DATE OF THE CASE: 30/03/2000
APPELLANT: NIRMAL SINGH
RESPONDENT: STATE OF HARYANA
BENCH/JUDGES: R.P. SETHI, G.B. PATTANAIK
LEGAL PROVISIONS: Section 307 IPC Section 302 IPC Sections 25 and 27 of the Arms Act Section 33 of the Evidence Act
FACTS OF THE CASE
- The appellant was convicted of murder under Section 302 IPC and Section 307 IPC, resulting in the deaths of four people. He was also found guilty of injuring 12 others with the intention of killing them. The High Court upheld the convictions but commuted the death sentence to life imprisonment.
- The appellant was convicted under Sections 25 and 27 of the Arms Act and upheld by the High Court in appeal. The informant, Chhotu, was involved in a shooting incident at a flour mill, resulting in the death of Surat Singh and Desh Raj.
- Police found four dead people and conducted post-mortem examinations. The appellant was arrested on September 16, 1980, and informed he had not re-joined after leaving on September 15.
- Investigating Officer seeks custody of the sten gun, Army Officers refuse, but live cartridges and sten gun are provided. FSL authorities refuse to test, then eight sten guns provided by the Army were tested, identifying one used in firing at the deceased. The Army Authorities confirmed the gun was issued to the accused-appellant. A charge sheet was filed against the appellant, brother Vijay Singh, and their father Rulia Ram. Rulia Ram died, and the appellant was declared a proclaimed offender. The Sub-Divisional Judicial Magistrate recorded 27 witnesses’ statements under Section 299 of the Code of Criminal Procedure.
- The appellant was arrested on September 11, 1994, and tried by the Sessions Judge. Five of the 27 witnesses had died by the time charges were framed. The Sessions Judge determined that the four persons died due to gunshot injuries, antemortem in nature. The Sessions Judge also found the appellant guilty of the offense under Section 302 and Section 307 IPC and Sections 25 and 27 of the Arms Act. The High Court upheld the conviction, but instead of a death sentence, commuted it to life imprisonment. The appeals are now being considered for special leave.
ISSUE RAISED
The issue raised for consideration is under what 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.
CONTENTION OF THE PETITIONER
The petitioner argued that the conviction relies on the statements of five witnesses recorded under Section 299 of the Code of Criminal Procedure which empowers a Magistrate to take the deposition of the witness in the absence of the accused which is 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. Also, the deposition recorded by the Magistrate under Section 299 of the Cr. P. C can be used as evidence if the deponent is dead, incapable of giving evidence, or cannot be found but 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. Thus, the deponent’s deposition cannot be used in the trial, and the appellant’s conviction is vitiated. The petitioner argued that the circumstances allowing the prosecution to use the witnesses’ statements must be proven and the court must be satisfied.
CONTENTION OF THE DEFENCE
The defence argued that because the five people were declared to be deceased, their statements recorded under Section 299 Cr.P.C. were offered in evidence as Exhibits PW48/A to PW48/E. At no point in time has the accused complained that these people are not dead. It is too late for the appellant to argue in this Court that there is no evidence to show that the people whose statements were recorded under Section 299 Cr.P.C. and were presented in evidence during the trial are still alive. According to the defence, the appellant in this Court does not allege that the individuals involved are not deceased. However, it is argued that the prosecution has not shown that the persons are not deceased. The Magistrate who recorded the statements under Section 299 of the Criminal Procedure Code has been examined to ensure that the statements were really recorded.
Further, they argued that the statements recorded in accordance with Section 299 Cr.P.C. were presented as evidence during the trial after the process server had submitted the report that the people were deceased. It is true that the learned Sessions Judge has not issued an order to that effect, but the failure to do so would only constitute a procedural irregularity that could be corrected in accordance with Section 465 of the Code of Criminal Procedure, especially given that the accused had not objected to anything at any earlier stage of the case.
JUDGEMENT
The Supreme Court has ruled that before recording witnesses’ statements under Section 299 of the Code of Criminals, the court must ensure the accused has absconded or has no immediate arrest prospects. When the accused is arrested and put up for trial, the court must be satisfied that the deponent is dead, incapable of giving evidence, or cannot be found without delay, expense, or inconvenience. The court can use statements recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act. The pre-conditions for utilizing such statements must be established and proved like any other fact. This ruling aligns with the proposition that for taking the benefits of Section 299 of the Code of Criminal Procedure, the prosecution must establish pre-conditions in both Sections of the Code of Criminal Procedure and Section 33 of the Evidence Act before tendering the evidence.
The High Court ruled that the first part of Section 299 (1) was satisfied, as evidence from PW28, Safidon, and the Magistrate showed the accused’s absconding status prevented arrest. The court found no illegality in recording the statements of the five witnesses, and summons were returned with reports of the deceased. The Sessions Judge did not record an order to comply with Section 299 requirements, but the Appellate Court’s conclusion that the witnesses died long before summons could be issued made the evidence admissible. The Honourable Supreme Court held that the High Court did record a conclusion that the witnesses are dead, and their former statements under Section 299 could be treated as evidence. The apex court saw no infirmity in the High Court’s decision, requiring their interference with the conviction and sentence.
CONCLUSION
In this case, the appeals fail and are accordingly dismissed. This ruling on the admissibility of witness statements under Section 299 of the Code of Criminal Procedure of the honourable Supreme Court has significant implications. The court emphasized the need to establish pre-conditions before recording such statements, ensuring the accused has absconded or has no immediate arrest prospects. The court further clarified that when the accused is arrested and put on trial, the deponent must be proven dead, incapable of giving evidence, or unlocatable without delay, expense, or inconvenience. The court’s decision aligns with the principle that the prosecution must establish these pre-conditions under both the Code of Criminal Procedure and Section 33 of the Evidence Act. In the specific case discussed, the High Court found no illegality in recording witness statements and considered the deceased witnesses’ reports as evidence and the Supreme Court upheld the High Court’s decision, finding no issues that would warrant interfering with the conviction and sentence. This ruling serves as a crucial guideline, ensuring the protection of the accused’s rights and the reliability of evidence in criminal trials.
written by Shivanshu Shivam intern under legal vidhiya
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