Josemon vs State Of Kerala
2022 Latest Caselaw 2951 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR. JUSTICE K.HARIPAL
     WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                       CRL.MC NO. 5676 OF 2021
   [AGAINST CC NO.234/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
                            SASTHAMCOTTA]
PETITIONER/8TH ACCUSED:

            JOSEMON
            AGED 41 YEARS
            S/O KOCHUKOSHY, PULIKUNNEL, MANAKKA MURI, SASTHAMCOTTA
            VILLAGE, KOLLAM DISTRICT-690 521
            BY ADVS.
            K.SIJU
            S.ABHILASH
            ANJANA KANNATH
            T.S.SREEKUTTY

RESPONDENTS/STATE & DE FACTO COMPLAINANT:

     1      STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM-682 031
     2      STATION HOUSE OFFICER
            SASTHAMCOTTA POLICE STATION, KOLLAM DISTRICT, PIN-690 521
OTHER PRESENT:

            SR.PP-SREEJA V.



     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
16.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.5676 of 2021

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                               O R D E R

The 8th accused in Crime No.161/2003 on the

file of Sasthamcotta Police Station has approached this Court for

quashing the proceedings on the ground that the continuation of

the prosecution proceedings against the petitioner will not survive

by virtue of acquittal of all other accused, since the substratum of

the case has been lost.

2. Crime No.161/2003 of Sasthamcotta Police Station

was registered alleging offences punishable under Sections

143,147 read with 149 IPC and Section 3(1) of the Prevention of

Damage to Public Property Act. The allegation against the accused

persons, ten in number, including the petitioner is that on

18.3.2003 at about 10 a.m., the accused persons in connection with

the harthal observed by the LDF formed themselves into an

unlawful assembly and in prosecution of their common object,

entered the premises of the taluk office and destroyed three Crl.M.C.No.5676 of 2021

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vehicles belonging to the Government, KLU 8500, KLB 2566 and

KL-2/J 1299, parked in the premises of the office and thus caused

the Government a loss of Rs.12,000/-. On completion of

investigation, charge sheet was laid before the Judicial First Class

Magistrate Court, Sasthamcotta where the case is taken on file as

C.C.No.322/2003 and all the accused were summoned. All

accused except the petitioner/the 8th accused faced trial and by

Annexure 3 judgment dated 7th June 2007, accused Nos.1 to 7,9

and 10 were acquitted under Section 248(1) Cr.P.C. The case

against the petitioner was refiled as C.C.No.708/2007. The

petitioner was absconding at that time. According to the learned

counsel for the petitioner, he was on bail and was not shown to the

witnesses. The case against the petitioner stands refiled as

C.C.No.234/2021.

3. I have gone through Annexure 3 judgment of the

Judicial First Class Magistrate, Sasthamcotta by which accused

Nos.1 to 7 ,9 and 10 were acquitted. The charge sheet indicates Crl.M.C.No.5676 of 2021

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that there are seven witnesses out of which CWs.6 and 7 are police

officials. For the purpose of trial in Annexure 3, all witnesses were

summoned. CWs.1 to 4 are the occurrence witnesses out of CWs.1

to 3 were employees of the taluk office, Kunnathoor. All of them

deposed against the prosecution and were declared hostile to the

prosecution. CW4 the occurrence witness could not be examined

for the case despite repeated processes issued against him. From

Annexure 3 judgment, it appears that CW5 was the attestor to the

scene mahazar. In other words, out of the four occurrence

witnesses, three of them turned hostile to the prosecution and thus,

the court found that the prosecution failed to establish the case

against the other accused persons.

4. In this backdrop, there is substance in the contention of

the learned counsel for the petitioner that by Annexure 3, the

substratum of the case has been lost. Even if the occurrence

witnesses depose in favour of the prosecution in continuation of

the trial already held, that would not improve the prosecution case Crl.M.C.No.5676 of 2021

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since the petitioner was not shown to the witnesses at the time of

investigation.

5. Considering the facts and circumstances of the case,

continuation of the proceedings against the petitioner would be an

idle exercise. Entire proceedings against the petitioner in

C.C.No.234/2021 on the file of the Judicial First Class Magistrate

Court, Sasthamcotta are quashed and the petitioner shall stand

exonerated.

Crl.M.C. is allowed as above.

sd/-

K.HARIPAL, Judge

MBS/ Crl.M.C.No.5676 of 2021

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APPENDIX OF CRL.MC 5676/2021

PETITIONER ANNEXURES Annexure 1 THE CERTIFIED COPY OF FIR WITH FIS IN CRIME NO 161/2003 OF SASTHAMCOTTA POLICE STATION DATED 18.3.2003 Annexure 2 THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO 161/2003 OF SASTHAMCOTTA POLICE STATION DATED 2.6.2003 Annexure 3 THE CERTIFIED COPY OF JUDGMENT IN CC 322/2003 OF JFMC, SASTHAMCOTTA DATED 7.6.2007 Annexure 4 THE COPY OF DEPOSITION OF PW1 DATED 15.3.2007 Annexure A5 THE COPY OF DEPOSITION OF PW2 DATED 15.3.2007 Annexure 6 THE COPY OF DEPOSITION OF PW3 DATED 12.4.2007 Annexure 7 THE COPY OF DEPOSITION OF PW4 DATED 30.5.2005