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2016 DIGILAW 1928 (HP)

State of H. P. v. Shiv Chand

2016-09-08

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. This appeal is directed against the judgment, rendered on 5.8.2011, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No. 26 of 2002/2010, whereby the appellant has been acquitted of the offence punishable under Sections 120-B, 363, 366, 368, IPC and under Section 6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act). 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, FIR No. 16 of 2002, registered on 24.3.2002. However, accused Shiv Chand absconded and could not be apprehended. He was under orders rendered on 19.8.2003 declared a proclaimed offender. On accused Shiv Chand standing 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 to face trial before the learned Sessions Judge, Kinnuar at Rampur qua hers allegedly committing offences under Sections 363, 366, 368, 120-B of the Indian Penal Code and Section 6 of the Immoral Traffic (Prevention) Act, 1956. She faced the ordeal of trial and on conclusion besides consummation of trial to which she stood subjected to, she was convicted and sentenced qua hers committing offences punishable under Sections 363, 366, 368, 120-B/34 of the IPC and under Section 6 of the Immoral Traffic (Prevention), Act, 1956. In the meantime, co-accused Shiv Chand was apprehended and produced for the first time on 06.8.2010 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 had remained under absconsion besides given his non-apprehension, during the entire criminal proceedings launched against co-accused Lalita Tamang, he, hence, stood not subjected to trial, obviously, on his apprehension and production on 26.8.2010 before the Court of the learned Sessions Judge, Kinnaur Division at Rampur Bushahr, the latter Court requisitioned the case file and fixed the case for framing of charge against him. 3. 3. When the stage of recording of prosecution evidence arrived, co-accused Shiv Chand, on 28.2.2011, recorded, a, statement before the learned Sessions Judge to the effect that the statements of the prosecution witnesses as stood recorded, in his absence, be read against him in the same manner as if their respective examinations-in-chief, stood recorded in his absence. Given the statement of co-accused Shiv Chand, who, stood declared a proclaimed offender and in whose absence the statements of prosecution witnesses stood recorded where-within he portrayed his acquiescence qua theirs being read as evidence, 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 qua the procedure and exercise adopted by the learned Sessions Judge in proceeding to read the testimonies of prosecution witnesses, recorded during the trial of co-accused Lalita Tamang and in the absence of accused Shiv Cahnd, merely, on the basis of his acquiescence to the statements recorded in his absence, being read as evidence, comprises infraction of the procedure ordained by law. Consequently, it has to be determined whether the trial vis-a-vis Shiv Chand, stands vitiated, hence, necessitating or warranting interference by this Court with the impugned judgment rendered qua co-accused Shiv Chand, with a se-queling rendition of a direction for the remanding of the matter to the learned Sessions Judge, for the re-recording afresh of the testimonies of the prosecution witnesses. 5. In the face of co-accused Shiv Chand remaining under absconsion, hence, his standing 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, vis-a-vis co-accused Lalita Tamang, the learned Sessions Judge, while adopting the procedure envisaged under Section 299 of the Cr.P.C. procedure whereof envisaged a contemplation qua permissibility of recording of evidence against co-accused standing/facing trial, even in the absence of co-accused Shiv Chand, given his standing declared a proclaimed offender, it hence proceeded to record evidence qua co-accused Lalita Tamang. Besides, the provisions aforesaid mandate, permissibility qua reading as evidence, the pre-recorded statements of prosecution witnesses, statements whereof stood recorded in the absence of the proclaimed offender, on occurrence of 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. besides the application and adoption of the provisions engrafted therein is also the fulcrum and nerve centre, to, test the legality of the procedure adopted by the learned Sessions Judge, in proceeding to, on appearance/production before him of co-accused Shiv Chand, to read such previously recorded prosecution evidence, merely on the strength of his statement, wherein he acquiesces qua the reading of prerecorded prosecution evidence, on reading whereof, it proceeded to record findings of acquittal qua co-accused Shiv Chand. 7. Co-accused Shiv Chand, recorded a statement on 28.2.2011, wherein, he, acquiesced qua the reading vis-a-vis him the testifications of the prosecution witnesses, comprised in their respective examinations-in-chief, testifications whereof stood recorded during the course of trial of co-accused Lalita Tamang. Therefore, the acquiescence of co-accused Shiv Chand, prodded the learned Sessions Judge, to rely upon the previously recorded testimonies of prosecution witnesses, comprised in their respective examinations-in-chief, thereupon it anvilled its findings of acquittal vis-a-vis co-accused Shiv Chand. However, to the considered mind of this Court, even though, the apposite acquiescence of co-accused Shiv Chand does not either trammel or fetter the jurisdiction of the learned Sessions Judge to proceed to, on the strength of the statement of co-accused Shiv Chand wherein he portrayed his acquiescence to the reading qua him the previously recorded depositions of prosecution witnesses, statements whereof stood recorded during the trial of co-accused Lalita Tamang, to, omit to record afresh the evidence of prosecution witnesses, unless, satisfaction stood recorded by the learned Sessions Judge, qua existence of exigencies and contingencies contemplated or envisaged under Section 299 of the Cr.P.C., besides only on its recording satisfaction qua proof of existence of such statutorily contemplated exigencies and contingencies, the learned trial Court could waive or abandon its jurisdiction, to recall for reexamination the prosecution witnesses. Further, even otherwise, there is no evidence on record displaying recording of satisfaction by the learned Court below qua evident existence of such contingencies or statutory exigencies, on existence whereof alone, the re-recording afresh of the testimonies of the prosecution witnesses could stand waived or abandoned by it, 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. Consequently, the acquiescence of co-accused Shiv Chand, manifested in his statement and its reading, unraveling the fact of his conceding to the deposition of prosecution witnesses recorded during the course of trial of the co-accused Lalita Tamang, being readable against him, did not give leverage to the learned Sessions Judge, to, omit to per se, hence, draw satisfaction qua the evident existence of exigencies and contingencies, as, envisaged under Section 299 of the Cr.P.C. Rather, when on strict proof qua their existence, the learned Sessions Judge, could proceed to read the evidence of prosecution witnesses as stood previously recorded during the course of trial of Lalita Tamang, dehors the acquiescence of co-accused Shiv Chand, his, omitting to afford any reason for his countervailing or circumventing the provisions of Section 299 of the Cr.P.C. in as much, as, without eliciting proof or, hence his drawing satisfaction qua existence of exigencies and statutory contingencies, on whose proof alone, the learned Sessions Judge could proceed 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, on the latter's apprehension, contrarily his apposite waiver dependent upon the acquiescence of co-accused Shiv Chand whereupon he recorded findings of acquittal vis-a-vis Shiv Chand renders the entire judgment of acquittal recorded vis-a-vis co-accused Shiv Chand, hence, while anchored upon procedural infraction, to be wholly vitiated. 9. As a concomitant, for reiteration, the learned Sessions Judge, merely on the apposite acquiescence of co-accused Shiv Chand, without his recording satisfaction qua the existence of preponderant exigencies and contingencies displayed in Section 299 of the Cr. 9. As a concomitant, for reiteration, the learned Sessions Judge, merely on the apposite acquiescence of co-accused Shiv Chand, without his recording satisfaction qua the existence of preponderant exigencies and contingencies displayed in Section 299 of the Cr. P.C. hence, proceeding to read the testimonies of prosecution witnesses, recorded during the course of trial of co-accused Lalita Tamang, as evidence against co-accused Shiv Chand, has caused a pervasive and deep infraction of the mandatory statutory provisions. It has also caused incalculable miscarriage of justice. Consequently, the trial stands vitiated and the judgment of acquittal recorded vis-a-vis co-accused Shiv Chand, necessitates, it, being set aside. The matter is remanded to the learned Sessions Judge, Kinnaur Division at Rampur Bhushahr for the re-recording afresh by him of prosecution evidence against co-accused Shiv Chand. It is loudly made clear that only and in case of satisfaction coming to be recorded by the learned Sessions Judge qua the availability or attainment besides accomplishment of the exigencies and contingencies stipulated in Section 299 of the Cr.P.C., would, he be empowered to proceed, to, read in evidence, the depositions and statements of prosecution witnesses, as stood previously 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 afresh the evidence of 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 the re-recording afresh by him the statements/evidence of the prosecution witnesses, his keeping in mind the aforesaid directions. The learned trial Court is directed to complete the trial within six months from today.