Case No.:

AC-CP-159-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Evidence—Code of Criminal Procedure, s. 220 (1)—Testimony at former judicial proceeding—Unavailability of wit ness—Discretion of court

·  Evidence—Code of Criminal Procedure, s. 22o (1)—Testimony at former judicial proceeding—Unavailability of witness—Proof under oath not required

Accused was convicted of an unnatural offence under Penal Code. s. 318. The victim gave evidence before the committing magistrate but did not appear at the trial. Two witnesses at the trial stated not under oath that the victim could not be found. The court therefore received the evidence taken at the magisterial inquiry,
Held: (i) Code of Criminal Procedure, s. 220 (1). gives the court discretion to receive evidence taken at the magisterial inquiry when the witness cannot be found.

(ii) Proof by statement under oath of the absence of the witness is not required.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. KUDI TSMAIL KUDI

AC-CP-159-1956

R. C. Soni J. August 9, 1956:—ln this case the accused has been found guilty of having committed an unnatural offence upon one Omer Osman and sentenced to five years’ imprisonment. The proceedings of the trial court show that the victim has not been produced as a witness. At page 8 it is stated:

"About the victim, the investigator states that he could not be traced.

lbrahim Siddik also states that he has disappeared.”

The statement’ of the victim before the committing magistrate has not been transferred to the record of the trial, in India there is a provision in the Evidence Act, s. 33, that the evidence given by a witness in a judicial Proceeding or before any person authorised by law to take It, 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 dead or cannot be found. The provisions

of this section are applicable to the facts of the case here, but there is no proof that the boy (the victim) cannot be produced as a witness. The statement of the investigator and of Ibrahim Siddik should be taken on oath. They can be cross-examined. If on those statements so taken the court finds that the boy cannot be found, then it is empowered to take the previous statement on its own record. And it must do it.

The error is serious. The doctor should be examined as to the age of the victim. The identity of the person whom he examined and that of the victim should be established.

If these things are not done, then strictly speaking there is no evidence for a conviction.

M. A. Abu Rannat C.J. August 14, 1956:—The complainant is a Nuba boy who was working as a domestic servant at Tendelti. These boys move from one place to another seeking work. There ii no doubt that the statement given by the police and the boy’s employer is true.

Code of Criminal Procedure, s. 220 (1). gives the court a discretion to accept evidence taken at the magisterial inquiry. The section does not require that the absence of the complainant should be proved by statement on oath from the police or complainant’s employer.

I think the case is proved against the accused and I confirm the finding and sentence.