Accused cannot be prosecuted where co-accused are acquitted on identical charges without independent evidence, as it violates principles of justice and due process.

ORAL ORDER :

The petitioner who is arraigned as accused No.3 is seeking quashing of the proceedings pending in SC No.14/2024 for the offences punishable under Sections 399 and 402 of IPC.

2. The learned counsel for the petitioner drawing the attention of this Court to the judgment rendered by the learned Sessions Judge in S.C.No.77/2021 has pointed out that the other co-accused, who were tried for identical allegations and on the very same set of evidence, have been acquitted by the judgment and order of acquittal dated 30.10.2024. It is submitted that the substratum of the prosecution case having failed in earlier trial, there remains no independent material to continue proceedings against the present petitioner. Placing reliance on the said judgment of acquittal and further relying upon the view taken by the coordinate Bench in cases of similar nature, learned counsel for the petitioner has tried to persuade this Court to demonstrate that continuation of proceedings against the petitioner would amount to abuse of process of law.

3. This Court deems it fit to extract the relevant paragraphs of the judgment rendered by the learned Sessions Judge in S.C.No.77/2021. The same is extracted as under:

"18. On considering the entire papers available on record and the evidence adduced by all the witness, it is relevant to note that in this case C.W.5, C.W.7 to C.W.10 have been given up by the prosecution side. Further during the evidence, P.W.1 who is the complainant and police officer, he deposing that he has not called Panchas from the local as the shops were closed and admitted that in Ex.P.2 it is not mentioned as to which police caught which accused and that in Ex.P.2 it is not mentioned that said accused were planning to loot people coming from Airport, raises doubt on the case of the prosecution. Further P.W.1 deposing that he has not issued notice to the panchas and admitting that there is no writing as to police has searched themselves before conducting search of alleged accused persons, also raises doubt. Seizure Panchanama witnesses P.W.2 and P.W.3 deposing against the case of the prosecution and turning hostile raises doubt. Further Police witness P.W.3 deposing that in Ex.P.1 Mahazar it is not mentioned as who caught which accused, nor he has stated it in the statement and that they have not called the local persons to come as panchas and notice was not issued to the panchas, raises doubt on the case of the prosecution. Further P.W.3 deposing that before the search of accused persons they did not conduct their own search, goes to the crux of the case and it can not be said that prosecution has proved the case beyond reasonable doubt.

19. On going through the prosecution case, it can be seen that P.W.3 and P.W.5 have turned hostile and not supported in toto, to the case of the prosecution. Further panchanama witness although have been examined, but the various discrepancies in the evidence of the pancha witnesses raises doubt on the case of the prosecution and it cannot be taken that the case of the prosecution is proved beyond all reasonable doubt.

20. Further the panchanaama which are at Ex.P.1 dated 07.10.2016, is not proved beyond all reasonable doubt. Further, police witnesses deposing that no independent witness are made as panchas who reside near to the spot, this aspect also raises doubt on the case of the prosecution. Further, evidence shows there is nothing incriminating deposed by the witness so as to say the ingredients of section 399 and 402 of INDIAN PENAL CODE , can be said to be proved beyond all reasonable doubt. Further, by the evidence of panchanama witnesses, nowhere it has