Holding

The second appellant is entitled to the benefit of doubt; his conviction is set aside, while the first appellant’s conviction is affirmed.

Summary

The appellants Dhanabal and his brother were convicted of murder under IPC s.302 read with s.149 for the killing of their sister‑in‑law Rasayal. The conviction relied heavily on the testimony of PW‑1, 2, 3 and 5, whose statements were recorded in the committal court, later transcribed under CrPC s.288 and, for some, also recorded under CrPC s.164. The appellants challenged the admissibility of the s.288 statements, arguing that the witnesses were not confronted passage‑by‑passage as required by Evidence Act s.145, and that the reliance on retracted testimony violated the benefit of doubt principle. The Supreme Court held that the procedural requirements of s.288 were satisfied because the witnesses were read their prior statements in extenso and admitted making them, and that s.164 statements could be used as corroborative evidence under Evidence Act s.157. It further found that there was no proof that the second appellant instigated the fatal attack and therefore he was entitled to the benefit of doubt. Consequently, the conviction of the second appellant was set aside while the first appellant’s conviction was upheld.

Issues considered

The admissibility of witness statements marked under CrPC s.288 when the witnesses were not confronted passage‑by‑passage as mandated by Evidence Act s.145.
Whether statements recorded under CrPC s.164 can be relied upon as corroborative evidence for testimony given in the committal court.
The applicability of the benefit of doubt principle to the second appellant given the retracted testimony of key witnesses.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 288
Indian Evidence Act, 1872s. 145, s. 157
Indian Penal Code, 1860s. 149, s. 302

Subjects

murderbenefit of doubtCrPC s.288CrPC s.164retracted testimonyevidence lawIPC s.302IPC s.149committal courtcorroboration

Judgment

491

DHANABAL AND ANR. A
v.
STATE OF TAMIL NADU
December 13, 1979
[S. MURTAZA FAZAL ALI, P. s. KAILASAM & A. D. KosHAL, JJ.J B

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« c
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, D
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 E
• 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

r 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
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.
F

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 G
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]
H
' !. 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<"t them
-'92 SUPREMB COURT REPORTS [1980] 2 S.C.R.

A ad they admit that they have made those •tatemeni. in the Committal Court.
The required procedure has been followed in tW. Case. (497 F-0]
Tara Singh v. State of Punjab, [1951] S.C.R. 729, Bhagwan Singh v. Stllf•
~! Punjab, [1952] S.C.R 812 State of &jastha11 v. Kartar Singh, [1971] 1 SC1l
~6; referred to.

~ 3. During the investigation the police officer, sometimes feels it expedie•t
to have the statement of a witness recorded under section 164 Code of Crimi•al
Procedure. This happens when the witnesses to the crime are closely connected
with the a.ccused or where the accused are very influential which may result in
the witnesses being gained over. The 164 statement that is recorded bas the
tndor~ement Of the Magistrate that the statement bad been made by the witnes~.
(499 A-Cl

c 4. The n1ere fact that the police had reasons to suspect that the \vitne~s
might be gained over and that it Vias expedient to have their statements record·
ed 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 witnes& resiles from the statement given by him under section 164 in the
committal court, the witness can be cross-examined on his earlier statement.
D But if he sticks to the statement given by him under section 164 before com·
mittal enquiry and resiles from it in the Sessions Court, the procedure prescribed
Under e:ection 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 thai 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 sectio•
164 11tatement recorded by the Magistrate would not by itself makC his evidence
E tainted. (499 C-F] •
Ram Chandra & OrJ. v. Stat• of U.P. (1968] 3 SCR 354; explained and
relied on.
5. Section 157 of the Evidence Act makes it clear that the statement record· ,
cd under section 164 of the Code of Criminal Procedure can be relied on for
F corroborating the statements made by the witnesses in the committal court.
Thoueh the statements made under section 164 of the Code of Criminal Pro·
cedure, Ui not evidenced, it is corroborative of what has been stated earlier in
the committal court. [499 F-GJ lo-

State of Raja,than T. Kartar Singh, [1971] 1 SCR 56; followed. •
ft. A statement recorded under section 288 of the Code of Criminal Procc~
G dure of one witness can corroborate the statement of another witness under
section 288. The statements are treated as substantive evidence in · law and
there i!5 no flaw in treating the statement of one witness as corroborative of the
et!P.er. [500 A-Bl
CP-IMINAL APPELLATI!. JURISDICTION : Criminal Appeal No. 406
H of 1976.
Appeat by Special Leave from the Judgment and Order dated
1·'·1975 of the Madraa High Court in Criminal Appeal No. 823174. >
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

J
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-
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 im-
prisonment 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<f
appellant married Laxmi, the daughter of Rasayal. Rasayal owned
about 5 acres of land in Keelakkarai village. She executed a general E

-
power of attorney Exh. P. 15 on 31st August, 1970 in favour ()f tho
second appellant. Rasayal, after she lost her husband, started lead-
ing an immoral life which was disliked by her brothers. A& a reiult,
Rasayal began to cultivate her own land inspite of the power of
attorney executed in favour of the second appeVant. There wu
misunderstanding between the parties and Rasayal had complained F
to the Police stating that her brothers had threatened to do away with
lter.
On the date of the occurrence at about 1.30 p.m. on 5th DecMl-
ber, 1973, when Rasayal and her farm servant Parmasivam, P.W. ~
were working in her field removing weeds, the two appellants and tho G
third accused converged to the place where Rasayal was workin:.
, The first appellant was armed with V eecharnval, the second appel·
lant was armed with a spade and the third was unarmel:l. On aeeia,c
them, Rasayal ran towards the channel rnnning adjacent to her fielda.
The third accused insligated the first appellant to cut her saying that
\ •he was leading an immoral life and that she should not be Jett. There- B
~ upon, the first appellant cut Rasayal on the right sido of her neck witll.
the Veecharuval and she fell down in the channel, raiaini: an alal'lll.
SUPlJ.EMI! COU!T lJ.EPORTS (1980) 2 S.C.lt.

A The &econd appellant stated that she should not be left at that UGI
that her head should be severed from her body, she being an immoral
woman. Thereupon, the first appellant caught hold of her hair by th•
left hand and cut her neck with the Veecharuval, severing the head
from the trunk. The occurence was witnessed by Ramalingam P.W.
1 and Ramakrishnan, P. W. 2 who were returning at that time atltr
B spraying insecticides in the fields of P.W. 1 Chelladurai, P.W. 3
"ho was coming to the field of Rasayal with fpod for P. W. 4 al~o \
saw the occurrence. Nagappan P.W. 5 who was going towards tlle ~
sccnce of occurence ((> 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 signa-
turN. 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-
E Magistrate, Chidambaram on 24-12-1973. During the commitlal
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 Veech-
runl, 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 A
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 c
the evidence given by them in the Colllmittal Court which wa! trans-
po\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 Veecharu-
val, the second appellant with a spade and the third accused unarmed
---converged on Rasayal and the first accused gave a cut which re-
sulted in severance of her head. We feel that when the three brothers
went to the scene determined to do away with Rasayal, any instiga- E
uon 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 ap-
pellant. 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 F
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
u n!ik:ely that the se<:ond appellant instigated the first accused as a r1- G
, s·.ilt of which the first accused caused the fatal injury. The secpnd
appellant is entitled to the benefit of doubt. His appeal is allowed
aad his conviction and sentence aro set aside. He i1 llirected to be
set at liberty.

'
" We will now take up the first contention of the learned counsel
liilat the conviction based on statements marked •nder s. 28! .t>!
4116 6UPllEMI! COU.T HPOllTS [1980] 2 S.C.ll.

A 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 examin-
ed 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
c 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
D 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
E 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 evi-
dence. S. 145 of the Evidence Act, runs as follows : -
"A witne11 may be cross-examined as to previous 11tate-
ments 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
G 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•
H 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 c
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 wit-
ness 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 pro-
•
cedure to be adopted in treating the statement in the committal court
as substantive evidence observed that the witnesses should be con-
• fronted with their statements in the Committal Court which are to
be read over to them in extenso. The Chief Justice pointed out that E
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 F
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 G
-..., 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 state-
ments recorded from the witnesses under S. 164 of the Code of
(I) [1952] S.C.R. 812.
•
(2) [1971] 1 S.C.R. 56.
498 SUPREME COURT REPORTS (1980j 2 S.C.R.

A 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 corro-
borate 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
D 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 observa-
G
tions 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
I! the view of Subba Rao, J. (as he then was) in Gopisetti Chinna

(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 A
Nagpur High Court in Parmanand v. Emperor,(') It was observctl
that the mere fact ·that the witnesses statement was previously re-
corded 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
B
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. c
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 state- D
ment given by him to the Magistrate under S. 164, Code of Criminal
Procedure, no problem arises. If the witness resi!es from the state-
ment given by him under S. 164 in the Committal Court, the wit-
ness 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 E
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•
F
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 Pro- G
cedure, 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 Com-
mittal 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.