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Judgment
P. Devadass, J.—Petitioner, who is A1 in Sessions case in SC. No. 194/2012, on the file of II Additional Sessions Judge, Tiruvallur @
Poonamallee, now, a lifer, for an offence u/s. 302 IPC, seeks suspension of his sentence. Mr. S. Ananthanarayanan, learned counsel for the
petitioner would contend that the evidence of P.W. 8-VAO, to whom A1 is stated to have given extra-judicial confession is a total stranger to him
and the Trial Court has also relied on inadmissible evidence to convict the petitioner.
On the other hand, Mr. M. Maharaja, learned Additional Public Prosecutor would submit that there are very many clinching circumstances
backed by evidence, which unerringly proceed to the only conclusion that the petitioner is also the author of the crime committed, viz., killing of the
deceased Madan.
We have anxiously considered the rival submissions. We have perused the portion of the evidence pointed out by either side and also the
impugned judgment.
On 10.10.2009, at about 11.30 p.m., P.W. 1''s husband, Madan was murdered. The case of the prosecution rest upon the evidence of
eyewitness P.W. 2 and circumstantial evidence consisting of the evidence of P.W. 3, the mother of the deceased that prior to the occurrence, her
son was threatened by the accused, extra-judicial confession of A1 to P.W. 8-VAO, corroborating evidence of P.Ws. 4 and 5 to the evidence of
P.W. 2.
It has been pointed out by the learned counsel for the petitioner that the occurrence itself was on 10.10.2009. However, after four days,
petitioner/A1 is stated to have revealed his commission of the offence to P.W. 8-VAO, who is a total stranger to him. There was no explanation as
to why A1 has chosen P.W. 8 to make the confession.
P.W. 2, who has been examined as an eyewitness to the occurrence and P.Ws. 4 and 5 who have been examined to substantiate him, during
trial, have turned hostile. However, the Trial Court relied on their statement recorded by P.W. 12, the learned Judicial Magistrate u/s. 164 Cr.P.C.
A statement recorded u/s. 164 Cr.P.C. from a witness is like a statement recorded u/s. 161 Cr.P.C. It is recorded during the investigation
behind the back of the accused. It is not subjected to cross-examination of the accused. It is not ''substantive evidence'' recorded before the Court
during trial. It is having the status of a ''previous statement''. Such a statement can be used for the benefit of the accused and it cannot be used as
against the accused and it can be used only for impeaching the credibility of the prosecution witnesses or for their contradiction. It cannot be used
for corroborating the evidence of a prosecution witness. It can be used by the defence and not by the prosecution.
Considering the above aspects, we see many eminently arguable points. In the circumstances, we are of the view that there is a strong prima
facie case in favour of the petitioner. It is also a fact that it will take some time for this appeal to reach the final hearing. In the circumstances, we
are inclined to grant him appeal bail. In fine,
[1] Petition allowed.
[2] Appeal Bail granted.
[3] The sentence of imprisonment alone is suspended.
[4] There shall be two sureties, they and the petitioner shall execute a bond for Rs. 10,000/- [Rupees ten thousand only] each to the satisfaction of
learned Judicial Magistrate No. II, Poonamallee.
[5] The petitioner shall appear before the said Court on the first working day of every English Calendar month at 10.30 a.m. until further orders.