CHINNAMALversusSTATE OF TAMIL NADU AND ORS.

                               CHINNAMAL                                          A
                                   v.
                     ST ATE OF TAMIL NADU AND ORS.

                              NOVEMBER 20, 1996

               [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.]                            B

          Criminal Law :

            Statement recorded u!s. 164 Cr. P.C. and FIR-Evidentiary value
     of-Accused prosecuted u/ss, 147, 148,307 and 302 !PC-Conviction by C
     trial court-High Court acquitting the accused on the ground that there
     were contradictions in the statement of witness recorded u/s. 164 CrPC
     and the FIR-Held, High Court should have first considered the statements
     made by witnesses during trial and decide for itselfwhether those statements
     should be relied upon in view of their contradictions (if any) with their
     earlier statements provided those contradictions had been brought on record D
     u/s. 145 of Evidence Act-High Court erred in discarding eye-witness
     account without referring much less discussing the same-Judgment of
     High Court .set aside--Matter remitted to High Court for disposal in
     accordance with law; Indian Penal Code, 1860--Ss. 147, 148, 307 and
     302; Code of Criminal Procedure, s. 164-Evidence Act, 1872-s.145.
                                                                                  E
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     333 of 1989

          From the Judgme~t and Order dated 23.12.88 of the Madras High
     Court Cr. A. No. 241 of 1988.                                                f


..        M.N. Krisanamani, Praveen Kumar and V. Shekhar for the Appellant.
                       I
          N. Natarajan, R.P. Kovilan, V. Balachandran and S. Anand for the
     Respondents.
                                                                                  G
_,        The following Order of the Court was delivered :

          The six accused-respondents were tried for and convicted of offf~nces
     punishable under Section< 147, 148 307 and 302 IPC (3 counts). In appeal,
     the High Court set aside their convictions and acquitted them. Aggrieved     H
                                        927
    928                     SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.


A thereby the appellant, who happens to be the wife of one of the three
    deceased and figured as an eye witness to the incident, filed this appeal
    after obtaining special leave.

         On perusal of the impugned judgment we find that the principal
  reason which weighed with the High Court in setting aside the convictions
B of the accused-respondents is that the statement (Ext.DI) made by the
  appellant (who also claimed to have been assaulted by the accused persons
  during the incident) before a Magistrate which was initially recorded as
  her dying declaration but was subsequently tested as a statement recorded
  under Section 164 Cr.P.C. in view of her survival and the report {Ext. Pl)
  that she lodged with the police (which was treated as the First Information
C Report) contradicted each other materially. In our considered view, this
  approach of the High Court in dealing with the evidence was patently
  wrong. It is trite that a case has to be decided on the basis of the evidence
  adduced by the witnesses during the trial and any previous statements
  made by any of such witnesses can be used by the defence for the purpose
  of only contradicting and discrediting that particular witness in the manner
                                                                                   -
D laid down in Section 145 of the Evidence Act. Under no circumstances
  can such previous statements be treated as substantive evidence as has
  been treated by the High Court in the instant case. In view of these well
  settled principles of law, the High Court was first required to consider the
  statements made by the prosecution witnesses during trial and decide for
E itself whether those statements should be relied upon in view of their
  contradictions. (if any) with their earlier statements, provided those
  contradictions had been brought on record under Section 145 of the
  Evidence Act. The other patent infirmity in the impugned judgment is
  that the High Court discarded the evidence of the witnesses who gave
   ocular version of the incident with a sweeping observation that they were
F artificial and unnatural and that it was not possible to place any reliance
   upon thier testimonies, without referring, much less discussing the same.
                                                             I
         For the foregoing discussion we set aside the impugned judgment
  and remand the matter to the High Court for disposal of the appeal in
                                                                                    --
G accordance with law. Since the matter is long pending, the High Court is
  requested to dispose of the appeal as expeditiously as possible, preferably
  within a period of two months from the date of communication of this            .. --=
  order. The accused respondents, who are in bail, will continue to remain
  so till disposal of the appeal by the High Court.

H R.P.                                                    Appeal disposed of.