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 DecisionsThe 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...

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

Yash Mittal

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Yash Mittal

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

Yash Mittal

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Yash Mittal

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