STATE OF TAMIL NADU ETC.versusSURESH (A-2) AND ANR.

                    STATE OF TAMIL NADU ETC.                                    A
                                v.
                      SURESH (A-2) AND ANR.

                           DECEMBER 5, 1997

            [M.K. MUKHERJEE AND K.T. THOMAS, JJ.J                               B

        Penal Code, 186(}-Sections 302 and 376 r/w Section 34-Young wife .
fell from 4th floor and died instantaneously-Alleged criminal conspiracy be-
tween husband, his brother and two of their employees to kill deceased-When
husband abroad, other three accused sleeping in the house of victim, gagged C
and smothered he1~Two of the accused se>..11ally ravaged her and then dragged
and dropped her from 4th floo1~Third accused became approver and gave
eye-witness account-Sessions court acquitted husband but charged other two
accused with murder and rape and sentenced them to death-High cowt set
aside conviction holding that approver's version is improbable and, being an D
accomplice, was unworthy of credit since he was not adequately cor-
roborated-On appeal-Held, Post mortem report and statement of doctor
support evidence of approver-Evidence not improbable-High court judg-
ment set aside-Conviction by sessions court under Section 302 and 376 !PC
restored-However-Sentence reduced to life imp1isonment.
                                                                                E
      Evidence Act, 1872, Section 113 and Illustration(b) to Section
ll4-Un-c01roborated testimony of an accomplice-Credibility-Held: Law
is not that evidence of an accomplice deserves outright rejection for want of
con-oboration-However, it is desirable for court to seek reassuring cir-
cumstances as to truth of evidence.
                                                                                F-
      Section 157-The expression 'at or about the time when the fact took
place' -Held, to be understood in the context of facts of each case-Test is
whether witness had the opportunity to concoct or to be tutored in the
inte"egnum.

      A young enceinte wife fell from the fourth floor of a building and G
died instantaneously. Initially it was taken to be a case of suicide, but
subsequently it was found to be a criminal conspiracy of murder. The
prosecution version was based on the solitary evidence of the approver,
PW-1. It was stated that there was estrangement between the husband and
deceased wife due to dowry. Furthermore, there was animosity between the H
                                     203
      ,
    204                  SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A deceased and A-2 sinceA-2 believed that the deceased was injecting hatred
                    I

    again~t him in the mind of hi~- brother. The husband of the deceased (a
    businessman), his brother, Ai (another businessman) and two of their
    employees (A3 and PW-1) conspired to kill the deceased during the ab-
    sence of the husband. On the midnight of 9.6.87, when the husband was
    abroad, A2, A3 and PW-1, who were sleeping in the same house, as the
B
    accused went to the room where the deceased was sleeping with her 4 year
    old child. They gagged her and when she resisted, pressed her neck and
    mouth to smother her. In the scuffie her bangles broke. PW-1 caught the
    deceased while A2 and A3 ravished her. Then all three lifted the live body
    of the deceased to the balcony and dropped her down. She died immedi-
C   ately. After the murder, PW-1 went to stay with his brother-in-law, PW-6
    and thereafter, he went to work with PW- 15. On seeing his photo in the
    newspaper on 24.6.87, he rnshed back to PW-6, with whose help he sur-
    rendered.

          Relying on the evidence of the approver and some corroborative
D evidence, the Sessions Court acquitted the husband, but convicted A2 and
    A3 of rape and murder and sentenced them to death.

          The High Court confirmed the acquittal and set aside the conviction
    and sentence of A2 and A3 on the grounds that the approver's version was
E   improbable and his evidence was unworthy of credit since it was not
    corroborated. Hence this appeal.

          Allowing the appeals, this Court

          HELD : 1.1. The High Court has seriously erred in upsetting the
F conviction by the Sessions Court against A2 and A3. [216-E-F]

        1.2. The doctor's opinion, who had conducted the autopsy on the
  body, that the deceased was subjected to forceful smothering can be
  unhesitatingly accepted in view of the fact that there were numerous
G injuries found around the lips, chin, neck and lower part of the nose of the
  deceased. [209-G-H; 210-A-B]

        1.3. The High Court erred in negating the version of PW-1 regarding
  sexual ravage of the deceased. In view of the bruising found on the
  deceased, as set out in the post mortem report, and the emphatic statement
H of the doctor who conducted the autopsy that the bruises could not have
                          STATE v. SURESH (A-2)                            205
   been caused in a fall, it can not be doubted that the deceased was a victim A
   of forcible sexual assault. [211-G-H; 212-A-B]

        1.4. The High Court has given very tenuous grounds for disbelieving
  the version of PW-1 that he stayed with PW-6, his brother-in-law, for a few
  days after the murder and then worked with PW-15 in the tea shop. The
  High Court ought to have appreciated the testimony of PW-1 in the light        B
  of the evidence of PW-6 and PW-15, since there is no reason for them to
  have perjured in Court. [211-D-E]

        1.5. Whoever sexually molested the deceased, then dragged her and
  threw her living body down from the balcony would be one having a deep C
  grudge against her. Hence, it is extremely remote that a burglar or a strange
  rapist would have entered the house and committed all the atrocities when
  the house was occupied by 3 adult male members. Also, there is not even a
  suggestion that the. deceased had any enemy outside. [212-E-G]

        1.6. If the version of PW-1 is true, A2 had his own grudge against D
  the deceased. Hence, the decree of woefulness of the onslaught is not
  enough to militate against the horrendous nature of the crime. The High
  Court has erred in holding that the evidence of PW-1 lacked probability.
  After all PW-1 is an accomplice and hence his narration would be in-
• criminating to him also. [212-G-H; 213-A-B]                              E
        2.1 . .Illustration (b) to Section 114 of the Evidence Act r/w Section
  113 of the Act indicates that the law is not that the uncorroborated
  evidence of an accomplice deserves outright rejection but that great cir-
  cumspection and care should be taken while dealing with evidence of an
  accomplice. Though not necessary, it is desirable to seek reassuring cir-      F
  cumstances while accepting an accomplice's evidence. [213-F]

        Dagdu and Ors. v. State of Maharashtra, [1977) 3 SCC 68, relied upon.

        2.2. This is not a case where evidence of PW-1 is totally bereft of any G
  reassuring circumstance. It is supported by (i) post mortem appearances
  noted by the Doctor. (ii) broken bangles found in the room and the
  balcony. (iii) The admission of A-2 and A-3 that they along with PW-1 were
  present in the flat aloni,'With the deceased on the night of occurrence. (It
  is improbable that an outsider could have entered the flat, and committed
  the acts without disturbing the sleep of the four year old), and (iv) the H
    206                  SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A statement oi PW-6 that on 24.6.1987, PW-1 told him of this incident in
    which he involved all the three culprits. [214-E-H]

          2.3. Section 157 of the Evidence Act envisages two categories of
    statements of witness which can be used for corroboration. First is the
    statement made by a witness to any person "at or about the time when the
B   fact took place". Such a statement made to a non authority looses its
    probative value due to lapse of time. The second is the statement made by
    him to any authority legally bound to investigate the fact, which statement
    can be used as evidence even if made long after the incident. The expres-
    sion, "at or about the time when the fact took place" is to be understood
C   in the context of the facts and circumstances of each case. The mere
    intervention of a few days may not exclude the statement from use under
    Section 157 of the Act. The test to be adopted, thei;_efore, is : 'Did the
    witness have the opportunity to concoct or to be tutored?' There is nothing
    here to indicate that the disclosure made by PW-1 to PW-6 on 24.6.87 about
D   the occurrence on 9.6.87 was tutored or influenced by anybody during the
    interregnum. It is a corraborative evidence, giving reassurance regarding
    truth of PW-l's evidence in court as to the persons involved in the
    occurrence. [215-B-G; 216-B-C]

          Rameshwar v. State of Rajasthan, AIR (1952) SC 54, referred to.
E
          3. The judgment of the High Court is set aside and conviction by
    Sessions Court of A2 and A3 under Section 302, 376 r/w Section 34 IPC is
    restored, but not the death sentence, at this distance of time. A2 and A3
    are sentenced to life imprisonment on the first count and rigorous im-
F   prisonment for 10 years on the second count. [216-G-H; 217-A]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    Nos. 153-154 of 1991 Etc.

G        From the Judgment and Order dated 8.2.91 of the Madras High
    Court in R.T. No. 9189 in Crl.A. No. 782-83 of 1989.

         N. Natarajan, V.G. Pragasam, (S. Tripathi) for Ms. Rani Jathmalani,
    Ms. Binu Tamta and Ranjit Kumar for the appearing parties.

H         The Judgment of the Court was delivered by
                 STATEv. SURESH (A-2)[THOMAS,J.]                        207
      THOMAS, J. A young enceinte housewife fell from top of a four- A
storeyed building down on the payment of a street at Madras during the
odd hours on the night of 9.6.1987, and died in a trice with her skull and
the bones extensively broken into pieces. Initially it was taken by the
neighbours and the police as a case of suicide, but eventually it become a
case of gruesome murder. Her husband, a flourishing businessman at B
Madras (now Chennai) and his brother (another businessman) and two of
their employees· were put on trial in the Sessions Court for criminal
conspiracy, rape and murder. One of the culprits was made an approver
and he gave evidence in support of the prosecution case. The Sessions
Court.acqmcted the husband of the deceased, but convicted the other two
persons of murder and rape and sentenced both of them to death.            C
      A Division Bench of the High Court of Madras heard the reference
which was made under Section 366 of the Code of Criminal Procedure on
the sentence of death, along with the appeals preferred by the convicted
persons as well as the appeal preferred by the State in challenge of the
acquittal. The Division Bench confirmed the acquittal and set aside the D
conviction and sentence passed by the Sessions Court. Hence the present
appeals by special leave.

       First accused Ramesh Kumar and his younger brother Suresh Kumar
(A-2)) hailed from Rajasthan, and they have settled down in Madras. Each       E
of them acquired separate business establishments. Ramesh Kumar, the
eldest, had married Kamla Devi (the deceased) who was then only 19 and
belonged to a less affluent family in Rajasthan, about four years before her
death. Thereafter the co11ple lived on the top floor apartment of a multi-
storeyed building situated on Thulasinga Mudali Street at Madras. Second
accused Suresh Kumar got married to a girl from Rajasthan a few months         F
before the occurrence but he did not bring his wife to Madras from
Rajasthan. He too was residing with his eldest brother Ramesh Kumar on
the 4th floor of the building. Kamla Devi (deceased) had a little child
(Sandeep) who was onlyfour years old when she died.
                                                                               G
      As the business of first accused expanded he started entertaining a
feeling that if he had married from a rich family he would have got a
handsome dowry. This led to some estrangement between the spouses.
Second accused Suresh Kumar did not see eye to eye with Kamla Devi
(deceased) for certain reasons of his own, one among them alone has come
to the forefront in evidence that he believed that Kamla Devi was injecting H
    208                  SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A hatred in the mind of his brother that A-2 was becoming a habitual
    drunkard.

          In the above backdrop, the synopsis of the prosecution case having
    an eerie profile, can be narrated as follows :

B          A couple of days prior to the death of Kamla Devi her husband
    Ramesh had gone abroad (Singapore) in connection with his business and
    before he left India he and the other three culprits had entered into a
    criminal conspiracy to finish Kamla Devi off during his absence. After he
    left, second accused informed the remaining culprits that the best way to
C   achieve the target was to drop her down from the top floor of the Building
    so that it would appear to the rest of the world that she had committed
    suicide.

           On the midnight of 9.6.1987 when everybody else was asleep the
    three culprits (A2-Suresh, A3-Kuman Singh and PWl-Bhoparam) moved
D   from the room on the 4th floor where they were to sleep and entered the
    room where deceased was sleeping with her little child Sandeep. They first
    gagged her mouth with a cloth but then she woke up and instinctively
    resisted the onslaughts of the assailants. But she was over-powered and the
    third accused pressed her neck and mouth on the direction of the second
    accused who was holding her in his grip while she was struggling to squirm
E   out of the lethal grip. In that melee the bangles on her hand broke down.
    PW-1 caught hold of her legs and the second accused sexually molested
    her in that condition. A-3 also ravished her on being prompted by the
    second accused. Though PW-1 was also persuaded to do the same on her
    he did not do it as he found that she was unconscious. Then all the three
    persons lifted her up and brought her to the balcony and tried to drop her
F   down. But somehow she regained consciousness then and gripped on the
    parapet frieze but the assailants exerted greater force in pushing her down
    and she lost her grip and fell deep down from such a height of the four
    storeyed building - she died instantaneously.

G         The entire prosecution case revolved on the solitary evidence of the
    approver PW-1 Bhoparam. Learned trial judge relied on his evidence with
    the aid of some corroborative circumstances and found A2 Suresh and A3
    Kuman Singh guilty of rape and murder.

          It was difficult for the High Court to act on the evidence of the
H approver mainly for two distinct reasons :
                STATEv. SURESH (A-2)[THOMAS,J.]                        209
      (1) His version of the occurrence is fraught with improbabilities and A
hence it did not inspire confidence; (2) He being an accomplice his
evidence is unworthy of credit even otherwise, as it did not receive
adequate corroboration from any source. Hence the conviction and
sentence were set aside by the High Court.
                                                                              B
       Learned counsel for the appellant contended that the Division Bench
of the High Court did not make a pragmatic approach to the evidence of
PW-1, and it resulted in the improper rejection of the evidence of an eye
witness to such a dastardly perpetrated crime .. Counsel further contended
that if strict adherence to the rule of corroboration of the evidence of an
accomplice witness is insisted, as done by the High Court in this case, no    c
approver evidence would stand scrutiny in any case and the consequence
would be miscarriage of justice. Learned Judges expressed a regretful
note in the judgment by way of an epilogue in the following lines :

        "We are really pained to note that prosecution was not able to D
        bring home the persons really involved in this crime. Even though
        there is a lurking doubt in our mind as to the involvement of one
        or more· of the accused in this crime, they cannot be punished on
        such a doubt, however strong i.t might be.
                                                                              E
        Following the high traditions of criminal jurisprudence in our
        country, we are not inclined to send the accused to gallows on
        mere suspicion, and on the evidence of the approver whose
        evidence stands uncorroborated."
                                                                              F
      We have perused the evidence carefully and considered the
reasoning of the learned Judges, but we are unable to persuade ourselves
to concur with the judgment of the High Court.

      How Kamla Devi would have died can be inferred from the post-
mortem appearances noted by PW-22 Dr. Cecila Cyril, (Additional G
Professor in the Department of Forensic Medicine of the Medical College,
Madras) who conducted the autopsy on the dead body. The doctor found
that t~e deceased was pregnant by 4 weeks. After listing all the
ante-mortem injuries in Ext. P-41 (post-mortem certificate) the doctor
opined that her death might have been on account of head injuries as well H
    210                   SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A as asphyxia due to smothering and compression of neck. There are enough
    data to support the conclusion that Karola Devi would have been
    smothered by pressing her mouth and neck. Injuries Nos. 1 to 7 are
    abrasions and contusions and lacerations around the lips. Nos. 17 to 24 are
    similar injuries on the chin and neck and also on the lower part of the nose.
B   None of her teeth was affected. From all the above features we can
    unhesitatingly accept the doctor's opinion that Karola Devi would have
    been subjected to forceful smothering.

        The skull of the dead body had extensive fractures and brain matter
  was found protruding. There were fractures on the sternum and on the
C ribs. While giving evidence the doctor concurred with the suggestion of the
  prosecution that "there was very good chance of the victim being alive after
  sustaining the injuries due to smothering and compression of neck when
  she would have been in a condition of shock. After smothering and
  compression of neck she could have been alive for a few minutes depending
D upon her power of volition."

          PW-1 Bhopparam narrated the evidence which preceded and
    succeeded the occurrence and gave a complete picture on the vivid details
    of the occurrence. It would be unnecessary to repeat his evidence as it is
E   consistent with the prosecution story summarised above. PW-1 deposed
    that th~ neighbours. and relatives of the deceased were informed of the
    death of Kamla Devi and they all arrived and her husband A-1 also flew
    down from Singapore. He further said that on the third day he went to the
    house of his brother-in-law (PW-6) and stayed there for 6 days and then
    went to Mahabalipuram (a suburb of Madras) where he got a temporary
F   employment in the tea shop of PW-15. On 24.6.1987 he happened to notice
    his photo in a Tamil daily and then he rushed back to PW-6's house and
    made a shrift to him of all what happened and with the help of PW-6 he
    surrendered to the police.

G       The High Court seems to have accepted the contention of the
  defence counsel that PW-1 would have been in police custody from
  10.6.1987 till 25.6.1987 (when he was produced before the magistrate). The
  following reasons were advanced by the High Court for accepting the said
  defence contention. First is, as first accused had offered money to PW-1
H for carrying out the operation. PW-1 would normally have remained in the
                STATE v. SURESH (A-2)[THOMAS, J.]                      211

house until the money was paid. (PW-1 could not have remained in the A
same house as tension would have been mounting up in his mind and it
was only natural that he would have moved out of that jinxed house instead
of lingering on there as money could have been collected even at a later
stage). Second is that PW-1 was unable to remember the names of PW-6's
employees, and if he had really stayed in that house he could have B
remembered those names. (This is too fragile a reasoning as one may or
may not remember the names of such employees particularly his mind
would then have been preoccupied with thoughts about the horrendous
crime committed by them.). The third is that he failed to disclose the
incident to PW-6 or to his employer PW-15. (It is too much to expect that C
PW-1 would have readily divulged it to any one else at the first instance
because the whole episode was perpetrated by the culprits in secrecy).
Fourth reason is that PW-1 did not read newspapers during the
interregnum and that indicates his absence in the free world. (There is
nothing on record to show that this employee of A-1 was a regular
newspaper reader, without which such an inference is out of place).        D

      All the above reasons are hence very tenuous grounds for disbeliev-
ing the version of PW-1 that he had stayed with PW-6 and PW-15. Learned
Judges of the High Court should have appreciated his testimony in the light
of the evidence of PW-6 and PW-15 against which nothing has been              E
pointed out either by the High Court or before us as to why those two
witnesses should have perjured in court about PW-l's sojourn with them.

       The High Court did not believe the case of PW-1 that A-2 and A-3
would have. sexually ravished Karola Devi. The sole circumstance which
learned Judges highlighted on that score is the absence of semen or
                                                                            F
supermatozoa in the vaginal swab collected from the dead body as the
result of laboratory analysis of the swab showed. The High Court seems to
have overlooked the following data available in the post-mortem report
which is a very telling circumstance regarding the sexual molestation the
victim would have been subjected to : "Bruising of tissues on right side of G
vagina 2xlxl/2 ems. Bruising is reddish blue in colour. Bruising lxl/2xl/2
ems. over the anterior lip of the cervix."
                                                                                  .-·
      Dr. Cecila Cyril (PW-22) had no doubt that the above features are
consistent with the victim offering resistance against forcible sexual H
    212                   SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A intercourse. The doctor witness emphatically repudiated the suggestion
    that such bruises could have been caused in a fall. In view of the above,
    the High Court went wrong in negativing the version of PW-1 regarding
    sexual ravage merely on the basis of non-detection of semen or
    supermatozoa in the vaginal swab. There could be more than one
B   explanation for absence of semen in the vaginal swab. We have no doubt
    that Kamla Devi would have been made a victim of a forcible sexual assault.

           One_ of the points which dissuaded the High Court from believing the
    version of PW-1 is the abominable and despicable act attributed to A-2
    vis-a-vis his own sister-in-law. High Court has stated thus on that aspect :
c
          "Even if there was some reason for A-2 to end the life of the
    deceased with a view to secure peaceful life for his brother, certainly he
    would not have resorted to the most inhuman method of committing rape
    on his own brother's wife that too, along with two of his servants."
D
           Learned counsel for the accused also repeated the same reasoning
    before us in support of his contention that such an act of barbarity would
    be unthinkable and counter to the social order for a brother to do it on his
    sister-in-law. We too agree that if A-2 had done those acts attributed to
E   him then it would have been woeful and despicable of a human conduct.

         We have considered the said contention with the seriousness it
  deserves. One thing is clear that somebody had done it on her during that
  night. Whoever had done those acts during that night i.e. by sexually
  molesting her and then dragging her and throwing her living body from the
F balcony, the assailant would have been someone who was simmering with
  unquenchable grudge towards her. It is extremely remote that a burglar or
  a stranger rapist would have gatecrashed into the house and done all those
  atrocities on that helpless woman when the house was occupied by 3 adult
  male members. It must be remembered in this context that even the
G defence had no suggestion that the deceased had any enemy outside, for,
  if she had any such enemy that fact would not have escaped from the
  knowledge of her husband, if not of A-2 also. If PW-l's version is true, A-2
  had his own grudge towards the deceased. The intensity of that grudge was
  known only to himself or perhaps the deceased also. If A-2 had decided
H to kill his sister-in-law in such a savagery manner by throwing her from the
                 STATE v. SURESH (A-2) [THOMAS, J.]                      213

balcony that itself would indicate the superlative degree of gravity of his     A
wrath towards her. With such a mind simmering with acerbity he would as
well have thought to subject her to excruciating mental pain by devastating
her womanhood in the manner it was done on her. So the degree of
woefulness of the onslaught is not enough to militate against the
horrendous nature of the crime.                                                 B
      We are hence totally unable to agree with the view of the High Court
that the story narrated by PW-1 lacked probability. After all PW-1 is an
accomplice and hence his narration would be incriminating to him also.

       The testimony of an accomplice is, no doubt, a stigmatised evidence C
in criminal proceedings. It is on account of the inherent weakness which
such evidence is endowed with that illustration(b) to Section 114 of the
Evidence Act suggests that it is open to the court to presume that the
uncorroborated testimony of an accomplice is unworthy of credit. But the
Legislature had advisedly refrained from including the said category of D
evidence within the ambit of legal presumptions but retained it only within
the area of factual presumptions by using the expression "the court may
presume". In order to make the ·position clear the same enactment has
incorporated Section 113 saying that it is not illegal ·to convict a person on
the uncorroborated testimony of an accomplice. The reason d'etre for such
legislative marshalling is to enable the court to have its freedom to act on E
the evidence of an accomplice in appropriate cases, even without cor-
roboration, if the court feels that a particular accomplice evidence is
worthy of credence.

      Thus, the ·law is not that the evidence of an accomplice deserves         F
outright rejection if there is no corroboration. What is required is to adopt
great circumspection and care .when dealing with the evidence of an
accomplice. Though there is no legal necessity to seek corroboration of
accomplice's evidence it is desirable that court seeks reassuring cir-
cumstances to satisfy the judicial conscience that the evidence is true.
                                                                                G
      A Bench of three judges of this Court in Dagdu and Ors. v. State of
Maharashtra, [1977] 3 SCC 68 has laid down the legal position after making
a survey of the case law by referring to Rameshwar v. State of Rajasthan,
AIR (1952) SC 54 and a number of other decisions of this Court as well
as of English courts. Chandrachud, J. (as the learned Chief Justice then H
    214                  SUPREM_E COURT REPORTS (1997] SUPP. 6 S.C.R.

A was) has stated for the three Judges Bertch as follows :

            "There is no antithesis between Section 133 and illustration(b) of
            Section 114 of the Evidence Act, because the illustration only says
            that the Court 'may' presume a certain state of affairs. It does not
            seek to raise a conclusive and irrebuttable presumption. Reading
B           the two together the position which emerges is that though an
            accomplice is a competent witness and though a conviction may
            lawfully rest upon his uncorroborated testimony, yet the Court is
            entitled to presume and may indeed be justified in presuming in
            the generality of cases that no reliance can be placed on the
c           evidence of an accomplice unless that evidence is corroborated in
            material particulars, by which is meant that there has to be some
            independent' evidence tending to incriminate the particular ac-
            cused in the commission of the crime........ All the same, it is
            necessary to understand that what has hardened into a rule of law
            is not that the conviction is illegal if it proceeds upon the uncor-
D           roborated testimony of an accomplice but that the rule of cor-
            roboration must be present to the mind of the Judge and that
            corroboration may be dispensed with only if the peculiar Cir-
            cumstances of a case make it safe to dispense with it."

E         This is not a case where evidence of PW-1 is totally bereft of any
    reassuring circumstance. The occurrence as featured by PW-1 is supported
    by tbe following circumstances :

          (1) Post-mortem appearances noted by PW-22 Dr. Cecila Cyril.

F         (2) broken bangles found on the floor of the rooin and on the
    balcony.

        (3) The admission of A-2 and A-3 that they along with PW-1 were
  present in the same flat during that night. (It is quite improbable that any
G outsider would have made an entry into this apartment during that night
  and with or without the help of PW-1 would have made all those atrocious
  acts least disturbing the sleep of her four year old son huddling on the
  mother or the sleep of A-2 and A-3).

          (4) The statement by PW-6 that on 24.6.1987 PW-1 told him of this
H   incident in which he involved all the three culprits.
                 STATE v. SURESH (A·2) [THOMAS, J.]                       215
        Dealing with the last corroborative circumstances i.e. the statement     A
made by PW-1 to PW6 on 24.6.1987, we may have to consider the admis-
sibility of the said statement. Section 157 of the Evidence Act reads thus :

         "In order to corroborate the testimony of witness, any former
         statement made by such witness relating to the same fact, at or
         about the time when the fact took place, or before any authority        B
         legally competent to investigate the fact, may be proved."

       The section envisages two categories of statements of witnesses which
can be used for corroboration. First is the statement made by a witness to
any person "at or about the time when the fact took place". The second is C
the statement made by him to any authority legally bound to investigate the
fact. We notice that if the statement is made to an authority competent to
investigate the fact such statement gains admissibility, no matter that it was
made long after the incident. But if the statement was made to a non-
authority it loses its probative value due to lapse of time. Then the question
is, within how much time the statement should have been made? If it was D
made contemporaneous with the occurrence the statement has a greater
value as res justea and then it is substantive evidence. But if it was made
only after some interval of time the statement loses its probative utility as
res justea, still it is usable, though only for a lesser use.
                                                                                 E
      What is meant by the expression "at or about the time when the fact
took place"? There can be a narrow view that unless such a statement was
made soon after the occurrence it cannot be used for corroboration. A
broader view is that even if such statement was within a reasonable
proximity of time still such statement can be used for corroboration. The
Legislature would not have intended to limit the time factor to close            F
proximity though a long distanc.e of time would deprive it of its utility even
for corroboration purposes.

       We think that the expression "at or about the time when the fact took
place" in Section 157 of the Evidence Act should be understood in the G
context according to the facts and circumstances of each case. The mere
fact that there was an intervening period of a few days, in a given case, may
not be sufficient to exclude the statement from the use envisaged in Section
157 of the Act. The test to be adopted, therefore, is this : Did the witness
have the opportunity to concoct or to have been tutored? In this context
the observation of Vivian Bose, J. in Rameshwar v. The State of Rajasthan, H
    216                  SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A AIR (1952) SC 54 is apposite :
            "There can be no hard and fast rule about the 'at or about the'
            condition in Section 157. The main test is whether the statement
            was made as early as can reasonably be expected in the circumstan-
            ces of the case and before there was oppmtunity for tut01i11g or
B           co11coctio11.'' ·
                                                                                  I

                                                          (emphasis supplied)
                                                                                  '

          Here when PW-1 disclosed to his brother-in-law (PW-6) on 24.6.1987
C about his version of the occurrence we have not come across anything to
    indicate that PW-1 was either tutbred or influenced by anybody during the
    interregnum. Looking at the. statement from that perspective we are in-
    clined to treat it is a corroborative piece of evidence giving us a re-as-
    surance regarding the truth of PW-l's evidence in court so· far as the
    persons involved in the episode are concerned.
D
          Shri Ranjit Kumar, learned counsel for A-3 took much pains to
    impress us that PW-l's version that they trekked along a cornice to reach
    deceased's room, is highly incredible as they could easily have walked
    through the normal passage, PW-1 has an explanation for choosing that
E   circuitous route. But we are not interested to know why they chose a longer
    passage to reach deceased's room. What we know is that they reached her
    room during that midnight hour.

        The above discussion takes us to the final conclusion that the High
  Court has seriously erred in upsetting the conviction entered by the Ses-
F sions Court as against A-2 and A-3. The erroneous approach has resulted
  in miscarriage of justice by allowing the two perpetrators of a dastardly
  crime committed against a helpless young pregnant housewife who was
  sleeping in her own apartment with her little baby sleeping by her side and
  during the absence of her husband. We strongly feel that the error com-
G mitted by the High Court must be undone by restoring the conviction
  passed against A-2 and A-3, though we are not inclined, at this distance of
  time, to restore the sentence of death passed by the trial court on those
  two accused.

          In the result, we allow the appeals and set aside the judgment of the
H    High Court of Madras and restore the conviction passed by the trial court
                    STATE v. SURESH (A-2) [THOMAS, J.)                  217

     under Sections 302 and 376 read with Section 34 of the IPC as against A-2 A
     - Suresh and A-3 - Kuman Singh, and we sentence them each to undergo
    imprisonment for life on the first count and rigorous imprisonment for a
     period of 10 years on the second count. Sentences on both counts will run
     concurrently. We direct the Sessions Judge, Madras (now Chennai) to take
    immediate steps to put the aforesaid convicted persons in jail for under- B
    going the sentence. ·

    S.K.                                                   Appeals allowed.




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