THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.1820 of 2011 ORDER: Petitioner approached this Court with a prayer to quash the proceedings initiated against him in S.C.No.2 of 2011 on the file of the Additional Sessions Judge, Hindupur, wherein he is arrayed as accused No.1 and facing trial for the offences punishable under Sections 147, 148, 364, 302 read with Section 149 IPC, Sections 25 (1) (B) and 27 of Arms Act and Section 8 (1) of A.P.P.S. Act. The facts, in nutshell, are as follows: On the basis of a complaint made by PW.1, the son of the deceased, a case in Crime No.43 of 1999 was registered and investigated into. After completion of investigation, the police filed the charge sheet in the year 2001 against 23 accused, including the petitioner herein. Originally, the case was numbered as SC.No.825 of 2004 on the file of Additional Sessions Judge, Hindupur. After filing of the charge sheet, A2, A5 and A6 died in the interregnum, therefore, the case against them was abated. Since some of the accused were absent from attending the Court, the case against them was split up. Accused Nos.4,7 to 12, 15, 16, 19 and 22 were tried in S.C.No.825 of 2004 on the file of Additional Sessions Judge, Hindupur, Accused Nos.3, 13, 14, 17 and 18 were tried in S.C.No.531 of 2006 on the file of Additional Sessions Judge, Hindupur, and some of the accused were tried in S.C.No.177 of 2005 on the file of Additional Sessions Judge, Hindupur. Petitioner herein is being tried in the present S.C.No.2 of 2011 on the file of Additional Sessions Judge, Hindupur. Learned counsel for the petitioner submitted that since S.C.No.825 of 2004, S.C.No.177 of 2005 and S.C.No.531 of 2006, in which the accused are alleged to have committed the offence along with the present petitioner, ended in acquittal, after due trial by the competent Court, on the ground that there was no evidence that the accused killed the deceased, the same benefit should be extended to the petitioner herein as there would be no purpose in proceeding against the present petitioner. He further submitted that the pendency of the case against the petitioner herein amounts to abuse of process of law, therefore, the proceedings against the petitioner in the present complaint shall be quashed. He relied on the judgment in J. Rambabu v. The State[1]. Per contra, learned Public Prosecutor vehemently opposed the contention of the learned counsel for the petitioner and submitted that the acquittal of co-accused in a separate trial cannot be made basis for quashing the proceedings against the petitioner herein in the present S.C.No.2 of 2011, who is being separately tried. He also submitted that the petitioner herein has absconded himself from the year 1999 and after a lapse of ten years, he was arrested and now he is facing trial in S.C.No.2 of 2011, which is likely to be concluded within one month. He placed reliance on the judgment in Rajan Rai v. State of Bihar[2], wherein it was observed that the judgment of acquittal rendered in the trial of co-accused persons is wholly irrelevant in the appeal arising out of trial of the appellant as the said judgment was not admissible under the provisions of Sections 40 to 44 of the Evidence Act. It was further observed that every case has to be decided on the evidence adduced therein. He further relied on the judgment in Kumari Rinki v. State of U.P. and Others[3], wherein it was held that the acquittal of a co-accused in a separate trial cannot be made basis for quashing the proceedings against another co-accused who is being separately tried on the principle that each case has to be decided on the evidence adduced in that case. It was further held that the judgment of acquittal rendered in one case is not relevant in the case of co-accused separately tried inasmuch as sections 40 to 44 of the Evidence Act deal with relevancy of certain judgments in probate, matrimonial, admiralty and insolvency jurisdiction and therefore inapplicable to a criminal case. This Court is fully aware of the decisions cited by either side. In criminal cases, each and every case has to be decided on the merits of the case. In the present case, even though it is submitted by the prosecution that the petitioner was absconding for a long time, there is no material to show that he absconded from facing the trial and tried to flee from the hands of justice. Absconding is the word that has to be viewed in a proper manner. Mere absence of a person to attend the Court or to face trial cannot be a ground to say that such person is absconding. In the case on hand, as per the contention of the learned counsel for the petitioner, the petitioner’s wife contested in elections in the year 2004. Therefore, the contention of the prosecution that the petitioner was absconding is totally not acceptable. However, whether the petitioner is absconding or not is not the question before this Court. The question that arises for consideration in the present case is whether the acquittal of co-accused can be a ground to quash the present SC.No.2 of 2011 against the petitioner herein. As stated earlier, each and every case should be decided on the merits of the case. In the present case, the acquittal of co-accused was not on any technical grounds, but it was on the ground that all the witnesses turned hostile and that they introduced a new version. In all the three S.C.Nos.825 of 2004, 531 of 2006 and 177 of 2005, all the material witnesses categorically deposed against the prosecution. So far as the evidence in S.C.No.825 of 2004 is concerned, P.Ws.1 and 2 are the sons and P.Ws.4 to 6 are the brothers of the deceased. P.Ws.3 and 7 are the wife and the brother-in-law of the deceased respectively and P.Ws.8 and 9 are the eye-witnesses to the occurrence, and all these witnesses turned hostile and did not support the case of the prosecution. With regards the evidence in S.C.No.531 of 2006, P.W.1, the elder son of the deceased, deposed that he does not know who has taken his father to a hillock and Ex.P1 is his thumb impression obtained by the police on the complaint. P.W.2, another son of the deceased, deposed that the accused have not taken his father to any place and they have not killed his father. He also deposed that he does not know who killed his father. P.W.3, the wife of the deceased, deposed that she does not know anything about this case; that they have no disputes with Chinnarayudu; that no panchayats were convened in respect of land disputes and that she was not examined by the police. PWs.4 to 6, the brothers of the deceased, categorically deposed that they do not know who killed their brother and that they were not examined by the police. P.W.7 deposed that he has not seen the accused taking away the deceased towards hillock. Likewise, P.W.8 also deposed that he does not know who killed the deceased and that he was not examined by the police. In all the three cases, all the material witnesses turned hostile and did not support the case of the prosecution. More particularly, the person who lodged the complaint has categorically introduced a new version that he has never lodged a complaint and he was asked to affix his thumb impression on a while paper and subsequently some contents were written on it. Further, the close relatives of the deceased have deposed that they were not aware of the fact whether the deceased was kidnapped and murdered and also they were not aware of the cause for the death of the deceased. In these circumstances, whether the trial has to be proceeded against the petitioner or not is the question to be considered. In this regard, it is to be noticed that in Rukmini Narvekar vs. Vijaya Satardekar[4], Suryalakshmi Cotton Mills Ltd. V. Rajvir Industrial Ltd.[5] and State of Orissa v. Debendra Nath Padhi[6], the Apex Court laid down certain principles for quashing of criminal charge/complaint/proceedings while invoking the provisions under Section 482 Cr.P.C. I n Rukmini’s Case (4 supra), the relevant portion of the principles laid down by the Supreme Court runs as follows: “where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.” In Suryalakshmi’s case (5 supra), it is held as under: “Disputed question of fact not required to be gone into by Court – But documents of unimpeachable character can be taken into consideration.” In State of Orissa’s case (6 supra), it was held as follows: “as it would compel the accused to face trial despite being in a position to produce unimpeachable and unassailable material to show his innocence at the stage of framing of charge, held, not acceptable.” By going through the contents in the above said decisions, this Court is of the view that while placing reliance on the evidence recorded by the competent Court, the co-accused were acquitted. Further, the evidence of the witnesses was against the case of the prosecution. If the evidence of the witnesses is against some of the accused, then trial can be proceeded against a person who is facing trial. But, in this case, the witnesses, more particularly the witnesses those who claim to be the eye-witnesses to the occurrence, have turned hostile to the entire case of the prosecution. Thus, in these circumstances, this Court is of the view that the pendency of the case against the petitioner in the present S.C.No.2 of 2011 is abuse of process of law and further proceeding with the trial against the petitioner is a futile exercise. Accordingly, the criminal petition is allowed and the proceedings initiated against the petitioner/Accused No.1 in S.C.No.2 of 2011 on the file of the Additional Sessions Judge, Hindupur, are hereby quashed. The petitioner/Accused No.1 is set at liberty if he is not required in any other case. ____________________ JUSTICE RAJA ELANGO 06.04.2011 v v Note: L.R. copy to be marked. [1] 1992 APLJ (Cri) 183 [2] AIR 2006 Supreme Court 433 [3] 2009 Crl.L.J.990 [4] (2008) 14 Supreme Court Cases 1 [5] (2008) 13 Supreme Court Cases 678 [6] (2005) 1 Supreme Court Cases 568