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High Court Of Delhi
STATE - Appellant
Versus
SOM PRAKASH @ SOM NATH @ SOMI - Respondent
Decided On : 10/09/1998
CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - SECTION 299, CRIMINAL PROCEDURE CODE - CONDITIONS FOR ADMISSION OF STATEMENTS RECORDED IN ABSENCE OF ACCUSED - BURDEN OF PROOF ON PROSECUTION - INSUFFICIENT EVIDENCE TO ESTABLISH UNAVAILABILITY OF WITNESSES - STATEMENTS HELD INADMISSIBLE.
Fact of the Case:
The accused was charged with murder and attempted murder. During the trial of his co-accused, Jagan Nath, statements of three eye witnesses, Maya Devi, Premwati, and Vijay Kumar, were recorded in the absence of the accused. The accused was later arrested and tried separately. The prosecution sought to admit the statements of the three eye witnesses in evidence against the accused under Section 299 of the Criminal Procedure Code.
Finding of the Court:
The court held that the prosecution failed to discharge the burden of proof required under Section 299 of the Criminal Procedure Code to establish that the three eye witnesses were unavailable or that their presence could not be procured without undue delay, expense, or inconvenience. The court found that the prosecution made only a solitary attempt to serve summons on the witnesses and failed to make any further inquiries to ascertain their whereabouts.
Issues: 1. Whether the statements of the three eye witnesses recorded in the absence of the accused were admissible in evidence against him under Section 299 of the Criminal Procedure Code. 2. Whether the prosecution discharged the burden of proof required under Section 299 of the Criminal Procedure Code to establish that the three eye witnesses were unavailable or that their presence could not be procured without undue delay, expense, or inconvenience.
Ratio Decidendi: 1. Section 299 of the Criminal Procedure Code allows for the admission of statements recorded in the absence of the accused if certain conditions are met, including that the accused has absconded and there is no immediate prospect of arresting him, and that the witness is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without undue delay, expense, or inconvenience. 2. The prosecution bears the burden of proving the conditions for admissibility under Section 299 of the Criminal Procedure Code. 3. In the present case, the prosecution failed to establish that the three eye witnesses were unavailable or that their presence could not be procured without undue delay, expense, or inconvenience. The prosecution made only a solitary attempt to serve summons on the witnesses and failed to make any further inquiries to ascertain their whereabouts.
Final Decision: The court held that the statements of the three eye witnesses were inadmissible in evidence and that there was no other incriminating material on record against the accused. The court set aside the conviction and sentence of the accused and acquitted him of the charges.
( 1 ) THIS reference. has been received from the Court of Shri R. K. Yadav, Additional Sessions Judge, Shahdara, Delhi for confirmation of death sentence. After holding the accused Som Prakash guilty and convicting him for offences punishable under Sections 302 and 307-of the Indian Penal Code ( for short " Indian Penal Code ") byjudgment of conviction dated 9. 3. 1998, in addition to death sentence for offence under Section 302, Indian Penal Code , the accused has been sentenced to undergo rigorous imprisonment for 7 years for offence under Section 307, Indian Penal Code and to pay a fine of Rs. 1,000. 00 and in default to undergo rigorous imprisonment for six months by order of sentence dated 12. 3. 1998. Separate appeal has been preferred by the accused Som Nath against the judgment, conviction and sentence.
( 2 ) THE charge against the accused is that on 9. 1. 1978 at about 9. 30 p. m. at shop No. 4, Parwana Road, Delhi, he along with Jagan Nath, with intention to commit murder intentionally inflicted injuries on Lal Chand and Vasudev, which were sufficient in the ordinary course of nature to cause their death and thereby committed an offence of murder punishable under Section 302 read with Section 34, I. P. C. and in furtherance of common intention, the accused along with Jagan Nath inflicted injuries with sharp edged object on Premwati and thereby committed offences punishable under Section 307 read with Section 34, Indian Penal Code
( 3 ) THE version of prosecution on which the accused was charged is that Jagan Nath along with his family comprising of his wife Shanti, daughter Neelam and brother 0m Prakash @ Somi @ Som Prakash (the accused) was residing at House No. 15, Brij Puri Extension, Khureji, Delhi. At the back of his house in premises known as shop No. 5, Parwana Road, Khureji, Delhi, Vasudev, a plumber used to reside along with his wife Premwati, daughter Maya Devi and Lal Chand and Vijay Kumar, the brothers of Premwati. On 28. 12. 1977 Neelam quarreled with her neighbours. Maya Devi witnessed the same and laughed at Neelam, on which Neelam caught hold of Maya Devi and gave beating to her. Premwati intervened and gave beating to Neelam. Jagan Nath and Vasudev also joined. Vasudev is alleged to have given beating to jagan Nath, as a result of which Jagan Nath fell down and got fracture in left hand. Vasudev is also stated to have received injuries. Both of them were allegedly removed to hospital. With this incident as the alleged motive, the prosecution case was that on 9. 1. 1978 Vasudev, Premwati, Lal Chand and Vijay Kumar had gone to sleep inside shop No. 4, Parwana Road, Khureji, Delhi after closing the shutter. Abruptly there was a knock on the shutter at about 9. 30 p. m. Premwati is stated to have enquired about the identity of the person knocking outside. Reply came that a hand pump was to be installed to which Premwati retorted that it was not the time for the work. However, the person knocking is reported to have said that address, the place at which the hand pump is to be installed, be noted.
( 4 ) ON this the prosecution case is that Premwati lighted a lamp, opened the shutter and noticed Jagan Nath and the accused standing near the shutter with two other associates. The accused is alleged to have stabbed Premwati in chest with a kirpan. She started running towards Parwana Road raising an alarm "bachaoo Bachaoo". Jagan Nath exhorted the accused to finish all those inside the shop. When Lal Chand came near the shutter, on hearing the alarm of Premwati, he too was stabbed by the accused with the kirpan. Lal Chand cried "mar Diya Mar Diya" and fell down. When Vasudev came, the accused inflicted stab blows to him number of times and he also fell down near the shutter. On hearing noise many people of the locality are alleged to have assembled. One Swadesh Prakash informed the police control room. On receipt of information S. I. Amar Singh reached the spot and sent the injured to J. P. N.
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