ORDER :

Prayer:- Criminal Original Petition has been filed under Section 482 of Cr.P.C., praying to call for the records and quash the entire proceedings against the petitioner in the split up case in S.C.No.52 of 2011 on the file of the learned District and Sessions Court, Nagapattinam.

The petitioner herein is a third accused in Crime No.153 of 2003.

2. The case against the petitioner and the 1st accused was split up as S.C.No.52 of 2011 from the main Sessions Case No.170 of 2004, since the petitioner and the 1st accused absconded pending trial. The present Criminal Original Petition is filed to quash the case against the petitioner on the ground that the trial against A2 ended in acquittal and the testimony of the witnesses examined has not proved. Hence it will be a futile exercise for the prosecution trying the petitioners.

3. The case of the petitioner is that Syed Jahabar Ali Jinnah Sahib was murdered by A1, who alleged to have been in connivance with A2 and A3. A2 alone was tried and others absconded and case against them got split up. This petitioner is charged for with A2. The trial Court has acquitted A2. The benefit of acquittal of A2 has to be extended to the absconding accused also, since the charges against them along with A2 is for conspiracy, house trespass to commit murder. Murder in furtherance of common intention and in alternate abetment to murder.

4. The learned counsel for the petitioner submitted that as per the Final Report, at the midnight of 01.03.2003, A1, A2 and A3 trespassing into the house of Syed Jahabar Ali Jinnah Sahib/the deceased, while A3 caught hold the neck of the deceased, A1 pushed the deceased on the cot and caused head injury to the deceased. A2 tied a wire around the neck of the deceased. A1 put a towel around the neck and smothered him with the help of A3 who closed the mouth of the deceased.

5. Charge against A1 to A3 for offence under Sections 120(B) and 449 I.P.C., as against A1 for the offence under Section 302 I.P.C., and as against A2 and A3 for the offence under Section 302 r/w.109 I.P.C., were framed by the trial Court.

6. During the course of trial, A1 and A3(the present petitioner) absconded. Hence the case has been split up and re-numbered as S.C.No.52 of 2011. The trial against A2 alone proceeded. The prosecution to prove the case examined eighteen (18) witnesses, marked thirty (30) exhibits and twenty two (22) Material Objects.

7. After appreciating the evidence, particularly PW.1, who set the criminal law into motion, suspecting foul play in the death of his friend Syed Jahabar Ali Jinnah Sahib, who did not support the case of the prosecution and he has deposed that the servant in the deceased house by name Abdullah admitted his guilt of murdering Syed Jahabar Ali Jinnah Sahib whereas, the prosecution has arrested three persons who are unconnected to the offence. The family members of the deceased namely PW.3, PW.4 and PW.5 claimed that Syed Jahabar Ali Jinnah Sahib died naturally. The Postmortem Report does not favour the case of the prosecution. The body of Syed Jahabar Ali Jinnah Sahib was exhumed after the complaint given by PW.1 suspecting foul play in the death of Syed Jahabar Ali Jinnah Sahib. While the death occurred on midnight of 01.03.2003, complaint of suspicious death registered on 04.03.2003. The body was exhumed on 05.03.2003 and thereafter, the Postmortem was conducted. The prosecution has arrayed this petitioner as one of the accused purely based on the extra judicial confession given by A1 who is still absconding and that statement cannot be used against A3, who is not tried together with A1. The case of the petitioner stands on the same footing i.e., A2, who has been acquitted after examination of the witnesses and therefore, the benefit of co-accused should be extended to this petitioner also.

8. This Court perused the records and the submissions made by the learned counsel for the petitioner as well as the learned Government Advocate (Crl.Side) for the Stat