Vs. State of Maharashtra  INSC 203 (12 May 1999)
D.P. Mohapatra THOMAS,J.
appeals relate to a case of mercenary killing.
the principal target of the killers was one Ram Kishore Somani @ Ramu they
could kill only his younger brother Ashok Somani, who, per chance was with his
elder brother then, due to his jinxed destiny. Nevertheless they succeeded in
brutally mangling the targeted person inflicting a lot of injuries on him, some
of them near fatal. As he survived such injuries he appeared in the trial court
to tell the tale.
story is true, the intrigue was hatched, ironically, at the precincts of a
court of law and its finale was staged on a public road near the Employment
Exchange Office at Amravati (Maharashtra). Ten persons, in all, were charge-sheeted by the police in
connection with the said case, out of which one Anil Chaudhary (PW.2) was
granted pardon as he turned an approver. Four of the remaining alone were
convicted and all the rest were acquitted by the trial court. The State
appealed against the acquittal and the convicted accused appealed against their
conviction and sentence. During the pendency of the appeal A.2Ram Kishore Yadao
the kingpin - died and the appeal as against him got abated.
Division Bench of the High Court of Bombay (Nagpur Bench) confirmed the
acquittal of A.9-Rajendra and also the conviction and sentence passed on the
four accused. But the High Court reversed the acquittal of A.1-Gopal Maharaj
and A.4-Ram Prasad Yadao and they too were convicted under Section 302 IPC read
with Sections 109 and 150 IPC and also to a few other lesser offences. They
were sentenced to imprisonment for life on the main offence, and to lesser
terms of imprisonment for the lesser offences.
synopsis of the case is this: Ram Kishore Somani @ Ramu Somani(PW.1) and his
brother Ashok Somani (deceased) were doing cloth business at Amravati. A.1-Gopal Maharaj contested as a
candidate for the Municipal election in 1986 from the same Ward in which
PW.1-Ramu Somani also contested as a candidate. The contest burgeoned
ill-feeling which, by course of time, snowballed into deep-rooted rancour and
it escalated to its zenith when he decided to go forward for the liquidation of
his rival Ramu Somani. He sought the assistance of A.2- Ram Kishore Yadao who
was leader of a gangster-gang. As A.2-Ram Kishore Yadao was already in jail in
connection with a criminal case, A.1-Gopal Maharaj went to the court of the
Judicial Magistrate of First Class (Amravati) where A.2-Ram Kishore Yadao was expected to be produced from jail in
connection with that criminal case.
Maharaj impressed upon A.2-Ram Kishore Yadao that it was PW.1 who made all
efforts to see that A.2 was not enlarged on bail. He then requested A.2 to
liquidate PW.1-Ramu Somani.
he cautioned PW.1 that it was not easy to finish him off since he was always
guarded and was constantly moving around escorted by bodyguards. A.1-Gopal Maharaj
suggested to liquidate the bodyguards also so that there would be no
eye-witness to speak about the murder.
above talk was again repeated on 10.12.1987 at the same place. The only
addition then was the presence of A.4-Ram Prasad Yadao who is the brother of
A.2-Ram Kishore Yadao.
Prasad Yadao told his henchmen-gangsters to do the needful and offered himself
to be arrested in the meanwhile in connection with some petty case, so that no
penumbra of suspecian would fall on A.2 and A.4. It was thought that, as the
mercenaries are unacquainted to the targeted persons, the operation of killing
can be carried out without much risk.
and A.4 wanted their henchmen to liquidate Ramu Somani. On 12.12.1986, A.4-Ram
Prasad Yadao managed to get himself arrested on some petty case concocted at
A.4-Ram Prasad Yadao exhibited his anxiety as to why Ramu Somani was not killed
even after A.4 got himself behind the bar.
threatened his henchmen with another murder, should the assignment for Ramu Somanis
liquidation was not implemented without any further delay.
accused persons (A.5-Baba Swami @ Vinit, A.6Anil Motiram Dhote, A.7-Raju @ Mitun
Galhot and Pramod Ingale) along with Anil Chaudhary (PW.2) went on a prowl for
Ramu Somani was spotted by them around 3 P.M. on 15.12.1987 they could not reach him as he got perched in his house
in the meantime. But it was only a short-lived safety.
4 P.M. on 15.12.1987, Ramu Somani went out
of the house without having any foreboding of the slinking marauders, he was on
the pillion seat of a scooter ridden by his younger brother Ashok Somani. As
they reached near the office of Employment Exchange, all the assailants waylaid
them and a massive onslaught was launched on them with deadly weapons. When the
gangsters saw that their victim was very grievously mauled they fled from the
the injured were removed to the hospital as both sustained many serious
injuries. Dying Declarations of both were recorded by a Judicial Magistrate
(PW.16). On the same night Ashok Somani succumbed to the injuries, but Ramu Somani
registered progress in the healing process and eventually he was discharged
from the hospital.
the accused were arrested, different accused on different dates, and some
weapons were recovered from a well situated near the house of PW.2- Anil Chaudhary.
He was arrayed as accused No.8. He gave a confessional statement to the Chief
Judicial Magistrate and on 11.3.1988 pardon was tendered to him and he was made
roles ascribed to A.5-Baba Swami, A.6-Anil Dhote, A.7-Raju Galhot and
A.10-Pramod Ingale besides PW.2-Anil Chaudhary as assailants in the occurrence,
were spoken to by PW.1-Ramu Somani and PW.2-Anil Chaudhary in full measure. The
trial court and the Division Bench of the High Court have chosen to act on
their evidence and found them guilty of the offences.
is no dispute now that PW.1-Ramu Somani and deceased Ashok Somani sustained
very serious injuries at the place and at the time mentioned by the
prosecution. The only point of dispute, on that aspect, was regarding the
identity of the assailants. PW.2-Anil Chaudhary has narrated the story,
including the incident on 15.12.1986 with all vivid details.
Somani also narrated the incident with full particulars, though he could
identify only A.5, A.6, A.7, and PW.2 among the assailants. It is no matter
that PW.1 could not identify A.10 as his participation in the occurrence was
effectively vouchsafed by the evidence of PW.5-Avinash.
of PW.4-Balaji Bobde affords additional evidence regarding the participation of
A.5-Baba Swami and A.7-Raju Galhot.
52 is the Dying Declaration made by PW.1Ramu Somani, which was recorded by a
Judicial Magistrate (PW.16).
the trial court and the High Court counted Ext.52 as a piece of evidence. Shri
R.S. Lambat, learned counsel contended that both courts have gone wrong in
treating Ext.52 as evidence because the person who gave that statement is not
dead and hence it could not fall under Section 32 of the Evidence Act. Counsel
further contended that even otherwise Ext.52 could only have been used to
contradict PW.1 as provided in Section 162 of the Code of Criminal Procedure
(for short the Code) as it was a statement recorded during investigation.
in full agreement with the contention of the learned counsel that Ext.52 cannot
be used as evidence under Section 32 of the Evidence Act though it was recorded
as a dying declaration. At the time when PW.1 gave the statement he would have
been under expectation of death but that is not sufficient to wiggle it into the
cassette of Section 32. As long as the maker of the statement is alive it would
remain only in the realm of a statement recorded during investigation.
that as it may, the question is whether the court could treat it as an item of
evidence for any purpose. Section 157 of the Evidence Act permits proof of any
former statement made by a witness relating to the same fact before any
authority legally competent to investigate the fact but its use is limited to
corroboration of the testimony of such witness. Though a police officer is
legally competent to investigate, any statement made to him during such
investigation cannot be used to corroborate the testimony of a witness because
of the clear interdict contained in Section 162 of the Code. But a statement made
to a magistrate is not affected by the prohibition contained in the said
Section. A magistrate can record the statement of a person as provided in
Section 164 of the Code and such statement would either be elevated to the
status of Section 32 if the maker of the statement subsequently dies or it
would remain within the realm of what it was originally. A statement recorded
by a magistrate under Section 164 becomes usable to corroborate the witness as
provided in Section 157 of the Evidence Act or to contradict him as provided in
Section 155 thereof.
and ors. v. State of U.P. (AIR 1983 SC 126) a three-Judge
Bench of this Court has stated the legal position thus:
person who has made a statement, may be in expectation of death, is not dead,
it is not a dying declaration and is not admissible under Section 32 of
Evidence Act. In the instant case, the makers of the statements Exts.Ka-22 and
Ka-23, are not only alive but they deposed in the case. Their statements,
therefore, are not admissible under Section 157 of the Evidence Act as former
statements made by them in order to corroborate their testimony in Court.
repel the contention of the learned counsel that Ext. 52 cannot be used for
corroborating the testimony of PW.1.
could be shown to discredit his testimony. He, being the injured, seems to be
the most natural witness to speak to the occurrence. When PW.1 pointed out PW.2
as one of the assailants, we have no difficulty in believing that PW.2-Anil Chudhary
had witnessed everything which occurred when the victims were showered with
lethal blows, besides himself also participating along with other assailants.
therefore, find no reason to interfere with the concurrent finding that
A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10 Pramod Motiram
Ingale were active participants in the occurrence in which deceased and PW.1 Ramu
Somani were violently attacked.
dealing with the appeals concerning A.1Gopal Maharaj and A.4-Ram Prasad Yadao
we are to point out that their conviction depends entirely on the testimony
PW.2-Anil Chaudhary. The Division Bench of the High Court placed full reliance
on his evidence. Though there is no legal hurdle against acting on the
testimony of an accomplice it is well-nigh settled that it would be imprudent
to base a conviction on such testimony unless it is corroborated in material
particulars. Hence PW.2s evidence has to pass the test of reliability and must
secure adequate corroboration before the same can be acted upon, in so far as
A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are concerned.
Chaudhary said that on 4.12.1987 he too was present at the court premises when
A.1-Gopal Maharaj conversed with A.2-Ram Kishore Yadao regarding the necessity
to exterminate Ramu Somani. PW.2-Anil Chaudhary also said in his evidence that
on 10.12.1987, A.1-Gopal Maharaj repeated the same conversation to A.2-Ram Kishore
Yadao. To corroborate the aforesaid version prosecution examined PW.11Yusufkhan
and PW.17-Kishan Jamu Goyal.
former has stated that he was present at the court premises on 4.12.1987 and
saw A.1-Gopal Maharaj, A.2-Ram Kishore Yadao and others were talking with each
other. The other witness said that on 10.12.1987 he saw those persons
conversing together. But neither of them could hear what they were talking
liability can be fastened with A.1-Gopal Maharaj only if the words attributed
to him by PW.2 have assurance from other sources. The mere fact that A.1-Gopal Maharaj
was found talking with A.2 is hardly sufficient to elicit such an assurance.
V.B. Joshi, learned counsel for the State candidly admitted before us that
there is no other evidence or material to corroborate the testimony of PW.2
regarding the involvement of A.1-Gopal Maharaj in the crime. No other
circumstance has been brought to our notice. Nor is there any material to show
that A.1-Gopal Maharaj did anything for bailing out any of the assailants, nor
that he expended any money for the defence of the said persons at any stage.
we are unable to uphold the conviction of A.1-Gopal Maharaj as the testimony of
PW.2-Anil Chaudhary against him remained uncorroborated.
the position regarding A.4-Ram Pradad Yadao is different. The role attributed
to him by PW.2-Anil Chaudhary is that on 10.12.1987 A.4-Ram Prasad Yadao told
the assailants to go ahead with the operation for annihilation of Ramu Somani
and that himself would, in the meantime, go behind bars so that no suspicion
would arise against him also. PW.2-Anil Chaudhary said that it was A.4-Ram
Prasad Yadao who supplied all the weapons to the assailants for carrying out
the operation for annihilation of Ramu Somani. PW.2-Anil Chaudhary further said
that true to his statement A.4Ram Prasad Yadao got himself arrested on the
succeeding day and when the witness visited A.4 at the Executive Magistrate Court premises he was abused by A.4 for
the delay in carrying out the operation. According to PW.2-Anil Chaudhary he
complained to A.2Ram Kishore Yadao regarding the aforesaid conduct of A.4-Ram Prasad
Yadao and then A.2 warned him that A.4Ram Prasad might even go to the extent of
slaying the assailants after coming out of jail if they fail to carry out the
counsel for the appellant pointed out that PW.2 in cross-examination has said
that he did not disclose to any body earlier that A.4 supplied the weapons of
offence. So we are not inclined to accept that part of his testimony, whether
it is true or not. That apart, how far the said testimony of PW.2-Anil Chaudhary
regarding the other part of the involvement of A.4-Ram Prasad be acted on as
true? The confessional statement given by Pw.2 to the Magistrate before pardon
was tendered to him, is projected as a material for corroboration. Though
legally it can be used as a corroborative material we are not disposed to
attach great weight to it since it is only the former statement of an
counsel for A.4 Ram Prasad pointed out that PW.2 himself admitted that when he
was questioned by the police he did not speak anything about A.4. But that is
not of much use now because PW.2 was questioned by the police as an accused,
and then he would not have divulged the truth. It was later that he changed his
mind and offered to confess the entire truth. In the confession he implicated
himself and others. So the fact that he did not divulge the whole truth at the
outset when he was questioned by the police is not of much consequence. That
aspect only goes along with the inherent weakness of the testimony of any
Jamu Goyal was a detenue during December 1987. He said in his evidence that he
was on the court verandah on 10-12-1987
along with A.2-Ram Kishore Yadao and then he saw A.2 talking with the
assailants. As we have pointed out, while dealing with the case of A.1-Gopal Maharaj,
corroboration provided by the evidence PW.17-Kishan Jamu Goyal is not
sufficient to ensure confidence in judicial mind about the truth of PW.2s
testimony. It may be one circumstance, but we require more circumstances to
assure that PW.2 spoke the truth in the court.
is one circumstance which is reasonably sturdy to corroborate the evidence of
PW.2-Anil Chaudhary regarding his accusation against A.4-Ram Prasad Yadao.
Ext.170 is a police report showing that a petty case was registered by the
police against A.4Ram Prasad Yadao and he was taken into custody by the police
on 12.12.1987. PW.29 Head Constable testified that a person by name Vilas Mulatkar
went to the police station with a complaint that A.4-Ram Prasad Yadao created
unruly scene under the influence of alcohol in a public place, and that a case
was registered against him under Section 151 of the Code and he was interned in
the lock-up on 12.12.1987.
fact that A.4 was so arrested on 12.12.1987 is not disputed. The contention is
that A.4 was released on bail even prior to the incident in the case and hence
his arrest is of no use in this case. That might be so, and we are not at the
question whether he should have continued in jail till the occurrence was over.
We are scrutinizing the evidence of PW.2, and ascertain the extent it has been
corroborated by other evidence. In that scrutiny we notice that the arrest of
A.4 on 12.12.1987 is a circumstance which corroborates the testimony of PW.2.
item of evidence noticed as of corroborative value is the testimony of PW.3. He
was a boy aged 17, who was then a student. He deposed that he too had
connections with A.2-Ram Kishore Yadao. On 15.12.1987, at about 1.30 P.M. while he was standing at Duffarin bus stop along
with A.5 and A.10, some others including A.4 and A.6 and then A.7 joined them
and PW.2 also came later. A.4 was heard saying to them you carry out the work
assigned and do not bother about consequences, and A.4 assured them that he
would bear all the expenses. Next day of the occurrence, A.6-Anil Dhote sent
PW.3-Sudir Pohokar to the house of A.4-Ram Prasad Yadao to collect some money.
PW.3 went to A.4 and collected some money from him and then A.4 told him that
the police was suspecting him and hence he would be able to supply further fund
only later. This is the substance of what PW.3 said regarding the role of
aforesaid evidence of PW.3 is a further item to lend assurance regarding the
involvement of A.4-Ram Prasad in the murder case. Of course, this was not
counted by the High Court but that does not matter much. We are now at the
question as to what extent the evidence of PW.2-Anil Chaudhary can be acted on.
feel assured from the circumstances enumerated above that the evidence of PW.2
in so far as he implicated A.4-Ram Prasad with this murder can be accepted as