Palraj [P.W.12], Kayalvizhi [the learned Judicial Magistrate] who conducted test identification parade [P.W.13], Subramaniam, S/o.Ramalingam [P.W.11], Sakthivel [P.W.16], and Chandrasekaran [P.W.17] were not examined during trial in S.C.No.11 of 2003. Similarly, few witnesses examined in S.C.No.11 of 2003 were not examined in the other case. As we have noticed, several incriminating documents including the complaint and the FIR exhibited in S.C.No.61 of 1997 were not exhibited in S.C.No.11 of 2003. But, curiously, the learned Additional Sessions Judge has considered the evidences, both oral and documentary, let in , in both cases including the defence witnesses cumulatively to deliver a common judgement holding the accused involved in both the cases guilty of charges framed against them. It is shocking to note that the evidences which were let in in one case were used against the accused in the other case to hold him/them guilty. It is the fundamental principle of criminal law that the evidence recorded behind the back of an accused that too, in a different case is of no evidence against him in the case in which he happens to be an accused. It is also yet another fundamental principle of criminal law that even in respect of evidence let in in a particular case , unless the same is put to the accused under Section 313 of Cr.P.C. the same cannot be used against him. But, it is highly unfortunate that the oral as well as documentary evidences let in in one case have been used in the other case. It is needless to point out that the appellant/accused in S.C.NO.11 of 2003 had no occasion at all to know the oral evidence deposed to by the witnesses and the documents exhibited in the other case. Similarly, the accused in S.C.No.61 of 1997 had no occasion to know the evidence, both oral and documentary, let in in S.C.NO.11 of 2003. The accused in one case had, therefore, no occasion to cross examine or challenge the evidence let in in the other case and vice versa. Thus, it is very obvious that the judgement of the trial court convicting the accused both in S.C.No.61 of 1997 and S.C.No.11 of 2003 suffers from serious illegality which vitiates the judgements, but not the entire trials. In such circumstances, this court may have to set aside the judgements and remit both the cases to the trial court to deliver judgements afresh separately in both the cases on considering the evidence let in in the respective case. But, having regard to the time lapse as the occurrence was in the year 1996, I am of the considered view that the interest of justice would be best served, if I examine the evidences let in in each case separately to find out whether the conviction imposed on the respective accused could be sustained or not. In such view of the matter, I do not propose to remit both the cases for delivering judgement afresh in each case separately. Instead, I propose to deal with the appeals relating to S.C.No.61 of 1997 and the appeal relating to S.C.No.11 of 1997 separately strictly confining to the evidence let in in the respective case. Accordingly, I propose to deliver a judgement in Criminal Appeal Nos.656, 163, 522, 177, 407 and 524 of 2004 separately. This judgement governs only Crl.A.No.264 of 2004 arising out of S.C.No.11 of 2003.
