Supreme Court: In a criminal appeal against the Delhi High Court’s decision whereby the convict’s (convict-husband) appeal against the conviction and life imprisonment sentence passed by the Trial Court for the offence punishable under Section of the , was rejected, the Division Bench of BR Gavai and Sandeep Mehta*, JJ. considering the motive, last seen together, medical evidence establishing that the cause of death, confessional note, abscondence for nearly 10 years, dismissed the appeal and upheld the Trial Court’s and High Court’s decisions.
The Bench cancelled his bail bond and directed him to surrender before the Trial Court within the next 60 days to serve the remainder of the sentence.
Factual Matrix
On 20-05-1990, the deceased- wife was found lying dead in the house. Abrasions, scratches and other injury marks with bleeding were noticed on the neck, mouth, shoulder and private parts of the deceased-wife. Marks of dragging were also found on the right leg below the knee. The police officials claimed that a handwritten note was recovered from the crime scene bearing a recital indicating that the scribe was deceased-wife’s killer. The prosecution alleged that the said note was written by the convict-husband. The prosecution’s case was that efforts were made to trace the convict husband and subsequently, he was declared to be a proclaimed offender and a charge sheet was filed against him under Section of the (CrPC) by showing him to be an absconder. The convict was apprehended on 09-08-2000 i.e. nearly after ten years of the incident and gave a disclosure statement pointing out the place of incident. His specimen handwritings were obtained while he was in police custody. The handwriting expert had opined that the confession note recovered from the crime scene was in the convict husband’s handwriting.
Complainant’s Statement
The complainant stated that convict-husband suspected his deceased wife of infidelity which often led to quarrels between them and, therefore, he had left his wife and children and started residing in the village. However, he visited them sometimes and four days prior to the alleged occurrence, convict husband had visited deceased wife, and he went away following a quarrel. The convict husband had also visited a day prior to the incident. On the next morning the witness saw convict husband’s cycle parked in the courtyard and presumed that he was inside the house and at about 5.30 p.m., when he called out from outside, but nobody responded, he went into the room and found deceased wife lying dead on a cot.
Analysis and Decision
Regarding the main contention that both the Trial Court and the High Court erred in holding that the statement of complainant were recorded on oath in the proceedings under Section of the , the Court said that the submission had no basis as, when the convict husband was absconding and could not be arrested after all possible efforts including the procurement of warrant of arrest, attempt to serve the same at the village, proceedings of proclamation and attachment were undertaken under Sections and of the but to no avail because he had vanished after the crime and was not traceable at the crime scene or at his known address. The Court also noted that the Trial Court passed an order dated 18-03-1991 declaring the convict husband to be an absconder and permitted to proceed with the trial by resorting to the procedure under Section of the and complainant’s statement was recorded as Prosecution witness under Section of the , after administrating oath to him. Hence, the Court said that the submission that -prosecution only exhibited the statement of complainant recorded under Section and that he was never examined on oath in proceedings under Section of the was made out of sheer ignorance and without ascertaining the correct position from the original record.
Further, the Court perused Section of the , which expressly provides for the power of the Court to record evidence in absence of the 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.
While discussing Section of the , the Court said that Section 299(1) is in two parts, 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 and when an order is made under the said provision, 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.
Further, the Bench relied on Nirmal Singh v. State of Haryana , wherein, while considering the issue that under what circumstances and by what method, the statement of a witness under Section of the could have been tendered in the case for being admissible under Section of the and whether they can form the basis of conviction, held 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 of the 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 of the is established.”
On perusing the complainant’s statement, the Court said that the circumstances of motive, last seen, confession and abscondence from the crime scene after committing the crime were all spoken to in the statement which was recorded on sworn affirmation during the proceedings under Section of the ., as it was clarified that the convict husband suspected infidelity and this formed a strong motive for deceased wife’s murder and that the complainant had stated that the note was written in the handwriting of the convict husband and he was able to identify the same on account of having worked together with the convict husband in the same organization. The Court added that complainant’s statement by itself provided a complete chain of circumstantial evidence sufficient to establish the guilt.
Hence, the Court held that the Trial Court was justified in holding that the complainant’s statement of recorded in these proceedings was fit to be read as a piece of substantive evidence. Thus, the Court confirmed the Trial Court and High Court’s decision in convicting and affirming the conviction of the convict husband for the charge of murdering his wife.
CASE DETAILS
Citation: Appellants : Sukhpal Singh Respondents : State (NCT of Delhi) | Advocates who appeared in this case For Appellant: AOR Ambreesh Kumar Aggarwal For Respondent: Adv. Sanjay Kumar Tyagi, Adv. Rajan Kumar Chourasia, Adv. Sweksha, AOR Mukesh Kumar Maroria |
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