NESARGI, J. ( 1 ) THE appellant has been convicted and sentenced for having committed an offence punishable under S. 302 IPC read with S. 34 IPC by the session Judge, Raichur in SC. 29 of 1973. He has, in this appeal, challenged the conviction and sentence. ( 2 ) THIS case has a history of its own. At 1 A. M. on 28-6-1960 one shivabasappa was stabbed while he was sleeping in his house. The house opposite to that belonged to him. Shankarappa, and Gurappa, who are sons of Shivabasappa, Shankarappa's wife and, children and PW. 5 Irayya, and pw. 6 Sofikhan who, are servants of Shivabasappa; used to slepp in that house. Shankarappa and his wife had gone to Bangalore as Shankarappa's wifo was to be treated. Virupakshappa,, Hanmappa Kali, Basayya, Irayya and this appellant, according to prosecution, entered the house where Shivabasappa was sleeping and stabbed him. Shivabasappa cried omt and pws. 5 and6 woke up. They took a lantern with them and rushed to the house. They saw the appellant, Virupakshappa and Kali Hanmappa running out of the house. They went inside and saw Shivabasappa, lying having sustained stab injuries on his body. Shivabasappa was alive and he told these persons thai the appellant,, Virupakshappa and K. Hanmappa had stabbed him and run away. He fold these persons to bring Yenkangouda, basangouda and others. They went and informed them. They also went 1o inform the police patil PW. 1 Chidamber Gouda. Chidamber Gouda did not wake up in spite of the attempts of PWs. 5 and 6. PW. 4 Hussainsab, wdhksr, was sleeping in the inalige of PW. l, and he, woke up. PWs. 5 and 6 told him about the incident. He accompanied these persons to the spot. Shivabasappa told PW 4 that the said three persons had assaulted him. In the meanwhile, the Govt Ayurvedic Doctor PW. 2 Vasudevarao came there ss somebody had goz\e to him and told him to attend on Shivabasappa he bandaged the injuries and at that time Shivabasappa told him that the said three persons stabbed him and ran away. Shivabasappa narated to the other persons also the same version and then it was decided that Shivsbasappa should be taken to the hospital. When he was being taken en a bed in a cart, he complained of acute pain and he was brought back and he breathed his last. Shivabasappa narated to the other persons also the same version and then it was decided that Shivsbasappa should be taken to the hospital. When he was being taken en a bed in a cart, he complained of acute pain and he was brought back and he breathed his last. In the, moring on 28-6-1960 PW. 4 went to pw 1 the Police Patil, woke him up and brought him to the spot where shivsbasappa's body was lying. PW. l gathered the information from pws 4, 5 and 6 and others and wrote his report Ext. P1. He sent it to alwandi Police Station. It reached the Station House Officer at 11-15 A. M. and he registered a case in Crims No. 15 of 1960. He reached the spot by 3 PM. and look up investigation. Later PW. 13 Kalavan Rao, the regular snb Inspector of Police reached the spot by mid night and took up investigation thereafter at 12 Noon on 30-6-1960 the Circle Inspector of Police reached the spot and took up investigation The investigation was completed and a charge sheet was filed against five persons showing this appellant as absconding. ( 3 ) AS the appellant could not ba traced and produced before the court SC 32-8-60 was tried against Virupakshappa, Hanmappa, Basayya, and Ireyya only. The case againsit the appellant was thus kept by. Viru- pakshappa and Hanmappa who were Al and A2 were found guilty of having committed an offence punishable. under S. 302 IPC read with S. 34, ipc, and sentencetd to undergo imprisonment for life. Basayya and Irayya were acquitted. Virupakshappa and Hanmappa preferred Crl. A. 27 of 62 in this Court. The conviction and sentence passed on them were confirmed by this Court It is the prosecution case that somewhere in 1973 a communication was addressed from Goa Electricity Board, to the Superintendent of Police, Raichur, in regard to the antecedents of the appellant as the appellant, had applied to the Board that he should be made permanent servant, It was at that time found that the) appellant was a wanted accused in Crime No. 15 of 1960 of Alwande Police Station. Henoe the appellant was secured and produced before the Court. It is thus that SC. 29 of 1973 came to be put up and the appellant was tried and found guilty. Henoe the appellant was secured and produced before the Court. It is thus that SC. 29 of 1973 came to be put up and the appellant was tried and found guilty. ( 4 ) THERE can be no doubt that Shivabasappa was stabbed during the night between 27-6-1960 and 28-6-1960 when he was sleeping in his godown in front of his house in Kqwjur village within the jurisdiction of Alwandi policy Station. Therefore, wo do not consider it necessary to address ourselves to that part of the evidence adduced by the prosecution in proof of that fact. ( 5 ) IN order to establish the charge, against the appellant, the prosecution has placed reliance on the evidence of PWs. 5 and 6 in regard to seeing the appellant and Virupajcshappa and Hanmappa running away from the said godown at that time and on the evidence of PWs,2, 4, 5, 6 and 9 in regard to dying declaration said to have been made by Shivabasappa to them when they went to sep him soon after the incident. The prosecution has placed reliance on the evidence of Irayya who was PW. 13 in SC. 3218160 shankarappa son of the deceased who was PW. 16 in the said case, Yenkangouda, alimuddin, Raghavendra Rao and Hanmappa Popjari, who were examined in the said case. Their depositions have been marked as exts. P24, P25, P23, P27, P28 and P29 respectively. Even the Station House, officer who registered the case being dead, his deposition in the earlier sssions Case has been marked in this case as Ext. P26. Exts. P23 to P29 have been marked under S. 33 of the Evidence Act, 1872. Yenkangouda and Raghavendra Rao whose; depositions ajre Exts. F23 and P28 were also witnesses to the dying declaration said to have been made by Shivabasappa, soon after the incident. Abscoridance of the accused for such a long period of 13 years is also a circumstance relied upon by the prosecution. ( 6 ) SRI A. M. Farooq, learned Advocate, for the appellant as Amicua curiae contended that the learned Sessions Judge was not right in admitting in evidence the depositions of Irayya, Shankarappa Yenkangouda, alumuddin, Raghavendra Rao and Hanmappa Poqjari and exhibiting the same as Exts. P24, F25, P23, P27, P28 and P29 respectively. ( 6 ) SRI A. M. Farooq, learned Advocate, for the appellant as Amicua curiae contended that the learned Sessions Judge was not right in admitting in evidence the depositions of Irayya, Shankarappa Yenkangouda, alumuddin, Raghavendra Rao and Hanmappa Poqjari and exhibiting the same as Exts. P24, F25, P23, P27, P28 and P29 respectively. He urged that the view of the learned Sessions Judge that S. 33 of the Evidence Act would bg applicable is not sustainable,. He pointed out that the depositions of the said witnesses had not been recorded in SC 3218160 by mating use of S. 512 of the Crlpc (old ). ( 7 ) SECTION 33 of the Evidence Act is as follows : it is clear from the 2nd proviso that it is necessary that the adverse party in the first proceeding had the right and opportunity to cross-examine. The appellant was undisputedly not an adverse party in SC. 3218160. This part of S. 33 of the Evidence Act has been ignored by the learned session judge. S. 512 of the Crlpc (old) is as follows : 512. Record of evidence in absence of accused :- it is not in dispute that the evidence of the Skid witnesses had not been recorded as against this appellant also under this provision. Hence it cannot be, by any stretch of imagintion, argued that the depositions of the said witnesses can now be regarded as having been recorded by making use of S. 512 of the Crlpc and therefore the learned Sessions Judge was right in admitting the said depositions in evidence and marking them as Exts p24, P25, P23, P27, P28 and P29. The evidence of these witnesses was not at all recorded in the said Sessions Case as against this appellant, because he was not one of the accused as the case against him had been bifurcated in State of Hyderabad v. Bhimaraya, AIR 1953 Hyd. 63 it is held as follows :"the special rule of evidence enacted by S. 512 of the Crlpc la an exception to the general rule specified in S. 33 of Evidence, Act and the evidence recorded in a previous trial would be treated as evidence subject to the conditions specified against the Absconding accused, notwithstanding the fact that he had no opportunity to cross-examine them at the time the evidence was taken. S. 512 of the Crlpc, does not authorise the Magistrate either to delete the name of an absconding accused which in effect is an acquittal of the accused, or to issue a warrant of arrest. All that he has to do, under S. 512 of the Crlpc, is to salisfy himself that the accused are absconding and that there is no likelihood of their apprehension. Once he comes to that conclusion, he may order the evid,ence to be recorded under S. 512 against the absconding accused. The evidence recorded in the case of the trials of a co-accused of the absconder or other persons cannot by ex-post facto operation be treated as evidence recorded under S. 512 for the purpose of utilising it at the trial of the absconder when he is apprehended and tried subsequently the prosecution should move the Court and prove by evidence before the recording of evidence against the co-accused that certain persons are absconding and that it is not possible to apprehend them. It is for the Court -thereafter to give directions that the evidence about to be taken is being taken for the purpose of being used, if necessary, against the absconder under S. 512 of the Crlpc, as well as against the persons present and on trial. "in State of Mysore v. Sanjeeva, AIR 1956 Mys 1, it is laid down that 3. 512 Crlpc represents an exception to the provisions of S. 33, Evidence Act, which itself is an exception to the general rule that only evidence recorded in- the proceedings in question and in the presence of the parties can be made use of. We respectfully agrete with these views. We, therefore, hold that Exts p24, P25, P23, P27 P28 and P29 cannot be considered as evidence against the appellant in this case, ( 8 ) THE question is whether the evidence of PWs. 5 and 6 and so also that of PWs,2 and 9 can be considered as safe to be relied upon. It is no doubt true that the evidence given, by them in SC|32|8|60 was accepted and acted upon. But that, by itself, cannot make, their evidence reliable or acceptable as against this appellant also. 5 and 6 and so also that of PWs,2 and 9 can be considered as safe to be relied upon. It is no doubt true that the evidence given, by them in SC|32|8|60 was accepted and acted upon. But that, by itself, cannot make, their evidence reliable or acceptable as against this appellant also. ( 9 ) THE learned Sessions Judge has gathered material availably in exte P24, F25, P23, P27, P28 and P29 in regard to, motive aspect and also in regard to dying declaration said to have been madia by Shivabasappa, because in Ext. P23 Yenkangpuda and in Ext. P28 Raghavendra, Rao had also sworn that they had gone to the spot and had seen PWs. 5 and 6 there and at that time Shivabasappa made a dying declaration to, them slating that the appellant, Virupakshappa and Kali Hanmappa had stabw him and run away. When, in law, this material is in admissible in evidence, because Exts P24, P25, P23, P27, P28 and P29 are, inadmissible the resoning of the learned Sessions Judge cannot be accepted. We have found that the only material available in the depositions of PWs. 2, 4, 5, 6 and 9 is not safe fa base a conviction. Therefore, it will have to be held that the prosecution has to rely only on the circumstance of the alleged abscondance of the appellant. ( 10 ) THE say of the appellant is that he was not at all present m kowlur on that day as he, had gone away in search of employment and ultimately he secured employment in Madgoan and he remained there. We find that his say is amply probabilised, because the appellant has been in service in the Electricity Board in Madgaon for a long period and when: he applied making a request that he should be madie permanent, information reached the Superintendent of Police, Raichur, and thereafter the whereabouts of the appellant came to be known by the Police. Absence o the appellant from the village during this long period cannot, therefore, be characterised as abscondance by the, appellant. ( 11 ) IN view of the foregoing reasons, we do not agree with the conclusion off the learned Sessions Judge. We allow this appeal and set aside the conviction and sentence passed on the appeiuant Gavisiddayya, son of mudakayya, by the Sessions Judge. Raichur, in SC 29 of 1973. ( 11 ) IN view of the foregoing reasons, we do not agree with the conclusion off the learned Sessions Judge. We allow this appeal and set aside the conviction and sentence passed on the appeiuant Gavisiddayya, son of mudakayya, by the Sessions Judge. Raichur, in SC 29 of 1973. We acquit him and direct that he be released forthwith. --- *** --- .