Oma @ Omprakash & Anr vs State Of Tamilnadu

3. The trial court then placed the matter before the Madras High Court for confirmation of the death sentence awarded to the accused persons. Meanwhile, the accused persons also preferred criminal appeal No. 566 of 2006 against the award of death sentence. The appeal was partly allowed and conviction against Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were confirmed but the sentence under Section 396 IPC was modified to that of life imprisonment instead of death sentence. Against which, accused Nos. 1 and 2 came up with this appeal. While this appeal was pending, the first appellant (A1) died and the second appellant (A2) has prosecuted this appeal.

5. The prosecution could not nab the accused persons for over ten years. A2 was arrested on 26.02.2005 in connection with some other case in Cr. No. 59 of 1996. It is the prosecution case that his finger prints tallied with the ones lifted from the place of occurrence in that other case. Further, it was also stated, as per the investigation, A2 made a disclosure and pursuant to that the iron rod (M.O. 1) used 10 years back was recovered.

6. A1 was arrested on 21.09.2005 by the special team in connection with some other case in Cr. No. 352 of 2004 of Sri Perumbatoor Police Station. An identification parade was conducted so far as A1 is concerned on 20.10.2005 in which PW 10, Karthik an Auto Driver said to have identified A1. Later, the charge-sheet was filed by PW 15 on 23.12.2005 and charges under Sections 395, 396 and 397 IPC were framed against the accused persons on 24.03.2006.

9. The High Court, as already indicated, vide judgment dated 27.07.2006 converted the sentence of death to life imprisonment under Section 396 IPC and rest of the sentence on other heads were confirmed.

23. We may indicate at the outset that the accused persons were apprehended after a period of ten years from the date of the incident and nine other accused persons are still absconding. The incident had taken place on 07.06.1995 and the accused persons were arrested on 26.02.2005 from Rajasthan in connection with some other case ie. Cr. No. 59 of 1996. The prosecution version that A-2 finger prints tallied with ones lifted from the place of occurrence in Cr. No. 59 of 1996. Further, it is also the prosecution case that A2 made a disclosure and pursuant to that iron rod (M.O. No.1) used 10 years back was recovered. An identification parade was conducted so far as A1 is concerned on 20.10.2005, who is now no more. However, no identification parade was conducted so far as A-2 is concerned. It has come out in evidence that the photographs of A-2 was shown to PW 1 by the police on 30.10.2005 and asked him to identify the accused and on identification by PW 1, the accused was interrogated by the police. In cross-examination, PW1 has stated as follows:

38. In this case, the prosecution could not prove that the rod recovered has any nexus with the crime alleged to have been committed by A-2. We are of the view that the prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. The High Court, therefore, committed a gross error in awarding life sentence to A2.

39. This appeal is, therefore, allowed and the conviction and sentence awarded to A-2 is set aside. We are informed that the accused has already served the jail sentence for more than eight years now. A-2 is, therefore, set at liberty, unless he is wanted in any other case.

21. Consequently, the appeal stands allowed, the judgment of conviction and order of sentence are set aside and the appellant is directed to be set at liberty forthwith unless he is required to be detained in any other case.

……………………………….J. [Dipak Misra] New Delhi;

December 11, 2012.

[15] * [(1990) (Vol. 64. Australian Law Journal, p. 691)] [16] (1998) 5 SCC 513