Vimla Devi Wife Of Shri Phool Singh vs State Of Rajasthan
2021 Latest Caselaw 3682 Raj/2

           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.

(2 of 9) [CRLMP-4400/2021]

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.

(3 of 9) [CRLMP-4400/2021]

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:-

                               (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."

(5 of 9) [CRLMP-4400/2021]

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

(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?

(7 of 9) [CRLMP-4400/2021]

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.

(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

(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

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