Mehr Lila Meraman and Another vs State

Baxi, J.—The Appellants were convicted fry the Additional Sessions Judge, Porbandar, under Sections 392 and 394, I.P.C. They were

sentenced to five years'' rigorous imprisonment and a fine of Rs. 500/- u/s 392 and to three years'' rigorous imprisonment u/s 394, Indian Penal

Code

According to prosecution the complainant Pohumal came ill a motor lorry from his village Bhogsar to Porbandar on 1-5-53 with some cotton,

which he sole in Porbandar. The Appellant Lilal belonged to Bhogsar and was given a lift by the Respondent in the lorry. The complainant received

the price of the cotton and recovered some outstandings in Porbandar and in all lie received Rs. 3713-11-3. He made disbursements from this

amount and the net amount remaining with him was Rs. 3434-15-3. Rs. 3434/- were in currency notes, which were wrapped in a piece of

newspaper.

Next day, i.e., on 2-5-53 he started to return to Bhogsar by a passenger bus. He had with him the above-mentioned sum of Rs. 3434-15-3, which

he had placed in his waistcoat pocket. The Appellant Lila Meraman and Naran Raja travelled with him in the same bus. At an intermediate station,

one Dosa Khimra also boarded the bus. The complainant and Dosa got down at the bus stand of the village Jumra, Bhogsar being a little oil the

bus route and Jumra being the nearest, bus stand. The Appellant Naran is also alleged to have got down at Jumra. However instead of taking the

usual route to Jamra he went off cross country. The Appellant Lila continued his journey in the bus. Its next halt was at the village Mayari about

two miles from the Jamra bus stand.

The complainant and Dosa walked together for a short distance and then Dosa went ahead leaving the complainant behind him. The complainant

passed Jamra and at a point about two or three furlongs from Jamra he was attacked from behind. He looked back & saw the Appellant Naran

beating him with a stick and the Appellant Lila standing near him. The complainant was severely beaten, so much so that he showed marks of ten

injuries on his person and his ulna was fractured. Naran took out the bundle of currency notes from the complainant''s pocket and gave it to the

Appellant Lila and both of them then ran away. The complainant got up and reached the outskirts of the village Chhatrava but he was too

exhausted to reach the village and sat down in a temple near-by and requested some children to call one Haribhai from the village. On his arrival

the complainant narrated the incident to him and gave him the name of the Appellant Lila as one of the assailants.

Haribhai then called the complainant''s partner Ramumal from Bhogsar and to him also the complainant related the incident. They all then went to

the village Chhatrava and called the Police Patel, who recorded his complaint, Ex. 4. In this complaint the name of the Appellant is mentioned.

Information of this offence was received at the Police Station at Kutiyana at 4 p. m. The complainant also went there and his statement was

recorded by the Sub-Inspector of Police. He was then sent to the Kutiyana Dispensary for medical treatment and investigation was duly started by

the Police.

The Appellant Lila is alleged to have shown some curiosity in the complainant''s movements in Porbandar and a sum of Rs. 500/- was admittedly

paid to the complainant by a merchant in the presence of Lila. Lila also produced currency notes of Rs. 3333/- in 30 currency notes of Rs. 100/-

each, 6 currency notes of Rs. 5/- and 2 currency notes of Rs. 21- and Re. 1/- each from his shed. They were tied in a rag and the bundle was

placed on a heap of dung and a stone was placed over it. The Appellant Naran produced currency notes of Rs. 45/-, which were buried in his

vadi. He was taken to the scene of the offence and had pointed out a piece of newspaper, which is proved to be the one, in which the

complainant''s notes were wrapped.

On these facts the Appellants were tried on charges under Sections 392 and 394, I.P.C. and convicted and sentenced. Both the Appellants have

preferred these separate appeals against their convictions and sentences. As the appeals arise out of the same judgment they are disposed of by

this judgment.

The prosecution has proved through merchants of Porbandar and Ors. that the complainant was in possession of Rs. 3434-15-3 on the 1st

May. It is also proved that he got down at the Jumra bus stand. As the complainant had put up in a lodging house in Porbandar he had deposited

the money for safe custody at Porbandar with the witness Devji Shamji, Ex. 31. Devji says that he wrapped up the notes in a piece of newspaper

and wrote the name of the complainant''s firm Tilumal Nyalchand on the bundle for identification. This piece of newspaper was found near the

scene of the offence, which shows that the complainant must have taken the packet with him on his return journey. His waistcoat pocket was found

torn and he is proved to have received severe injuries. There is therefore no doubt that the complainant was carrying the amount of Rs. 3434-15-3

and was way-laid and robbed of this amount, while on his way to Bhogsar.

(4) The important question however is whether the two Appellants were concerned in the robbery. (His Lordship considered the evidence in the

case and while acquitting both the Appellants continued).

5-11. Before we conclude we would, like to say a few words about the manner in which depositions of several witnesses recorded in the

committing Magistrate''s Court were brought on record and relied upon by the learned Judge. They are the depositions of witnesses Jamnadas

Gordhandas, Ex. 33, Nathalal Kalidas, Ex. 35, the Panch Keshavji Khimji, Ex. 51, and Shantilal Jamnadas, Ex. 58. Keshavji was in the Junagadh

Hospital for treatment and the summons could not be sent in time to be served upon him. Shantilal was not served.

There is no evidence that the presence of these witnesses could not be obtained without unreasonable delay. But the learned Additional Sessions

Judge admitted their evidence recorded in the committing Magistrate''s Court on an oral application by the Additional Public Prosecutor to which

the Appellants'' Advocate took no objection. The learned Judge purports to have acted u/s 288, Code of Criminal Procedure, which is

inapplicable in the case and the proper section under which it could be admitted was Section 33, Evidence Act. In fact the Additional Public

Prosecutor actually made his motion. u/s 33, Evidence Act, but the learned Additional Sessions Judge purported to make his order u/s 288, Code

of Criminal Procedure. But this is only by the way.

We cannot help feeling that the learned Judge has made improper use of Section 33, Evidence Act. Before evidence of a witness recorded in a

judicial proceeding can be admitted in a subsequent judicial proceeding u/s 33, the Judge must be satisfied by proper materials that the attendance

of such witnesses cannot be obtained within reasonable time. The fact that the summons is not served upon a witness particularly when his

whereabouts are known is no ground for holding that he is incapable of attending the Court or his attendance cannot be procured. An oral

application from the Public Prosecutor for admission of evidence of the witness is not by itself a sufficient ground for admitting that evidence. In

civil cases the other side may waive proof of the .circumstances under which such evidence may be admitted u/s 33, Evidence Act. But in criminal

cases the fact that no objection was taken to the reception of such evidence cannot dispense with the necessity of seeing that the requirements of

that section are fulfilled. See - AIR 1946 1 (Privy Council) . The learned Judge therefore erred in admitting the evidence of these witnesses.

We were informed that instances of evidence being admitted u/s 33 on insufficient grounds because no objection is taken by the other side are not

infrequent in this Court. We would therefore like to invite the attention of the learned Judge to the necessity of seeing that in criminal cases the

conditions laid down by Section 33, Evidence Act, must be proved by legal evidence before evidence recorded in Anr. judicial proceeding is

admitted. A copy of this paragraph should be sent to all Sessions Judges for information and for communication to the Subordinate Courts.

In the result both the appeals are allowed. The convictions and sentences of the Appellants are set aside and they are ordered to be acquitted.

Muddamal currency notes to be returned to the Appellants from whom they were recovered.

SHAH C.J.

I agree.