## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941**
## **Crl.MC.No.6878 OF 2019(H)**
**AGAINST THE ORDER/JUDGMENT IN SC 335/2019 OF SPECIAL COURT UNDER POCSO ACT, KOZHIKODE**
**CRIME NO.502/2016 OF Balussery Police Station , Kozhikode**
## **PETITIONER/S:**
**NOUSHAD AGED 33 YEARS S/O. IBRAHIM, PALIYATH HOUSE, KARAKKAMALA P.O., MANANTHAVADI, WAYANAD.**
**BY ADVS. SRI.SRINATH GIRISH SRI.P.JERIL BABU**
## **RESPONDENT/S:**
**1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**2 RASINA, D/O RESHID, AGED 23 YEARS, RESIDING AT KANJHAYI HOUSE, KARAKKAMALA P.O, MANANTHAVADI, WAYANAD 670 645.**
**R2 BY ADV. HALVI K.S.**
## **OTHER PRESENT:**
## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ALEXANDER THOMAS, J. ----------------------------------Crl.M.C.No. 6878 of 2019 ---------------------------------------------------Dated this the 28[th] day of October, 2019**
## **O R D E R**
The case projected in this case filed under Section 482 of the Cr.P.C. is as follows:
2. That the 2nd respondent is the former wife of petitioner's brother. Upon the private complaint filed by the 2[nd] respondent before the Magistrate Court, Annexure 1 FIR was registered by the Balussery Police against the petitioner, his father(A1), brother(A3), sister(A4) and mother(A5) alleging the offences under sections 354, 354A, 354B, 511 of 376, 498A, 406 of IPC, against the accused persons. Petitioner is the 2[nd] accused in the case. The cases against the A1, A3, A4 & A5 were disposed by acquitting them u/s 232 of Cr.P.C. as per the Judgement in S.C. 1429/2016 of the Additional District and Sessions Judge for the Trial of Cases Relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode. The case against the petitioner was split up and refiled as S.C.335/2019 and the same is now pending before the Additional
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District and Sessions Judge for the Trial of Cases Relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode.
3. The case of the prosecution is that on 22-02-2015 the 3rd accused (brother of the petitioner) married the 2[nd] respondent and both lived along with petitioner and his family in the same house at Poonoor, Kozhikode. The accused persons harassed the 2[nd] respondent demanding dowry and one day the petitioner tried to sexually harass the 2[nd] respondent.
4. It is stated that the petitioner is totally innocent of the allegations leveled against him and the petitioner and 2[nd] respondent have resolved all differences between them. The brother of the petitioner and 2[nd] respondent got separated and both remarried. It is also stated that no disputes persist amongst them at present. The 2[nd] respondent does not have any further grievance against the petitioner and has filed Annexure A5 affidavit to that effect and that the parties do not wish to prolong the matter and wish to close the pending case at the earliest.
_5._ It is in the light of these averments and contentions, that the petitioner has filed the instant Crl.M.C. with the following prayers:
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_“................to quash all the further proceedings against the petitioner/accused in Crime No.502/2016 now pending as S.C.no.335/2019 before the Additional District and Sessions Judge for the Trial of Cases Relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode.”_
_6._ Heard Sri.Srinath Girish, the learned counsel appearing for the petitioner (A2), Sri.K.S.Halvi, the learned counsel appearing for the 2[nd] respondent and the learned Public Prosecutor appearing for the 1[st] respondent State of Kerala.
7. It appears that only 5 persons have been arrayed as the accused in the instant criminal proceedings in which the petitioner has been arrayed as accused No.2 in the F.I.R. The case as against the petitioner (A2) was split up and the trial as against all the remaining four accused persons was proceeded. Thereby the Sessions Court has now acquitted all the said remaining co-accused as per Anx.A4 judgment dated 14.02.2019 in S.C.No.1429/2018 and on the files of the Sessions Court concerned Kozhikode. Paragraphs 6 to 10 of Anx.A4 judgment read as follows:
_“6. Now the points to be considered are:-_
_1. Whether the prosecution has succeeded in providing the guilt of the accused persons beyond reasonable doubt? 2. What, if any, is the offences committed and what shall be the punishment or other order to be passed?_
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_7._ _**Point No.1:-** PW1 deposed that she is residing at Panamaram in Mananthavadi. A3 is her husband and A2 is her husband's brother. A4 and A5 are the sister and mother of her husband respectively. Her marriage was on 22.02.2015 and after the marriage she resided along with her husband in a rented house at Koonur and her life along with him was happy. She was not physically and mentally harassed by the accused persons. She had given Ext.P1 complaint before the Judicial First Class Magistrate, Perambra for some simple quarries and the police had not recorded her statement. She declined of having given statement to the police that she had been tortured by the accused persons._
_8. PW2, mother of PW1 gave evidence that PW1 has not told her about mental or physical torture done by the accused persons and also about the attempt made by A2 for commission of rape on PW1._
_9. On going through the evidence of Pws1 and 2 coupled with Ext.P1, it is palpable that there is absolutely no evidence to connect the accused persons with respect to the perpetration of offence as alleged against them. Hence I hold that he prosecution has miserably failed in proving the offences alleged against the accused persons beyond reasonable doubt and that the accused persons are entitled to get an order of acquittal. So Point No.1 is answered against the prosecution._
_10_ _**. Point No.2:-** Since there is no evidence to show that the accused persons have committed the offences aforementioned, they are entitled to be acquitted u/s 232 Cr.P.C.”_
8. A reading of the said judgment, more particularly, paragraphs 7, 8 and 9 make it clear that both PW1 (victim) and PW2 (victim's mother) have stated that none of the accused persons including A2 has committed the alleged offences. The Sessions Court has come to the considered conclusion that there is no iota evidence whatsoever even remotely to connect any of the accused persons with
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the above said crime hence has acquitted the said accused persons.
8. After hearing both sides, it is seen that the learned Advocate appearing for the petitioner is right in contending that the very substratum and foundation of the prosecution case stands demolished by the acquittal of the other co-accused persons concerned. No worthwhile purpose will be subserved by the continuance of the impugned criminal proceedings, as it would amount to mere wastage of the precious resources and time of the judicial missionary and the prosecution agency.
10. Now the matter is fully settled with the 2[nd] respondent, who has stated in Anx.A5 affidavit that she has no further disputes with the petitioner and that she has no objection in this Court, quashing the impugned criminal proceedings. This Court has held in various decisions 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**_ that in cases where very substractum of prosecution case stands demolished by the acquittal of the co-accused persons, the quashment of the impugned criminal proceedings to the extent in relating to the remaining accused persons could also be
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considered by this Court.
11. Accordingly it is ordered that the impugned criminal proceedings in S.C.No.335/2019 on the file of the Additional District and Sessions Court for the trial of cases relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode, wherein the petitioner has been arrayed as the sole accused and also the proceedings eminating therefrom against him will stand quashed. The petitioner will produce certified copies of the said order before the Sessions Court concerned and the Investigating Officer concerned for necessary information.
With these observation and direction this Crl.M.C., will stand finally disposed of.
**Sd/-**
Dxy
**ALEXANDER THOMAS JUDGE**
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS: ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT NO.502/2016 DATED 1.7.2016, BALUSSERY POLICE STATION, KOZHIKODE. ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.502/2016 OF BALUSSERY POLICE STATION KOZHIKODE. ANNEXURE A3 CERTIFIED COPY OF THE DEPOSITION OF 2ND RESPONDENT IN S.C.1429/2016. ANNEXURE A4 TRUE COPY OF THE JUDGEMENT IN S.C.1429/2018, DATED 14.2.2019. ANNEXURE A5 AFFIDAVIT DATED 26.9.2019 SUBMITTED BY THE 2ND RESPONDENT.**
