SHIHAB AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS petition under Section 482 of Code of Criminal Procedure is preferred by the accused Nos. 1 & 4 in S.C. No. 560/2012 on the file of the Additional Sessions Judge, (Ad hoc -1), Thrissur. Their prayer is to quash all further proceedings in the said case on the ground that the substratum of the case is lost as a result of the acquittal of accused Nos. 2 & 3 in the said case as per Judgment dated 28.09.2012 of the Court of Sessions, Thrissur Division.

(2.) THE prosecution case is that, on 09.11.2007, at about 23.45 hours, the accused persons, five in numbers, were found standing on the veranda of an old building situated on the north of 'Seven Seas' bar at Irinjalakuda and were making preparations for committing dacoity. On seeing the police personnel, accused Nos. 2 to 4 took to their heels and they were able to arrest only the 1st accused. On questioning, the 1st accused is alleged to have divulged the details of the accused Nos. 2 to 4 who had fled seeing the police officers. Later, Crime No. 868/2007 of Irinjalakuda police station was registered and after investigation, the charge was laid before the Judicial First Class Magistrate Court, Irinjalakuda. The learned magistrate committed the case for trial to the Court of Sessions, Thrissur Division and the case was taken cognizance of and numbered as S.C. No. 181/2009.

(3.) BEFORE the learned Sessions Judge, the prosecution examined only CWs 1 & 3 as PWs 1 & 2. PW1 was the then Assistant Sub Inspector and PW2 was the Police Constable who accompanied the Sub Inspector who arrested the first accused from the veranda of the shop room. During the trial as is evident from Annexure IV Judgment, PWs 1 and 2 stated that they had accompanied the Sub Inspector during the night patrol duty at 11.45 p.m. on 09.11.2007. But, they stated that they could not identify the 4 persons who had fled from the scene. The learned Sessions Judge after analysing the evidence of PWs 1 & 2, closed the evidence. It was held that the case of the prosecution cannot be improved even by examining the Sub Inspector, who was not available, and the accused were acquitted for no evidence under Section 232 of the Code of Criminal Procedure. After the acquittal, the case against the accused Nos. 1 & 4 were re -filed as S.C. No. 560/2012.