Law: Evidence Act (I of 1872)

Section: 33

Law: Penal Code (XLV of 1860)

Section: 307

(a) Evidence Act (I of 1872), S. 33 read with Ss. 137 & 133 - Admissibility of evidence - Witness giving direct evidence not subjected to further cross-examination for some unavoidable reasons - Provisions of S. 33 not applicable to such a case - Death or disappearance of a witness in a warrant-case-Held, would not relegate primary evidence led at trial to status of inferior and secondary evidence---Witness cross-examined before charge-Testimony of such witness could not be rejected merely on ground that was not subjected to further cross-examination - Criminal Procedure Code (V of 1898), S. 252. Section 33 of the Evidence Act is an exception to the rule of direct evidence and provides for substitutory and secondary evidence. The term "secondary evidence" clearly indicates an original source of evidence. It is a species of evidence which can be produced under certain conditions in the absence of such an original source. The provisions of section 33 of the Evidence Act will not apply to a case in which a witness has given direct evidence in the Court but for some unavoidable reasons could not be subjected to further cross-examination. The question of the admissibility of evidence is to be determined from the point of time it is brought on record, and when a witness has appeared in a warrant case, his subsequent death or disappearance will not relegate the primary evidence led at the trial to the status of the inferior and secondary evidence. The fact that a witness could not be subjected to further cross-examination does not relate to the admissibility of his evidence but is a question primarily connected with the weight to battached to such evidence. The provision regarding the use of the previous statement in the later stage of the same case necessarily postulates the recording of fresh evidence at that later stage and formal admis sion of the secondary evidence where the witness is not available for giving direct evidence. Chapter XXI of the Criminal Pcoccdure Code is headed "of the trial of warrant-cases by Magistrates". A perusal of the various sections in this Chapter would clearly show that the hearing of a warrant-case is a…