High Court Kerala quashed proceedings against accused No.6. Held that acquisition by other accused affected substratum of prosecution; treating petitioner's trial as wasteful exercise despite unavailability earlier.
Criminal miscellaneous case allowed; proceedings against petitioner in S.C.No.966 of 2003 or its split cases quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933
Crl.MC.No. 1865 of 2011()
SC.966/2003 OF ADDITIONAL SESSIONS COURT FAST TRACK (ADHOC), MAVELIKKARA
PETITIONER / ACCUSED NO.6 :
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SUBASH, AGED 34 YEARS, S/O.KESAVA PILLAI, KODUVARA SUBASH BHAVAN, THAMARAKULAM EAST, MAVELIKKARA TALUK.
BY ADVS. SRI.R.PADMAKUMAR SRI.P.ARAVIND
RESPONDENT :
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STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.
BY PUBLIC PROSECUTOR SRI. V. MANU
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
...2/-
Crl.MC.No. 1865 of 2011()
APPENDIX
PETITIONER'S ANNEXURE'S
RESPONDENT'S ANNEXURE'S - NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
THOMAS P JOSEPH, J.
Crl.M.C.No.1865 of 2011
Dated this 29th day of June, 2011
ORDER
Petitioner is the sixth accused in Crime No.151 of 2001 of Nooranadu Police Station and S.C.No.966 of 2003 of the Court of learned Additional Sessions Court, Fast Track (Adhoc), Mavelikkara for offences punishable under Secs.143, 147, 148, 149, 323, 324, 447 and 307 r/w Sec.149 of the Indian Penal Code. Case is that petitioner and others on account of political enemity towards PW1 formed unlawful assembly on 13.05.2001 at about 7p.m, committed rioting armed with deadly weapons, attacked PWs.1 and 2 to 7 and thereby committed the said offences. All the accused other than petitioner and accused 8 were acquitted as per Annexure-4, judgment of learned Additional Sessions Judge. Petitioner seeks benefit of that acquittal. Learned counsel has contended that in view of Annexure-4, judgment proceeding with prosecution of petitioner is of no use since that judgment affected the substratum of prosecution case. Learned Public Prosecutor has submitted that petitioner was not available for trial and hence benefit of Annexure-4, judgment need not be extended to him.
Crl.M.C.No.1865 of 2011
-: 2 :-
Crl.M.C.No.1865 of 2011
-: 3 :-
Learned Judge observed that recovery of MOs.1 to 3 is doubtful. In paragraph 42 it is observed that though it has come out in evidence that there are several houses near the place of incident, no independent witness was cited by the prosecution to prove the incident. PWs.1 and 3 to 7 examined are not definite about the occurrence. Learned Sessions Judge also observed that their evidence will eloquently show that a group clash took place at the relevant day, time and place. In paragraph 43, it is observed that 5 persons were arrayed as accused along with 10 other identifiable persons and there was no proper identification made to identify the identifiable persons (petitioner allegedly comes among them). In paragraph 45 it is stated that in the absence of reliable evidence to prove the factum of possession of property where the occurrence took place, a charge under Sec.447 of the IPC cannot stand. In paragraph 46 it is observed that prosecution failed to bring out the source of light to prove the occurrence and there is nothing to show that the accused formed into an unlawful assembly as alleged by the prosecution. Further observation is that fight took place between two political groups in which both sides sustained injuries. Though, before commencement of trial parties filed a compromise petition to compound the offences, witnesses turned round and deposed in
Crl.M.C.No.1865 of 2011
-: 4 :-
favour of prosecution and all these circumstances according to learned Sessions Judge would indicate that prosecution witnesses could not be believed as such. In paragraph 47 it is held that prosecution has not succeeded in proving the offences beyond reasonable doubt and accused are entitled to get the benefit of acquittal.
Resultantly this criminal miscellaneous case is allowed. Proceeding against petitioner (accused No.6 in Crime No.151 of 2001 of Nooranadu Police Station) in S.C.No.966 of 2003 of the Court of learned Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara or its split up case, if any are quashed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-
3 issues framed by the court
Whether the petitioner accused who was not tried earlier is entitled to the benefit of acquittal granted to other accused in the same prosecution case.
Whether the proceeding against the petitioner should be quashed given that the acquittal of other accused affects the substratum of the prosecution case.
Whether continued trial of the petitioner would be a wasteful exercise in view of the failure of prosecution witnesses.
SUBASH
STATE OF KERALA
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
