1. In this case a reference has been made to this Court under Section 374, Criminal P.C., for confirmation of the sentence of death passed on Gajendra Mohan Kar who was convicted of murder by the learned Sessions Judge of Pabna and Bogra on 26th November 1942. It is not necessary to refer in detail either to the facts alleged by the prosecution and the defence or to most of the material evidence adduced in the Court g below having regard to the fact that we are of opinion that the appellant was seriously prejudiced on account of the improper admission against him of certain evidence under the provisions of Section 33, Evidence Act. It appears that the investigating officer Md. Abdul Rahman was examined before the committing Magistrate on 4th September 1942. On 23rd November 1942, a medical officer of the Srinagar Charitable Dispensary signed a certificate to the effect that the Sub-Inspector had been under his treatment for malaria and other complications since 17th November 1942. He further stated that this officer was then too weak to move about and that it was advisable to let him rest for at least another week in order that he might recover completely. This medical certificate appears to have been placed before the learned Sessions Judge on 25th November 1942 and without taking any further evidence with regard to the matter, the learned Judge admitted the deposition of the investigating officer in evidence under the provisions of Section 33, Evidence Act.
2. The circumstances in which evidence becomes relevant under Section 33, Evidence Act, have been set forth in the section itself. They are as follows : (1) when the witness is dead or (2) cannot be found or (3) is incapable of giving evidence or (4) is kept out of the way by the adverse party or (5) if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the Court considers unreasonable. Of these, the only two conditions which could have had any possible application in this case were the third and the last. It is argued by the learned Deputy Legal Remembrancer that the medical certificate indicates that Md. Abdul Rahman was incapable of giving evidence on 25th November 1942. In our view, however, such an inference cannot possibly be drawn from the terms of the certificate. In fact, the certificate indicates that, although Md. Abdul Rahman was capable of giving evidence at the time when the certificate was given, the medical officer did not think it was advisable that he should do so. It, therefore, follows that the learned Judge should have considered whether the last condition mentioned in the section should be applied. In other words, he should have come to a finding whether it was unreasonable in the circumstances on account of the delay or expense which might be involved to postpone the trial in order that the investigating officer might be examined. This aspect of the matter does not appear to have been considered by the learned Judge at all and, in view of what is stated in the certificate, it is rather difficult to understand why the trial could not have been adjourned for about a week in order that the evidence of such an important witness might be taken. The law with regard to this matter has been concisely 3tated in Woodroffe and Ameer Ali's Law of Evidence, Edn. 9, page 365 as follows:
When the evidence of an absent witness is admitted under this section the grounds for its admission should be stated fully and clearly, to enable the High Court to judge of the propriety of its admission. Assuming that there are reasons why the Court thinks fit to dispense with the personal attendance of a witness, and circumstances are disclosed showing that his presence could not be obtained without an unreasonable amount of expense and delay, the evidence to supply such reason and to prove such circumstances should be formally and regularly taken and recorded.
3. The same view appears to have been adopted by the Madras High Court in Jalladeen Marakayar v. Vijayaswami ('16) 3 A.I.R. 1916 Mad. 631. In our opinion the law on this point has been correctly stated by the learned commentators and we must hold that owing to the important nature of the evidence which has been improperly admitted in this case, we have no option but to order a retrial. The conviction and the sentence passed on the appellant will, therefore, be set aside and it is directed that he be retried according to law.