IMPORTANT POINT
Non-passing of formal order that the witnesses whose statements were recorded under Section 299 of Cr.P.C. were dead could not be a bar to utilise statements recorded under Section 299 as evidence under Section 33, Evidence Act and convict accused on that basis.

Headnote:Code of Criminal Procedure, 1973-Section 299-Indian Evidence Act, 1872-Section 33-Evidence recorded in absence of accused-Conditions precedent to utilise in evidence in trial-Accused declared as proclaimed offender and absconding -Evidence of witness recorded under Section 299-Subsequent arrest and trial-Summons issued to persons whose statement were recorded under Section 299 returned as persons dead-Trial Court utilising statements in evidence and rendering conviction on basis of such evidence-Trial Court not passed order stating witnesses were dead on basis of process server s report-It is mere irregularity curable under Section 465-Accused had not raised issue before trial Court-High Court recording witnesses were dead and former statement could be treated as evidence-Pre-condition for treating statement recorded under Section 299 satisfied-Trial Court justified convicting accused.
       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-examination 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 statement as evidence in trial, must, therefore, prove about the existence of the pre-conditions before tendering the evidence. 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. (Para 4)
       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 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. Once the statements of those witnesses, exhibited as Exhibits PW 48/A to PW 48/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. (Para 5)

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 PW 44/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, PW 44 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 PW 31, PW 32, PW 33 and PW 34. 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 Rulia Ram but Rulia Ram had died by then. So far as the appellant is concerned, as he could not be found, he was declar

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2000 Supreme(SC) 656

IMPORTANT POINTNon-passing of formal order that the witnesses whose statements were recorded under Section 299 of Cr.P.C. were dead could not be a bar to utilise statements recorded under Section 299 as evidence under Section 33, Evidence Act and convict accused on that basis.

Cases Referred (2)

IMPORTANT POINT
Non-passing of formal order that the witnesses whose statements were recorded under Section 299 of Cr.P.C. were dead could not be a bar to utilise statements recorded under Section 299 as evidence under Section 33, Evidence Act and convict accused on that basis.