Nithin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **Crl.MC.No.7368 OF 2019(A)** **AGAINST IN SC 225/2019 OF ADDITIONAL SESSIONS COURT-1 (SPECIAL COURT UNDER POCSO ACT, PATHANAMTHITTA** **CRIME NO.428/2012 OF Kodumon Police Station , Pathanamthitta** ## **PETITIONER/ACCUSD NO.3 IN THR FINAL REPORT:** **NITHIN AGED 27 YEARS S/O. BHADRAN, PLAVILAYIL VEEDU, KURUVILACODE, AIKKADU MURI, KODOMON VILLAGE - 691 555.** **BY ADVS. SRI.V.JOHN SEBASTIAN RALPH SRI.V.JOHN THOMAS SHRI.VISHNU CHANDRAN KUM. KEERTHANA SUDEV SHRI. RALPH RETI JOHN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 682 031.** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.7368/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C.No.7368 of 2019 ---------------------------------------------Dated this the 21[st] day of November, 2019 ## **ORDER** The petitioner herein is original accused No.3 in Crime No.428 of 2012 OF Kodumon Police Station which has been registered for offences punishable under Secs.366 r/w.Sec.34 of the IPC. Original accused Nos.1 and 2 faced trial. After meticulous appraisal of the evidence on record, the trial court concluded in Anx.3 judgment that there is no evidence to connect the said co-accused persons with the impugned criminal charges and had accordingly, acquitted the said co-accused. The case against the petitioner herein has subsequently been re-numbered as S.C.No.225/2019 on the file of the Additional Sessions Court-1, Pathanamthitta. The petitioner has filed the instant criminal case with the prayer for quashment of the impugned criminal proceedings pending against himon the ground that the substratum of the prosecution case has been shattered by the acquittal of the said coaccused persons as per Anx. 3 judgment. 2. Heard Sri. John. S. Ralph, learned counsel for the petitioner and Sri. Santhosh Peter, learned Public Prosecutor appearing for the respondent State of Kerala. Crl.M.C.No.7368/2019 3 3. It is pertinent to note that from a perusal of Annexure-A3 judgment it can be seen that the very foundation of the prosecution case as against all the accused persons are tumbled on account of the acquittal of the co-accused. It will be profitable to refer to paragraphs 23, 28 and 29 of Annexure-A3 judgment, which read as follows: _“23. Before coming into force of the code of Criminal Procedure Amendment Act 2013, on 03.02.13, Sec.375 defined rape as;-- A man is said to commit “rape” who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-_ _First --- against her will Secondly – Without her consent Thirdly – ******* Fourthly – ******* Fifthly – ******_ _Sixthly – With or without her consent, when she is under sixteen years of age._ _It is evident from the Ext.P2 birth certificate that, the victim was about to attain 17 years of age at the time of the alleged incident. The victim testifies in the examination in chief that, at Bajalpur, the first accused had twice committed forcible sexual intercourse with her. The said testimony of the victim in my opinion lacks credibility because, it cannot be blindly believed that, by eloping with a man and cohabiting with him for about a week under the same roof, she did not anticipate such an eventuality. It is well inferable that, the victim had every knowledge of the possible sexual relationship, if lived along with a grown up man, especially, when, both being in love with each other. There is nothing to suggest that, it was without the consent and against the will of the victim that, the alleged sexual intercourse had taken place. It is not appealing to the conscience of an ordinary prudent man in thinking that, the victim, after having gone to Komattumukku, intending to have a mere meeting only, had fallen prey to the so called compulsion exerted by the first accused and accompanied him to Gujarat, without even raising a word of resistance and submitted herself for sexual intercourse. It is crystal clear from the evidence on record and the attending circumstances that, it was not out_ Crl.M.C.No.7368/2019 4 _of any kind of threat or coercion from the part of the first accused that, the alleged act of sexual intercourse was committed at Bejalpur. That apart, from the medical evidence adduced by the prosecution through PW3 and Ext.P4 report of examination of the victim, it has clearly come out that, no external injuries could be noted on the body of the victim. This also, negates the testimony of the victim that, it was forcibly that, the first accused had committed sexual intercourse with her. Also, the medical evidence fully rules out the chance for the victim to have posed any resistance to the alleged sexual intercourse. From the above I firmly hold that the elements of a forcible sexual intercourse is totally absent in the case on hand. Therefore, I fully concur with the argument advanced by the learned counsel for the accused that, the ingredients of rape defined U/s 376 IPC are not at all attracted in the case on hand and it is well evident that, the victim was a consenting party._ _28. As far as the allegations against the second accused are concerned, the testimony of the victim shows that, near by a waiting shed, on the way to Thiruvalla from Kamattumukku, the second and third accused persons were found and as wanted by the first accused, both the second and third accused persons came to the railway station and the third accused brought the new dress for her and thereafter, herself along with the first and third accused persons boarded on a train and went to Ernakulam and the second accused Akhilesh, returned with the motorcycle. It is the only allegation levelled against the second accused Akhilesh which is appearing in the testimony of PW4. At the same time, Ext.D7 earlier statement of the victim shows that, it was the second accused Akhilesh, who had ridden the motorcycle from the waiting shed at Komattumukku to Thiruvalla and that, as per Ext.D8, both first and second accused were present at the waiting shed at Komattumukku when the victim reached there at about 11.00 AM on 01.09.12. In addition, as per Ext.D9, it was after herself and Akhilesh had reached the railway station at Thiruvalla that, the first and third accused persons have come to the railway station at Thiruvalla. PW4 deposes that, she does not remember whether she had given the Ext.D7 statement to the police and denies that, she had given the Exts.D8 and D9 statements to the Police. But PW12, the investigating officer categorically states that, the victim had given him Exts.D7,D8 and D9 statements to him (PW12). Even though the victim testifies that, it was as instructed by the first accused that, she had given her earlier statements, that_ Crl.M.C.No.7368/2019 5 _version also is going to the aid of the victim in the backdrop of the Exts.D7 to D9 statements, because, these statements contain recitals, fully incriminating all the accused persons. Therefore, there is no meaning in giving consideration of the testimony of the victim that, it was not to incriminate the accused persons, as suggested by the first accused, that, she had given her earlier statements. The pertinent thing is that, even when she emphatically denies that, she had given Exts.D8 and D9 statements, her testimony is that, she does not remember whether she had given the Ext.D7 earlier statement to the police. This is indicative that, the victim has been giving mutually falsifying versions about the allegedly incident. A close scrutiny of the testimony of PW4, in my opinion, renders her ocular version not fully trustworthy and therefore, relying the said testimony, it is highly unsafe to cloth the second accused with any liability. Even if her testimony that, the second accused had come to the Thiruvalla railway station in a motorcycle carrying Nithin(A3) is believed to be true, that also, is not sufficient to incriminate the second accused, because, except the said act, no other overt act is seemingly committed by the second accused as per the testimony of PW4. There is nothing to infer that, the second accused had been sharing a common intention with that of the first accused or that, he had helped the first accused to kidnap the victim. There is nothing convincingly establishing that, the second accused had the every knowledge of the design allegedly planned by the first accused._ _29. The totality of the evidence adduced by the prosecution as discussed in the foregoing paragraphs creates strong doubt about the true genesis of the prosecution story. A number of vital links are missing in the case on hand, which renders the chain of circumstance grossly incomplete. It is the trite law that, the prosecution has to prove the case against the accused persons beyond the shadow of all doubts. Suspicion however strong cannot take the place of proof. The quality of the evidence adduced by the prosecution, in the light of the foregoing discussion, renders it quite insufficient to rope in the accused persons with any liability. The testimony of the prosecutrix itself is not free from suspicion. A ring of cloud pervades the entire prosecution story and vital links are missing to complete the chain of circumstance and hence I hold that, the prosecution could not prove the case against the accused persons beyond the shadow of doubts and the benefit of doubt undoubtedly goes in favour of the accused persons._ Crl.M.C.No.7368/2019 6 4. On a perusal of Annexure-A3 judgment it can be seen that the trial court has conclusively held that there is no evidence to connect the said co-accused persons with the impugned charges and acquitted the said co-accused persons. From a mere reading of Annexure-A3 judgment it is crystal clear that the substratum of the prosecution has been shattered by the acquittal of the said co-accused persons. No meaningful purpose will be subserved by prolonging the agony of the impugned criminal proceedings now pending against the petitioners. Any further continuance of the impugned criminal proceedings would amount to mere wastage of precious resources of the State including that of the judiciary. This Court in the cases as in _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552, _**Ashraf Kancheriyil** v._ _**State of Kerala**_ reported in 2011(2) KHC 8123, and _**Abbas** v._ _**State of Kerala** 2013_ (2) KLT 976, has held that if the substratum of the prosecution is demolished by the acquittal of the coaccused, this Court could exercise the powers under Sec.482 of the Cr.P.C. to consider the prayer of quashment of the impugned criminal proceedings against the other accused. In this view of the matter, it is ordered in the interest of justice that the impugned Anx. A2 final report/charge sheet filed in the impugned Anx. A1 FIR in Crime No. 454/2014 of Kolathur Police Station, which has led to the pendency of C.C.No.54/2019 on the file of Crl.M.C.No.7368/2019 7 the Judicial First Class Magistrate Court-II, Perinthalmanna, and all further proceedings arising therefrom pending against the petitioners herein (accused 1, 6 and 7 in the FIR) will stand quashed. The petitioners will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Crl.M.C. will stand disposed of. ## **sd/ALEXANDER THOMAS, JUDGE.** ## acd The operative portion “Anx.A2 final report/charge sheet filed in the impugned Anx.A1 FIR in Crime No.454/2014 of Kolathur Police Station, which has led to the pendency of C.C.No.54/2019 on the file of the Judicial First Class Magistrate Court-II, Perinthalmanna, and all further proceedings arising therefrom pending against the petitioners herein (accused 1,6 and 7 in the FIR) will stand quashed.” occurring in the 6[th] & 7[th] pages of the Final order dated 21.11.2019 in Crl.M.C.No.7368/2019 is corrected and substituted as “Annexure 2 Final report/charge sheet filed in the impugned Annexure A1 FIR in Crime No.428/2012 of Kodumon Police Station which has led to the pendency of SC No.225/2019 on the file of Additional Sessions Judge (Special Court) Pathanamthitta, and all further proceedings arising therefrom pending against the petitioner herein (Accused 3 in the FIR) will stand quashed.” As per order dated 07.01.2020 in Crl.M.A.No.3/2019 in Crl.M.C.No.7368/2019. **Sd/DEPUTY REGISTRAR** Crl.M.C.No.7368/2019 8 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE 1**|**TRUE COPY OF THE FIR IN CRIME**| ||**NO.428/2012 OF KODUMON POLICE STATION**| ||**DATED 2.9.2012.**| |**ANNEXURE 2**|**TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.428/2012 OF KODUMON POLICE STATION**| ||**DATED 7.10.2013.**| |**ANNEXURE 3**|**TRUE COPY OF THE JUDGMENT IN SC**| ||**NO.338/2014 OF ADDITIONAL SESSIONS**| ||**JUDGE (SPECIAL COURT, PATHANAMTHITTA)**| ||**DATED 1.3.2019.**|