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2016 DIGILAW 812 (RAJ)

Surendar v. State of Rajasthan

2016-06-02

MOHAMMAD RAFIQ, VIJAY KUMAR VYAS

body2016
ORDER : Mohammad Rafiq, J. These two separate appeals, filed on behalf of two accused-appellants, are directed against common judgment dated 13.08.2015 passed by learned Additional Sessions Judge, Khetri, in Sessions Case No.25/2003, whereby, they have been convicted for offence under Sections 451 and 302/34 of the Indian Penal Code, and sentenced to suffer two years rigorous imprisonment with fine of Rs.1000/- each; in default of payment of fine, each was to further undergo three months rigorous imprisonment, for offence under Section 451 IPC, and to suffer life imprisonment with fine of Rs.10,000/- each; in default of payment of fine, each was to further undergo one year's rigorous imprisonment, for offence under Section 302/34 IPC. Accused-appellants and co-accused Nihal Singh were earlier convicted by the said court vide judgment dated 12.08.2004 for the same offences. Aggrieved thereby, they filed two separate criminal appeals before this court, namely, D.B. Criminal Appeal No.932/2004 - Billu Singh Vs. State of Rajasthan and D.B. Criminal Appeal No.899/2004 - Surendar Singh and Nihal Singh Vs. The State of Rajasthan. This court, vide judgment dated 19.05.2015, while setting aside the judgment dated 12.08.2004, disposed of those appeals and transposed the accused in the same position as they were on the date of judgment dated 19.05.2015, and remitted the matter to the trial court to hold a preliminary enquiry within one month; whether statement of Abhay Singh, can be taken on record as evidence or not, by recourse to Section 33 of the Indian Evidence Act, 1872, and directed the trial court to deliver a fresh judgment within two months thereafter, upon hearing all concerned. It was also held that since the State of Rajasthan has not preferred any appeal against acquittal of Satyaveer, his acquittal would remain undisturbed. Occasion for passing the aforesaid judgment by this court arose because in the originally conducted trial, statement of prosecution witness Abhay Singh, who lodged the FIR, was recorded by the trial court as PW-7 on 17/18.04.1998 and thereafter prosecution filed an application under Section 319 Cr.P.C. on 12.01.1999. The trial court, by accepting that application, took cognizance against co-accused Nihal Singh and Satyaveer and summoned them to join the same trial. While the trial court convicted accused-appellant Surendar and Billu Singh as also co-accused Nihal Singh, but it acquitted co-accused Satyaveer vide common judgment dated 12.08.2004. The trial court, by accepting that application, took cognizance against co-accused Nihal Singh and Satyaveer and summoned them to join the same trial. While the trial court convicted accused-appellant Surendar and Billu Singh as also co-accused Nihal Singh, but it acquitted co-accused Satyaveer vide common judgment dated 12.08.2004. During the course of hearing of aforesaid appeals, two questions were raised before this court, namely:- (i) what is the effect of testimony of Abhay Singh recorded as PW-7; before additional accused was summoned under Section 319 Cr.P.C., whether it is to be treated as previous statement or substantive evidence?, and (ii) if the court comes to the conclusion that statement of Abhay Singh is not a substantive evidence and is to be treated as previous statement made by him, whether it can be received in evidence by the court within the ambit of Section 33 of the Indian Evidence Act, 1872 ? This court held that unless a satisfaction was recorded by the trial court in terms of Section 33 of the Indian Evidence Act that a witness is dead or he cannot be found or is incapable of giving evidence or has been purposely kept away from the court by the accused (being adverse party) or his presence cannot be obtained without any unreasonable amount of delay or expense, statement of Abhay Singh cannot be made admissible. It was owing to this that this court, while setting aside judgment of conviction dated 12.08.2004 remitted the matter to the trial court to hold a preliminary enquiry within one month whether statement of Abhay Singh under Section 33 of the Indian Evidence Act, 1872, can be taken on record as evidence or not, and the trial court was directed to deliver a fresh judgment after de novo trial within two months, upon hearing all concerned. Learned trial court, after making de novo trial in terms of the direction of this court, vide its order dated 13.07.2015, held that while previous statement of Abhay Singh shall be treated as relevant and read against accused-appellant Billu Singh and Surendar, the same cannot be read against co-accused Nihal Singh because he did not have the opportunity to cross-examine him in the earlier proceedings. Learned trial court thereafter, vide judgment dated 13.08.2015, impugned herein, recorded finding of conviction against co-accused Billu Singh and Surendar but acquitted co-accused Nihal Singh. Learned trial court thereafter, vide judgment dated 13.08.2015, impugned herein, recorded finding of conviction against co-accused Billu Singh and Surendar but acquitted co-accused Nihal Singh. Accused-appellants, who have been convicted, have now again preferred present appeals against aforesaid judgment. We have heard Mr. Anshuman Saxena, learned counsel for accused-appellant Billu Singh and Mr. M.K. Kaushik, learned counsel for accused-appellant Surendar as well as Mr. Aladeen Khan, learned Public Prosecutor, and also perused the material on record. Mr. Anshuman Saxena, learned counsel for accused-appellant Billu Singh, has argued that guilt of accused-appellant Billu Singh has not been proved beyond reasonable doubt. He has not been named in the FIR. Only eyewitness of the incident is Abhay Singh, whereas all others are witnesses of hearsay. Abhay Singh neither in the first information report nor in his statement before the police under Section 161 Cr.P.C. has alleged presence of Billu Singh at the place of incident. It is only by way of afterthought and improvement that he for the first time before the court alleged that he had seen Billu Singh and co-accused Satyaveer fleeing from the place of incident. This statement cannot be believed. Had he actually seen accused-appellant Billu Singh at the place of occurrence, he would have definitely named him in the first information report. Learned counsel submitted that police has made Billu Singh as accused only on the ground of recovery of 'kulhara', which recovery has been made forty-two days after the date of incident. This recovery has not been supported by any independent witness. Memo of information under Section 27 at the instance of accused-appellant Billu Singh is Exhibit P- 21, whereas seizure memo of 'kulhara' recovered pursuant thereto, is Exhibit P-19. Both attesting witnesses thereof, Babulal (PW-1) and Rohtash, uncle of deceased, (PW-10), have not supported the said recovery. Babulal (PW-1), in cross-examination, has stated that 'kulhara' was recovered several days after the incident. He had seen 'kulhara' with the S.H.O., but could not say wherefrom the same was recovered. Rohtash (PW-10) has also similarly stated in crossexamination that he was called from his agriculture field to the house of accused Billu Singh and police obtained his signatures on different memos. When he signed recovery memo (Exhibit P-19), it was already prepared and signed by Babulal. In fact, when he reached the house of accused Billu, 'kulhara' was lying on the cot. When he signed recovery memo (Exhibit P-19), it was already prepared and signed by Babulal. In fact, when he reached the house of accused Billu, 'kulhara' was lying on the cot. It is argued that the trial court was wholly unjustified in relying on statements of Abhay Singh (PW-7) informant and Rajveer (PW-16), who was constable of the police, in support of the recovery of 'kulhara'. Both these witnesses are not signatories to the memo of recovery of 'kulhara' (Exhibit P-19). Bhanwar Singh (PW-9), the Investigating Officer, in his statement, does not prove presence of Rajveer at the place of recovery. He only stated that recovery of 'kulhara' was made from ancestral house of Billu Singh inhabited by several members. But then, such recovery cannot be held to have been made from his exclusive possession. The trial court has erred in law in convicting accused-appellant Billu Singh only on the basis of recovery of 'kulhara'. Merely because, as per FSL report (Exhibit P-26), 'kulhara' was found stained with blood of human origin, accused-appellant Billu Singh cannot be convicted. Unless it is established that 'kulhara' contained the blood of human origin, which also happens to be of the blood group of deceased, conviction cannot be sustained on mere recovery of 'kulhara'. Learned counsel submitted that the prosecution evidence was closed on 13.08.2002 and it was much thereafter on 27.08.2002 the statement of Rajveer Singh (PW-16) was recorded only to fill the lacuna in the present case. Accused-appellant Billu Singh, who was examined under Section 313 Cr.P.C. on 21.08.2002, has taken specific defence that Rajveer was originally not cited as witness by the prosecution and that he has been produced subsequently only with a view to helping prosecution by false deposition. Learned counsel, in support of his arguments, has relied on judgment of the Supreme Court in Shankarlal Gyarasilal Dixit Vs. State of Maharashtra - (1981) 2 SCC 35 and that of division bench of this court in Ajay Gupta alias Omprakash Vs. State of Rajasthan, D.B. Criminal Appeal No.39/2005 decided on 05.12.2014. Referring to statement of Lalchand (PW-4), learned counsel argued that his statement, if read with the statement of Dr. Rameshwar Lal (PW-11), makes it clear that murder of Dharamveer and Rajveer had taken place much before the time indicated by Abhay Singh. State of Rajasthan, D.B. Criminal Appeal No.39/2005 decided on 05.12.2014. Referring to statement of Lalchand (PW-4), learned counsel argued that his statement, if read with the statement of Dr. Rameshwar Lal (PW-11), makes it clear that murder of Dharamveer and Rajveer had taken place much before the time indicated by Abhay Singh. This witness has stated that informant Abhay Singh raised hue and cry at about 4 o'clock in early morning and when they reached his house, they saw the dead body of Dharamveer. In cross-examination he stated that Abhay Singh could conceal the truth from villagers. No person present there stated that Abhay Singh has disclosed names of assailants. He saw that blood on dead body had already dried. Blood lying on the ground had already dried. This clearly shows that sufficient time had passed between the death of deceased and cry for help raised by the accused. Dr. Rameshwar Lal (PW- 11), who has proved postmortem reports of deceased Dharamveer (Exhibit P-23) and Rajveer (Exhibit P-24), stated that he conducted the postmortem on the dead body of Dharamveer at 12.30 PM on 12.08.1994 and on the dead body of Rajveer at 1.35 PM on 12.08.1994 and that duration of their death was between 8 to 12 hours, which also shows that their death had taken place much before the time disclosed by Abhay Singh. Mr. Anshuman Saxena, learned counsel for accused-appellant, further submitted that statement of Roshan (PW-6), who has stated that he saw the blood stained 'kulhara' with Billu Singh in a 'chhappar', who threatened him of dire consequences but he (this witness) did not divulge this to anyone, cannot be relied as he did not disclose this fact to the police in his statement recorded under Section 161 Cr.P.C. on 14.08.1994 (Exhibit D-4). In fact, his supplementary statement was recorded by the police belatedly on 12.09.1994 (Exhibit D-3), wherein only for the first time he stated this fact, which cannot be believed. Charges therefore cannot be held to have been proved against the accused-appellant Billu Singh beyond reasonable doubt. Mr. In fact, his supplementary statement was recorded by the police belatedly on 12.09.1994 (Exhibit D-3), wherein only for the first time he stated this fact, which cannot be believed. Charges therefore cannot be held to have been proved against the accused-appellant Billu Singh beyond reasonable doubt. Mr. M.K. Kaushik, learned counsel appearing for accused-appellant Surendar, has argued that statement of Abhay Singh , recorded in earlier trial, cannot be read, not only against accused Nihal Singh, who was acquitted, but such statement also would not be admissible against accused-appellant Surendar, particularly when de novo trial was ordered by this court, and all the witnesses were produced again for their deposition. Learned counsel for accused-appellant has, in support of his argument, relied on the judgment of Punjab and Haryana High Court in Naseeb Vs. State of Haryana - Criminal Appeal No.S.697 SB of 2004 dated 10.09.2014, wherein reliance was place on judgments in Raj Singh and Another Vs. State of Haryana - 2009 (1) RCR (Criminal) 566 and Gurtej Singh and Others Vs. State of Punjab - 2010 (3) RCR (Criminal) 579, in which it was held that after de novo trial, the previous statement cannot be read into evidence. It is argued that similar view has been taken by Division Bench of Calcutta High Court in Amanat Sk. And Others Vs. State of West Bengal - (Crimes) VI-1988 (2) 323. On merits of the case, learned counsel submitted that accused-appellant has been falsely implicated, which is evident from the testimony of Babulal (PW-1), who is said to be author of the F.I.R. In cross-examination, he stated that he did not remember whether informant Abhay Singh disclosed to him names of assailants. He wrote the written report as per statement made by Abhay Singh. In response to a pointed query, this witness stated that the assailants were not known till preparation of the written report, and Abhay Singh had mentioned names of the assailants only at the askance of Tara Chand. This witness has stated that he could not say whether Abhay Singh was first taken to doctor for medical check-up. In crossexamination, this witness further stated that Abhay Singh has sold the entire land and house of the deceased, which were purchased by him, which proves his vested interest. This witness has stated that he could not say whether Abhay Singh was first taken to doctor for medical check-up. In crossexamination, this witness further stated that Abhay Singh has sold the entire land and house of the deceased, which were purchased by him, which proves his vested interest. This witness, in crossexamination, has further admitted that a criminal case was registered against Nihal Singh for beating Tara Chand, which ultimately culminated into compromise. Learned counsel for accused-appellant Surendar further argued that as per statement of various witnesses, Krishna Kumar, brother-in-law of Rajveer, was present in his house at the time of incident. A criminal case was registered against Krishna Kumar for committing rape and murder of mother of Hansraj, who happens to be the cousin of Rajveer. Learned counsel referred to statement of Mahendra Singh (PW-2) and argued that when he reached the place of incident in early dawn, names of the accused were not mentioned and Abhay Singh also did not state as to who were the assailants. Even when Abhay Singh was taken in a jeep, he did not disclose name of the assailants. It is only when this witness enquired from him, that he disclosed names of the assailants. Even this witness has stated that quite some time had passed from the death of deceased because the blood oozing out of their bodies had already dried. He stated that though he is permanent resident of village Nihalpura but till date he could not know as to who were the assailants. Krishna Kumar was very much available in the house of deceased Rajveer on the date of incident. Tara Chand (PW-5) has also stated that when he reached the place of incident early in the morning, no one was discussing about names of the assailants. Learned counsel also referred to statement of Lalchand (PW-4) and submitted that even this witness stated that when he saw the dead bodies of deceased, the blood lying on the ground, had already dried. Therefore, he asked Abhay Singh that it appears that quite some time had passed from the death of Rajveer Singh and why did he call the neighbours for help with so much of delay. Had they been murdered only recently, their blood would not have dried. Abhay Singh could not give any satisfactory answer. Therefore, he asked Abhay Singh that it appears that quite some time had passed from the death of Rajveer Singh and why did he call the neighbours for help with so much of delay. Had they been murdered only recently, their blood would not have dried. Abhay Singh could not give any satisfactory answer. Suggestion of learned counsel is that Abhay Singh himself could be responsible for killing of his two brothers Dharamveer Singh and Rajveer Singh with intent to grab their properties, and eventually he sold out their agricultural land and houses to Babulal (PW-1) and left the village with his family to settle down at some other place. Alternatively, his assertion is that the police has completely suppressed genesis of the incident as it has not produced Krishna Kumar, who, as per own showing of the prosecution, was in the house of Rajveer at the time of death and it could be Krishna Kumar, who could have murdered the deceased. Mr. M.K. Kaushik, learned counsel for accused appellant Surendar, further submitted that Bhanwar Singh (PW-9) the first Investigating Officer, in crossexamination, has stated that during investigation he did not find involvement of accused Nihal Singh, Surendar and Satyaveer. Abhay Singh did not disclose name of Surendar in the first information report. His investigation proved that Krishna Kumar, brother-in-law of Rajveer, was present in the house of Rajveer at the time of incident. He stated that he interrogated Krishna Kumar but surprisingly he did not record his statement under Section 161 Cr.P.C. Rohtash (PW-10) has also stated that when Abhay Singh was taken by them to the doctor, he was not conscious. There were about 10- 15 persons in the jeep. Abhay Singh did not disclose to them names of the assailants. In cross-examination, this witness stated that Krishna Kumar was staying in the house of Rajveer for last 10-11 days but he disappeared after the incident. Smt. Bimla (PW-14),widow of deceased Rajveer, has categorically stated that Surendar and Nihal were not involved in the incident. She has made allegation against Billu Singh that it was he, who subjected her to beating few days before the incident. Abhay Singh has mentioned names of Surendar and Nihal in his statement before the court on being misguided by Billu and Jagmal. She has made allegation against Billu Singh that it was he, who subjected her to beating few days before the incident. Abhay Singh has mentioned names of Surendar and Nihal in his statement before the court on being misguided by Billu and Jagmal. This witness also stated that her brother Krishna Kumar was present in their house with her deceased husband Rajveer at the time of incident. Learned counsel argued that there was no previous enmity between accused Surendar and deceased persons. No motive has been established against accused-appellant Surendar. In defence, accusedappellant Surendar has categorically stated that Nihal Singh happens to be brother of his uncle. Tara Chand had earlier lodged a criminal case against Nihal Singh for beating his wife. Besides, no specific overt act Crla785/2015 has been assigned to accused-appellant Surendar nor any weapon has been recovered at his instance. The police has recorded statement of Abhay Singh twice under Section 161 Cr.P.C. (Exhibit D-5 and Exhibit D-6), in first of which, he alleged that Krishna Kumar, Rajveer and Satyaveer were having drinks in the house of Rajveer and in Exhibit D-6, he has stated that he had doubt that Nihal Singh and Surendar murdered his brothers but he has not seen them committing their murder and could not say as to what was the motive. In the statement recorded earlier as PW-7, Abhay Singh alleged that Billu and his family had forcibly occupied their agriculture land and that Hardwari Lal, father of Abhay Singh, was murdered by Jagmal father of Billu. In cross-examination, he further stated that Nihal and Surendar did not have any weapon when he saw them. He saw them from a distance of about two bighas in the full moon night. The accused-appellant has thus been falsely implicated in the matter. Learned counsel, in support of his argument, has relied on judgments of the Supreme Court in Annamma Cherian Vs. State of Kerala - 1988 (3) Crimes 597, Shankarlal Gyarasilal Dixit Vs. State of Maharashtra - (1981) 2 SCC 35 , Guriya @ Tabassum Tauquir and Others Vs. State of Bihar and Another - (2007) 8 SCC 224 , Sarojben Ashwinkumar Shah and Others Vs. State of Gujarat and Another - (2011) 13 SCC 316 , Nathu Lal Vs. State and Others - 2006 WLC (Raj.) UC 402, and of this court in, Mohammed Shafik alias Sheikh Salim Vs. State of Bihar and Another - (2007) 8 SCC 224 , Sarojben Ashwinkumar Shah and Others Vs. State of Gujarat and Another - (2011) 13 SCC 316 , Nathu Lal Vs. State and Others - 2006 WLC (Raj.) UC 402, and of this court in, Mohammed Shafik alias Sheikh Salim Vs. State of Rajasthan - S.B. Criminal Misc. Petition No.1614/2009 - decided on 22.09.2011, Ajay Gupta @ Omprakash Vs. State of Rajasthan - D.B. Criminal Appeal No.39/2005 dated 05.12.2014, and that of the Patna High Court in Shyam Kumar and Others Vs. The State of Bihar - D.B. Criminal Appeal Nos.1083 and 1134 of 2007 decided on 07.07.2015. Mr. Aladeen Khan, learned Public Prosecutor appearing for the State, opposed the appeals and argued that the trial court was perfectly justified in convicting the accused-appellants because their guilt stands proved beyond reasonable doubt. It is argued that incident took place at about 4.00 am and the first information report was lodged at the instance of Abhay Singh (PW-7) at 7.40 am, which delay is negligible because the informant, immediately on seeing dead bodies of his two real brothers, became unconscious. Babulal (PW-1) has admitted that written report (Exhibit P-12), on the basis of which FIR was registered, was authored by him and that he wrote therein what was stated by Abhay Singh (PW-7). This witness has stated that father's name of accused Billu Singh, happens to be Jagmal Singh and he had five sons. Jagmal Singh is alive. Pappu and Satyaveer were already separated from joint family and other sons were staying with their father. Learned Public Prosecutor submitted that if the complainant had any intention to falsely implicate family members of Jagmal Singh due to alleged enmity, he would have named all five brothers, whereas the fact is that only Billu and Satyaveer were named. Satyaveer has been acquitted by the trial court. Complainant Abhay Singh (PW-7), in his statement, has, without there being any deviation, proved what he alleged in the first information report that while he was sleeping in the night on 12.11.1994 on the roof top of his house, he heard the yelling of camel tied in the house, which became violent and started making noise by thumbing feet. Learned Public Prosecutor submitted that when camel notices any unnatural incident, it reacts. Learned Public Prosecutor submitted that when camel notices any unnatural incident, it reacts. The complainant, on hearing the yelling of camel, woke up and tried to look around from atop the roof. He noticed accused Nihal Singh climbing wooden staircase and accused Surendar standing on ground. They were talking that they have already finished Rajveer and Dharamveer and now it was the turn of complainant Abhay Singh. On hearing this, complainant became frightened and rushed towards the house of his uncle Rohtash through the roof of neighbour Sultan. When he returned back with his uncle and other persons to the house of Rajveer, he saw dead body of Rajveer with stilt neck. Rajveer had already died. Then they checked the house of Dharamveer, who was also found dead on the cot with stilt neck. On seeing the dead bodies, he became unconscious. Learned Public Prosecutor submitted that Mahendra Singh (PW-2) has stated that Abhay Singh became unconscious on seeing the dead bodies of his brothers. He was initially taken in a camel cart, but on the way when they were taking him to hospital in a camel cart, they got a jeep, in which they took him therein to Police Station. Abhay Singh gained consciousness near village Hasas and on being asked by them, he told the names of assailants. Lalchand (PW-4) has also stated that when Abhay Singh gained consciousness, he named four accused as assailants. Tara Chand (PW-5) also corroborated their statements by stating that Abhay Singh became unconscious on seeing the dead bodies of his brothers and when he was being taken to the doctor he gained consciousness en route near village Hasas and, there, on enquiry, he named Nihal Singh and Surendar as assailants. Roshan (PW-6) has also reiterated his earlier statement and stated that he saw accused Billu with 'kulhara' in 'chhappar', who threatened him of dire consequences if he disclosed this fact to anyone. His statement under Section 161 Cr.P.C. was recorded on 14.08.1994. Again, his supplementary statement was recorded on 12.09.1994, in which he mentioned this fact. “Kulhara' has been recovered at the instance of accused Billu Singh. This witness, in cross-examination, has stated that he used to get threats from Billu Singh of dire consequences if he disclosed this fact to anyone. His statement under Section 161 Cr.P.C. was recorded on 14.08.1994. Again, his supplementary statement was recorded on 12.09.1994, in which he mentioned this fact. “Kulhara' has been recovered at the instance of accused Billu Singh. This witness, in cross-examination, has stated that he used to get threats from Billu Singh of dire consequences if he disclosed this fact to anyone. It is argued that Bhanwar Singh (PW-9), Investigating Officer, has proved recovery of 'kulhara' at the instance of accused Billu Singh vide Exhibit P- 19 pursuant to information given by him under Section 27 of the Evidence Act vide Exhibit P-21. Even though Rohtash (PW-10) has been declared hostile but he has also partially supported the prosecution case and has admitted having signed panchnama of dead bodies Exhibit P-1 and Exhibit P-2, and Exhibit P-3 to Exhibit P-10, as attesting witnesses. He also admitted to having signed recovery memo of 'kulhara (Exhibit P-19). Testimony of Dr. Rameshwar Lal (PW-11) disproves the fact that the timing of murder of deceased has been concealed by complainant Abhay Singh (PW-7). In fact, Dr. Rameshwar Lal (PW-11) has stated that at the time of postmortem, blood of deceased was not fully dried and blood was still oozing out from their dead bodies in pink colour. Blood takes about 15-20 hours to completely dry. This witness has stated that the duration of death was between eight to twelve hours. Learned Public Prosecutor submitted that Bimla (PW-14) W/o deceased Rajveer, has stated that knowing about death of her husband, she came to village, where Billu Singh, his father Jagmal Singh, his mother Ram Pyari threatened her to keep silence and that Billu Singh had subjected her to beating few days before the incidents. Jagmal was responsible for killing of Hardwari Lal, who was father of her deceased husband. She stated that land, which fell to the share of her husband and his brothers, was forcibly taken possession of by accused. Rajveer Singh (PW-16) was produced to prove various articles and memos. It is contended that circumstances stated by him were put to accused during examination under Section 313 Cr.P.C. Recovery of 'kulhara' at the instance of Billu has rightly been supported by Abhay Singh (PW-7). Rajveer Singh (PW-16) was produced to prove various articles and memos. It is contended that circumstances stated by him were put to accused during examination under Section 313 Cr.P.C. Recovery of 'kulhara' at the instance of Billu has rightly been supported by Abhay Singh (PW-7). Learned Public Prosecutor argued that the trial court was perfectly justified in holding that statement of Abhay Singh recorded in original trial, would be relevant and can be read in evidence against accusedappellant Billu Singh and Surendar, in view of Section 33 of the Indian Evidence Act as they had then crossexamined him, whereas in the case of Nihal Singh, one of the requisite conditions that accused would have right and opportunity to cross-examine the witnesses, was not fulfilled as he did not have such opportunity. His statement recorded in earlier trial on 17/18.04.1998, can be read in later judicial proceedings against the accused. The trial court passed the said order after thorough enquiry on 13.07.2015. The accused-appellants never challenged the said order, which has attained finality. Learned Public Prosecutor, in support of his arguments, cited judgments of the Supreme Court in Mulkh Raj Sikka Vs. Delhi Administration - AIR 1974 SC 1723 , Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others - (2013) 9 SCC 500 and Shashikant Singh Vs. Tarkeshwar Singh and Another - (2002) 5 SCC 738 , and argued that there is nothing illegal about treating the statement of Abhay Singh recorded in earlier proceedings, admissible in later proceedings because the trial court has recorded a finding that the said witness could not be produced despite best efforts of the prosecution. We have given our anxious consideration to rival submissions and perused the material on record. Accused-appellant Billu Singh Written report was submitted by Abhay Singh on 12.08.1994, which is his first version, in which he alleged that while he was sleeping on the roof top of his house, he heard noise of yelling made by camel and he woke up. From the roof top, he saw Nihal Singh standing on 5th step of wooden staircase whereas Surendar was standing on the ground near wooden staircase. They, on seeing him, started conversing that Rajveer and Dharamveer have been finished and now it is his turn. After saying so, Nihal Singh proceeded to climb the staircase. From the roof top, he saw Nihal Singh standing on 5th step of wooden staircase whereas Surendar was standing on the ground near wooden staircase. They, on seeing him, started conversing that Rajveer and Dharamveer have been finished and now it is his turn. After saying so, Nihal Singh proceeded to climb the staircase. On seeing Nihal Singh come towards him, complainant, in order to save life, while raising hue and cry, fled away through the roof of neighbour Sultan and reached the house of his uncle Rohtash and narrated to him the entire incident. Thereafter, complainant, accompanied by his uncle Rohtash, returned back to the place of incident and saw the dead bodies of Rajveer and Dharamveer. Site plan (Exhibit P-3) indicates that Abhay Singh was sleeping at 'D' place on the roof top and wooden staircase was at 'J' place in open chowk. While camel was tied on another extreme of chowk at place 'I', which is almost in its middle, and on other extreme middle of chowk at place indicated as 'M', was lying the dead body of Dharamveer. We shall deal with admissibility of his statement recorded as PW-7 in the earlier proceedings a little later, but what this witness has stated therein finds substantial corroboration from his first version given to the police in the statement recorded under Section 161 Cr.P.C. (Exhibit D-5). While deposing before the court, Abhay Singh (PW-7) has stated that it was around 4 o'clock in the morning. He was sleeping on the roof top of the house. He woke up after hearing the yelling of camel. He called his brother Dharamveer but when no response was there, he came close to staircase to get down from the roof top. He saw Nihal Singh standing on the foot rest of wooden staircase in the middle thereof and Surendra standing on the ground near staircase. He saw two persons fleeing away from there and they were Billu Singh and Satyaveer. Nihal stated that they have finished Rajveer and Satyaveer. Nihal, referring to this witness, then stated that he should also be finished. He then rushed towards the house of his uncle Rohtash through roof top of adjoining house of Sultan. This witness stated that Nihal Singh had earlier threatened to kill him. He became unconscious on seeing the dead bodies of his two brothers. Nihal, referring to this witness, then stated that he should also be finished. He then rushed towards the house of his uncle Rohtash through roof top of adjoining house of Sultan. This witness stated that Nihal Singh had earlier threatened to kill him. He became unconscious on seeing the dead bodies of his two brothers. When the villagers were taking him to police station in a jeep, he gained consciousness near village Hasas. At that time, when they enquired from him, he told names of Nihal Singh and Surendar as assailants. Abhay Singh (PW-7) has stated that there was enmity between two families about the dispute in respect of land. Due to this enmity, Jagmal Singh, father of Billu, had murdered his father Hardwari Lal and now they have murdered his two brothers. He further stated that still Billu and his family members are having encroachment upon their land. He stated that he left his village owing to fear for his life at the hands of accused and shifted to some other place with his 85 years old mother to earn livelihood. Abhay Singh (PW-7) has been subjected to extensive cross-examination. In cross-examination, he has stated that Billu Singh has forcibly occupied their 14 bighas of land, which includes his share. He admitted presence of Krishna Kumar, who happens to be brother-in-law of Rajveer, at the time and place of incidence. Satyaveer took the meal from the house of this witness to the house of Rajveer. Surendar was not armed with any weapon. Billu and Satyaveer were seen from the distance of two bighas. It was a full moon night, therefore, he could identify them. Besides there was also light of the bulb in his house. Abhay Singh (PW-7), when confronted with his statement under Section 161 Cr.P.C. dated 12.08.1994 (Exhibit D-5), wherein he stated that in the night of 11.08.1994 he prepared the food for all of them and that he and Dharamveer Singh had consumed the food together, and Krishna Kumar, Rajveer and Satyaveer were taking liquor in the house of Rajveer, denied having given any such statement. He also denied supplementary statement recorded on 18.08.1994, where he made similar statement and denied having given any such statement. He also denied supplementary statement recorded on 18.08.1994, where he made similar statement and denied having given any such statement. Curiously, Abhay Singh (PW-7) did not name Billu either in written report or in any of statements recorded under Section 161 Cr.P.C. Therein, he did not allege to have seen Billu and Satyaveer. In a significant improvement over his previous version, he, for the first time in his court statement, has stated that he also saw Billu Singh and Satyaveer fleeing from the place of occurrence. While we are not inclined to completely discard the testimony of this witness but applying the rule of separating the grain from the chaff, what we have to see for the present is as to what extent the statement of this witness finds corroboration from the testimony of other witnesses and whether this witness can be relied on to sustain conviction of accused-appellant Billu Singh. Babulal (PW-1) and Rohtash (PW-10) are two witnesses, who are shown as attesting witnesses of recovery of 'kulhara' at the instance of accused Billu Singh vide Exhibit P-19. Babulal (PW-1) in examinationin-chief admitted his signatures on Exhibit P-19 and also site plan (Exhibit P-11) of place of recovery. He admitted his signatures on written report (Exhibit P- 12) and the FIR (Exhibit P-15), which shows that he was one, who wrote the complaint and accompanied Abhay Singh to police station at the earliest point of time. But merely because he in cross-examination, slightly wavered by stating that he did not remember; whether or not Abhay Singh narrated to him names of assailants, would not in any manner diminish the evidentiary value of the written report. His further version in the cross-examination that names given in written report were mentioned by informant Abhay Singh (PW-7) at the askance of Tara Chand, can also not be a reason to fully discard testimony of Abhay Singh because he stood by what he stated in his written report and two statements recorded under Section 161 Cr.P.C., when he deposed before the court. Regarding recovery, however he stated that this recovery was made several days after the date of incident but could not give the exact number of days and that he saw 'kulhara' with S.H.O., but could not say wherefrom he got it. Rohtash (PW-10), even though was declared hostile, has partly supported the case of prosecution. Regarding recovery, however he stated that this recovery was made several days after the date of incident but could not give the exact number of days and that he saw 'kulhara' with S.H.O., but could not say wherefrom he got it. Rohtash (PW-10), even though was declared hostile, has partly supported the case of prosecution. He stated that Abhay Singh, on seeing dead bodies of his brothers, became unconscious but gained consciousness when he was being taken to village Sohali. He then stated that Abhay Singh did not name any of the assailants. Regarding recovery, however, this witness stated that he was attesting witness to the recovery of blood stained soil and simple soil vide Exhibits P-9 and P-10, respectively. He is also attesting witness to recovery memo of 'kulhara' (Exhibit P-19). He admits his signatures on these exhibits. In cross-examination, he admitted that he put his signatures on the memo of recovery of 'kulhara' (Exhibit P-19) about 20-25 days after date of incident. When he was on agriculture field, he was called by the police to the house of Billu for that purpose. The police asked him to sign the memo, which was already prepared when he reached there. Babulal was already there. All these memos were prepared at the public chowk in front of the house of Billu. When he reached there, 'kulhara' was also lying there on the cot. Learned trial court has relied on statements of Abhay Singh (PW-7) and Rajveer Singh (PW-16), who are attesting witnesses of recovery of 'kulhara', but they have also not fully supported such recovery. Abhay Singh (PW-7) stated with regard to recovery of 'kulhara' that when he went to the house of Billu, he stood out on the road and could not say what transpired inside but when the police came out of the house, they had blood stained 'kulhara' with them. Kanhaiya Ram identified that 'kulhara'. There were several other persons present when said 'kulhara' was recovered. Rajveer Singh (PW-16), who was police constable, stated that memo of recovery of 'kulhara' (Exhibit P-19) was written/prepared by him and information memo (Exhibit P-21) was also prepared by him. When we look at the recovery memo (Exhibit P-19), we find that apart from signature of accused Billu Singh, it contained signature of Babulal and Rohtash. Rajveer Singh (PW-16), who was police constable, stated that memo of recovery of 'kulhara' (Exhibit P-19) was written/prepared by him and information memo (Exhibit P-21) was also prepared by him. When we look at the recovery memo (Exhibit P-19), we find that apart from signature of accused Billu Singh, it contained signature of Babulal and Rohtash. 'Kulhara' was found to have contained blood of human origin but connection of blood group of the stains found on 'kulhara' and that of deceased could not be established. Present case rests entirely on circumstantial evidence because Abhay Singh (PW-7) stated that he had not seen accused committing murder of his two brothers. In a case of circumstantial evidence, there must be complete chain of circumstances which should lead to only inescapable conclusion that accused was the only person, who could have committed the alleged offence and none else. Each of circumstances that is proved against the accused should form a chain so complete so as to rule out every other hypothesis, which may be compatible with innocence of the accused. The chain of circumstances that is formed against him should be so interlinked as to not have any missing link. In the present case, not only Billu Singh has not been named by the informant in written report, but he has also not been named in either of his police statements so much so that his first statement under Section 161 Cr.P.C. was recorded on 12.08.1994 and supplementary statement under Section 161 Cr.P.C. recorded on 18.08.1994, and that the incident took place in the night of 11.08.1994, whereas accused Billu Singh was arrested on 24.09.1994. His personal search memo was prepared on 24.09.1994 vide Exhibit P-20 and information memo was prepared on 24.09.1994 vide Exhibit P-21. Thus, the alleged recovery of 'kulhara' has been made almost one month and twelve days after the incident took place. There is no evidence on record to conclude or even infer that accused Billu Singh was absconding. Investigation of the police, as stated by Bhanwar Singh, did not initially proceed even against Nihal Singh, Surendar and Satyaveer as accused, let alone Billu Singh. Abhay Singh, even in his earlier version, did not allege that he saw Billu Singh at the place of occurrence. Investigation of the police, as stated by Bhanwar Singh, did not initially proceed even against Nihal Singh, Surendar and Satyaveer as accused, let alone Billu Singh. Abhay Singh, even in his earlier version, did not allege that he saw Billu Singh at the place of occurrence. Abhay Singh (PW-7) has stated that entire family of father of Billu Singh was staying in the house from where recovery of 'kulhara' was made. 'Kulhara' was recovered from a house, which was not even locked. Thus, such recovery, besides being highly belated, has been made from a room of the house, which cannot be said to be exclusively in possession of accused Billu Singh. We have to, in this regard, now deal with the statement of Roshan (PW-6), which is quite significant. He stated that after he learnt that Rajveer and Dharamveer have been murdered, he saw blood stained 'kulhara' with Billu Singh but he did not disclose as to from where he got that. Billu concealed that 'kulhara' in his 'chhappar'. Billu Singh threatened him not to disclose this to anyone or else he would have to face dire consequences. Owing to fear for his life, he did not disclose this fact to the police. The accused used to threaten him regularly. In cross-examination, he admitted that the police enquired from him on 14.08.1994 but he did not inform them of the above fact. Statement of Roshan (PW-6) does not inspire any confidence. Roshan Singh has stated that he saw blood stained 'kulhara' with accused Billu Singh, which he had hidden in 'chhappar' of 'nohara' but eventually 'kulhara' has not been recovered from that 'chhappar' but was shown to have been recovered from the room of his parental house. Roshan Singh (PW-6) in his statement given to police under Section 161 Cr.P.C. (Exhibit D-4) recorded on 14.08.1994, did not make mention of any such fact. However, when his supplementary statement was recorded by the police under Section 161 Cr.P.C., on 12.09.1994 i.e. one month after the date of incident, he for the first time made that statement to the police. In a case, which is based entirely on circumstantial evidence, it is highly unsafe to believe the testimony of such a witness, whose conduct is so unnatural and who changes his version from time to time. In a case, which is based entirely on circumstantial evidence, it is highly unsafe to believe the testimony of such a witness, whose conduct is so unnatural and who changes his version from time to time. Not much credence can be given to the testimony of Bimla (PW-14) W/o deceased Rajveer Singh, either, who has stated that Surendar and Nihal have nothing to do with the incident. She made allegation entirely against Billu by alleging that he had earlier subjected her to beating. But then this witness in the court statement also stated that she had gone to her parents' house on 'teej' festival and was away from the village when the incident took place and it was Billu, who came to her parents' house and told that Dharamveer and Rajveer have sustained injuries in a fight. Billu brought her to Nihalpura but did not allow her to go to her husband's house, and took her to his own house. It is difficult to believe statement of this witness, who at one place alleged that it was Billu, who subjected her to immense amount of cruelty few days before the incident and that Billu had enmity with his husband and family, and even then she accompanied Billu to Nihalpura and yet would not go to the house of her husband, who has been murdered, and would stay with Billu in his house. No significance can therefore be attached to her statement that Billu and Jagmal may have misled Abhay Singh into naming Surendar and Nihal as accused. In view of above, we are of the opinion that evidence in the matter is not such, which unerringly point to the guilt of accused Billu Singh and none else and the chain of circumstances, as far as he is concerned, is not so complete as may form the basis for the conclusion that it was he alone, who must have committed this murder and none else. It is trite that before arriving at certain conclusion regarding accused on the basis of circumstantial evidence, every reasonable hypothesis, which may be compatible with his innocence, must be ruled out, whereas the evidence in the present case falls short of qualifying that stringent test. Accused-appellant Surendar Adverting now to the case of accused-appellant Surendar, informant Abhay Singh has named Nihal Singh as also Surendar, who were present at the place of occurrence. Accused-appellant Surendar Adverting now to the case of accused-appellant Surendar, informant Abhay Singh has named Nihal Singh as also Surendar, who were present at the place of occurrence. He disclosed their names in the written report, which was lodged within three hours of the incident. Even though, Babulal (PW-1) has somewhat wavered in his cross-examination by stating that Abhay Singh initially did not tell him names of assailants and that he disclosed their names at the askance of Tara Chand, but, at the same time, he, in examinationin- chief, has stated that written-report (Exhibit P-12) was authored by him and that he was signatory thereof as also the FIR (Exhibit P-15). In cross-examination, he also stated that he wrote the written report as per what was stated by Abhay Singh. Rohtash (PW-10), real uncle of two deceased and informant Abhay Singh, has even though not fully supported this version of informant that he disclosed names of assailants and that on seeing dead bodies of his two brothers, he became unconscious and gained consciousness while he was taken in a jeep and at that moment, he disclosed names of assailants Nihal Singh and Satyaveer. But, in given facts of the case where father of accused persons was allegedly responsible for the killing of father of informant and that now accused are allegedly responsible for the killing of his two real brothers, so much so that when the informant owing to fear for his life, has left the village after selling all his properties and the house and shifted to some other State, it can be visualized as to why and for what reason Rohtash did not support the prosecution. But Mahendra Singh (PW-2) has fully supported version of Abhay Singh that he was taken to the police station and en route Abhay Singh disclosed names of Surendar and Nihal Singh and this discloser was made when he regained consciousness near village Hasas. In crossexamination, this witness again stated that when he accompanied Abhay Singh to police station, he was unconscious. Lalchand (PW-4) has also stated that he accompanied informant Abhay Singh to police station. Initially, Abhay Singh was conscious. On seeing dead bodies of his brothers he became unconscious. Tentwelve people of village accompanied him in the jeep. When Abhay Singh gained consciousness en route, on enquiry by them, he named four accused including Nihal Singh. Lalchand (PW-4) has also stated that he accompanied informant Abhay Singh to police station. Initially, Abhay Singh was conscious. On seeing dead bodies of his brothers he became unconscious. Tentwelve people of village accompanied him in the jeep. When Abhay Singh gained consciousness en route, on enquiry by them, he named four accused including Nihal Singh. This witness has somewhat tried to support the improved version of Abhay Singh made in court about involvement of four accused. If he is not believed as to role of other two accused, who were for the first time named by Abhay Singh in court statement, this witness can be believed at-least to the extent of accused-appellant Surendar. In cross-examination again, this witness has reiterated the same version. Although, it is true that this witness also stated that he enquired from Abhay Singh that the incident appeared to have taken place much earlier and that why did he raise the cry for help at 4 o'clock because the blood oozing out of the dead bodies, had already dried. And the defence on this basis, tried to suggest that it could be Abhay Singh alone who himself was responsible for the killing of his two brothers because eventually he sold out the entire landed property as well as house of all his brothers to Babulal (PW-1). But then not much can be made out of such statement of Lalchand (PW-4) because Dr. Rameshwar Lal (PW-11) has categorically stated that when he conducted postmortem on the dead bodies of Dharamveer and Rajveer, the blood was not fully dried and their bodies were still bleeding. Tara Chand (PW-5) has also proved that Abhay Singh became unconscious seeing the dead bodies of his two brothers and was lying in front of his house. The villagers initially tried to take him to the doctor in a camel cart to village Rohla but no doctor was available there and thereafter they took him in a jeep of Deva Ram to police station. He gained consciousness near village Hasas. On enquiry by the people, who were accompanying him in the jeep, he disclosed names of Nihal Singh and Surendar as assailants. Abhay Singh (PW-7) in his earliest version given to several villagers, named Nihal Singh and Surendar as those who were seen at the place of occurrence. Immediately on hearing the noise made by camel, he woke up. On enquiry by the people, who were accompanying him in the jeep, he disclosed names of Nihal Singh and Surendar as assailants. Abhay Singh (PW-7) in his earliest version given to several villagers, named Nihal Singh and Surendar as those who were seen at the place of occurrence. Immediately on hearing the noise made by camel, he woke up. It is also proved by testimony of all these witnesses that Abhay Singh, owing to fear for his life, rushed to the house of his uncle Rohtash through roof top of his neighbour Sultan, which has been indicated adjacent to his house in the site plan. Sizable number of witnesses have confirmed this fact that when he came to the house of his brothers with other villagers, and saw dead bodies of his brothers Dharamveer and Rajveer, he instantaneously became unconscious. Initially they made efforts to take him on a camel cart to village Rohla to get him treated by a doctor but then they got a jeep on the way and they took him to the police station. He gained consciousness en route near village Hasas. When these witnesses asked him as to who were assailants, he named Nihal and Surendar. That was the earliest version which he disclosed to the police in the written report and stood by the same in his statement recorded on 14.08.1994 under Section 161 Cr.P.C. and thereafter, supplementary statement recorded under Section 161 Cr.P.C. on 12.09.1994, and also in the court statement. Although, it is true that no recovery has been made at the instance of Surendar, but his conviction can nevertheless be justified on the testimony of solitary witness, who had seen him at the place of occurrence. There is no impediment in law to record conviction of accused even on the basis of solitary witness, if it otherwise inspires confidence and finds sufficient corroboration. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. In fact, it is not the number and the quantity, but the quality that is material. The evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. There is no legal impediment in convicting a person on the sole testimony of a single witness. In fact, it is not the number and the quantity, but the quality that is material. The evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is open to a court to fully and completely rely on a solitary witness and record conviction. The Supreme Court in umpteen number of cases has held that conviction of an accused can be sustained on the testimony of sole witness if it inspires confidence and is wholly reliable. We may, in this connection, draw support from judgment of the Supreme Court in Anil Phukan Vs. State of Assam - (1993) 3 SCC 282 , para 3 of the report whereof reads as under:- “3. This case primarily hinges on the testimony of a single eyewitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy. In Kartik Malhar Vs. State of Bihar - (1996) 1 SCC 614 , the Supreme Court after following its previous judgment in Vadivelu Thevar Vs. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy. In Kartik Malhar Vs. State of Bihar - (1996) 1 SCC 614 , the Supreme Court after following its previous judgment in Vadivelu Thevar Vs. State of Madras - AIR 1957 SC 614 , held that conviction can be recorded on the basis of statement of a single witness provided the evidence of that witness is reliable and unshaken by any circumstance appearing on the record against him and the court at the same time is convinced that he is a truthful witness. Para 7 and 14 of the report are relevant for this purpose, which are reproduced as under:- “7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same lime, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present Indeed, the Courts insist on the quality, and, not on the quantity of evidence. 14. We have already discussed above that it is open to the Courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eye witness is found to be trustworthy, it becomes the duty of the Court to convict the accused as observed by this Court in Vadivelu Thevar's quoted below; "But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.” As to who would be witness of sterling worth has been explained by the Supreme Court in Kuriya and Another Vs. State of Rajasthan - (2012) 10 SCC 433 . Para 24 of the report, which is relevant, is reproduced as under:- “24. “Sterling worth” is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanour of the witnesses, if any, noticed by the court. Linguistically, “sterling worth” means “thoroughly excellent” or “of great value”. This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood.” Coming now to the argument that previous statement of Abhay Singh (PW-7) cannot be read against accused Satyaveer, it should be noted that the trial court on remand of the matter by this court, has made requisite enquiry under Section 33 of the Indian Evidence Act and recorded a finding by order dated 13.07.2015 that Abhay Singh was not seen in village Nihalpura for last 10-12 years. He has moved out of village by selling his agricultural land and houses. Enquiry report (Exhibit C-1) has been proved by Purushottam Das (CW-1), who also made enquiry from Satyaveer, who is cousin of Abhay Singh, and also from Bhagwan Singh, Suresh Kumar, Rohitash and Vijay Singh, all residents of Nihalpura. During this enquiry, they consistently stated that for last 10-12 years Abhay Singh was not seen. Neither they heard about him nor did he ever come back to the village. The trial court also recorded statement of Purushottam Das, S.H.O., Police Station Pacheri Kalan, as CW-1. During enquiry, Purushottam Das exhibited the statements of Satyaveer, Bhagwan Singh, Suresh Kumar, Rohitash, Vijay Singh and Sarpanch of Panchayat Sohali, recorded by him as Exhibits C-2, C-3, C-4, C-5, C-6 and C-7. The trial court then recorded a finding requisite under Section 33 of the Indian Evidence Act that Abhay Singh “cannot be found” and further held that since accused Satyaveer and Billu Singh had right and opportunity to crossexamine him in the earlier proceedings, his previous statement recorded would be relevant but further held that since accused Nihal Singh did not have opportunity to cross-examine him, his earlier statement recorded as PW-7 would not be relevant against him. Aforesaid, order of the trial court remained unchallenged and attained finality. Even finding recorded in that order, in the facts of the case, appears to be justified on interpretation of Section 33 of the Evidence Act. Aforesaid, order of the trial court remained unchallenged and attained finality. Even finding recorded in that order, in the facts of the case, appears to be justified on interpretation of Section 33 of the Evidence Act. Section 33 of the Indian Evidence Act forms an exception to the rule stated in Section 353 of the Cr.P.C., which requires that all evidence, recorded during enquiry and trial, should be recorded in the presence of accused. It is true that such exception should not be lightly resorted to. The competent court while making use of Section 33 of the Indian Evidence Act must record its satisfaction that conditions enumerated in Section 33 of the Indian Evidence Act have been satisfied and all such conditions must be fulfilled before a previous deposition can be admitted in evidence. Apart from the finding that witness Abhay Singh “cannot be found”, the proviso to Section 33 enumerates additional condition; first that proceedings were between the same parties - in this case the State and the accused; second that adverse party in the first proceedings, had right and opportunity to cross-examine him - in this case the accused Satyaveer and Billu had right and opportunity to cross-examine Abhay Singh and actually cross-examined him; and third that the questions in issue was substantially the same in the first and second proceedings - in this case, the accused were earlier facing trial on the same charges, on which de novo trial was held against them. All those prerequisite conditions enumerated in the proviso to Section 33 of the Evidence Act for making previous statement of Abhay Singh (PW-7) admissible against accused Surendar in the de novo trial, were thus fully satisfied. A Division Bench of Calcutta High Court in Amanat Sk., supra, on which reliance was placed by learned counsel for appellant, while interpreting the words “proceedings in respect of such person shall be commenced afresh”, incorporated in sub-section (4)(a) of Section 319 of the Criminal Procedure Code, 1973, held that witnesses, who have already been examined previously were to be re-heard, be it of the prosecution or the defence. It was held that “...Since there can not be two sets of evidence in one and the same trial in respect of the accused arraigned therein the only conclusion that can be drawn is that the evidence laid afresh will be the substantive evidence and the evidence earlier given be used as previous statement. It is of course true that in a given case, it may so happen that one of the witnesses, who was examined earlier, was not available or was dead. In such an eventuality, the evidence of the witness earlier given could be used as substantive evidence only because a special and exceptional provision for it reception under section 33 of the Evidence Act has been made.” That requirement of law envisaged in Section 33 of the Evidence Act has been fulfilled in the present case. Therefore, there can be no impediment in law to rely on testimony of Abhay Singh (PW-7), in so far as the case of accused-appellant Surendar is concerned. The Supreme Court in Mulkh Raj Sikka Vs. Delhi Administration - AIR 1974 SC 1723 , held that where, in a sessions trial, the witness, whose deposition recorded by the committing Magistrate, was sought to be brought on record, could not be found in spite of all reasonable steps taken, including the one taken by High Court during the hearing of appeal, and further although the accused had a right to cross-examine that witness in the committing Court, his counsel had preferred not to cross-examine at that stage and had reserved it for the Sessions Court, both the conditions of Section 33 were satisfied and the evidence of such witness recorded in committing Court was admissible in Sessions trial. In the present case, accused Surendar not only had the right and opportunity to cross-examine but actually cross-examined him in the earlier trial and therefore his statement in de novo trial would be admissible. In the result, appeal filed by appellant Billu Singh is allowed. He is acquitted of the charges leveled against him. He is in jail. He be set at liberty forthwith, if not required in any other case or for any other purpose. Appeal filed by accused-appellant Surendar is dismissed. He is in jail and has to serve out the remaining period of sentence. Judgment of learned trial court is accordingly modified. He is acquitted of the charges leveled against him. He is in jail. He be set at liberty forthwith, if not required in any other case or for any other purpose. Appeal filed by accused-appellant Surendar is dismissed. He is in jail and has to serve out the remaining period of sentence. Judgment of learned trial court is accordingly modified. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Billu Singh is directed to forthwith furnish a personal bond in the sum of Rs.20,000/-, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.