Kerala High Court
Shamsudeen vs State Of Kerala on 23 May, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.MC NO. 3687 OF 2024
CRIME NO.278/2008 OF YEROOR POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1801 OF 2019 OF
ASSISTANT SESSIONS COURT/SUB COURT AT PUNALUR, KOLLAM.
PETITIONER/ACCUSED NO.8:
SHAMSUDEEN,
AGED 56 YEARS, S/O. P.S. KHAN,
PARAVILA HOUSE, VILAKUPARA MURI,
AYIRANELUR P.O., KOLLAM, PIN - 691307
BY ADVS.
K.SUDHINKUMAR
S.NITHIN (ANCHAL)
RESPONDENTS/STATE AND COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 THE SUB INSPECTOR OF POLICE,
YEROOR POLICE STATION,
KOLLAM, PIN - 691312
BY ADV.
SMT.SREEJA V. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 23.05.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.M.C.No.3687 of 2024
:2:
BECHU KURIAN THOMAS, J.
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Crl.M.C. No.3687 of 2024
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Dated this the 23rd day of May, 2024
ORDER
Petitioner was accused No.8 in S.C.No.1217/2009 on the files of
the Assistant Sessions Court, Punalur. The case arose out of Crime
No.278/2008 of Yeroor Police Station. Subsequently, while the trial
against the accused proceeded, petitioner absconded and the case
against him was split up. By judgment dated 13.12.2019, the
Sessions Court acquitted accused 1, 3, 4, 5, 7 and 9 while the case
against accused 6 and 8 was split up. The 2 nd accused had died
during the trial. Petitioner now seeks benefit of acquittal of co-
accused.
2. According to the prosecution, on 16.06.2008, accused 1 and
2 were found in possession of 5 litres of arrack near a quarry and the
accused formed themselves into an unlawful assembly to cause hurt
to CW3 and committed rioting armed with stones and also deterred
the officials from discharging their duties and thereby committed the
offences under Sections 143, 147, 148 and Section 353 read with
Section 149 of the Indian Penal Code (IPC), apart from Section 8(2)
read with Section 8(1) of the Kerala Abkari Act, 1077.
3. I have heard Sri.K.Sudhinkumar - learned counsel for the
petitioner as well as Smt.Sreeja V. - learned Public Prosecutor.
4. In the judgment of acquittal of the co-accused, it is noticed
from paragraph 13 as follows:
"The only evidence available to prove the alleged
occurrence is the oral testimony of PW2 and 4, who are
the accompanying officers. Even though they testified
about the seizure of the contraband from the
immediate possession of the accused, there are no
other materials to substantiate the same. According to
the prosecution, A2 abandoned the material objects
and ran away from the spot, but she is no more. No
other materials are available to bring home the
complicity and identity of the other accused with the
occurrence alleged in the case-as PW1 turned hostile to
the prosecution and the prosecution has no case that
any contraband was seized from the immediate or
actual possession of the other accused. None of the
witnesses deposed that CW7 took sample at the spot.
Who took the sample from the contraband is not
evident from the evidence of the witnesses. There is no
evidence to show that the sample was taken properly.
There is total vacuum in the evidence adduced by the
prosecution regarding the affixture of sample seal on
the articles seized from the accused by any of the
officials is fatal. There is no evidence to show that the
sample produced before the court reached the
chemical examination lab in the same condition."
5. On a perusal of the above extracted portion from the
judgment of acquittal of co-accused, it is evident that the sample of
the alleged contraband was held to have not been taken properly and
even the affixture of seal on the sample was not believed by the
Court, both of which are fatal to the prosecution case even against
the petitioner. The aforesaid findings, destroy the very substratum of
the prosecution case even as against the petitioner. Therefore, no
purpose would be achieved by continuing the prosecution against
him.
6. Accordingly, the proceeding against the petitioner as accused
in S.C.No.1801/2019 on the files of the Assistant Sessions Court,
Punalur, arising out of Crime No.278/2008 of Yeroor Police Station is
hereby quashed.
This Crl.M.C. is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
anm
PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE FINAL REPORT IN CRIME
NO. 278/2008 FILED BY THE 2ND RESPONDENT
DATED 05.03.2009
Annexure II TRUE COPY OF THE JUDGMENT DATED
13.12.2019 IN S.C. NO. 1217/2019 OF THE
ASSISTANT SESSIONS JUDGE, PUNALUR IN
KOLLAM DISTRICT
