Judgment of acquittal of co-accused is inadmissible under sections 40 to 44 of the Evidence Act: High Court of Karnataka

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF MARCH 2021 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.6857 2020 BY SRI LETHIF B. ADVOCATE) … PETITIONER UMMER FAROOQ S O ABDUL KAREEM. K AGED ABOUT 28 YEARS R AT 1 59 3 UKKADA DARBE ALIKE POST ALIKE BANTWALA TALUK D.K. DISTRICT 574 235. 1 . THE STATE OF KARNATAKA BY VITTLA POLICE STATION REPRESENTED BY THE SPP HIGH COURT BUILDINGS BENGALURU 560 001 2 . SRI SELVARAJ S O CHINNAPPA AGED ABOUT 50 YEARS R AT UKKADA DARBE ALIKE POST ALIKE BANTWALA TALUK D.K. DISTRICT 574 235 BY SRI MAHESH SHETTY HCGP FOR R1 R2 IS SERVED) … RESPONDENTS 2 IN C.C.NO.1153 2018 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS CR.NO.207 2015 OF VITTAL POLICE STATION D.K. DISTRICT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143 147 341 354 504 AND 506 R W SECTION 149 OF IPC ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC BANTWALA DAKSHINA KANNADA WHICH IS PRODUCED AT ANNEXURE A. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.03.2021 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: O R D E R This petition is filed under Section 482 of Cr.P.C praying this Court to quash the entire proceedings against the petitioner in C.C.No.1153 2018 for the offences punishable under Sections 143 147 341 354 504 and 506 read with Section 149 of IPC pending on the file of Additional Civil Judge and JMFC. Bantwal Dakshina Kannada. The factual matrix of the case is that this petitioner who has been arraigned as accused No.2 along with other accused in the complaint dated 18.10.2015 P.W.1 made the allegation that the neighbour by name Mohammed had constructed a petty shop in a Government Land about two months back. It is further alleged that after the construction the persons who were sitting in the said petty shop were disturbing the residents i.e. women and children in this regard the complainant had orally informed the panchayath and revenue office and the revenue officer were removed the said petty shop about one month back. It is further alleged that in this regard the said Mohammed his relatives and friends were quarreled with the complainant and abused him in a filthy language. In the meantime the Panchayath President and other leaders of the locality had agreed to resolve the dispute. That on 18.10.2015 at about 6:00 p.m they called a meeting at Vishwakarma Community Hall in the presence of elders and leaders of the locality and in the said meeting the followers of the said Mohammed had abused the complainant in a filthy language and assaulted the complainant on all over the body. It is alleged that the complainant had tried to escape from the place. At that time other accused were caught hold of him and tried to press the neck of the complainant with an intention to commit the murder and pulled him on the floor. At that time the persons who were gathered at the place were pacified them and the mother in law one Eshwari also tried to pacify the quarrel. At that time one Razith and Farooq pulled her on the 4 floor and caused injuries she took treatment in Aadarsha Hospital. Based on the complaint the police have registered a case for the offences punishable under Sections 143 147 341 323 504 354 307 read with Section 149 of IPC in Crime No.207 2015. After the investigation charge sheet is filed against 10 accused. The petitioner is the permanent resident of the above address and not aware of about filing of charge sheet against him and only when the Police came near the house with a warrant he came to know about the pendency of the case. On Verification he found that a case against him was split up from original C.C.No.1360 2016 by order dated 13.08.2018. The case against the other accused was tried in C.C.No.1360 2016. During the trial the prosecution has examined two witnesses as PWs.1 and 2 and they were ultimately acquitted. Hence the present petition is filed before this Court. The grounds urged in the petition before this Court is that the learned Magistrate has framed common charge against all the accused and in the entire charge sheet there is no specific or separate charge made against the petitioner. In view of similar charge has been framed and other accused have been acquitted after the trial there is no specific overt acts against the present petitioner and there is no recovery from the present petitioner. Hence he is entitled for the relief of quashing. The learned counsel for the petitioner in support of his contention he relied upon the recent Judgment of the Apex Court in the case of Vishwas Bhandari v. State of Punjab and another reported in AIR 2021 SCC OnLine SC 56 and brought to the notice of this Court that paragraph No.9 of the judgment wherein the Apex Court exercised the discretion invoking Section 482 of Cr.P.C and coming to the conclusion that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. It is also observed that the prosecutrix and the accused with the consent of both the families they married and living together happily. The learned counsel also relied upon the Division Bench judgment of this Court in the case of The State of Karnataka v. K.C.Narasegowda reported in ILR 2005 KAR 1822 and brought to the notice of this Court that paragraph Nos.4 and 6 of the judgment wherein this Court had discussed considering the regular facts and circumstances of the case exercised the powers under Section 482 of Cr.P.C. The learned counsel relied upon the judgment of the Apex Court in the case of Central Bureau of Investigation v. Akhilesh Singh reported in AIR 2005 SC 268 wherein the Apex Court discussed with regard to exercising the powers under Section 482 of Cr.P.C the main accused who had alleged to have hatched conspiracy and who had motive to kill deceased was already discharged and the matter had attained finality and held that no purpose would be served in further proceeding with case against co accused. The learned counsel also relied upon the unreported judgment of this Court dated 14.10.2020 passed Crl.P.No.1422 2019 and brought to the notice of this Court paragraph No.7 of the Judgment wherein this Court observed that once there is an acquittal on merits after consideration of the evidence on record and the said evidence being equally applicable to the petitioner accused No.6. Hence Section 482 of Cr.P.C. can be invoked. The learned counsel also relied upon the unreported judgment of this Court dated 05.07.2017 passed Crl.P.No.4796 2017 and brought to the notice of this Court paragraph No.17 of the Judgment extending the benefit under Section 482 of Cr.P.C. The learned counsel also relied upon the unreported judgment of this Court dated 02.02.2018 passed W.P.No.709 2018 and brought to the notice of this Court paragraph No.7 of the Judgment wherein invoked Section 482 of Cr.P.C. on the ground that accused who were tried and acquitted by the Court are one and the same and they are not separable in nature. 10. The learned counsel also relied upon the unreported judgment of this Court dated 03.01.2011 passed Crl.P.No.3849 2010 and brought to the notice of this Court paragraph No.4 of the Judgment wherein this Court observed that the Sessions Judge acquitted all the accused persons of the offences mainly on the ground of material witnesses including the complainant having turned hostile and none of them have supported the prosecution case except the two doctors. 11. The learned counsel also relied upon the unreported judgment of this Court dated 29.06.2010 passed Crl.P.No.7261 2010 and brought to the notice of this Court paragraph No.6 of the Judgment and also observed the two versions one in favour of prosecution and one in favour of the accused and comes to a conclusion that if the trial is conducted it is only a formal trial. 12. The learned counsel also relied upon the unreported judgment of this Court dated 20.01.2017 passed Mukkateera Sampath @ M.G. Kushalappa v. The State of Karnataka and another) and brought to the notice of this Court paragraph No.5 of the Judgment discussing the judgments of different High Courts and Hon ble Supreme Court and found that it would be a futile exercise if he tried for the charges levelled against him. 9 13. The learned counsel also relied upon the unreported judgment of this Court dated 23.01.2015 passed Saibanna v. The State of Karnataka and another) and brought to the notice of this Court paragraph Nos.8 11 and 15 of the Judgment wherein Section 482 of Cr.P.C. has been involved. 14. The learned counsel also relied upon the unreported judgment of this Court dated 10.11.2020 passed Crl.P.No.770 2017 and brought to the notice of this Court paragraph Nos.22 23 24 and 25 of the Judgment wherein the benefit of Section 482 of Cr.P.C. is extended to the co accused. 15. Per contra learned High Court Government Pleader appearing for respondent No.1 State would vehemently contend that the benefit of Section 482 of Cr.P.C. cannot be invoked for the reason that this accused was absconded as a result in 2016 itself a split up case is registered against this accused and after four years of passing an order of split up case against this accused the petitioner has approached this Court. 16. The learned High Court Government Pleader would contend that the Trial Court in paragraph No.7 of the Judgment held that in spite of issuance of NBW this petitioner has not been secured before the Court. The petitioner has waited till the disposal of the case and has approached this Court after the acquittal order knowing fully well the proceedings was taken place against the other accused persons. Hence the benefit of Section 482 of Cr.P.C. cannot be invoked. 17. The learned High Court Government Pleader in support of her contention she relied upon the Judgment in the case of Umesh v. State of Kerala reported in 3 SCC 112 wherein the Apex Court discussing the scope of Sections 482 227 and 239 of Cr.P.C. held that proper forum an application has to be filed before the Trial Court under Section 239. It is for the Magistrate to consider the contentions regarding discharge therein. The High Court has refused to quash the criminal proceedings and upheld the Full Bench judgment of Kerala High Court in the case of Moosa v. Sub Inspector of Police reported in 2 CCR 445. Further observed that it is for the Magistrate concerned to consider the contentions in an application filed under Section 239. 18. The learned High Court Government Pleader referring to these judgments would contend that the judgments which have been canvassed by the learned counsel for the petitioner all the judgments are passed by this Court and some of the judgments are unreported judgments and the subsequent judgment of the Apex Court has to be considered wherein the Apex Court has upheld the Full Bench judgment of Kerala High in Moosa’s case refusing to quash the proceedings on the ground that co accused was acquitted. Hence the recent judgment of the Apex Court is applicable. 19. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1 State this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. in view of the principles laid down in the judgments referred supra. 20. Having perused the allegations made complaint against this petitioner and other accused the allegation is specific that in view of the prior enmity between the complainant and one Mohammed in connection with removal of petty shop which was put up in the Government land was removed they were having ill will against the complainant and specific allegation is made against each of the accused including this petitioner that they assaulted not only the complainant and also CW.2 mother in law who came to rescue the complainant with an intention to take away the life an assault was made and tried to take away the life by pressing her neck. On perusal of the records no doubt two witnesses are examined i.e. CWs.1 and 2 as PWs.1 and 2 and both of them have not supported the case of the prosecution. On perusal of the charge sheet CWs.2 to 12 are the eye witnesses to the incident and other witnesses have not been examined before the Trial Court. The Doctor who has been cited as CW.16 also has not been examined. It is also important to note that Section 164 statement was also recorded before CW.17. 21. On perusal of the acquittal order also the trial Judge not allowed the prosecution to examine the other witnesses i.e. who are the eyewitnesses to the incident and the Doctor who treated the injured persons so also not examined the Magistrate who recorded the statement under Section 164 of Cr.P.C. The Court has to distinguish the facts and circumstances of each case. No doubt the Apex Court in Vishwas Bhandari’s case held that neither the prosecutrix nor the complainant have levelled an iota of allegation against the appellant in respect of abduction of the prosecutrix. It is also observed that the prosecutrix and the accused with the consent of both the families they married and living together happily and they are having the children. The said principle laid down in the judgment is not come to the aid of the petitioner and in the said case there was no allegation against the appellant who have approached the Apex Court. In the case on hand a specific allegation is made against the petitioner herein and the Apex Court also taken note of the complainant prosecutrix married the accused and both of them married with the consent of their families. The other judgments are relied upon by the learned counsel for the petitioner is prior to the judgment of the Apex Court passed in Umesh’s casethose judgments are also will not come to the aid of the petitioner herein. 22. This Court would like to refer to the judgment of the Apex Court in the case of Yanob Sheikh alias Gagu v. State of West Bengal reported in 6 SCC 428 and extract paragraph Nos.23 and 26 which read as follows: 23. Nazrul has been acquitted by the trial court. His acquittal was not challenged by the State before the High Court. In other words the acquittal of Nazrul has attained finality. While recording the acquittal of the accused Nazrul the trial court recorded the following “PW 1 and PW 5 at the first blush did not say that accused Yanob threw the bomb at Samim taking the same from the bag of Nazrul and PW 1 stated that Yanob came along with Nazrul with bomb in his hand. He did not say that Nazrul was carrying any cloth bagCrPC. So far as the charge under Section 324 IPC against accused Yanob for causing voluntary hurt to Mahasin and Basir is concerned there is no evidence that the aforesaid persons sustained and or received any injury from the splinters of the exploded bomb thrown by accused Yanob. Mahasin when tendered by prosecution even during cross examination did not say that he sustained any such injury. Basir as already observed had not been examined on the plea that he has been gained over and the defence did not examine him as its witness to prove that the prosecution narrative was not correct and the incident took place in a different of that charge. I therefore hold and find accused Yanob not guilty of the charge under Section 324 IPC and he is acquitted 26. The cumulative effect of the above discussion is that the acquittal of a co accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.” 23. This Court would like to refer to the Full Bench judgment of the Kerala High Court in the case of Moosa v. Sub Inspector of Police reported in 2 CCR 445 a similar view was taken in this judgment and held that the Judgment of acquittal of co accused in a criminal trial is not admissible under Sections 40 to 43 of the Evidence Act to bar the subsequent trial of absconding co accused and cannot be reckoned as a relevant document while considering the prayer to quash the proceedings under Section 482 of Cr.P.C. Such judgment would be admissible only to show who were the parties in the earlier proceedings and the factum of acquittal. The Apex Court in its Judgment in the case of Rajan Rai v. State of Bihar reported in 1 SCC 209 held that the trial of co accused tried separately is only an irrelevant in subsequent trial of accused who are not tried earlier. The Judgment of acquittal of co accused will not be admissible within the meaning of Section 40 to 44 of the Evidence Act. 24. This Court would like to refer to Sections 40 to 44 of the Evidence Act which read as follows: “40. Previous judgments relevant to bar a second suit or trial.—The existence of any judgment order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. 41. Relevancy of certain probate etc. jurisdiction.—A final judgment order or decree of a competent Court in the exercise of probate matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character or to be entitled to any specific thing not as against any specified person but absolutely is relevant when the existence of any such legal character or the title of any such person to any such thing is relevant. Such judgment order or decree is conclusive proof— that any legal character which it confers accrued at the time when such judgment order or decree came into operation that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment declares it to have accrued to that person declares it to have accrued to that person that any legal character which it takes away from any such person ceased at the time from which such judgment declared that it had ceased or should cease and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment declares that it had been or should be his property. 42. Relevancy and effect of judgments orders or decrees other than those mentioned in section 41.—Judgments orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry but such judgments orders or decrees are not conclusive proof of that which they state. 43. Judgments etc. other mentioned in sections 40 to 42 when relevant.— Judgments orders or decrees other mentioned in sections 40 41 and 42 are irrelevant unless the existence of such judgment order or decree is a fact in issue or is relevant under some other provisions of this Act. 44. Fraud or collusion in obtaining judgment or incompetency of Court may be proved.—Any party to a suit or other proceeding may show that any judgment order or decree which is relevant under section 40 41 or 42 and which has been proved by the adverse 19 party was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. 25. Having perused Sections 40 to 44 the acquittal of co accused in a criminal trial is not admissible and Sections 40 to 43 of the Evidence Act not bar the subsequent trial of absconding co accused. 26. This Court also would like to refer to the judgment of the Apex Court in the case of State Rep. by the CBI v. Anil Sharma reported in 1997 SCC 1039 wherein the Apex Court held that the petitioner never associated with the investigation. Thus investigating agency may have been handicapped in collecting the evidence and further observed that custodial interrogation is more elicitation oriented. However the petitioner never associated with investigation. The Investigating Agency thus never got an opportunity either to seek their custodial information or record their statements. In case such accused who have scant respect for law are given benefit of their own wrong it would be travesty of justice. 27. Having perused the principles laid down in the judgments referred supra it is clear that the judgment of 20 acquittal of co accused would not be admissible within the meaning of Sections 40 to 44 of the Evidence Act. It is also important to note that in the present case on hand the complainant in the complaint a specific allegation is made against the petitioner herein not only in the complaint and also in his statement under Section 164 of Cr.P.C. However this petitioner was absconded he waited for the trial of co accused to be over and thereafter he preferred the instant petition seeking quashing on the basis of their acquittal. Hence it is clear that the very conduct of the accused that he is not having any scant respect for law and if he has given benefit of their own wrong it would be travesty of justice as held by the Apex Court in the judgments referred supra. 28. The learned counsel appearing for the petitioner also relied upon the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in1 SCC 694 and brought to the notice of this Court paragraph No.136 with regard to if this court comes to any other conclusion in view of the other co ordinate benches have extended the benefit of the matter has to 21 be referred to the larger bench. The said contention also cannot be accepted for the reason that the Apex Court in the judgment referred supra in Yanob Sheikh’s caseand in Umesh’s casecategorically held that the judgment of acquittal of co accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. When the same is not admissible under the Evidence Act and also the Apex Court dealt with the matter in detail referring to Sections 40 to 43 of the Evidence Act and the Full Bench judgment of the Kerala High Court in Moosa’s caseheld that the Judgment of acquittal is not admissible under Sections 40 to 43 of the Evidence Act and the benefit cannot be extended. This Court has already pointed out that each case facts and circumstances has to be considered and the Court has to obey the dictums of the Apex Court held in Yanob Sheikh’s case and Umesh’s case However the petitioner accused is directed to appear before the Trial Court and he may be enlarged on bail subject to executing a personal bond for a sum of Rs.50 000 with one surety for the like sum to the satisfaction of the Trial Court. He is given liberty to file necessary application for discharge before the Trial Court and the same shall be considered in accordance with law. Sd 

Summary: Judgment of acquittal of co-accused would not be admissible within meaning of Sections 40 to 44 of the Evidence Act. This was held in UMMER FAROOQ V. STATE OF KARNATAKA[CRIMINAL PETITION NO.6857/2020] in the High Court of Karnataka by single judge bench consisting of JUSTICE H.P. SANDESH. Facts are that the petitioner was arraigned as co-accused in a complaint, the police registered a case for the offenses punishable under Sections 143, 147, 341, 323, 504, 354, 307 r/w S.149 of IPC and filed charge sheet against 10 accused. The case against petitioner was split up and other accused were tried separately and acquitted. Petition is thus filed before this Court for quashing of proceedings. The counsel for petitioner contended that learned Magistrate had not framed  specific or separate charges against the petitioner. He relied upon Judgment of the Apex Court in the case of Vishwas Bhandari v. State of Punjab and Anr and other cases to examine the scope of S.482 and futility of trying co accused.  The government pleader contended that the benefit of Section 482 of Cr.P.C. cannot be invoked as accused had absconded and relied upon the Judgment in the case of Umesh v. State of Kerala in favor of refusing to quash the proceedings on the ground that co-accused was acquitted. The court referred to the Apex court judgment in the case of Rajan Rai v. State of Bihar, wherein the court had held that the judgment of acquittal of co-accused is not admissible within the meaning of Section 40 to 44 of the Evidence Act. The Apex court had also highlighted the irrelevancy of the judgement of co accused tried separately. The court relied on the case of Umesh v. State of Kerala, where the Apex Court had discussed the scope of Sections 482, 227 and 239 of Cr.P.C. held  that Trial Court under Section 239 is the proper forum to file an application and the Apex Court judgement in the case titled Yanob Sheikh alias Gagu v. State of West Bengal wherein the following observations were made, “The cumulative effect of the above discussion is that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.”