Rahul v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 ``` ``` CRL.MC NO. 2910 OF 2022 ``` ``` [TO QUASH THE FINAL REPORT IN CRIME NO.2028/2015 OF PUDUKKADU POLICE STATION, THRISSUR DISTRICT NOW PENDING AS SC NO.675/2018 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, IRINJALAKKUDA] PETITIONER/9TH RESPONDENT: ``` ``` RAHUL AGED 36 YEARS S/O PRABHAKARAN, VILAKKAPADY HOUSE, PARAPPUKKARA DESOM, PARAPPUKKARA VILLEGE, THRISSUR., PIN - 680310 ``` ``` BY ADV T.N.MANOJ ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI.- PIN - 682031 ``` ``` BY SRI. VIPIN NARAYAN, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.8.2022, THE COURT ON 27.09.2022 PASSED THE FOLLOWING: ``` CRL.MC No.2910 of 2022 2 ``` O R D E R ``` ``` The petitioner is the 9[th] accused in Crime ``` ``` No.2028/2015 of Pudukkadu Police Station which is now pending as S.C.No.675/2018 before the Additional Sessions Court, Irinjalakuda. The ``` ``` aforesaid crime was registered alleging offences punishable under Sections 143,147,148,323,324,302 r/w. Section 149 of the Indian Penal Code (IPC) and also under Sections 27 of the Arms Act. ``` ``` 2.The prosecution case is that, due to ``` ``` animosity towards the defacto complainant named Midhun, since he had questioned the acts of eve teasing and immoral behaviour shown by the second accused towards his wife, on 25[th] December 2015 at ``` ``` about 5 p.m., the accused persons 12 in numbers after forming themselves into an unlawful assembly carrying lethal weapons such as sword and iron rods in their hands, assembled by the side of the public road nearby the residence of the defacto complainant. In pursuance of their common ``` CRL.MC No.2910 of 2022 3 ``` intention, the 3[rd] accused namely Santhosh, invited ``` ``` the defacto complainant to the road from his residence while the defacto complainant was celebrating Christmas with his friends and relatives, with a promise to settle the existing disputes between the defacto complainant and his friends namely Melvin, Jithu, Sreejith, Prasanth with the 2[nd] accused. During the discussion, the 1[st] accused inflicted cut injuries using a sword on the body of Sreejith. The 4[th] accused inflicted cut injuries on the defacto complainant, the 2[nd] accused inflicted cut injuries on the head of Jithu, the 5[th] accused attacked and inflicted blows on Melvin and Jithu using iron rods, the 3[rd] accused also ``` ``` inflicted injuries on Melvin using a sword. It was also alleged that, the 5[th] accused attacked Prasanth using his fist and hands. During all these time, accused Nos.6 to 12 have encircled the area by holding beer bottles in their hands so as to prevent the victims from escaping from the scene ``` ``` and also to obstruct any other person from helping the ``` CRL.MC No.2910 of 2022 4 ``` said victims. The petitioner who is the 9[th] accused ``` ``` is one among the persons who encircled the area as mentioned above. Annexure-A is the F.I.R. and Annexure-B is the final report submitted by the Police. ``` ``` 3.The Judicial First Class Magistrate Court, Irinjalakuda has taken cognizance as C.P.No.24/2016 ``` ``` on Annexure-B final report and after completing the legal formalities, the matter was committed to the Sessions Court, Thrissur from where the matter was made over to the Additional Sessions Court, Irinjalakuda for trial as S.C.No.600/2016. In the trial conducted, all the accused persons except the petitioner have participated. The case against the petitioner was split up and the same is now refilled as S.C.No.675/2018. ``` ``` 4. The aforesaid trial resulted in Annexure-C judgment wherein, accused numbers 1 to 5 were found guilty and they were sentenced to undergo rigorous imprisonment for various terms for various offences including the life sentence. As regards the accused ``` CRL.MC No.2910 of 2022 5 ``` Nos.6 to 11 in Annexure-C judgment, who are accused ``` ``` Nos.6 to 8 and 10 to 12 in Annexure-B final report, the learned Sessions Judge found that, the ``` ``` prosecution could not establish their guilt and accordingly they were acquitted of all the charges. ``` ``` This Crl.M.C. is filed by the petitioner in such circumstances praying for quashing all further ``` ``` proceedings pursuant to Annexure-B final report against him. ``` ``` 5.Heard Sri. T.N. Manoj, the learned counsel ``` ``` appearing for the petitioner and Sri. Vipin Narayan, the learned Public Prosecutor for the State. ``` ``` 6.The prayer for quashing the proceedings is sought mainly on the ground that, by virtue of the order of acquittal passed against accused numbers 6 ``` ``` to 11 in Annexure-C judgment, who are accused Nos.6 to 8 and 10 to 12 in Annexure-B final report, the substratum of the case itself is lost with regard to the allegation against those accused. It is pointed out that, going by the contents of ``` CRL.MC No.2910 of 2022 6 ``` Annexure-B final report, the allegations against the petitioner are exactly the same which are raised against accused numbers 6 to 8 and 10 to 12. ``` ``` Therefore, it is contended that, the order of acquittal passed in favour of the said persons has ``` ``` the impact of destroying the substratum of the case against the petitioner and therefore the ``` ``` prosecution against the petitioner is an abuse of process of law. The learned counsel placed reliance on the principles laid down by the Full Bench of this Court inMoosa v. Sub Inspector of Police ``` ``` [2006(1) KLT 552]. ``` ``` 7.On the other hand, the learned Public Prosecutor would strongly oppose the aforesaid contentions. It is pointed out that, this is not a case where the principles laid down in Moosa’s case (supra) can be applied. The learned Sessions Judge specifically found that, the incident as stated by the prosecution in Annexure-B final report has indeed occurred and the involvement of accused Nos.1 to 5 were clearly established. As regards the ``` CRL.MC No.2910 of 2022 7 ``` other accused persons who faced the trial, it is ``` ``` pointed out that, they were acquitted only because ``` ``` of the reason that their identity could not be proved beyond the shadow of doubt by the ``` ``` prosecution. Therefore, the benefit of the order of ``` ``` acquittal of the other accused persons cannot be extended to the petitioner. In such circumstances, ``` ``` the learned Public Prosecutor seeks to dismiss the ``` ``` Crl.M.C. ``` ``` 8.I have carefully gone through the contents ``` ``` of F.I.R, final report and observations made by the ``` ``` learned Sessions Judge in Annexure-C judgment. The ``` ``` learned Sessions Judge specifically considered the role of accused Nos. 6 to 8 and 10 to 12 in ``` ``` Annexure-C judgment in detail. PWs.1,2 and 3 are ``` ``` the persons who sustained injuries in the incident ``` ``` and all of them have supported the prosecution ``` ``` case. On carefully scrutinizing the observations ``` ``` made by the learned Sessions Judge with regard to ``` ``` the evidence of the aforesaid occurrence witnesses, ``` ``` it can be seen that, the learned Sessions Judge ``` CRL.MC No.2910 of 2022 8 ``` placed reliance upon their evidence to arrive at ``` ``` the finding that the incident in the manner as claimed by the prosecution has occurred. It is true that, the learned Sessions Judge found that, the accused persons viz. accused Nos. 6 to 8, 10 to 12 who did not commit any specific overt act of ``` ``` inflicting injuries on the deceased and the injured ``` ``` persons, were not guilty of the offences. However, ``` ``` the learned Sessions Judge arrived at the said conclusion, only because of the fact that the prosecution could not prove their identity. On scanning through the evidence of PWs.1,2 and 4, it ``` ``` can be seen that all of them have specifically identified accused Nos.1 to 5. But with regard to ``` ``` the identification of the other accused persons, ``` ``` their statements are to the effect that, the other ``` ``` persons who were standing on the dock were also ``` ``` present by holding beer bottles in their hands and they have encircled the place to prevent the victims from escaping from the scene. It is evident from the statements of the aforesaid witnesses that ``` CRL.MC No.2910 of 2022 9 ``` all of them have specifically stated that besides ``` ``` the accused Nos.1 to 5, there were 7 persons in the ``` ``` place of occurrence to have encircled the area in the manner as mentioned above. Out of the said 7 persons, six persons were present at the time of ``` ``` the trial which culminated in Annexure-C. Since the identification of those accused persons were only in the form of a general identification without specifically pinpointing the features of each and every accused persons, the learned Sessions Judge arrived at a conclusion that the identity of those accused persons could not be established by the prosecution. Therefore, in my view, the order of ``` ``` acquittal passed against the said persons would not have any impact on the question of the involvement of the petitioner even though the allegations raised against the petitioner are exactly the same ``` ``` as that of the allegations raised against accused Nos.6 to 8 and 10 to 12. ``` ``` 9.One crucial aspect to be noticed in this regard is that, right from the inception, the ``` CRL.MC No.2910 of 2022 10 ``` specific case of the prosecution is that, the commission of the offence was done by accused Nos. 1 to 5 with the aid of 7 accused persons who are accused Nos. 6 to 12. All the occurrence witnesses have specifically deposed about the incident in the manner as projected by the prosecution and the involvement of 12 persons was also specifically stated. Some of the accused persons were acquitted only because, the prosecution could not prove that ``` ``` those persons were among the seven persons referred ``` ``` to by the witnesses above. The crucial aspect is that the involvement of the seven persons other than accused numbers 1 to 5 has been clearly ``` ``` revealed from the evidence of occurrence witnesses and the shadow of doubt was only concerning the identity of the persons allegedly among the said seven persons. Therefore, In my view, since the ``` ``` order of acquittal passed is only based on failure to prove the identity of the accused who faced the trial, under no circumstances this can be treated as a case where the substratum of the prosecution ``` CRL.MC No.2910 of 2022 11 ``` case is lost. Hence, the principles laid down in ``` ``` Moosa’s case (supra) cannot be applied. ``` ``` In the result, I do not find any merit in this Crl.M.C. and accordingly this Crl.M.C. is dismissed without prejudice to the right, remedies and contentions of the petitioner herein. ``` ## **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.2910 of 2022 12 ## `APPENDIX` ``` ANNEXURE ACERTIFIED COPY OF THE FIR AND FI STATEMENT DATED 25.12.2015 IN CRIME NO.2028/2015 OF PUDUKKADU POLICE STATION FILED BEFORE THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS AT IRINJALAKKUDA ANNEXURE BCERTIFIED COPY OF THE FINAL REPORT DATED 23.03.2016 IN CRIME NO.2028/2015 PUDUKKADU POLICE STATION FILED BEFORE THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS AT IRINJALAKUDA ANNEXURE CCERTIFIED COPY OF THE JUDGMENT DATED 26.04.2018 IN S.C.NO.600/2016 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE AT IRINJALAKUDA. ```