Fahima and Abdul Khader B.A. @ Riyas v. State of Kerala and Addl. R2 Rekha

``` CRL.MC NO. 4579 OF 2020 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 CRL.MC NO. 4579 OF 2020`** ## **`LPC 11/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD PETITIONER/ACCUSED:`** ``` 1FAHIMA, AGED 37 YEARS W/O.ASHRAF, RESIDING AT DREAM HOUSE, ACHIKATTE, CHEKKIGUDDE, UDYAVAR, MANJESHWAR (P.O.), KASARAGOD DISTRICT. 2ABDUL KHADER B.A. @ RIYAS, AGED 41 YEARS S/O.ABBAS, RESIDING AT RIYAS MANZIL, KRAR NAGAR, BAPPYITHOTTI, UPPALA (P.O.), KASARAGOD DISTRICT. BY ADVS. JAWAHAR JOSE SRI.K.A.LALAN ``` ## **`RESPONDENT/S:`** ``` 1THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2REKHA, AGED 32 YEARS D/O LATE SOMA, GANDAHALLI, BELLAKKARA VILLAGE, SAKALESHPUR TALUK, HASSAN DISTRICT, KARNATAKA STATE PIN-573 134 ( IMPLEADED AS PER ORDER DATED 23.07.2021 IN CRL. M.A. 1/2021) ``` ``` R1 BY SRI SANGEETHA RAJ-PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4579 OF 2020 ``` ``` 2 ``` ## ORDER This Crl.M.C has been filed to quash all further proceedings in L.P.C.No.2/2011 on the file of the Judicial First Class Magistrate Court, Kasaragod (for short ‘the court below’) mainly on the ground of acquittal of the remaining accused. 2. A crime was registered by the Manjeshwaram Police as Crime No.422/2006 against the four accused including the petitioners for the offences punishable under Sections 120(b), 115, 323, 324 and 506(i) r/w 34 of IPC and Section 3(i)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC/ST (POA) Act’). The petitioners were the accused Nos.2 and 4 respectively in the crime. 3. After investigation, final report was laid against all the four accused. During committal stage, the petitioners herein remained absent. Hence, the case as against the accused No.1 and 3 alone were committed for trial to the Sessions Court, Kasaragod. ``` CRL.MC NO. 4579 OF 2020 ``` ``` 3 ``` The Sessions Court numbered the case as S.C No.231/2010. The case as against the petitioners were split up and numbered as C.P 237/2009 by the committal court. 4. The prosecution case in short is as follows: CW3 (PW5) belongs to a Scheduled Caste community by name Bakkuda. In order to extort money from him, the accused and others along with them who belongs to Muslim community entered into a conspiracy. CW3, is a school teacher taking tuition for grandchildren of accused No.1. The accused No.1 is residing along with her daughter Faheema (accused No.2 in the final report) in House No.MGP.XIV/107 at Anchikatta. The accused No.4 in the final report foisted a false allegation for the purpose of grabbing money from CW3 to the effect that CW3, during the absence of the accused No.1 and the accused No.2 in the house when came for imparting tuition classes for the grand children of the accused No.1, committed rape on CW2 (erst while maid servant of accused No.1) and impregnated her. In order to grab money, they conspired to ``` CRL.MC NO. 4579 OF 2020 ``` ``` 4 ``` foist a false allegation as against CW3, that it is he who impregnated CW2 and criminally intimidated him with death and demanded Rs.10,000/-. CW2 was made to speak in terms of false allegations which is a product of conspiracy between the accused. Such an allegation came through the mouth of CW2 when she was assaulted with iron bars and sprinkled chilly powder on her eyes by the accused No.1. When CW3 did not heed for the illegal demands of the accused, they lifted CW3 by force in a Maruti car and took him to several places, from where also the criminal intimidation and demand for money continued. Lastly, by about 8 pm., of 24.3.2006, CW3 was abandoned at Uppala town from where he escaped to his house and provided a first information statement to Manjeshwar Police which was registered as Crime No.102/2006. In order to escape from that case, the accused since criminal intimidation of CW3 hospitalised CW2 at Bandiyodu and made her to tender evidence that CW3, four days before that committed rape on her which was registered as Crime No.103/2006 for the offence ``` CRL.MC NO. 4579 OF 2020 ``` ``` 5 ``` under Section 376 of IPC. The accused who belongs to higher strata of society subjected CW3 for a false and malicious prosecution and thereby committed the offence under Section 3(2)(ii) of SC/ST (POA) Act. As the accused assulted CW2 who also belongs to a Scheduled Caste community of Karnataka by beating her with iron rod and sprinkling chilly powder against her eyes they have committed offences under Sections 323, 324 and 3(i)(xi) of SC/ST Act. 5. The Sessions Court after full fledged trial found that prosecution failed to prove its case and accordingly the accused Nos.1 and 3 who faced trial were acquitted. Annexure A9 is the judgment. Thereafter, the split up case as against the petitioners was numbered as L.P.C No.2/2011 and now it is pending before the court below. According to the petitioners, in view of the acquittal of the remaining accused, substratum of the prosecution case is dislodged. It is in these circumstances, they have filed this Crl.M.C invoking Section 482 of Cr.P.C. ``` CRL.MC NO. 4579 OF 2020 ``` ``` 6 ``` 6. I have heard Sri.Jawahar Jose, the learned counsel for the petitioners and Sri.Sangeetha Raj, the learned Public Prosecutor. 7. Even though earnest efforts have been taken by this Court to issue notice to the victim/2nd respondent, notice could not be served. Hence publication was ordered and paper publication was produced. Still, there is no appearance. 8. To prove the prosecution case, PWs 1 to 11 were examined and Exts.P1 to P12 were marked. On the side of the defence, Exts.D1 to D7 were marked. The prosecution mainly relied on the evidence of PW2 and 5 to prove its case. PW2 is the victim/injured. The court below after analyzing the evidence of PW2 found that the evidence of PW2 cannot be accepted at its face value to conclude that the accused who faced trial, (1 and 3) along with others (the petitioners) committed any of the offences. The court below further found that the evidence of PW5 also cannot be relied on at all. It was specifically found that the entire chief examination of PW5 or at least 90% of it were full of material omissions. A ``` CRL.MC NO. 4579 OF 2020 ``` ``` 7 ``` reading of Annexure A9 judgment would show that the substratum of the prosecution case is dislodged. 9. The Apex Court in Sahadevan and Another v. State of Tamil Nadu (2012 (6) SCC 403) has held that, if the entire prosecution case has been found to be unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt, then benefit should accrue to all the accused persons and not merely to the accused, who faced trial. The Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] in paragraph 50 held that in a case where the very substratum of the case is lost by the acquittal of the co-accused, the power under Section 482 of the Cr.P.C. could be invoked. Here is a case where the entire prosecution case was found to be unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt. Hence, no purpose will be served in proceeding with the trial of the case. For the reasons stated above, I am of the view that this is a ``` CRL.MC NO. 4579 OF 2020 ``` ``` 8 ``` fit case where the jurisdiction vested with this Court under Section 482 of Cr.P.C could be invoked. Accordingly, all further proceedings in L.P.C No.2/2011 on the file of the Judicial First Class Magistrate Court, Kasaragod are hereby quashed. Crl.M.C is allowed. Sd/DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 4579 OF 2020 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 4579/2020`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`ANNEXURE A1`|`CERTIFIED COPY OF THE JUDGMENT DATED`| ||`14.5.2013 IN C.C.NO.899/2007 OF THE CHIEF`| ||`JUDICIAL MAGISTRATE COURT, KASARAGOD.`| |`ANNEXURE A2`|`TRUE COPY OF THE JUDGMENT DATED 25.2.2020`| ||`IN CRL.M.C.NO.5940/2019 OF THIS HON'BLE`| ||`COURT.`| |`ANNEXURE A3`|`CERTIFIED COPY OF THE JUDGMENT DATED`| ||`6.1.2011 IN C.C.NO.898/2007 OF THE CHIEF`| ||`JUDICIAL MAGISTRATE COURT, KASARAGOD.`| |`ANNEXURE A4`|`TRUE COPY OF THE JUDGMENT DATED 2.9.2019`| ||`IN CRL.M.C.5975/2019 OF THIS HON'BLE`| ||`COURT.`| |`ANNEXURE A5`|`CERTIFIED COPY OF THE F.I.R. IN CRIME`| ||`NO.422/2006 OF MANJESHWAR POLICE STATION.`| |`ANNEXURE A6`|`CERTIFIED COPY OF THE FINAL REPORT FILED`| ||`UNDER SECTION 173 OF THE CRIMINAL`| ||`PROCEDURE CODE IN CRIME NO.422/2006 OF`| ||`MANJESHWARAM POLICE STATION.`| |`ANNEXURE A7`|`CERTIFIED COPY OF THE ORDER DATED`| ||`19.2.2011 OF THE CHIEF JUDICIAL`| ||`MAGISTRATE COURT, KASARAGOD.`| |`ANNEXURE A8`|`CERTIFIED COPY OF THE DOCKET SHEET IN`| ||`L.P.C.NO.2/2011 OF THE JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT, KASARAGOD.`| |`ANNEXURE A9`|`CERTIFIED COPY OF THE JUDGMENT DATED`| ||`11.8.2014 IN S.C.NO.231/2010 OF THE`| ||`SESSIONS COURT, KASARAGOD.`| |`ANNEXURE A10`|`TRUE COPY OF THE APPLICATION FOR`| ||`CERTIFIED COPY APPLIED IN THE`| ||`AFOREMENTIONED L.P.C.NO.2/2011.`| RESPONDENTS ANNEXURES: NIL