Witness statements recorded in the absence of an absconded accused can be admissible in subsequent trials if the witness is incapable of giving evidence.

ORDER

1. This Petition has been filed under Section 482 Cr.P.C. being aggrieved of the order dated 6-1-2021 in Sessions Case No.45/2002, State Vs. Smt. Vijay Yadav, passed by Additional Sessions Judge Women Atrocities Cases, Jaipur Metropolitan-I, Jaipur whereby the application for reading the statements of witness Phool Singh recorded during trial of co-accused Jogendra Singh, against present accused respondent who absconded during previous trial, has been dismissed and order dated 6-4-2021 dismissing the application for recalling the said order dated 6-1-2021.

2. Heard learned counsel for both the sides and perused the material available on record.

3. Learned counsel for the petitioner submits that in this case cognizance under Sections 498A and 304B IPC was taken on 18-9-2001 against accused respondent Vijay Yadav, her son Yogesh, and her husband Jogendra Singh. During trial the present accused respondent Vijay Yadav absconded. She was declared absconder on 28-2-2002 and standing arrest warrant was issued against her. Proceedings under Sections 82 and 83 CrPC were also initiated. The statements of witness Phool Singh, the father of deceased were recorded during the trial of co-accused Jogendra Singh and after trial by judgment dated 2-3-2005 he was convicted for offences under Sections 498A and 304B IPC. The present accused respondent Vijay Yadav surrendered before the trial court on 5-6-2018. During trial against the present accused respondent Vijay Yadav above said witness Phool Singh was produced before the trial court and on his examination by the court and learned Public Prosecutor it was found that he is not capable of hearing and speaking. Medical reports were also produced before the trial court. In such a situation an application was filed by the learned Public Prosecutor and the mother of the deceased Renuka to read the statements of Phool Singh recorded during the trial of co-accused Jogendra Singh. The statements of Phool Singh so recorded in earlier proceedings should be read in evidence under Section 299 CrPC and Section 33 of the Evidence Act, but the application of the prosecution and the petitioner have been wrongly dismissed by the trial court. The petition deserves to be allowed. Reliance has been placed on Mohammed Shafik @ Sheikh Salim Vs. State of Rajasthan [2012(4) WLC (Raj.) 9]. The petition should be allowed.

4. Learned Public Prosecutor has supported the contention of learned counsel for the petitioner.

5. Learned counsel for respondent has opposed the petition with the submission that statements of Phool Singh were recorded in the absence of the present accused respondent Vijay Yadav. She had no opportunity to cross examine him. It is also not established that he is permanently incapable to give evidence. The earlier proceedings were not between the same parties. Thus the pre requisite conditions of Section 33 of the Evidence Act have not been fulfilled and accordingly the learned trial court has rightly dismissed the application filed by the prosecution and the complainant.

It has been further contended that the present accused respondent Vijay Yadav was not declared absconder and she herself surrendered before the trial court whereupon the proceedings under Sections 82 and 83 were dropped. No evidence against her was recorded under Section 299 CrPC under the orders of the High Court. She had no opportunity to cross examine the witness Phool Singh. Therefore, his evidence cannot be read under Section 299 CrPC also. The petition deserves to be dismissed. Reliance has been placed on Vijay Ranglal Chourasia Vs. State of Gujarat [2014 CriLJ. 3946].

6. Heard. Considered.

7. In order to decide the present controversy, it is relevant to quote Section 299 CrPC and Section 33 Evidence Act, which read as under:-

Section 299 of CrPC:-

"299. 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 t