Code of Criminal Procedure, 1973: Allegation of clandestine export – Two separate trials – Acquittal by two separate judgments – Appellate court considering evidence of only one case and convicting the accused – Propriety of – Held: Evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a coaccused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence – In the instant case, High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials – Prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited – The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case – Merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more – Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted may be by the same counsel or a different counsel – The role of each accused cannot be said to be the same – The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused – All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals – High Court ought to have distinctly considered and dealt with the evidence of both the trials and then decide the culpability of the accused persons – Matter remitted to High Court for consideration afresh – Customs Act, 1962 – Administration of criminal justice – Fair trial. Code of Criminal Procedure, 1973: ss.367, 391 – In a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused – The scope of the appellate court’s power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless s.367 or s.391 comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal.
Allowing the appeals and remitting the matter to High Court, the Court
HELD: 1.1 Fair trial is the foundation of the criminal justice delivery system. The statutory arrangement of criminal justice delivery system encompasses few provisions in that regard under the Cr.P.C. and the Evidence Act, 1872.Section 273 of Cr.P.C. provides that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his attendance is dispensed with, in the presence of his pleader. The exception of this provision finds place in section 205 of Cr.P.C. wherein personal attendance of accused is dispensed with and he is permitted to appear by his pleader and also in section 299 of Cr.P.C., which provides for recording of evidence in the absence of the accused under certain eventualities like absconding of accused or commission of an offence punishable with death or imprisonment for life by some person or persons unknown. However, this exception has few conditions to be strictly followed by the trial court and prosecution. Besides such an exception, the basic principle of recording evidence in presence of the accused is imperative. [Paras 19, 20, 21][100-A-C, E-G]
1.2 In the Evidence Act, 1872, section 33 provides relevancy of certain evidence for proving, the truth of facts stated therein, in any subsequent proceeding, according to which evidence given by a witness is treated to be relevant in a subsequent proceeding or at a later stage in the same proceeding under certain eventualities. [Para 23][103-F]
Karan Singh v. State of Madhya Pradesh AIR 1965 SC 1037 : [1965] 2 SCR 1; Nirmal Singh v. State of Haryana (2000) 4 SCC 41:[2000] 2 SCR 807;
Jayendra Vishnu Thakur v. State of Maharashtra (2009)
7 SCC 104:[2009] 8 SCR 591; Raja @ Ayyappan v. State of Tamil Nadu (2020) 5 SCC 118 – relied on.
Doat Ali and Ors. v. Mahammad Sayadali and Anr. AIR 1928 Cal 230; Pedda Venkatapathi and Ors. v. State AIR 1956 AP 96 – referred to.
2. The High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials. The prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited. The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case. Merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the cross-examination is equally important and relevant, if not more. Even if the examination-inchief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals. [Paras 35, 36, 37][111-F-H; 112-G-H; 113-A-C]
3.1 In the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused’s right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader’s presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law. [Para 39][113-E-G]
3.2 It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court’s power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal. [Para 41][114-A-B]
3.3 In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons. [Para 42][114-C-D]
4. Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal. There cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim. Therefore, it would be in the fitness of things and in the interest of the parties that the matters are remanded to the High Court for a fresh decision in accordance with law. [Para 44][114-H; 115-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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