{"id":150037,"date":"2000-03-30T00:00:00","date_gmt":"2000-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nirmal-singh-vs-state-of-haryana-on-30-march-2000"},"modified":"2018-07-29T07:35:01","modified_gmt":"2018-07-29T02:05:01","slug":"nirmal-singh-vs-state-of-haryana-on-30-march-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nirmal-singh-vs-state-of-haryana-on-30-march-2000","title":{"rendered":"Nirmal Singh vs State Of Haryana on 30 March, 2000"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Nirmal Singh vs State Of Haryana on 30 March, 2000<\/div>\n<div class=\"doc_author\">Author: Pattanaik<\/div>\n<div class=\"doc_bench\">Bench: R.P.Sethi, G.B.Pattanaik<\/div>\n<pre>           PETITIONER:\nNIRMAL SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HARYANA\n\nDATE OF JUDGMENT:\t30\/03\/2000\n\nBENCH:\nR.P.Sethi, G.B.Pattanaik\n\n\n\n\nJUDGMENT:\n<\/pre>\n<p>      PATTANAIK,J.\n<\/p>\n<p>      The  appellant  was convicted by the learned  Sessions<br \/>\nJudge  for the offence of murder under Section 302 IPC, on a<br \/>\nfinding\t that he shot at Surat Singh, Desh Raj, Lehna  Singh<br \/>\nand  Ramesh, by means of his sten gun, on account of  which,<br \/>\nall  these four people died.  He was also found guilty under<br \/>\nSection 307 IPC for having injured 12 other persons with the<br \/>\nintention of killing them.  For his conviction under Section<br \/>\n302  IPC,  the learned Sessions Judge, awarded\tthe  extreme<br \/>\npenalty\t of death.  The conviction and sentence was assailed<br \/>\nby  the appellant in Criminal Appeal No.  261- DB of 1997 in<br \/>\nthe  High  Court of Punjab and Haryana and a Reference\talso<br \/>\nhad  been  made by the learned Sessions Judge under  Section<br \/>\n366  of\t the  Code of Criminal Procedure  for  confirmation,<br \/>\nwhich  was  registered as Murder Reference No.\t3  of  1996.<br \/>\nBoth  these cases were heard together and the High Court  of<br \/>\nPunjab and Haryana by the impugned Judgment dated 11.7.1997,<br \/>\nupheld\tthe conviction of the appellant under Section 302 as<br \/>\nwell  as  under\t Section 307 IPC but so far as\tsentence  is<br \/>\nconcerned,  the\t High Court commuted the death\tsentence  to<br \/>\nimprisonment  for life.\t Be it be stated, the appellant\t had<br \/>\nalso been convicted under Sections 25 and 27 of the Arms Act<br \/>\nand  that conviction had also been upheld by the High  Court<br \/>\nin  appeal.   On the basis of the First\t Information  Report<br \/>\nExhibit PW44\/A, a criminal case was registered under Section<br \/>\n302\/34\tin the Police Station Safidon, District Jind on 15th<br \/>\nof September, 1980 at 8.20 p.m.\t The First Informant was one<br \/>\nChhotu,\t son of Indraj.\t According to the FIR version, while<br \/>\nthe  informant\talong  with two others were present  at\t the<br \/>\nflour  mill  of\t Gaje  Singh in\t village  Budha\t Khera,\t the<br \/>\nappellant  who\twas  serving in Army, and his  brother,\t one<br \/>\nVijay  Singh  with  two other persons came before  them\t and<br \/>\nindiscriminately  fired with the army weapon which hit Surat<br \/>\nSingh  and  said Surat Singh fell down.\t In course  of\tsuch<br \/>\nfiring,\t Desh  Raj  also  was  shot at\tand  he\t died.\t The<br \/>\ninformant  then rushed to the Police Station and lodged\t the<br \/>\nreport.\t  It  was also indicated that earlier, there  was  a<br \/>\nfight  between two groups of people, on account of which the<br \/>\naccused\t persons  had  grudge and they took revenge  of\t the<br \/>\nsame.\tOn  the basis of the aforesaid FIR, PW44 along\twith<br \/>\nhis  police staff reached the place of occurrence and  found<br \/>\nfour  people  dead.  The dead bodies of the  aforesaid\tfour<br \/>\npeople were sent to hospital for post mortem examination and<br \/>\nautopsy\t was conducted by Doctors PW31, PW32, PW33 and PW34.<br \/>\nThe  investigating  Officer got a warrant of arrest  against<br \/>\nthe  appellant\ton 16th of September, 1980 and went  to\t the<br \/>\nUnit of accused and he was informed by the Officers that the<br \/>\nappellant has not rejoined after availing leave from 15th of<br \/>\nSeptember,  1980.  The Investigating Officer also  requested<br \/>\nto have the custody of the sten gun which had been issued to<br \/>\nthe  appellant but the Army Officers, refused to hand-\tover<br \/>\nthe  sten gun.\tHowever those Army Officers handed over\t the<br \/>\nlive cartridges which had been supplied to the accused along<br \/>\nwith the sten gun for the purpose of analyses and comparison<br \/>\nwith  the  leads  removed from the dead bodies of  the\tfour<br \/>\ndeceased  persons.   But,  FSL\t authorities  intimated\t the<br \/>\nInvestigating  Officer that no testing could be done as\t the<br \/>\nfiring\thad  been  done\t in  sand  and\twithout\t the  weapon<br \/>\nconcerned,  it\twould not be possible to test  and  analyse.<br \/>\nThe  Investigating  Officer then again approached  the\tArmy<br \/>\nAuthorities  and got eight sten guns.  All those eight\tsten<br \/>\nguns  were  tested  by\ta  test\t fire  and  the\t FSL  people<br \/>\nidentified one of those sten gun which according to them had<br \/>\nbeen  used  in firing at the deceased.\tLater on,  the\tArmy<br \/>\nAuthorities  established that the said gun in fact had\tbeen<br \/>\nissued\tto  the\t accused  appellant.   After  completion  of<br \/>\ninvestigation, charge sheet was filed against the appellant,<br \/>\nhis brother Vijay Singh and their father Rulia Ram but Rulia<br \/>\nRam had died by then.  So far as the appellant is concerned,<br \/>\nas  he\tcould  not  be found,  he  was\tdeclared  proclaimed<br \/>\noffender  and his brother Vijay Singh was also declared as a<br \/>\nproclaimed  offender.  Since one of the accused persons\t had<br \/>\nalready\t died  and  two others were declared  as  proclaimed<br \/>\noffenders,  the Sub-Divisional Judicial Magistrate, recorded<br \/>\nthe  statement of 27 witnesses under Section 299 of the Code<br \/>\nof  Criminal Procedure.\t The present appellant was later  on<br \/>\narrested  on  11th  of\tSeptember, 1994 and  then  on  being<br \/>\ncommitted  by  the  learned  Magistrate\t  to  the  Court  of<br \/>\nSessions,  the\tSessions  Judge tried him for  the  offences<br \/>\ncharged.   Out\tof  the 27 witnesses who had  been  examined<br \/>\nunder  Section 299 of the Cr.P.C., five of them had died  by<br \/>\nthe  time charges were framed against the appellant.   Their<br \/>\nstatements  recorded  under  Section   299  Cr.P.C.    were,<br \/>\ntherefore  exhibited  during  the trial as  PW48\/A,  PW48\/B,<br \/>\nPW48\/C,\t PW48\/D and PW48\/E.  22 other witnesses who had also<br \/>\nbeen  examined\tunder Section 299 Cr.P.C.  were examined  as<br \/>\nprosecution  witnesses during trial but they did not support<br \/>\nthe  prosecution and, therefore, they were cross examined by<br \/>\nthe  Public  Prosecutor\t and  were  declared  hostile.\t The<br \/>\nappellant  in  his  statement  recorded\t under\tSection\t 313<br \/>\npleaded\t innocence  and\t denied of his complicity  with\t the<br \/>\ncrime.\t On the basis of the medical evidence of the doctors<br \/>\nwho  had  conducted  the autopsy over the dead\tbodies,\t the<br \/>\nlearned\t Sessions  Judge came to hold that the four  persons<br \/>\ndied  on account of gun shot injuries and injuries were ante<br \/>\nmortem in nature.  So far as, the appellant being the author<br \/>\nof  the crime, the Sessions Judge relied upon the  statement<br \/>\nof  the five deceased eye witnesses, which had been recorded<br \/>\nunder  Section 299 Cr.P.C.  and came to the conclusion\tthat<br \/>\nthose  evidence\t prove beyond reasonable doubt that  on\t the<br \/>\ndate  of  occurrence, it is the appellant who fired  at\t the<br \/>\ndeceased persons by means of his sten gun and in consequence<br \/>\nof  which  the four persons died at the spot.  The  Sessions<br \/>\nJudge also came to the conclusion on the self-said statement<br \/>\nrecorded  under\t Section 299 Cr.P.C.  and came to hold\tthat<br \/>\nthe appellant also caused injuries by means of firing and as<br \/>\nsuch   committed   the\toffence\t  under\t Section  307\tIPC.<br \/>\nUltimately, the Sessions Judge convicted the appellant under<br \/>\nSection\t 302  and  under Section 307 IPC as  well  as  under<br \/>\nSections  25  and 27 of the Arms Act.  On appeal,  the\tHigh<br \/>\nCourt  upheld the conviction of the appellant, relying\tupon<br \/>\nthe  self-same materials namely the statement recorded under<br \/>\nSection\t 299 Cr.P.C.  of those five persons but as has\tbeen<br \/>\nstated earlier for the conviction under Section 302, instead<br \/>\nof  awarding sentence of death, the High Court commuted\t the<br \/>\nsame  to  the  life imprisonment.  These appeals  have\tbeen<br \/>\npresented in this court on getting special leave.\n<\/p>\n<p>      Since  the  conviction  is essentially  based  on\t the<br \/>\nstatements  of five witnesses recorded under Section 299  of<br \/>\nthe  Code of Criminal Procedure, Mr.  Gopal Subramanium, the<br \/>\nlearned\t  senior  counsel,  appearing\tfor  the   appellant<br \/>\ncontended  before  us  that  Section  299  of  the  Criminal<br \/>\nProcedure Code, empowers a Magistrate to take the deposition<br \/>\nof  witnesses  in  the\tabsence\t of  the  accused  being  an<br \/>\nexception  to  the principle embodied in Section 33  of\t the<br \/>\nEvidence  Act, before such statement can be used as evidence<br \/>\nin  any trial, the prosecution must strictly comply with the<br \/>\npre-  conditions for applicability of Sec.  299.   According<br \/>\nto  the\t learned  counsel, the deposition  recorded  by\t the<br \/>\nMagistrate  under  Section  299\t can be\t given\tin  evidence<br \/>\nagainst\t an accused in any trial for the offence with  which<br \/>\nhe  is\tcharged,  if the deponent is dead  or  incapable  of<br \/>\ngiving evidence or cannot be found or his presence cannot be<br \/>\nprocured   without   an\t  amount  of   delay,\texpense\t  or<br \/>\ninconvenience.\t But  in  the  case in\thand,  there  is  no<br \/>\nmaterial  to  establish that the deponent namely those\tfive<br \/>\npersons\t whose statement had been recorded under Section 299<br \/>\nof  the\t Cr.P.C.  are dead and, therefore, their  deposition<br \/>\nrecorded  under\t Section  299  of  the\tCr.P.C.\t  cannot  be<br \/>\nutilised  as  evidence\tin trial and the conviction  of\t the<br \/>\nappellant, therefore is vitiated.\n<\/p>\n<p>      Mr.  Mahabir Singh, the learned counsel, appearing for<br \/>\nthe  State-respondnet, on the other hand contended that\t the<br \/>\nfive  persons  having  been  reported\tto  be\tdead,  their<br \/>\nstatements recorded under Section 299 Cr.P.C.  were tendered<br \/>\nin  evidence, which had been exhibited as Exhibits PW48\/A to<br \/>\nPW48\/E.\t  At  no  point of time, the accused  has  made\t any<br \/>\ngrievance  that these persons are not dead.  It is too\tlate<br \/>\nfor  the appellant to contend in this Court that there is no<br \/>\nmaterial to establish that the persons whose statements were<br \/>\nrecorded  under\t Section 299 Cr.P.C.  and  those  statements<br \/>\nwere  tendered\tin  evidence  during trial,  are  not  dead.<br \/>\nAccording to Mr.  Mahabir Singh, the appellant in this Court<br \/>\nalso  does  not contend that the persons concerned  are\t not<br \/>\ndead.  But what is contended is that the prosecution has not<br \/>\nestablished  the  fact\tthat the people are not\t dead.\t The<br \/>\nMagistrate  who has recorded the statement under Section 299<br \/>\nof  the\t Criminal  Procedure  Code,  has  been\texamined  to<br \/>\nindicate  that\tin fact he has recorded the statements.\t  He<br \/>\nalso  further  contended that the process server did  submit<br \/>\nthe  report  that  the\tpersons\t are  dead,  whereafter\t the<br \/>\nstatements recorded under Section 299 Cr.P.C.  were tendered<br \/>\nin evidence in course of trial.\t It is true that the learned<br \/>\nSessions  Judge has not passed any order to that effect\t but<br \/>\nnon-passing   of  such\torder  would  at  the  most  be\t  an<br \/>\nirregularity  which is curable under Section 465 of the Code<br \/>\nof  Criminal  Procedure, more so, when the accused  had\t not<br \/>\nraised any objection at any earlier stage of the proceeding.\n<\/p>\n<p>      In  view\tof the rival stand of the parties, the\tsole<br \/>\nquestion  that\tarises\tfor   consideration  is\t under\twhat<br \/>\ncircumstances  and  by what method, the statements  of\tfive<br \/>\npersons\t could\thave  been tendered in the  case  for  being<br \/>\nadmissible  under Section 33 of the Evidence Act and whether<br \/>\nit  can\t form the basis of conviction.\tSection 299  of\t the<br \/>\nCode of Criminal Procedure consists of two parts.  The first<br \/>\npart  speaks  of  the circumstances  under  which  witnesses<br \/>\nproduced by the prosecution could be examined in the absence<br \/>\nof   the  accused  and\tthe   second  part  speaks  of\t the<br \/>\ncircumstances, when such deposition can be given in evidence<br \/>\nagainst\t the accused in any inquiry or trial for the offence<br \/>\nwith which he is charged.  This procedure contemplated under<br \/>\nSection\t 299  of the Code of Criminal Procedure is  thus  an<br \/>\nexception  to  the principle embodied in Section 33  of\t the<br \/>\nEvidence Act inasmuch as under Section 33, the evidence of a<br \/>\nwitness,  which\t a  party  has no right\t or  opportunity  to<br \/>\ncross-examine\tis  not\t legally   admissible.\t  Being\t  an<br \/>\nexception,   it\t is  necessary,\t  therefore,  that  all\t the<br \/>\nconditions  prescribed, must be strictly complied with.\t  In<br \/>\nother\twords,\tbefore\trecording   the\t statement  of\t the<br \/>\nwitnesses,  produced  by the prosecution, the Court must  be<br \/>\nsatisfied that the accused has absconded or that there is no<br \/>\nimmediate prospect of arresting him, as provided under first<br \/>\npart  of  Section 299(1) of the Code of Criminal  Procedure.<br \/>\nIn   the  case\tin  hand,   there  is  no  grievance   about<br \/>\nnon-compliance\tof any of the requirements of the first part<br \/>\nof  sub-section (1) of Section 299 Cr.P.C.  When the accused<br \/>\nis arrested and put up for trial, if any, such deposition of<br \/>\nany  witness  is intended to be used as an evidence  against<br \/>\nthe  accused in any trial, then the Court must be  satisfied<br \/>\nthat  either  the  deponent is dead or incapable  of  giving<br \/>\nevidence  or  cannot  be  found or his\tpresence  cannot  be<br \/>\nprocured   without   an\t  amount  of   delay,\texpense\t  or<br \/>\ninconvenience,\twhich  would  be unreasonable.\t The  entire<br \/>\narguments  of  Mr.   Gopal Subramanium,\t appearing  for\t the<br \/>\nappellant  is  that  any one of these  circumstances,  which<br \/>\npermits\t the  prosecution  to  use the\tstatements  of\tsuch<br \/>\nwitnesses,  recorded under Section 299(1) must be proved and<br \/>\nthe  Court  concerned  must  be\t  satisfied  and  record   a<br \/>\nconclusion thereon.  In other words, like any other fact, it<br \/>\nmust  first  be\t proved by the prosecution that\t either\t the<br \/>\ndeponent  is  dead  or is incapable of\tgiving\tevidence  or<br \/>\ncannot\tbe found or his presence cannot be procured  without<br \/>\nan  amount  of delay, expense or inconvenience which,  under<br \/>\nthe  circumstances  would be unreasonable.  In the  case  in<br \/>\nhand,  there  is  no  order  of\t the  learned  trial  Judge,<br \/>\nrecording  a  conclusion  that\ton  the\t materials,  he\t was<br \/>\nsatisfied  that\t the  persons  who   are  examined  by\t the<br \/>\nMagistrate  under  Sec.299(1) are dead, though according  to<br \/>\nthe  prosecution case, it is only after summons being issued<br \/>\nand  the process server having reported those persons to  be<br \/>\ndead,  their former statements were tendered as evidence  in<br \/>\ntrial  and were marked as Exhibits PW48\/A to PW48\/E.  As has<br \/>\nbeen  stated  earlier, since the law empowers the  Court  to<br \/>\nutilise\t such  statements of persons whose  statements\twere<br \/>\nrecorded  in  the absence of the accused as an exception  to<br \/>\nthe normal principles embodied in Section 33 of the Evidence<br \/>\nAct,  inasmuch\tas  the\t accused  has  been  denied  of\t the<br \/>\nopportunity  of\t cross-examining  the\twitnesses,  it\t is,<br \/>\ntherefore,  necessary that the pre-conditions for  utilising<br \/>\nsuch statements in evidence during trial must be established<br \/>\nand  proved  like any other fact.  There possibly cannot  be<br \/>\nany  dispute with the proposition of law that for taking the<br \/>\nbenefits  of Section 299 of the Code of Criminal  Procedure,<br \/>\nthe  conditions\t precedent therein must be duly\t established<br \/>\nand  the  prosecution,\twhich proposes to utilise  the\tsaid<br \/>\nstatement as evidence in trial, must, therefore, prove about<br \/>\nthe  existence\tof the pre- conditions before tendering\t the<br \/>\nevidence.   The\t Privy\tCouncil,  in fact  in  the  case  of<br \/>\nChainchal  Singh vs.  Emperor, AIR (33) 1946 PC, Page 1,  in<br \/>\nanalysing  the\tapplicability of Section 33 of the  Evidence<br \/>\nAct, did come to the conclusion that when the evidence given<br \/>\nby  the prosecution witness before the Committing Magistrate<br \/>\nis  sought  to be admitted before the Sessions\tCourt  under<br \/>\nSection\t 33 on the ground that the witness was incapable  of<br \/>\ngiving\tevidence, then that fact must be strictly proved and<br \/>\nthis may be more so in those cases where the witness was not<br \/>\ncross-examined\tin  the\t Committing  Magistrates  Court\t by<br \/>\nreason\tof  the\t accused not having been  represented  by  a<br \/>\ncounsel.   In  that particular case the process\t server\t had<br \/>\nbeen  examined, who stated that he found the witness ill and<br \/>\nunable\tto move from his house, but that was not treated  to<br \/>\nbe  sufficient\tto hold that the prosecution has  discharged<br \/>\nits  burden  of proving that the witness is  not  available.<br \/>\nBut  having said so, Their Lordships did not interfere\twith<br \/>\nthe  conviction\t on the ground that the Court can  interfere<br \/>\nonly  if,  it  is  satisfied   that  grave  and\t substantial<br \/>\ninjustice  has been caused by mis-reception of the  evidence<br \/>\nin  the case.  On a mere perusal of Section 299 of the\tCode<br \/>\nof  Criminal Procedure as well as Section 33 of the Evidence<br \/>\nAct,  we  have no hesitation to come to the conclusion\tthat<br \/>\nthe pre- conditions in both the Sections must be established<br \/>\nby  the\t prosecution and it is only then, the statements  of<br \/>\nwitnesses  recorded  under Section 299 Cr.P.C.\t before\t the<br \/>\narrest\tof the accused can be utilised in evidence in  trial<br \/>\nafter  the  arrest of such accused only if the\tpersons\t are<br \/>\ndead  or  would\t not  be available or  any  other  condition<br \/>\nenumerated  in the second part of Section 299(1) of the Code<br \/>\nof  Criminal Procedure is established.\tIn the case in hand,<br \/>\nafter  the process server reported the fact of death of\t the<br \/>\nconcerned  persons, who were summoned as witnesses and whose<br \/>\nstatements  had\t already  been recorded\t under\tSection\t 299<br \/>\nCr.P.C.\t  on  the application of the prosecution,  the\tsaid<br \/>\nstatements were tendered as evidence and have been exhibited<br \/>\nas Exhibits PW48\/A to PW48\/E.  The learned Sessions Judge as<br \/>\nwell  as the High Court relied upon the said statements\t for<br \/>\nbasing\tthe  conviction\t of the appellant.  So\tfar  as\t the<br \/>\ncompliance  of\tthe  first  part  of  Section  299  (1)\t  is<br \/>\nconcerned,  the same is established through the evidence  of<br \/>\nPW28,  who at the relevant time was working in Army as\twell<br \/>\nas  the S.H.O., Safidon also submitted before the Magistrate<br \/>\nthat  the arrest of the accused could not be procured, as he<br \/>\nwas  absconding\t and  in fact there was an  order  from\t the<br \/>\nMagistrate  for issuance of proclamation under Section 82 of<br \/>\nthe  Code of Criminal Procedure.  The High Court in fact, on<br \/>\nconsideration  of the entire materials did record a  finding<br \/>\nthat  the  requirements of first part of Section 299 of\t the<br \/>\nCode  of  Criminal  Procedure  must be\theld  to  have\tbeen<br \/>\nestablished  and  there was no illegality in  recording\t the<br \/>\nstatements  of\tthe  five persons as the  accused  had\tbeen<br \/>\nabsconding and there was no immediate prospect of the arrest<br \/>\nof  the said accused.  So far as the requirements of  second<br \/>\npart  of  Section 299 of the Code of Criminal  Procedure  is<br \/>\nconcerned, the impugned Judgment of the High Court indicates<br \/>\nthat  the Court looked into the original records and it\t was<br \/>\nfound  that  the summons had been sent by the learned  trial<br \/>\nJudge,\tsummoning the witnesses repeatedly to appear  before<br \/>\nthe  trial  Court  and on every occasion, the  summons\twere<br \/>\nreceived  back with the report that the persons have already<br \/>\ndied.\tThe High Court has also indicated as to how on\teach<br \/>\noccasion,  summons  issued to the five witnesses  have\tbeen<br \/>\nreturned back with the report that the persons are dead.\n<\/p>\n<p>      It  is true as already stated that the Sessions  Judge<br \/>\nhas  not recorded an order to that effect and it would\thave<br \/>\ncertainly  been in compliance of the requirement of  Section<br \/>\n299  that  the Court, while such statements are tendered  in<br \/>\nevidence  should have recorded as to how the  pre-conditions<br \/>\nof  the\t second part of Section 299 of the Code of  Criminal<br \/>\nProcedure  have been complied with.  But when the  Appellate<br \/>\nCourt examines the records of the proceedings and comes to a<br \/>\nconclusion  that in fact those persons have died long before<br \/>\nthe  summons on them to appear as witness, could be  issued,<br \/>\nthe   evidence\t thus  tendered\t  cannot  be  ignored\tfrom<br \/>\nconsideration,\tparticularly,  in a case like the one  where<br \/>\nall  other  eye witnesses, 22 in number did not support\t the<br \/>\nprosecution  on being examined and there has been a gruesome<br \/>\nmurder\tinasmuch  as  the appellant killed four\t persons  by<br \/>\nindiscriminately  shooting at them from his rifle, which was<br \/>\ngiven to him in the Cantonment.\t The High Court has recorded<br \/>\na finding that the factum of death of five witnesses, namely<br \/>\nPW2  Chhotu,  PW12 Jai Lal, PW15 Prem, PW10 Zohri Singh\t and<br \/>\nPW11  Jage  Ram,  has been established for  the\t purpose  of<br \/>\nSection\t 299 of the Code of Criminal Procedure.\t In fact  in<br \/>\nthe  case of <a href=\"\/doc\/39835400\/\">Jose vs.  The State of Kerala, AIR<\/a> 1973 SC 944,<br \/>\nthis  Court  had  an  occasion to examine  the\tquestion  of<br \/>\ntreating the evidence of a witness in the committal Court as<br \/>\nsubstantive  evidence  in  trial  under Section\t 33  of\t the<br \/>\nEvidence  Act, this Court had recorded the fact that at\t the<br \/>\ntime  of  trial, the witness had left for Coorg and was\t not<br \/>\navailable  and\tit was not possible to serve summons on\t him<br \/>\nand  even  a  non-bailable warrant issued by the  Court\t was<br \/>\nreturned  with\tthe  endorsement not available and  it\tis<br \/>\nunder  those  circumstances,  the   learned  Sessions  Judge<br \/>\nbrought\t on  record  the statement made by the\teye  witness<br \/>\nbefore\tthe  committal\tCourt as  substantive  evidence\t and<br \/>\nmarked\tthe  same  as  P-25.\tThis  Court  negatived\t the<br \/>\ncontention  of the accused and held that the said  statement<br \/>\nhad  rightly been treated as an evidence during trial.\t The<br \/>\ncircumstances  under  which the statement of the witness  in<br \/>\nthe  committal\tCourt  had  been  tendered  and\t treated  as<br \/>\nsubstantive  evidence during trial is almost similar to\t the<br \/>\ncase  in  hand and rather in the case in hand,\tthe  accused<br \/>\nnever  raises  the  contention even in this Court  that\t the<br \/>\npersons\t are not dead but raises the sole contention that it<br \/>\nhas not been established by the prosecution that the persons<br \/>\nare  not  dead.\t As has been stated earlier, the High  Court<br \/>\ndid  record  a\tconclusion on examining the records  of\t the<br \/>\nproceedings  that  the\twitnesses are dead  and,  therefore,<br \/>\ntheir  former statements under Section 299 could be  treated<br \/>\nas  evidence.  We see, no infirmity with the said conclusion<br \/>\nof  the High Court and we are, therefore, not in a  position<br \/>\nto  sustain the argument of Mr.\t Gopal Subramanium,  learned<br \/>\nsenior\t counsel,   appearing  for    the   appellant\tthat<br \/>\npre-conditions\tof  Section  299   Cr.P.C.   have  not\tbeen<br \/>\ncomplied  with.\t  Once\tthe statements of  those  witnesses,<br \/>\nexhibited  as Exhibits PW48\/A to PW48\/E, are considered, and<br \/>\nthe  Sessions Judge as well the High Court have relied\tupon<br \/>\nthe  same and based the conviction, we see, no infirmity  in<br \/>\nthe same, requiring our interference with the conviction and<br \/>\nsentence  recorded  by\tthe High Court.\t  In  the  aforesaid<br \/>\ncircumstances, it must be held that the prosecution case has<br \/>\nbeen proved beyond reasonable doubt.  These appeals fail and<br \/>\nare accordingly dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Nirmal Singh vs State Of Haryana on 30 March, 2000 Author: Pattanaik Bench: R.P.Sethi, G.B.Pattanaik PETITIONER: NIRMAL SINGH Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 30\/03\/2000 BENCH: R.P.Sethi, G.B.Pattanaik JUDGMENT: PATTANAIK,J. The appellant was convicted by the learned Sessions Judge for the offence of murder under Section 302 IPC, on [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-150037","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Nirmal Singh vs State Of Haryana on 30 March, 2000 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nirmal-singh-vs-state-of-haryana-on-30-march-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nirmal Singh vs State Of Haryana on 30 March, 2000 - Free Judgements of Supreme Court &amp; 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