Fahima and Riyas @ Abdul Khader v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **Crl.MC.No.5975 OF 2019(F)** **AGAINST THE ORDER/JUDGMENT IN LPC 53/2011 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD** **CRIME NO.105/2006 OF Manjeswar Police Station , Kasargod** ## **PETITIONER/S:** - **1 FAHIMA, AGED 36 YEARS, W/O.ASHRAF, RESIDING AT DREAM HOUSE, ACJHIKATTE, CHEKKIGUDDE, UDYAVAR, MANJESHWAR(P.O.), KASARAGOD DISTRICT.** **2 RIYAS @ ABDUL KHADER, AGED 40 YEARS S/O.ABBAS, RESIDING AT NIYAS MANZIL, KISAR NAGAR, BAPPYITHOTTI, UPPALA(P.O.), KASARAGOD DISTRICT. (THE NAME WRONGLY SHOWN AS RIZWAN @ RIJU @ ABDUL KHADER, IN MAGISTRATE COURT).** **BY ADVS. SHRI.JAWAHAR JOSE SRI.K.A.LALAN** ## **RESPONDENT/S:** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **OTHER PRESENT:** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 5975 of 2019 ================== Dated this the 2[nd] day of September, 2019 **O R D E R** The prayers in the above Criminal Miscellaneous Case filed under Sec. 482 of the Code of Criminal Procedure are as follows: _“........ to call for the records leading to the case and to quash all further proceedings in L.P.C No.53/2011 on the file of the files of the Chief Judicial Magistrate's Court, Kasargod.”_ 2. Heard Sri.Jawahar Jose, learned counsel appearing for the petitioners and Sri.T.R.Renjith, learned Prosecutor appearing for the respondent State. 3. The petitioners herein were arrayed as accused Nos. 2 and 4 in the Calendar Case C.C.No.898/2007 on the file of the Chief Judicial Magistrate's Court, Kasargod, which arose out of the impugned Anx. A-2 final report/charge sheet filed in Anx. 1 FIR in Crime No. 105/2006 of Manjershwaram Police Station, which was registered for offences under Sec.365 read with Sec. 34 of the I.P.C. Originally four persons were arrayed as accused in the instant criminal proceedings and the case against the petitioners herein (original accused Nos.2 and 4) was clubbed with that of original accused 1 and 3. Later, the case as against petitioners herein (A-2 and A-4) was split up and trial as against A-1 and A-3 proceeded, Crl.M.C.5975/19 - : 3 :- which culminated in Anx.A-4 judgment of acquittal dated 6.1.2011 in C.C.No.898/2007 rendered by the Chief Judicial Magistrate's Court, Kasargod. The case against the petitioners herein was later included in the long pending case list and renumbered as LP C No.53/2011 on the file of the file of the above court. The offences alleged against the petitioners in the instant case are those under Sec. 365 read with Sec. 34 of the I.P.C. 4. The brief of the prosecution case is that the accused persons had abducted the defacto complainant's wife's sister, Rekha, on 30.3.2006 at about 1.30 p.m. in a Maruthi car, when he went to the house of A-1 for taking his sister-in-law to his house, as his wife was not keeping well. According to the evidence adduced by the prosecution, the witness examined as P.W-1 (Krishnappa) in C.C.No. 898/2007, is the person, who is said to have filed complaint to the Police and according to that witness, when he along with P.W-3, reached the house of A-1, they saw the accused persons taking his sister-in-law, Rekha, in a car. The trial court has now conclusively found in Anx.A-4 judgment that the evidence of P.Ws-1 and 3 would not attract the offence under Sec. 365 of the I.P.C. The only other witness examined to prove the abduction is the person, who is said to have abducted the abovesaid Rekha, who was examined as P.W-2. Crl.M.C.5975/19 - : 4 :- According to P.W-2, the accused persons had taken her to the office of the Deputy Superintendent of Police and then to the office of an Advocate concerned, from where to an orphanage. The trial court found that the said evidence of P.W-2 would not attract offence under Sec. 365 of the I.P.C. 5. The main contention raised by the petitioners is that the acquittal of the co-accused persons (A-1 and A-3) as per Anx. A-4 judgment by the trial court has demolished the very substratum of the prosecution case in this case and hence the further continuance of the impugned criminal proceedings as against the petitioners herein (original A-2 and A-4) is a sheer abuse of the process of the court as it is a futile exercise, which would inevitably lead only to the acquittal of the petitioners herein. 6. It will be profitable to refer paragraphs 15 to 18 of Anx.A-4 judgment of acquittal, which read as follows: _“15. Admittedly it was in the house of A1 and A2 Rekha was working as a servant at the time when the offence was said to have been committed. The fact that Rekha was working as a servant in the house of A1 is spoken to by Rekha herself when she was examined as PW2. PW1, the complainant who is the husband of PW2's elder sister also gave evidence to the that effect. Apart from it A1 herself when examined u/s. 313 Cr.P.C., filed a written statement wherein she stated that PW2 had been in her house for sometime as a servant. Out of the 7 witnesses examined as PW1 to 7, only the evidence of PW1 to 3 is material to prove the case of kidnapping projected by the prosecution. PW4 is an only attestor to scene mahazar. PW6 is the S.I. of police who translated the statement given by PW2 in Thulu into Malayalam. PW5 is the Police Constable who translated F.I. Statement given by PW1 in Thulu to Malayalam and PW7 is the S.I. of Police who registered F.I.R., conducted investigation and filed charge sheet. So let me_ Crl.M.C.5975/19 - : 5 :- _see whether PW1 to 3 have given any reliable materials to establish the case of prosecution that the accused persons have committed the offences as alleged._ _16. What is stated by PW1 is that it was when he reached the house of A1 and A2 to take PW2 to her native place as his wife who is the elder sister of PW2 was not well the accused did not permit him to take PW2 with him and that he had seen the accused persons taking PW2 in a car. According to him it was through one Kasim who is his friend and a countryman PW2 could serve there as a servant. So it was with Kasim PW1 went to the house of A1 who did not permit him to take PW2 back but at the same time he had seen A1 going in a car along with A2 and PW2. From the evidence of PW1 one cannot gather whether PW2 was forcibly taken. PW1 was also not made to state that PW2 had ever cried for help while in a car. It was PW3 who had shown the house of A1 to PW1. According to him, it was PW1 who had told him that PW2 was taken by accused in a car. Though he also had seen the car in which he found 5 or 6 persons it was from PW1 he came to know that PW2 also was there in the car. His evidence is also not sufficient to hold that the accused had used any force against PW2 to go with the accused. Both PW1 and 3 had not witnessed anything unusual to suggest that it was by force PW1 was taken in a car. In view of the above said aspects I cannot but hold that by examining PW's 1 to 3, prosecution has not brought out any materials to show that the accused had kidnapped PW2._ _17. Now only the evidence of PW2 is there who can be said to be the competent person to swear something with regard to the role of the accused in the commission of offence. PW2 is the victim who is alleged to have been kidnapped. It is her case that while she was working as a servant in the house of A1 she used to go out of the house for telephoning to elder sister and on two such occasions she had gone to STD Booth and on such occasions it was with one Puthu who entrusted her in the house of A1 for work, she went to the STD Booth. It was on one such occasion when she was taken to a STD Booth the incident in this case occurred, according to her. The very version of PW1 makes it appear that it was not out of fear she had gone with them. But when the case of the prosecution is that it was in a car PW2 was taken by the accused, case of PW2 is that it was in an auto rickshaw she went with them. This can be seen in page 3 of her deposition. It was with Puthu she went outside according to her, who stated so in page 2 and 3 of her deposition. This is repeated in page 5 where her case is that when she went outside with Jameela and Fathima who are A1 and A2 in this case were in the house. So at the time when she went outside of the house for telephoning her sister on which date the incident in this case took place according to her, accused persons had not been with her. It is for the first time she stated in page 18 of her deposition that at the time when accused had accompanied Rajesh Master in a car, she also was in the vehicle. It is her case that A1 and A2 had asked her to say that Rajesh Master had raped her, that when Rajesh Master came when they sent for him he was asked to pay some amount stating that he had raped on PW2 and that when Rajesh master wanted to contact his friend to arrange money when he went, accused persons and she herself was in the car along with Rajesh Master. What is stated by her is that accused persons threatened Rajesh Master while travelling in the car, that when the car reached Hossengady, she and A1 got down and others had gone to some other place which she did not_ Crl.M.C.5975/19 - : 6 :- _know. No where in her evidence, PW2 had stated that the accused had kidnapped and threatened her. Her case is that she was not permitted to go with PW1. This can be seen in the page 21 of her deposition. According to her A1 had taken her to SMS office and to the office of an Advocate. This case of PW2 is tallying with the case set up by the accused. Accused No.1 filed a written statement at the time of her examination u/s. 313 Cr.P.C. stating that after getting legal advice she produced PW2 to the police._ _18. Here is a case wherein PW2 the victim has no case that the accused had forcibly taken her from the house of A1 where he was working as a servant to some other place. She has not even a case of inducement from the part of the accused to go to any place. In other words necessary ingredients which are necessary to constitute the offence alleged are absent on this case. The prosecution has not succeeded in proving that the accused persons had committed the offences alleged. This point is found in negative._ _POINT NO.2. In view of the finding in point No.1, this point does not arise for consideration._ _20. In the result, I find A-1 and A-3 not guilty of offence punishable under Sec. 365 r/w 34 I.P.C. and acquit them u/s. 248(1) Cr.P.C. Their bail bonds are cancelled and they are set at liberty.”_ 7. A reading of Anx.A-4 judgment of acquittal of the co-accused persons and the other relevant prosecution materials made available in this case would lead to the inevitable conclusion that the said acquittal of the co-accused persons has led to the demolition of the very foundation of the prosecution case and therefore, the continuance of the impugned criminal proceedings as against the petitioners herein is an abuse of the process of the court. 8. 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 co-accused Crl.M.C.5975/19 - : 7 :- persons, 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. 9. In that view of the matter, it is ordered in the interest of justice that the impugned Anx.A-2 final report/charge sheet filed in the impugned Anx. A-1 FIR in Crime No.105/2006 of Manjeshwaram Police Station, which has led to the pendency of LPC No.53/2011 on the file of the Chief Judicial Magistrate's Court, Kasargod, and all further proceedings arising therefrom pending against the accused persons herein will stand quashed. The 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 a copy of this order to the investigating officer concerned for information. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE F.I.R. IN CRIME NO.105/2006 OF**| |---|---| ||**MANJESHWARAM POLICE STATION.**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE FINAL REPORT FILED UNDER**| ||**SECTION 173 OF THE CRIMINAL PROCEDURE CODE IN CRIME**| ||**NO.105/2006 OF MNJESHWARAM POLICE STATION.**| |**ANNEXURE A3**|**COPY OF THE MEMO OF EVIDENCE SUBMITTED BY THE**| ||**INVESTIGATING OFFICER ALONG WITH ANNEXURE A2 REPORT.**| |**ANNEXURE A4**|**CERTIFIED COPY OF THE JUDGMENT DATED 06.01.2011 IN**| ||**CC NO.898/2007 OF THE CHIEF JUDICIAL MAGISTRATE**| ||**COURT, KASARAGOD.**| |**ANNEXURE A5**|**CERTIFIED COPY OF THE PROCEEDINGS IN CC NO.6/2011.**| |**ANNEXURE A6**|**COPY OF THE EVIDENCE OF PW-1 IN CC NO.898/2007 OF**| ||**THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD.**| |**ANNEXURE A7**|**COPY OF THE EVIDENCE OF PW-2 IN CC NO.898/2007 OF**| ||**THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD.**|