Criminal Misc. Case Nos.6139/2019 (F) & 6166/2019 (A) - High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **Crl.MC.No.6139 OF 2019(F)** **AGAINST THE JUDGMENT IN SC 984/2011 DATED 28-11-2017 OF DISTRICT & SESSIONS COURT, ALAPPUZHA** **CC 1422/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHENGANNUR** ## **PETITIONERS/ACCUSED 3 & 6:** **1 VARGHESE @ KOCHAPPI AGED 44 YEARS S/O. GEORGE, THOTTANILATHIL HOUSE, KURATTISSERY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **2 BIJU AGED 40 YEARS S/O. KUNJUKUNJU, THOTTANILATHIL HOUSE, KURATTISSERY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 AMBILI AGED 42 YEARS W/O. SATHEESAN, PALAPPARAMBIL COLONY, KURATTISSERY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT, PIN-689 121.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** ## **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.08.2019, ALONG WITH Crl.MC.6166/2019(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos.6139 & 6166 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **Crl.MC.No.6166 OF 2019(A)** **AGAINST THE JUDGMENT IN SC 984/2011 DATED 28-11-2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA** ## **PETITIONER/1ST ACCUSED:** **JIBU, AGED 34 YEARS S/O.SAMUELKUTTY, THOTTANILATHIL HOUSE, KURATTISSERY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 AMBILI, AGED 42 YEARS W/O.SATHEESAN, PALAPPARAMBIL COLONY, KURATTISSERY VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT, PIN- 689121. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682031.** ## **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.08.2019, ALONG WITH Crl.MC.6139/2019(F), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos.6139 & 6166 of 2019 3 ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C.Nos.6139 & 6166 of 2019 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 30[th] day of August, 2019 ## **O R D E R** Petitioners in Crl.M.C.No.6139/2019 are original accused Nos.3 & 6 and the petitioner in Crl.M.C.No.6166/2019 is the original accused No.1, for offences registered under Secs.143, 147, 148, 149, 341, 323, 452, 427, 506(i) and 354 of the IPC. Among the original six accused persons, accused Nos.2, 4 and 5 are faced trial and they have been acquitted by the trial court as per Annexure-E judgment dated 28.11.2017 rendered by the Sessions Court, Alappuzha in S.C.No.984/2011. Paragraph Nos.13 to 19 of Annexure-E judgment reads as follows: “13. **The Point** :- The complainant gave evidence as PW1. She admitted the giving of Ext.P1 complaint before the judicial First Class Magistrate-II Cherthala. She would say that she also has given statement before the Magistrate Court. In Ext.P1 and in her sworn statement, she has cast allegations on the accused as the wrong doers. However, She would say that the accused have not committed guilt on her and did not insult her on the ground that she belongs to Scheduled Caste. As per Ext.P4 and P5 certificate PW1 and her daughter Adhira (PW2) belong to Scheduled Caste community. 14. PW1 stated that she had given the names of the accused as the wrong doers in Ext.P1 and before the Magistrate as instructed by some of her relatives and things stated in Ext.P1 and in her sworn statemenet never had taken effect. She would say that she has no grievance against the accused. Crl.M.C.Nos.6139 & 6166 of 2019 4 15. Thus evidence of PW1 does not at all cast any sort of guilt on the accused. 16. PW2 deposed that herself and her mother were not attacked by the accused, nor the accused have insulted them on the ground that they belong to Scheduled Caste. She admitted the statement before the Magistrate casting guilt on the accused. But such statement was given only as instructed by certain relatives. 17. Thus the evidence of PW2 also found not sufficient to incriminate the accused. 18. Because of the absence of any incriminating evidence, I have dispensed the examination under Section 313 Cr.P.C. 19. In short, this is a case wherein the prosecution has not let in any evidence to show that the accused have committed the guilt alleged in this case. Hence this is a fit case for invoking Sec.232 Cr.P.C by ordering acquittal. The point is found so. In the result, 1. The accused who are facing trial, that is accused Nos.2,4 and 5 are acquitted under Section 232 of the Code of Criminal Procedure with respect to the charges levelled against them. 2. The bail bonds of these accused are cancelled and they are set at liberty.” 2. Annexure-C is the deposition of PW1 (de facto complainant) and Annexure-D is the deposition of PW2 (daughter of PW1). A perusal of the abovesaid judgment, more particularly, paragraph Nos.13 to 19 thereof as well as the deposition of the abovesaid witnesses would make it clear that the substratum of the prosecution case stand demolished by the acquittal of the co-accused persons. After meticulous apprisal of the evidence on record, the trial court concluded in Anx.E judgment that there Crl.M.C.Nos.6139 & 6166 of 2019 5 is no evidence to connect the said co-accused persons with the impugned criminal charges and had accordingly, acquitted the said co-accused. The case against the petitioners in Crl.M.C.No.6139/2019 has subsequently been re-numbered as L.P No.134/2011 in C.C.No.1422/2008 on the file of the Judicial First Class Magistrate's Court-I, Chengannur and the case against the petitioner in Crl.M.C.No.6166/2019 has subsequently been re-numbered as L.P No.18/2017 in S.C.No.984/2011 on the file of the Sessions Court, Alappuzha. The petitioners have filed the instant criminal cases 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.E judgment. 3. Heard Smt.R.Bindu Sasthamangalam, learned counsel for the petitioners and Sri.Amjad Ali, learned Public Prosecutor appearing for the 2[nd] respondent State of Kerala. 4. On a perusal of Anx.E 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.E judgment it is crystal clear that the substratum of the prosecution has been shattered by the Crl.M.C.Nos.6139 & 6166 of 2019 6 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. 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 acquittal of the coaccused, 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. In this view of the matter, it is ordered in the interest of justice that in Crl.M.C.No.6139/2019, the impugned Anx.A complaint, which led to the pendency of L.P No.134/2011 in C.C.No.1422/2008 on the file of the Judicial First Class Magistrate's Court-I, Chengannur and in Crl.M.C.No.6166/2019, the impugned Anx.A complaint, which led to the pendency of L.P No.18/2017 in S.C.No.984/2011 on the file of the Sessions Court, Alappuzha and all further proceedings arising therefrom pending against all the accused will stand quashed. Crl.M.C.Nos.6139 & 6166 of 2019 7 6. 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 this order to the investigating officer concerned for information. With these observations and directions, the Criminal Miscellaneous Cases stand finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C.Nos.6139 & 6166 of 2019 8 ## **APPENDIX OF Crl.MC 6139/2019** |**PETITIONER'S/S**|**EXHIBITS:**| |---|---| |**ANNEXURE A**|**CERTIFIED COPY OF THE COMPLAINT DATED**| ||**10.7.2007.**| |**ANNEXURE B**|**CERTIFIED COPY OF THE SWORN STATEMENT ON**| ||**THE IST RESPONDENT DATED 16.8.2007.**| |**ANNEXURE C**|**CERTIFIED COPY OF THE DEPOSITION OF THE IST**| ||**RESPONDENT DATED 24.11.2017.**| |**ANNEXURE D**|**CERTIFIED COPY OF THE DEPOSITION OF PW2**| ||**DATED 24.11.2017.**| |**ANNEXURE E**|**CERTIFIED COPY OF THE JUDGMENT PASSED BY**| ||**TEH COURT OF SESSIONS JUDGE, ALAPPUZHA IN**| ||**SESSIONS CASE NO.984/2011 DATED 28.11.2017.**| Crl.M.C.Nos.6139 & 6166 of 2019 9 ## **APPENDIX OF Crl.MC 6166/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMPLAINT DATED 10.07.2007. ANNEXURE B TRUE COPY OF THE SWORN STATEMENT OF THE 1ST RESPONDENT DATED 16.08.2007. ANNEXURE C TRUE COPY OF THE DEPOSITION OF THE 1ST RESPONDENT DATED 24.11.2017. ANNEXURE D TRUE COPY OF THE DEPOSITION OF PW2 DATED 24.11.2017. ANNEXURE E TRUE COPY OF THE JUDGMENT PASSED BY THE COURT OF SESSIONS JUDGE, ALAPPUZHA IN SESSIONS CASE NO.984/2011 DATED 28.11.2017.**