How Can Dead Witness's Testimony Be Used Against Accused Who Absconded? Supreme Court Explains S.299 CrPC

The Supreme Court has clarified that the earlier testimony of a witness who has since died can be used against an accused who had absconded during the original trial, provided the conditions under Section 299 of the Code of Criminal Procedure, 1973 (CrPC) are satisfied.

A Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi held that Section 299 CrPC is an exception to the general rule that evidence must be recorded in the presence of the accused and that testimony given in one trial cannot ordinarily be used in another. The provision preserves prosecution evidence where an accused deliberately evades the trial by absconding.

The Court, in a judgment delivered on July 17, held that a formal order under Section 299 of the Code of Criminal Procedure, 1973, is not a prerequisite for recording the evidence of a deceased witness against an accused.

The Court observed that where it is established that the accused had absconded and there was no immediate prospect of arrest, the witness's deposition recorded in the accused's absence may subsequently be used against them, subject to the conditions prescribed under Section 299.

“…it is clear that for statements of witnesses who are dead or otherwise incapable to be used in a trial after the arrest of the accused, two facts must be established before their deposition. The first being that the accused concerned is absconding; and secondly, that there is no prospect of their immediate arrest. There is no statutory requirement in the aforesaid Section, mandating the formal passing of an order by the Magistrate concerned, recording that the above two facts have been complied with, before the witness has deposed. What would be relevant is whether these two essentials stood established on the date of the deposition of the witness.”, observed the Court while setting aside the Calcutta High Court's order which had refused to allow taking on record the victim's testimony recorded in an earlier trial to be used against the absconding Respondent in the present trial after the victim's demise.

The prosecution's case was that a woman was allegedly gang-raped in 2012. Three accused were arrested and tried, but the respondent absconded.

During the trial of the arrested accused, the victim gave her evidence in court and was cross-examined by their lawyers. Before the respondent was arrested, the victim died. After his arrest, the prosecution wanted to use the victim's earlier court testimony against him.

The Calcutta High Court refused, saying that the trial court had not passed a specific order under Section 299 before recording the victim's evidence, prompting the State to file an appeal before the Supreme Court.

Allowing the appeal, the judgment authored by Justice Karol noted that the High Court erred in giving a narrow interpretation of Section 299 Cr.P.C., as the provision doesn't warrant passing of a formal order before recording the witness testimony to be used against an accused, who remained absconding.

The Court further observed that the purpose of Section 299 CrPC would be defeated if the testimony of a victim or witness who has since died is refused to be used against an absconding accused merely because the trial court did not pass a formal order when the testimony was recorded during the trial of the co-accused.

The Court explained that when a witness is alive and available, there is ordinarily no occasion to invoke Section 299 because the witness can be examined in the subsequent trial. It is only when the witness dies, becomes incapable of giving evidence, cannot be traced, or cannot be produced without unreasonable delay or expense that the prosecution may seek to rely on the earlier deposition, subject to the statutory requirements.

"The purported intent is to ensure evidence against an accused is preserved, where he has deliberately absconded from trial. This Court cannot give an interpretation to this Section, which would defeat the very purpose behind it," the Court said.

The Bench also cautioned that such an interpretation could encourage accused persons to deliberately remain absconding for years in the hope that material witnesses would die, thereby crippling the prosecution.

Reliance On Earlier Decisions

The Court relied on its earlier decisions in Nirmal Singh v. State of Haryana (2000) and CBI v. Abu Salem Ansari (2011).

Referring to Nirmal Singh, the Court reiterated that Section 299 is an exception to Section 33 of the Evidence Act, since it permits reliance on testimony recorded without the accused having an opportunity to cross-examine the witness. Being an exception, the statutory preconditions must be strictly established before such evidence is used.

However, the Court clarified that Nirmal Singh did not lay down that a formal judicial order recording satisfaction under Section 299 is mandatory before evidence is recorded.

The Bench also rejected the High Court's narrow reading of Abu Salem. It observed that in Abu Salem, this Court had expressly recognised that where an absconding accused is subsequently arrested, the prosecution may rely on evidence recorded during the earlier trial if the witness has since died or has otherwise become unavailable, subject to satisfaction of the statutory conditions under Section 299.

The Court further noted that this interpretation has consistently been followed by the Chhattisgarh, Madras and Delhi High Courts.

Application To Present Case

The Court noted that since the Respondent-accused remained absconding while the deceased victim's testimony was taken on record in a trial against the co-accused persons, after the passing away of the deceased victim, her testimony can be well used against the Respondent-accused person under Section 299 CrPC.

“…the chargesheet filed on 10.05.2012, showed the respondent as absconding. It cannot be disputed that no challenge has been laid by the respondent to these facts. The deposition of the deceased victim took place from 13.03.2013 till 03.07.2013. Admittedly, on such date there was no prospect of the respondent being apprehended soon. The respondent only came to be arrested on 30.09.2016, three years thereafter. Consequently, the two facts required for invocation of Section 299(1) are met in the instant case. Furthermore, undisputably, the victim passed away on 13.03.2015. Therefore, in our view, the contours of Section 299(1) stand satisfied.”, the Court observed.

In terms of the aforesaid, the appeal was allowed.

Cause Title: THE STATE OF WEST BENGAL VERSUS KADER KHAN

Citation : 2026 LiveLaw (SC) 692

Click here to download judgment

Appearance:

For Appellant(s) : Mr. Siddharth Agarwal, Sr. Adv. Mr. Kunal Mimani, AOR Mr. Kartikey Bhatt, Adv. Ms. Shraddha Chirania, Adv. Mr. Akshay Luthra, Adv. Mr. Karan Dhalla, Adv.

For Respondent(s) :Mr. Aloke Sengupta, Adv. Mr. Suraj Prakash, Adv. Ms. Deblina Sengupta, Adv. Mr. Satya Kam Sharma , AOR