DHANABAL AND ANR. versus STATE OF TAMIL NADU

Citation: [1980] 2 S.C.R. 491 · Decided: 13-12-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Case Partly allowed

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Judgment (excerpt)

• 
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« 
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 .. 
c 
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 
two appellants. 
E 
r 
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 
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 
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] 
' 
!. 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 
G 
H 
-'92 
SUPREMB COURT REPORTS 
[1980] 2 S.C.R. 
A 
ad they admit that they have made those •tatemeni. in the Committal Court. 
c 
D 
E 
F 
G 
H 
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 
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. 
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 r

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