The Supreme Court has ruled that the testimony of a deceased witness recorded during the trial of co-accused can be relied upon against an accused who deliberately remained absconding, provided the legal requirements under Section 299 of the Code of Criminal Procedure (CrPC) are satisfied. The Court set aside the Calcutta High Court's decision, restoring the trial court's order that had permitted the prosecution to rely on the deceased survivor's earlier deposition.
Background of the Case
The case arose from an FIR registered in Kolkata in February 2012 alleging gang rape, criminal intimidation and related offences. While three accused were arrested and tried, two others, including respondent Kader Khan, remained absconding despite warrants and proclamation proceedings.
The trial against the arrested accused proceeded separately. During that trial, the survivor testified over several hearings and was extensively cross-examined by the accused facing trial. She later passed away in March 2015. The three accused were subsequently convicted.
After Kader Khan was arrested in September 2016, a supplementary charge sheet was filed and a separate trial commenced. The prosecution sought permission to use the deceased survivor's earlier testimony under Section 299 CrPC. The trial court allowed the request, but the Calcutta High Court later reversed that order, holding that the requirements of Section 299 had not been properly followed.
Court's Observations
A Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi examined the scope of Section 299 CrPC, which creates an exception to the general rule requiring witnesses to testify in the presence of the accused.
The Bench observed:
“There is no statutory requirement... mandating the formal passing of an order... What would be relevant is whether these two essentials stood established on the date of the deposition of the witness.”
The Court explained that the prosecution only needs to establish two essential facts: first, that the accused had absconded, and second, that there was no immediate possibility of arrest when the witness gave evidence.
Rejecting the High Court's interpretation, the Supreme Court held that the law does not require the prosecution to obtain a separate judicial order before recording such evidence. Instead, what matters is whether the statutory conditions actually existed when the testimony was recorded.
The Bench also cautioned that adopting an overly restrictive interpretation would defeat the purpose of Section 299 and could encourage accused persons to evade trial until important witnesses become unavailable.
Court's Decision
Applying these principles to the facts, the Supreme Court found that proclamation proceedings had already been initiated against the respondent, he continued to remain absconding when the survivor testified in 2013, and there was no immediate prospect of his arrest. By the time he was arrested in 2016, the survivor had already passed away.
Holding that all conditions under Section 299(1) CrPC stood fulfilled, the Court allowed the State's appeals and set aside the Calcutta High Court's judgment dated May 6, 2022.
The trial court's order permitting reliance on the deceased survivor's earlier testimony was restored.
Case Details
Case Title: The State of West Bengal v. Kader Khan
Case Number: Criminal Appeal Nos. 1164–1166 of 2023
Judges: Justice Sanjay Karol and Justice Vipul M. Pancholi
Decision Date: July 17, 2026
