1984 Supreme(MP) 235

High Court Of Madhya Pradesh
R. C. Shrivastava and N. K. Singh, JJ.
RAMVILAS RAMDIN
Versus
STATE OF M P
Decided On : Apr 04,1984

Headnote:(1) Evidence Act, 1872 - S.33 - statement of a witness who died before full cross -examination - condition precedent for making relevant the statement already recorded - the burden of proof of the existence of the condition is on the party relying on such statement - right of accused - cannot be waived by the accused - proof of death.

       (2) Criminal Practice - waiver- rights given to an accused - cannot be waived by accused or his counsel.

       One of the essential requirements for attracting the applicability of section 33 of the Evidence Act is that '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 his presence cannot be obtained without an amount of delay or expense, which, under the circumstances of the case, the Court considers unreasonable'. The allegation has to be legally proved like any other fact and the burden of proof rests upon the party which invokes the section.

       In a criminal case, it is not open to the accused to waive its proof. Consent or want of objection on the part of the accused or his counsel to the deposition of a witness being brought on record under the said section cannot make it admissible, if it is not otherwise so. AIR 1946 PC 1 & 1960 JLJ 755 relied on. AIR 1950 Cal. 435 referred to. [Para 9

       The serving officer's report on the summons and subsequent report of the investigating officer that the witness was dead do not constitute evidence to prove that allegation. [Para 9

       (3) Evidence Act, 1872 - S.33, II Proviso - opportunity to cross - examine should be full and not only partial - copy of paper required to cross - examination not given to accused-opportunity is not full -- police not bound to give copy of a document - If such copy is not given the opportunity is full. [Para 9

       (4) Evidence Act, 1872 - S.32 - dying declaration - what is - circumstances enumerated in the section-person did not die as the result of the injuries received in the incident - nor any other circumstances of the transaction which caused the death - is not a dying declaration. AIR 1964 SC 900 relied on. [Para 9

       (5) Criminal P.C., 1973 - S.164 - statement under -- can be recorded by an Executive Magistrate. [Para 9

       (6) Criminal P.C., 1973 - S.207 -- dying declaration is not one of those documents copy of which are to be given to the accused free of cost. [Para 9

       (7) Evidence Act, 1872 -- S.33 -- condition necessary -- subsequent stage of the proceedings.

       Section 33 makes relevant the evidence already given by a person (i) in a prior judicial proceeding or before any person authorised by law to take it or (ii) at an earlier stage of the same judicial proceeding, that is to say, if a party wants to give the evidence of the same person (i) in a subsequent judicial proceeding or (ii) at a subsequent stage of the same Judicial proceeding as the case may be, his evidence already recorded earlier can be considered and he need not be examined in the subsequent judicial proceeding or at the subsequent stage of the same judicial proceeding as the case may be if the circumstances and conditions mentioned in the section are fulfilled.

       After a witness is examined there is no subsequent stage in the case in which the witness may be examined, section 33 cannot be invoked. [Para 10

       (8) Evidence, Act, 1872 -- S.33, Proviso II -- full opportunity not given to accused by giving the copies of previous statements - case of accused prejudiced -- such evidence cannot be used against such accused. [Para 13

       (9) Criminal Trial - witness disbelieved for one fact -- can be relied on, for other facts --maxim 'falso in uno falsus in omnibus' is not a rule of law -- discrepancies in a statement -- not material.

       There is no such hard and fast rule that, if a witness is disbelieved with regard to the alleged complicity of an accused, her testimony with regard to the other accused should also be rejected.

       The maxim 'Falsus in uno, falsus in omnibus' is neither a sound rule of law nor a rule of practice for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggerations, embroideries or embellishments. AIR 1972 SC 2020 relied on.

       Some differences and discrepancies in detail are generally found in the case of honest witnesses and, unless they are material, they need not necessarily be disbelieved and it is also open to the Court to accept a part of the evidence of a witness while rejecting the rest of it. [Para 14

       (10) Criminal P.C., 1973 - S.162 - use of the statement by prosecution made during the investigation -- reading over the police statement before the witness enters the Court room is use of the statement made during investigation - vitiates the statement before the Court.

       A statement of a minor witness was read over to him before he entered the witness - box and was asked to give evidence according to that statement.

       Held: It is clear that the statement made by him to the police during the course of investigation was made use of in contravention of the above provisions. No body can say what he would have said had his memory not been refreshed in that manner before he entered the witness - box. It does not make any difference that the statement was narrated to him not when he was in the witness-box but shortly before entering the witness - box, because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. That tantamounts to making use of the statement at the trial. AIR 1941 PC 75 & 1968 Cr.L.J. 54 relied on. [Para 15