IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 Crl.MC.No. 3581 of 2009() ------------------------------------ SC.2457/2006 of ASSISTANT SESSIONS COURT, NEYYATTINKARA. CRIME NO.270/95 OF VELLARADA POLICE STATION. ..................... PETITIONER/ACCUSED --------------------------------- MURUGAN, AGED 36, S/O.CHINNATHAMBY,VADAKKEKKARAPUTHEN VEETTIL,V.P.NO.VII/14, ELIVALANKONAM, VELLARADA DESOM, DO VILLAGE. BY ADV. MR.R.T.PRADEEP RESPONDENT/STATE & INJURED ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. RAJAYYAN,S/O.CHELLAYYAN NADAR, RAJEEV BHAVAN, ELIVALANKONAM, VELLARADA DESOM. R2 BY ADV. MR.SAIJO HASSAN R1 BY PUBLIC PROSECUTOR MR.SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3581 OF 2009 ------------------------------------------ Dated 24th November 2009 O R D E R Petitioner is the fourth accused in crime No.270/1995 of Vellarada police station. When presence of the petitioner could not be procured, the case as against remaining six accused were committed to Sessions court by Judicial First Class Magistrate-III, Neyyattinkara as C.P.5/1999 and taken cognizance by the learned Sessions Judge and made it over to Assistant Sessions court, Neyyattinkara for disposal. Learned Assistant Sessions Judge tried those six accused and by Annexure-II judgment acquitted them. Case as against petitioner was subsequently committed and is now pending as S.C.2457/2006. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him contending that in view of the evidence already recorded, and the order of acquittal as against the co-accused, there is no likelihood of a conviction and in such circumstances, it is not in the interest of justice to continue the prosecution. Crmc 3581/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 24/12/1995 eight accused formed themselves into an unlawful assembly with the common object of inflicting injuries on Rajayyan and Sudarshan, in furtherance of their common object, at about 8.30 a.m, armed with deadly weapon like chopper, pen knife and wooden sticks and inflicted injuries to Rajayyan which are likely to cause death and thereby committed offences under Sections 143, 147, 148, 324 and 307 read with Section 149 of Indian Penal Code. As per Annexure-I final report allegation as against the petitioner, apart from being a member of unlawful assembly, is that proclaiming that Rajayyan is to be murdered, he inflicted injury on the back of his shoulder with a pen knife. Annexure-II judgment in S.C.131/2000 shows that when the injured Rajayyan and Sudarshan were examined as Pws.1 and 2 they turned hostile to the prosecution and deposed that as it was dark they could not identify the assailants. Wife of Rajayyan, when examined as PW3, as well as other independent witness who was Crmc 3581/09 3 examined as PW4 also expressed total ignorance of the incident. It is in the light of these evidences, prosecution gave up the remaining accused and ultimately Assistant Sessions Judge was constrained to order acquittal of the remaining accused. 4. Question is, in the light of these factual position and evidence already recorded, whether there is any likelihood of a successful prosecution, even if petitioner is to be directed to undergo ordeal of a trial. True, based on an order of acquittal as against the co-accused alone, an absconding accused is not entitled to seek an order to quash the proceedings as against him. But when it is absolutely clear that even if petitioner is to be directed to undergo the ordeal of a trial and when those very same witnesses have already disclosed to the court that they did not identify any of the assailants, there is no likelihood of an identification of the petitioner. The ordeal of trial would only result in unnecessary waste of valuable time of the court. In such circumstances, it is not in the interest of justice to continue the prosecution. Crmc 3581/09 4 Petition is allowed. S.C.2457/2006 on the file of Assistant Sessions court, Neyyattinkara is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.