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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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