Judgment:
(Prayer: This Crl.A. is filed under Section 374(2) of Cr.P.C. by the advocate for the appellant/accused No.2 praying to set aside the judgment dated 13.6.2006 passed by the P.O., F.T.C.- VI, Bangalore, in S.C.No.585/2003 convicting the appellant/accused for the offence P/U/S. 302 r/w. 34 of IPC.)
This matter is listed for admission. Appeal is admitted.
By consent of the parties, appeal is heard on merits.
The appellant and one Nagaraju @ Naga were tried for the offence punishable under Section 302 r/w. Section 34 of IPC by the P.O., FTC - VI, Bangalore City, in SC No.585/2003 based on the charge sheet filed by Koramangala police.
2. It is the case of the prosecution that
P.W.15-W.Nazrath is the husband, P.W.4-Vinitha D'Souza is the daughter of deceased Smt.Rita Nazarath; P.W.2-Franc D'Souza is the son-in-law of the deceased and husband of P.W.4. Some time prior to 17.4.2003, P.W.15 constructed a farm house in his land bearing Survey No.131 of Doddakannalli, Bangalore and after construction, deceased Smt.Rita Nazarath started residing in the farm house since 17.4.2003. While she was staying in the farm house, P.W.2 used to supply her food, vegetables and other needs, almost every day. On 11.6.2003, at about 11.00 a.m., P.W.2 as usual went near the farm house and found the latch of the door having been closed from outside. Thereafter, he went inside the house and saw his mother-in-law lying dead on a sofa. Immediately, he informed the same to his wife over phone and requested her to come there along with a Doctor. At about 12 noon P.W.4 along with Dr.M.Selvarajan-P.W.12 and others came to the farm house. The Doctor on examination declared Smt.Rita Nazarath as dead. At that time, P.Ws.2 and 4 noticed that the gold earnings, gold bangles, wrist watch of the deceased were missing from her person and they further noticed that a VCP and cash of Rs.2,000/- kept in the almirah were also missing from the house. Further they also noticed ligature marks on the neck of the dead body and therefore they suspected that she has been murdered by some person. Thereafter at about 1.00 p.m., P.W.2 lodged a complaint about the incident to the Varthur Police as per Ex.P.21 and on the basis of the said complaint, case in Crime No.72/2003 came to be registered for the offence punishable under Section 302 of IPC against unknown person. After registering the case, P.W.16-PSI visited the scene of occurrence, held inquest on the dead body in the presence of the panchas and then the dead body was subjected to post mortem examination. The doctor, who conducted post- mortem examination, opined that the death was due to asphyxia as a result of Throttling. During the investigation, the Investigating Officer recorded the statement of the witnesses. In the meanwhile, the accused were apprehended and arrested by Madivala police in connection with crime No.957/2002 and they were produced before P.W.17-Abdul Azeem, the then ACP on 24.6.2003 at about 5.00 p.m. Before P.W.17- Abdul Azeem, accused made voluntary statements and disclosed their involvement in the murder of deceased Smt.Rita Nazarath. The voluntary statements given by the accused were recorded as per Exs.P.22 and P.23. Thereafter, these accused persons led P.W.17 and panchas to the farm house of the deceased and showed the place where they committed the murder and robbed gold earnings and bangles, wristwatch and also VCP as well as cash. The voluntary statements of accused Nos.1 and 2 revealed that accused No.2 had pledged the gold earnings with Dhanalakshmi Bankers and had sold the gold bangles and wrist watch to one Velu and accused No.2 had sold the VCP to one Manju-P.W.7. Pursuant to the voluntary statements, the gold earnings was recovered from the possession of P.W.5-T.Vijay, Proprietor of Dhanalakshmi Bankers as per M.O.5 and VCP was recovered from the possession of P.W.7-Manju as per M.O.4 in the presence of the punchas. Thereafter, P.W.17-Abdul Azeem, transferred the case papers to Varthur police station on the point of jurisdiction. M.Os.4 and 5 were identified by P.Ws.1 to 4 as belonging to the deceased. Varthur police after completing the investigation filed charge sheet against the accused for the offence punishable under Section 302 r/w Section 34 of IPC.
3. On production of the accused before the learned Magistrate, they were remanded to judicial custody. However subsequently, accused No.2 was enlarged on bail. Accused No.1 was in judicial custody till the disposal of the case and therefore, from the date of pronouncement of the judgment under appeal, they are serving out the sentence.
4. Before the learned Sessions Judge the accused pleaded not guilty for the charge leveled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused, examined PWs.1 to 19, got marked Exs.P.1 to P.31 and MOs.1 to 5.
5. During their examination under Section 313 of Cr.P.C. the accused denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication.
6. The learned Sessions judge on hearing the parties and upon appreciating the oral and documentary evidence placed by the prosecution held that the prosecution has proved to bring home the guilt of the accused persons beyond reasonable doubt. Accordingly, A.1 and A.2 were convicted for the offence punishable under Section 302 r/w. Section 34 of IPC and sentenced to undergo imprisonment for life.
7. Aggrieved by the judgment of conviction and order of sentence, A.1 - Nagaraju @ Naga had filed an appeal before this Court in Criminal Appeal No.2433/2006, which was heard by a bench of this Court, for which one of us KLMJ is a party. In the said appeal, entire evidence let in by the prosecution was considered in detail and came to the conclusion that appreciation of the evidence by the Sessions Court as perverse and further held that the prosecution has failed to bring home the guilt of both the accused persons. By reversing the findings of the Sessions Court, the appeal filed by accused No.1 - Nagaraju @ Naga came to be allowed on 3.06.2010 and set aside the judgment of conviction and order of sentence and the appellant therein was ordered to be set at liberty forthwith.
8. The appellant, who had not filed any appeal along with A.1 - Nagaraju @ Naga, has now filed the present appeal.
9. We have heard the learned counsel for the parties.
10. Learned counsel for the appellant submits that this Court while considering Crl.A.No.2433/2006 filed by Nagaraju @ Naga has actually considered the appeal of the present appellant also. Having considering the case of the prosecution and the defence of both the accused persons, this Court in the aforesaid appeal came to the conclusion that the prosecution has failed to bring home the guilt of both the accused persons and further held that the accused persons are to be set at liberty. However, by oversight the benefit, which has extended to the present appellant, had not been considered by the bench, while allowing Crl.A.No.2433/2006. In the circumstances, she requests the Court to allow the appeal.
11. Mr.Nawaz, learned Addl. S.P.P., having seen the judgment in Crl.A.2433/2006 is unable to dispute the statement made by the appellant.
12. We have also perused the judgment in Crl.A.2433/2006.
13. Though the appeal was filed by accused No.1, the bench has considered the case of both the accused persons and has come to the conclusion that the prosecution has failed to bring home the guilt of both the accused persons and further held that both the accused persons are to be set at liberty. However, the bench has not observed the appellant herein was not a party to the said appeal and in the said appeal, it is not clarified that even though separate appeal was not preferred by the present appellant, the appellant is also entitled for the benefit of the order passed in the aforesaid appeal.
14. Having heard the learned counsel for the parties, the only point to be considered by this appeal is; Whether the judgment of conviction passed against the appellant in SC No.585/2003 by the Fast Track Court , Bangalore City, dated 13.6.2006 has to be set aside in view of the findings of this Court in Crl.A.No.2433/2006 or not?
15. As contended by the learned counsel for the appellant, a co-ordinate bench of this Court has considered the case of the prosecution in detail and held that the accused persons are to be set at liberty, since the prosecution has failed to bring home the guilt of the accused persons. As a matter of fact, the bench has proceeded with the matter, as if the appeal had preferred by both the accused. Actually the appeal was filed by A.1 only, not by the present appellant.
16. In the circumstances, in view of the judgment of the Supreme Court in Madhu Vs. State of Kerala reported in 2012 AIAR (Criminal) 147 at Head Note - E, the judgment in Crl.A.2433/2006 has to be extended to the present appellant also.
17. Accordingly, the appeal is allowed. The Judgment of conviction and order of sentence dated 13.06.2003 passed by the Presiding Officer, Fast Track Court-VI, Bangalore City, in S.C.No.585/2003, is hereby set aside in respect of the present appellant also and the appellant is acquitted of the charge leveled against him for the offence punishable under Section 302 r/w. Section 34 of IPC. The appellant is ordered to be set at liberty forthwith, if he is not required in any other case.