Mohammed Shereef vs State of Kerala

Thomas P. Joseph, J.—Petitioner is third accused in C.C. No. 306 of 2002 of the court of learned Judicial First Class Magistrate, Tirur arising from the final report in Crime No. 198 of 1999 of Tirur Police Station for offences punishable under Sections 448, 341 and 323 read with 34 of the Indian Penal Code. Petitioner wants proceeding against him to be quashed on the strength of acquittal of accused 1 and 2 as per Annexure-AI, judgment on 23.04.2002. Learned Counsel requested that proceeding against Petitioner may be quashed. I have heard learned Public Prosecutor also.

It is seen from Annexure-AI, judgment that accused 1 and 2 were acquitted since P Ws 1 and 2, witnesses to the alleged incident refused to support prosecution. The prosecution was not able to procure presence of CW1, the injured. Acquittal of accused 1 and 2 was also for the reason that CW1 was not examined whatever be the reason thereof. Petitioner cannot seek acquittal based on acquittal of accused 1 and 2 since, CW1 who was not examined in C.C. No. 520 of 1999 (case against accused 1 and 2) if examined, may give evidence against Petitioner. In the circumstances the request cannot be allowed.

Resultantly this Criminal Miscellaneous Case is dismissed. It is open to the Petitioner to take up I appropriate defence before learned Judicial First Class Magistrate, Tirur.