Kerala High Court
Noushad @ Mallikettu vs The State Of Kerala on 29 April, 2025
CRL.M.C. No.2895 of 2025 1 2025:KER:33399
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 29TH DAY OF APRIL 2025 / 9TH VAISAKHA, 1947
CRL.MC NO. 2895 OF 2025
CRIME NO.281/2002 OF KONNI POLICE STATION, PATHANAMTHITTA
AGAINST CP NO.81 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, PATHANAMTHITTA
PETITIONER(S)/ACCUSED NO.1 :
NOUSHAD @ MALLIKETTU
AGED 51 YEARS
S/O ABDUL REHMAN, EETTIMOOTTIL PUTHANVEEDU,
KUMANNOOR, IRAVON VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689691
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
T.S.SARATH
R.RAJESH (VARKALA)
SAMEER M NAIR
SAILAKSHMI MENON
AASHI K. SHAJAN
MINZA FATHIMA SALIM M.
BINITHA MARIA THOMAS
KEZIL THOTTUKADAVIL CHERIAN
RESPONDENT(S)/STATE & I.O. :
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER
KONNI POLICE STATION,
PATHANAMTHITTA DISTRICT, PIN - 689691
ADV M.C. ASHI, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
29.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C. No.2895 of 2025 2 2025:KER:33399
EASWARAN S., J.
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Crl.M.C. No.2895 of 2025
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Dated this the 29th day of April, 2025
ORDER
This Crl.M.C. is filed seeking to quash Annuexure A1 final
report in Crime No.281 of 2002 of the Konni Police Station which
is now pending as C.P. No.81 of 2007 on the files of the Judicial
First Class Magistrate Court-II, Pathanamthitta.
2. The brief facts necessary for the disposal of this Crl.M.C.
are as follows:
The petitioner herein is accused No.1 in Crime No.281 of
2002 of the Konni Police Station registered for the offences
punishable under Sections 302 and 201 read with Section 34 of the
Indian Penal Code. The case of the prosecution is that the accused
No.1, along with other accused and CW1, committed the murder of
one Podimon due to the enmity of the petitioner against the
deceased. According to the allegations, accused Nos.1 and 2 along
with CW1 dragged the deceased from his shed towards the forest
where he was killed by strangulation by tightening a towel around
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his neck and thereafter dumped the dead body into a rock pit after
amputing his legs below the knee and filled the pit with earth and
stones.
3. The petitioner did not participate in the trial. Accused
Nos.2 to 5 faced the trial in S.C. No.489 of 2007 before the
Additional Sessions Court (Adhoc), Fast Track Court-III,
Pathanamthitta. At the conclusion of the trial, the Additional
Sessions Court found that the prosecution was not successful in
proving either accused No.1 or accused No.2 and CW1 had
abducted the deceased from his house and murdered him.
Therefore, after analysing the evidence, the Additional Sessions
Court found that the prosecution had not succeeded in proving
either accused No.1 or accused No.2 or CW1 had abducted the
deceased and murdered him in their presence. There was a further
finding that there is no evidence that the accused Nos.1 to 5
destroyed the evidence in the case by burning the bath towel used
to strangulate the deceased and also by throwing away the chopper
used for amputing the legs of the corpse of the deceased. In
conclusion, the Additional Sessions Court acquitted accused Nos.2
to 5 and set them at liberty forthwith. However, since the accused
No.1/the petitioner herein did not participate in the trial, the case
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against him was kept pending for trial. In view of the finding
recorded by the Additional Sessions Court wherein accused Nos.2
to 5 were acquitted, the 1st accused has approached this Court with
the present Crl.M.C. seeking to quash the Final Report against him.
4. Heard Sri.Manu Ramachandran, the learned counsel
appearing for the petitioner and Sri. M.C. Ashi, the learned Public
Prosecutor appearing for the State.
5. Sri. Manu Ramanchandran, the learned counsel appearing
for the petitioner, pointed out by referring to the specific finding in
paragraph 34 of Annexure A2 judgment and asserted that
inasmuch as, the trial court having entered a final finding to the
effect that the prosecution had failed to prove the case against the
petitioner/first accused, no useful purpose would be served in
continuing the trial against him. On the contrary, if the trial against
the petitioner is continued, the same will be abuse of process of
law in as much as the State has not challenged the findings in
Annexure A2 judgment to the effect that the prosecution has failed
to prove the case against the accused No.1 who is the petitioner
herein.
6. When the matter came up for consideration before this
Court on 11.4.2025, this Court directed the Public Prosecutor to
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ascertain as to whether the State has preferred any appeal against
Anneuxre A2 judgment. Today, when the matter is taken up for
consideration, the learned Public Prosecutor, on instructions,
submitted that the State has not preferred any appeal against
Annexure A2 judgment.
7. I have considered the rival submissions raised across the
Bar.
8. On a perusal of Annexure A2 judgment, it is seen that the
trial court has entered into a categorical finding after analysing the
prosecution case and the evidence produced before it. It is
pertinent to mention that the petitioner, who is accused No.1, had
confessed while in custody regarding the commission of offence.
However, the trial court has not accepted the said confession which
was made while the petitioner was in custody. Even the confession
of the co-accused was not taken for the purpose of recording the
conviction of the accused in the absence of corroboration
especially when the accused who made the confession is not tried
along with the other accused. That apart, on a close scrutiny of the
findings rendered by the trial court in Annexure A2 judgment, it is
evident that the acquittal of accused Nos.2 to 5 is not solely based
on the above facts. Independent evidence produced by the
CRL.M.C. No.2895 of 2025 6 2025:KER:33399
prosecution was closely analysed by the trial court and it came to
the conclusion that there is contradiction in the evidence of PW1
and ultimately the following findings were entered by the trial
court in paragraph Nos.34 and 35 of Annexure A2 judgment that
are extracted herein as under:
" 34. In this context, the recovery of the 10th rib and
the right calcanium made under the Ext. P7 Inquest report
on the basis of the Ext.P7(a) confession statement requires
consideration. As evidenced by the Ext. P7 Inquest report,
the 10th rib and the right calcanium were taken into
custody by the Cl of Police, Konni in the presence of PW4
and the 10th rib was sent for the chemical analysis and
Ext. P3 is the certificate received thereof. The Ext.P3 report
would show that no poison was detected in the sample. In
the report submitted along with the final report filed in this
case, it is clearly stated that in the D.N.A. examination of
the right calcanium recovered under the Ext. P7 Inquest
report done at the Rajiv Gandhi Centre for Bio Technology
it is found that the same is of women origin and therefore
it can be safely concluded that the calcanium recovered
under the Ext. P7 Inquest report is not that of Podimon. So
as matters stands now, there is absolutely no evidence on
record to show that the accused had destroyed the evidence
in the case.
35. In a nutshell, the prosecution has not succeeded
in proving that either Al, A2 and PWI had abducted
Podimon from his house at Nellidampara or Al and A2 had
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murdered him in the presence of PW1 at Meenmuttippara
or A1 to A5 destroyed the evidence in the case by burning
the bath towel, and throwing away the chopper used for
amputing the legs of the corpse of Podimon and the skull
and bones, collected by them from the rock pit at
Meenmuttippara where they buried the corpse beyond
reasonable doubt. Points answered accordingly."
9. It is pertinent to mention that Anneuxre A2 judgment was
rendered on 13.1.2010. Fifteen (15) years have lapsed since
Annexure A2 judgment was rendered by the trial court and the
State has not chosen to challenge the findings of the trial court,
acquitting the other accused.
10. In the above circumstances, the question before this
Court is as to whether the trial against the 1st accused should
continue or not. Although the acquittal of co-accused will not enure
to the benefit of the accused who was absconding at the time of
trial, the said rule has its own exception. In Durga Burman Roy Vs
State of Sikkim [(2014) 13 SCC 35], the Supreme Court held that
normally the rule is that the benefit of acquittal of co- accused will
not entail the accused who was absconding at the time of trial to
claim acquittal, if there is no independent evidence against the
accused who was absconding, the accused is entitled for acquittal.
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11. In Sahadevan vs State of Tamil Nadu [(2012) 6 SCC 403],
the Supreme Court held that if the entire prosecution case is
unreliable and that prosecution as such was not able to prove the
case against the accused, then the accused is entitled to the benefit
of the acquittal of the co- accused.
12. A Full Bench of this Court in Moosa Vs Sub Inspector of
Police [(2006) 1 KLT 552] held that if the substratum of the case is
destroyed by the finding of the court while acquitting the co-
accused then it will be abuse of process of law, to have the trial
continued against the other accused. Finally, it was held by the Full
Bench that it is up to the Judge who hears the application under
Section 482 to decide whether the substratum of the prosecution
case has been lost or not.
13. That being so, it becomes imperative for this Court to
examine whether the conditions stipulated in the decision of the
Full Bench of this court in Moosa (Supra) are available on facts or
not. On a close reading of Annexure A2 Judgment, this Court finds
that the trial court has specifically concluded that the prosecution
evidence is not sufficient to hold that the Accused Nos.1 and 2 had
murdered the deceased Podimon. Hence, it is explicitly clear that
the substratum of the case has been lost.
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14. Therefore, this is a fit case wherein this Court should
invoke the inherent powers under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 and quash all further proceedings
in C.P. No.81 of 2007 on the files of the Judicial First Class
Magistrate Court-II, Pathanamthitta in Crime No.281 of 2002 of
the Konni Police Station.
Accordingly, this Crl.M.C. is allowed. All further proceedings
in C.P. No.81 of 2007 on the files of the Judicial First Class
Magistrate Court-II, Pathanamthitta, in Crime No.281 of 2002 of
the Konni Police Station against the petitioner are quashed.
Sd/-
EASWARAN S.
JUDGE
NS
CRL.M.C. No.2895 of 2025 10 2025:KER:33399
PETITIONER ANNEXURES
Annexure A1 THE CERTIFIED COPY OF FINAL REPORT IN CRIME
NO.281/2002 OF KONNI POLICE STATION,
PATHANAMTHITTA DISTRICT WHICH IS NOW PENDING
AS C.P NO.81/2007 ON THE FILES OF JFMC-II,
PATHANAMTHITTA
Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED
13.01.2010 IN S C NO. 489/2007 ON THE FILES
OF ADDL. SESSIONS JUDGE, PATHANAMTHITTA
Annexure A3 THE TRUE COPY OF THE ORDER DATED 06.01.2025
IN CRL. MP NO. 6/2025 OF JFMC-II,
PATHANAMTHITTA
Annexure A4 THE TRUE COPY OF THE ORDER DATED 25.02.2025
IN B.A NO.2563/2025 OF THIS HON'BLE COURT
