IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 Crl.MC.No. 120 of 2011 ------------------------ ( SC.1042/2010 OF THE ASST. SESSIONS COURT, CHENGANNUR IN CRIME NO. 206/2006 OF CHENGANNUR POLICE S TATION. ) .................... PETITIONER/4TH ACCUSED: --------------- JOMON, AGED 31 YARS, D/O.MARRYAMMA @ THAKKAMMA, (TEKKUM MOOTTIL VEEDU) GRACE COTTAGE, PERESSERY MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.AJITH MURALI RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.120 of 2011 -------------------------------------- Dated this the 14th day of January, 2011. ORDER Accused No.4 in S.C.No.1042 of 2010 of the court of learned Assistant Sessions Judge, Chengannur is the petitioner seeking to quash proceedings against him on the allegation that there is no overtact attributed to him and as accused Nos.1 to 3 were acquitted by Annexure-B, judgment where the learned Judge has observed that there is some doubt in the prosecution case itself. 2. Case is that on 04.04.2008 at about 11.30 p.m. petitioner along with four others formed unlawful assembly, committed rioting armed with deadly weapons, assaulted CWs 1 to 4 who are excise officials and attempted to cause their death. Chengannur Police investigated the case and filed final report against petitioner for offences as aforesaid. On account of death of accused No.5, charge against him abated. Accused Nos.1 to 3 faced trial in S.C.No.359 of 2007 and were acquitted. Since petitioner was not available for trial the case against him was refilled as S.C.No.1048 of 2010. Learned counsel points out various discrepancies in the prosecution case such as discrepancy in the place of occurrence as stated by the prosecution and the witness in court, non-recovery of alleged weapon of offence though one of the witnesses stated in the evidence that Investigating Officer had shown him the weapon in the course of investigation. It is also pointed out that PWs 6 and 7 who are employees of the petrol pump near which the incident allegedly occurred did not Crl.M.C.No.120/2011 2 support the prosecution. PW2, the Medical Officer has opined that injuries sustained by PW3 could be caused due to a fall from a moving motor bike. Learned counsel has drawn my attention to Annexure-B, judgment. Learned Assistant Sessions Judge disbelieved evidence of PWs 1 to 4/CWs 1 to 4 and found that accused Nos.1 to 3 are not proved to have committed offences as alleged. 3. That, learned Assistant Sessions Judge acquitted accused Nos.1 to 3 by Annexure-B, judgment on the evidence produced that is not sufficient to quash proceedings against petitioner. It is not as if prosecution case has been found to be an utter falsehood so that there is no point in asking petitioner to face the trial. It is seen from Annexure-B, judgment that some of the accused who faced trial were not identified by the occurrence witnesses (whatever be the reason thereof). Acquittal of accused Nos.1 and 3 on the ground of benefit of doubt in my view is not a ground to quash proceedings against petitioner. Learned counsel submitted that since unlawful assembly is not proved, proceedings against petitioner has to be quashed, for the case of the prosecution is that petitioner was a member of the unlawful assembly and in prosecution of its common object committed offences as alleged. What is required to be proved is that petitioner was a member of the unlawful assembly and the members of the unlawful assembly in prosecution of the common object to have committed the offences. In the circumstances I am not inclined to accept the contention that proceedings against petitioner is to be quashed. Crl.M.C.No.120/2011 3 He has to face trial. Resultantly this petition is dismissed . But I make it clear that any observation made in this order shall not influence the trial Judge while disposing of the case against petitioner and others and that the case shall be decided on its merit. THOMAS P.JOSEPH, Judge. cks