JUDGMENT : SANJAY K. AGRAWAL, J. 1. Shyambai, Kuntibai (acquitted co-accused persons) and present appellant Ashok Kenwat were apprehended for offences under Sections 302 & 201 read with Section 34 of the IPC alleging that on 23-6-2012 at Village Bandabri, Police Station Basna, they have in furtherance of their common intention, assaulted Lakhpati, S/o Ganeshram Kanwar (now deceased) by blunt side of axe and in order to screen themselves from the aforesaid offence, they left the dead body near the road and thereby committed the offence. Upon investigation, accused Shyambai & Kuntibai were charge-sheeted and the present appellant was also charge-sheeted but in abscondence. Consequently, Shyambai & Kuntibai were tried in Sessions Trial No. 91/2012 and acquitted by judgment dated 13-3-2013 passed by the 1st Additional Sessions Judge, Mahasamund in that trial in which two witnesses namely, Tilakram & Punitram were also examined by the then trial Court. Thereafter, the present appellant was apprehended on 18/19-6-2013 and supplementary charge-sheet was filed on 2-7-2013 and accordingly, charges were framed against the present appellant on 24-10-2013 and he was put to trial by the Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No. 8/2014 in which except one memorandum of the present appellant dated 18-6-2013 (Ex.P-3), all the witnesses from PW-1 to PW-11 were examined afresh and Ex.P-3 - memorandum of the present appellant, was brought on record. On 18-6-2013, the present appellant was arrested vide arrest memo Ex.P-22. However, rest of the documents of the earlier trial were relied upon by the trial Court in this sessions trial initiated against the present appellant. 2. Though the trial Court has recorded the statements of all the witnesses separately afresh in this trial, but by order dated 5-5- 2015, the trial Court held that counsel appearing for the accused was asked to cross-examine the witnesses in the present trial with reference to their previous statements made in S.T. No. 91/2012, however, he expressed that he does not wish to cross-examine them and thereafter, the trial Court relying upon the earlier statements of the two witnesses namely, Tilakram & Punitram examined in S.T. No. 91/2012 against the two coaccused persons, convicted the appellant herein for offences under Sections 302 & 201 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs. 2,000/- in default, additional rigorous imprisonment for one year and rigorous imprisonment for thee years & fine of Rs. 1,000/- in default, additional rigorous imprisonment for six months, respectively, by judgment dated 18-6-2015 passed by the Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No. 8/2014, against which this appeal has been preferred by the appellant herein under Section 374(2) of the Cr.P.C. 3. Mrs. Indira Tripathi, learned counsel appearing for the appellant, would submit that the trial Court is absolutely unjustified in taking into account the previous statements of Tilakram (PW-2) & Punitram (PW-5) in the present case, as they have not supported the case of the prosecution and one of the witnesses Punitram (PW-5) has stated that he has not seen the incident, as such, the appellant had no right and opportunity to cross-examine these two witnesses in the earlier trial, as he was not appearing in that trial, therefore, by virtue of the second proviso to Section 33 of the Indian Evidence Act, 1872, the previous statements of these two witnesses were inadmissible in evidence and the trial Court has grossly erred in applying Section 33 relying upon the statements of the witnesses namely, Tilakram (PW-2) & Punitram (PW-5), however, it is not the case where Section 299 of the Code of Criminal Procedure, 1973 was applied as neither the present accused was declared absconded nor it has been recorded that the witnesses were not found, as they have been examined conveniently in this sessions trial. Therefore, reliance placed by the trial Court upon the previous statements of Tilakram (PW-2) & Punitram (PW-5) deserves to be excluded and excluding their two versions, there is no other evidence on record to hold the appellant herein guilty of the offence, as nothing has been seized from the possession of the appellant and there is no other evidence against him. As such, the appeal deserves to be allowed and the appellant deserves to be acquitted. 4. Mr. As such, the appeal deserves to be allowed and the appellant deserves to be acquitted. 4. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the trial Court is absolutely justified in convicting the appellant on the basis of the evidence available on record and as such, the appeal deserves to be dismissed, as the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. 5. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 6. The first question whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-7, which has been proved by Dr. Jai Prakash Pradhan (PW-7) in which cause of death was stated to be cerebral haemorrhage. The finding recorded by the trial Court that death of deceased Lakhpati was homicidal in nature, is a correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 7. Now, the question is, whether the appellant is the author of the crime? 8. The prosecution apart from other witnesses has examined two witnesses Tilakram (PW-2) & Punitram (PW-5). Tilakram (PW-2) in his statement before the Court examined on 20-1-2014 in this trial has stated that he and Punitram (PW-5) had gone to Village Paterapali where Kunti & Ashok i.e. co-accused & the appellant herein, respectively, were assaulting Lakhpati by axe. The fact remains that axe has not been recovered from the possession of the present appellant and Kunti has already been acquitted by the trial Court by judgment dated 13-3-2013. Furthermore, this witness has also stated that at the time when they had visited the house of Kunti - co-accused, it was already dark night and on hearing hue and cry, they immediately absconded from that place. As such, the evidence of this witness is of no use to the prosecution. 9. Furthermore, this witness has also stated that at the time when they had visited the house of Kunti - co-accused, it was already dark night and on hearing hue and cry, they immediately absconded from that place. As such, the evidence of this witness is of no use to the prosecution. 9. Next witness is Punitram (PW-5) whose presence has also been proved by Tilakram (PW-2) in his statement, but in paragraph 5, Punitram (PW-5) has clearly stated that he and Tilakram (PW-2) had not seen the appellant assaulting Lakhpati and he has not informed the matter to anyone. He has stated in his examination-in-chief that the appellant has attempted to assault Lakhpati by his footwear, but the said footwear has not been recovered either from the possession of the appellant or from the place of incident. Apart from this, as such there is no evidence which the trial Court has also found that axe and other articles have not been seized due to delayed arrest of the appellant herein. 10. Finding difficulty with the present set of evidence in shape of direct evidence of Tilakram (PW-2) & Punitram (PW-5), the trial Court has relied upon the earlier statement of Tilakram (PW-2) recorded on 8-2-2013 and that of Punitram recorded on 7-3-2013 as PW-11 in S.T. No. 91/2012 in which they appear to have implicated the appellant herein holding that earlier, the counsel, who was representing the then accused persons Shyambai & Kuntibai were given opportunity to cross-examine Tilakram & Punitram, but they have not been cross-examined which the trial Court has also recorded in the order sheet dated 5-5-2015, upon which the trial Court according to the learned State counsel, has relied upon Section 33 of the Evidence Act. 11. Now, the question would be, whether Section 33 of the Evidence Act would be applicable in the facts of the present case to rely upon the previous statements of Tilakram (PW-2) & Punitram (PW-5)? 12. Section 33 of the Evidence Act states as under: “33. 11. Now, the question would be, whether Section 33 of the Evidence Act would be applicable in the facts of the present case to rely upon the previous statements of Tilakram (PW-2) & Punitram (PW-5)? 12. Section 33 of the Evidence Act states as under: “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 authorised 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. Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.” 13. Section 33 of the Evidence Act only makes relevant: (i) evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it. (ii) only for the purpose of proving in a subsequent judicial proceeding, or in a later stage of a civil judicial proceeding. 14. The aforesaid statement is subject to the proviso that, in the case of evidence given by a witness in a judicial proceeding: (i) the judicial proceeding must have been between the same parties, or their representatives-in-interest. (ii) the adverse party in the first proceeding must have had the right and opportunity to cross-examine. (iii) the questions in issue in the first proceeding must have substantially been the same as in the subsequent proceeding. 15. Explanation to Section 33 of the Evidence Act states that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. 16. (iii) the questions in issue in the first proceeding must have substantially been the same as in the subsequent proceeding. 15. Explanation to Section 33 of the Evidence Act states that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. 16. The scope of Section 33 of the Evidence Act more particularly in criminal cases, is, particularly where a man is being tried for a serious offence, and the evidence sought to be accepted is of signal importance, the court must insist on strict proof before holding that the conditions required for admitting former depositions have been satisfied. It is an elementary right of an accused person that a witness who is to testify against him should give evidence before the court trying him, and thus afford an opportunity to the court to see the witness and observe his demeanour and form a better opinion as to his reliability than is possible from reading his statement. It is only in exceptional circumstances, which should be strictly proved to exist, that a previous deposition of a witness should be transferred in a serious case like murder. The prosecution should not easily be allowed to escape detailed cross-examination of its witnesses at the trial by taking up the plea of their non-availability and thus deprive the accused of the valuable right of being tried on ‘viva voce’ means, “with living voice” or oral examination. [See Ranjit Singh Lal Singh and Others vs. The State, AIR 1954 PEPSU 69] 17. However, Section 299 of the Cr.P.C. is an exception to Section 33 of the Evidence Act. In the matter of Nirmal Singh vs. State of Haryana, (2000) 4 SCC 41 it has been held by their Lordships of the Supreme Court that the procedure contemplated under Section 299 of the Cr.P.C. is 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. It has further been held by their Lordships that Section 299(1) of the Cr.P.C. is an exception to Section 33 of the Evidence Act and therefore, all the conditions precedent for utilising such evidence viz. It has further been held by their Lordships that Section 299(1) of the Cr.P.C. is an exception to Section 33 of the Evidence Act and therefore, all the conditions precedent for utilising such evidence viz. (1) accused absconded and (2) “deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured.....” must be established by the prosecution before invoking Section 299(1) of the Cr.P.C. It has also been held by their Lordships in paragraph 4 of the report 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 first part of Section 299(1) of the Code of Criminal Procedure. 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 first part of Section 299(1) of the Code of Criminal Procedure. … 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......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......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 vs. Emperor, AIR 1946 PC 1 : 1945 All. The Privy Council, in fact in the case of Chainchal Singh vs. Emperor, AIR 1946 PC 1 : 1945 All. L.J. 550 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 misperception 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 Cr.P.C. 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....” 18. Their Lordships of the Supreme Court in the matter of V.M. Mathew vs. V.S. Sharma, (1995) 6 SCC 122 held that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Evidence Act only if the adverse party in the first proceeding had the right and opportunity to cross-examine the witness. In V.M. Mathew (supra) it has been observed thus: “8. In V.M. Mathew (supra) it has been observed thus: “8. The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceeding......the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding.” 19. The principle of law laid down in V.M. Mathew (supra) was followed with approval by their Lordships of the Supreme Court in the matter of Sashi Jena and Others vs. Khadal Swain and Another, (2004) 4 SCC 236 and it has been observed as under: “8. From a bare perusal of the aforesaid provision, it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible 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 in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are: (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine and (iii) that the questions in issue in both the proceedings were substantially the same and in the absence of any of the three prerequisites aforestated, Section 33 of the Act would not be attracted......” Further, their Lordships held that previous statement of a particular witness can be used to corroborate only his own evidence during trial and not evidence of other witnesses, and observed as under: “11. xxx xxx xxx A plain reading of the section would show that previous statement of a particular witness can be used to corroborate only his own evidence during trial and not evidence of other witnesses. In the case of Moti Singh vs. State of U.P. AIR 1964 SC 900 : (1964) 1 Cri. xxx xxx xxx A plain reading of the section would show that previous statement of a particular witness can be used to corroborate only his own evidence during trial and not evidence of other witnesses. In the case of Moti Singh vs. State of U.P. AIR 1964 SC 900 : (1964) 1 Cri. L.J. 727 similar question had arisen before a four-Judge Bench of this Court wherein though the evidence in court of two witnesses, namely, Ram Shankar and Jageshwar, during trial was disbelieved in relation to the manner of occurrence by the trial court as well as the High Court, their statements made before a Magistrate under Section 164 of the Code were relied upon to corroborate the other evidence adduced by the prosecution during trial. The aforesaid procedure was deprecated by this Court and it was laid down that such previous statement could be used to corroborate the evidence of that very witness examined during the course of trial and not evidence of other witnesses examined before the trial court. In that case, this Court set aside the conviction of the accused persons observing thus at AIR p. 901, Para 5: “Those statements could have been used only in either corroborating or contradicting the statements of these witnesses in court. If those witnesses were not to be believed, their previous statements could not be used as independent evidence in support of the other prosecution evidence.” 20. The Supreme Court in the matter of Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel and Others, (2018) 7 SCC 743 with reference to Section 33 of the Evidence Act observed as under: “47. In Sessions Case No. 58 of 1998 against A-16 and A-17, no evidence was recorded independently. On the other hand, the evidence recorded in Sessions Case No. 118 of 1992 was marked as evidence in Sessions Case No. 58 of 1998. The Evidence Act, 1872 does not permit such a mode of proof of any fact barring in exceptional situations contemplated in Section 33 of the Evidence Act.” 21. On the other hand, the evidence recorded in Sessions Case No. 118 of 1992 was marked as evidence in Sessions Case No. 58 of 1998. The Evidence Act, 1872 does not permit such a mode of proof of any fact barring in exceptional situations contemplated in Section 33 of the Evidence Act.” 21. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in Nirmal Singh (supra), V.M. Mathew (supra), Sashi Jena (supra) and Vinubhai Ranchhodbhai Patel (supra), it is quite vivid that in the instant case, the trial Court has applied and invoked Section 33 of the Evidence Act and relied upon the statements of Tilakram (PW-2) and Punitram (PW-5) recorded in the earlier trial (S.T. No. 91/2012) in which the present appellant was not standing trial, but ignored the fact that in earlier trial though the charge-sheet was filed in abscondence against the present appellant along with two co-accused persons, but the present appellant (Ashok Kenwat) was never put to trial in that sessions trial by the then trial Court and therefore the present appellant (Ashok Kenwat) had neither right nor opportunity of cross-examining both the witnesses - Tilakram (PW-2) & Punitram (PW-5) in that sessions trial and statements of these two witnesses were not recorded in the presence of the present appellant as mandated under Section 273 of the Cr.P.C. as such, as per the second proviso to Section 33 of the Evidence Act read with Explanation appended to it, the appellant had neither right nor opportunity to cross-examine Tilakram (PW-2) & Punitram (PW-5), whose statements have been recorded in the earlier sessions trial (S.T. No. 91/2012). Therefore, the requirement of the second proviso to Section 33 of the Evidence Act is not fully satisfied and as such, Section 33 is not attracted, at all and thus the trial Court could not have relied upon the statements of Tilakram (PW-2) & Punitram (PW-5) recorded in the earlier sessions trial (S.T. No. 91/2012). Therefore, the requirement of the second proviso to Section 33 of the Evidence Act is not fully satisfied and as such, Section 33 is not attracted, at all and thus the trial Court could not have relied upon the statements of Tilakram (PW-2) & Punitram (PW-5) recorded in the earlier sessions trial (S.T. No. 91/2012). We have also looked into their statements (PW-2 & PW-5) in present trial by which it is quite vivid that they have not supported the case of the prosecution and it is also not the case of exception of Section 33 of the Evidence Act which is enumerated in Section 299 of the Cr.P.C. by which the present appellant has been declared absconded and it is not the case that Tilakram (PW-2) & Punitram (PW-5) are not traceable or cannot be found as they have now been examined before the Court on two different dates i.e. 20-1-2014 & 13-3- 2014, respectively. Therefore, the trial Court is absolutely unjustified in relying upon the previous statements of these two witnesses recorded in S.T. No. 91/2012 in which the appellant herein was not standing in trial and as such, he had no right and opportunity to cross-examine those witnesses - Tilakram (PW-2) & Punitram (PW-5) in the earlier sessions trial. Thus, we are of the considered opinion that the trial Court has erred in relying upon the earlier statement of Tilakram (PW-2) & Punitram (PW- 5), which is in teeth of the second proviso to Section 33 of the Evidence Act and in convicting the appellant herein for offences under Sections 302 & 201 of the IPC. 22. There is one more reason for not upholding the conviction of the appellant herein relying upon the earlier statements of Tilakram (PW-2) & Punitram (PW-5), as by virtue of Section 273 of the Cr.P.C. 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. Furthermore, Section 278 of the Cr.P.C. provides that as the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. 23. Furthermore, Section 278 of the Cr.P.C. provides that as the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. 23. The Supreme Court in the matter of Atma Ram and Others vs. State of Rajasthan, (2019) 20 SCC 481 relying upon its earlier decision in the matter of Jayendra Vishnu Thakur vs. State of Maharashtra, (2009) 7 SCC 104 held that the right of the accused to watch the prosecution witness is a valuable right, and non-compliance of the same i.e. Section 273 of the Cr.P.C. would violate the said statutory right of the accused conferred under Section 273 and it vitiates the trial or such an infringement is a non-curable one. 24. We deprecate the practice of the trial Court in relying upon the previous statements of the witnesses who are not covered by Section 299 of the Cr.P.C. in the subsequent trial of co-accused. Neither the accused/appellant herein was declared absconded by the trial Court in a duly constituted proceeding nor it is the finding of the trial Court that the said witnesses were not found or dead as they were examined in the subsequent trial and the earlier statements of Tilakram (PW-2) & Punitram (PW-5) was not recorded in the presence of the appellant herein. Moreover, the trial Court having examined these two witnesses afresh in the subsequent trial, which was legally correct, could not have reverted back to the earlier statements of these two witnesses (PW-2 & PW-5) and could not have taken the statements of these two witnesses in the subsequent trial of the present appellant. The trial Curt must follow the procedure envisaged in the Cr.P.C. for trial of an accused for offence under Section 302 of the IPC and must take into consideration the legally admissible evidence on record for convicting the accused of a serious offence like Section 302 of the IPC. 25. The trial Curt must follow the procedure envisaged in the Cr.P.C. for trial of an accused for offence under Section 302 of the IPC and must take into consideration the legally admissible evidence on record for convicting the accused of a serious offence like Section 302 of the IPC. 25. Concludingly, it is held that the trial Court is absolutely unjustified in relying upon the previous statements of Tilakram (PW-2) & Punitram (PW-5) recorded in the sessions trial in which the appellant herein was not standing trial in breach of the 2nd proviso to Section 33 of the Evidence Act and it was not the case covered under Section 299 of the CrPC, which is exception to Section 33 of the Evidence Act. Furthermore, if the earlier statements of Tilakram (PW-2) & Punitram (PW-5) recorded in S.T. No. 91/2012 is taken, it will be violative of the appellant’s right conferred under Section 273 of the Cr.P.C. in view of the decision of the Supreme Court in Atma Ram (supra) and there is no other piece of evidence available on record to convict the appellant for offences under Sections 302 & 201 of the IPC. Accordingly, conviction of the appellant for offences under Sections 302 & 201 of the IPC is set aside and he is acquitted of the said charges given him the benefit of doubt. The appellant is in jail, he be released forthwith if not required in any other case. 26. In the result, the criminal appeal is allowed. 27. Let a certified copy of this judgment along with the original record be transmitted to the trial Court and jail authorities concerned for necessary information and action, if any.