Salfudheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945** **CRL.MC NO. 7232 OF 2023** **CRIME NO.105/2015 OF CHOMBALA POLICE STATION, Kozhikode AGAINST THE ORDER/JUDGMENT LP 175/2018 OF JUDICIAL MAGISTRATE OF** ## **FIRST CLASS ,VADAKARA** ## **PETITIONER/ACCUSED:** SALFUDHEEN AGED 33 YEARS S/O ALIKUNJU VALLUPARAMBIL HOUSE POOZHITHALA, KOZHIKODE, PIN - 673309 BY ADV K.REEHA KHADER ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV. SRI. M.P PRASANTH, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.7232 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.7232 of 2023** **---------------------------------------------Dated this the 03[rd] day of November, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioner is one of the accused in L.P.No.175/2018 on the file of the Judicial First Class Magistrate Court, Vadakara arising from Crime No.105/2015 of Chombala Police Station. The above case is charge-sheeted against the petitioner and others alleging offences punishable under Section 341, 323, 506(i) and 308 IPC. 3. Since the petitioner was not able to appear before the lower court, his case was split up and renumbered by the learned Magistrate and the case Crl.M.C.No.7232 of 2023 3 against the other accused were proceeded. The other accused were acquitted as per Annexure A3 judgment. The petitioner surrendered before the committal court and now the case is pending as C.P.No.84/2023 before the Judicial First Class Magistrate Court, Vadakara. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 5. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers Crl.M.C.No.7232 of 2023 4 of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgment of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner will be an abuse of process of court. It will be beneficial to extract the relevant portion of the Annexure A3 judgment by which the co-accused were acquitted: “14. The prosecution though has a case that the accused committed the offence under section 308 of IPC, the deposition of PW4 lacks ingredients to attract such offence. The allegation made in final report to constitute S.308 of IPC is that had PW4 not escape from the hold of neck, it would have caused his death. However, PW4 has not stated so before the court. Moreover, such a Crl.M.C.No.7232 of 2023 5 hypothetical statement is not sufficient to constitute the offence under section S.308 of IPC. PW4 has no case that the accused had intention to commit culpable homicide not amounting to murder. Even if the prosecution case that the ensuing result of the act of the accused if materialized would have caused death of PW4 is admitted, it will not attract the alleged offence. Needless to say, doing an act without intention or knowledge that his act would cause death will not attract the alleged offence. The intention can be gathered from the nature of the weapon used, part of the body where injury was caused, nature of injury and opportunity available to the accused. In the present case, no weapons are used. Even if the case of the prosecution is admitted, no offence under section 308 of IPC will lie. It has been held in Bishan Singh & Anr v. The State (AIR 2008 SC 131) that:"Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved". In the present case, the prosecution miserably failed to establish that the accused had any intention or knowledge to commit culpable homicide. For the reasons stated above, the incident as alleged by the prosecution is highly doubtful. The evidence of PW1 and Crl.M.C.No.7232 of 2023 6 PW4 does not inspire confidence. In Hari Charan Kurmi vs. State of Bihar (AIR 1964 SC 1184), it has been observed that a true legal approach must be adopted, and suspicion, however grave, must not be allowed to take the place of proof. So, there is no convincing evidence for proving an incident as alleged by the prosecution. Law is well settled that in order to base conviction, the evidence must be clear, cogent, truthful, and absolutely reliable and it should inspire confidence. Evidently, the prosecution has no consistent case. The specific defence case is that this case has been foisted due to political rivalry. In such circumstances, the possibility of false implication cannot be ruled out. For the reasons discussed above, it may not be safe to find these points on the basis of evidence of PW4 and PW1. At this juncture, it cannot be held that the prosecution could prove their case beyond reasonable doubt. The benefit of such doubt has to be extended to the accused. Hence, it can only be found that the prosecution has failed to prove these points. Accordingly, these points are found against the prosecution” From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co- Crl.M.C.No.7232 of 2023 7 accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner alone in C.P.No.84/2023 on the file of the Judicial First Class Magistrate Court, Vadakara arising from Crime No.105/2015 of Chombala Police Station are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C.No.7232 of 2023 8 ## **APPENDIX OF CRL.MC 7232/2023** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 105/2015 OF CHOMBALA POLICE STATION, KOZHIKODE DISTRICT ANNEXURE A2 A TRUE COPY OF MEMORANDUM OF EVIDENCE IS PRODUCED HEREWITH AND MARKED AS ANNEXURE A 3 THE CERTIFIED COPY OF THE JUDGMENT DATED 12/07/2023 ,SC 1173/2017, BY THE SESSIONS COURT, KOZHIKODE DATED 12/07/2023 RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE