A.T. Mydeen and Another v. The Assistant Commissioner

(ii) Pedda Venkatapathi and Ors. vs. State[5]

16. In rejoinder, learned counsel for appellants submitted that it is true that the witnesses examined in both the cases were same and the documents filed were also the same but nevertheless the witnesses have not been examined in the same sequence and nor the documents have been proved and exhibited in the same order. In any case, the High Court ought to have discussed the evidence of both the cases separately. Maybe by a common judgement, it could have been decided but not without independently dealing the evidence in both the trials.

17. We are, thus, proceeding to consider the preliminary issue.

18. The issue which thus falls for our consideration at this stage is whether the evidence recorded in a separate trial of coaccused can be read and considered by the appellate court in a criminal appeal arising out of another separate trial conducted against another accused, though for the commission of the same offence.

19. To consider and dissect this issue, we have to bear in mind that fair trial is the foundation of the criminal justice delivery system and there are certain guiding principles to ensure a fair trial against an accused. The statutory arrangement of our criminal justice delivery system encompasses few provisions in that regard under the Cr.P.C. and the Evidence Act, 1872.

20. Section 273 of Cr.P.C. provides that 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 attendance is dispensed with, in the presence of his pleader. It would be appropriate to reproduce the provision of section 273, which 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. Explanation— In this section "accused" "includes a person in relation to whom any proceeding under Chapter Viii has been commenced under this Code.

21. The exception of this provision finds place in section 205 of Cr.P.C. wherein personal attendance of accused is dispensed with and he is permitted to appear by his pleader and also in section 299 of Cr.P.C., which provides for recording of evidence in the absence of the accused under certain eventualities like absconding of accused or commission of an offence punishable with death or imprisonment for life by some person or persons unknown. However, this exception has few conditions to be strictly followed by the trial court and prosecution. Besides such an exception, the basic principle of recording evidence in presence of the accused is imperative. For ready reference, sections 205 and 299 Cr.P.C. are reproduced below: -

205. Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. xxx xxx xxx

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 of India.

22. Like-wise, section 278 of Cr.P.C. provides that as soon as the evidence of each witness in a criminal trial is taken under section 275 or 276, 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. Section 279 of the Cr.P.C. also provides for interpretation of evidence to the accused in open court, in case he is present and such evidence is given in a language not understood by him. For ready reference, sections 275, 276, 278 and 279 are reproduced hereunder: -

275. Record in warrant- cases. (1) In all warrant- cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. [Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.] (2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that, the evidence could not be taken down by himself for the reasons referred to in sub- section (1). (3) Such evidence shall ordinarily be taken down in the form of a narrative; but the Magistrate may, in his discretion take down, or cause to be taken down, any part of such evidence in the form of question and answer. (4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.

276. Record in trial before Court of Session. (1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) 1 Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.] (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. xxx xxx xxx

278. Procedure in regard to such evidence when completed. (1) 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. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.

279. Interpretation of evidence to accused or his pleader. (1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language. (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.

23. In the Evidence Act, 1872, section 33 provides relevancy of certain evidence for proving, the truth of facts stated therein, in any subsequent proceeding, according to which evidence given by a witness is treated to be relevant in a subsequent proceeding or at a later stage in the same proceeding under certain eventualities. It would be appropriate to reproduce section 33, which 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. 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.

24. In light of the statutory provisions discussed above, we now proceed to deal with position in law concerning the issue.

25. So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously. However, we are not concerned with cross-cases but are concerned with an eventuality of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding.

26. A three-Judge Bench of this court in the case of Karan Singh vs State of Madhya Pradesh[6] was confronted with the question, as to, whether, in view of the acquittal of the absconding co-accused in a separate trial from which there had been no appeal, it was open to the High Court to hold that the accused appellant was guilty of murder under section 302 read with section 34 IPC. After considering the position of law in that regard, A.K. Sarkar,J., speaking for the Bench, answered the question in the following terms: - “4. The only question argued in this appeal is whether in view of the acquittal of Ramhans by the learned Sessions Judge from which there had been no appeal, it was open to the High Court to hold that the appellant was guilty of murder under S. 302 read with S. 34 by finding on the evidence that Ramhans who shared a common intention with him, shot the deceased dead and attempted to murder Ramchandra. In the High Court reliance had been placed on behalf of the appellant on the judgment of this Court in Pritam Singh v. State of Punjab, (S) AIR 1956 SC 415. That case referred with approval to the judgment of the Judicial Committee in Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC 458 at p. 479, where it was observed that "the effect of a verdict of acquittal... is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication." As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the appellant's case had to be decided only on the evidence led in it. The evidence led in Ramhans' case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant's case. We may add here that Mr. Misra appearing for the appellant did not in this Court rely on Pritam Singh's case, (S) AIR 1956 SC 415. ………………. ………………………………… We are, therefore, of opinion that the judgment in Krishna Govind Patil’s case does not assist the appellant at all. On the other hand we think that the judgments earlier referred to on which the High Court relied, clearly justify the view that in spite of the acquittal of a person in one case it is open to the Court in another case to proceed on the basis--of course if the evidence warrants it that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence under S. 34 by virtue of having committed the offence along with the acquitted person. There is nothing in principle to prevent this being done. The principle of Sambasivam's case has no application here because the two cases we are concerned with are against two different persons though for the commission of the same offence. Furthermore, as we have already said, each case has to be decided on the evidence led in it and this irrespective of any view of the same act that might have been taken on different evidence led in another case.” (Emphasis added)

27. In the case of Nirmal Singh vs State of Haryana[7], this Court discussed the scope and requirements of section 33 of the Evidence Act, 1972 and section 299 of the Cr.P.C. and observed as follows: - “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 pre- conditions 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..”

28. Apart from above, we may usefully quote the opinion recorded by S.B. Sinha, J., in the case of Jayendra Vishnu Thakur vs State of Maharashtra[8], which reads as follows: -

29. In this regard, another instance of requirement of joint trial for admissibility of confession as provided under section 30 of Evidence Act, 1872 may be noted. According to which when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person making such confession. Section 30 of the Evidence Act is reproduced below:

30. In the case of Raja @ Ayyappan vs. State of Tamil Nadu[9], this court was dealing with a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987 and was confronted with the issue in respect of admissibility of confession of coaccused against another co-accused in a separate trial, when a joint trial could not be held on account of him absconding. Abdul Nazeer, J., concluded the issue in the following terms: -

31. Mr. S. Nagamuthu, relied upon the judgment of this Court in the case of State of Kerala and Others vs. Joseph Alias Baby and Others (supra). In the said case, the High Court had considered the evidence of one Sessions case which tried some of the accused in another Sessions case which was trying another set of co-accused arising out of same offence and acquitted all the accused. This Court, in paragraph 7 of the report, was of the view that the High Court was not right in considering the evidence of one case for another case and accordingly set aside the judgment of the High Court and remanded the matter to the High Court for fresh disposal. Relevant portion of Paragraph 7 is reproduced below: - “7……….The High Court ought to have considered the facts of each case and decided the appeals in accordance with law and in the absence of such consideration by the High Court, it will not be proper for us to decide on the culpability of each of the respondent-accused in these appeals. We therefore, set aside the impugned common judgment of the High Court and remand the matters back to the High Court for fresh disposal in accordance with law.”

32. The other judgment relied upon by Mr. Nagamuthu is Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel and Others, (supra). In the above case also, two accused namely, accused Nos.16 and 17 were tried separately as they were absconding. Their trial was registered as Case No.58 of 1998. The Trial Court had recorded the acquittal of both the accused. Interestingly, in Sessions Case No.58 of 1998, no evidence was recorded independently. The Trial Court had proceeded to record acquittal relying upon the evidence recorded in the earlier Sessions Case No.11 of 1992 which was trying separate set of co-accused. Recording the above fact, Chelameswar, J., observed in paragraphs 47 and 48, regarding impermissibility of the procedure adopted by the Trial Court with respect to judgment in Sessions Case No. 58 of

1998. The said paragraphs are reproduced hereinafter: -

33. Mr. Vikramjit Banerjee, learned Additional Solicitor General, as an officer of the Court, has referred to two judgments. According to him, in both the said cases, the evidence considered of another case was different and not part of the other case. He, therefore, submitted that in such a situation prejudice could be alleged by the suffering party that he had no opportunity, for that, such evidence was impermissible. The first judgment is in case of Doat Ali and Others vs. Mahammad Sayadali and Another, (supra). In this case also, there were two separate trials and the accused were convicted by the Trial Court in both the cases. The Additional Sessions Judge heard both the appeals together as one case and made up his mind that there were two contradictory stories and, on that basis, he allowed one appeal and dismissed the other. Rankin, C.J., in his judgment observed that the duty of the learned Judge was to keep each appeal absolutely separate and to deal with it on its own merits confining himself to the evidence given in that case and in that alone and accordingly remanded the matter to the Appellate Court for a fresh decision in both the cases.

34. The other judgment relied upon by Mr. Banerjee is Pedda Venkatapathi and Others vs. State, (supra). This case also had similar facts where the Appellate Court i.e. Sessions Judge had used the evidence recorded in one case against the other accused in other case and vice-versa. Relying upon Doat Ali and Ors. vs. Mahammad Sayadali and Another (supra), learned single Judge of the Andhra Pradesh High Court, set aside the judgment of the Sessions Court and directed for rehearing of the two appeals.

35. The submission of Mr. Banerjee is that in these two judgments as the evidences were different and it had been read and relied upon, the accused could allege prejudice but in the present case, as the evidence is the same in both the cases, no prejudice can be alleged. Whether prejudice or not, the fact remains that the High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials.

36. Further, it would be worthwhile to mention here that the prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited. The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case. The following chart will show the specific sequence numbers of the witnesses in both the trials as well as the exhibit numbers of the documents filed and proved in both the trials. The chart reads as follows: - “LIST OF WITNESSES CC No.2/2003 (Dhanapal and others) Name of Witness CC 4/2004 (Alexander) PW[1] Selvaraj PW[1] PW[2] Kalaimani PW[4] PW[3] Shree Ram PW[5] PW[4] Sankaralingam PW[2] PW[5] Sundararajan PW[3] PW[6] Mylerum Perumal PW[6] PW[7] Balraj PW[7] LIST OF DOCUMENTS CC No.2/2003 (Dhanapal and others) Documents Marked CC 4/2004 (Alexander) Ext. P[1] Sanction Order Ext. P[5] Ext. P[2] Mahazar (Seizure-Godown) Ext. P[2] Ext. P[3] Statement of Rahman Sait Ext. P[7] Ext. P[4] Statement of Janarthanan Ext. P[8] Ext. P[5] Statement of Ramesh Ext. P[9] Ext. P[6] Statement of Mydeen Ext. P11 Ext. P[7] Mahazar (Search – Godown) Ext. P12 Ext. P[8] Statement of Hari Gangaram Ext. P[1] Ext. P[9] Identity Card of Rajan Ext. P[2] Ext. P10 Mahazar (Seizure – Room) Ext. P[3] Ext. P11 Statement of Mahadevan Ext. P[4] Ext. P12 Adjudication Order Ext. P13 Ext. P13 Shipping Bill Ext. P10 Judicial Exhibits Marked Judicial Report Not marked ”

37. Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.

38. We cannot proceed on presumption and assume that everything was identical word to word. We are therefore, not inclined to accept the submission of Mr. Banerjee and in fact both the judgments relied upon by Mr. Banerjee having similar facts as the present case lay down the same proposition of law that evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view taken by the Calcutta High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view.

39. The provisions of law and the essence of case-laws, as discussed above, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused’s right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader’s presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.

40. The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.

41. It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court’s power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal.

42. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons.

43. There is one more angle to be considered i.e. whether to remand one case to the High Court for fresh decision i.e. the case in which the evidence was not considered and we may proceed to decide the other case here. We find, if we adopt such a procedure, then no fruitful purpose would be served and in fact, it would be an exercise resulting in complications and contradictions and even conflicts. If we proceed to hear one appeal wherein the evidence has been considered by the High Court and we agree with the same, then it would influence the High Court in deciding the other matter on remand. Further, even if we could hold back this appeal and await decision of the High Court in the matter which we remand, then also the High Court would not be able to take an independent decision and would be influenced by the judgment as we would be entertaining one appeal. Moreover, if we allow one of the appeals which we are holding back, then, nothing may remain for the High Court to decide.

44. There is another reason why we are inclined to send back both the matters to the High Court which is fundamental. We find that the learned single Judge of the High Court has apparently not adopted the correct procedure prescribed under law and therefore, the judgment of the High Court needs to be set aside. Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal. There cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim. Therefore, it would be in the fitness of things and in the interest of the parties that the matters are remanded to the High Court for a fresh decision in accordance with law and in light of the discussion and observations made above.

45. We make it clear that all the questions of law and fact would remain open before the High Court and the parties would be free to address the High Court on all issues both on law and facts.

46. Accordingly, the appeals are allowed. Judgment of the High Court passed on 19.10.2019 is set aside. The appeals shall be heard by the High Court afresh in the light of the observations made above. ………….…… ................... J. [Dr. D.Y. CHANDRACHUD] ……….……… ................... J. [VIKRAM NATH] ………… .......................... J. [B.V. NAGARATHNA] NEW DELHI