JUDGMENT Amar Saran, J.
1. Heard learned Counsel for the applicant and the learned A.G.A. appearing for the State.
2. This application has been filed for quashing the criminal proceedings with respect to crime No. 52 of 1985 against the applicant under Sections 147, 148, 149, 380 and 302 IPC, P.S. Asodhar, district Fatehpur, which was pending as Criminal Case No. 1372-A of 1985 State v. Ram Dularey, before the Court of C.J.M. Fatehpur.
3. The allegations in this case in the F.I.R. were that on 9.4.1985 at 4.30 p.m. one Bakshraj hurled a hand bomb, which fell near the deceased Suryabhan Misra and one of the pellets struck the deceased. Hearing the sound of the bomb, some persons arrived there. After some time, the co-accused Girja Shankar armed with licensed rifle, the applicant Ram Dularey carrying a double barrel gun, Bakshraj, Munni, Galku, Shambhoo, Kailashi, Gulab, Kamlesh, Rampal, Bharose, Bada Bhoora, Kalloo Kachhwah and others who were carrying lathies arrived there and Girja Shankar and Ram Dularey pointed their weapons at the deceased and after exhorting that the applicant would not be spared because he had been opposing them, the accused namely Bakshraj and Kalloo Kachwah caught hold of the deceased and took him to the door of Chhote Bhadwaria and there he was beaten with lathies and blunt side of the guns. When another brother of the informant Gyan Prakash, namely Om Prakash arrived there, he was also assaulted. The co-accused Bakshraj and Kallu Kachhawaha also took away the licensed gun of the deceased. The report of this incident was lodged on 9.4.1985 at 11.30 p.m.
4. It is argued by the applicant that the trial of the applicant was separated and in the separate trial of the co-accused, the co-accused in S.T. No. 85 of 1986 other than Kallu were acquitted and only Kallu was convicted. Some of the accused Bakshraj and Girja Shankar had already died. On the basis of that judgment it is contended that the applicant's trial should also be quashed. I am not in agreement with this submission of the learned Counsel for the applicant that if some of accused are acquitted in a trial by giving the benefit of doubt in a trial of the accused, in a separate trial in which separate evidence is to be recorded the other accused have also to be acquitted. The cases mentioned by the learned Counsel for the applicant Smt. Zahran Nisa v. State of U.P. and Anr. 2005 (3) JIC 505 (All), Sant Ram Master @ Santram Jaiswal v. State of U.P. 20.05 (3.) JIC 391 (All), Smt. Begum and Anr. v. State of U.P. and Anr. 2005 (53) AC 101, Sanju @ Sanjeev Kumar v. State of U.P. 2005 (53) ACC 429 and Wazeer Yadav v. State of U.P. Criminal Misc. Application No. 378 of 2004 decided on 20.1.2004 are distinguishable, as none of those cases were cases in which some of the accused had been acquitted and some had been convicted as in the present case and the trial of some of the accused had abated in view of their deaths. In my view, the evidence will have to be recorded in the case of the applicants separately and the evidence in the earlier acquittal, case cannot be looked into in the present case. This is because Section 43 of the Evidence Act clearly provides that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act. That the judgment dated 1.12.1990 was passed in S.T. No. 85 of 1986 by the Additional Sessions Judge, Fatehpur, is not a fact in issue here. Furthermore, Section 40 can bar a second suit or holding of a second trial of the same accused, but it does not bar the trial of another accused. Section 41 also refers to a final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character. This Section also has no application to the present case. Section 42 states that judgments, orders or decrees other than those mentioned in Section 41 are relevant if they relate to matters of a public nature relevant to the inquiry; but the judgment in consideration here does not relate to any matters of public nature. Hence Section 42 also does not apply. Therefore, the judgment and the evidence therein is irrelevant for arriving at a finding of about the innocence or guilt of the applicant in the present case. Also I find in this case there was an injured person. Learned Counsel for the applicant would like me to appreciate the evidence in the other case in which co-accused have been acquitted and the statement of the injured witness etc. I do not think it is open for me to go into such matters in an application under Section 482 Cr. P. C. Similarly the applicant has sought to contend that he is an advocate and his name is Raj Dularey and not Ram Dularey. This is also a question of fact to be appreciated by the trial court during trial and not in 482 Cr. P. C. proceedings.
5. In this view of the matter, there is no force in this application and it is dismissed. Stay order granted earlier is vacated.
6. Let this order be communicated to the court below within two weeks for expeditious disposal of the case in view of the long period of time (since 4.2.1987) for which trial has already remained stayed.