IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. APP (DB) No.1268 of 2010
MUNI YADAV @ MUNNI YADAV
Versus
STATE OF BIHAR
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2 3.11.2010 This criminal Appeal has been filed by one
Muni Yadav alias Munni Yadav challenging the
judgment and order dated 24.9.2010 and 28.9.2010
respectively passed in Sessions Trial No. 841 of 2009 by
the Additional Sessions Judge, FTC No.I, Banka,
convicting the appellant and others under Section 302/34
of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for six years for offence under
Section 201 of the Indian Penal Code and R.I. for life
for his conviction under Section 302/34 of the Indian
Penal Code.
The impugned judgment of the trial Court has
been challenged by the appellant on various grounds;
One of the grounds being that the trial Court has
convicted the appellant considering the evidence of such
witnesses who were not in fact examined in Sessions
Trial No. 841 of 2009 but examined in Sessions Trial
No. 435 of 2009 which also arises out of same police
2
case that Banka P.S. case No. 537 of 2008). The sessions
trials were split up and accused persons were being tried
separately in two Sessions Trials. The reason assigned by
the trial Court for not examining those witnesses in the
present Sessions Trial but taking advantage of the
evidence adduced in another sessions trial has been
discussed in para 7 of the judgment. It has been admitted
in para 7 of the judgment that charge-sheet witness no.7
Ram Bilas Roy examined as P.W.6, P.W.4, P.W.5 and
P.W.3 respectively in Sessions Case No. 435 of 2009
arising out of the same P.S. case has not been examined
in the trial in hand, but in view of the provisions of
Section 33 of the Indian Evidence Act their evidences
can be used in this trial also to the limited extent in view
of the fact that the present trial is the subsequent
proceeding of the same judicial proceeding and further
since the said witnesses have neither been found nor
examined being kept out of the way by the adversary. It
has also been stated that the witnesses are not being
examined since their presence was not possible to be
obtained without an amount of delay and there is a
direction of the High Court to dispose of the trial
3
preferably within nine months from 27.11.2009.
Counsel for the appellant submits that leaving
apart other grounds, this ground is sufficient for setting
aside the impugned judgment. The conditions which is
provided under Section 33 of the Indian Evidence Act,
for using evidence of witnesses non examined the
proceeding in question, were not at all application in the
present case. Despite this fact, the trial court have passed
a judgment of conviction, using evidence of non
examined witnesses.
Section 33 of the Indian Evidence Act relates
to relevancy of certain evidence for proving the issue
involved, in subsequent proceeding. This section
provides circumstance in which evidence given by a
witness in another judicial proceeding can be considered
as relevant for the purposes of proving in a subsequent
judicial proceeding or in a later stage of the same judicial
proceeding. The conditions are, when witness is dead or
cannot be found or 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 is
4
not viable.”
The provision mentioned under Section 33 of
the Indian Evidence Act, despite fulfillment of
circumstances mentioned can be made applicable,
provided the proceeding is in between the same party or
their representatives in interest, or the adverse party in
the first proceeding had the right and opportunity to
cross-examine the witnesses,; or the questions in issue
were substantially the same in the first as in the second
proceeding.
Apparently none of the conditions mentioned
in the section 33 as well as its proviso were available to
the trial Court in the facts and circumstance of the
present case. The parties were not the same. The adverse
parties have not been given opportunity to cross-examine
the witness examined in another proceeding and there
was nothing to show that the witnesses were withheld by
the adversary from being examined before the Trial
Court. The reason which has been assigned by the trial
Court indicates completely non application of judicial
mind as well as finding recorded against the provision of
law.
5
Without considering any other grounds taken
by the appellant challenging the impugned judgment, we
are of the view that the judgment of conviction and the
order of sentence passed by the trial Court in Sessions
Trial No. 841 of 2009 is fit to be set aside and it demands
re-trial of the accused persons in Sessions Trial No. 841
of 2009 by following the procedure in accordance with
law.
Accordingly the impugned judgment is set
aside. The accused persons including the present
appellant l who has faced the trial and is in custody, is
directed to be released forthwith.
The trial Court will issue notice to all accused
persons for their appearance to face trial.
( Mridula Mishra, J.)
A.Kumar
(Dharnidhar Jha,J.)