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2014 DIGILAW 892 (HP)

State of H. P. v. Shiv Chand

2014-07-14

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Sureshwar Thakur, Judge. This appeal is directed against the judgment, rendered on 5.8.2011, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar, H.P., in Sessions Trial No.20 of 2003/2011, whereby the appellant has been acquitted of the offence punishable under Sections 365 read with Section 34, 376 of the Indian Penal Code and Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956,. 2. The brief facts, of the case, are, that the accused, namely, Shiv Chand and Lalita Tamang, are alleged to have committed offences under Sections 363, 366, 368, 120-B of the Indian Penal Code and Section 6 of the Immoral Traffic (Prevention) Act, 1956 recorded, in, F.I.R.No.53 of 2002, registered on 29.3.2002. However, accused Shiv Chand absconded and could not be apprehended. He was under orders rendered, on, 15.3.2003 declared a proclaimed offender. On accused Shiv Chand coming to be declared a proclaimed offender, the learned committal Court proceeded to, in the absence of accused Shiv Chand, on the Investigating Officer filing a report under Section 173 of the Code of Criminal Procedure, commit co-accused Lalita Tamang for hers standing trial before the learned Sessions Judge, Kinnuar at Rampur for hers having committed under Sections 363, 366, 368, 120- B of the Indian Penal Code and Section 6 of the Immoral Traffic (Prevention) Act, 1956, aforesaid. She faced the ordeal of the trial and on conclusion and consummation, of, the trial, to, which she was subjected to, she was convicted and sentenced for hers having allegedly committed the offences punishable under Sections 365, 368, 109, 376 read with Section 34 of the IPC and Sections 5 and 6 of the Immoral Traffic (Prevention), Act, 1956. In the meantime, co-accused Shiv Chand was apprehended and produced for the first time, on, 31.8.2010 before the Learned Sessions Judge, Kinnaur Division, at, Rampur Bushahr. On apprehension and production of co-accused Shiv Chand, who during the trial of co-accused Lalita Tamang remained absent and for whose non-apprehension, during the entire criminal proceedings launched against co-accused Lalita Tamang, he was, hence, omitted to be subjected to trial, obviously, on his apprehension and production before the Court, the learned Sessions Judge, Kinnaur Division at Rampur Bushahr, on 7.10.2010, remanded the case for completion of the committal proceedings, to, the learned Judicial Magistrate, 1st Class, Rampur Bhushahr. The learned Judicial Magistrate 1st Class, on 20.10.2010, on completing the committal proceedings qua accused Shiv Chand, committed the accused Shiv Chand for trial, to the Court of learned Sessions Judge, Kinnaur Division at Rampur. 3. When the stage of recording of prosecution evidence arrived, co-accused Shiv Chand, on 17.3.2011, recorded, a, statement before the learned Sessions Judge to the effect that the statements of the prosecution witnesses as recorded, in his absence, be read against him in the same manner as if their examinations-in-chief, were recorded in his absence. Given the statement of the co-accused Shiv Chand, who, was a declared proclaimed offender and in his absence the statements of the prosecution witnesses were recorded and its portraying his acquiescence to theirs being read against him, constrained the learned Sessions Judge, to, acquit accused Shiv Chand. 4. Without going into the merits of this appeal, the moot point, which is to be decided, is, whether the procedure and exercise adopted by the learned Sessions Judge, in, proceeding to read the testimonies of the prosecution witnesses, recorded during the trial of co-accused Lalita Tamang, in the absence of the accused Shiv Cahnd, merely, on the basis his acquiescence, to such statements recorded in his absence, being read against him, comprises infraction of the procedure ordained by law. Consequently, it has to be determined whether the trial vis-à-vis Shiv Chand, stands vitiated, hence, necessitating or warranting interference by this Court with the impugned judgment rendered against co-accused Shiv Chand, sequeling, the rendition of a direction for the remanding of the matter to the learned Sessions Judge for the re-recording of the testimonies of the prosecution witnesses. 5. In the face of co-accused Shiv Chand having absconded, hence, his having been declared a proclaimed offender on 15.3.2003 by the Committal Court, set afoot proceedings, for, the trial of the co-accused Lalita Tamang, even in the absence of co-accused Shiv Chand. Naturally and obviously, on completion of committal proceedings, visà- vis co-accused Lalita Tamang, the learned Sessions Judge, while adopting the procedure envisaged under Section 299 of the Cr.P.C. and the envisaged procedure contemplating, the recording of evidence against the co-accused standing/facing trial, even in the absence of the other co-accused, on his having come to be declared proclaimed offender. Naturally and obviously, on completion of committal proceedings, visà- vis co-accused Lalita Tamang, the learned Sessions Judge, while adopting the procedure envisaged under Section 299 of the Cr.P.C. and the envisaged procedure contemplating, the recording of evidence against the co-accused standing/facing trial, even in the absence of the other co-accused, on his having come to be declared proclaimed offender. Besides, the provisions aforesaid mandate, reading of such pre-recorded statements of the prosecution witnesses, in the absence of the proclaimed offender being permissible to be read in evidence, on, apprehension of the proclaimed offender, only in the event of (a) deponents being dead; (b) incapable of giving evidence; (c) being not found and (d) their presence being not procurable without an amount of delay, expense or inconvenience which under the circumstances of the case, appears to be unreasonable. 6. The provisions engrafted and ingrained in Section 299 of the Cr.P.C. and the application and adoption of the provisions so engrafted, is, also the fulcrum and never centre, to, test the legality of the procedure adopted by the learned Sessions Judge, in, proceeding to, on appearance/production of co-accused Shiv Chand, before the learned Sessions Judge, to read such previously recorded prosecution evidence, on, the strength of his statement, acquiescing to the reading of prosecution evidence, recorded in his absence, on a reading, whereof, it proceeded to record findings of acquittal, in, favour of coaccused Shiv Chand. 7. Co-accused Shiv Chand, recorded a statement on 17.3.2011, wherein, he, acquiesced to the reading of the evidence of the prosecution witnesses, comprised in their respective examinations-in- chief, as recorded during the course of trial, of, co-accused Lalita Tamang, being readable against him. 7. Co-accused Shiv Chand, recorded a statement on 17.3.2011, wherein, he, acquiesced to the reading of the evidence of the prosecution witnesses, comprised in their respective examinations-in- chief, as recorded during the course of trial, of, co-accused Lalita Tamang, being readable against him. Therefore, such acquiescence of co-accused Shiv Chand, prodded the learned Sessions Judge, to rely upon the testimonies, comprised in the respective examinations-inchief of the prosecution witnesses, previously recorded and anvilled findings of the acquittal in favour of co-accused Shiv Chand, however, to the considered mind of this Court, the acquiescence of co-accused Shiv Chand does not either trammel or fetter the jurisdiction of the learned Sessions Judge to proceed, on the strength of the statement of co-accused Shiv Chand portraying his acquiescence to the previously recorded depositions during the trial of co-accused Lalita Tamang, to, omit to record the evidence of the prosecution witnesses, unless, satisfaction was recorded by the learned Sessions Judge, qua the fact of the existence of exigencies and contingencies contemplated or envisaged under Section 299 of the Cr.P.C. and only on satisfaction having been recorded qua the proof of existence of such contemplated exigencies and contingencies, the learned trial Court could have waived or abandoned its jurisdiction, to recall for re-examine the prosecution witnesses. Further, even otherwise, there is no evidence on record displaying recording of satisfaction by the learned Court below qua existence of such contingencies or statutory exigencies, on proof whereof alone, the re-recording of the testimonies of the prosecution witnesses could have been waived or abandoned , in as much, as, there is no evidence displaying the fact (a) deponents being dead; (b) incapable of giving evidence; (c) being not found and (d) their presence being not procurable, without an amount of delay, expense or inconvenience which under the circumstances of the case, appears to be unreasonable. 8. 8. Consequently, the acquiescence of the co-accused Shiv Chand, manifested in his statement and its reading, unraveling the fact of his conceding to the deposition of the prosecution witnesses recorded during the course of the trial of the co-accused Lalita Tamang, being readable against him either, did not give leverage to the learned Sessions Judge, to, omit to per se, hence, draw satisfaction qua the existence of exigencies and contingencies, as, envisaged under Section 299 of the Cr.P.C. Rather, where on strict proof of their existence, the learned Sessions Judge, could have proceeded to read the evidence of the prosecution witnesses, as, recorded during the course of the Trial of Lalita Tamang, dehors the acquiescence of co-accused Shiv Chand, his, omitting to afford any reason for, before giving to countervail or circumvent, provisions of Section 299 of the Cr.P.C., in as much, as, without eliciting proof or, hence, drawing satisfaction qua the existence of the exigencies and contingencies, on whose proof alone, the learned Sessions Judge could have proceeded to read the evidence of the prosecution witnesses recorded during the trial of co-accused Lalita Tamang, as evidence against the co-accused Shiv Chand, renders the entire judgment of acquittal recorded to be, hence, while anchored upon procedural infraction, wholly vitiated. 9. As a concomitant, for reiteration, then, the learned Sessions Judge, having merely, on the acquiescence of and having not recorded the satisfaction qua the existence of preponderant exigencies and contingencies displayed, by, Section 299 of the Cr. P. C., hence, having proceeded to read into the evidence and the testimonies of the prosecution witnesses, recorded during the course of the trial of the co-accused Lalita Tamang, as evidence against co-accused Shiv Chand, has caused pervasive and deep infraction of the mandatory statutory provisions. It has caused incalculable miscarriage of justice. Consequently, the trial stands vitiated and judgment of acquittal recorded against co-accused Shiv Chand, necessitates, it, being set aside. The matter is remanded to the learned Sessions Judge, Kinnaur Division at Rampur Bhushahr for re-recording of the prosecution evidence against co-accused Shiv Chand. It has caused incalculable miscarriage of justice. Consequently, the trial stands vitiated and judgment of acquittal recorded against co-accused Shiv Chand, necessitates, it, being set aside. The matter is remanded to the learned Sessions Judge, Kinnaur Division at Rampur Bhushahr for re-recording of the prosecution evidence against co-accused Shiv Chand. It is loudly made clear that only and in case of satisfaction having come to be recorded by the learned Sessions Judge qua the availability or attainment and accomplishment of the exigencies and contingencies stipulated in Section 299 of the Cr.P.C., would, the learned trial Court be empowered to proceed, to, read in evidence, the depositions and the statements of such prosecution witnesses, as, recorded during the course of trial of co-accused Lalita Tamang. However, when, no, material on record displays such satisfaction being drawable by the learned Sessions Judge, it shall proceed to re-record the evidence of the prosecution witnesses. Accordingly, the appeal is allowed and judgment dated 5.8.2011 passed by the learned Session Judge is set aside and the case is remanded back for re-recording of the statements/evidence of the prosecution witnesses keeping in mind the aforesaid directions.