Hussain and Janardhanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944** ## **CRL.MC NO. 9458 OF 2022** **AGAINST SC 476/2016 OF ASSISTANT SESSIONS COURT,NEYYATTINKARA** ## **PETITIONERS/ACCUSED 5 AND 7:** **1 HUSSAIN AGED 41 YEARS, S/O SAINULABDEEN, RESIDING AT AKBAR MANZIL, VAZHAKOOTTATHIL PADINJATTATHIL, SAMASTHAM NAGAR, ERAVIPURAM.P.O, KOLLAM DISTRICT, PIN - 691011** **2 JANARDHANAN AGED 51 YEARS, S/O THANKAPPAN NAIR, RESIDING AT KALABHAVAN VEEDU, MANAGALAIKKAL, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695572** **BY ADVS. J.R.PREM NAVAZ SUMEEN S.** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 2 NAZEER.P AGED 50 YEARS, S/O PEERUMUHAMMED, RESIDING AT POTTAVILA, PAZHAYAKARAKKAMANDAPAM, NEMOM P.O, NEMOM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695020** Crl.M.C. No.9458/22 **-:2:-** **BY ADVS. SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR AJOY VENU** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.9458/22 **-:3:-** ## **BECHU KURIAN THOMAS, J. ------------------------------------Crl.M.C. No.9458 of 2022 ------------------------------------** Dated this the 2[nd] day of February, 2023 ## **ORDER** Alleging that the substratum of the prosecution case has eroded, due to the acquittal of the co-accused, petitioners have approached this Court under section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) seeking to quash all proceedings initiated against them in S.C. No.476 of 2016 on the files of the Assistant Sessions Court, Neyyattinkara. 2. Petitioners are accused Nos. 5 and 7 in Crime No.51 of 2004 of Nemom Police Station, Thiruvananthapuram. After investigation, a final report was filed, alleging offences punishable under sections 143, 147, 148, 452, 427, 324, 326 and section 307 read with section 149 of the Indian Penal Code, 1860, apart from section 27 of the Arms Act, 1959. Cognizance was taken, and after committal, the Sessions Court numbered the case as S.C. No.90 of 2006. Since the petitioners, who are accused Nos. 5 and 7, were absconding, the case against them was split up and thereafter, trial continued as against the remaining accused. By judgment dated 30.02.2016, the learned Sessions Judge acquitted accused Nos.1 to 4 and 6 in S.C. No.90 of 2006. Crl.M.C. No.9458/22 ## **-:4:-** 3. Sri. J.R. Prem Navaz, learned counsel for the petitioners contended that by the acquittal of accused Nos.1 to 4 and 6 as per Annexure-A2 judgment, the very substratum of the prosecution case had eroded and therefore continuance of the prosecution against accused Nos.5 and 7, who are the petitioners herein, is only a waste of judicial time and no conviction could be entered into after trial. 4. Sri.C.N.Prabhakaran, learned Public Prosecutor on the other hand opposed the contentions and submitted that merely because accused Nos.1 to 4 and 6 have been acquitted, that does not mean that the prosecution case is weakened as against the petitioners. It was also submitted that the benefit of acquittal of a co-accused is not available to the absconding accused merely for the asking and that, only in exceptional cases, can such benefits accrue to the co-accused. 5. In the decision in **Moosa v. Sub Inspector of Police** (2006 (1) KLT 552) a Full Bench of this Court had laid down the principles as to the manner in which the benefit of acquittal of a co-accused can be given to other accused. It is to be borne in mind that in a trial against the coaccused, the prosecution is not called upon, nor is it expected to adduce evidence against absconding co-accused. In the trial against the accused present before the court, the prosecution need not and does not have the opportunity or the obligation to adduce all evidence against the Crl.M.C. No.9458/22 **-:5:-** absconding co-accused. Merely because the testimony of a witness was not accepted or acted upon in the trial against a co-accused cannot be a reason to assume that he shall not render incriminating evidence or that his evidence will not be accepted in the later trial. However, each case has to be considered to identify whether the same would fall under the extraordinary inherent jurisdiction under section 482 of the Cr. P.C to bring about a premature termination of the proceedings. 6. With the aforesaid principles in mind, when the facts of the present case are appreciated, it can be noticed from the prosecution case that, on 09.02.2004 the seven accused had formed themselves into an unlawful assembly armed with deadly weapons and in pursuance of their common object to commit murder, they trespassed into the courtyard of the defacto complainant and the first accused attacked CW2 with a chopper causing injuries on his head while A3 had attacked CW2 with a sword resulting in the loss of an index finger and when CW3 intervened, the fifth accused assaulted him with an iron-rod and after destroying the window panes of the house and causing riot, the accused left the scene. The motive for the attack is alleged to be the eloping of a relative girl of the accused with a person by the name Sajeer with the aid of CW2. 7. In the trial against accused Nos.1 to 4 and 6, one of the two injured witnesses i.e., CW2, was examined as PW1 while CW3 was not **-:6:-** Crl.M.C. No.9458/22 examined as a witness. PW1 did not support the prosecution case. Apart from stating that the matter has been settled out of court, he had in the cross-examination stated that there was no test identification parade and that there were about 50 persons who had attacked him and the names of the accused were mentioned by him to the police on the basis of information given by other persons and not based on his personal knowledge. Of the remaining witnesses PWs 2 to 6 did not support the prosecution case and hence were declared hostile. Thus there was absolutely no evidence of any nature before the court to find the accused guilty, and hence they were acquitted. 8. One of the crucial aspects to be noticed while considering whether the extraordinary jurisdiction should be invoked to quash the proceedings against two absconding accused on the basis of acquittal of the co-accused is the nature of evidence tendered by the injured witness PW1. In the deposition of PW1 it was stated that in the trial against accused Nos.1 to 4 and 6 the names of the accused were given to the police by him on the basis of hearsay evidence and not on his direct knowledge. Apart from the above, he had also deposed that there were about 50 people who had come to attack him and further that there was no test identification parade. In my opinion, the above three aspects are very crucial while considering whether the substratum of the prosecution case Crl.M.C. No.9458/22 **-:7:-** has eroded so as to grant the benefit of acquittal of co-accused to the petitioners. 9. Once the injured witness states that the names of the accused were not given by him on the basis of his personal knowledge and that there were 50 persons who had come to attack him, apart from the absence of test identification parade, this Court is of the view that the substratum of the prosecution case has eroded. The said evidence is not specifically as against those accused who were arrayed for trial but applies to the generality of the prosecution case including that against the petitioners. It affects the very edifice of the prosecution case, and hence no purpose would be served by continuing the prosecution against the petitioners. 10. In this context it is also necessary to bear in mind the deposition of PW1 that the matter has been settled out of court between the parties. Of course, as held by the Supreme Court in **State of Madhya Pradesh v. Laxmi Narayan and Others** [(2019) 5 SCC 688] the offence under section 307 falls in the category of serious and heinous crimes and hence cannot be quashed merely on the basis of settlement arrived at between the parties. Though the benefit of settlement cannot be availed to quash the proceedings against the petitioners, this Court can certainly consider the said statement also for the purpose of extending the benefit of Crl.M.C. No.9458/22 **-:8:-** acquittal of co-accused to the petitioners in the peculiar circumstances of the case and the nature of evidence that has already been given by the witnesses. 11. In view of the above consideration, the proceedings against the petitioners pursuant to the final report in Crime No.51/2004 of Nemon Police Station, Thiruvananthapuram, pending as S.C. No. 476 of 2016 on the files of the Assistant Sessions Court, Neyyattinkara, is an abuse of the process of the court and is hence quashed. This Crl.M.C is allowed as above. **Sd/BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.9458/22 ## **-:9:-** ## **APPENDIX OF CRL.MC 9458/2022** **PETITIONER'S/S' ANNEXURES** **ANNEXURE A1** **THE TRUE COPY OF THE FINAL REPORT/ CHARGE SHEET IN CRIME NO.51 OF 2004 OF NEMOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT** **ANNEXURE A2** **THE TRUE COPY OF THE JUDGMENT DATED 30.02.2016 IN SC 90 OF 2006 PASSED BY THE COURT OF ASSISTANT SESSIONS JUDGE, NEYYATTINKARA** **ANNEXURE A3** **THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT**