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Judgment
N.K.Gupta,J.
This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 29/1/2008 passed by the First Additional Sessions Judge, Damoh in ST No. 293/1999 by which the appellant was convicted for commission of offence punishable u/s 307/34 of IPC and sentenced to rigorous imprisonment for five years with fine of Rs. 1,000/-. In default of payment of fine amount, an additional RI for 30 days was directed. Prosecution case, in short, is that on 31.3.1999 at about 10:00 PM in the night Lakhanlal, Nanhe Bai and Hariram etc. were travelling by a tractor from Damoh to their village. Nanhe Bhai was driving the tractor and Lakhanlal was seated with him on the driver seat and remaining persons seated in the trolley. In front of a culvert near Prakash Dhaba, one person who was wearing khaki colour clothes like police came forward with 12 bore gun and directed them to stop the tractor. Nanhe Bhai did not stop the tractor and therefore that fellow fired from his gun. By that firing victim/complainant Lakhanlal sustained some injuries. At the same time, they saw that two persons were standing near the trolley, and therefore Nanhe Bhai took his tractor in a speed. Thereafter report was lodged at Police Station Pathariya District Damoh. Injured Lakhanlal was sent to the hospital for his medical examination and treatment. It was found that he was badly injured due to gun shot. During the investigation a test identification parade was arranged and four accused persons including the present appellant were duly identified by various witnesses. After due investigation, charge sheet was filed before the Chief Judicial Magistrate, Damoh, which was committed to the Sessions Court.
The appellant-accused abjured his guilt. He did not take any specific plea in his accused statement and no defence evidence was adduced by the appellant.
The learned Additional Sessions Judge framed the charges against all the accused persons and proceeded with the trial. During the trial main accused Hardev Singh expired. The present appellant jumped the bail for more than once. Appellant appeared before the trial Court for a pretty long time, but case was adjourned for final arguments for so many times. On 7.10.2006 defence evidence was closed and case was adjourned for final arguments for 10-12 times and thereafter an application u/s 311 of Cr.P.C. was accepted. Lakhan (PW-3) was again called for re-cross examination. Again on 31.1.2007 the accused persons closed their evidence and case was adjourned for final arguments for five times. In these 4-5 dates present appellant remained present before the trial Court or an application u/s 317 of Cr.P.C. was moved from his side. Thereafter case was fixed for judgment. On 14.12.2007, 15.12.2007 and 17.12.2007 case was adjourned due to absence of the appellant, but on 22.12.2007 arrest warrant of the appellant was issued. On 14.1.2008 the appellant was declared absconding. On 17.1.2008 it was directed that judgment shall be pronounced against the absent accused also. Ultimately, learned Additional Sessions Judge vide judgment dated 29.1.2008 convicted and sentenced the present appellant as mentioned above.
I have heard learned counsel for the parties.
Learned counsel for the appellant has submitted that since the present appellant was declared absconding on 14.1.2008, therefore no conviction or sentence could be imposed upon the appellant. Under such circumstances, conviction and sentence of the appellant is challenged.
In the present case behaviour of the appellant is strange. He appeared before the trial Court for more than seven years though he was not regular. He jumped the bail for more than once, but since 17.12.2007 he did not appear before the trial Court, even the present appeal was submitted in absence of the appellant. This Court has directed for so many times in last four years to surrender but the appellant did not surrender before the trial Court and therefore his application for suspension of execution of jail sentence could not be considered. So many warrants were issued against the appellant but he could not be arrested. Under such circumstances, it is highly doubtful that Vakalatnama of the appellant is genuine. However, present appeal is maintainable and appellant is represented and therefore the matter is heard finally.
The learned Additional Sessions Judge has mentioned the provisions of Section 353 (6) of Cr.P.C. in pronouncement of the judgment against the present appellant. For the ready reference, provision of that section may be reproduced as under:
If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted.
Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
Sub Section 6 of Section 353 of Cr.P.C. is meant for petty offences. In proviso, a provision is provided to avoid undue delay in disposal of the case. But in the present case, the appellant declared absconding vide order dated 14.1.2008, and therefore judgment could be pronounced against remaining accused persons and a perpetual arrest warrant could be issued against the appellant. If the appellant was not present at the time of judgment, then still the judgment could be pronounced in his absence, because he was declared absconding. Under such circumstances, provision of Section 353(6) of Cr.P.C. was not at all applicable in the present case. Therefore, judgment could not be pronounced against the present appellant in his absence. Learned Additional Sessions Judge erred in convicting and imposing sentence upon the appellant-accused in his absence when he was declared absconding. It was for the additional Sessions Judge to issue a perpetual arrest warrant against the appellant and to proceed with the case for other accused persons. The trial Court could proceed against the appellant when he was arrested on the basis of the perpetual arrest warrant. It is surprising that no such procedure was adopted by the learned Additional Sessions Judge. Therefore, office is directed to get comments from the concerned Additional Sessions Judge on this issue.
However, judgment could not be pronounced against the appellant u/s 353(6) of Cr.P.C. because he was declared absconding and no delay was caused in the trial due to his absence. Under such circumstances, conviction and sentence directed by the learned Additional Sessions Judge appears to be illegal. No opportunity of hearing was given to the appellant, and therefore that portion of that judgment could not be sustained.
On the basis of aforesaid discussion, the appeal of the present appellant is allowed. The conviction and sentence directed against the present appellant vide judgment dated 29.1.2008 are hereby set aside. The present judgment was not interfered in the findings and judgment passed by the trial Court against other accused persons, because their appeal is pending, which is to be decided on merits. It is further directed that ST No. 293/1999 shall be deemed to be pending against the present appellant. Learned First Additional Sessions Judge Damoh shall issue an arrest warrant against the present appellant to secure his presence and also takes step for forfeiture of bond and security bonds etc. In case if present appellant is still found absconding, then a perpetual warrant shall be issued against him and record of this trial shall be kept available for trial of the appellant in future. A copy of this judgment be sent to the trial Court along with record of the trial Court so that preliminary arrangement for appearance of the appellant may be ascertained by the trial Court and thereafter trial Court shall return the record of this sessions trial for consideration of connected Criminal Appeal No. 356/2008 filed by other co-accused persons before this Court.