Mohammad Rafiq, J. - (1.) These two separate appeals, filed on behalf of two accused-appellants, are directed against common judgment dated 13.08.2015 passed by learned Additional Sessions Judge, Khetri, in Sessions Case No.25/2003, whereby, they have been convicted for offence under Sections 451 and 302/34 of the Indian Penal Code, and sentenced to suffer two years rigorous imprisonment with fine of Rs.1000/- each; in default of payment of fine, each was to further undergo three months rigorous imprisonment, for offence under Section 451 IPC, and to suffer life imprisonment with fine of Rs.10,000/- each; in default of payment of fine, each was to further undergo one year's rigorous imprisonment, for offence under Section 302/34 IPC.
(2.) Accused-appellants and co-accused Nihal Singh were earlier convicted by the said court vide judgment dated 12.08.2004 for the same offences. Aggrieved thereby, they filed two separate criminal appeals before this court, namely, D.B. Criminal Appeal No.932/2004 - Billu Singh v. State of Rajasthan and D.B. Criminal Appeal No.899/2004 - Surendar Singh and Nihal Singh v. The State of Rajasthan . This court, vide judgment dated 19.05.2015, while setting aside the judgment dated 12.08.2004, disposed of those appeals and transposed the accused in the same position as they were on the date of judgment dated 19.05.2015, and remitted the matter to the trial court to hold a preliminary enquiry within one month; whether statement of Abhay Singh, can be taken on record as evidence or not, by recourse to Section 33 of the Indian Evidence Act, 1872, and directed the trial court to deliver a fresh judgment within two months thereafter, upon hearing all concerned. It was also held that since the State of Rajasthan has not preferred any appeal against acquittal of Satyaveer, his acquittal would remain undisturbed. Occasion for passing the aforesaid judgment by this court arose because in the originally conducted trial, statement of prosecution witness Abhay Singh, who lodged the FIR, was recorded by the trial court as PW-7 on 17/18.04.1998 and thereafter prosecution filed an application under Section 319 Cr.P.C. on 12.01.1999. The trial court, by accepting that application, took cognizance against co-accused Nihal Singh and Satyaveer and summoned them to join the same trial. While the trial court convicted accused-appellant Surendar and Billu Singh as also co-accused Nihal Singh, but it acquitted co-accused Satyaveer vide common judgment dated 12.08.2004.
(3.) During the course of hearing of aforesaid appeals, two questions were raised before this court, namely:- (i) what is the effect of testimony of Abhay Singh recorded as PW-7; before additional accused was summoned under Section 319 Cr.P.C., whether it is to be treated as previous statement or substantive evidence , and (ii) if the court comes to the conclusion that statement of Abhay Singh is not a substantive evidence and is to be treated as previous statement made by him, whether it can be received in evidence by the court within the ambit of Section 33 of the Indian Evidence Act, 1872 This court held that unless a satisfaction was recorded by the trial court in terms of Section 33 of the Indian Evidence Act that a witness is dead or he cannot be found or is incapable of giving evidence or has been purposely kept away from the court by the accused (being adverse party) or his presence cannot be obtained without any unreasonable amount of delay or expense, statement of Abhay Singh cannot be made admissible. It was owing to this that this court, while setting aside judgment of conviction dated 12.08.2004 remitted the matter to the trial court to hold a preliminary enquiry within one month whether statement of Abhay Singh under Section 33 of the Indian Evidence Act, 1872, can be taken on record as evidence or not, and the trial court was directed to deliver a fresh judgment after de novo trial within two months, upon hearing all concerned.;