SUNIL KUMAR Vs. STATE

JUDGEMENT

(1.) By this petition under section 482 read other Sections 397/401 Cr.P.C., the petitioner seeks quashing of the order dated 26.10.1998 passed by the Addl. Sessions Judge, New Delhi in S.C. No. 203/96 framing charge under Sections 302/34 IPC against the petitioner.

(2.) Ashort conspectus of the case is that the petitioner alongwith the accused persons Jangli Tyagi, Balbir Singh, Lakshmi Chand, Anil Kumar Tyagi and Sushil Kumar were charge-sheeted under Sections 147/148/302/149 IPC. Trial of the case against the petitioner and Lakshmi Chand proceeded under Section 299 Cr.P.C. due to their abscontion during the trial. However, by the judgment dated 19.1.1998, the learned Addl. Sessions Judge, acquitted the accused Jangli Tyagi, Balbir Singh, Anil Kumar Tyagi and Sushil Kumar Tyagi of the offences charged under Sections 148/302/149 IPC. After the said judgment, the petitioner surrendered himself before the learned Addl. Sessions Judge and sought his discharge on the ground that the other accused persons stand acquitted of the offences charged under sections 148/302/149 IPC. Rejecting the said prayer, the learned Addl. Sessions Judge framed a charge under Sections 302/34 Indian Penal Code against the petitioner.

(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 vs. 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 vs. State ofMadhya Pradesh AIR 1971 SC 1450; Makan Jivan vs. State of Gujarat AIR 1971 SC 1779; Mohd Main Uddin Vs. 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 persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.