Allowed

Faisal Palothu @ Vanti Mash v. the Sub Inspector of Police

Kerala HC13 Feb 2024Crl.MC/325/2024

Case brief

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What is this about?

Sole remaining accused in a 2005 unlawful assembly assault case sought quashing after all co-accused were acquitted in three trials where witnesses turned hostile or were disbelieved. The High Court extended the benefit of those acquittals to the petitioner and quashed proceedings.

What did the court decide?

All proceedings in C.C. No.926/2019 before JFCM Court-I, Kasaragod against the petitioner quashed.

Faisal Palothu @ Vanti Mash Vs the Sub Inspector of Police — Quashing and FIR | Kerala HC (2024)

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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 BECHU KURIAN THOMAS

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TUESDAY, THE 13TH DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945

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CRL.MC NO. 325 OF 2024

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CRIME NO.709/2005 OF KASARAGOD POLICE STATION, KASARGOD
IN CC 926/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KASARAGOD

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PETITIONER/2ND ACCUSED:

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FAISAL PALOTHU @ VANTI MASH
AGED 42 YEARS
S/O. ABDUL RASHEED,
PALOTHU HOUSE, CHEMNAD VILLAGE,
KASARAGOD, PIN – 671317

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BY ADV ANN SUSAN GEORGE

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RESPONDENTS/COMPLAINANT AND STATE:

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1 THE SUB INSPECTOR OF POLICE KASARAGOD POLICE STATION, KASARAGOD, PIN – 671121

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2THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN – 682031

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BY ADV.
NOUSHAD K.A.
PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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13.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C. No.325 of 2024

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BECHU KURIAN THOMAS, J.

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Crl.M.C. No.325 of 2024

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Dated this the 13^th day of February, 2024

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ORDER

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Petitioner was the 11^th accused in C.C. No.702/2007 on the files of the Judicial First Class Magistrate Court-I, Kasaragod, arising out of Crime No.709/2005 of Kasaragod Police Station. The offences alleged against the accused were under Sections 143, 147, 148, 323 and 324 r/w Section 149 of the Indian Penal Code, 1860.

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According to the prosecution, on 28.09.2005, while the complainant purchasing certain articles from a shop, the accused had formed themselves into an unlawful assembly and assaulted him with a soda bottle and beat him on his head and thereby committed the offences alleged.

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Originally, there were 16 accused. Since the petitioner and a few other accused had absconded, the trial proceeded as against accused Nos.1, 4, 6, 7, 10, 12 and 14. In the trial that took place against the above mentioned accused, by judgment dated 08.11.2011, the learned Magistrate found that there was no convincing evidence to accept the prosecution case and acquitted those accused. Subsequently, on the

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Crl.M.C. No.325 of 2024

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appearance of accused 2, 3, 5, 11, 15 and 16 they were tried in C.C. No.2567/2011 and in C.C. No.860/2014. By judgment dated 16.05.2015 and 31.08.2019, those accused were also acquitted. What remained was only accused 9 and 13. As far as original accused 8 is concerned, he was a minor at the time of the incident and hence, the case against him was referred to the Juvenile Justice Board. In the meantime, accused No.9 expired and thus petitioner alone remains as an accused in the crime and the case against him is now pending as C.C. No.926/2019 on the files of the Judicial First Class Magistrate Court-I, Kasaragod.

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Petitioner seeks the benefit of acquittal of all the other accused and seeks to quash the proceedings against him.

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Having heard Smt. Ann Susan George, the learned counsel for the petitioner as well as Sri Noushad K A, the learned Public Prosecutor, I am of the view that the circumstances arising in the case compels this Court to extend the benefit of acquittal to the petitioner as well.

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In Annexure-II judgment in C.C. No.702/2011, the learned Magistrate had come to the conclusion that the defacto complainant himself could not be procured while PW2, the inured witness deposed that he has not seen the incident. The court also came to the conclusion that PW3, another witness cited by the prosecution, was not believable. In Annexure-III judgment in C.C. No.2567/2011 though the defacto complainant was examined, he deposed that he did not know the accused.

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Crl.M.C. No.325 of 2024

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While PWs 2 and 3 deposed that they had not seen the incident. In C.C. No.860/2015, also the witnesses reiterated their stance as deposed in C.C. No. 2567/2011. Thus, by the three judgments, the court has categorically come to the conclusion that the prosecution case has not been proved and the witnesses were either not believable or that they had not seen the incident. The evidence adduced in the three different cases has actually destroyed the very substratum of the prosecution case. There is no reason not to extend the benefit of those acquittals to the petitioner.

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Accordingly, all proceedings in C.C. No.926/2019 pending before the Judicial First Class Magistrate Court-I, Kasaragod, against the petitioner are quashed.

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Criminal miscellaneous case is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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Jka/13.02.24.

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Crl.M.C. No.325 of 2024

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APPENDIX OF CRL.MC 325/2024

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PETITIONER’S ANNEXURES

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Annexure-ITHE CERTIFIED COPY OF THE FINAL REPORT IN
C. C. NO. 702 / 2007 ON THE FILES OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT - I,
KASARAGOD, IN CRIME NO. 709 / 2005 OF
KASARAGOD POLICE STATION.

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Annexure-IITHE CERTIFIED COPY OF THE JUDGMENT DATED
08.11.2011. IN C. C. NO. 702 / 2007 ON THE
FILES OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT - I, KASARAGOD.

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Annexure-IIITHE CERTIFIED COPY OF THE JUDGMENT DATED
16.05.2015. IN C. C. NO. 2567 / 2011 ON
THE FILES OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT - I, KASARAGOD.

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Annexure-IVTHE CERTIFIED COPY OF THE JUDGMENT DATED
31.08.2019. IN C. C. NO. 860 / 2015 ON THE
FILES OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT - I, KASARAGOD.

Faisal Palothu @ Vanti Mash v. the Sub Inspector of Police

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Faisal Palothu @ Vanti Mash v. the Sub Inspector of Police

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