SHEORAJ SINGH Vs. EMPEROR

JUDGEMENT

(1.) In this appeal the first question which we have to decide is the admissibility of the evidence of two witnesses who are absent. It is necessary to dispose of this question first because their evidence has formed part of the material on which the case has been decided and if we agree with the appellant that it ought not to have been considered at all, we ought not to include their evidence as part of the relevant subject-matter for the appeal. The learned Judge in the Court below has treated the evidence as though given under Section 512 and his mind has been diverted from the real difficulty by reason of the fact that the defence objected under Section 512 that it was not shown that the accused was absconding at the time when the statement of the witnesses were taken and the Judge decided against that objection on the ground that although the declaration that the accused was absconding was subsequent, the fact that ha absconded was prior to the taking of the evidence. We do not disagree with him. It is not necessary to decide the point to-day, whether if evidence is taken under Section 512, the fact of the accused having absconded may be established by any means or proof known to the law, even although the formal declaration of his having absconded is not made until later. But we may, at any rate, add as a general rule it is better that the finding that the accused has absconded should be recorded as a condition precedent by the Magistrate who takes the evidence under Section 512 as was done in the case cited, Emperor V/s. Bhagwati AIR 1918 All 60. But the real point before us is this. The statements of these two witnesses were not recorded under Section 512 at all. They were called in the ordinary course of the case before the committing Magistrate and before the sessions as part of the case against four men who were then under trial. They may have mentioned-no doubt they did mention the name of the present appellant who is said to have been absconding at the time-but the attention of the Court was not directed to the case against that absconding person, nor was the evidence given in any sense as evidence against that absconding person.

(2.) The question of law therefore is this. When two witnesses who have given evidence at a previous trial against persons then on their trial happen to have referred in the course of their evidence at the trial to a person who is absconding and is subsequently tried, can their statements be read at the subsequent trial of the accused who was then absconding, merely because they happen to be absent and cannot give evidence? In other words, can evidence given at a trial for another purpose be by an ex post facto operation converted into an equivalent of what is called a deposition taken under Section 512 when as a matter of fact everybody knows it was nothing of the kind, and at the time they gave their evidence the question of recording a deposition under Section 512 was never intended.

(3.) We think clearly not. The provisions of the statute forbid it. The objection to the evidence is the fundamental objection, that statements made against a person in his absence cannot be used as evidence against, him in a criminal trial. Exceptions to that fundamental rule can only be created by statute and when a statute permits something to be done which a fundamental rule prohibits, that thing can only be done by strict compliance of the statute which creates the exception. On grounds of ordinary justice there would be great objection to the practice. As my brother has pointed out, the mind of the Court and of the counsel for the prosecution at the time when such witnesses would be giving their evidence in the box would not be directed at all to the question of the guilt or otherwise of the absconding person, and many things which ought to be asked might be omitted and a fortiori questions in cross-examination asked by the four persons who are on their trial or by the lawyer with the express purpose of throwing guilt upon the absent party might extract from such witnesses statements very prejudicial to the absent party which could not be permitted if the witnesses were being properly examined under Section 512.