IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 453 of 2010()
1. S.R.SHIBU, S/O.G.RAVEENDRAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
For Petitioner :SRI.S.BALACHANDRAN (KULASEKHARAM)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/02/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.453 OF 2010
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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
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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
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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
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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
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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.