JUDGMENT I.A. Ansari, J. 1. By this common judgment and order, we propose to dispose of both these appeals inasmuch as both these appeals have been arisen out of one and the same judgment and the appeals have, therefore, been heard together. By the impugned judgment and order, dated 18.03.2006, passed, in Sessions Case No. 99 (J-J) of 1997, by the learned Additional Sessions Judge, (Ad hoc), Jorhat, the two accused-appellants, namely, Rajumoni Bora and Bhim Bora @ Uma Kanta Bora, stand convicted under Sections 302, 201 and 324 read with Section 34 IPC and they both have been sentenced, for their conviction under Section 302 IPC, imprisonment for life with fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for two months. However, for their conviction, under Section 324 and 201 read with Section 34 IPC, no separate sentence has been passed by the learned trial Court on the ground that the accused-appellants have already been sentenced to imprisonment for life. 2. The case of the prosecution, as emerged at the trial, may, in brief, be described as under: On 12.10.1996, at about 3 pm, Ranjit Chutia (since deceased), accompanied by Babu Saikia @ Bipul Saikia (P.W. 4), went to bring their cattle from the bank of river Brahmaputra, where the cattle had been left for grazing. While Ranjit Chutia and P.W. 4, on their way home, reached a place called Haladhibari Chapori, accused Bharat (since absconder), accused Rajumoni Bora and accused Bhim Bora, suddenly, appeared before Ranjit Chutia and P.W. 4 and asked P.W. 4 if they could find the cattle, because on that day, some cattle had gone missing. In the process of making the inquiry as aforesaid, accused Raju grabbed Ranjit from behind and accused Bharat grabbed him (Ranjit) from the front. Soon thereafter, accused Raju left Ranjit and caught hold of P.W. 4 and, then, the three accused forcibly took both, P.W. 4 as well as Ranjit, to the edge of the river Brahmaputra. On reaching the edge of the river, accused Raju forced P.W. 4 to take off his clothes and made him naked. Soon thereafter, accused Raju left Ranjit and caught hold of P.W. 4 and, then, the three accused forcibly took both, P.W. 4 as well as Ranjit, to the edge of the river Brahmaputra. On reaching the edge of the river, accused Raju forced P.W. 4 to take off his clothes and made him naked. Accused Raju, then, asked P.W. 4 to sit on the ground and as P.W. 4 was in the process of sitting down, accused Raju gave a blow with a dao aiming at the neck of P.W. 4; but as P.W. 4, who was in the process of sitting down, the blow fell on his left shoulder instead of his neck. Having been so assaulted on the edge of the river Brahmaputra, P.W. 4 fell down into the river water. Having fallen into the river, P.W. 4 started swimming to save his life. Out of apprehension, when P.W. 4 looked back, he saw accused Bhim jumping into the river and swimming in order to catch hold of P.W. 4. P.W. 4 also noticed that the remaining two accused, namely, accused Bharat and accused Raju were giving blows on Ranjit by means of dao. Having covered a distance of about 4/5 kilometers by swimming, P.W. 4 came out of the water and as he was without any clothes, he went to the house of P.W. 3 (Thagi Ram Bora) at the said Chapori, put on a piece of cloth and, then, came running home. On his arrival there, people gathered and P.W. 4 informed them as to what had happened. 3. Upon receiving the information about the assault on Ranjit, Ranjit's father and his other co-villagers went to the river, they found Ranjit lying dead below the embankment of the river. Ranjit's dead body was brought to his house and a First Information Report was lodged by P.W. 1, father of deceased Ranjit, at Jengraimukh Police Station. Based on the First Information Report, so lodged by P.W. 1, Jengraimukh Police Station Case No. 32 of 1996, under Sections 326/ 302/ 201/ 34 IPC, was registered against the said three accused persons. During the course of investigation, police visited the place of occurrence, drew sketch map thereof, held inquest over the said dead body, got the post mortem examination performed on the said dead body. As far as injured Babu (P.W. 4). was concerned, he was medically treated. During the course of investigation, police visited the place of occurrence, drew sketch map thereof, held inquest over the said dead body, got the post mortem examination performed on the said dead body. As far as injured Babu (P.W. 4). was concerned, he was medically treated. On completion of investigation, police laid charge-sheet, under Sections 302, 201 and 326 read with Section 34 IPC against the accused persons, namely, Bharat Bora (since absconder) and the two appellants, Rajumoni Bora and Bhim Bora. 4. At the trial, when charges, under Sections 302, 326 and 201 read with Section 34 IPC, were framed, the accused-appellant, Bhim Bora, who was the lone accused present at the time of framing of the charges, as mentioned hereinbefore, pleaded not guilty thereto. In course of the trial, so held, the remaining two accused, namely, Raju and Bhim, appeared at the trial. 5. In support of their case, prosecution examined altogether ten witnesses. As accused Bharat Bora went, again, absconding, the present accused-appellants, namely, Raju and Bhim Bora were examined under Section 313 Cr. P.C. and, in their examinations aforementioned, the accused-appellants denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. On conclusion of the trial, the learned trial Court, having found the two accused-appellants guilty of the offences under Sections 302, 324 and 201 read with Section 34 IPC, convicted them accordingly and passed sentences against them as mentioned, above. Aggrieved by their conviction and the sentences passed against them, the convicted persons have preferred these appeals. 7. We have heard Ms. D Buragohain, learned Amicus Curiae, in Criminal Appeal No. 54(J)/2006 (Rajumoni Bora Vs. State of Assam), and Mr. PK Dutta, learned Amicus Curiae appearing in Criminal Appeal No. 55(J) of 2006 (Bhim Bora Vs. State of Assam). We have also heard Mr. Z Kamar, learned Public Prosecutor, Assam. 8. Though it is the evidence of P.W. 4 around whom revolves the entire case of the prosecution, we deem it appropriate to note of, before considering the evidence of P.W. 4, the evidence of the doctor (P.W. 6), who had medically examined P.W. 4 and the other doctor (P.W. 10), who had performed the post mortem examination on the dead body of Ranjit Chutia. 9. 9. As far as P.W. 6 is concerned, his evidence is that on 12.10.1996, while functioning as Medical and Health Officer, at Ratanpur Miri Mini Primary Health Centre, Majuli, he examined Babu (P.W. 4), who was brought to the hospital in injured condition, and found Babu having sustained incised wound on his left shoulder measuring 6"x 1", the injury having been caused, according to the evidence of P.W. 6, by a sharp cutting weapon. 10. In his cross-examination, P.W. 6 has conceded that the injury, which had been found on the person of P.W. 4, could have been caused by fall on a sharp edged substance. 11. Bearing in mind the fact that an incised wound was found on the left shoulder of P.W. 4, when he (P.W. 4) was examined by the doctor (P.W. 6) on the very day of the occurrence (i.e., on 12.10.1996), we turn to the evidence of the other doctor (P.W. 10) and we notice that he (P.W. 10) had, admittedly, performed, on 13.10.1996, post mortem examination on the dead body of Ranjit Chutia and found as follows: External Injury: 1. Swelling body over. 2. Small cutting wound on the back side and neck. Right carotid vessels are cutting. Muscles, bones and joints: Incise wound seen. Neck and head 7 (seven) numbers, both left and right side. Three numbers of penetrating wound seen at the back side. And right side incised wound seen 5 numbers. And both shoulders are incised wound. One number of incised wound seen at left forearm. Seen carotid vessel cutting deformity. More detailed description of injury or disease: The body was swelling 18 (eighteen) incised wounds seen over the body. The body was soft and edematous. Various small penetrating wounds seen at body and hand. Carotid vessel was cutting at the right side. 12. In the opinion of the doctor, the cause of death was shock and respiratory failure. 13. More detailed description of injury or disease: The body was swelling 18 (eighteen) incised wounds seen over the body. The body was soft and edematous. Various small penetrating wounds seen at body and hand. Carotid vessel was cutting at the right side. 12. In the opinion of the doctor, the cause of death was shock and respiratory failure. 13. It may, now, be noted that the defence declined to cross-examine the doctor (P.W. 10), whose evidence clearly show that Ranjit had sustained as many as 18 wounds; and out of these 18 wounds, he had as many as 7 wounds on his neck and head, 5 incised wounds on his right shoulder, 1 (one) incised wound on the left forearm and three penetrating wounds on his; back and the shock and respiratory failure, following the injuries, became the cause of his death. 14. Apart from the fact that the findings of the doctor and his opinion as regards the cause of death were not disputed, at the trial, by the prosecution or the defence, we, too, do not find anything inherently improbable or incorrect in the evidence given by P.W. 10 and we have, therefore, no hesitation in concluding that Ranjit Chutia died due to a large number of incised and penetrating wounds suffered by him, the wounds having been caused by sharp edged as well as pointed weapons. 15. Keeping in view the medical evidence on record, when we turn to the evidence of P.W. 4, we notice that according to the evidence of this witness, both, he (P.W. 4) and Ranjit, went towards the river looking for their catties and when they were returning, the three accused aforementioned, suddenly, appeared before them from different directions and asked them if they had found the cattle. It is in the evidence of P.W. 4 that having made the query as aforesaid, accused Raju grabbed Ranjit from behind and accused Bharat grabbed Ranjit from the front. It is also in the evidence of P.W. 1 that accused Raju Borah forced him (P.W. 4) and Ranjit to go to the edge of the river Brahmaputra and, then, accused Raju compelled him (P.W. 4) to take off all his cloths and made him naked. It is also in the evidence of P.W. 1 that accused Raju Borah forced him (P.W. 4) and Ranjit to go to the edge of the river Brahmaputra and, then, accused Raju compelled him (P.W. 4) to take off all his cloths and made him naked. It is the further evidence of P.W. 4 that he (P.W. 4) was asked to sit down on the ground and when he was ready to do so, accused Raju gave a blow with a dao aiming at his (P.W. 4's) neck, but as he (P.W. 4) sat down, the blow fell on his left shoulder instead of his neck. 16. From the evidence of P.W. 4, it also transpires that having suffered the injury on his shoulder, P.W. 4 fell into the water of the river and started swimming to save his life and, in the process, he covered a distance of about 4/5 kilometers before he reached the bank of the river. From the evidence of P.W. 4, it also transpires that after falling into the water, when he raised his head from under the water and looked back, he found accused Bharat and Raju giving blows on Ranjit and accused Bhim jumping into the water of the river and started chasing him (P.W. 4) in order to catch hold of him. Having swam away as mentioned hereinbefore, P.W. 4, according to what he has deposed, went to the house of Thagi Ram Bora (P.W. 3) and as he (P.W. 4) was naked, he (P.W. 4) put on a piece of cloth at the house of P.W. 3 and, then, came home. 17. On close scrutiny of evidence of P.W. 4, what attracts our attention is that he not only claims that he had gone to the house of P.W. 3 and put on apiece of cloth, he has also deposed that people arrived at the house of P.W. 3 and made queries from him and as the information, with regard to the occurrence, spread throughout, people gathered at the house of P.W. 3 and he told them about the incident. In short, P.W. 4 claims to have gone to the house of P.W. 3, put on apiece of cloth there and also told the people, at the house of P.W. 3, about the occurrence. 18. In short, P.W. 4 claims to have gone to the house of P.W. 3, put on apiece of cloth there and also told the people, at the house of P.W. 3, about the occurrence. 18. In the light of the evidence given by P W4, let us, now, consider the evidence given by P.W. 3 (Thogi Ram Bora). This witness has deposed that on the day of the occurrence, he was cutting firewood in the jungle and, at about 3.30 pm, he saw a boy named Babu (i.e., P.W. 4) coming shouting, "Ranjit has been cut, Ranjit has been cut". It is in the evidence of P.W. 3 that on hearing the shouts, he proceeded to the house of Ranjit and found the family members of Ranjit crying. What is also important to note in the evidence of P.W. 3 is that P.W. 3 claims that on going to the house of Ranjit, he made a query and came to know that Ranjit had been hacked and, later on, he came to know that accused Raju, Bhim and Bharat were the ones, who had hacked Ranjit and he saw injury on the person of Babu (P.W. 4). 19. It is extremely significant to note that in his cross-examination, P.W. 3 has clearly deposed that Babu (P.W. 4) did not tell him as to who had cut Ranjit. 20. Close on the heels of the evidence of P.W. 3, the evidence of P.W. 7, wife of P.W. 3, is that she knows all the accused persons, because they are her co-villagers and that deceased Ranjit and Babu (P.W. 4) were of the same age. 21. As regards the occurrence, P.W. 7 has deposed that on the day of the occurrence in the evening, she heard Babu going, along the road, shouting "Has been cut, has been cut"; but by the time she went out of her house, Babu (i.e. P.W. 4) passed the road and, at that time, her husband was not at home and, later on, she came to know that Ranjit had been killed by the accused persons. 22. 22. When the evidence of P.W. 4, who is, admittedly, the sole eye witness, on whose evidence the entire edifice of the prosecution's case rests, is considered in the light of the evidence of P.W. 3 and P.W. 7, irreconcilable discrepancies, belying the evidence of P.W. 4, become visible inasmuch as P.W. 4, we have also indicated above., has claimed that he had swam and, having reached the bank of the river, when he came out of the river water, he was naked and he, therefore, went to the house of P.W. 3 and put on a piece of cloth and it is at the house of P.W. 3 that many people gathered and he (P.W. 4) told them about the incident. 23. As against the evidence, so given by P.W. 4, P.W. 3's evidence, as already discussed above, is that he (P.W. 3) merely saw P.W. 4 running and shouting, "Ranjit has been cut, Ranjit has been cut"; and on hearing P.W. 4 so shouting, he (P W3) went to the house of Ranjit and found the members of his family crying. 24. Though it was claimed by P.W. 4 that he put a piece of cloth at the house of P.W. 3, people gathered at the house of P.W. 3 and they were informed by him (P.W. 4) about the incident, these assertions of P.W. 4 do not receive corroboration and support from the evidence of P.W. 3; rather, these assertions belie the evidence of P.W. 4. Similarly, even the evidence of P.W. 7, as discussed above, does not support the evidence of P.W. 4 inasmuch as P.W. 7, wife of P.W. 3, merely saw P.W. 4 going, on the road, shouting as mentioned above and by the time, she went out of her house, P.W. 4 had passed the road. 25. Coupled with the above, none has been examined by the prosecution to show that anyone had met P.W. 4 at the house of P.W. 3 and/or had been told, at the house of P.W. 3, about the occurrence by P.W. 4. 26. Situated thus, it is wholly impossible and highly unsafe to place reliance on the solitary testimony of P.W. 4 to hold the accused-appellants responsible for having caused injury on the shoulder of P.W. 4 and/or hold the two accused-appellants responsible for having caused multiple injuries on Ranjit leading to his death. 27. 26. Situated thus, it is wholly impossible and highly unsafe to place reliance on the solitary testimony of P.W. 4 to hold the accused-appellants responsible for having caused injury on the shoulder of P.W. 4 and/or hold the two accused-appellants responsible for having caused multiple injuries on Ranjit leading to his death. 27. Generally speaking, the witnesses fall into three distinct categories. Those, who are wholly reliable, and those, who are wholly unreliable. There is no difficulty in appreciating the evidence of any of these two categories of witnesses inasmuch as the Court can place reliance on a witness, who is found to be wholly reliable, and the Court has no option, but to reject the evidence of a witness, who is found to be wholly unreliable. The difficulty, however, arises in respect of appreciation of evidence of those witnesses, who are neither wholly reliable nor wholly unreliable. In the case of such a witness, the Court has to look for corroboration and can rely on such a witness's evidence provided that his evidence receives credible corroboration from other evidence, direct or circumstantial. 28. We are conscious of the principle that there is no impediment, in law, in basing conviction of an accused on the testimony of a solitary witness. However, we cannot be unmindful of the principle that such a witness has to be, ordinarily, a wholly reliable witness or else, his evidence would require some credible corroboration from other evidence, direct or circumstantial. 29. In the present case, since P.W. 4 claims to be the sole eye witness, he could have been relied upon provided his evidence was found to be wholly trustworthy and reliable. As we have already indicated above, the evidence of P.W. 4 is belied, on material aspects, by the evidence of P.W. 3 and P.W. 7. In such circumstances, it is impossible to treat P.W. 4 as a wholly reliable witness, particularly, when the credibility of the evidence, given by P.W. 3 and P.W. 7 were not questioned by the prosecution and have, consequently, not questioned in the present appeal too. 30. Even if, therefore, we do not reject the evidence of P.W. 4 by treating him as a witness, who is neither wholly reliable nor wholly unreliable, his testimony would obviously require some credible corroboration from other evidence, direct or circumstantial; whereas P.W. 4 receives no corroboration of his evidence. 30. Even if, therefore, we do not reject the evidence of P.W. 4 by treating him as a witness, who is neither wholly reliable nor wholly unreliable, his testimony would obviously require some credible corroboration from other evidence, direct or circumstantial; whereas P.W. 4 receives no corroboration of his evidence. In fact, his evidence is belied by the evidence of P.W. 3 and P.W. 7. 31. No doubt, P.W. 4 was an injured and, ordinarily, an injured witness's evidence is entitled to receive some consideration by the Court. In the case at hand, however, P.W. 4, as injured, is the only person, who has given evidence as to how he had sustained injury. In the absence of any other witness's evidence, whether the evidence, given by P.W. 4 as to how he had sustained the injury, is true or not, cannot be tested. 32. Logically, therefore, we find it frightfully difficult and wholly hazardous to place implicit reliance on the sole testimony of P.W. 4 and uphold the conviction of the accused-appellant on the strength of the evidence of P.W. 4 alone, when his evidence is belied by the evidence of P.W. 3 and P.W. 7. 33. Because of what have been discussed and pointed out above, we are of the considered view that in the facts and circumstances of the present case, the accused-appellants ought to have been given, at least, benefit of doubt by the learned trial Court. 34. In the result and for the reasons discussed above, both these appeals succeed. The conviction of the accused-appellants by the judgment and order, under appeal, are hereby set aside and they are directed to be released, forthwith, unless they are required to be detained in connection with any other case. 35. Before parting with this appeal, we wish to place on record some striking features of the present case, wherein we find serious illegalities having been committed not merely by the learned trial Court, but also by the Magistrate before whom accused Bhim was initially produced. 36. The learned trial Court, in the present case, framed charges, on 10.11.1997, under Sections 302, 326 and 201 read with Section 34 IPC. On the date the charges were so framed, only accused Bhim Bora was present and the other two co-accused, namely, Raju and Bharat Bora, were absent. 36. The learned trial Court, in the present case, framed charges, on 10.11.1997, under Sections 302, 326 and 201 read with Section 34 IPC. On the date the charges were so framed, only accused Bhim Bora was present and the other two co-accused, namely, Raju and Bharat Bora, were absent. In the absence of the said two accused, no charge could have been framed against them, though the learned trial Court could have, taking recourse to Section 34 IPC, framed charge by mentioning, in the body of the charge, that he (accused Bhim Bora) had alleged to have committed the offences aforementioned along with the other said two accused persons in furtherance of their common intention. To the charge, so framed, accused Bhim Bora could have been, and ought to have been, asked to plead guilty or not guilty. However, it was not done and charges were framed against all the three accused aforementioned, though two of the accused had been, at that point of time, absconding and the body of the charge did not mention that accused Bhim Bora had committed the offence aforementioned along with accused Raju and accused Bharat, in furtherance of their common intention. 37. The record also reveals that accused Bharat Bora and accused Raju had absconded and they were, formally, declared absconder by the learned trial Court on 23.11.2001, though charges against them had been framed as far back as on 10.11.1997. 38. What is also disturbing to note is that the learned trial Court passed an order, on 06.12.2001, directing summons to be issued to P.Ws. 1, 2 and 3, However, when P.W. 1 appeared as a witness on 24.12.2001, the learned trial Court declined to examine him on the ground that his statement had not been recorded, under Section 161 Cr. P.C., by the police; whereas there is no absolute bar in law disabling the prosecution from examining, at a trial, a witness, who might not have been examined by the police, during the course of investigation, though probative value of the evidence of such a witness would be a question of fact in a given case. 39. Be that as it may, P.Ws. 1 and 2 were present in the Court on 30.01.2002 and their evidence was recorded. Thereafter, the evidence of P.W. 3 was recorded on 05.05.2002, the evidence of P.Ws. 39. Be that as it may, P.Ws. 1 and 2 were present in the Court on 30.01.2002 and their evidence was recorded. Thereafter, the evidence of P.W. 3 was recorded on 05.05.2002, the evidence of P.Ws. 4 and 5 were recorded on 21.05.2002 and the evidence of P.W. 6 was recorded on 03.06.2002. On all these occasions, when the evidence of P.Ws. 1 to 6 was recorded, accused Raju and accused Bharat were absent. These two accused persons surrendered, on 17.08.2002, in the learned trial Court. On 16.09.2002, when all the three accused persons were present, P.W. 7 was examined and the learned trial Court directed that P.W. 1 to P.W. 6 be recalled along with further witnesses. 40. We may pause here to point out that the two absconding accused, namely, Raju and Bharat were never charged and they were never asked by the learned trial Court if they pleaded guilty or not guilty' to the charges on which they had been put on trial, though a trial, it is trite, commences with the framing of a charge. 41. Coupled with the above, the record reveals that though the witnesses, namely, P.W. 1 to 6, were directed to be recalled, these witnesses never appeared. There is, in fact, nothing in the materials on record to show that any process was ever served on them. There is also nothing on record to show that any of them was dead or could not have been found or their presence could not have been procured without an amount of delay, expense or inconvenience, which, under the circumstances of the case, was considered unreasonable. 42. We may, now, refer to Section 299 Cr. P.C., which reads as under: 299. Record of evidence in absence of accused. 42. We may, now, refer to 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 witnesses (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 inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an 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 witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India. 43. Section 299 Cr. P.C. is an exception to Section 273 Cr. P.C. and Section 33 of the Evidence Act inasmuch as Section 273 Cr. P.C. requires examination of a witness in the presence of the accused unless he is permitted to be represented by a counsel. Similarly, Section 33 of the Evidence Act makes the evidence of a witness, given in a judicial proceeding, or before any person authorized by law to record the evidence, for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts, which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense, which, under the circumstance of the case, the Court considers unreasonable. 44. 44. When an accused absconds, he takes, in the light of the provisions of Section 299 Cr. P.C., the risk of the evidence of the witness or witnesses examined in his absence, to be taken into account provided that the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expenses or inconvenience, which, under the circumstances of the case, would be unreasonable. 45. From a careful reading of Sub-Section (1) of Section 299, what becomes transparent is that in the absence of an accused, the recording of evidence of witnesses, produced on behalf of the prosecution, is not possible unless it is proved that the accused has absconded and there is no immediate prospect of his being arrested. 46. Thus, the decision to proceed, in the absence of an accused and record evidence of the witnesses produced by the prosecution, has to be, in exceptional cases and such a decision has to be taken before any witness is examined in the absence of the accused concerned. As indicated above, Section 299 Cr. P.C. is an exception to the general principle, embodied in Section 33 of the Evidence Act, that the evidence of a witness, where a party had no right or opportunity to cross-examine is not admissible against such a party. Section 299 CrPC is also an exception to Section 273 CrPC, which requires every witness to be examined, at the trial, in the presence of the accused unless his presence is dispensed with. Before the rigour of Section 299 Cr. P.C. are applied and/or availed of, the conditions precedent prescribed for taking resort to Section 299 must be satisfied. (See Abdul Rob Vs. State of Assam, reported in 2006(4) GLT 817). 47. Ideally, the Court shall record its satisfaction that the conditions precedent for applying Section 299 exist If, however, there is no specific order passed by the Court pointing out the reasons for its satisfaction that the conditions precedent for applying or invoking Section 299 exist, the appellate Court must interfere with the invoking of Section 299 unless the conditions precedent for invoking Section 299 are found by the appellate Court to be present. The question as to whether the conditions precedent for applying Section 299 exist or not has to determined by the appellate Court not merely because the trial Court has not recorded its satisfaction with the reasons assigned therefor, but because Section 299 cannot be applied unless the facts, enabling a Court to apply Section 299, are proved to exist. (See Nirmal Singh Vs. State of Haryana, reported in (2000) 4 SCC 41 ). 48. In Nirmal Singh (supra), it was contended, on behalf of the appellant, that the trial Court had not pointed out that the facts, enabling application of Section 299, existed and, hence, in such circumstances, Section 299 could not have been invoked. Dealing with this submission, the Supreme Court, in Nirmal Singh (supra), observed and held as follows: The entire argument of Mr. Gopal Subramanium, appearing for the appellant, is that any one of these circumstances, which permits the prosecution to use the statements of such witnesses; recorded under Section 299(1) must be proved and the court concerned must be satisfied and record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is 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 would be unreasonable. In the case in hand, there is no order of the learned trial Judge recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits P.W. -48/A to P.W. 48/E. 49. The Supreme Court, in Nirmal Singh (supra), did not accept the submissions, so made on behalf of the appellant, on the ground that the High Court had examined the matter and had recorded its finding that the factum of death of the witnesses concerned had been established for the purpose of invoking Section 299 Cr. P.C. The relevant observations, appearing in this regard, in Nirmal Singh (supra), at paragraph 5 and 6, read as under: 5. P.C. The relevant observations, appearing in this regard, in Nirmal Singh (supra), at paragraph 5 and 6, read as under: 5. It is true as already stated that the Sessions Judge had not recorded an order to that effect and it would have certainly been in compliance with the requirement of Section 299 that the Court, while such statements are tendered in evidence should have recorded as to how the preconditions of the second part of Section 299 of the Code of Criminal Procedure had been complied with. But when the appellate court examines the records of the proceedings and comes to a conclusion that in fact those persons have died long before the summons on them to appear as witness, could be issued, the evidence thus tendered cannot be ignored from consideration, particularly, in a case like the one where all other eyewitnesses, 22 in number did not support the prosecution on being examined and there has been a gruesome murder inasmuch as the appellant killed four persons by indiscriminately shooting at them from his rifle, which was given to him in the cantonment. The High Court has recorded a finding that the factum of death of five witnesses, namely P.W. 2 Chhotu, P.W. 12 Jai Lal, P.W. 15 Prem, P.W. 10 Zohri Singh and P.W. 11 Jage Ram, has been established for the purpose of Section 299 of the Code of Criminal Procedure. In fact in the case of Jose v. State of Kerala this Court had occasion to examine the question of treating the evidence of a witness in the committal court as substantive evidence in trial under Section 33 of the Evidence Act. This Court had recorded the fact that at the time of trial, the witness had left for Coorg and was not available and it was not possible to serve summons on him and even a non-bailable warrant issued by the Court was returned with the endorsement "not available" and it is under those circumstances, the learned Sessions Judge brought on record the statement made by the eyewitness before the committal court as substantive evidence and marked the same as P-25. This Court negatived the contention of the accused and held that the said statement had rightly been treated as evidence during trial. This Court negatived the contention of the accused and held that the said statement had rightly been treated as evidence during trial. The circumstances under which the statement of the witness in the committal court had been tendered and treated as substantive evidence during trial are almost similar to the case in hand and rather in the case in hand, the accused never raises the contention even in this Court that the persons are not dead but raises the sole contention that it has not been established by the prosecution that the persons are not dead. As has been stated earlier, the High Court did record a conclusion on examining the records of the proceedings that the witnesses are dead and, therefore, their former statements under Section 299 could be treated as evidence. We see no infirmity with the said conclusion of the High Court and we are, therefore, not in a position to sustain the argument of Mr. Gopal Subramanium, learned senior counsel appearing for the appellant that the preconditions of Section 299 CrPC have not been complied with. Once the statements of those witnesses, exhibited as Exhibits P.W. -48/A to P.W. -48/E, are considered, and the Sessions Judge as well as the High Court have relied upon the same and based the conviction, we see, no infirmity in the same, requiring our interference with the conviction and sentence recorded by the High Court. In the aforesaid circumstances, it must be held that the prosecution case has been proved beyond reasonable doubt. 6. These appeals fail and are accordingly dismissed. 50. In the case at hand, apart from the fact that the learned trial Court has not recorded its satisfaction anywhere that any of the conditions precedent for applying Section 299 existed, the examination of the record by us has revealed that there is nothing to show that the witnesses concerned, particularly, P.W. 3 and P.W. 4, were dead or were incapable of giving evidence or could not be found or their presence could not have been procured without an amount of delay, expenses or inconvenience, which, under the circumstances of the present case, was unreasonable. In such a situation, the examination of P.W. 1 to 6 could not have been dispensed with, particularly, when we find that P.W. 4 is the solitary eye witness examined by the prosecution. In such a situation, the examination of P.W. 1 to 6 could not have been dispensed with, particularly, when we find that P.W. 4 is the solitary eye witness examined by the prosecution. Under no circumstances, therefore, his evidence and the evidence of P.W. 3 could have been dispensed with unless the Court had reached, and had reasons to reach, the conclusion that any of the conditions precedent, for applying Section 299, stood satisfied. 51. Situated thus, it is clear that in the absence of P.Ws. 3 and 4 having been recalled and in the absence of accused Bharat and/or accused Bhim Bora having declined to cross-examine P.W. 3 and P.W. 4, the learned trial Court could not have dispensed with their evidence and could not have taken into account their evidence for the purpose of finding the accused-appellant, Raju, guilty of the offences, which he stands convicted of, without any material on record showing that P.W. 3 and P.W. 4 were dead, or were incapable of giving evidence, or could not be found, or their presence could not have been procured without an amount of delay, expenses or inconvenience, which, under the circumstances of the present case, was unreasonable. 52. We have also noticed, on perusal of record, that the Sub-Divisional Magistrate, North Lakhimpur, declined to record the confessional statement of accused Rajumoni Bora on the ground that he did not have the jurisdiction; whereas, Section 164 Cr. P.C. makes it more than abundantly clear that a Magistrate, who may not have territorial jurisdiction, is competent to record confession as well as statement under Section 164 Cr. P.C. inasmuch as Section 164(1) states that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation. 53. In the face of the illegalities, which have been committed by the learned Courts below, we would have, ordinarily, remanded the case for an appropriate trial, but considering the fact that the evidence, which became the basis of conviction of the accused-appellant Bhim Bora, have been found by us to be inadequate to sustain his conviction, too, we have allowed the appeals, which have been preferred by the accused Raju and his co-accused, Bhim Bora. 54. Let the learned Amicus Curiaes be paid a sum of Rs. 54. Let the learned Amicus Curiaes be paid a sum of Rs. 5,000/- each for their valuable assistance rendered to this Court. Send back the LCR with a copy of this judgment and order. Appeal allowed