Allowed

Balakrishnan v. State of Kerala

Kerala HC7 Mar 2024Crl.MC/430/2024

Case brief

AI extract

What is this about?

In an appeal under Section 482 Cr.P.C., the Court quashed proceedings against the petitioner as an accused. It extended the benefit of acquittal granted to others in a Sessions Court judgment due to the unreliability of identification evidence, finding the prosecution case substratum destroyed.

What did the court decide?

Proceedings against the petitioner in S.C.No.682 of 2023 before the Additional Sessions Court (Special Court for Trial of Marad Cases), Kozhikode are hereby quashed.

Balakrishnan Vs State of Kerala — Corruption | 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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THURSDAY, THE 7^TH DAY OF MARCH 2024 / 17TH PHALGUNA, 1945

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CRL.MC NO. 430 OF 2024

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CRIME NO.330/2011 OF Valayam Police Station, Kozhikode SC NO.682 OF 2023 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR

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TRIAL FOR MARAD CASES) KOZHIKODE

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PETITIONER/ ACCUSED NO.11 :

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BALAKRISHNAN AGED 41 YEARS S/O KUMARAN, THAROL HOUSE, MANAVANCHERI, VANIMEL.P.O., PIN - 673506

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BY ADVS. ZUBAIR PULIKKOOL RAJAN I.

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RESPONDENT/ COMPLAINANT :

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031

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SMT. SREEJA. V., PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 430 OF 2024

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BECHU KURIAN THOMAS, J.

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Crl.M.C.No.430 of 2024

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Dated this the 7^th day of March, 2024

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ORDER

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Petitioner was the 11^th accused in Crime No.330 of 2011 of the Valayam Police Station. Initially, the case was numbered as S.C.No.221 of 2018 before the Sessions Court, Kozhikode. Since petitioner had absconded, the case against him was split up by the Sessions Court and has now been renumbered as S.C.No.682 of 2023 before the Additional Sessions Court (Special Court for Trial of Marad Cases), Kozhikode.

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The main contention urged by the petitioner in this proceeding under Section 482 of Cr.P.C. is that out of 36 accused, who were initially charged, 33 of them have been either acquitted or the proceedings against them have been quashed. The petitioner seeks extension of the benefit of acquittal of co-accused.

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The trial in S.C.No.221 of 2018 before the Sessions Court, Kozhikode concluded and by judgment dated 20.06.2023, all accused except the petitioner and accused No.35 were acquitted. The case against the aforementioned two accused was split up and re-filed as S.C.No.682 of 2023 before the Additional Sessions Court (Special Court for Trial of Marad Cases), Kozhikode.

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Sri.Zubair Pulikkool, the learned counsel for the petitioner contended that all other accused have been acquitted and the substratum

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CRL.MC NO. 430 OF 2024

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of the prosecution case has been destroyed and petitioner is entitled for the benefit of the same.

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Smt.Sreeja V., the learned Public Prosecutor, on the other hand opposed the submission and stated that the contentions now urged are all matters to be decided after trial.

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As per the judgment dated 20.06.2023 in S.C.No.221 of 2018, the Sessions Court, Kozhikode acquitted all accused except accused 4 and 35. Accused No.4 is the petitioner and since he had absconded, the case against him was split up. In the above mentioned judgment, the Sessions Court had come to the conclusion that the identification of the accused standing in the dock cannot be relied upon since the incident happened 10 years ago especially because a test identification parade was not conducted during the course of investigation. It was also found that though in respect of few accused there was an omnibus identification, the same was not sufficient to prove the identity of the accused.

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As per the prosecution allegations, the accused had, on 08.12.2011 gathered in front of the house of the defacto complainant with intention to promote communal disharmony between two religious communities and after forming themselves into an unlawful assembly, armed with dangerous weapons, shouted at others and obstructed the official duties of the police and threw stones at them with the intention of causing danger to the life and damage to the properties through an

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CRL.MC NO. 430 OF 2024

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explosion by throwing a steel bomb. While considering the prosecution allegations, the learned Sessions Judge in paragraph 42 and 43 came to the following conclusions :-

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PW1 had not specifically identified any of the accused before court. PW2 correctly identified accused No.3 and PW8 clearly identified accused No.5 before court. PW2 and PW8 had no case that they had previous acquaintance with the accused whom they had specifically identified before court. In this case, no test identification parade was conducted. The identification of A3 by PW2 and A5 by PW8 before court after 10 years of the incident without a test identification parade is not reliable since they had no previous acquaintance with A3 and A5 and they had not opportunity to clearly identify A3 and A5 at the time of incident.

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Regarding the identification of other accused PW1, PW2 and PW8 stated that the persons standing in the accused dock are the persons involved in the violence. Such an omnibus identification is not sufficient to prove the identify of the accused since PW1, PW2 and PW8 had no opportunity to clearly identify the accused who are facing trial form among the about 100 persons who were present at the time of incident, they had no previous acquaintance with the accused and no test identification parade was conducted.

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A perusal of the above observations of the learned Sessions Judge indicates that the identification of the accused was found to be not reliable. The said finding applies to the petitioner also in equal vigour. It is evident, in view of the above finding that the substratum of the prosecution case has been destroyed. No purpose would be achieved by continuing the prosecution against the petitioner.

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In the above circumstances, the benefit of acquittal of co-accused in

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CRL.MC NO. 430 OF 2024

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Annexure A3 judgment ought to be extended to the petitioner also. Therefore the proceedings against the petitioner in S.C.No.682 of 2023 before the Additional Sessions Court (Special Court for Trial of Marad Cases), Kozhikode are hereby quashed.

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The Crl.M.C.is allowed as above.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

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CRL.MC NO. 430 OF 2024

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APPENDIX OF CRL.MC 430/2024

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PETITIONER'S ANNEXURES :

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Annexure 1 THE CERTIFIED COPY OF THE FINAL REPORT DATED 12.09.2017. Annexure 2 THE CERTIFIED COPY OF THE JUDGMENT IN SESSIONS CASE NO. 221/2018 ON THE FILE OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE DATED 20.06.2023.

Balakrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Balakrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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