Kerala High Court
Paulson vs State Of Kerala on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 2ND DAY OF MARCH 2022/ 11TH PHALGUNA, 1943
CRL.MC NO. 532 OF 2019
SC 672/2018 OF ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM
PETITIONER/ACCUSED No.9:
PAULSON, AGED 37 YEARS,
S/O.JOSEPH, C.C.NO.XXIII/66, EDAKOCHI, NEAR
ACQUINAS COLLEGE, EDAKOCHI, ERNAKULAM-682 010
BY ADVS.
C.ANILKUMAR (KALLESSERIL),
SRI.C.Y.VINOD KUMAR,
SRI.P.M.MANASH
RESPONDENT/COMPLAINANT:
STATE OF KERALA, (REP.BY THE SUPERINTENDENT OF
POLICE, SPECIAL BRANCH CID, ERNAKULAM-CRIME
NO.206/2002 OF THOPPUMPADY POLICE STATION)
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY SRI M P PRASANTH-PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
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ORDER
This Crl.M.C. has been filed to quash the proceedings
against the petitioner on the ground of acquittal of the
remaining accused.
2. The petitioner was arrayed as the 9th accused in
Crime No.206/2002 of Thoppumpady Police Station. Altogether
there were 19 accused. The offences alleged are under
Sections 120B(1), 292, 372, 373, 376 of the IPC and Sections
3(1), 4(1), 5(1)(a), 6(1), 6(1)(a), 6(3)(a) and 9 of the
Immoral Traffic (Prevention) Act, 1956 and Section 4 of the
Indecent Representation of Women (Prohibition) Act, 1986.
3. The prosecution case in short is that, during the
period 2001-2002, in order to gain income, the accused Nos.1
to 5 indulged in the business of prostitution with PW1 in
different places and the accused Nos.14 to 19 indulged in
prostitution with PW1. It is further alleged that the accused
No.5 conspired with the accused Nos.6 to 13 and created porn
video with PW1 and thus the accused have committed the
offences.
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4. The case was committed to the court below and
numbered as S.C.No.602/2013. The accused Nos.4 and 14
died during the pendency of the case. The accused Nos.9 and
13 did not appear at the court below. All the remaining
accused faced trial. The court below after full-fledged trial
acquitted the accused who faced trial. Since the petitioner
was absconding the case against him was split up and refiled
as S.C.No.672/2018. 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, he
has filed this Crl.M.C. invoking Section 482 of the Cr.P.C.
5. I have heard Sri.C.Anilkumar Kallesseril, the learned
counsel for the petitioner and Sri.M.P.Prasanth, the learned
Public Prosecutor for the respondent.
6. To prove the prosecution case, PWs.1 to 8 were
examined. PW1 is the victim. PW2 is her elder sister. Both of
them did not support the prosecution case. Since no
incriminating evidence was adduced, even the questioning of
the accused under Section 313 (1)(b) of the Cr.P.C. was
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dispensed with. PW1 stated that, while she was standing along
with her elder sister, CW2 at Thoppumpady bus stop, the
police intercepted them and recorded her statement and
subsequently, they went to Judicial First Class Magistrate and
gave statement. But, she categorically stated that, she was
not sexually abused by any person especially the accused. She
also stated that she did not live in the house of the accused
No.1 and nobody had raped her at the house of the accused
No.1. She further deposed that, she was married to the
accused No.5 and out of the wedlock three children were born.
She has no grievance at all against the accused. PW2 also
admitted that, the accused No.5 is the husband of PW1. She
deposed that they were not taken into custody by the police
along with the accused No.5 from the Hotel at Thoppumpady
and they were not misused by the accused. PW3, who is the
mother of the PWs.1 and 2, also did not support the
prosecution case.
7. The court below, on analysis of the evidence, held
that, the evidence of the victim as well as her sister and
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mother was not at all sufficient to prove the prosecution case
and convicted the accused. A reading of Annexure-A1
judgment would show that the substratum of the prosecution
case is dislodged.
8. The Apex Court in Sahadevan & another v. State
of Tamil Nadu [2012 (6) SCC 403] has held that, if the entire
prosecution has been found to be unreliable and the
prosecution as a whole has not been able to prove its case
beyond reasonable doubt, then the benefit should accrue to all
the accused persons and not merely to the accused who faced
trial. The 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 under Section 482 of
the Cr.P.C. could be invoked.
9. It is a case where 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.
Hence, no purpose will be served in proceeding with the trial of
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the accused.
10. For all these reasons, I am of the view that this is a
fit case where the jurisdiction vested with this Court under
Section 482 of the Cr.P.C could be invoked. Accordingly, the
further proceedings as against the petitioner in
S.C.No.672/2018 on the file of the Additional Sessions Court,
Ernakulam stand hereby quashed.
This Crl.M.C. is allowed as above.
Sd/-
DR.KAUSER EDAPPAGATH,
JUDGE
skj
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APPENDIX OF CRL.MC 532/2019
PETITIONER'S ANNEXURES
ANNEXURE-A1 CERTIFIED COPY OF THE JUDGMENT DATED
2.8.2018 IN S.C NO.602/13 ON THE FILE
OF THE ADDITIONAL DISTRICT & SESSIONS
COURT, ERNAKULAM
ANNEXURE-A2 PHOTOSTAT COPY OF THE FINAL REPORT IN
S.C NO.672/18 ON THE FILE OF THE
ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM
ANNEXURE-A3 CERTIFIED COPY OF THE DEPOSITION GIVEN
BY PW1 ON 2.7.2018 IN S.C NO.602/13 ON
THE FILE OF THE ADDITIONAL DISTRICT &
SESSIONS COURT, ERNAKULAM
