In criminal trials, a witness's incapacity to attend court under Section 33 of the Evidence Act must be strictly proved; hearsay evidence of illness is insufficient. However, misreception of evidence does not warrant reversing a conviction unless it causes grave and substantial injustice.

Judgement

Appeal (No. 8i of 1944), by special leave, from a judgment of the High Court (April 20, 1944) dismissing an appeal from a judgment of the Additional Sessions Judge of Amritsar (January 21, 1944) convicting the appellant of murder under s. 302 read with s. 149 of the Indian Penal Code.

The following facts are taken from the judgment of the Judicial Committee. The appellant was charged before the Additional Sessions Judge along with thirteen others with the murder of one Sohan Singh. The Sessions Judge convicted seven of the prisoners and sentenced them all to death, and acquitted the remaining seven. All the convicted persons appealed, and the High Court (Beckett and

A. N. Bhandari JJ.) upheld the conviction and sentence on the appellant; they upheld the conviction of one other of the prisoners but substituted a sentence of transportation for life for that of death, and quashed the convictions of the other appellants.

The murder took place at the Gorewala well, in the village of Mianpur, where the murdered man was lying on a cot. There were several persons called who alleged that they were eye witnesses. Among them was a "patwari," Lachhman Das, who happened to be at the village that night in the course of his duties. He was examined before the committing magistrate and there gave evidence in considerable detail showing that the appellant took a prominent part in the attack on the deceased, and he was cross-examined by counsel for the accused. On December 8, 1943, the appellant, along with the other accused persons, was committed for trial to the sessions which were held on January 19, 1944. On January 6, a summons was served on Lachhman Das ordering him to appear and give evidence at the trial on the 19th. That summons was served on him by a police officer, Ganda Singh. Lachhman Das wrote on the summons Sir, I am seriously ill and am unable to attend the court. My statement may kindly be recorded at my place of residence, and gave it to the police officer. He did not appear at the trial, and the officer was called, and his evidence was as follows "I was entrusted with the summons issued for the service of Lachhman Das.

"I found him ill and unable to move from his house. He is suffering from tuberculosis. I got a report to that effect made by the patwari on the summons."

The Public Prosecutor, on that evidence, applied to have his statement made before the magistrate transferred to the sessions file and read, under s. 33 of the Indian Evidence Act. It appears that counsel for the accused stated that he had no objection to that being done, and thereupon the Additional Sessions Judge admitted the statement. The material provisions of s. 33 were in these words " Evidence given by a witness in a judicial proceeding, ....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 incapable of giving evidence, ....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.”

The question of law which arose in this appeal and was the ground on which special leave was given, was whether the previous statement of the witness for the prosecution, Lachhman Das, made before the committing magistrate, was properly admitted at the trial under s. 33 of the Evidence Act, 1872.

1945. July 2. Pullan for the appellant. The question is what proof of incapacity is necessary to enable the court, on the ground that a witness is too ill to attend, to admit in evidence a statement made by the witness at a previous stage of the hearing. The statement of Lachhman Das was the only evidence on which the High Court relied. The whole evidence in this case is weak; in the first place the body of the murdered man was never found, which takes away the valuable evidence of the doctor as to when and how the person was killed; and