Evidence Recorded Before Section 319 Summons Cannot Ground a Conviction, Allahabad HC Rules

The Allahabad High Court's Lucknow Bench acquitted a murder convict after finding that the trial court had relied on witness statements recorded before the accused was even summoned to face trial.

A Division Bench of the Allahabad High Court at Lucknow, comprising Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi, has set aside the conviction and life sentence of Pramod Kumar Singh alias Guddu Singh in a 2008 murder case from Hardoi district. The bench found that the Additional Sessions Judge had built the conviction almost entirely on witness depositions recorded before the appellant was summoned under Section 319 of the Code of Criminal Procedure, while ignoring the same witnesses’ later testimony — given after the appellant joined the trial — which categorically exonerated him. The court held that evidence recorded in the absence of an accused cannot, under Section 273 CrPC, be used to convict him, and that the purpose of Section 319 CrPC is to summon a person for trial, not to pre-determine guilt.

The Incident and the Delayed Summoning

The case arose from an FIR lodged on 9 March 2008 following the death of Vijay Kumar Singh alias Pappu in District Hardoi. According to the FIR, Vijay Kumar Singh was sitting outside his home at around 8:00 p.m. on 8 March 2008 when a group of men arrived carrying firearms. The FIR named Bhau Singh, Bhanna Singh, Sport Singh, and the appellant Pramod Kumar Singh alias Guddu Singh as the assailants. Vijay Kumar Singh sustained gunshot injuries and was referred from the District Hospital, Hardoi to Lucknow, where he died the following day. The informant, Pramod Kumar Singh alias Pintu Singh, also suffered injuries in the incident.

After investigation, the Investigating Officer submitted a charge-sheet on 27 May 2008 against Sport Singh, Bhanna Singh, Bhau Singh, and Kallu Singh only. The charge-sheet expressly stated that the appellant’s involvement could not be established during investigation. The trial therefore proceeded against the four charge-sheeted accused.

It was only after some prosecution witnesses had already deposed that the prosecution filed an application under Section 319 CrPC to summon the appellant. That application was allowed on 4 June 2012 — more than four years after the FIR. The prosecution witnesses were then examined again after the appellant joined the trial.

What the Witnesses Said After the Appellant Was Summoned

Once the appellant’s trial commenced, the picture presented by the prosecution witnesses changed materially. The injured complainant, Pintu Singh alias Pramod Kumar, was re-examined as PW-1 on 5 September 2013. He stated that the appellant was not present at the scene and was not involved in the incident. He went further, saying he had falsely implicated the appellant in his earlier statement under pressure from family members and villagers.

Indrapal Singh, the father of the injured complainant and uncle of the deceased, was examined as PW-2 on the same date. In his examination-in-chief, he described seeing Bhanna Singh, Bhau Singh, Sport Singh, and Kallu Singh standing in front of the victim’s house with firearms. He categorically stated that he did not see the appellant at the scene.

The bench observed that Indrapal Singh, being the father of the injured witness and uncle of the deceased, had every reason to support the prosecution. There was no basis to discard his testimony as that of a witness interested in shielding the accused.

How the Trial Court Erred

The Additional Sessions Judge convicted the appellant by relying on two sets of earlier statements. The first was Indrapal Singh’s statement recorded on 1 February 2011 — before the appellant was summoned — in which he had mentioned the appellant’s involvement. The second was the statement of Ajay Kumar Singh recorded on 25 February 2009, also before the appellant was summoned, in which Ajay Kumar Singh had stated that the appellant was carrying a country-made pistol and had fired along with the other accused.

The trial court reasoned that since these statements had been acted upon to summon the appellant under Section 319 CrPC, they could not be ignored and could form the basis of conviction. The High Court rejected this reasoning squarely.

On the Ajay Kumar Singh point, the bench noted that after the appellant was summoned and his trial commenced, Ajay Kumar Singh did not come forward to have his testimony recorded. His earlier statement, recorded when the appellant was not before the court, could not be read against the appellant.

On the Indrapal Singh point, the bench found that the trial court had acted on the statement recorded on 1 February 2011 while ignoring the statement recorded on 5 September 2013 — the only statement that could lawfully be used against the appellant. In that later statement, Indrapal Singh had said the appellant was not involved.

The Legal Framework: Sections 273, 299 CrPC and Section 33 of the Evidence Act

The bench grounded its reasoning in Section 273 CrPC, which provides that all evidence taken in the course of a trial shall be taken in the presence of the accused, or, when personal attendance is dispensed with, in the presence of his pleader. Evidence recorded when the appellant had not yet been summoned and was therefore not before the court fell outside this requirement and could not be relied upon for conviction.

The court examined Section 299 CrPC, which carves out a narrow exception permitting evidence recorded in the absence of an accused to be used against him — but only where the accused has absconded and there is no immediate prospect of arrest, and only if the deponent is subsequently dead, incapable of giving evidence, or cannot be found. None of those conditions were satisfied here. The witnesses were alive and were in fact re-examined after the appellant joined the trial.

The bench also considered Section 33 of the Indian Evidence Act, 1872, which allows evidence given in a prior proceeding to be treated as relevant in a subsequent proceeding under specified conditions, including that the adverse party had the right and opportunity to cross-examine. Since the appellant had no opportunity to cross-examine the witnesses when their earlier statements were recorded, Section 33 did not assist the prosecution.

Citing Nirmal Singh v. State of Haryana, (2000) 4 SCC 41, the bench reiterated that the preconditions in both Section 299 CrPC and Section 33 of the Evidence Act must be established by the prosecution before earlier statements can be used against an accused who was absent when they were recorded.

On the trial court’s reasoning that the Section 319 summons itself validated reliance on the earlier statements, the bench referred to the Supreme Court’s constitution bench decision in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92. The Supreme Court had held in that case that the words used in Section 319 CrPC are “for which such person could be tried together with the accused” and not “for which such person could be convicted”, meaning a court acting under Section 319 forms no opinion as to guilt. The High Court held that the evidence relied upon to summon an accused under Section 319 therefore cannot, by that fact alone, form the basis of his conviction.

The bench also drew on Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104, where the Supreme Court had described the right of an accused to watch prosecution witnesses depose as a valuable right, and had held that the provisions of Section 299 CrPC must receive strict interpretation with scrupulous compliance.

The Composite Judgment and the Scope of This Appeal

The trial court’s judgment dated 28 March 2026 was a composite order deciding four sessions trials together. The appellant was an accused only in Sessions Trial No. 465/2008. The judgments in Sessions Trial Nos. 465A/2008, 466/2008, and 468/2008 were not challenged and were not examined by the High Court. The appeal was confined to the conviction and sentence arising from Sessions Trial No. 465/2008.

The appeal had been admitted on 21 April 2026 and the trial court’s record was summoned. The State filed a counter affidavit and the appellant filed a rejoinder. With the trial court record available and submissions heard from both sides, the bench decided to dispose of the appeal itself rather than first rule on the pending bail application.

Outcome

The Division Bench allowed the appeal. The judgment and order dated 28 March 2026 passed by the Additional Sessions Judge, Court No. 3, Hardoi in Sessions Trial No. 465/2008 arising out of Case Crime No. 230/2008, Police Station Beniganj, District Hardoi, convicting and sentencing the appellant under Sections 302 read with Section 149, Section 307 read with Section 149, Section 148, and Section 506(2) IPC, was set aside in its entirety.

The appellant was acquitted of all charges and directed to be released from custody forthwith, unless wanted in any other case. The release was made subject to compliance with Section 437-A CrPC, requiring the appellant to furnish a personal bond and two sureties to ensure his appearance before the Supreme Court in the event an appeal is filed and notice is issued. The bail application, rendered infructuous by the acquittal, was disposed of accordingly.