JUDGMENT 1. This criminal appeal has been filed on behalf of appellant being aggrieved by the judgment and sentence dated 27.8.1997 passed by learned 1st Additional Sessions Judge, Satna in Sessions Trial No.79/1997 whereby appellant has been convicted under the provisions of section 307/34 of IPC and sentenced to seven years Rigorous Imprisonment and fine of Rs.2,000/- in default of payment of fine, further rigorous imprisonment of six months. It has come on record that during trial, the appellant was in custody w.e.f. 17.2.1997. 2. Learned counsel for the appellant submits that as per version of FIR, there were four accused persons against whom allegations have been made. According to FIR, injured-informant Prakash Jatav S/o Garib Das Jatav had lodged report under section 307, 34 of IPC against Manoj Kanojiya, S/o Sohan Lal Kanojiya, Suresh Gupta S/o Ram Pratap Gupta, Sonu alias Vipin, S/o Bhajan Sindhi. 3. As per prosecution story, allegation is that on fateful day i.e. 9.2.1996 when complainant had approached transport of Ved Babu so to receive stitching of Tirpal, he met Suresh Gupta, Manoj Kanojiya, Anil and Sonu alias Vipin with whom he already had a dispute kept on following him with a view to cause harm. When he was returning back to his home at about 4.30 p.m., then at Sabji Mandi Road, he met with accused persons who had taken him along with them to a rented premises of Manoj where they offered liquor and all of them consumed alcohol. 4. Thereafter complainant left for his home, when accused started following him, as a result at Bajraha Tola, he entered in the shop of Shankarlal Soni and sat inside. He was followed by accused persons for some time and they also entered shop of Shankarlal Soni. Thereafter complainant left the shop and started walking towards his house and reached his house at about 5.30 p.m. Thereafter when he was again going from Bajraha Tola Road to Talkies, in front of house of Soni and Panditain, he was intercepted by accused who surrounded him and caught hold of him and started abusing him. Then Suresh Gupta had taken out a Katta hidden in his waist and fired a shot from said Katta causing injuries on right hand side of his stomach. He started running, then fell down at some distance. Then Suresh Gupta had taken out a Katta hidden in his waist and fired a shot from said Katta causing injuries on right hand side of his stomach. He started running, then fell down at some distance. This incident was seen by Anandram, Purushottamdas, Shyam Sundar, MPEB Wale Mishra, Gadru and other persons. 5. It is a matter of record that three different trials were conducted against three different set of accused persons. In S.T. No.117/1996 which was conducted against Manoj and Sonu, they were acquitted by the trial Court. 6. As present appellant and Suresh Gupta were absconding, their trial was conducted separately. On arrest of present appellant, Sessions Trial No.79/1997 was initiated as Suresh Gupta was still absconding and in this trial on the basis of evidence recorded in Sessions Trial No.117/1996, present appellant has been convicted. 7. Learned counsel for the appellant submits that subsequently in Sessions Trial No.134/1998 even Suresh Gupta who is main accused, as per version of FIR and who had fired a gun shot from Deshi Katta, has been acquitted by the trial Court for the charge under section 307/34 of IPC. 8. Learned counsel for the appellant further submits that evidence/statement of Sessions Trial No.117/1996 were not read against main accused-Suresh Gupta and they cannot read against present appellant in S.T. No.79/1997. 9. It is submitted that there is no provision in the Code of Criminal Procedure to transpose the statement/evidence of one sessions trial to another inasmuch as every trial is separate and separate set of evidence is required to be adduced. 10. It is further submitted that injured/complainant and his brother are not trustworthy and reliable witnesses because they have given false statement to Police under section 161 of Cr.P.C. and also gave false statements before Sessions Court twice i.e. Sessions Trial No.117/1996 and Sessions Trial No.134/1998. 10. It is further submitted that injured/complainant and his brother are not trustworthy and reliable witnesses because they have given false statement to Police under section 161 of Cr.P.C. and also gave false statements before Sessions Court twice i.e. Sessions Trial No.117/1996 and Sessions Trial No.134/1998. Reliance is placed on the judgment of Gujarat High Court in the case of Koli Raja Sarwan and another v. The State of Gujarat, AIR 1966 Gujarat 239, wherein referring to earlier provisions of the Code of Criminal Procedure, 1898, it is held that evidence recorded in one trial where trials were conducted for six different similar offences cannot be used in other and this irregularity in the mode of trial is not curable under section 537 of Cr.P.C. Similarly, reliance is placed on the judgment of Supreme Court in the case of Banwari and another v. State of Uttar Pradesh, AIR 1962 SC 1198 wherein placing reliance of sections 286, 353 and 537 of Cr.P.C., 1998, it is held that in different sessions trial recording evidence should be separate. 11. Learned Panel Lawyer supports the judgment of conviction and sentence passed by learned trial Court. 12. After hearing learned counsel for the parties and going through the record, it is evident that present appellant-Anil Kumar Kanojia was tried in Sessions Trial No.79/1997. It is not disputed that three different set of trials took place for the same offence against four accused persons namely Anil Kumar Kanojiya, Suresh Gupta, Manoj Kanojia and Sonu alias Vipin. 13. It is also an admitted position that Sessions Trial No.117/1996 was conducted against two accused Sonu and Manoj. In this trial, both of the accused persons were acquitted vide judgment dated 30th November, 1996. It is also not in dispute and is evident from the impugned judgment dated 27.8.1997 that vide order dated 22.7.1997 application moved by accused under section 299 of Cr.P.C. was considered and prosecution was directed that on the last day i.e. 23.7.1997 fixed for their evidence, they should give names of those witnesses which they considered important to prove case against the accused. 14. On 23.7.1997 Public Prosecutor expressed that in view of the fact that earlier evidence will be read against accused, he does not wish to summon any witness and closed prosecution evidence. Thereafter impugned judgment was pronounced. 15. 14. On 23.7.1997 Public Prosecutor expressed that in view of the fact that earlier evidence will be read against accused, he does not wish to summon any witness and closed prosecution evidence. Thereafter impugned judgment was pronounced. 15. A perusal of the application under section 299 of Cr.P.C., reveals that application was filed seeking permission to cross-examine prosecution witnesses giving concurrence to read their statement recorded in earlier Sessions Trial by way of examination-in-chief but no decision was taken on this request. 16. Provisions contained in section 299 of Cr.P.C., reveals that section 299 (1) of Cr.P.C. provides that “if it is proved that an accused person has absconded, and 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”. Thus, it is evident that there are three situations which are envisaged under section 299 of Cr.P.C. where evidence recorded in absence of an accused can be read with namely; if the witness is dead, if he is incapable of giving evidence; or if his attendance would cause unreasonable delay, expense or inconvenience. 17. In the case of State v. Swarnappan, 2002(2) Crimes 106 (Ker-DB), for application of section 299, there should be a definite finding to the effect that witnesses died at the time of the trial or became incapable of giving evidence. In the case of Nirmal Singh v. State of Haryana, [ (2000) 4 SCC 41 ], it is held that it is clear from the language of the section that the Court which records proceedings under it must first of all record an order that in its opinion it was proved that the accused has absconded and that there is no immediate prospects of his arrest. In the case of Bharogi v. State of M.P., 1988 (3) Crimes 775 (MP-DB), it is held that Court has to be satisfied that the persons whose evidence is sought to be used is either dead or incapable of giving evidence or cannot be found or they are such persons whose presence cannot be produced without an amount of delay, expense or inconvenience, which under the circumstances of the case, would be unreasonable. Cogent reasons of adequate material must be recorded by the trial Court in such a case in arriving of its satisfaction on the question of unreasonableness of delay, expense and inconvenience. 18. In the case of Bal Kishan v. State of Rajasthan, 1998 Cr.L.J. 2425, it is held that evidence recorded before appearance of the accused, when witness can be re-examined is not admissible even with consent of the accused, charges cannot be framed on such evidence. 19. Hon’ble Supreme Court in the case of Nirmal Singh (supra), specifically provides as under : “Section 299(1) Cr.P.C. 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 Cr.P.C. 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. For taking the benefits of section 299, 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. It is only then, the statements of witnesses recorded under section 299, Cr.P.C. before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused. It is only then, the statements of witnesses recorded under section 299, Cr.P.C. before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused. 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 arrest him, as provided under the first part of section 299(1). 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.” 20. In view of aforesaid discussion, it is evident that firstly the learned Sessions Court has not recorded any finding that he was satisfied that the persons who were examined in the trial of co-accused are either dead or untraceable or incapable of giving their evidence. In absence of any such finding recorded by learned Sessions Court, exception embodied in section 33 of the Indian Evidence Act, 1872, evidence of witnesses examined in earlier trial is inadmissible, therefore, conviction recorded on the basis of evidence recorded in the case of co-accused in earlier trial being not admissible cannot be used to convict present appellant with the aid of section 34 of IPC. 21. In view of aforesaid discussions, this appeal is allowed. The impugned judgment of the trial Court is hereby set aside. As appellant is on bail, therefore, his bail bonds are discharged.