FRANK ANTHONY Vs. STATE

JUDGEMENT

(1.) Appellant has stood convicted for life on two counts in connection with trials that he faced in S.C .464/2010 and S.C .729/2010 in the court of Additional City Civil and Sessions Judge (CCH-64), Bengaluru, for the main offence under Sec. 302 of IPC. Though these two appeals assail the judgment of conviction , Sri V.G .Tigadi, learned counsel for the appellant, did not question the correctness of conviction judgment, but raised another ground in regard to prejudice caused to the appellant for not holding joint trial. Be fore delving on the legal issue that he raised, the incidents that led to prosecution of the appellant may be traced here briefly.

(2.) Two incidents occurred on 09.08 .2009. The first incident related to killing of a woman Smt. Lourd Mary, aged 82 years, at 1.00am . In regard to this incident the prosecution stated that there was conspiracy between the appellant and one Srinivas (shown as accused No.2 in S.C .464/2010) to rob the jewellery of that woman. In furtherance of that conspiracy the appellant and Srinivas took Smt. Lourd Mary in a vehicle, i.e., a Tempo Traveller stating that her daughter Rajamma was unwell, and on the way they assaulted the old woman with an iron rod, robbed her jewellery and then threw the dead body on the road side. To cause disappearance of evidence they dropped a size stone on her and washed the blood stains in the vehicle and on their clothes.

(3.) The argument of Sri V.G .Tigadi was that though the incidents were different, they having been committed on the same day, the appellant should have been tried in one sessions trial as the offences were not only of same kind, but were committed in one series of acts so connected together as to form the same transaction. He referred to Sec. 219 of Cr .P.C. which states that if a person is accused o f more offences than one of the same kind but committed within a span of twelve months, the accused may be tried at one trial but only exception being not more than three being tried in one trial. He also referred to Sec. 220(1) of Cr.P.C. Though two offences were said to have been committed on the same day one after another of course with a time interval, it cannot be said that they were distinct o ffences. In this view not conducting joint trial resulted in a great prejudice being caused to the appellant. He submitted that in both the cases some witnesses were common. In relation to Sessions Case 729/2010, the statement of the appellant under Sec. 313 of Cr.P.C was first recorded on 28/12/2014 . No witness was examined during the year 2013 . In connection with Sessions Case 464/2010 after 16/12/2014 till 10/3/2016, no witness was examined. Statement of the appellant under Sec. 313 of Cr.P.C was recorded in S.C .464/2010 on 24/10/2019. Again Sec. 313 statement was recorded on 29/12/2018 in connection with S.C .729/2010. Though the judgments were pronounced on the same day, i.e., 14/6/2021 in both the cases, owing to enormous delay in completing the trial, the appellant has not been able to claim remission under Sec. 432 Cr.P.C. I f the accused had been tried in one case jointly for both the offences, by now he would be entitled for remission. The separate trials affected the appellant's invaluable right of claiming remission and since clear prejudice has been established, this court sitting in appeal can consider it to do justice. In support of his argument he has placed reliance on the judgments of the Supreme Court in Nas ib Singh Vs. State of Punjab and Another,[(2022 ) 2 SCC 89 ]. and Muthuramalingam and Others vs State represented by Inspector of Police,[(2016 ) 8 SCC 313]. He also referred to Government Orders relating to grant of remission.