Appeal against the judgment of the High court confirming the conviction of Trial court
1. The instant appeal is directed against the judgment dated 7th January, 2010 passed by the High Court of Delhi in Criminal Appeal No. 296 of 2003 whereby the appeal filed by the appellant against the judgment and order of conviction and sentence dated 6th March, 2003 passed by the learned Additional Sessions Judge, Karkardooma Courts, Delhi (hereinafter being referred to as the ‘trial Court’) was rejected.
Conviction for the offence section 302 IPC
2. By the said judgment, the trial Court convicted the accused appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860(hereinafter being referred to as the ‘IPC’) and sentenced him to life imprisonment and fine of Rs.2000/-(in default further rigorous imprisonment for six months).
Complainant was not produced for deposition but he was examined on oath in proceedings under section 299 Cr.P.C
12. It is relevant to mention here that the complainant Ashok Kumar Pathak, was not produced for deposition in the trial which resumed after the arrest of the accused appellant. The trial Court held that the non-examination of complainant Ashok Kumar Pathak was not a deliberate act of the prosecution and rather the same was beyond the control of prosecution. The trial Court further found that complainant Ashok Kumar Pathak was examined on oath on 17th July, 1991 in proceedings under Section 299 CrPC. In this sworn statement, Ashok Kumar Pathak proved his signature on the statement[Exhibit PW-1/A(which led to registration of FIR)] made by him to the police on 20th May, 1990 and gave a detailed account of the sequence of events witnessed by him. The complainant Ashok Kumar Pathak could not be examined in the trial proceedings post arrest of the accused as he could not be found at the address given in the FIR despite all sincere efforts.
Since complainant could not be located his sworn deposition was read in evidence as per section 299 Cr.P.C
13. The trial Court held that since Ashok Kumar Pathak could not be located despite genuine efforts, his sworn deposition recorded in absence of the accused appellant was liable to be read in evidence as per the provisions of Section 299 CrPC. Accordingly, the said statement was relied upon as a piece of incriminating evidence against the accused appellant.
Trial court also treated the confession note as admisstion
14. The trial Court also placed reliance on the confession note/letter(Exhibit PW-12/E) holding that the same was found to be in the handwriting of the accused appellant by the handwriting expert(PW-24) vide report(Exhibit PW-12/F). The said confession was treated to be an admission and a strong link of incriminating circumstantial evidence against the appellant.
High court rejected the appeal by holding the confession note proved appellant culpability
16. The appeal preferred by the accused appellant in the High Court of Delhi was rejected by learned Division Bench of High Court vide judgment dated 7th January, 2010 holding that the confession note(Exhibit PW-12/E) written by the accused appellant proved his culpability in the crime. The prosecution had established that the accused appellant was in company of the deceased Usha at her house where she was murdered in the intervening night of 19th and 20th May, 1990. The prosecution also established that the deceased was done to death by violence in the said intervening night and that the accused appellant had absconded to flee from justice which established his guilty conduct.
Hence present appeal
17. The accused appellant has challenged the above judgment affirming his conviction and sentence through this appeal by special leave.
Discussion and Conclusion
Appellant side argued that section 299 cr.p.c is the statement recorded under section 161 cr.p.c
23. The main thrust of submissions advanced by Shri Ambreesh Kumar Aggarwal, learned legal aid counsel representing the appellant so as to criticise the findings of the trial Court and the High Court was 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. As per Shri Aggarwal, only the Section 161 CrPC statement of complainant Ashok Kumar Pathak was exhibited by the Investigating Officer(PW-13) and he never stepped into the witness box.
Through the warrant of arrest IO attempted all the possibilities to locate the accused but the appellant/accused was absconded
24. In order to verify this fervent submission of learned counsel for the appellant, we carefully sifted through the record and find that the submission so made is without any foundation. The accused appellant was absconding and could not be arrested and thus, the Investigating Officer(PW-13) made all possible efforts including the procurement of warrant of arrest, attempt to serve the same at the village of the appellant, i.e., Khatta, U.P. He tried to locate the accused appellant at various locations, without any success. The warrant which is available on record clearly bears the address of the accused appellant as Khatta, Prahladpur, Bagpat, U.P.
After the proclamation and attachment proceedings IO has filed charge sheet under section 299 crpc
25. Even proceedings of proclamation and attachment were undertaken under Sections 82 and 83 CrPC but to no avail because the accused appellant had vanished after the crime and was not traceable at the crime scene or at his known address i.e. village Khatta, U.P. The fact regarding his abscondence was also published. Accordingly, a charge sheet came to be filed under Section 299 CrPC showing the accused appellant to be an absconder.
Proceedings under section 299 crpc was not questioned before any court of law
26. The trial Court passed an order dated 18th March, 1991 declaring the accused appellant to be an absconder and permission was granted to the prosecution to proceed with the trial by resorting to the procedure under Section 299 CrPC. This order was never questioned before any court of law.
Trial judge recorded the statement of complainant under section 299 crpc
27. The trial Judge recorded the statement of Ashok Kumar Pathak, the complainant as PW-1 under Section 299 CrPC on 17th July, 1991 after administrating oath to him which begins in the following manner: –
“Shri Ashok Kumar Pathak, s/o Shri Ram Puran aged 28 years, R/O Kartar Nagar, Gali No. 14, Delhi on S.A.(sworn affirmation)”
Hence the arguments advanced for the appellant that only section 161 crpc was exhibited is sheer ignorance
29. In this background, the fervent submission of the learned counsel for the appellant that the prosecution only exhibited the statement of complainant Ashok Kumar Pathak recorded under Section 161 CrPC and that he was never examined on oath in proceedings under Section 299 CrPC seems to have been made out of sheer ignorance and without ascertaining the correct position from the original record.
Procedure under section 299 crpc is being explained
30. Section 299 of CrPC expressly provides for the power of the Court to record evidence in absence of the accused in the following term: –
“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 or 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.”
As per section 299 crpc if a deposition was taken in the absence of accused and the deponent is dead or incapable of giving evidence the same may be used against the accused
31. Sub-section (1) of Section 299 CrPC is in two parts, the first part provides for proof of jurisdictional fact in respect of abscondence of an accused person and the second that there was no immediate prospect of arresting him. In the event, an order under the said provision is passed, deposition 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 without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
Hon’ble Supreme Court has placed reliance in the following judgments for section 299 crpc read with section 33 of Indian Evidence Act
Nirmal Singh v. State of Haryana – (2000) 4 SCC 41
Jayendra Vishnu Thakur v. State of Maharashtra & Another – (2009) 7 SCC 104
Complainant has illustrated everything about the crime and he has no motive to falsely implicate the accused for murder
36. Thus, the circumstances of motive, last seen, confession and abscondence from the crime scene after committing the crime are all spoken to by the witness Ashok Kumar Pathak(PW-1) in his statement dated 17th July, 1991(reproduced supra) recorded on sworn affirmation during the proceedings under Section 299 CrPC. It may be stated here that Ashok Kumar Pathak had no motive whatsoever to falsely implicate the accused appellant for the murder of Usha.
Homicidal death is not in dispute
37. The fact regarding Usha’s homicidal death is not in dispute. The Medical Jurist(PW-15) gave categoric testimony to the effect that Usha had been manually strangled and the cause of death was Asphyxia. Thus, we need not discuss the medical evidence in detail.
Statement of the complainant provides complete chain of circumstances to establish the guilt
38. The statement of Ashok Kumar Pathak by itself provides a complete chain of circumstantial evidence sufficient to establish the guilt of the accused appellant. The accused appellant vanished from the crime scene and remained absconding for a period of nearly 10 years. He could be apprehended on 9th August, 2000, whereafter, regular trial was conducted. During the period of abscondence of the accused appellant, the complainant Ashok Kumar Pathak seems to have left his house at Kartar Nagar, Delhi where he used to reside earlier. Despite ample efforts being made by the Investigating Agency to summon and examine Ashok Kumar Pathak, he could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested.
As per section 299 crpc r/w 33 IEA with combined reading of Apex court judgments the statement recorded is fit to be read as piece of substantive evidence
39. Viewed in light of the provisions of Section 299 CrPC 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 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.
Party
SUKHPAL SINGH ….APPELLANT(S) VERSUS NCT OF DELHI ….RESPONDENT(S) – CRIMINAL APPEAL NO(S). 55 OF 2015 – 2024 INSC 385 – May 07, 2024
Sukhpal singh vs. NCT of delhi 163272013_2024-05-07
