ORDER K.N. Srivastava, J. - This is an appeal against the judgment and order passed by Sri P.N. Harkauli, Addl. Sessions Judge, Bareilly, convicting Munna Lal and Ram Prakash, Appellants, u/s 394, IPC and sentencing each of them to two years' RI. 2. The facts, giving rise to this appeal, are as follows. Ram Murti, the victim of this robbery, is a resident of Sahwajpur, PS Kotwali, Distt. Budaun. From sometime before the occurrence, he was living with his brother, who was employed in a certain Office at Bareilly. Ram Murti used to sell certain edibles, which he used to carry on a thela. At about 10 p.m. on 10-8-1964, he had kept his thela near the western gate of the Bareilly Club. The Appellants along with one another reached there on cycles and asked Ram Murti to hand over all the sale proceeds to them. Ram Murti denied to have any money with him. The Appellants and their companion then assaulted Ram Murti and robbed him of Rs. 15/- , which he had in his pocket. Ram Murti raised an alarm. Certain persons, who resided in the servant quarter of the Bareilly Club, reached there and saw the occurrence. The aforesaid servant quarter was close to the place of the occurrence. The witnesses caught the Appellants, but their third companion ran away. The Appellants were taken to the thana, where Ram Murti lodged a report. The Police took the Appellants in custody and registered a case against them u/s 394 IPC. Ram Murti had received some injuries. His injuries were medically examined in the district Hospital, Bareilly. The Police investigated the case and after completing the investigation, challaned the Appellants. The Appellants were tried and were convicted and sentenced, as stated above. Being dissatisfied, they have come up in appeal to this Court. 3. Both the Appellants denied the charge and pleaded not guilty. Munna Lal stated that he had purchased the fruits of certain trees, which stood in the Company garden. In the night of the occurrence about three persons came to the garden and started plucking some fruits. He objected, on account of which there was a quarrel between him and those persons. They assaulted him and took him to the Bareilly Club, where this case was falsely concocted against him. In the night of the occurrence about three persons came to the garden and started plucking some fruits. He objected, on account of which there was a quarrel between him and those persons. They assaulted him and took him to the Bareilly Club, where this case was falsely concocted against him. Ram Prakash stated that when he heard that his brother had been arrested, he went to the Bareilly Club, where he was also arrested and falsely implicated in this case. 4. In support of its Case, the prosecution examined Ram Bharose, Raghu and Bhola Ram, as eye witnesses of the occurrence. The statement of Ram Murti, which was recorded by the committing Magistrate, was admitted in evidence u/s 33 of the Evidence Act. The doctor, who examined the injuries of Ram Murti, was also examined. The statements of the other witnesses were more or less formal in nature. 5. From the statements of Ram Bharose, Raghu and Bhola Ram, it is proved that both the Appellants were arrested at the spot and they, along with one another, robbed Ram Murti. The statements of these three witnesses were challenged on the ground that on account of the plucking of the fruits from the trees standing in the Company garden, there was a quarrel between Munnalal, Appellant and these witnesses; and therefore, they falsely implicated Munna Lal and his brother Ram Prakash. This suggestion was denied by these witnesses. 6. The statements of Ram Bharose, Raghu and Bhola Ram are corroborated by other facts and circumstances of the case. They stated that the robbers assaulted Ram Murti and caused injuries to him. Ram Murti also made a similar statement. The injuries of Ram Murti were medically examined by Dr. Ambani in the District Hospital, Bareilly, the same night at 11.45 p.m. Dr. Ambani found the following injuries on the person of Ram Murti: 1. Abraded wound 3/4" 1/4" 1/6" on the left leg. 2. Contusion 2" 3/4" on the left thigh. 3. Abrasion 1/2" 1/4" on the left knee. 4. Contusion 2-1/2" 1" on the fore-arm. 5. Contusion 1-1/2" 3/4" on the right shoulder. According to the doctor, the injuries were caused within a day. Ram Murti and the other aforesaid three eye-witnesses stated that these injuries were caused to Ram Murti at the time of the occurrence. 3. Abrasion 1/2" 1/4" on the left knee. 4. Contusion 2-1/2" 1" on the fore-arm. 5. Contusion 1-1/2" 3/4" on the right shoulder. According to the doctor, the injuries were caused within a day. Ram Murti and the other aforesaid three eye-witnesses stated that these injuries were caused to Ram Murti at the time of the occurrence. The fact that Ram Murti received injuries in this occurrence corroborates the prosecution case that the robbers assaulted Ram Murti and robbed him of Rs. 15/- . 7. Ram Murti had no reason to concoct a false case against the Appellants. He had no connection with Ram Bharose, Raghu and Bhola Ram. Even if the defence case is taken at its face value, there was no reason for Ram Murti to suffer the injuries and-to conspire with the Club servants in concocting a false case against the Appellants. 8. The statement of Ram Murti, which was recorded by the committing Magistrate, was also challenged on the ground that he admitted that he had not taken out his khoncha previous to that day or even after that day. The statement of Ram Murti should be read as a whole. In the earlier part of his cross examination, Ram Murti stated that he was taking out his khoncha from a month before the occurrence. I am not prepared to reject the testimony of Ram 'Murti on the above ground, specially when his statement is corroborated by other facts and circumstances of the case. 9. Nothing substantial has been brought out in the statements of Ram Bharose, Raghu and Bhola Ram, on account of which their evidence could be rejected. They stated that the servant quarter, where they reisded, was at a short distance from the place of the occurrence. On hearing the alarm raised by Ram Murti, they were the first persons to reach the spot. They actually reached there soon after and saw the actual loot. I have carefully perused their statements and have not come across any thing in their statements, on account of which their evidence could be rejected. 10. The defence case appears to be an after thought. The Appellants examined Ram Dayal and Khemkaran in their defence. They actually reached there soon after and saw the actual loot. I have carefully perused their statements and have not come across any thing in their statements, on account of which their evidence could be rejected. 10. The defence case appears to be an after thought. The Appellants examined Ram Dayal and Khemkaran in their defence. Ram Dayal stated that he had purchased the fruits of the trees standing in the Company garden and later on, sold the fruits of certain guava and amrakh trees to Dharmdas, the father of the Appellants, Khemkaran stated that the children of the servants of the Club had plucked the fruits of the trees and therefore, there was a quarrel between Dharmdas and the servants of the Club. He does not say as to who were the servants, with whom Dharmdas had a quarrel. The defence evidence has, therefore, been rightly disbelieved by the trial court. 11. It has came to my notice that the learned Sessions Judge did not adopt the correct procedure for admitting the statement of Ram Murti u/s 33 of the Evidence Act. What he has done is that he examined two witnesses in the regular trial in support of the fact that Ram Murti was not available inspite of search and his statement recorded before the committing Magistrate should, therefore, be read as a substantive evidence, as provided u/s 33 of the Evidence Act. Such mistakes are often committed by the trial courts. I, therefore, feel it my duty to indicate the correct procedure, which should be adopted in such cases. 12. u/s 33 of the Evidence Act, the evidence given by a witness in a judicial proceeding, is relevant in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, provided the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the opposite party, or if his presence cannot be secured without an amount of delay and expense, which the court considers unreasonable. The court, before admitting such an earlier statement in evidence u/s 33 of the Evidence Act, must be satisfied that the conditions laid down therein are fulfilled. Without being satisfied that the aforesaid conditions were fulfilled, the court is not empowered to admit a statement u/s 33 of the Evidence Act. 13. The court, before admitting such an earlier statement in evidence u/s 33 of the Evidence Act, must be satisfied that the conditions laid down therein are fulfilled. Without being satisfied that the aforesaid conditions were fulfilled, the court is not empowered to admit a statement u/s 33 of the Evidence Act. 13. The proper procedure would be that the court concerned should start a miscellaneous proceeding and record the statement of witnesses to satisfy itself that the conditions laid down in Section 33 of the Evidence Act were fulfilled. The court should weigh the evidence and record its reasons for holding that the conditions mentioned in Section 33 of the Evidence Act were fulfilled. Thereafter, the court should pass an order in the miscellaneous proceeding that the conditions laid down in Section 33 of the Evidence Act having been fulfilled, the prosecutor was entitled to tender the statement u/s 33 of the Evidence Act. Unless such an order is passed, it would not be proper to admit the statement u/s 33 of the Evidence Act. 14. In the instant case, the trial court has discussed the statements of P.Ws. 10 and 12 in the judgment itself and has held that the provisions of Section 33 of the Evidence Act were applicable to this case. The proper procedure should have been that an order to this effect should have been passed, before permitting the prosecutor to tender the statement of Ram Murti u/s 33 of the Evidence Act. 15. On a consideration of all the facts and circumstances of the case, I am of the opinion that the Appellants have rightly been convicted and sentenced in this case. The appeal has, therefore, no force in it. ORDER 16. The appeal is hereby dismissed. The Appellants, who are on bail, shall be taken into custody forthwith to serve out the sentences awarded to them.