Manu and Aneesh v. State of Kerala and Divakaran Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 CRL.MC NO. 6265 OF 2022 AGAINST THE ORDER/JUDGMENTSC 864/2020 OF ADDITIONAL SUB** **COURT,ATTINGAL** ## **PETITIONER/S:** **1 MANU AGED 41 YEARS S/O MURALEEDHARAN NAIR, ADAPPINAKATHU THUSHARA, VENKULAM DESOM, EDAVA P.O., THIRUVANANTHAPURAM, PIN - 695311 2 ANEESH AGED 38 YEARS S/O MURALEEDHARAN NAIR, ADAPPINAKATHU THUSHARA, VENKULAM DESOM, EDAVA P.O., THIRUVANANTHAPURAM, PIN - 695311 BY ADV GIKKU JACOB** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 DIVAKARAN PILLA S/O BHASKARA PILLA, ADAPPINAKATHU DEEPA SADHANAM, EDAVA P.O., VARKALA, THIRUVANANTHAPURAM, PIN - 695311 ADV M P PRASHANTH-SR PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.6265/2022 : 2 : ## **ORDER** ## **Dated this the 29[th] day of September, 2022** The petitioners are accused Nos.1 and 3 in crime No.370/2007 of Varkala Police Station, which is now pending as S.C. No.864/2020 before the Assistant Sessions Court, Attingal. The aforesaid crime was registered against the petitioners, and another for the offence punishable under Section 436 read with Section 34 of the Indian Penal Code. 2. The prosecution case is that on 27.06.2007 at 11.30 p.m., the petitioners and the 2[nd] accused set fire to the Saw Mill named “Deepu Saw Mill”, owned by the defacto complainant. Annexure-1 is the F.I.R. and Annexure-2 is the final report submitted by the Police. After the said final report, a further investigation was conducted by the Police, and after completing the same, Annexure-3 U.N. report was submitted by the Police stating the offence as undetected. However, cognizance was taken on the initial final report submitted by the Police and Crl.M.C.No.6265/2022 : 3 : ## proceedings continued against the accused persons. 3. Earlier, the trial of the case was conducted before the Assistant Sessions Court, Attingal as S.C. No.1336/2009, wherein the 2[nd] accused, who is the father of the petitioners, participated. Annexure-7 is the judgment passed by the learned Assistant Sessions Judge after the trial, resulting in the acquittal of the said accused. 4. The case against the petitioners is split up and refiled as S.C. No.364/2020, before the Assistant Sessions Court, Attingal. This Crl.M.C. filed for quashing all further proceedings pursuant to Annexure-2, including the proceedings in the said Sessions Case. 5. Heard Sri. Gikku Jacob, the learned counsel appearing for the petitioners and Sri. M.P. Prasanth, the learned Senior Public Prosecutor for the State. 6. The prayer for quashing the proceedings against the petitioners is sought mainly on the ground that, by virtue of the order of acquittal passed by the learned Assistant Sessions Judge vide Annexure-7 judgment, the substratum of the prosecution case is lost, and hence further prosecution of the Crl.M.C.No.6265/2022 : 4 : petitioners is not warranted. Reliance was also placed on the principles laid down in **Moosa v. Sub Inspector of Police** [2006 (1) KLT 552]. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that, merely because of the reason that one of the accused was acquitted after the trial, the petitioners cannot seek an order for quashing the prosecution against them. The role of the petitioners in committing the crime has to be ascertained based on materials to be adduced by the prosecution during the trial. 8. I have gone through the materials placed on record, which include Annexure-1 F.I.R., Annexure-2 final report, Annexure-3 supplementary report submitted by the Police under Section 173 (8) of Cr.P.C. and also Annexure-7 judgment passed by the learned Assistant Sessions Judge. 9. From the perusal of Annexure-7 judgment, it can be seen that out of the occurrence witnesses examined by the prosecution, PW1 and PW4 alone supported the case of the prosecution. The other occurrence witnesses PW2 and PW3 turned hostile. As far as the evidence of PW1, who is the defacto Crl.M.C.No.6265/2022 : 5 : complainant is concerned, even though the said witness identified the accused persons, the learned Assistant Session Judge did not rely upon the aforesaid identification. In paragraphs 16 and 17 of Annexure-7 judgment, the learned Assistant Sessions Judge dealt with the evidence of PW1. It is evident therefrom that the learned Assistant Sessions Judge found certain glaring contradictions between the evidence of PW1 and the statement he had given before the Police. It was observed explicitly by the learned Assistant Sessions Judge that, even though he named the accused persons in Ext.P1(a) F.I.S., it was found that it was only on assumption and he did not clearly see the persons who were allegedly running away from the spot. Moreover, the learned Assistant Sessions Judge also noted that the F.I.R. reached the Court after two days and no proper explanation was offered for the same. 10. As far as the evidence of PW4 is concerned, the identification made by the said accused was also not relied upon by the learned Assistant Sessions Judge. There also, it was specifically found that, during the cross-examination, it was revealed that the said identification of the accused by PW4 was Crl.M.C.No.6265/2022 : 6 : also on assumptions. 11. Another discrepancy found by the learned Assistant Sessions Judge was that the prosecution did not conduct any investigation as to the actual cause of the fire. In the FIS, PW1 had not stated that, Mill was set fire by the accused. What is stated is that, he found three persons running from the scene, which he suspected to be the accused persons. Since the evidence adduced by the prosecution in the form of PW1 and PW4 did not clearly reveal the involvement of any individuals, the prosecution needed to establish the cause of the fire to rule out the other possibilities. However, in this case, the report of the Electrical Inspector was not produced. The learned Assistant Sessions Judge made a specific observation to the effect that even though the inflammable materials were inside the sawmill, the prosecution did not investigate the possibility of the fire occurring because of an electrical short circuit. Moreover, it was specifically taken note of the fact that there were several litigations between the defacto complainant and the accused persons, and hence a false implication could not be ruled out. Crl.M.C.No.6265/2022 : 7 : 12. Thus, after taking into account all the aforesaid aspects, a concrete finding was entered by the learned Sessions Judge to the effect that the prosecution failed to establish the guilt of the 2[nd] respondent. Even though, the order of acquittal was passed against the 2[nd] accused alone, the nature of the evidence that was let in and the appreciation of the same was made by the learned Magistrate has the impact of destroying the very substratum of the case. This is mainly because all the discussions and findings entered by the learned Magistrate were with respect to the role of all the accused persons and it was not at all confined to the 2[nd] accused alone. 13. Another crucial aspect is the supplementary final report filed by the Police. As per the said report, the accused persons were exonerated with the finding that they could not detect the real culprits. Even though the same was not acted upon by the learned Sessions Judge and the cognizance was taken based on the final report submitted by the Police under Section 173(2) of Cr.P.C., I am of the view that in the light of the specific finding entered by the learned Assistant Sessions Judge in Annexure-7 judgment after a full-fledged trial, some relevance Crl.M.C.No.6265/2022 : 8 : has to be given to the conclusions of the said report as well. 14. Thus, after examining the entire materials placed on record, I am of the view that further prosecution of the petitioners is unwarranted, as the substratum of the case is lost. Therefore, continuing the prosecution would be a futile exercise as the chances of conviction of the accused persons are very bleak. In such circumstances, I find that this is a fit case in which the principles laid down by this Court in **Moosa** 's case can be applied. Therefore, the proceedings are liable to be quashed. In the result, this Crl. M.C. is allowed. Annexure-2 final report submitted in Crime No.370/2007 of Varkala Police Station and all further proceedings pursuant to it, including the proceedings in S.C. No.864/2020 pending before the Assistant Sessions Court, Attingal as against the petitioners are hereby quashed. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd Crl.M.C.No.6265/2022 : 9 : ## **APPENDIX OF CRL.MC 6265/2022** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF F.I.R. DATED 28.6.2007 IN CRIME NO.370/2007 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT Annexure 2 TRUE COPY OF THE CHARGE IN S.C. NO.1336/2009 ON THE FILE OF ASSISTANT SESSIONS COURT, ATTINGAL WHICH AROSE FROM CRIME NO.370/2007 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT - Annexure 3 TRUE COPY OF THE UN REPORT DATED 16.10.2011 FILED BY DEPUTY SUPERINTENDENT OF POLICE IN S.C. NO.1336/2009 ON THE FILE OF ASSISTANT SESSIONS COURT, ATTINGAL AROSE FROM CRIME NO.370/2007 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT - Annexure 4 TRUE COPY OF THE ORDER DATED 19.12.2011 BY THE ASSISTANT SESSIONS COURT, ATTINGAL IN C.M.P. NO.189/2007 REJECTING THE ANNEXURE-3 UN REPORT FILED UNDER SECTION 173(8) - Annexure 5 TRUE COPY OF ORDER DATED 5.6.2013 IN CRL.M.C. NO.1846/2013 BY THE HON'BLE HIGH COURT Annexure 6 TRUE COPY OF THE ORDER DATED 14.2.2017 BY THE ASSISTANT SESSIONS COURT, ATTINGAL IN C.M.P. NO.189/2011 IN S.C. NO.1336/2009 Annexure 7 TRUE COPY OF THE JUDGMENT DATED 30.11.2019 IN S.C. NO.1336/2009 PASSED BY ASSISTANT SESSIONS COURT, ATTINGAL ACQUITTING THE 2ND ACCUSED