2021 (11) TMI 73 - SC - Customs

Law for trial of the cross cases - Raid - 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? - HELD THAT - 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. A three-Judge Bench of this court in the case of KARAN SINGH VERSUS STATE OF MADHYA PRADESH 1964 (11) TMI 120 - SUPREME COURT 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. 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 provisions of law and the essence of case-laws, 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. 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. 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 - 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. 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 - Appeal allowed.

Summary

Issues Involved:
1. Legality of the High Court's common judgment based on evidence from only one trial.
2. Admissibility and relevance of evidence recorded in separate trials.
3. Right to a fair trial and the principles of criminal jurisprudence.
4. Compliance with procedural requirements under the Cr.P.C. and Evidence Act.

Issue-wise Detailed Analysis:

1. Legality of the High Court's Common Judgment:
The High Court passed a common judgment for two separate appeals arising from different trials but considered evidence from only one trial. This approach was challenged as it contravened established principles of criminal jurisprudence and statutory provisions. The Supreme Court emphasized that each case must be decided on its own merits, and evidence from one trial cannot be used to convict in another.

2. Admissibility and Relevance of Evidence in Separate Trials:
The Supreme Court highlighted that evidence recorded in one trial cannot be used in another separate trial unless specific statutory exceptions apply. Section 273 of the Cr.P.C. mandates that evidence must be taken in the presence of the accused or their pleader. Sections 205 and 299 of the Cr.P.C. provide exceptions under certain conditions, but these were not applicable in this case. The Court cited previous judgments reinforcing that each trial must be based on its own evidence.

3. Right to a Fair Trial:
The Supreme Court reiterated the importance of a fair trial, which includes the right of the accused to have evidence recorded in their presence and the opportunity to cross-examine witnesses. The Court noted that the distinctiveness of evidence is paramount, and any deviation from this principle undermines the fairness of the trial. The Court emphasized that the High Court's approach violated the accused's right to a fair trial.

4. Compliance with Procedural Requirements:
The judgment discussed various procedural requirements under the Cr.P.C. and the Evidence Act, including Sections 273, 275, 276, 278, and 279 of the Cr.P.C., and Section 33 of the Evidence Act. The Court found that the High Court failed to comply with these provisions by not independently considering the evidence from both trials. The Court also noted that the sequence and content of witness testimonies and documentary evidence differed between the two trials, further necessitating separate consideration.

Conclusion:
The Supreme Court set aside the High Court's common judgment and remanded the matters for fresh consideration. The Court emphasized that each appeal must be decided based on the evidence recorded in the respective trials, ensuring compliance with procedural requirements and the accused's right to a fair trial. The remand was necessary to avoid complications and contradictions and to uphold the principles of criminal justice.

Remand Directions:
The High Court was directed to hear the appeals afresh, considering the evidence from each trial separately. All questions of law and fact were left open for the High Court to address. The Supreme Court's decision underscored the importance of adhering to procedural norms and ensuring a fair trial for all accused.