SHIV KUMAR SHARMA, J. - (1.) MEANINGFUL question that emerges for consideration in the instant appeal is 'would non -compliance with the provisions of Section 276 or 275(4) of Code of Criminal Procedure, 1973 (for short 'New Code') nullify the evidence of the witness recorded at the trial
(2.) THIS question arises in the circumstances set out below: 'Appellants Kailash and Ram Karan were indicated before the learned Special Judge (Women Atrocities and Dowry Cases) and Additional Sessions Judge, Jaipur City/District Jaipur, for having committed murder of Hemlata. The learned Trial Judge vide judgment dated November 27, 1998 convicted and sentenced the appellants as under : 1. Kailash:Under Section 302, IPC to suffer imprisonment for life and fineof Rs. 500/ -, in default to further suffersix months'imprisonment.Under Section 498A, IPC to suffer three years' rigorous imprisonmentand fine of Rs. 500/ - in default to furthersuffer three months' rigorous imprisonment.Both sentences were ordered to run concurrently.2. Ramkaran :Under Sections 302/34, IPC to suffer imprisonment for life andfine of Rs. 500/ -, in default to furthersuffer six months'rigorous imprisonment.' There is no eye -witness of the occurrence and the prosecution mainly rests on the dying declaration of Hemlata allegedly recorded by Bhawani Singh, Investigating Officer (P.W. 18). Statement of Bhawani Singh was taken down by the learned Trial Judge on March 19, 1998. The statement got typed in two pages and Bhawani Singh put his signatures on both the pages. The Presiding Judge however could put his signatures on one page only. As second page of the statement did not bear the signatures of Presiding Judge, the Additional Public Prosecutor on September 26, 1998 moved an application to re -examine Bhawani Singh. Learned Presiding Judge recalled Bhawani Singh and got his statement recorded again on October 31, 1998. As Counsel for the appellants was not present on that date the witness could not be cross -examined, Learned Trial Judge ignored the statement of Bhawani Singh recorded on March 19, 1998 and based the impugned judgment on his subsequent testimony taken down on October 31, 1998.
(3.) LEARNED Counsel for the appellants raised objection in regard to admissibility of subsequent statement of Bhawani Singh. Contention of learned Counsel is that provisions of Sections 276(3) and 275(4) are not mandatory and non -compliance of said provisions would not nullify the evidence of Bhawani Singh recorded on March 19, 1998. Reliance is placed on the case of L.D. Healy v. State of Uttar Pradesh, (1969) 2 SCR 948 and Sita Ram Sahu v. State of U.P., 1981 All. LJ 665.;