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PETITIONER: SHRANAPPA MUTYAPPA HALKE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA(and connected appeals)

DATE OF JUDGMENT: 27/08/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, S.K. HIDAYATULLAH, M.

CITATION:  1964 AIR 1357            1964 SCR  (4) 589  CITATOR INFO :  R          1971 SC1450  (20)  RF         1978 SC1770  (28,29)

ACT: Criminal Trial-Evidence of witness   before committing court- Resiled  in  Sessions Court-Whether  corroboration  required -Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 28.

HEADNOTE: The  appellants  were convicted by the High Court  for  com- mitting  three  murders.   In  this  case  the  High   Court considered  the testimony of one "Parwati", given by her  in the  committing  court.   She  was in  eye  witness  of  the occurrence  according  to her testimony  in  the  committing court.  In the sessions court she resiled from her  previous statement  before  the  committing  Magistrate  and  made  a definite  statement  that she had not seen  the  occurrence. Her  evidence  before the committing court was  tendered  as evidence  under s. 288 Criminal Procedure Code in the  court of  sessions.  Her evidence before the committing court  was not   corroborated  in  respect  of  participation  in   the occurrence by four appellants.  The High Court convicted the appellants  on  the basis of the statement made  by  Parwati before  the committing Magistrate on the ground that it  was substantive  evidence  which did not  require  any  corrobo- ration.  Held, that the evidence of a witness tendered under s.  288 of the Code of Criminal Procedure before the Sessions  Court is  substantive  evidence.   In law  such  evidence  is  not required  to be corroborated.  But where a person  has  made two contradictory statements on oath it is ordinarily unsafe to rely implicitly on her 590 evidence  and the judge, before he accepts one or the  other of  the statements as true, must be satisfied that  this  is so.   For such satisfaction it will ordinarily be  necessary for  the evidence to be supported by extrinsic evidence  not only  as  to the occurrence in general but  also  about  the participation  of the accused in particular.  But in a  case where  even  without  any extrinsic evidence  the  judge  is satisfied about the truth of one of the statements, his duty

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will be to rely on such evidence and act accordingly. Bhuboni  Sahu v. The King, A.I.R. 1949 P.C. 257, relied  on. On the facts of this case, it was held that without corrobo- ration  from  extrinsic  evidence, the High  Court  was  not justified in acting on the evidence of the only eye  witness Parwati, given in the committing court.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  75, 100 and 101 of 1963. Appeals  from the judgment and order dated February 27,  28, 1963 of the Bombay High Court in Criminal Appeal No. 1077 of 1962. S.   G.   Patuwardhan   and  A.  G.  Ratnaparkhi   for   the appellant(in Cr.  A. No. 75 of 1963). B.   B.  Tawakley, Harbans Singh and A. G. Ratnaparkhi,  for the appellants (in Cr.  A. Nos. 100 and 101 of 1963). D.   R. Prem, K. L. Hathi and B. R. G. K. Achar, for R.   H. Dhebar, for the respondents. August 27, 1963.  The Judgment of the Court was delivered by DAS GUPTA J.-On June 11, 1961 at 5 p.m. the road in front of the  Temple  of Shri Maruti in the village of  Chinchpur  of Taluk  Sholapur was the scene of a terrible tragedy.   Three persons-Revansidappa, and his two maternal uncles,  Yellappa and  Maruti  were  done to death there in  a  most  gruesome manner.   Revansidappa’s  neck was severed  from  the  body, except  for a piece of skin and one of his legs was  chopped off.  The spinal cord and vertebra of Yellappa were cut off. The  jaw, vertebra, tongue and a major part of the  neck  of Maruti were cut off. The  first  information that reached the police  station  of this  tragedy  was by a letter of the village  police  patel written  on  the same day and addressed to the  Police  Sub- Inspector  of Mandrup.  It merely stated that three  murders had taken place in course of riot and maramari at 5 p.m.  in the evening and mentioning the names of the men who had been murdered.  This letter reached the police sta-                             591 tion  at 2.30 a.m. Head Constable Bansode who was in  charge of the police station then left for the place of  occurrence after  having sent a report to the Police Sub-Inspector  who was  camping  at Bhandrkavathe village.   The  Sub-Inspector reached  Chinchpur  at  about 11 a.m.  on  the  12th.   Some constables  had  already reached the  village.   Vishwanath, Head Constable of Mandrup with two other constables who  had been  on duty on the bridge over the Bhima river which  runs west  of  the  village Chinchpur learnt  of  these  terrible murders  at 7 p.m. on the very date of the murders and  left for  the  place, arriving at the village at 9.30  p.m.  They found the three dead bodies lying there and the Police Patel and some other persons present.  Head Constable Ram  Chandra Bansode reached the place at 6.30 a.m. on the 12th and after making  enquiries had three persons,  Gurpadappa,  Parasappa and  Daulappa brought to the place.  They were  arrested  by the  Sub-Inspector  when he arrived.  The only  witness  the Sub-Inspector  could examine on that date was  Parwati,  the step mother of the deceased Revansidappa.  He found that all the  men had left the village and only women  were  present. After completing the investigation the Sub-Inspector sent up cliarge-sheet against 13 persons. All  the  thirteen  were tried by the Sessions  Judge  on  a charge  under  s.  148 of the Indian Penal  Code,  on  three charges under s. 302/34 of the Indian Penal Code, with three

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alternative  charges under s. 302/149 of Indian  Penal  Code and a further charge under s. 342 of the Indian Penal  Code. Three  out  of  the  13,  viz.,  Gurpadappa,  Parasappa  and Annarava  Shivabala were convicted by the  learned  Sessions Judge  under s. 302/34 of the Indian Penal Code on  each  of the  three  counts and sentenced to imprisonment  for  life. All the three were also convicted under s. 342 of the Indian Penal   Code   and  sentenced  to   six   months’   rigorous imprisonment.   Gurpadappa and Annaraya were also  convicted under  s.  147  of the Indian Penal Code  and  sentenced  to rigorous   imprisonment  for  two  years.    Parasappa   was convicted  under  s.  148  of  the  Indian  Penal  Code  and sentenced  to  rigorous imprisonment for three  years.   The sentences  were directed to run concurrently.  The other  10 accused persons were acquitted by the learned Judge. 592 Gurpadappa, Parasappa and Annaraya Shivabala appealed to the High Court of judicature at Bombay against their  conviction and sentence.  Their appeal was dismissed and the conviction and  sentence  of  Gurpadappa and  Annarava  were  affirmed. Parasappa’s conviction was also affirmed but after notice on him  as  to  why the sentence should not  be  enhanced,  the sentence of life imprisonment was enhanced to one of  death. The  State  appealed against the order of acquittal  of  all other  accused  except  that of Sangappa.   The  High  Court allowed  the  State’s appeal in respect of three  of  these, viz.,  Shranappa, Ganpati and Tipanna and convicted them  of the  offence with which they were charged.  The  High  Court sentenced  Shranappa  to death and Ganpati  and  Tipanna  to imprisonment for life.  The State’s appeal in respect of the other six were dismissed.  Sliranappa had filed the  present appeal under Art. 134(1)(a) of the Constitution.  The  other five,  viz.,  Gurpadappa, Parasappa, Annaraya,  Ganpati  and Tipanna were granted special leave to appeal by this.  Court and on the basis of that they have filed the appeals against the orders of conviction and sentence passed against them. The  prosecution  case is that there had for  sometime  been trouble between Gurpadappa and his brother Dhannappa on  the one  side and Parwati and the deceased Revansidappa  on  the other  over the possession of a plot of land  in  Chinchpur. According  to Parwati and Revansidappa this land had  merely been  mortgaged to Gurpadappa by Revansidappa’s  father  and the  debt  had been paid out and they were entitled  to  get back  possession.   To this Gurpadappa did not  agree.   He, however, agreed to Parwati’s request that the dispute may be settied  by  a Panchayat.  But without calling  a  Panchayat Gurpadappa  and his brother started cultivating the land  on June  10.  When Parwati saw this, she protested ; but to  no purpose.   The  two  brothers said that there  would  be  no Panchayat. On the next day i.e., June 11, Revansidappa who used to live with  his  maternal  uncles  at  the  neighbouring  village, Chanegaon, came to Parwati’s house at Chinchpur with his two uncles,  Maruti  and Yellappa.  Shortly after this  all  the thirteen accused persons came in front of                             593 the  house  and  demanded that  Revansidappa,  Yellappa  and Maruti  should  come out of the house.  When they  did  not, some of the accused went on the roof of the house and  began to  remove  it by means of spades.  Some  iron  sheets  were actually  removed.   Ultimately,  at  the  instance  of  two neighbours Gourava and Panchppa the  three unfortunate young men  came  out of the house.  They were led  to  the  school which stands some way north of Parwati’s house.  From  there one  by one they were taken near the Maruti  Temple  outside

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the  Ves,  the village wall and done to death.  It  is  said that  Yellappa  was struck by Parasappa and  Shranappa  with axes while the other accused beat him with sticks.  He  died instantaneously.  Next was the turn of Revansidappa.  He was also  struck  with axes by Shranappa and Parasappa  and  all others with sticks.  Revansidappa died immediately.   Maruti was brought there last of all; Parasappa and sangappa struck him  with axes and the other accused with sticks.   He  also died on the spot.  All the accused then left the place. Three of them, Gurpadappa, Parasappa and Daulappa were taken into  custody on the very next day.  Annaraya Shivabala  was arrested  on June 13 and Sliranappa and Ganpati Shamraya  on the  following day.  Three more accused,  Dhanappa,  jakanna and  Ganpati  Gurling were arrested three  days  later.   On August  6,  1961 were arrested Tipanna and  Dhondappa.   The remaining  accused Sangappa surrendered in Court on  October 16, 1961. All  the  accused pleaded not guilty.  Their case  was  that they had been falsely implicated-Gurpadappa and his  brother Dhanappa  because  they  were  in  possession  of  the  land purchased  by them, which Revansidappa and his  step-mother, Parwati,  had been claiming and the other accused either  on suspicion  or because they had supported Gurpadappa and  his brother over the land dispute. Shranappa’s appeal is one of right under Art. 134(1) (a)  of the  Constitution.   To decide his appeal  it  is  therefore necessary for us to examine the evidence adduced in the case for  ourselves  and  to see whether the  assessment  of  the evidence on which the High Court convicted him is proper and justified.   That  evidence  consists in this  case  of  the testimony of a single witness Par- 594 wati,  given  by  her in the Court  of  the  Committing  Ma- gistrate.   This is undoubtedly substantive evidence,  which if believed, would be sufficient in law to support the order of  conviction.   For, it was brought on the record  of  the Sessions Court under the provisions of s. 288 of the Code of Criminal  Procedure  ; when in, the Sessions  Court  Parwati resiled  from her previous statement before  the  Committing Magistrate  and made a definite statement that she  had  not seen the occurrence the question has. naturally been  raised whether  this  evidence  of  Parwati  which  is  substantive evidence at the Trial under the provisions of s. 288 of  the Code of Criminal Procedure required corroboration before the Court should act on it. The question how far evidence in the Committing, Court given by  a witness who refiles from it at the Trial  in  Sessions and  which is brought in as evidence at the Trial  under  s. 288 of the Code of Criminal Procedure requires corroboration or not, has engaged the attention of most of the High Courts in  India in numerous cases.. Many such judgments have  been cited  before us and extensive passages have been  read  out from some of them.  While the dust of controversy  sometimes obscured  the simplicity of the true position, most  of  the learned  Judges  have,  if  we may  say  so,  with  respect, appreciated the situation correctly.  That is this.  On  the one hand, it is true that corroboration of such evidence  is not  required in law ; but it is equally true that in  order to  decide which of the two versions, the one given  in  the Committing Court and the one in the Sessions Court, both  of which  are  substantive evidence, should  be  accepted,  the judge of facts would almost always feel inclined to look for something  else  beyond  this evidence itself  to  help  his conclusion.  We cannot do better in this connection than  to quote  from  the  observations on  this  question  by  their

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Lordships  of  the  Privy Council in  Bhuboni  Sahu  v.  The King(1).   In that case the evidence of an approver  in  the Committing Court had been brought on the record under s. 288 of  the  Code  of  Criminal  Procedure.   Dealing  with  the question  as  to  the value that can  be  attached  to  such evidence their Lordships observed thus (1)A.I.R. 1949 (P.C.) 257. 595               "Apart   from  the  suspicion   which   always               attaches  to the evidence of an accomplice  it               would plainly be unsafe, as the judges of  the               High  Court recognized, to rely implicitly  on               the evidence of a man who had deposed on  oath               to two different stories." This,  if  we may say so, with respect, is the crux  of  the question.   Where  a  person  has  made  two   contradictory statements  on oath it is plainly unsafe to rely  implicitly on  his  evidence.  In other words, before  one  decides  to accept  the evidence brought in under s. 288 of the Code  of Criminal  Procedure as true and reliable one has to  be  sa- tisfied  that this is really so.  How can that  satisfaction be  reached?  In most cases this satisfaction can come  only if there is such support in extrinsic evidence as to give  a reasonable  indication that not only what is said about  the occurrence  in  general but also what is  said  against  the particular  accused sought to be implicated in the crime  is true.  If there be a case-and there is such infinite variety in  facts and circumstances of the cases coming  before  the courts  that it cannot be dogmatically said that  there  can never  be  such  a case-where even  without  such  extrinsic support  the  Judge  of facts, after  bearing  in  mind  the intrinsic  weakness of the evidence, in that  two  different statements  on  oath have been made, is satisfied  that  the evidence  is true and can be safely relied upon,  the  judge will be failing in his duty not to do so. The  present is not one such case.  It is true that  Parwati has  in  this  deposition in the Committing  Court  given  a detailed account of not only the incidents at the house  and the three young men, Rvansidappa, Maruti and Yellappa  being taken  out of her house to the accused persons but  also  as regards  how  they were led to the village school,  how  one after the other the three were taken near the Maruti Temple, how her entreaties to spare them were in vain and the manner of attack on each of the victims.  The learned judges of the High  Court  appear  to  have been  impressed  by  the  very vividness  of  this  description  and  persuaded  themselves apparently from this alone that she was speaking the  truth. Unfortunately the important fact that the witness had made a totally  different  statement on oath in another  Court  and denied to have seen the occurrence did not receive from  the lear- 596 ned judges the attention it deserved.  Again, the ability to describe vividly should not be mistaken for anxiety to speak truly.   For,  one often exists without the  other.   Closer scrutiny  of  Parwati’s statement in  the  Committing  Court discloses some features, at least, for which no  explanation is available. According  to her account Yellappa was first taken from  the school to the temple and that all the thirteen took part  in the attack.  If that be true, there were none of the accused party  to  guard Revansidappa and Maruti, who  were  in  the school  during  this time.  Who however was  left  to  guard them?  To this we find no answer from Parwati’s  deposition. There is the same mystery as to who was left to guard Maruti

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when Revansidappa was next taken and killed-all the thirteen taking  part in the attack according to her.  It is also  to be  noticed  that  she  does  not  clearly  state  in   this deposition where exactly she was standing or sitting  during the occurrence.  The place where the bodies were  discovered and  where undoubtedly these three young men were killed  is outside  the  village  wall.  This wall would  have  a  door through which, if the prosecution story is true, the victims were taken out.  Was Parwati also allowed to go out?  If she was  riot,  could she have seen the actual attack  on  these three persons from her place on the village side of the Ves. We  look in vain in Parawiti’s deposition for any answer  to these questions. Again,  according to her story, three axes were used in  the attack.  Only one axe was however discovered at the place of occurrence.   How is it that while two axes were taken  away the  third was left behind?  There may be a good  answer  to this question.  But none is furnished by the evidence on the record. This  being the nature of Parwati’s evidence it is,  in  our opinion, clearly unsafe to accept her testimony against  any of   the  accused  persons  unless  corroborated  by   other evidence.  In respect of Shranappa, whose appeal we are  now considering, there is admittedly no such corroboration.   It is  not possible therefore to accept what Parwati  had  said against this appellant as true.  The High Court has, in  our opinion, fallen into error in acting on her testi-                             597 mony even in the absence of corroboration.  We hold that the prosecution has failed to prove its case against him and  he must be acquitted of the charges against him. The  appeals by the other five, is by special leave of  this Court, but what we have stated above as regards the need  of corroboration of Parwati’s testimony in the Cornmiting Court applies  equally in respect of each of them also.  There  is no  such  corroboration whatsoever in respect  of  Parwati’s story  of  participation in the  occurrence  of  Gurpadappa, Ganpati  Shamraya  and Tipanna.  As regards  the  other  two appellants,  Parasappa and Annaraya Shivabala,  some  slight corroboration has been offered by the prosecution.  That  is in the presence of stains of human blood on the soles of the Chappals seized from them at the time of their arrest.   The value of this corroboration is considerably reduced  however by  the  fact that before these chappals  were  seized  from Parasappa  on Julie 12 and from Annaraya Shivabala  on  June 13,  these accused persons had been brought up to the  place of  occurrence.  There is scope therefore for thinking  that the  soles  of the chappals became stained with  blood  when they  walked over the blood-stained ground.  It will not  be reasonable thereforeto  treat  the  presence  of  these blood  stains on the soles of their chappals  as  sufficient corroboration  of  Parwati’s  evidence  against  them.   The conviction  of these five appellants also  cannot  therefore stand. Accordingly,  we allow the appeals, set aside the  order  of conviction  and sentence passed against them and order  that they be acquitted. Appeals allowed. 598