TaxTMI 
TaxTMI 
2000 (3) TMI 1114
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....aryana 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 f....
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....d him for the offences charged. Out of the 27 witnesses who had been examined under Section 299 of the Code of Criminal Procedure, five of them had died by the time charges were framed against the Appellant. Their statements recorded under Section 299 Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Cri....
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....ed 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 Code of Criminal Procedure 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 Code of Criminal Procedure and those statements were tendered in evidence during trial, are not dead. According to Mr. Mahabir Singh, the Appellants 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 s....
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....red 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 Section 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 t....
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.... 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 Code of Criminal Procedure 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 con....