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2014 DIGILAW 342 (PAT)

Pappu Goswami v. State of Bihar

2014-03-12

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT : A.K. Trivedi, J. Learned counsel Mr. Ram Sumiran Rai appeared and submitted that his client has already taken no objection from him, therefore, his name should not figure furthermore. However, due to absence of counsel for appellants, assistance of learned amicus curiae has already been sought for. 2. Cr. Appeal No. 763/2011 happens to be on behalf of appellant Pappu Goswami who has been found guilty for an offence punishable under Sections 304-B of the IPC by the Additional Sessions Judge-FTC-5th, Jamui vide judgment dated 20.5.2011 and sentence dated 24.5.2011 directing to undergo RI for ten years in connection with Sessions Trial No. 903/2004/74/2009 is the husband of deceased Munni Devi who met with dowry death on 27/28.5.2004 at her Sasural lying at village-Nawadih for which her mother Laxmi Devi (PW 7) had launched prosecution as a result of which Khaira P.S. Case No. 97/2004 had originated. It is evident that after completion of investigation two separate charge-sheets were submitted by the Investigating Officer at due interval, one against appellant and another relating to other family members who also faced trial by the same Court under Sessions Trial No. 82/2007/73/2009 and found convicted and sentenced in similar way for which Cr. Appeal No. 820/2011 is pending and on account thereof, both the appeals have been taken up for hearing conjointly. 3. During course of hearing of both the appeals, it has been submitted on behalf of learned amicus curiae that trial before the learned lower Court relating to both the sessions trial got frustrated on account of illegality committed by the learned trial Court and for that the learned amicus curiae drew attention towards the evidence of PW 7, Laxmi Devi (informant) as well as mother of deceased relating to Sessions Trial No. 903/2004/74/2009 as well as PW 4, Dr. Vijay Kumar examined in Sessions Trial No. 82/2007/73/2009 and submitted that acceptance of both two evidence relating to aforesaid Sessions Trial were not cognizable either under Evidence Act or under Code of Criminal Procedure. Therefore, putting reliance upon the aforesaid evidences while inferring guilt by the learned trial Court was not permissible in the eye of law. 4. Vijay Kumar examined in Sessions Trial No. 82/2007/73/2009 and submitted that acceptance of both two evidence relating to aforesaid Sessions Trial were not cognizable either under Evidence Act or under Code of Criminal Procedure. Therefore, putting reliance upon the aforesaid evidences while inferring guilt by the learned trial Court was not permissible in the eye of law. 4. The learned APP though fairly concedes that there happens to be no specific provision permitting such kind of exercise but submitted that it was the accused/convict/appellants who had prayed for and on account thereof, no prejudice could be said to have caused to them. Apart from this, it has also been submitted that appellant, Pappu Goswami on account of being under custody since 18.6.2004 might have completed the period of sentence and in case the matter is remitted back to the learned lower Court, it will cause hardship. 5. Heard both sides. 6. Proceeding before Court of sessions is to be guided through a relevant provisions enumerated under Chapter-XVIII of the Cr PC whereunder no such kind of privilege is found which could have given a liberty to the learned trial Court to accept the prayer of the appellants. Under Chapter-XXIII guiding the acceptance of evidence, mode of evidence, recording of evidence during conduction of enquiry or trial having perusal of Section 273 of the Cr PC, it is evident that all the evidences should be recorded in presence of accused save and except the circumstances visualizing under Section 299 of the Cr PC. Proceeding ahead under the same heading, Section 276 of the Cr PC deals with the mode of recording of evidences before the Court of sessions. From perusal of relevant provision relating to conduction of trial, it is evident that the evidence of witnesses has to be recorded by the Court itself or at its direction by the officer of the Court but having no provision for acceptance of evidence recorded in other case as evidence in former case. That means to say, evidence of one case is forbidden to be accepted in another case and on account thereof, the procedure followed by the learned trial Court even at the request of appellants was in utter violation of mandate of law. As such, made the judgment impugned nugatory in the eye of law. 7. Consequent thereupon, both the judgments are set aside. Both the appeals are allowed. 8. As such, made the judgment impugned nugatory in the eye of law. 7. Consequent thereupon, both the judgments are set aside. Both the appeals are allowed. 8. Both the trials are remitted back to the learned trial Court to proceed afresh in accordance with law right from appropriate stage so pointed out in the foregoing paragraphs. 9. Judicious approach shown by the learned amicus curiae during course of argument is found highly appreciable and commendable. The first and the last page of the instant order be handed over to the learned amicus curiae facilitating him to get his remuneration. Appeal allowed.