JAWAHAR BARUA Vs. STATE

JUDGEMENT

(1.) THIS is an application against an order passed by the S J. Srinagar dated 26 -3 -74 by which he has accepted the prayer by the prosecution to tender the statement of Miss Neta Gaind to sessions file under S. 33 of the Evidence Act.

(2.) IT appears that the accused has been committed to the court of sessions to stand his trial under Ss. 363/366/376 of the Ranbir P. C Before the committing court Miss Neta Gaind and other witnesses had appeared and Neta Gaind was cross -examined by the counsel for the accused. The committing court did not bind over the witness for appearing before the Sessions Court. The prosecution submitted before the learned S. J. that it was not possible for it to obtain the presence of the witnesses without an amount of delay or expense and it would be unreasonable to summon them. In support of its plea the prosecution relied on a letter sent to the learned S. J. by Mr. O. P. Gaind, father of the prosecutrix wherein he had alleged three grounds on the basis of which exemption from attendance of the court was sought for. In the first place it was alleged that Nita Gaind had suffered a serious mental shock as a result of the criminal assault on her by the accused and was advised by the doctor not to appear in the court. Secondly Mr. Gaind stated that the University examinations of the prosecutrix were to start towards the middle of March 1974 and it was therefore impossible for the prosecutrix to appear in the court during that time. Lastly Mr - Gaind took the plea that he had no means to send the prosecutrix all the way from Nepal to Srinagar.

(3.) CERTAIN attempts were made by the learned S. J. to ensure the attendance of the prosecutrix, but they proved futile. The sheet anchor of the argument of the prosecution is that as the prosecutrix was suffering from mental shock and was living in a foreign country, her presence could not be obtained without some amount of delay or expense which in the circumstances would be unreasonable. Perhaps if it were a case of any other witnesses, the court have been justified in taking a more or less liberal view of the matter. In the instant case the accused is facing trial for an offence of abduction and rape which entails severe penalties in law and the proof of which depends mainly on the evidence of the prosecutrix. It is manifest that Miss Gaind is the most material witness for the prosecution, not only on the point of criminal assault but also on the point of age. In these circumstances the S. J. should have recorded more substantial and compelling reasons for transferring her statement to the committing court than those given in the present case. Under the amended Criminal P. C. commitment proceedings have got a very limited function to perform and a Magistrate can commit even without examining any witnesses - In these circumstances even if a witness is examined by a committing court, and for that matter is the most material wit -nesses he has to be cross -examined only for the limired purpose of showing that no prima facie case for commitment has been made our, it is neither the duty of the defence nor the province of the committing magistrate to go into the pros and cons of the matter what can be gone into only at the trial. In these circumstances if the prosecutrix is not produced before the sessions court, then the entire edifice of the prosecution case would crumble to pieces. The learned S J. does not appear to have kept these important considerations in view. It is stated before me that if the prosecutrix would have been produced in court, she would have been confronted with certain documents which would have satisfactorily proved that she was about 18 years of age and by her non -production the accused would thus be deprived of a very important advantage which he would have otherwise gained, as a result of which he would suffer serious prejudice. Even on merits I am not satisfied that a case for tendering the statement of the prosecutrix under S.33 of the Evidence Act has been made out S. 33 is an exception to the general rule and therefore must be construed strictly.