The Supreme Court has held that an accused who absconds cannot later claim the benefit of a witness’s death to exclude crucial testimony recorded during an earlier trial.
The bench of Justice Sanjay Karol and Justice Vipul M. Pancholi ruled that the deposition of a deceased witness can be relied upon against an absconding accused under Section 299 of the Code of Criminal Procedure (CrPC), provided the statutory conditions are satisfied, even if the trial court had not passed a formal order invoking the provision before recording the evidence.
The judgment came in an appeal filed by the State of West Bengal challenging a Calcutta High Court order that had prevented the prosecution from relying upon the testimony of a deceased gang rape survivor in the subsequent trial of an accused who had remained absconding for several years.
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The case arose from an FIR registered in February 2012 alleging that a woman was abducted while returning home from a nightclub in Kolkata and was gang-raped at gunpoint by multiple accused. According to the prosecution, the victim was forcibly taken in a vehicle, sexually assaulted, threatened, and later pushed out of the moving car.
While three accused persons were arrested shortly after the incident, two accused—including respondent Kader Khan—could not be apprehended. Warrants of arrest and proclamation proceedings were initiated against them after they remained absconding despite repeated efforts by the investigating agency.
Following the filing of the charge sheet, the trial was split between the arrested accused and the absconding accused. During the first trial, the victim testified over multiple hearings and was extensively cross-examined by the accused who were facing trial. The prosecution examined a total of 45 witnesses before the trial concluded. Unfortunately, the victim died in March 2015 after completing her testimony. The trial court subsequently convicted the three arrested accused for gang rape, criminal conspiracy, hurt and criminal intimidation.
The respondent and another absconding accused were finally arrested in September 2016, leading to the filing of a supplementary charge sheet and commencement of a separate trial against them. Since the victim had passed away, the prosecution sought permission under Section 33 of the Indian Evidence Act to rely upon her testimony recorded during the earlier trial. The trial court allowed the application, but the Calcutta High Court set aside that order, holding that the prosecution had failed to obtain a specific direction under Section 299 CrPC authorising recording of evidence against the absconding accused.
The Supreme Court examined the scope of Section 299 CrPC, which creates an exception to the general principle that evidence must ordinarily be recorded in the presence of the accused and that an accused must have the opportunity to cross-examine prosecution witnesses.
The Bench observed that Section 299 is specifically intended to preserve evidence against persons who deliberately evade the judicial process by absconding. The provision allows the prosecution to rely upon earlier depositions where the witness subsequently dies or becomes unavailable, provided two foundational facts are established:
- the accused had absconded; and
- there was no immediate prospect of his arrest when the evidence was recorded.
The Court clarified that nothing in Section 299 requires a trial court to pass a formal order expressly recording these findings before the witness is examined. What is material is whether these conditions actually existed on the date the witness gave evidence.
According to the Court, the High Court wrongly interpreted Section 299 by treating the absence of such a formal judicial order as fatal to the prosecution’s case.
The Supreme Court relied upon its earlier decisions in Nirmal Singh v. State of Haryana and CBI v. Abu Salem Ansari, reiterating that Section 299 is an exception to the rule embodied in Section 33 of the Evidence Act. While the statutory preconditions must be strictly established, there is no separate procedural requirement mandating a formal order before recording evidence.
The Court also referred to decisions of the Chhattisgarh, Madras and Delhi High Courts, which had similarly recognised that an absconding accused cannot later object to the use of earlier testimony merely because he voluntarily stayed away from the proceedings and the witness subsequently became unavailable.
One of the central concerns addressed by the Supreme Court was the possibility of accused persons exploiting procedural safeguards by intentionally avoiding arrest until key witnesses die.
The Court observed that adopting the restrictive interpretation accepted by the High Court would effectively reward absconders and undermine the administration of criminal justice. It warned that such an approach could encourage accused persons to remain underground for years, hoping that important witnesses would no longer be available when they eventually face trial.
The Bench held that Section 299 must instead be interpreted in a manner that advances its legislative purpose—preserving evidence against those who deliberately evade the judicial process.
The Court further noted that Parliament retained the same legislative approach while enacting Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023, indicating continued legislative acceptance of the principle.
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