Supreme Court Restores Deceased Gang-Rape Victim’s Testimony Against Accused Who Evaded Arrest for Years
Facts
On 5 February 2012, the victim was returning home from a nightclub in Kolkata at approximately 12:15 a.m. One of the accused, Lavi Gidwani, offered to drop her home.
After she entered the car, other accused persons also entered it. When the victim asked to be allowed to leave, they allegedly refused, continued driving and threatened her. She was allegedly gang-raped at gunpoint and later pushed out of the moving car near the Exide House crossing.
Based on her written complaint, FIR No. 29 of 2012 was registered on 9 February 2012 under Sections 376, 223, 506 and 34 IPC and Sections 25(ii)(a) and 27 of the Arms Act against five accused persons.
Three accused—Nishad Alam, Sumit Bajaj and Md. Nasir Khan—were arrested on 18 February 2012. However, Kader Khan, the respondent before the Supreme Court, and another accused, Md. Ali Khan, could not be apprehended.
A warrant of arrest was issued against the absconding accused on 5 March 2012. Proclamation proceedings followed on 12 April 2012, and the notices were affixed on 12 and 16 April 2012.
The charge sheet filed on 10 May 2012 showed Kader Khan and Md. Ali Khan as absconding. The prosecution reserved its right to file a supplementary charge sheet against them after their arrest.
The Calcutta High Court directed that the trial of the arrested accused be separated from that of the absconding accused. Accordingly, the trial was split on 22 January 2013.
The victim’s evidence was recorded on several dates between 13 March and 3 July 2013. She was extensively cross-examined by the accused who were then facing trial. The prosecution examined 45 witnesses in total.
The victim died on 13 March 2015. On 10 December 2015, the three accused who had faced trial were convicted of gang rape, criminal conspiracy, voluntarily causing hurt and criminal intimidation and sentenced to ten years’ rigorous imprisonment.
Kader Khan and Md. Ali Khan were eventually arrested on 30 September 2016. A supplementary charge sheet was filed against them on 24 November 2016 under Sections 376(2)(g), 120B, 323, 506 and 34 IPC.
During their separate trial, the prosecution applied for permission to use the deceased victim’s testimony recorded in the earlier trial. The Trial Court allowed the application on 5 September 2018.
Kader Khan challenged that order before the Calcutta High Court. On 6 May 2022, the High Court set aside the Trial Court’s order, holding that the victim’s earlier deposition could not be used against him because no specific prior direction had been obtained under Section 299 CrPC for recording evidence against the absconder.
The State of West Bengal challenged the High Court’s decision before the Supreme Court.
Issues
- Whether the testimony of a victim recorded during the trial of the arrested co-accused could be used in the subsequent trial of an accused who was absconding when that testimony was recorded.
- Whether Section 299(1) CrPC requires the Trial Court to pass a formal order, before recording the witness’s evidence, declaring that the accused had absconded and had no immediate prospect of arrest.
- Whether the requirements of Section 299(1) CrPC were satisfied when the respondent had been declared an absconder and the victim died before his arrest.
- Whether excluding the victim’s earlier testimony would permit an accused to benefit from deliberately avoiding arrest and trial.
Petitioner’s Arguments
The State of West Bengal argued that Kader Khan had been absconding when the victim’s evidence was recorded in the earlier trial.
The State relied on the following circumstances:
- A warrant of arrest was issued against the respondent on 5 March 2012.
- Proclamation proceedings were initiated on 12 April 2012.
- The charge sheet filed on 10 May 2012 expressly showed him as absconding.
- The victim’s testimony was recorded between March and July 2013.
- The respondent was arrested only on 30 September 2016, more than three years after the victim’s testimony.
- The victim died on 13 March 2015, before the respondent’s arrest.
The State contended that Section 299(1) CrPC does not require a formal order to be passed before recording evidence in every case involving an absconding accused. What matters is whether the statutory conditions actually existed when the evidence was recorded.
It was argued that excluding the victim’s testimony would reward the respondent for remaining absconding until after the victim’s death. Such an interpretation would defeat the purpose of Section 299 CrPC, which is intended to preserve evidence against an accused who avoids trial.
The State further submitted that the earlier testimony could be admitted after establishing that the respondent was absconding, there was no immediate prospect of his arrest and the witness had subsequently died or become unavailable.
Respondent’s Arguments
The respondent opposed the use of the victim’s earlier testimony on the ground that it had been recorded during a separate trial and in his absence.
He contended that he had no opportunity to confront or cross-examine the victim when her evidence was recorded. Ordinarily, evidence recorded in one trial cannot be used against an accused in another trial unless the statutory exceptions are strictly satisfied.
The respondent relied upon the Calcutta High Court’s reasoning that Section 299 CrPC imposed a duty on the prosecution to obtain a specific direction from the Trial Court permitting the witness’s evidence to be recorded against the absconding accused.
According to the respondent, the absence of such a formal order meant that the deposition could not subsequently be admitted in his trial.
Analysis of the Law
Section 299(1) CrPC creates an exception to the ordinary rule that a witness must give evidence in the presence of the accused and that the accused must have an opportunity to cross-examine the witness.
The provision permits a court to record prosecution evidence in the absence of an accused where:
- The accused has absconded; and
- There is no immediate prospect of arresting him.
After the accused is arrested, the earlier deposition may be used 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.
Because Section 299 is an exception to the accused’s ordinary right to confront and cross-examine witnesses, its statutory requirements must be strictly established.
However, the Supreme Court clarified that the provision does not require the court to pass a formal order recording these conditions before the witness gives evidence. The decisive consideration is whether the accused was actually absconding and whether there was no immediate prospect of his arrest on the date the witness’s evidence was recorded.
The question of using the earlier testimony generally arises only after the accused is arrested and the witness is found to be dead or otherwise unavailable. The prosecution cannot be expected to predict in every trial that an unavailable accused will remain absconding until after a material witness dies.
The Court also noted that the corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023—Section 335—has not materially altered this legal position.
Precedent Analysis
Nirmal Singh v. State of Haryana
The Supreme Court explained that Section 299 CrPC consists of two stages.
The first stage concerns the recording of prosecution evidence when the accused has absconded and there is no immediate prospect of arrest.
The second concerns the use of that deposition after the accused is arrested, provided the witness has died, become incapable of giving evidence, cannot be found or cannot reasonably be produced.
The Court held that these conditions must be strictly proved because Section 299 is an exception to the general rule embodied in Section 33 of the Evidence Act.
In the present case, the Supreme Court clarified that Nirmal Singh did not require a formal prior order in any particular form. It required the underlying statutory conditions to be established.
CBI v. Abu Salem Ansari
In Abu Salem, the Supreme Court held that evidence recorded during the earlier trial of co-accused could be used against an accused who had been absconding, provided the conditions under Section 299(1) CrPC were established.
If the witness remained available, the prosecution would ordinarily have to examine the witness afresh. However, if the witness had died, become incapable of testifying, could not be found or could not reasonably be produced, the prosecution could rely upon the earlier testimony.
The Supreme Court found that the Calcutta High Court had incorrectly interpreted this precedent.
Farida alias Farid Ahmed v. State of Chhattisgarh
The Chhattisgarh High Court held that an accused who avoids trial cannot later take advantage of the death or unavailability of material witnesses.
Otherwise, an accused facing serious allegations could deliberately remain absconding until important witnesses died or became unavailable and then seek exclusion of their earlier testimony.
The Supreme Court found this reasoning consistent with the purpose of Section 299 CrPC.
Abdul Aziz v. State of Tamil Nadu
The Madras High Court held that an accused who deliberately remained absent from trial could not later complain that he had lost the opportunity to confront witnesses who had died or become unavailable.
It observed that the right to confront a witness is valuable but is subject to statutory exceptions, particularly where the accused has deliberately absconded.
Afzal v. State
The Delhi High Court permitted the earlier testimony of a deceased witness to be used against an accused who had been declared a proclaimed offender when the evidence was recorded.
The decision supported the principle that the court must examine whether the accused was absconding and whether the witness had subsequently become unavailable.
Court’s Reasoning
The Supreme Court found that both essential conditions for recording evidence under Section 299(1) CrPC existed when the victim testified.
First, Kader Khan was absconding. A proclamation had been issued against him on 12 April 2012, and the charge sheet dated 10 May 2012 expressly showed him as an absconder. He had not challenged these facts.
Second, there was no immediate prospect of his arrest when the victim’s evidence was recorded between March and July 2013. He was arrested only on 30 September 2016, more than three years later.
The victim died on 13 March 2015, before the respondent’s arrest. Consequently, she could not be examined afresh during his separate trial.
The Court rejected the High Court’s conclusion that a formal order under Section 299 CrPC had to be passed before the victim’s evidence was recorded. The statutory provision does not prescribe such a procedural requirement.
According to the Supreme Court, the relevant question was whether the two factual requirements—abscondence and absence of any immediate prospect of arrest—stood established when the witness testified. Both requirements were satisfied in this case.
The Court also reasoned that the need to transfer or use an earlier deposition normally arises only after the witness becomes unavailable. Requiring the prosecution to obtain an advance order in every case would impose a condition not found in the statutory text.
A restrictive interpretation would also encourage accused persons to evade trial and wait until material witnesses die or become unavailable. Such an interpretation would defeat the purpose of Section 299 CrPC and allow an accused to benefit from his own conduct.
Conclusion
The Supreme Court allowed the appeals filed by the State of West Bengal and set aside the Calcutta High Court’s order dated 6 May 2022.
It held that a formal prior order declaring compliance with Section 299(1) CrPC is not mandatory. The prosecution must instead establish that, when the witness’s evidence was recorded:
- The accused was absconding; and
- There was no immediate prospect of arresting him.
It must further establish that, when the earlier evidence is sought to be used, the witness is dead, incapable of giving evidence, cannot be found or cannot reasonably be produced.
Since Kader Khan was absconding when the victim testified, there was no immediate prospect of his arrest, and the victim died before he was eventually apprehended, her testimony recorded during the earlier trial could be used in his subsequent trial.
Case Details
Case: The State of West Bengal v. Kader Khan
Court: Supreme Court of India
Case Number: Criminal Appeal Nos. 1164–1166 of 2023; 2026 INSC 718
Judge: Justice Sanjay Karol and Justice Vipul M. Pancholi
Date: 17 July 2026
Result: Appeals allowed. The Calcutta High Court’s order was set aside, and the deceased victim’s testimony recorded during the earlier trial was permitted to be used in the subsequent trial of the respondent, subject to Section 299(1) CrPC.
