Sudhil @ Rajesh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 CRL.MC NO. 5521 OF 2014 ``` ``` CRIME NO.102/1995 OF Ramankary Police Station, Alappuzha ``` ## **`PETITIONER/18TH ACCUSED:`** ``` SUDHIL @ RAJESH AGED 41 YEARS S/O.RAJAPPAN, RESIDING AT THYPARAMPIL HOUSE, KIDENGARA.P.O., VELIYANEDU VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY ADV R.UMASANKAR ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA REPRESENTED BY THE SUB-INSPECTOR OF POLICE, RAMANKARI POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV.VIPIN NARAYANAN, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.5521 /2014 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C.No.5521 of 2014 ---------------------------------------------Dated this the 04[th] day of September, 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. This case is filed by Accused No.18 in Crime No.102/1995 of Ramankari Police Station, which is now pending as S.C.No.564/2022 before the Assistant Sessions Court, Alappuzha. The above case is charged against the petitioner and others alleging offences punishable under Sections 143, 144, 145, 147, 148, 332, 323, 283, 307 and 435 read with Section 149 IPC. 3. As per Annexure-A3 judgment, all other accused were acquitted by the trial court. The petitioner was not able to appear before the court and his case is now pending as S.C. No.564/2022 before the Assistant Sessions Court, Alappuzha. Crl.M.C.No.5521 /2014 **3** 4. Heard counsel for the petitioner and the Public Prosecutor. 5. 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. 6. 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 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 Crl.M.C.No.5521 /2014 **4** 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 judgment by which the co-accused is acquitted: “7. From the evidence given by PWs 1 to 6 it could be seen that a crowd gathered near Kidangara junction on 12-10-95 morning at about 7 a.m. pelted stones at the police party led by the Sub Inspector of police Ramankary Police station and lathicharge and firing followed and that one person died in the firing. None of the witnesses examined knows the names of the accused. One or two of them have stated that the crowd was under the leadership of Adv.Madhusoodanan (A1). PWs 1 to 3 have of course stated that all the accused in this case were present during the incident. As earlier pointed out none of them knows the names of the accused and nobody has any previous acquaintance with the accused. No parade has been conducted to identify the accused. So the evidence of PWs 1 to 3 to the effect that the accused numbering 55 who were standing in the court hall were some of the people who were involved in the pelting of stones at them, will be of no use in proving the prosecution case. It is also to be noted in this connection that in the FIR lodged on the basis of the F.I.Statement of PW1 the names of 13 accused were mentioned. All the other accused had Crl.M.C.No.5521 /2014 **5** been added subsequently. Even though the names of 13 persons were given by PW1, he did not know the name of any of them when examined. It is also to be noted that in the general diary which is marked as Ext. D1 the names of none of the accused find a place. 8. According to the PW28 who was firstly in charge of the investigation the FIR and scene mahazar were prepared in the handwriting of one police constable No.3685 by name Joseph. But it could be seen that the handwriting in FIR and mahazar are very quite different. Another point to be noted is that according to PWs 1 to 6 the firing on the mob was after the burning of the Collector's car. The evidence of PWs 9, 10, 14 and 25 would indicate that the car was set on fire after the shooting incident. According to the defence case a small number of people gathered at Kidangara junction were indiscriminately beaten by the police party and later they were lathi-charged and subsequently the police shot dead one person. The mob enraged due to the shooting incident set fire to the District Collector's car. The evidence of PWs 1 to 6 would show that they were mainly trying to justify the shooting incident rather than speaking in terms of the prosecution case. 9. The accused are not properly identified and their involvement in the incident are also not clearly brought out in the examination. Another point to be Crl.M.C.No.5521 /2014 **6** noted is that according to PWs 2, 5 and 6 there were about 150 persons near the car of the District Collector when they reached the spot and it was they who had pelted stones at them. It is to be noted that the car was admittedly parked about 200 metres west of the Kidangara junction. According to PWs 1, 3 and 4 the pelting of stones was from the people who gathered by the side of a channel which proceeds towards north from the Alappuzha - Changanacherry road to the SNDP office. According to PWs 1, 3 and 4 some of the crowd then came towards the car and burnt the same. There are apparent contradictions between the evidence of PWs 1 to 6. 10. From the above discussions what follows is that the prosecution has miserably failed to prove the charges against the accused.” 7. 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-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. In the result, this Crl.M.C is allowed and all further Crl.M.C.No.5521 /2014 **7** proceedings in S.C.No.564/2022 on the files of the Assistant Sessions Court, Alappuzha as against the petitioner are hereby quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV Crl.M.C.No.5521 /2014 **8** ## **`APPENDIX OF CRL.MC 5521/2014`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1- A TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME NO.102/1995 OF RAMANKARI POLICE STATION, ALAPPUZHA DISTRICT. ANNEXURE A2- CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO.102/1995 F RAMANKARI POLICE STATION, ALAPPUZHA DISTRICT ALONG WITH TRUE LEGIBLE EXTRACT. ``` ``` ANNEXURE A3- CERTIFIED COPY OF THE ORDER DATED 27.01.2001 IN SC NO.255/1999 OF THE PRL. ASST. SESSIONS COURT, ALAPPUZHA ```