THASNIM T and SUFAID v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 CRL.MC NO. 4105 OF 2022** **AGAINST THE ORDER/JUDGMENT IN SC 286/2022 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** ## **PETITIONER/ACCUSED NO. 3 AND 5:** 1 THASNIM T AGED 23 YEARS S/O HAHIM, CHANGAROTH, THAZHE KUNI HOUSE, KADAMERI KOZHIKODE PIN - 673507 2 SUFAID AGED 24 YEARS S/O KUNHAMMED PALORAKKANDY HOUSE KOTTAPPALY, KOZHIKODE PIN - 673541 BY ADVS. SHARAN SHAHIER RAKHY BABY ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADV PUBLIC PROSECUTOR SRI. M. P. PRASHANTH - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CRL.MC NO. 4105 OF 2022** -: 2 :- ## **ORDER** Petitioners are accused Nos.3 and 5 in Crime No.372/2018 of Payyoli Police Station. The aforesaid crime was registered against the petitioners and 6 others, alleging offences punishable under Sections 143, 147, 148, 341, 506(ii), 323, 324, 308 r/w Section 149 of IPC. 2. The prosecution case is as follows: On 13.09.2018, the defacto complainant, who was a final year student in MHES College Cherandathoor was dragged by the accused Nos.1, 2, 3 and 4 to the side road near the college canteen. Thereafter, the 1[st] accused forcefully hit the head of the victim on the grills of the gate, the 2[nd] and 3[rd] accused kicked him on his chest and head and the other accused persons hit him with their hands and also stamped him. Later, he was further dragged towards the scooter shed of the college and the 1[st] ## **CRL.MC NO. 4105 OF 2022** **==> picture [66 x 10] intentionally omitted <==** accused alleged to have assaulted him with a wooden reaper aiming at his head, but he evaded the said assault. It is alleged that if he was hit, it could have caused his death. It was also alleged that, he sustained injuries on his left hand during the assault made with the wooden reaper. He was taken to Vadakara Government Hospital immediately and the crime was registered after completing the investigation. Annexure-1 final report submitted by the police. 3. Initially, cognizance was taken by the Judicial First Class Magistrate Court, Payyoli as C.P.No.8/2019 and later, the matter was committed to Sessions Court, Kozhikode. The trial in the said case was conducted by the III Additional Assistant Sessions Court, Kozhikode as S.C.No.250/2020 in which all the accused except the petitioners herein have participated. Annexure-2 is the judgment passed in the said case by which all the accused persons who faced the trial were acquitted. The ## **CRL.MC NO. 4105 OF 2022** **==> picture [66 x 10] intentionally omitted <==** proceedings against the petitioners were split up and the same is now pending as S.C.No.286/2022 before the Court of Sessions, Kozhikode. This Crl.M.C is filed for quashing all further proceedings pursuant to Annexure-1 final report which is pending in the said Sessions Court. 4. Heard Sri.Sharan Shahier, the learned counsel appearing for the petitioners and Sri.M.P.Prashanth, the Public Prosecutor appearing for the State. 5. The learned counsel for the petitioner contends that consequent to the order of acquittal passed against the other accused persons, the substratum of the case itself is lost and hence no fruitful purpose would be served by continuing the prosecution as against the petitioners herein. Reliance was also placed on the principles laid down by this Court in **Moosa v. Sub** **Inspector of Police** [2006(1) KLT 552]. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. It is pointed out **CRL.MC NO. 4105 OF 2022** -: 5 :- that, merely because of the reason that the other accused persons were acquitted by the trial court after a full fledged trial, the proceedings against the petitioners cannot be quashed. The role of the petitioners is to be ascertained on the basis of evidence to be adduced in the trial. 7. I have perused the contents of Annexure-1 final report and also the observations/findings in Annexure-2 judgment. The observations in Annexure-2 would indicate that the crucial evidence adduced by the prosecution to substantiate the case is the deposition of the defacto complainant who was examined as PW3. It is discernible that he deposed about the incident occurred more or less in the manner claimed by the prosecution. However, the learned Sessions Judge specifically took note of the fact that, the version given by PW3 is not in tune with the injuries which is sustained by him, as revealed from Ext.P14 wound certificate, which is proved through PW7. **CRL.MC NO. 4105 OF 2022** **==> picture [66 x 10] intentionally omitted <==** The learned Sessions Judge specifically took note of the fact that PW3, specifically stated that he was assaulted with a wooden reaper and sustained injury on his left hand and also stated that, his head was forcibly hit against a grill. However, it was noticed by the learned Sessions Judge that, Ext.P14 does not indicate any injury corresponding to the aforesaid assaults. 8. Apart from the above, the learned Sessions Judge also took note of the fact that there were some discrepancies in the timing mentioned by PW3 as to the occurrence. According to PW3, the incident occurred at 11.30 am which is immediately after the 1[st] hour of the college is completed. However, it has come out in evidence that, the college starts at 9.30 am and if the incident has occurred immediately after one hour, then the time of occurrence would have been 10.30 am. Another discrepancy noted by the learned Sessions Judge is that, the defacto complainant reached the hospital at 11.38 pm **CRL.MC NO. 4105 OF 2022** -: 7 :- and the said hospital was 12 kms away from the college. By taking note of the above aspect, a categorical finding has been entered by the learned Sessions Judge to the effect that the time mentioned by PW3, as the time of occurrence of the incident, is not correct. In addition to the above, it was also taken note of the fact that, the petitioner as well as the defacto complainant are belonging to rival political parties. Considering all the relevant inputs, the learned Sessions Judge came to a definite finding that, a conviction is not possible on the basis of evidence of PW3 alone. Apart from the evidence of PW3, there are no other materials to substantiate the offences alleged against the accused persons. The order of acquittal was passed by the learned Sessions Judge in such circumstances. 9. Thus, I am of the view that in the light of the categorical findings that have been entered by the Sessions Court, the substratum of the case is lost. **CRL.MC NO. 4105 OF 2022** **==> picture [66 x 10] intentionally omitted <==** Therefore, this is a fit case in which the principles laid down by this Court in **Moosa's** case can be applied. In the result, this Crl.M.C is allowed and Annexure- 1 final report submitted in crime No.372/2018 of Payyoli Police Station and all further proceedings in S.C.No.286/2022 before the Court of Session, Kozhikode, as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk **CRL.MC NO. 4105 OF 2022** -: 9 :- ## **APPENDIX OF CRL.MC 4105/2022** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FIR AND CHARGESHEET DATED 13.09.2018 IN CRIME NO. 372/2018 PAYYOLI POLICE STATION, KOZHIKODE DISTRICT Annexure 2 A TRUE COPY OF THE JUDGMENT DATED 16.02.2022 IN SC 250/2020 PASSED BY THE COURT OF SESSIONS, KOZHIKODE DIVISION