AZIMUDDY Vs. EMPEROR

JUDGEMENT

(1.) The appellants before us are two in number. They were charged along with four other accused persons before the learned 2nd Additional Sessions Judge of Bakerganj and a jury with having committed offences under Secs.120B, 395 and 396 of the Indian Penal Code. The jury did not bring in a verdict against the accused under Section 396, but, so far as the two appellants are concerned, they brought in a verdict of gulty under Secs.395 and 120B, Indian Penal Code. The learned Judge agreeing with the verdict of the jury sentenced each of the two appellants to undergo seven years rigorous imprisonment.

(2.) In this appeal which has been argued by Mr. Taluqdar five points have been taken for the purpose of showing that the learned Judge's charge to the jury is open to the comment that there have been misdirections in it and for the purpose of inducing us to interfere with the verdict of the jury.

(3.) Mr. Taluqdar's first point is that in the events which happened the deposition of the witness named Jamila Khatun could not be used at the Sessions trial as the accused had no opportunity of cross-examining this witness before she died. It appears that a few days after the date when Jamila was examined before the committing Magistrate, she died. At the time when her deposition was taken before the committing Magistrate there can be no question that the accused had the right and opportunity of cross-examining her in terms of Section 33 of the Evidence Act. The record shows that the accused did not exercise their right and did not avail themselves of the opportunity of cross-examining this witness immediately after her examination-in-chief before the committing Magistrate had been finished. That being so, having regard to the provisions of Section 33 of the Evidence Act, in my opinion, there is no substance whatsoever in this contention, and it must be negatived.