# PERIYASAMY v. STATE OF MADRAS Nol'ember 25, 1966

- **Citation:** [1967] 2 S.C.R. 122
- **Court:** Supreme Court of India
- **Decided:** 1967
- **Case number:** CRIMINAL APPELLATI; JuRISDICTI01': Criminal Appeal No. 136 of 1966
- **Bench:** M. HIDAYATULl.All A:-;D G. K. MIHER
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/periyasamy-v-state-of-madras-nol-ember-25-1966-3966
- **Pages:** 5

## Headnote

(, .. 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
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appclL111~ as the ~ssJilant in her deposition in the committal court, left out
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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 commitral proceedings and informed him, that ir was marked under •. 288,
Cr. P.C.
He however did not pass an order transferring the earlier deposition 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 convicting 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 substantioJ 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
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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.

## Text

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 commitral proceedings and informed him, that ir was marked under •. 288,
Cr. P.C.
He however did not pass an order transferring the earlier deposition 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 convicting 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 substantioJ 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
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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. She was, therefort,
declared hostile by the court and was allowed to be cross-examined
under s. 145 of the Indian Evidence Act. Her previous statement
was also brought on the record of the case. This statement of
Pappayee forms the foundation of the case against :?eriyasarny,
corroborated by the other evidence about his conduct and the
motive for the commission of the offence.
The High Court and the court below have acted upon the statement of Pappayee made in the committal court in preference to the
statement she made in the Court of Session, and have based the
convi-~on by accepting her previous version. In this appeal, Mr.
B. D. Sharma naturally attacked the evidence of Pappayee from
various angles and also tried to establish that the judgment of the
121
SUnBllll covaT UPOllTI
(1967) 2 S.C.ll.
High Court did not satisfy the standards for an appell~te judgment
as laid down by this Court, particularly in a case dealing with the
confirmation of a death sentence. We shall, therefore, examine
these contentions in· detail.
The first contention raised by Mr. Sl1anna is that the Sessions
Judge did not comply with the provisions of s. 288 of the Code of
Criminal Procedure inasmuch as he did 'IOI pass any order transferring the earlier statement to the record of the Sessions trial. We
have not been able to find in the original record c{ the case,
which was brought to our notice, any order specifying the transfer
of the earlier deposition to the record of the Sessions Court under
s. 288. It appears, however, that the practice of this Court is to
contradict a witness with the earlier statement and parts there of,
after declaring him hostile and then to use the record of the earlier
statement as substantive evidence. It may !>.: stated that it is highly
desirable that the court should, before the transfer of the earlier
statement to the record of the Sessions ca.ie under s. 288, 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. If the matter had restecl with the use of the earlier
statement withou: this notice to the accused, we would have found
it difficult to rely upon the earlier deposition. We find, however,
that Periyasamy was questioned with reference to the statement of
Pappayee made before the Committing
Magistrate which, the
Judge informed him, was marked under s. 288 of the Code of Criminal Procedure, and he was asked what he had to say about it. Therefore, although the technical requirement of the section, namely,
that an order should be passed to indicate that the statement is
transferred so as to be read as substantive evidence, was not complied
with, there does not appear to be any substantial departure from the
requirements ofthdaw. There is also no likelihood of any prejudice
io Periyasamy since hi' was informed, while he was being examined
that the statement was being used u:ider s. 288, Criminal Procedure
Code, and was invited to say what he wished to say in defence.
We arc, therefore, of the opinion that the High Court and the court
below were right in using the statement as substantive evidence
which undoubtedly the Code of Criminal Procedure does allow.
Mr. Sharma next contended that it has been laid down in a
~es of cases that when the solitary witness in a case has made
confticting statements, it is very risky to rely upon any of the versions
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and has drawn our attention to a case reported in re Muruga
Goundan(') decided by a Division Bench in which the rresent Chief H
Justice of this Court delivered the judgment. We entirely agree.
(I) A.l.R 1949 Mad. QC.
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PERIYASAMY v. STATE (Hidayatul/ah, J.)
125
But there are cases and cases. If the matter rests upon the statement of a witness, who has changed the version and there is nothing
further to connect the accused with the offence with which he is
charged, there is good ground for acquitting him.
We do not think
that this is such a case. The facts here go further. Pappayee's
two statements, when they are compared, disclose that the whole of
her testimony as given in the court of the Committing Magistrate
was again repeated in the Court of Session, except that she left out
the name of Periyasamy as the assailant. This appears to have been
the result of some pressure upon her. Although she was induced to
say in the Court of Session that she had made the earlier statement
under pressure of the police and the police threatened to involve
her in the murder, we find other clear circumstances from which we
can say that the statement made earlier by Pappayee. is definitely
to be preferred in the circumstances of this case. We proceed now
to enumerate what those circumstances are.
The two sheds are situated opposite to each other and the door
of the shed in which Kaveri Ammal was done to death is a kind of
matting which Pappayee had stated was then open. This would be
so in May, which, being a hot month, makes the people open their
doors early in the morning.
Therefore, whatever happened inside
the shed would be visible to persons living in a shed across the road
and Pappayee states in both the statements that she was able to
see the occurrence.
The fact that she is a close relation must
weigh considerably against Periyasamy and we must turn, therefore,
to see whether he gave any reasonable explanation why Pappayee
should have given the evidence at all against him.. His version is
that he had gone to fetch some kerosene oil for working a pump and
when he came back he found that his wife had been cut to pieces,
apparently by some one in his absence. He further added in answer
to a question that he was "on talking terms" with Pappayee before
he married, suggesting thereby that Pappayee was enraged on
being neglected by him after he married Kaveri Arnmal. This
motive and the explanation about his absence are his explanations
to avoid the implications of Pappayee's incriminating statement.
In our opinion, neither of the.ie circumstances is clear enough
to make us discard the evidence of Pappayee brought on the record
under s. 288 of the Code of Criminal Procedure. It seems too
much of a coincidence that an unknown murderer lay in wait to
kill Kaveri Arnmal during the short time her husband was away to
buy kerosene oil. Further, it seems difficult to believe that Pappayee
was making this statement because she was jilted in some manner
by Periyasamy. There is nothing to show that what Periyasamy
alleged was at all the truth, and looking to the circumstances of the
case, we feel that this is just something which he has thought out
in defence without being true. This conclusion is further streng-
126
SUPREMI! COURT REPORTS
(1967] 2 S.C.R.
thened by his subsequent conduct on the discovery by him of the
murder. What did Periyasamy do? He docs not seem to have
questioned any one as to how this happened during the short time
he was away.
On the other hand, he snatched up a rope, tied it to
the limb of a tree and tying the other end to his neck jumped down
in an attempt to commit suicide.
He was fortunate (but not quite
so) that some neighbours arrived at the critical moment and saved
him from hanging himself. This conduct clearly indicates a feeling
of fear or, may be, of remorse. It induced him to attempt to take
his own life after he had taken that of his wife.
Mr. B. D. Sharma
suggested a number of persons who might be the likely assailants of
Kaveri Ammal, suggesting the father of Periyasamy or the uncles of
the girl and even Pappayee herself.
But these suggestions cannot
be accepted in the light of the circumstances. If they had been true,
the husband would have stood his ground and attempted to see
that the right offender was brought to book and not attempted to
commit suicide at the first sight of his wife lying murdered at the
hands of some one else.
Mr. B. D. Sharma argued that th~ jl'dgment of the High
Court had not taken into account all these cir~umstances. Perhaps, the High Court thought
that the case was clear enough
and did not embark on a detailed judgment.
After looking into
the record of the appeal case and considering every aspect of the
argument which has been advanced before us, we are satisfied chat
no other conclusion was possible and that the charge had been
completely proved against Periyasamy. We, accordingly, order
the appeal to be dismissed.
R.K.P.S.
Appeal dismissed.
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