Sunfeeq v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945** **CRL.MC NO. 7161 OF 2023** **AGAINST THE ORDER/JUDGMENT SC 701/2015 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI** ## **PETITIONER/ACCUSED:** SUNFEEQ AGED 35 YEARS S/O SIDDIQ, KAMMUTAKATH NIRMARUTH P.O. THANOOR MALAPPURAM DISTRICT, PIN - 676109 BY ADVS. K.S.ARUN KUMAR AMRUTHA K P AMRUTHA P S VIJAY SANKAR V.H. SRUTHY UNNIKRISHNAN SAQIB RIZWAN ARYA B. VENUGOPAL ELDHO BABY ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROCECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 MUHAMMED ALI AGED 46 YEARS S/O CHERIYABHAVA. KADAVANDIPURAKKAL, NIRAMARUTHUR, PUTHIYAKADAPPURAM, TANUR, MALAPPURAM, PIN - 676302 3 RAHIM .A.P AGED 41 YEARS S/O SULAIMAN, AIDROSAJINTEPURAKKAL, Crl.M.C.No.7161 of 2023 **==> picture [6 x 9] intentionally omitted <==** NIRAMARUTHUR PUTHIYAKADAPPURAM, TANUR, MALAPPURAM, PIN - 676302 HRITWICK C.S PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.7161 of 2023 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.7161 of 2023** **---------------------------------------------Dated this the 19[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. Petitioner is one of the accused in S.C.No.701 of 2015 on the file of the Third Additional District and Sessions Court, Manjeri arising from Crime No.130/2010 of Tanur Police Station. The above case is registered against the petitioner alleging offences punishable under Section 143, 147, 148, 341, 324, 427, 307 r/w Crl.M.C.No.7161 of 2023 4 149 IPC. 3. It is submitted that, except accused Nos.1, 2 and 5, all others were acquitted as per Annexure-II judgment. It is also submitted that the matter is settled with the parties and an affidavit is also filed by the victim. 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. Crl.M.C.No.7161 of 2023 5 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 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 judgement 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 Crl.M.C.No.7161 of 2023 6 ## Annexure-II judgment by which the co-accused were acquitted: _“15. Based on the evidence on record, the learned counsel submitted that the prosecution could not prove the allegations levelled against the accused. It is contended that even the defacto complainant did not support he prosecution case and that the accused are absolutely innocent of the allegations levelled against them. At the same time, the learned public prosecutor submitted that the circumstances which are brought out in evidence against the accused fully establish the case of the prosecution. To ascertain the sustenance of the rival contentions, on analysing the evidence on record, it is appearing that neither PW2 nor PW3 who are alleged to have been assaulted by the accused support the prosecution case. Both of them turned hostile to the prosecution. According to the prosecution, it was PW1 who detected the crime and filed the Ext. P1 complaint. Though PW1 testifies that he saw a group of people assaulting PW2 and PW3 and that the accused were among them, he could not identify any individual accused in the_ Crl.M.C.No.7161 of 2023 7 _court. The testimony of PW1 do not give a clear picture as to the prosecution story. PW6 is another official witness whose testimony also do not give strength to the testimony of PW1._ _16. The material witnesses in this case are PWs. 2 and 3 who are alleged to have been sustained injuries in the case. They totally denied and emphatically asserts that accused were not there among those who assaulted PW3. In such a situation, I am of the opinion that PW1 and PW6 who are the official witnesses may tent to support the prosecution case to the maximum extent, to ensure that the prosecution initiated at their instance get succeeded. In such a circumstance, I am of the view that it is very unsafe to place reliance on the testimonies of PWs. 1 and 6, so long as they are not corroborated in material particulars by other independent evidence. Even the injured do not support the versions putforward by PWs. 1 and 6. Though the treatment undergone by PWs. 2 and 3 are proved by Exts. P13 and P14, the same also do not improve the case of the prosecution. The case of prosecution was initiated in time without any delay and I hold that the mere compliance of procedural_ Crl.M.C.No.7161 of 2023 8 _formality alone are not sufficient to fasten culpability on the accused. So long as PWs. 2 and 3 do not support the prosecution case, it will be very unsafe to place any credence on the testimonies of the official witnesses. There is no corroborative piece of evidence in this case and the evidence adduced by the prosecution are too insufficient to fasten the culpability on the accused. No cogent and convincing circumstances is brought out in evidence against the accused. When the accused were examined u/s.313 Cr.P.C, they totally denied the prosecution allegations. In view of the above it is found that prosecution miserably failed in proving the allegations levelled against the accused.”_ 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 9 Crl.M.C.No.7161 of 2023 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 proceeding in S.C.No.701 of 2015 on the file of the Third Additional District and Sessions Court, Manjeri arising from Crime No.130/2010 of Tanur Police Station are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.7161 of 2023 10 ## **APPENDIX OF CRL.MC 7161/2023** PETITIONER ANNEXURES ANNEXURE- I THE TRUE COPY OF THE CHARGE SHEET IN CRIME NO;130/2010 OF TANUR POLICESTATION MALAPPURAM DISTRICT DATED 30-7-2010 ANNEXURE - II A TRUE COPY OF THE JUDGEMENT OF COURT SESSION IN SC NO;115/2011 DATED 28-5-2015 ANNEXURE-III THE AFFIDAVIT SWORN BY THE SECOND RESPONDENT ANNEXURE-IV THE AFFIDAVIT SWORN BY THIRD RESPONDENT ANNEXURE-V A TRUE COPY OF THE EVIDENCE GIVEN BY THE 2ND RESPONDENT ANNEXURE VI A TRUE COPY OF THE EVIDENCE GIVEN BY THE 3RD RESPONDENT ANNEXURE VII A TRUE COPY OF THE EVIDENCE GIVEN BY THE PW1 RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE