1. This Crl.M.C. is filed by the petitioner challenging Annexure- 1 FIR and Annexure -2 Final Report in Crime No. 52 of 2013 of Thrithala Police Station, Palakkad, wherein he has been arraigned as accused No.1, charged with commission of the offences punishable under Section 143, 147, 148, 448, 323, 324 and 308 r/w 34 of the Indian Penal Code.

2. The Prosecution case is that on 15.01.2013 around 06:15 P.M. while CW1 was sitting in Uduppi Hotel at Padinjarangadi in Pattithara Panchayat along with his two friends, the accused persons, having formed themselves into an unlawful assembly with the common object of causing bodily injury to CW1 and with the intention to cause his death, committed criminal trespass into the hotel, and in prosecution of the said common object the 1st accused assaulted CW1 with an iron pipe, which act was so imminently dangerous that it would, in all probability, have caused the death of CW1, thereby constituting an attempt to commit culpable homicide not amounting to murder, and the accused Nos.2, 3 and 7, in furtherance of the common object of the unlawful assembly, also voluntarily caused injuries on various parts of the body of CW1, thereby committing the aforesaid offences.

3. Pursuant to the registration of the above crime, the 2nd respondent completed the investigation and laid the final report before the jurisdictional court, upon which the Judicial First Class Magistrate Court, Pattambi, took cognizance of the offences as C.P. No.14 of 2015 and issued summons to all the accused, including the petitioner. On service of summons, the petitioner and the other accused entered appearance before the learned Magistrate and took part in the committal proceedings. Subsequently, the learned Magistrate, in exercise of powers under Section 209 of the Code of Criminal Procedure, committed the case to the Court of Session, Palakkad, except in respect of the 7th accused, and the matter was thereafter assigned to the Additional Sessions Court, Ottapalam, for trial and disposal. At the said stage, owing to the petitioner’s employment-related travel to different places, he was unable to be present before the Sessions Court, as a result of which the case against the petitioner was split up, and the learned Sessions Judge proceeded with the trial against the remaining accused. Trial in the said proceedings which was numbered as SC No.542 of 2015 ended in acquittal of all other accused in the crime. As the petitioner was absent and his case had been split up his case was moved to the Long Pending Register.

4. Petitioner has filed this Crl.M.C. contending inter alia that in view of the acquittal of all other accused, no meaningful legal purpose would be served by continuing the trial against him in the same crime on the same evidence, and the proceedings against him are fit to be quashed, invoking the extraordinary powers under Section 482 of the Cr.P.C.

5. Heard.

6. The learned counsel for the petitioner submits that all the accused in S.C.No. 542 of 2015 had been acquitted by the Additional Sessions Court, Ottapalam, finding that PW1 has no consistent case regarding the occurrence and identity of the accused. None of the accused were identified by PW1 in the dock. The statement of PW1 is inconsistent in material particulars and cannot be believed without corroborative evidence. It is further submitted that Exhibit P7 is also not in consistent with the case of PW1. Mos. 1 and 2 were not seized from the place of occurrence as per Exhibit P3 to link the weapon as used by the Accused and left there. It was also directed to destroy MO1 series and MO3 being value less, confiscate, break open and auction MO2 after appeal period by Judgment dated 18.01.2019 in SC No. 542 of 2015.

7. The learned Public Prosecutor opposed the contentions raised on behalf of the petitioner and submitted that the mere acquittal of the co-accused would not ipso facto entitle the petitioner to claim similar relief, as the petitioner had not subjected himself to the trial process. It was further contended that the overt act attributed by accused No.1/petitioner is distinct and specific, inasmuch as the petitioner, in furtherance of the common object of the unlawful assembly, assaulted CW1 with an iron pipe, aiming a blow at his head, which was averted when CW1 turned aside. It was submitted that had the blow landed on the head, it would have resulted in the death of CW1, thereby constituting an attempt to commit culpable homicide not amounting to murder. The learned Public prosecutor thus prays that the Crl.M.C. may be dismissed.

8. I have heard both sides in detail and considered the contentions put forth. It is noted that the Additional Sessions Judge, while acquitting all other accused in the crime, had in Annexure A3 judgment concluded that the prosecution had not succeeded in establishing and proving the offences charged against the accused. The ingredients to constitute the offences alleged had not been made out or established, and it was found that the prosecution's evidence on record does not establish or prove the charge levelled against the accused.

9. It is noted that all the other accused persons, who stood on the same footing as the petitioner, have already been acquitted by the trial court. It is noted that the very same set of facts, allegations, and evidentiary circumstances that led to the acquittal of the other accused persons equally apply to the petitioner/accused No.1. It is trite that when there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. [See Javed Shaukat Ali Qureshi v. State of Gujarat [(2023) 9 SCC 164]; Yogarani v. State by the Inspector of Police (2024 SCC OnLine SC 2609)].

10. I note that in the facts and circumstances of the case, the allegations against the petitioner are inseparable from those in respect of co accused who have been acquitted. When all other accused in the crime stand acquitted after trial, and when similar or identical evidence exists against the petitioner who is also accused in the same crime, the petitioner is entitled to seek quashing of the proceedings against him on the premise that even if he is made to face the trial, the result would not be different. Requiring the petitioner to face trial solely on the ground that he went out in sought of employment after the committal proceedings, as well as at this stage where all the MOs had been disposed off and the case was effectively closed, would be a futile exercise.

                  In the above, I deem this to be a fit case to exercise the jurisdiction under Section 482 Cr.P.C. as sought by the petitioner. Accordingly, this Crl.M.C. is allowed. Annexure 1 FIR and Annexure 2 Final Report in Crime No.52 of 2013 of Thrithala Police Station, Palakkad as against the petitioner/ accused No. 1 is quashed.