Since A2 was not available for trial now the split of proceedings has been started as against. 4. By Anx.A3 order of acquittal the very substratum of the case Crl M.C. No.8388 of 2019 4 is lost. That it is certain that the trial would be an exercise in futility and sheer waste of time as against the petitioner and in such circumstances discretion vested in the court should be exercised to quash Anx.2 final report in the light of Anx.3 judgment and acquit the petitioner for the ends of justice. It is in the light of these averments and contentions, the petitioners have filed instant Crl.M.C with the following prayers: _“.......to quash all further proceedings pursuant to Anx.A2 final report in crime No.1151/2014 before the Hon'ble Judicial First Class Magistrate Court-I Palakkad which is pending as C.P No.63/2015 on the file of the Additional Sessions Court, Mannarkkad, in the interest of justice.”_ 5. Heard Sri.K.K.Rajeev, the learned counsel appearing for the petitioner (A2) and Sri.Santhosh Peter, the learned Prosecutor appearing for the respondent State. 6. It appears that there has been originally 11 accused persons, wherein the petitioner has been arrayed as accused No.2 thereof. All the abovesaid accused persons other than the petitioner herein (A2) Crl M.C. No.8388 of 2019 5 have faced trial and the special Sessions Court notified to deal with SC/ST **(** Prevention of Atrocities) cases, Mannarkkad, Palakkad district as per Anx.A3 judgment dated 10-05-21019 in S.C No.865/2015 has acquitted all the said co-accused persons. Paragraph Nos.36, 38, 39, 40 and 42 of Anx.A3 judgment reads as follows. _“36. If we go by the oral version given by PW1 to PW3, PW2 was thoroughly and severely fisted and kicked by a group of 25 persons and further he was dragged through the ground to a distances of 8 meters. At that time he was only wearing a lungi. If we go by the version of PW1, the face of PW2 completely got swelled and PW2 was not able to speak or even open his eyes, and further he had a bleeding injury on his lips. But the medical evidence will go to show that PW1 had only sustained contusions and abrasions. The doctor deposed that, if PW2 was not able to speak, she would have definitely noted it in the wound certificate. The wound certificate does not mention about any swelling on the face. The injuries sustained by PW2 can be caused by a mere fall. It is also to be taken note that, PW1 even though admitted in hospital and treated for 5 days, had not sustained any external injuries at all. One more thing to be noted is that, as per the version of PW2, he had sustained some injuries in an incident that took place on 21/10/2014 that was just five days before this incident. It is not clear whether the injuries noted by the doctor are really the injuries sustained by PW2 five days before. All these creates doubt regarding the genuineness of the prosecution case._ _38. Admittedly, the place of incident is a residential colony. It has come out in evidence that, around 50 families are residing in and around the place of incident. The incident occurred at about 5.30 p.m. If such an incident had really taken place, definitely, lot of people would have witnessed the incident. In spite of this no independent_ Crl M.C. No.8388 of 2019 6 _occurrence witnesses were examined. PW3 attempted to find out an excuse by saying that all the neighbours had gone to watch cinema and that is why none of them were present. PW4 is the only person examined as an independent witness. She is a close relative of PW1. She turned hostile to the prosecution. This makes the prosecution case more weak._ _39. The most serious offence alleged is the offence of calling caste name within public view. If we go by the version in the FI statement, the caste name was called from inside the house and not from the courtyard. If that be so, it will be difficult to attract the penal provision under SC/ST Act. To attract the same, the calling of the case name shall be within public view. There is absolutely no change for any error of facts in the FI statement since it was given after due deliberations and taking their own time. Subsequently, while recording 161 statement, a twist is seen made. The place of incident of calling caste name, seen shifted to the courtyard. This appears to be a deliberate move. In evidence PW1 admitted her version in the FI statement. She would say that both versions are true. But both versions cannot go together. At this juncture, it is to be taken note that, according to PW2, he belongs to SC, Kanakkan community. The caste name said to be called is 'cheruma'. There is nothing to prove that Kanakka and Cheruma are one and the same caste. Be it so, it cannot be said that PW2 was insulted by calling his caste name even if the prosecution allegation is true. Moreover, the specific case put forward by the prosecution case is that first accused had called the caste name that too only once. But in evidence, the material witnesses would say that five persons have called the caste name. This also makes the prosecution case doubtful._ _40. If we go by the evidence of PW1 to PW3 a violent group consisting of 25 persons attacked and abused them. But the investigating officer would say that out of this 25 persons, only 11 persons are involved in this incident and the others were mere onlookers. In evidence, PW1 to PW3 were not able to say what are the specific overtacts done by each accused who are facing trial. PW1 was not able to say who had kicked her and who had pulled her dress. She was_ Crl M.C. No.8388 of 2019 7 _also not able to say who had specifically kicked and fisted PW2 and who had pulled the dress of PW3. In the same way, PW2 and PW3 were not able to say the overtacts done by each accused. They only made a general statement that the accused persons present in the court, had attacked and assaulted PW2. It is to be taken note that PW1 to PW3 does not have a consistent case regarding the first person who came to their house and talked to PW2. PW1 and PW3 would say that it was Sijumon, but PW2 would say that it was Sadhanandan. The above contradictory statement adversely affect the prosecution case. May be, persons get confused to identify the one and only person who was present at that particular point of time. Here, PW1 to PW3 does not have a consensus regarding the one and only person who came to the house at the starting point of the incident. It is also to be noted that, in FIS, PW1 had only spoken the name of 6 persons. She omitted 5. No explanation is forthcoming. That being so, the accused are entitled to get the benefit of doubt on the question of identity._ _42. The said contention cannot be accepted. In evidence, the only overtact spoken against first accused Vasu, is the calling of caste name and dragging PW2 through the ground by holding on the bath towel. I had already found that the allegation regarding calling of caste name stands not convincingly proved. With regard to the dragging of PW2 through the ground to a distance of about 8 meters, the said allegation also does not stands to reason. PW2 was not wearing any shirt at that time. If that was true, definitely he would have sustained some injuries in this regard. But no such injuries were noted by the doctor. Moreover, first accused Vasu is a person against who PW2 is keeping animosity with respect to an earlier incident. Further, first accused, belongs to rival political party. In this circumstance, there is a possibility for implicating him in the array of accused for extraneous reasons. It is also to be taken note that, the investigating officer had seized the mobile phones of the accused and procured the call details of these phone in his attempt to connect the first accused with the alleged crime. But the prosecution was not able to get any useful information from these call details. In this given set of facts, I find that the first accused, Vasu is also entitled_ Crl M.C. No.8388 of 2019 8 _to the benefit of doubt along with the other accused. For all these reason, none of the accused facing trial can be found guilty of any of the offences charged against them. They are entitled to get the benefit of doubt and an acquittal. The above points are answered accordingly.”_ 7. A reading of the Anx.A3 judgment will make it clear that the very substratum of the prosecution case stands shattered by acquittal of the co-accused persons. Now, the case as against the petitioner has been refiled and pending as Committal Proceedings, C.P No.63/2015 on the file of the JFCM-I, Palakkad (arising out of crime No.1151/2014 of Kuzhalmannam Police Station). The continuance of the impugned criminal proceedings is a sheer abuse of the process of this Court as it would only amount to wastage of the precious resources of the investigation machinery, prosecution agency and criminal courts as it could only lead to the acquittal of the accused. 8. It is crystal clear from a mere reading of Anx-A3 judgment of acquittal of the co-accused, that the very foundation of the present impugned criminal proceedings has been demolished by the acquittal of the co-accused persons and hence the impugned criminal proceedings could be quashed on the ground of acquittal of the coaccused, within the parameters as envisaged in the decisions as in _**Moosa v. Sub Inspector of Police,**_ reported in 2006 (1) KLT 552 Crl M.C. No.8388 of 2019 9 (FB), _**Ashraf Kancheriyil v. State of Kerala,**_ reported in 2011 (2) KHC 812 and in _**Abbas v. State of Kerala**_ . 9. Accordingly, it is ordered in the interest of justice that the impugned Anx.A1 FIR in Crime No.1151/2014 of Kuzhalmannam Police Station, Palakkad district, which has led to the institution of Anx.A2 Final report in C.P No.63/2015 on the file of JFCM-I, Palakkad, and all further proceedings arising therefrom pending against the accused will stand quashed. 10. The petitioner will produce certified copies of this order before Investigating Officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the Investigating Officer concerned for information. With these observations and directions the above Crl. M.C. will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS Crl M.C. No.8388 of 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.1151/2014 OF KUZHALMANNAM POLICE STATION.** **ANNEXURE A2 TRUE COPY OF THE POLICE CHARGE (FINAL REPORT) AS AGAINST THE 2ND ACCUSED IN CRIME NO.1151/2014 OF KUZHALMANNAM POLICE STATION.** **ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN SC NO.865/2015 ON THE FILE OF ADDITIONAL SESSIONS COURT, MANNARKKAD.**