IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1268 of 2010 MUNI YADAV @ MUNNI YADAV Versus STATE OF BIHAR ----------- 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. A.Kumar ( Mridula Mishra, J.) (Dharnidhar Jha,J.)