Statement of complainant recorded under Section 202, Cr.P.C - Complainant died - Accused does not have an opportunity to cross-examine the witnesses - Said statement is inadmissible in evidence

PATNA HIGH COURT

Before :- Sheema Ali Khan, J.
Criminal Appeal No. 14 of 1998. D/d. 24.3.2009.

Rajendra Thakur - Appellant
Versus
State of Bihar - Complainant

For the Appellant :- Rashid Izhar, Abdul Kalam, MD. Sarsuddin, Advocates.
For the Complainant :- Shashi Chandra Pandey, Advocate.
For the State :- Lala Kailash Bihari, Sr. Adv., and APR.
Patna High Court, Bihar Judgments
JUDGMENT

1. The sole appellant has been convicted under Section 364 of the Indian Penal Code to undergo rigorous imprisonment for seven years.
2. The prosecution case as made out in the complaint case filed by Sanjivan Thakur is that one Rajendra Thakur alias Sharma came to his residence on 23.6.1991 at 11 a.m. and claimed that he was the son of the sister's husband (SARHU) of the complainant and asked the complainant's wife to accompany him to attend the marriage of his niece which was to be held on 23.6.1991 at village Bihta. The wife of the complainant carried with her gold and silver ornaments and a sum of Rs. 5,000/- for the purpose of attending the said wedding.
The allegation is that the accused misrepresented himself to be the son of the 'SARHU' of the complainant and deceived the complainant and took her away from the house of the complainant. It is further alleged that the wife of the complainant i.e., Sakali Devi did not return home and as such a Sanha was lodged at the Jakkanpur Police Station on 14.8.1991. Later on, however, the complainant came to know that no Sanha or FIR has been instituted and as such he filed a complaint before the Chief Judicial Magistrate, Patna alleging that his wife was kidnapped by the sole appellant.
3. Before the trial could commence, the complainant died and as such the statement recorded under Section 202 of the Code of Criminal Procedure was the only material before the Trial Court, apart from witnesses which have been examined in this case to substantiate the allegations.
4. The statement of the complainant under Section 202 of the Code of Criminal Procedure is the basis for conviction of the appellant on the ground that the statement would be covered by Section 33 of the Indian Evidence Act (hereinafter referred to as "the Act").
5. Section 33 of the Act reads as follows :-
    "33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - 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 :
Provided -
    That the proceeding was between the same parties or their representatives in interest;
    That the adverse party in the first proceeding had the right and opportunity to cross-examine;
    That the question in issue were substantially the same in the first as in the second proceeding.
    Explanation. - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
6. Section 33 of the Act envisages that evidence of a witness in a judicial proceeding by a person authorized by law to take it, is relevant for the purpose of proving the truths of a particular fact. However, this section also envisages that the truth of such statement should be subject to the opportunities of cross-examination. Therefore, the evidence could only be admissible under Section 33 of the Act if the accused on the prior occasion had an opportunity to cross-examine the witnesses. If in a particular judicial proceeding, the person concerned does not have a right to cross-examine the witnesses making the statement, then of course the statement if recorded in the judicial proceeding cannot be taken into account for determining the truth of any fact. In a criminal case, where the accused has a right to cross- examine the witnesses, the statement made under Section 202 of the Code of Criminal Procedure, where the accused does not have an opportunity to cross- examine the witnesses cannot be treated to be admissible in evidence under Section 33 of the Act.
7. In this case, the facts reveal that the complainant i.e. the husband of Sakali Devi did not take any steps to find out the whereabouts of his wife for three months specially in view of the fact that the complainant does not claim that he personally knew the appellant.
8. The circumstances also do not explain as to why the complainant would have allowed his wife to go alone to attend the wedding, normally it is expected that both of them would have gone to Bihta to attend the wedding of their niece or at least have prior information regarding the occasion and be prepared to attend the said wedding.
9. Four other witnesses have been examined in this case. All of them are hearsay witnesses and are only on the point that Rajendra Thakur also came to the house of the complainant. These witnesses have not been able to explain the reasons as to why Rajendra Thakur had come to the house as none of them were actually present in the house of the complainant at the time of the occurrence.
10. Considering the entire gamut of facts, this Court finds that there are several lacunae in the prosecution case and as such it cannot be held by this Court that in fact the appellant had gone to the house of the complainant to fetch his wife for the purpose of taking her to Bihta. Besides the facts stated aforesaid, no motive has been assigned for the alleged kidnapping. During the trial, it appears that the prosecution has tried to make out a case that the appellant was interested in a piece of property belonging to the deceased. However, it appears from the sale deed filed on behalf of the appellants shows that the complainant had come into the possession of the property of his wife and had infact sold it in the year 1992. Therefore, the reason assigned for the said occurrence is falsified by the evidence led by the defence.
11. In the circumstances aforesaid, the judgment dated 22nd December, 1997 passed by the Additional Sessions Judge VIII, Patna in Sessions Trial No. 822 of 1995 arising out of Complaint Case No. 524(C) of 1991 is set aside. The appellant is also discharged from the liabilities of the bail bonds furnished in this case.
12. In the result, the appeal is allowed.

Appeal allowed.
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