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2025 DIGILAW 909 (KER)

Shahul Hameed S/o. Muhammed v. State Of Kerala

2025-04-08

C.S.SUDHA

body2025
JUDGMENT : Crl.M.A.No.1 of 2024 in Crl.Appeal(V) No.68 of 2024 This is an application filed under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the appeal. 2. In the application it is alleged thus – The aforesaid criminal appeal has been filed against the judgment of the Additional Sessions Judge-V, Palakkad, dated 22/11/2013 in S.C.No.12/2009. The appeal ought to have been filed on or before 22/01/2014. However, the applicant was under the impression that S.C.No.12/2009 had not been taken up for trial because had it been taken up for trial, he being the complainant/injured would have been served with summons to appear before the court to adduce evidence. The applicant received summons to appear before the Additional Sessions Judge-III, Palakkad, on 07/09/2024 as a witness in the connected case, that is, S.C.No.503/2008. Only then on making enquiries, he came to know that S.C.No.12/2009 had been disposed of on 22/11/2013 and the accused acquitted without examining him. Immediately thereafter, steps were taken to challenge the judgment. Hence, the delay of 3202 days in filing the appeal. 3. The application is opposed by respondents 2, 3 and 4, who have also filed objections. 4. During the course of hearing, it was submitted by the learned counsel for the applicant/appellant that the connected case, that is, S.C.No.503/2008 is pending trial. Hence, the trial court was directed to give a report as to the stage of the case as well as forward copies of the relevant prosecution records including the committal order in the case. The report showed pendency of another case also, that is, S.C.No.555/2009. As none of the parties were able to give a clear picture regarding the connected cases stated to be pending between the parties, a further report was called for and copies of the records in that case were also directed to be forwarded. From the records now received, the following facts are revealed. 5. The applicant herein filed a private complaint, that is, CMP No.2060/2004, before the jurisdictional magistrate alleging the commission of the offences punishable under Sections 307, 326 read with Section 34 IPC against four accused persons, that is, respondents 2 to 4 herein. From the records now received, the following facts are revealed. 5. The applicant herein filed a private complaint, that is, CMP No.2060/2004, before the jurisdictional magistrate alleging the commission of the offences punishable under Sections 307, 326 read with Section 34 IPC against four accused persons, that is, respondents 2 to 4 herein. The allegations in the complaint are as follows – Accused 1 to 3, who are siblings, that is, Moidu ; Hameed; Mustafa along with their relative, the fourth accused, that is, Abdu Rahiman, due to their enmity towards the complainant, and with the intention of causing his death, on 31/03/2004 at about 11 p.m. while he was a pillion-rider in the motorcycle ridden by his friend Babu, came in a jeep from behind and intentionally dashed against the motorcycle, as a result of which he and Babu fell down and sustained grievous injuries. The complainant was admitted in the Elite Mission hospital, Thrissur, and his friend Babu in a hospital at Pattambi. As no proper investigation was conducted by the police, he filed the complaint alleging the commission of the offences punishable under the aforementioned Sections. 6. After complying with the necessary formalities, the jurisdictional magistrate committed the case to the Court of Session, Palakkad (C.P.No.37/2005). The case was taken on file as S.C.No.12/2009 and made over to the Court of the Additional Sessions Judge-V, Palakkad, for trial and disposal. Before the trial court, A1, A2 and A4 appeared. A3 failed to appear and hence the case against him was split up and refiled. After complying with the necessary formalities, a charge under the aforementioned Sections was framed, read over and explained to the accused persons to which they pleaded not guilty. During the pendency of the trial, A1 absconded and hence the trial proceeded against A2 and A4 alone. It is reported that S.C.No.832/2014, that is, the split case against A1 is pending consideration before the Court of Additional Sessions Judge-V, Palakkad. As far as the case against A3 is concerned, the same is pending in the long pending register as L.P.No.14/2011 on the file of the Judicial First-Class Magistrate Court, Pattambi. 7. On behalf of the prosecution, PWs.1 to 4 were examined and Ext.P1 and MO.1 to MO.11 were marked. A2 and A4 were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. 7. On behalf of the prosecution, PWs.1 to 4 were examined and Ext.P1 and MO.1 to MO.11 were marked. A2 and A4 were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied any involvement in the crime. The trial court found no evidence to find the accused persons guilty of the offences alleged against them and hence as per judgment dated 22/11/2013 acquitted A2 and A4 under Section 235(1) Cr.P.C. 8. From the records forwarded to this Court by the trial court, it is seen that there were two other cases in which also the applicant herein is the complainant/informant. They are S.C.No.503/2008 and S.C.No.555/2009. In S.C.No.503/2008, the offences alleged are punishable under Sections 279 and 337 IPC. As per the FIS in the said case, it is alleged that on 06/09/2004 around 10:30 a.m. while the informant along with his wife was going in his Maruti car bearing registration no.KL-09/J-9356 from Pattambi to his home, and when he reached the College bus stand situated at Pattambi-Palakkad public road, an ambassador car bearing registration no.KL-11/A-7790 coming from the opposite direction, hit/dashed against his car on the right side. The car was driven by Moidu (A1), S/o. Khader Haji. For the past one year, Moidu has been in inimical terms with him. The intention of A1 was to murder him as he had not heeded to the request of the former to join NDF. On an earlier occasion also, that is on 31/03/2004 at 10 p.m., A1 had attempted to murder him while he was riding a motorbike. A1 who came in a jeep, tried to knock him down. He was injured and admitted in Elite Mission hospital, Thrissur for 10 days. His treatment continues. Several times A1 had threatened to do away with him. A1 was implicated in a case involving arson of a police jeep. A1 is also in the rowdy list of Pattambi police station. The informant and his wife were injured in the incident and damages were caused to the car. He apprehends that A1 will again attempt to murder him. 9. Based on the aforesaid FIS, Crime no.353/2004, Pattambi police station, was registered on 06/09/2004 alleging the commission of offences punishable under Sections 279, 337, 427 and 307 IPC. The informant and his wife were injured in the incident and damages were caused to the car. He apprehends that A1 will again attempt to murder him. 9. Based on the aforesaid FIS, Crime no.353/2004, Pattambi police station, was registered on 06/09/2004 alleging the commission of offences punishable under Sections 279, 337, 427 and 307 IPC. The trial court as per judgment dated 13/11/2024, found the accused, namely, Moidu @ Kunju Moidu (A1 herein), guilty of the offences punishable under Sections 279 and 337 IPC and hence convicted him accordingly. 10. S.C.No.503/2008 was tried simultaneously with S.C.No.555/2009 which in turn is based on a private complaint, that is, Crl.M.P.No.5166/2004, filed by the applicant herein against A1 herein before the Judicial First Class Magistrate Court, Pattambi, alleging commission of the offences punishable under Sections 279, 337, 427 and 307 IPC. The allegation is that the accused (A1 herein) due to his enmity towards the complainant and with the intention of murdering him on 06/09/2004 at around 10:30 a.m. while the latter was going in his Maruti car bearing registration no.KL-09/J-9356, the former coming from the opposite direction in the ambassador car bearing registration no.KL-11/A-7790, dashed on his Maruti car resulting in causing injuries to him, pursuant to which he was admitted in the hospital for several days. The magistrate after complying with the necessary formalities, took the case on file as C.P.No.84/2006 for commission of offences punishable under Sections 279, 337, 427 and 307 IPC and thereafter committed the case to the Court of Session, which court took the case on file as S.C.No.334/2009. Initially, the accused absconded and hence the case was transferred to the long pending register as L.P.No.19/2013. Thereafter, the accused was arrested and produced and then the case was numbered as S.C.No.555/2009. The Additional District and Sessions Judge-III, Palakkad, by judgment dated 13/11/2024, found no evidence to find the accused guilty of the offences under the aforementioned Sections and hence acquitted him under Section 235(1) Cr.P.C. 11. On going through the records in S.C.No.503/2008 and S.C.No.555/2009 it is evident that they are not in any way connected to the present case, that is, S.C.No.12/2009. The incident in S.C.No.12/2009 took place on 31/03/2004 at around 11:00 p.m. and there are four accused in the crime. In S.C.No.503/2008 and S.C.No.555/2009, there is only one accused, that is, A1 herein. On going through the records in S.C.No.503/2008 and S.C.No.555/2009 it is evident that they are not in any way connected to the present case, that is, S.C.No.12/2009. The incident in S.C.No.12/2009 took place on 31/03/2004 at around 11:00 p.m. and there are four accused in the crime. In S.C.No.503/2008 and S.C.No.555/2009, there is only one accused, that is, A1 herein. The incident in S.C.No.503/2008 and in S.C.No.555/2009 took place on 06/09/2004 at around 10:30 a.m. S.C.No.503/2008 is a police charge case whereas S.C.No.555/2009 is based on a private complaint, which was later committed to the Court of Session. 12. R2 to R4 herein, have filed objections stating that no cogent reasons have been furnished for condoning the long delay in filing the appeal. R4 has contended that PW2, the rider of the bike in which vehicle the applicant is alleged to have been travelling, had turned hostile to the prosecution case. It is also contended that PW2 had filed a claim petition before the Motor Accident Claims Tribunal and had obtained compensation. Hence the attempt of the applicant/appellant is to create a ground for claiming compensation before the Motor Accident Claims Tribunal. Exts.D1 and D2 in S.C.No.12/2009 are the copies of the claim petitions filed by the applicant/appellant and the other injured before the Motor Accident Claims Tribunal, Ottapalam. Ext.D3 is the copy of the order in Ext.D2 claim petition. 13. The allegation that the applicant/appellant was under the impression that S.C.No.12/2009 was pending and realised that the same had been disposed of by the impugned judgment only when he received the summons in the connected case, S.C.No.503/2008, does not seem to be true. S.C.No.503/2008 is not connected to S.C.No.12/2009. Both deal with two different incidents. As stated earlier, S.C.No.12/2009 was taken on file based on a private complaint filed by the applicant/appellant himself, as the police, according to him, did not conduct proper investigation into the crime. It is difficult to believe that he never made any enquiries about the case filed by him for nearly nine years. There is delay of 3202 days, that is 8 years, 9 months and 5 days in filing the appeal. The delay has not been properly explained. Hence, I do not find sufficient reasons for condoning the delay. Therefore, the application for condonation of delay is dismissed. Crl.Appeal(V) No.68 of 2024 Crl.M.A.No.1/2024 for condonation of delay is dismissed. There is delay of 3202 days, that is 8 years, 9 months and 5 days in filing the appeal. The delay has not been properly explained. Hence, I do not find sufficient reasons for condoning the delay. Therefore, the application for condonation of delay is dismissed. Crl.Appeal(V) No.68 of 2024 Crl.M.A.No.1/2024 for condonation of delay is dismissed. Consequently, the appeal also stands dismissed. Interlocutory applications, if any pending, shall stand closed.