Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 13TH DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 CRL.MC NO. 3134 OF 2023 CRIME NO.198/2011 OF Bekal Police Station, Kasargod AGAINST THE ORDER/JUDGMENT LPC 153/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG PETITIONER/4TH ACCUSED: K.MOIDU AGED 33 YEARS S/O. ASSAINAR HAJI, ANCHILATH HOUSE, HASSAN BAZAR, HADDAD NAGAR, PALLIKKARA- II VILLAGE, KASARAGOD-, PIN - 671316. BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR HEERAKRISHNA T.H. SACHIN GEORGE ARAMBAN RESPONDENTS/STATE/COMPLAINANTS: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031. SRI. ASHI M.C - PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
==================== ===================== Dated this the 13th day of February, 2024
ORDER
Petitioner is the 4th accused in Crime No. 198/ 2011 of Bekal Police Station. The case was originally taken cognizance as C.C No.1374/2012 before the Judicial First Class Magistrate’s Court - II, Hosdurg.
2. Since petitioner absconded, the case against him was split up and later transferred to the long pending register as L.P.C No. Magistrate and the case against him has been re-numbered as C.C No. 1041/2023 on the files of the Judicial First Class Magistrate’s Court -II, Hosdurg.
3. The contention of the petitioner is that all remaining accused have been acquitted by virtue of judgment in C.C.No.1374/2012 and therefore, benefit of said acquittal should be extended to him as well.
4. According to the prosecution on 26.3.2011, the accused
had, in furtherance of their common intention, wrongfully restrained the defacto complainant and assaulted him with an iron rod and also commited mischeif to the tune of Rs.5,000/- by destroying a furniture and thereby committed the offences under Sections 341, 323, 324 506(ii) and 427 read with Section 34 of the Indian Penal Code, 1860.
5. Sri. A Arunkumar, the learned counsel for the petitioner contended that the substratum of the prosecution case has been destroyed by virtue of acquittal of all other accused, as per
judgment dated 15.12.2015 and the said benefit ought to be
extended to the petitioner too.
6. Sri. Ashi M.C, the learned Public Prosecutor, on the other
hand opposed the submissions and stated that prosecution will be able to adduce independent evidence against the petitioner and therefore the benefit of acquittal ought not to be extended to the petitioner.
7. On a perusal of the judgment dated 15.12.2015 in C.C No. 1374 of 2012, it is noticed that none of the witnesses could identify the assailants and the court has even observed that the
matter had been settled out of court. Since the witnesses had turned hostile to the prosecution and the matter is settled out of court, no incriminating evidence could be adduced during trial. Though a mere hostility of the witnesses by itself is not a ground to arrive at a conclusion that the substratum of prosecution case has been eroded in the peculiar facts of the case and taking note
of the judgment of the trial court, I am of the view that the substratum of the prosecution case against the petitioner has also been destroyed and the benefit of acquittal of other accused can be extended to the petitioner as well.
8. Accordingly, the proceedings against the petitioner as
accused in C.C No. 1041/2023 on the files of Judicial First Class Magistrate’s Court -II Hosdurg, arising out of Crime No.198/2011 of Bekal Police Station shall stand quashed.
Crl.M.C is allowed as above. Sd/- BECHU KURIAN THOMAS Rvm JUDGE APPENDIX OF CRL.MC 3134/2023 PETITIONER ANNEXURES Annexure AI A TRUE COPY OF THE F.I.R IN CRIME NO. 198 OF 2011 OF BEKAL POLICE STATION. Annexure AII CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 198 OF 2011 OF BEKAL POLICE STATION. Annexure AIII A TRUE COPY OF THE JUDGMENT DATED 15.12.2015 IN C.C.NO.1374 OF 2012 OF JUDICIAL FIRST CLASS MAGISTRATE-II, HOSDURG.