SHEMEER @ KOCHU SHAMEER v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 Crl.MC.No.2461 of 2014 (B) --------------------------CC 230/2013 of J.M.F.C.-II, KOLLAM CRIME NO. 49/2009 OF SAKTHIKULANGARA POLICE STATION , KOLLAM ## PETITIONER(S)/2ND ACCUSED: ----------------------------------SHEMEER @ KOCHU SHAMEER, AGED 29 YEARS S/O.SHAHUDEEN KOYA, KIZHAKKEAVINCHALIL BHARATH NAGAR 5, MANAYILKULANGARA CHERRY KOLLAM WEST VILLAGE, KOLLAM BY ADVS.SRI.K.SIJU SRI.S.ABHILASH ## RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE SAKTHIKULANGARA POLICE STATION, KOLLAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ## * ADDL.R2 TO R4 IMPLEADED 2. JOSEPH AUGUSTINE, AGED 25 YEARS, S/O.AUGUSTINE, VICTOR BHAVANAM, EAST OF HOTEL MARIYALAYAM, SAKTHIKULANGARA P.O., KOLLAM - 691 581 3. PRAVEEN, AGED 23 YEARS, S/O.PETER, THOPPIL HOUSE (KALLUMMOTTIL), SAKTHIKULANGARA P.O., KOLLAM - 691 581 4. JEEN @ PLATIN, S/O.JOSEPH NELSON, AGED 23 YEARS, VALIYAVILA VEEDU, WEST OF HIGH SCHOOL, SAKTHIKULANGARA P.O., KOLLAM - 691 581 - ADDL.R2 TO R4 ARE IMPLEADED AS PER ORDER DATED 27.52014 IN CRL.M.A.NO.4931/2014. R2-R4 BY ADV. SRI.N.ANIL KUMAR R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2461 of 2014 () --------------------------- APPENDIX PETITIONER(S)' EXHIBITS : -------------------------------- ANNEXURE 1 COPY OF FIR WITH FIS IN CRIME NO.49/2009 OF SAKTHIKULANGARA POLICE STATION ANNEXURE 2 COPY OF FINAL REPORT IN CRIME NO.49/2009 ANNEXURE 3 COPY OF DEPOSITION OF PW 1 IN CC NO. 1930/2009 ANNEXURE 3(A) COPY OF DEPOSITION OF PW2 IN CC NO.1930/2009 ANNEXURE 3(B) COPY OF DEPOSITION OF PW3 IN CC NO.1930/2009 ANNEXURE 4 COPY OF JUDGMENT DATED 26/3/2013 IN CC NO.1930/2009 ON THE FILE OF JFCM-II, KOLLAM RESPONDENT(S)' EXHIBITS: NIL ------------------------------- // TRUE COPY // P.A TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.2461 Of 2014 --------------------------------Dated this the 19[th] day of December, 2014.** ## **O R D E R** Petitioner is the accused No.2 in Annexure-1 FIR in Crime No.49/2009 of Sakthikulangara Police Station. The case is now split up, refiled and pending as calendar case C.C.No.230/2013 on the file of the Judicial First Class Magistrate Court-II, Kollam for the offences alleged under Secs. 326, 324, 341 & 34 IPC. The gist of the prosecution case is that the accused on 8.2.2009 at about 11:00 p.m., in furtherance of their common intention armed with deadly weapons like knifes, wrongfully restrained CWs1 to 3 at the tar portion of Skathikulangara- Maruthadi Road. That CWs 1 & 3, who were travelling in a motor bike, were wrongfully restrained by the accused and assaulted them resulting in fracture and thereby committed the offences. The police after investigation submitted Annexure-2 Final Report/Charge Sheet in Annexure-1 Crime No.49/2009 of Sakthikulangara Police Station, against the petitioner herein (A2) and 1[st] accused therein under Secs. 326, 324, 341 & 34 IPC. Both the accused were arrested and produced before the investigating officer. ::2:: ## **Crl.M.C.No.2461 Of 2014** In pursuance of Annexure-1 Final Report, the learned Magistrate took cognizance of the offences and issued process against the 2[nd] accused which led to the pendency of C.C.No.1930/2009 on the file of the Judicial First Class Magistrate Court-II, Kollam. It is stated that since the petitioner was employed in Gulf at the time of issuance of summons, he could not appear before the court below and the trial in C.C.No.1930/2009 proceeded against the 1[st] accused alone and the case against the petitioner was split up. 2. The three injured witnesses were examined as PWs 1 to 3 before the trial court in C.C.No.1930/2009 on the file of the Judicial First Class Magistrate Court-II, Kollam. Prosecution witnesses PWs 1 to 3 are impleaded herein as respondents 2, 3 & 4. PWs 1 to 3 (respondents 2 to 4 herein) deposed before the trial court that they could not identify the person who assaulted them. Accordingly, PWs 1 to 3 were declared hostile. The certified copies of depositions of PWs 1 to 3 (respondents 2 to 4 herein) are produced as Annexure 3, 3(a) and 3(b) respectively in this Crl.M.C. Accordingly, the trial court as per Annexure-4 judgment rendered on 26.3.2013 ::3:: ## **Crl.M.C.No.2461 Of 2014** in C.C.No.1930/2009 held that as PWs 1 to 3 (the injured) have clearly stated before the court below that they do not know as to who attacked them and as the remaining witnesses were given up by the prosecution, there is absolutely no evidence to prove the alleged offences both accused beyond reasonable doubt. In the result, the court below as per the Annexure-4 judgment acquitted the accused No.1 under Sec.248 (1) Cr.P.C and the case against the 2[nd] accused (petitioner herein) was split up and refiled as C.C.No.230/2013. The petitioner herein contends that the substratum of prosecution is shattered by the evidence given by PWs 1 to 3 (respondents 2 to 4 herein) before the court below as per Annexure-3 series and court below has categorically concluded that there is absolutely no evidence to prove the alleged offences against both the accused beyond any reasonable doubt. Therefore, relying on the decision of this Court in _**Ashraf Kancheriyil v. State of Kerala**_ reported in 2011 (2) KHC 812 it is prayed that the substratum of prosecution is shattered by the acquittal rendered in Annexure4 judgment, the split up calender case against the petitioner ::4:: ## **Crl.M.C.No.2461 Of 2014** herein may be quashed in the interest of justice as any further continuance of prosecution in that case would be futile. It is in the background of these factual aspects and legal contentions that the petitioner herein has approached this Court by filing this Crl.M.C with the prayer to quash Annexures 1 & 2 and all further proceedings in C.C.No.230/2013 on the file of the Judicial First Class Magistrate Court-II, Kollam, in the interest of justice. 3. Heard both sides. 4. This Court in Ashraf's case (supra) has held that in view of the legal principles laid down by the Full Bench of this Court in the case _**Moosa v. Sub Inspector of Police**_ reported in 2006 (1) KLT 552 (FB), wherein it was held that the substratum of prosecution case is shattered by the judgment of acquittal, will be taken into account to consider the prayer to quash the impugned criminal proceedings. In this case, it can be seen that PWs 1 to 3 (R2 to R4) have clearly stated before the court below as per Annexures - 3, 3(a) and 3(b) respectively. That they do not remember the day on which the alleged incident has taken place and that they cannot say as to ::5:: ## **Crl.M.C.No.2461 Of 2014** who had assaulted them. All the other prosecution witnesses were given up by the prosecution in the trial which ended as per Annexure-4. Therefore, the court below on a consideration of the evidence adduced before the court below categorically held that as PWs 1 to 3 would clearly say that they do no even know as to who attacked them and as the remaining witnesses were given up by the prosecution, the court below found that the prosecution has failed to prove the alleged offences against both the accused beyond reasonable doubt. It is in this view of the matter that the court below as per Annexure-4 judgment in C.C.No.1930/2009 has acquitted the 1[st] accused under Sec. 248(1) Cr.P.C and the case against the petitioner herein was split up and refiled as C.C.No.230/2013. In view of the categorical finding in Annexure-4 judgment that the prosecution witnesses PWs 1 to 3 has given evidence that they do not know as to who attacked them and as the remaining witnesses were given up by the prosecution, the court below has conclusively found that the prosecution has totally failed to prove the alleged offences against both the accused beyond reasonable doubt. Therefore, the finding in Annexure-4 judgment that the ::6:: ## **Crl.M.C.No.2461 Of 2014** prosecution has failed to prove the alleged offences against both the accused, has completely shattered even as against the petitioner herein (A2). Therefore, following the dictum laid down by this in Ashraf's case (supra), this Court is of the considered opinion that as the substratum of prosecution case is shattered by the acquittal rendered by the court below in Annexure-4 judgment, the impugned criminal proceedings against the petitioner could be quashed. In this view of the matter, Crl.M.C is allowed. The impugned Annexure-A2 Final Report/Charge Sheet filed in Annexure-1 FIR in Crime No.49/2009 of Sakthikulangara Police Station as against the petitioner herein and all further proceedings in C.C.No.230/2013 on the file of the Judicial First Class Magistrate Court-II, Kollam are quashed, in the interest of justice. The petitioner shall produce certified copies of this order before the investigating officer concerned as well as before the court below concerned. **ALEXANDER THOMAS, Judge.** bkn/-