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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 up to 17th Sept. 1980. On 1st Oct. 1980, application for issuance of proclamation against Nirmal Singh was filed and proclamation was obtained from the Court on that day itself. On 15th No 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.

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 Puran 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 September, 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.

59. It is true that PW 13 Shanti, PW 14Nanhi, 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 Section 299, Cr.P.C. PW 13 Shanti stated that her statement Exhibit PW-13/B recorded in the proceedings under Section 299, Cr. P.C. was made by her before the Court but she was under the pressure of the Police. PW 14 Nanhi and PW15 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 Section 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.