IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.MC.No. 2575 of 2009(F) -------------------------------------- (CRIME NO. 153/1991 OF NILAMBUR POLICE STATION) ......... PETITIONER/ 2ND ACCUSED: ------------------------------------------ VATTIPARAMBATH KUNHIMOHAMMED, AGED 50 YEARS, S/O.MOIDEEN KURIKKAL, KAVALAMUKKATTA P.O., NILAMBUR TALUK. BY ADV. MR.ALAN PAPALI. RESPONDENTS/ COMPLAINANTS: ------------------------------------------------- 1. STATE OF KERALA, (CRIME NO.153/1991 - CIRCLE INSPECTOR OF POLICE, NILAMBUR), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MUMTHAS @ UMMU, D/O.MOHAMMED, KAVALAMUKKATTA P.O., AMARAMBALAM VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI, R2 BY ADV. SMT.DHANYA P.ASHOKAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2575 of 2009 -------------------------- ORDER Petitioner is the second accused in C.P.No.14/1993 on the file of Judicial First Class Magistrate's Court, Nilambur, now pending as L.P.No.21/1994. Prosecution case is that on the night of 6.6.1991 at about 11.30 p.m., while the parents of the second respondent were away from the house, first accused trespassed into the house and committed rape on the second respondent and petitioner was waiting out side the house and on hearing a sound, first accused released the second respondent and when she was coming out of the room, petitioner caught hold of her hand and thereby both the accused committed offence under Section 376 read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that first accused died in 2007 at Mumbai and petitioner did not commit any offence and second respondent has no grievance against the petitioner and she has settled whatever dispute there was with the petitioner and in such CRMC 2575/09 2 circumstances, the case is to be quashed. 2. Along with the petition, Annexure-III affidavit of the second respondent, sworn before a Notary Public in the presence of another counsel, is produced, wherein, second respondent asserted that first accused died in a motor accident in 2007 at Mumbai and petitioner did not commit any overt act against her and she has no objection for quashing the case as against the petitioner. 3. Second respondent appeared through a counsel and submitted that as second respondent is now married and she is residing with her husband and as these facts are not disclosed to the husband, second respondent has no objection for quashing the case. Learned Public Prosecutor also submitted that first accused met with an accident at Mumbai and he is no more. 4. Annexure-II final report, along with Annexure-I FIR, shows that except the allegation that petitioner was waiting outside the house, while first accused committed rape on the second respondent, there is no case either that petitioner committed rape or attempted to commit rape on the second respondent. He was roped in only for the reason that he was waiting outside the CRMC 2575/09 3 house. First accused, who committed rape, is no more. Prosecutrix, who alone will be able to prove that petitioner was waiting outside the house at the time of commission of the offence, filed Annexure-III affidavit stating that she has no grievance as against the petitioner and for her security also the case is to be quashed. In such circumstances, even if petitioner is to be directed to undergo the ordeal of a trial, when second respondent settled the dispute with the petitioner, it is not in the interest of justice to proceed with the case, as no purpose will be served by such trial and chances of a successful prosecution is very bleak. In such circumstances, it is not in the interest of justice to proceed with the case further. Petition is allowed. L.P.No.21/1994 (C.P.No. 14/1993) on the file of Judicial First Class Magistrate's Court, Nilambur as against the petitioner is quashed. 27th August, 2009 (M.Sasidharan Nambiar, Judge) tkv