IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 1046 of 2011() ---------------------------------------- CC.994/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... PETITIONER(S): 5TH ACCUSED ---------------------------------------------- ANTONY @ KUTTAN, AGED 32 YEARS, S/O.JOSEPH, MULLAPARAMBIL HOUSE, VADUTHALA, CHERANELLOOR. BY ADV. SRI.NAVEEN THOMAS RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------ THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (SUB INSPECTOR OF POLICE, CRIME NO.37/2001 OF CHERANELLOOR POLICE STATION). BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1046 of 2011 --------------------------------------- Dated this 06th day of April, 2011 ORDER Petitioner is the 6th accused in Crime No.37 of 2001 of Cheranalloor Police Station and 5th accused in C.C.No.994 of 2010 of the Court of learned Judicial First Class Magistrate-II, Ernakulam for offence punishable under Sec.379 r/w Sec.34 of the Indian Penal Code (for short, "the IPC”). It is alleged that petitioner and others used to commit theft of toddy from coconut trees, to avoid such theft the toddy tapper kept pesticide on the coconut trees and on 15.04.2001 at about 7p.m petitioner and others committed theft of toddy and drank the same resulting in the death of two persons. Petitioner and others who survived are charged for offence punishable under Sec.379 of the IPC. Petitioner states that prosecution has not produced any material to show involvement of petitioner in the alleged incident and hence requests this Court to quash proceeding against him. It is pointed out that third accused faced trial and was acquitted for want of evidence under Sec.248 of the Code of Criminal Procedure (for short, "the Code”) by Annexure-I, judgment. I have heard learned Public Prosecutor also. Crl.M.C.No.1046 of 2011 -: 2 :- 2. I have gone through Annexure-I, judgment and find that prosecution was not able to produce any material to prove the incident against the third accused who faced trial in that case. Accordingly the third accused was acquitted under Sec.248 of the Code. 3. Mere acquittal of third accused in my view is not a ground to quash proceeding against petitioner. But, I have gone through the materials furnished by the prosecution to prove the charge. Annexure-A2 is the final report submitted by the police. It is seen that no witness is cited by the prosecution to prove the alleged incident. Many of the witnesses cited are only to say that they heard about the incident. Concededly incriminating material is recovered from petitioner. Proceeding with trial of the case with the material produced against petitioner is of no use and in my view, is only a wasteful exercise. Hence I am inclined to accept the plea of petitioner. Resultantly this criminal miscellaneous case is allowed. Proceeding against petitioner/accused 5 in C.C.No.994 of 2010 of the Court of learned Judicial First Class Magistrate-II, Ernakulam (accused 6 in Crime No.37 of 2001 of Cheranalloor Police Station) are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-