Evidence recorded while an accused was absconding cannot be used in a later trial without a valid Section 299 CrPC order, Supreme Court rules

The appellant and another accused were charged with murdering a person on 1 April 1999. The prosecution alleged that the appellant assaulted and strangulated the deceased, while the co-accused allegedly exhorted and threatened bystanders

The appellant absconded, whereas the co-accused was tried separately and acquitted. The appellant was arrested on 11 September 2017 and subsequently tried

By then, the principal eyewitness, PW1, had died; other eyewitnesses turned hostile, and PW2, although claiming to have seen the assault, did not identify the appellant

The trial court and High Court relied on PW1’s testimony recorded during the earlier proceedings against the co-accused. However, no order had been passed under Section 299 of the Code of Criminal Procedure, 1973 (“CrPC”), either at committal or at the commencement of the earlier trial, recording that the appellant was absconding and that there was no immediate prospect of arresting him

Whether evidence recorded during the trial of a co-accused, while the appellant was absconding and was tried separately, could be used against the appellant in a subsequent trial after his arrest

Whether the requirements of Section 299(1) CrPC—proof that the accused was absconding and that there was no immediate prospect of arresting him—had to be affirmatively established by a court order before such evidence could later be relied upon

Whether the prior testimony of PW1 could be relied upon despite the absence of an order under Section 299 CrPC and the appellant’s lack of opportunity to cross-examine PW1

The Court applied Section 299 CrPC, which permits evidence to be recorded in the absence of an accused only when the court is satisfied, on proof, that the accused has absconded and that there is no immediate prospect of arresting him; such evidence may subsequently be used only when the witness is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense, or inconvenience

The two jurisdictional facts under the first part of Section 299(1) must be established conjunctively through cogent evidence and a definite finding by the court

The Court treated Section 299 as an exception to Section 33 of the Indian Evidence Act, 1872, under which prior testimony is generally admissible only where the opposing party had the right and opportunity to cross-examine the witness

The Court relied on Nirmal Singh v. State of Haryana, (2000) 4 SCC 41; Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104; and Sukhpal Singh v. NCT of Delhi, 2024 SCC OnLine SC 800, which require strict proof of the statutory conditions before Section 299 evidence can be used

Section 299 CrPC required the court dealing with the earlier proceedings to first record a finding, based on evidence, that the appellant was absconding and that his immediate arrest was not reasonably possible

Although PW1’s subsequent death could satisfy the later condition concerning the witness’s availability, that condition could not cure the complete absence of the earlier jurisdictional order. Since no order under Section 299 had been passed at the committal or trial stage, PW1’s testimony was not lawfully preserved for use against the appellant in a later trial

Further, the remaining evidence did not independently establish the appellant’s identity or guilt: PW2 did not identify him, other witnesses turned hostile, and the evidence disclosed that two persons named Mahendra Singh lived in the locality

The appellant therefore had no opportunity to cross-examine PW1, and the prosecution could not rely on his prior testimony as an exception to the ordinary rule protecting the right of cross-examination

The conviction could not be sustained. The appeal was allowed, the appellant was acquitted, and he was directed to be released if in custody; if already on bail, his bail bonds were cancelled