1. In this appeal it is objected on behalf of the appellants that the learned Judge has misread the evidence in some portions and has wrongly admitted the evidence of a certain witness under Section 33, Evidence Act. This is the only important point taken before us. It appears that the dacoity with which the accused were charged was committed after midnight of 6th July 1929. The information was lodged at the thana the following morning by a man named Sobhan. He did not name any of the dacoits nor did he say that some of them had been recognized. The first information was recorded by a Sub-Inspector of the name of Abdul Jabbar Chaudhury. The evidence shows that on the night of 7th July 1929 another Sub-Inspector by the name of Birendra Nath Pal took over the investigation from Abdul Jabbar Chaudhury. Abdul Jabbar was not examined in the committing Magistrate's Court because he had died before the case was heard. Birendra Nath Pal was examined by the committing Magistrate. He was not examined before the Sessions Judge but his evidence was admitted by the learned Judge under Section 33, Evidence Act. There is nothing on the record to show in what circumstances or on what ground this evidence was admitted by the order sheet we find under order dated 14th January 1930 the following notes:
Then the evidence of Babu Birendra Nath Pal (P.W. 10) in the lower Court put in by the prosecution under Section 83, Evidence Act.
2. There is no order by the Judge admitting the evidence on the ground that he was satisfied under that section that the witness was not available for examination before him. In the charge the learned Judge has expressed himself thus:
In the morning at 9 a.m. Sivan (P.W. 6) want to the than and lodged F.I.R. Ex. 5., The daroga who recorded it is not available and his evidence in the lower Court has had to be pat in and used hare as evidence.
3. In this sentence the learned Judge has bean guilty of a number of inaccuracies. The first information report is not Ex. 5 in the case but Ex. 2. Ex. 5 is the search report which was prepared and signed by Birendrmath Pal. Then the statement that the Daroga who recorded it (meaning Birendra) is not available is not correct because the daroga who recorded it was Abdul Jabbar who is dead. Then the learned Judge proceeds to say : 'The daroga went to Rakhal's house on 7th July.' If by this daroga he means Birendranath Pal the evidence shows that Birendra went to his house on 8th July. The charge is therefore vitated by a confusion which has beau made by the learned Judge in describing the incidents shortly after the dacoity. Bat the greater defect is with regard to the learned Judge's admission of the evidence under Section 33 Evidence Act. The record does not show that there were such materials before him as to satisfy him that the presence of witness Birendranath Pal could not be secured. It has been held from early times that in order to enable a Court to admit the deposition of a witness under Section 33, Evidence Act, the ground for its admission should be stated fully and clearly to enable the flight Court to judge of its propriety.
4. Queen v. Mowjan 20 W.R. 69 Cr. : It is necessary that under Section 33, Evidence Act, the Judge must be satisfied that evidence is admissible on the materials before him, namely on the ground that the witness whose deposition attempted to be put in was not or could not be found or had been won over by the adverse party or otherwise incapable of giving evidence. In Emperor v. Kangalmali (1914) 41 Cal. 601, the learned Judges refused to admit evidence though certain witnesses bad sworn that the witness could not be found and that a warrant was issued on the witness. In their opinion this evidence before the Judge did not lay sufficient foundation for the reception of the evidence. The warrant was not produced and there was no evidence on the record to show that attempt was made to get the witness and therefore there was no evidence to show what was done to find out the man. That was a much stronger case than the present in which there is no material on the record not even an application to show that the witness could not be found. It is possible that a verbal application was made by the Public Prosecutor but that is no sufficient ground as has been held in In Re Annavi Muthuryan (1916) Mad. 449. It appears however that in this case no objection to the reception of the evidence was taken by the defence but that does not dispense with the requirements of Section 33 : see Golam Haider v. Emperor A.I.R. 1929 Lah. 542 and the Madras case above referred to. We are accordingly of opinion that the learned Judge was not right in admitting the evidence of this witness Birendranath Pal and placing it before the jury. The evidence of identification in this case consists of the evidence of a woman named Katyani and the approver. The approver has contradicted the witness Katyani in several points. The learned Judge in his charge has referred to the evidence of the witnesses and says:
In my opinion there is no genuine corroboration of an independent kind. You have seen that the approver's evidence is in -many respects inconsistent with the woman Katyani; that of course may be due to mistake on the part of either. But that only confirms my opinion (which you are not bound to accept) that in this case there is no corroboration of the approver's implication of Mokshed and Doulat. There is no point in saying that if you believe Katyaui's evidence it corroborates the approver. That is arguing in a circle.
5. On this evidence the accused were convicted by the jury, who were divided in the proportion of 3 to 2, under Section 395, I.P.C., and sentenced to rigorous imprisonment for five years each. We are of opinion that the trial has been vitiated by the defect in the learned Judge's charge. The question arises whether in the circumstances of this case there should be an order for retrial. Having gone through the evidence and the learned Judge's comment upon it we think that it is not a case where there should be a fresh trial. Accordingly we allow the appeal and direct that the accused be acquitted and set at liberty.