IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 Crl.MC.No. 453 of 2010() ------------------------------------- L.P.NO.115/97 IN CP.NO.114/96 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, THIRUVANANTHAPURAM. ....... PETITIONER(S): A2: ------------------------------- S.R.SHIBU, S/O.G.RAVEENDRAN, AGED 35 YEARS, SANDHYA NIVAS, VILAPPIL, VILAPPILSALA P.O., THIRUVANANTHAPURAM. BY ADV.MR.S.BALACHANDRAN (KULASEKHARAM) RESPONDENT(S): --------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.453 OF 2010 ------------------------------------------ Dated 25th February 2010 O R D E R Petitioner is the second accused in crime No.104/1996 of Fort Police Station. Based on Annexure-D final report cognizance was taken for the offence under Sections 384, 411 and 413 read with Section 34 of Indian Penal Code in C.P.144/1996. As the petitioner was absconding, case as against him was split up and case as against accused 1 and 3 were committed to Sessions court. Learned Sessions Judge took the case on the file as S.C.340/1997 and made it over for trial to first Additional Assistant Sessions Judge, Thiruvananthapuram. By Annexure-E judgment dated 31/10/2010, third accused was Crmc 453/10 2 acquitted after splitting the case as against the first accused who by that time absconded. Petition is filed under Section 482 of Code of Criminal Procedure to quash the case against the petitioner contending that there is absolutely no material to establish the offence alleged against him and entire evidence was recorded in S.C.340/1997 and apart from the evidence of PW4, the victim, there was no evidence in support of the prosecution and PW4 is now no more and in such circumstances, even if petitioner is to be tried there is no likelihood of a conviction and in such circumstances, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-D final report shows that prosecution case is that on 6.1.2010 at about Crmc 453/10 3 1.20 p.m, petitioner along with first accused asked Nazar, who was examined as PW4 in S.C.340/1997 while standing in front of Ajantha theatre, East Fort whether he had seen the film Theeram Leela and thereafter took him in an autorickshaw to the western side of National Highway at Kallummoodu junction and disclosing that Sunil was not there and he would come in front of Ajantha theatre on the next day wanted him to hand over the gold chain and when he refused, first accused took out a chopper and threatened him to part with gold chain weighing 5.500 ml. worth Rs.3,000/- and took away gold chain and thereafter gold chain was handed over by the accused 1 and 2 to the third accused who received the same with knowledge that it is the stolen property and thereby committed the offences. Annexure-D final report shows that the only witness who Crmc 453/10 4 was cited to speak against the petitioner or the part played by the petitioner, is the said Nazar. Though recovery of the gold chain was made, it was from the first accused. Hence even if that recovery is accepted it would only connect first accused with the offence and not he petitioner. No other witness was cited to show that petitioner was there along with the first accused. It is on this basis, learned counsel appearing for the petitioner argued that even if, petitioner is to be tried, it would only be a futile exercise submitting that said Nazar, who is cited as CW1 is no more. 4. Learned Public Prosecutor submitted that he was instructed that CW1 Nazar is now no more. 5. In such circumstances, question is when there is absolutely no material as against the petitioner, is he to be directed to stand Crmc 453/10 5 for trial, especially when third accused now stands acquitted. When there is absolutely no material to establish that petitioner committed any of the offences alleged and it is clear that consequent to the death of CW1 Nazar, even if, petitioner is to be tried, there is no likelihood of a successful prosecution, it is not in the interest of justice to continue the prosecution. In such circumstances, petition is allowed. L.P.115/1997 in C.P.114/96 on the file of Judicial First Class Magistrate-II, Thiruvananthapuram as against the petitioner/second accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.