R. DINESHKUMAR @ DEENA versus STATE REP. BY INSPECTOR OF POLICE & OTHERS

Citation: [2015] 5 S.C.R. 605 · Decided: 16-03-2015 · Supreme Court of India · Bench: JASTI CHELAMESWAR · Disposal: Disposed off
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Judgment (excerpt)

(2015] 5 S.C.R. 605 
R. DINESHKUMAR @ DEENA 
v. 
STATE REP. BY INSPECTOR OF POLICE & OTHERS 
(Criminal Appeal No.454 of 2015) 
MARCH 16, 2015 
[J. CHELAMESWAR AND C. NAGAPPAN, JJ.] 
A 
B 
Code of Criminal Procedure, 1973 - s. 319 - Power c 
under - Exercise of - Summoning of prosecution witness 
as an additional accused u/s. 319 - On facts, murder of 'V' 
- Trial of seven persons including appellant - Evidence of 
PW 64 as to the genesis of the conspiracy to kill 'V' of which 
various accused and also PW64 were parties at different D 
points of time; and that he developed cold feet after the 
initial stage and withdrew from the conspiracy and did not 
participate in the actual killing of 'V' - Thereafter, appellant 
filed petition uls. 319 seeking to summon PW64 as an E 
additional accused to be tried together with the rest of the 
accused, who were already facing trial - Dismissed by trial 
court - Subsequently, revision petition dismissed by the 
High Court holding that PW64 cannot be prosecuted by 
summoning him as an additional accused uls. 319 Cr.P.C. 
F 
however, he could be separately prosecuted for offence 
u/s. 1208 /PC - On appeal, held: High Court rightly refused 
to summon PW64 as an accused to be tried alongwith the 
appellant and others - However, erred in holding that he G 
could not be tried a/ongwith the other accused already facing 
trial as the said conspiracies did not form part of the same 
transaction - To meet ends of justice trial court directed to 
grant pardon in favour of PW64 - s. 307. 
H 
605 
606 
SUPREME COURT REPORTS 
[2015] 5 S.C.R. 
A 
Evidence Act, 1872 - s. 132 proviso - Rule against self-
incrimination under - Held: Proviso to s. 132 embodies facet 
of the rule against self-incrimination and is statutory 
immunity against self incrimination which deserves the most 
liberal construction - Thus, no prosecution can be launched 
B against the maker of a statement falling within the sweep of 
s. 132 on t/Je basis of the answer given by a person while 
deposing as a witness before a Court. 
Disposing of the appeal, the Court 
c 
HELD: 1.1 In the instant case, except the evidence 
of PW64 and his statement u/s. 164 Cr.P.C. there is no 
other evidence on record of the Sessions Court to 
indicate that PW64 has committed any offence. Both the 
D evidence and the statement u/s. 164 Cr.P.C. of PW64 
prima facie indicate a conspiracy to kill 'V' to which 
conspiracy PW64 was a party at least at the initial stage. 
According to PW64, he developed cold feet after the 
initial stage and withdrew from the conspiracy and did 
E not participate in the actual killing of 'V'. The evidence 
on record indicate that as of today there is no evidence 
to prosecute PW64 for any offence other than the one 
punishable u/s. 1208 IPC. Therefore, if law permits the 
use of the content of either the evidence given at trial 
F or the statement made u/s.164 Cr.P.C. by PW64, he 
could be tried for an offence punishable u/s. 120B IPC. 
Because, on his own admission, PW64 agreed to kill 'V' 
for a price and accepted money from A2 towards the 
G 
part payment of such price and also drafted A3 into the 
conspiracy. [Paras 11, 15] [617-A-D] [619-D-E] 
1.2 As regards, the question whether the offence 
said to have been committed by PW64 and the offence 
for which the appellant and other accused in Sessions 
H Case are being tried were "committed in the course of 
• 
R. DINESHKUMAR@ DEENA v. STATE REP. BY 
607 
INSPECTOR OF POLICE 
the same transaction", the High Court concluded "that A 
the conspiracie~ committed by A2 and the 2nd 
respondent/PW 64 and the conspiracy between the 2nd 
respondent/P.W. 64 and A3 have got nothing· to do with 
the subsequent conspiracy hatched between A2, A3 and 
the rest of the accused." The conclusion by the High B 
Court that PW64 could not be tried together with the 
other accused already facing trial in Sessions Case as 
the said three conspiracies "do not form part of the 
same transaction", cannot be accepted. [Para 17, 18) 
[619-G-H; 620-A-D] 
C 
1.3 It is not a case of either the prosecution or PW64 
that the murder of 'V' was committed by the persons 
other than the accused facing the trial. PW64 only gave 
evidence as to the genesis of the conspiracy to kill 'V' D 
of which various accused and also PW64 are parties at 
different points of time. Going by the test laid down in 
Ganeswara Rao case, assuming the correctness of the 
conclusion recorded by the High Court that there are 
t
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