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Judgment
Heard the learned counsel for the petitioner and also the learned SPP-II for the State. Perused the records.
The petitioner was originally arraigned as accused No.1 in C.C.No.3196/2008 along with accused No.2 on the file of the JMFC III Court
Mangalore, D.K. Due to the non availability of A1, a separate case was registered on spilt up charge sheet in C.C.No.879/2009 for the offences
under Sections 406 and 420 of IPC.
The present accused is an absconding accused. In fact, the trial Court had been making efforts to secure his presence by issuing attach warrants
etc. At this juncture the present petition is filed.
A perusal of the trial Court judgment in C.C.No.3196/2008 wherein the Trial Court has tried accused No.2 Smt.Savithri and acquitted her vide
order dated 21.3.2009.
Before adverting to the factual aspects of this case, it is worth to refer the decision in the case of Akhilesh Singh (supra), wherein, it was held
that:
Quashing of charge and discharge of the accused when an accused who alleged to have hatched conspiracy and who had motive to kill the
deceased were already discharged, that matter had attained finality, the discharge of co-accused by High Court by holding that no purpose would
be served in further proceeding with case against co-accused held proper.
In Muneer Ahmed Qureshi''s case (supra), this Court has held that: -
Entire case of the prosecution as against six accused is practically inseparable and individual one and especially when the Judgment of acquittal is
passed, when P.W.1 denies the entire incident or the role of the accused. This reasoning of acquittal would also definitely enure to the petitioner.
Even if the petitioner is tried there cannot be any other material other than what is already produced and considered by Trial Court. In such
circumstances it will be an exercise in futility to make the petitioner to undergo the ordeal of crime, and then to be acquitted. Holding that the
proceeding against the accused person who was absconding and subsequently against whom a split up charge sheet was filed was quashed.
The above said decisions make it abundantly clear that, when an acquittal order is passed in respect of one of the accused, the same benefit has
to be extended to another accused who has been spilt up from the case if the case material are practically inseparable in nature and indivisible in
nature, especially when the trial Court has considered the evidence projected by the prosecution and came to the conclusion that the prosecution
has not proved the case against the co-accused beyond reasonable doubt.
The learned SPP submits that the State has not preferred any appeal against the judgment of acquittal in C.C.No.3196/2008 dated 21.3.2009.
As could be seen from the charge sheet papers as well as the judgment of the Trial Court, the case of the prosecution is that, A1 and A2 at
about 12.00 am on 20.9.2007 at K.C Road Kumarangala, have approached CW1 and requested her to part with her golden chain to facilitate the
accused persons to attend a marriage function on the premise that the golden chain will be returned in a day or two. But when the accused did not
return the said golden chain, complaint came to be lodged by CW1 and after investigation charge sheet was laid under Sections 406 and 420 of
IPC.
The Trial Court has taken up the trial insofar as A2 is concerned, examined three witnesses-PWs 1 to 3, marked exhibits P1 to P10 as
documents and material objects as MOs 1 and 2 and thereafter appreciating the oral and documentary evidence, acquitted A2. Further it is seen
that the prosecution mainly has relied upon the evidence of PWs 1 to 3 who have not fully supported the case of the prosecution and therefore, in a
short judgment the trial Court has acquitted A2 holding that, the material witnesses CWs 1 and 2 have not fully supported the case of the
prosecution.
Looking into the above said facts and circumstance, as I have noted earlier the allegations against A1 and A2 are one and the same and
inseparable in nature. Further, the evidence led by the prosecution has already been considered and appreciated by the trial Court. No better
evidence can be led even if the trial is ordered to be continued against the petitioner. Under the above said circumstance, continuation of the
proceedings against the present petitioner afresh is a sheer waste of judicial time and it also virtually amounts to abuse of process of court.
Therefore, the impugned proceedings is liable to be quashed by ordering to extend the same benefit of acquittal to the petitioner herein (accused
No.1) is concerned, as rendered by the trial Court insofar as accused No.2 is concerned.
Hence, the following order :-
i) The petition is allowed;
ii) The case in C.C.No.879/2009 on the file of JMFC-III, Mangalore, D.K. against the petitioner for the offences under Sections 406 and 420 of
IPC and all further proceedings therein are hereby quashed.