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PETITIONER: DHANABAL AND ANR.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT13/12/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR  628            1980 SCR  (2) 754  1980 SCC  (2)  84

ACT:      Benefit of  doubt-When there  is no  legal evidence  to show the  overt act of the accused the benefit of doubt must necessarily follow.      Evidence-Transposition of  the evidence  given  in  the committal  Court   to  the   record   of   Sessions   Court, admissibility of-Whether  attention of  witnesses should  be brought to  the contrary  statement passage  by  passage  as required under  Section 145  of  the  Evidence  Act-Code  of Criminal Procedure, 1898, Section 288.      Recording of  statements by  Magistrates-Mere fact that the police  had reasons to suspect that the witness might be gained  over  and  that  it  was  expedient  to  have  their statements recorded  by the  Magistrate would  not make  the statements of  the witnesses  thus recorded tainted-Criminal Procedure Code, section 164.

HEADNOTE:      The appellants  and the  third accused were brothers of the deceased  Rasayal. They  were charged for the offence of committing the  offence of  murder and were found guilty and sentenced under  section 302 read with section 149 I.P.C. to imprisonment for  life by  the Sessions Court. In appeal the High Court,  acquitted the  third accused  but confirmed the conviction and sentence of the appellants.      In appeal  by special  leave,  three  contentions  were raised namely (i) the conviction of the two appellants based entirely on  the retracted  evidence of  PWs. 1,2,  3 and  5 marked in  the Sessions  Court was  wrong (ii)  the evidence marked under  section 288  was inadmissible  as it  was only read in  full to  the witnesses and had not been put to them passage by passage as required in s. 145 of the Evidence Act and (iii)  the case  of the  second appellant was similar to that of  the third  accused and ought to have been acquitted giving him the benefit of doubt.      Accepting  the   appeal  of   the  2nd   appellant  and dismissing the appeal of the first, the Court ^      HELD:  1.  Talking  into  account  the  facts  and  the probabilities of  the case it is clear that it was the first appellant  who   caused  the  fatal  injury  and  needed  no

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instigation from the second appellant. There was no evidence as to  any overt  act, except  the presence  of  the  second appellant along with the third accused. It was most unlikely that the  second appellant instigated the first accused as a result of  which the  first accused caused the fatal injury. The second  appellant is  entitled to  the benefit of doubt. [495E-G]      2. The  requirements of  section 288  of  the  Criminal Procedure Code would be fully complied with if statements of the witnesses are read in extenso to them 492 and they  admit that  they have made those statements in the Committal Court. The required procedure has been followed in this Case. [497F-G]      Tara Singh  v. State  of  Punjab,  [1951]  S.C.R.  729, Bhagwan Singh v. State of Punjab, [1952] S.C.R. 812 State of Rajasthan v. Kartar Singh, [1971] 1 SCR 56; referred to.      3.  During   the  investigation   the  police  officer, sometimes feels  it expedient  to have  the statement  of  a witness  recorded   under  section   164  Code  of  Criminal Procedure. This  happens when the witnesses to the crime are closely connected  with the accused or where the accused are very influential  which may  result in  the witnesses  being gained over.  The 164  statement that  is recorded  has  the endorsement of  the Magistrate  that the  statement had been made by the witness.                                                    [499 A-C]      4. The mere fact that the police had reasons to suspect that the  witness might  be gained  over  and  that  it  was expedient  to   have  their   statements  recorded   by  the Magistrate, would  not make  the statements of the witnesses thus  recorded   tainted.  If  the  witness  sticks  to  the statement given  by him  to the Magistrate under section 164 Code of  Criminal  Procedure,  no  problem  arises.  If  the witness resiles  from  the  statement  given  by  him  under section 164  in the  committal court,  the  witness  can  be cross-examined on his earlier statement. But if he sticks to the  statement   given  by  him  under  section  164  before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288, Code of Criminal Procedure will  have to  be observed. It is for the Court to consider taking into account all the circumstances including the fact  that the  witness had  resiled, in  coming to  the conclusion as  to whether  the witness should be believed or not. The  fact that  the Police  had section  164  statement recorded by  the Magistrate  would not  by itself  make  his evidence tainted. [499 C-F]      Ram Chandra  & Ors.  v. State of U.P. [1968] 3 SCR 354; explained and relied on.      5. Section  157 of the Evidence Act makes it clear that the statement  recorded under  section 164  of the  Code  of Criminal Procedure  can be  relied on  for corroborating the statements made  by the  witnesses in  the committal  court. Though the  statements made under section 164 of the Code of Criminal Procedure, is not evidenced, it is corroborative of what has been stated earlier in the committal court. [499 F- G]      State of  Rajasthan v.  Kartar Singh,  [1971] 1 SCR 56; followed.      6. A  statement recorded  under section 288 of the Code of Criminal  Procedure of  one witness  can corroborate  the statement  of   another  witness   under  section  288.  The statements are  treated as  substantive evidence  in law and there is no flaw in treating the statement of one witness as corroborative of the other. [500 A-B]

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 406 of 1976.      Appeal by  Special Leave  from the  Judgment and  Order dated 1-9-1975  of the  Madras High Court in Criminal Appeal No. 823/74. 493      A. N.  Mulla, A. T. M. Sampath and P. N. Ramalingam for the Appellant.      A. V. Rangam for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J. This appeal is by Special Leave by accused 1 and  2 in  S.C. 26  of 1974 on the file of Sessions Judge, South Arcot  Division, against their conviction and sentence imposed by  the  High  Court  of  Judicature  at  Madras  in Criminal Appeal No. 823 of 1974 dated 1st September, 1975.      The two Appellants and Muthuthamizaharasan were accused Noc. 1-3  in the  Sessions Court.  The first  appellant  was found  guilty   under  S.   302  I.P.C.   and  sentenced  to imprisonment for  life. The  second appellant  and the third accused were  found guilty  of an  offence under S. 302 read with S.  149 I.P.C.  and sentenced to imprisonment for life. On appeal  by the  two appellants and the third accused, the third accused  was acquitted  by  the  High  Court  and  the appellants Nos. 1 and 2 are before us.      The deceased  Rasayal is  the sister  of appellants and the third  accused. The first accused Dhanabal is the eldest and the  second appellant  and the  third  accused  are  his younger brothers.  The second  appellant married  Laxmi, the daughter of  Rasayal. Rasayal owned about 5 acres of land in Keelakkarai  village.   She  executed  a  general  power  of attorney Exh.  P. 15  on 31st  August, 1970 in favour of the second appellant.  Rasayal,  after  she  lost  her  husband, started leading  an immoral  life which  was disliked by her brothers. As  a result,  Rasayal began  to cultivate her own land inspite  of the power of attorney executed in favour of the second appellant. There was misunderstanding between the parties and  Rasayal had  complained to  the Police  stating that her brothers had threatened to do away with her.      On the date of the occurrence at about 1.30 p.m. on 5th December,  1973,   when  Rasayal   and  her   farm   servant Parmasivam, P.W. 4 were working in her field removing weeds, the two  appellants and  the third  accused converged to the place where  Rasayal was  working. The  first appellant  was armed with  Veecharuval, the second appellant was armed with a spade  and the  third was unarmed. On seeing them, Rasayal ran towards  the channel running adjacent to her fields. The third accused  instigated the  first appellant  to  cut  her saying that  she was  leading an  immoral life  and that she should not  be left.  Thereupon,  the  first  appellant  cut Rasayal on  the right  side of her neck with the Veecharuval and she fell down in the channel, raising an alarm. 494 The second  appellant stated  that she should not be left at that and  that her head should be severed from her body, she being an  immoral  woman.  Thereupon,  the  first  appellant caught hold  of her  hair by  the left hand and cut her neck with the  Veecharuval, severing the head from the trunk. The occurrence  was   witnessed  by   Ramalingam  P.W.   1   and Ramakrishnan, P.  W. 2 who were returning at that time after spraying insecticides  in the  fields of P.W. 1 Chelladurai, P.W. 3  who was coming to the field of Rasayal with food for

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P. W.  4 also  saw the  occurrence. Nagappan  P.W. 5 who was going towards  the scene  of occurrence to meet Ramakrishnan P.W. 2 for getting arrears of wages also saw the occurrence. Soon after  the occurrence,  the first appellant left taking away the  Veecharuval with  him and second appellant leaving the spade near the feet of the deceased Rasayal.      P. W. 4 gave a report Ext. P. 7 to the Sub-Inspector of Police, Kamaratchi  at 3  p.m. on  the same  day.  The  Sub- Inspector recorded the narration of P. W. 4, read it over to him and  obtained his  signatures. After  registering a case under S.  302  I.P.C.  he  took  up  the  investigation  and proceeded to  the scene  of  the  occurrence  and  held  the inquest. The Doctor who conducted the post-mortem was of the view that the deceased appeared to have died of severance of the head  from the  trunk. During  investigation, the Police had S.  164 Cr.  P. C. Statements recorded from P.Ws. 1 to 5 before the Sub-Magistrate, Chidambaram on 24-12-1973. During the committal  proceedings, P.W.  4 turned hostile but P.Ws. 1, 2,  3 and  5 gave  evidence supporting  the  prosecution. After committal,  P.W. 1,  2,  3  and  5  resiled  from  the evidence they gave in the Committal Court. They were treated as hostile  by the Prosecution and their evidence before the Committing Court  was admitted  in evidence  under S. 288 of the Code  of Criminal  Procedure. The  High Court relying on the evidence  of P.Ws.  1, 2, 3 and 5 which was marked under S. 288  of the  Criminal Procedure  Code, found  that it was satisfactorily established  that the first appellant cut the deceased on  the right  side of  the neck,  that the  second accused instigated  the first accused to cut her saying that she was an immoral woman and the first appellant caught hold of her  hair by  the left  hand and  cut her  neck with  the Veechruval, severing  the head  from the  trunk and left the place alongwith  other accused. The High Court acquitted the third accused  on the  ground that  in the F.I.R. it was not mentioned  that  the  third  accused  instigated  the  first accused to  cut the  neck of  the deceased. He was given the benefit of doubt and was acquitted.      Mr.  Mulla,   learned  counsel   for  the   appellants, submitted that  the conviction  of the  two appellants based entirely on the retracted evi- 495 dence of  P.W. 1,  2, 3  and 5  marked in the Sessions Court under S.  288 cannot  be sustained.  Secondly,  the  Learned Counsel submitted that the High Court was in error in taking into account  the statements  recorded  from  the  witnesses under S.  164 of the Code of Criminal Procedure in coming to the conclusion  that the  evidence given  in  the  Committal Court could  be relied  upon. Lastly,  the  Learned  Counsel submitted that in any event the case of the second appellant is similar  to that of the third accused and that the second appellant ought to have been acquitted.      We have been taken through the relevant evidence of the witnesses, their  statements under  S. 164  of the  Code  of Criminal Procedure  and the  evidence given  by them  in the Committal Court  which was  transposed to  the record of the Sessions  Court  under  S.  288  of  the  Code  of  Criminal Procedure. Before considering the questions of law raised by the Learned  Counsel, we  find that  the plea of the learned counsel  on  behalf  of  the  second  appellant  has  to  be accepted. The  case for  the prosecution  is  that  the  two appellants and  the third  accused  went  to  the  scene  of occurrence-the first  appellant armed  with Veecharuval, the second appellant  with a spade and the third accused unarmed converged on  Rasayal and the first accused gave a cut which resulted in  severance of  her head.  We feel  that when the

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three brothers  went to the scene determined to do away with Rasayal,  any  instigation  was  most  unlikely.  The  first accused who actually caused injury is the eldest brother. It is difficult for us to accept that before he actually caused the  injury,   he  needed  the  instigation  of  the  second appellant. In  the deposition  of Ramalingam  P. W. 1, which was marked under S. 288, Code of Criminal Procedure, Ext. P. 2, he stated that first accused came with Aruval, A-2 with a spade and alongwith A-3 went towards Rasayal Ammal. A-1 with the Veecharuval  cut Rasayal  Ammal on  her right  neck. The other persons  were standing  there.  Thus  the  instigation attributed by the prosecution to the second appellant is not found in the evidence of Ramalingam. Taking into account the facts and  the probabilities of the case, we feel it is most unlikely that  the second  appellant  instigated  the  first accused as  a result  of which  the first accused caused the fatal injury.  The  second  appellant  is  entitled  to  the benefit of  doubt. His  appeal is allowed and his conviction and sentence  are set  aside. He  is directed  to be  set at liberty.      We will now take up the first contention of the learned counsel that the conviction based on statements marked under s 288 of 496 the Code  of  Criminal  Procedure  is  not  sustainable  for consideration. S. 288 of the Code of Criminal Procedure runs as follows:-           "The evidence  of a  witness duly  recorded in the      presence of the accused under Chapter XVIII may, in the      discretion of  the Presiding  Judge, if such witness is      produced and  examined be  treated as  evidence in  the      case for  all purposes subject to the provisions of the      Indian Evidence Act, 1872". The plea  of the Learned Counsel is that the evidence marked under S.  288 is inadmissible as it was only read in full to the witnesses  and had  not been  put  to  them  passage  by passage as  required by  S. 145  of the  Evidence  Act.  The procedure that  was adopted  in the  Sessions Court was that when the  witnesses stated  giving a  version hostile to the prosecution, he  was asked  whether he  was examined  in the Committal Court.  The evidence marked as given by him in the Committal Court was read over to the witnesses by the Public Prosecutor. The  witness admitted that he had given evidence as found in the Exh. and that he had signed it. The evidence given in the Committal Court was transposed to the record of the Sessions  Court under  S. 288  of the  Code of  Criminal Procedure.      The procedure adopted was challenged on the ground that S. 288 contemplates that the evidence given during Committal proceedings can  be treated  as evidence in the case subject to  the   provisions  of   the  Indian  Evidence  Act,  and, therefore, each  and every  passage on which the prosecution relies on  should have  been put to the witnesses before the passages can  be marked and treated as substantive evidence. S. 145 of the Evidence Act, runs as follows:-           "A witness  may be  cross-examined as  to previous      statements made  by him  in  writing  or  reduced  into      writing, and  relevant to  matters in question, without      such writing  being shown  to him, or being proved; but      if it is intended to contradict him by the writing, his      attention must,  before the  writing can  be proved  be      called to  those parts  of it  which are to be used for      the purposes of contradicting him."      Reliance was  placed on  the decision  of this Court in Tara Singh  v. State of Punjab, wherein it was held that the

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evidence in  the Committal  Court  cannot  be  used  in  the Sessions Court  unless the  witness is  confronted with  his previous evidence as required under 497 S. 145  of the  Evidence Act. The Court observed that if the prosecution  wishes   to  use   the  previous  testimony  as substantive evidence  then it must confront the witness with those parts  of it  which were to be used for the purpose of contradicting him and then only the matter can be brought in as substantive  evidence under  S. 288.  On the facts of the case the  Court found  that all  that happened  was that the witnesses  were   asked  something   about  their   previous statements and  they  replied  that  they  were  made  under coercion. It  does  not  appear  that  the  entire  previous statements of  the witnesses  were put to them and they were asked whether they, in fact, made the statements.      In Bhagwan  Singh  v.  State  of  Punjab,,  this  Court distinguished the  case of  Tara Singh  v. State  of  Punjab (supra) and  observed that  resort to S. 145 of the Evidence Act is  necessary only  if a witness denies that he made the former  statement.   When  the  witness  admits  the  former statement, all  that is  necessary is  to look to the former statement on  which no further proof is necessary because of the admission  that it was made. Hidayatullah, C.J. in State of  Rajasthan  v.  Kartar  Singh,  while  dealing  with  the procedure to  be adopted  in treating  the statement  in the committal court  as substantive  evidence observed  that the witnesses should  be confronted with their statements in the Committal Court  which are  to  be  read  over  to  them  in extenso. The Chief Justice pointed out that the witnesses in the case  admitted that their statements were truly recorded in the  Committal Court  but  denied  that  they  were  true statement because  they were  made to depose that way by the Police.  It  would  have  been  useless  to  point  out  the discrepancies  between   the  two   statements  because  the explanation  would   have  been   the  same   and   in   the circumstances, the  requirements of  S. 145  of  the  Indian Evidence Act were fully complied with.      It is thus clear from the authorities referred to above that the requirements of S. 288 would be fully complied with if statements  of the  witnesses are read in extenso to them and they  admit that  they have made those statements in the committal Court. The required procedure has been followed in this case  and the attack made by the learned counsel has to fail.      The second  legal  contention  raised  by  the  Learned Counsel was  that the High Court was in error in taking into account the  statements recorded from the witnesses under S. 164 of the Code of 498 Criminal Procedure  in coming  to the  conclusion  that  the evidence given  by them  in the  Committal  Court  could  be relied upon.  The High Court stated "we are satisfied having regard to  164 statements  of P.W.  1 to  3 and  5 that  the statements given  by those  witnesses before  the Committing Court are  true and  could be  relied on"  and proceeded  to observe "that  as there  are  more  statements  admitted  in evidence under S. 288 of the Code of Criminal Procedure than one, the evidence of one witness before the Committing Court is corroborated by that given by others". Mr. Mulla, Learned Counsel, submitted that a statement recorded under S. 164 of the Code  of Criminal  Procedure indicates  that the  Police thought that  the witnesses could not be relied on as he was likely to  change and,  therefore, resorted  to  securing  a statement under  S. 164  of the  Code of Criminal Procedure.

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The statement thus recorded, cannot be used to corroborate a statement made by witness in the Committal Court. In support of this  contention the  learned counsel  relied on  certain observations of  this Court in Ram Chandra and Ors. v. State of U.P.  In that  case, in  a statement  recorded  from  the witness under  S. 164 of the Code of Criminal Procedure, the Magistrate appended a certificate in the following terms:-           "Certified  that   the  statement  has  been  made      voluntarily. The  deponent was warned that he is making      the statement  before the  1st Class Magistrate and can      be used  against him. Recorded in my presence. There is      no Police  here. The  witness did  not go out until all      the witnesses had given the statement." The Court  observed that  the endorsement made is not proper but declined  to infer  from the endorsement that any threat was given  to those  witnesses or  that it necessarily makes the evidence  given by  the witness in Court suspect or less believable. The  view of  the Patna High Court in Emperor v. Manu Chik,  where the observations made by the Calcutta High Court in  Queen Empress v. Jadub Das, that statements of the witnesses  obtained  under  this  Section  always  raises  a suspicion that it has not been voluntarily made was referred to, was relied on by the Learned Counsel. This Court did not agree with  the view  expressed in the Patna case but agreed with the view of Subba Rao, J. (as he then was) in Gopisetti Chinna 499 Venkata Subbiah,  where he  preferred the  view expressed by Nagpur High  Court in  Parmanand v. Emperor, It was observed that  the   mere  fact  that  the  witnesses  statement  was previously recorded  under S.  164 will not be sufficient to discard it.  It was observed that the court ought to receive it with  caution and  if there  are other  circumstances  on record which  lend support  to the  truth of the evidence of such  witnesses,   it  can   be  acted   upon.  During   the investigation  the   Police  Officer,   sometimes  feels  it expedient to  have the statement of a witness recorded under S. 164,  Code of  Criminal Procedure.  This happens when the witnesses to  a crime are closely connected with the accused or where  the accused are very influential which may, result in the  witnesses being  gained over. The 164 statement that is recorded  has the  endorsement of the Magistrate that the statement had  been made  by the witness. The mere fact that the Police  had reasons to suspect that the witness might be gained  over  and  that  it  was  expedient  to  have  their statements recorded  by the  Magistrate, would  not make the statements of  the witnesses  thus recorded, tainted. If the witness  sticks  to  the  statement  given  by  him  to  the Magistrate under  S. 164,  Code of  Criminal  Procedure,  no problem arises.  If the  witness resiles  from the statement given by  him under  S. 164  in  the  Committal  Court,  the witness can  be cross-examined on his earlier statement. But if he  sticks to  the statement  given by  him under  S. 164 before committal enquiry and resiles from it in the Sessions Court, the  procedure  prescribed  under  S.  288,  Code  of Criminal Procedure,  will have to be observed. It is for the Court to  consider taking into account all the circumstances including the fact that the witness had resiled in coming to the conclusion  as to whether the witness should be believed or not.  The fact  that the  Police  had  S.  164  statement recorded by  the Magistrate,  would not  by itself  make his evidence tainted.      S. 157  of the  Evidence Act  makes it  clear that  the statement recorded  under S.  164 of  the Code  of  Criminal Procedure can  be relied on for corroborating the statements

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made by the witnesses in the Committal Court. This Court has expressed its  view that though the statements made under S. 164 of  the Code  of Criminal Procedure, is not evidence, it is corroborative  of what  has been  stated earlier  in  the Committal Court  vide [1971] 1 S.C.R. 56. The High Court was right in  relying on the statement of the witnesses under S. 164 as  corroborating their  subsequent evidence  before the Committal Court.  Equally unsustainable  is the  plea of the Learned 500 Counsel that  a statement  recorded under S. 288 of the Code of Criminal  Procedure of one witness cannot corroborate the statement of  another witness  under S.  288. The statements are treated as substantive evidence in law and we do not see any flaw  in  treating  the  statement  of  one  witness  as corroborative of  the other.  The result  in the question of law raised  by the  Learned Counsel  fail. The appeal of the first appellant  is rejected and his conviction and sentence confirmed. The appeal of the second appellant is allowed and his conviction  and sentence set aside. He is directed to be set at liberty forthwith. V.D.K.                     1st Appellant’s Appeal dismissed.                              2nd Appellant’s Appeal allowed. 501