JUDGMENT : 1. These two appeals arise out of the judgment and order dated 27.02.2018 in Spl. SCST No.10/2016 on the file of the II Additional District and Sessions and Special Judge at Dharwad. While Criminal Appeal No.100126/2018 is filed by accused No.1 challenging his conviction and sentence of the offence punishable under Section 6 of POCSO Act, 2012, the State has filed Criminal Appeal No.100231/2018 seeking enhancement of the punishment. 2. For the sake of convenience, the appellant in Criminal Appeal No.100126/2018, who is respondent No.1 in Criminal Appeal No.100231/2018 is referred to as “accused No.1” and the State of Karnataka, who is appellant in Criminal Appeal No.100231/2018 and respondent No.1 in the other appeal is referred to as “prosecution”. 3. The allegations against accused Nos.1 to 3 are that the prosecutrix belong to Samagara community and accused Nos.1 to 3 knowing fully well that she belong to the said community coming under the Schedule Caste category, on 11.03.2013 at around 12:30 p.m., while the prosecutrix after completing the SSLC supplementary exam alongwith her friend CW.17 Vaishnavi, accused Nos.1 and 2 came in an autorickshaw and forcibly took the prosecutrix and her friend in the said autorickshaw. While accused No.2 was driving the autorickshaw, accused No.1 with the prosecutrix and her friend sat in the back seat and directed accused No.2 to take them to old bus stand. When prosecutrix requested him to allow her to get down from the autorickshaw saying that her father will be angry, accused No.1 slapped on her cheek. After getting down from the autorickshaw, accused No.1 forcibly took the prosecutrix to Mundagod by travelling in the bus and when she refused to accompany him, he gave threat to her saying that if she does not accompany him, he is going to pour acid on her. From Mundagod accused No.1 took the prosecutrix in a passenger auto to Kyasanakeri and alongwith accused No.3 kept the prosecutrix in the house of CW.20 Manjula W/o. Shankar Ramanakoppa. From Mundagod accused No.1 took the prosecutrix in a passenger auto to Kyasanakeri and alongwith accused No.3 kept the prosecutrix in the house of CW.20 Manjula W/o. Shankar Ramanakoppa. Without informing CWs.20 and 21 about the truth of having brought the prosecutrix forcibly, accused No.1 kept the prosecutrix in the house of CW.20 and saying that he is going to marry her, accused No.1 had forcible sexual intercourse with the prosecutrix and for a total period of 20 days, accused No.1 wrongfully confined the prosecutrix and during this period, five times he had forcible sexual intercourse with the prosecutrix. The allegations against accused No.3 is that whenever the prosecutrix told him that she wanted to go back, accused No.3 used to force her to stay on the pretext that accused No.1 would marry her and thereby accused Nos.1 to 3 have committed the offences punishable under Sections 323, 344, 366A, 376, 506 read with Section 34 of the Indian Penal Code (“IPC” for short) and Sections 3(1)(xi), 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (“SC/ST Act” for short). 4. After conducting detail investigation, the Investigating Officer filed charge sheet against accused Nos.1 to 3 in Special SCST CC No.24/2013. All the accused persons were on bail. After framing charge, a detail trial was held against accused Nos.1 to 3, wherein 27 witnesses were examined and Exs.P-1 to P-25 and MOs.1 and 2 were marked for the prosecution. Till 21 witnesses were examined, accused No.1 participated in the said proceedings and fully cross-examined the witnesses. However, after the examination of accused No.1, he remained absconding and ultimately charge against him came to be split up and the trial was proceeded against accused Nos.2 and 3. Ultimately by judgment and order dated 29.07.2015, the learned II Addl. District and Sessions and Special Judge, Dharwad acquitted accused Nos.2 and 3. The split up case against accused No.1 was registered as Special SCST CC No.10/2016. When non-bailable warrant was issued against accused No.1, on 27.09.2016 he has surrendered before the Court and he was taken to judicial custody. Later on, his application for bail was rejected by the learned 9Special Judge. On 29.06.2017 charge is framed against accused No.1. He has pleaded not guilty and claimed to be tried. When non-bailable warrant was issued against accused No.1, on 27.09.2016 he has surrendered before the Court and he was taken to judicial custody. Later on, his application for bail was rejected by the learned 9Special Judge. On 29.06.2017 charge is framed against accused No.1. He has pleaded not guilty and claimed to be tried. Once again a full fledged trial was held against accused No.1, wherein 22 witnesses are examined as PWs.1 to 22 and Exs.P-1 to 29 and MOs.1 and 2 are marked. 5. The learned Special Judge has recorded the statement of accused No.1 under Section 313 of Cr.P.C. by putting incriminating evidence arising in Special SCST CC No.10/2016 and he has denied the incriminating material against him. He has not chosen to lead defence evidence on his behalf. By the impugned judgment dated 27.02.2018, the learned Special Judge has found accused No.1 guilty of the offence punishable under Sections 323, 344, 376 and 506 read with Section 34 of IPC as well as Sections 3(1)(xi), 3(2)(v) of SC/ST Act as well as Section 6 of the POCSO Act. However, accused No.1 is acquitted of the offence punishable under Section 366A read with Section 34 of IPC. 6. Being aggrieved by his conviction and sentence of imprisonment, accused No.1 has filed Criminal Appeal No.100126/2018 and seeking enhancement of the punishment, the State has filed Criminal Appeal No.100231/2018. 7. We have heard the learned counsel representing accused No.1 as well as the Additional State Public Prosecutor for the State and perused the records. 8. The learned counsel representing accused No.1 argued and submitted that the impugned judgment and order of conviction is not only erroneous, but it is perverse, capricious and contrary to the settled principles of law and liable to be set aside. The Trial Court ought to have accepted the evidence on oath by the victim girl in the second trial, wherein she has deposed on oath under what circumstances she has given evidence in the earlier case i.e., Special SC/ST CC No.24/2013. 9. He submitted that the Trial Court ought to have accepted the best and the acceptable, plausible evidence which is beneficial to the accused. 9. He submitted that the Trial Court ought to have accepted the best and the acceptable, plausible evidence which is beneficial to the accused. The prosecutrix has categorically deposed that accused No.1 never kidnapped and he never committed any sexual assault on her and despite, the Trial Court has wrongly come to the conclusion that the earlier evidence on record is the best evidence and based on it has rendered the judgment of conviction against accused No.1 and it is against the provisions of law. 10. He further submitted that the Trial Court should have appreciated and extended the benefit of doubt to accused No.1, when there is contradictory evidence on record and there is no evidence to prove the allegations against accused No.1. The medical evidence placed on record is contrary to the allegations made against accused No.1. He submitted that the prosecution story that the victim girl was made to travel from place to place and stay in different places and at no point of time, prosecutrix has raised any alarm, is not believable. The impugned order is based on assumptions, presumptions, conjunctures and imaginary grounds. 11. The learned counsel further submitted that the Trial Court has wrongly applied the provisions of Section 33 of the Indian Evidence Act and held that the evidence recorded in the earlier case is applicable and accused cannot raise objections for the same. Accused No.1 never requested the Trial Court to hold fresh trial or a de novo trial. It was the prosecution which requested the Court to hold fresh enquiry in support of its case, but failed to prove the charges against accused No.1. Looking from any angle, in the impugned judgment is not sustainable and prays to allow the appeal. 12. On the other hand, the learned Additional S.P.P. submitted that the judgment and order of sentence passed by the Trial Court so far as it relates to imposition of lesser sentence/inadequacy of sentence is against the facts, law and evidence on record and as such, liable to be set aside. The learned Trial Judge has convicted accused No.1 for the offences punishable under Sections 323, 344, 376 and 506 read with Section 34 of IPC and Sections 3(1)(xi) and 3(2)(v) of SC/ST Act and Section 6 of the POCSO Act. The learned Trial Judge has convicted accused No.1 for the offences punishable under Sections 323, 344, 376 and 506 read with Section 34 of IPC and Sections 3(1)(xi) and 3(2)(v) of SC/ST Act and Section 6 of the POCSO Act. However, while imposing the sentence, the learned Sessions Judge has passed order of sentence only for the offence punishable under Section 6 of the POCSO Act and has not passed any order regarding the sentence as against the other offences. The same is perverse and not sustainable in the eye of law. He would submit that it is well settled principles of law that a separate sentence has to be passed as against each of the offences, but the same is not done in the present case and hence, it calls for intervention by this Court. 13. He would further submit that it is established that accused No.1 has committed heinous offence of rape and sexual assault on the prosecutrix, who belonged to SC/ST community and the punishment prescribed under the SC/ST Act is life imprisonment. Therefore, the Trial Court ought to have sentenced the accused No.1 with life imprisonment and failure to impose the same would result in miscarriage of justice. The prosecution has proved that accused No.1 has committed rape offences not only under IPC, but also under the SC/ST Act and the POCSO Act, which has special enactments and which override all other, as including Indian Penal Code and these offences prescribe punishment for not less than ten years. The Trial Court has not imposed the sentence under the SC/ST Act on the ground that accused No.1 had no intention to take revenge against the prosecutrix belonging to particular community and his act comes under the category of private affairs and it is not proved that accused No.1 having any such intention of taking revenge on the members of particular community. By giving the said reason, the Trial Court has not imposed the punishment of imprisonment for life and thereby imposed only sentence under Section 6 of the POCSO Act, stating that the other offences merged with Section 6 of the POCSO Act. The said reasoning assigned by the Trial Court is contrary to the facts and evidence placed on record and therefore it is not sustainable. 14. The said reasoning assigned by the Trial Court is contrary to the facts and evidence placed on record and therefore it is not sustainable. 14. He submits that the Trial Court ought to have imposed life imprisonment on accused No.1, as he has committed grave offences against the prosecutrix, who was a minor girl belonging to SC/ST community. This aspect of the matter has not been properly considered by the Trial Court and thereby erred in imposing lesser sentence and prays to allow the appeal. 15. The learned counsel appearing for the appellant/ accused No.1 further submitted that, even though after arresting accused No.1, a de novo trial was conducted against him and 22 witnesses were examined, out of which PWs. 1, 2, 4, 9, 11 to 21 and 22 are common witnesses, after finding that, except official witnesses, the other witnesses including the complainant and prosecutrix have turned hostile, the trial Court has relied upon the evidence of the witnesses who have supported the prosecution case in the earlier case i.e., Special S.C.24/2013 and based on their evidence, has convicted accused No.1 and it is prima facie illegal. He further submitted that, in fact in the statement under Section 313 Cr.P.C. the evidence of the witnesses who have supported the prosecution case in the earlier case i.e., Special S.C.24/2013 are not at all put to accused No.1 and as such, the trial court could not have relied upon the evidence of those witnesses and he further submitted that accused No.1 was taken by surprise by so relying upon the evidence of the earlier case and not referring to their evidence in the statement u/s. 313 Cr.P.C. and on this ground also he submits that the trial is vitiated and accused is entitled for acquittal. 16. Before going to the merits of the case, it is relevant to refer to the provisions of Section 273 of Criminal Procedure Code, which mandates that, the evidence is to be taken in the presence of the accused. It reads as follows: “273. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” 17. It reads as follows: “273. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” 17. From the provisions of Section 273 Cr.P.C., it is evident that, whatever evidence the court wants to rely upon, it is to be recorded in the presence of the accused, and only when his personal attendance is exempted, it can be recorded in the absence of the accused, but his counsel will be present and he will cross-examine the witness in the absence of the accused and while seeking exemption, the learned counsel representing the accused must specifically state that he will not dispute the identity of the accused. It means that in the absence of the accused, the witness may not be in a position to identify the accused and therefore, the counsel should give an undertaking that he is not going to dispute the identity of the accused. 18. Now coming to the subsequent proceedings conducted against accused No.1. As rightly pointed out by learned counsel representing accused No.1, in the earlier proceedings, all the three accused persons participated in the trial and in fact accused No.1 has also cross-examined PWs.1 to 21 and after the evidence of PW.21, he has absconded. After making unsuccessful attempts to trace him, the learned Special Judge has decided to split up the case as against accused No.1 and after directing filing of spilt up charge sheet against him, he has proceeded with the trial against accused No.2 and 3 and ultimately acquitted them. Immediately after the disposal of the earlier case resulting in acquittal of accused No.2 and 3, accused No.1 has surrendered before the Court and though his application for bail came to be rejected and the trial was conducted against him afresh by summoning all the witnesses, all the material witnesses except the official witnesses, including the complainant, prosecutrix, her friend who was accompanied her in the auto rickshaw to some distance have turned hostile to the prosecution. In spite of they being treated as hostile and cross-examined by the prosecution, nothing worthy is elicited to connect their evidence to the complicity of accused No.1. 19. In spite of they being treated as hostile and cross-examined by the prosecution, nothing worthy is elicited to connect their evidence to the complicity of accused No.1. 19. As rightly argued by the learned counsel representing accused No.1, in the 313 statement, the learned Special Judge has referred to the oral testimony of the witnesses, who are examined in the subsequent trial, who have all turned hostile. However, while addressing the argument, the learned Public Prosecutor has made a submission that, since PWs. 1 to 21 were examined in the presence of accused No.1 and he has actively participated in the trial and has also cross-examined them, their evidence could be relied upon and based on such submissions, the Special Judge has chosen to consider the evidence of those witnesses in the earlier trial and relying upon their evidence, the special Judge has come to the conclusion that the charges against accused No.1 are proved. 20. For this the learned Special Judge has relied upon the provisions of Section 33 of the Indian Evidence Act. Section 3 of the Indian Evidence Act, 1872, which deals with the interpretation clause defines the term ‘Evidence’ - ‘Evidence’ means and includes -, (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the court, Such documents are called documentary evidence. 21. Therefore, the statement of witnesses, which, in order to consider as evidence should be required to be made before the Court by the witnesses. Therefore, statements in the earlier proceedings cannot be relied upon as evidence of the witnesses except under Sections 32 and 33 of the Indian Evidence Act, which is an exception to the general rule that the evidence of the witnesses should be direct. 22. Section 33 of the Indian Evidence Act deals with relevancy of certain evidence for proving, in subsequent proceedings, the truth of fact therein stated. It reads as follows: “33. 22. Section 33 of the Indian Evidence Act deals with relevancy of certain evidence for proving, in subsequent proceedings, the truth of fact therein stated. It reads as follows: “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.— Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided— that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.” 23. The learned Special Judge has relied upon the provisions of Section 33 of the Indian Evidence Act to consider the evidence of those witnesses who have turned hostile in the present trial, but have supported the prosecution case in the earlier proceedings. As the provisions of the Section state, the evidence of such witnesses can be relied upon only when the witness is dead, or cannot be found or incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expenses, which, under the circumstances of the case, the court considers unreasonable. Even though the subsequent conditions i.e., the proceedings were between the same parties and the adverse party i.e., accused No.1 in this case, in the first proceedings had the right and opportunity to cross-examine and the question in issue was substantially one and the same in both the proceedings satisfy, the main condition that the witnesses who are examined in the earlier proceedings were not able to be examined in the subsequent proceedings for the reason that the witnesses are dead or they cannot be found or they have become incapable of giving evidence or the adverse party has kept them out of the way or the presence of the witnesses cannot be obtained without an amount of delay or expenses in securing their presence is not satisfied. Only if all the conditions specified in Section 33 are 20 satisfied, then the provisions of Section 33 could be applied and the evidence recorded in the earlier proceedings could be relied upon. However, in the present case, the very fact that all these witnesses were secured and they were able to examine before the Court, makes it clear that the provisions of section 33 could not be applied. 24. Therefore, the learned Special Judge was in error in relying upon the evidence of the witnesses who were examined in the earlier proceedings and who have supported the prosecution case, but have not supported the prosecution case in the present proceedings and they are treated as hostile. 25. The common witnesses who are examined for the prosecution in both cases are PWs. 1, 2, 4, 9, 11 to 21 and 22. Out of them, except PWs.16 to 21, the rest of the witnesses have not supported the prosecution case including the complainant, prosecutrix and her friend CW.17 Vaishnavi, who accompanied her in the autorickshaw to some distance when the prosecutrix was being kidnapped by accused Nos.1 and 2. However, this will not give authority to the learned Special Judge to refer to the evidence of these witnesses who have turned hostile in the present case, but have supported the prosecution in the earlier proceedings and rely upon such evidence, especially when a de novo trial was conducted. 26. Section 299 of Code of Criminal Procedure makes provision for recording the evidence in the absence of the accused. 26. Section 299 of Code of Criminal Procedure makes provision for recording the evidence in the absence of the accused. Provision is made to safeguard the evidence of the witnesses who may not be available due to efflux of time, for various reasons. There may be cases where the accused may abscond till the prosecution witnesses are either dead or incapable of giving evidence or cannot be found or their presence cannot be procured without an amount of delay, expense or inconvenience, which under the circumstances of the case would be unreasonable and after taking advantage of the absence of the witnesses, he may surrender and in that event, the prosecution may not be in a position to get a conviction against the accused. 27. Therefore, in the cases where the accused has absconded and after making all the efforts to secure his presence, if the prosecution is unable to keep the accused present before the Court, then it may request the Court to record the evidence of all those witnesses or at least all the material witnesses and keep their testimony intact to be used in future after the accused is secured. Even in such cases, subsequent to the securing the presence of the accused, once again the prosecution is required to secure the presence of the witnesses who are all available and are capable of giving evidence and the court is required to record their evidence in the presence of the accused after providing of an opportunity to cross-examine such witnesses. Only those witnesses who are dead or incapable of giving evidence or cannot be found or their presence cannot be procured without an amount of delay, expense or inconvenience, the evidence of such witnesses which is recorded under Section 299 Cr.P.C. could be relied upon. 28. In the present case, even though in the earlier proceedings, the evidence of PWs. 1 to 21 were recorded in the presence of the accused No.1 and he also had the opportunity to cross-examine them and in fact he has cross-examined them, still having regard to the fact that charge against him came to be split up and he was removed from the earlier proceedings and the trial was proceeded with against accused Nos. 2 and 3 only, the earlier evidence cannot be relied upon by the prosecution or the Court to convict accused No.1. 2 and 3 only, the earlier evidence cannot be relied upon by the prosecution or the Court to convict accused No.1. For this reason only, a fresh trial was conducted against accused No.1 and all those witnesses who were available were examined. However, unfortunately, this time, the witnesses who had supported the prosecution case in the earlier proceedings have turned hostile. The learned Public Prosecutor who has cross-examined them has not made any attempt to place their testimony i.e., certified copies of their testimony recorded in the earlier proceedings on record and refer and get them marked. In that way he could have brought on record their testimony in the earlier proceedings and thereafter cross-examined them. In that event, the evidence in the earlier proceedings could have been relied upon. In the absence of the said exercise, the learned special judge has erred in relying upon the evidence of those witnesses in the earlier proceedings, that too without putting the said evidence in the statement of accused No.1 under Section 313 Cr.P.C. Only from the stage of hearing the arguments, the Special Judge has thought about relying upon the evidence of those witnesses, who have supported the prosecution case in the earlier proceedings and based on their evidence, the learned special judge has proceeded to convict accused No.1. When the evidence of all those witnesses who have supported the prosecution case in the earlier proceedings is not put to the accused under Section 313 Cr.P.C., the same cannot be used against him. 29. In this regard, the learned counsel representing accused No.1 has relied upon the following decisions, wherein the Hon’ble Supreme Court has discussed the significance of recording the statement of accused under Section 313 Cr.P.C. and in case of failure, the Court cannot rely upon such evidence which is not specifically put to the accused. These decisions are aptly applicable to the case on hand. Since the trial Court has failed to refer to the accused in his statement under Section 313 Cr.P.C., the evidence of PWs. 1 to 21 recorded in the earlier trial, it was not open to the trial Court to rely upon it, to hold that the charges levelled against accused No.1 are proved. On this ground also the impugned judgment is not sustainable. i. (2006) 12 SCC 306 (Vikramjit Singh @ Vicky Vs. State of Punjab) ii. 1 to 21 recorded in the earlier trial, it was not open to the trial Court to rely upon it, to hold that the charges levelled against accused No.1 are proved. On this ground also the impugned judgment is not sustainable. i. (2006) 12 SCC 306 (Vikramjit Singh @ Vicky Vs. State of Punjab) ii. (1984) 4 SCC 116 (Sharad Birdhichant Sarda Vs. State of Maharashtra) iii. 1993 SCC (Crl.) 824 (Usha K. Pillai Vs. Raj K. Srinivas and Others) 30. Insofar as the merits of the case is concerned, admittedly, all the material witnesses have not supported the prosecution case including the prosecutrix, her father, who has filed the complaint as well as her friend, who accompanied her in the autorickshaw for some distance. Except the evidence of official witnesses, there is no material to connect the accused No.1 to the charges leveled against him. For this reason only, the learned trial Judge has ventured to rely upon the evidence of those witnesses in the earlier case. Therefore, based upon the evidence of these witnesses, who have turned hostile, we hold that the prosecution has failed to prove the allegation against accused No.1. He is the main accused and the allegations against accused No.2 and 3 are that, they helped accused No.1 in kidnapping the prosecutrix and that he raped her while wrongfully confining her. When in spite of having the material witnesses supporting the prosecution case, the trial against accused Nos. 2 and 3 has ended in acquittal, in the absence of evidence of material witnesses, we hold that accused No.1 is also entitled for the benefit of acquittal. 31. Thus from the above discussion, we are of the opinion that the impugned judgment and order of conviction of accused No.1 based on the evidence recorded in the earlier proceedings is not sustainable. Consequently, the Criminal Appeal No.100126/2018 filed by accused No.1 deserves to be allowed, while Criminal Appeal No.100231/2018 filed by State for enhancement of the punishment is liable to be dismissed and accordingly, we proceed to pass the following: ORDER i) Criminal Appeal No.100126/2018 filed by accused No.1 is allowed. The judgment and order of conviction dated 27.02.2018 in Spl.SCST No.10/2016 on the file of the II Additional District and Sessions and Special Judge at Dharwad is set aside. Accused No.1 is acquitted of all the charges. He is undergoing sentence. The judgment and order of conviction dated 27.02.2018 in Spl.SCST No.10/2016 on the file of the II Additional District and Sessions and Special Judge at Dharwad is set aside. Accused No.1 is acquitted of all the charges. He is undergoing sentence. He shall be released forthwith, if his presence is not required in any other case. ii) Office is directed to send intimation to the concerned jail authorities. iii) Consequently, Criminal Appeal No.100231/2018 filed by the State for enhancement of sentence is dismissed.