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2008 DIGILAW 385 (MAD)

Thamilendi v. State

2008-02-04

K.N.BASHA

body2008
Judgment :- K.N. Basha, J. (1) - The learned Counsel for the petitioner submitted that the petitioner has been arrayed as A7 and originally there are 9 accused and they have been charged for the offence under Section 341, 323 and 149 r/w 302 IPC. (2) THE learned counsel for the petitioner submitted that except the petitioner herein, in respect of all the other accused, the case was split up and tried and ultimately ended in acquittal. The learned counsel for the petitioner submitted that the learned trial Judge has held, while acquitting the other co-accused that all the witnesses to the prosecution viz. , PWs 1, 2, 3 and 4 have not supported the prosecution case and they have been treated as hostile. The learned counsel further submitted that the further finding of the learned trial Magistrate is to the effect that even the other witnesses, viz. PWs5 and 6 have also turned hostile. It is submitted that the learned trial Judge has held that the prosecution is failed to prove the charges levelled under Section 148 I. P. C. against A1` to A3 and A5, under Section 147 i. P. C. against A4, A6 to A9 under Section 341 I. P. C. against Al to A9, under Section 324, I. P. C. against Al, A3 and A6, under section 323 I. P. C. against A4, A6 to A9, under Section 302 IPC against A3 and under Section 149 IPC against Al and A 2 and A4 to A9. It is contended by the learned counsel for the petitioner that as this accused was absconding, his case was split up separately and now the case is posted for trial in respect of the petitioner herein. It is contended by the learned counsel for the petitioner that in view of the learned trial Judge has given a finding to the effect that the prosecution has failed to establish its case in respect of all the charges including the charge for the offence under section 302 IPC, no useful purpose would be served by putting the petitioner herein to undergo the ordeal of trial and as such the proceedings initiated against the petitioner by splitting up the case is liable to be quashed. (3) THE learned Government Advocate (Criminal Side) submitted that there are totally 9 accused and the petitioner has been arrayed as A7 and as he was absconding his case was split up separately and rest of the other co-accused, viz. , Al to A-6, A8 and A9, the case was tried separately in S. C. No. 86 of 1999 and, the learned Principal Sessions judge, Tanjore, after the trial has come to the conclusion that the prosecution has failed to prove the charges against Al to A6, a8 and A9 in respect of the offence alleged against them. It is submitted by the learned government Advocate (Criminal Side) that the prosecution case is to the effect that all the accused said to have formed an unlawful assembly with intention to commit rioting and causing injury to the witnesses and a1 and A2 armed themselves with iron rods, a3 armed with aruval, A5 armed with cycle chain. A4, A6 to A9 armed with sticks and in furtherance of the common objection all the accused came there and obstructed the prosecution parties, assaulted the witness, pw3. It is further submitted that while attacking the witnesses, the deceased, Rama chandran intervened and sustained injury on his head at the hands of A3 as A3 beat the deceased on his head with the spade handle and thereafter he was admitted in the hospital and ultimately died on 19. 1. 91 at 5. 15 a. m. at Thanjavur Medical College hospital Thanjavur i. e. , three days after the occurrence. It is submitted by the learned government Advocate (Criminal side) that as far as the present petitioner A7 is concerned, he is only said to have assaulted a witness in this case and, he has not attacked the deceased. (4) I have carefully considered the rival contentions put forward by either side and also perused the materials available on record. (5) IT is seen that the petitioner has been arrayed as A7 out of 9 accused originally and as the petitioner was absconding the case was spilt up in respect of the other remaining accused, Al to A6, A8 and A 9. (5) IT is seen that the petitioner has been arrayed as A7 out of 9 accused originally and as the petitioner was absconding the case was spilt up in respect of the other remaining accused, Al to A6, A8 and A 9. The fact remains that as far as the case on hand is concerned, the main charge of 302 ipc is framed only against A3 as A3 alone said to have attacked the deceased with spade handle on the head of the deceased and as a result the deceased died three days after the occurrence. It is not disputed by the prosecution that the trial proceedings against the other accused, viz., Al to a6, A8 and A9 ended in acquittal as the learned Principal Sessions Judge, thanjavur, has acquitted all the other accused in a case in SC No. 86 of 1991 holding that the prosecution has failed to prove the charges levelled against them. It is pertinent to be noted that the learned trial judge, viz., Principal Sessions Judge, thanjavur, even acquitted A 3 who is said to have attacked the deceased with the weapon spade handle on his head, holding that the prosecution has failed to prove the charge under Section 302 against A3 in this case. As far as the present petitioner, who has been arrayed as A7 is concerned, there is no direct charge of 302 framed against him. Initially, the case of the prosecution is that he is a member of the unlawful assembly and thereafter, he is also one of the accused said to have attacked the injured witness. PW3. It is seen that all the witnesses, who have been examined on the prosecution side have been turned hostile including the eyewitnesses, PWs 1 to 4. (6) THE learned counsel for the petitioner placed reliance on a decision of this court in Tamilmaran v. State ( 2007 1 LW 514 (Cri)) to the proposition that in the event of acquittal of the other accused disbelieving the entire prosecution case, no useful purpose would be served for putting the petitioner to undergo the ordeal of trial. In that decision this Court placed reliance on a decision of Delhi High Court in Sunil kumar v. State wherein it is held as follows: "3. In that decision this Court placed reliance on a decision of Delhi High Court in Sunil kumar v. State 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 the 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 SCC (Cri.) 617. But where the evidence against all the accused persons is inseparable and indivisible and if some of the accused person 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. 1. 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 eyewitnesses, namely, Karan Singh (PW2) and Smt. Asha Rani (PW5) (Wife of the deceased Balwan Singh)besides the dying declaration (Ex. PW13a)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 eyewitnesses, there remains the dying declaration. (Ex. PW13a) of the deceased Balwan Singh, which has been disbelieved by the learned additional Sessions Judge. It would, therefore, appear that the accused persons, 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. 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 of the code itself. " (7) THIS Court has also placed reliance on yet another decision of the Karnataka High court Mohammed Ilias v. State of Karnataka taking the same view by following the decision rendered by the Delhi high Court Tamilmaran v. State (Supra). (8) THEREFORE, this court is of the considered view that the above settled principal of law laid down in the decisions cited supra is squarely applicable to the facts of the instant case as in this case also except the petitioner herein all the other accused viz. , A1 to A 6, A 8 and A9 who have been tried separately in SC No. 86 of 1991 have been acquitted by the learned trial Judge disbelieving the entire prosecution case and holding that the prosecution has failed to prove the charges including the charge under Section 302 IPC against A3 who is the only accused alleged to have attacked the deceased. (9) THEREFORE, this Court is of the considered view that no useful purpose would be served by putting the petitioner to undergo the ordeal of trial and as such the proceedings pending against the petitioner in s. C. No. 202 of 1999 on the file of the learned principal Sessions Judge, Thanjavur, is hereby quashed. Petition allowed.