JUDGMENT Dr. E.S. da Silva, J. - All these three appeals can be conveniently disposed by this common judgment since they arise also out of the same judgment of the learned Additional District and Sessions Judge, Panaji, dated 9th February, 1993 in Sessions Case No. 17/90. By the aforesaid judgment the learned Sessions Judge has convicted the appellants for offences under Sections 397 and 307 I.P.C. r/w Section 34 of I.P.C. and also under Section 3 r/w Section 25 of the Indian Arms Act and Section 59 of Indian Arms Act r/w Section 34 of I.P.C. and sentenced each of them to undergo 10 years Rigorous Imprisonment - and a fine of Rs. 2,000/- in default to undergo Simple Imprisonment for a period of four months for the offence punishable under Section 397 r/w Section 34 I.P.C., in addition to undergo 10 years Rigor - ous Imprisonment and also a fine of Rs. 2,000/- in default, Simple Imprisonment for 4 months for the offence under Section 307 I.P.C. and also for a further period of 2 years and a fine of Rs. 1,000/-, in default, to undergo Simple Imprisonment for 1 month for the offence under Section 3 r/w Section 25 (lB)(a) of the Indian Arms Act r/w Section 34 of I.P.C. with a direction that the substantive sentences of imprisonment should run concurrently. 2. Appellant in Criminal Appeal No. 10193 is the accused No. 2, appellant in Criminal Appeal No. 12/93 is the accused No. 4 and appellant in Criminal Appeal No. 14/93 is the accused No. 1 in the Sessions Case No. 17/90. 3. The prosecution case is that on 25th November, 1989 at about 10.30 a.m., all the three appellants and the absconding accused Sharad Manjrekar, Reginaldo Rodrigues, Prakash and Mauvin, in furtherance of a common intention conjointly armed with daggers and pistols entered Raikar's jewellery shop at Feira Alta, Mapusa and committed dacoity of gold ornaments worth Rs. 8.50 lakhs. On the same occasion the said appellants and the absconding accused attempted to cause death of Shivan and Barangui, the driver of the owner of the shop, by, shooting at him with a pistol with the intention and knowledge that under such circumstances if they had caused Shivanand's death they would be guilty of murder. 8.50 lakhs. On the same occasion the said appellants and the absconding accused attempted to cause death of Shivan and Barangui, the driver of the owner of the shop, by, shooting at him with a pistol with the intention and knowledge that under such circumstances if they had caused Shivanand's death they would be guilty of murder. It is further the case of the prosecution that at the relevant time the appellants and the absconding accused were holding pistols without a valid, licence. 4. The accused pleaded not guilty to the charge but the learned Additional Sessions Judge after recording evidence found them guilty and sentenced them accordingly. 5. Before this Court learned counsel for the appellants have exhaustively canvassed across the Bar several contentions challenging the impugned judgment and the appellant NO. 4's counsel has also submitted written arguments. The main contention of the learned counsel, apart from the submission that there was no material evidence to substantiate the physical participation of any of the appellants in the alleged crime, is that there was no proper identification of any of the accused by the so - called eye witnesses relied by the prosecution. In particular the learned counsel for the accused No. 4 has made a strong grievance that since admittedly the said accused was arrested and produced before the Court during the pendency of the trial, at which time most of the important and the so - called eye witnesses had already given their testimony, the evidence of these witnesses was used against the said accused without affording to him a sufficient opportunity to cross - examine the said witnesses. The result was that it could not be said that the said accused got identified either by the complainant, the owner of the shop, or by any of the witnesses who were purportedly present in the shop when the alleged incident occurred. It was further submitted by the learned counsel that when originally the charge - sheet was filed only against the accused Nos. 1 and 2, there was no evidence collected against the accused No. 4 at that time. Thus the Report under Section 173(2) of Cr. P.C. could not have contained any information against him. It was further submitted by the learned counsel that when originally the charge - sheet was filed only against the accused Nos. 1 and 2, there was no evidence collected against the accused No. 4 at that time. Thus the Report under Section 173(2) of Cr. P.C. could not have contained any information against him. Assuming, however, that the prosecution wanted to take advantage of the provision of Section 173(8) for further investigation after the arrest of accused No. 4 while the trial was part heard, the same was not available to the prosecution since this provision was only an enabling one to facilitate he prosecution in collecting certain additional information or to supplement what already had been collected' against a particular accused. Therefore and since admittedly there was no evidence collected in the part-heard trial against the accused No. 4 the provision of Section 173(8) could not be applied for carrying any further investigation against the said accused. It was also contended that, right from the beginning of the trial, the learned Additional Sessions Judge ought to have made a proclamation and separated the case against the alleged absconding accused. 6. On the other hand, the learned counsel urged that even assuming that the Court wanted to proceed against the accused under Section 319 Cr. P.C. the provision there under was also very clear to the effect that Section 319, sub - section (1) was available only against a person who was not shown as accused at the initial stage and in the present case right from the time of the framing of the charge against the accused Nos. 1 and 2, the accused No. 4 had already been shown as accused although absconding. It was further urged that even otherwise while conceding that Section 319 Cr. P.C. was applicable then the Court would be bound by its sub - section (4) which lays down that where the Court proceeds against any person under sub - section (1) then the proceedings against the said person should commence afresh and the witnesses re - heard which admittedly has not been done in the present case. The learned counsel also submitted that though the Roznama of the proceedings, at page 118, records that the Court would decide about the applicability of Section 229 Cr. The learned counsel also submitted that though the Roznama of the proceedings, at page 118, records that the Court would decide about the applicability of Section 229 Cr. P.C. in respect of the accused No. 4 the same decision never came and the trial proceeded against him without any legal opinion having been formed on the matter which fact has rendered the trial into an illegality. It was further contended that for the application of Section 299 the primary requirement was that the prosecution would have to prove that the accused had absconded and that there was no immediate prospect of arresting him. The Court ought to have come to this conclusion and given a finding to the effect by issuing the necessary proclamation as per the law. 5. Upon hearing both the parties and in view of the submissions of the learned counsel we have carefully scrutinized the relevant file of the trial court and the Roznamas of the proceedings as well. From the said Roznama it transpires that initially on the filing of the charge-sheet against the accused Nos. 1 and 2 showing at that time accused No. 4 as one of the absconding accused a proper charge was framed against the accused Nos. 1 and 2 only. Thereafter the prosecution evidence came to be recorded and 18 witnesses were examined on its behalf. Thereupon when the matter had been adjourned for further evidence on 19.6.1992 on that day the Investigation Officer filed an application informing the Court that the absconding accused No. 4 had been arrested on 14.4.1992. Therefore the Court passed an order on the said application to the effect that since a charge - sheet was pending before him and the trial of the case was going on, consequent upon the arrest of the absconding accused permission to carry out further investigation and to file supplementary charge - sheet was granted to the police. Accordingly, on the next date of the hearing, i.e. on 14.8.1992, when the accused No. 4 was produced before the Court an additional charge - sheet against the said accused was also presented by the police and the matter was fixed on 27th August, 1992 for arguments in connection with the framing of the charge against him. Accordingly, on the next date of the hearing, i.e. on 14.8.1992, when the accused No. 4 was produced before the Court an additional charge - sheet against the said accused was also presented by the police and the matter was fixed on 27th August, 1992 for arguments in connection with the framing of the charge against him. On that day, at the request of the counsel for the accused No. 4 who made a grievance that the initial charge - sheet filed against other accused had not been supplied to him, arguments before charge were adjourned to 15th September, 1992 and copies of the initially filed charge-sheet were directed to be furnished to the learned accused's counsel. Thereafter when the matter was kept for arguments before charge on 15.9.1992 it seems that on that day the learned counsel for the accused No. 4 conceded that the record disclosed some prima facie evidence warranting the framing of the charge against accused No. 4 and thus the learned Judge acted accordingly without hearing any further arguments. The accused then pleaded not guilty. At this stage it flows from the record that Shri Dhond, appearing for the accused No. 4, represented across the Bar that the said accused did not require any of the prosecution witnesses so far examined in the case for cross -examination. However, the learned Public Prosecutor made a submission also across the Bar that the prosecution was reserving its right to recall the witnesses already examined for further examination and so sought time from the Court to intimate about the next steps they were intending to take in the matter. The Roznama further shows that on this request the other accused's counsel stated that if the prosecution decided to lead further evidence as against accused No. 4 they should be also given an opportunity to cross - examine those witnesses on their additional testimony. The learned Judge however did not pass any order on this oral application and observed that this was a matter which had to be studied particularly in view of the operation, if it is so, of Section 299 of Cr. P.C. against the accused No. 4. At the same time the learned Judge ruled that the prosecution should come prepared with their witnesses on the next date of hearing which was fixed for 19th September, 1992. P.C. against the accused No. 4. At the same time the learned Judge ruled that the prosecution should come prepared with their witnesses on the next date of hearing which was fixed for 19th September, 1992. Subsequently on 19th September, 1992 the Roznama reveals that the Court has recorded instead the deposition of P.W. 19 Carmelina Barreto on that day and from that time the remaining witnesses from Serial No. 21 Onwards were examined by the prosecution and duly cross - examined by the learned counsel for the accused Nos. 1, 2 and 4. The record further discloses that on 22.9.1992 the Public Prosecutor filed an application to the Court for issuing summons to witnesses Nos. 5,6, 18, 28, 29, 30 and 36 on the 3rd October, 1992 and to witnesses Nos. 3, 4, 17, 18, 19, 20, 31, 33 and 34 and lion the 17th October, 1992 and that both the prayers were granted and accordingly the matter was adjourned for evidence on 3rd and 17th October, 1992. However and very surprisingly it is seen that in spite of summons having been issued on 23.9.1992 and sent for service to the Investigation Officer by the concerned clerk against a competent endorsement made in the Roznama, either on 3.10.1992 or on the subsequent days none of those witnesses whose evidence had already been recorded prior to the arrest of accused No. 4 and which were sought to be re-called by the learned Public Prosecutor for their re-examination were actually produced by the Investigating Agency or made available for their evidence to be taken by the Court. 6. It thus follows that by grossly overlooking the specific request made by the Public Prosecutor to re-call material witnesses who had spoken against the accused No. 4 in his absence prior to his arrest and much before the commencement of his trial, the learned Additional Sessions Judge chose not to examine those same witnesses to triable the prosecution to bring on record the required evidence which would be relevant for the purpose of making a case against the accused No. 4 more particularly on the aspect of his physical identification. This serious omission and flagrant irregularity is, in our view, and we are extremely unhappy to so record, likely to vitiate the entire trial consequent upon the fact that inadmissible evidence was sought to be used against the accused No. 4 based on the testimony of the prosecution witnesses which was taken before the com mencement of his trial and practically on his back without any finding having been given by the, Court so as to the applicability of the provision of Section 299 of Cr. P.C. 7. On the other hand we have also to bear in mind that when the prosecution reserved its right to re-call witnesses so far examined for further examination after the charge-sheet was filed against the accused No. 4 and sought time to report adequate steps in the matter, the learned counsel for the remaining accused readily concurred provided they were given opportunity to cross-examine those witnesses on the additional evidence proposed to be adduced by the prosecution. 8. Being so it seems obvious that in the interest of justice and fair play both the accused Nos. 1 and 2 should be provided with such opportunity to cross - examine de novo any of the witnesses which arc required to be re-called by the prosecution. 9. In this view of the matter the judgment of conviction and sentence passed by the learned Additional Sessions Judge against the appellants is bound to be unsettled so as to enable the prosecution to lead evidence on the matter as far as the accused No. 4 concerned subject, however, to the right of all the other accused to cross -examine these witnesses. 10. The result is that the appeal is thus partly allowed. The convections and sentences imposed on the appellants are hereby quashed and set aside. The case is remanded to the Sessions Court and the learned Judge is directed to re-call all the prosecution witnesses referred to in the Public Prosecutor's application dated 22.9.1992 whose testimony was yet not recorded after the charge framed against the accused No. 4 for the purpose of giving evidence. Needless to say that these witnesses are free to be cross -examined not only by the learned counsel for the accused Nos. 1 and 2. Needless to say that these witnesses are free to be cross -examined not only by the learned counsel for the accused Nos. 1 and 2. An appropriate judgment on the basis of a correct, objective and judicious re-assessment of the available evidence in its entirety must then follow as per the law. Order accordingly. Appeal allowed partly. Matter remanded.