Surendra Singh, J. - (1.) HEARD learned counsel for the applicant as well as the learned A.G.A. and perused the material placed on record.
(2.) THE applicant by way of filing this application under Section 482 Cr.P.C. has sought to quash the proceedings of Case No.645 of 2006 (State Vs. Smt. Saroj), under Sections 363/366 IPC, P.S. Iglas, District Aligarh, pending in the court of Additional Chief Judicial Magistrate, Court No.1, Aligarh. Learned counsel for the applicant has contended that one of the co -accused Omi @ Om Pakash has been tried and acquitted in S.T. No.91 of 2007 by the Special Judge/Additional Sessions Judge, Aligarh vide judgment and order dated 7.9.2009. He has further contended that since co -accused has been acquitted for the reasons that the prosecution witnesses did not support the prosecution version, there is no chance of case resulting into conviction of the applicant and if the case is allowed to continue against him it will only be a sheer formality and wastage of valuable time of the court and, therefore, the applicant has claimed that he be afforded the benefit of principle of "stare decisis" and the proceeding against him should be dropped. Reliance has been placed on the several decisions rendered by Single Judge of this Court.
(3.) ON the other hand, learned A.G.A. has contended that judgment and order of acquittal of co -accused Omi @ Om Pakash rendered in S.T. No.91 of 2007 arising out of same prosecution is wholly irrelevant in the case of the present applicant who is to be tried subsequent to earlier one. Much emphasis has been made on the non -admissibility of the judgment of acquittal in the present trial in view of Sections 40 to 44 of Indian Evidence Act. He has further contended that the case of the present accused applicant has to be decided only on the basis of evidence adduced during the course of his trial. He has relied upon the view expressed by Hon'ble the Supreme Court in the cases of Rajan Rai Versus State of Bihar,, 2006(1) SCC (Crl) 209, S.P.E. Madras Vs. K.V. Sundaravelu, : AIR 1978 SC 1017, K.G. Prem Shankar Vs. Inspector of Police & another, XLV 2002 ACC 920 (SC) and Karam Singh Vs. State of M.P. : AIR 1965 SC 1037. He has further relied upon the decision of the Division Bench of this Court in Km. Rinki Vs. State of U.P., 2008 (63) ACC 476. It has been observed by the Division Bench of this Court as follows: The inference that is deducible from discussion of the above decisions that the judgement of acquittal rendered in the trial of other co accused is wholly irrelevant as the said judgement would not be admissible under the provisions of sections 40 to 44 of the Evidence Act. It also leaves no manner of doubt that every case has to be decided on the evidence adduced therein and therefore, the case of the petitioner has to be decided on the basis of evidence which may be adduced during the course of trial. The principles that are distilled from the discussion of the above decisions are: (i)the acquittal of a co -accused in a separate trial cannot be made basis for quashing the proceedings against another co accused who is being separately tried on the principle that each case has to be decided on the evidence adduced in that case; (ii) judgment of acquittal rendered in one case is not relevant in the case of co -accused separately tried inasmuch as sections 40 to 44 of the evidence Act deal with relevancy of certain judgments in probate, matrimonial, admiralty and insolvency jurisdiction and therefore inapplicable to a criminal case.;