1. The appellant has been convicted and sentenced for having committed an offence punishable under Section 302, I.P.C. read with Section 34, I.P.C. by the Sessions Judge. Raichur. in Sessions Case No. 29 of 1973. He has. in this appeal, challenged the conviction and sentence.
2. This case has a history of its own. At 1-00 A. M. on 20-6-1960 one Shivabassappa was stabbed while he was sleeping in his house. The house opposite to that belonged to him. Shankarappa and Gurappa. who are sons of Shivabassa-ppa. Shankarappa's wife and children and P.W. 5 Irayya and P.W. 6 Sofikhan who are servants of Shivalbassappa used to sleep in that house. Shankarappa and his wife had gone to Bangalore as Shankarappa's wife was to be treated. Virupakshappa. Hanmappa Kali. Bassayya. Irayya and this appellant, according to prosecution, entered the house where Shivabassappa was sleeping and stabbed him. Shivabassappa cried out and P. Ws. 5 and woke up. They took a lantern with them and rushed to the house. They saw the appellant. Virupakshappa and Kali Hanmappa running out of the house. They went inside and saw Shivabassappa lying (having sustained stab injuries on his body. Shivabassappa was alive and he told these persons that the a'DPellant, Virupakshappa and Kali Hanmappa had stabbed him and run away. He told these persons to bring Yenkangouda. Basangouda and others. They went and informed them. They also went to inform the police Patil P.W. 1 Chidamber Gouda. Chidamber Gouda did not wake up in spite of the attempts of P. Ws. 5 and 6. P.W. 4 Hussainsab. Walikar. was sleeping in the malice of P.W. 1. and he woke up. P. Ws. 5 and 6 told him about the incident. He accompanied these persons to the spot. Shivabassappa told P.W. 4 that the said three persons had assaulted him. In the meanwhile, the Government Ayurvedic doctor P.W. 2 Vasudevarao came there as somebody had gone to him and told him to attend on Shivabassappa. He bandaged the injuries and at that time Shivabassappa told him that the said three persons stabbed him and run away. Shivabassappa narrated to the other persons also the same version and then it was decided that Shivabassappa should be taken to the hospital. When he was being taken on a bed in a cart, he complained of acute pain and he was 'brought back and he breathed his last. In the morning on 28-6-1960 P.W. 4 went to P.W. l the Police Patil. woke him up and brought him to the spot where Shivabassappa's body was lying. P.W. 1 gathered the information from P. Ws. 4, 5 and 6 and others and wrote his- report Exhibit P-l. He sent it to Alwandi Police Station. It reached the Station House Officer at 11-15 A. M. and he registered a case in Crime No. 15 of 1960. He reached the spot by 3-00 p.m. and took up investigation. Later P.W. 13 Kalyan Rao. the regular Suib-Inspie'ctor of Police reached the spot by mid night and took up investigation. Thereafter at 12-00 noon on 30-6-1960 the Circle Inspector of Police reached the spot and took up investigation. The in-vfestigation was completed and a charge sheet was filed against five persons showing this appellant as absconding.
3. As the appellant could not be traced and produced before the Court. Sessions Case No. 32/8/60 was tried against Virupakshaippa. Hanmappa. Basawa and Irayya only. The case against the appellant was thus kept by. Virupakshappa and Hanmappa who were A-1 and A-2 were found guilty of having committed an offence punishable under Section 302, I. P, C. read with Section 34. I.P.C. and sentenced to undergo imprisonment for life. Basayya and Irayya were acquitted. Virupakshappa and Hanmappa preferred Criminal Appeal No. 27 of 1962 in this Court. The conviction and sentence (passed on them were confirmed by this Court. It is the prosecution case that somewhere in 1973 a communication was addressed from Goa Electricity Board, to the Superintendent of Police. Raichur. in regard to it the antecedents of the appellant as the appellant had applied to the Board that he should be made permanent servant. It was at that time found that the appellant was a wanted accused in Crime No. 15 of 1960 of Alwande Police Station. Hence the appellant was secured and produced before the Court. It is thus that Sessions Case No. 29 of 1973 came to be put up and the appellant was tried and found guilty.
4. There can be no doubt that Shivaibassappa was stabbed during the night between 27-6-1960 and 28-6-1960 when he was sleeping in his godown in front of his house in Kowlur village within the jurisdiction of Alwandi Police Station. Therefore, we do not consider it necessary to address ourselves to that part of the evidence adduced by the prosecution in proof of that fact.
5. In order to establish the charge against the appellant, the prosecution has placed reliance on the evidence of P. Ws. 5 and 6 in regard to seeing the appellant and Virupakshappa and Hanmappa running away from the said godown at that time and on the evidence of P. Ws. 2, 4. 5. 6 and 9. in regard to dying declaration said to have been made by Shivabassappa to them when they went to see him soon after the incident. The prosecution has placed reliance on the evidence of Irayva who was P.W. 13 in Sessions Case No. 32/8/60, Shankarappa son of the deceased who was P.W. 16 in the said case, Yenkangouda. Alimuddin. Raghavendra Rao and Hanmappa Poojari. who were examined in the said case. Their depositions have been marked as Exhibits P-24, P-25. P-23, P- 27. P-28 and P-29 respectively. Even the Station House Officer who registered the case being dead, his deposition in the earlier Sessions Case has been marked m this case as Exhibit P-26. Exhibits P-23 to P-29 have been marked under Section 33 of the Indian Evidence Act, 1872. Yenkanaouda and Raahayendra Rao whose depositions are Exhibits P 23 and P-28 were also witnesses to the dying declaration said to have been made by Shivabassappa soon after the incident. absconder of the accused for such a long period of 13 years is also a circumstance relied upon by the prosecution.
6. Sri. A. M. Farooa. learned advocate for the appellant as Amicus Curiae contended that the learned Sessions Judge was not right in admitting in evidence the depositions of Iravva. Shankarappa. Yenkangouda. Alumuddin. Raghavendra Rao and Hanmappa Poojari and exhibiting the same as Exs P-24, P-25, P-23. P-27. P-28 and P-29 respectively. He urged that the view of the learned Sessions Judge that Section 33 of the Indian Evidence Act would be applicable is not sustainable. He pointed out that the depositions of the said witnesses had not been recorded in Sessions Case No. 32/8/60 by making use of Section 512 of the Criminal Procedure Code (old).
7. Section 33 of the Indian Evidence Act is as follows:
33. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it. is relevant few 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:
That the proceeding was between the same parties or other representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
It is clear from the 2nd proviso that it is necessary that the adverse party in the first proceeding had the right and opportunity to cross-examine. The appellant was undisputedly not an adverse party in Sessions Case No, 32/8/60. This part of Section 33 of the Indian Evidence Act has been ignored by the learned Sessions Judge. Section 512 of the Criminal Procedure Code fold) is as follows:
512. 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 witnesses (if any) produced on behalf of the prosecution, and record their depositions. 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 his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) Record of evidence when offender unknown:
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 may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. 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.
It is not in dispute that the evidence of the said witnesses had not been recorded as against this appellant also under this provision. Hence it cannot be. by any stretch of imagination, argued that the depositions of the said witnesses can now be regarded having been recorded by making use of Section 512 of the Criminal Procedure Code and therefore the learned Sessions Judge was right in admitting the said depositions in evidence and marking them as Exhibits P-24. P-25. P-23. P-27. P-28 and P-29. The evidence of these witnesses was not at all recorded in the said Sessions Case as against this appellant, because he was not one of the accused as the case against him had been bifurcated. In State of Hyderabad v. Bhimaraya AIR 1953 Hvd 63 : 1953 Cri LJ 524 it is held as follows:
The special rule of evidence enacted by Section 512 of the Criminal Procedure code is an exception to the general rule specified in Section 33 of Evidence Act and the evidence recorded in a previous trial would be treated as evidence subject to the conditions specified against the absconding accused, notwithstanding the fact that he had no opportunity to cross-examine them at the time the evidence was taken. Section 512 of the Criminal Procedure Code, does not authorise the magistrate either to delete the name of an absconding accused which in effect is an acquittal of the accused, or to issue a warrant of arrest. All that he has to do under Section 512 of the Criminal Procedure Code, is to satisfy himself that the accused are absconding and that there is no likelihood of their apprehension. Once he comes to that conclusion, he may order the evidence to be recorded under Section 512 against the absconding accused.
The evidence recorded in the case of the trial of a co-accused of the albsconder or other persons cannot by ex-post facto operation be treated as evidence recorded under Section 512 for the purpose of utilising it at the trial of the absconder when he is apprehended and tried subsequently. The prosecution should move the Court and prove by evidence before the recording of evidence against the co-accused that certain persons are absconding and that it is not possible to apprehend them. It is for the Court thereafter to give directions that the evidence about to be taken is being taken for the purpose of being used. if necessary, against the albsconder under Section 512 of the Criminal Procedure Code, as well as against the persons present and on trial.
In State of Mysore v. Sanjeeva AIR 1956 Mys 1 : 1956 Cri LJ 77, it is laid down that Section 512 of the Criminal Procedure Code represents an exception to the provisions of Section 33. Evidence Act. which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can toe made use of. We respectfully agree with these views. We. therefore, hold that Exhibits P-24, P-25, P-23, P-27. P-28 and P-29 cannot be considered as evidence against the appellant in this case.
8. The question is whether the evidence of P. Ws. 5 and 6 and. so also that of P. Ws. 2 and 9 can be considered as safe to be relied upon. It is no doubt true that the evidence given by them in Sessions Case No. 32/8/60 was accepted and acted upon. But that, by itself, cannot make their evidence reliable or acceptable as against this appellant also.
9. P. Ws. 5 and 6 have sworn that they were sleeping in the house opposite to the one in which Shivabassappa was sleeping and on hearing the cry of Shivabassappa. they woke up. took, a lantern and went to that house. They saw the appellant, Virupakshappa and Kali Hanmatppa running away from the house one after the other. They recognised them. They went inside and saw Shivabassappa lying injured. Shivabassappa told them that these three persons had stabbed him and run away. They have further on narrated as to how they made Gurappa the half witted son of Shivabassappa sit near Shivabassappa as Shankarappa the other- son of Shivaba Bsappa had gone to Bangalore, and then went to the house of police Patil. attempted to 'wake him up but could not wake him up and informed P.W. 4 Hussainsab who was sleeping there and who woke up and brought him to the spot. They and P.W. 4 have sworn that Shivabassappa once again told P.W. 4 that these three persons had stabbed him and run away. Their further version is in regard to informing P. Ws. 8, 9 and others as directed by Shivabassappa.
10. The information as per Exhibit P-l was recorded by about 6-00 A M by P.W. 1. The explanation of P. W 1 is that he was sleeping and he was called to the spot by P.W. 4 by that time and hence he went there and collected information from P.W. 5, P.W. 6 and others and wrote it at that time. It reached the Station House Officer at Alwandi at 11-15 A. M. and a case was registered. The Station House Officer issued F. I. R also We find that the F. I. R. reached the Court at Koppal situated about 30 miles away from Alwandl on 30-6-1960. The prosecution has not adduced any evidence to explain this delay in the F. I. R. reach in the Court at Koppal. It is seen that P. Ws. 5 and 6 were examined during the investigation for the first time on 30-6-1960. Why they were not examined right from 28-6-1960 upto 30-6-1960 is not explained. It is not the say of P. Ws. 5 and 6 that they were not available in the village to the investigating officers during that time. It is also available In evidence in this case that Shankarappa the other son of the deceased Shivabassappa. returned to Kowlur on 30-6-1960 itself. It is hence seen that the recording of the statements of P. Ws. 5 and 6, reaching of the F. I. R. to the Court and the arrival of Shankarappa the other son of Shivaba Bsappa are all on 30-6-1960. This is too much of a coincidence to be ignored. The contention of the defence is that it was after the arrival of Shankarappa that P. Ws. 5 and 6 were got up as witnesses In this case and the F. I. R. was prepared and sent to the Magistrate's Court at Koppal. That contention is very much probalised. It cannot be forgotten that P. Ws. 5 and 6, according to the prosecution case itself, were the first persons to hear the alleged dying declaration of Shivabassappa. It is their evidence that they recognised the appellant, Virupakshappa and Kali Hanmappa when those persons ran out of the house immediately after the cry of Shivabassappa was heard by these persons. They went and informed P.W. 4 Hussainsab1 the Walikar in the first instance. Till then they had not informed this fact and the fact that Shivabassappa had made a dying declaration to them, to any one. Cross-examination of P.W. 4 shows that he had. when examined in Sessions Case No. 32/8/60. stated as per Exhibits D-3 and D-4 that Shivabassappa had stated to him that three persons (not naming them) had hit him and gone and that when P. Ws. 5 and 6 contacted him. he was told by them that they saw three persons running away in the night and could not recognise them as it was dark and that they could only surmise that those persons were the appellant. Virupakshappa and Kali Hanmappa. These facts indicate that P. Ws. 5 and 6 might not have identified the person who had run away, even if it is assumed that they had seen some three persons running away from that house, and that Shivabassappa the deceased might not have taken the names of the appellant. Virupakshappa and Kali Hanmappa as his assailants when he told these persons that he had been assaulted by three persons. This inference based on these facts and circumstances falls in line with the other facts narrated and discussed by us in the preceding paragraph in regard to Shankarappa reaching the village on 30th. P. Ws. 5 and 6 being examined by the investigating officer on 30th and the F. I. R. reaching the Court at Koppal on 30th itself.
11. The learned State Public Prosecutor argued that P. Ws. 5 and 6 are independent disinterested witnesses as nothing has been elicited in their cross-examination to show that they had any kind of animosity against the appellant and the other two persons and further that P. Ws. 2 and 9 are also disinterested independent witnesses having nothing to do with the parties in this case and 'therefore n0 suspicion can be attached to the evidence of all these witnesses.
12. The learned State Public Prosecutor in this very connection quite fairly pointed out to us from the evidence of P. Ws. 2, 9 and 10 that according to P. Ws. 9 and 10 they had gone to call the doctor P.W. 2 and according to P.W. 2 he was. at that time, informed that some persons had stabbed Shivabassappa meaning thereby that the names of those persons had not been disclosed by them and further that P.W. 10 who was supposed to be a witness to the dying declaration said to have been made by Shivabassappa has not sworn to that fact in his evidence in this case. We must observe at this stage that the learned State Public Prosecutor has been very fair in putting the case before us.
13. P.W. 2. of course. Is a Government doctor in Ayurvedic Hospital in Kowlur. He appears to be a disinterested Independent witness. His say is that as called by some persons he went to Shivabassappa and rendered first aid and at that time Shivabassappa told him that the appellant. Virupakshappa and Kali Hanmappa had assaulted him and run away. A reading of his evidence by itself does not show any apparent infirmity in it. P.W. 2 has admitted in his cross-examination that there was a register maintained in his hospital. But he had not made any entries in regard to his visit to Shivaba Bsappa and giving first aid to Shivabassappa. It is to be remembered that he was not a private practitioner, but was a Government doctor. He must have come to know that this was a medico-legal case if. in fact, he had heard the dying declaration of Shivabassappa. Even otherwise it must have been apparent that it was a medico-legal case, because Shivabassappa was lying there having sustained stab injuries. He has not explained as to why he did not make any entries in the concerned register after he gave first aid to Shivabassappa. That throws suspicion as to whether he had in fact gone to Shivabassappa and rendered first aid to him as sworn to by him. There is no evidence to show, apart from what is available in the evidence of the panch that there was any light in that house where Shivabassappa was sleeping when Shivabassappa was assaulted. The panch has sworn that when he went there, lighted lantern was there. But that was long after the people had collected. In fact, it is the say of P. Ws. 5 and 6 that they had themselves taken a lantern with them. Hence the finding of a lighted lantern by the panch at that time does not necessarily mean that such a lantern was there even when the assault on Shivabassappa took place. In the absence of such evidence, the possibility of Shivabassappa having identified the assailants is rendered remote. That brings to the surface the possibility of P. Ws. 5 and 6 having given out their surmise about the identity of the assailants in the manner that is deposed to by P.W. 4 at Exhibit D-4. to Shivabassappa also thereby making Shivaba Bsappa make up his mind to declare to one and all that the appellant. Virupakshappa and Kali Hanmappa had stabbed him. Hence the dying declaration as narrated by P.W. 2 even if it is for the sake of argument assumed that P.W. 2 had gone and given first aid to Shivabassappa. cannot (be considered as denoting facts that Shivabassappa had himself observed, because there appears to have been no adequate opportunity for Shivabassappa to have identified his assailants. Dying declaration can be made a basis of conviction only if it is satisfactorily established that the victim had all the opportunity to observe the incident and identify his assailants. In this view of the matter the evidence of P.W. 9 Lingappa who has sworn to such a dying declaration having been made to him by Shivabassappa cannot also be safely relied upon to base a conviction. According to P.W. 9. P.W. 10 Karibasappa was also present when Shivabassappa made a dying declaration to him. But P, W. 10 has not sworn to such a fact. There is no explanation as to why he has not sworn to such a fact. According to P. Ws. 9 and 10. they went to call P.W. 2 the doctor and on their calling P.W. 2, P.W. 2 attended on Shivabassappa. They so went to P.W. 2 after hearing 'the dying declaration of Shivabassappa. If that were to be so. they would have quite naturally told P.W. 2 that the appellant. Virupakshappa and Kali Hanmappa had stabbed Shivabassappa and run away. They would not have told that some persons had stabbed Shivabassappa. But that is what P, W. 2 has stated, because he has sworn that the persons who had gone to call him told him that some persons had stabbed Shivabassappa. This vagueness available in the evidence of these witnesses amply supports the Inference that we have drawn from the other facts and circumstances narrated and discussed above.
14. The learned Sessions Judge has gathered material available in Exhibits P-24, P-25, P-23. P-27, P-28 and P-29 in regard to motive aspect and also In regard to dying declaration said to have been made by Shivabassappa. because in Exhibit P-23 Yenkangouda and in Exhi-, bit P-28 Raghavendra Rao had also sworn that they had gone to the spot and had seen P. Ws. 5 and 6 there and at that time Shivabassappa made a dying de-, claration to them stating that the appellant. Virupakshappa and Kali Hanmappa had stabbed him and run away. When in law. this material is inadmissible in evidence, because Exhibits P-24. P-25. P-23. P-27. P-28 and P-29 are inadmissible, the reasoning of the learned Sessions Judge cannot be accepted. We have found that the only material available in the depositions of P. Ws. 2, 4. 5. 6 and 9 is not safe to base a conviction. Therefore, it will have to be held that the prosecution has 'to rely only on the circumstance of the alleged ascendance of the appellant.
15. The say of the appellant is that he was not at all present in Kowlur on that day as he had gone away in search of employment and ultimately he secured employment in Madgaon and he remained there. We find that this say is amply probabilised. because the appellant has been in service in the Electricity Board in Madgaon for a long period and when he applied making a request that he should be made permanent, information reached the Superintendent of Police. Raichur, and thereafter the whereabouts1 of the appellant came to be known by the police. Absence of the appellant from the village during this long period cannot, therefore, be characterised as ascendance by the appellant.
16. In view of the foregoing reasons, we do not agree with the conclusion of the learned Sessions Judge, We allow this appeal and set aside the conviction find sentence passed on the appellant Gavisiddawa. son of Mudkayya. by the Sessions Judge Raichur. in Sessions Case No. 29 of 1973. We acquit him and direct that he be released forthwith.