STATE OF H P Vs. SHIV CHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment, rendered on 5.8.2011, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar, H.P., in Sessions Trial No.20 of 2003/2011, whereby the appellant has been acquitted of the offence punishable under Sections 365 read with Section 34, 376 of the Indian Penal Code and Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956,.

(2.) THE brief facts, of the case, are, that the accused, namely, Shiv Chand and Lalita Tamang, are alleged to have committed offences under Sections 363, 366, 368, 120 -B of the Indian Penal Code and Section 6 of the Immoral Traffic (Prevention) Act, 1956 recorded, in, F.I.R.No.53 of 2002, registered on 29.3.2002. However, accused Shiv Chand absconded and could not be apprehended. He was under orders rendered, on, 15.3.2003 declared a proclaimed offender. On accused Shiv Chand coming to be declared a proclaimed offender, the learned committal Court proceeded to, in the absence of accused Shiv Chand, on the Investigating Officer filing a report under Section 173 of the Code of Criminal Procedure, commit co -accused Lalita Tamang for hers standing trial before the learned Sessions Judge, Kinnuar at Rampur for hers having committed under Sections 363, 366, 368, 120 - B of the Indian Penal Code and Section 6 of the Immoral Traffic (Prevention) Act, 1956, aforesaid. She faced the ordeal of the trial and on conclusion and consummation, of, the trial, to, which she was subjected to, she was convicted and sentenced for hers having allegedly committed the offences punishable under Sections 365, 368, 109, 376 read with Section 34 of the IPC and Sections 5 and 6 of the Immoral Traffic (Prevention), Act, 1956. In the meantime, co -accused Shiv Chand was apprehended and produced for the first time, on, 31.8.2010 before the Learned Sessions Judge, Kinnaur Division, at, Rampur Bushahr. On apprehension and production of co -accused Shiv Chand, who during the trial of co -accused Lalita Tamang remained absent and for whose non -apprehension, during the entire criminal proceedings launched against co -accused Lalita Tamang, he was, hence, omitted to be subjected to trial, obviously, on his apprehension and production before the Court, the learned Sessions Judge, Kinnaur Division at Rampur Bushahr, on 7.10.2010, remanded the case for completion of the committal proceedings, to, the learned Judicial Magistrate, 1st Class, Rampur Bhushahr. The learned Judicial Magistrate 1st Class, on 20.10.2010, on completing the committal proceedings qua accused Shiv Chand, committed the accused Shiv Chand for trial, to the Court of learned Sessions Judge, Kinnaur Division at Rampur.

(3.) WITHOUT going into the merits of this appeal, the moot point, which is to be decided, is, whether the procedure and exercise adopted by the learned Sessions Judge, in, proceeding to read the testimonies of the prosecution witnesses, recorded during the trial of co -accused Lalita Tamang, in the absence of the accused Shiv Cahnd, merely, on the basis his acquiescence, to such statements recorded in his absence, being read against him, comprises infraction of the procedure ordained by law. Consequently, it has to be determined whether the trial vis - -vis Shiv Chand, stands vitiated, hence, necessitating or warranting interference by this Court with the impugned judgment rendered against co -accused Shiv Chand, sequeling, the rendition of a direction for the remanding of the matter to the learned Sessions Judge for the re -recording of the testimonies of the prosecution witnesses.