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Case Number

Criminal Case No. 9 of 1938

Judges

Venkataramana Rao, J.

Acts

SECTION 33 EVIDENCE ACT

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The accused was charged with the murder of one Munuswami on 14 October 1918. The accused is described in the record as Lubbai Kutti alias Aragur Chinnavadu alias Vepur Venkitasami, son of Subban. The Crown Prosecutor sought to tender, under Section 512 of the Criminal Procedure Code (Cr PC), the depositions of two witnesses (Mantha Raghavadu and Kumarala Venkataswami) on the ground that those witnesses were dead. The trial Judge examined the admissibility of those depositions in light of Section 33 of the Evidence Act and Section 512 Cr PC, and required strict proof of the fact of death. A Sub-Inspector of Police (Mr. Duraiswami Mudali) gave evidence of inquiries he made; the Judge found the inquiries and proof of death insufficient and rejected the depositions. The Judge then considered whether there was any evidence to go to the jury under Section 289 of the Cr PC and, exercising duties under Section 298 of the Cr PC to decide law questions arising in the trial, concluded that there was no evidence upon which the jury could properly find against the accused. The Crown Prosecutor declined to withdraw the prosecution under Section 494. The Judge directed the jury to return a verdict of not guilty under Section 289; the jury returned 'not guilty' and the accused was acquitted and set at liberty.

Legal Issues Presented

Whether the depositions of two witnesses may be admissibly tendered under Section 512 of the Cr PC where the witnesses are said to be dead, and what standard of proof of death is required (in light of Section 33 of the Evidence Act).
Whether the prosecution had adduced sufficient evidence such that there was evidence to go before the jury — i.e., whether there existed "evidence on which the jury could properly find" the prosecution's case (the preliminary question under Section 298 and relevant authorities, and the operation of Section 289 Cr PC).
Whether the Crown Prosecutor should exercise discretion to withdraw the prosecution under Section 494 of the Cr PC when the evidence appears insufficient, and what role the Court should take if the Crown declines to withdraw.

Arguments of the Parties

Crown Prosecutor's Position

The Crown Prosecutor sought to tender the depositions of Mantha Raghavadu and Kumarala Venkataswami under Section 512 Cr PC on the basis that those witnesses were dead.
The Crown called a Sub-Inspector to prove inquiries made in the locality; the Crown relied on the case diary and on statements obtained during investigation to support the claim of death.
The Crown Prosecutor conceded that clear and cogent evidence proving death was required and invited the Court to inspect the case diary; he accepted that strong proof was necessary but nevertheless pressed for admission of the depositions.
After the Judge concluded there was no evidence to go before the jury, the Crown Prosecutor declined to exercise his discretion under Section 494 to withdraw the prosecution and left the matter for the Judge under Section 289.

The opinion does not contain a detailed account of defensive pleadings or a structured set of arguments advanced by the defence in opposition; the record instead focuses on the Crown's application, the police evidence about inquiries, and the Judge's assessment of the prosecution evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1 Rang 5121 at p. 514 (May Oung J.)	That the power under Section 33 (Evidence Act) must be exercised with great caution and that strict proof of the requisite conditions is required, "more especially" where a man is being tried for his life.	The Judge relied on this authority to underline the need for strict proof of the conditions permitting tender of prior depositions; it supported the view that the prosecution must produce clear proof of death before admitting depositions.
(1869) 4 Ex. 322 (Willes J.)	The principle that a judge must decide whether any evidence has been given on which a jury could properly find for the party on whom the onus lies; rejection of the "scintilla of evidence" idea.	The Judge invoked this authority (via later commentary) to frame the duty under Section 298 Cr PC to determine whether evidence exists to go to the jury and to require more than a mere scintilla of evidence.
19 CWN 653 (Sir Lawrence Jenkins, Full Bench of Calcutta High Court)	Elaboration of the Judge's duties under Section 298, including deciding whether any evidence has been given on which the jury could properly find; statement that a scintilla of evidence is insufficient and the judge must be satisfied there is evidence on which a jury might reasonably conclude the fact to be established.	The Judge cited these observations to justify examining whether the prosecution had made out "any case at all" against the accused and to conclude that the prosecution's material was insufficient to be left to the jury.
(1877) 3 AC 193 (Lord Blackburn)	High authority cited in relation to the duty of the judge in assessing whether evidence is sufficient to go to a jury (supporting the propositions referred to above).	The Judge relied on this authority as part of the legal foundation for requiring that evidence be of sufficient quality/quantity before being left to the jury.
19 CWN 653 (Stephen J.)	Proposition that it is the duty of a judge to make a case for the accused on which he thinks a verdict of not guilty may properly be returned, even if not suggested by the accused.	The Judge cited this to support the active role of the trial Judge in ensuring that, where prosecution evidence is insufficient, the accused receives the benefit and the Judge may direct a not guilty outcome.
1932 MWN 6925 at p. 698 (Reilly J.)	Statement that the Public Prosecutor has a real discretion to withdraw a prosecution under the law and that the prosecutor's discretion is honourable and responsible, though subject to the Court's consent.	The Judge referred to this authority in discussing the Crown Prosecutor's option to withdraw the prosecution under Section 494 and to explain why the Court could take action if the Crown declined to exercise that discretion.

Court's Reasoning and Analysis

The Court's analysis proceeded in two connected phases: admissibility of the depositions, and whether any evidence remained to go to the jury.

Admissibility of depositions (Sections 33 Evidence Act and 512 Cr PC)

The Judge began by explaining that Section 33 of the Evidence Act permits the tender of prior testimony in later proceedings only if the party against whom it is tendered had the right and opportunity to cross-examine, subject to the Section's conditions. Section 512 Cr PC is an exception that permits a Magistrate to take depositions in the absence of the accused, but the exception requires strict compliance with statutory conditions.
Because strict proof of statutory conditions is required—especially in criminal cases—the Court insisted that the fact of death of the deponents must be strictly proved and that the burden of proof of death lies on the party tendering the evidence (the Crown).
The Crown's proof consisted mainly of the Sub-Inspector's testimony that he inquired of certain persons in the locality who "stated to him that they were dead" and references to entries in the case diary. The Sub-Inspector could not identify fathers or relations of the purportedly deceased, did not examine the persons listed in his diary, and had not questioned local witnesses who were available and likely to have relevant knowledge.
The Judge found these inquiries inadequate: the Sub-Inspector had failed in his duty to make reasonable inquiries to establish identity and death; the case diary inspection did not advance the Crown's claim; and there were omissions (e.g., failure to question local residents conversant with the facts) that undermined the Crown's proof of death.
On this basis, the Judge concluded the condition that the deponents be dead (or otherwise unavailable as required by Section 512) had not been satisfied and therefore rejected the depositions as inadmissible.

Whether there was evidence to go before the jury (Sections 298 and 289 Cr PC)

Turning to the question whether any evidence remained for the jury, the Judge invoked his duty under Section 298 to decide law questions during trial and relied on authorities (Willes J., Sir Lawrence Jenkins, Lord Blackburn, Stephen J.) which require that a judge ensure there is sufficient evidence on which a jury might reasonably and properly conclude the fact to be established. The Judge rejected the "scintilla" standard and required more than minimal evidence.
The assessment of the prosecution evidence on the facts revealed that the only eye-witness examined (P.W.1, Raghaviah) stated he could not identify the accused as the person who committed the murder and positively stated that the individual known to him as Lubbai Kutti did not possess any other name; these statements were uncontradicted.
P.W.2 (Ravoor Kishtan) had no knowledge of the occurrence and thus offered no material assistance. A witness called to prove parade identification (Jagannadha Mudali) was found to have prevaricated and given evidence the Judge described as "silly and absurd," rendering it worthless for identification purposes.
The prosecution's own concession (that the judge had excluded the depositions) and the state of the admissible evidence led the Judge to conclude that "there is absolutely no evidence to go before the jury at all." Accordingly, the statutory threshold for leaving the case to the jury was not met.
The Judge invited the Crown Prosecutor to withdraw the prosecution under Section 494, but when the Crown declined, the Judge exercised his duty under Section 289 to take action and asked the jury to return a verdict of not guilty.

Holding and Implications

Holding: The Court rejected the Crown's application to tender the depositions of Mantha Raghavadu and Kumarala Venkataswami under Section 512 Cr PC for want of strict proof of the witnesses' deaths, concluded there was no admissible evidence on which a jury could properly find against the accused, directed the jury to return a verdict of not guilty under Section 289 Cr PC, and the jury returned 'not guilty'; the accused was acquitted and set at liberty.

Implications: The direct consequence of the decision is the acquittal and release of the accused. The opinion emphasizes stringent requirements for admitting prior depositions under Section 512 (read with Section 33 of the Evidence Act), and the active duty of a trial Judge under Section 298 to determine whether evidence exists to go to the jury; where the prosecution cannot show sufficient admissible evidence, the Judge may direct an acquittal under Section 289. The opinion does not state any broader or novel precedent beyond applying these established principles to the facts of the case.

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Emperor v. Labbai Kutti Accused.

1. The learned Crown Prosecutor wants to tender the evidence of two witnesses, the depositions of Mantha Raghavadu and Kumarala Venkataswami, as evidence against the accused under Section 512 of the Cr PC, on the ground that the said witnesses are dead. Under Section 33 of the Evidence Act, evidence given by a witness in a judicial proceeding may be tendered in a subsequent judicial proceeding or at a later stage of the same judicial proceeding provided that the party against whom the deposition is tendered had the right and opportunity to cross-examine subject to certain conditions laid down in the Section being complied with. Section 512 of the Cr PC, which empowers a Magistrate to take the depositions of certain witnesses in the absence of the accused, enacts an exception to the principle embodied in Section 33 of the Evidence Act, namely that the evidence of a witness which a party had no right and opportunity to cross-examine is not legally admissible. Before an exception can be availed of, the conditions prescribed by the statute must be strictly complied with. Even under Section 33 of the Evidence Act, strict proof of the conditions required in that Section are insisted on, especially in criminal cases. In 1 Rang 5121 at p. 514 May Oung J. observes thus:

The power given by S. 33 requires to be exercised with great caution and the Court must insist on strict proof before holding that the requisite conditions have been satisfied. More especially is this necessary where a man is being tried for his life and the evidence sought to be put in is of signal importance.

2. Much more so under Section 512 of the Cr PC. Therefore it is incumbent that the death of the witnesses must be proved and there can be no doubt that the burden of proving the fuctum of death is upon the party who wishes to tender the evidence. The fact of death must be proved like any other fact and a mere report that a certain person is dead is not sufficient. The question in this case therefore is, what is the proof which the Crown has adduced before me of the fact of death? One Mr. Duraiswami Mudali, a Sub-Inspector of Police, has been examined before me and he states that he inquired of certain persons in the locality who stated to him that they were dead. In answer to a question put by me, the witness stated that he did not know the names of the fathers of either of the witnesses or the names of the relations and to this day he did not know them. It is rather singular and I do not sea how it is possible for any one to find out that a particular person is dead or alive without knowing the name of the father of that particular person or a relation of that particular person or some distinguishing feature of identification which will enable him to spot him out. It is not pretended that there are not persons bearing the said names in that locality. The best evidence in such cases is to tender the evidence of persons who are expected to have personal knowledge of the said witnesses, either relatives or friends, or persons residing in the locality who know or are likely to know about their whereabouts or about their history. It is admitted in this case that the topography of the place has completely changed and the locality is not the same as it was 20 years ago. In answer to questions put by me, the witness stated that he noted the names of the persons from whom he inquired in his case diary and the learned Crown Prosecutor insisted very much on my looking into it. I have looked into it and he has also looked into it and the learned Crown Prosecutor has been fair and candid enough to say that the inspection of the case diary has not advanced the case very much. The learned Crown Prosecutor was also fair enough to concede that clear and cogent evidence of the proof of death must have been put before the Court. Again, when I looked into the case diary to know the names of the persons from whom the Sub-Inspector inquired, the names of two persons are mentioned, and the witness admitted that none of them were examined in the lower Court; nor has their connexion with the witnesses been disclosed. Again, there were two witnesses who have been examined by the prosecution in this Court who are residents in the locality and were supposed to have been conversant with the facts of the occurrence. But the Sub-Inspector did not question these two persons, at all. In fact, the learned Crown Prosecutor was anxious to elicit from one of the said witnesses (P.Ws 1 and 2) as to the whereabouts of one of the witnesses whose deposition is sought to be tendered. In answer to certain questions from the Crown Prosecutor, the witness (P.W 1) said that people from the place where that witness died told him that he was dead. Therefore there is some indication as to the place where at least that witness was supposed, to have resided. If the Sub-Inspector had set about the matter in the right way and made the proper inquiry of the proper per sons, at any rate in regard to this witness at least, he would have found out where the said witness last resided. The Police Sub-Inspector has failed in his duty. The Crown, more than any other body, must be anxious to put before the Court legal evidence and on that evidence alone should ask the Court to convict a person. It is-rather regrettable that the officers of the Crown who have been deputed to do duty on its behalf have not done it in a proper manner. Therefore on the materials before me I am of opinion that it has not been, made out that the said persons are dead and one of the conditions which is required in this case for enabling the prosecution to tender the depositions under S. 512, which provides that such depositions can only be given where the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable, has not been complied with. I therefore reject the said evidence.

3. The learned Crown Prosecutor has now summed up the case fairly and he has left it to me to take further action thereon. Under Section 298 of the Cr PC, it is the duty of the Judge to decide all questions of law arising in the course of the trial. I think it is well established that in every case there is a preliminary question which is one of law, namely whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies.

4. This proposition was enunciated by Willes J. in (1869) 4 Ex. 322 at p. 38. In this connexion I would like to refer to the observations of Sir Lawrence Jenkins in 19 CWN 6533 as to the duty of a Judge in a jury trial. He was presiding over a Full Bench of the Calcutta High Court which was composed of eminent Judges besides himself, Stephen, Woodroffe, Mookerjee and Holmwood, JJ. Sir Lawrence Jenkins at page 663 observed thus:

The Judge's duties are further elaborated under, S. 298, and include the duty to decide all questions of law arising in the course of the trial. It would therefore come within the duty of the Judge to determine whether any evidence had been given on which the jury could properly find, the question for the party on whom the onus of proof lies, for that is a question of law. We have heard much of a scintilla of evidence and its paralysing effect on the power of the Judge to assist the jury; that is an argument that might possibly, have possessed some force in the early part of the last century. But the scintilla theory is now exploded. It is not enough to say that there was some evidence. A scintilla of evidence clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude the fact to be established.

5. In making these observations, the learned Judge was following the high authority of Willes J. in the case which I have just referred to and also of Lord Blackburn in (1877) 3 AC 193.4 In the same case, 19 CWN 653, Stephen. J. observed:

In conclusion, I may state the following propositions, which I consider elementary, but which seem to have been lost sight of in this case. It is the duty of a Judge to make a case for the accused on which he thinks that a verdict of not guilty may be properly returned, though the case has not been suggested by or on behalf of the accused.

6. The question therefore is whether there is evidence to go before the jury, i.e the evidence on which they can properly find that the prosecution can be said to have made out any case at all against the accused.

7. The accused in this case is alleged to have committed the offence of murder of one Munuswami on 14th October 1918. The prisoner is described as Lubbai Kutti alias Aragur Chinnavadu alias Vepur Venkitasami, son of Subban. The question therefore is what is the evidence which has now been adduced before me? The only eye-witness to the occurrence is P.W 1, one Raghaviah who has been examined. He states he cannot identify this man as Lubbai Kutti who is alleged to have murdered the said Munuswami. There is another important fact in his evidence. He was very positive that Lubbai Kutti whom he knew did not possess any other name and he was not known in the locality by any other name though he was fairly acquainted with him for 2 or 3 years before the occurrence. These statements remain uncontradicted and unchallenged and it has not been suggested that the witness was not speaking the truth. P.W 2, Ravoor Kishtan, does not know anything about the occurrence at all, and he does not help us. One Jagannadha Mudali was called to prove that he identified this man at a parade in Lucknow. His evidence is absolutely worthless. He prevaricated in the witness-box and the evidence given by him as to the opportunity he had to know the accused and his ability to identify him, to say the least, is silly and absurd and no Court or jury can act upon it. That is the reason why the learned Crown Prosecutor very wisely refrained from even referring to his evidence in his summing up. The fact to be established by the prosecution is not that a Lubbai Kutti committed the offence but that this particular accused committed the offence and that he was known not only as Lubbai Kutti but also by some other name the prosecution says he is known by. As the learned Crown Prosecutor stated, on the material on record it is impossible to make out that the accused has committed the offence and there is absolutely no evidence to go before the jury at all. The learned Grown Prosecutor incidentally remarked that I shut out the evidence of two eyewitnesses. Of course, I have done so and I have given my reasons for it and it is unnecessary for me to deal with it further. Even assuming that I admit them in evidence, it is rather doubtful how far it will help the prosecution. It is enough for me to say that there is no evidence to go before the jury on which they can be properly directed to give a verdict. Therefore I think it is my duty to take action under Section 289 of the Cr PC. I asked the learned Crown Prosecutor whether he would exercise his discretion under Section 494 of the Cr PC, to withdraw the prosecution. It was certainly open to him to do so, but apparently for some reasons he did not want to take that responsibility and he has left that to me. Without casting any reflections upon him, I think it is desirable in this connexion to refer to the observations of Reilly J. in 1932 MWN 6925 at p. 698:

Every case in which a person is committed for trial to the Sessions Court is not to be tried. The Public Prosecutor is not a machine or a slave to prosecute every case in which there has been a committal. To the Public Prosecutor is entrusted discretion to withdraw from the prosecution with the consent of the Court and his withdrawal puts an end to the case. The law gives him a real discretion in the matter. It may often be proper for him to consult the District Magistrate or other authorities before exercising that discretion. But in the eye of the law and of the Court the discretion is his alone, subject to the consent of the Court. The Public Prosecutor holds a very honourable and responsible office.

8. It is open to the Crown Prosecutor to withdraw the case at any stage of the case even after it has commenced and before the return of the verdict by the jury as will be seen from Section 494 of the Cr PC. As I have said, the learned Crown Prosecutor has been fair in his summing up and it must also be said to his credit that in all the cases which he conducted before me he conducted them very fairly for the Crown. But in this case he did not want to take the responsibility of withdrawing the case. I do not want to blame him for that and he has invited me to take action under Section 289 of the Cr PC. As I have come to the conclusion that there is no evidence to go before the jury within the meaning of Sec. 289, my obvious duty is to ask the jury to return a verdict of not guilty which I accordingly do.

Gentlemen of the Jury.

9. You have listened to the order I have just pronounced. You please return a verdict of not guilty. (The Jury returned a verdict of ‘not guilty’).

10. Prisoner at the Bar.

11. The Jury have returned a verdict of ‘not guilty.’ I therefore acquit you of the offence charged and set you at liberty.

C.R.K/D.S

12. Accused acquitted.

Emperor v. Labbai Kutti Accused.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Crown Prosecutor's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Emperor v. Labbai Kutti Accused.

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