EMPEROR Vs. SAVLIMIYA MIYABHAI

JUDGEMENT

(1.) After setting out the facts, the judgment proceeded: The prosecution had examined the Mamlatdar in the committing Magistrate's Court and he had produced certain correspondence to the effect that accused No. 2 was suspected of having committed several defalcations as the talati of Lambha. This Mamlatdar was not examined in the Sessions Court, and the Sub- Inspector stated in his evidence that the Mamlatdar was not in Ahmedabad when the trial was going on before the Sessions Court as he had gone to Bombay for training in rationing and that he would not be able to return for a week. It was only on the strength of that evidence that the learned Sessions Judge brought on record the Mamlatdar's evidence before the committing Magistrate under Section 33 of the Indian Evidence Act, 1872, and he seems to have; done so readily because the defence advocates had no objection to its being brought on the record. Along with the evidence of the Mamlatdar the learned Judge admitted in evidence also the various documents which he had produced in the committing Magistrate's Court. The prosecution mainly relied on that evidence for proving motive for the crime, viz. the defalcations committed by accused No. 2.

(2.) It is at this stage necessary to examine whether the deposition of the Mamlatdar was legally admissible in evidence in the Sessions Court. Under Section 33 of the Indian Evidence Act evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states when the presence of the witness cannot be obtained, among other reasons, without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Now, the only ground on which the learned Judge admitted the evidence of the Mamlatdar was that he had gone to Bombay for taking training in rationing and would not return within a week. That ground is, in my opinion, utterly inadequate for satisfying the provisions of Section 33. The Mamlatdar could have been summoned to appear at Ahmedabad for a day. It is only a night's journey from Bombay to Ahmedabad and there is nothing to show that he would not have been released from his work in Bombay for a day. In any case the case could have been adjourned for a week. The accused had not cross-examined him in the committing Magistrate's Court and they lost that opportunity at the trial. As a result, his untested deposition and the correspondence became part of the evidence against the accused. The learned Judge did not record any reasons to show that he was satisfied that the Mamlatdar's presence could not be procured without undue expense or delay. In my opinion, he ought to have recorded the reasons if he was so satisfied so that the appellate Court could see whether the section was properly applied. The fact that the advocates for the defence consented to the deposition of the Mamlatdar being brought on the record cannot make it admissible if it is not otherwise so. An apposite authority on this point, with which I agree, is the decision in Re Annavi Muthiriyan (1915) I.L.R. 39 Mad. 449. Certain evidence was there admitted under Section 33 without its provisions being complied with. It was held that before admitting a deposition given on a previous occasion, a Judge must satisfy himself that the presence of the witness cannot be obtained without an amount of delay or expense which he considers to be unreasonable; that it is not enough to have the statement of the Public Prosecutor to that effect and even consent or want of objection on the part of the accused's pleader to the reception of such evidence will not, in spite of Section 58 of the Indian Evidence Act, entitle the Court to admit it under Section 33. That is exactly the circumstance in the present case also. It was further held in that case that where a Sessions Judge convicted the accused relying mainly upon such inadmissible evidence as above described and did not warn the jury against acting on the same, the conviction would be set aside as illegal. In the present case also the learned Judge in his summing up to the jury placed before them the Mamlatdar's evidence and also the correspondence which he had produced in proof of the prosecution case about motive. We do not know that the jurors did not act upon this evidence when they brought in a verdict of guilty. It is most probable that their minds were influenced by the Mamlatdar's deposition and the correspondence showing defalcations by accused No. 2, because as against him the only evidence worth the name was that of the confession of accused No. 1, and the evidence of motive mainly consisting of the deposition of the Mamlatdar and the documents which he produced. As regards accused No. 1 also the question of the motive for the crime would be a relevant fact, and it is therefore probable that the verdict against him also might have been influenced by that evidence. In these circumstances the only result, in my opinion, is that as held in Re Annavi Muthiriyan, the conviction based upon such a verdict is illegal and must be set aside.

(3.) As to what should happen on the setting aside of the verdict, we have a recent decision of our High Court in Emperor V/s. Ramchandra (1932) 35 Bom. L.R.174. It is held there that in the case of a trial by jury, the appellate Court has power, in the event of any misdirection1 or admission of inadmissible evidence, either to convict or acquit the accused according as the evidence is or is not sufficient for conviction ; or, where the facts have to be determined and the evidence is of such a character as to render it difficult to pronounce any opinion on its character without hearing the witnesses, a new trial may be ordered. It is true that on this point there is a difference of opinion between the High Courts, but we are bound by the view taken by our Court, that it is open to the appellate Court, if it thinks proper on the facts before it, to convict or acquit the accused according as the admissible evidence is or is not sufficient. We have considered this position on the evidence in the present case, and we think that on the facts proved it is not necessary to direct a new trial of the two accused, because in our opinion accused No. 1 is guilty on the admissible evidence and there is reasonable doubt whether any new evidence of motive can go to corroborate the confession of accused No. 1 against accused No. 2. We have, therefore, appreciated the evidence apart from the verdict of the jury, and have heard the learned advocates on behalf of both the accused on the whole of the admissible evidence in the case. [After dealing with the evidence the judgment continued :]