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Judgment
H.N. Nagamohan Das, J.—Petitioner is the accused No. 3 in Crime No. 307/2008 for the offence punishable u/s 306 r/w Sec. 34 of IPC. Since the petitioner was absconding a split charge sheet was filed against accused No. 1 in S.C. No. 994/2009. On contest the Session Judge acquitted accused No. 1 in S.C. No. 994/2009 vide judgment dated 22.04.2010. Subsequently, petitioner was arrested and the charge sheet is filed in S.C. No. 1227/2012 and he is on bail. Before the Sessions Judge, petitioner filed application u/s 227 CRPC seeking benefit of judgment of acquittal in S.C. No. 994/2009. Under the impugned order, the Session Judge rejected the application filed by the petitioner. Hence this revision petition. Heard arguments on both the side and perused the entire papers.
The prosecution is relying on the same set of evidence which they relied in S.C. No. 994/2009. In the circumstances, petitioner is entitled for the benefit of judgment of acquittal against accused No. 1. In the impugned order the Session Judge rejected the application filed by the petitioner mainly on the ground that the prosecution witness turned hostile in S.C. No. 994/2009 and they may not turn hostile in the present case. This reasoning is based on surmises and conjectures. In the identical circumstances, this Court in Shekappa alias Chandrashekar Vs. State of Karnataka held that the benefit of acquittal granted to co-accused, has to be extended to absconding accused also in absence of evidence even if the witness have turned hostile in the earlier case. In the circumstances, the impugned order is contrary to the law declared by this Court in the judgment referred to supra. Accordingly the following:
ORDER
i) The Criminal revision petition is hereby allowed.
ii) The impugned order passed by the Session Judge in S.C. No. 1224/2010 is hereby set aside
iii) The application filed by the petitioner u/s 227 of CRPC is here by allowed.
iv) Petitioner is acquitted of all the charges in S.C. No. 994/2009.
j) The bail bonds are hereby cancelled.