{"id":17035,"date":"1997-12-05T00:00:00","date_gmt":"1997-12-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-tamil-nadu-etc-perajmal-vs-suresh-a-2-anr-state-of-tamil-on-5-december-1997"},"modified":"2019-01-05T10:41:43","modified_gmt":"2019-01-05T05:11:43","slug":"state-of-tamil-nadu-etc-perajmal-vs-suresh-a-2-anr-state-of-tamil-on-5-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-tamil-nadu-etc-perajmal-vs-suresh-a-2-anr-state-of-tamil-on-5-december-1997","title":{"rendered":"State Of Tamil Nadu Etc.Perajmal … vs Suresh (A-2) & Anr.State Of Tamil … on 5 December, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Tamil Nadu Etc.Perajmal … vs Suresh (A-2) & Anr.State Of Tamil … on 5 December, 1997<\/div>\n
Author: Thomas<\/div>\n
Bench: M.K. Mukherjee, K.T. Thomas<\/div>\n
           PETITIONER:\nSTATE OF TAMIL NADU ETC.PERAJMAL BALLAJI & ORS.\n\n\tVs.\n\nRESPONDENT:\nSURESH (A-2) & ANR.STATE OF TAMIL NADU & ORS.\n\nDATE OF JUDGMENT:\t05\/12\/1997\n\nBENCH:\nM.K. MUKHERJEE, K.T. THOMAS\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 5TH DAY OF DECEMBER, 1997
\nPresent:\n<\/p>\n
\t       Hon’ble Mr.Justice M.K. Mukherjee
\n\t       Hon’ble Mr.Justice K.T. Thomas
\nN.Natarajan, Sr.Adv.,  V.G.Pragasam, (S.  Tripathi) Adv. for
\nMs. Rani Jethmalani, Ms. Binu Tamta, Ranjit Kumar advs. with
\nhim for the appearing parties.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:\n<\/p>\n
\t\t\t    WITH
\n\t    CRIMINAL APPEAL NOS. 155-156 OF 1991
\nTHOMAS, J.\n<\/p>\n
     A young enceinte housewife fell from the top of a four-
\nstoreyed building  down on the payment of a street at Madras
\nduring the odd hours on the night of 9-6-1987, and died in a
\ntrice with  her skull  and the bones extensively broken into
\npieces.\t  Initially it\twas taken  by the neighbours and the
\npolice as a case of suicide, but eventually it became a case
\nof gruesome  murder.  Her husband, a flourishing businessman
\nat  Madras   (now  Chennai)   and   his\t  brother   (another
\nbusinessman) and two of their employees were put on trial in
\nthe Sessions Court for criminal conspiracy, rape and murder.
\nOne of\tthe culprits  was  made\t an  approver  and  he\tgave
\nevidence in  support of\t the prosecution case.\tThe Sessions
\nCourt acquitted\t the husband  of the deceased, but convicted
\nthe other  two persons of murder and rape and sentenced both
\nof them to death.\n<\/p>\n
     A Division\t Bench of the High Court of Madras heard the
\nreference which\t was made  under Section  366 of the Code of
\nCriminal Procedure  on the sentence of death, along with the
\nappeals preferred  by the appeals preferred by the convicted
\npersons as  well as  the appeal\t preferred by  the State  in
\nchallenge of  the acquittal.   the  Division Bench confirmed
\nthe acquittal  and set\taside the  conviction  and  sentence
\npassed by  the Sessions Court.\tHence the present appeals by
\nspecial leave.\n<\/p>\n
     First accused  Ramesh Kumar  and  his  younger  brother
\nSuresh Kumar  (A-2) hailed  from Rajasthan,  and  they\thave
\nsettled down  in Madras.   Each\t of them  acquired  separate
\nbusiness establishments.   Ramesh  Kumar,  the\teldest,\t had
\nmarried Kamla  Devi (the  deceased) who was then only 19 and
\nbelonged to  a less affluent family in Rajasthan, about four
\nyears before  her death.  Thereafter the couple lived on the
\ntop floor apartment of a multi-storeyed building situated on
\nThulasinga Mudali  Street at  Madras.  Second accused Suresh
\nKumar got  married to  a girl  from Rajasthan  a few  months
\nbefore the  occurrence but  he did  not bring  his  wife  to
\nMadras from  Rajasthan.\t He too was residing with his eldest
\nbrother Ramesh\tKumar on  the 4th  floor  of  the  building.
\nKamla Devi  (deceased) had  a little child (Sandeep) who was
\nonly 4 years old when she died.\n<\/p>\n
     As the  business of  first accused\t expanded he started
\nentertaining a\tfeeling that  if he  had married from a rich
\nfamily he would have got a handsome dowry.  This led to some
\nestrangement between  the spouses.   Second  accused  Suresh
\nKumar did not see eye with Kamla Devi (deceased) for certain
\nreasons of  his own,  one among\t them alone  has come to the
\nforefront in  evidence that  he believed that Kamla Devi was
\ninjecting hatred  in the  mind of  his brother\tthat A.2 was
\nbecoming a habitual drunkard.\n<\/p>\n
     In the  above backdrop, the synopsis of the prosecution
\ncase having an eerie profile, can be narrated as follows:\n<\/p>\n
     A couple  of days\tprior to the death of Kamla Devi her
\nhusband Ramesh\thad gone  abroad (Singapore)  in  connection
\nwith his  business and before he left India he and the other
\nthree culprits\thad entered  into a  criminal conspiracy  to
\nfinish Kamla  Devi off\tduring his  absence.  After he left,
\nsecond accused informed the remaining culprits that the best
\nway to\tachieve the target was to drop her down from the top
\nfloor of the building so that it would appear to the rest of
\nthe world that she had committed suicide.\n<\/p>\n
     On the  midnight of  9-6-1987 when\t everybody else\t was
\nasleep the  three culprits  (A2-Suresh, A3-Kuman  Singh\t and
\nPW1-Bhoparam) moved  from the  room on\tthe 4th\t floor where
\nthey were  to sleep  and entered the room where deceased was
\nsleeping with  her little  child Sandeep.  They first gagged
\nher  mouth   with  a   cloth  but   then  she  woke  up\t and
\ninstinctively resisted\tthe onslaughts\tof  the\t assailants.
\nBut she\t was overpowered  and the  third accused pressed her
\nneck and  mouth on  the direction  of the second accused who
\nwas holding  her in  his grip  while she  was struggling  to
\nsquirm out of the lethal grip.\tIn that melee the bangles on
\nher hand  broke down.\tPW-1 caught hold of her legs and the
\nsecond accused sexually molested her in that condition.\t A.3
\nalso ravished  her on  being prompted by the second accused.
\nThough\tPW-1 was also persuaded to do the same on her he did
\nnot do\tit as  he found\t that she was unconscious.  Then all
\nthe three  persons lifted  her up  and brought\ther  to\t the
\nbalcony and  tried to  drop  her  down.\t   But\tsomehow\t she
\nregained conclousness then and gripped on the parapet frieze
\nbut the assallants exerted greater force in pushing her down
\nand she\t lost her grip and fell deep down from such a height
\nof the four storeyed building – she died instantaneously.\n<\/p>\n
     The entire\t prosecution case  revolved on\tthe solitary
\nevidence of the approver PW-1 Bhoparam.\t Learned trial judge
\nrelied on  his evidence\t with the  aid of some corroborative
\ncircumstances and  found A2 Suresh and A3 Kuman Singh guilty
\nof rape and murder.\n<\/p>\n
     It was  difficult for  the High  Court to\tact  on\t the
\nevidence of  the approver  mainly for  two distinct reasons:
\n(1)  His   version  of\t the  occurrence   is  fraught\twith
\nimprobabilities and hence it did not inspire confidence; (2)
\nHe being  an accomplice\t his evidence  is unworthy of credit
\neven otherwise, as it did not receive adequate corroboration
\nfrom any source.  hence the conviction and sentence were set
\naside by the High Court.\n<\/p>\n
     Learned counsel  for the  appellant contended  that the
\nDivision bench\tof the\tHigh Court  did not make a pragmatic
\napproach to  the evidence  of PW-1,  and it  resulted in the
\nimproper rejection of the evidence of an eye witness to such
\na dastardly  perpetrated crime.\t  Counsel  further contended
\nthat if strict adherence to the rule of corroboration of the
\nevidence of  an accomplice  witness is\tinsisted, as done by
\nthe High  Court in  this case,\tno approver  evidence  would
\nstand scrutiny\tin any\tcase and  the consequence  would  be
\nmiscarriage  of\t  justice.     Learned\tJudges\texpressed  a
\nregretful note\tin the judgment by way of an epilogue in the
\nfollowing lines:\n<\/p>\n
     “We are  really pained to note that
\n     prosecution was  not able\tto bring
\n     home the persons really involved in
\n     this crime.  Even though there is a
\n     lurking doubt in our mind as to the
\n     involvement of  one or  more of the
\n     accused in\t this crime, they cannot
\n     be\t punished   on\tsuch   a  doubt,
\n     however strong it might be , ….
\n     Following the  high  traditions  of
\n     criminal\tjurisprudence\tin   our
\n     country, we  are  not  inclined  to
\n     send the accused to gallows on mere
\n     suspicion, and  on the  evidence of
\n     the approver  whose evidence stands
\n     uncorroborated.”<\/p><\/blockquote>\n
     We have  perused the  evidence carefully and considered
\nthe reasoning  of the  learned Judges,\tbut we are unable to
\npersuade ourselves  to concur  with the judgment of the High
\nCourt.\n<\/p>\n
     How Kamla Devi would have died can be inferred from the
\npost-mortem appearances\t noted by  PW-22 Dr.  Cecila  Cyril,
\n(Additional Professor in the Department of Forensic Medicine
\nof the Medical College, Madras) who conducted the autopsy on
\nthe dead  body.\t  The doctor  found that  the  deceased\t was
\npregnant by  4 weeks.\tAfter  listing all  the\t ante-mortem
\ninjuries in  Ext. P-41\t(post-mortem certificate) the doctor
\nopined that her death might have been on account of the head
\ninjuries  as   well  as\t  asphyxia  due\t to  smothering\t and
\ncompression of\tneck.\tThere are enough data to support the
\nconclusion that\t Kamla Devi  would have\t been  smothered  by
\npressing her  mouth and\t neck.\t Injuries  Nos.1  to  7\t are
\nabrasions and  contusions and  lacerations around  the lips.
\nNos. 17\t to 24 are similar injuries on the chin and neck and
\nalso on\t the lower  part of the nose.  None of her teeth was
\naffected.  Form all the above features we can unhesitatingly
\naccept the  doctor’s opinion that Kamla Devi would have been
\nsubjected to forceful smothering.\n<\/p>\n
     The skull\tof the dead body had extensive fractures and
\nbrain matter  was found protruding.  There were fractures on
\nthe sternum  and on  the ribs.\t While\tgiving evidence\t the
\ndoctor concurred with the suggestion of the prosecution that
\n“there was  very good chance of the victim being alive after
\nsustaining the injuries due to smothering and compression of
\nneck when  she would  have been\t in a  condition  of  shock.
\nAfter smothering and compression of neck she could have been
\nalive  for  a  few  minutes  depending\tupon  her  power  of
\nvolition,”\n<\/p>\n
     PW-1 Bhopparam narrated the evidence which preceded and
\nsucceeded the  occurrence and gave a complete picture on the
\nvivid details of the occurrence.  It would be unnecessary to
\nrepeat his evidence as it is consistent with the prosecution
\nstory summarised  above.   PW-1 deposed\t that the neighbours
\nand relatives  of the deceased were informed of the death of
\nKamla Devi  and they  all arrived  and her  husband A-1 also
\nflew down  from Singapore  He further said that on the third
\nday he\twent o\tthe house  of his  brother-in-law (PW-6) and
\nstayed there  for 6  days and  then went to Mahabalipuram (a
\nsuburb of Madras) where he got a temporary employment in the
\ntea shop  of Pw-15.   On 24-6-1987 he happened to notice his
\nphoto in  a Tamil  daily and  then he  rushed back to PW-6’s
\nhouse and made a shrift to him of all what happened and with
\nthe help of Pw-6 he surrendered to the police.\n<\/p>\n
     The High Court seems to have accepted the contention of
\nthe defence  counsel that  PW-1 would  have been  in  police
\ncustody from  10-6-1987 till 25-6-1987 (When he was produced
\nbefore the magistrate).\t The following reasons were advanced
\nby the\thigh Court for accepting the said define contention.
\nFirst is,  as first  accused had  offered money\t to PW-1 for
\ncarrying out the operation PW-1 would normally have remained
\nin the house until the money was paid.\t(PW-1 could not have
\nremained in  the same  house  as  tension  would  have\tbeen
\nmounting up  in his  mind and  it was  only natural  that he
\nwould have  moved  out\tof  that  jinxed  house\t instead  of
\nlingering on  there as\tmoney could have been collected even
\nat a  later stage).   Second  is that  PW-1, was  unable  to
\nremember the names of PW-6’s employees, and if was unable to
\nremember the  names of PW-6’s employee, and if he had really
\nstayed in  that house  he could have remembered those names.
\n(This is  too fragile  a reasoning  as one  may or  may\t not
\nremember the  names of\tsuch employees particularly his mind
\nwould then  have been  preoccupied with\t thought  about\t the
\nhorrendous crime  committed by\tthem).\tThe third is that he
\nfailed to  disclose the\t incident to PW-6 or to his employer
\nPw-15.\t (It is\t too much  to expect  that PW-1\t would\thave
\nreadily divulged  it to\t any one  else at the first instance
\nbecause the whole episode was perpetrated by the culprits in
\nsecrecy).     Fourth  reason  is  that\tPW-1  did  not\tread
\nnewspapers during  the interregnum  and that  indicates\t his
\nabsence in  the free  world.  (There is nothing on record to
\nshow that this employee of A.1 was regular newspaper reader,
\nwithout which such an inference is out of place).\n<\/p>\n
     All the  above reasons  are hence\tvery tenuous grounds
\nfor disbelieving the version of PW-1 that he had stayed with
\nPw-6 and  PW-15.   Learned Judges  of the  High Court should
\nhave appreciated  his testimony in the light of the evidence
\nof PW-6 and PW-15 against which nothing has been pointed out
\neither by  the High  Court or  before us as to why those two
\nwitnesses should have perjured in court about PW-1’s sojourn
\nwith them.\n<\/p>\n
     The High Court did not believe the case of PW-1 that A-
\n2 and A-3 would have sexually ravished Kamla Devi.  The sole
\ncircumstance which  learned Judges highlighted on that score
\nis the\tabsence of semen or supermatozoa in the vaginal swab
\ncollected from\tthe dead  body as  the result  of laboratory
\nanalysis of  the swab  showed. The  High Court seems to have
\noverlooked the\tfollowing data available in the post-morterm
\nreport which  is a  very telling  circumstance regarding the
\nsexual molestation the victim would have been subjected to;\n<\/p>\n
     “Bruising of  tissues on  right side  of vagina 2x1x1\/2
\ncms. Bruising  is reddish blue in colour. Bruising 1×1\/2×1\/2
\ncms. over the anterior lip of the cervix.”\n<\/p>\n
     Dr. Cecila\t Cyril (PW-22)\thad no\tdoubt that the above
\nfeatures are  consistent with the victim offering resistance
\nagainst forcible  sexual intercourse.\tThe  doctor  witness
\nemphatically repudiated\t the suggestion\t that  such  bruises
\ncould have been caused in a fall.  In view of the above, the
\nHigh Court  went wrong\tin negativing  the version  of\tPW-1
\nregarding sexual ravage merely on the basis of non-detection
\nof semen  or supermatozoa  in the vaginal swab.\t There could
\nbe more\t than one  explanation for  absence of\tsemen in the
\nvaginal swab.\tWe  have no doubt that Kamla Devi would have
\nbeen made a victim of a forcible sexual assault.\n<\/p>\n
     One of  the points\t which dissuaded the High Court from
\nbelieving the  version of  PW-1 is  the most  abominable and
\ndespicable act\tattributed to  A.2 vis-a-vis his own sister-
\nin-law.\t High Court has stated thus on that aspect:\n<\/p>\n
     “Even if  there was some reason for A.2 to end the life
\nof the\tdeceased with a view to secure peaceful life for his
\nbrother, certainly  he would  not have\tresorted to the most
\ninhuman method\tof committing rape on his own brother’s wife
\nthat too, along with two of his servants.”\n<\/p>\n
     Learned counsel  for the accused also repeated the same
\nreasoning before  us in\t support of his contention that such
\nan act\tof barbarity would be unthinkable and counter to the
\nsocial order  for a  brother to\t do it on his sister-in-law.
\nWe too\tagree that  if A.2 had done those acts attributed to
\nhim then it would have been woeful and despicable of a human
\nconduct.\n<\/p>\n
     We\t have\tconsidered  the\t said  contention  with\t the
\nSeriousness it\tdeserves.   One thin  is clear that somebody
\nhad done  it one  her during  that night.   Whoever had done
\nthose acts  during that night i.e. by sexually molesting her
\nand then dragging her and throwing her living body down from
\nthe balcony,  the assailant  would have been someone who was
\nsimmering with\tunquenchable grudge  towards  her.    It  is
\nextremely remote  that a  burglar or a stranger rapist would
\nhave  gatecrashed   into  the\thouse  and  done  all  those
\natrocities  on\tthat  helpless\twoman  when  the  house\t was
\noccupied by  3 adult male members.  It must be remembered in
\nthis context  that even\t the defence  had no suggestion that
\nthe deceased had any enemy outside, for, if she had any such
\nenemy that fact would not have escaped from the knowledge of
\nher husband,  if not of A.2 also.  If PW-1’s version is true
\nA.2 had\t his own grudge towards the deceased.  The intensity
\nof that\t grudge was  known only\t to himself  or perhaps\t the
\ndeceased also.\tIf A.2 had decided to kill his sister-in-law
\nin such\t a savagery  manner by throwing her from the balcony
\nthat itself would indicate the superlative degree of gravity
\nof his\twrath towards  her.  With such a mind simmering with
\nacerbity he  would as  well have  thought to  subject her to
\nexcruciating mental pain by devastating her womanhood in the
\nmanner it  was done  on her.  So the degree of woefulness of
\nthe  onslaught\t is  not  enough  to  militate\tagainst\t the
\nhorrendous nature of the crime.\n<\/p>\n
     We are  hence totally  unable to agree with the view of
\nthe High  Court that  the  story  narrated  by\tPW-1  lacked
\nprobability.   After all PW-1 is an accomplice and hence his
\nnarration would be incriminating to him also.\n<\/p>\n
     The  testimony   of  an  accomplice  is,  no  doubt,  a
\nstigmatised evidence  in  criminal  proceedings.  It  is  on
\naccount of  the inherent  weakness which  such\tevidence  is
\nendowed with  that illustration\t (b) to\t Section 114  of the
\nEvidence Act  suggests that  it is  open  to  the  court  to
\npresume that  the uncorroborated  testimony of an accomplice
\nis unworthy  of credit.\t  But  the legislature had advisedly
\nrefrained from\tincluding  the\tsaid  category\tof  evidence
\nwithin the  ambit of legal presumptions but retained it only
\nwithin\tthe  area  of  factual\tpresumptions  by  using\t the
\nexpression “the\t court may  presume”.\tIn order to make the
\nposition clear\tthe same  enactment has incorporated Section
\n113 saying that it is not illegal to convict a person on the
\nuncorroborated testimony  of  an  accomplice.\t The  raison
\nd’etre for  such legislative  marshalling is  to enable\t the
\ncourt to  have its  freedom to\tact on\tthe evidence  of  an
\naccomplice in appropriate cases, even without corroboration,
\nif the\tcourt feels that a particular accomplice evidence is
\nworthy of credence.\n<\/p>\n
     Thus, the law is not that the evidence of an accomplice
\ndeserves outright  rejection if\t there is  no corroboration.
\nWhat is\t required is  to adopt great circumspection and care
\nwhen dealing  with the\tevidence of  an accomplice.   Though
\nthere is  no legal  desirable that  court  seeks  reassuring
\ncircumstances to  satisfy the  judicial conscience  that the
\nevidence is true.\n<\/p>\n
     A Bench of three judges of this Court in Dagdu and ors.
\nVs. State  of Maharashtra,  [1977 (3)  SCC 68] has laid down
\nthe legal  position after making a survey of the case law by
\nreferring to  Rameshwar vs. State of Rajasthan,<\/a> [AIR 1952 SC
\n54] and a number of other decisions of this Court as well as
\nof English  courts.   Chandrachud…] (as  the learned Chief
\nJustice then  was) has\tstated for the three Judges Bench as
\nfollows:\n<\/p>\n
     “There  is\t no  antithesis\t between
\n     Section 133 and illustration (b) of
\n     section 114  of the  Evidence  Act,
\n     because the  illustration only says
\n     that  the\tCourt  ‘may’  presume  a
\n     certain state  of affairs.\t It does
\n     not seek  to raise a conclusive and
\n     irrebuttable presumption.\t Reading
\n     the two together the position which
\n     emerges   is    that   though    an
\n     accomplice is  a competent\t witness
\n     and   though   a\tconviction   may
\n     lawfully\t  rest\t    upon     his
\n     uncorroborated testimony,\tyet  the
\n     Court is  entitled to  presume  and
\n     may   indeed    be\t  justified   in
\n     presuming\tin   the  generality  of
\n     cases  that   no  reliance\t can  be
\n     passed  on\t  the  evidence\t  of  an
\n     accomplice unless\tthat evidence is
\n     corroborated      in\tmaterial
\n     particulars, by which is meant that
\n     there has\tto be  some  independent
\n     evidence tending to incriminate the
\n     particular\t   accused     in    the
\n     commission of  the crime……..All
\n     the  same,\t  it  is   necessary  to
\n     understand that  what has\thardened
\n     into a  rule of  law is not hat the
\n     conviction\t  is   illegal\t if   it
\n     proceeds  upon  the  uncorroborated
\n     testimony of an accomplice but that
\n     the rule  of corroboration\t must be
\n     present to\t the mind  of the  Judge
\n     and  that\t corroboration\tmay   be
\n     dispensed with only if the peculiar
\n     circumstances of  a  case\tmake  it
\n     safe to dispense with it”<\/p><\/blockquote>\n
     This is  not a  cases where evidence of PW-1 is totally
\nbereft of  any reassuring  circumstance.  This occurrence as
\nfeatured   by\tPw-1   is   supported\tby   the   following
\ncircumstances:\n<\/p>\n
(1) Post-mortem appearances noted by PW-22 Dr. Cecila Cyril.
\n(2)   broken bangles  found on\tthe floor of the room and on
\n     the balcony
\n(3)   The admission of A.2 and A.3 that they along with Pw-1
\n     wee present in the same flat during that night.  [It is
\n     quite improbable  that any\t outsider would have made an
\n     entry into this apartment during that night and with or
\n     without the  help of  PW-1 would  have made  all  those
\n     atrocious acts  least disturbing  the sleep of her four
\n     year old son huddling on the mother or the sleep of A.2
\n     and A.3].\n<\/p>\n
(4)   The statement  by PW-6 that on 24-6-1987 Pw-1 told him
\n     of this  incident in  which he  involved all  the three
\n     culprits.\n<\/p>\n
     Dealing with  the last  corroborative circumstance i.e.
\nthe statement  made by PW – 1 to PW – 6 on 24-6-1987, we may
\nhave to\t consider the  admissibility of\t the said  statement
\nSection 157 of the Evidence Act reads thus:\n<\/p>\n
     “In  order\t  to   corroborate   the
\n     testimony of  witness,  any  former
\n     statement\tmade   by  such\t witness
\n     relating to  the same  fact, at  or
\n     about the\ttime when  the fact took
\n     place,  or\t  before  any  authority
\n     legally  competent\t to  investigate
\n     the fact, may be proved.”<\/p><\/blockquote>\n
     The section  envisages two\t categories of statements of
\nwitnesses which can be used for corroboration.\tFirst is the
\nstatement made\tby a  witness to any person “at or about the
\ntime when the fact took place”.\t The second is the statement
\nmade by\t him to\t any authority\tlegally bound to investigate
\nthe fact.   We\tnotice that  if the  statement is made to an
\nauthority competent  to investigate  the fact such statement
\ngains admissibility,  no matter\t that it was made long after
\nthe incident.\tBut  if the  statement was  made to  a\tnon-
\nauthority it loses its probative value due to lapse of time.
\nThen the  question is,\twithin how  much time  the statement
\nshould have  been made?\t If it was made contemporaneous with
\nthe occurrence\tthe statement  has a  greater value  as\t res
\njustea and  then it  is substantive evidence.  But if it was
\nmade only  after some  interval of  time the statement loses
\nits probative  utility as  res justea,\tstill it  is usable,
\nthough only for a lesser use.\n<\/p>\n
     What is  meant by\tthe expression “at or about the time
\nwhen the  fact took  place”? There can be a narrow view that
\nunless such  a statement  was made soon after the occurrence
\nit cannot be used for corroboration.  A broader view is that
\neven  if   such\t statement  was\t made  within  a  reasonable
\nproximity of  time still  such statement  can  be  used\t for
\ncorroboration.\t The legislature  would not have intended to
\nlimit the  time factor\tto close  proximity  though  a\tlong
\ndistance of  time would\t deprive it  of its utility even for
\ncorroboration purposes.\n<\/p>\n
     We think that the expression “at or about the time when
\nthe fact  took place”  in Section  157 of  the Evidence\t Act
\nshould be  understood in  the context according to the facts
\nand circumstances  of each  case.   The mere fact that there
\nwas an\tintervening period  of a  few days, in a given case,
\nmay not\t be sufficient to exclude the statement from the use
\nenvisaged in  Section 157  of the  Act.\t   The\ttest  to  be
\nadopted, therefore,  is\t this;\tDid  the  witness  have\t the
\nopportunity to\tconcoct or  to have  been tutored?   In this
\ncontext the  observation of Vivian Bose, J. in Rameshwar vs.
\nThe State of Rajasthan (AIR<\/a> 1952 SC 54) is apposite:\n<\/p>\n
     “There can be no hard and fast rule
\n     about  the\t  ‘at  or   about   the’
\n     condition in Section 157.\tThe main
\n     test is  whether the  statement was
\n     made as  early as can reasonably be
\n     expected in  the  circumstances  of
\n     the  case\t and  before  there  was
\n     opportunity   for\t  tutoring    or
\n     concoction”.<\/p><\/blockquote>\n
\t  (Emphasis supplied)
\n     Here when PW-1 disclosed to his brother-in-law (PW6) on
\n24-6-1987 about\t his version  of the  occurrence we have not
\ncome across  anything  to  indicate  that  PW-1\t was  either
\ntutored or  influenced by  anybody during  the\tinterregnum.
\nLooking at  the\t statement  from  that\tperspective  we\t are
\ninclined to  treat it  as a  corroborative piece of evidence
\ngiving us  a  reassurance  regarding  the  truth  of  PW-1’s
\nevidence in  court so  far as  the persons  involved in\t the
\nepisode are concerned.\n<\/p>\n
     Shri Ranjit  Kumar, learned  counsel for  A.3 took much
\npains to  impress us  that PW-1’s  version that they trekked
\nalong  a   cornice  to\treach  deceased’s  room,  is  highly
\nincredible as  they could  easily have\twalked\tthrough\t the
\nnormal passage.\t  PW  1 has an explanation for choosing that
\ncircuitous route.   But\t we are\t not interested\t to know why
\nthey chose  a longer passage to reach deceased’s room.\tWhat
\nwe known  is that they reached her room during that midnight
\nhour.\n<\/p>\n
     The above\tdiscussion takes  us to the final conclusion
\nthat the  High Court  has seriously  erred in  upsetting the
\nconviction entered  by the Sessions Court as against A.2 and
\nA.3 The\t erroneous approach  has resulted  in miscarriage of
\njustice by  allowing the  two perpetrators  of\ta  dastardly
\ncrime committed\t against a helpless young pregnant housewife
\nwho was\t sleeping in  her own apartment with her little baby
\nsleeping by  her side and during the absence of her husband.
\nWe strongly  feel that the error committed by the High Court
\nmust be\t undone by  restoring the  conviction passed against
\nA.2 and A.3, though we are not inclined, at this distance of
\ntime, to  restore the  sentence of death passed by the trial
\ncourt on the those two accused.\n<\/p>\n
     In the  result, we\t allow the appeals and set aside the
\njudgment of  the  High\tCourt  of  Madras  and\trestore\t the
\nconviction passed  by the  trial court under Section 302 and
\n376 read  with Section 34 of the IPC as against A.2 – Suresh
\nand A.3\t – Kuman Singh, and we sentence them each to undergo
\nimprisonment for  life\ton  the\t first\tcount  and  rigorous
\nimprisonment for  a period  of 10 years on the second count.
\nSentences on  both counts  will run concurrnetly.  We direct
\nthe Sessions  Judge, Madras  (now Chennai) to take immediate
\nsteps to  put the  aforesaid convicted\tpersons in  jail for
\nundergoing the sentence<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Tamil Nadu Etc.Perajmal … vs Suresh (A-2) & Anr.State Of Tamil … on 5 December, 1997 Author: Thomas Bench: M.K. Mukherjee, K.T. Thomas PETITIONER: STATE OF TAMIL NADU ETC.PERAJMAL BALLAJI & ORS. Vs. RESPONDENT: SURESH (A-2) & ANR.STATE OF TAMIL NADU & ORS. DATE OF JUDGMENT: 05\/12\/1997 BENCH: M.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-17035","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Tamil Nadu Etc.Perajmal ... vs Suresh (A-2) & Anr.State Of Tamil ... on 5 December, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-tamil-nadu-etc-perajmal-vs-suresh-a-2-anr-state-of-tamil-on-5-december-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Tamil Nadu Etc.Perajmal ... vs Suresh (A-2) & Anr.State Of Tamil ... on 5 December, 1997 - 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