Can't Convict Co-Accused If Main Accused Is Acquitted After Examination Of Same Set Of Witnesses For Same Allegation: Allahabad HC

The Allahabad High Court has observed that considering the testimony of witnesses if one accused is acquitted, no criminal proceeding can be sustained against co-accused on the same set of witnesses with the same allegation/case.

The Bench of Justice Suresh Kumar Gupta observed thus as it quashed Section 364-A [Kidnapping for ransom] r/w Section 34 IPC charges against one Anant Mishra while taking into account the fact that on the basis of the testimony of same set of prosecution witnesses, the main accused in the matter were already acquitted by the court below.

Significantly, to arrive at this conclusion, the Court relied upon Allahabad HC's ruling in the case of Diwan Singh Vs. State 1964 Lawsuit (All) 182, wherein it was held that if the allegation and witnesses are same and after examination of witnesses one accused is acquitted, then under such circumstances, the conviction of co-accused cannot be sustained.

The case in brief 

Opposite party no. 2 - Matadeen lodged an FIR in October 2016 against the unknown persons under Section 364-A IPC with the allegation that some unknown accused abducted his brother Sikander.

During the investigation, the name of five persons, including the present applicant came to light, thereafter, the police submitted a charge sheet against 3 of the accused. The trial against these persons took place before the Additional District Judge, Sultanpur.

During the trial, three witnesses were examined by the prosecution. PW-1 Matadeen, who is the first informant and the brother of the abductee, did not support the prosecution case. PW-2 Monu alias Dilip Kumar, the niece of the abductee, clearly stated that no one had called him on his mobile phone for the ransom of Rs.25,00,000/- and he also did not support the prosecution case. PW-3 is the abductee Sikander, who also did not support the prosecution case.

In view of this, all the three accused persons were exonerated of the charges leveled against them under Section 364-A IPC and they were acquitted by on September 28, 2018.

However, on December 24, 2018, in this very matter, the police submitted a charegseheet against the petitioner and he was summoned by the Chief Judicial Magistrate vide order dated. Jan 18, 2019. Challenging the charge sheet and the summoning order, the petitioner moved to the High Court.

Court's observations 

Taking into account the facts of the case and the ruling of the HC in the Diwan Singh (supra) case, the Court observed thus:

"...considering the testimony of witnesses, if one accused is acquitted, no criminal proceeding can be sustained against co- accused on the same set of witnesses and in the present case too, there is no separate witness and on the basis of the testimony of same prosecution witnesses, main accused was acquitted by the court below, Whenever there is no prospect of the case ending in conviction, valuable time of court should not be wasted for holding trial only for the purpose of completing the procedure to pronounce the conclusion on future date. Therefore, the criminal proceeding cannot be permitted to continue against the applicant."

Therefore, under such facts and circumstances of the case, the Court held that the criminal proceeding against the applicant under Section 364-A/34 IPC cannot be sustained and the same was thereby quashed.

Case title: Anant Mishra @ Amit Mishra @ Surya Prakash Mishra v. State of U.P. and Another
Case Citation: 2022 LiveLaw (All) 148

Click Here to Download/Read Order