IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
CRL.MC NO. 3888 OF 2022
CRIME NO.77/2005 OF Chirayinkeezhu Police Station,
Thiruvananthapuram
SC 1126/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED (ORIGINAL 11TH ACCUSED):
FIROZ KHAN
AGED 36 YEARS
S/O ABDUL LATHEEF, FIROZ MANZIL, PARYATHUKONAM,
CHITTATTINKARA DESOM, KIZHUVILAM VILLAGE,
THIRUVANANTHAPURAM DISTRICT., PIN - 695104
BY ADV P.ANOOP (MULAVANA)
RESPONDENTS/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031
BY ADV.
ADV.SUDHEER GOPALAKRISHNAN - PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 3888 OF 2022
2
ORDER
The petitioner is the 11th accused in Crime No.77/2005 of Chirayinkeezhu Police Station. The offence alleged against the accused persons who were 11 in number is under Section 395 of Indian Penal Code.
2. The prosecution case is that, on 26.02.2005, the accused Nos.1 to 11 trespassed into the compound of the house of defacto complainant and robbed a gold chain weighing 5 sovereigns, bangles weighing 1 sovereign and a ring weighing ½ sovereign. Annexure 1 is the final report submitted by the Police. The Judicial First Class Magistrate Court I, Attingal has taken cognizance of the same as C.P. No.2/2008 and later the same was committed to the Sessions Court, Thiruvananthapuram where it was numbered as S.C. No.1146/2008. The said case was later made over to Additional Sessions Court - VII, Thiruvananthapuram where it was tried in which all the accused except the petitioner and the 3rd accused have participated. Annexure 2 is the judgment passed in the said trial. The case against the petitioner was split up and the same now stands re-filed as S.C. No.1126/2016 and is CRL.MC NO. 3888 OF 2022 3 pending before the Additional Sessions Court VII, Thiruvananthapuram. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure A1 final report.
3. Heard Sri.P.Anoop Mulavana, learned counsel appearing for the petitioner and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State.
4. The specific contention put forward by the learned counsel for the petitioner is that, consequent to the order of acquittal passed against other accused in Annexure A2 judgment, the substratum of the prosecution case is lost and hence further proceedings against the petitioner is unwarranted. Reliance was also placed on the judgment rendered by the Full Bench in Moosa v. Sub Inspector of Police [2006(1) KLT 552]
5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention by pointing out that the question as to the role played by the petitioner in commission of the crime is a matter of evidence and the same cannot be considered during the course of proceedings of this nature. It is also pointed out that merely because of CRL.MC NO. 3888 OF 2022 4 the reason that the other accused persons were acquitted, the proceeding against the petitioner herein cannot be quashed.
6. It is discernible from the records that, the defacto complainant is no more. The prosecution has examined two occurrence witnesses namely PW1 and PW2. PW2 is the daughter of the defacto complainant who deposed that, even though an incident in the manner stated in the final report has indeed occurred, she is unable to identify any of the assailants. PW2 is the husband of the defacto complainant. He deposed that, even though the incident has occurred he is also not in a position to identify any of the assailants. It was in that circumstances, the learned Sessions Judge acquitted the other accused persons. The aforesaid judgment was passed on 18.10.2016 and the same has become final.
7. Thus, on going through the aforesaid findings, it is evident that the substratum of the case is lost. The prosecution could not produce any witnesses or adduce any materials to substantiate that any of the persons accused of the offences were involved in the aforesaid case. The findings entered by the learned Sessions Judge in Annexure CRL.MC NO. 3888 OF 2022 5 A2 were made in respect of the accused persons who faced the trial, but the ultimate result of the said finding is that, the prosecution failed to establish the case advanced by them by adducing any evidence. In such circumstances, it can be safely concluded the substratum of the case itself is lost consequent to the findings entered by the learned Sessions Judge in Annexure 2. Therefore, I find this as a case in which the principles laid down by this Court in Moosa's case (supra) can be applied.
In the result, this Crl.M.C. is allowed and Annexure 1 final report submitted in Crime No.77/2005 of Chirayinkeezhu Police Station and all further proceedings in S.C. No.1126/2016 on the file Additional Sessions Court - VII , Thiruvananthapuram against the petitioner are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE scs CRL.MC NO. 3888 OF 2022 6 APPENDIX OF CRL.MC 3888/2022 PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 77/2005 OF THE CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM DISTRICT.
Annexure2 CERTIFIED COPY OF THE JUDGMENT DATED 18-
10-2016 IN SC 1146/2008 OF THE ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM.