Shranappa Mutyappa Halke Vs. State of
Maharashtra [1963] INSC 179 (27 August 1963)
27/08/1963 GUPTA, K.C. DAS GUPTA, K.C. DAS
DAS, S.K.
HIDAYATULLAH, M.
CITATION: 1964 AIR 1357 1964 SCR (4) 589
CITATOR INFO:
R 1971 SC1450 (20) RF 1978 SC1770 (28,29)
ACT:
Criminal Trial-Evidence of witness before
committing court Resiled in Sessions Court-Whether corroboration required -Code
of Criminal Procedure, 1898 (Act 5 of 1898), s. 28.
HEADNOTE:
The appellants were convicted by the High
Court for committing three murders. In this case the High Court considered the
testimony of one "Parwati", given by her in the committing court. She
was in eye witness of the occurrence according to her testimony in the
committing court. In the sessions court she resiled from her previous statement
before the committing Magistrate and made a definite statement that she had not
seen the occurrence.
Her evidence before the committing court was
tendered as evidence under s. 288 Criminal Procedure Code in the court of
sessions. Her evidence before the committing court was not corroborated in
respect of participation in the occurrence by four appellants. The High Court
convicted the appellants on the basis of the statement made by Parwati before
the committing Magistrate on the ground that it was substantive evidence which
did not require any corroboration.
Held, that the evidence of a witness tendered
under s. 288 of the Code of Criminal Procedure 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 her 590 evidence and the judge, before
he accepts one or the other of the statements as true, must be 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.
Bhuboni Sahu v. The King, A.I.R. 1949 P.C.
257, relied on.
On the facts of this case, it was held that
without corroboration from extrinsic evidence, the High Court was not justified
in acting on the evidence of the only eye witness Parwati, given in the
committing court.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 75, 100 and 101 of 1963.
Appeals from the judgment and order dated
February 27, 28, 1963 of the Bombay High Court in Criminal Appeal No. 1077 of
1962.
S. G. Patuwardhan and A. G. Ratnaparkhi for
the appellant(in Cr. A. No. 75 of 1963).
B. B. Tawakley, Harbans Singh and A. G. Ratnaparkhi,
for the appellants (in Cr. A. Nos. 100 and 101 of 1963).
D. R. Prem, K. L. Hathi and B. R. G. K.
Achar, for R. H. Dhebar, for the respondents.
August 27, 1963. The Judgment of the Court
was delivered by DAS GUPTA J.-On June 11, 1961 at 5 p.m. the road in front of
the Temple of Shri Maruti in the village of Chinchpur of Taluk Sholapur was the
scene of a terrible tragedy. Three persons-Revansidappa, and his two maternal
uncles, Yellappa and Maruti were done to death there in a most gruesome manner.
Revansidappa's neck was severed from the body, except for a piece of skin and
one of his legs was chopped off. The spinal cord and vertebra of Yellappa were
cut off.
The jaw, vertebra, tongue and a major part of
the neck of Maruti were cut off.
The first information that reached the police
station of this tragedy was by a letter of the village police patel written on
the same day and addressed to the Police Sub-Inspector of Mandrup. It merely
stated that three murders had taken place in course of riot and maramari at 5
p.m. in the evening and mentioning the names of the men who had been murdered.
This letter reached the police sta591 tion at 2.30 a.m. Head Constable Bansode
who was in charge of the police station then left for the place of occurrence after
having sent a report to the Police Sub-Inspector who was camping at
Bhandrkavathe village. The Sub-Inspector reached Chinchpur at about 11 a.m. on
the 12th. Some constables had already reached the village. Vishwanath, Head
Constable of Mandrup with two other constables who had been on duty on the
bridge over the Bhima river which runs west of the village Chinchpur learnt of
these terrible murders at 7 p.m. on the very date of the murders and left for
the place, arriving at the village at 9.30 p.m. They found the three dead
bodies lying there and the Police Patel and some other persons present. Head
Constable Ram Chandra Bansode reached the place at 6.30 a.m. on the 12th and
after making enquiries had three persons, Gurpadappa, Parasappa and Daulappa brought
to the place. They were arrested by the Sub-Inspector when he arrived. The only
witness the Sub-Inspector could examine on that date was Parwati, the step
mother of the deceased Revansidappa. He found that all the men had left the
village and only women were present.
After completing the investigation the
Sub-Inspector sent up cliarge-sheet against 13 persons.
All the thirteen were tried by the Sessions
Judge on a charge under s. 148 of the Indian Penal Code, on three charges under
s. 302/34 of the Indian Penal Code, with three alternative charges under s.
302/149 of Indian Penal Code and a further charge under s. 342 of the Indian
Penal Code.
Three out of the 13, viz., Gurpadappa,
Parasappa and Annarava Shivabala were convicted by the learned Sessions Judge
under s. 302/34 of the Indian Penal Code on each of the three counts and
sentenced to imprisonment for life.
All the three were also convicted under s.
342 of the Indian Penal Code and sentenced to six months' rigorous
imprisonment. Gurpadappa and Annaraya were also convicted under s. 147 of the
Indian Penal Code and sentenced to rigorous imprisonment for two years.
Parasappa was convicted under s. 148 of the Indian Penal Code and sentenced to
rigorous imprisonment for three years. The sentences were directed to run
concurrently. The other 10 accused persons were acquitted by the learned Judge.
592 Gurpadappa, Parasappa and Annaraya
Shivabala appealed to the High Court of judicature at Bombay against their
conviction and sentence. Their appeal was dismissed and the conviction and
sentence of Gurpadappa and Annarava were affirmed.
Parasappa's conviction was also affirmed but
after notice on him as to why the sentence should not be enhanced, the sentence
of life imprisonment was enhanced to one of death.
The State appealed against the order of
acquittal of all other accused except that of Sangappa. The High Court allowed
the State's appeal in respect of three of these, viz., Shranappa, Ganpati and
Tipanna and convicted them of the offence with which they were charged. The
High Court sentenced Shranappa to death and Ganpati and Tipanna to imprisonment
for life. The State's appeal in respect of the other six were dismissed.
Sliranappa had filed the present appeal under Art. 134(1)(a) of the Constitution.
The other five, viz., Gurpadappa, Parasappa, Annaraya, Ganpati and Tipanna were
granted special leave to appeal by this. Court and on the basis of that they
have filed the appeals against the orders of conviction and sentence passed
against them.
The prosecution case is that there had for
sometime been trouble between Gurpadappa and his brother Dhannappa on the one
side and Parwati and the deceased Revansidappa on the other over the possession
of a plot of land in Chinchpur.
According to Parwati and Revansidappa this
land had merely been mortgaged to Gurpadappa by Revansidappa's father and the
debt had been paid out and they were entitled to get back possession. To this
Gurpadappa did not agree. He, however, agreed to Parwati's request that the
dispute may be settied by a Panchayat. But without calling a Panchayat
Gurpadappa and his brother started cultivating the land on June 10. When
Parwati saw this, she protested ; but to no purpose. The two brothers said that
there would be no Panchayat.
On the next day i.e., June 11, Revansidappa
who used to live with his maternal uncles at the neighbouring village,
Chanegaon, came to Parwati's house at Chinchpur with his two uncles, Maruti and
Yellappa. Shortly after this all the thirteen accused persons came in front of
593 the house and demanded that Revansidappa, Yellappa and Maruti should come
out of the house. When they did not, some of the accused went on the roof of
the house and began to remove it by means of spades. Some iron sheets were
actually removed. Ultimately, at the instance of two neighbours Gourava and
Panchppa the three unfortunate young men came out of the house. They were led
to the school which stands some way north of Parwati's house. From there one by
one they were taken near the Maruti Temple outside the Ves, the village wall
and done to death. It is said that Yellappa was struck by Parasappa and
Shranappa with axes while the other accused beat him with sticks. He died
instantaneously. Next was the turn of Revansidappa. He was also struck with
axes by Shranappa and Parasappa and all others with sticks. Revansidappa died
immediately. Maruti was brought there last of all; Parasappa and sangappa
struck him with axes and the other accused with sticks. He also died on the
spot. All the accused then left the place.
Three of them, Gurpadappa, Parasappa and
Daulappa were taken into custody on the very next day. Annaraya Shivabala was
arrested on June 13 and Sliranappa and Ganpati Shamraya on the following day.
Three more accused, Dhanappa, jakanna and Ganpati Gurling were arrested three
days later. On August 6, 1961 were arrested Tipanna and Dhondappa. The
remaining accused Sangappa surrendered in Court on October 16, 1961.
All the accused pleaded not guilty. Their
case was that they had been falsely implicated-Gurpadappa and his brother
Dhanappa because they were in possession of the land purchased by them, which
Revansidappa and his step-mother, Parwati, had been claiming and the other
accused either on suspicion or because they had supported Gurpadappa and his
brother over the land dispute.
Shranappa's appeal is one of right under Art.
134(1) (a) of the Constitution. To decide his appeal it is therefore necessary
for us to examine the evidence adduced in the case for ourselves and to see
whether the assessment of the evidence on which the High Court convicted him is
proper and justified. That evidence consists in this case of the testimony of a
single witness Par594 wati, given by her in the Court of the Committing Magistrate.
This is undoubtedly substantive evidence, which if believed, would be
sufficient in law to support the order of conviction. For, it was brought on
the record of the Sessions Court under the provisions of s. 288 of the Code of
Criminal Procedure ; when in, the Sessions Court Parwati resiled from her
previous statement before the Committing Magistrate and made a definite
statement that she had not seen the occurrence the question has. naturally been
raised whether this evidence of Parwati which is substantive evidence at the Trial
under the provisions of s. 288 of the Code of Criminal Procedure required
corroboration before the Court should act on it.
The question how far evidence in the
Committing, Court given by a witness who refiles from it at the Trial in
Sessions and which is brought in as evidence at the Trial under s.
288 of the Code of Criminal Procedure
requires corroboration or not, has engaged the attention of most of the High
Courts in India in numerous cases.. Many such judgments have been cited before
us and extensive passages have been read out from some of them. While the dust
of controversy sometimes obscured the simplicity of the true position, most of
the learned Judges have, if we may say so, with respect, appreciated the
situation correctly. That is this. On the one hand, it is true that
corroboration of such evidence is not required in law ; but it is equally true
that in order to decide which of the two versions, the one given in the
Committing Court and the one in the Sessions Court, both of which are substantive
evidence, should be accepted, the judge of facts would almost always feel
inclined to look for something else beyond this evidence itself to help his
conclusion. We cannot do better in this connection than to quote from the
observations on this question by their Lordships of the Privy Council in
Bhuboni Sahu v. The King(1). In that case the evidence of an approver in the
Committing Court had been brought on the record under s. 288 of the Code of
Criminal Procedure. Dealing with the question as to the value that can be
attached to such evidence their Lordships observed thus (1)A.I.R. 1949 (P.C.)
257.
595 "Apart from the suspicion which
always attaches to the evidence of an accomplice it would plainly be unsafe, as
the judges of the High Court recognized, to rely implicitly on the evidence of
a man who had deposed on oath to two different stories." This, if we may
say so, with respect, is the crux of the question. Where a person has made two
contradictory statements on oath it is plainly unsafe to rely implicitly on his
evidence. In other words, before one decides to accept the evidence brought in
under s. 288 of the Code of Criminal Procedure as true and reliable one has to
be satisfied that this is really so. How can that satisfaction be reached? In
most cases this satisfaction can come only if there is such support in
extrinsic evidence as to give a reasonable indication that not only what is
said about the occurrence in general but also what is said against the
particular accused sought to be implicated in the crime is true. If there be a
case-and there is such infinite variety in facts and circumstances of the cases
coming before the courts that it cannot be dogmatically said that there can
never be such a case-where even without such extrinsic support the Judge of
facts, after bearing in mind the intrinsic weakness of the evidence, in that
two different statements on oath have been made, is satisfied that the evidence
is true and can be safely relied upon, the judge will be failing in his duty not
to do so.
The present is not one such case. It is true
that Parwati has in this deposition in the Committing Court given a detailed
account of not only the incidents at the house and the three young men,
Rvansidappa, Maruti and Yellappa being taken out of her house to the accused
persons but also as regards how they were led to the village school, how one
after the other the three were taken near the Maruti Temple, how her entreaties
to spare them were in vain and the manner of attack on each of the victims. The
learned judges of the High Court appear to have been impressed by the very
vividness of this description and persuaded themselves apparently from this
alone that she was speaking the truth.
Unfortunately the important fact that the
witness had made a totally different statement on oath in another Court and
denied to have seen the occurrence did not receive from the lear596 ned judges
the attention it deserved. Again, the ability to describe vividly should not be
mistaken for anxiety to speak truly. For, one often exists without the other.
Closer scrutiny of Parwati's statement in the Committing Court discloses some
features, at least, for which no explanation is available.
According to her account Yellappa was first
taken from the school to the temple and that all the thirteen took part in the
attack. If that be true, there were none of the accused party to guard
Revansidappa and Maruti, who were in the school during this time. Who however
was left to guard them? To this we find no answer from Parwati's deposition.
There is the same mystery as to who was left
to guard Maruti when Revansidappa was next taken and killed-all the thirteen
taking part in the attack according to her. It is also to be noticed that she
does not clearly state in this deposition where exactly she was standing or
sitting during the occurrence. The place where the bodies were discovered and
where undoubtedly these three young men were killed is outside the village
wall. This wall would have a door through which, if the prosecution story is
true, the victims were taken out. Was Parwati also allowed to go out? If she
was riot, could she have seen the actual attack on these three persons from her
place on the village side of the Ves.
We look in vain in Parawiti's deposition for any
answer to these questions.
Again, according to her story, three axes
were used in the attack. Only one axe was however discovered at the place of
occurrence. How is it that while two axes were taken away the third was left
behind? There may be a good answer to this question. But none is furnished by
the evidence on the record.
This being the nature of Parwati's evidence
it is, in our opinion, clearly unsafe to accept her testimony against any of
the accused persons unless corroborated by other evidence. In respect of
Shranappa, whose appeal we are now considering, there is admittedly no such
corroboration. It is not possible therefore to accept what Parwati had said
against this appellant as true. The High Court has, in our opinion, fallen into
error in acting on her testimony even in the absence of corroboration. We hold
that the prosecution has failed to prove its case against him and he must be
acquitted of the charges against him.
The appeals by the other five, is by special
leave of this Court, but what we have stated above as regards the need of
corroboration of Parwati's testimony in the Committing Court applies equally in
respect of each of them also. There is no such corroboration whatsoever in
respect of Parwati's story of participation in the occurrence of Gurpadappa,
Ganpati Shamraya and Tipanna. As regards the other two appellants, Parasappa
and Annaraya Shivabala, some slight corroboration has been offered by the
prosecution. That is in the presence of stains of human blood on the soles of
the Chappals seized from them at the time of their arrest. The value of this
corroboration is considerably reduced however by the fact that before these
chappals were seized from Parasappa on Julie 12 and from Annaraya Shivabala on
June 13, these accused persons had been brought up to the place of occurrence.
There is scope therefore for thinking that the soles of the chappals became
stained with blood when they walked over the blood-stained ground. It will not
be reasonable therefore to treat the presence of these blood stains on the
soles of their chappals as sufficient corroboration of Parwati's evidence
against them. The conviction of these five appellants also cannot therefore
stand.
Accordingly, we allow the appeals, set aside
the order of conviction and sentence passed against them and order that they be
acquitted.
Appeals allowed.
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