Karnataka High Court
Frank Anthony @ Frank vs Statey By on 21 March, 2025
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CRL.A No. 529 of 2022
C/W CRL.A No. 534 of 2022
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
CRIMINAL APPEAL NO. 529 OF 2022
C/W
CRIMINAL APPEAL NO. 534 OF 2022
In Crl.A No. 529/2022
Between:
Frank Anthony @ Frank
S/o Rayappa,
Aged about 30 years,
R/at Thatguppe Village
Uttarahalli Hobli,
Near Kaggalipura,
Digitally signed Kanakapura Main Road,
by VEERENDRA Bengaluru-560082.
KUMAR K M
Location: HIGH
COURT OF ...Appellant
KARNATAKA (By Sri Tigadi Veeranna Gadigeppa, Advocate)
And:
State by CCB P.S.
Represented by State Public Prosecutor
High Court of Karnataka,
Bengaluru-560001.
...Respondent
(By Sri Vijay Kumar Majage, SPP-II)
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CRL.A No. 529 of 2022
C/W CRL.A No. 534 of 2022
This Criminal Appeal is filed u/s.374(2) Cr.P.C praying to
set aside the judgment and order of conviction dated
14.06.2021 passed by the LXIII Additional City Civil and
Sessions Judge, (CCH-64), Bengaluru, in S.C.No.729/2010,
convicting the appellant/accused for the offence p/u/s 302
and 201 of IPC.
In Crl.A No. 534/2022
Between:
Frank Anthony @ Frank
S/o Rayappa,
Aged about 30 years,
R/at Thatguppe Village
Uttarahalli Hobli,
Near Kaggalipura,
Kanakapura Main Road,
Bengaluru-560082.
...Appellant
(By Sri Tigadi Veeranna Gadigeppa, Advocate)
And:
State by
Rajagopalanagara Police Station,
Represented By State Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001
...Respondent
(By Sri Vijaykumar Majage, SPP-II)
This Criminal Appeal is filed u/s.374(2) Cr.P.C praying
to set aside the judgment of conviction and order of
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CRL.A No. 529 of 2022
C/W CRL.A No. 534 of 2022
sentence dated 14.06.2021, passed by the LXIII Additional
City Civil And Sessions Judge (CCH-64), Bengaluru City, in
S.C.No.464/2010, convicting the appellant/accused for the
offence p/u/s 120-B, 201, 302 and 404 r/w sec.34 of IPC.
Date on which the appeals
29.01.2025
were reserved for judgment
Date on which the judgment
21.03.2025
was pronounced
These Criminal Appeals, having been heard &
reserved, coming on for pronouncement this day,
judgment was delivered therein as under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
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 Section 302
of IPC. Though these two appeals assail the
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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. Before 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
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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 Section 219 of Cr.P.C which states that
if a person is accused of 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 Section
220(1) of Cr.P.C. Though two offences were said to
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have been committed on the same day one after
another of course with a time interval, it cannot be
said that they were distinct offences. 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
Section 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 10.03.2016, no
witness was examined. Statement of the appellant
under Section 313 of Cr.P.C was recorded in
S.C.464/2010 on 24.10.2019. Again Section 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.,
14.06.2021 in both the cases, owing to enormous
delay in completing the trial, the appellant has not
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been able to claim remission under Section 432
Cr.P.C. If 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 Nasib Singh Vs. State of Punjab and
Another 1 and Muthuramalingam and Others vs
State represented by Inspector of Police 2. He
also referred to Government Orders relating to
grant of remission.
4. Sri Vijay Kumar Majage, learned SPP-II,
argued that the trial court could have held one trial
for both the offences, however conducting separate
[(2 02 2 ) 2 S C C 8 9 ]
[(2 01 6 ) 8 S C C 3 1 3]
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trial cannot be said to be impermissible. No
prejudice is caused to the appellant because the
trial court has made it clear that the life sentence
imposed on him in connection with both the cases
would run concurrently. Grant of remission lies
within the discretionary power of the Government
and the appellant cannot make it a point of
argument in the appellate court.
5. We have considered the arguments.
Before taking up discussion, it is found expedient to
extract here the tabulation made by Sri V.G.Tigadi
in regard to the proceedings of the trial in both the
cases.
Criminal Appeal 534/2022 Criminal Appeal 529/2022
(Sessions Case No. 464/2010) (Sessions Case
No.729/2010)
12.07.2011: Charge Framed 08.07.2011: Charge Framed.
01.08.2011 to 19.11.2011: 14.09.2011 to 11.11.2011:
PW1 to 12 were examined by
PW1 to 9 were examined by
prosecution prosecution
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10.01.2012 to 29.12.2012 : 11.01.2012 to 13.12.2012:
PW10 to 36 were examined by PW13 to 31 were examined by
prosecution prosecution
06.02.2013 : PW37 was During the year 2013: No
examined by prosecution witness was examined
02.12.2014 to 16.12.2014 : 04.08.2014 to 11.11.2014:
PW38 and 39 were examined PW32 to 36 were examined by
by prosecution prosecution.
28.12.2014: Statement of
Appellant was recorded under
section 313 of Code of
Criminal Procedure
(correct date of recording is
23.12.2014)
10.03.2016 to 13.06.2016 : During the year 2014 to 2018:
PW40 Jayaram (he was No witness were examined.
already examined as PW7 on
30.09.2011 in Sessions Case
No.729/2010), PW41
H.Nagaraju, PW42 Rasha S.,
(she was already examined as
PW31 on 13.12.2012 in
Sessions Case No.729/2010)
and 43 K.C.Ashok (he was
already examined as PW36 on
11.11.2014 in Sessions Case
No.729/2010) were examined
by prosecution
14.11.2017: PW44 Premasai
Rai examined (he was already
examined as PW34 on
04.08.2014 in Sessions Case
No.729/2010)
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11.01.2018: PW45 11.01.2018: PW37
K.Shivaraju was examined K.Shivaraju was examined.
29.12.2018: Further
statement of Appellant was
recorded under section 313 of
Code of Criminal Procedure
24.10.2019: Statement of
Appellant was recorded under
section 313 of Code of
Criminal Procedure
6. Appellant was arrested on 10.12.2009 in
S.C.464/2010, and was produced in another case
under body warrant, i.e., under Section 267 of
Cr.P.C. He was not released on bail and he is in jail
even now.
7. Section 219 of Cr.P.C. permits to charge a
person of committing more than one offence of
same kind and to try him for any number of such
offences, but not more than three with a rider that
the offences of the same kind must have been
committed within a span of twelve months. Sub-
section (2) of Section 219 of Cr.P.C explains the
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meaning of the expression 'offences of same kind'
as punishable with same amount of punishment
under same section of IPC, or of any special or local
law. And Section 220(1) of Cr.P.C. deals with
charging a person with more offences than one if
they are committed in one series of acts connected
together to form same transaction and holding one
trial for every such offence. In order to determine
whether series of acts committed constitute same
transaction, they must appear to be related in
purpose or the cause or effect of one act or an
incidental act. Illustrations to sub-section (1) to
Section 220 of Cr.P.C. give a clear meaning.
8. Here no doubt two deaths occurred. In the
first act the appellant and Srinivas participated,
motive for that act was to rob the jewellery of Smt.
Lourd Mary. The second act of killing, though took
place on the same day, it occurred after
considerable gap of time and it was for a different
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reason. Srinivas wanted a share in the money
realized after selling the robbed jewellery. But the
appellant did not like to give him his share; and he
feared that Srinivas might one day disclose the
incident of killing Lourd Mary. This made him kill
Srinivas. Motives being distinct for two offences, it
cannot be said that two acts were committed in one
series of acts connected with same transaction
though they were committed on the same day and
look alike. To the instant case Section 219 (1) of
Cr.P.C. can be applied.
9. Sections 219 and 220 (1) permit one trial,
however separate trials for distinct offences of same
type falling under Section 219 cannot be said to be
bad. But whenever Section 220(1) is applicable,
separate trial cannot be approved of though not bad
in procedure since the offences are connected
together to form same transaction, witnesses may
be common sometime. At what stage the court can
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decide as to conducting joint trial and as to the
validity of trial if not held jointly is dealt with by
the Supreme Court in Nasib Singh (supra), a
decision cited by Sri. V.G.Tigadi. The following
paragraphs are extracted from that decision.
"49. The judgment in Chandra Bhal case
therefore lays down three significant principles
on joint trials:
49.1. A separate trial is not contrary to law
even if a joint trial for the offences along with
other offences is permissible.
49.2. The possibility of a joint trial has to be
decided at the beginning of the trial and not on
the basis of the result of the trial.
49.3. The true test is whether any prejudice has
been sustained as a result of a separate trial. In
other words, a retrial with a direction of a joint
trial would be ordered only if there is a failure
of justice.
50. In Essar Teleholdings Limited v. Central
Bureau of Investigation, Justice R F Nariman,
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speaking for a three-Judge Bench reiterated the
principles which have been enunciated in
Chandra Bhal (supra). Further, it was held that
even if the conditions stipulated in Section 223
CrPC to conduct a joint trial have been fulfilled,
it may not be desirous to direct a joint trial if a
joint trial would (i) prolong the trial; (ii) cause
unnecessary wastage of judicial time; and (iii)
confuse or cause prejudice to the accused, who
had taken part only in some minor offence.
51. From the decisions of this Court on joint
trial and separate trials, the following principles
can be formulated:
51.1. Section 218 provides that separate trials
shall be conducted for distinct offences alleged
to be committed by a person. Sections 219 -
221 provide exceptions to this general rule. If a
person falls under these exceptions, then a
joint trial for the offences which a person is
charged with may be conducted. Similarly,
under Section 223, a joint trial may be held for
persons charged with different offences if any
of the clauses in the provision are separately or
on a combination satisfied.
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51.2. While applying the principles enunciated
in Sections 218 - 223 on conducting joint and
separate trials, the trial court should apply a
two-pronged test, namely, (i) whether
conducting a joint/separate trial will prejudice
the defence of the accused; and/or (ii) whether
conducting a joint/separate trial would cause
judicial delay.
51.3. The possibility of conducting a joint trial
will have to be determined at the beginning of
the trial and not after the trial based on the
result of the trial. The Appellate Court may
determine the validity of the argument that
there ought to have been a separate/joint trial
only based on whether the trial had prejudiced
the right of accused or the prosecutrix.
51.4. Since the provisions which engraft an
exception use the phrase "may" with reference
to conducting a joint trial, a separate trial is
usually not contrary to law even if a joint trial
could be conducted, unless proven to cause a
miscarriage of justice."
(emphasis supplied)
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10. In the case on hand, undoubtedly
enormous delay could have been avoided if the
appellant was subjected to one trial. He was
arrested on 10.12.2009 and not released on bail.
There was no chance that he contributed for delay.
The trial court records disclose that they were being
tried earlier in different courts, it was on
31.10.2015 they were clubbed. In
S.C.No.464/2010, recording of evidence was
commenced on 01.08.2011 and was closed on
11.01.2018. The case was adjourned thirty nine
times for recording the statement under Section 313
Cr.P.C. and ultimately it was recorded on
24.10.2019. Defence evidence was recorded on
11.03.2020.
11. In S.C.No.729/2010, recording of evidence
commenced on 14.09.2011 and was closed on
11.11.2014. Statement under Section 313 Cr.P.C.
was first recorded on 23.12.2014. In between
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08.04.2015 and 25.07.2015, defence evidence was
recorded.
12. Though the judgments in both the cases
were pronounced on 14.06.2021 after clubbing of
the cases, had it been noticed at the earliest
possible time that one trial would do because of
offences of same kind being committed by the
appellant, the trial would have concluded latest by
the end of December, 2015, thus cases were
prolonged unnecessarily for 5 years 6 months.
13. The appellant having been able to
demonstrate the prejudice caused to him on account
of delay, now the actual question is, 'Can the
appellant insist on counting the delay period to be
set off in order to claim remission under Sections
432 and 433 of Cr.P.C?'
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14. It is to be noted here that the trial court
has rightly held that two life sentences should run
concurrently applying section 427(2) of Cr.P.C.
15. Sri. V.G. Tigadi referred to Government
Orders issuing guidelines for the premature release
of certain categories of prisoners. He submitted
that according to Government Order HD 138 PRA
2013, Bangalore, dated 07-01-2014 prisoners
convicted for twenty two types of offences were
excluded from the benefit of remission, but those
twenty two offences did not include prisoners
convicted for two or more murders. That means a
prisoner who had been convicted for more than one
murder was entitled to claim remission. In the later
order of the Government i.e., Order No. 384 PRA
2015 dated 21.07.2016, the Order dated 07.01.2014
was withdrawn and disentitled the prisoners
convicted for two or more murders from the benefit
of remission.
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16. We have perused the Government Order
dated 07.01.2014 according to which there was no
restriction for a prisoner convicted for offences of
more than one murder to claim remission. The said
Government Order can be applied to the case of
appellant. Since he was arrested on 10.12.2009,
his pre-conviction period can be counted for set off
in terms of proviso to Section 428 of Cr.P.C. If
joint trial had been held, he could have applied for
remission. As it is demonstrated that the
appellant's interest has been prejudiced on account
of joint trial being not held, as has been held by the
Hon'ble Supreme Court in para 51.3 of its judgment
in Nasib Singh(supra), we uphold the argument of
Sri V.G.Tigadi. And now the following:
ORDER
Appeals stand disposed of. Liberty is given to
the appellant to claim remission. The State
Government, in its discretion, may in accordance
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with its Order HD 138 PRA 2013, Bangalore, dated
07.01.2014 decide whether to grant remission or
not to the appellant.
Copy of this judgment shall be forwarded to the
Principal Secretary of Department of Home and to
the Principal Secretary of Department of Law and
Justice, Government of Karnataka, for necessary
action.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
CKL
