MOKSHED SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) In this appeal it is objected on behalf of the appellants that the learned Judge has misread the evidence in some portions and has wrongly admitted the evidence of a certain witness under Section 33, Evidence Act. This is the only important point taken before us. It appears that the dacoity with which the accused were charged was committed after midnight of 6th July 1929. The information was lodged at the thana the following morning by a man named Sobhan. He did not name any of the dacoits nor did he say that some of them had been recognized. The first information was recorded by a Sub-Inspector of the name of Abdul Jabbar Chaudhury. The evidence shows that on the night of 7 July 1929 another Sub- Inspector by the name of Birendra Nath Pal took over the investigation from Abdul Jabbar Chaudhury. Abdul Jabbar was not examined in the committing Magistrate's Court because he had died before the case was heard. Birendra Nath Pal was examined by the committing Magistrate. He was not examined before the Sessions Judge but his evidence was admitted by the learned Judge under Section 33, Evidence Act. There is nothing on the record to show in what circumstances or on what ground this evidence was admitted by the order sheet we find under order dated 14 January 1930 the following notes: Then the evidence of Babu Birendra Nath Pal (P.W. 10) in the lower Court put in by the prosecution under Section 83, Evidence Act.

(2.) There is no order by the Judge admitting the evidence on the ground that he was satisfied under that section that the witness was not available for examination before him. In the charge the learned Judge has expressed himself thus: In the morning at 9 a.m. Sivan (P.W. 6) want to the than and lodged F.I.R. Ex. 5., The daroga who recorded it is not available and his evidence in the lower Court has had to be pat in and used hare as evidence.

(3.) In this sentence the learned Judge has bean guilty of a number of inaccuracies. The first information report is not Ex. 5 in the case but Ex. 2. Ex. 5 is the search report which was prepared and signed by Birendrmath Pal. Then the statement that the Daroga who recorded it (meaning Birendra) is not available is not correct because the daroga who recorded it was Abdul Jabbar who is dead. Then the learned Judge proceeds to say : "The daroga went to Rakhal's house on 7 July." If by this daroga he means Birendranath Pal the evidence shows that Birendra went to his house on 8 July. The charge is therefore vitated by a confusion which has beau made by the learned Judge in describing the incidents shortly after the dacoity. Bat the greater defect is with regard to the learned Judge's admission of the evidence under Section 33 Evidence Act. The record does not show that there were such materials before him as to satisfy him that the presence of witness Birendranath Pal could not be secured. It has been held from early times that in order to enable a Court to admit the deposition of a witness under Section 33, Evidence Act, the ground for its admission should be stated fully and clearly to enable the flight Court to judge of its propriety.