IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.MC.No. 1690 of 2011() ------------------------------------- CRIME NO.42/1992 OF OACHIRA POLICE STATION C.P.NO.67/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY -------------------------------- PETITIONER(S): ACCUSED ---------------------------------------- ABOOBACKER KUNJU SHAJI, KUTTIPURATHU VEEDU, MEMANA MURI, OACHIRA VILLAGE, KOLLAM DISTRICT, NOW RESIDING AT KUTTIPPURATHU HOUSE, KOIVILA, THEVALAKKARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.SIJU KAMALASANAN SMT. BINDU GEORGE RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------- STATE OF KERALA, REP. BY DEPUTY SUPERINTENDENT OF POLICE, KARUNAGAPPALLY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31 BY PUBLIC PROSECUTOR SRI.V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/06/2011, ALONG WITH CRMC NO.1713 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.1690 and 1713 of 2011 --------------------------------------- Dated this 13th day of June, 2011 ORDER Petitioners are accused Nos.22 and 23 in Crime No.42 of 1992 of Oachira Police Station and C.P.No.67 of 2000 of the Court of learned Judicial First Class Magistrate, Karunagappally for offences punishable under Secs.307, 120(b), 143, 147, 148, 324, 332 ad 33 r/w Sec.149 of the Indian Penal Code and Sec.3 (2)(a) of the P.D.P.P Act, 1984. That case was registered against 400 persons alleging that on 01.04.1992 the said persons formed unlawful assembly, committed rioting, voluntarily caused hurt and obstructed the police officials from discharging their official duty and caused damage to public property. 70 accused faced trial in S.C.No.216 of 1995, 8 of 1996 and 25 of 1997 of the Court of learned Assistant Sessions Judge, Kollam. All of them were acquitted for failure of prosecution witnesses to identify the assailants. Petitioners say that they were not available, on account of employment at the time other accused were tried and request this Court to quash proceeding against them. Accused No.22 has filed Crl.M.C.No.1690 of 2011, while accused No.23 has filed Crl.M.C.No.1713 of 2011. Petitioner in Crl.M.C.No.1713 Crl.M.C.Nos.1690 and 1713 of 2011 -: 2 :- of 2011 has also a contention that he was a juvenile at the time the alleged incident occurred on 01.04.1992 but has been charge sheeted along with major accused and put up for trial before the learned Magistrate. Learned counsel submitted that in the light of Annexure-A3, judgment acquitting 70accused and Annexure- A4, order of this Court in Crl.M.C.No.2367 of 2005 quashing proceeding against some of the other accused, prosecution against petitioners cannot survive and is liable to the quashed. Learned Public Prosecutor contended that Annexure-A4, order came before the Full Bench decision in Moosa Vs. Sub Inspector of Police (2006(1) KLT 552). 2. True that the Full Bench has laid down guidelines as to when proceeding against an absconding accused could be quashed based on judgment of acquittal of other accused. It is stated that when the judgment affects the substratum of prosecution case, it is not necessary to sent up the remaining accused for trial. Here, it is seen from Annexure-A3, judgment that of the witnesses examined by the prosecution to prove the alleged incident, only PW1 made an attempt to identify and that too, of the first accused alone (out of the 70 accused who faced trial). It is seen from Annexure-A3, judgment that learned Crl.M.C.Nos.1690 and 1713 of 2011 -: 3 :- Assistant Sessions Judge rejected the identification of first accused made by PW1 for the reason that as per the version of PW1, he identified that accused from a crowd of about 400 persons. Learned Assistant Sessions Judge stated that the version of PW1 is not credible and rejected that identification. I must bear in mind that as per the FIR, case was registered against 400 persons and final report was submitted against 101 identified accused and 299 unidentified persons. These circumstances have been taken into account by the learned Judge of this court in Annexure-A4, order in Crl.M.C.No.2367 of 2005 and in the light of Annexure-A3, judgment proceeding against four accused was quashed. 3. On going through Annexure-A3, judgment I am inclined to think that the finding that evidence of PW1 regarding identification of one accused from a crowd of about 400 persons cannot be believed, affects the substratum of the prosecution case. There is no reason why the benefit given to the four accused in Crl.M.C.No.2367 of 2005 shall not be given to petitioners/accused 22 and 23. I am inclined to think that in the circumstances stated above, proceeding with the trial of petitioners in respect of an incident that is alleged to have taken Crl.M.C.Nos.1690 and 1713 of 2011 -: 4 :- place on 01.04.1992, in the nature of the evidence given by the witnesses and not accepted by the learned Assistant Sessions Judge in Annexure-A3, judgment is of no use. Resultantly these criminal miscellaneous cases are allowed. Proceeding against petitioners/accused Nos.22 and 23 (in Crime No.42 of 1992 of Oachira Police Station) in C.P.No.67 of 2000 of the Court of learned Judicial First Class Magistrate, Karunagappally are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-