Allowed

Shereef @ Ummer Shereef v. State of Kerala

Kerala HC22 Oct 2009Crl.MC/3246/2009

Case brief

AI extract

What is this about?

The Kerala High Court quashed pending prosecution proceedings against an accused for rape after accomplices were acquitted due to the complainant turning hostile and a subsequent settlement where the complainant refused further testimony, invoking Section 482 CrPC despite the non-compoundable nature of the offence.

What did the court decide?

The petition was allowed and the complaint (L.P.12/2008) pending before the Sessions Court, Kasaragod was quashed.

Shereef @ Ummer Shereef Vs State of Kerala — Quashing and FIR | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931

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Crl.MC.No. 3246 of 2009()

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------------------------LPC.12/2008 of SESSIONS COURT, KASARAGOD CRIME NO.103/2005 OF KUMBALA P.S

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PETITIONER(S): ACCUSED

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SHAREEF @ UMMER SHEREEF, S/O.MUHAMMED HAJI, KALANGAR HOUSE, ANGADINAGAR PO, KASARAGOD.

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BY ADV. SRI.SOJAN MICHEAL

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RESPONDENT(S): COMPLAINANTS

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STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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YAMUNA

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D/O.CHUKRA, MAYYALAM, DELAMPADY PO, AND VILLAGE, KASARGOD.

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ADV. SRI.NISHIL.P.S. FOR R2

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R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR,J.

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CRL.M.C.NO.3246 OF 2009

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Dated 22^nd October 2009

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O R D E R

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Petitioner was the first accused in C.P.178/2005 on the file of Judicial First Class Magistrate, Kasaragod. Learned Magistrate committed the case to the Sessions court which was taken cognizance as S.C.322/2006. As the petitioner was absconding, only accused 3 and 4 were tried. Second accused being a juvenile, the case was not committed to the Sessions court and instead charge was laid before Chief Judicial Magistrate, Kasaragod. When coaccused were tried, second respondent, the de facto complainant turned hostile to the prosecution and by Annexure-III judgment those accused were acquitted. Prosecution case is that second respondent is a member of Scheduled caste and on 24/4/2005 at 2 p.m accused 1 to 3 who do not belong to Scheduled caste and Scheduled Tribe, forcibly took her in an auto rickshaw KL-14/D-3472 and brought her to an unnumbered newly built house with an intention to

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Crmc 3246/09

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outrage her modesty and commit rape, caught her breast and attempted to undress her and also attempted to commit rape and thereby committed the offences under Sections 511 of 376, 366, 354, 536(1) read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner, which is now pending as L.P.12/2008 before the Sessions court, Kasaragod contending that in view of the order of acquittal as against the coaccused and settlement of the dispute with the second respondent, it is not in the interest of justice to continue the prosecution.

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Second respondent appeared through a counsel and also filed an affidavit stating that the matter has been settled due to intervention of mediators and consequent to the settlement, she has no intention to proceed with the case further and she has no objection for quashing the proceedings. Second respondent along with petitioner jointly filed Crl.M.A.5571/2009 for compounding the offence, by quashing the proceedings. As the offences are not compoundable as provided under Section 320 of Code of

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Crmc 3246/09

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Criminal Procedure, permission to compound the offence cannot be granted.

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Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard.

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Though ordinarily an offence under Section 376 or 511 of Section 376 of Indian Penal Code is not to be quashed, invoking the extra ordinary powers of this court under Section 482 of Code of Criminal Procedure, based on the settlement arrived at later, facts of the case reveal that even when the remaining two accused were tried by the learned Sessions Judge, second respondent turned hostile to the prosecution and deposed that she could not identify the person who committed the alleged acts against her. It is for want of evidence, as against them the said accused were acquitted under Annexure-III judgment. In the light of the said judgment, even if second respondent is to examine the chances of a successful prosecution is very bleak. Added to this, affidavit filed by the second respondent establish that consequent to the settlement she is not intending to give evidence

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Crmc 3246/09

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against the petitioner. In such circumstances, even if petitioner is to be directed to undergo the ordeal of a trial, it would only result in unnecessary waste of valuable time of the court. In such circumstances, it is not in the interest of justice to continue the prosecution.

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Petition is allowed. L.P.12/2008 on the file of Sessions court, Kasaragod is quashed.

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M.SASIDHARAN NAMBIAR, JUDGE.

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uj.

Shereef @ Ummer Shereef v. State of Kerala

Case brief

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Shereef @ Ummer Shereef v. State of Kerala

Case brief

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