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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ashok Menon, J.
Sunil Raj, Corrected As Susil Raj - Appellant
Versus
Gopan S/o. Manual - Respondent
Crl.Mc.No.1797 of 2017
Decided On : 30-06-2020
Criminal Procedure Code-Section 173(2), Section 173(8), Section 299, 319 -When the absconding accused is apprehended and tried later, the Court has necessarily to consider legally available evidence and cannot adopt the easy course of acquittal on the premise that the co-accused was acquitted. As long as no inconsistencies or contradictions or infirmities were brought out to discredit the witnesses, merely because the co-accused was acquitted in a prior trial, the case against the absconding accused cannot be thrown out at the threshold. The case of the absconding accused should be tried and decided on its merits unless the evidence was specifically recorded under Section 299 of Cr.P.C. Merely because the co-accused was acquitted, the Court cannot ignore the evidence against the absconding accused and jump to the same conclusion as in the case of the co-accused.
Statement of facts:
The filing of the final report under Section 173(2) of Cr.P.C. in a crime would result in closing of the proceedings against all persons arrayed as accused and that can only be one final report in a criminal case. Despite the fact that the petitioner was absconding, he should have been arrayed as an accused in the final report, which the investigating officer failed to do. The investigating officer cannot reserve his right to further investigate a crime against the petitioner alone and file a second final report at a later stage. It is also contended that the appeal judgment at Annexure-8 has now become final and unchallenged and the findings therein would be applicable in the case against the petitioner as well-The prosecution could have invoked the provisions under Section 319 of Cr.P.C.
to proceed against the petitioner even when the trial was pending
Finding of the court:
The appreciation of evidence in the case against the 1st accused cannot be considered favourably to quash the proceedings against the petitioner, who is a 2nd accused. It has to be borne in mind that the investigation is not yet complete against the petitioner and the final report has not yet been filed. There is possibility of further evidence being gathered against the petitioner. The absconding 2nd accused cannot take advantage of the acquittal of the 1st accused, who has faced a trial before the Court of the Magistrate and was also convicted in the first instance.
Result: Crl.M.C. dismissed.
ORDER :
The petitioner is the 2nd accused in Crime No.193/2013 of Valiyamala Police Station (Annexure-2), a case which was registered on 16.04.2013. The petitioner's father was the 1st accused. After completing the investigation, Annexure-4 final report was filed as against the 1st accused alone, because the petitioner was at that time reported to be absconding. Judicial First Class Magistrate Court-I, Nedumangad took cognizance of the case against the 1st accused alone as C.C.No.1493/2013 for having allegedly committed the offences punishable under Sections 341, 323, 324 and 427 read with Section 34 of I.P.C. and under Section 27 of the Arms Act. In the above- mentioned final report, the investigating officer had mentioned that the 2nd accused was absconding with the weapon, which could not be recovered, a separate final report against him would be filed soon after he is apprehended. However, the petitioner was never arrested and the final report against him is yet to be filed.
2. The trial against the 1st accused proceeded before the Judicial First Class Magistrate Court-I, Nedumangad and vide judgment dated 22.09.2015 at Annexure-7 the trial court found him guilty of committing the offences punishable under Sections 323, 324 and 341 of I.P.C.; while acquitting him for rest of the offence in the charge sheet.
3. The convicted 1st accused challenged Annexure-7 judgment by filing Crl.Appeal No.299/2015 before the Additional Sessions Court-II, Thiruvananthapuram. The appeal was allowed, the conviction and sentence was set aside and the appellant/1st accused was acquitted vide Annexure-8 judgment.
4. The petitioner has filed this Crl.M.C. under Section 482 of Cr.P.C. seeking to quash Crime No.193/2013 of Valiyamala Police Station as against him. He would contend that the 1st respondent/defacto complainant, who is his neighbour, pestered his mother often and when his father questioned him about the indecent behaviour, an altercation ensued. The petitioner's father even gave a statement in this regard to the police as Annexure-1. In fact, it was the 1st respondent, who had assaulted the petitioner's father and not as alleged in the crime. The 1st respondent's brother-in-law was then working in the office of the District Police Chief and by exerting his influence, the petitioner and his father were falsely implicated in the crime accusing them of assaulting the defacto complainant. The falsity of the allegations is revealed by the fact that initially Section 326 of I.P.C. was incorporated, though Annexure-3 wound certificate did not reveal any grievous hurt. Because of this false allegation made initially, the 1st accused had to undergo the humiliation of being incarcerated in judicial custody. No sooner did the 1st accused get released on bail, the offence under Section 326 of I.P.C. was deleted by the investigating officer. This act would further substantiate the allegation that the crime was registered with ulterior motive. In the meanwhile, the petitioner had secured a job abroad. The 1st respondent had deliberately implicated the petitioner with mala fide intention to spoil his chances of going abroad. Annexure-8 judgment of the appeal court has discussed about all these infirmities in the prosecution case in great detail. Annexures 5 & 6 are the copies of the depositions of the witnesses examined in the trial indicating that they had turned hostile. The conviction of the 1st accused by the learned Magistrate was based on the sole uncorroborated testimony of the 1st respondent. The appeal court has disbelieved the testimony of the 1st respondent and has also pointed out the infirmities in the investigation in its judgment.
5. It is the contention of the petitioner that subjecting the petitioner to trial afresh on the basis of the flawed F.I.R. and investigation is sheer wastage of judicial time and an exercise in futility. A repeat of the evidence that is adduced against the 1st accused would only lead to acquittal of the petitione
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