D.S. Dave, J.
1. Both the appeals noted above arise out of the same judgment of the learned Sessions Judge, Udaipur, dated 21-1-58 and therefore they are disposed of together.
2. Appellants Bismillah Khan and Mst. Azizan have both been convicted by the learned Sessions Judge Udaipur under Section 366 I. P. C. but while Bismillah Khan has been sentenced to 5 years' R I and a fine of Rs. 1000/-, Mst. Azizan has been sentenced only to 2 years' R.I. and a fine of Rs. 50/-.
3. The incident giving rise to this case took place in a locality called Tekri in Udaipur on the 18th of August, 1954.
4. The prosecution case against the appellants is as follows :
One Mst. Ram Pyari who was a widow of one Bahadur Singh was living at Tekri. It is said that her deceased husband was a Nepali who had several years back come to Mewar, joined the military service at Udaipur. Even after his death Mst. Ram Pyari who was also a Nepali woman continued to live there. She had two daughters, Kamla aged about 16 or 17 years and Laxmi who was about 13 years of age. Kamla was married and she had been to her husband's house after her marriage, nut at the particular time she had come to her mother at Tekri and was residing with her.
Appellant Mst. Azizan was living in the neigh-bourhood of Mst. Ram Pyari and she was intimately acquainted with all the three. Appellant Azizan told Ram Pyari that she was going to see Jawar mines and that she may send her two daughters with her. Mst. Rampyari agreed to this proposal and so did the two girls, Thereafter on 18-8-54 Mst. Azizan took both Kamla and Laxmi from their house to the bus stand. After reaching there, appellant Azizan introduced appellant Bismillah Khan to Kamla and Laxmi as a Hindu Seth who was going to Jawar Mines,
She told the girls that she would come by the next bus and that they should accompany him since he is her Dharm Bhai. The girls did not agree to accompany him in the beginning, but on Mst. Azi-ran's assurance to the effect that Bismillah Khan would keep them comfortably and they had 'nothing to worry, they accompanied him. Bismillah Khan then took both the girls to Tidi a place about 20 miles from Udaipur and he kept them at his house. When Azizan did not come to Tidi in the evening, the girls got anxious and Kamla asked Bismillah Khan about her.
He assured them that she would be coming very soon. Bismillah Khan then arranged for food for both the girls and also provided them with two cots inside his house. It is said that on that night (between 18th and 19th August, 1954) Bismillah Khan raped Kamla against her will. Next morning, he was arranging to take them to Dungarpur in a truck. Kamla and Laxmi however did not agree to this. Luckily, at that time P.W. 3 Tayab Ali happened to pass by that place and he told the person incharge of the truck that they were Hindu girls with a Mohamadan and he should not take them otherwise he might involve himself in trouble.
That fellow therefore did not take the girls with him. Meanwhile somebody whose name has not been disclosed by the Police informed Sub Inspector P.W. 8 Arjun Singh who was incharge of P.S. Tidi that Bismillah Khan was taking away two girls under suspicious circumstances. He therefore sent one P.W. 6 Lalsingh a literate constable to find out what the matter was. P.W. 6 Lalsingh saw appellant Bismillah and the two girls near the bus stand and he brought all the three with him to the police station.
S. I. Arjunsingh thereupon interrogated Kamla and she hold him how Mst. Azizan had deceitfully brought her and her sister from their mother's house, how Bismillah Khan was introduced as a Hindu Seth, how he had brought them deceitfully to his house and in what manner she was raped on the last night. He recorded the first information report on the basis of her statement and thereafter he went to appellant Bismillah Khan's house and searched the same. He seized some clothes which he found there and which were suspected to be stained with semen.
Thereafter, Azizan was also arrested and after investigation both the appellants were challaned in the court of the Sub-Divisional Magistrate, Udaipur, for an offence under Section 366, I. P. C. Bismillah Khan was further prosecuted for an offence under Section 376, I. P. C. After completing the preliminary enquiry, the Magistrate committed both of them to the court of the learned Sessions Judge, Udaipur.
5. It may be mentioned here that Mst. Azi-zan's statement in the committing magistrate's court was that she did not bring the girls from Mst. Ram Pyari's house. She had only seen them standing at the bus stand along with Ram Pyari in the evening. Ram Pyari asked her to help her daughters to get a seat in the motor going to Tidi and so she pointed out that particular bus to them. According to her, she did not know anything beyond it. In the trial court also she pleaded innocence and only stated that what she had deposed in the committing magistrate's court was correct.
6. Bismillah Khan's version in the committing magistrate's court was that he did not take both the girls to Tidi and that they had come to his -house voluntarily in his absence. When he came to Tidi from Jawar, he found them sitting at his house on a cot, They asked him to show them Jawar Mines, but he refused. Thereafter, they told him that they were hungry and so he arranged for their food. In short, he denied having brought them from Udaipur or having committed rape on Kamla.
In the trial court also he stuck to his statement made in the committing court and added that he was only helping both the girls to sit in the bus bound for Udaipur when Lalsingh came there.
7. The prosecution examined 8 witnesses in the trial court, but Mst. Ram Pyari and her two daughters were not amongst them. These 3 witnesses, namely, Ram Pyari, Kamla and Laxmi, were examined only in the committing magistrate's court and their statements which were recorded there were admitted in evidence by the learned Sessions Judge under Section 33 of the Indian Evidence Act.
8. Learned counsel for the appellants has urged that the trial court has committed a serious error in admitting the statements of Mst. Ram Pyari, Kamla and Laxmi in evidence without compelling the prosecution to prove the circumstances under which such statements could be taken into evidence under Section 33 of the Indian Evidence Act. It is contended that if these 3 statements are left out of account, then no case is made out against the appellants and therefore they should be acquitted.
9. Learned Asstt, Govt. Advocate has, on the other hand, tried to justify the admission of these 5 statements under S, 33 of the Evidence Act, He has however very candidly conceded that if their statements cannot be used against the appellants, their conviction cannot stand, because the proof of the prosecution story mainly depends on these statements.
10. The main question for determination therefore in these appeals is whether the statements of Mst. Ram Pyari, Kamla and Laxmi have been rightly admitted by the trial court under Section 33 of the Indian Evidence Act. Before proceeding to discuss the circumstances in which these statements were recorded, it would be proper to reproduce here the relevant portion of Section 33 of the Indian Evidence Act, which is as follows :
'Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; .....'
It is clear from the language of this section that the statements of the said witnesses given in the committing magistrate's court could be admitted by the trial court but only if the following conditions were fulfilled, namely (1) either the witnesses were dead or (2) they could not be found or (3) they were incapable of giving evidence or (4) they were kept out of the way by the adverse party, or (5) if their presence could not be obtained without an amount of delay or expense which under the circumstances of the case, the Court considered unreasonable.
Now out of the 5 conditions, noted above, 3 admittedly do not apply to the present case, since it was never stated by the prosecution that the witnesses were dead or that they were incapable of giving evidence or that they were kept out of the way by the adverse party.
11. It appears from the order-sheet of the trial court dated 5-9-57 that an application was made on that date by the Public Prosecutor to the effect that Mst. Ram Pyari, Kamla and Laxmi were not traceable and therefore their statements in the committing magistrate's court may be taken on the record of the trial court under Section 33 of the Indian Evidence Act. It is thus clear that the ground urged by the prosecution was that the witnesses could not be found. This application was sought to be supported by an affidavit of P.W. 8 Arjun-singh.
The application was kept for arguments by the trial court on 6-9-57 and on that day, the application was allowed, because learned counsel for the accused had no objection to the said statements being admitted in evidence.
12. Learned counsel for the appellants has strenuously urged that counsel for the accused was wrong in conceding that the statements should be taken on record, that the accused were not bound by erroneous admission of their counsel on a point of law that it was the duty of the prosecution to prove strictly to the satisfaction of the court that the witnesses could not be found in spite of attempt to trace and serve them and then only they could be admitted in evidence. In support of his contention learned counsel has referred to Chainchal Singh v. Emperor, AIR 1946 PC I (A). In that case the evidence of witness was admitted under Section 33 of the Indian Evidence Act on the ground that he was incapable of giving evidence. Under the circumstances it was observed by their Lordships as follows :
'Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing the demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witnesses to be before the Court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In that case also, it appears that the counsel for the accused had consented to the evidence of the witness to be admitted in evidence and it was urged before their Lordships that in view of the consent given by the counsel for the accused, the trial court had not committed any error. Adverting to this argument, it was observed by their Lordships as follows : 'The learned Additional Judge was no doubt largely influenced by counsel for the accused consenting to the evidence being read, but in their Lordships' opinion that does not do away with the necessity of the Court being satisfied by proof. Neither counsel nor his client could have had any personal knowledge on the subject, unless indeed counsel had recently seen the witness in which case he could have so informed the Court and not merely given a consent.'
In the present case also, learned counsel for the accused had no personal knowledge whether the witnesses were living at Ahmedabad or Bombay or at Kashmir, where they were said to be living by the prosecution and under the circumstances his consent was of no avail to the prosecution. It was incumbent upon the prosecution to prove that the processes were issued for the witnesses, that a particular person who was deputed to serve those processes went to the place of their residence and that they could not be found in spite of all attempts to serve them personally.
It was only after sucb evidence was led and the Court was satisfied that the witnesses could not be found, and their statements could be admitted in evidence. The argument of learned Asstt. Govt. Advocate therefore to the effect that the counsel for the accused had given his consent to the admission of the statements is without any force in view of the clear pronouncement of their Lordships of the Privy Council on the subject
13. It may be further pointed out that the trial court itself does not seem to have been satisfied about the assertion regarding the non-availability of the witnesses, because when an objection was taken before that court on 29-11-57, it passed another order for calling the said witnesses. If the trial court was fully satisfied that the witnesses could not be found or were untraceable, there was no point in passing another order for summoning them on 20-11-57.
It appears from the order sheet of 29-11-57 that the trial court directed the Public Prosecutor to find out the whereabouts of the witnesses and to produce them on the next date, i.e. 16-12-57. The order-sheet of 16-12-57 shows that the Public Prosecutor informed the Court on that day that the whereabouts of the witnesses could not be known within the time given by the court and therefore he prayed for one month's further time to find out the witnesses at Ahmedabad and Bombay.
The learned Judge however did not agree to give further opportunity to the Public Prosecutor and ordered that the prosecution evidence be closed. A perusal of this apparently leads one to think that this order was passed by the learned Judge against the prosecution and that the evidence of the witnesses would not be admitted. When, however, the case was argued this objection was again taken by the counsel for the accused, that was turned down by the learned Judge in his judgment with the remark that 'merely because he gave one more opportunity to (the prosecution) to produce them, the evidence which had already been admitted could not be thrown away'. He added that in the circumstances of the case and to avoid unreasonable delay and expense he was still of the opinion that the statements should be admitted and read in evidence.
It may be observed that the ground about unreasonable delay and expense was not taken by the prosecution at the time when the statements were admitted. The only ground which was urged at that time was that the witnesses were not traceable and therefore the learned Judge was not justified in advancing this new ground of his own accord and that too in the judgment and not before admitting these statements. I have gone through the prosecution evidence and find that Mst. Kamla had given the address of her husband in her statement before the committing magistrate as K. P. Thapa, Gurdas Co. Bhai Khalla, Bombay.
She had also stated that her brother was living at Ahmedabad and that he had gone to Kashmir. Under the circumstances, the prosecution ought to have seen whether the witnesses could be found at any one of the addresses which were given by this witness in her statement in the committing magistrate's court. P.W. Arjun Singh simply stated that he was informed by the police officers at Ahmedabad that the witnesses were not traceable there. This was however not enough and the prosecution ought to have produced the witness who was entrusted with the service of the processes and he alone could say if the witnesses were not traceable at the proper address.
14. Then coming to the argument of the trial court about unnecessary expense and delay, it may be observed that the delay in this case, if any, has been occasioned because of lack of proper control and supervision of work at proper stages. It appears from the affidavit of Shri Arjunsingh that 7 times processes were issued for the said three witnesses to be served at Tekri. There was no sense in issuing processes for the witnesses at the same address so many times. When it was found once or twice that the witnesses were not residing at that place, the processes should have been issued to their addresses at Ahmedabad or Bombay.
If this thing were noticed before issuing the processes, much of the delay would have been saved. Similarly I find it difficult to justify the order of the learned Sessions Judge dated 16-12-57 refusing to give one month's time to the prosecution to serve processes to these witnesses at their addresses outside this State. In fact, the refusal of the trial court to give sufficient time to the prosecution has only resulted in further delay of the decision of this case. Similarly, I do not agree with the trial court's view that it would have entailed a heavy expenditure if these witnesses were-called from Bombay or Ahmedabad.
Ahmedabad was not very far from Udaipur, nor was Bombay. It need not be stressed again that the evidence of all these three witnesses was very material and therefore their attendance ought to have been compelled and if they could not be found, then evidence should have first been recorded to that effect according to law and therefore their previous statements ought to have been admitted under Section 33 of the Indian Evidence Act. Since this has not been done, the appellant's conviction cannot be upheld, and it has got to be set aside.
15. Learned counsel for the appellants has urged that in the absence of the evidence of the said three witnesses, the appellants should be acquitted; while learned Assistant Government Advocate says that a re-trial should be ordered. I have. given due consideration, to the arguments urged in this behalf and I think that the proper order would be to direct a retrial. It has already been pointed out above that the trial court was misled in admitting the statements of the said three witnesses on 6-9-57, because learned counsel for the accused raised no objection. This is a case of a pretty serious nature and the evidenc of the main witnesses has been excluded for the time being only on a technical ground.
16. The appeal is therefore allowed. The conviction of appellants, Bismillah Khan and Azizan under S, 366 is set aside. The case be sent back to the learned Sessions Judge with directions that he should issue processes to Kamla, Laxmi and Ram Pyari at their known addresses and should try to compel their attendance and record their statements. In case they cannot be found, then evidence should first be recorded on that point and then only he may take into consideration the question of admitting their statements in the committing court under Section 33 of the Indian Evidence Act.
After a proper re-trial, the case should bedecided afresh. Since this is likely to take sometime, both the appellants Bismillah Khan and Mst.Azizan would be released on bail provided each oneof them furnishes personal bond for his or herappearance in the court of the learned SessionsJudge, Udaipur, for Rs. 2000/- (Runees two thousand) together with one surety in the like amountto the satisfaction of the learned Sessions Judge,Udaipur.