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Karmadhan Lama Vs. State of Sikkim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1979CriLJ610
AppellantKarmadhan Lama
RespondentState of Sikkim
Cases ReferredRajeswar Prasad Misra v. State of West Bengal
Excerpt:
- - 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. election tribunal [1955]2scr1 be ever present to the mind the fact that our laws of procedure are grounded on principles of natural justice which re- quire that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and liberty.....a.m. bhattacharjee, j.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.....
Judgment:

A.M. Bhattacharjee, J.

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 ?

4. In other words, can it be said that an accused in a warrant, case has both the right and the opportunity to cross-examine a witness before a charge is framed It should be noted here that in Sikkim the law contained in the Cri- minal Procedure Code, 1898, Is still the law relating to criminal procedure and that in trial of warrant-cases the provisions of Section 252 and the succeeding sections of Chap. XXI of the said Code are followed even when such cases are instituted on police reports. Section 252 to Section 254 of the Code, which deal with taking of evidence before charge, discharge of accused and framing of charge, do not mention about any cross-examination by the accused and it is only in Section 256, which comes into play when the accused refuses to plead or does not plead or claims to be tried that express mention has been made about the right of the accused to cross-examine the witnesses for the prosecution. There is a sharp divergence of opinion among the different High Courts as to whether an accused in a warrant case (not instituted on police report) can be said to have a right to cross-examine the prosecution witnesses before a charge is framed. The Calcutta and the Patna High Courts have held that the accused has no such right while the Allahabad, the Bombay, the Madras and some other High Courts have held that the accused has such a right. Relying on the decisions holding the latter view the learned Advocate-General has urged that the word 'evidence' in Sections 250 to 254 of the Criminal Procedure Code, 1898, obviously means not only the examination-in-chief of the prosecution witnesses but also the cross-examination and re-examination, if any, and the learned Advocate-General has further urged that as under Section 138 of the Evidence Act, an examination-in-chief is to be followed by cross-examination, if the adverse party so desires, the accused must be held to have a right to cross-examine when the prosecution witnesses are examined before charge in his presence. Section 138, Evidence Act, which deals with the order of examination of witnesses, no doubt, provides that 'witnesses shall first be examined-in-chief, then (if the adverse party so desires) cross-examined.' The expression used is 'then' and not 'immediately' or 'forthwith' and therefore, examination of & witness-in-chief before charge and then his cross-examination after charge will not amount to any non-compliance of the provisions of the section and, therefore from the provisions of Section 138 of the Evidence Act only it cannot be concluded that the accused has a right to cross-examine the prosecution witness before charge immediately after such witnesses are examined-in-chief.

5. If a right to cross-examine has got to be invariably inferred from the use of the word 'evidence' in Sections 252 to 254 of the Code of Criminal Procedure, 1898. read in the light of the provisions of Section 138 of the Evidence Act, then it is difficult to understand why in the case of taking evidence in a commitment proceeding and framing of charge under the provisions of Sections 208 to 210 of the Code, which also use the word 'evidence' and can be read along with and in the light on S, 138 of the Evidence Act, an express provision had to be made for cross-examination of the prosecution witnesses by the accused in Section 208 (2) before a charge is framed under Section 210. At the same time, if a right to cross-examine is to be inferred only from the provisions expressly conferring such right, as in Section 208, Section 256 etc., then it is also difficult to understand how the accused can at all cross-examine any prosecution witnesses in a trial of summons-cases under Chapter XX or in a Sessions trial under Chapter XXIII, where no express provisions have been made for cross-examination of the prosecution witnesses by the accused. If it is to be held, as has been held by the Calcutta and the Patna High Courts, that the accused has the. right to cross-ex--amine the prosecution witnesses only after the charge is framed as it is only at that stage a right has been expressly conferred by Section 256, then it is to be held that an accused has no right to cross-examine the prosecution witnesses in any trial of summons cases under Chapter XX or trial of Sessions cases under Chapter XXIII, as no such right has been expressly conferred at any stage of such trials. Again, in Sessions trial, Section 286, dealing with the examination of the prosecution witnesses makes no reference about cross-examination of the prosecution witnesses by the accused, but Section 290, dealing with defence witnesses, expressly refers to cross-examination of defence witnesses; but from that no one would surely contend for a moment that while the accused has no right to cross-examine the prosecution witnesses, the prosecution has a right to cross-examine the defence witnesses.

6. There must, as Vivian Bose, J., observed in Sangram Singh v. Election Tribunal : [1955]2SCR1 be ever present to the mind the fact that our laws of procedure are grounded on principles of natural justice which re- quire that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and liberty should not continue in their absence and that they should not be precluded from participating in them. The law contained in the Code of Criminal Procedure, 1898, which, as already noted, is till now the law relating to Criminal Procedure in Sikkim, being 'procedure', that is, something designed to facilitate justice and to further its ends, it would be startling if it is held that the accused shall not be entitled to cross-examine the prosecution witnesses before the charge, simply because such a right has not been conferred in express terms, even though their statements are likely to affect the accused very seriously in the shape of a charge being framed against him. As has been observed by the Supreme Court in State of Karnataka v. L. Munniswamy : 1977CriLJ1125 , 'the order of framing a charge affects the person's liberty substantially' and therefore, it is the duty of the Court to act judicially before framing a charge and if I may add, to hear the other party, audi alteram partem, is a sine qua non of a judicial hearing and the accused cannot be said to have been given a hearing in any judicial proceeding where he is not allowed to cross-examine the witnesses deposing against him.

7. To me the position appears to be that under the law of Criminal Procedure, being the letters of the Code supplemented by the principles of natural justice, the accused cannot but be allowed to cross-examine witnesses, if he so desires, even before a charge is framed. Even the Calcutta cases, according to which the accused has no right to cross-examine before charge, lay down that the accused should be given opportunity to cross-examine before a charge is framed and in S. C. Mitter v. State : AIR1950Cal435 Dasgupta, J.. (as his Lordship then was) observed that his Lordship could not 'think of a case where the Magistrate will be justified in not allowing the accused to cross-examine the witnesses before charge', but that, however, according to his Lordship, 'is not the same thing as a right under the law'. These observations have been referred to with approval in another Division Bench decision of the Calcutta High Court in Brahamaehari v. Anath Bandhu : AIR1954Cal395 , which is also another authority of the Calcutta High Court for the view that the accused in a warrant case has no right to cross-examine the prosecution witnesses before a charge is framed under Section 254. It is difficult to understand as to how the accused can be said to have no right to cross-examine before charge, if under the law the Magistrate has the duty to allow the accused to cross-examine before charge in every case. If the Magistrate has such a duty under the law and fails to do his duty in a given case, the accused can surely move the higher Courts for an order directing the Magistrate to do his duty and to allow the accused to cross-examine. If the accused has a right to enforce the compliance by the Magistrate of his duty to allow the accused to cross-examine, I do not know why it cannot be said that the accused has a right to cross-examine unless we decide to indulge in unfruitful legal verbiage.

8. I have no doubt in my mind that if a right of the accused to cross-examine the prosecution witnesses is to be implied in a trial of a summons-case when evidence for the prosecution is taken under Section 244 or in a trial of a Sessions case when prosecution witnesses are examined under Section 286 (2), such a right to cross-examine the prosecution witnesses must also be implied in a warrant case when witnesses are examined under Section 252 and before the framing of a charge, which, as observed by the Supreme Court in Munniswamy's case noted above 1977 Cri LJ 1125 (SC) substantially affects his liberty. Any interpretation which will make the accused a helpless onlooker when a charge affecting his life or liberty is being framed must be rejected as abhorrent to the principles of natural justice, on which, as the Supreme Court observed in Sangram Singh's case noted above : [1955]2SCR1 , 'our laws of procedure are grounded'. I am, Therefore, of the opinion, that under the law the accused can claim to cross-examine the-prosecution witnesses before charge, a 'claim which the Magistrate cannot refuse and which therefore amounts to a Tight of cross-examination within the meaning of Section 33 of the Evidence 'Act and therefore, if in such a case the accused is given the opportunity to exercise that right of cross-examination, the evidence of the witness becomes admissible under Section 33 of the Evidence Act, whether or not the accused exercised the right and utilised the opportunity, if the other conditions of the Section are satisfied.

9. In this case, therefore, if it has been proved that the witness Dhanlal Rai had died, the other conditions neces- sary to render his evidence admissible under Section 33 of the Evidence Act can be said to have been satisfied. But can it be said that it has been satisfactorily proved that Dhanlal was dead at the relevant time. There is only a note in the orders dated 14-6-76 and 6-9-76 that 'P. W. Dhanlal is reported to have died'. Relying on the decision of the Patna High Court in Srikishun Jhunjhunwala v. Emperor (AIR 1946 Pat 384): 47 Cri LJ 614 the learned Advocate-General urged that in such a case if the Court is informed that the witness is dead it is not incumbent upon the Court to require the proof of the death of the witness, unless; it is suggested by the other party that the witness in fact is not dead but for some reasons or other is keeping out of the way. With respect, I am unable to agree with this view. In my view the provisions of Section 33 of the Evidence Act engraft an extraordinary exception to the ordinary rule as to the examination and order of examination of witnesses as envisaged in Section 138. Evidence Act and therefore, the Court must exercise great caution in invoking the said exceptional provisions and ought to insist on direct proof of the requisite conditions of the Section. In criminal cases, at least, where the onus is entirely on the prosecution, the matter should not be left to the objection or non-objection on behalf of the accused and when such evidence is sought to be let in through this indirect route, the Court must be satisfied that proper foundations have been laid for such a course. Unless proper proof of conditions laid down in Section 33 of the Evidence Act is insisted, records of the judicial proceeding may be filled up with illegitimate entries of un-cross-examined statements. Respectfully dissenting from the Patna decision. I would like to point out that in a criminal case no amount of non-objection by or on behalf of the accused can relieve the prosecution of its burden to satisfy the Court of its duty to be satisfied that there are grounds to justify admission of evidence which the accused cannot test by cross-examination.

10. I have noted that in Hori Lai v. State of Uttar Pradesh : 1970CriLJ1665 the Supreme Court has left open the question as to whether the evidence of the Investigating officer that he came to learn that the deponent was dead is 'sufficient to prove the death...in order to admit the deposition under Section 33 of the Evidence Act'. But from the use of the words 'whether the evidence...is sufficient to prove the death', it seems to me that even according to the Supreme Court, some evidence of death is necessary to attract the provisions of Section 33 of the Evidence Act. In Nga Nyo v. Emperor (AIR 1924 Rang 209) : 25 Cri LJ 257 a Division Bench of the Rangoon High Court held that the Court must insist on strict proof of the conditions laid down under Section 33 of the Evidence Act and relying on this decision it was held by the Madras High Court in Emperor v. Labbai Kutti (AIR 1939 Mad 190 : 40 Cri LJ 437. construing the analogous provisions of Section 512, Criminal Procedure Code, that 'the death of the witness must be proved and there can be no doubt that the burden of proving the fact of death is upon the party who wishes to tender the evidence' and that 'the fact of death must be proved like any other fact and a mere report that a certain person is dead is not sufficient'. This is also the view of the Calcutta High Court as will appear from the Division Bench decision in S. C. Mitter v. State : AIR1950Cal435 where it has been held that before the evidence of a person, who has not been tendered for cross-examination on the ground of being incapacitated by illness can be admitted for the prosecution under Section 33 of the Evidence Act, there must be evidence on record to prove such illness, whether or not the accused contests or disputes fact of such illness. I am, therefore, of opinion that the evidence of this witness Dhanlal Rai is not to be taken into consideration in this case against the accused.

11. I would, however, presently show that, even if the statement of this witness Dhanlal Rai is taken into consideration along with other evidence on record the prosecution still then cannot be regarded to have been able to prove the guilt of the accused beyond reasonable doubt in Criminal Cases Nos. 50, 53, 55 and 56. I will now proceed to deal with the facts of the five cases separately as hereunder:

1) Criminal Case No. 50 of 1971 Criminal Appeal No. 3 of 1977.

12. The charge in this case relates to the period from 1st April, 1962, to 31st March, 1963. The evidence of P. W. 1 Dhanlal and P. W. 2 Govardhan Pradhan is that during this period they collected the revenue from the tenants and paid the same to the accused. They, however, said nothing about the accused not depositing the same to the Government authority or misappropriating the same.

13. P. W. 3 who was the Revenue Inspector stated that the total demand for the relevant period, being 1st April 1962 to 31st March, 1963, was Rs. 2.594.37 Paise out of which the accused deposited only Rs. 766.12 Paise leaving a balance of Rs. 1828.25 Paise. There is, however, no evidence on record, oral or documentary, to show that the amounts that were collected by P. W. 1 and P. W. 2 were in respect of revenue payable for the year 1962-63. Even if the amounts that were collected by P. Ws. 1 and 2 were collected during that period, there is nothing in the evidence of these or any other witnesses or in any of the documents exhibited in this case to show that these amounts so collected were in respect of revenue payable for the year 1962-63. There is nothing on the record to show that the accused collected any revenue payable for the year 1962-63 either by himself or through his karbaris P. W. 1 and P. W. 2 or otherwise and that being so the accused cannot be said to have committed criminal breach of trust simply because, as stated by P. W. 3, the total demand for the relevant . period was certain amount and the accused deposited an amount much less than the demand.

14. P. W. 4 was the District Magistrate at the relevant time and forwarded the complaint made by P. W. 3, and P. W. 5 and P. W. 6 were two police officers who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1962-63 and his failure to deposit the same back. Therefore, even if the evidence of P. W, Dhanlal is taken into consideration, it cannot be said that on the evidence adduced in this case the charge against the accused has been proved beyond reasonable doubt.

2) Criminal Case No, 53 of 1971 Criminal Appeal No. 4 of 1977.

15. The charge in this case relates to the period from 1st April, 1963 to 31st March, 1964. The evidence of P. W. i Dhanlal and P. W. 2 Govardhan Pradhan is similar as in Criminal Case No. 50 of 1971. They only stated about their collecting various amounts as revenue from the tenants as Karbaris of the accused and their paying those amounts back to the accused, but they have said nothing about the accused misappropriating such amount or failing to deposit the same with the Government authority.

16. P. W. 3, who was the Revenue Inspector, stated that the total demand for the relevant 'period, being 1st April, 1963 to 31st March, 1964, was Rs. 2,575.04 Paise out of which the accused deposited only Rs. 411.86 Paise leaving a balance of Rs. 2121.06 Paise. In this case also there is no evidence on the record, oral or documentary, to show that the amounts that were collected by P. W. 1 and P. W. 2 were in respect of revenue payable for the year 1963-64. Even if the amounts so collected by P, W. 1 and P, W. 2 were collected during this period or near about that period, there is nothing in the evidence of these or any other witnesses or in any of the documents exhibited in this case that these amounts were in respect of revenue payable for the year 1963-64. As there is nothing on record to show that the accused collected any revenue payable for the year 1963-64 either by himself or through his karbaris P. W. 1 and P. W. 2 or otherwise, the accused cannot be said to have committed criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was much less than the demand.

17. P. W. 4 was the District Magistrate at the relevant time and forwarded the complaint made by P. W. 3, and P. W. 5 and P. W. (3 were two police officers who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1963-64 and his failure to deposit the same back. Therefore, even if the evidence of P. W. Dhanlal is taken into consideration, it cannot be said that on the evidence adduced in this case, the case against the accused has been proved beyond reasonable doubt.

3) Criminal Case No. 55 of 1971 Criminal Appeal No. 6 of 1977.

18. The charge in this case relates to the period from 1st April, 1965 to 31st March, 1966. The evidence of P W. 1 Dhanlal and P. W. 2 Govardhan Pradhan is that during this period they collected revenue from the tenants and paid the same back to the accused. They, however, said nothing about the accused misappropriating the amounts or failing to deposit the same with the Government authority. P, W. 3. who was the Revenue Inspector, stated that the total demand for the relevant period being 1st April. 1965 to 31st March, 1966 was Rs. 2,653.15 paise out of which the accused deposited only Rs. 1,264.05 paise leaving balance of Rs. 1,389.10 paise. Both P. W. 1 Dhanlal and P. W. 2 Govardhan Pradhan stated in this case that the amounts collected by them were in respect, of the revenue payable for the year 1965-66. But even if the evidence of P. W. 1 Dhanlal is not excluded from but is taken into consideration, it would appear that the total collection alleged to have been made by P. W. 1 and P. W. 2 was not more than Rs. 1235/- and as already noted, the accused having deposited a total amount, of Rs. 1,264.05 paise in respect of revenue payable for the year 1965-66, it cannot be said that the accused has committed criminal breach of trust in respect, of any amount collected by him simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was much less than the demand. P. W. -1 was the District Magistrate at the relevant time and he forwarded the complaint made by P. W, 3, and P. W. 5 was the police officer who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1965-66 and his failure to deposit the same back. Therefore, on the evidence on record in this case, it cannot be said that the prosecution has been able to prove the charge against the accused beyond reasonable doubt.

4) Criminal Case No. 56 of 1971-- Criminal Appeal No. 7 of 1977.

19. The charge in this case relates to the period from 1st April, 1966 to 31st March, 1967. P. W. 1 Dhanlal stated that as the Karbari of the accused he collected the various amounts from different tenants but that all these amounts were deposited in the Namchi Court. That being so the evidence of Dhanlal, even if taken into consideration, would have nothing to do with the collection of any amount by the accused and his failure to deposit the same. P. W. 2 Mahananda merely stated that he became the Mondal in 1968 after the accused was suspended and that he thereafter started collecting revenue and deposited the amounts collected by him. His evidence also, therefore, has no bearing on the main question in this case.

20. P. W. 3, who was the Revenue Inspector, stated that the total demand for the relevant period, being 1st April, 1966 to 31st March, 1967, was Rs. 2,695.60 paise out of which the accused deposited Rs. 426.58 paise leaving a balance of Rs. 2,277.31 paise. But as already pointed out, even if the evidence of P. W. 1 and P. W. 2 are taken into consideration there is nothing on record in this case to show that the accused collected any revenue payable for the year 1966-67 or at least any amount more than what he deposited and he failed to deposit the said amount. Whatever was collected by P. W. 1 Dhanlal was, according to his own admission, directly deposited to Namchi Court, whatever was collected by P. W. 2 Mahananda relates lo the period when the accused was no longer Mondal. That being so, the accused cannot be said to have committed criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which is less than the demand.

21. P. W. 4 was the District Magistrate at the relevant time who forwarded the complaint made by P. W. 3 and P. W. 5 was the 'police officer who investigated the case and therefore, they were neither expected to give nor they had given any evidence about the collection of any amount by the accused as a revenue for the year 1966-67 and his failure to deposit the amount so collected. On the evidence on record, therefore, the case against the accused cannot be said to have been proved beyond reasonable doubt in this case also.

5) Criminal Case No. 54 of 1971--- Criminal Appeal No. 5 of 1977.

22. The charge in this case relates to the period from 1st April, 1964 to 31st March, 1965. In this case also the evidence of P. W. 1 Govardhan and P. W. 2 Dhanlal is to the effect that during this period they collected revenue from the tenants and paid the same back to the accused. They, however, said nothing about the accused misappropriating the said amount or failing to deposit the same with the Government authority.

23. P. W. 3 who was the Revenue Inspector stated that the total demand for the relevant period being 1st April, 1964 to 31st March, 1905 was Rs. 2452.01 paise out of which the accused deposited only Rs. 25.05 paise leaving a balance 'of Rs. 2,426.96 paise. P. W. 2 Dhanlal, however, deposed that the amounts collected by him from the tenants as the Karbari of the accused were in respect of the year 1964-65. But for the reasons stated hereinbefore I would exclude the evidence of this witness from my consideration. Even though in the other four cases I have shown that the prosecution fails even if Dhanlal's evidence is taken into consideration, my view, as stated hereinbefore, remains that this evidence is to be excluded from consideration in arriving at a decision as to the guilt of the accused. If the evidence of this witness is thus excluded from consideration, then there would remain nothing on record, either oral or documentary, to show that the amounts realised by P. W. 1 Govardhan were in respect of revenue payable for the year 1964-65 or that the accused collected any revenue payable for the year 1964-65, either by himself or through his karbaris or otherwise and that being so the accused cannot be said to have committed any criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was less than the demand. P. W. 4 was the District Magistrate at the relevant time who forwarded the complaint made by P. W. 3, and P. W. 5 was the police officer who investigated the case and, as already stated, they were neither expected to give nor they had given any evidence as to the collection of any amount by the accused as the revenue payable for the year 1964-65 and his failure to deposit the same back. The charge against the accused, therefore, in this case also cannot be regarded to have been proved beyond reasonable doubt.

24. The learned Advocate-General has, however, urged that the prosecution should be allowed to adduce additional evidence in Case No. 54 to prove the death of the witness, Dhanlal, to justify the admission of his evidence under Section 33 of the Evidence Act, because, according to him. The amounts stated to be collected by Dhanlal in that case were in respect of revenue payable for the period charged and as the amount so collected and paid to the Accused is much larger than what was deposited by the Accused, the prosecution case can be regarded to have been proved, if Dhanlal's evidence can be taken into consideration. I have given my serious consideration to this submission, but I am unable to accent the same for the reasons stated hereinbelow.

25. The offence alleged in Criminal Case No. 54 was committed in 1904-65, that is, about 13/14 years before and the trial of the Case, which started in 1971, concluded in the trial Court in 1977. Not only the Accused was kept in suspense for all these long years, but he was also in custody for some days after he was arrested and he has also suffered rigorous imprisonment for about nine months after he was convicted by the trial Court. The Accused is also aged about seventy years. Under the circumstances, I do not think that it would be either fair or proper to allow the prosecution to adduce additional evidence at this stage. I would like to point out that the power vested in the Appellate Court to take additional evidence is a power which, as observed by the Supreme Court in Rajeswar Prasad Misra v. State of West Bengal AIR 1965 SC 1887 at p. 1892 : 1965 (2) Cri LJ 817 at p. 821-822, must be sparingly exercised and must not ordinarily be allowed if the 'prosecution had a fair opportunity to adduce the evidence and has not availed of it. The learned Advocate-General has also frankly confessed that the witness Dhanlal was a resident of a remote village, and, therefore, it may not be possible for the prosecution to adduce evidence as to the precise dale or period when the witness had died or to prove that the witness had died after he was examined-in-chief and before he was required to appear for cross-examination, in the absence or any record of births and deaths maintained in those areas. I do not think that I should, in this case and at this date make an order for reopening of the case by allowing additional evidence to be adduced simply because the prosecution did not know how to adduce evidence and the trial Judge did 'lot know how to regulate the admission of evidence, particularly when the prosecution itself is not sure as to whether there is any reasonable possibility of the required evidence being ad- duced. The prayer made on behalf of] the prosecution is, therefore, rejected.

26. In the circumstances, all the live Appeals are allowed, and the judgments in all the cases are set aside and the Accused is acquitted in all these cases, The Accused is now on bail and shall, therefore, be discharged from the bail bonds. Fine, if any, paid by the Accused shall be refunded.


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