Sao @ Mungeri Vs. State of Jharkhand  Insc 1133 (12 November 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 1528 OF 2007 (Arising out of SLP (Crl.) No. 4942 of 2005) (With Crl.
Appeal No. 1531 of 2007 (Arising out of SLP (Crl.) No.6265 of 2005) Dr. ARIJIT
Challenge in these appeals is to the judgment of a Division Bench of the Jharkhand
High Court dismissing the appeals filed by the appellants and upholding the
conviction for offences punishable under Sections 364 and 396 read with Section
120B of the Indian Penal Code, 1860 (in short the 'IPC').
fact, the High Court disposed of two appeals both directed against the judgment
of conviction dated 16th
July, 2002 and 23rd July, 2002 passed in Sessions Trial
No.156/1997. As noted above, the trial Court found both the accused appellants
guilty and awarded the sentence of imprisonment for life for the offences
punishable under Sections 364 and 396 IPC. However, no separate sentence under section
120B was awarded, while the co-accused Laxmi Prasad was further sentenced to
the period already undergone for offence punishable under Section 412 IPC.
High Court did not find any substance in the appeals and dismissed the same as
Background facts in a nutshell are as follows:
8.1.1992, Gayatri Devi, wife of the informant, had gone to Pandra Agricultural
Market by her Ambassador car bearing registration No. AAY 7375 and from there
she left for her residence at about 8 PM
after collecting the sale proceeds of the day of shop Nos.244 to 251. The
driver of the car, Laxmi Paswan, who was one of the accused, was driving the
car. Gayatri Devi after collecting a sum of Rs.1,84,405/- did not return to her
house, the informant informed Sukhdeo Nagar P.S. regarding the missing of his
wife and the driver of the car, Laxmi Paswan. Laxmi Paswan was employed by the
informant as the driver of his car on the recommendation of the previous
driver, namely, Rajendra Choudhary. When the wife of the informant as well as
the driver did not return till night, the informant, on the next morning i.e.
on 9.1.1992, submitted a written report alleging therein that Laxmi Paswan,
driver of the car, in collusion with anti-social elements, abducted his wife
and car in order to kill her and snatch the money. It was alleged that
informant came to know from reliable sources that his car was seen in the night
on Ranch Ramgarh road.
basis of the aforesaid information, Sukhdeo Nagar P.S. registered a case under
Section 364 IPC against Laxmi Paswan only and in course of investigation the
dead body of the wife of the informant, namely, Gayatri Devi, was found on Giddi
National road under Ramgarh P.S. After preparing the inquest report, in the
presence of the witnesses, the I.0. of the case sent the dead body to RMCH for
post- mortem. Subsequently, the car of the informant bearing registration No.
AAY 7375 was found lying abandoned near Kujju town outpost. Subsequently the
officer incharge of Sukhdeo Nagar P.S. took the said car from the Kujju TOP in
his possession and a search was made in the presence of the witnesses and in
the course of search, certain articles were seized. The seizure list was
prepared and in the course of investigation, accused Laxmi Paswan was arrested
on 14.1.1992 from his village Mungrahi within the district of Aurangabad and a
part of the money stolen from Gayatri Devi amounting to Rs.30,695/- was also
recovered from his house on the basis of his confessional statement. Laxmi Paswan
disclosed the name of his associates to the police and subsequently, the other
accused persons were also arrested.
course of investigation, on the basis of confessional statement, a sum of Rs.27,220/-
was also recovered from the house of Girja Singh. Later, one of the accused,
namely, Lalit Sanga was also arrested, who confessed his guilt before the
police and expressed his desire to give statement with regard to the
occurrence. His statement was recorded by Chief Judicial Magistrate under
Section 306 of the Code of Criminal Procedure, 1973 (in short 'Cr. P.C.') and
was granted pardon.
case was committed to the Court of Sessions, which was registered as ST
No.319/92 and thereafter the accused persons faced trial in the court of
learned VIth Additional Judicial Commissioner, Ranchi and the learned
Additional Judicial Commissioner, on consideration of evidence on record, found
them guilty; but acquitted two accused persons, namely, Girja Singh and Dinesh
Kumar Singh by his judgment dated 1.10.1992. One of the accused, namely, Laxmi Paswan
was sentenced to death, while other accused persons were sentenced to undergo
RI for life. Thereafter, both the State and the accused persons preferred
appeal against the impugned judgment and the High Court, by its judgment dated
28th July, 1993, set aside the judgment of conviction passed by the VIth
Additional Judicial Commissioner, Ranchi and the case was remanded to the Court
of Learned Chief Judicial Magistrate, Ranchi for fresh commitment proceeding
and learned C.J.M. was directed to examine Lalit Sanga, the approver, (PW6), as
prosecution witness in accordance with law and procedure. After remand of the
case, the learned C.J.M. examined approver Lalit Sanga under Section 306 Cr.P.C.
and thereafter committed the case to the Court of Sessions by order dated
19.2.1997 and after remand of the case, the case was registered as Sessions
Learned Judicial Commissioner, Ranchi
transferred the case to another Court for holding the trial of the accused
persons. On receipt of the record, charges were framed against the accused
persons for offences punishable under Sections 396, 412 and 120 (B) IPC.
Trial proceeded and in the course of trial the trial court recorded evidence of
twenty-three witnesses, besides documentary evidence and material exhibits and
ultimately came to a finding that the appellants are guilty and accordingly
convicted them. After recording of the statement, accused Girja Singh fled away
and, therefore, his trial was separated from the trial of other accused.
trial court recorded evidence of 23 witnesses and scrutinized their evidence
and found the accused-appellants guilty. In this case, all necessary witnesses
such as I.0., doctor and informant were examined. In appeal the High Court held
that the prosecution has not left any latches on its part in examining the
witnesses connected with this case.
basic contention of the appellants, as contended before the High Court, was
that there was no eye witness in the occurrence and simply on the basis of
evidence of Lalit Sanga, the approver, the accused persons have been found to
be guilty. It is submitted that the manner in which Lalit Sanga was granted
pardon is illegal. Reference was made to the judgment passed by the High Court
in Criminal Appeal No.202/1992. It is pointed out that the evidence recorded in
the first sessions case where Sessions trial No.319/1992 was set aside and when
the judgment in question was set aside, the procedure should have been started
afresh. By the judgment, the case was remanded to the Court of C.J.M. who was
directed to examine Lalit Sanga as a witness. It is the grievance of the
accused appellants that the procedure laid down under Section 306 Cr.P.C. was
not followed after the direction of the High Court in the first judgment. Lalit
Sanga was examined in the presence of the accused persons and he was
cross-examined and thereafter case was committed to the Court of Sessions but Lalit
Sanga was not granted pardon and he was examined again by the order of the High
it is submitted that there was non-compliance of the requirements of Section
306 Cr.P.C. It was submitted that he should have been granted pardon and
thereafter as per the provisions of Section 306 Cr.P.C. he should have been
examined as a witness in the presence of accused and he should have been cross
examined. But only one part has been complied with and thereafter case was
committed to the Court of Sessions but the first part that he was to be granted
pardon has not been complied with. It is also submitted that the alleged
confession of this witness does not satisfy the requirements of Section 133 of
the Indian Evidence Act, 1872 (in short the 'Evidence Act'). Accused Lalit Sanga
had not confessed to his active participation in the occurrence. His evidence
is also not fully truthful.
Learned counsel for the State on the other hand supported the impugned
High Court noted that the order of CJM was not set aside. What was set aside
partly was that Lalit Sanga was examined but not cross examined and his
statement was not recorded in the presence of the accused. That part of the
order has been complied with and Lalit Sanga was examined in the presence of
the accused and he was also cross examined and thereafter case was committed to
the Court of Sessions.
shall deal with this part of the appeal later. It is to be noted that learned
counsel for the respondent-State submitted that the procedure mandated under
Section 306 Cr.P.C. has been fully complied with.
Learned counsel for the State has submitted that not only has there been
compliance with the requirements of Section 306 Cr.P.C. but also Section 133
read with Section 114 (b) of the Evidence Act.
Sections 133 and 114 (b) of the Evidence Act read as follows:
Accomplice- An accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.
The Court may presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars.
Section 133 of the Evidence Act is of significance. It relates to the evidence
of an accomplice. In positive terms it provides that the conviction based on
the evidence of an accomplice is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice, because the accomplice is a
Bhubon Sahu v. The King (AIR 1949 PC 257), it was observed that the rule
requiring corroboration for acting upon the evidence of an accomplice is a rule
of prudence. But the rule of prudence assumes great significance when its
reliability on the touchstone of credibility is examined. If it is found
credible and cogent, the Court can record a conviction even on the
uncorroborated testimony of an accomplice. On the subject of the credibility of
the testimony of an accomplice, the proposition that an accomplice must be
corroborated does not mean that there must be cumulative or independent testimony
to the same facts to which he has testified. At the same time, the presumption
available under Section 114 of the Evidence Act is of significance. It says
that the Court may presume that an accomplice is unworthy of credit unless he
is corroborated in "material particulars".
Section 133 of the Evidence Act expressly provides that an accomplice is a
competent witness and the conviction is not illegal merely because it proceeds
on an uncorroborated testimony of an accomplice. In other words, this section
renders admissible such uncorroborated testimony. But this Section has to be
read along with Section 114, illustration (b).
latter section empowers the Court to presume the existence of certain facts and
the illustration elucidates what the Court may presume and make clear by means
of examples as to what facts the Court shall have regard in considering whether
or not maxims illustrated apply to a given case. Illustration (b) in express
terms says that accomplice is unworthy of credit unless he is corroborated in
material particulars. The Statute permits the conviction of an accused on the
basis of uncorroborated testimony of an accomplice but the rule of prudence
embodied in illustration (b) to Section 114 of the Evidence Act strikes a note of
warning cautioning the Court that an accomplice does not generally deserve to
be believed unless corroborated in material particulars. In other words, the
rule is that the necessity of corroboration is a matter of prudence except when
it is safe to dispense with such corroboration must be clearly present in the
mind of the Judge. [See Suresh Chandra Bahri v. State of Bihar (AIR 1994 SC 2420)].
Although Section 114 illustration (b) provides that the Court may presume that
the evidence of an accomplice is unworthy of credit unless corroborated, "may"
is not must and no decision of Court can make it must. The Court is not obliged
to hold that he is unworthy of credit. It ultimately depends upon the Court's
view as to the credibility of evidence tendered by an accomplice.
Rex v. Baskerville (1916 (2) KB 658), it was observed that the corroboration
need not be direct evidence that the accused committed the crime; it is
sufficient if there is merely a circumstantial evidence of his connection with
G.S. Bakshi v. State (Delhi Administration) (AIR 1979 SC 569) was dealing with
a converse case that if the evidence of an accomplice is inherently improbable
then it cannot get strength from corroboration.
19. Taylor, in his treatise has observed that
"accomplice who are usually interested and always infamous witnesses, and
whose testimony is admitted from necessity, it being often impossible, without
having recourse to such evidence, to bring the principal offenders to
justice". (Taylor in "A Treatise on the Law of Evidence" (1931)
Vol. 1 para 967).
The evidence of the approver must, however, be shown to be of a reliable
Jnanendra Nath Ghose v. State of West Bengal [(1960) 1 SCR 126] this Court observed that there should be
corroboration in material particulars of the approver's statement, as he is
considered as a self-confessed traitor. This Court in Bhiva Doulu Patil v.
State of Maharashtra, [AIR 1963 SC 599] held that the combined effect of
Sections 133 and 114 illustration (b) of the Evidence Act was that an
accomplice is competent to give evidence but it would be unsafe to convict the
accused upon his testimony alone. Though the conviction of an accused on the
testimony of an accomplice cannot be said to be illegal, yet the Courts will,
as a matter of practice, not accept the evidence of such a witness without
corroboration in material particulars. In this regard the Court in Bhiva Doulu Patil's
case observed as under:
coming to the above conclusion we have not been unmindful of the provisions of
S. 133 of the Evidence Act which reads:
"An accomplice shall be a competent witness against an accused person; and
a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice."
cannot be doubted that under that section a conviction based merely on the
uncorroborated testimony of an accomplice may not be illegal, the Courts
nevertheless cannot lose sight of the rule of prudence and practice which in
the words of Martin B. in R. v. Boyes, (1861) 9 Cox CC 32 "has become so
hallowed as to be deserving of respect and the words of Lord Abinger "It
deserves to have all the reverence of the law:." This rule of guidance is
to be found in illustration (b) to S. 114 of the Evidence Act which is as
Court may presume that an accomplice is unworthy of credit unless he is
corroborated in material particulars."
The word 'corroboration' means not mere evidence tending to confirm other
evidence. In DPP v. Hester( 1972) 3 All ER 1056, Lord Morris said :
purpose of corroboration is not to give validity or credence to evidence which
is deficient or suspect or incredible but only to confirm and support that
which as evidence is sufficient and satisfactory and credible; and
corroborative evidence will only fill its role if it itself is completely
D.P.P. v. Kilbourne (1973) 1 All ER 440, it was observed thus:
is nothing technical in the idea of corroboration. When in the ordinary affairs
of life one is doubtful whether or not to believe a particular statement one
naturally looks to see whether it fits in with other statements or
circumstances relating to the particular matter; the better it fits in the more
one is inclined to believe it. The doubted statement is corroborated to a
greater or lesser extent by the other statements or circumstances with which it
R. V. Baskerville( supra), which is a leading case on this aspect, Lord Reading
is no doubt that the uncorroborated evidence of an accomplice is admissible in
law ..... But it has long been a rule of practice at common law for the judge
to warn the jury of the danger of convicting a prisoner on the uncorroborated
testimony of an accomplice or accomplices, and, in the discretion of the judge,
to advise them not to convict upon such evidence; but the judge should point
out to the jury that it is within their legal province to convict upon such
unconfirmed evidence ...... This rule of practice has become virtually
equivalent to a rule of law, and since the Court of Criminal Appeal Act, 1907,
came into operation this Court has held that, in the absence of such a warning
by the judge, the conviction must be quashed ...... If after the proper caution
by the judge the jury nevertheless convicts the prisoner, this Court will not
quash the conviction merely upon the ground that the testimony of the
accomplice was uncorroborated."
Rameshwar v. State of Rajasthan (AIR 1952 SC 54), Bose, J., after referring to the
rule laid down in Baskerville case with regard to the admissibility of the
uncorroborated testimony of an accomplice, held thus:
in my opinion, is exactly the law in India so far as accomplices are concerned
and it is certainly not any higher in the case of sexual offences. The only
clarification necessary for purposes of this country is where this class of
offence is sometimes tried by a judge without the aid of a jury. In these cases
it is necessary that the judge should give some indication in his judgment that
he has had this rule of caution in mind and should proceed to give reasons for
considering it unnecessary to require corroboration on the facts of the
particular case before him and show why he considers it safe to convict without
corroboration in that particular case."
Bose in the same judgment further observed thus :
turn next to the nature and extent of the corroboration required when it is not
considered safe to dispense with it. Here, again, the rules are lucidly expounded
by Lord Reading in Baskerville case at pages 664 to 669. It would be
impossible, indeed it would be dangerous, to formulate the kind of evidence
which should, or would, be regarded as corroboration. Its nature and extent
must necessarily vary with circumstances of each case and also according to the
particular the offence charged. But to this extent the rules are clear.
First, it is not necessary that there should be independent confirmation of
every material circumstance in the sense that the independent evidence in the
case, apart from the testimony of the complainant or the accomplice, should in
itself be sufficient to sustain conviction. As Lord Readings says - 'Indeed, if
it were required that the accomplice should be confirmed in every detail of the
crime, his evidence would not be essential to the case, it would be merely
confirmatory of other and independent testimony.'
All that is required is that there must be some additional evidence rendering
it probable that the story of the accomplice (or complainant) is true and that
it is reasonably safe to act upon it.
Secondly, the independent evidence must not only make it safe to believe that
the crime was committed but must in some way reasonably connect or tend to
connect the accused with it by confirming in some material particular the
testimony of the accomplice or complainant that the accused committed the
crime. This does not mean that the corroboration as to identify must extend to
all the circumstances necessary to identify the accused with the offence.
Again, all that is necessary is that there would be independent evidence which
will make it reasonably safe to believe the witness's story that the accused
was the one, or among those, who committed the offence. The reason for this part
of the rule is that - "a man who has been guilty of a crime himself will
always be able to relate the facts of the case, and if the confirmation be only
on the truth of that history, without identifying the persons, that is really
no corroboration at all ...... It would not at all tend to show that the party
accused participated in it."
Thirdly, the corroboration must come from independent sources and thus
ordinarily the testimony of one accomplice would not be sufficient to
corroborate that of another. But of course the circumstances may be such as to
make it safe to dispense with the necessity of corroboration and in those
special circumstances a conviction so based would not be illegal. I say this
because it was contended that the mother in this case was not an independent
Fourthly, the corroboration need not be direct evidence that the accused
committed the crime. It is sufficient if it is merely circumstantial evidence
of his connection with the crime. Were it otherwise, "many crimes which
are usually committed between accomplices in secret, such as incest, offences
with females' (or unnatural offences) 'could never be brought to justice".
[See: M.O. Shamsudhin v. State of Kerala (1995 (3) SCC 351)]
The above position was highlighted in K. Hashim v. State of Tamil Nadu [2005(1)
Accused Lalit Sanga in his evidence has given the sequence of events which led
to the murder of Gayatri Devi and he has also deposed as to how a conspiracy
was hatched up and how the conspiracy was executed with the help of other
accused persons and how Gayatri Devi was stabbed by Laxmi Paswan on the
instigation and active participation of accused Lalu Ram. It has been stated on
behalf of the accused-appellant that this witness did not give the name of the
boy, who came to call him nor he gave the number of auto rickshaw and the
place, where other associates were standing.
all these points are not material but the evidence of PW-6 stands corroborated
when doctor found injury on the body of Gayatri Devi and further that abrasions
were also found on the cheek and neck when accused-appellant pressed the mouth
of Gayatri Devi so that she may not raise alarm and further that money was
looted and part of looted money was recovered from the possession of Laxmi Paswan
on the basis of his confessional statement. Although this fact has occurred
prior to arrest of PW-6, but with the evidence of PW-6 all these facts
corroborate the evidence of PW-6 because he was not knowing all these facts and
with his evidence all these facts stand corroborated and, therefore, there is
complete corroboration of the evidence of PW-6 and there is no ground for
disbelieving the evidence of PW-6 and therefore on the basis of the evidence of
PW-6 accused-appellant and co- accused Lalu Ram were found guilty and they were
involved in the abduction as well as in the occurrence under Section 396 IPC.
shall now deal with the question relating to the pardon.
far as pardon portion of the order of CJM is concerned, that has not been set
aside and the proceeding relating to other portion has been set aside by which Lalit
Sanga was examined but he was not cross examined nor his statement was recorded
in presence of the accused and so the trial court below, after remand of the
case completed this part of the order and Lalit Sanga was examined in presence
of the accused and he was also cross examined and thereafter case was committed
to the Court of Sessions, and therefore, there was complete compliance of
Section 306 Cr.P.C. The stage of examining the approver comes only after he has
been granted pardon and after pardon he was examined as a witness in presence
of the accused and also he was cross examined. So there is no illegality in the
order and in the procedure adopted by the learned CJM after remand of the case.
view of the factual position and the legal principles set out above the
inevitable conclusion is that the appeals are sans merit and deserve to be
dismissed which we direct.