NARAYAN RAI Vs. STATE OF U P

JUDGEMENT

(1.) S. S. Kulshrestha, J. Heard the learned Counsel for the applicant and the learned A. G. A. and also perused the materials on record.

(2.) THIS application under Section 482 of the Code of Criminal Procedure (in short 'the Code') has been brought for quashing the proceedings of case No. 78/96, State v. Narayan Rai, pending in the Court of IV Addl. Civil Judge (Jr. Division)/judicial Magistrate, Ghazipur. It has been contended by the learned counsel for the accused applicant that with regard to the incident which is alleged to have taken place on 29-4-1996, Smt. Vidyavati Devi lodged report at the police station attributing allegations against the accused applicant and his son Sri Harshwardhan Rai that with a view to kill Sri Pankaj Rai @ Pappu, son of the complainant at the exhortation of Sri Narayan Rai, his son Sri Harshwardhan Rai opened fire resultantly causing serious injuries to him. On the report of Smt. Vidyavati Devi case was registered at case crime No. 78/96 under Section 307 IPC. The police after investigation had submitted charge-sheet against Sri Harshwardhan Rai and his father Sri Narayan Rai. Case of Sri Harshwardhan Rai was separated at the committal stage and it was taken up for trial before the V Addl. Sessions Judge, Ghazipur (S. T. No. 321/98 ). In the course of trial two witnesses namely Smt. Vidyavati Devi and injured Sri Pankaj Rai were examined. Smt. Vidyavati Devi though supported the allegations made in the report but made it clear that she was not the eye- witness to the incident. So far as Sri Pankaj Rai is concerned he denied the truthfulness of the allegations made in the written report and stated that he could not identify any one at the spot when he sustained fire-arm injuries. Sri Pankaj Rai injured was declared hostile. The testimony of both the witnesses was not found credible to fasten Sri Harshwardhan Rai in the commission of the aforesaid offence. Emphasis has been laid that these are the only witnesses who would again be examined if the proceedings are permitted to prolong against the accused applicant Sri Narayan Rai. No useful purpose would be served for prolonging the proceedings against him. Principle of stare decisis in the given circumstances of the case has been resorted. Reliance may also be placed in the case of Diwan Singh v. State, 1965 (2) (sic) 118, wherein it was held: "if two persons are prosecuted though separately, under the same charge for offences having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anomalous position in law and is likely to shake the confidence of the people in the administration of justice. " THIS view was reiterated in the case of Gulab Khan v. State of U. P. , Lucknow Bench of this Court. The principle of stare decisis will apply in the present case and conviction cannot be procured.