IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.MC.No. 1523 of 2011() ------------------------- C.P.NO.19/09 OF JUDICIAL FIARST CLASS MAGISTRATE COURT I,KOTTAYAM SC.11/2010 OF SESSIONS COURT,KOTTAYAM .................... PETITIONER(S): ------------------------- BIJO, S/O. VINOD, KUTTIPUZHA PUTHENPARAMBU VEEDU, NALKADAVALA BHAGOM, KOLLAD, KOTTAYAM. BY ADVS. SRI.C.S.MANILAL, SRI.S.NIDHEESH. RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1523 of 2011 ==================================== Dated this the 01st day of June, 2011 O R D E R Petitioner is the second accused in Crime No.548 of 2008 of Kottayam Police Station. Case against him is now in committal stage before the learned Judicial First Class Magistrate-I, Kottayam in C.P. No.19 of 2009. Petitioner seeks to quash proceedings against him on the strength of Annexure-E, deposition of the alleged victim and Annexure-F, judgment acquitting the first accused in the case. Learned counsel submits that prosecution of petitioner in view of Annexures-E and F is only a wasteful exercise and hence request to quash proceedings against him. Request is opposed by the learned Public Prosecutor who contended that acquittal of first accused is only for the offences under Sections 366 and 376 read with Section 34 of the Indian Penal Code on a separate charge sheet filed against him. 2. Case is that first accused with the assistance of petitioner/second accused abducted P.W.4, then studying for +1 Course from the lawful custody of her guardian and the first accused without her consent subjected her to sexual intercourse. CRL.M.C. No.1523 of 2011 -: 2 :- Though the case was initially registered under Sec.366 read with Sec.34 of the IPC in the course of investigation Sec.376 IPC was also incorporated on the allegation that the first accused committed that offence. The Police charge sheeted petitioner and first accused separately, charge sheet A being against first accused for offence under Sec.376 IPC and charge sheet B being against petitioner and the first accused for offence under Sec.366 read with Sec.34 IPC. First accused faced trial in S.C. No.11 of 2010 in the court of learned Sessions Judge, Kottayam who acquitted the first accused as per Annexure-F, judgment. C.W.1 at whose instance the case was registered when examined as P.W.3 stated that the (alleged) victim (P.W.4) who then was a minor studying for the +1 Course left the house on 29.09.2008 and that P.W.3 and others made enquiries at the house of their relatives. P.W.4, the victim stated that during the relevant time she was a +1 student and on 29.09.2008 she left the house. She denied that she was acquainted with the first accused. It is seen from Annexure-E, deposition of P.W.4 that in chief examination she did not speak anything about either first accused or petitioner and instead she came with the case that she left the house (as if voluntarily). Learned Public Prosecutor made some effort to CRL.M.C. No.1523 of 2011 -: 3 :- elicit from her the prosecution case by confronting her with the previous statement as if she was abducted by the first accused with assistance of petitioner and later the first accused, without her consent subjected her to sexual intercourse. She denied all the suggestions in that line. She denied that she had given any such statement to the Investigating Officer. In the absence of any evidence worth mentioning learned Sessions Judge acquitted the first accused as per Annexure-F, judgment. 3. Now the question is whether the benefit of that judgment is to be given to the petitioner who was not available for trial along with the first accused though this Court by Annexure-C, judgment directed joint trial of charge sheets A and B referred to above. If the substratum of prosecution case is destroyed by the judgment against first accused, certainly that is a ground which petitioner could urge in his favour. I referred to Annexure-E, deposition of P.W.4 the alleged victim who has denied everything that the prosecution has said against petitioner and first accused and pleaded that she left the house (as if voluntarily). 'Abduction' involved enticing or taking away the minor from her lawful guardianship. If the minor has voluntarily left the house even if with another person that cannot CRL.M.C. No.1523 of 2011 -: 4 :- amount to the offence of abduction. In the light of the stand of P.W.4 as seen from Annexure-E, deposition I am persuaded to think that the substratum of prosecution case is destroyed badly and in such circumstance sending petitioner for trial is only a wasteful exercise. I am inclined to accept the argument of petitioner. Resultantly, Criminal Miscellaneous Case is allowed. Proceedings against petitioner in C.P. No.19 of 2009 of the court of learned Judicial First Class Magistrate-I, Kottayam are quashed. THOMAS P. JOSEPH, JUDGE. vsv