Case Note & Summary
The appeal arose from the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of death imposed by the Sessions Court, which was confirmed by the High Court of Madras. The appellant was charged with the murder of his wife Kaveri Ammal on the morning of May 11, 1965, at Kirambur. The couple lived in a shed opposite the shed where the appellant's brother and his wife Pappayee resided. Pappayee was the sole eye witness; she testified in the committal court that she saw the appellant strike his wife with a koduval, heard her cries, and raised an alarm. The appellant then threw the weapon, tied a rope to a tree and attempted to hang himself, but was rescued by neighbours. In the Sessions Court, Pappayee changed her statement by omitting the appellant's name as the assailant. She was declared hostile and cross-examined under Section 145 of the Indian Evidence Act. The Sessions Judge used her previous statement from the committal proceedings as substantive evidence under Section 288 of the Code of Criminal Procedure, 1898, but did not pass a formal order transferring that statement to the record. The appellant was informed during his examination that the statement was being used under Section 288 and was asked to respond. The Sessions Court convicted the appellant, relying on the previous statement and corroborating circumstances, including the appellant's attempt to commit suicide, the weakness of his explanation that he had gone to fetch kerosene oil, and the absence of any proof of the alleged motive for Pappayee to falsely implicate him. The High Court confirmed the conviction and death sentence. On appeal by special leave, the Supreme Court considered two main issues: first, whether the previous statement could be treated as substantive evidence without a formal order under Section 288; and second, whether it was safe to rely on a solitary eye witness who had given conflicting statements. The appellant argued that the procedural requirement was not fulfilled and that the conviction was unsafe, citing In re Muruga Goundan. The respondent contended that the accused had been given notice and suffered no prejudice, and that the earlier statement was corroborated by strong circumstances. The Supreme Court held that although a formal order was desirable, its absence did not amount to a substantial departure from law or cause prejudice because the accused was informed that the statement was being used under Section 288. The Court further held that while ordinarily it is risky to rely on conflicting statements, in this case the witness repeated her entire testimony except the name, and the accompanying circumstances, particularly the accused's attempt to commit suicide and the weakness of his defense, made the earlier statement clearly preferable. Accordingly, the Supreme Court dismissed the appeal and confirmed the conviction and sentence of death.
Headnote
A) Criminal Procedure - Previous Statement of Hostile Witness - Substantive Evidence - Code of Criminal Procedure, 1898, Section 288 - The trial court did not pass a formal order transferring the earlier deposition of PW1 to the Sessions record under Section 288, but informed the accused during his examination that the statement was being used under that section. The Supreme Court held that this technical non-compliance did not amount to a substantial departure from law or cause prejudice, and the previous statement could be read as substantive evidence. The Court also noted the desirability of a brief order indicating the transfer. Held that the conviction based on such statement was proper (Pages 124-125). B) Evidence - Reliability of Solitary Eye Witness - Conflicting Statements - Indian Evidence Act, 1872, Section 145 - The sole eye witness omitted the accused's name in the Sessions Court but had named him in the committal court, and was declared hostile. The Supreme Court held that although ordinarily risky, in this case the witness repeated her entire testimony except the name, and other circumstances such as the accused's attempt to commit suicide and weak explanations corroborated the earlier statement. Held that the earlier statement was rightly preferred and the conviction sustained (Pages 125-127).
Issue of Consideration
Whether the previous statement of a prosecution witness recorded in committal proceedings can be treated as substantive evidence under Section 288 of the Code of Criminal Procedure, 1898 when the witness was declared hostile and no formal order transferring the statement to the Sessions record was passed; and whether the conviction based on such statement and circumstantial evidence is safe when the sole eyewitness gave conflicting statements.
Final Decision
The Supreme Court dismissed the appeal and confirmed the conviction under Section 302 IPC and the sentence of death. It held that the Courts below were right in using the previous statement as substantive evidence; the technical non-compliance with Section 288 CrPC did not cause substantial departure from law or prejudice because the accused was informed during his examination that the statement was being used under Section 288. The Court also upheld the reliability of the eye witness's earlier statement given the corroborating circumstances.
Law Points
- Previous statement of a hostile witness can be used as substantive evidence under Section 288 CrPC 1898 if accused is given notice even without formal transfer order
- technical non-compliance not fatal if no prejudice
- desirability of brief order
- solitary eyewitness conflicting statements can be relied on when corroborated by circumstances including accused's conduct
