1. The petitioner has been convicted under Section 294 of the Rabir Penal Code and sentenced to two months rigorous imprisonment.
2. The prosecution case was that one Fatima Begum was going to the school via Boulevard when the accused stopped there and came out of his car and started teasing her and used obscene words towards her. A report was lodged in the police station where the accused was also produced. Before the trial court neither the first information report was proved nor the informant was produced.
3. The only evidence against the petitioner consisted of the evidence of Hajee Ahad Dar who had deposed that when he reached the spot, the girl told him that the accused had used certain obscene words towards her which annoyed her. The witness, however, admitted when examined further before this court that he had not seen with his own eyes that the accused had used any words towards her or that he had in any way insulted her. In other words, the evidence against the petitioner consisted of pure hearsay evidence and nothing else.
4. Learned Advocate General appearing for the prosecution submitted that the evidence of Hajee Ahad Dar though hearsay may be relevant for the purposes of proving the conduct of the accused under Sections 6 and 8 of the Evidence Act. Section 6 makes relevant only those facts which are so connected with the facts in issue that they form a part of the same transaction. This pre-supposes that there is a fact in issue, to prove which other facts connected with, it could be used as corroborating pieces of evidence. In the instant case, the fact in Issue was whether the complainant was teased by the petitioner in-as-much as the petitioner used insulting words against her. This fact is not proved at all, except by the hearsay evidence of Hajee Ahad Dar. In these circumstances, therefore, the evidence of Hajee Ahad Dar cannot be said to form part of the same transaction, when the transaction itself is not proved. Moreover, Hajee Ahad Dar admits that he came after the actual occurrence was over and did not see it with his own eyes. Thus his statement cannot form part of res gestae so as to be admissible under Section 6 of the Evidence Act. Statements of by-standers to be admissible under Section 6 must be of persons actually present at the time of occurrence and not of persons reaching the spot after the occurrence is over.
5. I am fortified in my view by the decisions reported in:— Nasir Din v. Emperor, AIR 1945 Lah 46, Chhotka v. State, AIR 1958 Cal 482 and Pakhar Singh v. Emperor, AIR 1925 Lah 578. Similarly Section 8 comes Into play where a fact constitutes a motive or preparation for any fact in Issue. This again presupposes the proof of a fact in issue. On the same grounds as indicated above, since the main fact in issue in the present case has not been proved, the hearsay evidence of Hajee Ahad Dar cannot be used under section 8 of the Evidence Act to support the conviction of the petitioner. To illustrate my point of view, if there was evidence of the Informant or of any eye witnesses in the present case to show that the petitioner had actually teased the informant, then the evidence of Hajee Ahad Dar to prove what the informant or other eye witnesses told him would have been admissible under Sections 6 and 8 of the Evidence Act as forming part of the same transaction, and as being connected with the fact which was proved. This, however, is not the position in the instant case. To such a case, in my opinion, the provisions of Sections 6 and 8 of the Evidence Act cannot apply; otherwise that would be inconsistent with the provisions of Section 60 of the Evidence Act which excludes hearsay evidence as losing inadmissible.
6. Indeed, if the girl had been examined before the trial court and asserted what the accused had told her, her evidence could have been corroborated by the evidence of Hajee Ahad Dar on the ground that it was the statement of the complainant made to him immediately after the occurrence in presence of the accused. Even, if the evidence of Hajee Ahad Dar be admissible in evidence, it will be an extremely weak type of evidence and it will the wholly unsafe to rely on such evidence because in absence of the examination of the complainant, there is no guarantee that the girl had told the truth to this man. It may be that the girl may not have told the witness the correct facts. For these reasons, therefore, the contention of the learned Advocate General on this score is overruled.
7. The Advocate General realizing the difficulty tried to persuade me to order a re-trial or to summon the complainant in the case as a witness under the provisions of Section 428 or 540 of the Cr PC. I am afraid to accede to such a prayer would be allowing the prosecution to fill up gaps which it deliberately left in the case when it was pending before the trial magistrate. The powers of the court either for ordering re-trial or for taking additional evidence are not meant to be exercised in order to enable the prosecution to fill up lacunae in the case. The result of accepting such a prayer would be to punish the accused for a fault which was not committed by him but by the prosecution. Once the accused is put on trial his liberty is put in Jeopardy and the prosecution is at liberty to produce any evidence that it likes against the accused. If it fails to adduce the necessary evidence, It cannot ask the appellate court to order a retrial for giving a chance to the prosecution to fill up a lacuna in the case and thereby putting the liberty of the accused again into jeopardy. For these reasons, therefore, I am unable to accede to the prayer Blade by the Advocate General.
8. On a careful consideration of the evidence and the circumstances in the case, I am satisfied that there is no legal evidence against the accused to prove the charge levelled against him. The application Is, therefore, allowed, the conviction as also the sentence passed on him are set aside and he is acquitted of the charges framed against him.
HH/V.B.B
9. Application allowed.
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