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. 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 secondly, the principal assailant is missing, and the absconder has been named throughout as the man who really killed the murdered man. Further, there is nothing to connect the appellant with any of the other accused, and there was no alleged motive against him, and no corroborative evidence, and certainly no suggestion of enmity on his part. It is submitted that the incapacity of Lachhman Das was not such that he could not have been examined either in court or on commission, and his statement should be struck out. If that is done, there is no evidence left on which the appellant could be convicted. The only evidence that Lachhman Das was incapable of giving evidence is that of the police officer, who said that the witness was in bed. Lachhman Das himself said that he would give evidence on commission. “Incapable of giving evidence" in s. 33 of the Evidence Act does not necessarily mean incapable of coming to court. In England medical evidence, or the equivalent, of incapacity is enough Rex v. Noakes ([ 1917] 1 K. B. 581.). The police officer could not speak to the illness. In any case, tuberculosis does not necessarily prevent a man from travelling. In the absence of precise evidence as to the nature of the illness of Lachhman Das and of his incapacity to attend, his former statement could not be admitted in evidence under s. 33 of the Evidence Act. If that statement is excluded there is no evidence on which he appellant can be convicted, and substantial and grave injustice has been done. B. MacKenna for the respondent. It would have been unnecessary for the Sessions Judge to have directed that Lachhman Dass evidence should be taken on commission under s. 503 of the Criminal Procedure Code when it had already been taken before a magistrate and cross-examined to. The police officer went into the witness-box and spoke to this incapacity on at least January 6; so there is some evidence, which can, of course, be displaced by cross-examina tion, but the difficulty here is that nobody challenged the police officers statement. If counsel for the accused says that he is prepared to accept the evidence of the police officer at its face value, the judge ought not to be blamed for not cross-examining the witness and testing the statement. If counsel for the accused says that he is prepared to accept the evidence of the police officer at its face value, the judge ought not to be blamed for not cross-examining the witness and testing the statement. The judge, had he seen fit, might have done so—might have tested the witnesss means of knowledge—but it cannot be said that failure to do so has led to an injustice which would induce this Board to interfere with the conviction. If Lachhman Das did describe his symptoms to the police officer that is one way in which the police officer could equip himself to give evidence s. 14 of the Evidence Act, illustrations (l) and (m). There is some evidence that Lachhman Das was unfit to attend to give evidence. Even if the Board thought that the Sessions Judge was too easily satisfied on this point that would not be a ground for reversing a conviction. It was said in Abdul Rahman v. King-Emperor (( 1926) L. R. 54 I. A. 96, 104.) that no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused." There was, however, no defect here; the evidence of Lachhman Das was admissible. Even assuming, however, that his statement ought to have been disregarded, there is ample evidence to show that the appellant was guilty, and there has been no serious miscarriage of justice in this case such as to warrant the interposition of His Majesty in Council Arnold v. King-Emperor ([ 1914] A. C. 644, 648.). Pullan replied. The convicting of a man without evidence is a breach of natural justice. Maung Nyo v. King-Emperor (( 1923) I. L. R. 1 R. 512.) is an identical case. July 3. LORD GODDARD announced that the appeal would be dismissed, and their Lordships reasons for so doing delivered later. July 25. The reasons of their Lordships for dismissing the appeal were delivered by LORD GODDARD, who stated the facts and continued While contending that the statement of Lachhman Das was properly admitted, the Crown submits that even if it ought to have been rejected there was ample evidence justifying the conviction, and that accordingly no grave or substantial injustice has been done. Their Lordships have already stated that they will humbly advise His Majesty that the appeal should be dismissed and now proceed to give their reasons. The evidence showed that there was undoubted enmity between the murdered man and the appellant, and there is also no doubt but that the former was attacked by a considerable number of persons, some of whom were armed with weapons, that he was killed and his body afterwards disposed of so that no trace of it has been found. It has not, however, been disputed before the Board, that there was ample evidence on which it could be found that the man was murdered, and the only question was whether the evidence showed that the appellant took part in the murder. Where it is desired to have recourse to s.33 of the Evidence Act on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the court trying the case, which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. In the present case the only evidence was that of the police officer, already mentioned, and his visit was thirteen days before the trial. The officer was not a proper person to prove from what disease the witness was suffering; he could only say what someone told him. In the present case the only evidence was that of the police officer, already mentioned, and his visit was thirteen days before the trial. The officer was not a proper person to prove from what disease the witness was suffering; he could only say what someone told him. If such evidence as he gave were sufficient it would mean that any reluctant witness could take to his bed when he found there was a likelihood of being served with a witness summons and get excused from attendance by telling the server that he was suffering from some serious complaint. Their Lordships do not mean to lay down that in every case there must be evidence of a medical man where excuse is sought on the grounds of physical incapacity. That is not the law in England (see Rex v. Noakes ([ 1917] 1 K. B. 581.)), and there is no reason for a different rule to apply in India. There may be many cases in which the facts are such that the incapacity can be proved by a lay witness. Here there was no evidence at all, except that the policeman found the witness was ill thirteen days before the trial, and as he was not competent to speak to the illness their Lordships are of opinion that there was no evidence before the court that he was incapable of giving evidence on January 19. The learned Additional Judge was no doubt largely influenced by counsel for the accused consenting to the evidence being read, but in their Lordships opinion that does not do away with the necessity of the court being satisfied by proof. Neither counsel nor his client could have had any personal knowledge on the subject, unless, indeed, counsel had recently seen the witness, in which case he could have so informed the court and not merely given consent. It may be that there are some matters as to which it would be possible for a prisoner to consent to be taken as proved though no strict evidence was given; if there are, as to which their Lordships express no opinion, they could only be such as might reasonably be supposed to be particularly within the knowledge of the accused. Their Lordships accordingly consider that this previous statement was wrongly admitted. Their Lordships accordingly consider that this previous statement was wrongly admitted. Their Lordships would also observe that though in this case the accused was represented before the committing magistrate, and the witness was therefore cross-examined, in very many of these cases the accused is not represented at this stage, so while he has the opportunity to cross-examine it is not often that this would be effectively done. This is another reason for exercising great care before admitting a statement. Next it was contended for the appellant that if the previous statement of Lachhman Das was inadmissible the appeal must be allowed as it was on that evidence that the High Court relied in upholding the conviction. Before this Board will advise His Majesty to allow an appeal in a criminal case on the ground of the misreception of evidence they require to be satisfied that grave and substantial injustice has been caused thereby. In their Lordships opinion there was ample evidence to justify a conviction in this case apart from Lachhman Das statement, and they feel no doubt as to the guilt of the appellant. The trial judge, who saw and heard the witnesses, saw no reason to disbelieve the eye-witnesses on the main points in their evidence. It appears to their Lordships that the main reason the High Court had for not accepting their evidence as satisfactory was that it did not accord in all aspects with that of Lachhman Das, and because he apparently did not see the two principal witnesses, Mula Singh and Mangal Singh, at the scene of the murder, to which he himself was not particularly close. Considering the number of people who were collected at the spot, either as participants in the attack or as onlookers attracted by the uproar, it is no ground for disbelieving witnesses who have given an apparently reliable account and whose evidence was believed by the trial judge, that another witness says he did not see them there, as might well be the case. Another reason given by the High Court for disbelieving Mula Singh was that he gave as a reason for his presence on the scene that he was suffering from dysentery and had gone to the well to relieve himself. The High Court do not believe he would have gone a distance of 600 karams for this purpose. Another reason given by the High Court for disbelieving Mula Singh was that he gave as a reason for his presence on the scene that he was suffering from dysentery and had gone to the well to relieve himself. The High Court do not believe he would have gone a distance of 600 karams for this purpose. But there was no evidence that his house was so far from the well, and he denied that it was. Moreover, if the statement of Lachhman Das is excluded it follows that the principal reason given by the High Court for not accepting the evidence of the eye-witnesses, who, as has already been said, were not disbelieved by the learned judge, no longer exists. Looking at the evidence as a whole, their Lordships entertain no doubt that the appellant took an active part in the murder, and they were accordingly unable to advise His Majesty that there were any grounds for quashing the conviction.