Case Note & Summary
Periyasamy was charged with the murder of his wife, Kaveri Ammal, under Section 302 of the Indian Penal Code. The incident occurred on the morning of May 11, 1965, at their residence in Kirambur. The sole eye-witness, a neighbour, deposed in the committal proceedings that the appellant was the assailant. However, when examined in the Sessions Court, she resiled from her earlier statement and omitted the appellant’s name, leading the prosecution to declare her hostile and cross-examine her. The Sessions Judge, invoking Section 288 of the Criminal Procedure Code, 1898, used the witness’s earlier statement to confront the appellant and informed him that it was being marked under that section. Critically, the Judge did not pass a formal order transferring the committal court deposition to the record of the Sessions Court as substantive evidence. Relying on this previous statement and other circumstances, the Sessions Court convicted the appellant and sentenced him to death. The High Court of Madras confirmed the conviction and sentence on appeal. Before the Supreme Court, the appellant argued that the absence of a formal order under Section 288 rendered the use of the previous statement as substantive evidence illegal and caused prejudice. The State contended that there was substantial compliance with the provision, the appellant had been made aware of the use under Section 288, and no prejudice resulted. The Supreme Court held that while it is desirable for the trial court to record a specific order indicating the transfer of the previous statement to the record, the omission to do so did not amount to a substantial departure from the law. The Court emphasized that the accused was informed that the statement was being used under Section 288 and had an opportunity to explain it, thereby ensuring no prejudice. Consequently, the Court dismissed the appeal and upheld the conviction and death sentence.
Headnote
A) Criminal Procedure Code, 1898 – Section 288 – Use of previous statement of hostile witness as substantive evidence – The sole eye-witness in a murder trial named the appellant as the assailant in the committal court but omitted his name in the Sessions Court and was declared hostile; the Sessions Court questioned the appellant with reference to the statement marked under s. 288 but did not pass a formal order transferring the earlier deposition; held, that although the technical requirement of an order 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. (Paras Not mentioned)
Issue of Consideration
Whether the previous statement of a hostile witness in committal proceedings could be treated as substantive evidence under Section 288 of the Criminal Procedure Code, 1898, in the absence of a formal order transferring it to the record of the Sessions Court, and whether such use caused prejudice to the accused.
Final Decision
The Supreme Court dismissed the appeal and upheld the conviction and death sentence. It held that although the technical requirement of a formal order under Section 288 was not complied with, there was no substantial departure from the law and no prejudice was caused to the appellant, as he had been informed that the statement was being used under that section.
Law Points
- Section 288 of the Criminal Procedure Code
- 1898 allows a previous statement made by a witness in committal proceedings to be treated as substantive evidence if the court indicates its intention to use it and the accused is given an opportunity to explain
- a mere failure to pass a formal order transferring the statement does not vitiate the trial if there is substantial compliance and no prejudice to the accused.
