B.R. Madhusudhan Rao, J.

1. This Memorandum of Criminal Appeal is filed under Section 415(2) of BNSS, assailing the judgment passed by the learned Principal District and Sessions Judge, Sangareddy in S.C.No.182 of 2012, dated 28.01.2025.

2. The appellants are A1 and A2 in S.C.No.182 of 2012.

3. The present appeal came to be filed on 25.02.2025. The memo of appearance is filed by Sri T.Anirudh Reddy (14000), Tanshree Bose and Shreedhar Dasari for the appellants – A1 and A2. Memo of appearance does not contain signature of the appellants – A1 and A2 or of their interested persons. Sri S.Sudharshan (6727) advocate has obtained no objection from Sri T.Anirudh Reddy (14000) for appellant No.1 – Patel Srinivas, whereunder his wife P.Manjula has authorized Sri S.Sudarshan to file vakalath on behalf of appellant No.1 – A1. The above said vakalath came to be filed on 17.09.2025. While things stood, Almas Mohammed (11237) has filed vakalath with no objection from S.Sudarshan (6727). The vakalath filed by Almas Mohammed is signed by the appellant No.1 – A1 vide UT No.8812 which is attested by the Jailor, Central Prison, Cherlapalli.

4. Insofar as accused No.2 – A2 Syed Ayub is concerned there is no proper vakalath or authorization but the Registry has numbered the appeal, hence we are not considering the appeal filed by A2-Syed Ayub as there is no proper vakalath and autharization.

5.1 The case of the prosecution is that PW1 – Smt.K.Suvarna along with her husband Manoharchary came to Bandlaguda from their native place Shadulnagar for eking out their livelihood and residing in a rented house. Since two months her husband was not attending any work and wandering. On 02.02.2012 at 12.00 hours her husband quarrelled with her and took her gold pusthela thadu from her neck, meantime his friends A1-Patel Srinivas and A2- Syed Ayub came to their house and took him out, but thereafter her husband did not return home. On 03.02.2012, she came to know that a dead body was found near railway quarters, Patancheru. Immediately she went to the spot and identified the dead body and confirmed that it is her husband Manoharchary and found bleeding injuries on his face, upper lip and head, some bricks were found near the dead body. She is suspecting that A1 and A2 might have killed her husband and lodged Ex.P1- complaint before the police, basing on which Ex.P7 – FIR came to be registered.

               5.2 On 02.02.2012 at about 16.00 hours A1 and A2 were apprehended on suspicion and were brought to the police station, on interrogation they confessed that they have committed the offence, in presence of PW7 – R.Venkaiah and LW10-Machukuri Ravi, their confession-cum-seizure Panchanama was recorded and material objects were seized i.e., MO1 – Pusthela Thadu from possession of A1, MO2 – cell phone, MO3 – Bajaj Scooter bearing Registration No.AP-23-H-9479 from possession of A2 along with blood stained cotton collected from the wall and head of the deceased, MO4 – two blood stained brick pieces, blood stained T-shirt etc, after completing investigation filed charge sheet.

6. The learned Additional Judicial Magistrate of First Class has taken cognizance of the offence under Sections 302 and 349 of IPC against A1 and A2 and furnished required documents as contemplated under law and later committed the case to the Sessions Court. The learned Principal District and Sessions Judge, Sangareddy, has taken cognizance in S.C.No.182 of 2012 for the offence under Sections 302 and 379 of IPC against A1 and A2 and charges were framed accordingly. Prosecution has examined PW1 to PW9, got marked Exs.P1 to P8 and MO1 to MO5.

7. The learned Sessions Judge vide judgment dated 16.07.2012 has acquitted A1 and A2 for the offences they are charged with and convicted them under Section 411 of IPC. Operative portion of the judgment reads as under:

               27. In the result, the accused (A1 & A2) are found not guilty of the offences punishable under sections 302 and 379 I.P.C and they are acquitted under section 235(1) Cr.P.C there-for. They are found guilty of an offence punishable under section 411 I.P.C and hence, they are convicted, there-for, under section 235(2) Cr.P.C. MO1 (pusthelathadu), MO2 (cell-phone), MO3 (scooter bearing registration No. AP-23-H-9479) shall be returned to the concerned on proper proof and identification. MO4 (two blood stained bricks) and MO5 (pair of chappals) and also the non-valuable unmarked case property, if any, shall be destroyed after lapse of appeal time.

8.1 A2-Syed Ayub has filed Criminal Appeal No.737 of 2012 before the High Court aggrieved by the judgment in S.C.No.182 of 2012, dated 16.07.2012. Crl.A.No.737 of 2012 was admitted on 01.08.2012, on the same day sentence of imprisonment was suspended and A2 was granted bail vide Crl.A.M.P.No.1612 of 2012.

               8.2 A similar appeal is filed by A1 and A2 before the High Court vide Crl.A.No.742 of 2012 aggrieved by the judgment in S.C.No.182 of 2012, dated 16.07.2012. Appeal was admitted on 03.08.2012, on the same day sentence of imprisonment was suspended against A1 and A2 and they were granted bail vide Crl.A.M.P.No.1624 of 2012. The said Crl.A.No.742 of 2012 has been dismissed for non prosecution on 23.04.2024.

9. It is to be noted here that Criminal Appeal No.737 of 2012 filed by A2 – Syed Ayub was tried by a learned Single Judge of this Court and disposed of vide judgment dated 28.06.2024 directing learned Principal District and Sessions Judge, Sangareddy, to reconsider the matter afresh with regard to the offence under Sections 302 and 379 of IPC, independently, after giving notice to the accused within three months from the date of receipt of copy of the judgment.

10. The learned Principal District and Sessions Judge issued notice to A1 and A2 and thereafter vide judgment dated 28.01.2025 convicted A1 and A2 for the offence under Sections 302 and 379 of IPC under Section 235(2) of Cr.P.C. and sentenced them to undergo life imprisonment for the offence punishable under Section 302 of IPC and to pay fine of Rs.250/- each, in default to undergo simple imprisonment for a period of seven days each. Further A1 and A2 were sentenced to undergo rigorous imprisonment for a period of six months each for the offence punishable under Section 379 of IPC and both the sentences shall run concurrently.

11. Learned counsel for the appellant No.1 – A1 submits that the learned Sessions Judge erred in convicting the appellant under Sections 302 and 379 of IPC, ought to have seen that order of remand was passed only in Crl.A.No.737 of 2012, should have seen that Criminal Appeal No.742 of 2012 was dismissed for non prosecution on 23.04.2024 which is illegal, contrary to law as in a Criminal Appeal the Courts cannot dismiss their appeal for non prosecution and they would have engaged an advocate from legal services authority as state brief or appoint any other advocate as amicus curiae. The learned Sessions Judge did not refer to the offence under Section 411 of IPC which was awarded in S.C.NO.182 of 2012 on 16.07.2012, entire process is illegal and against the principles of natural justice. The learned Judge failed to see that PW7 is a punch witness for recovery who is a stock witness and he acted as witness in 5 or 6 cases and erred in holding that burden is on the accused to account for the possession of MO1 and MO2. Learned counsel further submits that accused No.2 – Syed Ayub has filed a separate appeal vide Criminal Appeal No.300 of 2025, which was heard by a Coordinate Bench of this Court whereunder A2 was set at liberty vide judgment dated 25.04.2025 and the same parity should be extended to the appellant No.1 – A1 and filed copy of the judgment to support his contention.

12. Learned Additional Public Prosecutor submits that the case of appellant No.1 – Patel Srinivas is not the same with that of A2-Syed Ayub, the learned Sessions Judge has discussed the matter in detail and rightly convicted A1 – Patel Srinivas. Parity cannot be given to the appellant No.1 – A1 and conviction imposed by the learned Sessions Judge is liable to be upheld and the appellant No.1 – Patel Srinivas has not made out any case to interfere with the impugned judgment and prayed to dismiss the appeal.

13. Now the points for consideration are :

               (i) Whether the learned Principal District and Sessions Judge has taken fresh evidence after the remand in Crl.A.No.737 of 2012 dated 28.06.2024 by the High Court in respect of the offence under Sections 302 and 379 of IPC, if the answer is in affirmative?

               (ii) Whether the appellant No.1 – A1 is entitled for parity in view of the disposal of Criminal Appeal No.300 of 2025 of A2 – Syed Ayub vide judgment dated 25.04.2025?

               (iii) Whether the judgment of the learned Sessions Judge in SC.No.182 of 2012 dated 28.01.2025 suffers from any perversity or illegality, if so, does it require interference of this Court.

POINT NOs.1 to 3:

14. On reading of the judgment of the learned Trial Court there is no reference in the judgment that after remand of S.C.No.182 of 2012 in Criminal Appeal No.737 of 2012 vide judgment dated 28.06.2024 by A2 – Syed Ayub, no fresh evidence is taken by learned Trial Court. It is observed in the judgment in Paragraph NO.10 that ‘notices were issued to the accused, they appeared and thereafter arguments were submitted on behalf of the prosecution and the accused’.

15. Learned Sessions Judge has framed the point for consideration as ‘whether the prosecution could able to prove the charge against A1 and A2 for the offences under Sections 302 and 379 of IPC beyond reasonable doubt?’.

16. Learned Sessions Judge has extracted the evidence of PW1 to PW9, came to a conclusion that deceased Manoharchary was with accused Nos.1 and 2 at about 12.00 p.m., and death has taken place at 04.00 p.m., and the time gap is so small and possibility of any other person other than accused being a part of the crime become impossible and the motive for accused Nos.1 and 2 to commit the offence of murder is to take away Pusthela Thadu from the possession of the deceased Manoharchary, this supports with the evidence of PW1 and thereby found guilty for the offence under Sections 302 and 379 of IPC and sentenced them to undergo life imprisonment and to pay fine of Rs.250/- each in default to undergo simple imprisonment for a period of seven days each for the offence under Section 302 of IPC and rigorous imprisonment for six months for the offence under Section 379 of IPC.

17. After remand of Criminal Appeal No.737 of 2012 to the learned Sessions Judge, the Sessions Judge ought to have taken fresh evidence of the prosecution witness to attract Sections 302 and 379 of IPC. As stated supra A1 and A2 were acquitted for the offence under Sections 302 and 379 of IPC vide judgment dated 16.07.2012 but however they were convicted for the offence under Section 411 of IPC and sentenced to undergo rigorous imprisonment for a period of three years. When the learned Sessions Judge has acquitted A1 and A2 for the offence under Sections 302 and 379 of IPC on 16.07.2012, after remand of the Sessions Case, ought to have taken fresh evidence to prove the charge under Sections 302 and 379 of IPC but the learned Sessions Judge after issuing notice to the accused Nos.1 and 2, on their appearance has heard the arguments of the prosecution and the accused and delivered the judgment on 28.01.2026 on the very same evidence which is already on record and convicted A1 and A2 under Sections 302 and 379 of IPC in spite of direction of this Court to reconsider the matter afresh on remand.

18. It is apt to note here that Crl.A.No.300 of 2025 filed by A2- Syed Ayub was allowed vide judgment dated 25.04.2025 and A2- Syed Ayub was set at liberty forthwith. One of us (Hon’ble Justice B.R.Madhusudhan Rao) is a party to the judgment. We have observed in paragraph Nos.12, 13, 14, 15, 16, 21, 22, 25, 28, 29 and 37, which are produced as under:

               12. The judgment dated 28.06.2024 passed by the learned Single Judge in Criminal Appeal No. 737 of 2012 warrants interference despite the fact that the said judgment is not the subject matter of the present Appeal. The judgment dated 28.06.2024 raises questions which are worthy of adjudication.

               13. The Appeal before the learned Single Judge related only to the conviction of the appellant/A.2 for the offence under section 411 of the I.P.C. The earlier judgment of the Trial Court dated 16.07.2012 (which was challenged by the appellant before the learned Single Judge) records that the appellant/A.2 was acquitted of the offences under sections 302 and 379 of the I.P.C. but was convicted for the offence under section 411 of the I.P.C and was sentenced to rigorous imprisonment for 3 years. The learned Single Judge framed an issue as to whether the impugned judgment convicting the appellant for dishonestly receiving stolen property was liable to be set aside. The learned Single Judge proceeded to engage in an elaborate discussion of the facts before the Trial Court and directed the Trial Court to reconsider the matter afresh with regard to the appellant's acquittal of the offences under sections 302 and 379 of the I.P.C. The Trial Court was however advised to remain uninfluenced by the Court's observations notwithstanding the detailed discussion in the judgment given by the learned Single Judge on the issue of acquittal of the offences under sections 302 and 379 of the I.P.C.

               14. The last paragraph of the judgment dated 28.06.2024 is set out below:

               “39. Accordingly, this Criminal Appeal is disposed of directing the learned trial Court to reconsider the matter afresh with regard to offences under Sections 302 and 379 of IPC, independently, by duly putting both accused on notice, in accordance with law, within three months from the date of receipt of copy of this Judgment. It is made clear that the learned trial Court shall not be influenced in any manner by the observations made in this Judgment.”

               15. It is of crucial importance that the learned Single Judge remanded the matter to the Trial Court without setting aside the judgment dated 16.07.2012. Therefore, the appellant's conviction and sentence, as imposed in the judgment dated 16.07.2012, remained in force as of 28.06.2024 (the date of the judgment of the learned Single Judge) and continued to remain in force till the impugned judgment dated 28.01.2025, which forms the subject matter of the present Appeal. The fact that the judgment dated 16.07.2012, which was the subject matter of Criminal Appeal No. 737 of 2012, was not set aside and the matter was simply remanded to the Trial Court for reconsideration is germane for the purposes of section 300(1) of the Cr. P.C. and section 337(1) of the BNSS.

               The Statutory Implications of the Judgment dated 28.06.2024:

               16. Although the relevant provisions have already been extracted above, the statutory import thereof is reiterated for convenience. Both sections 300(1) of the Cr.P.C. and 337(1) of the BNSS prohibit a person from being tried twice for an offence where the person has either been convicted or acquitted, while such conviction/acquittal remains in force. (Underlined for emphasis).

               21. It is also significant that the re-trial directed by the learned Single Judge was not related to the conviction of the appellant under section 411 of the IPC but was against the acquittal of the accused under sections 302 and 379 of the IPC. Moreover, section 401(2) of the Cr. P.C. mandates that no order under section 401 shall be made to the prejudice of the accused unless the accused was given an opportunity of being heard, either personally or through a pleader, in his/her defence. Section 401(3) contains an embargo on the High Court to convert a finding of acquittal into one of conviction.

               22. Even though the learned Single Judge directed the Trial Court to reconsider the matter with regard to the offences under sections 302 and 379 of the IPC, the judgment is replete with observations and findings against the appellant for having wrongly been acquitted of the charges under sections 302 and 379 of the IPC. These findings and observations impinge on the protection granted under section 401(3) of the Cr. P.C. to a person who has already been acquitted by the Trial Court, safeguarding him/her from being convicted of the same offence by the High Court.

               25. The maxim “nemo debet bis vexari pro eadem causa” (no person should be vexed twice for the same offence) embodies the Rule of common law that no one should be put to peril twice for the same offence. The position of law, as enunciated by the Courts, is as under:

               (i) There must be a previous proceeding before a Court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted;

               (ii) The conviction/acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and the same set of facts for which the person was prosecuted and punished in the first proceeding;

               (iii) The subsequent proceeding must be a fresh proceeding where the person is sought to be prosecuted and punished for the same offence and on the same set of facts for the second time: T.P. Gopalakrishnan v. State of Kerala –[(2022) 14 SCC 323].

               28. First, there was no challenge by the State to the judgment passed by the Trial Court on 16.07.2012 acquitting the appellant of the offences under sections 302 and 379 of the IPC. Second, the Appeal before the learned Single Judge (Crl.A.No.737 of 2012) was confined to the appellant's conviction under section 411 of the IPC. Third, there is no reference to the fate of the conviction under section 411 of the IPC in the order passed by the learned Single Judge on 28.06.2024. In fact, the concluding part of the judgment dated 28.06.2024 simply directs the Trial Court to hear the matter afresh with regard to the acquittal of the appellant in relation to the offences under sections 302 and 379 of the IPC.

               29. The absence of any reference to the appellant's conviction under section 411 of the IPC creates ambiguity and leaves room for inference as to the effect of the conviction. We may add that the order passed by the learned Single Judge amounts to a partial remand leaving the aforesaid questions unanswered.

               37. We are hence persuaded to hold that the impugned judgment, being in violation of the constitutional guarantee enshrined in Article 20(2) of the Constitution, should be set aside. The appellant being re-tried upon a fresh hearing of the matter goes against all principles of law, justice and equity.

19. The Supreme Court in Javed Shaukat Ali Qureshi versus State of Gujarat(2023 INSC 289) has dealt with the principles of parity in paragraph Nos.14, 15, 17, 18, 19, which are reproduced as under:

               14. Assuming that PW−25 and PW−26 identified accused Nos.2, 3 and 4 by stating that they were members of the mob; once a Coordinate Bench of this Court discards their testimony in its entirety being unreliable, the benefit of the said finding will have to be extended to the accused Nos.2, 3 and 4 as they are similarly placed with accused Nos.1, 5 and 13. Moreover, except for PW−25 and PW−26, no other witnesses have ascribed any role to the accused Nos.2, 3 and 4.

               15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.

               17. Accused Nos.1, 5 and 13 were convicted only on the basis of the testimony of PW−25 and PW−26. They were acquitted by holding that the testimony of both witnesses was unreliable and deserved to be discarded. If the same relief is not extended to accused Nos. 3 and 4 by reason of parity, it will amount to violation of fundamental rights guaranteed to accused Nos.3 and 4 by Article 21 of the Constitution of India. Therefore, we have no manner of doubt that the benefit which is granted to accused Nos.1, 5 and 13 deserves to be extended to accused Nos.3 and 4, who did not challenge the judgment of the High Court. In this case, the suo motu exercise of powers under Article 136 is warranted as it is a question of the liberty of the said two accused guaranteed by Article 21 of the Constitution.

               18. Now, we come to the case of accused no.2. By the order dated 11th May 2018, a special leave petition filed by accused no.2 was summarily dismissed without recording any reasons. The law is well−settled. An order refusing special leave to appeal by a non−speaking order does not attract the doctrine of merger. At this stage, we may refer to a three− judge Bench decision of this Court in the case of Harbans Singh v. State of U.P. & Ors. – [(1982) 2 SCC 101]. In paragraph 18, this Court held thus:

               “18.To my mind, it will be a sheer travesty of justice and the course of justice will be perverted, if for the very same offence, the petitioner has to swing and pay the extreme penalty of death whereas the death sentence imposed on his co−accused for the very same offence is commuted to one of life imprisonment and the life of the co−accused is shared (sic spared). The case of the petitioner Harbans Singh appears, indeed, to be unfortunate, as neither in his special leave petition and the review petition in this Court nor in his mercy petition to the President of India, this all important and significant fact that the life sentence imposed on his co− accused in respect of the very same offence has been commuted to one of life imprisonment has been mentioned. Had this fact been brought to the notice of this Court at the time when the Court dealt with the special leave petition of the petitioner or even his review petition, I have no doubt in my mind that this Court would have commuted his death sentence to one of life imprisonment. For the same offence and for the same kind of involvement, responsibility and complicity, capital punishment on one and life imprisonment on the other would never have been just. I also feel that had the petitioner in his mercy petition to the President of India made any mention of this fact of commutation of death sentence to one of life imprisonment on his co− accused in respect of the very same offence, the President might have been inclined to take a different view on his petition.” (emphasis added)

               19. We have found that the case of accused No. 2 stands on the same footing as accused Nos.1, 5 and 13 acquitted by this Court. The accused No.2 must get the benefit of parity. The principles laid down in the case of Harbans Singh Vs. State of U.P. and Others – [(1982) 2 SCC 101] will apply. If we fail to grant relief to accused No. 2, the rights guaranteed to accused No.2 under Article 21 of the Constitution of India will be violated. It will amount to doing manifest injustice. In fact, as a Constitutional Court entrusted with the duty of upholding fundamental rights guaranteed under the Constitution, it is our duty and obligation to extend the same relief to accused No.2. Therefore, we will have to recall the order passed in the special leave petition filed by accused No.2.

20. In view of the principles laid down by the Supreme Court in the above said judgment, now we have to see whether the appellant No.1 – A1 is entitled for parity in view of the judgment passed by this Court in Criminal Appeal No.300 of 2025, dated 25.04.2025.

21. The learned Sessions Judge has not discussed in the judgment dated 28.01.2025 with regard to the findings given against A1 and A2 while acquitting them for the offence under Sections 302 and 379 of IPC vide Judgment dated 16.07.2012. The learned Sessions Judge simply passed judgment on the same set of evidence, went ahead and convicted the appellant No.1 – A1 for the offence under Sections 302 and 379 of IPC. The learned Sessions Judge has not assigned any reasons what made the Court to reassess the evidence of the prosecution witness once again after the remand of S.C.No.182 of 2012 by the High Court vide Crl.A.No.737 of 2012. The Sessions Judge ought to have taken fresh evidence as it has already arrived at a conclusion that no case is made out by the prosecution for the offence under Sections 302 and 379 of IPC. There is procedural irregularity committed by the learned Sessions Judge in the judgment dated 28.01.2025 and we are of the view that the appellant No.1 – A1 is entitled for the same parity with that of A2 – Syed Ayub as per the judgment of this Court in Crl.A.No.300 of 2025 dated 25.04.2025. The judgment of the Supreme Court in Javed Shaukat Ali Qureshi1 is aptly applicable to the case on hand. Hence point Nos.1 to 3 are answered accordingly.

22. Criminal Appeal No.278 of 2025 is allowed and the judgment passed by the learned Principal District and Sessions Judge, Sangareddy in S.C.No.182 of 2012, dated 28.01.2025 is set aside. Appellant No.1 – Patel Srinivas is set at liberty forthwith. The fine amount shall be refund within seven days from the date of judgment.

Pending miscellaneous petitions if any shall stand closed.