In a gang-rape prosecution where the victim died before two long-absconding accused were finally arrested, the Supreme Court holds that her deposition from the earlier, split trial of the other accused can still be used against them, without any prior court order specifically authorising it.
If a witness dies before an absconding accused is finally arrested and tried, can their earlier testimony from a co-accused's trial still be used against him?
Yes, in certain circumstances. Indian criminal procedure (Section 299 of the Code of Criminal Procedure) allows a witness's deposition, recorded while an accused was absconding, to be used against that accused later — once he is arrested — if by then the witness has died, become incapable of testifying, cannot be found, or cannot be produced without unreasonable delay or expense. The Supreme Court has clarified that there is no requirement for a court to pass a special order in advance specifically saying the evidence 'may be recorded against this particular absconder' before this rule applies. What actually matters is whether, at the time the witness testified, the accused was genuinely absconding and there was no immediate prospect of arresting him. If those two facts existed, and the witness later becomes unavailable (including through death), the earlier testimony can be used against him once he is finally arrested and tried — even though he was never present to cross-examine the witness himself.
Understanding the Legal Principles
When can a witness's earlier deposition be used against an absconding accused?
- —The accused must have been absconding at the time the deposition was recorded
- —There must have been no immediate prospect of arresting him at that time
- —By the time he is later arrested and tried, the witness must be dead, incapable of testifying, untraceable, or unavailable without unreasonable delay, expense or inconvenience
What is NOT required under Section 299 CrPC
- —A trial court is not required to pass a separate, formal order in advance specifically directing that the evidence 'may be recorded against the absconder' before it can later be used against him
- —The law looks at whether the underlying facts existed at the relevant time, not whether a court certified them in advance
Why this exception exists
- —Ordinarily, a witness must be examined in the presence of the accused so he can cross-examine them
- —This is a deliberate exception so an accused cannot benefit from deliberately absconding and simply waiting out the availability of key witnesses
Key Legal Provisions
Code of Criminal Procedure, 1973
- —Section 299 — Record of evidence in absence of accused
Indian Evidence Act, 1872
- —Section 33 — relevancy of certain evidence for proving, in a subsequent proceeding, the truth of facts already stated
Bharatiya Nagarik Suraksha Sanhita, 2023
- —Section 335 — corresponding provision to Section 299 CrPC, noted by the Court as unchanged in substance
Lawyer Essential For
- —Any case involving an absconding co-accused and questions about which evidence can be used against them once arrested
- —Challenging or defending the admissibility of evidence recorded in a split or earlier trial
- —Serious criminal trials involving sexual assault allegations, given the complexity of the evidentiary and procedural rules involved
You Can Handle With Support
- —Understanding, at a general level, why testimony from an earlier trial might still be relevant to a later trial involving a different accused from the same incident
Success Mantras
- "Absconding doesn't erase evidence — it can still catch up with you."
- "The law asks what was actually true at the time, not whether a court wrote it down in advance."
- "Justice for a witness doesn't end when the witness's own voice does."
Practical Guidance
Victims and witnesses in cases with multiple, partly-absconding accused
- —Understand that giving complete testimony once, even under difficult cross-examination, can still matter for the case against accused who are arrested later
- —Know that procedural safeguards exist so an accused's decision to hide from arrest does not automatically defeat the prosecution's case
Accused persons who have been absconding
- —Understand that lengthy abscondence carries real evidentiary risk — testimony given in a co-accused's trial during your absence may later be used against you if the witness becomes unavailable
- —Seek legal advice promptly on surrendering or contesting proclamation proceedings rather than remaining absconding, since delay does not necessarily improve your position
Helplines & Resources
- —National Commission for Women 24x7 Helpline: 14490
- —Women Helpline (national): 181
- —NALSA (National Legal Services Authority) Toll-Free Legal Aid Helpline: 15100
- —Police emergency number: 112
This is a general explanation of the law based on this judgment and is not legal advice for any specific situation. If you are involved in a criminal case, consult a qualified criminal lawyer.