Supreme Court Holds Prior Witness Testimony Against Absconding Accused Inadmissible Without Section 299 Order; Acquits Murder Accused After Eighteen-Year Delay
Supreme Court Acquits Accused After Finding No Section 299 Order Permitting Use of Earlier Witness Statements
Facts
The appellant, Mahendra Singh, was prosecuted for the murder of a person allegedly committed on 1 April 1999 along with another accused. While the co-accused faced trial, the appellant absconded and his case was separated. The co-accused was ultimately acquitted. The appellant was arrested nearly 18 years later, on 11 September 2017, and was tried separately. During his trial, the prosecution relied heavily on the testimony of a key eyewitness (PW-1) recorded during the earlier trial, as the witness had died before the appellant’s trial commenced. Both the Trial Court and the High Court relied upon that earlier testimony to convict the appellant for murder, leading to the present appeal before the Supreme Court.
Issues
- Whether evidence recorded during the earlier trial of a co-accused could be used against an absconding accused who was arrested later.
- Whether the mandatory requirements of Section 299 of the Code of Criminal Procedure, 1973 had been complied with before recording the earlier testimony.
- Whether the appellant’s conviction could be sustained solely on the basis of testimony recorded in his absence without an opportunity for cross-examination.
Appellant’s Arguments
The appellant contended that the prosecution had illegally relied upon the testimony of PW-1 recorded in the earlier trial without complying with the mandatory requirements of Section 299 CrPC.
It was argued that no court had ever recorded a finding that the appellant was absconding and that there was no immediate prospect of his arrest, which are mandatory jurisdictional conditions before evidence can be recorded in the accused’s absence. Consequently, the appellant was deprived of his valuable right to cross-examine the principal eyewitness, rendering the evidence inadmissible against him.
Respondent’s Arguments
The State supported the conviction, contending that since the appellant had absconded for several years, the prosecution was justified in relying upon the testimony recorded during the earlier proceedings after the witness had died.
The prosecution maintained that Section 299 CrPC permitted use of such evidence where the witness was unavailable during the subsequent trial.
Analysis of the Law
The Supreme Court undertook a detailed analysis of Section 299 CrPC, describing it as a narrow exception to the general rule under Section 33 of the Indian Evidence Act, which ordinarily guarantees an accused the right to cross-examine prosecution witnesses.
The Court explained that Section 299 contains two mandatory jurisdictional requirements before evidence can be recorded in the absence of an accused:
- The accused must be proved to have absconded; and
- There must be no immediate prospect of his arrest.
Only after the Court records satisfaction on both conditions can witnesses be examined 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 found, or cannot be produced without unreasonable delay, expense or inconvenience. The Court emphasised that these safeguards protect the accused’s fundamental right to cross-examination while preventing absconding accused persons from frustrating criminal trials.
Precedent Analysis
The Supreme Court relied upon several earlier decisions interpreting Section 299 CrPC:
- Nirmal Singh v. State of Haryana (2000) 4 SCC 41—holding that Section 299 is an exception to the right of cross-examination and requires strict compliance with its statutory conditions.
- Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104—holding that both jurisdictional facts under Section 299 must be proved and specifically recorded by the Court before evidence can be recorded in the accused’s absence.
- Sukhpal Singh v. NCT of Delhi (2024 SCC OnLine SC 800)—reaffirming that evidence recorded under Section 299 becomes admissible only after strict compliance with both jurisdictional requirements and subsequent satisfaction regarding the witness’s unavailability.
Court’s Reasoning
The Supreme Court found that the present case suffered from a fundamental procedural defect. Although the appellant had absconded and was arrested many years later, no court had ever passed an order under Section 299 CrPC at the stage when the co-accused was tried.
Neither the Magistrate nor the Sessions Court had recorded satisfaction that the appellant had absconded and that there was no immediate prospect of his arrest. Consequently, the testimony of PW-1 recorded during the earlier proceedings could not legally be relied upon in the appellant’s subsequent trial.
The Court also noted that the remaining eyewitnesses had either turned hostile or failed to identify the appellant. Once the inadmissible testimony of PW-1 was excluded, the prosecution lacked sufficient evidence to sustain the conviction.
Conclusion
The Supreme Court allowed the appeal and set aside the appellant’s conviction. It held that earlier witness testimony recorded during the trial of a co-accused cannot be used against an absconding accused unless the mandatory requirements of Section 299 CrPC were complied with at the relevant stage. As no such order had ever been passed and the remaining evidence was insufficient, the appellant was acquitted of all charges.
Case Details
Case: Mahendra Singh v. State of Chhattisgarh
Court: Supreme Court of India
Case Number: Criminal Appeal No. 3566 of 2026 (@ SLP (Crl.) No. 6741 of 2026)
Judges: Hon’ble Mr. Justice J.B. Pardiwala and Hon’ble Mr. Justice K. Vinod Chandran
Date: 31 July 2026
Result: Appeal Allowed. The Supreme Court acquitted the appellant, holding that prior witness testimony recorded in the earlier trial was inadmissible due to non-compliance with the mandatory requirements of Section 299 CrPC
