DHANABAL AND ANR. v. STATE OF TAMIL NADU (2)

Citation: [1980] 2 S.C.R. 491

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, P.S. KAILASAM, A.D. KOSHAL

Case summary

The procedure adopted was challenged on the ground that S. 145 r of the Evidence Act and (iii) the case of the second apJY'llant was similar to that of the third accused and ought to have been acquitted giving him tho beaefa of doubt.

Judgment text

DHANABAL AND ANR. v. STATE OF TAMIL NADU December 13, 1979 [S. MURTAZA FAZAL ALI, P. s. KAILASAM & A. D. KosHAL, JJ. J Benffit of doubt-When there 11 110 legal evld~nce to show tht ~Vert llCt •f the accused the benefit of doubt must necessarily follow. Evidence-Transposi1io11 of the evidence given in the commilal Court ff> tlic .. ,. record of Sessions Court, admissibility of-Whether attention of wftnes. rrr should be brought to the contrary statement paJsage by passage a. r rtfuire« u11der Section 145 of the Evidence Act-Code of Criminal Procedure, 1198, Secrion 288. Recording of statement! J by Magistrate:J. -Mere fact that the policfJ h«ti reasons to suspect that the witness might be gained over and that it was ex,e.. dient to have their statements recorded by the Magistrate would not ma~ the stati:ments of the: witnesses thus recorded tainted-Criminal Procedure Cade, sectio11 164.

The appellants and the third accused were brothers of the deceased RaMyaL 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 con. firmed the conviction and aentence CJf tho • two appellants. I. ~ appeal by special lea. ve, threo contention& were raised namely (i) tho 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 e'Yidettccr marked under section 288 was inadmissible as it was only read in full to th·~ witnesses and had not been put to them passage by passage as required in. l. 145 r of the Evidence Act and (iii) the case of the second apJY'llant was similar to that of the third accused and ought to have been acquitted giving him tho beaefa of doubt.

Accepting the appeal of tho 2nd appellant and dismissing the appeal cl' tho first, the Court , HELD: l. T! king into a. ccount the facts and the probabilities of the case it ii cle~1r that it was the first appellant who caused the fatal injury and ne~ded- no in! tigation from the second appellant. There was no evidencl" as to anv ovl". rt 'I. Ct, except the presence of the second appellant a1ong with the third accu~ed. It wa~ most unlikely that the second appeltant instigated the first accu,ed as a rcou! t of which the first accused caused the fatal injury. Tho 1econJ appe! laat io ent:tled to the benefit of doubt. [495 E-0] ' !. The requirements ot section 288 of the Criminal Proccduro Code would J be fulfy complied with if statement• of the witnette. ire rcMi in exten~• t DHANABAL v. TAMIL NADU (Kaila. ram, !. ) ~~l A. N. Mui/a, A. T. M. Sampath and P. N. RamaUngam for tho A Appellant. A. V. Rangam for the Respondent. The Judgment of the Cpurt 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 Divi- • J iion, against their conviction and sentence imposed by the High Court of Judicature at Madras in Criminal Appeal No. 823 ot 1974 dated ~'- ... ht September, 1975. The twp Appellants and Muthuthamizaharasan were accused Noi. 1-3 in the Sessions Court. The first appellant was found guilty c under S. 302 I. P. C. and sentenced to imprisonment for life. Tho second appellant and the third accused were found guilty ol 111. 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 tho thind accused. The first accused Dhanabal is the eldest and t'he aecond appellant and the third accused are his younger brothers.

The aecon meet Ramakrishnan P. W. 2 for getting arrears~~/ cf wages also saw the occurrence. Soon after the occurrence, the first appellant left taking away the Veecharuval with him and second c appellant leaving the spade near the feet of the deceMed Rasayal. P. W. 4 gave a report Ext. P. 7 to the Sub-Inspector of Polico, JCamaratchi at 3 p. m. on the same day. The Sub-Inspector recorded lhe narration of P. W. 4, read it over t{i him and obtained his signaturN. After registering a case under S. 302 I. P. C. he took up th• D investigation and proceeded to the scene of the occurrence and held the inquest. The Doctor who conducted the post-mortem was of th• ' view that the deceased appeared to have died of severance of ths head from the trunk. During investigation, the Police had S. 1()4 Cr. P. C. Statements recorded from P. Ws. 1 to 5 before the Sub- Magistrate, Chidambaram on 24-12-1973. During the commitlal E proceedings, P. W. 4 turned hostile but P. Ws.

1, 2, 3 and S gave evidence supporting the prlJl! ecution. After committal, P. W. 1, 2, 3 and 5 resiled from the evidence they gave in the Committing Court. They were treated as hostile by the Prosecution and their evidence before the Committing Court was admitted in evidence under S. 28& F of the Code of Criminal Procedure. The High Court relying on tbs evidence of P. Ws. I, 2, 3 and 5 which was marked under S. 288 of the Criminal Procedure Code, found that it was satisfactorily estab- + li1lted that the first appellant cut the deceased on the right side pf th• 1teck, that the second accused instigated the first accused to cut her Mying that she was an immoral woman and the first appellant caught G hold of her hair by the left hand and cut her neck with the Veechrunl, severing the head from the trunk and left the place alongwitli other accused. The High Court acquit. led the third accused on tbs ,ound that in the F. I. R. it was n,ot mentioned that the third accu1ed i•!

tipmd the first accused to cut the neck of the deceased. He was 8ina t11e benefit of doubt and was acquitted. H Mr. Mulla, learned counsel for the appellant1, submitted tbd tlte . eavic~'m or the two appellants based, ~ntirely on the retracted •vi- DIU. NA11Al v. TAMIL NADU (Kailasam, /. ) •9~ dence of P. W. 1, 2, 3 and 5 marked in the Sessions Court undtr S. 288 cannot be mstained. Secondly, the Learned Counsel submitted that the High Court was in error in taking into account the statementl! recorded from the witnesses under S. 164 of the Code of Criminal Procedure in coming tp the conclusion that the evidence given in the Committal Court c,ould be relied upon. Lastly, the Learned Counsel 'ubmitted that in any event the case of the second appellant is simi- • lar to that of the third accused and that the second appellant ought to hove 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 Colllmittal Court which wa! transpo\ied to the record of the Sessions Court under S. 288 of the Cod• of Criminal Procedure. Before considering the questions of law raised by the Learned Counsel, we find that the plea of the learned counsd on behalf of the second appellant bas to be accepted. The case for tl1e pl'Ol'! ecution is that the two appellants and the third accused went to the m:ene 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 three brothers went to the scene determined to do away with Rasayal, any instigauon 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, be 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 A. ruval, A-2 with a spade and alongwi! A A-3 went towards Rasayal Ammal. A-1 with the Veecharuval cut Raiayal Ammal on her right neck. The other persons were standinJ tl1cre. Thus the instigation attributed by the prosecution to the secpnd appellant is not found in the evidence of Ramalingam. Taking int,o ' ao:count the facts and the probabilities of the case, we feel it is mosl un! ik:ely that the se ! 4116 6UPllEMI! COU. T HPOllTS [1980] 2 S. C. ll. lltcl Code of Criminal Procedure is not sustainbalo for. considcnliOll.. to.

288 of the Code of Criminal Procedure runs Iii follow11 :- "The evidence of a witness duly recorded in the presence of the accused uuder Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined be treated Iii evidence in the case for all purpose11 subject to the provisions of the Indian Evidence Act, 1872". The plea of the Learned Counsel is that the evidence marked uuder i. 288 is inadmissible Iii it was only read iu full to the witne11sos and had not been put to them passage by passage as required by Ii. 145 of the Evidence Act. The procedure that was adopted in ths lie1111ions Court was that when the witnessea started giving a versio.. l1011tile to the prosecution, he was asked whether he was examined Ori the Committal Court. The evidence marked as given by hint ia 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 uuder S. 288 of the Code of Criminal Procedure. The procedure adopted was challenged on the ground that S. 28S contemplates that the evidence given during Committal proceedings e«n be treated as evidence in the case subject to the provision9 of the Indian Evidence Act, and, therefore, ea,ch and every passage on which the prosecution relies on should have been put to the witneases before the passages can be marked and treated as substantive evidence. S. 145 of the Evidence Act, runs as follows :- "A witne11 may be cross-examined as to previous 11tatements mado 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 purpoiOll of contradicting him.

" Reliance was placed on the decision of this Court in Tara Sineh v. State of Punjab,(') wherein it was he_ld that the evidence in th• Committal Court cannot be used in the Sessions Court unless the witneSi is confronted with his previoui evidence as required under (I) [19,J] S. C. R. 729. DHANAB. U v. TAMIL NA. DU (XaikuaM, /. ) Of S. 145 of the Evidence Act. Tho Court observed that i1 the pro- A' secution 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 wa; that the witnesses were asked something about their previous state- • ments and they replied that they were made under coercion.

It does not appear that the entire previous statements of the witnessei were put to them and they were asked whether they, in fact, made tho 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 wit" UCIOS 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. Jt would have been useless to point out Coe discrepancies between the two statements because the cx~lonation 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 hc!. ve 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 wa' that the High Court was in error in taking into account the statements recorded from the witnesses under S. 164 of the Code of • (I) [1952] S. C. R. 812. (2) [1971] 1S. C. R. 56. Criminal Procedure in coming to the conclusion that the evidence aiven 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" llrtd 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 Conrt is corroborated by that given by others". Mr. Mulla, Learned Couill! el, ~ubmitted that a statement recorded under S.

164 of the Code of Criminal Procedure indicates that the Police thought that the witne~s es 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. 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 Coun in Ram Chandra and Ors. v. State of U. P. (') In that case, in 11 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 tho statement before the 1st Class Magistrate and can be used against him. Recorded in my presence. There is no Police here. The wi! ness 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 witness"' or that it necessarily makes the evidence given by the witness in Court suspect or less believable. The view of the . Patna High Oiurt in Emperor v. Manu Chik,(') where the observations made by the Calcutta High Court in Q''"°' Empress v. Jadub Das,(3) that statemen:s 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 I! (I) (1968) 3 S. C. R. 354. (2) A. I. R. 193i Pat. aP0-295. (3) 21 cal. l95. DHANAllAL v. TAMIL NADU (Kailasam, !. ) ~99 Venkata Subbiah,(1) where he preferred the view expressed by Nagpur High Court in Parmanand v.

Emperor,(') It was observctl 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 ther• are other circumstances on record which lend support to the truth of the evidence of such witnesses, it can be acted upon. Durint 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 art very influential which may, result in the witnesses being gained over. The 164 statement that is recorded has the endorsement or tb Magistrate that the statement had been made by the witness.

Tho mer• 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 tht 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 resi! es 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 •ticks 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 circum- ~tances 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 bad S.

164 statement recorded by th• Magistrate, would not by itself make his evidence tainted. S. 157 of the Evidence Act makes it clear that the statement rec0rded under S. 164 of the Code of Criminal Procedure can be relied on for corroborating the statements made by the witnesses in the Committal Court. 1lis Court has expressed its view that though ~, the statements made under S. 164 Cf 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 Higa Court 'vas right in relying on the statcn1cnt of the Y1·'itn~sscs under S. 164 as corroborating their subsequent evidence before the Committal Court. Equally unsustainable is the plea of the Learned n (I) l. L. R. (19. l. l) A. P. 633-31. (2) A. LR. 1940 Na1. 34. 580 SUPJll! MI! COUJl. T REPORTS [1980] 2 s. c. R. A Counsel that a statement recorded under S.

288 of tho Code ot Criminal Procedure of one witness cannot corroborate the statemeat of another witness under S. 288. The statements are treated a11 substantive evidence in law and we do not see any flaw in treatina the statement of one witness as corroborative of tho other. Tho reiult in the question of law raised by the Learned Counsel fail. The appeal of the first appellant is rejected and his conviction ani • •entence confirmed. The appeal of the second appellant is allowei 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.