IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
ST
FRIDAY, THE 1 DAY OF JULY 2022 / 10TH ASHADHA, 1944
CRL.MC NO. 1174 OF 2020
AGAINST THE ORDER/JUDGMENT IN CC 350/2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD
PETITIONER/ACCUSED 1 AND 2:
1 BINS @ SUBIN
AGED 33 YEARS
S/O.THANKACHAN, AMBADI HOUSE, MELATTUMOOZHI,
ANAKUDI MURI, VAMANAPURAM, THIRUVANANTHAPURAM.
2 DEEPU,
AGED 33 YEARS
S/O.VENU, KOONANVILAKATHU VEEDU, NEAR EATTINOODU
JUNCTION, ANAKUDI MURI, VAMANAPURAM,
THIRUVANANTHAPURAM.
BY ADV LIJU. M.P
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, HIGH COURT OF KERALA, ERNAKULAM-682 031.
ADV. SEENA C -PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
2
CRL.MC NO. 1174 OF 2020
ORDER
The petitioners are accused Nos.1 and 2 in Crime No.139/2008 of Venjaramood Police Station, which is now pending as C.C 350 of 2013 before the Judicial First Class Magistrate Court- I, Nedumangad. The aforesaid crime was registered for the offences punishable under Sections 341, 294(b), 323 and 325 r/w 34 of IPC.
2. The prosecution case is that on 12/03/2008 at 10.30 p.m, near Oonnampara Junction, Melattumoozhi-Aaramthanam road, the 2nd accused caught hold of the shirt of CW1 and wrongfully restrained him. At that time, the 1 st accused beat CW1 on his dorsum and kicked him down to the ground. The 3 rd accused uttered obscene words against CW1. Annexure A is the final report submitted by the Police. Initially, cognizance was taken by the Judicial First Class Magistrate's Court-I, Nedumangad, as C.C.No.516/2008, and in the trial followed, the 3 rd accused alone participated. Annexure B is the judgment passed in the said case. 3 CRL.MC NO. 1174 OF 2020 After evaluating the evidence adduced by the prosecution, the learned Magistrate acquitted the 3rd accused.
3. The case against the petitioners was split up, and now, the same stands refiled as C.C.No.350/2013 before the said court. This Crl.M.C is filed for quashing all further proceedings pursuant to Annexure A as against the petitioners herein.
4. Heard Sri.Liju. M.P., the learned counsel appearing for the petitioners and Smt.Seena C, the learned Public Prosecutor appearing for the State.
5. The specific contention put forward by the learned counsel for the petitioners is that, consequent to the order of acquittal passed by the learned Magistrate in Annexure A judgment, the substratum of the case is lost. Therefore, continuing the prosecution against the petitioners herein would serve no fruitful purpose. Reliance was also placed on the decision rendered by the Full Bench of this Court in Moosa v. Sub Inspector of Police [2006(1) KLT 552].
4CRL.MC NO. 1174 OF 2020
6. On the other hand, the learned Public prosecutor would oppose the aforesaid contention. According to the learned Public Prosecutor, the question of involvement of the petitioners is a matter of evidence, and merely because the 3 rd accused has been acquitted by the court, the proceedings against the petitioners cannot be quashed.
7. I have gone through the contents of Annexure A final report and the observations made by the learned Magistrate in Annexure B judgment. It is discernible therefrom that the injured was examined as PW1. Even though he stated the incident by mentioning the name of all the accused persons, the learned Magistrate concluded that the version he put forward during his examination was different from the FI Statement. Therefore, the same was not relied upon. It was also found by the learned Magistrate that there was a delay of two days in registering the FIR. To be precise, the incident occurred on 12/03/2008 at 10.30 pm, but the FI statement was lodged only on 15/03/2008 at 12 hrs. Even though PW1 tried to explain the delay by stating that the 5 CRL.MC NO. 1174 OF 2020 same had occurred as he was under the impression that the intimation in this regard would be given to the Police by the hospital, he did not inform the matter to Police immediately. Only later the matter was informed. However, while considering the aforesaid explanation, the learned Magistrate noted that the de facto complainant had availed medical treatment one day after the incident. No wound certificate has been produced. It is also observed by the learned Magistrate that Ext.P3 treatment certificate does not contain the reason for injury. Thus, taking note of the above discrepancies, a categorical finding has been entered by the learned Magistrate to the effect that the prosecution miserably failed in establishing the guilt of the accused.
8. Thus, taking into account all the above aspects, the only conclusion possible is that the finding entered by the learned Magistrate is to the effect that the entire prosecution case itself is not sustainable.
9. In such circumstances, this is a case in which the substratum of the case is lost consequent to the aforesaid findings. 6 CRL.MC NO. 1174 OF 2020 Hence, this is a fit case in which the principles laid by this Court in Moosa's case can be applied.
In the result, this Crl.M.C is allowed, and Annexure A final report submitted in Crime No.139/2008 of Venjaramood Police Station and all further proceedings in C.C.No.350/2013 on the file of Judicial First Class Magistrate's Court, Nedumangad as against the petitioners herein are quashed.
Sd/-
ZIYAD RAHMAN A.A JUDGE rpk 7 CRL.MC NO. 1174 OF 2020 APPENDIX OF CRL.MC 1174/2020 PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.139/2008 OF VENJARAMOOD POLICE STATION, THIRUVANATHAPURAM.
ANNEXURE B CERTIFIED COPY OF THE
JUDGMENT DATED
22.09.2014 PASSED IN
CC NO.516/08 ON THE
FILE OF JUDICIAL
FIRST CLASS
MAGISTRATE'S COURT-I,
NEDUMANGAD.