PERIYASAMY versus STATE OF MADRAS

Citation: [1967] 2 S.C.R. 122 · Decided: 25-11-1966 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Judgment (excerpt)

PERIYASAMY 
r. 
STATE OF MADRAS 
Nol'ember 25, 1966 
(M. HIDAYATULl.All A:-;D G. K. MIHER, JJ.J 
(, .. riniinal Procedure Code (Act 5 of 1898), s. 288-iVitness inipli-:ating 
accused in commiltal 
procteding1 but not trial cowt-Wirnts1 
tret.1ed 
hostile-No formal order transferring 
previous state1nent to record of 
caJ!-/f previous statement can be relied on. 
In a pro!ccution for murder the only eye witness having named 
the 
A 
B 
appclL111~ as the ~ssJilant in her deposition in the committal court, left out 
C 
his name in her evidence in the Sessions Court. She was declared hostiJe 
anJ was allowed to be cross-examined. The Sessioru Judge qucsr ioncJ 
the appellant with reference to the s!atcment of the witness in ihc com-
mitral proceedings and informed him, that ir was marked under •. 288, 
Cr. P.C. 
He however did not pass an order transferring the earlier deposi-
tion to the reoord of the Sessions Court. 
Treating the previous •latement 
as substantive evidence and reiying upon the other circumstances in 
1be 
case, the Sessions Coun and the High Coun on 
appeal convicted 
the 
D 
'ppellant. 
On appeal to this Court, 
HELD : The High Court and the Scssio .. ; Court were right in convict-
ing the appellant. 
Although the technical requirement of •. 288, namely, that an order 
•hould be paged to indicare that the statement is transferred •o a• to be 
read as substantive ev1Jence. was not complied with there was no substan-
tioJ depanure from the requirements of the law and no prejudice 
wa• 
cansed to the appellant •ince he was informed that the •tatement wu being 
used under s. 288. [124 E-0] 
(Dealrabilily of an order indicating why the earlier deposition wa• 
being transferred to the record of the trial coun, pointed out. [124 C.D] 
CRIMINAL APPELLATI; JuRISDICTI01': Criminal Appeal No. 
136 of 1966. 
Appeal by special leave from the judgment and order dated 
January 18, I 966 of the Madras High Court in Criminal Appeal No. 
697 of I 965 and referred trial No. 90 of 1965. 
B. D. Sharma, for the appellant. 
V. P. Raman and A. V. Rangam, for the respondent. 
llie Judgment of the Court was delivered by 
HidayatuUah, J. This is an appeal by special leave against the 
judgment of the High Court of Judicature at Madras, Jar.uary 18. 
J 962. by which the High Court confirmed the convictio:i of the 
appellant Periyasamy under s. 302, Indian Pend Code, and the 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
-
H 
PERJYASAMY v. STATE (Hidayatul/ah, /.) 
123 
scn.ence of death imposed on him. The facts of the case are as 
follows:-
Periyasamy was charged with the murder of his wife Kavcri 
Ammal on the morning of May II, 1965, at 6 a.m., at a -place in 
Kirambur where they were residing in what is called a shed. 
Opposite to this shed was another shed in which Periyasamy's 
brother with his wife Pappayee (P. W. I) was residing. Periyasamy 
and Kaveri Ammal had been married for a period of two years 
during which time Kaveri Ammal used to go away frequently to her 
parents' place, and the motive suggested is that it used to enrage the 
appellant Periyasamy. On the morning of the day of occurrence, 
l'appayee heard the cry "Ayyo, ayyo", and she states that she saw 
Periyasamy striking his wife with a koduval. 
Pappayee raised an 
alarm. Periyasamy thereupon threw the koduml away and retired 
to his shed and taking hold of a rope climbed a tree. 
He tied one 
end of the rope to a limb of the tree and another round his neck 
and jumped, but meanwhile the neighbours had assembled there 
and they caught him and cut him down from the tree and laid 
him on a cot. Periyasamy did not die though there is evidence to 
show that he had some bruises round his neck. 
Meanwhile a brother of Periyasamy by name Chinna ran to 
their father and informed him about the occurrence. The father, 
without going to verify what he had heard, went over to the police 
station House- and lodged a report, saying that his younger son 
had informed him that Periyasamy had cut down his wife with a 
koduval and attempted to hang himself and that he was making the 
report. In the last sentence of this report, it was mentioned that 
Pappayee had witnessed the occurrence. 
The prosecution examined a number of witnesses but we are 
concerned only with one, namely, Pappayee, P. W. I, who is the 
solitary eye-witness in !he case. It appears that Pappayee changed 
her statement in the Court of Session by leaving out the name of 
Periyasamy as the assailant of Kaveri .Ammal. Sh

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