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Baiju vs State of Kerala

BAIJU vs State of Kerala

Type Court Judgment Court Kerala Decided Aug 31, 2022
~5 min read
https://sooperkanoon.com/case/1491886

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Citation
Court
Kerala High Court
Judge
Decided On
Case Number
Crl.MC/3407/2021

Parties & Advocates

Appellant / Petitioner

BAIJU

Respondent

State of Kerala

Excerpt

.....case. this is mainly because, the only incriminating material is the recovery of the weapon effected under section 27 of the evidence act, and the same was based on the confession statement of the 1 st accused, whois found not guilty by the learned sessions judge. in such circumstances, the probability of the petitioner being convicted even if a trial has been conducted against him is very remote. therefore, further prosecution in the matter would be a futile exercise. therefore, i am of the view that this is a fit case in which theprinciples laid in moosa’s case (supra) can be applied. accordingly, this crl.m.c. is allowed and annexure b final report submitted in crime no.108/2008 of thrithala police station and all further proceedings against the petitioner, including the proceedings in c.p. no.23/2022 pending before the judicial first class magistrate court, pattambi are hereby quashed.sd/- ziyad rahman a.a. judge scs appendix of crl.mc 3407/2021 petitioner annexures annexure a true copy of the fir in crime no. station, dated 25.03.2008 annexure b true copy of the final report/charge in crime no. 108/2008 of thrithala police station annexure c certified copy of the judgment dated 10.12.2019 in sc.no. 441/2012 of the sessions court, palakkad

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944 L.P.NO.44/2013 IN CP 13/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI CRIME NO.108/2008 OF THRITHALA POLICE STATION

PETITIONER/ACCUSED (ORIGINAL ACCUSED NO.2): BAIJU AGED 46 YEARS S/O. RAMAN @ APPUTTY, MELEPURATH HOUSE, EDAPPALAM, VILAYUR, PALAKKAD DISTRICT BY ADV K.RAKESH RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682031 2 THE STATION HOUSE OFFICER THRITHALA POLICE STATION, PALAKKAD DISTRICT, PIN 679534 ADV. M. P. PRASHANTH- PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

The petitioner is the 2nd accused in Crime No.108/2008 of Thrithala Police Station which was registered for the offences punishable under Sections 302 read with Section 34 and Section 201 of Indian Penal Code.

2. The prosecution case is that on 21.03.2008 at about 10 p.m. in connection with a family property dispute, the accused

Nos.1 and 2 murdered their father. Annexure A is the First Information Report and Annexure B is the Final Report submitted by the Police. Initially, the trial on the basis of Annexure B Final Report was conducted a S.C. No.441/2012 before the First

Additional Sessions Court, Palakkad. In the said trial, the 1 st accused alone participated and Annexure C is the judgment passed thereon. As per the said judgment, the 1st accused was found not guilty and accordingly, he was acquitted. The case against the petitioner was split up and it was included in long pending register as L.P. No.44/2013 in C.P. No.13/2012 before the Judicial First

Class Magistrate Court, Pattambi. This Crl.M.C. is filed for quashing all further proceedings against the petitioner pursuant to Annexure B Final Report.

3. When this Crl.M.C came up for admission, this Court

passed an order directing the petitioner to surrender before the court and to seek bail. In compliance of the said direction, the petitioner already surrendered before the Judicial First Class Magistrate Court and he was released on bail. Now it is reported that the case is refilled as C.P. No.23/2022 before the Judicial First Class Magistrate Court, Pattambi. This Crl.M.C. is filed for quashing all further proceedings against the petitioner.

4. Heard Sri.K.Rakesh, learned counsel appearing for the petitioner and Sri.M.P. Prashanth, learned Public Prosecutor for the State.

5. The specific contention of the learned counsel for the

petitioner is that consequent to the finding entered by the learned Sessions Judge in Annexure C judgment, the substratum of the case is lost. Hence, further prosecution against the petitioner herein is unwarranted. He also places reliance upon the principles laid down by the Full Bench of this Court in Moosa v. Sub Inspector of Police [2006(1) KLT 552].

6. On the other hand, the learned Public Prosecutor would

oppose the aforesaid prayer by highlighting that the complicity of the petitioner is to be decided based on the materials to be revealed during the course of the investigation and merely because of the reason that the other accused has been acquitted after trial, the petitioner cannot seek for an order quashing the proceedings against him, particularly when the offences alleged against the petitioner are serious in nature.

7. I have gone through the contents of Annexure B Final Report and Annexure C judgment passed by the learned Sessions, Judge. It is discernible therefrom that the case was framed by the

prosecution as one based on circumstantial evidence. Several witnesses were examined to prove the chain of circumstances indicating the commission of offences by the accused persons. However, the independent witnesses examined by the prosecution, namely PWs 4 to 13, PWs 15 to PW 17, PW 21 and PW 35, have

turned hostile to the prosecution. The learned Sessions Judge observed explicitly that the only incriminating material the prosecution could produce is the recovery of the weapon affected based on the confession statement of the 1st accused. However, in paragraph 51 of the said judgment, the learned Sessions Judge discussed in detail about the materials placed on record to substantiate the recovery as mentioned above and arrived at a categorical finding that the said materials do not establish the prosecution case. It was also observed that the prosecution failed to establish the chain of circumstances to make a case for a conviction based on circumstantial evidence. The order of acquittal was passed based on the aforesaid findings. On perusal of the records and the observations made by the learned Sessions Judge in Annexure C judgment, I am of the view that the aforesaid findings will have the impact of destroying the substratum of the said case. This is mainly because, the only incriminating material is the recovery of the weapon effected under Section 27 of the Evidence Act, and the same was based on the confession statement of the 1 st accused, who

is found not guilty by the learned Sessions Judge. In such circumstances, the probability of the petitioner being convicted even if a trial has been conducted against him is very remote. Therefore, further prosecution in the matter would be a futile exercise. Therefore, I am of the view that this is a fit case in which the

principles laid in Moosa’s case (supra) can be applied. Accordingly, this Crl.M.C. is allowed and Annexure B Final Report submitted in Crime No.108/2008 of Thrithala Police Station and all further proceedings against the petitioner, including the proceedings in C.P. No.23/2022 pending before the Judicial First Class Magistrate Court, Pattambi are hereby quashed.

Sd/- ZIYAD RAHMAN A.A. JUDGE scs APPENDIX OF CRL.MC 3407/2021 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE FIR IN CRIME NO. STATION, DATED 25.03.2008 Annexure B TRUE COPY OF THE FINAL REPORT/CHARGE IN CRIME NO. 108/2008 OF THRITHALA POLICE STATION Annexure C CERTIFIED COPY OF THE JUDGMENT DATED 10.12.2019 IN SC.NO. 441/2012 OF THE SESSIONS COURT, PALAKKAD

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