When an accused absconds and is tried after her co-accused, the two trials generate two records — and the appellate court may not mix them. That is the central discipline of Sharmishtha v. State of NCT of Delhi (Crl.A. 709/2005, pronounced 30 October 2026, Navin Chawla and Arun Bhardwaj, JJ.), the companion to the Kalyan Puri bride-burning appeals decided the same day. Sharmishtha, a sister-in-law of the deceased Dayawati, was declared a proclaimed offender in 2001, arrested in 2002, and convicted separately in 2005 under Sections 302/34 and 498A/34 IPC. Applying the Supreme Court's decision in A.T. Mydeen, the Bench confined itself to the evidence recorded in her trial — upholding the murder conviction on the dying declaration and her conduct, while acquitting her of cruelty for want of specific attribution.
One FIR, two trials, three judgments
FIR No. 527/98 of PS Kalyan Puri produced staggered proceedings. The family members arrested in 1998 were tried together and convicted in 2002; Sharmishtha, proclaimed an offender on 20 April 2001 and arrested on 11 September 2002, was tried separately and convicted in May 2005 — life imprisonment under Section 302/34 and two years under Section 498A/34. Her appeal then waited alongside the others, and all were decided on 30 October 2026, with the court navigating a record in which some witnesses had died, some had turned hostile, and the decisive instrument remained Dayawati's dying declaration of 22 October 1998.
The separate-record discipline at work
Her counsel adopted the co-accused's arguments wholesale: doubts over the fitness certification, the timing gap before the SDM recorded the statement, the near-blank thumb impression, the suicide theory, the hostile witnesses. The Bench answered them on her record alone — and the methodological point cut both ways. The defence lost the benefit of Dr Bhim Singh's degloving testimony, which was given in the other trial and therefore excluded here under A.T. Mydeen; the prosecution, for its part, had to establish fitness and the declaration's reliability from the witnesses examined in this trial, which the court found it had done through the SDM, the medical certification and the content of the statement itself.
Conduct as evidence
The judgment is careful with this material: abscondence corroborates, it does not convict. What convicted her was the dying declaration's reference to the sisters-in-law participating in the burning — read with the brother's testimony that the deceased named her — against which she offered a bare, unproved plea of residence at Ghaziabad.
Attribution again draws the line
As in the connected appeals, the court split the counts by specificity. For Section 302/34, the declaration's identification of the sisters-in-law sufficed, the other sister-in-law being absent on the record as the court read it. For Section 498A, the collective references to dowry harassment identified no individual tormentor, and the conviction was set aside. The symmetry across the three judgments delivered that day is complete: every cruelty count resting on an ambiguous "they" fell; every count supported by specific attribution or participation stood.
Practice note: For defence counsel in split trials, A.T. Mydeen is both shield and trap — favourable evidence from the co-accused record is as inadmissible as unfavourable evidence, so essential witnesses must be summoned afresh in the later trial. And for accused tempted to evade process: the proclamation years become Section 8 conduct evidence that outlives every other weakness in the prosecution case. An alibi, finally, is an evidentiary plea — it must be proved by the person asserting it, not merely stated in the Section 313 examination.
Frequently Asked Questions
What does A.T. Mydeen require in split trials?
Where co-accused are tried separately — typically because one absconded — each appeal must be decided on the evidence recorded in that accused's own trial. Testimony from the co-accused trial, however probative, cannot be imported. Here the court declined to consider a doctor's degloving evidence because he testified only in the other trial.
How did abscondence affect the outcome?
Her absence for over three years while her co-accused faced trial was treated as conduct relevant under Section 8 of the Evidence Act. Abscondence alone cannot prove guilt, but combined with the dying declaration naming the sisters-in-law, it formed part of the incriminating chain — and her alibi of living in Ghaziabad was pleaded but never proved.
Why was the murder conviction upheld but the cruelty conviction set aside?
The dying declaration placed the sisters-in-law at the scene of the burning, and the deceased's brother said she was named. But on cruelty, neither the declaration nor the testimony specifically attributed dowry demands or harassment to her — the references were collective — so the Section 498A/34 conviction could not stand.
What happens to her sentence now?
With the appeal partly allowed, the life sentence under Section 302/34 survives. Her bail bonds were cancelled and she was directed to surrender to the Jail Superintendent within three working days, failing which the State may arrest her to serve the remainder.