Madras High Court
Balakrishnan vs The State Represented By on 18 September, 2019
Equivalent citations: AIRONLINE 2019 MAD 851
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD) No.22573 of 2018
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 18.09.2019
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P (MD) No.22573 of 2018
and
Crl.M.P.(MD) Nos.10595 and 10596 of 2018
Balakrishnan ... Petitioner/A5
Vs
1.The State represented by
Inspector of Police,
Paramakudi Town Police Station,
Ramanathapuram District
crime No.417/1989.
2.Karmegam ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records pertaining the case in S.C.No.18/1994
on the file of the Additional District Judge, Fast Track Court,
Paramakudi and quash the charge sheet and all further proceedings.
For Petitioner : Mr.D.Shanmugaraja Sethupathi for
M/s.Sarvabhauman associates
For Respondents : Mr.K.Suyambulinga Bharathi, G.A
(Crl. Side)
1/14
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Crl.O.P.(MD) No.22573 of 2018
ORDER
This petition has been filed to quash the proceedings in S.C.No.18/1994 on the file of the Additional District Judge, Fast Track Court, Paramakudi, having been taken cognizance for the offences under Sections 147, 148, 323, 324, 325, 326, 427, 336 and 109 r/w 149 of I.P.C.
2.The learned counsel appearing for the petitioner submitted that there are totally 16 accused, in which, the petitioner arraigned as A5. On the basis of the complaint given by the 2nd respondent, a case has been registered in crime No.417 of 1989 and the 1st respondent completed the investigation and filed the final report and the same has been taken cognizance in C.C.No.152/1990 and thereafter, since this petitioner was living in abroad, his case was split up and as against the other accused, the case was taken on file in C.C.No.2207 of 1992 and the same was transferred to Judicial Magistrate No.1, Ramanathapuram and after committal, it was renumbered as S.C.No. 46 of 1993 and the case was conducted before the learned Additional District Judge, Fast Track Court, Ramanathapuram and the same was ended in acquittal vide judgment dated 13.12.1994. 2/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018
3.The learned counsel appearing for the petitioner submitted that the case in C.C.No.152 of 1990 was committed to the Additional District Judge, Fast Track Court, Paramakudi and renumbered as S.C.No.18 of 1994 and since, the petitioner/A5 was living in Singapore, non bailable warrant has been issued as against him and the case is now pending. The trial Court acquitted the other accused on the ground that the prosecution did not prove the case beyond doubt.
4.The learned counsel appearing for the petitioner further submitted that no witness has spoken about the specific overt act of the accused person and the trial Court also in its judgment dated 13.12.1994 made in S.C.No.46 of 1993 categorically concluded that that no one has spoken about A5 and as such, as against the petitioner/A5, there is absolutely no evidence and the pendency of the proceedings in S.C.No.18 of 1994 would not serve any purpose and therefore, he prayed for quashment of entire proceedings.
5.The learned Government Advocate (criminal side) would submit that there are totally 16accused, in which, the petitioner is arraigned as A5 and only because of the absence of the petitioner 3/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 before the trial Court, his case has been split up from the main case, which was ended in acquittal vide judgment dated 13.12.1994 made in S.C.No.46 of 1993. Therefore, the prosecution has to let in evidence and they have incriminating evidence as against the petitioner and as such, he sought for dismissal of the quash petition.
6.Heard the learned counsel appearing for the petitioner and the learned Government Advocate (criminal side) appearing for the 1st respondent.
7.It is the admitted case of the petitioner as well as the prosecution that there are totally 16 accused, in which, the trial has been conducted in S.C.No.46 of 1993 insofar as A1 to A4 and A6 to A16 and they have been acquitted and insofar as A5/the petitioner is concerned, since non bailable warrant is pending as against him, the case has been split up and the same is pending for trial in S.C.No.18 of 1994. All the accused have been charged for the offence under Sections 147, 148, 323, 324, 325, 326, 427, 336 and 109 of I.P.C. The The trial Court recorded the reason for acquittal as follows: 4/14
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Crl.O.P.(MD) No.22573 of 2018
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8.In this regard, it is relevant to rely the judgment reported in 2007-1 L.W.(Crl.) 514 – Tamilmaran Vs. The State rep. by Inspector of Police, Paravakottai Police Station, Mannargudi Taluk, Thiruvarur District, where, this Court has held as follows:
“7. This Court is of the considered view that there is much force on the contention put forward by the learned senior counsel to the effect that the learned trial Judge having disbelieved the prosecution case in toto no useful purpose would be served by putting the petitioner to undergo the ordeal of trail on the basis of the very same set of 8/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 evidence. It is also pointed out by the learned senior counsel that even the defacto complainant himself turned hostile giving a total go-by to his earlier version and there is no other material available on record to implicate the petitioner. The learned senior counsel has rightly placed reliance on the decision of the Delhi High Court in a case in Sunil Kumar v. State reported in 2000 (1) Crimes 73 wherein it is held as follows:
“3. The question thus is as to whether in the face of the judgment of acquittal the petitioner should still be permitted to undergo the ordeal of a trial. In Sat Kumar v. State of Haryana (AIR 1974 SC 294), it was held that there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of evidence of that witness must be acquitted. (See also Har Prasad v. State of Madhya Pradesh (AIR 1971 SC 1450,) Makan Jivan v. State of Gujarat (AIR 1971 SC 1797) Mohd. Moin Uddin V. State of Maharashtra (1971 S.C.C.(Cri.) 617). But where the evidence 9/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.
4. On perusal of the Judgment of acquittal dated 19.01.1998 it appears that the deceased Balwan Singh met with a homicidal death owing to burn injuries sustained by him has not been disputed by the accused persons. The evidence against the accused persons mainly consists of the evidence of the eye-witnesses, namely, Karan Singh (PW2) and Smt. Asha Rani(PW-5) (Wife of the deceased Balwan Singh) besides the dying declaration (Ex.PW-13/a) of the deceased Balwan Singh. Both the said witnesses have not supported the prosecution case and so they have been declared hostile by the prosecution.
Eliminating the evidence of the said eye-
witnesses, there remains the dying declaration (Ex.PW.13/A) of the deceased Balwan Singh, which has been disbelieved by the learned Addl. Sessions Judge. It would, therefore, appear that the accused persons, 10/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 namely, Jangli Tyagi, Balbir Singh, Anil Kumar Tyagi and Sushil Kumar Tyagi were acquitted on the ground of insufficiency of evidence. Thus, the evidence adduced in the case against all the accused persons is inseparable and indivisible and that being so the petitioner cannot be treated differently on the basis of the said evidence. In this view of the matter, there is no prospect of the case ending in conviction against the petitioner and the valuable time of the Court would be wasted for holding trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. If the Court is almost certain that the trial only would be an exercise in futility or sheer wastage of time, it is advisable to truncate or ship the proceedings at the stage of Section 227 if the Code itself.”
9.Further, this Court and various High Courts repeatedly held that the acquittal of the other co-accused, after considering the depositions and holding their evidence to be unreliable, the trial Court cannot re-assess their depositions once again and take a contrary view. Therefore, this Court is of the considered view that the above 11/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 settled proposition of law laid down in the above decision is squarely applicable to the case on hand.
10.In the present case, except the petitioner, other accused viz., A1 to A4 and A6 to A16 have been tried the charges and acquitted in S.C.No.46 of 1993 by the trial Court by the judgment dated 13.12.1994 disbelieving the case of the prosecution and holding that the prosecution has failed to prove the charges beyond reasonable doubt. The petitioner being A5 is also standing in the same footing like the other accused persons. Under these circumstances, no useful purpose would be served to make the petitioner to undergo the ordeal of the trial.
11.In view of the above discussion, this criminal original petition is allowed and the proceedings in S.C.No.18 of 1994 on the file of the Additional District Judge, Fast Track Court, Paramakudi, is quashed as against the petitioner/A5 is concerned. Consequently, connected miscellaneous petitions are closed.
18.09.2019 Internet:Yes Index:Yes Arul 12/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 To
1.The Inspector of Police, Paramakudi Town Police Station, Ramanathapuram District.
2.The Additional District Judge, Fast Track Court, Pramakudi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
13/14 http://www.judis.nic.in Crl.O.P.(MD) No.22573 of 2018 G.K.ILANTHIRAIYAN, J.
Arul Order made in CRL.O.P (MD) No.22573 of 2018 18.09.2019 14/14 http://www.judis.nic.in