IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.MC.No. 459 of 2010() ------------------------ SC.649/2007 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... PETITIONER(S): ACCUSED -------------------------------------------- MR.MAMMUNHI @ MOHAMMEDKUNHI, S/O. ABBAZE @ ABBACHU, CHOORI, KUDLU VILLAGE, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT/STATE -------------------------------------------------------------------- 1. K.JAYACHANDRAN, AGED ABOUT 35 YEARS, S/O. P.KUMARAN, DEEPALAYAM HOUSE, CHARANKRA KADAPURAM, KASARAGOD. 2. STATE OF KERALA, REP. BY S.H.O., KASARAGOD POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. ADV. SRI.SIJU MATHEW FOR R1 PUBLIC PROSECUTOR SRI.C.S.HRITHWICK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.459 of 2010 = = = = = = = = = = = = = = Dated: 17.05.2010 ORDER The 1st accused in Crime No.764 of 2003 of Kasaragod Police Station for offences punishable under Sections 143,147,341,323 and 308 read with 149 IPC seeks to quash Annexure A1 final report filed in the above case. The case is now pending before the Additional Sessions Court (Ad hoc-1), Kasaragod as S.C.No.649/2007. 2. The case of the prosecution is as follows:- “The petitioner and the other accused persons were travelling in a bus being members of a marriage party. They took exception to the conduct of the de facto complainant who was driving an auto rickshaw in front of the said bus without providing space for the bus to overtake the auto rickshaw. Thereupon, the petitioner and the other accused persons got down from the bus and assaulted the de facto complainant (the auto rickshaw driver) while that auto rickshaw was proceeding along the road. The further case of the prosecution is that if the auto rickshaw which was in motion has dashed against Crl. M.C.No.459 of 2010 2 the electric post or the compound wall by the side of the road, it would have endangered the life of the de facto complainant. 3. I perused the case diary files pertaining to the matter. There is no case for the prosecution that the auto rickshaw did proceed further and dashed against the electric post or building or the compound wall and thereby endangered the life of the de facto complainant. Hence the offence punishable under Section 308 IPC is not even a remote possibility on the facts of the case. With regard to the other offences, the de facto complainant who is represented by counsel has settled the matter with the petitioner. The composition with regard to Sections 323,143,147,341 and 149 IPC is recorded. It will have the effect of acquitting the petitioner of the said offences in view of Section 320(8)Cr.P.C. 4. What now survives for consideration is the offence punishable under Section 308 IPC. The investigation records show that the possibility alleged for incorporating Section 308 IPC was a remote one. The auto rickshaw proceeding further and dashing against the electric post or building or the Crl. M.C.No.459 of 2010 3 compound wall and thereby the complainant sustaining death was a remote possibility. Hence the incorporation of Section 308 IPC is not at all justified. The result is that S.C.No.649/2007 pending before the Sessions Court (Ad hoc-I), Kasaragod, so far as the petitioner is concerned, will stand quashed. This Crl.M.C is accordingly allowed to the above extent. Dated this the 17 th day of May, 2010. V. RAMKUMAR, JUDGE sj