Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 11TH DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 CRL.MC NO. 9149 OF 2022 (IN RELATION TO CC NO.994 OF 2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATTINKARA)
PETITIONER/ACCUSED NO. 4: SUNIL KUMAR, S/O. THANKAPPAN, SUNIL BHAVAN, KOVILOOR, KARIMBUMANNADI, VELLARADA VILLAGE, THIRUVANANTHAPURAM, PIN - 695028. BY ADVS. SRI. M. V. S. NAMPOOTHIRY SMT. SURABHI SURENDRAN SMT. ASWATHY BOSE RESPONDENT/COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031. 2 CHRISTHUDAS, AGED 61 YEARS, S/O. KRISHNAN NADAR, THUDALI VAZHAPETTU HOUSE, KEZHATOOR, KATTAKADA, THIRUVANANTHAPURAM - 695572. BY ADV. SMT. SREEJA V. - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
-------------------------------------------------- Crl. MC. No. 9149 of 2022 -------------------------------------- Dated this the 11th day of March, 2024
ORDER
1. The petitioner is the 4th accused in CC No. 994 of 2019 before
the Judicial First Class Magistrate Court - 1, Neyyattinkara. Originally the case was registered as CC. No. 893 of 2009 before the said Court itself and arises from Crime No. 300 of 2009 of Aryancode Police Station.
2. According to the prosecution, the accused had formed
themselves into an unlawful assembly on 16.09.2009, at about 8.30 a.m. and committed rioting armed with deadly weapons within the compound of St. Thomas Evangelical Church and attacked the defacto complainant after abusing him and thereby committed the offence punishable under Sections 143, 147, 148, 149, 294(b), 323 and 324 of IPC.
3. Since petitioner had absconded, trial against him was split up
and as against the remained accused, trial continued in C.C. No. 893 of 2009. By Judgment dated 30.08.2019, the learned Magistrate acquitted accused Nos. 1 to 3 and 5. In the Judgment acquitting the aforesaid accused, it has been observed as follows; “6. Point Nos. (i) to (iv) :- These points are considered together in order to avoid repetition of
facts and evidence and for the sake of convenience.
CW1, Christudas was the injured in the alleged incident. He was examined as PW1. He identified his signature on Ext. P1 FIS. He deposed that the dispute was settled by him with the accused. Ext. P2 was the compromise petition signed by PW1. He stated that the accused Nos. 1 to 3 and 5 had not attacked him. PW1 was declared as hostile witness.
7. PW2 Shaiju was another injured in the alleged
incident. He could not identify the persons who had attacked him. He had no complaints agaisnt the accused. PW2 could not identify the accused. He was declared as hostile witness. Since the material witnesses have turned hostile, the learned APP has given up CW6 to CW10. The presence of CW3 to CW5 could not be secured even after repeated coercive steps. From the available evidence, the prosecution could not prove that the accused Nos. 1 to 3 and 5 have formed themselves into an unlawful assembly to commit rioting armed with deadly weapons in prosecution of their common object and uttered obscene words towards PW1 and voluntarily caused hurt and hurt with dangerous weapons as alleged. Prosecution has miserably failed to prove its case beyond the shadow of reasonable doubt. The accused Nos. 1 to 3 and 5 are hence entitled for the benefit of doubt. These points are found against the prosecution.”
3. A perusal of the above observations would reveal that the
dispute between the accused 1 to 3 and 5 and the defacto complainant had already been settled and a compromise petition was also filed. He has also stated that the accused who are proceeded against had not attacked him. Even PW2 stated that he had no complaint against the accused as he could not identify the person who had attacked him.
4. The above findings of the Trial Court against accused Nos. 1 to 3 and 5 are applicable to the petitioner also. It is evident from the
Judgment of acquittal of accused 1 to 3 and 5 that the substratum
of prosecution case as against the petitioner has also been eroded. No purpose would, in view of the above observations be achieved by continuing the prosecution against the petitioner. Hence, the proceedings against the petitioner pending in CC No. 994 of 2019 before the Judicial First Class Magistrate Court - 1, Neyyattinkara are hereby quashed. The Crl. MC. is allowed as above. Sd/- BECHU KURIAN THOMAS JUDGE Svn APPENDIX OF CRL.MC 9149/2022 PETITIONER’S ANNEXURES ANNEXURE A1 CERTIFIED COPY OF FINAL REPORT IN CC 893 OF 2009 OF ARYANCODE POLICE STATION ANNEXURE A2 CERTIFIED COPY OF JUDGMENT IN CC 893 OF 2009 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT I NEYYATTINKARA ANNEXURE A3 CERTIFIED COPY OF COMPROMISE PETITION FILED BY PW1 BEFORE THE TRIAL COURT ANNEXURE A4 CERTIFIED COPY OF DEPOSITION OF PW1 ANNEXURE A5 CERTIFIED COPY OF DEPOSITION OF PW2