KARMADHAN LAMA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THE accused-appellant has been convicted under Section 409 of the Indian Penal Code in five criminal cases being Criminal Cases Nos 50, 53 54. 55 and 56 of 1971 and has been sentenced to suffer rigorous imprisonment for various terms, which are to run concurrently, and also to pay fines of various amounts on the charge that being a Mondal appointed to collect land-revenue and as such being entrusted with the amounts, so collected, he committed criminal breach of trust in respect of such amounts. As the alleged breach of trust related to five different periods in five different years, not amenable to one trial, five different cases were launched and all of them, as already noted, have ended in conviction and the accused has preferred five separate appeals in respect of those five cases. This judgment will govern all the five appeals, being Criminal Appeals Nos. 3, 4, 5, 6 and 7 of 1977.

(2.) THE prosecution examined one Dhanlal Rai in all these five cases as one of its material witnesses who stated that as one of the Karbaris of the accused he collected on behalf of the accused various amounts, mentioned by him in his deposition, from different tenants and paid all these amounts to the accused. By this evidence the prosecution has tried to prove that the accused collected these amounts through this witness and was thus entrusted with the amounts so collected. But this witness was not tendered for cross-examination by the accused after charge was framed as it was reported that he had died by then.

(3.) THE learned Advocate-General has urged that as the accused had the right and the opportunity to cross-examine this witness before charge, his evidence is admissible under Section 33 of the Evidence Act. There is no doubt that under Section 33 of the Evidence Act, the evidence in a judicial proceedings of a person who has died is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceedings for the purpose of proving the truth of the facts stated in such evidence provided that the adverse party had the right and opportunity to cross-examine the deponent and that the other conditions laid down in Section 33 of the Evidence Act are satisfied. It is not disputed that the accused was given the opportunity to cross-examine this witness when he was examined before the framing of charge and there is also a clear note to that effect by the learned Sessions Judge in the deposition-sheets of this witness. But can it be said that the accused in this case had also the right to cross-examine the witness when he deposed to bring the case within the provisions of Section 33 of the Evidence Act ?