1. The petitioners are accused Nos. 1 and 4 in Crime No. 622/2010 of Anthikkad Police Station registred alleging commission of offences punishable under Section 143, 147, 148, 294(b), 506(ii) and 427 r/w Section 149 of the Indian Penal Code. Annexure-A is the Final Report laid in the said crime. Cognizance was taken thereon and it was taken on file as C.C.No.1726/2010 of the Court of Judicial First Class Magistrate- 1, Thrissur. Since the petitioners were absconding the case as against them was split up and re-filed as C.C.No. 2917/2012. The trial as against the others except the petitioners were proceeded with and ultimately, as per Annexure-B judgment they were acquitted. This petition is filed seeking quashment of Annexure-A final report and all further proceedings against the petitioners in C.C.No.2917/2012 on the files of the Court of the Judicial First Class Magistrate-I1,Thrissur on the strength of Annexue-B and also Annexures C to E, the affidavits sworn in respectively by the respondents 2 to 4 in this case.

2. I have heard the learned counsel for the petitioners, the learned counsel appearing for respondents 2 to 4 and the learned Public Prosecutor.

3. As noticed hereinbefore Annexure-B is the judgment of acquittal in respect of the accused in Crime No.622/2010 who faced the trail in C.C.No.1427/2010 who are the co-accused of the petitioners. There cannot be any dispute with respect to the position that a judgment of acquittal in respect of a co-accused cannot be a bar for the subsequent trial of the absconding accused in the light of the Full Bench decision of this Court in Moosa V. Sub Inspector of Police reported in 2006(1) KLT 552 (F.B.). In the said decision the Full Bench carved out an exception to the said law laid in that decision. The exception being a case where the substratum of the very prosecution case is lost with the pronouncement of the concerned judgment of acquittal. Having perused Annexure-B judgment I am of the considered view that the petitioners cannot be heard to contend that with the pronouncement of Annexure-B judgment the very substratum of the prosecution case is lost. If that be so, in the light of the judgment in Moosa's case (supra) that cannot be a bar for their trial merely because their co-accused were acquitted as per Annexure-B.

4. However, Annexure-B judgment assumes relevance in another context obtained in the light of the decisions of the Honourable Apex Court in Amar Singh & Others C. State of Punjab reported in AIR 1987 SC 826, Maiku & Others V. State of U.P. reported in AIR 1989 SC 67. A consideration of Annexure-B in the light of the aforesaid decisions becomes inevitable in view of the fact that with the pronouncement of Annexure-B judgment acquittal admittedly, the number of surviving accused in Crime No. 622/2010 of Anthikkad Police Station has been reduced below 5. The impact of the reduction of the surviving accused in a crime by a judgment of acquittal has been elaborately considered by the Hon'ble Apex Court in the aforesaid decisions. When the number of the surviving accused is brought below 5 with the pronouncement of a judgment acquittal of some of the accused in the concerned crime there cannot be an unlawful assemblage of persons for the purpose of Section 141, IPC. In otherwords, when the number is reduced below 5 the surviving accused cannot be convicted or sentenced on the ground they being a member of an unlawful assembly. In that view of the matter, in the light of Annexure-B whereby the number of accused persons have been reduced below 5, there cannot be any question of convicting and sentencing of the petitioners, the surviving accused persons in the aforesaid crime under Sections 143, 147, 148 and 149, IPC as the prosecution did not have a case that apart from the persons named as accused in Annexure-4 final report viz., the petitioners herein and others who stood the trial in C.C.No.1726/2010, some others were also acted in pursuance of a crimi