Evidence In A Trial Against An Accused Does Not Have Any Bearing Upon A Co-Accused In A Separate Trial For The Commission Of Same Offence: Supreme Court

The evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence, the Supreme Court observed in a judgment delivered on Friday.

In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law.

The bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed that the scope of the appellate court's power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal.

In this case, the Trial Court vide separate judgments acquitted all the six accused in a crime registered under Customs Act. However, the High Court allowed the appeal and convicted them all.

Before the Apex Court, it was submitted that both the appeals arose out of the two separate trials and two separate judgments but the High Court considered the evidence of only one case and that too without disclosing of which case so as to record conviction of all the six accused in both the appeals. Therefore, the contention of the appellant-accused was that the High Court committed a serious error of law in recording conviction at least in one of the cases without considering the evidence recorded in the trial of that case. The Customs, on the other hand, contended that as the evidence in both the cases were identical, no serious error could be alleged as no prejudice has been caused to the appellants.

Thus the issue considered in this case was whether the evidence recorded in a separate trial of co-accused 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.

At, the outset, the court noted the following statutory provisions:

1. Section 273 of Cr.P.C. provides that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his attendance is dispensed with, in the presence of his pleader
2. The exception of this provision finds place in section 205 of Cr.P.C. wherein personal attendance of accused is dispensed with and he is permitted to appear by his pleader and also in section 299 of Cr.P.C., which provides for recording of evidence in the absence of the accused under certain eventualities like absconding of accused or commission of an offence punishable with death or imprisonment for life by some person or persons unknown. However, this exception has few conditions to be strictly followed by the trial court and prosecution. Besides such an exception, the basic principle of recording evidence in presence of the accused is imperative.
3. Section 278 of Cr.P.C. provides that as soon as the evidence of each witness in a criminal trial is taken under section 275 or 276, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Section 279 of the Cr.P.C. also provides for interpretation of evidence to the accused in open court, in case he is present and such evidence is given in a language not understood by him.
4. In the Evidence Act, 1872, section 33 provides relevancy of certain evidence for proving, the truth of facts stated therein, in any subsequent proceeding, according to which evidence given by a witness is treated to be relevant in a subsequent proceeding or at a later stage in the same proceeding under certain eventualities.

Taking note of the above provisions and also two judgment on this point, the bench observed thus:

39. The provisions of law and the essence of case-laws, as discussed above, 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. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.

40. The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.

Therefore, the court remanded these matters to the High Court for a fresh decision.

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