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PETITIONER:

NIRMAL SINGH

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 30/03/2000

BENCH:

R.P.Sethi, G.B.Pattanaik

JUDGMENT:

PATTANAIK,J.

The appellant was convicted by the learned Sessions

Judge for the offence of murder under Section 302 IPC, on a

finding that he shot at Surat Singh, Desh Raj, Lehna Singh

and Ramesh, by means of his sten gun, on account of which,

all these four people died. He was also found guilty under

Section 307 IPC for having injured 12 other persons with the

intention of killing them. For his conviction under Section

302 IPC, the learned Sessions Judge, awarded the extreme

penalty of death. The conviction and sentence was assailed

by the appellant in Criminal Appeal No. 261- DB of 1997 in

the High Court of Punjab and Haryana and a Reference also

had been made by the learned Sessions Judge under Section

366 of the Code of Criminal Procedure for confirmation,

which was registered as Murder Reference No. 3 of 1996.

Both these cases were heard together and the High Court of

Punjab and Haryana by the impugned Judgment dated 11.7.1997,

upheld the conviction of the appellant under Section 302 as

well as under Section 307 IPC but so far as sentence is

concerned, the High Court commuted the death sentence to

imprisonment for life. Be it be stated, the appellant had

also been convicted under Sections 25 and 27 of the Arms Act

and that conviction had also been upheld by the High Court

in appeal. On the basis of the First Information Report

Exhibit PW44/A, a criminal case was registered under Section

302/34 in the Police Station Safidon, District Jind on 15th

of September, 1980 at 8.20 p.m. The First Informant was one

Chhotu, son of Indraj. According to the FIR version, while

the informant along with two others were present at the

flour mill of Gaje Singh in village Budha Khera, the

appellant who was serving in Army, and his brother, one

Vijay Singh with two other persons came before them and

indiscriminately fired with the army weapon which hit Surat

Singh and said Surat Singh fell down. In course of such

firing, Desh Raj also was shot at and he died. The

informant then rushed to the Police Station and lodged the

report. It was also indicated that earlier, there was a

fight between two groups of people, on account of which the

accused persons had grudge and they took revenge of the

same. On the basis of the aforesaid FIR, PW44 along with

his police staff reached the place of occurrence and found

four people dead. The dead bodies of the aforesaid four

people were sent to hospital for post mortem examination and

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autopsy was conducted by Doctors PW31, PW32, PW33 and PW34.

The investigating Officer got a warrant of arrest against

the appellant on 16th of September, 1980 and went to the

Unit of accused and he was informed by the Officers that the

appellant has not rejoined after availing leave from 15th of

September, 1980. The Investigating Officer also requested

to have the custody of the sten gun which had been issued to

the appellant but the Army Officers, refused to hand- over

the sten gun. However those Army Officers handed over the

live cartridges which had been supplied to the accused along

with the sten gun for the purpose of analyses and comparison

with the leads removed from the dead bodies of the four

deceased persons. But, FSL authorities intimated the

Investigating Officer that no testing could be done as the

firing had been done in sand and without the weapon

concerned, it would not be possible to test and analyse.

The Investigating Officer then again approached the Army

Authorities and got eight sten guns. All those eight sten

guns were tested by a test fire and the FSL people

identified one of those sten gun which according to them had

been used in firing at the deceased. Later on, the Army

Authorities established that the said gun in fact had been

issued to the accused appellant. After completion of

investigation, charge sheet was filed against the appellant,

his brother Vijay Singh and their father Rulia Ram but Rulia

Ram had died by then. So far as the appellant is concerned,

as he could not be found, he was declared proclaimed

offender and his brother Vijay Singh was also declared as a

proclaimed offender. Since one of the accused persons had

already died and two others were declared as proclaimed

offenders, the Sub-Divisional Judicial Magistrate, recorded

the statement of 27 witnesses under Section 299 of the Code

of Criminal Procedure. The present appellant was later on

arrested on 11th of September, 1994 and then on being

committed by the learned Magistrate to the Court of

Sessions, the Sessions Judge tried him for the offences

charged. Out of the 27 witnesses who had been examined

under Section 299 of the Cr.P.C., five of them had died by

the time charges were framed against the appellant. Their

statements recorded under Section 299 Cr.P.C. were,

therefore exhibited during the trial as PW48/A, PW48/B,

PW48/C, PW48/D and PW48/E. 22 other witnesses who had also

been examined under Section 299 Cr.P.C. were examined as

prosecution witnesses during trial but they did not support

the prosecution and, therefore, they were cross examined by

the Public Prosecutor and were declared hostile. The

appellant in his statement recorded under Section 313

pleaded innocence and denied of his complicity with the

crime. On the basis of the medical evidence of the doctors

who had conducted the autopsy over the dead bodies, the

learned Sessions Judge came to hold that the four persons

died on account of gun shot injuries and injuries were ante

mortem in nature. So far as, the appellant being the author

of the crime, the Sessions Judge relied upon the statement

of the five deceased eye witnesses, which had been recorded

under Section 299 Cr.P.C. and came to the conclusion that

those evidence prove beyond reasonable doubt that on the

date of occurrence, it is the appellant who fired at the

deceased persons by means of his sten gun and in consequence

of which the four persons died at the spot. The Sessions

Judge also came to the conclusion on the self-said statement

recorded under Section 299 Cr.P.C. and came to hold that

the appellant also caused injuries by means of firing and as

such committed the offence under Section 307 IPC.

Ultimately, the Sessions Judge convicted the appellant under

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Section 302 and under Section 307 IPC as well as under

Sections 25 and 27 of the Arms Act. On appeal, the High

Court upheld the conviction of the appellant, relying upon

the self-same materials namely the statement recorded under

Section 299 Cr.P.C. of those five persons but as has been

stated earlier for the conviction under Section 302, instead

of awarding sentence of death, the High Court commuted the

same to the life imprisonment. These appeals have been

presented in this court on getting special leave.

Since the conviction is essentially based on the

statements of five witnesses recorded under Section 299 of

the Code of Criminal Procedure, Mr. Gopal Subramanium, the

learned senior counsel, appearing for the appellant

contended before us that Section 299 of the Criminal

Procedure Code, empowers a Magistrate to take the deposition

of witnesses in the absence of the accused being an

exception to the principle embodied in Section 33 of the

Evidence Act, before such statement can be used as evidence

in any trial, the prosecution must strictly comply with the

pre- conditions for applicability of Sec. 299. According

to the learned counsel, the deposition recorded by the

Magistrate under Section 299 can be given in evidence

against an accused in any trial for the offence with which

he is charged, if the deponent is dead or incapable of

giving evidence or cannot be found or his presence cannot be

procured without an amount of delay, expense or

inconvenience. But in the case in hand, there is no

material to establish that the deponent namely those five

persons whose statement had been recorded under Section 299

of the Cr.P.C. are dead and, therefore, their deposition

recorded under Section 299 of the Cr.P.C. cannot be

utilised as evidence in trial and the conviction of the

appellant, therefore is vitiated.

Mr. Mahabir Singh, the learned counsel, appearing for

the State-respondnet, on the other hand contended that the

five persons having been reported to be dead, their

statements recorded under Section 299 Cr.P.C. were tendered

in evidence, which had been exhibited as Exhibits PW48/A to

PW48/E. At no point of time, the accused has made any

grievance that these persons are not dead. It is too late

for the appellant to contend in this Court that there is no

material to establish that the persons whose statements were

recorded under Section 299 Cr.P.C. and those statements

were tendered in evidence during trial, are not dead.

According to Mr. Mahabir Singh, the appellant in this Court

also does not contend that the persons concerned are not

dead. But what is contended is that the prosecution has not

established the fact that the people are not dead. The

Magistrate who has recorded the statement under Section 299

of the Criminal Procedure Code, has been examined to

indicate that in fact he has recorded the statements. He

also further contended that the process server did submit

the report that the persons are dead, whereafter the

statements recorded under Section 299 Cr.P.C. were tendered

in evidence in course of trial. It is true that the learned

Sessions Judge has not passed any order to that effect but

non-passing of such order would at the most be an

irregularity which is curable under Section 465 of the Code

of Criminal Procedure, more so, when the accused had not

raised any objection at any earlier stage of the proceeding.

In view of the rival stand of the parties, the sole

question that arises for consideration is under what

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circumstances and by what method, the statements of five

persons could have been tendered in the case for being

admissible under Section 33 of the Evidence Act and whether

it can form the basis of conviction. Section 299 of the

Code of Criminal Procedure consists of two parts. The first

part speaks of the circumstances under which witnesses

produced by the prosecution could be examined in the absence

of the accused and the second part speaks of the

circumstances, when such deposition can be given in evidence

against the accused in any inquiry or trial for the offence

with which he is charged. This procedure contemplated under

Section 299 of the Code of Criminal Procedure is thus an

exception to the principle embodied in Section 33 of the

Evidence Act inasmuch as under Section 33, the evidence of a

witness, which a party has no right or opportunity to

cross-examine is not legally admissible. Being an

exception, it is necessary, therefore, that all the

conditions prescribed, must be strictly complied with. In

other words, before recording the statement of the

witnesses, produced by the prosecution, the Court must be

satisfied that the accused has absconded or that there is no

immediate prospect of arresting him, as provided under first

part of Section 299(1) of the Code of Criminal Procedure.

In the case in hand, there is no grievance about

non-compliance of any of the requirements of the first part

of sub-section (1) of Section 299 Cr.P.C. When the accused

is arrested and put up for trial, if any, such deposition of

any witness is intended to be used as an evidence against

the accused in any trial, then the Court must be satisfied

that either the deponent is dead or incapable of giving

evidence or cannot be found or his presence cannot be

procured without an amount of delay, expense or

inconvenience, which would be unreasonable. The entire

arguments of Mr. Gopal Subramanium, appearing for the

appellant is that any one of these circumstances, which

permits the prosecution to use the statements of such

witnesses, recorded under Section 299(1) must be proved and

the Court concerned must be satisfied and record a

conclusion thereon. In other words, like any other fact, it

must first be proved by the prosecution that either the

deponent is dead or is incapable of giving evidence or

cannot be found or his presence cannot be procured without

an amount of delay, expense or inconvenience which, under

the circumstances would be unreasonable. In the case in

hand, there is no order of the learned trial Judge,

recording a conclusion that on the materials, he was

satisfied that the persons who are examined by the

Magistrate under Sec.299(1) are dead, though according to

the prosecution case, it is only after summons being issued

and the process server having reported those persons to be

dead, their former statements were tendered as evidence in

trial and were marked as Exhibits PW48/A to PW48/E. As has

been stated earlier, since the law empowers the Court to

utilise such statements of persons whose statements were

recorded in the absence of the accused as an exception to

the normal principles embodied in Section 33 of the Evidence

Act, inasmuch as the accused has been denied of the

opportunity of cross-examining the witnesses, it is,

therefore, necessary that the pre-conditions for utilising

such statements in evidence during trial must be established

and proved like any other fact. There possibly cannot be

any dispute with the proposition of law that for taking the

benefits of Section 299 of the Code of Criminal Procedure,

the conditions precedent therein must be duly established

and the prosecution, which proposes to utilise the said

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statement as evidence in trial, must, therefore, prove about

the existence of the pre- conditions before tendering the

evidence. The Privy Council, in fact in the case of

Chainchal Singh vs. Emperor, AIR (33) 1946 PC, Page 1, in

analysing the applicability of Section 33 of the Evidence

Act, did come to the conclusion that when the evidence given

by the prosecution witness before the Committing Magistrate

is sought to be admitted before the Sessions Court under

Section 33 on the ground that the witness was incapable of

giving evidence, then that fact must be strictly proved and

this may be more so in those cases where the witness was not

cross-examined in the Committing Magistrates Court by

reason of the accused not having been represented by a

counsel. In that particular case the process server had

been examined, who stated that he found the witness ill and

unable to move from his house, but that was not treated to

be sufficient to hold that the prosecution has discharged

its burden of proving that the witness is not available.

But having said so, Their Lordships did not interfere with

the conviction on the ground that the Court can interfere

only if, it is satisfied that grave and substantial

injustice has been caused by mis-reception of the evidence

in the case. On a mere perusal of Section 299 of the Code

of Criminal Procedure as well as Section 33 of the Evidence

Act, we have no hesitation to come to the conclusion that

the pre- conditions in both the Sections must be established

by the prosecution and it is only then, the statements of

witnesses recorded under Section 299 Cr.P.C. before the

arrest of the accused can be utilised in evidence in trial

after the arrest of such accused only if the persons are

dead or would not be available or any other condition

enumerated in the second part of Section 299(1) of the Code

of Criminal Procedure is established. In the case in hand,

after the process server reported the fact of death of the

concerned persons, who were summoned as witnesses and whose

statements had already been recorded under Section 299

Cr.P.C. on the application of the prosecution, the said

statements were tendered as evidence and have been exhibited

as Exhibits PW48/A to PW48/E. The learned Sessions Judge as

well as the High Court relied upon the said statements for

basing the conviction of the appellant. So far as the

compliance of the first part of Section 299 (1) is

concerned, the same is established through the evidence of

PW28, who at the relevant time was working in Army as well

as the S.H.O., Safidon also submitted before the Magistrate

that the arrest of the accused could not be procured, as he

was absconding and in fact there was an order from the

Magistrate for issuance of proclamation under Section 82 of

the Code of Criminal Procedure. The High Court in fact, on

consideration of the entire materials did record a finding

that the requirements of first part of Section 299 of the

Code of Criminal Procedure must be held to have been

established and there was no illegality in recording the

statements of the five persons as the accused had been

absconding and there was no immediate prospect of the arrest

of the said accused. So far as the requirements of second

part of Section 299 of the Code of Criminal Procedure is

concerned, the impugned Judgment of the High Court indicates

that the Court looked into the original records and it was

found that the summons had been sent by the learned trial

Judge, summoning the witnesses repeatedly to appear before

the trial Court and on every occasion, the summons were

received back with the report that the persons have already

died. The High Court has also indicated as to how on each

occasion, summons issued to the five witnesses have been

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returned back with the report that the persons are dead.

It is true as already stated that the Sessions Judge

has not recorded an order to that effect and it would have

certainly been in compliance of the requirement of Section

299 that the Court, while such statements are tendered in

evidence should have recorded as to how the pre-conditions

of the second part of Section 299 of the Code of Criminal

Procedure have been complied with. But when the Appellate

Court examines the records of the proceedings and comes to a

conclusion that in fact those persons have died long before

the summons on them to appear as witness, could be issued,

the evidence thus tendered cannot be ignored from

consideration, particularly, in a case like the one where

all other eye witnesses, 22 in number did not support the

prosecution on being examined and there has been a gruesome

murder inasmuch as the appellant killed four persons by

indiscriminately shooting at them from his rifle, which was

given to him in the Cantonment. The High Court has recorded

a finding that the factum of death of five witnesses, namely

PW2 Chhotu, PW12 Jai Lal, PW15 Prem, PW10 Zohri Singh and

PW11 Jage Ram, has been established for the purpose of

Section 299 of the Code of Criminal Procedure. In fact in

the case of Jose vs. The State of Kerala, AIR 1973 SC 944,

this Court had an occasion to examine the question of

treating the evidence of a witness in the committal Court as

substantive evidence in trial under Section 33 of the

Evidence Act, this Court had recorded the fact that at the

time of trial, the witness had left for Coorg and was not

available and it was not possible to serve summons on him

and even a non-bailable warrant issued by the Court was

returned with the endorsement not available and it is

under those circumstances, the learned Sessions Judge

brought on record the statement made by the eye witness

before the committal Court as substantive evidence and

marked the same as P-25. This Court negatived the

contention of the accused and held that the said statement

had rightly been treated as an evidence during trial. The

circumstances under which the statement of the witness in

the committal Court had been tendered and treated as

substantive evidence during trial is almost similar to the

case in hand and rather in the case in hand, the accused

never raises the contention even in this Court that the

persons are not dead but raises the sole contention that it

has not been established by the prosecution that the persons

are not dead. As has been stated earlier, the High Court

did record a conclusion on examining the records of the

proceedings that the witnesses are dead and, therefore,

their former statements under Section 299 could be treated

as evidence. We see, no infirmity with the said conclusion

of the High Court and we are, therefore, not in a position

to sustain the argument of Mr. Gopal Subramanium, learned

senior counsel, appearing for the appellant that

pre-conditions of Section 299 Cr.P.C. have not been

complied with. Once the statements of those witnesses,

exhibited as Exhibits PW48/A to PW48/E, are considered, and

the Sessions Judge as well the High Court have relied upon

the same and based the conviction, we see, no infirmity in

the same, requiring our interference with the conviction and

sentence recorded by the High Court. In the aforesaid

circumstances, it must be held that the prosecution case has

been proved beyond reasonable doubt. These appeals fail and

are accordingly dismissed.

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