Deposition of witness in the absence of accused when can be used under Section 299 CrPC- SC

Case title: Sukhpal Singh v. NCT of Delhi

Case no: Criminal Appeal No(S). 55 Of 2015

Dated on: 07th May 2024

Quorum: Justice B.R. Gavi and Justice Sandeep Mehta

Facts of the case:

This appeal is against the judgment passed by the High Court of Delhi against the conviction order passed by the Additional Sessions Judge. The trial Court convicted the accused appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine of Rs.2000/- (in default further rigorous imprisonment for six months). The accused appellant was married to Usha and had three children. Due to matrimonial strife, the appellant left his wife Usha and started residing at his village. Bhajan Pura Police Station received wireless message on 20th May 1990 and upon visit of police officials, Delhi it was found that Usha w/o the appellant was found lying dead with abrasions, scratches and other injury marks. The police officials claim to have recovered a handwritten note from the crime scene indicating that the Appellant was the killer of Usha. The prosecution examined Ashok Kumar Pathak who is residing in the immediate vicinity of House where the victim was residing with her husband, the accused and three children. The witness stated that, four days prior to the alleged occurrence of the incident, accused visited Usha and quarreled with her. On the next day, Usha’s sister, Sudha took the three children and went to her house. On 19th May 1990, prior to the incident, he had seen the spouses talking but the next morning since there was no noise he went to their house and found Usha lying dead. Sukhpal was not present.  The statement of Ashok Kumar Pathak was taken as a complaint and based on which FIR was registered under Section 302 IPC. The postmortem report showed cause of death as “Asphyxia resulting from manual strangulation”. A confession letter was found. The Investigating Officer collected two letters purportedly written by the accused appellant from the employer. The accused appellant fled from the crime scene. Efforts were made to trace him but later he was declared to be a proclaimed offender and a charge sheet was filed under Section 299 CrPC. The accused appellant was apprehended on 9th August 2000. His specimen handwritings were obtained and thereafter, the confession note along with admitted handwritings collected from the employer were sent to FSL for comparison. The handwriting expert opined that handwriting of confession letter/note was that of the accused appellant. The Trial court by relying on circumstantial evidence, convicted the accused appellant vide judgment dated 6th March, 2003. The appeal preferred by the accused appellant in the High Court of Delhi was rejected by Division Bench of High Court vide judgment dated 7th January 2010 holding that the confession note written by the accused appellant proved his culpability in the crime. The accused appellant has challenged the above judgment affirming his conviction and sentence through this appeal by special leave.

Issues:

Whether the Accused Appellant is guilty of crime charged under Section 302 IPC and Section 299 Crpc?

Legal provisions:

Section 302 IPC- Murder.  

Contentions of the appellant:

The trial Court as well as the High Court committed grave factual error by holding that complainant Ashok Kumar Pathak was examined on oath in proceedings under Section 299 CrPC. This finding is contrary to the record because the statement of complainant Ashok Kumar Pathak relied upon by the trial Court and the High Court is actually the statement recorded by the SHO, under Section 161 CrPC. The confession note is a fabricated piece of evidence because the prosecution did not make any attempt to get the two admitted documents compared with the confession note. The handwriting expert’s report and the testimony of the handwriting expert is not reliable, since the expert did not give any opinion after comparing the admitted writings with the confession note (Exhibit PW-12/E). The evidence of Sudha is totally unreliable and not trustworthy and deserves to be discarded. The possibility of Usha having been murdered by some other person cannot be ruled out. The case is based purely on circumstantial evidence. The entire chain of incriminating circumstances leading to the guilt of the accused was not established by clinching evidence and hence conviction of the accused appellant is unsustainable and should be set aside.

Contentions of the respondent:

The chain of incriminating circumstances is complete in all aspects thereby pointing towards the guilt of the accused. The statement of Ashok Kumar Pathak recorded as PW-1 during proceedings under Section 299 CrPC was rightly relied upon as admissible and reliable piece of evidence. The non-examination of Ashok Kumar Pathak during trial is not a deliberate as the witness could not be traced by the prosecuting agency in spite of best efforts. The prolonged abscondence of the accused is the why Ashok Kumar Pathak could not be examined. The evidence of Ashok Kumar Pathak established the presence of accused appellant with Usha on intervening night of 19th/20th May, 1990, where after, Usha was found murdered and the accused was found absconding. The testimony of Usha’s sister Sudha establishes that the accused appellant used to quarrel with Usha suspecting her infidelity and there were repeated altercations between the spouses. The report submitted by the handwriting expert, proves that the handwriting on the confession note recovered from the crime scene matched with the handwriting on the two admitted documents collected from the employer and specimen handwritings of the accused appellant to the police. The prosecution has proved the case against the accused appellant through convincing chain of incriminating circumstantial evidence.

Courts analysis and Judgement:

The counsel representing the appellant criticized the findings of the trial Court and the High Court by stating that both the Courts erred in holding that the statement of complainant Ashok Kumar Pathak had been recorded on oath in the proceedings under Section 299 CrPC. The Section 161 CrPC statement of complainant Ashok Kumar Pathak was exhibited by the Investigating Officer whereas was never examined in the witness box. The submission so made is without any foundation. The accused appellant was absconding and could not be arrested. The Investigating Officer made all possible efforts such as procurement of arrest warrant, attempt to serve the same at the village of the Appellant. The proceedings of proclamation and attachment were undertaken under Sections 82 and 83 CrPC but still the appellant was not traceable. The trial Court declaring the accused appellant to be an absconder and gave permission to proceed with the trial under Section 299 CrPC. This order was never questioned too. Apart from Ashok Kumar Pathak, three more witnesses, were also examined on oath in proceedings under Section 299 CrPC. Hence, the submission for the appellant that Ashok Kumar Pathak was never examined on oath in proceedings under Section 299 CrPC have been made out of sheer ignorance and without ascertaining the correct position. The dep osition of any witness taken in the absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured. In Nirmal Singh v. State of Haryana it was mentioned that “before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure. The statement of Ashok Kumar Pathak gives proof that the accused appellant Sukhpal was married to Usha(deceased). There was marital strife between the spouses on suspicion of infidelity of Usha. The accused suspected infidelity of Usha imputes a strong motive to the accused for her murder. In view of the above discussion, the prosecution has established the following links in the chain of incriminating circumstantial evidence: – (i) Motive; (ii) Last seen together; (iii) Medical evidence (iv) Confessional note; (v) Abscondence for nearly 10 years; (vi) Wrong explanation in his statement under Section 313 CrPC; (vii) Failure of the accused to explain death of his wife when only the accused and deceased were present. The view taken by the trial Court and the High Court in convicting and affirming the conviction of the accused appellant for the charge of committing murder of Usha is confirmed. The impugned judgments do not suffer from any infirmity warranting any interference. Hence, the appeal fails and is hereby dismissed. The appellant’s bail bonds are cancelled. The Appellant shall surrender before the trial Court within the next 60 days to serve the remainder of the sentence.

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Judgement reviewed by- Parvathy P.V.
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