IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH APRIL 2011 / 9TH VAISAKHA 1933 Crl.MC.No. 1274 of 2011() ------------------------- SC.857/2009 of ADDL.SESSIONS COURT, MAVELIKKARA LP.14/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONER(S) :- ------------------------ ABDUL VAHID, S/O.SUBAIR KUNJU, RESIDING AT OTTATHENGIL HOUSE, VARAVILA, CLAPPANA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SMT.MINI.V.A. RESPONDENT(S) :- ------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.K.J.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ Crl.M.C. No.1274 of 2011 ~~~~~~~~~~~~~~~~~~ Dated this the 29th day of April 2011 O R D E R Petitioner is the 7th accused in Crime No.488 of 1992 of Kayamkulam Police Station, L.P.No.14 of 1998 of the court of learned Judicial First Class Magistrate, Kayamkulam and S.C.No.857 of 2009 of the court of learned Additional Sessions Judge, Mavelikara for offences punishable under Secs.143, 147, 148, 323, 324 and 307 r/w Sec.149 of the Indian Penal Code (for short, “the IPC”). Accused 2 to 5 and 8 were acquitted in S.C.No.62 of 2005. The first accused surrendered and he was tried in S.C.No.123 of 2006. He was acquitted by Annexure-I, judgment for want of sufficient evidence to implicate him in the alleged incident. While pronouncing Annexure-I, judgment learned Additional Sessions Judge observed that “In the result the accused 1 to 8 are not found guilty for the offence punishable u/s.143, 147, Crl.M.C. No.1274 of 2011 -: 2 :- 148, 323, 324, 307 and 149 IPC and they are acquitted for the said offences u/s.232 of Cr.P.C. cancelling their bail bond, I direct that they be set at liberty.” Petitioner is now being prosecuted in S.C.No.857 of 2009. Petitioner wants proceeding against him to be quashed on the principle of issue estoppel. It is contended by learned counsel that though petitioner had not participated in the trial, petitioner also has been acquitted by Annexure-I, judgment having regard to the nature of evidence given by the witnesses and hence trial of petitioner is not warranted. I have heard learned Public Prosecutor as well. 2. CWs.1 to 3 are the injured. CW4 is an independent witness. CWs.1 and 4 expired even before trial leading to Annexure-I, judgment. CWs.2 and 3 were examined as PWs.1 and 2. In the course of trial, PWs.1 and 2 and the accused (who faced trial) filed a petition to compound the offences. Learned Sessions Judge dismissed that petition since some of the offences were not compoundable. Learned Sessions Judge observed that PWs.1 and 2 did not support the prosecution. Crl.M.C. No.1274 of 2011 -: 3 :- They claimed that they settled the case with the accused. Though they referred to the incident, claimed that they could not identify the assailants. Noting these circumstance, learned Additional Sessions Judge passed Annexure-I judgment acquitting accused 1 to 8 under Sec.232 of the Code of Criminal Procedure. 3. Having regard to the phraseology used by learned Additional Sessions Judge in Annexure-I judgment in S.C.No.123 of 2006 the operative portion of which I have extracted above, I am inclined to think that learned Additional Sessions Judge was conscious about the case against petitioner/A7 also while the said judgment was pronounced. Taking note of the nature of evidence let in by PWs.1 and 2, petitioner/A7 was also acquitted. Otherwise when the first accused alone faced trial in S.C.No.123 of 2006, accused 2 to 5 and 8 having already faced trial in S.C.No.62 of 2005 there was no necessity for learned Additional Sessions Judge to mention that accused 1 to 8 are found no guilty, they are acquitted, their bail bonds are cancelled and that they are set Crl.M.C. No.1274 of 2011 -: 4 :- at liberty. 4. Even otherwise, having regard to the nature of evidence given by PWs.1 and 2, taking into account the fact that CW1, another injured and CW4, the independent witness are no more and considering the fact that though dismissed, PWs.1 and 2 had filed a compounding petition in the trial court, I am inclined to think that it is not necessary to direct petitioner to face the trial. Resultantly this Crl.M.C. is allowed and proceeding against petitioner/A7 in S.C.No.857 of 2009 of the court of learned Additional Sessions Judge, Mavelikara is quashed. THOMAS P. JOSEPH, JUDGE. Jvt