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TMI Blog2021 (11) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... unt 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-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT VIKRAM NATH, J. Leave granted. 2. Present set of appeals assail the correctness of the judgment and order dated 19.10.2019 passed by the learned Single Judge of the Madras High Court, Madurai Bench in Criminal Appeal Nos. (MD) 58 and 59 of 2009, titled as The Assistant Commissioner, Customs Department, Tuticorin Vs. A. Dhanapal and four others as respondents in Crl.A.(MD) No. 58 of 2009 and K.M.A. Alexander as sole respondent in Crl.A.(MD) No. 59 of 2009. 3. Trial Court vide separate judgments and orders dated 23.05.2008 passed in C.C. No. 2 of 2003 and C.C. No.4 of 2004 under sections 132, 135(1)(a)(ii) read with 135A of the Customs Act 1962, had acquitted all the six accused. However, the High Court, vide impugned judgment, proceeded to record conviction of all the six accused and awarded sentence to undergo imprisonment of one year and fine of ₹ 50,000/- each and in default to undergo further six months rigorous imprisonment. It accordingly allowed both the appeals. 4. Anti-Smuggling Wing of the Customs department at Tuticorin, raided a warehouse situated at Door No. 111, Etayapuram Road, Tuticorin town on 10.03.1998 upon receipt of some speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g bill. Accordingly, it cannot be said that accused had an intention to evade the customs duty levied by the customs department by crossing the green gate and having escaped by wrong declaration contravening section 135 of the Customs Act. c) With regard to section 132 of Customs Act, there are no documents on record to show that the accused forged the documents and produced the same before anybody. d) It was not proved beyond reasonable doubt that the accused, with the intention of evading customs duty under section 135 (1)(a)(ii) of the Customs Act, had attempted to export carton containing prohibited sandalwood by means of forged documents thereby causing revenue loss to the customs department and contravention of section 135A of the Customs Act. e) The case is pending before the Forest Department officials and hence this court cannot pass any order permitting customs officials under Section 126 of Customs Act either for sale or for auction. Further, the sandalwood not been deposited in the Trial Court under section 95 CrPC, therefore, it was not in the custody of the Trial Court. 9. Aggrieved by the acquittal, the Customs Department preferred two appeals before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Joseph Alias Baby and Ors. (2014) 16 SCC 385; and (ii) Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel and Ors. (2018) 7 SCC 743 15. On the other hand, Mr. Vikramjit Banerjee, learned Additional Solicitor General for the Customs Department although could not dispute the submission that evidence of only one case has been considered while deciding both the appeals, however, submitted that as the evidence in both the cases were identical, no serious error could be alleged by the appellants. He further submitted that no prejudice has been caused to the appellants inasmuch as the evidence was same in both the trials. The appellants, having failed to show any prejudice on account of the above procedure adopted by the High Court, cannot claim any benefit on technicalities. Mr. Banerjee relied upon the following judgments in support of his submission: (i) Doat Ali and Ors. vs. Mahammad Sayadali and Anr. AIR 1928 Cal 230 and (ii) Pedda Venkatapathi and Ors. vs. State AIR 1956 AP 96 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 depositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative; 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable: 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 compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to represent himself, he has also the right to be informed thereabout. If an exception is to be curved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. Union of India, [ (2008) 2 SCC 417 ]. 25. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character. It is a well-known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. In Ananta Dixit v. The State reported in 1984 Crl. L.J. 1126, the Orissa High Court was considering a similar case under Section 30 of he Evidence Act. The appellant, in this case, was absconding. The question for consideration was whether a confession of one of the accused persons who was tried earlier, is admissible in evidence against the appellant. The Court held that the confession of the co-accused was not admissible in evidence against the present appellant. The Court held: 7. As recorded by the learned trial Judge, the accused Narendra Bahera, whose confessional statement had been relied upon, had been tried earlier and not jointly with the appellant and the co accused person Baina Das. A confession of the accused may be admissible and used not only against him but also against a co-accused person tried jointly with him for the same offence. Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom the confession is used. The confession of an accused tried previously would be rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a co-accused person, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Trial Court with respect to judgment in Sessions Case No. 58 of 1998. The said paragraphs are reproduced hereinafter: - 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. 48. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case NO.58 of 1998 is vitiated and is not in accordance with procedures established by law. It is a different matter that both the accused put to trial in Sessions Case No.58 of 1998 were acquitted by the Fast Track Court and the High Court did not interfere with the conclusions recorded by the Fast Track Court. 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 dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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) PW1 Selvaraj PW1 PW2 Kalaimani PW4 PW3 Shree Ram PW5 PW4 Sankaralingam PW2 PW5 Sundararajan PW3 PW6 Mylerum Perumal PW6 PW7 Balraj PW7 LIST OF DOCUMENTS CC No.2/2003 (Dhanapal and others) Documents Marked CC 4/2004 (Alexander) Ext. P1 Sanction Order Ext. P5 Ext. P2 Mahazar (Seizure-Godown) Ext. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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