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2021 DIGILAW 323 (MP)

Rashid Lakhera v. State of Madhya Pradesh

2021-03-08

SANJAY DWIVEDI

body2021
JUDGMENT : Sanjay Dwivedi, J. 1. Heard on the question of admission. 2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of the order dated 24.02.2021 (Annexure-P/4) passed by the trial Court, whereby an application filed by the respondent/State under Section 32 of the Indian Evidence Act, 1872 has been allowed and further directed that the statement of a witness namely Aabid Ali (PW/7) recorded on 02.12.2011 shall be read over in the trial conducted against the petitioner. 3. Facts of the case in short are that an offence was registered against the petitioner along with other co-accused persons, but the petitioner was not arrested for the reason that he was absconded, therefore, the trial was conducted in respect of other co-accused persons who were arrested and tried in the proceeding. Later on, the petitioner was arrested on 06.11.2017 in respect of Crime No. 846/2010 in which the trial was already concluded against the other co-accused persons in which some of the accused were convicted by the trial Court and some were acquitted. During trial, the statement of one of the witnesses namely Aabid Ali (PW/7) was recorded and he was also cross-examined by the other co-accused persons, but as the petitioner was absconding, therefore, Aabid Ali (PW/7) could not be cross-examined on behalf of the petitioner and later on, Aabid Ali (PW/7) died and information in this regard came to the knowledge of the Court on 27.11.2020 when summon was issued him. The judgment in respect of other co-accused persons who participated in the trial had come on 29.04.2014. The prosecution thereafter moved an application under Section 32 of the Indian Evidence Act, 1872 before the trial Court saying that the prosecution witness Aabid Ali although died, but since he was the star witness, had given statement in regard to the incident, therefore, his statement being very material, required to be taken into evidence. Pursuant thereto, a reply was filed by the petitioner (accused) stating therein that Aabid Ali died after passing of the judgment by the trial Court and when his evidence was recorded by the trial Court, neither the accused nor his counsel was available, therefore, his statement cannot be taken into account because the petitioner could not exercise his right of cross-examination. It was also stated in the reply that as per the provisions of Section 273 of the Code of Criminal Procedure, the statement of Aabid Ali cannot be read over in the trial conducted against the petitioner. The trial Court, in turn, allowed the application filed by the respondent/State observing therein that in view of the facts and circumstances, the case would govern with the provisions of Section 299 of the CrPC, but not with the provisions of Section 273 of the CrPC. The trial Court also observed that in view of the provisions of Section 33 of the Indian Evidence Act, the statement of Aabid Ali can be read over against the accused despite the fact that he could not exercise his right of cross-examination as he was absconding and later on, arrested. As per the trial Court, the case would govern with the provisions of sub-section (1) of Section 299 of the CrPC. 4. Criticizing the order passed by the trial Court, learned counsel for the petitioner submits that cross-examination is a right of the accused and since the said right could not be exercised by the petitioner at the time of trial when evidence of Aabid Ali was recorded and after his death, the said statement cannot be used against the petitioner who was being tried by the trial Court after the trial is over in respect of the accused who were arrested and subjected to trial. He further submits that the trial Court has wrongly treated the statement of Aabid Ali as a dying declaration and permitted the prosecution to use the same against the petitioner. In support of his contention, learned counsel for the petitioner has relied upon a decision reported in (2009) 7 SCC 104 [Jayendra Vishnu Thakur Vs. State of Maharashtra and another]. 5. On the other hand, learned Panel Lawyer appearing for the respondent/State opposes the prayer made by learned counsel for the petitioner and submits that the trial Court has rightly observed that the case of the petitioner would govern with the provisions of sub-section (1) of Section 299 of the CrPC. He further submits that under the circumstances prevailing in the present case, the statement of Aabid Ali can be read over and can also be used by the prosecution against the petitioner as per the requirement of Section 33 of the Indian Evidence Act, 1872. He further submits that under the circumstances prevailing in the present case, the statement of Aabid Ali can be read over and can also be used by the prosecution against the petitioner as per the requirement of Section 33 of the Indian Evidence Act, 1872. He submits that admittedly the petitioner was absconded during trial and the trial Court proceeded in the trial in absence of the petitioner against the other co-accused persons and concluded the trial. He also submits that provisions of Section 273 of the CrPC are not applicable in the present case. To bolster his contention, he has placed reliance upon the judgments of the Supreme Court reported in (2011) 4 SCC 426 [Central Bureau of Investigation Vs. Abu Salem Ansari and another] and (2000) 4 SCC 41 [Nirmal Singh Vs. State of Haryana]. 6. Considering the rival contentions raised by learned counsel for the parties and on perusal of record, I do not find any substance in the submissions made by learned counsel for the petitioner that as per the provisions of Section 273 of the CrPC which deal with the procedure as to how the evidence is to be recorded and further provides that it has to be recorded in the presence of the accused, therefore, the statement of Aabid Ali cannot be read over in the trial conducted against him. However, the provisions of Section 299 of the CrPC deals with the situation as is existing in the present case which reads as under:- "299. Record of evidence in absence of accused. (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try a[or commit for trial] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence of any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India. [a] Inserted by Act 45 of 1978, S. 23 (18-12-78). In the present case, it is clear that as per sub-section (1) of Section 299 of the CrPC, if an accused is absconding and is not participating in the trial, the Court is competent to proceed with the trial even in absence of the accused and can also examine the witness produced by the prosecution. In the case at hand, the petitioner remained absconded and got arrested after conclusion of the trial initiated by the Court against the other co-accused persons who were arrested and tried in the trial. Therefore, a supplementary charge-sheet was filed and the trial was conducted only against the present petitioner (accused). Accordingly, the application was moved by the prosecution under Section 32 of the Indian Evidence Act for taking the benefit of statement of one of the prosecution witness i.e. Aabid Ali which was recorded during the trial and also cross-examined by the other co-accused persons against whom trial was being conducted. Since the petitioner was absconding and was not present in the trial, therefore, the petitioner cannot say that he has been deprived of exercising his right to cross-examination. Section 32 of the Indian Evidence Act, 1872 is reproduced hereinunder:- "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Since the petitioner was absconding and was not present in the trial, therefore, the petitioner cannot say that he has been deprived of exercising his right to cross-examination. Section 32 of the Indian Evidence Act, 1872 is reproduced hereinunder:- "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-- (1) when it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) or is made in course of business. -- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker. --When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest. (3) or against interest of maker. --When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest. --When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship. --When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) or is made in will or deed relating to family affairs. --When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. (7) or in document relating to transaction mentioned in section 13, clause (a). --When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (8) or is made by several persons, and expresses feelings relevant to matter in question. --When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question." From the aforesaid provisions, it is clear that the prosecution can very well take advantage of the statement of the witness for proving its case. 7. --When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question." From the aforesaid provisions, it is clear that the prosecution can very well take advantage of the statement of the witness for proving its case. 7. In the case of Nirmal Singh (supra), the Supreme Court in paragraphs 4 and 5 dealing with the provisions of sub-section (1) of Section 299 of the CrPC, has observed as under:- "4. In view of the rival stand of the parties, the sole question that arises for consideration is under what circumstances and by what method, the statements of five persons could have been tendered in the case for being admissible under Section 33 of the Evidence Act and whether they can form the basis of conviction. Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure. In the case in hand, there is no grievance about non-compliance with any of the requirements of the first part of sub-section (1) of Section 299 CrPC. In the case in hand, there is no grievance about non-compliance with any of the requirements of the first part of sub-section (1) of Section 299 CrPC. When the accused is arrested and put up for trial, if any such deposition of any witness is intended to be used as evidence against the accused in any trial, then the court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. The entire argument of Mr. Gopal Subramanium, appearing for the appellant is that any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the court concerned must be satisfied and record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW-48/A to PW-48/E. As has been stated earlier, since the law empowers the court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross-examining the witnesses, it is, therefore, necessary that the preconditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. The Privy Council, in fact in the case of Chainchal Singh v. Emperor [ AIR 1946 PC 1 : 1945 All LJ 550] AIR p. 1 in analysing the applicability of Section 33 of the Evidence Act, did come to the conclusion that when the evidence given by the prosecution witness before the committing Magistrate is sought to be admitted before the Sessions Court under Section 33 on the ground that the witness was incapable of giving evidence, then that fact must be strictly proved and this may be more so in those cases where the witness was not cross-examined in the committing Magistrate's Court by reason of the accused not having been represented by a counsel. In that particular case the process-server had been examined, who stated that he found the witness ill and unable to move from his house, but that was not treated to be sufficient to hold that the prosecution had discharged its burden of proving that the witness was not available. But having said so, their Lordships did not interfere with the conviction on the ground that the court can interfere only if it is satisfied that grave and substantial injustice has been caused by mis-reception of the evidence in the case. On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 CrPC before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established. In the case in hand, after the process-server reported the fact of death of the persons concerned, who were summoned as witnesses and whose statements had already been recorded under Section 299 CrPC on the application of the prosecution, the said statements were tendered as evidence and have been exhibited as Exhibits PW-48/A to PW-48/E. The learned Sessions Judge as well as the High Court relied upon the said statements for basing the conviction of the appellant. So far as compliance with the first part of Section 299(1) is concerned, the same is established through the evidence of PW 28, who at the relevant time was working in the army as well as the SHO, Safidon also submitted before the Magistrate that the arrest of the accused could not be procured, as he was absconding and in fact there was an order from the Magistrate for issuance of proclamation under Section 82 of the Code of Criminal Procedure. The High Court in fact, on consideration of the entire materials did record a finding that the requirements of the first part of Section 299 of the Code of Criminal Procedure must be held to have been established and there was no illegality in recording the statements of the five persons as the accused had been absconding and there was no immediate prospect of the arrest of the said accused. So far as the requirement of the second part of Section 299 of the Code of Criminal Procedure is concerned, the impugned judgment of the High Court indicates that the Court looked into the original records and it was found that the summons had been sent by the learned trial Judge, summoning the witnesses repeatedly to appear before the trial court and on every occasion, the summons were received back with the report that the persons had already died. The High Court has also indicated as to how on each occasion, summons issued to the five witnesses had been returned back with the report that the persons were dead. 5. The High Court has also indicated as to how on each occasion, summons issued to the five witnesses had been returned back with the report that the persons were dead. 5. It is true as already stated that the Sessions Judge had not recorded an order to that effect and it would have certainly been in compliance with the requirement of Section 299 that the Court, while such statements are tendered in evidence should have recorded as to how the preconditions of the second part of Section 299 of the Code of Criminal Procedure had been complied with. But when the appellate court examines the records of the proceedings and comes to a conclusion that in fact those persons have died long before the summons on them to appear as witness, could be issued, the evidence thus tendered cannot be ignored from consideration, particularly, in a case like the one where all other eyewitnesses, 22 in number did not support the prosecution on being examined and there has been a gruesome murder inasmuch as the appellant killed four persons by indiscriminately shooting at them from his rifle, which was given to him in the cantonment. The High Court has recorded a finding that the factum of death of five witnesses, namely PW 2 Chhotu, PW 12 Jai Lal, PW 15 Prem, PW 10 Zohri Singh and PW 11 Jage Ram, has been established for the purpose of Section 299 of the Code of Criminal Procedure. In fact in the case of Jose v. State of Kerala [ (1973) 3 SCC 472 : 1973 SCC (Cri) 372 : AIR 1973 SC 944 ] this Court had occasion to examine the question of treating the evidence of a witness in the committal court as substantive evidence in trial under Section 33 of the Evidence Act. This Court had recorded the fact that at the time of trial, the witness had left for Coorg and was not available and it was not possible to serve summons on him and even a non-bailable warrant issued by the Court was returned with the endorsement "not available" and it is under those circumstances, the learned Sessions Judge brought on record the statement made by the eyewitness before the committal court as substantive evidence and marked the same as P-25. This Court negatived the contention of the accused and held that the said statement had rightly been treated as evidence during trial. The circumstances under which the statement of the witness in the committal court had been tendered and treated as substantive evidence during trial are almost similar to the case in hand and rather in the case in hand, the accused never raises the contention even in this Court that the persons are not dead but raises the sole contention that it has not been established by the prosecution that the persons are not dead. As has been stated earlier, the High Court did record a conclusion on examining the records of the proceedings that the witnesses are dead and, therefore, their former statements under Section 299 could be treated as evidence. We see, no infirmity with the said conclusion of the High Court and we are, therefore, not in a position to sustain the argument of Mr. Gopal Subramanium, learned senior counsel appearing for the appellant that the preconditions of Section 299 CrPC have not been complied with. Once the statements of those witnesses, exhibited as Exhibits PW-48/A to PW-48/E, are considered, and the Sessions Judge as well as the High Court have relied upon the same and based the conviction, we see, no infirmity in the same, requiring our interference with the conviction and sentence recorded by the High Court. In the aforesaid circumstances, it must be held that the prosecution case has been proved beyond reasonable doubt." Likewise, in the case of Abu Salem Ansari (supra), the Supreme Court in paragraphs 4 and 5 has also dealt with the respective provisions and observed as under:- "4. Section 299 CrPC reads as under: "299. In the aforesaid circumstances, it must be held that the prosecution case has been proved beyond reasonable doubt." Likewise, in the case of Abu Salem Ansari (supra), the Supreme Court in paragraphs 4 and 5 has also dealt with the respective provisions and observed as under:- "4. Section 299 CrPC reads as under: "299. Record of evidence in absence of accused.--(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits on India." 5. As regards the first respondent, sub-section (1) of Section 299 would apply as he, an accused person, was absconding, his case is already split up and has to undergo the trial. Obviously, the evidence adduced in the earlier trial cannot be used against the first respondent except as provided in sub-section (1) of Section 299 CrPC. In the circumstances if the absconding accused appears again, the prosecution witnesses have to be examined afresh. Obviously, the evidence adduced in the earlier trial cannot be used against the first respondent except as provided in sub-section (1) of Section 299 CrPC. In the circumstances if the absconding accused appears again, the prosecution witnesses have to be examined afresh. But, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, the prosecution would be justified in relying on the evidence already on record taken in the earlier trial in the absence of the absconding accused." 8. In view of the above enunciation of law, I have no hesitation to say that the order passed by the trial Court does not suffer from any infirmity. The facts of the case of Jayendra Vishnu Thakur (supra), on which learned counsel for the petitioner has placed reliance, are altogether different because in the said case, the Supreme Court has considered the right of the accused for cross-examining the witnesses and also the provisions of sub-section (1) of Section 299 of the CrPC in which it is observed as to in what manner, the Court has to satisfy itself that the accused is absconding and what material has to be placed before the Court and finally, it is found that treating the accused absconding, no proper procedure was followed, therefore, the Court found that the same defeats the right of the accused of cross-examination. Furthermore, here in this case, there was no such dispute in that regard and the accused had already been declared absconder during the trial, the trial was concluded and that fact situation has not been disputed by the accused before the trial Court or even before this Court. Under such a circumstance, the case on which, learned counsel for the petitioner has placed reliance is not helpful for the petitioner. 9. Considering the aforesaid facts and circumstances of the case and also taking note of the respective provisions as quoted hereinabove and also the view expressed by the Supreme Court in the cases relied by the learned Panel Lawyer, I am of the opinion that the petition has no substance. 10. Accordingly, the petition filed by the petitioner being sans merit, is hereby dismissed.