JUDGMENT :

SANJAY K. AGRAWAL, J.

1. Shyambai, Kuntibai (acquitted co-accused persons) and present appellant Ashok Kenwat were apprehended for offences under Sections 302 & 201 read with Section 34 of the IPC alleging that on 23-6-2012 at Village Bandabri, Police Station Basna, they have in furtherance of their common intention, assaulted Lakhpati, S/o Ganeshram Kanwar (now deceased) by blunt side of axe and in order to screen themselves from the aforesaid offence, they left the dead body near the road and thereby committed the offence. Upon investigation, accused Shyambai & Kuntibai were charge-sheeted and the present appellant was also charge-sheeted but in abscondence. Consequently, Shyambai & Kuntibai were tried in Sessions Trial No. 91/2012 and acquitted by judgment dated 13-3-2013 passed by the 1st Additional Sessions Judge, Mahasamund in that trial in which two witnesses namely, Tilakram & Punitram were also examined by the then trial Court. Thereafter, the present appellant was apprehended on 18/19-6-2013 and supplementary charge-sheet was filed on 2-7-2013 and accordingly, charges were framed against the present appellant on 24-10-2013 and he was put to trial by the Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No. 8/2014 in which except one memorandum of the present appellant dated 18-6-2013 (Ex.P-3), all the witnesses from PW-1 to PW-11 were examined afresh and Ex.P-3 - memorandum of the present appellant, was brought on record. On 18-6-2013, the present appellant was arrested vide arrest memo Ex.P-22. However, rest of the documents of the earlier trial were relied upon by the trial Court in this sessions trial initiated against the present appellant.

2. Though the trial Court has recorded the statements of all the witnesses separately afresh in this trial, but by order dated 5-5- 2015, the trial Court held that counsel appearing for the accused was asked to cross-examine the witnesses in the present trial with reference to their previous statements made in S.T. No. 91/2012, however, he expressed that he does not wish to cross-examine them and thereafter, the trial Court relying upon the earlier statements of the two witnesses namely, Tilakram & Punitram examined in S.T. No. 91/2012 against the two coaccused persons, convicted the appellant herein for offences under Sections 302 & 201 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs. 2,000/- in default, additional rigorous imprisonment for one year and rigorous imprisonment for thee years & fine of Rs. 1,000/- in default, additional rigorous imprisonment for six months, respectively, by judgment dated 18-6-2015 passed by the Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No. 8/2014, against which this appeal has been preferred by the appellant herein under Section 374(2) of the Cr.P.C.

3. Mrs. Indira Tripathi, learned counsel appearing for the appellant, would submit that the trial Court is absolutely unjustified in taking into account the previous statements of Tilakram (PW-2) & Punitram (PW-5) in the present case, as they have not supported the case of the prosecution and one of the witnesses Punitram (PW-5) has stated that he has not seen the incident, as such, the appellant had no right and opportunity to cross-examine these two witnesses in the earlier trial, as he was not appearing in that trial, therefore, by virtue of the second proviso to Section 33 of the Indian Evidence Act, 1872, the previous statements of these two witnesses were inadmissible in evidence and the trial Court has grossly erred in applying Section 33 relying upon the statements of the witnesses namely, Tilakram (PW-2) & Punitram (PW-5), however, it is not the case where Section 299 of the Code of Criminal Procedure, 1973 was applied as neither the present accused was declared absconded nor it has been recorded that the witnesses were not found, as they have been examined conveniently in this sessions trial.