[email protected] Dileesh vs State Of Kerala
2022 Latest Caselaw 8703 Ker

CRL.MC NO. 4452 OF 2022            1



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                          CRL.MC NO. 4452 OF 2022
          CRIME NO.94/2005 OF KOTTARAKKARA POLICE STATION
     IN SC 759/2019 OF THE ASST. SESSIONS COURT, KOTTARAKKARA
PETITIONER/ACCUSED:

             [email protected] DILEESH
             AGED 37 YEARS
             SON OF KRISHNAPILLAI, DILEESH BHAVAN, NEAR
             LEKSHAMVEEDU JUNCTION, ELATHUKULAKKADA MURI,
             KALAYAPURAM VILLAGE, KOLLAM DISITRICT, PIN - 691560

             BY ADV K.B.UDAYAKUMAR


RESPONDENT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031

             SMT T V NEEMA -SR PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 4452 OF 2022                 2




                                    O R D E R

This Crl.M.C has been filed to quash the proceedings against

the accused on the ground of acquittal of the remaining accused.

2. A crime was registered as Crime No.94/2005 of

Kottarakkara Police Station against the petitioner and nine accused.

The petitioner is the 9th accused. The offences alleged against the

petitioner are punishable under Sections 143, 144, 147, 148, 452,

324, 354, 395 and 427 r/w 149 of IPC.

3. The prosecution allegation is that on 29/1/2005 at about

9.30 p.m. the petitioner and the remaining accused as well as two

identifiable persons had reached near Erathukulakkad Muri,

Kalayapuram village in a mini lorry bearing Registration

No.KL-2/F.2748 owned by the 1st accused and in the Qualis Car

bearing Registration No.KL-01/R 4660 owned by the 4 th accused and

formed themselves into an unlawful assembly armed with sword,

country sticks etc. Thereafter, the accused trespassed into the house

of CW1. Then the 3rd accused destroyed the light in front of the

house by using a country stick and the 2 nd accused attempted to

chop CW2 with a sword. The 4 th accused beat CW1 on her lip with

a country stick and caught hold of her hair and snatched her seven

sovereign of gold chain. Thereafter, the accused looted six wooden

pieces worth Rs.10,000/- kept in front of the house. Thus, CW1

sustained loss to the tune of Rs.43,500/- in spite of bodily injuries.

4. After completing the investigation, the final report was

filed. Annexure 2 is the final report. Except the petitioner, all the

remaining accused faced trial. The learned Sessions Judge after full-

fledged trial found that the prosecution failed to prove the offence

against the accused and accordingly all the remaining accused were

acquitted. Annexure 3 is the judgment. Since the present petitioner

did not appear, the case as against him was split up and

renumbered as S.C No.759/2019. According to the petitioner, in

view of the acquittal of the remaining accused, the substratum of

the prosecution case is dislodged. It is in these circumstances, the

petitioner has filed this Crl.M.C. invoking Section 482 of Cr.P.C.

5. I have heard Sri.Jayakumar, the learned counsel for the

petitioner and Smt.Neema, the learned Senior Public Prosecutor.

6. To prove the prosecution case, 11 witnesses were

examined as PWs 1 to 11 and Exts.P1 to P13 were marked. As per

the prosecution case, the accused formed an unlawful assembly,

trespassed into the residential house of PW2 after making

preparation to commit the offence, forcibly took away the gold

chain worn by PW1 as well as some wooden logs kept in front of

the house. According to the prosecution, the timbers were situated

in the property belonging to PW2 and she is the owner of wooden

logs. When examined, PW2 admitted that the tree was standing on

the puramboke and when road was widened by KSTP, the road

widening workers cut and removed the tree. The learned Sessions

Judge found that the prosecution failed to prove that PW2 is the

owner of the property where the tree was standing and that she is

the owner of the timbers. None of the independent witnesses

supported the prosecution case. Even though PW2 and PW4 deposed

that they sustained injuries in the incident, no medical evidence has

been adduced. Even though it is alleged that gold chain was forcibly

taken away by the accused from the possession of PW2, it was not

recovered. The learned Sessions Judge after analysing the evidence

found that the evidence of PW2 and PW4 are interested testimony

and cannot be relied on. In short, the learned Sessions Judge on

analysis of evidence found that the prosecution case is not a

believable one. It is pertinent to note that even in the final report,

no specific overt act has been alleged against the petitioner. The

learned Sessions Judge already found that the case set up by the

prosecution has not been established by the prosecution.

7. The Apex Court in Sahadevan and 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

reasonable doubt, then benefit should accrue to all the accused

persons and not merely to the accused who faced trial. A Full

Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1)

KLT 552) in paragraph 50 has held that in a case where the very

substratum of the case is lost by the acquittal of the co-accused, the

power u/s 482 of Cr.P.C could be invoked. This is a case where the

entire prosecution was 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 accused.

8. For all these reasons, I am of the view that this is a fit

case where jurisdiction vested with this court u/s 482 of Cr.P.C

could be invoked. Accordingly, all further proceedings in SC

No.759/2019 on the file of the Assistant Sessions Court, Kottarakkara

stands hereby quashed.

Crl.M.C. is allowed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab

APPENDIX OF CRL.MC 4452/2022

PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF FIR IN CRIME NO.

94/2005 OF KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT .

Annexure2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO. 94/2005 OF KOTTARAKARA POLICE STATION, KOLLAM DISTRICT Annexure3 CERTIFIED COPY OF THE JUDGMENT DATED 29/2/2020 IN S.C. NO. 2138/2011 OF ASSISTANT SESSIONS COURT, KOTTARAKKARA Annexure4 CERTIFIED COPY OF THE DEPOSITION OF PW-2 Annexure5 CERTIFIED COPY OF THE DEPOSITION OF PW-4

RESPONDENTS ANNEXURES: NIL