N 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 82374
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 SC 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 section 302 IPC and sentenced to imprisonment for life
The second appellant and the third accused were found guilty of an offence under section 302 read with section 149 IPC 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 130 pm on 5th December 1973 when Rasayal and her farm servant Parmasivam PW 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 PW 1 and Ramakrishnan P W 2 who were returning at that time after spraying insecticides in the fields of PW 1 Chelladurai PW 3 who was coming to the field of Rasayal with food for P W 4 also saw the occurrence
Nagappan PW 5 who was going towards the scene of occurrence to meet Ramakrishnan PW 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 pm 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 section 302 IPC 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 section 164 Cr
P C Statements recorded from PWs 1 to 5 before the Sub Magistrate Chidambaram on 24 12 1973
During the committal proceedings PW 4 turned hostile but PWs 1 2 3 and 5 gave evidence supporting the prosecution
After committal PW 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 section 288 of the Code of Criminal Procedure
The High Court relying on the evidence of PWs 1 2 3 and 5 which was marked under section 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 FIR 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 PW 1 2 3 and 5 marked in the Sessions Court under section 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 section 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 section 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 section 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 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 section 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
section 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 
The plea of the Learned Counsel is that the evidence marked under section 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 section 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 section 288 of the Code of Criminal Procedure
The procedure adopted was challenged on the ground that section 288 contemplates that the evidence given during Committal proceedings can be treated as evidence in the case subject to the provisions of the  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
section 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 vs State of Punjab wherein it was held that the 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 section 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 section 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 vs State of Punjab this Court distinguished the case of Tara Singh vs State of Punjab supra and observed that resort to section 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 CJ in State of Rajasthan vs 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 section 145 of the were fully complied with
It is thus clear from the authorities referred to above that the requirements of section 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 section 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 PW 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 section 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 section 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 section 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 Court in Ram Chandra and Ors
vs State of UP
In that case in a statement recorded from the witness under section 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 vs Manu Chik where the observations made by the Calcutta High Court in Queen Empress vs 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 vs Emperor It was observed that the mere fact that the witnesses statement was previously recorded under section 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 section 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 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
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
This Court has expressed its view that though the statements made under section 164 of the Code of Criminal Procedure is not evidence it is corroborative of what has been stated earlier in the Committal Court vide The High Court was right in relying on the statement of the witnesses under section 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 section 288 of the Code of Criminal Procedure of one witness cannot corroborate the statement of another witness under section 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
VDK 1st Appellant s Appeal dismissed
2nd Appellant s Appeal allowed


Summary:
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 IPC 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
12 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 section 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 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 vs State of Punjab   Bhagwan Singh vs State of Punjab  State of Rajasthan vs Kartar Singh  referred to
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
vs State of UP  explained and relied on
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 vs Kartar Singh  followed
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