Adhil Faseer vs State Of Kerala
2023 Latest Caselaw 2892 Ker

Citation : 2023 Latest Caselaw 2892 Ker
Judgement Date : 13 March, 2023

Kerala High Court

Adhil Faseer vs State Of Kerala on 13 March, 2023

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                      CRL.MC NO. 1014 OF 2023
  AGAINST THE ORDER/JUDGMENTSC 563/2018 OF SUB COURT, OTTAPPALAM
PETITIONER/ACCUSED:

          ADHIL FASEER
          AGED 27 YEARS
          S/O. MUHAMMED MUSTHAFA, PARAPPURATH HOUSE, KOTTAI,
          ALINCHUVADU P.O., TIRUR, MALAPPURAM DISTRICT,
          PIN - 676101
          BY ADVS.
          P.JAYARAM
          P.B.AJOY
          K.R.PAUL
          ARJUN P.P.



RESPONDENT/COMPLAINANT:

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


OTHER PRESENT:

          PP SMT.SREEJA V




     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 1014 OF 2023
                                   2

                  BECHU KURIAN THOMAS, J.
              ========================
                   Crl. M.C. No. 1014 of 2023
              ========================
             Dated this the 13th day of March, 2023

                               ORDER

Petitioner is the 7th accused in S.C.No.563/2018, on the files of

the Assistant Sessions Court, Ottapalam. He was arrayed as accused

along with nine others in Crime No.154/2017 of Pattambi Police

Station alleging offences punishable under Sections 143, 147, 148,

341, 323, 324, 326 and 307 read with Section 149 of Indian Penal

Code 1860.

2. According to the prosecution, on 07.03.2017, the accused

had, in furtherance of their previous enmity and with intent to cause

the death of CW1 to CW12, formed themselves into an unlawful

assembly and committed rioting with deadly weapons, after

restraining the said witnesses and assaulted them with an iron rod

causing grievous hurt to them. The petitioner as 7 th accused is alleged

to have beaten CW2 with his hands.

3. In the meantime, the trial as against accused Nos. 1 to 6

and 8 to 10 proceeded while the case against the petitioner as 7 th

accused was split up and was refiled as S.C. No.308/2021. All the

accused, who were tried before the Assistant Sessions Court were

acquitted under Section 232 of Cr.PC by judgment dated 23.03.2021. CRL.MC NO. 1014 OF 2023

4. Sri. P.Jayaram, the learned Counsel contended that,

petitioner is the 7th accused in the original sessions case and is

entitled to be acquitted by extending the benefit of acquittal of the

remaining accused. According to the learned counsel, since

petitioner stands on the same footing as that of the acquitted

accused, no purpose would be served by continuing the prosecution

against him alone. It was also pointed out that, in the nature of the

allegations and the failure of the prosecution to bring home the guilt

of the accused coupled with the settlement arrived at between the

parties, the prosecution against petitioner alone would be a waste of

judicial time and resources.

5. Smt.Sreeja V. the learned Public Prosecutor opposed the

contentions and submitted that, the acquittal of accused Nos. 1 to 6

and 8 to 10 cannot ipso facto result in the said benefit being

extended to the petitioner. According to her, the remaining accused

were acquitted on the basis of evidence adduced in the case and

when the witnesses are again examined in a trial against the

petitioner, it is not necessary that they should depose in the same

manner and it is open for the prosecution to bring forth and

adduced stronger evidence to bring out the complicity of the

petitioner.

6. I have considered the rival contentions.

7. On a reading of the judgment in SC.No. 563/2018, it is CRL.MC NO. 1014 OF 2023

revealed that the disputes between the petitioner and the defacto

complainant have already been settled. Even though, the case is not

one that could be compounded, still, based upon the settlement

arrived at, the witnesses had all turned hostile to the prosecution. It

is true, as contended by the learned Public Prosecutor that,

prosecution can adduce proper evidence to bring home the complicity

of the petitioner in the Crime. However, in the light of the settlement

arrived at between the parties, the same is almost impossible.

8. Having regard to the nature of evidence adduced by the

prosecution in the trial against the remaining accused, it is evident

that the substratum of the prosecution case has eroded. In such

circumstances, I am satisfied that, the continuance of the prosecution

against the petitioner in S.C.No.308/2021 on the files of the Assistant

Sessions Court Ottapalam, is an abuse of process of Court.

Accordingly, all further proceedings in S.C.NO.563/2018 are

quashed.

The Criminal M.C. is allowed as above.

Sd/-

BECHU KURIAN THOMAS JUDGE saap CRL.MC NO. 1014 OF 2023

APPENDIX OF CRL.MC 1014/2023

PETITIONER ANNEXURES

Annexure A1 CERTIFIED COPY OF JUDGMENT DATED 23/3/2021 IN SC NO.563/2018, ON THE FILES OF THE COURT OF ASSISTANT SESSIONS JUDGE, OTTAPALAM

Annexure A2 COPY OF THE FINAL REPORT IN SC NO.

563/2018, ON THE FILES OF THE COURT OF ASSISTANT SESSIONS JUDGE, OTTAPALAM/CRIME NO. 154/2017 OF PATTAMBI POLICE STATION

Annexure A3 COPY OF THE MEMORANDUM OF EVIDENCE/LIST OF WITNESSES IN CRIME NO. 154/2017 OF PATTAMBI POLICE

Annexure A4 TRUE COPY OF THE TESTIMONY OF PW.1, JIMSHAD, DATED 17/2/2021 IN S.C. NO. 563/2018 ON THE FILES OF THE COURT OF ASSISTANT SESSIONS JUDGE, OTTAPALAM

Annexure A5 TRUE COPY OF THE TESTIMONY OF PW.2, PRAVIN, DATED 17/2/2021 IN S.C. NO.