Sk. Abdul Awal Petitioner Vs The State

Mukul Gopal. Mukherjee, J.@mdashThis revisional application is directed against an appellate judgement and order passed on 27.8.88 by the learned Additional Sessions Judge, 3rd Court, Howrah in Criminal Appeal No. 5 of 1988 whereby the order of conviction u/s 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 and sentence of rigorous imprisonment for a period of three years along with payment of fine of Rs 1,000/- in default rigorous imprisonment for a further period of three months as passed by the learned Chief Judicial Magistrate, Howrah on 8.1.88 in Case No. 182 of 1984 stood confirmed. The prosecution case inter alia is that Sub-Inspector, J.K. Sana attached to R P.F., Tikiapara, South-Eastern Railway got some prior information on 10.10.81 pursuant to which in course of a secret watch at Ramrajatala station, he found the petitioner with one side cloth bag moving in a suspicious manner on platform No. 1 at about 6-30 p.m. He was in company with three other persons as and when the petitioner was apprehended, the other associates of the petitioner managed to run away but later on they were arrested. In the bag allegedly found in possession of the petitioner, 17 pieces of aluminium strips of Railway E.M.U. coach window shutter were found. It was the prosecution allegation that these properties were stolen by the petitioner and his associates from the E.M.U. coach Nos. 10243 and 10843 on the (sic) of October 8/9, 1981 and that the present petitioner and his associates removed those materials from the E.M.U. coaches with the help of instruments which were kept concealed in a tea stall of one Gopal Chandra Adhikary of Kulgachia Station Road after the operation. As and when the petitioner and his associates went to Ramrajatala station to dispose of the stolen property the petitioner was arrested. The instruments i.e. the implements with the aluminium strips were cut from the window shutter were recovered and seized from inside the tea stall of one Gopal Chandra Adhikary pursuant to the statement of the present accused petitioner. The defence was one of false implication.

2. As many as 15 witnesses were examined on behalf of the prosecution at the trial. The defence, however, did not examine any witness and failed to account for the unlawful possession of the aluminium strips. The learned Trial Magistrate came to a positive finding that theft was committed in respect of 17 pieces of aluminium strips from the E.M.U. coaches which actually were seized from the petitioner. The learned Magistrate acquitted the three associates of the petitioner mainly on the ground that there was no direct evidence to connect them with regard to possession of the incriminating articles. The learned Magistrate also took into consideration the confessional statement of the present accused petitioner but with regard to the evidentiality value of the said confessional statement against the other associates, he rightly held that the same could not he used a substantive piece of evidence, more so in view of the confessional statements having been elicited from the other associates after the recovery of the articles. The learned Magistrate convicted the present petitioner mainly on the ground that all the Drosecution witnesses corroborated with each other in connection with the apprehension of the present petitioner and testified about the recovery of 17 pieces of aluminium plates used, for E.M.U. coaches from him and that the materials had been properly identified. He also believed in the factum of recovery of the implements which were used for cutting aluminium strips from the tea stall of Gopal Chandra Adhikary at Kulgachia station road pursuant to the statement of petitioner. The instruments concealed at the tea stall were, found kept in a handbag and those instruments included two hacksaws five hacksaw blades and hammers etc. The learned Magistrate also believed that a memo was sent to the Officer-in-charge. R.P.F. regarding theft of some window shutters from coach Nos, 10243 and 10843 and the said memo was duly proved and marked as Ext. 9;lt was further identified that the type of window shutters as was recovered from the petitioner and which contained material Ext. 1 were actually found missing from coaches No. 10243 and 10843 on 10.10.81. The learned Magistrate had no hesitation in coming to a positive finding that the petitioner was really guilty u/s 3(a) of the Railways Property (Unlawful Possession) Act, 1966 and he convicted him thereunder and sentenced him to suffer rigorous imprisonment for three years along with payment of fine of Rs. 1,000/ - in default rigorous imerisonment for a further period of three months.

3. The petitioner preferred an appeal which was heard and disposed of by the learned Additional Sessions Judge. 3rd Court, Howrah who by a judgment and order dated 27th August, 1988 dismissed the appeal. The main contention raised by the petitioner before the learned Additional Sessions Judge was that P.W. 8 the Assistant Electrical Engineer who came as an expert to prove the material to be the property of the railways was not produced for cross-examination before the framing of the charge, it could not be said that no opportunity of cross-examination was afforded to the accised petitioner. The defence lawyer had every jopportunity to challenge the report as given by this withness and hence the defence was not really prejudiced since nothing tangible could be extracted from the expert opinion which could shake the credibility of the report and that his testimony was not really vital to determine the issue as to whether the articles were railway properties or not. The learned Additional Sessions Judge was of the view that the report was admissible into the evidence since before framing of the charge he had been examined and cross-examined at length and even apart from this evidence, the prosecution has been able to prove beyond reasonable doubt, the possession of the incriminating articles with the present petitioner which prssession was not legal and that these properties found with the petitioner could not be properly accounted for by the petitioner.

The learned Additional Sessions Judge accordingly afflirmed the conviction and sentence.

4. In the present revisional application Mr. Sudipto Maitra appearing on behalf of the petitioner contended before us that no independent witness was examined in the case in order to prove the alleged seizure of the properties from the possession of the petitioner. We have looked into the entire evidence on record and we have no hesitation what so ever that the learned Additional Sessions Judge as a court of appeal has clearly arrived at a finding in this regard that the factum of seizure of the incriminating articles form the-petitioner was proved beyond reasonable doubt and that Railway protection force personnel who were examined in the case were worthy of credence in this regard to prove the factum of the seizure, it being a case u/s 3(a) of the Railway Properties (Unlawful Possession) Act, 166. Once it is proved that they were railway properties, the onus really shifted on the present petitioner to account for this possession and the present petitioner having signally failed in this regard and on the other hand the very factum of theft of aluminium shutters form the window panes having been proved in respect of two E.M.U. coaches for which a proper memorandum was made and there having been sufficient corroboration in this regard, the entire evidence clinched the issue that the articles seized were railway properties and the petitioner was in unlawful possession thereof.

5. It is indeed true that P.W.8 who was sought to be examined by the prosecution submitted a report which was proved in evidence His oral trestimony was sought to be admitted into a evidence even though on the ground his death he could not put to any cross-examination after the framing of the charge but he was exhaustively cross-examined at the trial prior to framing of the charge.

6. In Dal Bahadur Singh v. Vijay Bhadur Singh reported in AIR 130 Privy council 79 the principle was well enunciated that a true reading of Section 33 of the Evidence Act will lead us to come to an inference that the testimony of a witness in a judicial proceeding will be relevant in a lalter stage of the same proceeding as regards the truth of the facts testified to, when the said withness is dead, only if the other party challenging the truth or the statement had both the right and the opportunity of cross-examining him, as otherwise u/s 33 of the Evidence Act, the said evidence would not be admissible.

7. In a Single Bench judgement of the Madras High Court in Mathiah v. Emperror reported in AIR 124 Mad 735:25 CLJ 556, it was held that the evidence of a withness who had died and whom the accused had an opportunity to cross-examine in a previous trial was adimssible. The learned Single Judge went further to say that the evidence of a withness deposing in a preliminary enquiry whom the accused had an opportunity to cross-examine, was admisible in the Sessions trial if that witness was dead and the.argument that the accused had lost the opportunuity to further cross-examining him in Sessions Court, did not affect its admissibility, however, much it may affect the value to be put upon it.

8. The Allahabad High Court in Debi Singh v. Emperor reported in 20 Criminal Law Journal Reports had to deal with the question of admissibility u/s 33 of the Evidence Act in respect of a statement in a civil suit in a criminal case between the same parties after the death of the deponent, on the basis of which the accused was convicted. It was held in this case that since the accused had an opportunity to cross-examine the deponent at the time the statement was made and the proceedings were between the same parties within the meaning of the explanation of Section 33 of the Evidence Act and that Court was satisfied on a review of the entire evidence that deponent had spoken the truth, his statement in the civil suit was sufficient to prove that a partricular receipt which was in dispute was a forgery.

9. In Sundara Rajali v. Gopala Thevan reported in AIR 134 Mad 100 a learned Single Judge of the Madras High Court held in the facts of the case while discussing all the case laws on the point till that date, that a deposition of which there was no opportunity at all to cross-examine, is not admisible u/s 33 of the Evidence Act. If the cross-examination was not complete and if the wlitnes died after having partly cross-examined, his evidence was altogether inadmissible. That was also taken to be the view in Rosei v. Pillamma 11 CLJ 145 : 5 IC 512.

10. In a Division Bench Judgment of the Calcutt High Court in Tafiz Pramanik and Others Vs. Emperor, in was held that Section 33 of the Evidence Act provides inter alia that the adverse party must have had the right as well as an opportunity to cross-examine. If the defence had that right even before the framing of the charge, it could not be said that it had no opportunity to cross-examine, if the defence wished to exercise its right, it seemed to the Division Bench, that it was incumbent upon the accused to claim it. the fact that the defence did not do so can only give right to the inference that the defence did not wish to cross-examine in that court at that stage and that the defence reserved the cross-examination before the Sessions Court. It has however, been pointed out that the option of this course necessarily involved some risk, though it is not a risk which was ordinarily to be deemed to be a serious one. According to the Division Bench view it was a case for the application of the maxim "omnia praesumuntur rite esse acta" where it should be fairlv assumed that there was a right to cross-`examine the witness if the accused had chosen to exercise his right. The assumation is that the right existed and not the contrary.

11. A Division Bench of our High Court in S.C. Mitter Vs. The State, , however, held that as regards the meaning of the Proviso u/s 33 regarding "opportunity to cross-examine" it should be meant and construed that the opportunity to cross-examine is a full opportunity of cross-examining the witness. Before charge was framed, the accused had certainly the opportunity to cross-examine the witness but at that stage the accused had no right to cross-examine the witness. The reasons for the conclusion is that the accused in a warrant case has no right to cross-examine the witness before charge is framed within the meaning of Section 33 of the Evidence Act, An earlier case being Criminal Appeal No. 236 of 1949 (not specifically reported) was referred to and in that view a conclusion was reached by the Division Bench in this case that the evidence of the witness who was held back on the ground of serious illness and who was not produced for cross-examination, could not get into evidence.

12. In Phani Bhusan Ghosh and Another Vs. Sibakali Basu, , a learned Single Judge (Sen J.) had to deal with a case where a witness was not tendered for cross-examination and still then his evidence was sought to be made admissible The learned Judge held in the facts of the case that unless examination of a witness is complete as to say. unless he has been cross-examined and re-examined or unless his cross-examination or re-examination had been declined, his evidence cannot be construed as admissible in the circumstances mentioned in Section 33 of the Evidence Act since this witness was neither dead nor incapable of giving evidence or as hot found out or was kept out of the way by any of the parties and there was also no evidence that his presence could not be obtained without an amount of delay or expense which the court considered to be unreasonable. Such incomplete evidence without cross-examination could not be accepted. The exigencies of exeptional circumstances as mentioned in Section 33 of the Evidence Act were not altogether ruled out by this judgment. In Jose alias Kolli Jose Vs. The State of Kerala, the Supreme Court upheld the view taken by both the courts below in taking the evidence of two witnesses Vasu and Krishnan recorded in the committal court as substantive evidence at the trial before Sessions Court u/s 33 of the Evidence Act on the ground that the presence of one could not be obtained without an amount of delay and expense which under the circumstance of the case, the Court considered unreasonable and the other was laid up with paralysis at the relevant time and was not in a position to attend the Court and give evidence.

13. In Mulkh Raj Sikka Vs. Delhi Administration, a similar question arose where in a Sessions trial the deposition of a witness recorded by the Committing Magistrate was sought to be brought in a circumstance where the said witness could not be found out desire all reasonable steps being taken. The question arose whether the accused had a right to cross-examine the witness in the Committing Court. It was a case where the defence counsel preferred not to cross-examine the said witness in the Sessions Court. It was held that both the conditions of Section 33 were satisfied and the evidence of such a witness (sic) in the Commmitting Court ws admissible in the Sessions trial. The Supreme Court in this context distinguished the earlier judgment of the Privy Council reported in AIR 1930 79 (Privy Council) . It was observed that if the accused had the right to cross-examine the witness in the Committing Court, he had also the opportunity which in the facts of the cases were declined.

14. Our. Calcutta High Court in another Division Bench had the opportunity to look into the Supreme Court decisions and yet sought to distinguish it in Kalyan Lahiri v. The State reported in 1980 CLJ 484 where it was held that in a warrnat case the accused had no right to cross-examine the prosecution witness before framing of the charge and the real right to cross-examine arose after the charge. It was the case of a prosecution u/s 4091.P.C. for criminal breach of trust and one particular prosecution witness after his examination-in-chief died before framing of the charge against the accused and hence the could not be called for cross-examination after the charge. His evidence was. held inadmissible u/s 33 Evidence Act. It was held in this case that even if the accused declined to cores-examine the witness before the charge, the evidence of such witness would not be admissible u/s 33 because the accused was deprived of his right and opportunity to cross-examine the witness after the charge on account of the death of this withness. This decision relied on the earlier view of this Court In Brahmachari Ajitananda Vs. Anath Bandhu Dutt and Another, , S.C. Mitter Vs. The State, , Arabinda De v the State ( 1952) 57 CWN 69 and Sanatan Daw Vs. Dasarathi Tah, and sought to distinguish the two Supreme Court decisions in Jose v. State of Kerala reported in 1973 SC 944 and Mulkh Raj Sikka Vs. Delhi Administration, .

15. Be that as it may, in this conflicting state of decisions regard being had to the two Supreme court decisions as sought to be distinguished in 1980 Criminal Law Journal 484. we are of the view that since it is a case where the accused had fully cross-examined P.W. 8 and had in fact exercised his right to cross-examine the said witness in extention, there has not been any prejudice if the said witness did not testify after the framing of the charge. Since it is a case where the entire facts and circumstances led to an irresistible inference as regards the unlawful possession of 17 pieces of aluminium strips allegedly stolen from the two E.M.U. coaches as referred to in the testimony of the railway witnesses and the accused could not account for his possession, even bereft of the testimony of P.W. 8, the charge was proved beyond reasonable doubt, ruling out altogether the defence allegation of the articles being foisted on the present accused petitioner. Furthermore there was a confession leading to the recovery of the implements used by the accused in cutting away the aluminium strips from the window shutters. It is indeed true that we cannot rest a conviction merely on the confession but if the confession lends assurance to an inference already arrived at from the facts and circumstances of the case, we can take into account such a confessional statement as was rightly done by both the trial court as well as the appellant court.

16. The only question that remains is as regards the sentence. We have been apprised that the present accused is an old man and the learned Advocate for the appellant has submitted before us about his repentance. We think that justice would be squarely done in the case if the sentence is reduced to a period of rigorous imprisonment for one year while maintaining sentence of fine of Rs. 1.000/- and the period of rigorous imprisonment for three months in default thereof. In the result the revisional application stands disposed of only with modification of the sentence as indicated above with the order of conviction being affirmed by us. The accused petitioner is called upon surrender to his ball bond to serve out the unexpired amount of sentence, even though he may claim set off u/s 428 Cr. P.C. in respect of the period already undergone.

J.N. Hore, J.

I agree