Jawahar Barua vs State

(1) This is an application against an order passed by the S. J. Srinagar dated 26374 by which he has accepted the prayer by the prosecution to

tender the statement of Miss Neta Gaind to sessions file under S. 33 of the Evidence Act.

(2) It appears that the accused has been committed to the court of sessions to stand his trial under Ss. 363/366/376 of the Ranbir P. C Before the

committing court Miss Neta Gaind and other witnesses had appeared and Neta Gaind was crossexamined by the counsel for the accused. The

committing court did not bind over the witness for appearing before the Sessions Court. The prosecution submitted before the learned S. J. that it

was not possible for it to obtain the presence of the witnesses without an amount of delay or expense and it would be unreasonable to summon

them, In support of its plea the prosecution relied on a letter sent to the learned S. J, by Mr. O. P. Gaind, father of the prosecutrix wherein he had

alleged three grounds on the basis of which exemption from attendance of the court was sought for. In the first place it was alleged that Nita Gaind

had suffered a serious mental shock as a result of the criminal assault on her by the accused and was advised by the doctor not to appear in the

court. Secondly Mr. Gaind stated that the University examinations of the prosecutrix were to start towards the middle of March 1974 and it was

therefore impossible for the prosecutrix to appear in the court during that time. Lastly Mr. Gaind took the plea that he had no means to send the

prosecutrix all the way from Nepal to Srinagar.

(3) Certain attempts were made by the learned S J to ensure the attendance of the prosecutrix, but they proved futile. The sheet anchor of the

argument of the prosecution is that as the prosecutrix was suffering from mental shock and was living in a foreign country, her presence could not

be obtained without some amount of delay or expense which in the circumstances would be unreasonable Perhaps if it were a case of any other

witnesses, the court may have been justified in taking a more or less liberal view of the matter. In the instant case the accused is facing trial for an

offence of abduction and rape which entails severe penalties in law and the proof of which depends mainly on the evidence of the prosecutrix. It is

manifest that Miss Gaind is the most material witness for the prosecution, not only on the point of criminal assault but also on the point of age. In

these circumstances the S. J. should have recorded more substantial and compelling reasons for transferring her statement to the committing court

than those given in the present case. Under the amended Criminal P. C. commitment proceedings have got a very limited function to perform and a

Magistrate cam commit even without examining any witnesses. In these circumstances even if a witness is examined by a committing court, and for

that matter is the most material witnesses he has to be crossexamined only for the limited purpose of showing that no prima facie case for

commitment has been made out, it is nekher the duty of the defence nor the province of the committing magistrate to go into the pros and cons of

the matter what can be gone into only at the trial. In these circumstances if the prosecutrix is not produced before the sessions court, then the entire

edifice of the prosecution case would crumble to pieces. The learned S J. does not appear to have kept these important considerations in view. It

is stated before me that if the prosecutrix would have been produced in court, she would have been confronted with certain documents which

would have satisfactorily proved that she was about 18 years of age and by her nonproduction the accused would thus be deprived of a very

important advantage which he would have otherwise gained, as a result of which he would suffer serious prejudice. Even on merits I am not

satisfied that a case for tendering the statement of the prosecutrix under S. 33 of the Evidence Act has been made out. S. 33 is an exception to the

general rule and therefore must be construed strictly.

(4) In the instant case from the letter written by the father of the prosecutrix it appears she could appear before the court provided she was free

from her examinations and provided the court had borne the expenses of bringing the procecutrix to Srinagar. It is true that superadded to these

two conditions is the question of her mental shock. It is not unusual in this country to come out with the plea that a prosecutrix has suffered a

mental shock after a criminal assault was committed on her by the assailant. The doctor's certificate is quite vague on this point. In the first place

according to the certificate produced before the court the doctor has examined the prosecutrix on 30174, that is to say about five months from

today. Even if the petitioner had suffered from mental shock at that rime, by the lapse of time the mental shock may have disappeared and we do

not know what is the present position. Furthermore I am not able to understand that if a person is suffering from a mental shock, how he would be

able to appear in a final University examination and not subject himself to crossexamination in a court of law if the mental faculties of the

prosecutrix were affected, then she would not be able to appear at the University examination only two months after she was examined by the

doctor. It seems to me, Therefore, that the theory of mental shock has been used as a camouflage to induce the court to exercise its discretion in

tendering the statement of the witness to the sessions file under S 33 of the Evidence Act. The learned judge in exercising his discretion has gravely

erred in not considering the great mischief that the nonprojection of the prosecutrix in the sessions court is likely to cause to the case, together with

the great prejudice that will be caused to the accused. The S. J therefore should have had more substantial and compelling matterials before him to

exempt the personal appearance of the witness rather than act in baste.

(5) The application is therefore allowed, the order of the S. J. dated 26374 is set aside and he is directed to take steps to ensure the attendance of

the prosecutrix. Parties are directed to appear before the S. J. on 10674.