P. Muhammed Ajmal v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935 Crl.MC.No. 1561 of 2013 () --------------------------AGAINST THE ORDER/JUDGMENT IN SC 49/2012 of ADDL.SESSIONS COURT (ADHOC-II)KASARAGOD CRIME NO. 103/2009 OF HOSDURG POLICE STATION , KASARGOD PETITIONER/6TH ACCUSED : ------------------------------ P.MUHAMMED AJMAL, AGED 24 YEARS S/O. IBRAHIM, RESIDING AT AMINAS HOUSE, ATHINHAL AJANOOR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI RESPONDENTS/STATE & COMPLAINANT : -------------------------------------------- 1. THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER HOSDURG POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. T.SHAJI , AGED 34 YEARS S/O. GANGADHARAN, RESIDING AT KRISHNA NILAYAM HOUSE NORTH KOTTACHERY, BELLA VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT-671 531. R2 BY ADV. SMT.BINDUMOL JOSEPH R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 1104-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1561 of 2013 () --------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- ANNEXURE A1 : CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.103/2009 OF HOSDURG POLICE STATION. ANNEXURE A2 : COPY OF THE JUDGMENT DTD.21.3.2013 IN SC NO.203/2010 ON THE FILE OF THE LEARNED ADDITIONAL SESSIONS COURT, (ADHOC-II), KASARAGOD. ANNEXURE A3 : TRUE CERTIFIED COPY OF THE MEMO EVIDENCE IN CRIME NO.103/2009 OF HOSDURG POLICE STATION. ANNEXURE A4 : AFFIDAVIT DTD.30.3.2013 SWORN IIN BY THE 2ND RESPONDENT. RESPONDENTS EXHIBITS : NIL ----------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- Crl.M.C.No.1561 of 2013 ---------------------------Dated 11[th] April, 2013 ## **ORDER** The petitioner is the sixth accused in S.C.No.49 of 2012 on the files of the Court of Additional Sessions Judge (Adhoc-II), Kasaragod arising from Crime No.103 of 2009 of Hosdurg Police Station. The petitioner and his co-accused were charge sheeted for commission of offences punishable under Sections 143, 147, 148, 341, 326 and 307 read with Section 149 of the Indian Penal Code. The gist of the allegation against them is that on 4.2.2009 at about 10.30 p.m. accused Nos.1 to 7 who are the Indian Union Muslim League sympathizers, on account of political enmity towards the second respondent who is a CITU worker, formed themselves into an unlawful assembly armed with deadly weapons such as sword, iron rod etc., and in prosecution of their common object wrongfully restrained the second respondent at the public road in Padikkan in Ajanoor village and unleashed attack on him. In the said attack the defacto complainant sustained injuries on his left hand and left leg. Accused Nos.1, 3 and 5 in the aforesaid crime stood the trial before the Court of Additional Sessions Judge (Adhoc-II), Kasaragod in S.C.No.203 of 2010 and they were acquitted as per Annexure-A2 judgment. This petition carrying the prayer for quashing Anexure-A1 final report and all further Crl.M.C.No.1561/2013 2 proceedings pursuant thereto against the petitioner in S.C.No.49 of 2012 on the file of the Court of Additional Sessions Judge (Adhoc-II), Kasaragod is made on the strength of Annexure-A2 judgment and Annexure-A4 affidavit sworn in by the second respondent/defacto complainant who is the sole injured in the alleged attack. 2. I have heard the learned counsel for the petitioner, the learned counsel appearing for the second respondent and also the learned Public Prosecutor. 3. As noticed hereinbefore, the main contention of the petitioner is that with the pronouncement of Annexure-A2 judgment of acquittal in respect of accused Nos.1, 3 and 5 who are the co-accused of the petitioner the very substratum of the prosecution case is lost and in the said circumstances it is a case falling within the exception carved out by the Full Bench of this Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552 (F.B.))** . In the said case, the Full Bench held that a judgment of acquittal of a co-accused in a particular case would not and could not act as a bar for the subsequent trial of an absconding accused in that case. The sole exception carved out by the Full Bench in that decision is in a case where with the pronouncement of the judgment Crl.M.C.No.1561/2013 3 of acquittal the very substratum of the prosecution case is lost. Therefore, the question is whether the petitioner could rely on the exception carved out by the Full Bench in paragraph 50 of the decision in **Moosa's** case (supra). The petitioner contends that the criminal proceedings pending against him are liable to be interfered with. In that context, it is relevant to refer to Annexure-A2 judgment. The second respondent herein viz., the defacto complainant who sustained injuries allegedly at the hands of the accused including the petitioner herein, was examined as PW1 in S.C.No.203 of 2010. He would depose that he could not identify any of the assailants as the incident took place at night. The prosecution examined only two witnesses viz., the second respondent herein and one Unnikrishnan (PW2). PW2 had also turned hostile to the prosecution. True that the evidence in that case cannot be looked into for the purpose of deciding the culpability or otherwise of the petitioner who is the sixth accused in the aforesaid crime. However, in the light of the decision in **Moosa's** case (supra) it is possible and permissible to look into Annexure-A2 for the purpose of ascertaining whether by its pronouncement the very substratum of the prosecution case is lost or not. Evidently, there were only two eye witnesses. The defacto complainant viz., the second respondent who allegedly sustained injuries in the alleged attack deposed before the court that as the incident took Crl.M.C.No.1561/2013 4 place at night he could not identify any of the assailants. It is to be noted that he had not deposed that he could not identify the accused whilst he deposed that he could not identify any of the assailants. It is also to be noted that in the light of the evidence of PWs 1 and 2 prosecution had given up all the remaining witnesses. It was taking note of all those circumstances that the co-accused of the petitioner who stood the trial in S.C.No.203 of 2010 were acquitted as per Annexure-A2. On a consideration of Annexure-A2 in the light of the decision of this Court in **Moosa's** case (supra) I find no reason to disagree with the contention of the learned counsel for the petitioner that the very substratum of the prosecution case has been lost with the pronouncement of Annexure-A2 judgment. 4. As already stated, in this case Annexure-A4 affidavit was sworn in by the second respondent. It is to be noted that the second respondent who had deposed before the court in S.C.No.203 of 2010 that he could not identify any of the assailants as the incident occurred at night now stated in Annexure-A4 that he had settled the entire disputes with the petitioner herein who is the 6[th] accused in the aforesaid crime and in the said circumstances, he did not wish to prosecute the petitioner and also got no objection in quashing the proceedings. I am of Crl.M.C.No.1561/2013 5 the view that the oral testimony of the second respondent given while being examined as PW1 in S.C.No.203 of 2010 and the statements now, made in Annexure-A4 cannot co-exist. If he had not identified the petitioner as one of the assailants what prompted the parties to reach into a settlement and how the second respondent could compromise the offence with the petitioner. However, to consider the question whether the criminal proceedings pending against the petitioner should be continued even after the pronouncement of Annexure-A2 some other aspects have to be considered. Annexure-A2 judgment assumes relevance for the purpose of considering the prayer of the petitioner in the light of the decisions of the Hon'ble Apex Court in **Amar Singh and others** v. **State of Punjab** ( **AIR 1987 SC 826** ) and **Maiku and others** v. **State of U.P.** ( **AIR 1989 SC 667** ). In the said decisions the Hon'ble Apex Court considered the impact of a judgment of acquittal of a coaccused in a case on the prospects of prosecution against surviving accused where the accusation is one of commission of offences under Sections 143, 147, 148, 149 and other IPC offences and when the surviving accused is implicated with the help of Section 149 IPC. The Hon'ble Apex Court held that if with the pronouncement of judgment of acquittal the number of surviving accused is brought below five and if there is no case for the prosecution regarding involvement of any Crl.M.C.No.1561/2013 6 person/persons other than the acquitted person/persons and surviving accused in the alleged crime there cannot be any question of unlawful assembly within the definition of Section 141 I.P.C. for the simple reason that for an unlawful assemblage there should an assembly of five or more persons. It is also to be noted in this context that there is no case for the prosecution that apart from the seven accused including the petitioner, anyone had any involvement in the commission of alleged offences. As noticed hereinbefore, as per Annexure-A2 judgment, three out of seven accused persons have already been acquitted and thereby the number of surviving accused has become less than five. In the absence of a case for the prosecution that any person/persons had involvement in the commission of the aforesaid offences and they together with the surviving accused would constitute five or more in the light of the decisions of the Hon'ble Apex Court in **Amar Singh's** case (supra) and **Maiku's** case (supra) there will not be any question of convicting and sentencing the petitioner who is one of the surviving accused in the aforesaid crime registered for offences punishable under Sections 143, 147, 148, 341, 326 and 307 read with Section 149 of the Indian Penal Code in the absence of accusation of any specific overt act against him. It is also to be noted that no specific overt act is alleged against the petitioner. He was implicated as an accused in the aforesaid Crl.M.C.No.1561/2013 7 crime only with the help of Section 149 IPC. In the said circumstances, I am of the view that even if the criminal proceeding against the petitioner is allowed to be continued the chance for a successful prosecution against the petitioner is very remote and bleak. The Hon'ble Apex Court in **Gian Singh** v. **State of Punjab** reported in **2012 (4) KLT 108 (SC)** held that it is the duty of the High Courts to prevent continuation of criminal proceedings which became absolutely unnecessary. In this case, evidently, continuation of criminal proceedings would be a wasteful exercise. In view of the circumstances expatiated above, I am of the view that this is eminently a fit case wherein this Court should invoke the inherent jurisdiction under Section 482 Cr.P.C. to terminate the criminal proceedings against the petitioner in the interest of justice. In the result, this Crl.M.C. is allowed. Annexure-A1 final report laid in Crime No.103 of 2009 of Hosdurg Police Station and all further proceedings pursuant thereto against the petitioner in S.C.No.49 of 2012 on the file of the Court of Additional Sessions Judge (Adhoc-II), Kasaragod are hereby quashed. Sd/- **==> picture [321 x 29] intentionally omitted <==** TKS