Abdul Vahid vs The State of Kerala

Thomas P. Joseph, J.—Petitioner is the 7th accused in Crime No. 488 of 1992 of Kayamkulam Police Station, L.P. No. 14 of 1998 of the court of learned Judicial First Class Magistrate, Kayamkulam and S.C. No. 857 of 2009 of the court of learned Additional Sessions Judge, Mavelikara for offences punishable under Sections 143, 147, 148, 323, 324 and 307 read with Section 149 of the Indian Penal Code (for short, "the IPC"). Accused 2 to 5 and 8 were acquitted in S.C. No. 62 of 2005. The first accused surrendered and he was tried in S.C. No. 123 of 2006. He was acquitted by Annexure-I, judgment for want of sufficient evidence to implicate him in the alleged incident. While pronouncing Annexure-I, judgment learned Additional Sessions Judge observed that "In the result the accused 1 to 8 are not found guilty for the offence punishable u/s 143, 147, 148, 323, 324, 307 and 149 IPC and they are acquitted for the said offences u/s 232 of Code of Criminal Procedure cancelling their bail bond, I direct that they be set at liberty." Petitioner is now being prosecuted in S.C. No. 857 of 2009. Petitioner wants proceeding against him to be quashed on the principle of issue estoppel. It is contended by learned Counsel that though Petitioner had not participated in the trial, Petitioner also has been acquitted by Annexure-I, judgment having regard to the nature of evidence given by the witnesses and hence trial of Petitioner is not warranted. I have heard learned Public Prosecutor as well.

C.Ws.1 to 3 are the injured. CW4 is an independent witness C.Ws.1 and 4 expired even before trial leading to Annexure-I, judgment C.Ws.2 and 3 were examined as P Ws.1 and 2. In the course of trial, P Ws.1 and 2 and the accused (who faced trial) filed a petition to compound the offences. Learned Sessions Judge dismissed that petition since some of the offences were not compoundable. Learned Sessions Judge observed that P Ws.1 and 2 did not support the prosecution. They claimed that they settled the case with the accused. Though they referred to the incident, claimed that they could not identify the assailants. Noting these circumstance, learned Additional Sessions Judge passed Annexure-I judgment acquitting accused 1 to 8 u/s 232 of the Code of Criminal Procedure.

Having regard to the phraseology used by learned Additional Sessions Judge in Annexure-I judgment in S.C. No. 123 of 2006 the operative portion of which I have extracted above, I am inclined to think that learned Additional Sessions Judge was conscious about the case against Petitioner/A7 also while the said judgment was pronounced. Taking note of the nature of evidence let in by P Ws.1 and 2, Petitioner/A7 was also acquitted. Otherwise when the first accused alone faced trial in S.C. No. 123 of 2006, accused 2 to 5 and 8 having already faced trial in S.C. No. 62 of 2005 there was no necessity for learned Additional Sessions Judge to mention that accused 1 to 8 are found no guilty, they are acquitted, their bail bonds are cancelled and that they are set at liberty.

Even otherwise, having regard to the nature of evidence given by P Ws.1 and 2, taking into account the fact that CW1, another injured and CW4, the independent witness are no more and considering the fact that though dismissed, P Ws.1 and 2 had filed a compounding petition in the trial court, I am inclined to think that it is not necessary to direct Petitioner to face the trial.

Resultantly this Crl.M.C. is allowed and proceeding against Petitioner/A7 in S.C. No. 857 of 2009 of the court of learned Additional Sessions Judge, Mavelikara is quashed.