Supreme Court permits use of deceased victim's earlier deposition against absconding accused

A bench of Justices Sanjay Karol and Vipul M. Pancholi held Section 299(1) CrPC needs no formal order and revived a gang-rape victim's deposition against a later-arrested accused.

The Supreme Court has held that the deposition of a witness recorded during an earlier trial can be used against an accused who had absconded and was arrested only later, once that witness has died. In The State of West Bengal v. Kader Khan, a division bench of Justices Sanjay Karol and Vipul M. Pancholi allowed the State's appeal and set aside a Calcutta High Court order that had barred the use of a deceased gang-rape victim's testimony.

The Court read Section 299(1) of the Code of Criminal Procedure as requiring only that the accused was absconding and that there was no immediate prospect of arrest at the time the witness deposed. It found no statutory requirement for a Magistrate to pass a formal order recording these facts. The ruling matters because it prevents an absconding accused from gaining an advantage by outlasting a witness.

How the dispute reached the Court

FIR No. 29/2012 was registered on 9 February 2012 under Sections 376/223/506/34 of the Indian Penal Code and Sections 25(ii)(a) and 27 of the Arms Act, 1959, against five accused, including the respondent Kader Khan. The complaint stated that on 5 February 2012 the victim, returning home from a Kolkata disco around 12:15 am, was offered a lift, then threatened and gang-raped at gunpoint before being pushed out of the moving car near Exide House.

Three accused — Nishad Alam, Sumit Bajaj and Md. Nasir Khan — were apprehended on 18 February 2012. The respondent and Md. Ali Khan could not be traced. A warrant of arrest was issued against them on 5 March 2012, and on 12 April 2012 a proclamation was issued, with notices affixed on 12 and 16 April 2012.

The chargesheet filed on 10 May 2012 against the three apprehended accused showed the respondent and Md. Ali Khan as absconding, with a prayer for a supplementary chargesheet. The trial was segregated on 22 January 2013, and charges were framed against the apprehended accused on 19 February 2013.

The victim deposed from 13 March 2013 to 3 July 2013 and was extensively cross-examined; the prosecution examined 45 witnesses. She died on 13 March 2015. On 10 December 2015 the trial court convicted the three apprehended accused of gang-rape, criminal conspiracy, hurt and criminal intimidation, sentencing them to ten years' rigorous imprisonment.

The respondent and Md. Ali Khan were arrested on 30 September 2016, and a supplementary chargesheet was filed on 24 November 2016. During their trial, the prosecution applied on 20 April 2018 under Section 33 of the Indian Evidence Act, 1872, to admit the deceased victim's earlier statement. The trial court allowed this on 5 September 2018.

On the respondent's revision, the Calcutta High Court set aside that order on 6 May 2022. It held that Section 299 CrPC cast a duty on the prosecution to obtain a direction from the trial court that evidence be recorded against the absconder, and that the victim's earlier deposition could not be made admissible in the later trial.

What the Court held on Section 299(1)

The Court treated Section 299 CrPC as a departure from the rule that a witness must be examined in the accused's presence and that evidence in one trial cannot be used against an accused in another. Drawing on Nirmal Singh v. State of Haryana, it noted the provision has two parts — the circumstances in which prosecution witnesses may be examined in the accused's absence, and when such depositions may later be used against him.

Reading the provision with precedent, the Court identified two facts that must exist before a deposition can later be used: that the accused was absconding, and that there was no prospect of his immediate arrest. It held there was “no statutory requirement” mandating a formal Magistrate's order recording compliance before the witness deposed.

What mattered, the Court said, was whether these two essentials stood established on the date the witness deposed.

The reasoning and the precedent

The Court relied on CBI v. Abu Salem Ansari, where it had permitted evidence from an earlier trial to be used against an absconding accused subject to the conditions in the first part of Section 299(1). It rejected the High Court's reading that Abu Salem required a report and a specific order before such use.

The bench noted this interpretation of Abu Salem had been followed by several High Courts. It cited the Chhattisgarh High Court in Farida alias Farid Ahmed v. State of Chhattisgarh, the Madras High Court in Abdul Aziz v. State of Tamil Nadu, and the Delhi High Court in Afzal v. State, each allowing earlier depositions where witnesses had died or become untraceable.

The Court reasoned that a restrictive reading would defeat the provision's purpose of preserving evidence against an accused who deliberately absconds. It said the prosecution cannot be expected to move an application in the first trial as a rule, anticipating that a witness will later be unavailable. The text of Section 299(1) places no limitation on the stage at which it may be invoked.

A narrow reading, the Court warned, “may also prompt accused persons to wilfully abscond” and await the witness's death. It observed that the legislature made no change to the corresponding provision, Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Application to the facts

On the record, the proclamation notice against the respondent was issued on 12 April 2012, and the chargesheet of 10 May 2012 showed him as absconding, neither fact challenged by him. The victim deposed between 13 March 2013 and 3 July 2013, when there was no prospect of his early arrest. He was arrested only on 30 September 2016, and the victim had died on 13 March 2015.

The Court concluded that both facts required to invoke Section 299(1) were met and that the provision's contours stood satisfied.

The State was represented by senior counsel Siddharth Aggarwal; the respondent by advocate-on-record Satya Kam Sharma.

Order

The Court allowed the appeals and set aside the Calcutta High Court's order dated 6 May 2022 in C.R.R. 3012 of 2018. Pending applications were disposed of.