Themiz Mohammed Ayapally v. State of Kerala

``` CRL.MC NO. 1662 OF 2021 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 CRL.MC NO. 1662 OF 2021 ``` ``` CRIME NO.7/2003 OF Vazhakkad Police Station, Malappuram ``` ``` IN CP 54/2007 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,MALAPPURAM`** ## **`PETITIONER/ACCUSED NO.5:`** ``` THEMIZ MOHAMMED AYAPALLY AGED 41 YEARS, MADATHIL THAZHAM PARAMBU, KADUPPINY MANKAVU P.O., MANKAVU, CALICUT 673 007 BY ADVS. SHARAN SHAHIER SMT.MINTU CHERIYAN ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 682 031` - `2 XXX XXX` ``` R1 BY SRI.P.G.MANU-SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1662 OF 2021 ``` ``` 2 ``` ## O R D E R This Crl.M.C has been filed to quash all further proceedings against the petitioner on the ground of acquittal of the remaining accused. 2. A crime was registered as Crime No.7/2003 of Vazhakkad Police Station against the petitioner and four other accused for the offences punishable under Sections 366 and 376(2) (g) r/w 34 of IPC. The petitioner was arrayed as the 4[th] accused. 3. The prosecution case in short is that on 7.1.2003 the petitioner along with the remaining accused kidnapped the victim/2nd respondent, took her into a far away place at Ootty with the intention to commit rape on her and thereafter accused Nos.2, 3 and 5 committed gang rape on her and the petitioner assisted them in committing the rape. 4. A final report was filed against the five accused showing that the petitioner is an absconding accused, before the ``` CRL.MC NO. 1662 OF 2021 ``` ``` 3 ``` Judicial First Class Magistrate Court, Malappuram. The learned Magistrate took the final report on file as C.P.No.18/2007. Thereafter, the learned Magistrate committed the case to the Court of Sessions, Manjeri, after complying the statutory formalities against all the accused, except the petitioner. 5. It is submitted that the case as against the petitioner has been now pending as L.P.No.17/2019 in C.P.No.54/2007 on the file of the Judicial First Class Magistrate Court, Malappuram. 6. The Sessions Court conducted trial against the remaining four accused, except the petitioner. After full-fledged trial, the Sessions Court found that the prosecution has failed to prove the offence against the accused and accordingly, they were acquitted. Annexure 3 is the judgment. According to the petitioner, in view of the acquittal of the remaining accused, substratum of the prosecution case is dislodged. It is in these circumstances, he has filed this Crl.M.C invoking Section 482 of Cr.P.C. ``` CRL.MC NO. 1662 OF 2021 ``` ``` 4 ``` 7. I have heard Sri.Sharan Shahier, the learned counsel for the petitioner and Sri.P.G.Manu, the learned Senior Public Prosecutor. 8. To prove the prosecution case, three witnesses were examined as Pws 1 to 3. PW1 is the victim and PWs 2 and 3 are the parents of the victim. The prosecution case in the final report is that the 1[st] accused took her in a car along with the remaining accused, they went to Ootty and all of them committed gang rape on her. However, during trial, PW1 deposed that she along with the 1[st] accused and three other persons went in a car and on the way, the 1[st] accused got down and the remaining persons took her into a far away place and committed rape on her. Thus, she has deviated from the very prosecution case in evidence. That apart, she deposed that she does not know the persons who kidnapped her in the car and have committed rape on her. She also deposed that the police did not show the accused to her and she did not identify any of them. She further deposed that the ``` CRL.MC NO. 1662 OF 2021 ``` ``` 5 ``` persons in the car, who kidnapped her were not previously known to the first accused. She further stated that she gave first information statement wrongly on the advise given by her neighbours and inmates of her house. PWs 2 and 3 also did not support the prosecution case. They deposed that they do not know the persons who kidnapped PW1 and committed rape on her. They further deposed that they did not give statement to the police that the 1[st] accused had actively aided the other accused. As stated already, the prosecution has no case that the petitioner has committed rape on the victim. The allegation against the petitioner is that he aided the remaining accused in committing rape on the victim. A reading of Annexure 3 judgment would show that the substratum of the prosecution case is dislodged. 9. The Supreme Court of India in Sahadevan & another v. State of Tamil Nadu [2012 (6) SCC 403] has held that, if the entire prosecution case has been found to be unreliable and the prosecution as a whole has not been able to prove its case beyond ``` CRL.MC NO. 1662 OF 2021 ``` ``` 6 ``` reasonable doubt, then benefit should accrue to all the accused persons and not merely to the accused, who faced trial. The Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] in paragraph 50 held that in a case where the very substratum of the case is lost by the acquittal of the co-accused, the power under Section 482 of the Cr.P.C. could be invoked. Relying on the judgment of the Supreme Court in Sahadevan ’s case (supra), a Single Bench of this Court in Ajith v. State of Kerala (2012(4) KLT 73) has held that in exercise of inherent power vested with this Court under Section 482 of Cr.P.C, the benefit of the judgment of acquittal can be extended to non appealing convicts, if the prosecution miserably failed to prove the case beyond reasonable doubt, not only the accused who faced trial, but against all the accused. 10. PW1 as well as PWs 2 and 3 deposed that they could not say who are the persons who kidnapped and committed rape on PW1. PW1 stated that the accused were not identified by her. ``` CRL.MC NO. 1662 OF 2021 ``` ``` 7 ``` It is a case where the entire prosecution case is found to be unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt. Hence, no purpose will be served in proceeding with the trial of the case. For these reasons, I am of the view that this is a fit case where the jurisdiction vested with this Court under Section 482 of Cr.P.C could be invoked. Accordingly, all further proceedings in L.P.No.17/2019 in C.P.No.54/2007 on the file of the Judicial First Class Magistrate Court, Malappuram is hereby quashed. The Crl.M.C is allowed. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 1662 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 1662/2021`** ``` PETITIONER ANNEXURES ANNEXURE 1CERTIFIED COPY OF THE CHARGE SHEET DATED 30.6.2005 IN CP 18/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE, MALAPPURAM. ANNEXURE 2CERTIFIED COPY OF THE DEPOSITION OF PW 1 ANNEXURE 3CERTIFIED COPY OF THE ORDER DATED 25.5.2008 IN SC 285/2007 PASSED BY THE ADDITIONAL SESSIONS JUDGE (ADHOC)-I, MANJERI DIVISION ``` RESPONDENTS ANNEXURES: NIL