LexNIRMAL SINGH versus STATE OF HARYANA
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NIRMAL SINGH A v. STATE OF HARYANA •, MARCH 30, 2000 [G.B. PATTANAIK AND R.P. SETHI, JJ.] B Criminal Procedure Code, 1973-Section 299(1)-lndian Evidence Act, 1872-Section 33-Deposition of witnesses in absence of accused-Admissi- bility of-The procedure under Section 299 being exception to the principle embodied in Section 33, it is necessary that the pre-conditions for utilising c such statements in evidence during trial must be strictly complied with and be established and proved like any other fact-Statement of witness uls. 299 tendered in evidence when death of the witnesses established-Whether the statements could be treated as evidence-Held, Yes. Indian Penal Code, 1860-Sections 302 & 307-Arms Act, 1959-Sec- D tions 25 & 27-Convictions under-Relying on statements recorded under Section 299 Cr.P.C.-Held, under the circumstances of the case, no inteiference required. The appellant serving in the army, along with two others, was charged E for murder of four persons with a service rifle. He was declared pro- claimed offender under section 82 Cr.P.C. Thereafter Sub-Divisional Judi- cial Magistrate recorded statement of 27 witnesses under section 299 Cr.P.C. The appellant was arrested later, and was com,mitted to Sessions Court. During trial, 22 out of the 27 witnesses whose statements were F < recorded under section 299 Cr.P.C., turned hostile and when summons ... were issued to the other 5 witnesses, it returned with the report that the persons have died. The process server also submitted his report that they have died. Thereafter their statements recorded under Section 299 Cr.P.C. were tendered in evidence and exhibited. The Magistrate who had re- corded the statement was also examined to the effect that he had recorded G the statements. The Trial Court did not record an order to the effect as to how the pre-conditions of the second part of Section 299 Cr.P.C. have been -- complied with; and relying on the statements of the five deceased wit- nesses, the trial court convicted the appellant under sections 307 & 302 IPC and under section 25 & 27 Arms Act and sentenced him to death. H 807 808 SUPREME COURT REPORTS [2000] 2 S.C.R. A In appeal by the appellant and in Reference under Section 366 Cr.P.C., High Court recorded a finding that the factum of death of five witnesses has been established for the purpose of Section 299 Cr.P.C. The conviction was confirmed, but the death sentence was commuted to life imprisonment. B In appeal to this Court, it was contended by the appellant that' the pre-conditions of Section 299 Cr.P.C. have not been complied with, as it has not been established by the prosecution that the persons are dead. The respondent/State contended that the statements recorded under Section 299 were tendered in evidence only when the five witnesses were reported C dead by the process server; that though the Trial Judge has not passed any order to that effect, the non-passing of such order would at the most be an irregularity which is curable under section 465 Cr.P.C., more so, when the accused had not raised any objection at any earlier stage of the proceeding; and that the argument of the appellant cannot be sustained because it is not his contention that those persons are not dead. D E F G H Dismissing the appeal , this Court HELD: 1. The argument that pre-condition of section 299 Cr.P.C. have not been complied with, cannot he sustained. The statements under section 299 could be treated as evidence, since the High Court did record a conclusion on examining the records of the proceedings· that the wit- nesses are dead. The accused never raised the contention even in this Court that the persons are not dead but raised the sole contention that it has not been established by the prosecution that the persons are not dead. [817-D-E] 2. Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such depo- sition can be given in evidence against the accused in any inqtifry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33 the evidence of a \vitn
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