P L D 1957 Dacca 451 (PLP)

ISPAHANI, J.‑

This is an appeal by the accused who was tried by the Sessions Judge of Rangpur and four assessors to answer the following charge under sections 302/34 of the P. P. C.: "That you along with Nadu and another on or about the 4th day of June 1955, at Panchagachi, P. S. Pirganj, committed murder intentionally or knowingly causing the death of Wajibulla alias Rajibulla in furtherance of the common intention of you all " The assessors were unanimously of opinion that the accused was guilty and the learned Judge accepting the opinion convicted the appellant Matia Badia alias Matia Badyakar under sections 302/34 of the P. P. C. and sentenced him to transportation for life. It is not necessary to set out the facts of this case because we propose to set aside the conviction and sentence passed on the appellant and order a retrial. The appellant was tried in a supplementary trial, the original trial being against Nadu, his brother. Mr. Sayem, who has appeared on behalf of the appellant, has raised a preliminary objection that there was no legal evidence on record proving the nature of injury sustained by Wajibulla and there was no proof either of his death He has argued that the medical evidence brought on record in the case from the earlier trial under section 33 of the Evidence Act is no evidence in law inasmuch as the said section has no manner of application in the present case because it had not been proved that doctor M. Hossain, who held post‑mortem examination on the dead body of the deceased Wajibulla, was ill when the case was being tried and for which reason he was unable to attend the Court. Mr. Sayem has argued that if the evidence of the doctor is not taken in evidence under section 33 of the Evidence Act, the conviction and sentence of the appellant cannot be sustained because expert opinion as to the cause of the death of Wajibulla will then not be available. In the case of Indar v. Emperor (A I R 1930 Lah. 1041), it was held that the Sessions Judge, before transferring the deposition of a witness in the Court of the Committing Magistrate to his own record, ought to take evidence and record proceedings and if, as a result of the evidence thus taken, he arrives at the judicial decision that the witness could not be found or his presence could not be secured without an amount of delay or expense, which under the circumstances of the case the Court considers unreasonable, he can bring his former deposition on the record. But if the Sessions Judge transfers the statement of the witness to the record of the Sessions Court simply because the Public Prosecutor makes a statement before him that the witness could not be found, the procedure is contrary to law and wholly irregular and the deposition of the witness thus brought on the record cannot be treated as evidence. In the case of Chemical Singh v. The King‑Emperor (50 C W N 201 (P C)), it was held inter alia that where it is desired to have recourse to section 33 of the Indian Evidence Act on the ground that a witness is incapable of giving evidence, that fact must be proved and proved strictly. It is further observed by their Lordships that to allow an appeal in a criminal case on the ground of mis -reception of evidence, the Judicial Committee require to be satisfied that grave and substantial injustice has been caused thereby. In that particular case there was ample evidence to justify a conviction apart from the evidence wrongful received, and, therefore, the conviction was upheld and the appeal dismissed. The learned Deputy Legal Remembrancer has referred to the case of Aminul Huq v. The Crown (P L D 1952 F C 63) and has conceded that the authorities cited by Mr. Sayem are good law and strict proof is required before the evidence of any witness under section 33 is taken into evidence. In the present case what we find from the record is this: On the 31st of July 1956, a petition was filed by the Public Prosecutor before the learned Judge stating that doctor M. Hossain, who held the post‑mortem examination of the deceased Wajibulla alias Rajibulla, was unable to attend Court as he was ill. He, therefore, prayed to accept the evidence of that witness given in Sessions Trial No. 10, January 1956, under section 33 of the Evidence Act. That is the only material before us to show that the doctor was ill on the day in question for which reason his evidence in the previous trial under section 33 of the Evidence Act was prayed for to be accepted. From the records it does not also appear that the learned Judge was satisfied that the ingredients of section 33 of the Evidence Act had been complied with. If that evidence is to be excluded, as it ought to be, there is no legal evidence as regards the cause of the death of the deceased. There is some evidence in the case that the deceased made a dying declaration implicating the appellant as his assailant but that is not expert evidence. If there was any other evidence which could have justified the conviction of the appellant, then the case could have been decided on that other evidence excluding the evidence of the doctor. There is no such other evidence. In these circumstances, it is necessary that the evidence of the doctor, who held the post‑mortem examination, must be brought on the record. The result, therefore, is that this appeal is allowed and the conviction and sentence passed on the appellant under sections 302/34 are set aside and it is directed that the appellant be retried according to law under sections 302/34 of the P. P. C. or any other appropriate section and the case decided after bringing the evidence of doctor M. Hossain on record according to law. The appellant will remain in hajat pending the re‑trial. ASIR, J.‑

I agree. Z. A. S. Retrial ordered. P L D