Rajesh George vs The State of Kerala

Thomas P. Joseph, J.—The second accused in C.C. No. 328 of 2007 and L.P. No. 68 of 2007 of the court of learned Judicial First Class Magistrate, Pala is the Petitioner before me. He, along with the first accused was charge sheeted by the Pala Police in Crime No. 412 of 2004 for offences punishable under Sections 452, 323, 324, 294(b) and 506(ii) read with Section 34 of the Indian Penal Code. Prosecution case is that on 09.08.2004 due to previous enmity to PW1, first accused came to the house of PW1 in a car driven by the Petitioner, trespassed into the house of PW1 and voluntarily caused hurt to P.Ws 1 and 2. Further allegation is that Petitioner/second accused trespassed into the varandha of the house and after the incident, facilitated escape of the first accused in the car. First accused faced trial and by Annexure-X, judgment was acquitted since the prosecution witnesses including the injured refused to support the prosecution case. Since Petitioner was abroad, case against him was split up and included in the Long Pending Register. Petitioner seeks to quash proceedings against him contending that there is no material to proceed against him. It is contended that there was a settlement between Petitioner and PW 1/defacto complainant. I have heard learned Counsel for Petitioner and the learned Public Prosecutor.

In Annexure-I, first information statement given by PW 1 there is no mention of Petitioner though, it is stated that first accused had come to the house of PW 1 in a car. Reference to the alleged involvement of Petitioner comes in Annexure-III, additional report filed by the Investigating Officer where it is stated that investigation revealed involvement of Petitioner as above stated. While the investigation was in progress, PW 1 has sworn an affidavit before a Notary Public (photocopy of which is Annexure-IV) stating that Petitioner is not involved in the incident and that Petitioner has been implicated at the behest of some Police Constables.

Petitioner has produced photocopy of deposition of P.Ws. 1 to 4. PW1 stated that he was assaulted; but he did not speak against Petitioner. P.Ws. 2 and 3 (son and wife of PW 1) stated that they have not seen the incident. In the affidavit sworn by PW 1 before a Notary Public it is stated that etitioner is not involved in the incident. PW1 cannot now successfully speak regarding alleged involvement of Petitioner in the light of the said affidavit. Annexure-X, judgment shows that P Ws 1 to 4 did not give any evidence against the first accused and accordingly, he was acquitted. In the circumstances I am inclined to think that the substratum of the prosecution case is destroyed by Annexure-X, judgment and evidence of P.Ws. 1 to 4 and the affidavit referred to above. In the circumstances I am inclined to allow this petition.

Resultantly Criminal Miscellaneous Case is allowed. Final report in Crime No. 412 of 2004 of Pala Police Station (to the extent it concerned Petitioner/second accused), cognizance taken thereon and proceeding against Petitioner in C.C. No. 328 of 2007 and L.P. No. 68 of 2007 of the court of learned Judicial First Class Magistrate, Pala are quashed.