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Smt. Radha Devi And 2 Others vs State Of U.P. And Another on 6 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment Reserved on 23.07.2019

Judgment Delivered on 06.08.2019

Court No. – 70

Case :- APPLICATION U/S 482 No. – 28450 of 2019

Applicant :- Smt. Radha Devi And 2 Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Arun Kumar Singh

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

1. Heard sri Arun Kumar Singh learned counsel for the applicants and Sri Virendra Kumar Maurya and Jagdamba Prasad Singh learned Additional Government Advocates for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.

2. This application under Sectionsection 482 Cr.P.C. has been filed by the applicants with a prayer to quash impugned Charge-sheet dated 01.04.2015 arising out of in Case Crime No.284 of 2014 and the proceeding of Session Trial No.375 of 2018 in Case No.2209 of 2016 (SectionState vs. Radha Devi and others), under Sectionsections 323, Section506, Section315 Section498A I.P.C. read with Sectionsection 3/Section4 Dowry Prohibition Act, Police Station Bilhaur, District Kanpur Nagar, pending in the court of Fast Track Court, Court No.II, Kanpur Dehat.

3. A splendid question involved in this case is that “as to whether on the acquittal of co- accused, the charge sheet and criminal proceeding pursuant thereto against the remaining co-accused are liable to be quashed under Sectionsection 482 Cr.P.C.”?

4. It is submitted by the learned counsel for the applicant that the applicant no.1 Smt. Radha Devi is sister-in-law (Nanad), applicant no.2, Smt. Meenu is Senior Co-sister (Jethani) and applicant No.3 Smt. Pan Kumar is mother-in-law (Saas) of opposite party no.2, namely, Smt Asha Devi, who lodged FIR on 15.06.2014, registered as Case Crime No.284 of 2014 against the applicants, namely Smt. Radha Devi, Smt. Meenu and Smt. Pan Kumar and two other co-accused, namely, Laxman (husband) and Ram Naresh brother-in-law (Jeith). The investigating officer after investigation has submitted two charge-sheets in this case. Charge-sheet dated 29.10.2014 was submitted against the co-accused, Laxman (husband) and Ram Naresh (Jeith) and charge-sheet dated 01.04.2015 was submitted against the applicant Radha Devi, Meenu and Smt. Pan Kumar, who are on bail. It is next submitted that co-accused Laxman and Ram Naresh have been acquitted by judgment and order dated 11.06.2018 by Additional District Session Judge/Fast Track Court No.3 in Session Trial No.53 of 2015, therefore, the applicants are not entitled to face trial and proceedings against them are liable to be quashed at the pre-trial stage by this Court in exercise of power under section 482 Cr.P.C.

5. Per contra, Sri Virendra Kumar Maurya and Jagdamba Prasad Singh, learned Additional Government Advocates refuting the aforesaid submissions of the learned counsel for the applicants, vehemently opposed the aforesaid prayer of the applicants by contending that in this case charge sheet had been filed on 01.04.2015 against the applicants, but they have filed the present application under Section 482 Cr.P.C. in July, 2019 challenging the charge sheet dated 01.04.2015 after four years without any proper explanation of delay in filing the present application. The proceeding of the trial against the applicants cannot be said to be abuse of the process of Court, and cannot be quashed merely on the ground that two other co-accused of this case have been acquitted. The present application is liable to be dismissed on merit as well as on the ground of latches.

6. After having heard the argument of learned counsel of the parties, this Court is of the view that every case turns on its own facts and evidence as may be adduced and acquittal of co- accused in a trial emanating from same case crime does not necessarily entail acquittal of the other co-accused, who are yet to be put on trial. In a trial of co-accused, the prosecution is not called upon nor it is expected to adduce evidence against absconding co-accused or such co accused who did not face trial.

7. Before delving into this issue, it would also be useful to set out Sectionsections 40, Section41, Section42 and Section43 of The Indian Evidence Act, 1872, which are under the heading “Judgments of Courts of justice when relevant”, which reads as under :-

Section 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.

Section 41 :- Relevancy of certain judgments in 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, 3[order or decree] declares it to have accrued to that person; 3[order or decree] 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, 3[order or decree] declared that it had ceased or should cease; 3[order or decree] 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, 3[order or decree] declares that it had been or should be his property.

(3) Ins. by Act 18 of 1872, sec. 3.

Section 42 :- Relevancy and effect of judgments, orders or decrees, other than those mentioned in Sectionsection 41.–Judgments, orders or decrees other than those mentioned in Sectionsection 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.

Section 43 :- Judgments, etc., other than those mentioned in Sectionsections 40 to Section42, when relevant.–Judgments, orders or decrees, other than those mentioned in Sectionsections 40, Section41 and Section42, 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.

8. The Apex Court in the matter of Rajan Rai Vs. State of Bihar (2006) 1 SCC 191 has also considered the provisions of Section 40,Section41,Section42 and Section43 of the Indian Evidence Act and held that judgment of acquittal of co-accused rendered in earlier trial arising out of same transaction was wholly irrelevant in the case of the accused, who was tried separately. The relevant paragraph nos. 8 and 10 of the said judgment are reproduced herein-below:-

“8. Coming to the first submission very strenuously canvassed by Shri Mishra, it would be necessary to refer to the provisions of Sections 40 to Section44 of the Indian Evidence Act, 1872 [in short `the SectionEvidence Act’] which are under the heading `Judgments of Courts of justice when relevant’, and in the aforesaid Sections the circumstances under which previous judgments are relevant in civil and criminal cases have been enumerated. Section 40 states the circumstances in which a previous judgment may be relevant to bar a second suit or trial and has no application to the present case for the obvious reasons that no judgment order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 refers to the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes Section 43 which clearly lays down that judgments, order or decrees, other than those mentioned in Sections 40, Section41 and Section42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the SectionEvidence Act. As it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the SectionEvidence Act, it was clearly “irrelevant” and could not have been taken into consideration by the High Court while passing the impugned judgment. The remaining Section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant.

10. A three Judges’ Bench of this Court had occasion to consider the same very question in the case of SectionKaran Singh vs. The State of Madhya Pradesh, AIR 1965 SC 1037, in which there were in all 8 accused persons out of whom accused Ram Hans absconded, as such trial of seven accused persons, including accused Karan Singh, who was appellant before this Court, proceeded and the trial court although acquitted other six accused persons, convicted the seventh accused, i.e., Karan Singh under Section 302 read with Section 149 IPC. Against his conviction, Karan Singh preferred an appeal before the High Court. During the pendency of his appeal, accused Ram Hans was apprehended and put on trial and upon its conclusion, the trial court recorded order of his acquittal, which attained finality, no appeal having been preferred against the same. Thereafter, when the appeal of accused Karan Singh was taken up for hearing, it was submitted that in view of the judgment of acquittal rendered in the trial of accused Ram Hans, the conviction of accused Karan Singh under Section 302 read with Section 149 IPC could not be sustained, more so when other six accused persons, who were tried with Karan Singh, were acquitted by the trial court and the judgment of acquittal attained finality. Repelling the contention, the High Court after considering the evidence adduced came to the conclusion that murder was committed by Ram Hans in furtherance of the common intention of both himself and accused Karan Singh and, accordingly, altered the conviction of Karan Singh from Section 302/Section149 to one under Section 302/Section34 IPC. Against the said judgment, when an appeal by special leave was preferred before this Court, it was contended that in view of the verdict of acquittal of accused Ram Hans, it was not permissible in law for the High Court to uphold conviction of accused Karan Singh. This Court, repelling the contention, held that decision in each case had to turn on the evidence led in it. Case of accused Ram Hans depended upon evidence led there while the case of accused Karan Singh, who had appealed before this Court, had to be decided only on the basis of evidence led during the course of his trial and the evidence led in the case of Ram Hans and the decision there arrived at would be wholly irrelevant in considering merits of the case of Karan Singh, who was appellant before this Court. This Court observed at page 1038 thus:-

” As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans’s case depended on the evidence led there while the appellant’s case had to be decided only on the evidence led in it. The evidence led in Ramhans’s case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant’s case.”

In that case, after laying down the law, the Court further considered as to whether the High Court was justified in converting the conviction of accused Karan Singh from Section 302/Section149 to one under Section 302 read with Sectionsection 34 IPC after recording a finding that the murder was committed by Ram Hans in furtherance of common intention of both himself and accused Karan Singh. This Court was of the view that in spite of the fact that accused Ram Hans was acquitted by the trial court and his acquittal attained finality, it was open to the High Court, as an appellate court, while considering appeal of accused Karan Singh, to consider evidence recorded in the trial of Karan Singh only for a limited purpose to find out as to whether Karan Singh could have shared common intention with accused Ram Hans to commit murder of the deceased, though the same could not have otherwise affected the acquittal of Ram Hans. In view of the foregoing discussion, we are clearly of the view that the judgment of acquittal rendered in the trial of other four accused persons is wholly irrelevant in the appeal arising out of trial of appellant Rajan Rai as the said judgment was not admissible under the provisions of Sections 40 to Section44 of the Evidence Act. Every case has to be decided on the evidence adduced therein. Case of the four acquitted accused persons was decided on the basis of evidence led there while case of the present appellant has to be decided only on the basis of evidence adduced during the course of his trial.”

9. The Apex Court in another matter of Yanob Sheikh @ Gagu Vs. State of West Bengal (2013) 6 SCC 428 has also considered the issue that what would be effect of judgment of acquittal of one accused on the other co-accused. The relevant paragraph nos. 24, 25 and 26 of the said judgment are reproduced herein-below:-

“24. In the present case, we are concerned with the merit or otherwise of the above reasoning leading to the acquittal of the accused Najrul. We are primarily concerned with the effect of this acquittal upon the case of the Appellant-accused. The Trial Court in its judgment clearly stated that there was direct and circumstantial evidence against the accused implicating him with the commission of the crime. Finding the Appellant guilty of the offence, the Trial Court punished him accordingly. Where the prosecution is able to establish the guilt of the accused by cogent, reliable and trustworthy evidence, mere acquittal of one accused would not automatically lead to acquittal of another accused. It is only where the entire case of the prosecution suffers from infirmities, discrepancies and where the prosecution is not able to establish its case, the acquittal of the co-accused would be of some relevancy for deciding the case of the other.”

“25. In the case of SectionDalbir Singh v. State of Haryana (2008) 11 SCC 425, this Court held as under:

13. Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the court has to carefully screen the evidence:

51. … It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’.(SectionSee Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (SectionSee Gurcharan Singh v. State of Punjab.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (SectionSee Sohrab v. State of M.P. and SectionUgar Ahir v. State of Bihar.) An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (SectionSee Zwinglee Ariel v. State of M.P. and SectionBalaka Singh v. State of Punjab.) As observed by this Court in SectionState of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.”

“26. The cumulative effect of the above discussion is that the acquittal of a co-accused perse 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.”

10. In view of above discussion, it is clear that the judgment of acquittal of co-accused in a criminal trial is not admissible under Sectionsections 40 to Section43 of the Evidence Act to bar the subsequent trial of the absconding co-accused and cannot hence be deduced as a relevant document while considering the prayer to quash the proceedings against remaining co-accused under Sectionsection 482 Cr.P.C. The judgment of acquittal will be admissible only to show as to who were the parties in the proceedings or factum of acquittal. As such securing of acquittal by co-accused cannot be considered as relevant circumstances and ground for exercising power under Sectionsection 482 Cr.P.C., to quash the proceedings as against those accused who has not faced the trial. The judgment not inter parties cannot justify the invocation of the doctrine of issue stopple under the Law.

11. It is also well settled that power of quashing the criminal proceedings at the pre-trial stage should be exercised very sparingly and with circumspection and that too in the exceptional and rare case. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. As such the inherent powers of the High Court cannot normally be invoked, unless such materials are of an unimpeachable nature, which can be translated into legal evidence in the course of trial.

12. As a fallout and consequences of aforesaid discussion, I have no hesitation in holding that even on the acquittal of co-accused, the charge sheet and criminal proceeding pursuant thereto against the remaining co-accused cannot be quashed under section 482 Cr.P.C.

13. The application sans merit and is, accordingly, dismissed.

Order Date :- 06.08.2019

SKD

 

 

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