Crl.M.C. No. 6522 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936** ## **Crl.MC.No. 6522 of 2014 ()** **--------------------------(SC 796/2014 of ADDL. D.C. & SESSIONS COURT - II, KASARAGOD) CP 55/2009 of J.M.F.C.-I,HOSDRUG)** ## **PETITIONER/ACCUSED:** **--------------------------------------** **C B JAMEEL @ ZAMEEL AGED 27 YEARS S/O MUHAMMED, VENHACHERRY, NORTH CHITHARI CHITHARI VILLAGE, KASARAGOD DISTRICT.** **BY ADV. SRI.K.P.HARISH** ## **RESPONDENT/STATE OF KERALA/COMPLAINANT:** **-----------------------------------------------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN:682 031.** ## **BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 6522 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE A1: THE TRUE COPY OF THE FIR IN CRIME NO.604 OF 2008 OF HOSDURG POLICE STATION.** **ANNEXURE A2: A TRUE COPY OF THE FINAL REPORT DATED 25.2.2009 IN CRIME NO.604/2008 AS NUMBERED AS C.P.NO.55 OF 2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HOSDURG.** **ANNEXURE A3: THE TRUE COPY OF THE JUDGMENT DATED 22.12.2012 IN S.C.NO.278 OF 2009 OF THE ADDITIONAL SESSIONS JUDGE-II, KASARAGOD. ANNEXURE A4: THE TRUE COPY OF THE DOCKET SHEET IN S.C.NO.796 OF 2014.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ALEXANDER THOMAS, J. ================== Crl.M.C.No. 6522 of 2014 ================== Dated this the 19[th] day of January, 2015 J U D G M E N T The petitioner herein is the sole accused in Sessions Case, S.C.No.796/2014 on the file of the Court of the Additional Sessions Judge-II, Kasargod. The said case arose out of Annexure A-1 FIR in Crime No. 604/2008 of Hosdurg Police Station, Kasargod district, alleging offences punishable under Secs.143, 147, 148, 341, 324, 332, 333, 308 read with Sec.149 IPC and Sec.3(I) of the Prevention of Destruction of Public Properties Act. The petitioner herein was accused No.8 in Annexure A-1 Crime No. 604/2008. 2. The prosecution case is that A-1 to A-4 and the other four accused persons on 1.10.2008 at 6.30 p.m. formed themselves into an unlawful assembly at Chamundi Kunnu and in prosecution of their common object, they committed rioting, armed with deadly weapons, wrongfully restrained PWs-1 to 4 and PW-6, the Police officials, voluntarily caused simple hurt to them by pelting stones and obstructed them from discharging their official duties. That the accused persons pelted stones to the police jeep causing damage to Crl.M.C.6522/14 - : 2 :- the tune of Rs. 20,000/-. The police after investigation filed Annexure A-2 final report/charge sheet, which the Judicial First Class Magistrate's Court-I, Hosdurg, had taken the case on its file as C.P.No.55/2009. It is pointed out that during the crime stage, the petitioner appeared before the Magistrate Court and was released on bail. After submission of the above said Annexure A-2 final report/charge sheet which led to the pendency of C.P.No.55/2009, the petitioner entered appearance before the committal court from where it was committed to the Sessions Court as S.C.No. 278/2009. It is stated that the petitioner being the sole breadwinner of his family was constrained to go to Mumbai in search of employment and the petitioner had secured an overseas employment and that hence he could not appear before the trial court during the trial proceedings in S.C.No.278/2009. Accordingly, it is submitted that the petitioner's case was split up and renumbered as S.C.No. 672/2012. That subsequently, A-4 and A-5 arrayed in the final report/charge sheet surrendered before the committal court and their case was also committed to the Sessions Court and clubbed with the main case and re-arrayed them as A-3 and A-4 respectively. The case against these other accused was tried and Crl.M.C.6522/14 - : 3 :- and prosecution witnesses PWs 1 to 7 were examined and documents were marked as Exts.P-1 to P-14. On examination of the entire evidence, the Sessions Court found that none of the accused persons were arrested from the spot and that none of the prosecution witnesses had identified properly any of the accused persons also and that the prosecution has not brought in any convincing materials to show the involvement of the accused in the commission of the crime. In this view of the matter, as per Annexure A-3 judgment dated 22.12.2012 in S.C.No.278/2012, the Court of the Additional Sessions Judge-II, Kasargod, held that the prosecution has not succeeded in proving the case beyond reasonable doubt and in the result, accused Nos.A-1 to A-4 therein (A-2, A-6, A-4 and A5 respectively in the final report/charge sheet) were found not guilty of the offences and acquitted them under Sec.235(1) of the Cr.P.C. That on appearance of the petitioner in L.P.C.No.102/2012, the case against the petitioner was renumbered as S.C.No.796/2014 and made over to the Additional Sessions Judge-II, Kasargod, as discernible from Annexure A-4 docket sheet in the said Sessions Case 796/2014. It is thus submitted by the petitioner that the case against him is now Crl.M.C.6522/14 - : 4 :- pending as S.C.No.796/2014 on the file of the Court of the Additional Sessions Judge-II, Kasargod. 3. It is contended by the petitioner that the substratum of the prosecution case is shattered by Annexure A-3 judgment and that in view of the law well settled in this regard by this Court in cases as in Ashraf Kancheriyil v. State of Kerala reported in 2011(2) KHC 8123, and in the Full Bench decision of this Court in the case Moosa v. Sub Inspector of Police reported in 2006 (1) KLT 552, para 50, as the substratum of the prosecution case is shattered by the acquittal of the co-accused by the above said judgment as per Annexure A-3, this Court may quash the impugned criminal proceedings pending against the petitioner herein, in the interest of justice, as otherwise, it would be mere wastage of judicial and administrative resources, as there is no evidence to prove the case of the prosecution against the petitioner as evident from Annexure A-3 judgment of the Sessions Court concerned. In the light of these facts and circumstances, the petitioner has instituted this Crl.M.C. invoking the inherent powers of this Court conferred as per Sec.482 of the Code of Criminal Procedure with the prayer to quash all the further impugned proceedings pending against the petitioner in Crl.M.C.6522/14 - : 5 :- S.C.No.796/2014 on the file of the Court of the Additional Sessions Judge-II, Kasargod. 4. Heard Sri.K.P.Harish, learned counsel for the petitioner and the learned Public Prosecutor appearing of the respondentState of Kerala. 5. It has been well settled by this Court in cases as in Ashraf Kancheriyil's case reported in 2011(2) KHC 812, that where the substratum of prosecution case is shattered by the judgment of acquittal of the co-accused, that could be taken into account while considering the prayer to quash the impugned criminal proceedings. In paragraph 50 of the Full Bench decision of this Court in the case Moosa's case reported in 2006(1) KLT 552, it has been held that where the substratum of the prosecution case is shattered by the previous judgment of acquittal of the co-accused, that could be taken into account while considering the request to quash the impugned criminal proceedings against the accused concerned. 6. Annexure A-3 is the judgment rendered on 22.12.2014 of the Additional Sessions Judge (Ad Hoc)-II, Kasargod, in S.C.No. 278/2009, whereby the said Court has acquitted four of the coaccused (viz., A-1 to A-4 in S.C.No.278/2009), who are A-2, A-6, Crl.M.C.6522/14 - : 6 :- A-4 and A5 respectively in Annexure A-2 final report/charge sheet. A perusal of Annexure A-3 judgment would make it clear that it is the evidence of the police officials concerned, who were examined as prosecution witnesses, PWs 1 to 4 and PW-6, which is relied on by the prosecution to establish its case. Their version as emerging from the prosecution case is that it was a group of people who pelted stones on them. They also stated that the accused were among them. PW-4 passed on a wireless message to PW-6 for getting additional police force and PW-4 had been in the spot at the time of PW-6 and parties reached the place. PW-4 would say that about 20 persons came there. At that time he was about to prepare mahazar for seizing one bike. But the court below has found that he could not withstand the test of cross examination during which time he stated that he could not identify the accused persons now as the incident took place four years back and that indisputably nobody had been arrested from the spot. Though PW-4 would depose that accused Nizar also was among the group who pelted stones, he had not stated so before the investigating officer. PW-4 would admit that he had no prior acquaintance with the accused persons. PW-1 who sustained injuries also stated in chief examination that it is the Crl.M.C.6522/14 - : 7 :- accused persons in the said case, who pelted stones, but in cross examination PW-1 would state that he had no prior acquittance with the accused persons and he had not given the description of the physical features of the accused persons to the investigating officer so as to enable him to identify them at a later stage. PW-1 would also say that he has no prior acquittance with the people who gathered at the place and that he had no occasion to see them thereafter. PW-2 would depose that the accused persons in the dock were among those who pelted stones at them and that the accused persons Nizar, Sameer, Nazeer, Ramshid and Umbaith were among them. But during cross examination he stated that he could not say the names of the accused persons as they are not known to him and that it was from others he came to know the names of the accused persons. So the court below held that his evidence is not helpful for the prosecution for identification of the accused. Similar line of evidence is also given by PW-3. PW-6 would depose that 50 persons had come to the spot and pelted stones and that though he also stated that it was the accused persons in the dock who attacked them, he had no such case before the investigating officer. Though PW-6 would state that he had got some indication with Crl.M.C.6522/14 - : 8 :- regard to the accused persons at the time of preparation of Ext.P1 seizure mahazar, he has not stated so in the said document. PW-6 would further state that it was through phone that he could ascertain the names of the accused. But he has not stated about the particulars of the persons who had informed him to the investigating officer. The court below thus concluded the evidence of PW-6 also is of no use for showing the involvement of the accused in the commission of the above said crime. These aspects are clear from a mere reading of paragraph 17 of Annexure A-3 judgment. In paragraph 18 of the said judgment, the court below has held that reliable evidence is not forthcoming to establish about the damage said to have been caused to the police jeep and about some other aspects also. After appreciating the entire evidence the Sessions Court concerned concludes in paragraph 19 of Annexure A-3 judgment that in a case of this nature, wherein throwing of stones came from a group consisting of 50 persons, the identification of the culprits has to be properly brought out on record and that none of the accused persons were arrested from the spot and none of the witnesses have identified properly any of the accused persons also and that the case is one wherein the Crl.M.C.6522/14 - : 9 :- prosecution has not brought out any convincing material to show the involvement of the accused in the commission of the crime and that it was accordingly held that the prosecution has not succeeded in proving its case beyond reasonable doubt. Accordingly, the accused in that case were acquitted and set at liberty under Sec.235 (1) Code of Criminal Procedure. Thus it is clear from the reading of Annexure A-3 judgment that the very substratum of the prosecution case is shattered by the acquittal of the co-accused as per that judgment. Accordingly, the following the approach made by this Court in the cases as in Ashraf Kancheriyil v. State of Kerala reported in 2011(2) KHC 812, etc. this Court is inclined to allow this petition. In the result the Criminal Miscellaneous Case is allowed and all the impugned criminal proceedings pending against the petitioner in S.C.No.796/2014 on the file of the Court of Additional Sessions Judge-II, Kasargod, are quashed. The petitioner shall produce certified copy of this order before the investigating officer concerned as well as before the Sessions Court concerned. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge Crl.M.C.6522/14 - : 10 :-