Poyami Bijju vs State of C.G.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 15th of November, 2000 passed in Session Trial No. 21/98 by the Session Judge. Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted u/s. 302 IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:-

Gangi (PW-6) is wife of deceased-Manka. They were residing together in village Kotrapal. On 29.10.97 at about 16:00 hours Mandvi Hunga (PW-1) lodged merg intimation (Ex. -P/10) and F.I.R. (Ex. -P/6) that Gangi (PW-6) told him that in the night of 28.10.97, the appellant came to their house and assaulted the deceased who sustained multiple serious injuries and succumbed to those injuries. The incident took place on account of denial by the deceased to give chhindhrus (a local toxicant drink) to the appellant which he was repeatedly demanding from the deceased. The Investigation Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex. -P/1) on the dead body of the deceased. The dead body was sent for post-mortem to PHC Bhairamgarh. The post-mortem examination was conduct by Dr. Amar Singh Sendram (PW-5). He noticed multiple contusions and incised wounds (total 7 injuries) on the dead body of the deceased. On internal examination, it was found that there were fractures over 2nd, 3rd & 4th right ribs. Right lung was also damaged. There were fractures over both the forearms below injury nos. 6 & 7. The Autopsy Surgeon opined that injury nos. 1 to 4 were caused by sharp edged weapon and the remaining injuries were caused by hard and blunt object. Injury nos. 1 to 4 were sufficient to cause death in ordinary course of nature. The cause of death was cardio-respiratory arrest due to injury nos. 1 to 4 and the death was homicidal in nature. The postmortem report is Ex. -P/13. In further investigation, the appellant was taken into custody and a danda and knife was seized from his possession on 29.10.97 vide seizure memo Ex. -P/3. Though seized articles were sent for their chemical examination to F.S.L., Raipur, but the F.S.L. report could not be filed.

The case of the prosecution was based on solitary evidence of Gangi (PW-6). She was the sole eye-witness to the incident. Gangi (PW-6) appeared before the Session Court on 8.9.98. Her examination-in-chief was completed. However on account of absence of counsel for the appellant, she could not be cross-examined by the defence and the learned Session Judge reserved right of cross-examination to the defence making note that it shall be on the ''risk and responsibility'' of the appellant. Thereafter on 9.9.98 the defence counsel filed an application u/s. 311 of the Cr.P.C. This application was allowed and orders were passed for issuance of summons/notice to Gangi (PW-6) for her cross-examination. Notice sent on 10.1.98 was served upon Gangi (PW-6) for her appearance on 31.1.98. However Gangi (PW-6) did not appear before the Session Court on the said date even after service of notice. Thereafter many notices/bailable warrants were sent to her, but none of them could be served upon her and ultimately the matter was closed and judgment was passed.

It was argued before the Session Court that the version of Gangi (PW-6), as recorded in examination-in-chief, was not admissible in evidence because no opportunity was granted to the defence to cross-examine her. The learned Session Judge did not accept the above argument and held that the version of Gangi (PW-6) recorded in her examination-in-chief was admissible u/s. 33 of the Evidence Act. The learned Session Judge thus relied on the sole testimony of Gangi (PW-6) and convicted and sentenced the appellant as aforementioned.

Ms. Nirupama Bajpai, learned counsel appearing on behalf of the appellant, has argued that the Session Judge erred in law in accepting the evidence of Gangi (PW-6) without her cross-examination; the appellant was given no opportunity to cross-examine her; her evidence was not admissible u/s. 33 of the Evidence Act; therefore, conviction based on the sole testimony of Gangi (PW-6) cannot be sustained.

On the other hand, Mr. V.K. Shrivastava, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned counsel for the parties at length and have also perused the records of the sessions case.

Gangi (PW-6) was the sole eye-witness to the incident. She appeared before the Session Court on 8.9.98. Her examination-in-chief was conducted in which she deposed about the incident and supported the version of the prosecution. Since counsel for the appellant was absent on the said date, the learned Session Judge adjourned the matter reserving the right of the appellant to cross-examine this witness with a note that his right shall be on the ''risk and responsibility'' of the appellant. Such note has been made in the deposition sheet after completion of the version of the witness in examination-in-chief. Thereafter on 9.9.98 the defence counsel filed an application u/s. 311 Cr.P.C. which was allowed and summons/notice were issued to Gangi (PW-6). We gather from the order-sheet dated 31.1.98 that summons for appearance on this date was duly served upon Gangi (PW-6), but even after service of summons she did not appear on this date, and she never turned-up before the Session Court, though various notices and bailable warrants were issued to her.

The question falls for our consideration, therefore, is:-

Whether the learned Session Judge was justified in accepting the above evidence (examination-in-chief alone) of Gangi (PW-6) treating it as admissible u/s. 33 of the Indian Evidence Act, 1872?

Let us firstly look into the relevant provisions of the Indian Evidence Act, 1872 and principles relating thereto.

CHAPTER X of the Evidence Act deals with the examination of witnesses. Section 137 says about ''examination-in-chief; ''cross-examination''; and ''reexamination''. Section 138 provides for order of examinations. It provides that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. It further provides that the examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Section 138, thus, indicates towards the rights of the concerned parties while examination of witnesses. The right of cross-examination available to the defence is an independent right There are legal consequences relating to the above right which accrues after examination-in-chief of the witness is over. The very purpose of cross-examination of a witness is to test the veracity of the witness and to give the defence an opportunity to separate truth from falsehood. The evidence of a witness is tested on the anvil of truth by the process of cross-examination.

Section 146 of the Evidence Act further enlarges the scope of cross-examination and provides that when a witness is cross-examined, he may, in addition to the questions referred to in preceding Sections, be asked any questions which tend to test his veracity to discover who he is and what is his position in life, or to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. However a proviso has been added to this Section relating to prosecution for rape or attempt to commit rape.

Thus, the very object of Section 138 is to provide right to the parties to bring truth on record for advancement of justice while examination of the witnesses. Therefore, it is very clear that the evidence of a witness would not be legally admissible against a party who at the time of evidence had no opportunity to cross-examine the witness.

Section 33 of the Evidence Act deals with the relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. It provides that the evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Proviso to Section 33 makes it clear that three important conditions are required to apply the provisions of Section 33. (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the ''right and opportunity'' to cross-examine; and (Hi) that the questions in issue in both the proceedings were substantially the same. A perusal of the entire provisions of Section 33 would make it clear that in absence of any of the three conditions referred to above, Section 33 would not be attracted.

The second condition referred to above in the proviso to Section 33 talks about 2 distinct factors. They are - ''right'' and ''opportunity to cross-examine''. This makes clear that while applying the provisions of Section 33 of the Evidence Act, the Court has to look into the question of ''right'' and ''opportunity to cross-examine'' and then only to apply it in appropriate cases.

In the instant case, Gangi (P W-6) appeared before the Session Court on 8.9.98 and her examination-in-chief was completed and the matter was adjourned reserving the right of cross-examination of the appellant making a note that it shall be on the risk and responsibility of the appellant. Thereafter an application filed on behalf of the appellant u/s. 311 Cr.P.C. was also allowed and orders were passed for issuance of summons/notice to Gangi (PW-6) for her cross-examination. Notice was served upon Gangi (PW-6) for her appearance on 31.1.98. Even after service, she did not appear on the said date and then various efforts were made for her appearance by issuing the subsequent notices and bailable warrants, but she did not turn-up till last. The Session Judge has held that since the right of the appellant to cross-examine Gangi (PW-6) was reserved on the risk and responsibility of the appellant, therefore, if she did not turn-up, it shall be treated that the appellant was given that right and he has availed it and the evidence led by Gangi (PW-6) in her examination-in-chief would be admissible u/s. 33 of the Evidence Act.

There is nothing in criminal jurisprudence that the procedural law would run on the risk and responsibility of an accused. The procedural law must take its own course. The appellant was throughout in jail. His counsel was absent on the date of the evidence. If the learned Session Judge, in the above facts and circumstances, had adjourned the matter for cross-examination of the witness, the witness was required to appear for cross-examination and if the witness does not turn-up for cross-examination it cannot be said that the appellant had availed the right and opportunity because he did not prefer to cross-examine the witness on the date of examination-in-chief. We note that in compliance of the Court''s order, the appellant made efforts for service of Gangi (PW-6) and she was duly served for her appearance on 31.1.98 and even after service, she did not make herself available in the Court for her cross-examination. It was thus lapse on the part of the witness, Gangi (PW-6), that she did not produce herself for her cross-examination and in such situation, it cannot be said that fault was on the part of the appellant and it would be treated that he has availed the right and opportunity of the cross-examination. We may take example of a case in which the time does not permit the cross-examination of a witness after completion of examination-in-chief and the Court fixes another date for appearance of the witness for cross-examination and on that date or on subsequent dates the witness did not turn-up. In such situation, whether the evidence of such witness would be admissible? The answer would be simply ''No'' because the witness was not put to cross-examination by the defence. This is normally done in all Courts. The situation in this case is approximately the same. In the instant case the important fact is that summons/notice, for appearance of Gangi (PW-6) was duly served upon her and even after service she did not turn-up for her cross-examination. We are of the opinion, that in view of the mandatory provisions of Section 33 of the Evidence Act in the above facts and circumstances of the case, it cannot be said that the appellant had availed his right and opportunity to cross-examine Gangi (PW-6) and her evidence (examination-in-chief) was admissible u/s. 33 of the Evidence Act. Thus the learned Session Judge was not justified in accepting the above evidence of Gangi (PW-6) u/s. 33 of the Evidence Act.

Apart from the above evidence of Gangi (PW-6), there is absolutely no evidence in this case. All other witnesses (except the police witnesses and Doctor) have turned hostile and they have not supported the case of the prosecution. Even Mandvi Hunga (PW-1), who lodged the F.I.R. (Ex. -P/6) and merg intimation (Ex. -P/10), also turned hostile. If the evidence of Gangi (PW-6) is kept out of consideration, there is no other evidence to hold the appellant guilty of the charges framed u/s. 302 IPC.

In these facts and circumstances of the case, we are unable to sustain the conviction of the appellant on the above evidence on record.

For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to appellant u/s. 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant is in jail since 12.11.97. It appears that he could not avail the benefit of order of suspension of sentence passed by this Court on 21.3.2006. He be released forthwith, if not required in any other case. This matter was filed by Mr. Sudhir Bajpai, Advocate through High Court Legal Services Committee (HCLSC). Later on, he was appointed as Dy. Govt. Advocate. Then Ms. Nirupama Bajpai, Advocate, who is also in the panel of HCLSC, appeared and argued this matter. Therefore, fee, if any, now payable by the HCLSC shall be paid to Ms. Nirupama Bajpai, Advocate.