A.T. MYDEEN AND ANOTHER versus THE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT

[2021] 10 S.C.R. 91

A.T. MYDEEN AND ANOTHER

THE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT

(Criminal Appeal No. 1306 of 2021)

OCTOBER 29,2021

[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND B. V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973: Allegation of clandestineexport – Two separate trials – Acquittal by two separate judgments– Appellate court considering evidence of only one case andconvicting the accused – Propriety of – Held: Evidence recorded ina criminal trial against any accused is confined to the culpabilityof that accused only and it does not have any bearing upon co-accused, who has been tried on the basis of evidence recorded in aseparate trial, though for the commission of the same offence – Inthe instant case, High Court committed an error of law in dealingwith the evidence of one trial for deciding both the appeals arisingout of two separate trials – Prosecution in both the trials producedseven witnesses and filed 13 documents which were proved andexhibited – The witnesses in the second case were not examined inthe same sequence as the first case and consequently, the 13documents filed were also not given the same exhibit numbers in thesecond case as in the first case – Merely because the seven witnessesproduced by the prosecution were the same in both the cases wouldnot mean that the evidence was identical and similar because in theoral testimony, not only the examination-in-chief but also the cross-examination is equally important and relevant, if not more – Even ifthe examination-in-chief of all the seven witnesses in both the cases,although examined in different sequence, was the same, there couldhave been an element of some benefit accruing to the accused ineach case depending upon the cross-examination which could havebeen conducted may be by the same counsel or different counsel– The role of each accused cannot be said to be the same – Thesame witnesses could have deposed differently in different trialsagainst different accused differently depending upon the complicityor/and culpability of such accused – All these aspects were to beexamined and scrutinised by the Appellate Court while dealing with

CDEF

Aboth the appeals separately and the evidence recorded in therespective trials giving rise to the appeals – High Court ought tohave distinctly considered and dealt with the evidence of both thetrials and then decide the culpability of the accused persons – Matterremitted to High Court for consideration afresh – Customs Act, 1962– Administration of criminal justice – Fair trial.B

Code of Criminal Procedure, 1973: ss.367, 391 – In criminalappeal against conviction, the appellate court examines the evidencerecorded by the trial court and takes call upon the issue of guiltand innocence of the accused – The scope of the appellate court’spower does not go beyond the evidence available before it in theCform of trial court record of particular case, unless s.367 ors.391 comes into play in given case, which are meant for furtherinquiry or additional evidence while dealing with any criminalappeal.

Allowing the appeals and remitting the matter to HighDCourt, the Court

HELD: 1.1 Fair trial is the foundation of the criminal justicedelivery system. The statutory arrangement of criminal justicedelivery system encompasses few provisions in that regard underthe Cr.P.C. and the Evidence Act, 1872.Section 273 of Cr.P.C.Eprovides that except as otherwise expressly provided, all evidencetaken in the course of the trial or other proceeding shall be takenin the presence of the accused, or, when his attendance isdispensed with, in the presence of his pleader. The exception ofthis provision finds place in section 205 of Cr.P.C. whereinFpersonal attendance of accused is dispensed with and he ispermitted to appear by his pleader and also in section 299 ofCr.P.C., which provides for recording of evidence in the absenceof the accused under certain eventualities like absconding ofaccused or commission of an offence punishable with death orimprisonment for life by some person or persons unknown.GHowever, this exception has few conditions to be strictly followedby the trial court and prosecution. Besides such an exception,the basic principle of recording evidence in presence of theaccused is imperative. [Paras 19, 20, 21][100-A-C, E-G]

1.2 In the Evidence Act, 1872, section 33 provides relevancyof certain evidence for proving, the truth of facts stated therein,in any subsequent proceeding, according to which evidence givenby witness is treated to be relevant in subsequent proceedingor at later stage in the same proceeding under certaineventualities. [Para 23][103-F]

Karan Singh v. State of Madhya Pradesh AIR 1965 SC1037 : [1965] 2 SCR 1; Nirmal Singh v. State ofHaryana (2000) 4 SCC 41:[2000] 2 SCR 807;Jayendra Vishnu Thakur v. State of Maharashtra (2009)7 SCC 104:[2009] 8 SCR 591; Raja @ Ayyappan v.State of Tamil Nadu (2020) 5 SCC 118 – relied on.

Doat Ali and Ors. v. Mahammad Sayadali and Anr. AIR1928 Cal 230; Pedda Venkatapathi and Ors. v. StateAIR 1956 AP 96 – referred to.

2. The High Court committed an error of law in dealingwith the evidence of one trial for deciding both the appeals arisingout of two separate trials. The prosecution in both the trialsproduced seven witnesses and filed 13 documents which wereproved and exhibited. The witnesses in the second case werenot examined in the same sequence as the first case andconsequently, the 13 documents filed were also not given thesame exhibit numbers in the second case as in the first case.Merely because the seven witnesses produced by the prosecutionwere the same in both the cases would not mean that the evidencewas identical and similar because in the oral testimony, not onlythe examination-in-chief but also the cross-examination is equallyimportant and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, althoughexamined in different sequence, was the same, there could havebeen an element of some benefit accruing to the accused in eachcase depending upon the cross-examination which could havebeen conducted maybe by the same counsel or different counsel.The role of each accused cannot be said to be the same. Thesame witnesses could have deposed differently in different trialsagainst different accused differently depending upon thecomplicity or/and culpability of such accused. All these aspects

Awere to be examined and scrutinised by the Appellate Court whiledealing with both the appeals separately and the evidencerecorded in the respective trials giving rise to the appeals.[Paras 35, 36, 37][111-F-H; 112-G-H; 113-A-C]

3.1 In the matter of criminal trial against any accused, theBdistinctiveness of evidence is paramount in light of accused’sright to fair trial, which encompasses two important facets alongwith others i.e., firstly, the recording of evidence in the presenceof accused or his pleader and secondly, the right of accused tocross-examine the witnesses. These facts are, of course, subjectto exceptions provided under law. In other words, the culpabilityCof any accused cannot be decided on the basis of any evidence,which was not recorded in his presence or his pleader’s presenceand for which he did not get an opportunity of cross-examination,unless the case falls under exceptions of law. [Para 39][113-E-G]

3.2 It is also an undisputed proposition of law that in aDcriminal appeal against conviction, the appellate court examinesthe evidence recorded by the trial court and takes call upon theissue of guilt and innocence of the accused. Hence, the scope ofthe appellate court’s power does not go beyond the evidenceavailable before it in the form of trial court record of particularEcase, unless section 367 or section 391 of Cr.P.C. comes intoplay in given case, which are meant for further inquiry oradditional evidence while dealing with any criminal appeal.[Para 41][114-A-B]

3.3 In the present controversy, two different criminalFappeals were being heard and decided against two differentjudgments based upon evidence recorded in separate trials,though for the commission of the same offence. As such, the HighCourt fell into an error while passing common judgement, basedon evidence recorded in only one trial, against two sets of accusedpersons having been subjected to separate trials. The High CourtGought to have distinctly considered and dealt with the evidenceof both the trials and then to decide the culpability of the accusedpersons. [Para 42][114-C-D]

4. Once common judgment is set aside for one appeal, itcannot be upheld for another appeal. There cannot be severanceof the judgment particularly when it arises in criminal case,where the rights of the accused are as important as the rights ofa victim. Therefore, it would be in the fitness of things and in theinterest of the parties that the matters are remanded to theHigh Court for fresh decision in accordance with law.[Para 44][114-H; 115-A-B]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1306 of 2021.

From the Judgment and Order dated 19.10.2019 of the High Courtof Madras at Madurai Bench in Crl. A. (MD) No.58 of 2009.

With

Criminal Appeal Nos.1307-1308 And 1309-1310 of 2021.

R. Basant, S. Nagamuthu, Sr. Advs., K. K. Mani, Ms. T. Archana,M. P. Parthiban, A. S. Vairawan, R. Sudhakaran, Mrs. Shalini Mishra,T. Hari Hara Sudhan, Vikash G. R., Advs. for the Appellants.

Vikramjit Banerjee, ASG, Mukesh Kumar Maroria, Mohd. Akhil,Prashant Bhagwati, Nachiketa Joshi, Sughosh Subramaniyam, B. KrishnaPrasad, Advs. for the Respondent.

The Judgment of the Court was delivered by

VIKRAM NATH, J.

1. Leave granted.

2. Present set of appeals assail the correctness of the judgmentand order dated 19.10.2019 passed by the learned Single Judge of theMadras High Court, Madurai Bench in Criminal Appeal Nos. (MD) 58and 59 of 2009, titled as The Assistant Commissioner, CustomsDepartment, Tuticorin Vs. A. Dhanapal and four others as respondents

Ain Crl.A.(MD) No. 58 of 2009 and K.M.A. Alexander as sole respondentin Crl.A.(MD) No. 59 of 2009.

3. Trial Court vide separate judgments and orders dated 23.05.2008passed 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 allBthe six accused. However, the High Court, vide impugned judgment,proceeded to record conviction of all the six accused and awardedsentence to undergo imprisonment of one year and fine of Rs. 50,000/-each and in default to undergo further six months rigorous imprisonment.It accordingly allowed both the appeals.

C4. Anti-Smuggling Wing of the Customs department at Tuticorin,raided warehouse situated at Door No. 111, Etayapuram Road, Tuticorintown on 10.03.1998 upon receipt of some specific information. In theraid, large quantities of cardboard boxes were recovered. Three personswere also present there, who identified themselves as Rahman Sait aliasNathan, Selvaraj and Sullan. Upon questioning, Nathan admitted thatD419 cardboard boxes contained sandalwood billet/sticks and 57 cardboardboxes contained Mangalore tiles. All the above cardboard boxes werekept for export from Tuticorin to Singapore clandestinely and to bedelivered to one RN Contractors Enterprise Company, Singapore.

5. All the above 476 cartons, plastic strips, packing materials, looseEMangalore tiles, marking stencil plates were seized before two witnessesand separate memos (Mahazars) were prepared. On searching Mr.Nathan, one key chain of Room No. 212, Chitra Lodge was also seized.Seized material was transported to Customs Office. Sandalwood wasvalued at Rs. 96,52,800/- and Mangalore tiles were valued at Rs. 10,000/F-. The total value thus being Rs. 96,62,800/-.

6. After completing the inquiry, the Assistant Commissioner ofCustoms filed criminal complaint against five accused namely A.Dhanapal, A.T. Mydeen, Janarthanan, N. Ramesh and Rahman Sait foroffence punishable under sections 132, 132(1)(a)(ii) and 135A of theGCustoms Act. It was registered as Calendar Case No. 2 of 2003 in theCourt of Additional Chief Judicial Magistrate, Madurai. The prosecutionexamined seven witnesses and filed 13 documents which were dulyproved by the witnesses and marked as exhibits.

7. The sixth accused K.M.A. Alexander was absconding and waslater on arrested, as such separate complaint was filed by AssistantH

Commissioner against him which was registered as Calendar Case No.4 of 2004 in the Court of Additional Chief Judicial Magistrate, Madurai.In this case also the prosecution examined seven witnesses and filed 13documents as exhibits duly proved.

8. The Trial Court on 23.05.2008 delivered two separate judgmentsin both the cases i.e. C.C. Nos. 2 of 2003 and 4 of 2004 and recordedacquittal of all the accused on the following findings:

a)No evidence was shown to prove that the accused areCustoms House Agents and they packed and kept the boxesand had an intention to attempt to export Sandal Wood,illegally to Singapore.C

b)It was proved that the sandalwood had arrived at Tuticorintwo months before and arrangements were made to cancelthe shipping bill. Accordingly, it cannot be said that accusedhad an intention to evade the customs duty levied by thecustoms department by crossing the green gate and havingescaped by wrong declaration contravening section 135 ofthe Customs Act.

c)With regard to section 132 of Customs Act, there are nodocuments on record to show that the accused forged thedocuments 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 section135 (1)(a)(ii) of the Customs Act, had attempted to exportcarton containing prohibited sandalwood by means of forgeddocuments thereby causing revenue loss to the customsdepartment and contravention of section 135A of theCustoms Act.

e)The case is pending before the Forest Department officialsand hence this court cannot pass any order permittingcustoms officials under Section 126 of Customs Act eitherfor sale or for auction. Further, the sandalwood not beendeposited 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 preferredtwo appeals before the High Court. The learned Single Judge, Madurai

ABench of the Madras High Court, by judgment dated 19.10.2019 recordedconviction of all six accused under section 135(1)(a)(ii) read with 135Aof the Customs Act. However, it confirmed the acquittal under Section132 of the Customs Act. Later on, by order dated 23.11.2019, it awardedsentence as already mentioned in paragraph No.3. The judgment of theHigh Court is common judgment in both the appeals.B

10. Aggrieved by the above conviction and sentence, the sixaccused have separately approached this Court and have filed threeseparate appeals (@ special leave petitions). Appellant No.1, Janarthananin appeals @ SLP (Crl.) Nos 833-34/2020 is reported to have died on28.09.2021, as such the appeal stands dismissed as abated against him.C

11. We have heard Mr. R. Basant and Mr. S. Nagamuthu, learnedsenior counsel and Mr. K.K. Mani, learned counsel for the appellantsand Mr. Vikramjit Banerjee, learned Additional Solicitor General for therespondent.D12. Mr. S. Nagamuthu, learned senior counsel for the appellantsraised purely legal argument. He submitted that if this point, withoutgoing into the merits, appeals to this Court it would entail an order ofremand to the High Court. He also reserved his other arguments onmerit in case he fails on the preliminary legal ground.

E13. The submission is that the High Court proceeded to pass onecommon judgment in both the appeals arising out of the two separatetrials and two separate judgments but considered the evidence of onlyone case and that too without disclosing of which case so as to recordconviction of all the six accused in both the appeals. The High Court,thus, committed serious error of law in recording conviction at least inFone of the cases without considering the evidence recorded in the trialof that case. According to Mr. Nagamuthu, this would be not only contraryto settled principles of criminal jurisprudence, as also criminal justicedelivery system but also contrary to the statutory provisions contained inthe Code of Criminal Procedure[1], the Indian Evidence Act and settledGlaw on the point. He has drawn our attention to various provisions of theCr.P.C.

14. Mr. Nagamuthu, learned senior counsel, in support of the aboveproposition, has placed reliance on the following judgments:

H1 Cr.P.C. for short

(i) State of Kerala and Ors. vs. Joseph Alias Baby and

Ors.[2]; and

(ii) Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai

Patel and Ors.[3]

15. On the other hand, Mr. Vikramjit Banerjee, learned AdditionalSolicitor General for the Customs Department although could not disputethe submission that evidence of only one case has been considered whiledeciding both the appeals, however, submitted that as the evidence inboth the cases were identical, no serious error could be alleged by theappellants. He further submitted that no prejudice has been caused tothe appellants inasmuch as the evidence was same in both the trials.The appellants, having failed to show any prejudice on account of theabove procedure adopted by the High Court, cannot claim any benefiton technicalities. Mr. Banerjee relied upon the following judgments insupport of his submission:

(i)Doat Ali and Ors. vs. Mahammad Sayadali and Anr.[4] and

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

16. In rejoinder, learned counsel for appellants submitted that it istrue that the witnesses examined in both the cases were same and thedocuments filed were also the same but nevertheless the witnesses havenot been examined in the same sequence and nor the documents havebeen proved and exhibited in the same order. In any case, the HighCourt ought to have discussed the evidence of both the cases separately.Maybe by common judgement, it could have been decided but notwithout 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 iswhether the evidence recorded in separate trial of co-accused can beread and considered by the appellate court in criminal appeal arisingout of another separate trial conducted against another accused, thoughfor the commission of the same offence.

2 (2014) 16 SCC 385

3 (2018) 7 SCC 743

4 AIR 1928 Cal 230

5 AIR 1956 AP 96

A19. To consider and dissect this issue, we have to bear in mindthat fair trial is the foundation of the criminal justice delivery system andthere are certain guiding principles to ensure fair trial against an accused.The statutory arrangement of our criminal justice delivery systemencompasses few provisions in that regard under the Cr.P.C. and theEvidence Act, 1872.B

20. Section 273 of Cr.P.C. provides that except as otherwiseexpressly provided, all evidence taken in the course of the trial or otherproceeding shall be taken in the presence of the accused, or, when hisattendance is dispensed with, in the presence of his pleader. It would beappropriate to reproduce the provision of section 273, which reads asCfollows: -

273. Evidence to be taken in presence of accused. ––

Except as otherwise expressly provided, all evidence taken inthe course of the trial or other proceeding shall be taken inDthe presence of the accused or, when his personal attendanceis dispensed with, in the presence of his pleader.

Explanation— In this section “accused””includes personin relation to whom any proceeding under Chapter VIII hasbeen commenced under this Code.

E21. The exception of this provision finds place in section 205 ofCr.P.C. wherein personal attendance of accused is dispensed with andhe 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 accusedunder certain eventualities like absconding of accused or commission ofFan offence punishable with death or imprisonment for life by some personor persons unknown. However, this exception has few conditions to bestrictly followed by the trial court and prosecution. Besides such anexception, the basic principle of recording evidence in presence of theaccused is imperative. For ready reference, sections 205 and 299 Cr.P.C.are reproduced below: -G205. Magistrate may dispense with personal attendance ofaccused.

(1) Whenever Magistrate issues summons, he may, if he seesreason so to do, dispense with the personal attendance of theaccused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in hisdiscretion, at any stage of the proceedings, direct the personalattendance of the accused, and, if necessary, enforce suchattendance 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 thatthere is no immediate prospect of arresting him, the Court competentto try [, or commit for trial] such person for the offence complainedof may, in his absence, examine the witnesses (if any) producedon behalf of the prosecution, and record their depositions and anysuch deposition may, on the arrest of such person, be given inevidence against him on the inquiry into, or trial for, the offencewith which he is charged, if the deponent is dead or incapable ofgiving evidence or cannot be found or his presence cannot beprocured without an amount of- delay, expense or inconveniencewhich, under the circumstances of the case, would beunreasonable.

(2) If it appears that an offence punishable with death orimprisonment for life has been committed by some person orpersons unknown, the High Court or the Sessions Judge may directthat any Magistrate of the first class shall hold an inquiry andexamine any witnesses who can give evidence concerning theoffence and any depositions so taken may be given in evidenceagainst any person who is subsequently accused of the offence, ifthe deponent is dead or incapable of giving evidence or beyondthe limits of India.

22. Like-wise, section 278 of Cr.P.C. provides that as soon as theevidence of each witness in criminal trial is taken under section 275 or276, it shall be read over to him in the presence of the accused, if inattendance, or of his pleader, if he appears by pleader, and shall, ifnecessary, be corrected. Section 279 of the Cr.P.C. also provides forinterpretation of evidence to the accused in open court, in case he ispresent and such evidence is given in language not understood by him.For ready reference, sections 275, 276, 278 and 279 are reproducedhereunder: -

DEF

A275. Record in warrant- cases.

(1) In all warrant- cases tried before Magistrate, the evidenceof each witness shall, as his examination proceeds, be taken downin writing either by the Magistrate himself or by his dictation inopen Court or, where he is unable to do so owing to physical orBother incapacity, under his direction and superintendence, by anofficer of the Court appointed by him in this behalf.

[Provided that evidence of witness under this sub-section mayalso be recorded by audio-video electronic means in the presenceof the advocate of the person accused of the offence.]

C(2) Where the Magistrate causes the evidence to be taken down,he shall record certificate that, the evidence could not be takendown by himself for the reasons referred to in sub- section (1).

(3) Such evidence shall ordinarily be taken down in the form of anarrative; but the Magistrate may, in his discretion take down, orDcause to be taken down, any part of such evidence in the form ofquestion and answer.

(4) The evidence so taken down shall be signed by the Magistrateand shall form part of the record.

276. Record in trial before Court of Session.E(1)In all trials before Court of Session, the evidence of eachwitness shall, as his examination proceeds, be taken down in writingeither by the presiding Judge himself or by his dictation in openCourt or, under his direction and superintendence, by an officer ofthe Court appointed by him in this behalf.

F(2) 1 Such evidence shall ordinarily be taken down in the form ofa narrative, but the presiding Judge may, in his discretion, takedown, or cause to be taken down, any part of such evidence inthe form of question and answer.]

(3)The evidence so taken down shall be signed by the presidingGJudge and shall form part of the record.

xxx xxx xxx

278. Procedure in regard to such evidence whencompleted.

(1) As the evidence of each witness taken under section 275 orHsection 276 is completed, it shall be read over to him in the

presence of the accused, if in attendance, or of his pleader, if heappears by pleader, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidencewhen the same is read over to him, the Magistrate or presidingJudge may, instead of correcting the evidence, make amemorandum thereon of the objection made to it by the witnessand shall add such remarks as he thinks necessary.

(3) If the record of the evidence is in language different fromthat in which it has been given and the witness does not understandthat language, the record shall be interpreted to him in the languagein which it was given, or in language which he understands.

279. Interpretation of evidence to accused or his pleader.

(1) Whenever any evidence is given in language not understoodby the accused, and he is present in Court in person, it shall beinterpreted to him in open Court in language understood by him.

(2) If he appears by pleader and the evidence is given in languageother than the language of the Court, and not understood by thepleader, it shall be interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, itshall be in the discretion of the Court to interpret as much thereofas appears necessary.

23. In the Evidence Act, 1872, section 33 provides relevancy ofcertain evidence for proving, the truth of facts stated therein, in anysubsequent proceeding, according to which evidence given by witnessis treated to be relevant in subsequent proceeding or at later stage inthe same proceeding under certain eventualities. It would be appropriateto reproduce section 33, which reads as follows: -

33. Relevancy of certain evidence for proving, in subsequentproceeding, the truth of facts therein stated. ––

Evidence given by witness in judicial proceeding, or beforeany person authorized by law to take it, is relevant for thepurpose of proving, in subsequent judicial proceeding, orin later stage of the same judicial proceeding, the truth ofthe facts which it states, when the witness is dead or cannotbe found, or is incapable of giving evidence, or is kept out ofthe way by the adverse party, or if his presence cannot be

Aobtained without an amount of delay or expense which, underthe circumstances of the case, the Court considersunreasonable:

Provided –– that the proceeding was between the same partiesor their representatives in interest; that the adverse party inBthe first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially thesame in the first as in the second proceeding.

Explanation. –– criminal trial or inquiry shall be deemedto be proceeding between the prosecutor and the accusedCwithin the meaning of this section.24. In light of the statutory provisions discussed above, we nowproceed to deal with position in law concerning the issue.

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

26. three-Judge Bench of this court in the case of Karan Singhvs State of Madhya Pradesh[6 ]was confronted with the question, as to,Fwhether, in view of the acquittal of the absconding co-accused in aseparate trial from which there had been no appeal, it was open to theHigh Court to hold that the accused appellant was guilty of murder undersection 302 read with section 34IPC. After considering the position oflaw in that regard, A.K. Sarkar, J., speaking for the Bench, answeredthe question in the following terms: -G“4. The only question argued in this appeal is whether inview of the acquittal of Ramhans by the learned SessionsJudge from which there had been no appeal, it was open tothe High Court to hold that the appellant was guilty of murder

H6 AIR 1965 SC 1037

under S. 302 read with S. 34 by finding on the evidence thatRamhans who shared common intention with him, shot thedeceased dead and attempted to murder Ramchandra. In theHigh Court reliance had been placed on behalf of theappellant on the judgment of this Court in Pritam Singh v.State of Punjab, (S) AIR 1956 SC 415 . That case referredwith approval to the judgment of the Judicial Committee inSambasivan v. Public Prosecutor, Federation of Malaya, 1950AC 458 at p. 479, where it was observed that

“the effect of verdict of acquittal... is not completely statedby saying that the person acquitted cannot be tried again forthe same offence. To that it must be added that the verdict isbinding and conclusive in all subsequent proceedingsbetween the parties to the adjudication.”

As the High Court pointed out, that observation has noapplication to the present case as here the acquittal of Ramhanswas not in any proceeding to which the appellant was party.Clearly, the decision in each case has to turn on the evidenceled in it; Ramhans’s case depended on the evidence led therewhile the appellant’s case had to be decided only on theevidence led in it. The evidence led in Ramhans’ case and thedecision there arrived at on that evidence would be whollyirrelevant in considering the merits of the appellant’s case.We may add here that Mr. Misra appearing for the appellantdid not in this Court rely on Pritam Singh’s case, (S) AIR 1956SC 415 .

……………….

…………………………………

We are, therefore, of opinion that the judgment in KrishnaGovind Patil’s case does not assist the appellant at all. Onthe other hand we think that the judgments earlier referred toon which the High Court relied, clearly justify the view thatin spite of the acquittal of person in one case it is open tothe Court in another case to proceed on the basis—of courseif the evidence warrants it that the acquitted person was guiltyof the offence of which he had been tried in the other caseand to find in the later case that the person tried in it wasguilty of an offence under S. 34 by virtue of having committed

Athe offence along with the acquitted person. There is nothingin principle to prevent this being done. The principle ofSambasivam’s case has no application here because the twocases we are concerned with are against two different personsthough for the commission of the same offence.

BFurthermore, as we have already said, each case has to bedecided on the evidence led in it and this irrespective of anyview of the same act that might have been taken on differentevidence led in another case.” (Emphasis added)

27. In the case of Nirmal Singh vs State of Haryana[7], this CourtCdiscussed the scope and requirements of section 33 of the EvidenceAct, 1972 and section 299 of the Cr.P.C. and observed as follows: -

“On mere perusal of Section 299of the Code of CriminalProcedure as well as Section 33of the Evidence Act, we haveno hesitation to come to the conclusion that the pre- conditionsDin both the Sections must be established by the prosecutionand it is only then, the statements of witnesses recordedunder Section 299 Cr.P.C. before the arrest of the accusedcan be utilised in evidence in trial after the arrest of suchaccused only if the persons are dead or would not beavailable or any other condition enumerated in the secondEpart of Section 299(1) of the Code of Criminal Procedure isestablished..”

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

“18. The right of an accused to watch the prosecutionwitnesses deposing before court of law indisputably is avaluable right.

……………………………….G………………………………………….

23. An accused is, however, always entitled to fair trial. Heis also entitled to speedy trial but then he cannot interferewith the governmental priority to proceed with the trial which

7 (2000) 4 SCC 41H8 (2009) 7 SCC 104

would be defeated by conduct of the accused that prevents itfrom going forward. In such an event several options are opento courts. What, however, is necessary is to maintain judicialdignity and decorum. The question which arises forconsideration is whether the same will take within its umbragethe said principle. We will examine the said question littlelater. We will proceed on the premise that for invocation ofthe provisions of Section 299 of the Code the principle ofnatural justice is inbuilt in the right of an accused.

24. right to cross-examine witness, apart from being anatural right is statutory right. Section 137of the EvidenceAct provides for examination- in-chief, cross-examination andre-examination. Section 138of the Evidence Act confers aright on the adverse party to cross-examine witness whohad been examined in chief, subject of course to expressionof his desire to the said effect. But indisputably such anopportunity is to be granted. An accused has not only avaluable right to represent himself, he has also the right to beinformed thereabout. If an exception is to be carved out, thestatute must say so expressly or the same must be capable ofbeing inferred by necessary implication. There are statuteslike the Extradition Act, 1962 which excludes taking ofevidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. Unionof India, [ (2008) 2 SCC 417 ].

25. It is also beyond any cavil that the provisions of Section299of the Code must receive strict interpretation, and, thus,scrupulous compliance thereof is imperative in character. Itis well-known principle of interpretation of statute that anyword defined in the statutory provision should ordinarily begiven the same meaning while construing the other provisionsthereof where the same term has been used. Under Section3 of the Evidence Act like any other fact, the prosecution mustprove by leading evidence and definite categorical findingmust be arrived at by the court in regard to the fact requiredto be proved by statute. Existence of an evidence is notenough but application of mind by the court thereupon asalso the analysis of the materials and/or appreciation thereoffor the purpose of placing reliance upon that part of theevidence is imperative in character.”

ABC

A29. In this regard, another instance of requirement of joint trial foradmissibility of confession as provided under section 30 of EvidenceAct, 1872 may be noted. According to which when more persons thanone are being tried jointly for the same offence, and confession madeby one of such persons affecting himself and some other of such personsis proved, the Court may take into consideration such confession asBagainst such other person as well as against the person making suchconfession. Section 30 of the Evidence Act is reproduced below:

“30. Consideration of proved confession affecting personmaking it and others jointly under trial for same offence. -

CWhen more persons than one are being tried jointly for the sameoffence, and confession made by one of such persons affectinghimself and some other of such persons is proved, the Court maytake into consideration such confession as against such other personas well as against the person who makes such confession.”

30. In the case of Raja @ Ayyappan vs. State of Tamil Nadu[9],Dthis court was dealing with case under the Terrorist and DisruptiveActivities (Prevention) Act, 1987 and was confronted with the issue inrespect of admissibility of confession of co-accused against another co-accused in separate trial, when joint trial could not be held on accountof him absconding. Abdul Nazeer, J., concluded the issue in the followingEterms: -

“31. In the instant case, no doubt, the appellant wasabsconding. That is why, joint trial of the appellant with theother two accused persons could not be held. As noticedabove, Section 15 of the TADA Act specifically provides thatFthe confession recorded shall be admissible in trial of aco-accused for offence committed and tried in the same casetogether with the accused who makes the confession. We areof the view, that if for any reason, joint trial is not held, theconfession of co-accused cannot be held to be admissiblein evidence against another accused who would face trial atGa later point of time in the same case. We are of the furtheropinion that if we are to accept the argument of the learnedcounsel for the respondent- State, it is as good as re-writingthe scope of Section 15 of the TADA Act as amended in theyear 1993.

H9 (2020) 5 SCC 118

32. In Ananta Dixit v. The State reported in 1984 Crl. L.J.1126, the Orissa High Court was considering similar caseunder Section 30 of he Evidence Act. The appellant, in thiscase, was absconding. The question for consideration waswhether confession of one of the accused persons who wastried earlier, is admissible in evidence against the appellant.The Court held that the confession of the co-accused was notadmissible in evidence against the present appellant. TheCourt held:

“7. As recorded by the learned trial Judge, the accusedNarendra Bahera, whose confessional statement had beenrelied upon, had been tried earlier and not jointly with theappellant and the co- accused person Baina Das. Aconfession of the accused may be admissible and used notonly against him but also against co--accused person triedjointly with him for the same offence. Section 30 applies to acase in which the confession is made by accused tried at thesame time with the accused person against whom theconfession is used. The confession of an accused triedpreviously would be rendered inadmissible. Therefore, apartfrom the evidentiary value of the confession of co-accusedperson, the confession of Narendra Behera was not to beadmitted under Section 30 of the Evidence Act against thepresent appellant and the co-accused Baina Das.”

We are in complete agreement with the view of the High Court.

33. We are of the view thatsince the trial of the other twoaccused persons was separate, their confession statements(Ex.P-26 and P-27) are not admissible in evidence and the”same cannot be taken as evidence against the appellant.(Emphasis added)

31. Mr. S. Nagamuthu, relied upon the judgment of this Court inthe case of State of Kerala and Others vs. Joseph Alias Baby andOthers (supra). In the said case, the High Court had considered theevidence of one Sessions case which tried some of the accused in anotherSessions case which was trying another set of co-accused arising out ofsame offence and acquitted all the accused. This Court, in paragraph 7of the report, was of the view that the High Court was not right inconsidering the evidence of one case for another case and accordingly

Aset aside the judgment of the High Court and remanded the matter to theHigh Court for fresh disposal. Relevant portion of Paragraph 7 isreproduced below: -

“7……….The High Court ought to have considered the facts ofeach case and decided the appeals in accordance with law and inBthe absence of such consideration by the High Court, it will not beproper for us to decide on the culpability of each of the respondent-accused in these appeals. We therefore, set aside the impugnedcommon judgment of the High Court and remand the matters backto the High Court for fresh disposal in accordance with law.”

C32. The other judgment relied upon by Mr. Nagamuthu is VinubhaiRanchhodbhai Patel vs. Rajivbhai Dudabhai Patel and Others,(supra). In the above case also, two accused namely, accused Nos.16and 17 were tried separately as they were absconding. Their trial wasregistered as Case No.58 of 1998. The Trial Court had recorded theacquittal of both the accused. Interestingly, in Sessions Case No.58 ofD1998, no evidence was recorded independently. The Trial Court hadproceeded to record acquittal relying upon the evidence recorded in theearlier Sessions Case No.11 of 1992 which was trying separate set ofco-accused. Recording the above fact, Chelameswar, J., observed inparagraphs 47 and 48, regarding impermissibility of the procedure adoptedEby the Trial Court with respect to judgment in Sessions Case No. 58 of1998. The said paragraphs are reproduced hereinafter: -

“47. In Sessions Case No. 58 of 1998 against A-16 and A-17, noevidence was recorded independently. On the other hand, theevidence recorded in Sessions Case No.118 of 1992 was markedFas evidence in Sessions Case No.58 of 1998. The Evidence Act,1872 does not permit such mode of proof of any fact barring inexceptional situations contemplated in Section 33 of the EvidenceAct.

48. There is no material on record to warrant the procedureGadopted by the Sessions Court. On that single ground, the entiretrial of Sessions Case NO.58 of 1998 is vitiated and is not inaccordance with procedures established by law. It is differentmatter that both the accused put to trial in Sessions Case No.58of 1998 were acquitted by the Fast Track Court and the HighCourt did not interfere with the conclusions recorded by the FastHTrack Court.”

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

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

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

36. Further, it would be worthwhile to mention here that theprosecution in both the trials produced seven witnesses and filed 13documents which were proved and exhibited. The witnesses in the secondcase were not examined in the same sequence as the first case andconsequently, the 13 documents filed were also not given the same exhibitnumbers in the second case as in the first case. The following chart will

Ashow the specific sequence numbers of the witnesses in both the trialsas well as the exhibit numbers of the documents filed and proved in boththe trials. The chart reads as follows: -

“LIST OF WITNESSES

LIST OF DOCUMENTS

G37. Now, merely because the seven witnesses produced by theprosecution were the same in both the cases would not mean that theevidence was identical and similar because in the oral testimony, notonly the examination-in-chief but also the cross-examination is equallyimportant and relevant, if not more. Even if the examination-in-chief ofall the seven witnesses in both the cases, although examined in differentH

sequence, was the same, there could have been an element of somebenefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counselor different counsel. The role of each accused cannot be said to be thesame. The same witnesses could have deposed differently in differenttrials against different accused differently depending upon the complicityor/and culpability of such accused. All these aspects were to be examinedand scrutinised by the Appellate Court while dealing with both the appealsseparately and the evidence recorded in the respective trials giving riseto the appeals.

38. We cannot proceed on presumption and assume that everythingwas identical word to word. We are therefore, not inclined to accept thesubmission of Mr. Banerjee and in fact both the judgments relied uponby Mr. Banerjee having similar facts as the present case lay down thesame proposition of law that evidence of one trial can be read only forthe purposes of the accused tried in that trial and cannot be used for anyaccused tried in separate trial. The view taken by the Calcutta HighCourt in 1928, expressed by Rankin, C.J., has been appropriatelyfollowed and accepted and is the correct view.39. The provisions of law and the essence of case-laws, asdiscussed above, give clear impression that in the matter of criminaltrial against any accused, the distinctiveness of evidence is paramount inlight of accused’s right to fair trial, which encompasses two importantfacets along with others i.e., firstly, the recording of evidence in thepresence of accused or his pleader and secondly, the right of accused tocross-examine the witnesses. These facts are, of course, subject toexceptions provided under law. In other words, the culpability of anyaccused cannot be decided on the basis of any evidence, which was notrecorded in his presence or his pleader’s presence and for which he didnot get an opportunity of cross-examination, unless the case falls underexceptions of law, as noted above.

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

A41. It is also an undisputed proposition of law that in criminalappeal against conviction, the appellate court examines the evidencerecorded by the trial court and takes call upon the issue of guilt andinnocence of the accused. Hence, the scope of the appellate court’spower does not go beyond the evidence available before it in the form ofa trial court record of particular case, unless section 367 or section 391Bof Cr.P.C. comes into play in given case, which are meant for furtherinquiry or additional evidence while dealing with any criminal appeal.

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

43. There is one more angle to be considered i.e. whether toremand one case to the High Court for fresh decision i.e. the case inwhich the evidence was not considered and we may proceed to decidethe other case here. We find, if we adopt such procedure, then noEfruitful purpose would be served and in fact, it would be an exerciseresulting in complications and contradictions and even conflicts. If weproceed to hear one appeal wherein the evidence has been consideredby the High Court and we agree with the same, then it would influencethe High Court in deciding the other matter on remand. Further, even ifwe could hold back this appeal and await decision of the High Court inFthe matter which we remand, then also the High Court would not beable to take an independent decision and would be influenced by thejudgment as we would be entertaining one appeal. Moreover, if we allowone of the appeals which we are holding back, then, nothing may remainfor the High Court to decide.G

44. There is another reason why we are inclined to send backboth the matters to the High Court which is fundamental. We find thatthe learned single Judge of the High Court has apparently not adoptedthe correct procedure prescribed under law and therefore, the judgmentof the High Court needs to be set aside. Once common judgment is setHaside for one appeal, it cannot be upheld for another appeal. There cannot

be severance of the judgment particularly when it arises in criminalcase, where the rights of the accused are as important as the rights of avictim. Therefore, it would be in the fitness of things and in the interestof the parties that the matters are remanded to the High Court for afresh decision in accordance with law and in light of the discussion andobservations made above.

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

46. Accordingly, the appeals are allowed. Judgment of the HighCourt passed on 19.10.2019 is set aside. The appeals shall be heard bythe High Court afresh in the light of the observations made above.

Devika Gujral

Appeals allowed.