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PETITIONER: CHINNAMMAL

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       20/11/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This  six   accused-respondents  were   tried  for  and convicted or  offences punishable  under Sections  147, 148, 307 and  302 IPC  (3 counts),  I appeal,  the High Court set aside  their   convictions  and  acquitted  them.  Aggrieved thereby the  appellant, who happens to be the wife of one of the three  deceased and  figured as  an eye  witness to  the incident, filed this appeal after obtaining special leave.      On perusal  of the  impugned judgment  we find that the principal reason  which  weighed  with  the  High  Court  in setting aside  the convictions of the accused-respondents is that the  statement (Ext.  01) made  by the  accused persons during the incident) before a Magistrate which was initially recorded as  her  dying  declaration  but  was  subsequently treated as a statement recorded under section 164 Cr.P.C. in view of  her survival  and the  report (Ext.  P1)  that  she lodged with  the police  (which was  treated  as  the  first information Report)  contradicted each  other maternally. In our considered  view, this  approach of  the High  Court  in dealing with  the evidence  was patently  wrong. It is trite that a  case has  to be decided on the basis of the evidence adduced by  the witnesses  during the trial and any previous statements made  by any of such witnesses can be used by the defence  for   the  purpose   of  only   contradicting   and discrediting that particular witness in the manner laid down in Section  145 of  the Evidence Act. Under no circumstances can such  previous  statements  be  treated  as  substantive evidence as  has been treat by the High Court in the instant case. In  view of  these well settled principles of law, the High Court was first required to consider the statement made by the  prosecution witnesses  during trial  and decide  for itself whether  those statements  should be  relied upon  in view of  their contradictions  (if any)  with their  earlier statements, provided  those contradictions  had been brought on record  under Section  145 of the Evidence Act. The other patent infirmity  in the  impugned judgment is that the High Court discarded  the evidence  of  the  witnesses  who  gave ocular version  of the  incident with a sweeping observation that they  were artificial and unnatural and that it was not possible to  place  any  reliance  upon  their  testimonies,

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without referring, much less discussing the same.      For the  foregoing discussion we set aside the impugned judgment and  remand  the  matter  to  the  High  Court  for disposal of  the appeal  in accordance  with law.  Since the matter is  long pending,  the High  Court  is  requested  to dispose  of   the  appeal   as  expeditiously  as  possible, preferably within  a period  of two  months from the date or communication of  this order.  The accused  respondents, who are on  bail will continue to remain so till disposal of the appeal by the High Court.