The Public Prosecutor vs Kandaiyan and Others

Ramamurti, J.—The State has preferred this appeal against the acquittal of the accused in S.C. No. 82 of 1970 of West Thanjavur Sessions

division, in which the four accused, the respondents herein, were charged for the offence of murder punishable under S. 302, I.P.C. on the ground

that they, on 10th April, 1970 at about 1 p.m. have murdered one Kaliaperumal in Mandakara St., Ayyampettai. The prosecution examined six

Fwitness as eye witnesses to the occurrence. We probed into the matter and scrutinised the evidence and we have reached the conclusion that the

decision of the Court of Session is right and that the accused were rightly acquitted.

The first and the second accused are brothers, the third accused is the paternal uncle''s son of accused 1 and 2 and the fourth accused is their

uncle by courtesy. The deceased Kaliaperumal was the Vice-President of Nallicheri panchayat. The case for the prosecution is that about 10 or 11

a.m. on 10tn April, 1970 P.W. 1 Alagarswami, P.W. 2 Vaithiyanathan, P.W. 3 Dakshinamurthi, son of the deceased P.W. 4 Govindaraj and the

deceased Kaliaperumal started from Nelicherri by walk through a short cut to the bazaar at Ayyampettai to purchase certain articles, that after

passing through the main road, they reached Mandakara Street at about 1 p.m. that when the deceased went to purchase some betel and nuts, the

four accused were standing on the eastern side of the street covering their bodies with towels, that the first accused at that time told the other

accused "" here comes Kalian, I will cut him first. You also cat him continuously and kill him,"" that so saying the first accused took out an arrival

which was kept concealed by him under his towel and cut the right cheek of the deceased again on the right hand and stomach. The second

accused similarly took an arrival which he had concealed in his towel and cut the deceased on the left hand. Accused 3 and 4 similarly took out the

arrival which they had kept concealed and inflicted injuries on the chest, neck, head etc. of Kaliaperumal. In this manner, and after inflicting about

27 injuries in all indiscriminately on the several parts of the body of the deceased, the accused disappeared from the scene. It is the case of the

prosecution that this was witnessed by P. Ws. 1 to 5 and 7.

After the accused left the scene, P. Ws. 1 to 4 went to the place where Kaliaperumal was lingering suffering from the injuries but unable to talk.

Immediately P.W. 1 proceeded to the Ayyampettai Police Station and reported the occurrence to P.W. 14 the Sub-Inspector. P.W. 14 at once

rushed to the scene of occurrence and saw Kaliaperumal lying with injuries and p. W. 14 at once took Kaliaperumal in a bullock cart to

Ayyampettai Government dispensary. By the time the deceased reached the Ayyampettai Government dispensary, P.W. 12 the Civil Assistant

Surgeon there examined the deceased at 1-15 p.m. and found him dead. P.W. 12 gave the death intimation. Ex. P.7 P.W. 14 immediately took

P.W. 1 with him to Ayyampettai police station at about 2 p.m. and recorded the F.I.R. Ex. P. 1 and registered case of murder under S. 302 I.P.C.

It is stated that the F.I.R. given by P.W. 1 was reduced to writing at about 2 p.m. P.W. 14 conducted the inquest between 4-30 and 7 p.m. at

which he examined the P. Ws. 1 to 4. Ex. P. 13 is the inquest report. Arrangements were made for sending the dead body for post mortem

examination. At about 7-15 p.m. P.W. 15 the Inspector took up the further investigation. He prepared an observation mahazir Ex. P. 3, recovered

the Bloodstained earth M.O. 3 and on the next day on 11th April 1970 he examined some witnesses, in particular P. Ws. 5 and 7. The doctor

conducted autopsy on 11th April 1970 at 7.50 a.m. and Ex P. 8 is the post mortem certificate, which shows that there were 27 injuries of which

injuries Nos. 21 and 23 were necessarily fatal. It is not necessary to refer to the further details of investigation. The accused were said to be

absconding and they surrendered before the Sub Magistrate, Thiruvalyaru on 7th May 1970. There was an identification parade on 20th July 1970

it which P.W. 7 identified all the fear accused. It is difficult to attach any value to the evidence arising from the identification parade because of the

considerable delay. The accused surrendered on 7th May 1970 and P.W. 7 was examined on 11th April itself, he is alleged to have been present

at the scene and witnessed the occurrence. The delay has not been properly accounted.

The motive for the occurrence has been rightly rejected as very flimsy and slender:

x x x

[The discussion of the fact is emitted-Ed.]

x x x

The next eye witness is P.W. 7 in the Court of Session he was treated as hostile and so the deposition which he gave in the committal court has

been marked as Ex. P. 2. The evidence of P.W. 7 is that his brother-in-law is having a provision shop in the bazar, that he went to his brother-in-

law''s provision''s shiep on the date of the occurrence and at that time he noticed a group of persons inflicting the cut injuries upon the deceased cut

that he did not actually notice who the assailants were. It is at this stage when P.W. 7 stated in the Sessions Court that he did not notice who the

assailants were that he was treated hostile and Ex. P. 2 was marked under S. 288 Crl. P.C. We have some comments to make about the

unsatisfactory and irregular procedure adopted by the learned Sessions Judge in mechanically invoking S. 288 Crl. P.C. Even accepting the

evidence of this witness in the committal court as substantive, evidence, it is difficult to hold that the guilt of the accused has been established

beyond reasonable doubt. P.W. 7 admittedly did not notice as to who amongst the inflicted the injuries, and his oral evidence therefore is sought to

be corroborated by the evidence of the identification parade. In chief-examination in the committal court he has stated that three persons, one after

another indiscriminately cut the deceased near the Nizam Mohideen''s shop. He later explained the statement by saying that the first accused was

standing with arrival and accused 2 to 4 were inflicting the cut injuries. According to him therefore the first accused inflicted no injuries but was

merely watching standing with the arrival in the cross-examination he knows only the first accused by name Kandan for the past 2 or 3 years''s that

he knows generally accused 2 to 4 but not their names. Curlously enough he admits that immediately after the occurrence he closed his shop and

went away and he returned back to notice that the entire bazar was completely deserted. He admits that he was there in the bazar at the scene of

occurrence for about half an hour; if so, he must have been there at the time when P.W. 14, the Sub Inspector came to the scene along with P.W.

1 end would have certainly been examined by the Sub Inspector. He too gives evidence in a halting manner with deliberation creating the

impression that he is an unwilling witness. We cannot understand why this witness was not examined at the inquest on 10th itself. In one portion of

his evidence he says that Nallicheri people came about half an hour after the occurrence which would mean that the four accused came to the

scene of occurrence after half an hour. If so understood, it is clear that the four accused are not the assailants. The identification parade was held

after considerable delay and the evidence of the identification is useless. We think it unsafe to accept the evidence of this witness for establishing

the guilt of the accused beyond reasonable doubt.

From the above analysis it will be seen that the motive relied by the prosecution is very slender and flimsy; the evidence of P. Ws. 1, 2 and 4

who were chance witnesses who were alleged to have accompanied the deceased is unsatisfactory and does not inspire any confidence. The

evidence of P. Ws. 5 and 7, persons of the locality at the scene of occurrence is worse and full of gaps and prevarications. They are not prepared

to give evidence with a full and frank disclosure. At every stage there is an attempt on their part to be non-committal; one witness has turned hostile

and even otherwise has proved to be unreliable. After a careful scrutiny of the evidence we do not find any ground for interference with the order

of acquittal passed by the Sessions Court.

We think it necessary to reiterate the principle underlying S. 288 Crl. P.C. and the safeguards and conditions to be borne in mind when making

use of (in the court of Sessions) statements made by accused and witnesses in the committal court as we notice in innumerable cases the section

has been invoked in a mechanical and light hearted manner. The instant case is one of each type. S. 288 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).

This S. 288 Crl. P.C. is an exception to the general well established rule that all evidence must be directed and the evidence which the court can

act upon is the statement made by any person who appears in court and gives viva voce evidence in relation to a relevant fact. S. 33 of the

Evidence Act is another exception. One important requirement in S. 288. Crl. P.C. which is not acquired in S. 33 of the Evidence Act is that

before the prior statement of a witness becomes admissible, the witness must appear in court and give evidence. The section enacts an important

safeguard to provide for contain gencies of the accused tempering with the prosecution witnesses. The section confers power upon the Judge to

treat the evidence given by a witness before a Magistrate as substantive evidence if he is satisfied that the witness when examined in the court of

sessions holds back true evidence and tells a false and distorted story different from that which he gave in the committal court actuated by

extraneous considerations like blood relation-ship friendship or sympathy etc. This section should be invoked very sparingly and statements made

before committing magistrates ought not to be admitted in evidence as a mattes of routine. The discretion vested in the court is not to be lightly

used; it must be exercised judicially. The proper occasion is only after the Court of sessions is satisfied that the statement made before him is sub-

stantlally false and the statement before the committal court is substantially true. Variations and discrepancies noticed in the evidence given in the

court of sessions in relation to the evidence before the committal court will not justify the application of this provision. The first condition is the

satisfaction of the Judge and his decision to exercise the discretion. The second condition is that when the previous deposition is admitted it is done

so subject to the provisions of the Evidence Act.

There was considerable divergence of judicial opinion as to whether the admission of a prior deposition given in the committal court should

also satisfy the requirements of S. 145 of the Evidence Act. The controversy is now set at rest by the decision of the Supreme Court reported In

Tara Singh Vs. The State, which has been followed in all subsequent decisions. It is new settled law that there should be substantial compliance

with the provisions of S. 145 of the Evidence Act, that principles of natural justice require that the attention of the witness should be drawn to the

crucial an relevant portion of his evidence in the committal court and he should be afforded a fair and reasonable opportunity of explaining the

variations and contradictions as emerging from his evidence in the court of sessions. As the learned Public Prosecutor has relied upon the recent

decision of the Supreme Court reported in State of Rajastan v. K. Singh and others (1970) 2 S. C. J. 41 as laying down a different principle with

regard to the accessity for compliance with S. 145 of the Evidence Act, It is necessary to refer to the important decisions of the Supreme Court on

the point. The first is the decision in Tara Singh Vs. The State, which resolved the conflict and the divergence of judicial opinion and laid down the

rule that while admitting the and acting upon the prior deposition before the committal court under S. 288. Crl. P. C there should be substantial

compliance with the provisions of S. 145 of the Evidence Act. In that case all that happened was that two witnesses were asked something about

their previous statements to which they replied that they were made under coercion. The Supreme Court held that as there was no compliance with

the provisions of S. 145 of the Evidence Act; their prior depositions were not admissible. It was pointed out that the evidence before the Sessions

Court could be allowed to be contradicted and displaced only after the Judge was satisfied about the need for invoking S. 288 and had decided to

exercise his discretion. After referring to the rival points of view the law was stated in these terms:

In my opinion, the second line of reasoning (Note: The second line of reasoning in the context is the view that there, should be substantial

compliance with the previsions of S. 145 of the Evidence Act) is to be preferred. I see no reason why S. 145 Evidence Act, should be excluded

when S. 288 states that the previous statements are to be ''subject to the provisions of the Indian Evidence Act.'' S. 145 falls fairly and squarely

within the plain meaning of these words. More, than that. This is a fair and proper provision and is in accord with the sense of fair play to which

courts are accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a

witness with his former statement when S. 288 is resorted to, it is always desirable that should be done if only for the reason that an omission to do

so weakens the value of the testimony, I am of opinion that the matter is deeper than that, and, giving effect to the plain meaning of the words

''subject to the provisions of the Indian Evidence Act'' as they stand, I hold that the evidence in the Committal court cannot be used in the Sessions

Court unless the witness is confronted with his previous statement as required by S. 145 Evidence Act. Of course, the witness can be cross-

examined about the previous statement and that cross-examination can be used to destroy his testimony in the sessions Court. If that serves the

purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary

as substantive evidence, that it must, in my opinion confront the witness with these parts of it which are to be used for the purpose of case

traducing him. Then only can the matter be brought in as substantive evidence under S. 288. As two of the eye witnesses were not confronted in

the manner required by S. 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is

considerably weakened.

It is unnecessary to refer to the wealth of case law after this clear pronouncement by the Supreme Court, and it is sufficient to refer to the

following headnote in a decision of this Court reported in In Re: Kumaraswami Naicker, which emplasises the necessity for complying with the

provisions of S. 145 Evidence Act.

Before a Sessions Judge could treat the depositions of witnesses in the committal court as substantive evidence at the sessions trial, it is essential

that the formalities in S. 288 Crl. P.C. should be complied with strictly. These formalities require the whole of the evidence of the witness given in

the committal court to be filed to that the court could come to the conclusion whether it could exercise its discretion and treat the earlier evidence

given in the committal court as evidence for all purposes at the sessions trial. After the whole of the deposition in the committal court has been

marked in evidence, it will be necessary to draw the attention of the witnesses to those portions of the depositions in the sessions court, which are

in conflict with the earlier statements, and in regard to which the earlier statements are proposed to be reload upon by the prosecution. Unless the

mandatory provisions of S. 288 Crl. P.C. are complied with, it will not be open to the Sessions court to reject the evidence given before it and rely

in its place on the evidence given by those witnesses in the committal court.

We do not find that any different principle has been laid down by the Supreme Court in the latest decision in State of Rajaston v. K. Singh and

another 1970 2 S. C. J. 61, In that case one Kartaj Kaur examined as P. W, 2 was one of the eye witnesses. In the court of sessions she turned

hostile and attempted to give a version different from the one which she gave in the committal court and she was therefore cross-examined by the

prosecution. Her prior deposition in the committal court was marked under S. 288, Crl. P.C. and she was cross-examined with regard to the

same. She admitted that her deposition in the committal court was correctly recorded but denied the truth of it by saying that she gave such

evidence under police pressure. The learned Sessions Judge, amongst other evidence, relied upon the evidence of Kartar Kaur before the

committal court and convicted the accused. On appeal the High Court was not inclined to accept the prior deposition of Kartar Kaur before the

committal court on the ground that the provisions of S. 145 of the Evidence Act had not been complied with. The Supreme Court examined the

facts and circumstances under which Kartar Kaur gave the prior deposition and she turned hostile and therefore she was treated as hostile by the

prosecution and came to the conclusion that on the facts (facts of that case) there has been a sufficient compliance with S. 145 of the Evidence

Act. This is what Hidayatullah C.J. while delivering the judgment observed;

In our judgment, there was enough compliance with S. 145 of the Evidence Act and the High Court erred in not reading these earlier statements

for what they are worth. When these two witnesses were examined in the committal court, they gave a clear version involving the two accused in

the case. The statement of Mst Kartar Kaur was that Gursant Singh and his father Kartar Singh came to the house of Dayan Singh and Garjant

Singh called aloud to Dayal Singh to open the door. The door was opened and the father and son entered. At that time Garjant Singh was carrying

a sword. She stated quite clearly that Garjant Singh attacked her father Dayal Singh and later her step mother Phinno She also said that Kartar

Singh had also entered with Garjant Singh and Kartar Singh fired a fire arm when Gujuarant Singh was caught by Mohinder Singh. She also stated

that Mohinder Singh was wounded by Gurjant Singh and then she ran out of the house in the company of Mohinder Singh. These clear statements

were completely denied by her when she came to the court of session. Her effort then was to make it appear that the persons who had entered the

house had muffled their faces and she could not Identify them. She also said that she had not seen anything in the hands of the those persons, in fact

she did not say that there were two persons at all but only one. She was declared hostile and was allowed to be cross-examined by the Public

Prosecutor. The Public Prosecutor read to her the whole of her statement before the Committal court and asked her whether it was her statement

she admitted that it was a true record of what she had stated before the committal court, but she said that it was a false statement given under

''police pleasure''. The objection taken to the admissibility of the statement was that every single passage which differed from her testimony in the

court of session was not put to her with a view to affording her an opportunity of explaining why she had made a contrary statement. No doubt. If

there were some passages here and there which differed from bar later version, that procedure would have been necessary. Here the witness

admitted that her statement was truly recorded in the committal court. She only denied that it was a true statement because she said that she was

made to depose that way by the police. It would have been useless to point out the discrepancies between the two statements because her

explanation would have been the same. In these circumstances, the requirement of S. 145 of the earlier Evidence Act were fully compiled with and

the earlier statement could be read as evidence in the sessions trial.

We are not inclined to regard the above statement as supporting the extreme contention of the learned Public Prosecutor that the marking in

evidence of the entire prior deposition in the committal court without anything mere is sufficient compliance with S. 145 of the Evidence Act. The

passage above extracted shows that the witness (P.W. 2) realised the full implications of her prior deposition in the committal court which meant

that she was given a full opportunity to explain her prior deposition, and the only explanation she offered was that her prior deposition in the

committal court was due to police pressure thereafter it would be futile to draw the attention of the witness to the discrepancies one after another.

This decision of the Supreme Court which is clearly distinguishable on facts does not in any manner depart from the well-settled principle

enunciated by it in its earlier decision of the, year 1951. The test in all these cases is whether the principles of natural justice have been complied

with, whether the witness have been treated fairly and whether the attention of the witness was drawn to the crucial portions of his prior deposition

in the committal court. It is the duty of the prosecution and the responsibility, of the court of sessions to see to it that the depositions are not

accompanied or preceded by the routine questions as to whether or not a witness has deposed in the particular manner in the committal court. The

court of sessions must be satisfied that the true spirit of S. 145 is substantially compiled with because it is only then it can make up its mind as to

how far it can act upon the evidence of a witness who, on his own showing, has given two different statements, one statement in the committal

court and a totally different statement in the court of sessions. Indeed in Periyasamy Vs. State of Madras, the Supreme Court has pointed out that

it would be highly desirable that the court of sessions should, before admitting the prior deposition of the witness, indicate in a brief order why the

earlier deposition was being transferred to the record of the trial.

The next important principle underlying S. 288 Crl, P.C. in the caution to be exercised by the court in accepting the prior deposition in the

committal court, rejecting the evidence given by that witness in the court of sessions. One other aspect which emerges from the combined

operation of S. 288. Crl. P.C. and S. 145 Evidence Act, should be borne in mind. The use of the prior deposition in the committal court is two-

fold. When the witness gives different version and permission is granted to treat him as hostile, his prior deposition may be used by the prosecution

merely to establish in the cross examination that the witness is not speaking the truth while giving evidence in the Sessions trial. The prosecution

may use the prior deposition not only for establishing that the witness is not speaking the truth at the trial but also for using his prior deposition as

substantive evidence in the trial. There is an essential and basic difference between a prior deposition being used merely for the purpose of

contradiction and the prior deposition being need as substantive evidence. It is obvious that in the latter class the court must realise that it would not

avail merely to transfer the entire deposition in to the, record of the sessions trial. The prosecution and the Judge concerned should draw the

attention of the Witness to the crucial statement in the prior deposition and afford an opportunity to the witness to explain those prior statements.

The practice of marking the entire deposition under S. 388 Crl. P.C. the moment the witness gave a different or discrepant version treating the

witness for that version as hostile can not but be depalested as it is vioistive of S. 145 of the Evidence Act.

Reference may be made to the latest pronouncement of the Supreme Court in Shranappa Mutyappa Halke Vs. State of Maharashtra, in which

the Supreme Court has commented upon the weak nature of the evidence of a witness who on oath on different occasions had given different

versions. The Supreme Court while pointing out that corroboration is not as a matter of strict law required with regard to the prior deposition of a

witness in a Committal court, has stated that the court, however, must be satisfied that the prior deposition is true, such satisfaction receiving

support in extrinsic evidence against the particular accused sought to be implicated in the crime. It is observed at page 1359:

The question how for the evidence in the committal court given by a witness who resiles from it at the trial in Sessions Court and which is brought

in as evidence at the trial under S. 288 Crl. P.C. 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 has 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, oath 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 Lordships of the

Privy Council in AIR 1949 257 (Privy Council) . In that case the evidence of an approver in the committing court had been brought on the record

under S. 288 Crl. P.C. Dealing with the question as to the value that can be attached to such evidence, their Lordships observed thus:

Apart from the suspicion which always attaches to the evidence of an accomplice it would plainly be unsafe, as the Judge of the High Court

recognised, to rely implicitly on the evidence of a man who had deposed on the 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 Crl. P. C, as true and

reliable, one has to be satisfied 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 extrinsic weakens 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 calling in his duty not to do so.

In the instant case, no attempt was made by the Sessions Court to consider whether the provisions of S. 288 Crl. P.C. and S. 145 of the

Evidence Act had been compiled with. The moment P.W. 7 stated that he did not see the particular assailant or assailants who inflicted the injuries,

he was treated as hostile without anything more and his prior deposition in the committal court was marked. This routine and mechanical

application of S. 288 Crl. P. C cannot but be strongly deprecated though the learned Sessions Judge has rejected the evidence of P.W. 7 for other

reasons.

For all the reasons mentioned above we dismiss the appeal.