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2021 (11) TMI 73 - SC - CustomsLaw for trial of the cross cases - Raid - whether the evidence recorded in a separate trial of coaccused can be read and considered by the appellate court in a criminal appeal arising out of another separate trial conducted against another accused, though for the commission of the same offence? - HELD THAT:- It is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously - However, we are not concerned with cross-cases but are concerned with an eventuality of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding. A three-Judge Bench of this court in the case of KARAN SINGH VERSUS STATE OF MADHYA PRADESH [1964 (11) TMI 120 - SUPREME COURT] was confronted with the question, as to, whether, in view of the acquittal of the absconding co-accused in a separate trial from which there had been no appeal, it was open to the High Court to hold that the accused appellant was guilty of murder under section 302 read with section 34 IPC. Merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same - The provisions of law and the essence of case-laws, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused’s right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons. There is one more angle to be considered i.e. whether to remand one case to the High Court for fresh decision i.e. the case in which the evidence was not considered and we may proceed to decide the other case here - there cannot be a severance of the judgment particularly when it arises in a criminal case, where the rights of the accused are as important as the rights of a victim. Therefore, it would be in the fitness of things and in the interest of the parties that the matters are remanded to the High Court for a fresh decision in accordance with law. All the questions of law and fact would remain open before the High Court and the parties would be free to address the High Court on all issues both on law and facts - Appeal allowed.
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