Bharose vs State of M. P.

Dr. T.N. Singh, J.—Several persons were sent up for the murder of one Ramnath Singh, Patwari, but six were tried together in Sessions Trial No. 104/81 while the instant appellant having absconded could not be tried with them.

What has to be stated at the outset is that when the co-accused of the instant appellant preferred an appeal to this Court challenging their conctions and sentences passed by the learned Sessions Judge, by judgment rendered on 7-8-1985 in Criminal Appeal No. 45 of 1982 this Court acquitted all the accused holding that the sole eye witness Naresh Singh was not a reliable witness and on his testimony conviction could not be brought home to the said accused-appellants. Later, when the instant appellant Bharosi was apprehended he was tried and he was also convicted by the Sessions Court under Sec-302/34 I. P. C. and sentenced to undergo life imprisonment.

Two questions arise for our consideration in this case. In the second trial the only evidence adduced, On which the conviction was based, is that of Jagroopsingh, P. W. 3, who was conductor of the bus in which Ramnath Singh, Patwari, was travelling at the relevant time. The prosecution case was that 5 or 7 persons had ambushed the bus and they had dragged out the deceased and inflicted fatal injuries on him leading to his death. To this Jagroopsingh deposed in the second trial and he also deposed that Naresh Singh, who had been examined earlier in the first trial, was in the same bus in which Ramnath Singh, Patwari, was travelling. Learned Additional Sessions Judge accepted the earlier evidence of Naresh Singh, which was proved and exhibited as Ex. P-7 in the second trial with the aid of Section 299(1) Cr. P. C.

The first question which we are required to examine and answer is on the validity of the exercise undertaken by the trial Court. We extract below Section 299(1):

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 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.

In our opinion evidence which is recorded against an absconder accused can be read when he is apprehended later and tried even if such evidence is not tendered in his presance, on the fulfilment, however, of the requisites prescribed. The provision aforequoted is meant to take care of such eventuality when there are several accused to be tried for an offence and one or more has absconded as a result of which trial of others is likely to be staggered on that count. Lest the other accused suffer, their trial is not to be interdicted on account of abscondence of one or more co-accused. It is indeed contemplated that the evidence which is tendered in such a trial of those accused who are available for trial may be used against the absconding accused when he or they is or are put on trial. The provision is in derogation of the normal procedure that evidence in trial of an accused shall be recorded in his presence but its justification lies in accused''s default to take part in the trial. The Court has to be satisfied, therefore, that the person put up on trial subsequently is an absconding accused and there is no doubt about his identity and of his being implicated in the crime to prove which evidence had been adduced earlier.

In such a case the Court has to be also satisfied that the persons whose evidence is sought to be used are either dead or incapable of giving evidence or cannot be found or they are such persons whose presence cannot be procured "without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable". Cogent reasons, on adequate material, must be recorded by the trial Court in such a case in arriving at its satisfaction on the question of unreasonableness of delay, expense and inconvenience.

In the instant case we are satisfied that the first requirement is duly fulfilled because in the statement which the instant appellant has given under S. 313 Cr.P.C., he admitted that he was a co-accused in Sessions Trial No. 104 of 1981 and in that trial he was cited an absconder. As to the other requirement the learned Sessions Judge has record the requisite finding which we accept. It is his finding that Naresh Singh, whose earlier evidence was exhibited as P-7, was in service in Defence Forces and repeated attempts had been made to reach him, but without success. There is a clear and categorical finding based on communication received from the concerned department that the unit in which he was posted could not be located and that it was not possible to find his whereabouts. We would, therefore, consider the "circumstance of the case" to be such that presence of Naresh Singh could not be procured to give evidence in the trial of the instant appellant without an unreasonable amount of delay. No fault, therefore, can be found with the exercise undertaken by the trial Court in reading the evidence of Naresh Singh recorded in the trial of the co-accused.

However, the question still is, whether on the evidence of Naresh Singh the appellant can be convicted To this question there is a short answar which we read in the judgment of this Court, referred to earlier. This Court has taken the view that Naresh Singh is not reliable witness and we do not propose to take a different view in respect to the case of the instant appellant. Indeed, when the conviction depends on the testimony of a sole witness unless such witness is wholly reliable witness, as held times without number by the Apex Court, it will not be safe to base conviction on the testimony of such a witness. (See Badri Vs. State of Rajasthan, ; Vadivelu, AIR 1957 SC 614).

For all the foregoing reasons we have no hesitation to hold that the conviction and sentences of the appellant are not sustainable in law. We are indeed of the view on the evidence, which was available to the trial Judge, namely that of Naresh Singh, the appellant could not be convicted for the offence charged

The appeal is accordingly allowed. Appellant, who is in jail, shall be set at liberty forthwith.