Chopra, J. - (1.) RANJIT Singh Kaur Singh and Mandail Singh of village Sahaur have been convicted by the Additional Sessions Judge, Barnala under Section 302/34, I. P. C. for the murder of one Mai Singh son of Chuhar Singh of their village and eacnh. one of them has been sentenced to death. The convicts have appealed and the record is also before us for confirmation of the sentence.
(2.) RANJIT Singh Appellant is a lambardar and the other two accused Kaur Singh and Mandail Singh are said to be his friends. Mal Singh deceased was a bad character entered in register No. 10 of the Police for several years. His brother Chanau Singh P. W. was also similarly entered in register No. 10 with the police. Both of them were being prosecuted under Section 110, Code of Criminal Procedure and Ranjit Singh Appellant was cited as a prosecution wit -ness. He had already given evidence in the case against Chanan Singh and was yet to appear in the one against Mal Singh. The prosecution case is that at about 8 P.M No. 25 -12 -1952 the three Appellants way -laid Mal Singh deceased when he, accompanied by Chanan Singh, was going from his cattle -shed to his residential house to take meals. The house of Ranjit Singh lies on a by -lane branching out from the main path by which the deceased was proceeding. The Appellants concealed themselves at the turning of the by -lane and waited for the deceased, Ranjit Singh had a pistol with him, while his two companions had a ganders each. As soon as Mai Singh came in front of them, Ranjit Singh shout ed that the person required had come. Ranjit Singh also fired a shot from his pistol and then all three of them forcibly took Mal Singh to Ranjit Singh's house. Another shot was fired when Mal Singh was being so Carried The latter was then shut inside the house and given a severe thrashing by Kaur Singh and Mandhail Singh while Ranjit Singh held him by the hair. Mal Singh expired at the spot. Kirpal Singh and Maghar Singh P. Ws. were sitting in front of the farmer's house when the three Appellants, armed as stated above, passed by them arid concealed themselves at the turning. On hearing the noise they went on the roof of Jangir Singh's house, which is contiguous to that of Ranjit Singh, and from there saw the incident. Chanan Singh who was following the deceased at a few paces, ran back towards his outer house as soon as the first shot was fired and Mal Singh was pounced upon by Kaur Singh and Mandhail Singh. From there he saddled a horse and proceeded to the police Station. He lodged a report at Police Station Mahal Kalan, situate three miles from the village, at 11 P.M. the same night. a case under Section 307, I. P. C. was registered against the three Appellants, since all that Chanan Singh reported was that a murderous attack was made on Mal Singh and that he had been caught hold of by the three Appellants in the lane. Mention of Mal Singh having been carried to Ranjit Singh's house and killed there was not made in the report. M. Hayat Khan Head Constable, who was then incharge of the Police Station, proceeded to the village. He found the dead body of Mal Singh lying in the court yard of Ranjit Singh's house. After preparing the necessary memos he sent it for post mortem examination. Pour cartridge cases, out of which one was live, one missed, and two empty, were recovered from the lane in front of Rattan Singh's house. It may here be mentioned that the lane for Ranjit Singh's house bifurcates from the thoroughfare in front of Rattan Singh's cause. The accused were formally arrested on the evening of 26 -12 -1952. A gandasa each was re - covered from the houses of Kaur Singh and Mandhail Singh at their instance on 28th, No pistol was, however, recovered from Ranjit Singh Appellant. The three Appellants were charge sheeted, under Section 302/34, I. P. C. and the trial resulted in their conviction as stated. Post mortem examination on the dead body was conducted by Dr, Piare Lal, Assistant Surgeon Dhanaula and it revealed the following injuries on the person of Mai Singh: (Alter a description of the injuries His Lordship proceeded The death was due to shock and hemorrhage from the wounds on the face and neck. The stomach was full of digested food material. The deceased in the opinion of the doctor, must have died immediately on receipt of the injuries. Injury No. 1 was individually sufficient in the ordinary course of nature to cause death.
(3.) AT the trial the prosecution examined Kirpal Singh alone out of the three eye -witnesses mentioned in the First Information Report The statements of the other two, namely Magher Singh and Chanan Singh, recorded by the Committing Magistrate were transferred to the Sessions record under Section 33 Evidence Act. The reason given is that they could not be served and were not available. When the case was being argued before us Chanan Singh was found to be present in Court. We, therefore, recorded his statement under Section 428, Code of Criminal Procedure He explains his non -appearance at the trial by stating that after his evidence at the commitment stage he was arrested by the Mahal Kalan Police and was detained at Dhanaula Police Station for several months. During this period he did not receive any summonses for appearance at the trial. He was released when the trial was over. The reason that he gives for his detention is that M. Bakhtawar Singh S.H.O. Mahal Kalan demanded that, he should not depose against the accused persons and to that he did not agree. As regards Magher Singh he says that he may probably be at his father -in -law's house in village . Nihaluwala or with his sister at Hussanpur. The facts' which led to the reception of the previous depositions of these two witnesses as evidence at the trial are these Summonses for appearance of the witnesses before the trial Judge on 6 -4 -1953 were issued by the Committing Magistrate. Harnaik Singh Constable attached to Police Station Mahal Kalan was deputed to effect service. On 15 -3 -1953 he made a report that Chanan Singh and Maghar Singh were not found present in the village and their whereabouts also could not be ascertained. Warrants for their attendance on 6th April were then issued by the Additlpnal Sessions Judge on 4 -4 -1953. The same process server made identical reports on these warrants as well. in his statement recorded by the Additional Sessions Judge Harnaik Singh proved his reports on the summonses as well as the warrants and deposed to the facts stated there in On behalf of the Appellants it is strenuously urged that the conditions precedent as laid down by Section 33, Evidence Act were not fulfilled and consequently the previous deposition of Magher Singh could not be admitted in evidence and should be left out of consideration. It may be remembered that while Chanan Singh is the deceased's brother, Maghar Singh is a step -brother of theirs and is also their collateral in the fifth degree. Their, evidence is very material in the case since both' of them proffer to be eye - witnesses of the incident. The charge against the accused is undoubtedly very serious. Any amount of delay or expense which might be involved in securing the attendance of such witnesses would be insignificant as compared with the utility of their appearing before the trial Judge and the assessors. It is difficult to imagine any such close relations, as Chanan Singh and Magher Singh are, should have remained out and could not be served to appear at the trial. In criminal cases, particularly where a man is being tried for his the and the evidence sought to be accepted is of signal importance, the Court must insist on strict proof before holding that the conditions required for admitting former deposition have been satisfied. It is an elementary right of an accused person that a witness who is to testify against him should give evidence before the Court trying him and thus afford an opportunity to the Court to see the witness and observe his demeanor and form a better opinion as to his reliability than is possible from reading his statement. It is only in exceptional circumstances, which should be strictly proved to exist, that a previous deposition of a witness should be transferred in a serious case like this. It is a matter of general knowledge that, more often than not, cross -examination of prosecution witnesses in Sessions cases is deferred for the trial, meticulous attention is not paid to the cross -examination at the commitment stage and in very many of such cases the accused is represented, if at all, by a comparatively junior counsel. While the accused has the opportunity to cross -examine it is not often that this is effectively done. The prosecution should not easily be allowed to escape detailed cross -examination of its witnesses at the trial by taking up the plea of their non -availability and thus deprive the accused of the valuable right of being tried on viva voce testimony. In the present case the process -server went to the village once to effect service of the summonses and the second time for execution of the warrants and on either of these occasions he found the witnesses to be absent. According to Chanan Singh himself he was arrested by the Officer Incharge Police Station Mahal Kalan, through which the service was being effected, and it cannot, therefore, be believed that the police did not know of his whereabouts in his case recourse to Section 33, Evidence Act has not been properly taken. As regards Maghar Singh all that we are told is that Harnaik Singh went twice to the house of the witnesses and was unable to find him there. He did not make necessary and proper enquiries as to where the witness could be found. Reasonable exertion was not made to find him and it cannot, therefore, be said that the witness was untraceable in view of the statement made by Chanan Singh that Maghar Singh might either be at his father -in -law's or with his sister I do not think the previous statement of Maghar Singh can be regarded as validly transferred under Section 33, Evidence Act. It has, therefore, to be rejected and left out of consideration.;