& Om Prakash Vs. State of Rajasthan
 INSC 3 (12
G.L. (J) Oza, G.L. (J) Sharma, L.M. (J)
1988 AIR 599 1988 SCR (2) 599 1988 SCC (1) 696 JT 1988 (1) 141 1988 SCALE (1)29
Evidence Act, 1872: Ss. 114(6) and 133-Evidence of accomplice-Corroboration by
independent evidence- Necessity for.
persons were tried for the murder of a widow, out of which one turned approver.
There was no direct evidence in the case. The only evidence was the evidence of
the approver and the other evidence regarding recovery of articles by three
trial court discarded the testimony of two witnesses who had identified some
articles. The third witness, the son of the deceased and who had identified the
articles was not examined at the trial. The court, however, convicted all the
accused persons under s. 302 read with s. 34 lPC.
High Court maintained the conviction of three persons on the finding that the
evidence of identification was sufficient to corroborate the testimony of the
appeals by special leave by two of the accused, it was contended for the State
that although the son of the deceased had not been examined at the trial, he
had identified articles at the test identification and, therefore, that
evidence was sufficient to corroborate the testimony of the accomplice.
the appeals, ^
It is established as a rule of prudence that the testimony of an accomplice if
it is thought reliable as a whole conviction could only be based if it is
corroborated by independent evidence either direct or circumstantial connecting
the accused with the crime. [603A-B] Haroon Haji Abdulla v. State of Maharashtra,  2 SCR 641 and Ravinder
Singh v. State of Haryana,  3 SCR 453. referred to.
instant case, the evidence of the son of the deceased could 600 not be looked
into because (i) what he identified and stated to the Magistrate, who conducted
the identification parade, was only a hearsay evidence and that evidence could
only be used to corroborate his testimony if he was examined at the trial, and
(ii) what he stated to the Magistrate was not subjected to cross-examination
and was at the back of the accused. Further, there is nothing about
identification or anything to connect the articles with the crime and in such a
situation the evidence of recovery is not at all relevant as it is not
connected with the crime. It could not, therefore, be used as evidence against
the accused. [604C-D] The only evidence against the accused was that of the
approver. He has claimed to be a spectator at every moment but has not
participated at any stage. Apart from it, the initial story appears also to be
absolutely unnatural, as according to him he did not know anyone of the accused
persons but a month before the incident they took him into confidence and told
him to join them. The evidence of the witnesses as a whole does not appear to
be natural version and is not such which inspires confidence. Moreover, there
was no corroboration at all from another independent circumstance or source of
evidence. The conviction of the appellant, therefore, could not be maintained.
APPELLATE JURISDICTION: Criminal Appeal Nos. 106- 107 of 1986.
Appeal Nos. 166-67/1986).
the Judgment and order dated 5.9.1985 of the High Court of Rajasthan in D.B.
Appeal No. 126/77 and Criminal Appeal Nos. 98 and 99 of 1977.
Uma Dutt and R.C. Kohli for the Appellant.
Sharma and M.I. Khan Additional Advocate General for the Respondent.
Judgment of the Court was delivered by OZA, J. These two appeals arise out of
the conviction of these two appellants alongwith one another under Section 302
read with Section 34 and sentenced to imprisonment for life and fine of Rs. 100
each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhunu dated 601 29th
January 1977. Alongwith these two appellants Chandan and Om Prakash one Babulal
son of Onkar Mal was also convicted but we have no appeal before us on behalf
prosecution case was that Smt. Dhaka widow of Shri Hanuman Prasad and mother of
Shri Gyarsi Lal was living all alone in her house (Haveli) at Ward No. 1, Khetadi.
In the morning of 23rd August, 1975 a person engaged for grazing the goats in
jungle went to Smt. Dhaka's house for taking her goats for grazing and called Smt.
Dhaka but he did not get any response. P.W. 2 Smt. Banarsi who was living in
the vicinity came on the spot and alongwith the Goatmen went inside the Haveli.
They found goods scattered here and there and even when they loudly called Smt.
Dhaka they did not hear any reply. P.W. 1 Matadeen who was feeding pigeons
nearby was informed by Smt. Banarsi that Smt. Dhaka normally used to get up
early but it appears that she had not woken up by that time and therefore
expressed surprise. On this Matadeen went inside the house, reached the upper
floor and found all the rooms opened and plenty of goods of Smt. Dhaka lying
scattered. There he saw Smt. Dhaka Iying on a cot and found that she was wounded
and bleeding at number of places.
then went to the Police Station, Khetadi and submitted his report Ex. P. 1. The
Station House officer Surindra Singh reached the spot, prepared a memo and
carried out the investigation. On 3rd September, 1975 one Mam Chand was arrested as an accused. Another accused Babulal
was arrested on 5th September and the acquitted accused Laxmikant was arrested
on 7th September and the two appellants in this appeal Om Prakash and Chandan
were arrested on 11th September,
1975. Mam Chand later
was granted pardon and has been examined as an approver in this case. On trial
the learned Sessions Judge convicted all the accused persons and on appeal the
High Court acquitted the accused Laxmikant but maintained the conviction
against the three and aggrieved by the judgment of the High Court the present
appeal on special leave has been filed before us by the two appellants
not in dispute that there is no direct evidence in this case. The only evidence
is the evidence of the approver Mam Chand and other evidence regarding recovery
of articles. Learned counsel for the appellant contended that certain articles
were recovered at the instance of Om Prakash and were put up for test
identification and according to the evidence of the test identification these
articles that were put up for identification, four witnesses were supposed to
identify. Four witnesses appeared at test identification but three appeared in
the 602 Court at trial. Out of these four witnesses, the first witness did not
identify any article. The two witnesses Rameshwar and Phool Chand, P.Ws 13 and
14 did identify some articles. Their evidence after consideration has been
rejected by the trial court and the other witness who identified the articles
was Gyarsi Lal who happens to be the son of deceased, for the reasons best
known, has not been examined at the trial at all and it was therefore contended
by the learned counsel that so far as the recovery and identification of
articles are concerned no article recovered has been identified to be that of
the deceased and therefore this evidence of recovery in absence of
identification is not at all relevant for the prosecution.
therefore contended that as it is settled law that accomplice's evidence if it
inspires confidence could be used to convict the accused person only if there
is independent corroboration which could connect the accused with the crime and
it was contended that this evidence of recovery and identification was supposed
to be the evidence connecting the accused with the crime and corroborating the
testimony of the approver but the learned Judges of the High Court did not
consider this aspect of the matter that the two witnesses who had identified
some articles their testimony has been discarded by the trial court and the
High Court has not come to the conclusion that the trial court was not right in
rejecting their testimony but superficially held that the evidence of
identification is sufficient to corroborate the testimony of the approver. It
was also contended that even the reading of the testimony of the approver shows
that he has tried to keep himself away and the manner in which he has described
the whole incident and the way in which he was taken into confidence by the other
accused persons make his testimony unnatural and therefore could not be
accepted. Learned counsel also placed reliance on certain decisions of this
Court where the rule of prudence about the testimony of the accomplice has been
counsel appearing for the State of Rajasthan admitted that so far as the
identification evidence is concerned, the most important witness Gyarsi Lal has
not been examined at the trial and the other two who were examined, their
testimony has been rejected but he attempted to contend that although Gyarsi Lal
has not been examined in evidence at the trial but in test identification he
had identified articles and therefore that evidence is sufficient to
corroborate the testimony of the accomplice.
however did not challenge the proposition that the conviction could not be
maintained on the sole testimony of the accomplice unless it is corroborated by
some independent evidence connecting the accused with the crime.
far as the question about the conviction based on the testimony of the
accomplice is concerned the law is settled and it is established as a rule of
prudence that the testimony of accomplice if it is thought reliable as a whole
conviction could only be based if it is corroborated by independent evidence
either direct or circumstantial connecting the accused with the crime. In Haroon
Haji Abdulla v. State of Maharashtra, [ 1968] 2 SCR 641 it was observed
accomplice is a competent witness and his evidence could be accepted and a
conviction based on it if there is nothing significant to reject it as false.
But the rule of prudence, ingrained in the consideration of accomplice
evidence, requires independent corroborative evidence first of the offence and
next connecting the accused against whom the accomplice evidence is used, with
in Ravinder Singh v. State of Haryana, [
1975] 3 SCR 453 it was observed as under:
approver is a most unworthy friend, if at all, and he. having bargained for his
immunity, must prove his worthiness for credibility in court.
test is fulfilled, firstly if the story he relates involves him in the crime
and appears intrinsically to be a natural and probable catalogue of events that
had taken place. The story if given of minute details according with reality is
likely to save it from being rejected brevi manu. Secondly, once that hurdle is
crossed, the story given by an approver so far as the accused on trial is
concerned, must implicate him in such a manner as to give rise to a conclusion
of guilt beyond reasonable doubt. In a rare case taking into consideration all
the factors circumstances and situations governing a particular case,
conviction based on the uncorroborated evidence of an approver confidently held
to be true and reliable by the court may be permissible. Ordinarily, however,
an approver's statement has to be corroborated in material particulars bridging
closely the distance between the crime and the criminal. Certain clinching
features of involvement disclosed by an approver appertaining directly to an
accused, if reliable, by the touchstone of other independent credible evidence,
would give the needed assurance for acceptance of his testimony on which a
conviction may be based. " 604 In this decision the first test indicated
is that if the story given out by the accomplice appears intrinsically to be
natural and probable, then alone that evidence could be of some value and then
it is further observed that ordinarily an approver's statement has to be
this view of the settled legal position which was not disputed before us, it
was contended that the evidence about recovery is of no consequence as there is
no evidence of identification but as it was contended by the learned counsel
for the respondent State that Gyarsi Lal who is the son of the deceased is not
examined at the trial but he had identified articles at the identification
parade and the learned counsel attempted to contend that this evidence could be
used as a piece of corroboration. Unfortunately this evidence could not be
looked into because: i) what he identified and stated to the Magistrate who
conducted the identification parade is only a hearsay evidence as that evidence
could only be used to corroborate his testimony if he was examined at the
trial; and ii) what he stated to the Magistrate at the time of the test
identification parade is not subjected to cross examination and was at the back
of the accused could not be used as evidence against the accused. These are
matters so settled and therefore it is sufficient to say that this contention
is without any substance. Except this even the learned counsel for the State of
Rajasthan had to concede that there is
nothing about identification or anything to connect these articles with the crime
and in such a situation the evidence of recovery is not at all relevant as it
is not connected with the crime.
not disputed that except this we are left with the only evidence of the
approver Mam Chand. His evidence has been read by the counsel for the parties
before us and his evidence clearly indicates that he has attempted to suggest
that he did nothing. Neither he stated that he participated in looting nor in
injuring or attacking the deceased. Reading through his evidence clearly indicates that he has claimed to be a
spectator at every moment but has not participated at any stage. Apart from it
the initial story appears also to be absolutely unnatural as according to him,
he did not know anyone of these accused persons but a month before the incident
they took him into confidence and told him to join them. After reading the
evidence of the witnesses as a whole apparently the impression created is that
the version does not appear to be natural version. In this view of the matter,
in our opinion, the testimony is not such which inspires confidence. Apart from
it as there is no corroboration at all from any other independent circumstance
or source of evidence therefore the conviction of the appellants could not be
maintained. It is rather unfortunate that the appeal has come up for hearing
after a long time and ultimately it is found that 605 there is no evidence to
sustain the conviction. The appeals are there- A fore allowed. The sentence and
conviction passed against both the accused are set aside. The appellants shall
be set at liberty forthwith. P.S.S.