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In Re: S. Siluvai Antony Nadar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1944Mad319
AppellantIn Re: S. Siluvai Antony Nadar and anr.
Excerpt:
- - in these circumstances and in view of the fact that the evidence of this witness is of such paramount importance in deciding the case against the appellants, we have come to the conclusion that the learned sessions judge was not, in the circumstances of this case, justified in applying section 33 of the act, and that he might have well satisfied himself by further enquiries whether the application of that section was really necessary......the murder of one diravia nadar on 26th february last. we note however from the judgment of the learned sessions judge of tinnevelly that the principal evidence against the accused consisted of the deposition of one thomas alias subramania nadar before the committing magistrate. this deposition was admitted as direct evidence at the sessions under the provisions of section 33, evidence act. section 33 provides that that can be done if 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. in the present case, the decision of the learned judge to admit this evidence.....
Judgment:

King, J.

1. We do not propose in this case to say anything in detail about the evidence given against the appellants, two of whom have been sentenced to death and two to transportation for life in connexion with the murder of one Diravia Nadar on 26th February last. We note however from the judgment of the learned Sessions Judge of Tinnevelly that the principal evidence against the accused consisted of the deposition of one Thomas alias Subramania Nadar before the committing Magistrate. This deposition was admitted as direct evidence at the sessions under the provisions of Section 33, Evidence Act. Section 33 provides that that can be done if 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. In the present case, the decision of the learned Judge to admit this evidence under Section 33 was evidently based upon a statement by P.W. 15 the police constable, who says that summons to this witness could not be served as he had joined the army and his address was not known. No similar questions were put to the Sub-Inspector of Police examined as P.W. 16 and nothing elicited as to what further steps the prosecution took to discover the address of the witness. In these circumstances and in view of the fact that the evidence of this witness is of such paramount importance in deciding the case against the appellants, we have come to the conclusion that the learned Sessions Judge was not, in the circumstances of this case, justified in applying Section 33 of the Act, and that he might have well satisfied himself by further enquiries whether the application of that section was really necessary. The learned Public Prosecutor has now furnished us with the present address of the witness. It appears from the information now at his disposal that he (Thomas alias Subramania Nadar) is in camp at Muttra in Northern India. Our natural suspicion therefore that the address of a newly joined recruit in the army could not be unascertainable, as P.W. 15 seems to suggest, has been confirmed by the information now furnished. There can therefore be no reason for the application of Section 33 on the ground that the witness cannot be found. The only question that remains is whether his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable. We are emphatically of the opinion that any delay or expense which might be involved in this case is disproportionate to the public interests involved in examining, in the box and in the presence of the learned Judge and the assessors, the principal witness upon so serious a charge as this. We accordingly set aside the convictions and direct that the appellants be retried on the same charge by the learned Sessions Judge of Madura.


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