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PETITIONER: PERIYASAMY

       Vs.

RESPONDENT: STATE OF MADRAS

DATE OF JUDGMENT: 25/11/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. MITTER, G.K.

CITATION:  1967 AIR 1027            1967 SCR  (2) 122

ACT: Criminal  Procedure  Code (Act 5 of  1898),  s.  288-Witness implicating accused in committal, proceedings but not  trial court-Witness  treated hostile-No formal order  transferring previous  statement to record of case-If previous  statement can be relied on.

HEADNOTE: In  a  prosecution for murder the only  eye  witness  having named  the appellant as the assailant in her  deposition  in the  committal court, left out his name in her  evidence  in the  Sessions  Court.   She was  declared  hostile  and  was allowed to be cross-examined.  The Sessions Judge questioned the appellant with reference to the statement of the witness in  the committal proceedings and informed him, that it  was marked  under  S. 288, Cr. P.C. He however did not  pass  an order  transferring the earlier deposition to the record  of the  Sessions  Court.  Treating the  previous  statement  as substantive   evidence   and   relying   upon   the    other circumstances  in the case, the Sessions Court and the  High Court on appeal convicted the appellant. On appeal to this Court, HELD  : The High Court and the Sessions Court were right  in convicting the appellant. Although  the technical requirement of s. 288, namely,  that an order should be passed to indicate that the statement  is transferred  so as to be read as substantive  evidence,  was not  complied with there was no substantial  departure  from the  requirements of the law and no prejudice was caused  to the  appellant since he was informed that the statement  was being used under s. 288. [124 E-G] [Desirability  of  an  order  indicating  why  the   earlier deposition was being transferred to the record of the  trial court, pointed out. [124 C-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 136  of 1966. Appeal  by special leave from the judgment and  order  dated January 18, 1966 of the Madras High Court in Criminal Appeal

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No. 697 of 1965 and referred trial No. 90 of 1965. B.   D. Sharma, for the appellant. V.   P. Raman and A. V. Rangam, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against the  judgment  of the High Court of  Judicature  at  Madras, January  18,  1962, by which the High  Court  confirmed  the conviction of the appellant Periyasamy under s. 302,  Indian Penal Code, and the 12 3 sentence of death imposed on him.  The facts of the case are as follows:- Periyasamy  was charged with the murder of his  wife  Kaveri Ammal on the morning of May 11, 1965, at 6 a.m., at a  place in  Kirambur  where they were residing in what is  called  a shed.   Opposite  to  this shed was another  shed  in  which Periyasamy’s  brother with his wife Pappayee (P.  W. 1)  was residing.  Periyasamy and Kaveri Ammal had been married  for a period of two years during which time Kaveri Ammal used to go  away  frequently to her parents’ place, and  the  motive suggested   is  that  it  used  to  enrage   the   appellant Periyasamy.   On  the  morning of  the  day  of  occurrence, Pappayee heard the cry "Ayyo, ayyo", and she states that she saw  Periyasamy striking his wife with a koduval.   Pappayee raised  an  alarm.  Periyasamy thereupon threw  the  koduval away  and  retired  to his shed and taking hold  of  a  rope climbed  a tree.  He tied one end of the rope to a  limb  of the  tree  and  another  round  his  neck  and  jumped,  but meanwhile the neighbours had assembled there and they caught him  and cut him down from the tree and laid him on  a  cot. Periyasamy did not die though there is evidence to show that he had some bruises round his neck. Meanwhile  a  brother of Periyasamy by name  Chinna  ran  to their  father  and informed him about the  occurrence.   The father,.  without  going to verify what he had  heard,  went over to the police station House and lodged a report, saying that  his younger son had informed him that  Periyasamy  had cut  down  his  wife with a koduval and  attempted  to  hang himself  and  that he was making the report.   In  the  last sentence of this report, it was mentioned that Pappayee  had witnessed the occurrence. The  prosecution examined a number of witnesses but  we  are concerned  only with one, namely, Pappayee, P. W. 1, who  is the  solitary  eye-witness  in the case.   It  appears  that Pappayee  changed her statement in the Court of  Session  by leaving  out  the  name of Periyasamy as  the  assailant  of Kaveri  Ammal.  She was, therefore, declared hostile by  the court  and was allowed to be cross-examined under S. 145  of the  Indian Evidence Act.  Her previous statement  was  also brought  on  the  record of the  case.   This  statement  of Pappayee   forms   the  foundation  of  the   case   against Periyasamy,  corroborated  by the other evidence  about  his conduct and the motive for the commission of the offence. The  High  Court  and the court below have  acted  upon  the statement  of  Pappayee  made  in  the  committal  court  in preference  to  the  statement  she made  in  the  Court  of Session,  and  have based the conviction  by  accepting  her previous  version.   In  this  appeal,  Mr.  B.  D.   Sharma naturally  attacked  the evidence of Pappayee  from  various angles and also, tried to establish that the judgment of the 124 High  Court did not satisfy the standards for  an  appellate judgment as laid down by this Court, particularly in a  case dealing  with  the -confirmation of a  death  sentence.   We shall, therefore, examine these contentions in detail.

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The  first  contention  raised by Mr.  Sharma  is  that  the Sessions Judge did not comply with the provisions of s.  288 of  the  Code of Criminal Procedure inasmuch as he  did  not pass  any  order transferring the earlier statement  to  the record of the Sessions trial.  We have not been able to find in the original record of the case, which was brought to our notice,  any  order specifying the transfer of  the  earlier deposition to the record of the Sessions Court under s. 288. It  appears, however, that the practice of this Court is  to ,contradict  a witness with the earlier statement and  parts there  of, after declaring him hostile and then to  use  the record of the earlier statement as substantive evidence.  It may  be stated that it is highly -desirable that  the  court should, before the transfer of the earlier statement to  the record  of  the Sessions case under s. 288, indicate  in  ,a brief order why the earlier deposition was being transferred to  the record of the trial.  This will make it quite  clear to  the accused that the earlier statement is likely  to  be used as substantive evidence against him.  If the matter had rested  with the use of the earlier -statement without  this notice  to the accused, we would have found it difficult  to rely  upon the earlier deposition.  We find,  however,  that Periyasamy was questioned with reference to the statement of Pappayee  made before the Committing Magistrate  which,  the Judge  informed him, was marked under s. 288 of the Code  of Criminal  Procedure,  and he was asked what he  had  to  say about it.  Therefore, although the technical requirement  of the  section,  namely,  that an order should  be  passed  to indicate that the statement is transferred so as to be  read as  substantive evidence, was not complied with, there  does not  appear  to  be  any  substantial  departure  from   the requirements of the law.  There is also no likelihood of any prejudice to Periyasamy since he was informed. while he  was being  examined that the statement was being used  under  s. 288, Criminal Procedure Code, and was invited to say what he wished to say in defence.  We are, therefore, of the opinion that the High Court and the court below were right in  using the statement as substantive evidence -which undoubtedly the Code of Criminal Procedure does allow. Mr.  Sharma next contended that it has been laid down  in  a series of cases that when the solitary witness in a case has made ,conflicting statements, it is very risky to rely  upon any  of the versions and has drawn our attention to  a  case reported in re Muruga Goundan(1) decided by a Division Bench in  which the present Chief Justice of this Court  delivered the judgment.  We entirely agree. (1)  A.I.R 1949 Mad. 628.                             125 But there are cases and cases.  If the matter rests upon the statement  of  a witness, who has changed  the  version  and there  is  nothing further to connect the accused  with  the offence  with which he is charged, there is good ground  for acquitting  him.  We do not think that this is such a  case. The facts here go further.  Pappayee’s two statements,  when they are compared, disclose that the whole of her  testimony as given in the court of the Committing Magistrate was again repeated  in the Court of Session, except that she left  out the  name of Periyasamy as the assailant.  This  appears  to have  been the result of some pressure upon  her.   Although she was induced to say in the Court of Session that she  had made the earlier statement under pressure of the police  and the police threatened to involve her in the murder, we  find other  clear  circumstances from which we can say  that  the statement  made  earlier by Pappayee, is  definitely  to  be preferred  in  the circumstances of this case.   We  proceed

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now, to enumerate what those circumstances are. The  two sheds are situated opposite to each other  and  the door of the shed in which Kaveri Ammal was done to death  is a  kind of matting which Pappayee had stated was then  open. This would be so in May, which, being a hot month, makes the people  open their doors early in the  morning.   Therefore, whatever  happened  inside  the shed  would  be  visible  to persons living in a shed across the road and Pappayee states in  both  the  statements  that she  was  able  to  see  the occurrence. The fact that she is a close relation must weigh considerably against Periyasamy and we must turn, therefore, to  see  whether  he gave  any  reasonable  explanation  why Pappayee should have given the evidence at all against  him. His  version is that he had gone to fetch some kerosene  oil for  working a pump and when he came back he found that  his wife  had been cut to pieces, apparently by some one in  his absence.   He further added in answer to a question that  he was  "on  talking terms" with Pappayee  before  he  married, suggesting  thereby  that  Pappayee  was  enraged  on  being neglected by him after he married Kaveri Ammal.  This motive and  the explanation about his absence are his  explanations to  avoid  the  implications  of  Pappayee’s   incriminating statement. In  our  opinion, neither of these  circumstances  is  clear enough  to make us discard the evidence of Pappayee  brought on  the  record  under  s.  288  of  the  Code  of  Criminal Procedure.   It  seems  too much of a  coincidence  that  an unknown murderer lay in wait to kill Kaveri Ammal during the short  time  her  husband  was away  to  buy  kerosene  oil. Further,  it  seems difficult to believe that  Pappayee  was making this statement because she was jilted in some  manner by   Periyasamy.   There  is  nothing  to  show  that   what Periyasamy alleged was at all the truth, and looking to  the circumstances  of  the  case,  we feel  that  this  is  just something which he has thought out in defence without  being true.  This conclusion is further streng- 126 thened by his subsequent conduct on the discovery by him  of the  murder.  What did Periyasamy do?  He does not  seem  to have  questioned any one as to how this happened during  the short time he was away.  On the other hand, he snatched up a rope, tied it to the limb of a tree and tying the other  end to his neck jumped down in an attempt to commit suicide.  He was  fortunate  (but  not quite  so)  that  some  neighbours arrived  at the critical moment and saved him  from  hanging himself.   This conduct clearly indicates a feeling of  fear or,  may be, of remorse.  It induced him to attempt to  take his own life after he had taken that of his wife.  Mr. B. D. Sharma suggested a number of persons who might be the likely assailants  of  Kaveri  Ammal,  suggesting  the  father   of Periyasamy  or  the  uncles of the girl  and  even  Pappayee herself.   But these suggestions cannot be accepted  in  the light  of  the circumstances.  If they had  been  true,  the husband  would  have stood his ground and attempted  to  see that  the  right  offender  was  brought  to  book  and  not attempted  to commit suicide at the first sight of his  wife lying murdered at the hands of some one else. Mr. B. D. Sharma argued that the judgment of the High  Court had  not taken into account all these  circumstances.   Per- haps, the High Court thought that the case was clear  enough and  did not embark on a detailed judgment.   After  looking into  the  record of the appeal case and  considering  every aspect of the argument which has been advanced before us, we are satisfied that no other conclusion was possible and that the  charge had been completely proved  against  Periyasamy.

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We, accordingly, order the appeal to be dismissed. R.K.P.S. Appeal dismissed. 127