Shahid vs State Of Kerala
2023 Latest Caselaw 5159 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     TUESDAY, THE 18TH DAY OF APRIL 2023 / 28TH CHAITHRA, 1945
                     CRL.MC NO. 3158 OF 2023

  CRIME NO.54/2016 OF PAYYOLI POLICE STATION, KOZHIKODE DISTRICT
   PENDING BEFORE THE COURT OF SPECIAL JUDGE, FAST TRACK SPECIAL
            COURT, KOYILANDY KOZHIKODE AS SC NO.703/2020
     S.C.NO.205 OF 2023 ON THE FILE OF FAST TRACK SPECIAL COURT
                         (POCSO), KOYILANDY
PETITIONER/ACCUSED NO.4:

          SHAHID,
          AGED 43 YEARS,
          S/O AMMAD NADUKKANDI VEEDU, PAYYOLI ANGADI POST
          THURAYOOR AMSOM DESOM, KOYILANDY TALUK,PIN - 673 523.
          BY ADV K.REEHA KHADER


RESPONDENT/STATE/DEFACTO COMPLAINANT:

    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.
    2     XXXXXXXXXX
          XXXXXXXXXX XXXXXXXXXX
          BY SMT. REKHA.S, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3158 OF 2023
                                    2

                                ORDER

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

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

petitioner is the 4th accused. A private complaint was filed by the father

of the 2nd respondent against the petitioner and four other accused

before the Sessions Court, Kozhikode as Crl.M.P.No.864/2016. The

Sessions Court took cognizance of the case under Sections 143, 147, 341,

323, 363 and 506(1) r/w 149 of IPC and Section 7 r/w 8 of the POCSO

Act.

2. The accused Nos.1, 2 and 5 alone faced trial and as per

Annexures-A3 and A4 judgments, they were acquitted. Since the

petitioner herein was absconding, the case against him was split up and

now pending as S.C.No.205 of 2023 on the file of Fast Track Special

Court (POCSO), Koyilandy. According to the petitioner, in view of the

acquittal of the accused Nos.1, 2 and 5, the substratum of the

prosecution case is dislodged. It is in these circumstance, he has filed

this Crl.M.C invoking Section 482 of Cr.P.C.

3. I have heard Smt.Reeha Khader, the learned counsel for the

petitioner and Smt.Rekha S, the learned Senior Public Prosecutor.

4. Accused Nos.1 and 2 were tried together and accused No.5 CRL.MC NO. 3158 OF 2023

was tried separately. The victim and two eyewitnesses were examined

but all of them did not support the prosecution case. The victim

specifically denied the case of kidnapping, wrongful restraining, and

voluntarily causing hurt and committing sexual assault. The eye

witnesses deposed that they did not see anything regarding the alleged

incident. A reading of Annexures - A3 and A4 judgments would show

that the substratum of the prosecution case is dislodged.

5. The Apex Court in Sahadeven & another v. State of Tamil

Nadu [2012 (6) SCC 403] has said that if the entire prosecution case has

been found to be unreliable, 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 not merely to the accused who face 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.

This is a case where the entire prosecution case was found to be

unreliable and the prosecution as a whole has not been able to prove its

case beyond reasonable doubt. Hence, all further proceedings against

the petitioner in S.C.No.205 of 2023 on the file of Fast Track Special CRL.MC NO. 3158 OF 2023

Court (POCSO), Koyilandy is hereby quashed. Crl.M.C is allowed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE DK CRL.MC NO. 3158 OF 2023

APPENDIX OF CRL.MC 3158/2023

PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE PRIVATE COMPLAINT IN CMP NO.864/16 IN CRIME NO.54/2016 OF PAYYOLI POLICE STATION, KOZHIKODE DISTRICT PENDING BEFORE THE HON'BLE COURT OF THE SPECIAL JUDGE, FAST TRACK SPECIAL COURT, KOYILANDY, KOZHIKODE DISTRICT Annexure A2 A TRUE COPY OF THE EVIDENCE BY GIVEN BY CW 1 FAYIZ M.K Annexure A3 A TRUE COPY OF JUDGMENT IN SC 266/2020 DATED 25TH JANUARY 2023 Annexure A4 A TRUE COPY OF THE ORDER IN SC NO.

703/2022 OF SPECIAL JUDGE ,FAST TRACK COURT KOYILANDY DATED 08.02.2022 ANNEXURE A5 AFFIDAVIT SWORN BY DEFACTO COMPLAINANT