Nirmal Singh Alias Manbir Singh, Appellant V. State Of Haryana, Respondent.

DATE : 11-07-1997  1998-(104)-CRLJ -1008 -P&H

Penal Code, 1860 – Section 300 – Case of murder – Accused, Army Officer alleged to have committed murder of four persons and caused fire arm injuries to many others – Accused declared proclaimed offender as was ??? after commission of crime – Case of the prosecution with regard to gun shot injuries received by deceased is proved that these injuries were caused by accused by the evidence in the proceeding under section 299 CrPC and the evidence is reliable – Delay in delivering the special report to C.J.M. has been satisfactorily explained – Report of the ??? proving that the catridges which were lifted from various spots of the crime, had been fired from the stengun of the accused – No evidence led by accused for establishing the plea of alibi – Motive pales into insignificance when there is a positive and cogent evidence of murder – Conviction of accused justified – No interference called for.

JUDGE(S) :

S S Sudhalkar

Sat Pal

PUNJAB AND HARYANA HIGH COURT

JUDGMENT

SATPAL, J. :- By this judgment, we are disposing of Murder Reference No. 3 of 1996 and Criminal Appeal No. 261-DB of 1996 as both arise from the same judgment, dated 30th April, 1996, passed by Sessions Judge, Jind. By this judgment, the learned Sessions Judge convicted the appellants under Sections 302 and 307 of the Indian Penal Code and under Sections 25 and 27 of the Indian Arms Act. Under Section 302, IPC, the appellant has been sentenced to death and also to pay a fine of Rs. 1,000/-. The sentence of death is subject to the confirmation by this Court. Under Section 307, IPC, the appellant has been sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,000/- Under Section 25 of the Arms Act, the appellant has been sentenced to undergo rigorous imprisonment for one year and has further been sentenced to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. The learned Sessions Judge further ordered that in default of payment of fine on any count, the appellant would further undergo imprisonment for a period of three months. All the substantive sentences have been ordered to run concurrently.

2. In this case, F.I.R. Exhibit PW 44/A under Sections 302/34, Indian Penal Code, was registered at Police Station Safidon, District Jind, on 15th September, 1980 at 8.20 p.m. on the basis of the statement of Chhotu son of Indraj. The statement of said Chhotu was recorded by S.I. Ram Singh (PW 44) S.H.O.P.S. Safidon. In his statement, Chhotu stated that on 15th September, 1980 at about 7.45 p.m. he along with Manphool son of Bhola and Surat Singh son of Ram Kishan was present at the flour mill of Gaje Singh son of Abhey Ram in village Budha Khera when Nirmal Singh (appellant) who was serving in the Army and his brother Vijay Singh, both sons of Rulia Ram and two other persons whom he could identify if brought before him, came in the street Nirmal Singh fired at them with the small Army weapon which hit Surat Singh who fell down. Then he rushed towards the shop of Inder Singh and raised alarm that Surat Singh had been murdered. In the meantime, Nirmal Singh etc. came towards that side and fired at his nephew Des Raj who died on the spot. He further stated that firing was going on in the village. He also stated that about 6/7 months ago, a fight took place between Vijay Singh and Gaje Singh and due to that grudge, they had taken the revenge of it. Special report was sent to the Chief Judicial Magistrate, Jind through Constable Puran Singh (PW 3) on 16th September, 1980 at 3.30 a.m. It may be pointed out that distance between the place of occurrence and P. S. Safidon is 7 Miles. It is further the case of the prosecution that after recording of the FIR, PW 44 Ram Singh along with several police officials reached the spot for investigation. He found that four dead bodies were lying in the village, two at one place and two at another place. He prepared the inquest reports Exhibits PW 44/B, PW 44/C, PW 44/D and PW 44/E, of the dead bodies of Surat Singh, Des Raj, Lehna Singh and Ramesh Chand respectively. Then he sent the dead bodies to the Civil Hospital Jind, for post mortem through ASI Ram Charan. The dead bodies were identified by their close relatives at the spot and their names were mentioned in the inquest reports.

3. Dr. Satish Gupta (PW 31) conducted post-mortem examination on the dead body of Surat Singh and he found the following injuries on his dead body :

i) There was a wound of entrance (1 cm. x 1 cm) in size with contused lacerated and inverted margins, present on the left side of nose 2.5 cm above the tip and 1 cm from the midline. The wound was directed backwards and clotted blood was present.

ii) There was a wound of Exit (3 cm x 1.5 cm) size with everted and lacerated margins 2 cms. below the external occipetal protumberance transversely placed more towards the left. Clotted blood was present and underlying bone was missing.

On dissection : There was communited fracture of the maxilla and left patrous temporal tone. There is linear fracture of the left lateral part of the frontal bone, left temporal bone and occipetal bone on left side. The brain tissue in middle cranial fossa and posterior cranial fossa on left side was lacerated and there was fracture of the occipital bone with a piece missing.

4. In the opinion of the doctor, death of Surat Singh was due to shock haemorrhage and injuries to the vital organs i.e. brain and these injuries were as a result of fire arms. The injuries were ante mortem and were sufficient to cause death in the ordinary course of life.

5. Dr. R. P. Taneja (PW 32) conducted post mortem examination on the dead body of Ramesh Chand and found the following injuries :

1. An oval shape wound (1 x 3/4 cm.) on the lateral surface of left thigh, 1 cm above the level of upper border of Patiala directing inverse.

On dissection the wound underlying muscles and blood vessels were found lacerated and bone fractured, clotted blood was present. Edges of wound were lacerated. Injury No. 1 was leading to injury No. 2.

2. A wound (3 cm x 1 1/2 cm) with inverted margins lacerated present on the posterior medial aspect of the left thigh 5 cm. above the knee joint oblique in direction.

3. A wound with inverted and acerated margins present on the medial surface of the right thigh. 5 cm. above the knee joint.

On dissection underlying muscles and blood vessels were found lacerated and clotted blood was present. This injury was leading to injury No. 4.

4. A wound with everted and lacerated margins (1 1/2 cm. x 1 cm) on the posterior surface of the right thigh 5 cm. above the knee joint. Clotted blood was present.

5. An oval shaped wound (1/2 cm. x 3/4 cm.) on the anterior lateral surface of left thigh. 5 1/2 cm. above, anterio superior to injury No. 1, On and directing inward. On dissection underlying mussles and blood vessels were lacerated and bone fractured. Clotted blood was present. Edges of the wounds were lacerated and inverted, and continued to injury No. 6.

6. A wound (3 cm. x 1 1/2 cm.) with everted margins and lacerated margins present on the posterio medial aspect of left thigh oblique in direction 5 cm. above the injury No. 2 clotted blood was present.

7. A wound with inverted and lacerated margins present on the medial surface of right thigh. 4 1/2 cm. above injury No. 3 On dissection underlying muscles and blood vessels were found lacerated. Clotted blood was present and this injury was leading to injury No. 8.

8. A wound with everted and lacerated margins (1 1/2 cm x 1 cm.) On the posterio lateral surface of right thigh. 5 1/2 cm. above injury No. 4. Clotted blood was present.

6. In the opinion of the doctor, the cause of death in this case was due to shock and haemorrhage and all the injuries were ante mortem in nature which were caused by fire arm.

7. Dr. R. K. Sethi (PW 34) conducted the post mortem examination on the dead body of Lehna Singh and he found the following injuries.

1. A lacerated wound (1.5 cm. x .75 cm.) on the left lateral side of the neck of the level of lobule of left pinna. The margins of the wound were inverted and goes upward medially and anteriorly. Thus, opening to injury No. 2. There were multiple fractures of skull and blood clots were present in the wound.

2. A lacerated wound (1 1/2 x 1 1/2 cm.) in the right occipital parietal region of the skull. This was 4 cm. above the right pinna. The margins of the wound were everted. This wound was in continuation of injury No. 1 Blood and blood clots were present in the wound. There were multiple fractures of skull bone.

3. A lacerated wound (1 cm. x 1 cm.) on the lateral side of left buttock 4 cm. posterio inferior to left anteri superior spine of flaci crest. The margins of the wound were inverted and wound goes posteriorly and laterly and opens to injury No. 4.

4. A lacerated wound (1 1/2 cm. x 1 cm.) on the postereor aspect of left buttock. This was in continuation of injury No. 3 and 10 cm. from the above mentioned injury. The margins were everted. Blood and blood clots were present. This was wound of exist.

5. A lacerated wound (1 1/4 x 3/4 cm.) situated between the tips of 10th and 11th ribs along with left subscostal margin of chest, thus leading to fracture of both the ribs. The margins were inverted. Blood clots were present. The wound goes posteriorly and medially towards right chest. There was laceration of left lung (wound of entrance) and right lung. Fracture of 7th and 8th right ribs near the posterior angle was also seen. The distal end of the wound was on the right side of chest on back, just below the inferior angle of right scapula. From this site was recovered a piece of bullet.

6. A lacerated wound (1 1/2 cm. x 1/2 cm. x 12 cm.) deep in the mid-line on the back at the level of L-4 of vertebral column. The wound goes left laterally and anteriorly. A piece of bullet was recovered from the back on the left side at the level of iliaic crest. Margins of the wound were inverted and blood clots were present in the wound.

7. A lacerated wound (1 cm. x 1 cm.) on the posterior aspect of posterior fold of left axilla. The margins were everted. The wound goes downward and posteriorly opening to injury No. 8. The margins of the wound were inverted (wound of entry). Blood clots were present, in the wound.

8. A lacerated wound (1 1/2 cm. x 1 cm.) on the lateral border of left scapula 6 cm. above inferor angle of left scapula. The margins were everted (wound of exist) and blood clots were present.

9. A lacerated wound (1/2 cm. x 1/2 cm. x 7 cm.) on posterio lateral aspect of left forearm in the middle. The margins were inverted and blood clots were present in it. (This was wound of entrance.)

10. A lacerated wound (1 cm. x 1/2 cm. x 2 cm.) deep on the fronto lateral aspect left fore-arm in the middle. The margins were everted (wound of exit).

11. A lacerated wound (1 cm. x 1/2 cm.) on the anterior medial aspect of left knee joint. The margins were inverted and blood clots were present. The wound goes posteriorly and laterally thus causing fracture of lower end of femur (wound of entry).

12. A lacerated wound (1 cm. x 1/2 cm.), on the lateral aspect of knee joint. The margins were everted. This was in continuation of injury No. 11

8. In the opinion of the doctor, the cause of death in this case was shock and haemorrhage due to fire arm injury and all the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of life.

9. The post mortem of Des Raj was conducted by Dr. K. Chandra vide post-mortem report exhibit PW 44/D, PW 34, Dr. R. K. Sethi has proved this report and in his statement, has stated that Dr. K. Chandra died during his posting at Jind.

10. PW 44 directed other Police Officials to take all the injured namely, Nanhi, Kelo, Sarti, Nahar Singh, Inder Singh, Biro, Prem Singh, Ram Mehar, Inder son of Ratia, Banwari, Shanti, Sarjo and Chameli to get them medico-legally examined from the Civil Hospital. He also conducted house search of accused Nirmal Singh and from his father Rulia Ram, recovered one letter Exhibit PW 44/Q addressed by Nirmal Singh to his father and sent by post. On return to the Police Station PW 44 deposited all the sealed parcels with MHC Ram Niwas. He had recorded the statements of all concerned.

11. On 16th Sept., 1980, PW 44 got warrant of arrest of accused Nirmal Singh and he along with Sh. Surat Singh then DSP reached Jammu on 18th Sept., 1980. He and Sh. Surat Singh DSP went to the Unit of accused Nirmal Singh i.e. Three Sikh L-I near Chhamb Jaurian. They were informed by the Army Officer in writing vide Exhibits PW 28/C, PW 28/B and PW 28/A that Nirmal Singh had not rejoined after available leave from 15th September 1980 uptil 17th September 1980. P.W. 44 requested the Army Officer to restore to them the sten-gun vehicle was earlier issued to accused Nirmal Singh but they refused to give the sten gun. However, they agreed to the extent that live cartridges of 9 mm may be got fired from the sten gun of the accused and pellets and empties thereof may be collected for analysis and comparison from F.S.L. (H) Madhuban with the empties collected from the spot and leads removed from the dead bodies of the victims. F.S.L. authorities, however, wrote to Safidon police that the fired cartridges and leads could not be tested because the fires had been done in sand and that weapon concerned was also required for final test and analysis report. PW 44, DSP Surat Singh and Dr. Chug of FSL Madhuban again approached the Army authorities who gave 8 sten guns after pasting chits on the numbers of the sten guns in order to conceal their identity to Dr. Chug of FSL (H) Madhuban. All the eight sten guns were tested by test fires and after comparing those with the empties and leads recovered from the site of occurrence, Dr. Chug identified one sten gun with which, according to him, crime cartridges and leads were fired. The chit on the number of that sten gun was removed and it was found that the number of that sten gun was JJ-7587 and as per the report of the Army authorities, the said sten gun was issued to accused Nirmal Singh.

12. After completion of the investigation, challan against appellant Nirmal Singh, his brother Vijay Singh and their father Rulia Ram was prepared on 23rd March, 1982. The challan was, however, filed in the court on 31st March, 1984. By that time accused Rulia Ram had already expired.

13. As per the case of the prosecution, in the occurrence, No. 1 which has been shown at point ‘A’ in the scaled site plan Exhibit PW 27/A and happened at the flour mill of Gaje Singh where Surat Singh was shot dead, four empties and one lead were recovered. In the occurrence No. 2 which has been shown at Point ‘B’ in Exhibit PW 27/A, where Des Raj was shot dead and Inder son of Piare Lal and Kelo (PW. 5) were injured, 9 empties were recovered from the spot of occurrence. The occurrence besides the said injured was also witnessed by PW 3 Dalbir and PW 20 Suraj Mal. In the third occurrence which has been shown at Point ‘C’ in Exhibit PW 27/A and happened at the house of Banwari and the house of Lachhman, five persons, namely Banwari, Saroj, PW 13, Shanti, PW 14 Nanhi and PW 15 Prem were injured. Besides these injured, this occurrence was witnessed also by PW 19 Kitaba and PW 21 Dheer Singh. Six empties were recovered from the spot. In the occurrence No. 4 which has been shown at Point ‘D’ in Exhibit 27/A and which happened at the house of Nahar Singh son of Lehna Singh, two persons namely PW 6 Nahar Singh and PW 7 Surti were injured. This occurrence besides the injured was also witnessed by PW 8 Zile Singh, and PW 9 Chhattar Singh. Five empties and three leads of cartridges were recovered from the spot. Occurrence No. 5 which has been shown at Point ‘E’ in Exhibit PW 27/A and which happened at the house of Jage Ram, two persons, namely PW 10 Biro, W/o Jage Ram and PW 11 Chameli were injured. Besides these injured, this occurrence was also witnessed by PW 9 Chattar Singh PW 12 Inder brother of Jage Ram. Four empties were recovered from the spot. In the occurrence No. 6 which has been shown at point ‘F’ in Exhibit PW 27/A and which happened at the Baithak of Jai Lal, Lehna Singh and Ramesh were shot dead and two persons namely PW 16 Ram Mehar and PW 17 Inder son of Ratia were injured. Besides the injured, this occurrence was also witnessed by PW 18 Prakash. 21 empties and 5 leads of cartridges were recovered, and three documents letter of Insurance Company (Exhibit PW 44/K) Advance Pay Book (Exhibit PW 44/L) and one Arms Licence of Nirmal Singh (Exhibit PW 44/M) were also recovered from the spot.

14. As stated earlier, the warrants issued against Nirmal Singh could not be executed as he has not rejoined duties after availing of the leave upto 17th September 1980. On 1st October 1980, application for issuance of proclamation against Nirmal Singh was filed and proclamation was obtained from the Court on that day itself. On 15th November 1980, accused Nirmal Singh was declared the proclaimed offender. Thereafter accused Vijay Singh was also declared a proclaimed offender. As stated earlier, challan dated 23rd March, 1982 was filed on 31st March, 1984 and on that day accused Nirmal Singh and accused Vijay Singh were proclaimed offenders and accused Rulia Ram had already died. In these circumstances, the case was fixed before, the Ilaqa Magistrate for 23rd April, 1984 for recording the evidence under Section 299, Cr. P.C. On 23rd April, 1984, the Ilaqa Magistrate passed the order that he could not record the evidence under Section 299, Cr. P.C. As this could be done only by the competent court, i.e. the Court of Session. Accordingly, he sent the file to the learned Sessions Judge. However, the learned Sessions Judge by his order dated 14th August, 1984. Sent the case back to the learned S.D.J.M. as evidence under Section 299, Cr. P.C. could be recorded by the committing Magistrate. Thereafter on 22nd August, 1984, the learned S.D.J.M. passed the order for summoning the prosecution witnesses. During the period from August 1984 to 4th Nov., 1986, PW 48 Shri R. K. Bishnoi, then S.D.J.M. Safidon recorded the statements of 27 witnesses in the proceedings under Section 299, Cr. P.C. During the period from Nov., 1986 to May 1988, PW 49 Shri Rajinder Parshad, then S.D.J.M. Safidon, recorded the statements of Sh. Surat Singh, DSP Gopi Ram retired S.I. Dr. Ramesh Sehgal, Sh. V. P. Nagpal, Sh. Parhlad Singh S.D.M. Sh. Ram Singh, ASI, Constable Puran Singh and HC Ram Niwas, Subhash Chand, Draftsman, Sh. Ravi Mohan Bhatnagar, Sh. Ved Parkash, Sh. Chattar Singh, Dr. Satish Gupta in the proceedings under Section 299, Cr.P.C.

15. Accused Nirmal Singh remained absconder for a long time. Ultimately he was arrested on 11th Sept., 1994 by the police from New Delhi and after his arrest, the police presented supplementary challan against him in the court of S.D.J.M. Safidon who committed the case for trial to the Court of Sessions Judge, Jind. Accused Nirmal Singh was charged for the offence under Sections 302 and 307, I.P.C. and under Sections 25/27 of the Arms Act vide order dated 19th Nov., 1994 passed by the learned Sessions Judge, Jind.

16. In the proceedings under Section 299, Cr.P.C. the prosecution had examined as many as 27 eye witnesses. Out of these 27 eye witnesses, Chhotu, Johri Singh, Jage Ram son of Jai Lal, Jai Lal son of Shish Ram and Piare Lal son of Mattu had died when the charge was framed against the appellant by the learned Sessions Judge, Jind. The statement of Chhotu recorded under Section 299, Cr.P.C. is Exhibit PW 48/A of Johri is Exhibit PW 48/B, of Jage Ram is Exhibit PW 48/C, of Jai Lal is Exhibit PW 48/D; and of Piare Lal is Exhibit PW 48/E. The remaining 22 eye witnesses, PW 1 to PW 22 including 11 injured witnesses, who had earlier supported the case of the prosecution in the proceedings under Section 299, Cr.P.C. were declared hostile as they did not support the case of the prosecution before the learned Sessions Judge. Similarly, PW 23 Ram Saran then Sarpanch who was the witness with regard to the recovery and has supported the case of the prosecution in the proceedings under Section 299, Cr.P.C. did not support the case of the prosecution before the learned Sessions Judge, PW 25 Pratap Narain, Ticket Examiner proved the railway journey of Rulia Ram and his wife Krishna from Panipat to Jammu on 13th Sept., 1980. PW 27 Subhash Chander draftsman proved the scaled site plan, Exhibit PW 27/A, PW 28 retired Lt. Col. R. S. Vishwan proved that accused Nirmal Singh who was working as IInd Leutenant in his Unit was on leave from 15th Sept., 1980, to 17th Sept., 1980, with permission to prefix holidays but thereafter he did not rejoin his duties and had deserted the Army. PW 30 UGC Fluran Singh proved the delivery of special report to the Ilaqa Magistrate. PW 33 Dharam Pal, Records Officer, Medical College, Rohatak, proved the MLRs of the injured. PW 36 Ved Parkash Photographer, proved the photographs taken on the spot. PW 38 Inspector Chhattar Singh had partly investigated the case. PW 39, ASI Ram Chand had recorded the statements of the injured at Medical College, Rohtak. PW 40 Ram Niwas MHC proved the deposit of the case property and also proved the delivery of the case property to Constable Sat Narain for deposit at FSL Madhuban. PW 41 Krishan Kumar had filed the challan. PW 42 S.I. Hira Lal had arrested the appellant on 11th Sept., 1994 from 110, Kailash Hill, New Delhi, PW 43 HC Sat Narain had carried the case property to FSL Madhuban. PW 44 Ram Singh is the Investigating Officer.

17. In his statement recorded under Section 313, Cr.P.C. the appellant pleaded innocence. He, admitted that he did not rejoin the duty after availing the leave from 15th Sept., 1980, to 17th Sept., 1980. In reply to question 50, the appellant answered as under :

“My father was Lamberdar in the village. He remained as Sarpanch of the village for two terms. He was a political leader and used to decide the case of group of 12 villages, which is called ‘BAARA’. He was having a lot of respect in the area of Safidon. However, S. I. Singh then SHO P. S. Safidon was against my father and he insulted my father in Panchayat to lower his image with a view to oblige his political masters. I had approached first S.P. Shri Raj Singh and complained against the conduct of S.I. Ram Singh. Shri Raj Singh S.P. talked to S.I. Ram Singh, on phone in my presence and asked me to contact Ram Singh in P. S. Safidon. The S.P. had given me sufficient hearing. Thereafter I went to S.I. Ram Singh but he felt offended due to my meeting with S.P. Shri Raj Singh and threatened me that my entire family will be eliminated if I continued making complaints against him. S.I. Ram Singh had also told me that he was politically connected and S.P. can do no harm to him. When I brought this matter to the notice of my father, he told me that Ram Singh was really well connected with political bosses and that I should talk to my Senior Officers for my safety and for the allotment of accommodation so that I may keep my parents with me. He also advised me to meet the Chief Minister of Haryana and complain against S.I. Ram Singh, When I talked to my Senior Officers in this respect, they totally refused to allot me accommodation saying that it was against service rules because I was a bachelor. My Commanding Officer also declined to meet the Chief Minister and told me that it was very risky and can involve Court martial proceedings. However, the Commanding Officer had written letters to the I.G. and D.I.G. of Haryana Police against the S.I. Ram Singh. I had written to my brother Vijay Singh to keep cool and avoid any confrontation with S.I. Ram Singh.

I know that my father Shri Rulia Ram has died because I has read the same in the news papers whereas I do not know about the whereabouts of my brother Vijay Singh. I also do not know anything about Dani and Abhey Ram and Gaje Singh or their relations with my family.

On 14-9-1980 stayed with my parents at Katra and on 15-9-1980 I along with my parents went to Mata Vaishnav Devi on pilgrimage and returned on 16-9-1980 and thereafter on 16-9-1980 itself I came to know about the occurrence in the present case and my false implication. Then my father advised me not to bother about the service and save my life. It was under these circumstances I did not rejoin my duties.”

18. Relying mainly on the evidence of Chhotu, Johri Singh, Jage Ram, Piare Lal and Jai Lal which was recorded in the proceedings under Section 299, Cr.P.C. and the medical evidence and the report of Dr. Chug of FSL(H) Madhuban the learned Sessions Judge convicted and sentenced the appellant as stated earlier.

19. Mr. Cheema, learned Senior Counsel appearing on behalf of the appellant, submitted that before recording the evidence under Section 299, Cr.P.C. the Court has to satisfy itself that an accused person has absconded and there is no immediate prospect of arresting him. He, however submitted that in this case no finding was recorded by the Court which examined the witnesses under Section 299, Cr.P.C. to the effect that appellant Nirmal Singh had absconded and there was no immediate prospect of his arrest. He submitted that the possibility of procuring the presence of the appellant was not even considered by the Ilaqa Magistrate before declaring him a proclaimed offender.

20. He further submitted that in the proceedings recorded under Section 299, Cr.P.C. there was total non-application of mind. He submitted that after filing of the challan, the case was fixed for 23rd April, 1984 for recording the statements of the witnesses under Section 299, Cr.P.C. Before the S.D.J.M. Safidon but without application of mind, the learned Magistrate passed the order that the file be sent to the Court of learned District and Sessions Judge, Jind as the case under Section 302/307, IPC was exclusively triable by the Court of Session. He further submitted that on 29th May, 1984, the case was fixed before the Sessions Judge, who adjourned the case to 22nd August, 1984 for recording the prosecution evidence under Section 299, Cr.P.C. without recording any finding to the effect that the accused had absconded and there was no immediate prospect of their arrest. He further submitted that even before 22nd August, 1984, the learned Sessions Judge transferred back the case to the Court of S.D.J.M. Safidon. He submitted that a direction for sending the case to the Magisterial Court could be given only under Section 299(2), Cr.P.C. but the facts of the present case were not covered under Sub-section (2) of Section 299, Cr.P.C.

21. He submitted that the appellant was declared a proclaimed offender in the earlier proceedings in the year 1980 and those proceedings were not sufficient for the purpose of subsequent proceedings under Section 299, Cr.P.C.

22. He further submitted that the depositions of the witnesses recorded under Section 299, Cr.P.C. after the arrest of appellant Nirmal Singh could be relied upon only if the Court came to the conclusion that the deponents who deposed under Section 299, Cr. P.C. were dead. He, however, submitted that in the present case, the finding regarding the death of PW 2 Chhotu, PW 12 Jai Lal, PW 15 Piare Lal, PW 10 Zohri Singh and PW 11 Jage Rame, was not recorded by the learned trial Court though the conviction of the appellant is based on the depositions of these witnesses only. He submitted that even the trial Court in the impugned judgment has observed that these witnesses are reported to be dead. He submitted that neither the death certificates of the aforesaid five witnesses were produced in the Court nor even the date of death of those witnesses was proved.

23. The learned counsel contended that the conditions precedent for the proceedings under Section 299, Cr.P.C. have not been complied with and as such, the trial was vitiated. In support of the submissions, he placed reliance on the following judgments :

(1) Ghurbin Bind v. Queen-Empress, (1884) ILR 10 Cal 1097.

(2) Sheoraj Singh v. Emperor, AIR 1926 All 340 : (1926 (27) Cri LJ 874).

(3) Daya Ram v. Emperor, AIR 1926 Lahore 83 : (1926 (27) Cri LJ 247).

(4) Emperor v. Labbai Kutti, AIR 1930 Mad 190 : (1939 (40) Cri LJ 437).

(5) Manbodh v. Emperor, AIR 1944 Nag 274.

(6) State of Mysore v. Sanjeeva, AIR 1956 Mys 1 : (1956 Cri LJ 77).

24. The learned counsel submitted that the learned trial Court has misread the evidence while recording the finding of conviction against the appellant. He submitted that the learned Sessions Judge at page 33 of his judgment has observed that as per record, accused Rulia Ram died before the challan could be presented in the Court but in fact there is nothing on the record of the file which could show that Rulia Ram had in fact died before the filing of the challan. Similarly, at page 34 of the judgment, it has been observed that criminal proceedings under Sections 107/151, Cr.P.C. took place between Rulia Ram and Gaje Singh, and the case was pending before the S.D.M. Safidon, but no evidence with regard to this fact is on the record. He further stated that at page 37 of the judgment of the learned Sessions Judge, the distance between the place of occurrence and the Police Station has been shown as 7 Kms. whereas as per the statement of the Investigating Officer, the distance is 7 miles. He further submitted that at page 27 of the judgment, it has been observed that Zohri has corroborated the version as given by Chhotu that accused Nirmal Singh had killed Des Raj but as per the case of the prosecution itself, Des Raj was shot at in the second occurrence whereas Zohri had not seen the second occurrence and as per the case of the prosecution he had witnessed occurrence No. 1. He further submitted that at page 29 of the judgment, the learned trial Court has observed that since all these witnesses are reported to have died, evidently in view of Section 299, Cr.P.C., the depositions of these five prosecution witnesses have to be believed by this Court. He submitted that this observation is perverse, as there is no positive finding with regard to the death of these witnesses. He submitted that similarly the observation of the learned trial Court at page 33 that in view of the father of the accused having reached jammu, the conspiracy to commit serious crime was hatched, is perverse as simple visit of the father of the accused need not be a conspiracy. He submitted that at page 36 the finding of the learned trial Court that “it appears that accused Nirmal Singh had managed to deposit the sten-gun after the commission of the crime in his Unit through some source” is not a positive finding and is based on conjectures.

25. The learned counsel further submitted that the conviction with regard to occurrence Nos. 1 and 2 is based on the evidence of Chhotu which was recorded in the proceedings under Section 299, Cr.P.C. He, however, submitted that the evidence of Chhotu is not reliable at all and does not inspire confidence. He submitted that the first occurrence happened at 7.45 p.m. on 15th September, 1980 and second occurrence at 7.50 p.m. on the same day. Chhotu is alleged to have lodged the report at the Police Station at 8.20 p.m. and has narrated the facts of the first and second occurrence. He submitted that as per the statement of the I.O. the distance between the place of occurrence and the Police Station is 7 miles and it was impossible for Chhotu to reach the Police Station on foot within 30 minutes as Chhotu, in his statement, has admitted that he went to the Police Station on foot. He further submitted that the closest place for lodging the FIR was Police Post Pillu Khera which was at a distance to 6 kms. from the place of occurrence whereas Safidon Police Station is at a distance of 11 Kms. from the place of occurrence. He submitted that in such a case of magnitude where four persons were shot dead and many persons were injured, FIR should have been recorded in the village itself and in view of these facts, it becomes doubtful as to whether Chhotu had gone to P. S. Safidon to lodge the report at 8.20 p.m. He also submitted that in the second occurrence where Des Raj was shot dead, Inder and Kelo had been injured but Chhotu did not mention about the injuries caused to Inder and Kelo while lodging the FIR. This shows that Chhotu in fact had not seen the occurrence.

26. The learned counsel further submitted that there is unexplained delay in delivering the special report at the place of the Ilaqa Magistrate. He submitted that as per the statement of PW 44 (I.O.), he reached the place of occurrence at 8.55 p.m. on 15th September, 1980 but the special report was delivered at the place of the Ilaqa Magistrate at 3.05 a.m. on 16th September, 1980.

27. He further submitted that the FIR recorded at the instance of Chhotu was very sketchy with blanket statement that firing was going on. He submitted that in the FIR there is a mention of two strangers who were with the appellant but no investigation was conducted to apprehend those two strangers. He submitted that if firing was going on, Chhotu would not have ventured to come out at that time but on the contrary, he would have gone back to the room. He, therefore, contended that Chhotu has been projected as an eye-witness by the prosecution and even the rough site plan Exhibit PW 44/I prepared by the I.O. shows that Chhotu was not the eye-witness as his presence was not mentioned in the said site plan.

28. The learned counsel further submitted that besides Chhotu, PW 1 Manphool Singh and PW 2 Gaje Singh were the eye-witnesses of the first occurrence but both these witnesses have not supported the case of the prosecution. PW 1 Manphool Singh even stated that Chhotu was not present at the time of the first occurrence. He, therefore, contended that if the evidence of Chhotu is excluded, no case is made out against the appellant with regard to the first and second occurrence. In support of his contention the learned counsel placed reliance on a judgment of the Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000).

29. With regard to 6th occurrence, where Ramesh and Lehna Singh were shot dead, the learned counsel submitted that as per the case of the prosecution this occurrence was witnessed by PW 16. Ram Mehr, PW 17 Inder son of Ratia Singh (both were injured), PW 18 Parkash and Jai Lal and Piare Lal whose statements were recorded as Exhibits PW 48/D and PW 48/E in the proceedings under Section 299, Cr.P.C. He submitted that PW 16, PW 17 and PW 18 have not supported the case of the prosecution and both Jai Lal and Piare Lal who were more than 80 years’ old at the relevant time could not have seen the occurrence in the absence of the light. He submitted that both these witnesses did not mention any source of light. He further submitted that the statement of these two witnesses are full of contradictions. He submitted that Jai Lal stated that 3/4 shots were fired at them but Piare Lal did not say so. Again Jai Lal stated that the firing was through the window but Piare Lal did not say so. He, therefore, contended that the statements of Jai Lal and Piare Lal could not be relied upon for conviction of the appellant.

30. With regard to 5th occurrence, the learned counsel submitted that Jage Ram’s own wife Biro and his daughter Chameli were injured in that occurrence but they have not supported the prosecution case. Even the alleged non-injured eye-witnesses PW 12 Inder who is the brother of Jai Lal and PW 29 Chatan have not supported the prosecution case. He, therefore, contended that the appellant could not be convicted with regard to the 5th occurrence. With regard to 4th occurrence, the learned counsel submitted that no prosecution witness has been examined in support of this occurrence.

31. With regard to 3rd occurrence, the learned counsel submitted that as per the case of the prosecution, this occurrence was witnessed by PW 13 Shanti, PW 14 Nanhi, PW 15 Prem and Zohri, whose statement Exhibit PW 48/B was recorded in the proceedings under Section 299, Cr.P.C. Besides these witnesses, this occurrence was witnessed also by non-injured persons, namely PW 19 Kitaba and PW 21 Dheer Singh. He, however, submitted that all the three injured persons PW 13, PW 14 and PW 15, as well as the two non-injured persons. PW 19 and PW 21 have not supported the case of the prosecution. He, therefore, contended that in view of these facts the statement of Zohri which was recorded in proceedings under Section 299, Cr.P.C. could not outweigh the above mentioned statements of five witnesses.

32. With regard to the documents, namely letter of LIC, Exhibit PW 44/K, Advance Pay Book Exhibit PW 44/L and licence Exhibit PW 44/M, which are alleged to have been recovered from the Baithak where Ramesh and Lehna Singh were shot dead, the learned counsel submitted that as per the case of the prosecution, the appellant had not entered the Baithak and had fired the shots from the window outside the Baithak. He, therefore, contended that the recovery of these documents from the Baithak could not be believed. He further submitted that there is no mention of these recoveries even in the site plan, Exhibit PW 27/A and the two eye-witnesses PW 22 Duni Chand and PW 23 Ram Saran have also not supported the case of the prosecution with regard to the recovery of these documents. He therefore submitted that in fact these documents were recovered from the house of the appellant.

33. The learned counsel further submitted that it was correct that sten gun No. JJ-7587 was issued to the appellant as per Exhibit PWW 44/U. He, however, submitted that this stengun was deposited with the authority concerned when the appellant proceeded on leave on 13-9-1980. In this connection, he referred to the cross-examination of PW 28, Sh. R. S. Vishwen, who admitted that every army officer/official before leaving on leave has to surrender the official arms and ammunitions issued to him. He, therefore, contended that the said weapon was not with the appellant after 13-9-1980. In this connection, he also referred to page 36 of the judgment of the trial Court and submitted that even the learned trial Judge had observed that “it appears that accused Nirmal Singh had managed to deposit the stengun after the commission of the crime in his Unit through some source.”

34. The learned counsel further submitted that the report of Dr. Chug Ballistic expert of F.S.L. was very vague and indefinitive. He submitted that under the heading “Laboratory examination”, the report says that the “fire mechanism of the stengun WI was found in working order. The fire pin of the gun WI appears to have been tampered with.” He submitted that unless the fire pin mark tallied, it cannot be said that the firing has been done from a particular weapon. He further submitted that under the above mentioned heading, it has also been observed that “this physical evidence indicated the possibility of changing the barrel of the stengun W-I.” He further submitted that the fired bullets cannot be said to be touching the ejector. The learned counsel also submitted that the opinion of Dr. Chug could not be relied upon because Dr. Chug was not made available for cross-examination by the appellant. The learned counsel further submitted that no opinion was obtained about the fired cartridges and the report was silent regarding inter se comparison of cartridges of envelope No. 1 and of the parcel. In support of his submission, the learned counsel placed reliance on the opinion of the following authors :

(1) J. Howard Mathew Volume I, 1973 Print Part I, Chapter III, at page 23, at page 39;

(2) Forensic Science and Criminal Trial by B. R. Sharma, 3rd Edition, 1990 page 243-244;

(3) Hicher’s Fire-Arm Identification, 1995 Edition, Page 396, Item No. 4.

35. The learned counsel further submitted that the prosecution has relied on three motives for committing the offence by the appellant. The first alleged motive is that the uncle of the father of the appellant, namely, Amar Singh was issueless and his wife Dami inherited the land after the death of Amar Singh and the father of the appellant wanted to kill said Dami in order to grab her land but Dami had started living with Gaje Singh. He submitted that the aforesaid facts have been completely denied by the appellant in his statement under Section 313, Cr.P.C. wherein he clearly stated that his grandfather had no brother. The second motive alleged for the commission of the offence is that security proceedings between Rulia Ram (father of the appellant) and Gaje Singh were pending. The learned counsel, however, submitted that no copy of any Kalendra has been produced by the prosecution. The third motive which has been shown for committing the offence is that the appellant had taken possession of the house of Ram Kishan and Deep Chand and deceased Lehna Singh was a witness. The learned counsel, however, submitted that no documentary evidence has been brought on record to prove this motive and even no question with regard to this motive was put to the appellant while recording his statement under S. 313, Cr.P.C. He, therefore, contended that the prosecution has failed to prove any motive for committing the offence by the appellant.

36. The learned counsel further submitted that investigation has not been conducted properly in the present case. The prosecution has failed to collect any evidence with regard to the fast transport which could have enabled the appellant to reach back in his Unit at Akhnoor 16-9-1980. He also submitted that it was not probable for one man to fire at six places within a short interval.

37. Lastly, the learned counsel submitted that it was not the rarest of rare cases where death sentence ought to have been awarded by the learned trial Court. He submitted that the conviction of the appellant is based only on the evidence which was recorded in the proceedings under Section 299, Cr.P.C. but all the eye-witnesses (both injured and non-injured) have not supported the case of the prosecution. He submitted that though the scale of crime goes against the appellant but all other circumstances are against awarding death punishment. He submitted that there was no charge of conspiracy and the evidence does not show that the murders were planned by the appellant. He submitted that the appellant has got good academic record. He has already lost his career. His letter, Exhibit PW 44/Q which was addressed by him to his father also shows that the appellant was of cool temperament. At the relevant time, he was a young man of 23 years. As regards the absconding from duty, the learned counsel submitted that after this occurrence, his father was murdered and his brother died in mysterious circumstances. He further submitted that during the period of abscondance, the appellant has already married and is having two children. He submitted that during the trial, the appellant was granted interim bail from 01-12-1995 to 7-12-1995 and again from 22-1-96 to 31-1-1996 and on both occasions after the expiry of the period of interim bail, the appellant surrendered and this shows good conduct of the appellant. He submitted that the evidence on record clearly shows that peace had returned to the village. All the alleged eye-witnesses who are alive and are residing in the village have not supported the case of the prosecution. The appellant was having no enmity with deceased Surat Singh and Ramesh. As regards the murder of Lehna Singh, his sons PW 6 Nahar Singh and PW 8 Zile Singh and his wife PW 7 Sarti, have not supported the case of the prosecution. As regards the murder of Des Raj, he submitted that his close relative PW 13 Shanti, PW 14 Nahni and PW 21 Dheer Singh have not supported the prosecution. He, therefore, contended that keeping in view these facts the appellant ought not have been awarded the extreme punishment of death sentence.

38. Mr. Varinder Singh, learned Deputy Advocate General submitted that in the present case, murders were committed on 15-3-1980 and the appellant immediately thereafter absconded and it was only on 11-9-1994 that he was arrested by S.I. Hira Lal from New Delhi. He submitted that absconding was one of the determining factor for conviction under Section 8 of the Indian Evidence Act.

39. The learned Deputy Advocate General further submitted that sending of the case by the Magistrate to the Sessions Court at the initial stage and again sending the case by the Sessions Court to the Court of the Magistrate was a mere irregularity and the same could not vitiate the trial. He submitted that it is not disputed that SDJM Safidon who recorded the evidence in the proceedings under Section 299, Cr.P.C. was competent to do so. The learned counsel for the State further submitted that from the records it was clear that proclamation under Section 82, Cr. P.C. was ordered by the S.D.J.M. Safidon vide his order dated 1st October, 1980. The records further show that the SDJM Safidon had recorded the statement of SHO Safidon on 1-10-1980 before passing the order with regard to the issue of proclamation. The records further indicate that SDJM Safidon passed order, dated 15-5-1982 for attachment of the land of the appellant Nirmal Singh and the Tehsildar Safidon was appointed as the Receiver to sell the land. He submitted that when the proceedings under Section 299, Cr.P.C. commenced, the findings of the appellant having absconded were already before the Court.

40. As regards the duty of the prosecution to prove the fact that five witnesses whose statements were recorded in the proceedings under Section 299, Cr.P.C. were dead, the learned Deputy Advocate General submitted that PW 1 Manphool Singh, in his statement before the learned trial Court, had clearly stated that Chhotu had already died. With regard to death of Zhori Singh, Jage Ram, Jai Lal and Piare Lal, the counsel drew our attention to various copies of summons on record (file No. 109/96) and submitted that as reports on these summonses, these persons were dead on the date the summons were issued to them to appear in the Court. In support of his submissions, the learned counsel placed reliance on a judgment of the Patna High Court in Emperor v. Lalji Rai, AIR 1936 Pat 11 : (1935 (36) Cri LJ 235) and a Division Bench judgment of the Allahabad High Court in Tahsildar Singh v. State, 1958 Cri LJ 324 : (AIR 1958 All 214).

41. The learned counsel further submitted that there was no delay either in lodging the FIR or in delivering the special report at the place of the Ilaqa Magistrate. He submitted that the occurrence happened at 7/7.30 p.m. and the FIR was lodged at P. S. Safidon which is at a distance of 7 miles from the place of occurrence at 8.20 p.m. He submitted that the special report reached the Ilaqa Magistrate at 3.19 a.m. on the next day i.e. within 8 hours of the time of occurrence. As regards the contention of the learned counsel for the appellant, that complainant Chhotu could not reach P. S. Safidon within 20 minutes of the occurrence, the learned counsel submitted that a reasonable margin of 30/45 minutes should be given as complainant Chhotu was a simple villager.

42. As regards the presence of Chhotu at the place of occurrence, the learned counsel submitted that the presence of Chhotu has not even been denied by PW 20 Suraj Mal who otherwise has not supported the prosecution. He stated that PW 20 in his examination in chief had stated that “Chhotu son of Indraj had also come from his house while raising hue and cry about the firing and warning not to go towards Surat Singh’s Chakki.” He submitted that even non-mentioning the names of injured by Chhotu in his statement before the Police was natural as after watching the occurrence just in a short while he had run to the Police Station.

43. With regard to the action of the Police not apprehending the two strangers who were with the appellant at the time of firing, the learned counsel submitted that as per evidence on record, those two strangers were not armed with any weapon and it was only the appellant who had fired the shots from his stengun.

44. The learned Deputy Advocate General submitted that it was true that the stamped witnesses had not supported the case of the prosecution. He, however submitted that the statements of these witnesses recorded in proceedings under Section 299, Cr.P.C. could not be discarded altogether. He submitted that PW 16 Ram Mehar who was injured witness, in his statement before the learned trial Court admitted that he had appeared as a witness before the Judicial Magistrate Safidon on 14-12-1985 and had made a statement Exhibit PW 16/B (which was recorded in the proceedings under Section 299, Cr.P.C.). He admitted his signatures also in that statement. He, however, stated that the statement Exhibit PW 16/B was not the statement which he had given before the Magistrate. He, therefore, contended that it could not be believed that the learned Magistrate had not recorded the statement Exhibit PW 16/B correctly. He submitted that the same is the position of PW 17 Inder and PW 9 Chattar Singh. He submitted that in the same manner, PW 22 Duni Chand and PW 23 Ram Saran, who were the witnesses with regard to the recovery have stated before the learned trial Court that the earlier statements which they had given before the learned Magistrate in the proceedings under Section 299, Cr.P.C. were made by them under the pressure of the Police, which again was not probable. The learned counsel submitted that the statement before the Committing Magistrate is binding. In support of this submission, he placed reliance on a judgment in Ananta Mahanto v. State of Orissa, 1979 Cri LJ 1091 : (AIR 1979 SC 1431). The learned counsel further submitted that the documents Exhibits PW 14/K, PW 14/L and PW 44/M which have been recovered from the place of occurrence admittedly belong to the appellant. He submitted that the recovery of these documents from the place of occurrence has been duly proved by PW 44 Ram Singh, I.O. and the recovery memo in respect of these documents was duly attested by PW Duli Chand and PW Ram Saran. The learned counsel draw our attention to the report of F.S.L. (Haryana) Madhuban, Exhibit P.A.C. and Submitted that as per this report, it has been clearly proved that the cartridges cases Exhibits C 1 to C 49 had been fired from stengun No. JJ-7587 which was issued to the appellant before he proceeded on leave on 13-9-1980, for change in the sentence. In support of the submission, the learned counsel placed reliance on two judgments of the Supreme Court in Dalip Singh v. State of Punjab, 1979 SCC (Cri) 968 : (1979 Cri LJ 700) and Umashankar Panda v. State of Madhya Pradesh, (1996) 2 JT (SC) 747 : (1996 Cri LJ 1988).

45. In rejoinder arguments, Mr. Cheema, learned counsel of the appellant, submitted that by admitting the tendering of F.S.L. report in the Court, the appellant did not concede his right to cross-examine Dr. Chug who was the author of this report. He submitted that even now this Court could summon Dr. Chug under Section 367, Cr.P.C. He further submitted that while awarding the sentence, it will be relevant to note that after the occurrence, the father of the appellant was murdered and his elder brother was not traceable till today.

46. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. Before dealing with the submissions made by the learned counsel for the parties with regard to Section 299, Cr.P.C. it will be relevant to reproduce Section 299, Cr.P.C. which reads as under :

“299. Record of evidence in absence of accused. – (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial. Such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or 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 of the case, would be unreasonable.

(2) If it appear that on offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence and any depositions so taken be given in evidence concerning the person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.”

47. From this section, it is evident that in case, it is proved that an accused person has absconded and that there is no immediate prospector arresting him, the Court competent to try (or commit for trial) such person for the offence complained of against him may in his absence examine the witnesses produced on behalf of the prosecution and record their deposition and any such deposition the arrest of such person, may be given in evidence against him in the trial if the deponent is died or incapable of giving evidence, or cannot be found or his presence cannot be procured without an amount of delay, or inconvenience which under the circumstances of the case would be unreasonable.

48. In the present case, it cannot be disputed that the appellant had absconded after the crime was committed on 15-9-1980. This fact is also proved from the evidence of PW 28 R. S. Vishwan, who deposed that the appellant who was working as second Lieutenant in the Army proceeded on leave for the period from 15-9-1980 to 17-9-80 and after availing himself of this leave, he did not join duties and thus deserted the Army. It has also come on record that the appellant was ultimately arrested from a house in New Delhi on 11-9-1994. Besides, from the records, we find that on 1-10-1980 SDJM Safidon had recorded the statement of SHO Safidon that the arrest of the accused could not be procured as he was absconding and on the same day, the learned Magistrate ordered the issue of proclamation under S. 82, Cr.P.C. vide order dated 15-10-1982, the learned Magistrate ordered the attachment of the land of Nirmal Singh. In the order, dated 12-11-1982, it was mentioned that the accused Nirmal Singh had been declared a proclaimed offender. In view of these facts, it is clearly proved that the appellant had absconded after the crime in the present case was committed.

49. The next question for consideration is as to whether there was no immediate prospect of arresting the appellant at the time when proceedings under Section 299, Cr.P.C. were initiated. As stated herein above, on 1st October, 1980, the learned S.D.J.M. Safidon had recorded the statement of SHO concerned that the accused Nirmal Singh had absconded. On 1-10-1980 itself proclamation under Section 82, Cr.P.C. was ordered. On 15-5-1982, the attachment of the land of appellant Nirmal Singh was ordered and Tehsildar Safidon was appointed as Receiver to sell the land as the appellant was still absconding and could not be arrested by the Police. All these facts were available before the learned S.D.J.M. Safidon when he initiated the proceedings under Section 299, Cr.P.C. From these facts, it can safely be concluded that there was no immediate prospect of arresting accused Nirmal Singh when proceedings under Section 299, Cr. P.C. were initiated. The learned counsel for the appellant, however, has raised the contention that even if sufficient material was available on the file that the appellant had absconded and there was no immediate prospect of arresting him, the learned SDJM was required to record a clear finding on the basis of the evidence on record that the accused had absconded and there was no immediate prospect of arresting him and since this finding has not been recorded, the proceedings initiated under Section 299, Cr.P.C. were vitiated. We, however, do not find any substance in this contention as we are of the opinion that in case sufficient material on record leads to the conclusion that the accused had absconded and there was no immediate prospect of arresting him, the proceedings under Section 299, Cr.P.C. shall not be vitiated simply on the ground that a clear finding has not been recorded by a Magistrate to this effect. In this connection, reference may be made to a Division Bench judgment of Lahore High Court in the case, Daya Ram v. Emperor, AIR 1926 Lahore 83 : (1926 (27) Cri LJ 247). In this case, relying on a Division Bench judgment of Allahabad High Court in Bhagwati v. Emperor, AIR 1918 All 60 : (1919 (20) Cri LJ 6) it was held as follows :

“. . . . . .But the section required only that, before the Court records the depositions of the witnesses for the prosecution, it should be proved that the accused person has absconded and there is no immediate prospect of arresting him and not that a finding should be given to that effect.”

In the case of Sanjeeva (1956 Cri LJ 77) (Mysore) (supra) relied upon by the learned counsel for the appellant, it was held that the basic rule in regard to evidence taken before the Court in judicial proceedings is that it must be taken in the presence of the parties to the proceedings. This is, of course, subject to statutory exceptions and one of these exceptions is contained in Section 299, Cr.P.C. (Section 512 of the Old Cr.P.C.), it was further held that the object of the section is to obtain and preserve valuable evidence in regard to an offence so that interests of justice may not suffer when the accused is found and put on trial after long delay because in the interval the evidence may have ceased to be available. It was observed that in these circumstances, the conditions required to be fulfilled under Section 512, Cr.P.C. have to be strictly construed. It was further observed that it was not enough, if it was shown that it was not possible to trade the accused soon after the occurrence but it has to be established that he was available at or about the commission of the alleged offence, and ceased to be available after the commission of the offence before he could be treated as absconder. Similarly it has to be established that there is no immediate prospect of attesting the accused.

50. In the present case, as stated earlier, the accused who was serving as an officer in the Army, after availing himself three days’ leave from 15-9-1980 to 17-9-1980, did not rejoin the duty and deserved the army as proved by PW 28 R. S. Vishwan. Further he was declared proclaimed offender by the competent Court after recording the statement of the Police Officer concerned. Further steps were taken by the Police to attach his property and even a Receiver was appointed for disposal of his property. From these facts, it can safely be concluded that die appellant intentionally made himself unaccessable to the process of law and there was no immediate prospect of arresting the appellant when proceedings under Section 299, Cr.P.C. were initiated. The judgment of the Mysore High Court in the case of Sanjeeva (1956 Cri LJ 77) (supra) is, therefore, of no assistance to the learned counsel for the appellant. For the same reasons, we are of the view that the judgment of the Nagpur High Court in the case of Manbodh (AIR 1944 Nagpur 274) (supra), Madras High Court in the case of Labbai Kutti (1939 (40) Cri LJ 437) (supra) and of Allahabad High Court in the case of Sheoraj Singh (1926 (27) Cri LJ 874) (supra) are of no assistance to the appellant.

51. For the reasons mentioned herein above, we are in agreement with the view of the Division Bench of Lahore High Court in the case of Daya Ram (1926 (27) Cri LJ 247) (supra) that the only requirement under Section 299, Cr.P.C. is that it should be proved that the accused person has absconded and that there is no immediate prospect of arresting him and it is not necessary that formal finding should be recorded to that effect.

52. We do not find any substance in the contention of the learned counsel for the appellant that factum of death of five witnesses, namely PW 2 Chhotu, PW 12 Jai Lal, PW 15 Piare Lal, PW 10 Zohri Singh and PW 11 Jage Ram has not been established for the purpose of Section 299, Cr.P.C. as no death certificate of these persons was brought on record nor date of their death was placed on record. To appreciate this contention, we have carefully looked into original records and we find that repeatedly summons were sent by the learned trial Court summoning these witnesses to appear before the learned trial Court and every time these summons were received back with the report that these persons have already died. From the original records, we find that summons dated 20th March, 1995 were issued to Chhotu Ram son of Indraj to appear on 5th May, 1995 but the said summons were received back with the report that Chhotu had died two years ago. Similarly summons issued to Zohri to appear on 5th May, 1995 were received back with the report that Zohri had died about two years ago. Summons sent to Jai Lal to appear in the Court on 5th May, 1995 were received back with the report that he had died six years age. Summons sent to Piare Lal to appear on 5th May, 1995 were received back with the report that he had died about 6/7 years ago. Summons sent to Jage Ram son of Jai Lal to appear on 5th May, 1995 were received back with the report that he had died two years ago. From these facts, it is quite clear that these five witnesses had already died when they were summoned to appear before the learned trial Court.

53. Since we have come to the conclusion that the provisions of Section 299 were complied with at the time of declaring the appellant as an absconder and we have also held that the factum of death of five witnesses, namely, PW 2 Chhotu, PW 12 Jai Lal, PW 15 Prem, PW 10 Zohri Singh, PW 11 Jage Ram has been established for the purpose of Section 299, Cr.P.C., we have to examine as to whether the conviction of the appellant under Sections 302 and Section 307, IPC can be upheld on the basis of the evidence of the aforesaid five witnesses.

54. The first occurrence happened at about 7.40 p.m. on 15-9-1980 and the second occurrence happened at about 7.50 p.m. on the same day. As per evidence of Chhotu, he witnessed part of the first occurrence and went to the Police Station to lodge the report. This witness also stated that when he left the place of occurrence, the firing was still going on. He reached the Police Station Safidon at about 8.20 p.m. and the distance between the place of occurrence and Police Station Safidon is 7 miles. The contention of the learned counsel for the appellant that since Chhotu could not have travelled a distance of 7 miles within 40 minutes, his evidence could not be relied upon, cannot be accepted. From the statement of Chhotu, Exhibit PW 43/A, we find that the first occurrence started at about 7/7.30 p.m. and he had reached the Police Station 8.20 p.m. There may be slight miscalculation in mentioning the time of occurrence at the Police Station but the case of the prosecution cannot be rejected because of this minor discrepancy. Chhotu in this statement, clearly proved that at the time of occurrence, the appellant was carrying stengun and he fired on them and bullet hit Surat Singh who fell down in the stairs itself. He further stated that appellant Nirmal Singh had also fired at his nephew Des Raj who died on receipt of the shot. It may be relevant to point out here that the presence of Chhotu at the place of occurrence has been admitted by even PW 1 Manphool Singh who did not support the case of the prosecution and was declared hostile. This witness, in his cross-examination, clearly admitted that he had stated in his statement before the Judicial Magistrate that on 15-9-1980 at about 7.45 p.m. he, Chhotu, Surat Singh (since deceased) and Gaje Singh were present on the flour mill of Gaje Singh.

55. Besides Chhotu, the first occurrence was witnessed by PW 1 Manphool Singh and PW 2 Gaje Singh. Both these witnesses, in their respective statements recorded under Section 299, Cr.P.C. had supported the case of the prosecution and had in terms stated that on 15-9-1980 at about 7.45 p.m. the appellant Nirmal Singh caused gunshot injuries to Surat Singh and Des Raj. However, before the learned trial Court they resiled from their earlier statements recorded by the S.D.J.M. Safidon. Both PW 1 and PW 2 admitted that they had made the statements, Exhibits PA/1 and PB/1 respectively but they stated that they made these statements under pressure and influence of the Police. We, however fail to understand that as to how the Police could have influenced them when their statements were recorded in the open Court by Judicial Magistrate Safidon. In view of these facts, we have no hestitation to conclude that appellant Nirmal Singh had caused gunshot injuries to deceased Surat Singh and Des Raj at the place of occurrence Nos. 1 and 2 and our view is further strengthened by the report Exhibit PAC of Dr. Chug, Ballistic Expert which we will discuss in the later part of the judgment.

56. The case of the prosecution with regard to occurrence No. 6 where Ramesh and Lehna Singh were shot dead and Ram Mehr and Inder S/o. Ratia were injured is based on the basis of the evidence of Jai Lal and Piare Lal whose statements Exhibits PW 48/D and 48/E were recorded in the proceedings under Section 299, Cr.P.C. and who could not be examined before the learned trial Court as they had already died. Besides these two eye-witnesses, the prosecution examined injured PW 16 Ram Mehr, PW 17, Inder S/o. Ratia and PW 18 Parkash (non-injured). In their respective statements, Exhibit PW 48/D and PW 48/E, both Piare Lal and Jai Lal stated that appellant Nirmal Singh along with Vijay Singh came in the chowk in front of the house of Jai Lal at about 8/8.15 p.m. and at the instance of Vijay Singh, Nirmal Singh fired at Lehna Singh and Ramesh and both fell down and they also fired shots at Inder and Ram Mehr. They further stated that after departure of Nirmal Singh etc. they found that Lehna Singh and Ramesh were dead due to gunshots. Both these witnesses also stated that about 6/7 months prior to the occurrence, a quarrel between Lehna Singh and Inder Singh on the one hand and Rulia Ram, father of the appellant, on the other, took place in which they were challaned and due to that grudge, shots were fired. From the evidence of these two witnesses, it is clearly proved that appellant Nirmal Singh had shot dead Ramesh and Lehna Singh and also caused gun shot injuries to Ram Mehr and Inder S/o. Ratia. Since we have field that the proceedings under Section 299, Cr.P.C. were valid and the factum of death of PWs Jai Lal and Piare Lal was established before relying on the proceedings under Section 299, Cr.P.C. we are of the opinion that the conviction of the appellant under Section 302, IPC for the murder of Ramesh and Lehna Singh and under Section 307, IPC for causing fire-arm injuries to inder and Ram Mehar at the place of occurrence No. 6 is fully established, and our view is also strengthened by the report of Dr. Chug, Ballistic Expert, which we will discuss in the later part of the judgment.

57. It is true that PW 16 Ram Mehar and PW 17 Inder S/o. Ratia who were injured witnesses and PW 18 Parkash resiled from their respective statements recorded before the Judicial Magistrate, Safidon in the proceedings under Section 299, Cr.P.C. when they appeared before the learned trial Court. But it may be noted here that when confronted with their respective statements, Exhibits PW 16/B and PW 17/B recorded before the Judicial Magistrate Safidon PW 16 Ram Maehar and PW 17 Inder admitted that their statement were recorded by the Judicial Magistrate but they disputed the correctness of the statements recorded by the Judicial Magistrate. We fail to understand as to what was the interest of the learned Judicial Magistrate in not recording the statements of these witnesses correctly, particularly when there is no allegation of malafide against the learned Judicial Magistrate. PW 18 Parkash also admitted that his statement Exhibit PW 18/B was recorded by the learned Judicial Magistrate but he stated before the learned trial Court that the statement given by him before the Judicial Magistrate was under the pressure and fear of the Police, which again cannot be believed. We are, therefore, of the opinion that the occurrence at place No. 6 stands established also by the evidence of PW 16, PW 17 and PW 18.

58. To prove the occurrence No. 3, where PW 14 Nanhi, PW 15 Prem, Banwari and Surji were injured, the prosecution relied on the evidence of PW 10 Zohri Exhibit PW 10/B, recorded in the proceedings under Section 299, Cr.P.C. and the evidence of two injured witnesses PW 14 Nanhi and PW 15 Prem and two non-injured witnesses, PW 19 Kitaba and PW Dhir Singh. Zohri Singh, in his statement Exhibit PW 48/B, had stated that in the month of September, 1980 at about 8 p.m. he was present when Dhir Singh was in his Chaubara and an electric bulb of uppr side was burning. He heard reports of firing in front of the flour mill of Gaje Singh and shop of Inder, and in the meantime he heard the noise of Shanti, wife of Sultan and Nani W/o Megh Raj standing in the front of the house of Lachhman Singh saying that Nirmal Singh and Vijay Singh fired in their flour mill and Des Raj had also been fired at. He further stated that accused Nirmal Singh and Vijay Singh came towards the shop of Inder and when he asked him as to why they were stifling the village, Vijay Singh asked Nirmal Singh to fire, and upon this Nirmal Singh fired at Banwari and Shanti which hit them. Surji W/o. Richi Ram also received injury and this was witnessed by PW 19 Kitaba Singh also. As stated earlier, the evidence of Zohri Singh was recorded in the proceedings under Section 299, Cr.P.C. after the appellant was declared a proclaimed offender and further when this witness was summoned by the learned trial court, he had already died. Thus, the evidence of this witness can be relied upon. From the statement of this witness, we find that the case of the prosecution with regard to gun shot injuries received by Banwari, Shanti and Surji is proved to the effect that these injuries were caused by appellant Nirmal Singh.

59. It is true that PW 13 Shanti, PW 14 Nanhi, PW 15 Prem and PW 19 Kitaba and PW 20 Dhir Singh who had also witnessed this occurrence have not supported the case of the prosecution before the learned trial Court but from the evidence of these witnesses, we find that all these witnesses have admitted that their respective statements were recorded by the Judicial Magistrate Safidon in the proceedings under S. 299, Cr.P.C. PW 13 Shanti stated that her statement Exhibit PW. 13/B recorded in the proceedings under S. 299, Cr.P.C. was made by her before the Court but she was under the pressure of the Police. PW 14 Nanhi and PW 15 Prem also stated to the same effect that their respective statements PW 14/B and PW 15/B were made before the Judicial Magistrate Safidon when they were under the pressure of the Police. PW 19 Kitaba and PW 20 Dhir Singh deposed in the same manner that when they gave their statements before the learned Magistrate in the proceedings under Section 299, Cr.P.C. they were under the pressure of the Police. We, however, are not impressed with the reasons given by these witnesses that they were under the pressure of the Police when their statements were recorded in the open court by the learned Sub Divisional Magistrate. We are, therefore, of the opinion that occurrence at place No. 3 stands established by the evidence of the said witnesses also.

60. With regard to the occurrence at place No. 4, prosecution has not led any evidence and as such the conviction with regard to the place at occurrence No. 4 cannot be sustained.

61. The occurrence at place No. 5 was witnessed by PW 12 Inder S/o Jai Lal and PW 9 Chhattar Singh S/o Bholar. PW 9 stated before the learned trial Court that Nahar Singh and Sarti who were his neighbours received fire arm injuries on 15-9-1980 at 8.30 p.m. He, however, stated that these injuries were not caused by Nirmal Singh or his brother Vijay Singh. Since this witness had supported the case of the prosecution with regard to the injuries caused to Nahar Singh and Sarti in the proceedings under S. 299, Cr.P.C., he was confronted with the statement Exhibit PW 9/B given by him before the learned Magistrate. On this, he replied that his thumb-impression was obtained by the learned Magistrate on a statement but nothing was enquired from him by the Magistrate. We, however, cannot believe the said version given by this witness, as the learned Magistrate had no interest whatsoever to obtain his thumb impression on the statement which was not given by him and even there is no allegation of mala fides against the learned Magistrate. Similarly, PW 12, in his statement recorded in the proceedings under Section 299, Cr.P.C. had supported the case of the prosecution with regard to injuries caused to Biro, Dilbagh and Chameli, but in his statement recorded before the learned trial Court, he had stated that he had made the statement Exhibit PW 12/B in the court of SDJM Safidon on 19-4-1985 but that statement was given by him under the pressure of the Police. He, however, admitted that no Police official was present in the Court. In view of these facts, we do not agree with the said version given by PW 12 with regard to injuries caused to Biro, Dilbagh and Chameli by the appellant Nirmal Singh. Accordingly, we hold that the appellant had caused gunshot injuries to Nahar Singh, Sarti, Biro, Dilbagh and Chameli at the 5th place of the occurrence.

62. The learned counsel for the appellant has contended that there was a delay in delivering the special report at the place of C.J.M. Jind. We, however, do not find any merit in this contention. It is proved on the record that the occurrence happened on 15-9-1980 at about 7/7.30 p.m. and the statement of PW Chhotu was recorded at P. S. Safidon at 8.20 p.m. on the same day and thereafter the Police went to the place of occurrence which was at a distance of 7 miles from the Police Station. The special report was delivered at the residence of the C.J.M. Jind at 3.10 a.m. on 16-9-1980. In this connection, reference may be made to the affidavit Exhibit PW 30/A of UGC Puran Singh. In this affidavit, he has stated that the special report was given to him at about 9 p.m. at P. S. Safidon but the Ilaqa Magistrate, was not available at Safidon and as such, he had to go to Jind to deliver the special report at the place of the Chief Judicial Magistrate, Jind, after delivering a copy of the same at the residence of the Superintendent of Police, Jind. In view of the explanation given in this affidavit, we are of the opinion that delay, if any, in delivering the special report to C.J.M. Jind has been satisfactorily explained.

63. As regards the contention of the learned counsel for the appellant, that stengun No. JJ-7587, alleged to have been used in the crime, was not available with the appellant, we do not find any merit in this contention. It is not disputed that this stengun had been issued to the appellant before he proceeded on leave on 13-9-1980. It is true that as per the record of the Army authorities, this stengun was deposited by the appellant at the time of proceeding on leave but the report of the Ballistic Expert Dr. O. P. Chug of S.F.L. Madhuban has clearly proved that the cartridges cases Exhibits Cl to C-49 which were found from the place of the occurrence had been fired from stengun No. JJ-75/87. In view of these facts, the only irresistible conclusion which can be drawn is that the appellant must have ensured that the said stengun was shown as having been deposited in the records of the Army on 13-9-1980 but in fact the stengun was deposited after the crime was committed. It may be relevant to point out here that the report of Dr. O. P. Chug was tendered in evidence by the prosecution on the ground that Dr. Chug, the author of the report had gone abroad and the appellant had taken no objection to it and he and his counsel had stated before the Court that they had no objection if report Exhibit PAC was read in evidence. We do not find any merit also in the contention of the learned counsel for the appellant that the report of Dr. O. P. Chug was vague. After carefully examining the report, we find that in this report, it has been clearly proved that the cartridges Exhibits C 1 to C 49 which were lifted from various spots of the crime, had been fired from the stengun No. JJ-7587 of the appellant. As stated earlier, this report was admitted by the appellant in evidence.

64. As regards the contention of the learned counsel for the appellant that the prosecution has failed to prove that the documents Exhibits PW 44/K, PW 44/L and PW 44/M were recovered from the place of occurrence, we do not find any merit in this contention also. From the evidence on record, we find that the recovery of these documents from the place of occurrence No. 6 has been duly proved by PW 44 Ram Singh, I.O. and the recovery memo in respect of these documents was duly attested by PW Duli Chand and PW Ram Saran.

65. It was also argued on behalf of the appellant that the appellant was not available in village Budha Khera on the day of occurrence as he had gone to Mata Vaishno Devi Temple in those days. This plea of alibi also cannot be accepted as no evidence has been led on behalf of the appellant for establishing the plea of alibi. As held by the Supreme Court in Binay Kumar v. State of Bibar, AIR 1997 SC 322 : (1997 Cri LJ 362), strict proof is required for establishing the plea of alibi.

66. It was also argued on behalf of the appellant that the prosecution has failed to prove the motive for committing the crime. But the question of motive pales into insignificance when there is a positive and cogent evidence of murder. Since we have come to the conclusion that there is sufficient evidence on the record to prove that the appellant had committed the murder of four persons and had caused fire arm injuries to many others, the question of motive is not of much relevance in this case.

67. Now coming to the sentence awarded to the appellant, it will be relevant to refer to Sub-section (3) of Section 354, Cr.P.C. which reads as under :

“When the conviction is for an offence punishable with death or in the alternative, with an imprisonment for life, or an imprisonment for a term of years, the judgment shall state reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence.”

68. Thus, under the provisions of the Code of Criminal Procedure, life imprisonment for the offence of murder is the rule and death sentence is an exception to be resorted to for special reasons to be recorded in the judgment. As far as the extreme penalty of death is concerned, the sentencing discretion of the Court is circumscribed by the guidelines laid down by the Hon’ble Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636). In this case, it was held that the extreme penalty should not he inflicted except in the rarest of a rare cases and “on the four principles namely (1) the extreme penalty of death may not be inflicted except in cases of extreme culpability, (2) before opting for the death penalty the circumstances of the offender be also take in into consideration along with the circumstances of the crime, (3) life imprisonment is the rule and the death sentence is an exception. In other words, death sentence has to he imposed only while life imprisonment appears to be altogether inadequate punishment having regard to the relevant circumstances of the crime and (4) aggravating and mitigating circumstances have to be given full weightage and the balance has to be struck between the aggravating and mitigating circumstances before the option of the punishment has to be exercised. It was also observed in this judgment that the scope add the concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing Policy writ large in Section 354(3).

69. The mitigating circumstances mentioned in the case of Bachan Singh (supra) are as under :

(1) That the offence was committed under the influence of extreme mental or emotional disturbance;

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

70. Having regard to the guidelines formulated by the Hon’ble Supreme Court discussed above, we have given our thoughtful consideration to the question of sentence awarded to the appellant and have also examined the facts and circumstances of the case and the reasons assigned by the learned trial Court for awarding extreme penalty of death to the appellant. The facts of the present case present a tragic situation in which the appellant had taken the lives of four persons which depicts acruel personality of the appellant but the question which still remains for consideration is as to whether it will be just and proper to affirm the sentence of death passed against the appellant. As stated earlier, the offence was committed in the year 1980. From the evidence on record, it is also clear that all the injured witnesses who are alive and are residing in the village, have not supported the case of the prosecution before the learned Sessions Judge. The evidence on record further shows that some of these injured persons are closely related to the deceased persons. From these facts, it is clear that peace has returned to the village and there is no ill will.

71. Another mitigating circumstance in favour of the appellant is that he was a young man of 23 years at the time of the occurrence. There is no charge of conspiracy and the evidence does not show that the murders were planned. On the contrary, the evidence of P.Ws. Chbotu, Zohri Singh, Jage Ram, Jai Lal and Piare Lal shows that the appellant committed the murders at the instance of his elder brother Vijay Singh. Besides, during the period of abscondance, the appellant has already married and is having two children. Keeping in view these facts, it is not possible to say that it is the rarest of rare cases which may warrant the extreme penalty of death sentence for the occurrence which happened more than 16 years ago. In our opinion, it will meet the ends of justice if we substitute the sentence of death with that of sentence of imprisonment for life on the appellant under Section 302, I.P.C. while maintaining his conviction as recorded by the learned Sessions Judge. The view we have taken finds support from a recent judgment of the Supreme Court in Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 5 JT (S) 134 : (1997 Cri LJ 3182).

72. Accordingly, the appeal is allowed to a limited extent that the sentence of death passed against the appellant under Section 302, I.P.C. is set aside and instead he is sentenced to life imprisonment. We, however, confirm the conviction and sentence awarded to the appellant under Section 307, I.P.C. and under Sections 25 and 27 of the Arms Act. We further direct that all the sentences shall run concurrently.

Order accordingly

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