Shafeeq vs State Of Kerala

Kerala High Court

Shafeeq vs State Of Kerala on 23 May, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                      CRL.MC NO. 3103 OF 2024
     CRIME NO.150/2015 OF CHOMBALA POLICE STATION, KOZHIKODE
     AGAINST THE ORDER/JUDGMENT DATED IN CC NO.780 OF 2023 OF
           JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA
PETITIONERS/ACCUSED:

      1      SHAFEEQ
             AGED 37 YEARS, S/O.IBRAHIM, SAFREENA MANZIL,
             PAZHAYA KOTTARAM PARAMBATH, AZHIYOOR P.O,
             KOZHIKODE DISTRCT-, PIN - 673308
      2      RAHEEM
             AGED 41 YEARS, S/O.MUHAMMED, VAYAL
             PARAMBATH HOUSE, AZHIYOOR P.O,
             KOZHIKODE DISTRCT, PIN - 673308
      3      KHALEEL
             AGED 46 YEARS, S/O.ASSU N.K,
             ASHARIYA MANZIL, AZHIYOOR P.O,
             KOZHIKODE DISTRCT, PIN - 673308
             BY ADVS.
             M.A.AHAMMAD SAHEER
             E.A.HARIS
             MUHAMMED YASIL

RESPONDENT/STATE AND COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, PIN - 682031
             BY ADV.
             SRI.ASHI M.C. (PP)



       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON    23.05.2024,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 Crl.M.C.No.3103 of 2024
                                     :2:



                       BECHU KURIAN THOMAS, J.
                    ---------------------------------------
                         Crl.M.C. No.3103 of 2024
                    ---------------------------------------
                    Dated this the 23rd day of May, 2024


                                   ORDER

Petitioners are accused 2, 6 and 8 in Crime No.150/2015 of Chombala Police Station. The case against them was initially taken cognizance as C.C.No.821/2015. However, since the petitioners had absconded, trial proceeded against the remaining accused. By judgment dated 16.09.2023, accused 1, 3, 4, 5 and 7 in C.C.No.821/2015 were acquitted. The case against the petitioners has now been renumbered as C.C.No.780/2023 after they appeared before the Court. They seek the benefit of acquittal of the co-accused to be extended to them.

2. I have heard Sri.Ahammad Saheer M.A. - learned counsel for the petitioners as well as Sri.Ashi M.C. - learned Public Prosecutor.

3. On a perusal of the judgment of acquittal of the co-accused in C.C.No.821/2015, it is noticed that those accused have been acquitted due to the absence of evidence. In paragraph 8 of the said judgment, it is observed that CW1, the defacto complainant and CW2 and CW3, who were occurrence witnesses, were not examined. Since those material witnesses had not turned up, to given evidence, the prosecutor gave up the remaining witnesses. On the above basis, it was held that the prosecution had failed to prove the case against the accused beyond Crl.M.C.No.3103 of 2024 :3: reasonable doubt.

4. Though the material witnesses in the trial against the co-accused did not appear, the same is not a reason to assume that those witnesses will not turn up in the trial against the petitioners. The extension of benefit of acquittal of co-accused can be granted only when the substratum of the prosecution case has been destroyed. Merely because the material witnesses had not turned up and the prosecution had given up the remaining witnesses in the trial against some of the accused is not by itself a reason to extend the benefit of acquittal of the co-accused to those who were absconding or those who had not turned up for trial.

Therefore, I find no merit in this Crl.M.C. and it is dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE anm Crl.M.C.No.3103 of 2024 :4: APPENDIX OF CRL.MC 3103/2024 PETITIONERS' ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.780/2023 ON THE FILES JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VADAKARA Annexure A2 THE TRUE COPY OF THE WITNESS LIST IN C.C.NO.780/2023 ON THE FILES JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VADAKARA IN IN CRIME NO.150/2015 OF CHOMBALA POLICE STATION Annexure A3 THE TRUE COPY OF THE JUDGMENT DATED 16- 09-2023 IN C.C.821/2015 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VATAKARA