Supreme Court of India
SUKHPAL SINGHversusNCT OF DELHI
- Citation
- 2024 INSC 385
- Decided
- 7 May 2024
- Disposal
- Dismissed
Holding
The statement recorded under Section 299 CrPC is admissible as substantive evidence, and the prosecution proved a complete chain of circumstantial evidence, warranting affirmation of the conviction.
Summary
The appellant Sukhpal Singh was convicted of murdering his wife Usha under Section 302 IPC. The prosecution relied heavily on the sworn statement of the complainant, Ashok Kumar Pathak, recorded under Section 299 of the CrPC, as well as a confession note and handwriting expert report. The appellant challenged the admissibility of the Section 299 statement, the reliability of the confession note, and the sufficiency of the circumstantial evidence. The Supreme Court held that the conditions of Section 299 were satisfied, allowing the statement to be admitted as substantive evidence under Section 33 of the Evidence Act, and that the prosecution had established a complete chain of circumstantial evidence linking the appellant to the murder. Consequently, the Court affirmed the trial and High Court judgments and dismissed the appeal.
Issues considered
- Whether a witness statement recorded under Section 299 of the CrPC can be read as substantive evidence under Section 33 of the Evidence Act.
- Whether the prosecution established a complete and clinching chain of circumstantial evidence sufficient to convict the appellant.
- Whether the appellant discharged the burden of proof imposed by Section 106 of the Evidence Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 299
- Evidence Act, 1872s. 106, s. 33
- Indian Penal Code, 1860s. 302
Subjects
Section 299 of CrPCRecord of evidence in absence of accusedPiece of substantive evidenceIncriminating evidenceChain of incriminating circumstantial evidenceBurden of proving fact within knowledgeSuspected infidelityAbsconderAbscondence of accusedNo immediate prospect of arrestMotiveLast seen togetherHomicidal deathWrong explanation by accused under Section 313 CrPCSection 106 of Evidence ActCircumstantial evidenceComplete chain of circumstancesMurder inside the house
Judgment
[2024] 6 S.C.R. 315 : 2024 INSC 385
Sukhpal Singh
v.
NCT of Delhi
(Criminal Appeal No. 55 of 2015)
07 May 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
Appellant was convicted u/s.302, Penal Code, 1860 for the murder
of his wife. Courts below whether justified in holding that the
statement of Complainant-PW-1 recorded in proceedings u/s.299,
Code of Criminal Procedure, 1973 could be read as a piece of
substantive evidence; whether the prosecution could establish the
links in the chain of incriminating circumstantial evidence.
Headnotes
Code of Criminal Procedure, 1973 – s.299 – Record of evidence
in absence of accused – Evidence Act, 1872 – s.33 – Appellant
murdered his wife owing to her suspected infidelity however,
fled away from the crime scene and remained absconding for
nearly 10 years – Charge sheet was filed u/s.299 showing him
to be an absconder – Complainant (PW-1) was examined on
oath in proceedings u/s.299 where he gave detailed account of
the sequence of events witnessed by him – However, he could
not be produced for deposition in the trial which resumed after
the arrest of the appellant, as he could not be found at the
address given in the FIR despite all sincere efforts – Statement
of PW-1 recorded during proceedings u/s.299 was relied upon
as a piece of incriminating evidence against the appellant,
apart from other incriminating circumstantial evidences and
appellant was convicted u/s.302 – Conviction and sentence
affirmed by High Court – Sustainability:
Held: s.299 (1) 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
* Author
316 [2024] 6 S.C.R.
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cannot be procured without any amount of delay, expense or
inconvenience which, under the circumstances of the case, would
be unreasonable – In the present case, circumstances of motive,
last seen, confession and abscondence from the crime scene
after committing the crime etc. were all spoken by the witness
(PW-1) in his statement recorded on sworn affirmation during the
proceedings u/s.299 – His statement by itself provides a complete
chain of circumstantial evidence sufficient to establish the guilt
of the appellant – Thus, in light of the provisions of s.299 r/w
s.33 of the Evidence Act, 1872, the trial Court and High Court
were justified in holding that the statement of PW-1 recorded in
these proceedings was fit to be read as a piece of substantive
evidence – Prosecution established a clinching and complete
chain of incriminating circumstantial evidence pointing exclusively
towards the guilt of the appellant and totally inconsistent with
his innocence or the involvement of any other person in the
crime – Impugned judgments not interfered with. [Paras 31, 36,
38, 39, 47, 48, 50]
Evidence Act, 1872 – s.106 – Burden of proving fact especially
within knowledge – Appellant failed to offer explanation for
the homicidal death of his wife in the house during night
time when only him and deceased were present, leading to
interference of guilt by virtue of s.106:
Held: The circumstances leading to murder of appellant’s wife
were in his exclusive knowledge – He offered no explanation
as to the manner in which she was strangled to death within
the confines of the room where only he and the deceased were
present – The bald plea of denial offered by the appellant by way
of an explanation to this gravely incriminating circumstance is not
sufficient to absolve him of the burden cast upon him by virtue
of s.106. [Para 46]
Case Law Cited
Nirmal Singh v. State of Haryana [2000] 2 SCR 807 :
(2000) 4 SCC 41; Jayendra Vishnu Thakur v. State of
Maharashtra & Another [2009] 8 SCR 591 : (2009) 7
SCC 104 – relied on.
List of Acts
Code of Criminal Procedure, 1973; Evidence Act, 1872; Penal
Code, 1860.
[2024] 6 S.C.R. 317
Sukhpal Singh v. NCT of Delhi
List of Keywords
Section 299 of Code of Criminal Procedure, 1973; Record of evidence
in absence of accused; Piece of substantive evidence; Incriminating
evidence; Links in the chain of incriminating circumstantial evidence;
Burden of proving fact especially within knowledge; Suspected
infidelity; Absconder; Abscondence of accused; No immediate
prospect of arrest; Motive; Last seen together; Homicidal death;
Wrong explanation by accused in statement under Section 313
Code of Criminal Procedure, 1973; Section 106 of Evidence Act,
1872; Circumstantial evidence; Complete chain of circumstances;
Murder inside the house.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 55 of
2015
From the Judgment and Order dated 07.01.2010 of the High Court
of Delhi at New Delhi in CRLA No. 296 of 2003
Appearances for Parties
Ambreesh Kumar Aggarwal, Adv. for the Appellant.
Rajan Kumar Chourasia, Sanjay Kumar Tyagi, Ms. Seksha, Mukesh
Kumar Maroria, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
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.
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).
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3. Leave was granted by this Court in this matter on 8th January, 2015
and the accused appellant was released on bail on furnishing bail
bonds to the satisfaction of the trial Court.
Brief facts:-
4. The accused appellant was married to Usha and three children were
born out of the wedlock. However, the spouses got embroiled in a
matrimonial strife and thus the appellant left company of his wife
Usha and started residing at his village Khatta, U.P.
5. The officers of Police Station Bhajan Pura received a wireless
message on 20th May, 1990 from the PCR regarding an incident
which had taken place outside the shops of Rori and Badarpur. Acting
on the said information, Head Constable Mohan Lal, Constables Jai
Pal, Bhagwan Dass and Ramesh Chand along with Inspector Ishwar
Singh reached House no. J-387, Gali No. 14, Kartar Nagar, Delhi
where Usha w/o Sukhpal (the appellant herein) was found lying
dead on a cot in a room of the said house. On cursory inspection,
abrasions, scratches and other injury marks associated with bleeding
were noticed on the neck, mouth, shoulder and private parts of the
deceased Usha. Marks of dragging were also found on the right
leg below the knee. Strips of tablets were found scattered around
the cot on which the dead body was lying. The police officials claim
to have recovered a handwritten note (Exhibit PW-12/E) from the
crime scene bearing a recital indicating that the scribe was the killer
of Usha. The prosecution alleges that the said note was written by
the accused appellant.
6. Statement (Exhibit PW-1/A) of Ashok Kumar Pathak, resident of
House No. J-386, Gali No. 14, Kartar Nagar, Delhi was recorded by
the police officials on 20th May, 1990 wherein he stated that he was
residing in the immediate vicinity of House No. J-387, Gali No. 14,
Kartar Nagar, Delhi, where Usha with her husband Sukhpal (accused
appellant) and three children had been residing for the last 3-4 years.
Ashok Kumar Pathak was serving with M/s. R.P. Associates and that
he had got Sukhpal employed in that very firm. Sukhpal suspected
his wife Usha of infidelity which often led to quarrels between
them and, therefore, Sukhpal left his wife and children and started
residing in village Khatta, U.P. He used to commute from the village
for attending to his job. Sometimes, he would also come and stay
with Usha. Four days prior to the alleged occurrence, Sukhpal had
[2024] 6 S.C.R. 319
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visited Usha and on that day, Usha’s sister (Sudha) had also come
there. Sukhpal quarrelled with Usha and went away. On the next
day, Usha’s sister, Sudha (PW-10) took the three children of Usha
and went to her house. On the day prior to incident, i.e., on 19th
May, 1990, in the evening when Ashok Kumar Pathak had returned
from duty and got free after having his meals, at about 9.30 p.m., he
saw that Sukhpal had come to visit Usha on his cycle. The spouses
were talking while sitting on a cot in the courtyard. He went to the
terrace for sleeping and after some time, it started raining so he
came downstairs and saw that Sukhpal and Usha had also gone
inside their room. The next morning i.e. 20th May, 1990, while he was
carrying out his daily chores, he saw Sukhpal’s cycle parked in the
courtyard and presumed that he and Usha were inside the house.
He did not see any movement in the house for the entire day and
even at about 5.30 p.m., he saw the cycle of Sukhpal parked at the
same place but neither Sukhpal nor Usha were to be seen. So, he
called out from outside, but nobody responded, on which he went
into the room and found Usha lying dead on a cot. Sukhpal was not
present there. He informed the neighbours who, in turn, called the
police. He bore a suspicion that Sukhpal (appellant herein) might
have killed Usha sometime during the night and had fled away.
This statement was taken as a complaint and based thereupon,
FIR No. 213 of 1990 (Exhibit PW-13/F) came to be registered at
P.S. Bhajanpura for the offence punishable under Section 302 IPC.
7. The dead body of Usha was subjected to autopsy and the post
mortem report (Exhibit PW-15/A) was received with a pertinent
opinion that cause of death was “Asphyxia resulting from manual
strangulation”. A confession letter/note (Exhibit PW-12/E) was found
below the cot where the dead body was lying and it was seized vide
memorandum (Exhibit PW-13/B) and spot inspection memo (Exhibit
PW-12/B) was prepared.
8. The Investigating Officer (PW-13) collected two letters (Exhibit PW-
12/C and PW-12/D) purportedly written by the accused appellant
from the employer namely Sanjiv Jain (PW-8). Specimen Pad
(Exhibit PW-13/O) of the employer was also collected and seized
vide memorandum (Exhibit P-13/N).
9. The prosecution alleges that the accused appellant fled away from
the crime scene. Efforts were made to trace him out without any
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success and thus proceedings under Section 82 and Section 83 of
the Code of Criminal Procedure, 1973 (hereinafter being referred to
as ‘CrPC’) were initiated against him. The accused appellant was
declared to be a proclaimed offender and a charge sheet came to
be filed against him under Section 299 CrPC by showing him to be
an absconder. As per the prosecution case, the complainant Ashok
Kumar Pathak, Head Constables Mohan Lal and Surender Kumar and
Inspector Bal Kishan were examined on oath in proceedings under
Section 299 CrPC and the file was consigned to the record room.
10. The accused appellant could be apprehended on 9th August, 2000 i.e.
nearly after ten years of the incident. He gave a disclosure statement
pointing out the place of incident. His specimen handwritings (Exhibits
PW-5/D, 5/E and 5/F) were obtained while he was in police custody.
Thereafter, the confession note (Exhibit PW-12/E), the specimen
handwritings (Exhibits PW-5/D, PW-5/E and PW-5/F) along with
admitted handwritings (Exhibits PW-12/C and PW-12/D) (collected
from the employer of accused appellant) were sent to FSL for
comparison. The handwriting expert (PW-24) issued a report (Exhibit
PW-12/F) opining that the confession letter/note (recovered from
the crime scene) was in the handwriting of the accused appellant.
11. A supplementary charge sheet came to be filed against the accused
appellant for the offence punishable under Section 302 IPC. The
trial Court framed charge against the accused appellant for the said
offence. He pleaded not guilty and claimed trial. The prosecution
examined 24 witnesses and exhibited 48 documents to support its
case.
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
[2024] 6 S.C.R. 321
Sukhpal Singh v. NCT of Delhi
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.
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.
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.
15. Placing reliance upon the evidence of Ashok Kumar Pathak recorded
in proceedings under Section 299 CrPC and the evidence of the
handwriting expert (PW-24), the trial Court held the confession note
(Exhibit PW-12/E) to be an unimpeachable piece of evidence sealing
the fate of the accused. Corroboration thereto was sought from the
evidence of Sudha (PW-10), sister of the deceased Usha. By relying
on these incriminating links of circumstantial evidence, the trial Court
proceeded to convict and sentenced the accused appellant as above
vide judgment dated 6th March, 2003.
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.
17. The accused appellant has challenged the above judgment affirming
his conviction and sentence through this appeal by special leave.
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Submissions on behalf of the appellant: -
18. Learned legal aid counsel appointed by Supreme Court Legal
Services Committee (SCLSC) for representing the appellant advanced
extensive submissions to assail the impugned judgment. He urged
that:-
(i) The trial Court as well as the High Court committed grave factual
error in holding that complainant Ashok Kumar Pathak was
examined on oath in proceedings under Section 299 CrPC. As
per learned counsel, this finding is totally contrary to the record
because the statement of complainant Ashok Kumar Pathak
relied upon by the trial Court and the High Court is actually
the statement of the said witness recorded by the SHO, PS
Bhajan Pura under Section 161 CrPC which was proved by
the Investigating Officer (PW-13) in proceedings under Section
299 CrPC.
(ii) The confession note (Exhibit PW-12/E) is a fabricated piece of
evidence because the prosecution did not make any endeavour
to get the two admitted documents (Exhibit PW-12/C and PW-
12/D) collected from the employer of the accused appellant, i.e.,
Sanjiv Jain (PW-8) compared with the confession note (Exhibit
PW-12/E). This contention was made without prejudice to the
plea that the very process of collecting these documents is
under a cloud of doubt because the Investigating Officer (PW-
13) could not have had any idea that the accused had worked
in M/s. R.P. Associates.
(iii) The handwriting expert’s report (Exhibit PW-12/F) and the
testimony of the handwriting expert (PW-24) is not reliable,
since the expert did not give any opinion after comparing the
admitted writings (Exhibit PW-12/C and PW-12/D) (seized from
the employer of the accused appellant) with the confession
note (Exhibit PW-12/E).
(iv) Without prejudice to the above, learned counsel submitted that
from a visual comparison of the confession note (PW-12/E) and
the specimen handwritings of the accused (Exhibit PW-5/D,
PW-5/E and PW-5/F), it would become clear that there is no
similarity whatsoever in the two sets of handwritings so as to
conclude with any degree of certainty that the scribe of these
[2024] 6 S.C.R. 323
Sukhpal Singh v. NCT of Delhi
documents was one and the same. He thus urged that the
report (Exhibit PW-12/F) of the handwriting expert (PW-24) is
unreliable and cannot be pressed into service for affirming the
guilt of the accused.
(v) He urged that the evidence of Sudha (PW-10) is totally unreliable
and not trustworthy and deserves to be discarded. It was
admitted by the prosecution that the accused appellant and
Usha had divorced each other and thus it is totally unbelievable
that the accused appellant had come and stayed with Usha,
few days before the incident as claimed by Sudha (PW-10). He
urged that the evidence of Sudha (PW-10) is not trustworthy
and deserves to be discarded.
(vi) The claim of the prosecution that the accused appellant was
absconding is totally unfounded because in the FIR, it was clearly
mentioned that the accused appellant after divorcing deceased
Usha had started residing in his village Khatta, U.P. However,
the Investigating Officer (PW-13) made no effort whatsoever to
apprehend the accused appellant from his village.
(vii) It has been admitted by material prosecution witnesses that
deceased Usha was indulged in sex trade and that Sandeep
Kumar used to solicit her services. Sandeep Kumar and Rajbir
Singh (PW-14) were apprehended by the police on suspicion of
the death of Usha, however, proper investigation was not made
on this aspect. As per him, the possibility of Usha having been
murdered by some other person cannot be ruled out.
19. Learned counsel concluded his submissions urging that the case
is based purely on circumstantial evidence. The entire chain of
incriminating circumstances has to be established leading to the only
conclusion consistent with the guilt of the accused and inconsistent
with the guilt of anyone else. As per the learned counsel, this chain
was not established conclusively by cogent and clinching evidence
and hence conviction of the accused appellant as recorded by the
trial Court and affirmed by the High Court is unsustainable and
should be set aside.
Submissions on behalf of the respondent-State:-
20. Per contra, learned counsel for the respondent State fervently and
vehemently opposed the submissions advanced by learned counsel
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for the appellant and contended that the chain of incriminating
circumstances is complete in all aspects exclusively pointing out
towards the guilt of the accused. The learned counsel made the
following pertinent submissions imploring the Court to dismiss the
appeal and upheld the conviction of the accused appellant: -
(i) That the statement of Ashok Kumar Pathak recorded as
PW-1 during proceedings under Section 299 CrPC was rightly
relied upon as admissible and reliable piece of evidence. The
non-examination of Ashok Kumar Pathak during trial is not a
deliberate act of prosecution, rather, the witness could not be
examined during regular trial after apprehension of the accused
appellant. The witness could not be traced by the prosecuting
agency inspite of best efforts. The prolonged abscondence
of the accused is primarily the reason for non-examination of
Ashok Kumar Pathak.
(ii) That the complainant Ashok Kumar Pathak in his evidence as
PW-1 during proceedings under Section 299 CrPC has admitted
his signature on his statement[Exhibit PW-1/A (based upon which
FIR was registered)] and also elaborated about the averments
made therein which he had witnessed with his own eyes.
(iii) That the evidence of Ashok Kumar Pathak clearly establishes the
presence of accused appellant with Usha on intervening night
of 19th/20th May, 1990, whereafter, the lady was found murdered
and the accused was found absconding from the crime scene
leaving behind a confessional note. Ashok Kumar Pathak also
proved about the motive of the appellant to commit the crime.
(iv) The testimony of Usha’s sister Sudha (PW-10) establishes that
the accused appellant used to quarrel with Usha suspecting
her infidelity and there were repeated altercations between the
spouses. They had indulged in a fight just four days prior to
the incident. This also establishes the motive attributed to the
appellant to commit the offence.
(v) That there is no evidence on record to show that accused
appellant and Usha were divorced except a bald statement
made in this regard in the confession note (Exhibit PW-12/E).
(vi) That the report (Exhibit PW-12/F) submitted by the handwriting
expert, Deepa Verma (PW-24) proves that the handwriting on the
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confession note (Exhibit PW-12/E) which was recovered from the
crime scene matched with the handwriting on the two admitted
documents (Exhibits PW-12/C and PW-12/D) collected from the
employer of the accused appellant and specimen handwritings
(Exhibits PW-5/D, PW-5/E and PW-5/F) given by the accused
appellant to the police which in turn concludes the fact that the
confession note is in the handwriting of the accused.
21. He urged that the prosecution has proved the case against the
accused appellant by leading cogent and convincing chain of
incriminating circumstantial evidence and implored the court to
dismiss the appeal.
22. We have given our thoughtful consideration to the submissions
advanced by the learned counsel for the parties and have gone
through the judgments of the trial Court and the High Court as well
as the evidence available on record.
Discussion and Conclusion: -
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.
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.
25. Even proceedings of proclamation and attachment were undertaken
under Sections 82 and 83 CrPC but to no avail because the accused
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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.
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.
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)”
28. This statement bears the signature of the presiding officer of the
Court and so also of the complainant Ashok Kumar Pathak. Three
more witnesses, namely, Head Constables Mohan Lal and Surender
Kumar and Inspector Bal Kishan were also examined on oath in
proceedings under Section 299 CrPC.
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.
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
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Sukhpal Singh v. NCT of Delhi
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.”
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.
32. This Court in the case of Nirmal Singh v. State of Haryana1 while
considering the issue that under what circumstances and by what
method, the statement of a witness under Section 299 of CrPC could
have been tendered in the case for being admissible under Section
33 of the Indian Evidence Act, 1872 and whether they can form the
basis of conviction, held as follows:
“4. …..Section 299 of the Code of Criminal Procedure
consists of two parts. The first part speaks of the
circumstances under which witnesses produced by
1 [2000] 2 SCR 807 : (2000) 4 SCC 41
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the prosecution could be examined in the absence
of the accused and the second part speaks of the
circumstances when such deposition can be given
in evidence against the accused in any inquiry or
trial for the offence with which he is charged. This
procedure contemplated under Section 299 of the Code
of Criminal Procedure is thus an exception to the principle
embodied in Section 33 of the Evidence Act inasmuch as
under Section 33, the evidence of a witness, which a party
has no right or opportunity to cross-examine is not legally
admissible. Being an exception, it is necessary, therefore,
that all the conditions prescribed, must be strictly complied
with. In other words, before recording the statement of the
witnesses produced by the prosecution, the court must be
satisfied that the accused has absconded or that there is
no immediate prospect of arresting him, as provided under
the first part of Section 299 (1) of the Code of Criminal
Procedure….
…..There possibly cannot be any dispute with the
proposition of law that for taking the benefits of Section 299
of the Code of Criminal Procedure, the conditions precedent
therein must be duly established and the prosecution,
which proposes to utilise the said statement as evidence
in trial, must, therefore, prove about the existence of the
preconditions before tendering the evidence.….
….On a mere perusal of Section 299 of the Code
of Criminal Procedure as well as Section 33 of the
Evidence Act, we have no hesitation to come to the
conclusion 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 299 CrPC 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 299 (1) of the Code of
Criminal Procedure is established….”
(emphasis supplied)
[2024] 6 S.C.R. 329
Sukhpal Singh v. NCT of Delhi
33. Further, in the case of Jayendra Vishnu Thakur v. State of
Maharashtra & Another 2 it was held as follows: -
“25. It is also beyond any cavil that the provisions
of Section 299 of the Code must receive strict
interpretation, and, thus, scrupulous compliance
therewith is imperative in character. It is a well-known
principle of interpretation of statute that any word defined
in the statutory provision should ordinarily be given the
same meaning while construing the other provisions thereof
where the same term has been used. Under Section 3
of the Evidence Act like any other fact, the prosecution
must prove by leading evidence and a definite categorical
finding must be arrived at by the court in regard to the
fact required to be proved by a statute. Existence of an
evidence is not enough but application of mind by the
court thereupon as also the analysis of the materials and/
or appreciation thereof for the purpose of placing reliance
upon that part of the evidence is imperative in character.
29. Indisputably both the conditions contained in the
first part of Section 299 of the Code must be read
conjunctively and not disjunctively. Satisfaction of
one of the requirements should not be sufficient….”
(emphasis supplied)
34. The statement of Ashok Kumar Pathak dated 17th July, 1991 recorded
in proceedings under Section 299 CrPC is as follows: -
“I am working as Salesman/supply man in the M/s R.P.
Associates a shop of medicines in Bhagirath Place
for the last about seven years. In my neighbourhood
accused Sukhpal along with his wife Usha and children
used to reside in H.No.387 Gali No.14 Kartar Nagar for
the last 3/4 years prior to this case. He was having two
daughters and one son. Later on he also joined service in
M/s R.P. Associates, Bhagirath Place with my assistance.
Accused suspected infidelity of his wife Smt. Usha and
for this reason they were not having good relations and
2 [2009] 8 SCR 591 : (2009) 7 SCC 104
330 [2024] 6 S.C.R.
Digital Supreme Court Reports
they always used to quarrel with each other. Prior to the
occurrence of this case accused left his house leaving
his wife Smt. Usha and three children at the above said
house for his village Khatta in UP and used to come to
his shop therefrom. Sometimes they used to visit with
his wife Usha at his house. About four days back prior to
this occurrence accused Sukhpal had come to his house
where sister of Usha was also found present with Usha at
his house and on that day Sukhpal had quarrelled with his
wife Usha and he then returned. Next day sister of Usha
also left with three children of Usha to her house, leaving
her sister alone at her house.
On 19.5.1990 at about 10.30 P.M. I saw accused Usha
& Sukhpal who came on a cycle to his house having
conversation with his wife, sitting on a cot in the court-yard
of his house, and I went on the roof of my house, and slept.
In the night when the rain was started I came down from
the roof and I saw the accused Sukhpal along with his wife
Usha going into inside their room. Both of them went inside
their room. Next morning due to holiday (closeday being
Sunday) I woke up some late and started my daily routine
work. I found the cycle of Sukhpal parked in the court-yard
of his house. I thought that both of them might be in their
room. In the noon I again found the cycle of Sukhpal parked
in the court-yard of the house but none of them was seen
outside their room. In the evening at about 5.30 P.M. when
I called them but no response came from his house but the
door of the room was opened. When I entered the room of
Usha I found Smt. Usha dead lying on the cot and accused
Sukhpal was found missing therefrom. I informed the nearby
residents who called the police. Accused Sukhpal had run
away from his house after committing the murder of his
wife Usha in the night. Police came there and completed
the proceedings. I save my statement to the police and I
signed my statement which is Ex.PW-1/A and is correct.
Other mohalla people also collected there.
There were many injuries on the throat and shoulder,
neck of Smt. Usha. There was blood on the bed sheet on
which medicines were found scattered and letter written
[2024] 6 S.C.R. 331
Sukhpal Singh v. NCT of Delhi
in Hindi by accused Sukhpal regarding the murder of his
wife Usha was also found under the cot.
I identify the hand-writing of Sukhpal on that letter, because
he was working with me at the aforesaid medicine shop
where we used to prepare and write the documents. I
have seen him signing and writing the documents at the
above said shop with me. Police seized that letter vide a
memo Ex.PW1/B and I signed the same.
One old cycle make Avon of accused Sukhpal was seized
vide a memo which is Ex.PW1/D. I signed the same. I
had seen the accused using that cycle earlier also and
so I identify this case to be of accused Sukhpal. Surinder
Kumar who was also present there also signed the memo.
On 22.5.1990 I was present on my duty at the shop of
M/s R.P. Associates, 1696/8 Ist floor Mohan Building
Bhagirath Place where accused Sukhpal also used to
work. On that day police officials visited the shop where
Sanjiv Kumar, owner of the above said shop reduced
two letters to the police. One letter was an application for
resignation from the service written by Sukhpal to M/s
R.P. Associates and another letter at 12.6.89 addressed to
R.P. Associates requesting for service to him. Both these
letters were written and signed by accused Sukhpal. I
identify his writing and signature on it. These letters are
Ext.PW/E and Ex.PW/F. These letters were seized vide
memo Ex.PW1/G and I signed it. The letter addressed
to the police officer written by Sukhpal which was seized
from the spot by the police is Ex.P1. which was taken into
possession vide memo Ex.PW1/B. Sanjiv Jain owner of
the above said shop produced one page of the letter pad
to the police who seized the same vide memo Ex.PW1/H
and I signed the same.”
35. The statement of Ashok Kumar Pathak (reproduced supra) gives
positive and unwavering proof of the following circumstances: -
(i) The accused appellant Sukhpal was married to Usha (deceased).
(ii) There was an ongoing marital strife between the spouses owing
to the suspected infidelity of Usha and on this ground, they
332 [2024] 6 S.C.R.
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used to quarrel with each other. The accused appellant left his
wife Usha and his three children and started living in village
Khatta, U.P. The accused suspected infidelity of Usha imputes
a strong motive to the accused for her murder.
(iii) Ashok Kumar Pathak had facilitated a job for the accused
appellant in M/s. R.P. Associates.
(iv) Inspite of the strife and acrimonious relationship, the accused
appellant often used to visit his wife Usha and would stay
with her. He had come and stayed with Usha four days before
the incident and at that time, Sudha, sister of Usha was also
present. Sukhpal quarrelled with Usha in presence of her sister
and then went away.
(v) A day prior to the incident also, accused appellant had come
to House No. J-387, Gali No. 4, Kartar Nagar, Delhi where the
alleged incident took place and stayed with Usha.
(vi) The witness Ashok Kumar Pathak saw the accused appellant
parking his cycle in the courtyard of the house. He also saw the
accused appellant (Sukhpal) and wife (Usha) talking to each
other while sitting on a cot in the courtyard. Then it started
raining whereupon, both were seen going into the house from the
courtyard. On the next morning, neither the accused appellant
nor Usha were anywhere to be seen.
(vii) The witness went to Usha’s house in the evening and saw her
dead body lying on cot with large number of injuries whereas
the accused appellant was missing. The cycle of the accused
appellant was still parked in the courtyard of the house.
(viii) A handwritten note (Exhibit PW-12/E) confessing to the murder
was found lying underneath the cot on which the dead body
was lying. The witness categorically stated that this note was
written in the handwriting of the accused appellant which the
witness was able to identify on account of both having worked
together in the same concern (M/s. R.P. Associates) for a
significant period of time.
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
[2024] 6 S.C.R. 333
Sukhpal Singh v. NCT of Delhi
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.
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.
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.
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.
40. Sudha (PW-10), sister of deceased Usha also stated that the accused
appellant used to quarrel with his wife Usha suspecting her infidelity.
The witness also stated that the accused appellant had come to the
house of Usha in her presence about four days before the incident
and went away after fighting with Usha. Thus, evidence of this witness
also establishes the motive attributed to the accused appellant for
commission of the murder. Her testimony is also sufficient to conclude
that inspite of the acrimonious relations between the husband and
wife, the accused appellant used to visit Usha frequently from the
village Khatta, U.P. where he was residing after having abandoned
his wife and children.
334 [2024] 6 S.C.R.
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41. The witness Sanjiv Jain (PW-8), employer of accused appellant gave
evidence to the effect that the Investigating Officer (PW-13) collected
the admitted writings of the accused (Exhibit PW-12/C and Exhibit
PW-12/D) from him during the course of the investigation. Sanjiv
Jain (PW-8) had no motive whatsoever so as to falsely implicate the
accused in this case. He had provided employment to the accused
which fact is not disputed. The version of Sanjiv Jain (PW-8) to the
effect that the Investigating Officer (PW-13) collected the scripts/
documents written by the accused while working in his establishment
finds corroboration from the statement of Ashok Kumar Pathak
recorded in the proceedings under Section 299 CrPC.
42. The contention of learned counsel for the appellant that the two
persons namely, Sandeep Kumar and Rajbir Singh (PW-14) were
involved in an illicit affair with Usha and they might have murdered the
lady has no legs to stand because in view of what has been stated
by Ashok Kumar Pathak in his testimony recorded under Section
299 CrPC, it is clear that no one other than the accused appellant
was present in the house with Usha on the night she was murdered.
43. The Investigating Officer (PW-13) duly proved the process of arrest
of accused on 9th August, 2000, i.e., after more than 10 years of
the incident.
44. The specimen writings (Exhibits PW-5/D, 5/E and 5/F) of the accused
appellant were lawfully collected by the Investigating Officer (PW-
13) after he was arrested and all these documents were placed on
record with the charge sheet. These specimen writings (Exhibits
PW-5/D, 5/E and 5/F) and the admitted writings (Exhibits PW-12/C
and PW-12/D) of the accused appellant along with confession note
(Exhibit PW-12/E) recovered from the crime scene were sent to the
handwriting expert (PW-24) for comparison from where a report
(Exhibit PW-12/F) was received to the effect that the handwritings on
these documents match with each other. As is required under law,
the handwriting expert Deepa Verma was examined as a witness
(PW-24) and she proved the report (Exhibit PW-12/F) establishing
the fact that the handwriting on the confessional note (Exhibit PW-
12/E) recovered from the crime scene matched with the handwriting
of the accused appellant on the specimen and admitted writings.
45. The Investigating Officer (PW-13) gave unimpeachable evidence
proving the various steps taken by him for collection of evidence
[2024] 6 S.C.R. 335
Sukhpal Singh v. NCT of Delhi
during investigation so as to link the accused appellant with murder
of Usha. The fact that the accused appellant was present with Usha
on the night preceding the murder is firmly established from the
deposition of Ashok Kumar Pathak. He went absconding after the
murder and could not be traced out for almost 10 years which is
also a strong circumstance pointing towards his guilty state of mind.
46. The circumstances leading to murder of Usha were in the exclusive
knowledge of the appellant. He has offered no explanation as to the
manner in which Usha was strangled to death within the confines of
the room where only he and the deceased were present. The bald
plea of denial offered by the accused by way of an explanation to
this gravely incriminating circumstance is not sufficient to absolve
him of the burden cast upon him by virtue of Section 106 of the
Indian Evidence Act, 1872.
47. As a consequence of the above discussion, we are of the firm view
that the prosecution has established the following links in the chain
of incriminating circumstantial evidence: -
(i) Motive;
(ii) Last seen together;
(iii) Medical evidence establishing that the cause of death of the
deceased was homicidal.
(iv) Confessional note;
(v) Abscondence for nearly 10 years;
(vi) Wrong explanation given by the accused in his statement under
Section 313 CrPC;
(vii) Failure of the accused to offer explanation for the homicidal
death of his wife in the night time when only the accused and
deceased were present in the house leading to the interference
of guilt by virtue of Section 106 of the Indian Evidence Act, 1872.
48. Connected together, all these facts form a clinching and complete
chain of incriminating circumstances pointing exclusively towards
the guilt of the accused appellant and totally inconsistent with his
innocence or the involvement of any other person in the crime.
49. Consequently, we have no hesitation in confirming the view taken
by the trial Court and the High Court in convicting and affirming the
336 [2024] 6 S.C.R.
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conviction of the accused appellant for the charge of committing
murder of Usha.
50. The impugned judgments do not suffer from any infirmity warranting
any interference.
51. Hence, the appeal fails and is hereby dismissed as such.
52. The appellant is on bail. His bail bonds are cancelled. He shall
surrender before the trial Court within the next 60 days to serve the
remainder of the sentence. In case the appellant fails to surrender
before the trial Court within the aforesaid period, the trial Court shall
take steps to apprehend him and make him serve out the sentence.
53. Pending application (s), if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal dismissed.
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