Moncy Daniel v. State of Kerala and Sussan

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944 ## CRL.MC NO. 3340 OF 2018 [TO QUASH THE PROCEEDINGS IN L.P.NO.3/2017 (C.C.NO.847/2015) ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI ARISING OUT OF CRIME NO.259/2009 OF KATTAPPANA POLICE STATION] ## PETITIONER/ACCUSED NO.2: MONCY DANIEL AGED 56 YEARS W/O. DANIEL, MUTTATHUMAKKAL HOUSE, MULAKARAMEDU P.O., KATTAPPANA VILLAGE, IDUKKI DISTRICT. BY ADVS. SRI.T.V.GEORGE ## RESPONDENTS/STATE AND DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SMT. SUSSAN W/O. ANTONY, VAZHAYIL HOUSE, VELLAYAMKUDI KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT-676505 ## OTHER PRESENT: R1 BY ADV. SUDHEER GOPALAKRISHANAN - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## Crl.M.C.No.3340/2018 2 ## ORDER The petitioner herein is the 2[nd] accused in Crime No.259/2009 of Kattappana Police Station. The aforesaid case was registered on the basis of the information submitted by the 2[nd] respondent herein. 2. The facts leading to the filing of this Crl.M.C. are as follows: The prosecution case is that, the petitioner herein, along with her husband, who is the 1[st] accused in the above crime, on 15.4.2009 at about 10 a.m., criminally trespassed into the property of the 2[nd] respondent. The 1[st] accused uttered abusive words and beat the 2[nd] respondent with the blunt portion of a knife. Based on the aforesaid information, the crime was Crl.M.C.No.3340/2018 3 registered, and after completing the investigation, the final report was submitted and thereupon, the Judicial First Class Magistrate Court, Idukki, has taken the cognizance as C.C.No.290/2011. 2. On the basis of the same, a trial was conducted and to substantiate the prosecution case, PWs.1 to 9 were examined and Exhibits P1 to P3 were marked as prosecution evidence. Exhibits D1 to D7 were marked on the side of the defence. Throughout the trial, the petitioner participated in the proceedings. But at the fag end of the trial after examination of the petitioner under Section 313 of the Cr.PC., she absconded and it resulted in the splitting up of the case against the petitioner. Annexure-AII is the judgment passed in the aforesaid trial. As per which, the 1[st] Crl.M.C.No.3340/2018 4 accused i.e. the husband of the petitioner was found guilty of the offences punishable under Sections 323 and 324 of the Indian Penal Code and accordingly, he was sentenced to undergo simple imprisonment for a period of 5 days for the offence punishable under Section 323 IPC and also to undergo simple imprisonment for six months for the offences punishable under Section 324 IPC. Subsequently, in Crl.A.No.7/2016 filed by the 1[st] accused, Annexure-AIII judgment was passed by the IIIrd Additional Sessions Judge, Thodupuzha wherein the 1[st] accused was found not guilty and accordingly he was acquitted. Now the case against the petitioner herein was split up and re-numbered as C.C.No.847/2015, and the same is pending as LP No.3/2017 before the Judicial First Class Magistrate Court, Idukki. This Crl.M.C.No.3340/2018 5 Crl.M.C. is filed by the petitioner praying for quashing all further proceedings against the petitioner herein pursuant to Annexure-AI final report. 3. Heard Sri.T.V. George, the learned counsel for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor appearing for the State. Even though notice was served upon the 2[nd] respondent-defacto complainant, there is no appearance on her behalf. 4. The learned counsel for the petitioner contends that, on account of the specific findings entered into by the appellate court in Annexure-AIII judgment, the substratum of the case is lost. Even though the order of acquittal passed in Annexure-AIII is in respect of the 1[st] accused, the observations and findings Crl.M.C.No.3340/2018 6 contained therein are arrived at based on the appreciation of the materials adduced in the trial in which the petitioner participated. 5. In such circumstances, by placing reliance upon the judgment of the Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 KHC 184], it was contended that the prosecution against the petitioner herein can be quashed by invoking the powers of this Court under Section 482 of the Cr.PC. On the other hand, the learned Public Prosecutor would oppose the said contention and prays for dismissal of this Crl.M.C. 6. When the contention put forward by the learned counsel for the petitioner is considered, the crucial document is AnnexureAIII which contains a detailed discussion regarding the evidence adduced by the Crl.M.C.No.3340/2018 7 prosecution. On going through the same, it can be seen that, the prosecution mainly relied upon the evidence of PWs.1, 2 and 4. Regarding the evidence of PW1, a categoric finding was entered into by the appellate court in Annexure-AIII to the effect that her statement while being examined was completely inconsistent with the version as contained in Ext.P1 F.I.statement. The learned Sessions Judge also noted that Ext.P1 F.I.statement did not contain any allegation as against the 2[nd] petitioner/accused. Apart from the above, the evidence of PW2 and PW4 were also discarded by the Sessions Court in the said judgment by arriving at a specific finding that they are planted witnesses. It was also found that, the prosecution did not have any consistent case regarding the place of occurrence as well. Yet Crl.M.C.No.3340/2018 8 another illegality found by the Sessions Court is regarding the manner in which the trial conducted by the learned Magistrate. It has come out that in respect of the very same incident, a counter case was registered against PW1 at the instance of the petitioner herein and the same resulted in acquittal. In Annexure-AIII judgment, the Sessions Court found that, even though the case and counter case are pending, the said cases were not tried simultaneously and therefore, it missed an opportunity to assess the entire evidence in both the cases so as to find out who were the aggressors. This was also one of the reasons which led to the acquittal of the 1[st] accused. When the materials placed on record by the prosecution and the findings arrived at by the Sessions Court in Annexure-AIII are considered, ## Crl.M.C.No.3340/2018 9 all those conclusions are equally applicable to the petitioner. Even if the proceedings against the petitioner herein are allowed to continue, the prosecution has to rely upon the very same evidence. In the light of the findings already entered into by the Sessions Court, no other conclusion is possible. In such circumstances, as rightly pointed out by the learned counsel for the petitioner, the substratum of the case is lost and no purpose will be served in continuing the prosecution against the petitioner. In Moosa’s case (supra), a Full Bench of this Court has specifically clarified the position in this regard. In such circumstances, it was held that since the substratum of the case is lost by virtue of the order of acquittal passed against the co- accused, the power of this Court under Section Crl.M.C.No.3340/2018 10 482 of the Cr.PC can be invoked for quashing the proceedings against the remaining accused. On appreciation of the entire materials placed on record in this case, I am convinced that, this is a fit case in which the principles laid down in Moosa’s case (supra) can be applied. In such circumstances, this Crl.M.C. is allowed. All further proceedings against the petitioner herein in Annexure-AI final report in Crime No.259/2009 of Kattappana Police Station, Idukki, which is now pending before the Judicial First Class Magistrate Court, Idukki as LP No.3/2017 (C.C.No.847/2015) are hereby quashed. Sd/- ZIYAD RAHMAN A.A., JUDGE pkk Crl.M.C.No.3340/2018 11 ## APPENDIX OF CRL.MC 3340/2018 PETITIONER’S ANNEXURES: ANNEXURE AI CERTIFIED COPY OF CHARGE DTD. 30.4.09 IN C.C.847/2015 (L.P. 3/17) BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI. ANNEXURE AII TRUE COPY OF JUDGMENT DTD. 14.12.2015 IN C.C.NO.290/2011 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI. ANNEXURE AIII CERTIFIED COPY OF JUDGMENT DTD. 30.4.2016 IN CRL.APPEAL NO.7/2016 BY THE IIND ADDL. SESSIONS JUDGE, THODUPUZHA.