Can a Deceased Victim’s Earlier Testimony Be Read Against an Absconding Accused?

What Does Section 299 CrPC (Section 335 BNSS) Provide?

Section 299(1) CrPC (Section 335 BNSS) permits a court to record prosecution evidence in the absence of an accused where two foundational conditions are satisfied:

1. The accused has absconded; and
2. There is no immediate prospect of arresting him.

If these conditions exist, the court competent to try or commit the accused may examine prosecution witnesses and record their depositions in his absence.

Once the accused is arrested, the earlier deposition may be given in evidence against him if the witness:

• has died;
• has become incapable of giving evidence;
• cannot be found; or
• cannot be produced without unreasonable delay, expense or inconvenience.

Thus, Section 299 CrPC (Section 335 BNSS) operates in two stages. The first stage concerns the circumstances in which evidence may be recorded in the absence of an absconding accused. The second stage concerns the circumstances in which that earlier evidence may later be used against him.

The provision ensures that crucial evidence is not permanently lost merely because an accused successfully avoids arrest for a prolonged period.

Section 299 as an Exception to the Right of Cross-Examination

The Supreme Court referred to its earlier decision in Nirmal Singh v. State of Haryana, where it had explained that Section 299 CrPC (Section 335 BNSS) is an exception to the normal evidentiary rule.

Under Section 33 of the Evidence Act, earlier testimony is generally admissible only when the party against whom it is sought to be used had the right and opportunity to cross-examine the witness in the earlier proceeding.

An absconding accused does not ordinarily receive such an opportunity. Therefore, Section 299 CrPC (Section 335 BNSS) permits admission of the earlier deposition only as a carefully controlled exception.

Because the provision restricts the ordinary right of cross-examination, its conditions must be strictly proved. The prosecution must establish that the accused was absconding and that there was no immediate prospect of arresting him when the evidence was recorded. It must also establish the subsequent unavailability of the witness on one of the grounds stated in the provision.

The Supreme Court emphasised that these statutory safeguards cannot be ignored. The prosecution cannot simply produce earlier testimony because it is convenient. The factual preconditions must be established like any other fact before the deposition can be used.

Is a Formal Order Under Section 299 CrPC (Section 335 BNSS) Mandatory?

The most important clarification in the judgment concerns the absence of a formal order under Section 299 at the time the victim’s evidence was recorded.

The Supreme Court held that Section 299 does not require the trial judge or magistrate to pass a separate formal order expressly declaring that:

• the accused was absconding;
• there was no immediate prospect of arresting him; and
• the evidence was being recorded specifically under Section 299 CrPC (Section 335 BNSS).

What matters is whether the two foundational facts actually existed and were established when the witness gave evidence.

The Court observed that there is no statutory language making a formal judicial order a condition precedent. The relevant enquiry is factual: was the accused genuinely absconding, and was there no immediate possibility of his arrest on the date of the deposition?

This distinction is important. Section 299 CrPC (Section 335 BNSS) requires substantive compliance with its conditions, not merely ritualistic compliance through a particular form of order.

A court must therefore examine the available record, such as arrest warrants, proclamation proceedings, charge-sheet entries, efforts made to trace the accused and the period for which he remained unavailable.

Reliance on the Abu Salem Decision

The Supreme Court also relied upon CBI v. Abu Salem Ansari. In that case, the Court had held that when an absconding accused subsequently appears, prosecution witnesses should ordinarily be examined afresh. However, where a witness has died, has become incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay or expense, the prosecution may rely on evidence already recorded at the earlier trial.

Such reliance remains subject to proof of the statutory conditions contained in Section 299(1) CrPC (Section 335 BNSS).

The Supreme Court rejected the Calcutta High Court’s interpretation that Abu Salem required a prior express order in every case. The earlier evidence could be admitted at the subsequent trial upon the prosecution establishing the relevant conditions.

An Absconder Cannot Take Advantage of His Own Conduct

The Supreme Court considered the larger consequences of adopting the restrictive interpretation accepted by the High Court. If the testimony of a deceased witness could never be used unless the earlier court had formally recorded it against the absconder, an accused could deliberately remain unavailable until a key witness died or disappeared. He could then surrender or be arrested and demand a completely fresh trial in which the most important evidence was no longer available.

Such an approach would reward abscondence. The Court referred approvingly to decisions of various High Courts which had warned that an accused who avoids trial should not receive the benefit of the death or disappearance of material witnesses. Otherwise, accused persons could manipulate the judicial process by allowing less important co-accused to face trial while the principal accused remains underground until the prosecution evidence becomes unavailable.

The law cannot allow a person to derive an advantage from his own wrongful conduct. At the same time, the ruling does not mean that every earlier statement becomes automatically admissible merely because the accused was absent. The prosecution must still prove every requirement of Section 299 Crpc (Section 335 BNSS).

Purpose of Section 299 CrPC

According to the Supreme Court, the central purpose of Section 299 CrPC (Section 335 BNSS) is the preservation of evidence against an accused who has deliberately absconded.

The provision prevents the criminal justice system from becoming helpless where a witness dies or becomes unavailable before the accused is arrested.

The Court observed that the prosecution cannot be expected to predict, during every trial involving an absconding accused, whether a particular witness will still be alive or available when the absconder is eventually arrested. Requiring a separate Section 299 CrPC (Section 335 BNSS) application in every such earlier trial would impose a procedural condition not found in the statutory text.

The Court further noted that Section 299 CrPC (Section 335 BNSS) does not prescribe a particular stage at which it must be invoked. Therefore, an application seeking reliance on the earlier evidence can be considered during the later trial, when the witness’s death or unavailability has actually arisen.

A contrary interpretation could encourage accused persons to abscond for long periods and wait for the natural death of material witnesses.

Application of the Law to Kader Khan’s Case

Applying these principles, the Supreme Court found that all the requirements of Section 299(1) CrPC (Section 335 BNSS) were satisfied.

1. Proclamation proceedings had been issued against Kader Khan on 12 April 2012.
2. The charge sheet filed on 10 May 2012 specifically showed him as absconding.
3. The victim’s deposition was recorded between 13 March and 3 July 2013. At that time, there was no immediate prospect of Kader Khan being arrested.
4. He was ultimately arrested only on 30 September 2016, more than three years after the victim had completed her deposition.
5. The victim had died on 13 March 2015 and was therefore incapable of being examined during the subsequent trial.

Kader Khan had not challenged the proclamation proceedings or the record showing that he was absconding. Consequently, the Court held that both foundational conditions for invoking Section 299 CrPC (Section 335 BNSS) stood established.

Supreme Court’s Decision

The Supreme Court allowed the State’s appeals and set aside the Calcutta High Court’s order. It upheld the admissibility of the deceased victim’s testimony in the subsequent trial of the absconding accused, subject to the trial court dealing with the evidence in accordance with law.

The ruling establishes that:

• the earlier testimony of a deceased or unavailable witness may be used against a subsequently arrested absconder;
• the prosecution must prove the conditions contained in Section 299 CrPC (Section 335 BNSS);
• a formal order invoking Section 299 CrPC (Section 335 BNSS) at the time of recording the earlier deposition is not mandatory;
• the actual existence of the statutory conditions is more important than the form of the earlier judicial record; and
• an accused cannot exploit his own abscondence to secure the exclusion of material evidence.

The judgment was delivered by a Bench comprising Justice Sanjay Karol and Justice Vipul M. Pancholi in The State of West Bengal v. Kader Khan.

Evidentiary Value Is Different from Admissibility

The judgment principally determines whether the earlier deposition can be admitted in evidence. It does not mean that the testimony must automatically be accepted as conclusive proof of guilt.

Admissibility and evidentiary weight are separate questions. Once admitted, the trial court must still examine:

• the consistency and credibility of the testimony;
• whether the witness was cross-examined by the co-accused;
• whether the testimony is supported by medical, forensic or other evidence;
• whether the witness had an opportunity to observe and identify the accused;
• whether material contradictions exist; and
• whether the prosecution has proved the charge beyond reasonable doubt.

The accused may challenge the reliability, sufficiency and probative value of the earlier testimony even where he cannot cross-examine the deceased witness personally. Thus, Section 299 CrPC (Section 335 BNSS) preserves evidence but does not dilute the prosecution’s ultimate burden of proving guilt beyond reasonable doubt.