Peter and Prince v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943 CRL.MC NO. 859 OF 2021 ``` ``` IN LP NO.17/2013 IN SC NO.863/2007 AND L.P.NO.19/2019 IN SC 968/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, ``` ## **`KOLLAM`** ``` CRIME NO.211/2005 OF KOTTARAKKARA POLICE STATION IN KOLLAM ``` ## **`DISTRICT`** ## **`PETITIONERS/ACCUSED NOS.9&10:`** ``` 1PETER AGED 42 YEARS S/O.JOHN, CHENNELIKONATHU SUMA BHAVAN, MARANGATTUKONAM, PULLAMKODU MURI, ARAKKAL VILLAGE, KOLLAM DISTRICT. ``` ``` 2PRINCE, AGED 36 YEARS S/O. JOHN, CHENNELIKONATHU SUMA BHAVAN, MARANGATTUKONAM, PULLAMKODU MURI, ARAKKAL VILLAGE, KOLLAM DISTRICT. ``` ## **`BY ADV ANCHAL C.VIJAYAN`** ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. ``` ``` BY ADV. PP-SRI.ARAVIND V. MATHEW ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 859 OF 2021 ``` ``` 2 ``` ## **`ORDER`** The 1[st] petitioner herein is the accused in S.C.No.863 of 2007 which is now pending in LP No.17/2013 on the files of the Additional District and Sessions Court -VI, Kollam. The 2[nd] petitioner is the accused in S.C 968/2019 on the file of the very same court, and is now pending as L.P.19/2019. Both the aforesaid cases arise from Crime No.211/2005 of Kottarakkara Police Station. The petitioners are the 9[th] and 10[th] accused in the said crime. The offences alleged against them are under Sections 143, 147, 148, 450, 323, 324, 294 (b) 427, 395, 398, 307 read with Section 149 of Indian Penal Code. Altogether there were 22 accused persons, out of which 12 persons have undergone trial in S.C. No.477/2007 which resulted in Annexure C judgment by which all of them were acquitted. Two accused persons have undergone trial in S.C. No.679/2016 which resulted in Annexure D judgment and they were also acquitted. Out of the total accused persons A3, A11, A14, A18, A21 and A22 were died before commencement of trial. Now only the petitioners herein are remaining to undergo trial. ``` CRL.MC NO. 859 OF 2021 ``` ``` 3 ``` 2. The prosecution case against the accused persons was that on 04.03.2005 at about 2.45 a.m. the accused persons in furtherance of common object trespassed into the house of CWs 1 to 10 and assaulted them. It was also alleged that they have snatched away a gold chain weighing 3.5 sovereign belonging to CW1 and also stolen 20 sovereigns of gold and Rs.80,000/- of CW2 and CW3. There was also an allegation that they have caused damage to a Maruti car and motorcycle thereby caused a loss of Rs.9,08,000/-. In the incident CWs 1 to 10 sustained injuries. The aforesaid crime was registered on the basis of the same. Separate trials in the manner as mentioned above, were conducted and resulted in Annexures C and D judgments, wherein all the accused persons who had undergone trial were acquitted. As regards the petitioners, they are yet to undergo the trial. This Crl.M.C. is filed by the petitioners seeking to quash the entire proceedings against them on the ground that, no fruitful purpose would be served in conducting a trial as against them in view of the categorical findings in Annexure C and D judgments. It was also pointed out that as ``` CRL.MC NO. 859 OF 2021 ``` ``` 4 ``` against A9 there is no specific overt act alleged and with regard to the 10[th] accused, the only statement available as per the final report is that of CW8. In the trial which resulted in Annexure C, while being examined as PW5 he has stated that he could not identify the assailants as there was no proper light at the relevant time. In Annexure D he was examined a PW6 and he turned hostile to the prosecution. By relying upon the aforesaid findings it was contended that substratum of the case is lost and hence it is only to be quashed as observed by this Court by a Full Bench of this Court in **Moosa v. Sub Inspector of Police [2006 (1) KLT 552]** 3. Heard Sri.Anchal C. Vijayan, learned counsel for the petitioner and Sri.Aravind V. Mathew, learned Public Prosecutor. 4. Learned counsel for the petitioner contends that consequent to the categorical findings entered into in Annexure C and D judgments, further trial against the petitioners would result in undue harassment. On going through the findings in Annexure C judgment passed by the Sessions court, it can be seen that majority of the witnesses including the injured witnesses turned hostile. ``` CRL.MC NO. 859 OF 2021 ``` ``` 5 ``` Even though some of the witnesses supported the case of prosecution, appreciating the evidence, a definite finding was entered into by the trial court to the effect that the accused persons; A2, A4 to A8, A12, A13, A15, A16, A17 and A20 are not guilty of any of the offences alleged. In Annexure D judgment, it can be seen that all the witnesses cited by the prosecution turned hostile. 5. When we examine the allegation of specific overt act alleged against the petitioners herein, the following aspects are revealed. As regards the overt act alleged as against the 2[nd] petitioner/10[th] accused, the allegation is that, he assaulted CW8 by using a bamboo stick. As pointed out by the learned counsel for the petitioner, in Annexure C judgment, CW8 was examined as PW5. He has categorically stated that, he could not see the incident clearly, as there was no proper light at the relevant time. As mentioned above, even though he was examined in the trial in Annexure D also, he turned hostile to the prosecution. 6. Similarly, as against the 1[st] petitioner/9[th] accused, there is no specific overt act alleged and none of the witnesses have ``` CRL.MC NO. 859 OF 2021 ``` ``` 6 ``` mentioned about his involvement therein. Thus on going through the categorical findings entered into in Annexure C and D judgments, it can be seen that even the persons who were specifically named in the FIR were happened to be acquitted. As far as the petitioners are concerned, they were not even named in the First Information Report. Thus by virtue of the findings entered into by the Sessions Court in Annexure C and D, substratum of the case is lost, as the persons against whom specific overt acts were alleged were found to be not guilty. In **Moosa v. Sub Inspector of Police [2006 (1) KLT 552]** a Full Bench of this Court considered the impact of a judgment passed by the trial court on the co-accused for the purpose of considering the necessity to invoke powers of this Court under Section 482 Cr.P.C. As per the principles laid down therein, even though acquittal of a co-accused cannot be a reason to quash the case against the other accused persons normally, in cases where the substratum of the case itself is lost consequent to such acquittal, it can be treated as an exception. Thus, going by the principles laid down therein, if the substratum of the case is lost ``` CRL.MC NO. 859 OF 2021 ``` ``` 7 ``` consequent to the finding entered into by the trial court in respect of co-accused, the proceedings against the remaining accused can be quashed. 7. Thus while applying the aforesaid principles in this case, it can be safely concluded that no purpose would be served by allowing the proceedings against the petitioners, as the chance of successful prosecution is very bleak. The witnesses were already examined on two occasions, and on both occasions, it resulted in acquittal of the accused persons. The relevant witnesses failed to identify the accused. In the trial which resulted in Annexure D all the witnesses turned hostile. It is discernable from records that the parties have also arrived at a settlement in connection with the dispute. Thus when the totality of facts and circumstances of the case is considered, I am of the view that, it is only proper to invoke powers of this Court under Section 482 of Cr.P.C. Accordingly, I allow this Crl.M.C. and quash all further proceedings in S.C. No.863/2007 and S.C 968/2019 on the file of ``` CRL.MC NO. 859 OF 2021 ``` ``` 8 ``` the Additional District and Sessions Court VI, Kollam which is now pending as L.P. No.17/2013 and L.P.No.19/2019 respectively. Sd/- ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 859 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 859/2021`** |`PETITIONER`|`ANNEXURES`| |---|---| |`ANNEXURE A`|`CERTIFIED COPY OF THE F.I.R. AND F.I.S.`| ||`IN CRIME NO.211/2005 OF KOTTARAKKARA`| ||`POLICE STATION.`| |`ANNEXURE B`|`CERTIFIED COPY OF THE CHARGE SHEET IN`| ||`CRIME NO.211/2005 OF KOTTARAKKARA`| ||`POLICE STATION NOW PENDING AS`| ||`S.C.NO.863/2007 AND S.C.NO.968/2019 ON`| ||`THE FILES OF ADDITIONAL DISTRICT AND`| ||`SESSIONS COURT-VI, KOLLAM.`| |`ANNEXURE C`|`CERTIFIED COPY OF THE JUDGMENT IN`| ||`S.C.NO.477/2007 DATED 19.7.2016 OF`| ||`ADDITIONAL DISTRICT AND SESSIONS JUDGE`| ||`NO.VI, KOLLAM.`| |`ANNEXURE D`|`CERTIFIED COPY OF THE JUDGMENT IN SC`| ||`NO.679/2016 DATED 29.6.2019 OF THE`| ||`ADDITIONAL DISTRICT AND SESSIONS JUDGE-`| ||`VI, KOLLAM.`|