K.N. Mudaliyar, J.
1. The five appellants seek to question the propriety of their convictions and sentences for offences under Sections 148 and 302 read with Section 149 of the Indian Penal Code.
2. That there has been serious enmity between Palaniandi Servai (P.W. 4) and the first accused is undoubtedly established from the evidence of P.W. 4. The personal enmitycharacterisingthe relationship between P.W. 4 and the first accused, Malaichamy, has even culminated in P.W. 4 filing a suit (O.S. No. 54 of 1968) on the file of the District Munsif's Court, Melur. On a close scrutiny of the entire evidence of P.W. 4, we have no hesitation in affirming the finding of the learned trial Judge that P.W. 4 and the first accused were on inimical terms for sometime prior to the occurrence, although, they were distantly related to each other.
3. On the date of the occurrence 16th April, 1970 at about 4 P.M. P.W. 4 Palaniandi Servai and one Kandaswamy (not examined) were returning from Kottampatti to their village, Chinnakottampatti. The distance is stated to be about one mile. Malaichamy, the first accused, accused P.W. 4 on the road. He kicked him (P.W. 4) down and attempted to spear him with a vel kambu. Kannusamy interceded in this assault with the vel kambu by the first accused and ultimately prevented the first accused from spearing P.W. 4. The first accused was returning to his house in the village after assaulting P.W. 4 and on the way he saw P.W. 1 and the deceased Subbiah in front of the house of P.W. 1 and told them that he had beaten P.W. 4. P.W. 1 and the deceased Subbiah went to the field house of P.W. 4 to enquire about this incident and on the way Subbiah (P.W. 3) son of Karuppiah was taken along by them. P.Ws. 1 and 3 and the deceased Subbiah found P.W. 4 weeping and after hearing about the details of the assault, the deceased Subbiah told P.W. 4 that he should make a complaint to the Police about the assault. P.W. 4 agreed. P.W. 3, Kannusamy, and deceased Subbiah accompanied P.W. 4 to the Police Station of Kottampatti. They got a complaint (Exhibit P-5) prepared by a local petition-writer at Kottampatti and P.W. 4 presented it at the Police Station before P.W. 10 the Station-Writer of the Police Station, since the SuB-1nspector was not available. They had some coffee at Kottampatti later; they were returning to their village, Chinnakottampatti, at about 2-30 P.M, along the Trichy main road. There is a diversion road branching off from the main road to the village of Chinnakottampatti, and P.W. 4 and Kannusamy parted company from the deceased Subbiah and P.Ws. 1 and 3, who were proceeding on the branch road to their village. This was at about 9 P.M. and there was undoubtedly bright moonlight at that time.
4. It emerges from the recorded evidence that all the five accused as well as. P.Ws. 1 and 3 (the two eye-witnesses) and also P.W. 4 and the deceased Subbiah belong to the same village of Chinnakottampatti.
5. To continue the narrative, regarding the main occurrence, when P.W. 1, witness Subbiah and the deceased Subbiah passed the chilli garden of Kaliappan, accused 1 to 3 suddenly appeared before them from Kalladi Pallam on the South of the road, each armed with an aruval. Almost simultaneously accused 4 and 5 made their appearance from the northern side, of the road, both of them also armed with aruvals. The second accused, Mooli alias Karuppiah, is the elder brother of the first accused. The other three accused (accused 3, 4 and 5) are the close associates of accused 1 and 2. All the five accused accosted the deceased Subbiah on the road and the second accused instigated his brother, the first accused, thus: Thereupon the first accused raised his aruval and attempted to cut the deceased Subbiah but the latter resisted the attack with his left hand with the result that the cut fell on the left hand of the deceased. On receiving the cut, the deceased Subbiah ran for his life towards the chilli garden of Kaliappan, probably instinctively to escape from the murderous attack. P.Ws. 1 and 3 (Perumal and Subbiah) ran for a distance of hundred feet out of a sense of fright. The five accused chased the deceased Subbiah in the chilli garden of Kaliappan (the garden abuts the road) and cut the deceased indiscriminately on his head, neck, shoulders and chest, as a result of which he died on the spot instantaneously P.Ws. 1 and 3 were watching the attack on the deceased from a small rock on the edge of the road.
6. After killing the deceased Subbiah, the five accused returned to the road. P.Ws. 1 and 3 saw them and quietly hastened towards their village. P.W. 1 asked P.W. 3 to go to the village and inform the family of the deceased about the occurrence. P.W. 1 himself left the place to give a report to the Village Munsif, residing at Kottampatti. On the information given by P.W. 3 to the relations of the deceased, they all came crying to the scene of crime, which is about one and a half furlongs away from their house. P.W. 1 went to Kottampatti (a mile away) and informed the Village Munsif (P.W. 6) about the occurrence, at about 9-45 P.M. The Village Munsif recorded the complaint, Exhibit P-1, from P.W. 1. After recording the said complaint, Exhibit P-1,' P.W. 6 accompanied by P.W. 1 and the Village Vettian, got a petromax light and reached the scene of occurrence. He saw the dead body of the deceased with multiple injuries in the garden of Kaliappan. P.W. 6 prepared the routine reports to the Police and the Magistrate and despatched them through his Vettian at 11 P.M. which were received by P.W. 10 at about 11-50 P.M. Naturally P.W. 6 continued to stay at the scene of occurrence till the arrival of the SuB-1nspector of Police (P.W. 13) on 17th April, 1970 at 10 A.M.
7. P.W. 13 the SuB-1nspector of Police of Kottampatti Police Station was on special bandobust duty at Maduraiin connection with the visit of the Vice-President of India. P.W. 13 received from P.W. 12 an express tapal regarding the crime at about 6 A.M. on 17th April, 1970, when he Was on duty near St. Mary's High School. He left Madurai and reached the scene of occurrence by 10 A.M. on 17th April, 1970. He held the inquest and examined P.Ws. 1 and 3 to 6.
8. Dr. Abdul Gafoor Adamsa (P.W. 2) conducted the autopsy on the body of the deceased Subbiah on 18th April, 1970 at 10-45 A.M. It is unnecessary for us to elaborately describe the multiple injuries found on the body of the deceased as paragraph 6 of the judgment of the learned Sessions Judge contains all the details. Suffice it for us to observe that the deceased had received at least eight injuries which were necessarily fatal. The head was virtually severed from the body except a portion of the skin :over the right side sticking to the body. According to the doctor, death Would have been instantaneous on receipt of the injuries.
9. The plea of the accused was one of denial. The learned Sessions Judge accepted the evidence adduced by the prosecution that the First Information Report was given within one hour after the occurrence and that Exhibit P. 1. contained the names of all the appellants. The learned Sessions Judge accepted the direct testimony regarding the occurrence as spoken to by P.W. 1 (although treated as hostile in the Court of Sessions) and P.W. 3, who were eye-witnesses and whose names were mentioned in Exhibit P. 1. The learned Judge further found that the motive was quite sufficient for the accused to commit the offence in question. He also found that there was absolutely no avoidable delay in the arrival of the Police by 10 A.M. on 17th April, 1970. The learned Judge, while accepting the testimony of P.W. 1, found that his evidence marked under Section 288 of the Criminal Procedure Code, taken along with the evidence of P.Ws. 3: and 6, clearly established that all the five accused committed the offences charged against them and that they murdered the deceased Subbiah in cold blood.
10. It emerges from the evidence of P.W. 1 that the first accused first came and obstructed them as they were proceeding on the diversion road. Then the deceased Subbiah ran to the chilli garden of Kaliappan. Seeing this P.W. 1 and 3 ran some distance towards the East. There P.'W. 1 claimed that he and P.W. 3 mounted a 'parai kal' situated on the northern side of the road and saw the occurrence. The first accused Went chasing, and they were anxious to Watch the further progress of the occurrence. P.W. 1 further states that in the chilli garden the first accused Malaichami and four or five others indiscriminately cut the deceased Subbiah. After cutting him the assailants came by the side of the road. On seeing them P.Ws. 1 and 3 got frightened and ran. P.W. 3 claims to have informed the father-in-law of the deceased Subbiah. P.W. 1 continued to stay there for sometime. After sometime P.W. 1 went to the house of the Village Munsif and informed him about the occurrence. The Village Munsif wrote down the report and got the signature of P.W. 1. P.W. 1 proves Exhibit P-1. Evidently P.W. 1 at that stage in the Court of Session was unwilling to implicate accused 2 to 5,, although P.W. 1 proves the contents of Exhibit P-1 wherein the names of all the other appellants, accused 2 to 5 are mentioned, referring to their participation in the murderous attack on the deceased. In his cross-examination P.W. 1 admits that the first accused came and obstructed them. He adds that the other four accused did not obstruct. He said that the second accused Mooli did not tell his elder brother, the first accused (He did not instigate). In that very road the first accused Malaichamy cut the deceased Subbiah with the aruval. The deceased Subbiah resisted the cut with his left hand with the result that his left hand received the cut. After receiving the cut the deceased ran to the chilli garden of Kaliappan. Here follows the significant admissions made by P.W. 1.-
The five accused chased the deceased Subbiah who ran into the chilli garden, of Kaliappan. In the chilli garden the five accused cut the deceased Subbiah indiscriminately. At that time the fifth accused, Veeriab, stated and the said statement was heard by P.W. 1. P.W. 1 went and reported to the Village Munsif. He gave Exhibit P-1.
He even admits that Exhibit P-1 was read over to him. He admits further that all the recitals in Exhibit P-1 are true. He admits that he was examined in the committal Court. He further admits that Exhibit P-2 is his deposition The learned Sessions Judge records as-follows :
Public Prosecutor requests the Court to mark it under Section 288, Criminal Procedure Code. Marked as requested. Exhibit P-2 was read over to the witnesses. Accused informed.
P.W. 1 further stated that prior to his deposition in the committal Court he gave a statement under Section 164,, Criminal Procedure Code, in the Court of the Sub-Magistrate, Madurai. That has been marked as Exhibit P-3. He further states that the SuB-1nspector held the inquest on the morning of the next day. He admits that in Exhibits P-3 and P-2 he had stated that the five accused in the Court Cut the deceased Subbiah. His further evidence is that the murder took place at about 9 P.M. He further stated that at 9-45 P.M. he gave Exhibit P-1 to P.W. 6 (Nattan-maikar).
11. In view of these admissions made by P.W. 1 in the course of his crossexamination on the basis of the recitals in Exhibits P-1, P-3 and P-2, the learned Sessions Judge examined the accused undei Section 342, Criminal Procedure Code, by putting the following question:
P.W. 1 in this Court as well as in the committal Court and P.W. 3 then state that after parting with P.W. 4 and Kannuswami at the diversion road, while they were coming back to the village along with the deceased Subbiah, all the five accused each armed with aruval waylaid deceased Subbiah near Kaliappan thottam and that on the instigation of A-2, A-1 cut the deceased, which fell on the left hand of the deceased and after receiving the cut, the deceased ran toward;, Kaliappan thottam and that all the five accused chpsed him to the field and cut him indiscriminately as a result of which he died on the spot. What do you say? Answer: It is false.
12. In the light of the testimony of P.W. 1, practically seeking to exonerate accused 2 to 5 of the crime, it is obvious that P.W. 1 was resiling from the case spoken to by him implicating the four accused (accused 2 to 5) as found in Exhibits P-1, P-3 and P-2. We felt at one stage that the propcedure followed by the learned Sessions Judge might not satisfy the requirements of the law as laid down by the Supreme Court in Tar a Singh v. State1, Vivian Bose, J., speaking for the Court, observed as follows:
In my opinion the second line of reasoning is to be preferred I see no reason why Section 145, Evidence Act, should be excluded when Section 288, Criminal Procedure Code, states that the previous statements ere to be 'subject to the provisions of the Indian Evidence Act'. Section 145 falls fairly and squarely within the plain meaning of these words. More than that, it is a fair and proper provision and is in accord with the sense of fairplay is which Courts are accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a witness with his former statement when Section 288 is resorted to, it is always desirable that that should be done if only for the reason that an omission to-do so weakens the value of the testimony. I am of opinion that the matter is deeper than that and giving effect to the plain meaning of the words 'subject to the provisions of the Indian Evidence Act' as they stand, I hold that the evidence in the committal Court cannot be used in the Sessions Court unless the witness is. confronted with his previous statement as required by Section 145, Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination, can be used to destroy his testimony in the Sessions Court. If that serves-the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288.
13. In view of the admissions made by P.W. 1, which have been noticed by us earlier, we are inclined to seek support from the following principle of law laid down by the Supreme Court:
Of course, the witness can be crossexamined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosectuion then nothing more is required...
Their Lordships of the Supreme Court (Hidayatullah and Mittter, JJ.) held in Periasami v. State of Madras : 1967CriLJ975
The practice of Courts in Madras State is to contradict a witness with the earlier statement and parts thereof after declaring him hostile and then to use the record of the earlier statement as substantive evidence. But it is highly desirable that the Court should, before the transfer of the earlier statement to the record of the Sessions case under Section 288 of the Code of Criminal Procedure, indicate in a brief order why the earlier deposition was being transferred to the record of the trial. This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him.
14. While dealing with the case before them, their Lordships of the Supreme Court observed that though the technical requirement that an order should be passed to indicate that the statement was transferred so as to be read as substantive evidence, was not complied with; there did not appear to be any substantial departure from the requirements of the 'law and that there was also no likelihood of prejudice to the accused, since he 'was informed, while he was being examined, that the statement was being used under Section 288 of the Code of Criminal Procedure and was invited to say what he wished to say in defence. In the instant case it is apparent that the learned Sessions Judge did not indicate in a brief order as to why the earlier deposition was being transferred to the record of the trial. No doubt this requirement has not been complied with, but, in our view, there is no substantial departure from the requirement of the law; nor is there any likelihood of prejudice to the accused, since they have been examined under Section 342, Criminal Procedure Code.
15. In Muthiah Nadar, In re (1970) L.W. 287, this Court (of which I was a member) has held that, before the Sessions Judge could treat the evidence of witnesses in the committal Court as substantive evidence at the Sessions trial, it is essential that the formalities in Section 288, Criminal Procedure Code, should be complied with strictly. These formalities require the whole of the evidence of the witness given in the committal Court to be filed so that the Court could come to a conclusion whether it could exercise its discretion and treat the earlier evidence given in the committal Court as evidence for all purposes at the sessions trial. Then it will be necessary to draw the attention of the witness to those portions of the deposition in the Sessions Court, which are in conflict with the earlier statement and in regard to which the earlier statements are proposed to be relied on by the prosecution. It was held that he was satisfied that the witness had intentionally resiled from what he had stated before the committing Court and since what he had stated before the committing Court was in conformity with what he had stated under Section 164, Criminal Procedure Code, before the Sub-Magistrate, what he had stated before the committing Court appeared to be the truth and not what he had stated before the Sessions Court. Hence under Section 288, Criminal Procedure Code, the deposition in the committal Court was transposed as evidence in the Sessions trial. In the circumstances of that case it was held that the requirements of law under Section 145 of the Evidence Act and 288, Criminal Procedure Code, were satisfied by the procedure followed by the Sessions Judge.
16. As we have already observed, in view of the admissions made by P.W. 1 in the Court of Session, the omission on the part of the learned Sessions Judge to record a brief order as to his satisfaction of the truthfulness of the earlier statements, namely, Exhibits P-1, P-3 and P-2, does not vitiate the reception of the contents of Exhibit P-2 as substantive evidence.
17. Another aspect of the matter which engaged our serious attention is whether the evidence of P.W. 1, who made two contradictory statements on oath at one stage is true and reliable and whether it is worthy of acceptance by the Court. In Muthiah Nadar, In re (1970) L.W. 287, this Court has held:
The evidence of a witness tendered under Section 288, Criminal Procedure Code, before the Sessions Court is substantive evidence. In law, such evidence is not required to be corroborated. But where a person has made two contradictory statements on oath it is ordinarily unsafe to rely implicitly on the evidence, and the Judge, before he accepts one or the other of the statements as true, must foe satisfied that this is so. For such satisfaction it will ordinarily be necessary for the evidence to be supported by extrinsic evidence not only as to the occurrence in general but also about the participation of the accused in particular. But in a case where even without any extrinsic evidence the Judge is satisfied about the truth of one of the statements his duty will be to rely on such evidence and act accordingly.
18. In view of this principle of law, it would be open to us to get ourselves satisfied about the truth of one of the earlier statements, namely, Exhibit P-2; and when once we are satisfied about the truth of the contents of Exhibit P-2 it would be right to rely on such evidence and act accordingly even without seeking any support by way of corroboration from any extrinsic evidence. Viewed in that light, we have no hesitation in acting on the contents of Exhibit P-2, the deposition of P.W. 1, which undoubtedly covers the implication of all the five accused, although P.W. 1 was subjected to a very lengthy and strenuous cross-examination in the committal Court.
19. If this case were bereft of the entire evidence of P.W. 1 still we would have no hesitation in maintaining the conviction of the five appellants solely on the basis of our unhesitating acceptance of the testimony of P.W. 3. P.W. 3 gives a very natural, candid and unvarnished story of the entire prosecution case. We reaffirm the finding of the learned Sessions Judge that P.W. 3 has given a cogent and convincing version of the Whole incident and nothing tangible was elicited in his cross-examination. P.W. 3 stated that there was bright moonlight, that all the five accused intercepted the deceased and that the second accused instigated the first accused to murder the deceased Subbiah, since the latter was supporting P.W. 4 Palaniandi as against the first accused. P.W. 3 swears that immediately the first accused dealt a cut with his aruval on the deceased, but the deceased tried to obstruct the cut and received it on his left hand. After receiving the cut the deceased Subbiah must have run for his life into the neighbouring field of Kaliappan. All the five accused chased him into the field and cut him indiscriminately as a result of which Subbiah died instantaneously. P.W. 3 was with the deceased Subbiah when the first cut was delivered by the first accused. No doubt, P.W. 3 did not go into the field but that conduct is quite natural. He was standing on the side of the road near the fence and when the accused came he ran towards the village to inform the near relations of the deceased about the occurrence. No doubt, P.W. 3 could not say and did not even attempt to say which accused cut the deceased on which part of his body and how many cuts were inflicted by each of the accused. But, in our view, in view of the terms of Section 149, Indian Penal Code, such an elaboration of the details would savour of artificiality, particularly when they claim to have seen the occurrence from some distance mounting on a rock. No motive has been suggested against P.W. 3 as to why he should implicate the five accused-appellants. Some attempt has been made at suggesting some misunderstanding between P.W. 3 and the first accused in regard to their engagement as tope kavalkars. But such a suggestion has been refuted by P.W. 3. At any rate we find a total absence of any suggestion to P.W. 3 as to why he did implicate falsely accused 2 to 5 at all. Be it remembered that the name of P.W. 3 as an eye-witness is found in Exhibit P-1, given within one hour after the occurrence.
20. The learned Counsel for the appellants argued that in this case the accused had no motive to kill the deceased Subbiah. But the recorded evidence clearly proves that the deceased Subbiah was mainly instrumental in inspiring P.W. 4 in giving a complaint at Kottampatti Police Station, before P.W. 10 on 16th April, 1970 at about 7-30 P.M. The learned Sessions Judge has elaborately dealt with the matter in paragraph 18 of his judgment, with which we express our agreement, that the fact that the deceased Subbiah supported P.W. 4 Was the immediate cause for the first accused to Wreak vengeance on Subbiah. Probably the accused felt that, if the supporter, namely, deceased Subbiah, was removed from the scene, there would be nobody else to come to the rescue of P.W. 4. In our view, this motive is quite sufficient for the accused to have banded themselves together to commit this crime of the murder of Subbiah.
21. It Was also argued that Exhibit P-1 was not given by P.W. 1 on 16th April, 1970 at about 9-45 P.M. But except the bare appearance of an argument, we find no material in the entire recorded evidence in support of this theory. First it has not been suggested to P.W. 1 that he did not give Exhibit P-1 on 16th April, 1970 at about 9-45 P.M. nor has it been suggested to the Village Munsiff (P.W. 6) who recorded the same. But a different suggestion has been made to P.W. 6 that P.W. 1 did not meet him and give the report, Exhibit P-1. The evidence of P.W. 6 that he went to the scene of occurrence along with his vettian and P.W. 1 has not even been challenged. It passes our comprehension as to why P.W. 6 should go to the scene of occurrence in the company of P.W. 1 without recording Exhibit P-1. This argument is totally baseless and lacks even a shadow of substance.
22. It was further argued that Exhibit P-1 was recorded only after the police arrived at the scene. Again this argument has no substance. The evidence of P.W. 10 that he received Exhibit P-1 at 11-50 P.M. from the vettian sent by the Village Munsif (P.W. 6) has not been challenged in the cross-examination of P.W. 10. Again the testimony of P.W. 13 that he received the express report about the occurrence on 17th April, 1970 at 6 A.M. has not been challenged in cross-examination. This argument has absolutely no merit whatever.
23. It was argued that P.Ws. 1 and 3 could not have seen the details of the occurrence from a distance of seventy feet, in view of the height of the fence and also the height of the chilli garden. Undoubtedly there was bright moonlight at the time of the occurrence. This fact has not been challenged. P.W. 3 stated that, if one mounted the 'parai' then one could witness the occurrence. He also stated that, if one saw from any other place, the occurrence could not be witnessed. P.W. 3 stated that the height of the parai was 1 or 1 1/2 feet above the road level. No material has been elicited by the defence whether any other trees could furnish obstruction to the view of these two witnesses (P.Ws. 1 and 3),. even if they Were to mount the parai and witness the occurrence.
24. It has been argued that the Police arrived at the scene of occurrence only at 10 A.M. on 17th April, 1970. We have already met the argument that the first information report was prepared after the arrival of the police, for such a suggestion has not been put to P.W. 6 or P.W. 10 or P.W. 13 or P.W. 4 or even to P.W. 1. We are unable to follow this argument as to how the late arrival of the SuB-1nspector had conduced to the false preparation of Exhibit P-1.
25. It has been further argued that the deceased had other enemies. We are unable to see as to what follows from such a wide proposition, when once we choose to believe the testimony of P.Ws. 3 and 1,. the two eye-witnesses to the occurrence.
26. Some argument has been sought to-be built upon the absence of the mention of the details of the overt acts described by P.Ws. 1 and 3. The evidence of P.W. 3 is that they could mount the parai and witness the occurrence from a distance of seventy-five feet. It was not during a broad day-light when these witnesses could see the individual overt acts committed by the accused against the deceased Subbiah. It is quite natural that they could only speak about the indiscriminate cutting resorted to by the accused appellants. We consider that such an absence of a recital of the overt acts is actually meritorious and had it been otherwise, it would savour of artificiality. We have no hesitation in observing that we are prepared to confirm the convictions of the five accused appellants and the sentences imposed upon there solely on the basis of our acceptance of the testimony of P.W. 3 alone, whose evidence breathes naturalness and truthful candour.
27. We find no merits in the appeals. The convictions and sentences of the appellants are confirmed and the Criminal Appeals are dismissed.