Fahad vs State Of Kerala And Ors

The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 19.08.2020, under Section 482 of the Code of Criminal Procedure (Cr.P.C.),

is as follows:-

…...........to quash Annexure AIII â€" final report (charge sheet) in C.P. No.21/2020 in (Crime No:377/'19 u/s 143, 147, 148, 452, 341,

323, 324, 308 r/w Sec.149 IPC of Walayar Police Station) pending before the Judicial First Class Magistrate Court-I, Palakkad and

thereby order to acquit the petitioner/3rd Accused of the charges alleged against him in the case.â€​

Heard Sri.Jimmy George, learned counsel appearing for the petitioner (A3), Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1st

respondent-State of Kerala and Sri.Nireesh Mathew, learned counsel appearing for contesting respondent No.2 (de-facto complainant).

The petitioner herein has been arrayed as accused No.3 among the six accused in the instant impugned Annexure-AII FIR in Crime No.377/2019

of Walayar Police Station, Palakkad District, for offences punishable under Secs.143, 147, 148, 452, 341, 323, 324, 308 & 149 of the Indian Penal

Code, on the basis of Annexure-AI First Information Statement given by the 2nd respondent-de facto complainant. The police after investigation have

submitted the impugned Annexure-A3 final report/charge sheet in the said Crime No.377/2019 of Walayar Police Station, which has now led to the

pendency of committal proceedings in C.P.No.21/2020 on the file of the Judicial First Class Magistrate’s Court-I, Palakkad.

The case of the petitioner is that the abovesaid allegations have been falsely foisted against him. The petitioner is an young man hardly aged 21

years. That the petitioner’s father (who is accused No.1 in Annexure-AII crime) is an activist and leader of the Left Democratic Front (LDF) in

the locality and that the 2nd respondent is an activist and leader of the United Democratic Front (UDF) in the said locality and that the petitioner’s

family and the 2nd respondent’s family are living in the immediate neighbourhood. That there existed political difference of opinion between the

petitioner’s father and the 2nd respondent and it is only on account of such political disputes, that the 2nd respondent has raised false allegations,

particularly, against the petitioner, who has nothing to do with the abovesaid allegations. Further that, in relation to the very same incident, which is said

to have happened on 09.11.2019 at about 10.15 p.m. in the night, the truth of the matter is the other way around and that the 2nd respondent herein

and two others had assaulted the petitioner’s mother and his father by trespassing into their house on 09.11.2019 at about 10.15 p.m. and that the

said accused persons had hit the said victims with an iron rod and the 3rd accused therein had kicked on the chest of the petitioner’s mother and

seeing this, the petitioner had intervened and he was assaulted and the 1st accused therein had stabbed on the chest of the petitioner’s father with

an iron rod and but for his evasion he would have died, etc. That the petitioner’s family had consistently approached the police authorities to get

crime registered in respect of the said incident and the police had not acted upon the same and the petitioner’s mother was then constrained to file

a private criminal complaint as C.M.P No.566/2020 before the Judicial First Class Magistrate’s Court-I, Palakkad, in which the learned Magistrate

has directed the police to register a crime and to conduct an investigation. It is only thereafter, that Annexure-AIV FIR in Crime No.22/2020 of

Wayalar Police Station has been registered. Whereas the complaint of the 2nd respondent was immediately acted upon by the police, which led to the

registration of the instant Annexure-AII Crime No.377/2019 of Wayalar Police Station in which the petitioner has been arrayed as accused No.3.

The main contentions urged by the petitioner are to the effect that he has not done any criminal acts, so as to warrant his inclusion as an accused in

Annexure-AII and in fact, he is a victim of the said incident, as can be seen from Annexure-AIV. Further that, he is undergoing BBA Degree course

in Aviation Management in an institution in Coimbatore and that he has got an academically brilliant career, as can be seen Annexure-AV certificate.

Further that, he has no further criminal antecedents at all and he is not involved in any politics and that the only motive of the 2nd respondent is to

implicate the petitioner also at any cost, in order to have a bargaining at with the petitioner’s father, as the 2nd respondent has political scores to

settle with the petitioner’s father. Further that, it is a specific case of the 2nd respondent in Annexures-AI & AII that all the other accused

persons had come to his house armed with sticks and weapons, whereas no allegations are raised as against the petitioner that he has carried any stick

or weapons and that the strange allegation made is that the petitioner had entered into the room of the 2nd respondent in the night and then had taken

the helmet of the 2nd respondent in the darkness and had hit him on his back and that the 2nd respondent has identified the petitioner in the darkness

with the help of a torchlight.

The specific case of the 2nd respondent in Annexures-AI & AII is that all the other accused persons were armed with deadly weapons and sticks

and that if that be so, it does not stand to any reason or logic that if as a matter of fact, the petitioner had also accompanied such accused persons,

then it would only be logical that he would also carry at least a stick, especially when the allegation is that the petitioner along with the other accused

persons had entered into the house of the 2nd respondent in the night to attack the de-facto complainant. Further that, the allegations that the petitioner

had found out a helmet of the 2nd respondent inside his bedroom in dark night, where the 2nd respondent was sleeping in the night, etc. is highly

incredible and lacks any believability and that the allegations that the petitioner had taken such a helmet and then hit the 2nd respondent on his back

and that the petitioner was identified in the pitch darkness on the basis of a torchlight, etc. appears to be lacking thorough credibility and has been

made only to make allegations for allegations sake, in order to implicate the petitioner at any cost, so that the 2nd respondent will get a bargaining with

his father for settlement of political scores and also to ensure that the petitioner’s mother will not press for any criminal prosecution against the

2nd respondent and the other accused persons. Further crucially, Sri.Jimmy George, learned counsel appearing for the petitioner would point out that

no evidence or allegations have been made in Annexures-AI & AII that the 2nd respondent has sustained any injury due to the alleged hitting said to

have been done by the petitioner with the helmet on the back of the 2nd respondent, etc. Further, it is pointed out by the petitioner’s counsel that

ordinarily in the scheme of things, no person may keep a helmet in the bedroom and ordinarily, it may be kept either in the front room, etc.

Various other submissions have also been made by Sri.Jimmy George, learned counsel appearing for the petitioner (A3).

Per contra, learned Public Prosecutor appearing for the 1st respondent-State of Kerala and Sri.Nireesh Mathew, learned counsel appearing for

contesting respondent No.2 (de-facto complainant) has made submissions and has urged that at this stage it cannot be stated that the involvement of

the petitioner in the above said criminal proceedings is not disclosed and that the materials justifying the inclusion of the petitioner also as one among

the accused persons and that no interdiction is called for at this stage as the matter requires evidence, etc.

After hearing both sides and after going by the materials on record, it is seen that the specific case of the 2nd respondent (de-facto complainant) in

Annexure A-I FIS, Annexure-AII FIR and Annexure A-III, Final Report is that all the accused persons other than the petitioner herein (A3) were

armed with deadly weapons like sticks and therefore it does not stand to reason of logic that if as a matter of fact, the petitioner had also accompanied

such persons acting in concern with them and with the intent to assault and commit the abovesaid offences in question as against the 2nd respondent

and his family members, then it would only be logical and he would also have carried atleast a stick, especially when the allegations are to the effect

that the petitioner (A3) along with other accused persons is also alleged to have entered into the house of the 2nd respondent in the dark of the night to

attack the 2nd respondent (de-facto complainant). The prosecution does not have a case that the petitioner had carried any deadly weapon or atleast a

stick in the alleged scene of occurrence is rather conspicuous and would also speak volumes in that regard. Further the prosecution case is that the

petitioner (A3) had found out a helmet of the 2nd respondent inside his bed room where the 2nd respondent was sleeping in the night at about 10.15

p.m.

The version of the prosecution that the petitioner (A3) had entered into the bed room of the 2nd respondent in the dark night and then had

identified and found out the helmet of the 2nd respondent lying there and then had used it to hit on the back of the 2nd respondent, etc. appears to be

rather bereft of any strong credibility or believability.

Going by the said case of the prosecution, the petitioner is also alleged to have arrived at the scene of occurrence along with the other accused

persons with the intent to assault the 2nd respondent and that therefore, he had entered into the bed room of the 2nd respondent in the dark night and

had identified and found out the helmet of the 2nd respondent lying in the said bed room and then he used it to hit on the back of the 2nd respondent If

the petitioner could be imputed with any such intention to physically assault the 2nd respondent by going to the scene of occurrence as alleged by the

prosecution, then it only stands to elementary logic and reason that such a person having such a mens rea would have certainly taken atleast a stick

and then gone to the scene of occurrence so as to assault the 2nd respondent. It lacks credibility to allege that such a person had gone to the scene of

occurrence but with the intention to assault the 2nd respondent and then he would have found out that a helmet is lying in the bed room of the 2nd

respondent and then had used it to hit on the back of the 2nd respondent, etc. A person with such an alleged mens rea as per the prosecution case,

cannot reasonably expect that helmet of the 2nd respondent be found there and that too in the bed room to be used as an object or weapon for

attacking the 2nd respondent.

Of course, in the introductory part of Annexure A-I FIS, there was a generalised remark that the accused persons (all the accused persons)

therein had come to the scene of occurrence with deadly weapons like iron rod, sticks, etc. However, a reading of the description and narration of the

incidents in the FIR would make it clear that the specific allegations of the 2nd respondent was to the effect that the accused persons other than the

3rd accused had carried iron rods and sticks, etc. and that the petitioner (A3) had entered into the bed room of the 2nd respondent and that then hit on

the back of the 2nd respondent using the abovesaid helmet, etc.

A reading of the FIS would make it clear that even going by the prosecution case, the petitioner (A3) was not carrying any weapons like iron rods,

sticks, etc. Further, there are no allegations or materials in the impugned criminal proceedings at Annexures-AI to AIII to disclose that the 2nd

respondent has allegedly sustained injury due to the alleged hitting said to have been done by the petitioner with the helmet on the back of the 2nd

respondent, etc. Further, it has also to be borne in mind that the mother of the petitioner is the first informant/lady de-facto complainant in Annexure-

AIV, FIR in crime No.22/2020, registered in the same police station (Walayar Police Station), in which the 2nd respondent herein and two others are

arrayed as accused in respect of the incidents which have said to happened on the same day at the same time, viz., 09.11.2019 at 10.15 p.m.

The case of the said lady de-facto complainant, who is the mother of the petitioner herein is that the rival parties are living in the immediate

neighbourhood and that on 09.11.2019 at about 10.15 p.m., the accused persons therein, including the 2nd respondent had knocked on her door and

had entered the premises and had assaulted her and had pressed on her neck and the 2nd accused therein (2nd respondent herein) had tried to tear

her dress and the 3rd accused therein had pushed on her chest and thereupon when her husband (1st accused herein), who is the father of the

petitioner herein, had come there, he was attacked by the accused persons including the 2nd accused by using iron rods and then, giving up the

commotion, the petitioner herein, who is the son of the de-facto complainant therein, had also arrived at the scene of occurrence and that he was also

assaulted by the accused persons therein, etc. The further case of the lady de-facto complainant therein is that thereafter her husband was

hospitalized and they had tried their level best to get the FIS and FIR lodged as against the accused persons therein but the police had not taken any

steps and even the application dated 13.11.2019 submitted by her before District Police Chief has also not been considered and thereupon she was

constrained to file Annexure-AVIII, private criminal complaint dated 21.01.2020 before the Judicial First Class Magistrate's Court-I, Palakkad, in

which the learned Magistrate, in exercise of his powers under Sec.156(3) of the Cr.P.C., had directed the police to register the crime and conduct

investigation thereon. It is only with the said judicial interdiction that the police had ultimately registered Annexure-AIV, FIR in crime No.22/2020 on

23.01.2020, in which the mother of the petitioner is the lady de-facto complainant/first informant and 3 other persons including the 2nd respondent

herein have been arrayed as accused persons therein.

So, it can be seen that the rival parties are living in the immediate neighbourhood and counter allegations are made at the instance of the 2nd

respondent herein as de-facto complainant in the proceedings at Annexures-AI to AIII on the one hand and that in Annexures-AVIII & AIV on the

other hand, as per the versions of the mother of the petitioner herein as the lady de-facto complainant therein, etc.

Thus, taking into account the totality of the facts and circumstances of the case, it can be seen that the relationship between the above said two

rival families, who were living in the immediate neighbourhood, were quite strained and presumably on account of certain incidents of disputation

between these two rival families, some events would have occurred and the allegations as against the 2nd respondent made by the prosecution in this

case would not necessarily have occurred in the manner as suggested by the prosecution in Annexures-AI to AIII on the one hand or as per

Annexures-AVIII & AIV on the other hand, in its entirety.

The petitioner is also said to have been assaulted by the accused persons in the counter case in Annexures-AVIII & AIV. It may not be totally far

off the mark to envisage that in situations of this nature, the petitioner herein, who is a 21 year old son of the lady de-facto complainant in Annexure-

AIV, may also have responded when the commotion was happening seeing the plight of his mother and going by the versions in both the case and the

counter case, commotions had then have been occurred.

In the light of these specific aspects and even going through the prosecution case in Annexures-AI to AIII, the petitioner was not carrying any

weapon like iron rod or sticks, etc. in the scene of occurrence, this Court is constrained to take the view that the involvement of the petitioner herein in

the present impugned criminal proceedings may not be in the manner as attributed and suggested by the prosecution and could have happened in some

other manner. It is all the more so, in view of the commotions that had happened as projected in both the present case as well as the counter case.

Further, it is to be borne in mind that the petitioner is a 21 year old young man and he is undergoing BBA degree course in Aviation Management in an

institution in Coimbatore. Annexure-AV is the certificate regarding the academic performance of the petitioner in the Higher Secondary Course. The

prosecution has no case that the petitioner has any criminal antecedents.

From a reading of Annexure-AI, FIS it can be seen that the case projected by the 2nd respondent is that the incidents would have happened on

account of the political disputes between the parties.

The prosecution has no case that the petitioner, who is studying for BBA course in, is involved in any politics in the locality concerned. Further, a

reading of Annexure-AI, FIS would make it clear that all the serious allegations therein are directed as against the other accused persons concerned

and the only allegation raised against the petitioner is that he had hit on the back of the 2nd respondent using helmet of the 2nd respondent, which was

then kept in his room. The prosecution has no case that the 2nd respondent has suffered any injury on account of the alleged act in hitting on his back

using helmet, etc.

The learned counsel appearing for the petitioner would also point out that the petitioner herein, who is a student of BBA in Coimbatore, has been

implicated in this case only to enable the 2nd respondent to get a bargaining edge in the abovesaid case and counter case.

On an evaluation of the totality of the facts and circumstances of the case, this Court is inclined to take the view that atleast as far as the

allegations raised as against the petitioner herein (A3) by the prosecution in this case, may not have happened in the manner as put forward and

suggested by the prosecution and could have happened in some other manner.

However, it is made clear that the impugned committal proceedings C.P. No.21/2020 on the file of the Judicial First Class Magistrate’s Court-

I, Palakkad, which has emanated from Annexure-AIII, final report/charge sheet, as against the other accused persons therein as well as the matter

relation to Annexure-AVIII and Annexure-AIV, FIR, may go on in accordance with law and untrammeled and uninfluenced in any manner by the

observations and findings made by this Court in this criminal proceedings. The abovesaid findings and observations made by this Court hereinabove

has been made only to the limited context to decide as to whether the impugned criminal proceedings, to the limited extent it is directed as against the

petitioner herein (A3) is liable for interdiction.

Taking into account the abovesaid facts and circumstances as well as the extenuating circumstances in this case that the petitioner is a 21 year old

young man studying for BBA course in Coimbatore and who has not been involved in any politics in the locality and also that he has no criminal

antecedents, etc., this Court inclined to take the view that interdiction could be considered in regard to the impugned criminal proceedings to the limited

extent it is directed as against the petitioner herein (A3). In that view of the matter it is ordered in the interest of justice that the impugned Annexure-

AIII, final report/charge sheet filed in Annexure-AII, FIR in crime No.277/2019 of Walayar Police Station, which has now led to the pendency of

committal proceedings C.P. No.21/2020 on the file of the Judicial First Class Magistrate’s Court-I, Palakkad, to the limited extent it is directed as

against the petitioner herein (A3) and all further proceedings emanating therefrom to the limited extent it is directed as against the petitioner herein

(A3) will stand quashed and set aside.

The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class

Magistrate's Court-I, Palakkad, who is dealing with C.P. No.21/2020 for necessary information.

With these observations and directions, the above criminal miscellaneous case will stand disposed of.