IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.MC.No. 666 of 2011() --------------------------------------. SC.191/2008 of ASSISTANT SESSIONS COURT, ALAPPUZHA CP.86/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA CRIME NO.144/ 2007 OF THE ALAPPUZHA SOUTH POLCIE STATION. .................... PETITIONER(S): 4TH ACCUSED -------------------------------------------- R.PRASANTHARAJ @ PRASANTH, S/O.RAJU, AGED 28 YEARS, RESIDING AT KANDATHIL VEEDU, RAMA VARMA SOUTH COLONY, ARIYAD SOUTH PANCHAYATH, WARD NO.14, ALAPPUZHA DISTRICT. BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S): DE-JURE COMPLAINANT --------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, ALAPPUZHA SOUTH POLICE STATION, ALAPPUZHA (NOTICE TO WHOM MAY BE SERVED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.666 of 2011 ==================================== Dated this the 07th day of March, 2011 O R D E R Petitioner is the 4th accused in Crime No.144 of 2007 of Alappuzha South Police Station and L.P. No.5 of 2009 of the court of learned Assistant Sessions Judge, Alappuzha for offences punishable under Sections 143, 147, 323, 324, 364 and 308 read with Section 149 of the Indian Penal Code. Case is that petitioner along with others on account of previous enmity to C.W.1 and in furtherance of the common objection of the unlawful assembly committed rioting armed with deadly weapons like stones, knife and iron rod, kidnapped him with intend to commit murder on 24.07.2010 at about 10.30 p.m. and attempted to cause his death by causing hurt to him with the said weapons. Accused 1 to 3 5, and 6 faced trial in S.C. No.191 of 2008 and were acquitted since C.W.1 to 3, injured and occurrence witnesses refused to support the prosecution. Other witnesses were given up by the prosecution in view of the stand of C.Ws.1 to 3. On the strength of the said acquittal petitioner has sought to quash proceeding against him. Learned counsel contended that a reading Annexure- CRL.M.C. No.666 of 2011 -: 2 :- A2, judgment would show that if trial is conducted there is no possibility of conviction of petitioner and in such circumstance when trial is a futility it is within the power of this Court to interfere under Section 482 of the Code of Criminal Procedure (for short, “the Code”). According to learned counsel on the facts and circumstance of this case this Court has to exercise its power under Sec.482 of the Code. I have heard the learned Public Prosecutor also. 2. Annexure-A1 is the final report in the case where it is stated that accused including petitioner on account of their previous enmity to C.W.1 and in furtherance of their common object came to the scene of occurrence, abducted C.W.1 in a Car and voluntarily caused hurt to him with stones, knife and iron rod and attempted to cause his death. It is true that accused 1 to 3, 5 and 6 were acquitted by Annexure-A2, judgment for the reason that C.Ws.1 to 3 did not support the prosecution. So far as C.W.2 and 3 are concerned they stated that they had not witnessed the incident. C.W1 spoke about the incident but only claimed that he was not able to identify the assailants. I must bear in mind that when C.W.1 made the said statement, petitioner was not in the dock of the accused. His statement as to inability to identify CRL.M.C. No.666 of 2011 -: 3 :- the assailants can only be attributed to those accused who faced trial and who were in the dock. 3. Yet another argument advanced is that P.W.1 has disowned the alleged first information given to the police. The mere fact that the first informant has denied his signature in the first information statement does not mean that the said statement is to be ignored as a whole. The police Officer who allegedly recorded that statement is competent to give evidence regarding that matter. In the present case situation is better that C.W.1 has not disputed his signature in the first information statement but only said that he had not named any of the assailants in his statement. I must bear in mind that police officer who recorded the first information statement is competent to give evidence that the witness had told him in the manner stated in the first information statement. What is the value of that evidence when the first informant has not supported that is a different matter. It is also not as if this Court can rely upon Annexure-A2, judgment as to its contents. This court in Moosa v. Sub Inspector of Police (2006[1] KLT 552 (F.B.) has prescribed the guidelines in which proceeding could be quashed under Sec.482 of the Code at the instance of an CRL.M.C. No.666 of 2011 -: 4 :- absconding accused. I must bear in mind that petitioner, for whatever reason was not available when accused 1 to 3, 5 and 6 faced trial. This is a case where serious offences are attributed to the petitioner. I am not inclined to think that in such a situation indulgence is required under Sec.482 of the Code so that petitioner need not even face the trial which would affect the administration of criminal justice. Petitioner who is accused of serious offences in my view has to face trial. I do not find reason to quash proceeding under Sec.482 of the Code. Criminal Miscellaneous Case fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv