Jinish 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.5700 of 2014 (C) --------------------------SC 521/2014 of PRL.ASSISTANT SESSIONS COURT, IRINJALAKUDA CRIME NO.569/2010 OF VELLIKULANGARA POLICE STATION, TRISSUR PETITIONER/ACCUSED: --------------------------- JINISH, AGED 30 YEARS, S/O. KUNJIKUTTAN, ERUVEETIL HOUSE, KUTTICHIRA VILLAGE KARAPADAM DESOM, THRISSUR DISTRICT - 680 724. BY ADV. SRI.A.C.DEVY RESPONDENT/RESPONDENT: -------------------------------- THE STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-122014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5700 of 2014 (C) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------- A1 - TRUE COPY OF RELEVANT PAGES OF THE FINAL REPORT IN CRIME 569/10 OF VELLIKULANGARA POLICE STATION. A2 - THE CERTIFIED COPY OF THE DEPOSITION OF PW1 A3 - THE CERTIFIED COPY OF THE DEPOSITION OF PW2 A4 - THE CERTIFIED COPY OF THE DEPOSITION OF PW3 A5 - TRUE CERTIFIED COPY OF JUDGMENT BY WHICH THE ACCUSED PERSONS WERE ACQUITTED IN SC NO. 339/11 RESPONDENT(S)' EXHIBITS: NIL -------------------------------- // TRUE COPY // P. A TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.5700 Of 2014 --------------------------------Dated this the 19[th] day of December, 2014.** ## **O R D E R** The petitioner herein is the original accused No.3 in S.C.No.339/2011 on the file of the Principal Assistant Sessions Court, Irinjalkkuda which arose out of C.P.No.3/2011 on the file of the Judicial First Class Magistrate Court, Chalakudy which in turn arose out of Crime No.569/2010 of Vellikulangara Police Station. The prosecution allegation against the petitioner along with six others are in respect of offences alleged under Secs. 143, 147, 148, 341, 323, 324, 308, 427 r/w 149 IPC and Sec. 27 of the Arms Act. The prosecution case is that on 27.10.2010 at 10:30 p.m., accused Nos.1 to 7 wrongfully restrained CW1 while he was riding his vehicle bearing No.KL-45-B-4435 through Chaipankuzhy-Kuttichira public road and after wrongfully restraining CW1, the 1[st] accused pulled him out from the autorickshaw and inflicted a cut injury towards the head of CW1 and accused Nos.2 & 3 also manhandled CW1 and thereafter the 1[st] accused destroyed the windscreen of the said vehicle with sword and thereby caused mischief to the property and the other ::2:: ## **Crl.M.C.No.5700 Of 2014** accused also supported accused Nos 1 to 3 in doing this illegal act etc. The police after investigation submitted Annexure-A final Report/Charge Sheet in Crime No.569/2010 of Vellikulangara Police Station. All the accused persons including the petitioner appeared before the court below and enlarged on bail at the crime stage and the case was initially numbered as C.P.No.3/2011 on the file of the Judicial First Class Magistrate Court-Chalakudy. The Magistrate committed the case to the Sessions Court, Thrissur which was later transferred to the Principal Assistant Sessions Court, Irinjalakuda for trial as S.C.No.339/2011. It is stated that in the meanwhile, the petitioner obtained a job in the Gulf country and in order to support his family as he is the sole breadwinner of the family, he went abroad and had been working there and therefore, he could not participate in the trial. 2. It is pointed ut that after trial, the learned Principal Assistant Sessions Judge, Irinjalakuda acquitted the accused persons as per Annexure-E judgment dated 17.7.2014 in S.C.No.339/2011. The case against the petitioner herein (A3) was refiled as S.C.No.521/2014. Annexures B, C & D are the certified copies of depositions of PWs 1 to 3 before the trial court ::3:: ## **Crl.M.C.No.5700 Of 2014** in S.C.No.339/2011 which led to the acquittal of the accused as per Annexure-E judgment. The petitioner would pray that the substratum of prosecution case is shattered on the acquittal of all the other accused in Annexure-E judgment and therefore the impugned criminal proceedings pending against him may be quashed in the light of the decision of this Court in _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011 (2) KHC 812 which is on the basis of the dictum laid down in paragraph 50 of the Full Bench decision in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552 (FB). It is in the light of these factual aspects and legal contentions that the petitioner has filed this Crl.M.C by invoking the inherent powers conferred on this Court as per Sec. 482 Cr.P.C with the prayer to quash the impugned Annexure-A Final Report/Charge Sheet filed in Crime No.569/2010 of Vellikulangara Police Station and all further proceedings pending against the petitioner in S.C.No.521/2014 pending before the Principal Assistant Sessions Court, Irinjalakuda. 3. Heard both sides. ## 4. This Court in the case _**Ashraf Kancheriyil v. State**_ _**of Kerala**_ reported in 2011 (2) KHC 812, after relying on the ::4:: ## **Crl.M.C.No.5700 Of 2014** dictum laid down in paragraph 50 of the Full Bench decision in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552 (FB) has held that where the substratum of prosecution case is shattered by the previous judgment of acquittal of the coaccused, same could be taken into account while considering the prayer to quash the impugned criminal proceedings in question. So, the issue to be considered in this case is as to whether the substratum of prosecution case against the petitioner has been demolished by judgment of the Principal Assistant Sessions Court as per Annexure-E judgment whereby all the other co-accused have been acquitted. 5. On a perusal of Annexure-E judgment of acquittal, the following crucial aspects are discernible. After a meticulous analysis of the evidence on record, the court below has found that the testimony of PW1 is bad for embellishment and exaggerations. That PW1 himself had given Ext.P1 FI statement as if only there are three accused in this case, whereas later while giving evidence has has developed a case that there are more than three persons and that they had given the names and addresses of the seven persons as the alleged attackers. The testimony of PW1 that he was treated as inpatient for three days ::5:: ## **Crl.M.C.No.5700 Of 2014** and that he sustained injury at his palm is found to be unbelievable by the court below especially after taking into account the evidence given by PW11, who is the doctor who treated PW1. PW11 would say that PW1 has suffered only lacerated injury and that he would say that if the sharp edge portion of MO1 weapon had been used for commission of offence, injury could have been an incised wound and there is no chance for a lacerated wound etc. Ext.P8 wound certificate would show that PW1 was discharged on the very same day (28.10.2010) which fact is discernible from Ext.P8 also. Whereas PW1 has a specific case that he has treated as inpatient for three days. The court on calling for the medical records from the hospital concerned marked as Ext.X1, it is seen that there are alterations in the medical records by using different ink by adding certain remarks therein so as to insert certain other additional details. The court below accepted the plea of the accused that PW1 and others got admitted in the hospital and treated as inpatient for three days. The court below also found that the entire incidents occurred due to political rivalry between the accused who belong to the congress party and between PW1 and his group who belong to opposition party (CPIM) and the incidents happened on ::6:: ## **Crl.M.C.No.5700 Of 2014** the date of declaration of the results of the Panchayath elections held in 2010. The court also found that there was previous enmity between PW1 and some of the accused. The court found that the accused cannot be found fault with solely on the testimony of PW1. Due to several other aspects based on the detailed appreciation of the evidence, the court below found that the version of PW2 is also not credible. PW2 clearly gave evidence that PW3 was not present anywhere near the place of occurrence whereas PW3 deposed that he was present in the place of occurrence and he has witnessed the events. The court below found that PW3 is an accused in many criminal cases and also in offence relating to possession of illicit spirit and ganja. The court below came to the conclusion that when the specific case of the prosecution and PW1 was that more than 50 supporters of the CPIM party available in the place of occurrence, it is highly unreliable to rely on the evidence of PW3, who is having criminal antecedents and that prosecution has not chosen to examine any of the other persons who were said to be included among the 50 persons who were allegedly present at the scene of occurrence etc. PW5 clearly deposed that he had signed in Ext.P6 scene mahazar as a witness without knowing ::7:: ## **Crl.M.C.No.5700 Of 2014** any of the contends in scene mahazar. PW6 had also deposed during cross-examination that he did not know the contents of Ext.P4, though he had affixed his signature in Ext.P6 mahazar. PW7 had stated that CW8 did not handover any documents to the police at the time of preparation of Ext.P5. PW8 has stated that though his signature is available in Ext.P6 mahazar he was not present at the time when MO1 was recovered in this case. PW12, the Motor Vehicle Inspector had stated in his vehicle inspection report that he did not note down the details regarding the loss caused by way of damages to the wind shield glass of the vehicle. PW9 has stated that he did not witness the accused producing MO1 sword to the police and that he affixed his signature in the mahazar at the police station in a blank paper. So, both the independent witnesses to the alleged recovery under Sec. 27 of the Indian Evidence Act thus categorically stated before the court that they did not witness the accused producing MO1 before the police pursuant to the alleged confession statement given by A1, the court below found that the version of the prosecution regarding the alleged recovery under Sec. 27 of the Indian Evidence Act is not credible. ::8:: ## **Crl.M.C.No.5700 Of 2014** 6. The court below in paragraph 31 of Annexure-E judgment found that PW1 did not tell PW13 that accused 1 to 3 had manhandled him and that apart the 1[st] accused did not alarm and direct others to kill PW1. PW 13 would also state that the role of A4 to A7 were not stated to him by PW1 in this case. That PW1 did not tell PW13 at the time of Ext.P1 FI statement that 1[st] accused was keeping the sword on the side of his house. On a detailed analysis of testimonies of PW13 that Ext.P1 FI Statement and oral testimony of PW3, the court below found that this would probabilise the claim of the accused that PW1 is giving an exaggerated version and that PW1 is not a witness of truth. In paragraph 33 of Annexure-E judgment, the court below found that PW16 had stated that he had arrested A5 in this case on 28.11.2010 and that on 29.11.2010 A5 was produced before the court. That on 4.12.2010, he had arrested A3 and on 9.10.2010 he has arrested A1 & A2. The court below found that as a matter of fact A1 & A2 in this case have appeared before the police as the direction of the High Court. Hence, in such circumstances, the court below found that it cannot be believed that A1 would have given confession statement to the effect that he has kept MO1 sword beneath the cot at his house. Hence the court below ::9:: ## **Crl.M.C.No.5700 Of 2014** concluded that Ext.P6(a) which is allegedly given by the 1[st] accused cannot be believed at all. Hence the court below found that recovery of MO1 sword allegedly from the house of the 1[st] accused is a fake recovery since both independent witnesses to the recovery have not supported the case of the prosecution and the prosecution has failed to prove the recovery also. The court below also found that right from the stage of FI Statement PW1 has deposed that the 1[st] accused was armed with a sword. In the FIR also the said fact is well stated and despite this, it took more than two months to incorporate Sec. 27 of the Arms Act as an offence in the crime. PW16 deposed before the court that MO1 can be used for domestic and agricultural purposes and there was no prohibition in holding such agricultural implement at that time at the place of occurrence. The court below found that incorporation of Sec. 27 of the Arms Act was made with a view to help PW1' case and that has no footing in the exact state of affairs. The Court below as per Annexure-E judgment found that prosecution has miserably failed to bring forth the guilt of the accused beyond reasonable doubt and that there is absolutely no evidence to show that the accused persons armed with deadly weapons and form into unlawful assembly and that in furtherance ::10:: ## **Crl.M.C.No.5700 Of 2014** of their common object of unlawful assembly they had caused hurt to PW1 in this case. That there is no evidence to show that the 1[st] accused had tried to inflict a cut injury on the head of PW1 that there is absolutely no evidence to show that A1 was armed with a deadly weapon like MO1 sword and that no mischief is caused to any property and that no glass pieces are found on the scene of occurrence at the time of preparation of scene mahazar and the prosecution has miserably failed to prove offences under Secs. 143, 147, 148, 341, 323, 324, 308, 427 r/w 149 IPC and Sec. 27 of the Arms Act. Accordingly, court below ordered that accused Nos.1, 2, 4 to 7 are found not guilty and are acquitted under Sec. 235 Cr.P.C and the said accused were set at liberty. Since the case against A3 (petitioner herein) was split up, the same was refiled as S.C.No.521/2014 on the file of the Principal Assistant Sessions Court, Irinjalakuda. The above said aspects found by the court below are on the basis on the evidence on record, more particularly, depositions of PWs 1 to 3 which are produced in this case as Annexures B, C & D respectively. The above said aspects in Annexure-E judgment are also discernible from Annexures B, C & D. ::11:: ## **Crl.M.C.No.5700 Of 2014** 7. From the the above said aspects in Annexure-E judgment, it is clear that the substratum of prosecution case in the above said crime has been shattered. The petitioner is right in contending that the allegation against the petitioner is minor compared to the allegations made against other accused, which include allegations of inflicting cut injury by using sword etc. The court below has found in Annexure-E judgment that the evidence tendered by main prosecution witnesses are not reliable etc. and that there is absolutely no evidence to show that accused No.1 was armed with a deadly weapon like MO1 sword and that the recovery of the said weapon under Sec. 21 of the evidence Act is a fake recovery etc. Therefore, as the substratum of prosecution case is demolished by Annexure-E judgment of acquittal, there is no point in continuing the impugned criminal proceedings against the petitioner. Therefore, the decision of this Court in _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011 (2) KHC 812 can be fittingly applied in the facts and circumstances of this case. In this view of the matter, the Crl.M.C is allowed and the impugned Annexure-A Final Report/Charge Sheet filed in the impugned Crime No.569/2010 of Vellikulangara Police Station which has led to the pendency of S.C.No.521/2014 on the file of ::12:: ## **Crl.M.C.No.5700 Of 2014** the Principal Assistant Sessions Court, Irinjalakuda against the petitioner and all further proceedings arising therefrom stand quashed. The petitioner shall produce certified copies of this order to the Station House Officer concerned as well as before the court below concerned. **ALEXANDER THOMAS, Judge.** bkn/-