The provisions of Section 299 of the CrPC and Section 33 of the Indian Evidence Act allow for the use of a deceased witness's statement as evidence in the absence of the accused, and the prosecution can take advantage of the statement to prove its case.

JUDGMENT :

Sanjay Dwivedi, J.

1. Heard on the question of admission.

2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of the order dated 24.02.2021 (Annexure-P/4) passed by the trial Court, whereby an application filed by the respondent/State under Section 32 of the Indian Evidence Act, 1872 has been allowed and further directed that the statement of a witness namely Aabid Ali (PW/7) recorded on 02.12.2011 shall be read over in the trial conducted against the petitioner.

3. Facts of the case in short are that an offence was registered against the petitioner along with other co-accused persons, but the petitioner was not arrested for the reason that he was absconded, therefore, the trial was conducted in respect of other co-accused persons who were arrested and tried in the proceeding. Later on, the petitioner was arrested on 06.11.2017 in respect of Crime No. 846/2010 in which the trial was already concluded against the other co-accused persons in which some of the accused were convicted by the trial Court and some were acquitted. During trial, the statement of one of the witnesses namely Aabid Ali (PW/7) was recorded and he was also cross-examined by the other co-accused persons, but as the petitioner was absconding, therefore, Aabid Ali (PW/7) could not be cross-examined on behalf of the petitioner and later on, Aabid Ali (PW/7) died and information in this regard came to the knowledge of the Court on 27.11.2020 when summon was issued him. The judgment in respect of other co-accused persons who participated in the trial had come on 29.04.2014.

The prosecution thereafter moved an application under Section 32 of the Indian Evidence Act, 1872 before the trial Court saying that the prosecution witness Aabid Ali although died, but since he was the star witness, had given statement in regard to the incident, therefore, his statement being very material, required to be taken into evidence.

Pursuant thereto, a reply was filed by the petitioner (accused) stating therein that Aabid Ali died after passing of the judgment by the trial Court and when his evidence was recorded by the trial Court, neither the accused nor his counsel was available, therefore, his statement cannot be taken into account because the petitioner could not exercise his right of cross-examination. It was also stated in the reply that as per the provisions of Section 273 of the Code of Criminal Procedure, the statement of Aabid Ali cannot be read over in the trial conducted against the petitioner.

The trial Court, in turn, allowed the application filed by the respondent/State observing therein that in view of the facts and circumstances, the case would govern with the provisions of Section 299 of the CrPC, but not with the provisions of Section 273 of the CrPC. The trial Court also observed that in view of the provisions of Section 33 of the Indian Evidence Act, the statement of Aabid Ali can be read over against the accused despite the fact that he could not exercise his right of cross-examination as he was absconding and later on, arrested. As per the trial Court, the case would govern with the provisions of sub-section (1) of Section 299 of the CrPC.

4. Criticizing the order passed by the trial Court, learned counsel for the petitioner submits that cross-examination is a right of the accused and since the said right could not be exercised by the petitioner at the time of trial when evidence of Aabid Ali was recorded and after his death, the said statement cannot be used against the petitioner who was being tried by the trial Court after the trial is over in respect of the accused who were arrested and subjected to trial. He further submits that the trial Court has wrongly treated the statement of Aabid Ali as a dying declaration and permitted the prosecution to use the same against the petitioner. In support of his contention, learned counsel for the petitioner has relied