Witness Statement Recorded In Absence Of Accused Can Be Used As Evidence If Conditions In S.299 CrPC Are Fulfilled : Supreme Court

In a recent judgment, the Supreme Court held that the statements of the prosecution witness recorded in the absence of the accused can be read as a substantive piece of evidence when the prosecution witness could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested.

Affirming the decision of the High Court and Trial Court, the bench comprising Justices BR Gavai and Sandeep Mehta observed that the statements of the prosecution witness recorded in the absence of the accused under Section 299 of Cr.P.C. (i.e., when an accused person has absconded, and that there is no immediate prospect of arresting him) could be used against the accused after his arrest in the event of non-availability of the prosecution witness.

The Judgment authored by Justice Sandeep Mehta relied on the Judgment of Nirmal Singh v. State of Haryana, where the court considered the issue of under what circumstances, the statement of a witness recorded under Section 299 of Cr.P.C. would become admissible under Section 33 of the Indian Evidence Act, 1872.

Section 299 of Cr.P.C. is considered to be an exception to Section 33 of the Evidence Act. This means thereby, the statements of the witness recorded under Section 299 of Cr.P.C. wouldn't be hit by Section 33 of the Evidence Act, which provides that the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible.

“This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, 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 court said in Nirmal Singh v. State of Haryana.

“On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 CrPC before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established…”, the court clarified in Nirmal Singh.

In the present case, the appellant/accused had challenged his conviction against the offence of murder under Section 302 of IPC.

The prosecution witness who made statements under Section 299 of Cr.P.C. against the accused could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested despite ample efforts being made by the Investigating Agency to summon and examine the witness. Therefore, the court upheld the decision of the trial court which had justified the statements of the prosecution witness to be read as a substantive piece of evidence.

“Viewed in light of the provisions of Section 299 Cr.P.C. read with Section 33 of the Indian Evidence Act, 1872 as interpreted by this Court in the case of Nirmal Singh (supra) and Jayendra Vishnu Thakur(supra), the trial Court was justified in holding that the statement of Ashok Kumar Pathak (prosecution witness) recorded in these proceedings was fit to be read as a piece of substantive evidence. We concur with the findings recorded by the trial Court and affirmed by the High Court on this vital aspect of the matter.”, the court said.

The appeal was accordingly dismissed.

Counsel For Appellant(s) Mr. Ambreesh Kumar Aggarwal, AOR (SCLSC)

Counsels For Respondent(s) Mr. Rajan Kumar Chourasia, Adv. Mr. Sanjay Kumar Tyagi, Adv. Ms. Seksha, Adv. Mr. Mukesh Kumar Maroria, AOR

Case Title: SUKHPAL SINGH VERSUS NCT OF DELHI

Citation : 2024 LiveLaw (SC) 359

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