Pushpa Devi Vs State of U.P. and Others

Aditya Nath Mittal, J.@mdashHeard learned Counsel for the revisionist, learned Additional Government Advocate, learned Counsel appearing for the opposite party No. 2 and perused the record. This criminal revision has been filed with the prayer to quash the order dated 23.7.2013 passed in S.T. No. 668 of 2010 and to extend the benefit of order dated 8.8.2008 passed in S.T. No. 381 of 2006.

2. Learned Counsel for the revisionist has submitted that the main accused persons have already been acquitted by the Trial Court by the judgment and order dated 8.8.2008, passed by the learned Additional Session Judge in S.T. No. 381 of 2006 after full fledged and exhaustive trial. Therefore, the benefit of the said judgment be provided to the revisionist also and the Court below has wrongly rejected the application for discharge by order dated 23.7.2013. It has also been submitted that it shall be wastage of time of the Trial Court recording the evidence again because the main accused persons, who were husband, Jeth and Dever have already been acquitted and the present applicant/revisionist is mother-in-law of the deceased.

3. Learned Additional Government Advocate as well as learned Counsel appearing for the opposite party No. 2 have opposed the grounds of revision and have submitted that the benefit of judgment of the previous case cannot be extended to the revisionist. It has also been submitted that against the said judgment of 2008, the State Appeal No. 2253 of 2010 as well as the Criminal Revision of the complainant No. 464 of 2008 are also pending and the Division Bench of this Court has already directed to proceed day-to-day.

4. Learned Counsel for the revisionist in support of his submission has relied upon the cases Charan Singh and Others Vs. State of Uttar Pradesh, , Bijoy Singh and Another Vs. State of Bihar, , Sushil Kumar Sharma Vs. Union of India (UOI) and Others, , Smt. Zahrun Nisa Vs. State of U.P. and Gulam Khan--> , Kalim Ahmed Vs. State of U.P., , Surendra Yadav v. State of U.P. and others 2004 (2) JIC 640 (All), Smt. Kaushalya Devi v. State of Madhya Pradesh 2003 (2) Crimes 55, and the judgment of Hon''ble Delhi High Court delivered in the Crl. Revision No. 555 of 2003; Narender Singh Arora v. State (Govt. of NCT Delhi) and others.

5. The main question for consideration in the present revision is that whether the judgment of acquittal rendered in the trial of other accused is admissible under the provisions of sections 40 to 44 of the Evidence Act and whether the person who has not yet faced the trial can be acquitted on the basis of judgment of acquittal of other accused persons.

6. As far as the case of Charan Singh (supra) is concerned, in that case the trial was conducted of all the accused persons and on the basis of evidence five accused persons were convicted while one accused was acquitted. In this case, Hon''ble the Apex Court has nowhere held that other five accused persons also entitled for acquittal on the basis of judgment of Rajpal. Therefore, the said case law is not applicable in the present facts of the case.

7. As far as the case of Bijoy Singh and another (supra) is concerned, the Hon''ble Apex Court has held that if any convicted accused has not filed any appeal, but other co-accused-persons have filed the appeal and their conviction has been set aside then the similarly situated co-accused is also entitled to the benefit of that even if he has not challenged the order of conviction by way of appeal. This case is also not applicable to the present facts of the case.

8. As far as the case of Sushil Kumar Sharma (supra) is concerned, that case does not relate to the matter involved in this revision.

9. In the case of Smt. Zahrun Nisa (supra), the Hon''ble Single Judge of this Court has held that the proceedings of the case should be quashed by applying principle of ''stare decisis''.

10. Similarly in the case of Kalim Ahmed (supra), the Hon''ble Single Judge of this Bench has taken the same view. The same view has also been taken in the cases of Surendra Yadav (supra) and Virendra Kumar 2004 (1) JIC 173 (All), in which Hon''ble the Single Judge taking into consideration the judgment of previous trial regarding the co-accused has extended the benefit of previous trial and has quashed the charge-sheet.

11. Learned Counsel appearing for the opposite party No. 2 has relied upon the Division Bench judgment of this Court rendered in Kumari Rinki Vs. State of U.P. and Others, , in which the judgments relied upon by the learned Counsel for the revisionist in Virendra Kumar (supra) and Smt. Zahrun Nisa (supra) have been considered at length along with the law laid down by Hon''ble the Apex Court. Hon''ble the Division Bench of this Court in paras-7, 8, 11, 13 and 14 has held as under:--

"7. It is settled principle of the law that every case turns on its own facts and evidence as may be adduced and acquittal of a co-accused in the trial emanating from self same case crime does not necessarily entail acquittal of the other co accused who are yet to be put on trial.

8. The decision in S.P.E., Madras Vs. K.V. Sundravelu, , is a decision of pivotal significance in which the Apex Court held that the commitment once made under section 213 Cr.P.C. by a competent Magistrate the same could be quashed only on a point of law. The facts in that case were that the respondent was carrying on business as an exporter of hand-loom cloth in Madras and he was alleged to have committed offences under sections 420 , 471 read with section 466 IPC and section 132 of the Customs Act relating to certain bales of goods covered by two invoices. The Court before commitment, split his case in two, covered by each of the two invoices. The respondent in the first case was acquitted by the High Court on 9.3.1974. The second case was then taken up for trial. The respondent applied to the High Court for quashing the proceedings. The High Court quashed the proceedings pending in the Court of Asstt. Sessions for three reasons namely, (i) the evidence in both the cases being similar and one case having ended in acquittal, further prosecution in the present case would amount to abuse of the process of the Court; (ii) even otherwise, the alleged offences were committed somewhere in 1955 and it would be unfair if not unjust to put the petitioner on trial after about 10 years; and (iii) the charge was not likely to stand. The Apex Court further ruled that merely because the trial in the second case had not started, there was no justification for taking the view that evidence in both the cases was similar. Moreover, it was not the requirement of law that if one case had ended in acquittal prosecution in another case would be illegal. It could not also be said that it would be illegal to commence the trial in a case after a period of 10 years or so. So also, it could not be said that the High Court''s opinion that the charge was not likely to stand the trial was on a point of law within the meaning of section 215 . The Apex Court further held that the judgment in the first case was clearly irrelevant and could not be taken into consideration for making the order in the second case. Para 5 being relevant is quoted below.

"5. The High Court has in fact taken its earlier judgment in Sessions Case No. 34 of 1968, which ended in acquittal, into consideration in the present case, and has reached the conclusion that the present appeal is "not likely to stand." Here again, the High Court lost sight of the provisions of sections 40 to 44 of the Evidence Act which state the circumstances in which previous judgment are relevant in civil and criminal cases. Thus 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 reason 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 deals with 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 states that judgments, orders or decrees, other than those 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 the Act. As it has not been shown that the judgment in Sessions Case No. 34 of 1968 could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High Court for the purpose of making the impugned order. 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 not only lost sight of the above facts, but also ignored the provisions of section 215 of the Code of Criminal procedure and thus committed an error of law in basing the impugned judgment on a judgment which was clearly irrelevant."

11. In the ultimate analysis, the Apex Court held that 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 44 of the Evidence Act. It was further observed that every case has to be decided on the evidence adduced therein. It was also observed that the 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. Para 8 of the judgment being relevant on the point is quoted 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 44 of the Indian Evidence Act, 1872 [in short ''the Evidence 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 , 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 the Evidence 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 Evidence 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."

13. The inference that is deducible from discussion of the above decisions that the judgment of acquittal rendered in the trial of other co accused is wholly irrelevant as the said judgment would not be admissible under the provisions of sections 40 to 44 of the Evidence Act. It also leaves no manner of doubt that every case has to be decided on the evidence adduced therein and therefore, the case of the petitioner has to be decided on the basis of evidence which may be adduced during the course of trial.

14. The principles that are distilled from the discussion of the above decisions are:

(i) 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;

(ii) 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".

12. Learned Counsel for the opposite party No. 2 has also relied upon the case Rajan Rai Vs. State of Bihar, , in which the Hon''ble Apex Court in paras-8 and 10 has held as under:--

"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 44 of the Indian Evidence Act, 1872 [in short ''the Evidence 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 , 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 the Evidence 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 Evidence 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 Karan Singh Vs. State of Madhya Pradesh, , 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 /149 to one under section 302 /34 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, re-pelting 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 /149 to one under section 302 read with section 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 026 Rajan Rai as the said judgment was not admissible under the provisions of sections 40 to 44 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".

13. The aforesaid question that whether the judgment of acquittal rendered in the trial of other co-accused is admissible under sections 40 to 44 of Evidence Act regarding the other co-accused, who has not faced the trial, has been categorically dealt with in Km. Rinki (supra) and it has been specifically held that acquittal of the co-accused in a separate trial cannot be made basis for quashing the proceedings against another co-accused, who is being separately tried and the said judgment is not relevant in view of the provisions of sections 40 to 44 of the Evidence Act. Therefore, in view of the judgment of Hon''ble the Division Bench, which is based on the judgment of Hon''ble the Apex Court, the application for discharge has rightly been rejected by the Additional Session Judge, Court No. 10, Lucknow.

14. The judgments of Hon''ble the Single Judge of this Bench have also been considered in the aforesaid Division Bench Judgment of this Court in the case of Km. Rinki (supra). Therefore, those judgments of Hon''ble the Single Judge are contrary to the view taken by the Division Bench and the view taken by Hon''ble the Division Bench shall prevail.

15. Moreover as mentioned above, the said judgment of 2008 is still under challenge in Criminal Appeal No. 2253 of 2010 filed by the State as well as Criminal Revision No. 464 of 2008 filed by the complainant. Therefore, the present revisionist is not entitled to get the benefit of the judgment dated 8.8.2008 and the principle of ''stare decisis'' is not applicable in the present set of facts.

16. In view of the above, I do not find any illegality or perversity in the impugned order. The revision lacks merit, deserves to be dismissed. The revision is, therefore, dismissed.