Rajasthan High Court - Jaipur
Vimla Devi Wife Of Shri Phool Singh vs State Of Rajasthan on 13 August, 2021
Author: Satish Kumar Sharma
Bench: Satish Kumar Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 4400/2021
Vimla Devi Wife of Shri Phool Singh, aged about 70 Years, R/o
House No. 01, Bijli Board Colony, Mahendragarh, Haryana.
----Petitioner
Versus
1. State of Rajasthan, through P.P.
----Respondent
2. Vijay Yadav wife of Jogendra Singh R/o village Jaitpur, Tehsil &
District Rewari (Haryana)
--- Accused- respondent
For Petitioner(s) : Mr. Sanjay Yadav
For Respondent(s) : Mr. C.G. Chopra, PP
Mr. Anil Upman
Mr. Manoj Bhardwaj
HON'BLE MR. JUSTICE SATISH KUMAR SHARMA
Order
13/08/2021
REPORTABLE
1. This Petition has been filed under Section 482 Cr.P.C. being
aggrieved of the order dated 6-1-2021 in Sessions Case
No.45/2002, State Vs. Smt. Vijay Yadav, passed by Additional
Sessions Judge Women Atrocities Cases, Jaipur Metropolitan-I,
Jaipur whereby the application for reading the statements of
witness Phool Singh recorded during trial of co-accused Jogendra
Singh, against present accused respondent who absconded during
previous trial, has been dismissed and order dated 6-4-2021
dismissing the application for recalling the said order dated 6-1-
2021.
2. Heard learned counsel for both the sides and perused the
material available on record.
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3. Learned counsel for the petitioner submits that in this case
cognizance under Sections 498A and 304B IPC was taken on 18-9-
2001 against accused respondent Vijay Yadav, her son Yogesh,
and her husband Jogendra Singh. During trial the present accused
respondent Vijay Yadav absconded. She was declared absconder
on 28-2-2002 and standing arrest warrant was issued against her.
Proceedings under Sections 82 and 83 CrPC were also initiated.
The statements of witness Phool Singh, the father of deceased
were recorded during the trial of co-accused Jogendra Singh and
after trial by judgment dated 2-3-2005 he was convicted for
offences under Sections 498A and 304B IPC. The present accused
respondent Vijay Yadav surrendered before the trial court on 5-6-
2018. During trial against the present accused respondent Vijay
Yadav abovesaid witness Phool Singh was produced before the
trial court and on his examination by the court and learned Public
Prosecutor it was found that he is not capable of hearing and
speaking. Medical reports were also produced before the trial
court. In such a situation an application was filed by the learned
Public Prosecutor and the mother of the deceased Renuka to read
the statements of Phool Singh recorded during the trial of co-
accused Jogendra Singh. The statements of Phool Singh so
recorded in earlier proceedings should be read in evidence under
Section 299 CrPC and Section 33 of the Evidence Act, but the
application of the prosecution and the petitioner have been
wrongly dismissed by the trial court. The petition deserves to be
allowed. Reliance has been placed on Mohammed Shafik @ Sheikh
Salim Vs. State of Rajasthan [2012(4) WLC (Raj.) 9]. The petition
should be allowed.
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4. Learned Public Prosecutor has supported the contention of
learned counsel for the petitioner.
5. Learned counsel for respondent has opposed the petition with the submission that statements of Phool Singh were recorded in the absence of the present accused respondent Vijay Yadav. She had no opportunity to cross examine him. It is also not established that he is permanently incapable to give evidence. The earlier proceedings were not between the same parties. Thus the pre requisite conditions of Section 33 of the Evidence Act have not been fulfilled and accordingly the learned trial court has rightly dismissed the application filed by the prosecution and the complainant.
It has been further contended that the present accused respondent Vijay Yadav was not declared absconder and she herself surrendered before the trial court whereupon the proceedings under Sections 82 and 83 were dropped. No evidence against her was recorded under Section 299 CrPC under the orders of the High Court. She had no opportunity to cross examine the witness Phool Singh. Therefore, his evidence cannot be read under Section 299 CrPC also. The petition deserves to be dismissed. Reliance has been placed on Vijay Ranglal Chourasia Vs. State of Gujarat [2014 CriL.J. 3946].
6. Heard. Considered.
7. In order to decide the present controversy, it is relevant to quote Section 299 CrPC and Section 33 Evidence Act, which read as under:-
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(4 of 9) [CRLMP-4400/2021] Section 299 of CrPC:-
"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 witness, 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."
Section 33 of Evidence Act:-
"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 question 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."
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8. On conjoint reading of the above provisions it is clear that if the accused has absconded in a criminal case and there is no immediate prospect of arresting him, the witnesses produced by the prosecution can be examined in his absence and the depositions of such witnesses can be given in evidence against him in subsequent trial conducted on his arrest if the witness is dead or has become incapable of giving evidence or in other circumstances as prescribed. Thus, the provisions of Section 299 CrPC have been incorporated as exception to the general provisions of Section 33 of the Evidence Act with the object to secure the ends of justice and to curb the abuse of process, so that an accused cannot take advantage of his own wrong and he may not succeed in frustrating the very purpose of criminal justice system.
9. Indisputably, the accused of a criminal case has every right and opportunity to cross examine the witnesses, but if he himself does not avail such right and opportunity and opts to abscond from the trial, then it has to be taken that he has waived his right and opportunity to cross examine the witnesses recorded under Section 299 CrPC. However, to protect the rights of the accused, the depositions of only such witness, recorded in absence of the accused, under Section 299 CrPC is admissible in subsequent proceedings on the arrest of the absconded accused, who are dead or incapable of giving evidence or in similar other circumstances. If such circumstances do not exist at the time of subsequent proceedings, the witnesses already examined under (Downloaded on 15/08/2021 at 08:59:09 PM) (6 of 9) [CRLMP-4400/2021] Section 299 CrPC have to be re-examined in subsequent proceedings on arrest of the absconded accused.
10. In a given criminal case of more than one accused, a common trial is conducted against all the accused persons wherein the witnesses are examined by the prosecution to prove the charges against them. Hence, if the witnesses are examined in trial of co-
accused persons and an accused is absconded, it is not required to separately or additionally or simultaneously record the depositions of the same witnesses against the absconded accused under Section 299 CrPC. Thus, the depositions of such witnesses recorded in trial of the co-accused can very well be read in subsequent proceedings on arrest of the absconded accused, if the witness has died or has become incapable of giving evidence.
11. The Hon'ble Supreme Court in Nirmal Singh Vs. State of Haryana [2000 Cr.L.J 1803] has held that the procedure contemplated in Section 299 CrPC is an exception to the principles embodied in Section 33 of the Evidence Act, inasmuch as under
Section 33 of the Evidence Act, the evidence of a witness to which a party had no right or opportunity to cross examine is not legally admissible. Being an exception, it is necessary therefore that all the conditions prescribed, must be strictly complied with.
12. In view of above legal position, it is to be seen whether the conditions of Section 299 CrPC are fulfilled in this case or not? (Downloaded on 15/08/2021 at 08:59:09 PM)
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13. After hearing learned counsel for both the sides and on perusal of the material made available on record, this court finds that in this case cognizance under Sections 498A and 304B IPC was taken against three accused persons, including the present one and the trial was initiated. During trial the present accused Vijay Yadav was declared absconder on 28-2-2002. Standing arrest warrant was issued against her. Proceedings under Sections 82 and 83 were also initiated, which came to be dropped on her surrender on 5-6-2018. Thus, the first condition of Section 299 CrPC stands fulfilled that the present accused Vijay Yadav absconded from the trial and even after above proceedings she surrendered before the trial court after long span of more than 16 years meaning thereby there was no immediate prospect of her arrest.
14. The co-accused Jogendra Singh, husband of the present accused respondent Vijay Yadav, was convicted under Sections 498A and 304B IPC. Thus, the present accused was well aware of the proceedings. The witness Phool Singh was examined during trial conducted against the co-accused Jogendra Singh, husband of the present accused, for the same charges. Hence, his depositions are to be taken to be recorded under Section 299 CrPC against the present accused.
15. The above witness Phool Singh has been produced before the trial court on 11-10-2019 to examine him in the trial pending against the present accused. The witness is 80 years old person suffering from various ailments, supported with medical evidence. (Downloaded on 15/08/2021 at 08:59:09 PM)
(8 of 9) [CRLMP-4400/2021] The trial court as well as Public Prosecutor examined him and found that he is not capable of hearing and speaking. Thus, there is no reason to disbelieve the findings of the trial court that the witness is incapable of giving evidence.
16. In view of the above, the conditions prescribed in Section 299 CrPC stand fulfilled and the depositions of the witness Phool Singh recorded in various previous trial against the co-accused for same charges can be read in the proceedings initiated on arrest of the present absconded accused.
17. In the judgment cited by learned counsel for accused respondent, the depositions recorded in earlier Sessions case was transferred to other Sessions Court without being satisfied with fulfillment of the conditions of Section 299 CrPC. Accordingly, in the peculiar circumstances of the case, the matter was remitted to the High Court for fresh adjudication, whereas, in this case, cognizance was taken against three accused persons, including the present one, against whom trial was initiated for same charges, but the present accused herself absconded and surrendered after more than sixteen years. Thus, the conditions of Section 299 CrPC stand fulfilled in this case. Therefore, being quite distinguishable to the present case, the above cited judgment is hardly of any assistance to the present accused respondent.
18. On the other hand, in the judgment cited by learned counsel for the petitioner, this court after elaborately discussing the judgments of the Hon'ble Supreme Court, categorically held that (Downloaded on 15/08/2021 at 08:59:09 PM) (9 of 9) [CRLMP-4400/2021] evidence recorded in absence of the absconded accused persons, can be read against them on their arrest, if the witness is dead or incapable of giving evidence. Thus, the above conclusion is very well supported by the judgment cited on behalf of the petitioner.
19. Though the conclusion recorded by the learned trial court in the impugned orders clearly indicates that above conditions of Section 299 CrPC stand fulfilled in this case, but the application of the prosecution has been dismissed on the basis of non fulfillment of the conditions of Section 33 of the Evidence Act. Thus, learned trial court has erred in dismissing the application filed by the prosecution by not considering the provisions of Section 299 CrPC. Therefore, in view of the above discussion, the petition is allowed. The impugned orders passed by the trial court are quashed and set aside. The learned trial court is directed to permit the prosecution to give in evidence the deposition of witness Phool Singh recorded during trial of co-accused Jogendra Singh against the present accused and proceed further in accordance with law.
(SATISH KUMAR SHARMA),J Arn/106 (Downloaded on 15/08/2021 at 08:59:09 PM) Powered by TCPDF (www.tcpdf.org)