The Supreme Court has held that evidence recorded during the trial of a co-accused cannot be relied upon against an absconding accused in a later trial unless the mandatory requirements of Section 299 of the Code of Criminal Procedure (now reflected in Section 336 of the Bharatiya Nagarik Suraksha Sanhita) were strictly complied with at the time the evidence was originally recorded. 

The bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran has allowed the criminal appeal and acquitting the appellant after finding that the prosecution had failed to establish the legal foundation necessary to rely upon testimony recorded in an earlier trial. 

The prosecution alleged that a murder took place on 1 April 1999. According to eyewitnesses, the appellant Mahendra Singh was allegedly sitting on the victim’s chest and strangulating him, while another accused was said to have exhorted the assault and threatened bystanders from intervening.

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After the incident, the appellant allegedly absconded. Consequently, the case against him was separated, while the co-accused was tried independently and ultimately acquitted. The appellant was arrested much later, on 11 September 2017, and thereafter faced a separate murder trial. 

During this subsequent trial, the prosecution encountered serious evidentiary difficulties. The principal eyewitness whose testimony had strongly implicated the appellant had died before the fresh trial commenced. Other eyewitnesses turned hostile, while another witness failed to identify the appellant in court and admitted that there were two persons bearing the same name in the village, making identification uncertain. 

The primary question before the Supreme Court was whether testimony recorded during the earlier trial against the co-accused could legally be relied upon against the appellant in his later trial despite the appellant never having had an opportunity to cross-examine that witness.

The Court answered this question in the negative.

The Bench extensively examined the legal framework governing Section 299 CrPC, which creates a limited exception to the general rule that an accused has an indispensable right to cross-examine prosecution witnesses.

The Court reiterated that Section 299 operates only when two jurisdictional conditions are first established the accused is absconding; and there is no immediate prospect of securing his arrest.

Only after a court records its satisfaction regarding both these conditions can evidence be recorded in the accused’s absence. Even then, such evidence can later be used only if the witness has died, become incapable of giving evidence, cannot be located, or cannot reasonably be produced before the court. 

Relying upon earlier landmark decisions including Nirmal Singh v. State of Haryana, Jayendra Vishnu Thakur v. State of Maharashtra, and Sukhpal Singh v. NCT of Delhi, the Supreme Court reaffirmed that both jurisdictional requirements under Section 299 must be established conjunctively and not merely presumed.

The Bench emphasized that the court recording evidence must itself examine the material and expressly record findings regarding both conditions before invoking Section 299. Mere issuance of proclamation proceedings or the fact that an accused is unavailable does not automatically justify recording evidence under the provision. 

Applying these principles, the Supreme Court found that when the original proceedings were conducted against the co-accused in 1999, no court had passed any order under Section 299 recording satisfaction that the appellant had absconded and that there was no immediate possibility of arresting him.

Because this foundational requirement was absent, the earlier testimony of the deceased eyewitness could not legally be read against the appellant during his subsequent trial.

The Court observed that compliance with Section 299 must occur at the stage when the accused is absconding—not years later after the accused has been apprehended. Since no such order existed, the prosecution could not rely upon the previous testimony to secure a conviction. 

The Supreme Court held that once the inadmissible testimony was excluded, the remaining evidence was insufficient to establish the appellant’s guilt. The surviving eyewitnesses had either turned hostile or failed to identify the appellant, leaving the prosecution without reliable evidence connecting him to the offence.

Accordingly, the Court allowed the appeal, acquitted the appellant of all charges, and directed that he be released if in custody. If already on bail, his bail bonds were ordered to stand cancelled. 

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