Paul Andrew vs State Of Kerala
2021 Latest Caselaw 12201 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR. JUSTICE K.HARIPAL

     FRIDAY, THE 23RD DAY OF APRIL 2021 / 3RD VAISAKHA, 1943

                     Crl.MC.No.2373 OF 2021(F)

         CRIME NO.34/1996 OF VALIYATHURA POLICE STATION ,
 THIRUVANANTHAPURAM DISTRICT ORIGINALLY NUMBERED AS S.C.NO.310 OF
1996 AND NOW PENDING AS S.C.NO.201/2010 BEFORE THE IIND ADDITIONAL
      ASSISTANT SESSIONS COURT (SUB-III) THIRUVANANTHAPURAM


PETITIONER/3RD ACCUSED:

              PAUL ANDREW,
              AGED 50 YEARS,
              S/O.ANDREW,
              POOMUTTAM,
              T.C.NO.34/580,
              BEACH P.O.,
              THIRUVANANTHAPURAM - 695007.

              BY ADV. SRI.M.SASINDRAN

RESPONDENT:

              STATE OF KERALA,
              REPRESENTED BY THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA,
              ERNAKULAM - 682 031.

              SRI.SANTHOSH PETER - SR.PP

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.2373 OF 2021(F)

                                      2

                                  ORDER

The petitioner is the 3rd accused in Crime No.34/1996 of

Valiyathura Police Station, Thiruvananthapuram, which was registered

alleging offence punishable under Sections 323, 511 and 366 r/w 34

IPC. The alleged incident had happened on 31.01.1996. Out of the six

accused persons, four of them have already faced trial and they stand

acquitted by Annexure-AII judgment of the IInd Additional Assistant

Sessions Court, dated 10.01.2000.

2. Inviting my pointed attention to the Annexure-AII

judgment, the learned counsel submitted that even the CW1, the defacto

complainant did not identify the accused and had stated that he does not

know the persons who had inflicted injuries on him or who had

attempted to take away CW2. Even though Cws 1 to 3 had said, at the

time of investigation that, they can identify the culprits by sight, no test

identification parade was conducted. Similarly, the Investigating

Officer did not collect any evidence on the alleged injury sustained by

the CW1. Thus, the trial court found that there is absolutely no

evidence to connect the accused persons. The case against the

petitioner, who is the 3rd accused, stands re-filed as S.C.No.201 of 2010.

Now, it is submitted that the case is scheduled for recording his plea. Crl.MC.No.2373 OF 2021(F)

3. According to the learned counsel, in the light of the

Annexure-AII judgment and the clear statement of the defacto

complainant that he is not in a position to identify the persons who had

assaulted and tried to take away CW2, the substratum of the case is lost.

The learned Additional Assistant Sessions Judge had also considered

the statements of CWs 2 and 3 before the Police that they cannot

identify the culprits as they were seen at night, at the time of

occurrence.

In the circumstances, I have no doubt that driving the

petitioner for trial would be a futile exercise. As rightly pointed out by

the learned counsel, by the statement of material witnesses and acquittal

of the other accused persons, the very substratum of the prosecution

case has been lost. Therefore, there is no point in trying the petitioner,

who is the 3rd accused. Thus, all further proceedings in S.C.No.201 of

2010 pending before the IInd Additional Assistant Sessions Court (Sub

Court III), Thiruvananthapuram shall stand quashed.

Sd/-

K.HARIPAL JUDGE

NR/23/04/2021 Crl.MC.No.2373 OF 2021(F)

APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE AI CERTIFIED COPY OF THE PROCEEDINGS OF THE 'B' DIARY OF THE COURT IN RESPECT OF THE ABOVE CASE DURING THE PERIOD BETWEEN 14/09/2010 TO 22/03/2019.

ANNEXURE AI(a) CERTIFIED COPY OF THE PROCEEDINGS OF THE 'B' DIARY OF THE COURT IN RESPECT OF THE ABOVE CASE DURING THE PERIOD BETWEEN 11/12/2017 TO 26/03/2021.

ANNEXURE AII A TRUE COPY OF THE JUDGMENT IN S.C.NO.310/1996 OF THE IIND ADDITIONAL ASSISTANT SESSIONS JUDGE, THIRUVANANTHAPURAM.

//TRUE COPY// PA TO JUDGE