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Supreme Court Allows Dead Witness's Testimony Against Absconding Accused Under Section 299 CrPC
In a pivotal judgment, the has clarified that the earlier testimony of a witness who later dies can be read against an accused who deliberately absconded from trial, provided the stringent conditions of are satisfied. The Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi allowed an appeal by the State of West Bengal , setting aside a order that had blocked the use of the deceased victim’s in the trial of Kader Khan , the . The decision reinforces that an absconder cannot be allowed to profit from the misfortune of a witness passing away while he was on the run.
The Long Road to Justice
The case had its genesis in when a young woman was gang-raped at gunpoint after being offered a lift from a disco in Kolkata. An FIR was lodged against five persons, including Kader Khan and another man who managed to evade arrest. While three co-accused were promptly apprehended and tried, Khan and one other remained fugitives. The trial of the arrested accused proceeded, and the survivor deposed extensively over several months in 2013. Tragically, she passed away in , months before the three co-accused were convicted and sentenced to ten years’ rigorous imprisonment.
When Kader Khan was finally arrested in , a was filed and a fresh trial commenced. The prosecution moved an application under read with Section 299 CrPC, seeking to bring on record the of the deceased victim from the earlier trial. The trial court allowed the application in , but the High Court at Calcutta, in a , held that the could not be used because no formal direction had been given by the trial judge under Section 299 CrPC at the time the witness was examined. The State then approached the Supreme Court.
The Essence of Section 299 CrPC
At the heart of the dispute was the interpretation of Section 299 CrPC, which creates an exception to the sacrosanct rule that evidence in a criminal trial must be recorded in the presence of the accused. The provision permits the court, when it is satisfied that an accused has absconded and there is no immediate prospect of arrest, to record the evidence of prosecution witnesses in his absence. Crucially, if the witness is later dead, incapacitated, or cannot be secured, that may be used against the accused once he is apprehended.
The State, represented by , argued that all substantive conditions of the provision were met. Kader Khan had been declared a , his whereabouts were unknown for over four years, and the victim’s testimony was recorded in 2013 when there was no prospect of his imminent arrest. The absence of a separate formal order by the trial court, it was submitted, did not vitiate the use of the . The respondent contended that the High Court was correct in insisting on a direction from the court at the time of recording the evidence, and that the could not be transferred retrospectively.
Supreme Court’s Reasoning: Substance Over Form
The Supreme Court rejected a hyper-technical reading of Section 299. Drawing on its earlier decisions in Nirmal Singh v. State of Haryana [(2000) 4 SCC 41] and CBI v. Abu Salem Ansari [(2011) 4 SCC 426], the Bench emphasized that the provision contains two distinct parts. The first part deals with the circumstances under which witnesses may be examined in the absence of the accused, and the second part lays down when that may be used in the subsequent trial. What matters, the Court held, is whether the two essential facts – that the accused was absconding and there was no immediate prospect of arresting him – actually existed on the date the was recorded. A formal order merely recording satisfaction is not a statutory prerequisite.
“From a conjoint reading of this elaborate discussion and the statutory provisions, 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 . 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.”
The Court then highlighted the larger purpose of the provision. An accused who consciously evades trial for years should not be allowed to benefit from the death or unavailability of crucial witnesses, a situation that would otherwise cripple the prosecution and reward the absconder’s misconduct.
“If a restrictive view of Section 299(1) is taken, it would be against its purported intent. … The prosecuting agency cannot move an application in the first trial as a matter of rule in every trial where the accused is absconding, envisioning that by the time they are apprehended, the concerned witness will not remain available due to death or other circumstances.”
The judgment also drew support from a consistent line of High Court decisions – including the High Courts of Chhattisgarh, Madras, and Delhi – which had interpreted the Abu Salem ruling to mean that evidence recorded in a prior trial may be relied upon against a later-arrested accused, subject only to proof that the preconditions of Section 299(1) were met.
Preventing a “Premium on Absconding”
The Bench issued a stern warning against any interpretation that could give a “premium” to those who flee justice. If could, by the simple expedient of staying underground, force the prosecution to re-examine witnesses who might later die or disappear, the entire criminal justice system would be subverted. The Court quoted with approval the observation of the in Farida alias Farid Ahmed v. State of Chhattisgarh that “it would result in the main accused getting scot-free easily and such a situation in the larger perspective would be dangerous in a civilized society governed by the .”
The Final Order
On the facts, the Supreme Court found that both preconditions were unquestionably met. Kader Khan was declared an absconder in , the victim’s took place between , and he remained at large until . By that time, the victim had already died. Consequently, the use of her earlier testimony in his trial was entirely lawful.
The appeals were allowed, the order of the High Court at Calcutta dated was set aside, and the trial court’s decision admitting the was restored. The ruling now stands as a significant reaffirmation of the legislative intent behind Section 299 CrPC – ensuring that an cannot escape the weight of incriminating evidence merely because a witness is no longer alive to repeat it in the fresh trial.
