Evidence recorded in the absence of an accused cannot form the basis of their conviction.

The appellant was convicted by the trial court for murder (Section 302/149 IPC) and related offenses stemming from a 2008 shooting incident that resulted in the death of Vijay Kumar Singh and injuries to Pintu Singh.

Notably, the Investigating Officer initially exonerated the appellant, filing a charge-sheet only against four other accused.

The appellant was later summoned to face trial under Section 319 Cr.P.C. based on evidence recorded in his absence.

During the actual trial against him, both the injured complainant (PW-1) and the deceased’s uncle (PW-2) testified that the appellant was not present at the scene and had been falsely implicated.

Despite this, the trial court convicted him by relying on testimonies of witnesses recorded before he was summoned as an accused.

1. Whether evidence recorded in the absence of an accused person, prior to their being summoned under Section 319 Cr.P.C., can form the legal basis for their conviction.

2. Whether the trial court erred in ignoring the testimonies of prosecution witnesses recorded in the presence of the appellant which exonerated him.

Section 273 Cr.P.C., which mandates that all evidence must be taken in the presence of the accused.

Standard for summoning (appearance of guilt) under Section 319 Cr.P.C. is distinct from the standard for conviction, as clarified in Hardeep Singh v. State of Punjab.

Section 299 Cr.P.C. and Section 33 of the Evidence Act, noting that prior statements are only admissible under strict exceptions (e.g., death or unavailability of the witness), as established in Nirmal Singh v. State of Haryana and Jayendra Vishnu Thakur v. State of Maharashtra.

The High Court found that the trial court committed a fundamental procedural error by relying on the statements of Ajay Kumar Singh and Indrapal Singh recorded before the appellant was a party to the trial.

Under Section 273 Cr.P.C., such evidence is inadmissible against the appellant because it was not recorded in his presence, depriving him of the right to cross-examine.

The court noted that once the appellant was summoned, the witnesses were re-examined; in these subsequent lawful proceedings, the witnesses categorically stated the appellant was not involved.

The Court emphasized that witnesses who are close relatives of the victim (PW-2) had no motive to falsely defend the accused.

Consequently, since the only legal evidence on record exonerated the appellant, the conviction lacked any evidentiary foundation.

The High Court allowed the appeal, setting aside the judgment and order dated 28.03.2026, acquitting the appellant of all charges and ordering his release forthwith.