Rajendraprasad @ Prasad v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 CRL.MC NO. 3218 OF 2022 AGAINST THE ORDER/JUDGMENT IN CC 757/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KADAKKAL ## PETITIONER: RAJENDRAPRASAD @ PRASAD, AGED 35 YEARS, SON UTHAMAN, SHYNIMANDIRAM, CHINGOLI, KADAKKAL VILLAGE, KOLLAM, PIN – 690 532. BY ADV S.R.SREEJITH ## RESPONDENT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT.P.O., ERNAKULAM, PIN – 682 031. ADV. VIPIN NARAYAN – PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.05.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.3218 of 2022 2 ## ORDER The petitioner is the 7[th] accused in Crime No.515/2013 of the Kadakkal Police Station, Thiruvananthapuram which is now pending as C.C.No.757/2019 on the file of the Judicial First Class Magistrate Court, Kadakkal (Temporary). The aforesaid crime was registered alleging offences punishable under Sections 143,147,447, 427,379 r/w. Section 149 of the Indian Penal Code (IPC). 2. The prosecution case is that, on 21.3.2013 at 9 p.m. the petitioner along with eight other persons formed themselves into an unlawful assembly and trespassed into the property of CW1’s daughter and her husband, destroyed 12 rubber trees and taken away timbers of six rubber trees. It was also alleged that the accused persons have created a CRL.MC No.3218 of 2022 3 pathway through the property of CW1 which resulted in the loss of 4 cents of property of CW1. Annexure A1 is the crime registered in connection with the same and Annexure-A2 is the final report submitted by the police. 3. Initially, cognizance thereon was taken by the Judicial First Class Magistrate Court, Kadakkal (Temporary) as C.C.No.2165/2015 and accused persons A1 to A6 had participated in the trial which resulted in Annexure-A3 judgment. As per the aforesaid judgment, all the said accused persons who participated in the trial were acquitted. The case against the petitioner has been split up and refiled as C.C.No.757/2019. This Crl.M.C. is filed for quashing all further proceedings against the petitioner in the aforesaid Calander Case. 4. Heard Sri.S.R.Sreejith, the learned counsel for the petitioner, Sri. Vipin Narayan, the learned CRL.MC No.3218 of 2022 4 Public Prosecutor for the State. 5. The learned counsel for the petitioner mainly contends that by virtue of the order of acquittal passed by the learned Magistrate as per Annexure-A3 judgment, the substratum of the case itself is lost and, therefore, no purpose would be served even if the proceedings against the petitioner is allowed to continue. The decision rendered by the Full Bench of this Court in Moosa v. Sub Inspector of Police [2006(1)KLT 552] was also relied on. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid prayer by highlighting that the question regarding the role of the petitioner is a matter to be adjudicated during the course of trial. The acquittal of the other accused persons cannot be a reason for quashing the proceedings against the petitioner herein. CRL.MC No.3218 of 2022 5 7. I have gone through Annexure-A2 final report and also the findings/observations made by the learned Magistrate in Annexure-A3 judgment. It is discernible that the defacto complainant is not an eye witness. The persons who witnessed the incident were CWs.2 and 3. CW2 was examined as PW1, CW3 is no more. It is observed in paragraph 10 of Annexure-A3 judgment that while being examined as PW1, CW2 has stated that he did not witness the incident and thereby he was declared as hostile to the prosecution. Apart from the aforesaid evidence, the prosecution could not adduce any other evidence to establish the role of the accused persons in the commission of the crime. It was in that circumstances, the order of acquittal was happened to be passed by the learned Magistrate. Considering the fact that, the only eye witness available to the prosecution has turned hostile by specifically stating that he did not witness the incident, I find CRL.MC No.3218 of 2022 6 some force in the contention of the learned counsel for the petitioner. This is particularly because as the only available eye witness has completely denied his presence in the place of occurrence at the relevant time, the same would have the impact of destroying the substratum of the case particularly because the prosecution has no other evidence to rely on to establish the prosecution case. In such circumstances, I find that the further proceedings against the petitioner would be a futile exercise. In such circumstances, I find this as a fit case in which the principles laid down by this Court in Moosa’s (supra)can be applied. As the substratum of the case is lost, the proceedings against the petitioner can be quashed. Accordingly, this Crl.M.C. is allowed and Annexure A2 final report in Crime No.515 of 2013 of Kadakkal Police Station and all further proceedings C.C.No.757/2019 pending before the Judicial First CRL.MC No.3218 of 2022 7 Class Magistrate Court, Kadakkal (Temporary), against the petitioner are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.3218 of 2022 8 ## APPENDIX OF CRL.MC 3218/2022 |PETITIONER ANNEXURES|| |---|---| |Annexure A1|PHOTOCOPY OF F.I.R. DATED 22.03.2013 IN| ||CRIME NO.515/2013 OF KADAKKAL POLICE| ||STATION, THIRUVANANTHAPURAM DISTRICT| |Annexure A2|PHOTOCOPY OF THE FINAL REPORT DATED| ||25.5.2013 IN CRIME NO.515/2013 OF KADAKKAL| ||POLICE STATION, THIRUVANANTHAPURAM DISTRICT| ||WHICH IS NOW PENDING AS C.C. NO.757/2019| ||(RE-FILED FROM C.C. NO.2165/2015) ON THE| ||FILE OF COURT OF JUDICIAL MAGISTRATE OF| ||FIRST CLASS, KADAKKAL, (TEMPORARY)| |Annexure A3|TRUE COPY OF THE JUDGMENT DATED 10.10.2019| ||IN C.C. NO.2165/2015 ON THE FILE OF COURT OF| ||JUDICIAL MAGISTRATE OF FIRST CLASS,| ||KADAKKAL, (TEMPORARY)|