Hakeem and Abu Tahir v. State of Kerala

## **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. 7243 of 2014 ()** **--------------------------(SC 499/2013 of ADDL. ASSISTANT SESSIONS JUDGE, PALAKKAD ) CRIME NO. 497/1998 OF PALAKKAD TOWN SOUTH POLICE STATION , PALAKKAD** ## **PETITIONER(S)/ACCUSED NOS. 1 & 2:** **-----------------------------------------------------** ## **1. HAKEEM AGED 37 YEARS** ## **S/O. MUHAMEDUPPA, KIZHAKKE VENNAKARA HOUSE, PALAKKAD.** **2. ABU THAHIR, AGED 44 YEARS** - **S/O. ABDUL RAHIMAN, PUTHUPALLI THERUVU, PALAKKAD.** **BY ADV. SRI.T.K.SANDEEP** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **------------------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31.** **2. MURUGAN,, AGED 38 YEARS S/O. SANKARAN, PARAKKULAM HOUSE, THIRUNELLAYI PAALAYAM, PALAKKAD-678004.** **3. GURUVAYOORAPPAN,, AGED 45 YEARS S/O. PECHIYAPPAN, THIRUNELLAYI, PAALAYAM PALAKKAD-678004.** **4. GURUVAYOORAPPAN,, AGED 48 YEARS S/O. MANI, THIRUNELLAYI, PAALAYAM PALAKKAD-678004.** **R2-R4 BY ADV. SRI.GOKUL DAS V.V.H. R1 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. 7243 of 2014 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **ANX.I. A CERTIFIED COPY OF THE FIR AND FIS IN CRIME 497/1998 OF TOWN SOUTH POLICE STATION DATED 16-8-1998.** **ANX.II. A CERTIFIED COPY OF THE RELEVANT COPY OF THE FINAL REPORT FILED BY THE TOWN SOUTH POLICE, PALAKKAD DATED 12-11-1999. ANX.IIIA. THE CERTIFIED COPY OF WOUND CERTIFICATE OF MURUGAN S/O. SANKARAN, DATED 16-8-1998.** **ANX.III(B) THE CERTIFIED COPY OF THE WOUND CERTIFICATE OF GURUVAYOORAPPAN, S/O. PECHIYAPPAN, DATED 16-8-1998. ANX.III(C) THE CERTIFIED COPY OF WOUND CERTIFICATE OF GURUVAYOORAPPAN, S/O. MANI, DATED 16-8-1998.** **ANX.IV. A TRUE COPY OF THE JUDGMENT DATED 27-2-2009 IN S.C. NO. 207/2000 ON THE FILE OF THE SESSIONS JUDGE, PALAKKAD.** **ANX.V(A) A TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE INJURED PERSON NAMELY MURUGAN, S/O. SANKARAN DATED 16-8-1998.** **ANX.V (B) A TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE INJURED PERSON NAMELY GURUVAYOORAPPAN, S/O. PECHIYAPPAN, DATED 16-8-1998. ANX.V(C)A TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE INJURED PERSON NAMELY GURUVAYOORAPPAN, S/O. MANI, DATED 16-8-1998.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 7243 of 2014 ================== Dated this the 19[th] day of December, 2014 O R D E R The petitioners herein are accused Nos.5 and 8 in the impugned Annexure-I FIR in Crime No.497/1998 of Town South Police Station, Palakkad, registered for offences alleged under Secs.143, 147, 148, 341, 153(A) and 307 read with 149 of IPC. The brief of the prosecution case is that on 16.8.1998, at about 6 p.m., on the Thirunellai-Mercy College public road, the accused persons had wrongly restrained CW-1 and that A-3 beat CW-1 on his head with soda bottle and caused injury to him and that when CWs 2 and 3 came to rescue CW-1, the remaining accused beat them with hands and voluntarily caused hurt and that the accused made attempt to create hatred between different religions saying that PWs 1 to 3 are R.S.S. workers belonging to Hindu religion. That the accused persons belong to Muslim religion, etc. That the accused have committed the aforementioned offences, etc. After investigation, the Police filed the impugned Annexure-II final Crl.M.C.7243/14 - : 2 :- report/charge sheet in Annexure-I Crime No. 497/1998 of Palakkad Town South Police Station, which led to the institution of the Sessions Case, S.C.No.207/2000 on the file of the Court of the Additional Assistant Sessions Judge, Palakkad. It is stated that the petitioners, who are A-5 and A-8, did not participate in the trial as they had gone abroad for employment and so the case against them was split up. The trial was proceeded as against A-1 to A-4, A-6, A-7 and A-9 to A-13. Trial in S.C.No.207/2000 as against the other accused concluded and the learned Additional Assistant Sessions Judge, Palakkad, by Annexure-IV judgment dated 27.2.2009 in S.C.No.207/2000, had acquitted all the above said accused. It is stated that later the petitioners (A-5 and A-8 in the crime) appeared before the court and they are arrayed as accused Nos.1 and 2 in the case refiled and renumbered as S.C.No.499/2013 on the file of the Additional Assistant Sessions Judge, Palakkad. It is stated that the three material witnesses, who were allegedly the injured in the above said crime, were examined as PWs 1 to 3 in S.C.No.207/2000, have been arrayed as respondents 2 to 4 in this Crl.M.C. It is stated that respondents 2 to 4 have no grievance as against the petitioners herein and respondents 2 to 4 have submitted separate affidavits Crl.M.C.7243/14 - : 3 :- dated 20.10.2014, which are produced as Annexures V(a), V(b) and V(c) respectively in this Crl.M.C., wherein it is stated that they have no grievance as against the petitioners herein and that they have already deposed before the court below in the above said S.C.No. 207/2000 that it was not the accused persons, who had attacked them and that the names of the accused persons were not given by them to the Police and that considering their evidence, the other accused in the above said S.C.No.207/2000 have been acquitted and that the petitioners herein are not involved in the abovesaid crime and that respondents 2 to 4 have not made any allegations against the petitioners before the Police or any other authorities and that they have no grievances as against them and that the impugned criminal proceedings as against the petitioners may be terminated. It is in the background of these facts and circumstances that the petitioners herein have filed the instant Criminal Miscellaneous Case invoking the inherent powers conferred on this Court as per Sec.482 of the Code of Criminal Procedure with the prayer to quash the impugned criminal proceedings pending against the petitioners in S.C.No.499/2013 on the file of the Additional Assistant Sessions Judge, Palakkad, in the interest of justice. Crl.M.C.7243/14 - : 4 :- 2. The Crl.M.C. has been admitted and Sri.Gokul Das. V.V.H has taken notice for respondents 2 to 4 and the learned Public Prosecutor has taken notice for R-1-State of Kerala. 3. Heard Sri.Sandeep.T.K, learned counsel appearing for the petitioners, Sri.Gokul Das.V.V.H., learned counsel appearing for respondents 2 to 4 and the learned Public Prosecutor appearing for the 1[st] respondent-State. 4. In the instant case, all the other accused in the crime, viz., accused 1 to 4, 6, 7 and 9 to 13, have been acquitted by the court below as per Annexure-IV judgment rendered on 27.2.2009 in S.C.No.207/2000 on the file of the Additional Assistant Sessions Judge, Palakkad. The learned counsel for the petitioners have urged that the substratum of the case of the prosecution has been shattered by the acquittal of the co-accused in this case rendered as per Annexure-IV judgment and that this Court may quash the impugned criminal proceedings as against the petitioners in view of the dictum laid down by this Court in the cases as in Ashraf Kancheriyil v. State of Kerala reported in 2011(2) KHC 812, etc. It has been held by this Court in cases as in Ashraf Kancheriyil v. State of Kerala reported in 2011(2) KHC 812, that, as held in Crl.M.C.7243/14 - : 5 :- paragraph 50 of the Full Bench decision of this Court in the case Moosa v. Sub Inspector of Police reported in 2006 (1) KLT 552, that where the substratum of prosecution case is shattered by the previous judgment of acquittal of the co-accused, that could be taken into account while considering the prayer to quash the proceedings in question. So the vital question to be considered is as to whether the substratum of the prosecution case as against the petitioners is shattered by the acquittal rendered in Annexure-IV judgment. 6. In order to appreciate this issue, the details in Annexure-IV judgment are relevant. The court below found that the main allegation raised is that accused told PWs 1 to 3 that they are R.S.S. men belonging to Hindu religion and the court below held that above statement allegedly made by the accused will not hurt the feelings of members of any religion and that PWs 1 to 3 have not given any evidence to prove that the accused have made any such statement. Therefore, the court below concluded that there is nothing before the court to indicate that the accused have done anything to create hatred between two different religions. The main injured are PWs 1 to 3, who are arrayed as respondents 2 to 4 in this Crl.M.C.7243/14 - : 6 :- Criminal Miscellaneous Case. The court below in para 10 of Annexure-IV judgment has found that defacto complainant PW-1 has deposed thereby he has disowned the contents of Ext.P-1 F.I. Statement and that he has never told the Police that PWs 1 to 3 were attacked by the accused in the above said crime. PWs 2 and 3 had also given their evidence and PWs 1 to 3 have not given evidence to prove the overt acts alleged against the accused. Therefore, the court below held that there is no evidence to prove the involvement of the accused in the alleged incident. Accordingly, the court below held that there is no evidence to show that accused Nos.1 to 4, 6, 7 and 9 to 13, who faced the trial, have committed the alleged offences in question and that the accused are entitled to get an order of acquittal under Sec.232. 7. In this view of the matter, the court below found that accused Nos.1 to 4, 6, 7 and 9 to 13 are not guilty of the alleged offences. However, the case against A-5 and A-8 (the petitioners herein) was split up and refiled as they had not participated in the said trial. From a reading of Annexure-IV judgment, it is crystal clear that the substratum of the prosecution case as against the accused in the above crime has been shattered by the judgment of Crl.M.C.7243/14 - : 7 :- acquittal rendered as per Annexure-IV. PWs 1 to 3, who are the alleged injured in this case, have clearly stated that they were never attacked by the accused in this case. Moreover, PWs 1 to 3, who are arrayed as respondents 2 to 4 herein, have also filed affidavits as per Annexures V(a), V(b) and V(c) respectively, which have been produced in this Crl.M.C. stating that they have already deposed before the court below in the above said Sessions Case No.207/ 2000 that it was not the accused persons in the above crime, who attacked them and that the names of the accused persons in this case were not given by them to the Police and that the petitioners herein are not involved in the above crime and that respondents 2 to 4 have not made any allegation against the petitioners herein before the Police or any authorities. Therefore, the possibility of conviction of the petitioners is extremely remote. Moreover, the substratum of the prosecution case stands demolished due to the acquittal rendered by the court below as per Annexure-IV judgment. The learned counsel appearing for contesting respondents 2-4 has reiterated the submissions of respondents 2-4 made in their affidavits as per Annexures V(a), V(b) and V(c) and has submitted that the impugned criminal proceedings against the petitioners Crl.M.C.7243/14 - : 8 :- herein may be quashed. Therefore, this Court is of the considered opinion that the powers under Sec.482 of the Code of Criminal Procedure can be invoked in the facts and circumstances of this case, so as to quash the impugned criminal proceedings as against the petitioners. In the result, the Crl.M.C. is allowed. The impugned AnnexureII final report/charge sheet filed in impugned Annexure-I FIR in Crime No.497/1998 of Palakkad Town South Police Station, which led to the pendency of the Sessions Case, S.C.No.499/2013 on the file of the Additional Assistant Sessions Judge, Palakkad, and all further proceedings arising therefrom stand quashed. The petitioners shall produce certified copies of this order before the S.H.O. concerned and before the Court of the Additional Assistant Sessions Judge, Palakkad. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge Crl.M.C.7243/14 - : 9 :- sdk+ ALEXANDER THOMAS, JUDGE