Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • A.M Bhattacharjee, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • A.M Bhattacharjee, J.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion — Criminal Appeals Nos. 3, 4, 5, 6 & 7 of 1977

Factual and Procedural Background

The accused (a Mondal entrusted with collection of land revenue) was convicted under Section 409, Indian Penal Code, in five separate criminal cases: Criminal Cases Nos. 50, 53, 54, 55 and 56 of 1971. Each conviction carried terms of rigorous imprisonment (to run concurrently) and various fines. Separate appeals were preferred in respect of each conviction; the appeals are Criminal Appeals Nos. 3, 4, 5, 6 and 7 of 1977. The prosecutions in all five cases relied materially on the testimony of a witness, Dhanlal Rai (examined as P.W.1 in the cases), who stated that, as a karbari of the accused, he collected revenue amounts and paid them to the accused. The witness was not produced for cross-examination after charge was framed because it was reported that he had died. The legal admissibility of Dhanlal's earlier testimony (in light of Section 33, Evidence Act) and related procedural points under the Criminal Procedure Code (1898, as applicable in Sikkim) became central issues for the appellate court.

Legal Issues Presented

  1. Whether an accused in a warrant case has both the "right" and the "opportunity" to cross-examine prosecution witnesses examined before framing of charge, so as to render such witnesses' earlier testimony admissible under Section 33 of the Evidence Act if they later die or become unavailable.
  2. What proof is necessary to satisfy the requirement of the witness's death under Section 33 of the Evidence Act — i.e., whether a mere report of death suffices or direct/strict proof is required.
  3. Whether, on the evidence (including or excluding the testimony of Dhanlal Rai), the prosecution proved criminal breach of trust beyond reasonable doubt in each of the five cases.
  4. Whether the appellate court should permit the prosecution to adduce additional evidence (to prove the death of the witness) at the appellate stage in Criminal Case No. 54, given delay and the circumstances of the accused.

Arguments of the Parties

Prosecution (as presented by the Advocate-General)

  • Argued that the accused had both the right and the opportunity to cross-examine Dhanlal Rai before charge was framed, so that Dhanlal's evidence should be admissible under Section 33 of the Evidence Act because the "adverse party had the right and opportunity to cross-examine."
  • Relied on an interpretation of the word "evidence" in Sections 252–254 CrPC read with Section 138 Evidence Act to contend that examination-in-chief before charge necessarily implied the accused could cross-examine thereafter.
  • Contended that a court's note that “P.W Dhanlal is reported to have died” sufficed and that it was not incumbent on the court to require strict proof of death (relying on a Patna High Court decision).
  • Urged that, at least in Criminal Case No. 54, the prosecution should be allowed to adduce additional evidence on appeal to prove Dhanlal's death and thereby validate the admission of his deposition under Section 33, because his testimony, if admissible, would materially strengthen the prosecution case.

Accused / Defence

This opinion does not contain a detailed account of the defence's formal legal arguments in the trial or on appeal beyond the factual contention that Dhanlal was not produced for cross-examination because he was reported to have died. The court's reasoning records the accused's procedural position and the consequences of excluding or including the witness's testimony.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) Principle that procedural law is grounded on natural justice; parties should be heard (audi alteram partem). Invoked to support that accused must not be condemned unheard and that right to cross-examine is consistent with principles of natural justice.
State of Karnataka v. L. Munniswamy ((1977) 2 SCC 699 : AIR 1977 SC 1489) Statement that the order of framing a charge substantially affects a person's liberty and the court must act judicially before framing a charge. Used to emphasize that framing charge is significant and the accused ought to have opportunity to be heard (including cross-examination) before charge is framed.
S.C. Mitter v. State (AIR 1950 Cal 435) Calcutta High Court view addressing whether prosecution witness's incapacity (illness/death) may admit their deposition; observation that courts should require proof of incapacity even if the accused does not contest. Relied on to show that proof of illness/death must exist on record before admitting deposition under the relevant rule; supports court's insistence on proof of death.
Brahamachari v. Anath Bandhu (AIR 1954 Cal 395) Authority for the Calcutta High Court view that accused in a warrant case has no statutory right to cross-examine before framing of charge (but should be given opportunity). Discussed as part of the divergence among High Courts; the court distinguished between absence of express statutory right and the practical duty to allow cross-examination on natural justice grounds.
Srikishun Jhunjhunwala v. Emperor (AIR 1946 Pat 384) Patna High Court view that where the court is informed the witness is dead, it is not incumbent to require further proof of death, absent suggestion the witness is feigning death. Explicitly disagreed with by the present court; the court respectfully dissented and held stricter proof of death is required in criminal cases.
Hori Lal v. State of U.P. ((1970) 1 SCC 8 : AIR 1970 SC 1969) Left open whether an investigation officer's statement that he learned of a deponent's death suffices to prove the death for purposes of admitting deposition under Section 33. Interpreted to show that some evidence of death is necessary; supports the court's view that proof of death cannot rest on mere report without foundation.
Nga Nyo v. Emperor (AIR 1924 Rang 209) Held that the Court must insist on strict proof of conditions analogous to Section 33 before admitting depositions of absent/unavailable witnesses. Relied on to support the court's insistence on strict proof of death before admitting deposition under Section 33.
Emperor v. Labbai Kutti (AIR 1939 Mad 190) Madras High Court construction of provisions equivalent to Section 33: the death of the witness must be proved and the burden lies on the party tendering the evidence. Used to reinforce the proposition that mere report of death is insufficient and the prosecution must prove factum of death.
Rajeswar Prasad Misra v. State of W.B. (AIR 1965 SC 1867) The appellate court's power to take additional evidence is to be exercised sparingly and not ordinarily allowed where the party had a fair opportunity to adduce the evidence at trial. Applied to refuse the prosecution's request to reopen evidence in Criminal Case No. 54 on appeal, given delay and the prosecution's failure to adduce evidence earlier.

Court's Reasoning and Analysis

The court addressed two interlinked clusters of legal questions: (A) admissibility under Section 33 of the Evidence Act of testimony given earlier by a witness who later died and (B) whether the accused had a right to cross-examine prosecution witnesses examined before framing of charge in a warrant case.

On the right/opportunity to cross-examine before charge:

  • The court examined the procedural provisions of the Criminal Procedure Code, 1898 (Sections 252–256 and related chapters) as applied in Sikkim, and Section 138 of the Evidence Act (order of examination of witnesses).
  • Noted that Sections 252–254 (taking of evidence before charge) do not expressly mention cross-examination by the accused; Section 256 expressly provides for cross-examination where the accused refuses to plead or claims to be tried, and Section 208(2) (commitment proceedings) provides for cross-examination before commitment. There is divergence among High Courts on whether an accused in a warrant case has a statutory right to cross-examine before charge.
  • The court emphasized the foundational role of natural justice (citing Sangram Singh) and observed that framing a charge substantially affects liberty (citing Munniswamy). On principle, it would be "startling" if accused were denied cross-examination simply because no express provision exists.
  • Concluding from both the letter of the Code (as supplemented by principles of natural justice), the court held that the accused must be permitted to cross-examine prosecution witnesses examined before framing of charge. That permission is not merely discretionary: if the accused “so desires,” the Magistrate must allow cross-examination and thus the accused has a right of cross-examination for the purpose of Section 33 if given the opportunity.
  • The court further held that if the accused is given the opportunity to exercise that right (whether or not he actually exercised it), the opportunity suffices to make the witness's earlier testimony fall within the ambit of Section 33, provided other conditions of Section 33 are satisfied.

On admissibility of the deposition of a deceased witness under Section 33:

  • The court held that Section 33 creates an extraordinary exception to usual rules of oral evidence and therefore courts must exercise caution before invoking it.
  • In criminal cases — where the burden is on the prosecution — the court must insist on direct proof of the conditions required by Section 33 (including proof of death). The court rejected the Patna High Court approach that a mere report of death is sufficient absent a suggestion of feigned absence.
  • Relying on several authorities (e.g., Nga Nyo; Emperor v. Labbai Kutti; S.C. Mitter) the court held the prosecution bears the burden of proving the factum of death and a mere entry or note that "P.W. Dhanlal is reported to have died" is insufficient; some evidence of death must be placed on record before admitting the deposition.
  • Accordingly, the court excluded the evidence of Dhanlal Rai from consideration because satisfactory proof of his death at the relevant time was not produced on record.

On the merits of each of the five cases after excluding (and, for completeness, even if including) Dhanlal's testimony:

  • The court analyzed each charge period separately (1962–63; 1963–64; 1964–65; 1965–66; 1966–67). In each matter the prosecution's evidence either failed to show that the amounts collected by the karbaris were revenues payable for the charged year or failed to connect the collections to the accused's misappropriation or non-deposit to government authorities.
  • In several cases P.W.3 (Revenue Inspector) produced figures of total demand and deposits by the accused, but the court found no oral or documentary evidence establishing that the specific amounts collected by the karbaris were the same sums or were in respect of the charged year.
  • Even when the court proceeded to assume inclusion of Dhanlal's testimony for the sake of argument, the prosecution still failed to prove guilt beyond reasonable doubt in Criminal Cases Nos. 50, 53, 55 and 56.
  • For Case No. 54 (period 1964–65), the Advocate-General sought permission to adduce additional evidence at the appellate stage to prove Dhanlal's death, which the court refused. The refusal rested on (a) the long delay (offence committed some 13–14 years earlier), (b) prejudice to the accused who had already suffered custody and conviction, (c) the settled principle (Rajeswar Prasad Misra) that appellate courts should sparingly take additional evidence and generally not when the prosecution had a fair earlier opportunity, and (d) the prosecution's own admission that precise proof of death might be impossible given the witness's remote residence.

The cumulative consequence of the court's examination was that, on the evidence properly admissible and on the record as it stood, the prosecution had not proved the charges beyond reasonable doubt in any of the five cases.

Holding and Implications

Holding:

APPEALS ALLOWED; CONVICTIONS SET ASIDE; ACCUSED ACQUITTED.

Direct consequences for the parties:

  • The judgments and convictions in Criminal Cases Nos. 50, 53, 54, 55 and 56 of 1971 are set aside and the accused is acquitted in all five cases.
  • The accused, who was on bail, is discharged from his bail bonds.
  • Any fine paid by the accused is to be refunded.
  • The prosecution's prayer to adduce additional evidence on appeal in Case No. 54 was refused.

Broader legal implications articulated by the court (as expressed in the opinion):

  • The court held that, consistent with principles of natural justice and the substantive effect framing a charge has on liberty, an accused in a warrant case is entitled to cross-examine prosecution witnesses examined before framing of charge; if the accused is afforded that opportunity, the witness's earlier testimony can fall within Section 33 of the Evidence Act in appropriate circumstances.
  • The court emphasized that Section 33 is an exception to ordinary rules of evidence and must be invoked with caution; in criminal prosecutions the prosecution must affirmatively prove conditions such as the witness's death before admission of the deposition.
  • The appellate power to receive additional evidence should be exercised sparingly; where the prosecution had a fair opportunity earlier to produce evidence (including proof of a witness's death), reopening should not ordinarily be permitted, particularly where significant delay prejudices the accused.

Disposition stated in the opinion: "Appeals allowed."

Show full summary ...

    Karmadhan Lama v. State Of Sikkim .

    1. The accused-appellant has been convicted under S. 409 of the Indian Penal Code in five criminal cases being Criminal Cases Nos 50, 53, 54, 55 and 56 of 1971 and has been sentenced to suffer rigorous imprisonment for various terms, which are to run concurrently, and also to pay fines of various amounts on the charge that being a Mondal appointed to collect land revenue and as such being entrusted with the amounts so collected, he committed criminal breach of trust in respect of such amounts. As the alleged breach of trust related to five different periods in five different years, not amenable to one trial, five different cases were launched and all of them, as already noted, have ended in conviction and the accused has preferred five separate appeals in respect of those five cases. This judgment will govern all the five appeals, being Criminal Appeals Nos. 3, 4, 5, 6 and 7 of 1977.

    2. The prosecution examined one Dhanlal Rai in all these five cases as one of its material witnesses who stated that as one of the Karbaris of the accused he collected on behalf of the accused various amounts, mentioned by him in his deposition, from different tenants and paid all these amounts to the accused. By this evidence the prosecution has tried to prove that the accused collected these amounts through this witness and was thus entrusted with the amounts so collected. But this witness was not tendered for cross-examination by the accused after charge was framed as it was reported that he had died by then. The learned Advocate-General has urged that as the accused had the right and the opportunity to cross-examine this witness before charge, his evidence is admissible under S. 33 of the Evidence Act. There is no doubt that under S. 33 of the Evidence Act, the evidence in a judicial proceedings of a person who has died is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceedings for the purpose of proving the truth of the facts stated in such evidence provided that the adverse party had the right and opportunity to cross-examine the deponent and that the other conditions laid down in S. 33 of the Evidence Act are satisfied. It is not disputed that the accused was given the opportunity to cross-examine this witness when he was examined before the framing of charge and there is also a clear note to that effect by the learned Sessions Judge in the deposition sheets of this witness. But can it be said that the accused in this case had also the right to cross-examine the witness when he deposed to bring the case within the provisions of S. 33 of the Evidence Act?

    3. In other words, can it be said that an accused in a warrant case has both the right and the opportunity to cross-examine a witness before a charge is framed? It should be noted here that in Sikkim the law contained in the Cri-minal Procedure Code, 1898, is still the law relating to criminal procedure and that in trial of warrant cases the provisions of S. 252 and the succeeding sections of Chap. XXI of the said Code are followed even when such cases are instituted on police reports. S. 252 to S. 254 of the Code, which deal with taking of evidence before charge, discharge of accused and framing of charge, do not mention about any cross-examination by the accused and it is only in S. 256, which comes into play when the accused refuses to plead or does not plead or claims to be tried that express mention has been made about the right of the accused to cross-examine the witnesses for the prosecution. There is a sharp divergence of opinion among the different High Courts as to whether an accused in a warrant case (not instituted on police report) can be said to have a right to cross-examine the prosecution witnesses before a charge is framed. The Calcutta and the Patna High Courts have held that the accused has no such right while the Allahabad, the Bombay, the Madras and some other High Courts have held that the accused has such a right. Relying on the decisions holding the latter view the learned Advocate-General has urged that the word “evidence” in Ss. 250 to 254 of the Criminal Procedure Code, 1898, obviously means not only the examination-in-chief of the prosecution witnesses but also the cross-examination and re-examination, if any, and the learned Advocate-General has further urged that as under S. 138 of the Evidence Act, an examination-in-chief is to be followed by cross-examination, if the adverse party so desires, the accused must be held to have a right to cross-examine when the prosecution witnesses are examined before charge in his presence. Section 138, Evidence Act, which deals with the order of examination of witnesses, no doubt, provides that “witnesses shall first be examined-in-chief, then (if the adverse party so desires) cross-examined.” The expression used is “then” and not “immediately” or “forthwith” and therefore, examination of a witness-in-chief before charge and then his cross-examination after charge will not amount to any non compliance of the provisions of the section and, therefore from the provisions of S. 138 of the Evidence Act only it cannot be concluded that the accused has a right to cross-examine the prosecution witness before charge immediately after such witnesses are examined-in-chief.

    4. If a right to cross-examine has got to be invariably inferred from the use of the word “evidence” in Ss. 252 to 254 of the Code of Criminal Procedure, 1898, read in the light of the provisions of S. 138 of the Evidence Act, then it is difficult to understand why in the case of taking evidence in a commitment proceeding and framing of charge under the provisions of Ss. 208 to 210 of the Code, which also use the word “evidence” and can be read along with and in the light on S. 138 of the Evidence Act, an express provision had to be made for cross-examination of the prosecution witnesses by the accused in S. 208(2) before a charge is framed under S. 210. At the same time, if a right to cross-examine is to be inferred only from the provisions expressly conferring such right, as in Section 208, Section 256 etc., then it is also difficult to understand how the accused can at all cross-examine any prosecution witnesses in a trial of summons cases under Chapter XX or in a Sessions trial under Chapter XXIII, where no express provisions have been made for cross-examination of the prosecution witnesses by the accused. If it is to be held, as has been held by the Calcutta and the Patna High Courts, that the accused has the right to cross-examine the prosecution witnesses only after the charge is framed as it is only at that stage a right has been expressly conferred by Section 256, then it is to be held that an accused has no right to cross-examine the prosecution witnesses in any trial of summons cases under Chapter XX or trial of Sessions cases under Chapter XXIII, as no such right has been expressly conferred at any stage of such trials. Again, in Sessions trial, Section 286, dealing with the examination of the prosecution witnesses makes no reference about cross-examination of the prosecution witnesses by the iccused, but Section 290, dealing with defence witnesses, expressly refers to cross-examination of defence witnesses; but from that no one would surely contend for a moment that while the accused has no right to cross-examine the prosecution witnesses, the prosecution has a right to cross-examine the defence witnesses.

    5. There must, as Vivian Bose, J., observed in Sangram Singh v. 1. Election Tribunal, Kotah (AIR 1955 SC 425 at p. 429) be ever present to the mind the fact that our laws of procedure are grounded on principles of natural justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and liberty should not continue in their absence and that they should not be precluded from participating in them. The law contained in the Code of Criminal Procedure, 1898, which, as already noted, is till now the Law relating to Criminal Procedure in Sikkim, being ‘procedure’, that is, something designed to facilitate justice and to further its ends, it would be startling if it is held that the accused shall not be entitled to cross-examine the prosecution witnesses before the charge, simply because such a right has not been conferred in express terms, even though their statements are likely to affect the accused very seriously in the shape of a charge being framed against him. As has been observed by the Supreme Court in State of Karnataka v. L. Munniswamy ((1977) 2 SCC 699 : AIR 1977 S.C 1489 (1494) : (1977 Cri LJ 1125 at p. 1129), “the order of framing a charge affects the person's liberty substantially” and therefore, it is the duty of the Court to act judicially before framing a charge and if I may add, to hear the other party, audi alteram partem, is a sine qua non of a judicial hearing and the accused cannot be said to have been given a hearing in any judicial proceeding where he is not allowed to cross-examine the witnesses deposing against him.

    6. To me the position appears to be that under the law of Criminal Procedure, being the letters of the Code supplemented by the principles of natural justice, the accused cannot but be allowed to cross-examine witnesses, if he sc desires, even before a charge is framed. Even the Calcutta cases, according to which the accused has no right to cross-examine before charge, lay down that the accused should be given opportunity to cross-examine before a charge is framed and in S.C Mitter v. State, (AIR 1950 Cal 435) Dasgupta, J., (as his Lordship then was) observed that his Lordship could not “think of a case where the Magistrate will be justified in not allowing the accused to cross-examine the witnesses before charge”, but that, however, according to his Lordship, “is not the same thing as a right under the law”. These observations have been referred to with approval in another Division Bench decision of The Calcutta High Court in Brahamachari v. Anath Bandhu (AIR 1954 Cal 395) : (1954 Cri LJ 1047), which is also another authority of the Calcutta High Court for the view that the accused in a warrant case has no right to cross-examine the prosecution witnesses before a charge is framed under Section 254. It is. difficult to understand as to how the accused can be said to have no right to cross-examine before charge, if under the law the Magistrate has. the duty to allow the accused to cross-examine before charge in every case. If the Magistrate has such a duty under the law and fails to do his duty in a given case, the accused can surely move the higher Courts for an order directing the Magistrate to do his duty and to allow the accused to cross-examine. If the accused has a right to enforce the compliance by the Magistrate of his duty to allow the accused to cross-examine, I do not know why it cannot be said that the accused has a right to cross-examine unless we decide to indulge in unfruitful legal verbiage.

    7. I have no doubt in my mind that if a right of the accused to cross-examine the prosecution witnesses is to be implied in a trial of a summons-case when evidence for the prosecution is taken under Section 244 or in a trial of a Sessions case when prosecution witnesses are examined under Section 286(2), such a right to cross-examine the prosecution witnesses must also be implied in a warrant case when witnesses are examined under Section 252 and before the framing of a charge, which, as observed by the Supreme Court in Munniswamy's case noted above. (1977 Cri LJ 1125 (SC)) substantially affects his liberty. Any interpretation which will make the accused a helpless onlooker when a charge affecting his life or liberty is being framed must be rejected as abhorrent to the principles of natural justice, on which, as the Supreme Court observed in Sangram Singh's case noted above (AIR 1955 SC 425), “our laws of procedure are grounded”. I am, therefore, of the Opinion that under the law the accused can claim to cross-examine the prosecution witnesses before charge, a claim which the Magistrate cannot refuse and which therefore amounts to a right of cross-examination within the meaning of Section 33 of the Evidence Act and therefore, if in such a case the accused is given the opportunity to exercise that right of cross-examination, the evidence of the witness becomes admissible under Section 33 of the Evidence Act, whether or not the accused exercised the right and utilised the opportunity, if the other conditions of the Section are satisfied.

    8. In this case, therefore, if it has been proved that the witness Dhanlal Rai had died, the other conditions necessary to render his evidence admissible under Section 33 of the Evidence Act can be said to have been satisfied. But can it be said that it has been satisfactorily proved that Dhanlal was dead at the relevant time. There is only a note in the orders dated 14-6-76 and 6-9-76 that “P.W Dhanlal is reported to have died”. Relying on the decision of the Patna High Court in Srikishun Jhunjhunwala v. Emperor (AIR 1946 Pat 384) : (47 Cri LJ 614) the learned Advocate-General urged that in such a case if the Court is informed that the witness is dead it is not incumbent upon the Court to require the proof of the death of the witness, unless it is suggested by the other party that the witness in fact is not dead but for some reasons or other is keeping out of the way. With respect, I am unable to agree with this view. In my view the provisions of Section 33 of the Evidence Act engraft an extraordinary exception to the ordinary rule as to the examination and order of examination of witnesses as envisaged in Section 138, Evidence Act and therefore, the Court must exercise great caution in invoking the said exceptional provisions and ought to insist on direct proof of the requisite conditions of the Section. In criminal cases, at least, where the onus is entirely on the prosecution, the matter should not be left to the objection or non-objection on behalf of the accused and when such evidence is sought to be let in through this indirect route, the Court must be satisfied that proper foundations have been laid for such a course. Unless proper proof of conditions laid down in Section 33 of the Evidence Act is insisted, records of the judicial proceeding may be filled up with illegitimate entries of un-cross-examined statements. Respectfully dissenting from the Patna decision. I would like to point out that in a criminal case no amount of nonobjection by or on behalf of the accused can relieve the prosecution of its burden to satisfy the Court of its duty to be satisfied that there are grounds to justify admission of evidence which the accused cannot test by cross-examination.

    9. I have noted that in Hori Lal v. State of Uttar Pradesh ((1970) 1 SCC 8 : AIR 1970 SC 1969 at p. 1970) : (1970 Cri LJ 1665 at p. 1666-1667) the Supreme Court has left open the question as to whether the evidence of the Investigating officer that he came to learn that the deponent was dead is “sufficient to ‘prove the death …………in order to admit the deposition under Section 33 of the Evidence Act”. But from the use of the words “whether the evidence……………. is sufficient to prove the death”, it seems to me that even according to the Supreme Court, some evidence of death is necessary to attract the provisions of Section 33 of the Evidence Act. In Nga Nyo v. Emperor (AIR 1924 Rang 209) : (25 Cri LJ 257) a Division Bench of the Rangoon High Court held that the Court must insist on strict proof of the conditions laid down under Section 33 of the Evidence Act and relying on this decision it was held by the Madras High Court in Emperor v. Labbai Kutti (AIR 1939 Mad 190 : (40 Cri LJ 437), construing the analogous provisions of Section 512, Criminal Procedure Code, that “the death of the witness must be proved and there can be no doubt that the burden of proving the factum of death is upon the party who wishes to tender the evidence” and that “the fact of death must be proved like any other fact and a mere report that a certain person is dead is not sufficient”. This is also the view of the Calcutta High Court as will appear from the Division Bench decision in S.C Mitter v. State (AIR 1950 Cal 435) where it has been held that before the evidence of a person, who has not been tendered for cross-examination on the ground of being incapacitated by illness can be admitted for the prosecution under Section 33 of the Evidence Act, there must be evidence on record to prove such illness, whether or not the accused contests or disputes fact of such illness. I am, therefore, of opinion that the evidence of this witness Dhanlal Rai is not to be taken into consideration in this case against the accused.

    10. I would, however, presently show that even if the statement of this witness Dhanlal Rai is taken into consideration along with other evidence on record the prosecution still then cannot be regarded to have been able to prove the guilt of the accused beyond reasonable doubt in Criminal Cases Nos. 50, 53, 55 and 56. I will now proceed to deal with the facts of the five cases separately as hereunder:—

    1) Criminal Case No. 50 of 1971 — Criminal Appeal No. 3 of 1977.

    11. The charge in this case relates to the period from 1st April, 1962, to 31st March, 1963. The evidence of P.W 1 Dhanlal and P.W 2 Govardhan Pradhan is that during this period they collected the revenue from the tenants and paid the same to the accused. They, however, said nothing about the accused not depositing the same to the Government authority or misappropriating the same.

    12. P.W 3 who was the Revenue Inspector stated that the total demand for the relevant period, being 1st April 1962 to 31st March, 1963, was Rs. 2,594.37 Paise out of which the accused deposited only Rs. 766.12 Paise leaving a balance of Rs. 1828.25 Paise. There is, however, no evidence on record, oral or documentary, to show that the amounts that were collected by P.W 1 and P.W 2 were in respect of revenue payable for the year 1962-63. Even if the amounts that were collected by P.Ws 1 and 2 were collected during that period. there is nothing in the evidence of these or any other witnesses or in any of the documents exhibited in this case to show that these amounts so collected were in respect of revenue payable for the year 1962-63. There is nothing on the record to show that the accused collected any revenue payable for the year 1962-63 either by himself or through his karbaris P.W 1 and P.W 2 or otherwise and that being so the accused cannot be said to have committed criminal breach of trust simply because, as stated by P.W 3, the total demand for the relevant period was certain amount and the accused deposited an amount much less than the demand.

    13. P.W 4 was the District Magistrate at the relevant time and forwarded the complaint made by P.W 3, and P.W 5 and P.W 6 were two police officers who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1962-63 and his failure to deposit the same back. Therefore, even if the evidence of P.W Dhanlal is taken into consideration, it cannot be said that on the evidence adduced in this case the charge against the accused has been proved beyond reasonable doubt.

    2) Criminal Case No. 53 of 1971 — Criminal Appeal No. 4 of 1977.

    14. The charge in this case relates to the period from 1st April, 1963 to 31st March, 1964. The evidence of P.W 1 Dhanlal and P.W 2 Govardhan Pradhan is similar as in Criminal Case No. 50 of 1971. They only stated about their collecting various amounts as revenue from the tenants as Karbaris of the accused and their paying those amounts back to the accused, but they have said nothing about the accused misappropriating such amount or failing to deposit the same with the Government authority.

    15. P.W 3, who was the Revenue Inspector, stated that the total demand for the relevant ‘period, being 1st April, 1963 to 31st March, 1964, was Rs. 2,575.04 Paise out of which the accused deposited only Rs. 411.86 Paise leaving a balance of Rs. 2121.06 Paise. In this case also there is no evidence on the record, oral or documentary, to show that the amounts that were collected by P.W 1 and P.W 2 were in respect of revenue payable for the year 1963-64. Even if the amounts so collected by P.W 1 and P.W 2 were collected during this period or near about that period, there is nothing in the evidence of these or any other witnesses or in any of the documents exhibited in this case that these amounts were in respect of revenue payable for the year 1963-64. As there is nothing on record to show that the accused collected any revenue payable for the year 1963-64 either by himself or through his karbaris P.W 1 and P.W 2 or otherwise, the accused cannot be said to have committed criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was much less than the demand.

    16. P.W 4 was the District Magistrate at the relevant time and forwarded the complaint made by P.W 3, and P.W 5 and P.W 6 were two police officers who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1963-64 and his failure to deposit the same back. Therefore, even if the evidence of P.W Dhanlal is taken into consideration, it cannot be said that on the evidence adduced in this case, the case against the accused has been proved beyond reasonable doubt.

    3) Criminal Case No. 55 of 1971 — Criminal Appeal No. 6 of 1977.

    17. The charge in this case relates to the period from 1st April, 1965 to 31st March, 1966. The evidence of P.W 1 Dhanlal and P.W 2 Govardhan Pradhan is that during this period they collected revenue from the tenants and paid the same back to the accused. They. however, said nothing about the accused misappropriating the amounts or failing to deposit the same with the Government authority. P.W 3. who was the Revenue Inspector, stated that the total demand for the relevant period being 1st April, 1965 to 31st March, 1966 was Rs. 2,653.15 paise out of which the accused deposited only Rs. 1,264.05 paise leaving balance of Rs. 1,389.10 paise. Both P.W 1 Dhanlal and P.W 2 Govardhan Pradhan stated in this case that the amounts collected by them were in respect of the revenue payable for the year 1965-66. But even if the evidence of P.W 1 Dhanlal is not excluded from but is taken into consideration, it would appear that the total collection alleged to have been made by P.W 1 and P.W 2 was not more than Rs. 1235/- and, as already noted, the accused having deposited a total amount of Rs. 1,264.05 paise in respect of revenue payable for the year 1965-66, it cannot be said that the accused has committed criminal breach of trust in respect of any amount collected by him simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was much less than the demand. P.W 4 was the District Magistrate at the relevant time and he forwarded the complaint made by P.W 3, and P.W 5 was the police officer who investigated the case and they were neither expected to give nor had given any evidence as to the collection of any amount by the accused as revenue for the year 1965-66 and his failure to deposit the same back. Therefore, on the evidence on record in this case, it cannot be said that the prosecution has been able to prove the charge against the accused beyond reasonable doubt.

    4) Criminal Case No. 56 of 1971 — Criminal Appeal No. 7 of 1977.

    18. The charge in this case relates to the period from 1st April, 1966 to 31st March, 1967. P.W 1 Dhanlal stated that as the Karbari of the accused he collected the various amounts from different tenants but that all these amounts were deposited in the Namchi Court. That being so the evidence of Dhanlal, even if taken into consideration, would have nothing to do with the collection of any amount by the accused and his failure to deposit the same. P.W 2 Mahananda merely stated that he became the Mondal in 1968 after the accused was suspended and that he thereafter started collecting revenue and deposited the amounts collected by him. His evidence also, therefore, has no bearing on the main question in this case.

    19. P.W 3, who was the Revenue Inspector, stated that the total demand for the relevant period, being 1st April, 1966 to 31st March, 1967, was Rs. 2,695.60 paise out of which the accused deposited Rs. 426.58 paise leaving a balance of Rs. 2,277.31 paise. But as already pointed out, even if the evidence of P.W 1 and P.W 2 are taken into consideration there is nothing on record in this case to show that the accused collected any revenue payable for the year 1966-67 or at least any amount more than what he deposited and he failed to deposit the said amount. Whatever was collected by P.W 1 Dhanlal was, according to his own admission, directly deposited to Namchi Court, whatever was collected by P.W 2 Mahananda relates to the period when the accused was no longer Mondal. That being so, the accused cannot be said to have committed criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which is less than the demand.

    20. P.W 4 was the District Magistrate at the relevant time who forwarded the complaint made by P.W 3 and P.W 5 was the ‘police officer who investigated the case and therefore, they were neither expected to give nor they had given any evidence about the collection of any amount by the accused as a revenue for the year 1966-67 and his failure to deposit the amount so collected. On the evidence on record, therefore, the case against the accused cannot be said to have been proved beyond reasonable doubt in this case also.

    5) Criminal Case No. 54 of 1971 — Criminal Appeal No. 5 of 1977.

    21. The charge in this case relates to the period from 1st April, 1964 to 31st March, 1965. In this case also the evidence of P.W 1 Govardhan and P.W 2 Dhanlal is to the effect that during this period they collected revenue from the tenants and paid the same back to the accused. They, however, said nothing about the accused misappropriating the said amount or failing to deposit the same with the Government authority.

    22. P.W 3 who was the Revenue Inspector stated that the total demand for the relevant period being 1st April, 1964 to 31st March, 1965 was Rs. 2452.01 paise out of which the accused deposited only Rs. 25.05 paise leaving a balance of Rs. 2,426.96 paise. P.W 2 Dhanlal, however, deposed that the amounts collected by him from the tenants as the Karbari of the accused were in respect of the year 1964-65. But for the reasons stated hereinbefore I would exclude the evidence of this witness from my consideration. Even though in the other four cases I have shown that the prosecution fails even if Dhanlal's evidence is taken into cosideration, my view, as stated hereinbefore, remains that this evidence is to be excluded from consideration in arriving at a decision as to the guilt of the accused. If the evidence of this witness is thus excluded from consideration, then there would remain nothing on record, either oral or documentary, to show that the amounts realised by P.W 1 Govardhan were in respect of revenue payable for the year 1964-65 or that the accused collected any revenue payable for the year 1964-65, either by himself or through his karbaris or otherwise and that being so the accused cannot be said to have committed any criminal breach of trust simply because the total demand for the relevant period was certain amount and the accused deposited an amount which was less than the demand. P.W 4 was the District Magistrate at the relevant time who forwarded the complaint made by P.W 3, and P.W 5 was the police officer who investigated the case and, as already stated, they were neither expected to give nor they had given any evidence as to the collection of any amount by the accused as the revenue payable for the year 1964-65 and his failure to deposit the same back. The charge against the accused, therefore, in this case also cannot be regarded to have been proved beyond reasonable doubt.

    23. The learned Advocate-General has, however, urged that the prosecution should be allowed to adduce additional evidence in Case No. 54 to prove the death of the witness, Dhanlal, to justify the admission of his evidence under Section 33 of the Evidence Act, because, according to him. the amounts stated to be collected by Dhanlal in that case were in respect of revenue payable for the period charged and as the amount so collected and paid to the Accused is much larger than what was deposited by the Accused, the prosecution case can be regarded to have been proved, if Dhanlal's evidence can be taken into consideration. I have given my serious consideration to this submission, but I am unable to accept the same for the reasons stated hereinbelow.

    24. The offence, alleged in Criminal Case No. 54 was committed in 1964-65, that is, about 13/14 years before and the trial of the Case, which started in 1971, concluded in” the trial Court in 19.77 Not only the Accused was kept in suspense for all these long years,. but he was also in custody for some days after he was arrested and he has also suffered rigorous imprisonment for about nine months after he was convicted by the trial Court. The Accused is also aged about seventy years. Under the circumstances, I do not think that it would be either fair or proper to allow the prosecution to adduce additional evidence at this stage. I would like to point out that the power vested in the Appellate Court to take additional evidence. is a power which, as observed by the Supreme Court in Rajeswar Prasad Misra v. State of West Bengal (AIR 1965 SC 1867 at p. 1892) : (1965 (2) Cri LJ 817 at p. 821-822), must be sparingly exercised and must not ordinarily be allowed if the prosecution had a fair opportunity to adduce the evidence and has not availed of it. The learned Advocate-General has also frankly confessed that the witness Dhanlal was a resident of a remote village, and, therefore, it may not be possible for the prosecution to adduce evidence as to the precise date or period when the witness had died or to prove that the witness had died after he was examined-in-chief and before he was required to appear for cross-examination, in the absence or any record of births and deaths maintained in those, areas. I do not think that I should, in this case and at this date make an order for reopening of the case by allowing additional evidence to be adduced simply because the prosecution did not know how to adduce evidence and the trial Judge did not know how to regulate the admission of evidence, particularly when the prosecution itself is not sure as to whether there is any reasonable possibility of the required evidence being adduced. The prayer made on behalf of I the prosecution is, therefore, rejected. In the circumstances, all the five Appeals are allowed, and the judgments in all the cases are set aside and the Accused is acquitted in all these cases. The Accused is now on bail and shall, therefore, be discharged from the bail bonds. Fine, if any, paid by the Accused shall be refunded.

    25. Appeals allowed.

    S. 138 of the Evidence Act,

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Karmadhan Lama v. State Of Sikkim .
    (Sep 14, 1978)