NIRMAL SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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 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 handover 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 Sec. 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 Session, the Sessions Judge tried him for the offences charged. Out of the 27 witnesses who had been examined u/S. 299 of the Cr.P.C. five of them had died by the time charges were framed against the appellant. Their statements recorded u/S. 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 Section 302 and under Section 307, I.P.C. 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 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.

(2.) 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 preconditions 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 inconvenlenice. 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.

(3.) Mr. Mahabir Singh, the learned counsel, appearing for the State-respondent, 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 PW-48/A to PW-48/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.