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Judgment
A.C. Rao, J
The Criminal Appeal No.582 of 2015 is filed at the instance of original accused Nos.1, 5, 6 and 7 questioning the legality and validity of the
judgment and order of the conviction passed by the Sessions Judge, Jamnagar dated 25.3.2015 in Sessions Case No.132 of 2009 with Sessions Case
No.59 of 2010. The appellants are convicted for the offence under Section 302 read with Sections 120B, 34 and 114 of Indian Penal Code [“IPCâ€
for short] and sentenced to undergo life imprisonment with fine of Rs.1,000/-; in default of fine, to undergo further simple imprisonment for 7 days.
The appellants are further convicted for the offence punishable under Sections 364, 365, 34 and 114 of IPC and sentenced to undergo 10 years of
rigorous imprisonment and fine of Rs.1,000/-; in default, to further undergo simple imprisonment for 7 days. The appellants are also convicted for the
offence punishable under Section 201 of IPC and sentenced to undergo 2 years of rigorous imprisonment and fine of Rs.500/-; in default of making
payment of fine, to further undergo simple imprisonment for 3 days. There is no separate punishment imposed for the offence under Section 365 of
IPC.
Criminal Appeal No.38 of 2016 is preferred by the appellant original complainant whose father was kidnapped and murdered in the alleged offence.
He has filed appeal against the acquittal of original accused No.2 in the aforesaid case.
We take notice of the fact that in all there were 7 accused against whom the charge-sheets were filed by the prosecution but accused No.4 was
permitted to be an approver by the Sessions Judge, Jamnagar. In the result, accused Nos.1, 2, 3, 5, 6 and 7 were put to trial in the Court of Sessions
Judge, Jamnagar for the aforesaid offences. The original accused Nos.2 and 3 were acquitted in connection with the said offences.
The brief facts of the prosecution case are that, father and uncle of the complainant were having agricultural land admeasuring 115 bighas at
Village Anandpur. The deceased father was managing the affairs of said agricultural land. It is the case of the complainant that accused No.1
Babubhai and son of his uncle â€" Bhurabhai had filed civil litigations against the deceased. In all cases, the accused No 1 had lost the litigation.
According to the complainant, on 21.7.2009 at 4.00 p.m., he had received a phone call from his wife, who had informed him that Uttam Kaka had
informed her that Babubhai â€" deceased had gone to the temple and had not returned. Therefore, they inquired about the deceased at the place of
relatives and other places and also inquired at Navsari at his uncle’s place. It is alleged in the complaint that as civil litigations were pending and
the accused No.1 had lost in all cases, the accused No.1 had kidnapped his father with the help of his friends. The complaint was filed before Kalavad
Police Station. The investigating officer had filed the charge-sheet before Kalavad Court, where it was numbered as Criminal Case No.555 of 2009.
As the case was triable by the Sessions Court, it was committed to the Sessions Court under Section 209 of Criminal Procedure Code
[“CR.P.C.†for short] and it was renumbered as Sessions Case No.132 of 2009.
It is pertinent to note that accused No.7 had absconded and therefore, the charge-sheet was filed against accused Nos.1 to 6. Thereafter, accused
No.7 was arrested and the supplementary charge-sheet was filed before the Judicial Magistrate First Class, Kalavad where it was registered as
Criminal Case No.379 of 2010. It was also committed to the Sessions Court, Jamnagar as per provisions of Section 209 of CR.P.C. and the said case
was registered as Sessions Case No.59 of 2009. Since both the sessions cases were arising out of the same incident and same complaint, both were
tried together as per order dated 19.5.2011 of the Sessions Court.
It is pertinent to note that accused No.4 Maganbhai Sanghani had made an application Exh.14 for being an approver and the Sessions Court had
granted the said application and tendered the pardon under Section 307 of CR.P.C., and the case was tried against the accused Nos.1, 2, 3, 5, 6 and 7.
The said accused had pleaded not guilty to the charges leveled against them and claimed to be tried. The prosecution had examined as many as 33
witnesses and produced 45 documentary evidence before the sessions court.
At the conclusion of the trial, the statements of the accused-appellants under Section 313 of CR.P.C. came to be recorded. The accused persons
had stated that they were innocent and a false case had been instituted against them. Upon overall appreciation of oral as well as documentary
evidence, the trial Court has acquitted accused Nos.2 and 3 and convicted accused Nos.1, 5, 6 and 7 as stated herein above.
PW-1 is a Doctor who has performed postmortem. She has given an evidence at Exh.104. At the relevant time, PW-1 was a Medical Officer at
Chikhli. According to her deposition, she has performed postmortem at 4.30 p.m. and completed at 6 o’clock on 25.7.2009. According to her, dead
body of unknown person was found near crematorium at the bank of Kaveri and it was in decomposed condition. It was a dead body of 45 years’
male. He had three inch white hair and had wore white shirt, white pant and half pant on the body which was covered with mud. She had not found
any external injury on the body and according to her, the person had died before 2-3 days before postmortem. She has stated that if any person is
thrown in an unconscious condition, the same symptoms on the body seems to be found on the body. According to the witness, the cause of death was
asphyxia due to drowning. In the cross- examination, she has admitted that she has not found any symptoms of homicidal death. She has admitted that
there may be three causes of drowning viz. homicide, suicidal and accidental. She has admitted that so as to find out whether the dead body or alive
person is drown in a river, there is a diatom test but she has not performed any diatom test. She has also admitted that the superimposition is a known
method of identification of decomposed dead body. She has not performed any superimposition on the dead body on which she had performed
postmortem. She has also admitted that she has not performed any test about age of the dead body but she has stated age to be of 50 years in her
postmortem report on the basis of police yadi.
PW-2 is a complainant. According to his deposition, he has received a phone call on 21.7.2009 from his wife when he was on his duty at Rajkot.
He had received a message from his uncle namely, Uttam uncle that Chanabhai has not returned from the temple who had left at 6.00 p.m. for the
temple. PW-2 inquired with his relatives but he could not found his father. Thereafter, he had informed Kalavad Police station on 22.7.2009 stating
that his father was missing. He had also given passport size photograph to the police. It is pertinent to note that initially on 22.7.2009 the complainant
had informed the police that his father was missing since yesterday. While on another day, he had filed a complaint stating that as there was a civil
litigations pending between his father and the accused No.1, he had doubted that accused No.1 with the help of his agent and friend might have
kidnapped his father and detained illegally somewhere. Thereafter Jamnagar LCB found one unclaimed dead body. The photograph of dead body was
shown to the complaint. The complainant had identified the dead body from the photograph, of his father. The complaint is at Exh.110 on the record of
the Sessions Court. He had visited LCB Jamnagar on 4.4.2007 where he had seen photograph of dead body of accidental deaths and upon inquiry, he
had verified that he was his father. He has supported the case of the prosecution. He has also identified accused No.1 in the Court.
In his cross-examination, he has admitted that the cases were pending since 1967. His father was a retired Teacher and one suit is pending before
Kalavad Court and there was not a single quarrel about civil litigations before the incident. He has also admitted that when he had informed the police
about missing of his father, it was registered as Missing Register No.5/2009 and at that time, he had stated that his father did not have any quarrel
with anyone and his father had left on 21.7.2009 without informing anybody. He has also admitted that he resides at Rajkot along with his wife and his
father was residing with his younger uncle Maknabhai Bhavanbhai at Anandpur. His father was looking after the civil litigations. He has admitted that
he had given a complaint on the basis of doubt.
PW-4 has supported the panchnama and according to him, one mobile phone of Nokia Company was found from the accused No.2. PW-6 is a
panch witness and according to him, Maganbhai has produced cell phone in his presence. PW-4 could not identify the mobile phone. PW-10 is a panch
witness and according to him, in his presence, motorcycle was recovered from Upleta Police Station. PW-11 is a panch witness, in whose presence,
mobile phone, camera and Rs.3 lakh were recovered from Manubhai Sanghani, brother of accused Nos.3 and 5. PW-16 is a Mamlatdar who has
conducted test identification parade of accused No.7 wherein he was identified by PW-24.
According to PW-17, between 5.30 p.m. and 5.45 p.m., he was proceeding towards crematorium. At that time, he saw white car wherein the
victim was forcibly kidnapped. He has admitted that the house of the victim was in opposite direction to which he had proceeded on the day of
incident. In cross-examination, he has stated that at the time of incident, it was a dark and sun had not arisen and he was far from the house of the
victim and therefore, he could not see anything. However, he denied that he had not seen anybody forcibly taking victim in the car. He also admitted
that he had not informed the police and he had given a statement after 10 days of incident. Considering the cross-examination of this witness, he does
not inspire any confidence.
PW-20 is the accused No.4 qua approver. According to his deposition, on 20.6.2009, accused No.5 had visited his farm and he has asked that he
wanted to 7ehavior party at farm of 18 bighas land. There would be signing and stamping on document. He had permitted him as requested.
Thereafter on 21.7.2009, he had again visited his farm and told him that he wanted to arrange a party at his another farm of 23 bighas. On the day of
incident, when he reached his farm of 18 bighas, he had some doubt, so he went to farm of 23 bighas, there he saw white esteem car in his farm and
he had also seen accused Nos.5, 6 and 7 and one another unknown person. Accused No.6 had caught hold the victim. While accused No.6 was
asking the victim to sign the document, the victim had denied the same. Accused No.7 had inflicted blow with a wooden log on his leg and back. PW-
20 had asked accused No.5 that he had permitted for party and not for quarrel and also asked why he was beating the old man? So the victim was
taken in the esteem car. All accused Nos.5, 6 and 7 along with unknown person had left the farm in the car. At that time, no other person was
present. Thereafter at about 9 o’clock, there was a call from advocate Mr. Ramani and he has inquired that whether accused No.5 and his
colleague left his farm or not. He had replied that there was a quarrel with old man so he asked them to leave. Thereafter the advocate has asked him
to switch off his phone. According to him, the old man was father of the complainant, aged 70 years. He had identified accused Nos.5, 6 and 7 in the
Court. He has stated that his mobile was taken in custody by police. Thereafter he went to file affidavit before Kalavad Court, but Kalavad Court has
not accepted it. So he has filed it before Jamnagar Court.
In cross-examination, PW-20 has admitted that he was arrested by the police officer namely Mr. Hirpura in this case. At that time, he was at his
farm. His statement was recorded by Mr. Hirpara. He was in police station for 13 days. During his stay at the police station, Jamnagar LCB officers
had visited the police station. He had not asked Mr. Hirpara that why he was kept in the police station. He was provided food in the police station.
During his custody, accused Nos.1, 2 and 3 were also brought in the police station. LCB Police has recorded his statement. When he was interrogated
by LCB police, accused Nos.1 and 2 were present. Accused No.1 was with him for 4 days. He has stated that his remand was asked by police at
Kalavad Court. He had not engaged advocate when his remand was sought by the police. He had not objected his remand. After his remand, he had
stayed in the police station. He had met accused Nos.1 and 2 in the police station. He had stayed there for 25 days. He was not kept in jail but in a
room of LCB police station. Accused Nos.1, 2 and 3 were also with him in the same room. After 3 days, they were taken to Kalavad and thereafter
they were sent to Jamnagar prison. He had visited Kalavad Court after 8 months of his release on bail. He has prepared affidavit through his
advocate. According to him, he had not played any role in the crime. He had never told the police that he wanted to become approver. He has stated
that he did not know Kiritbhai Joshi, Advocate. He has denied that he engaged Kiritbhai Joshi as his advocate when the police had asked for remand.
He had denied that he was produced before Kalavad Court for the remand. He has denied that he had filed written submission that he is innocent and
he does not know anything about the crime. When he was asked that whether he has engaged A.D. Yagnik and P.A. Wala, advocates, he replied that
he did not understand the question. It is recorded by the Court that he was not giving proper reply so the public prosecutor was instructed to inform
him about provisions of law. He has denied his signature on his vakalatnama.
PW-26 is working with Idea Cellular Company. He has produced incoming and outgoing details of 8 mobile numbers. In his cross- examination, he
has admitted that he could not say who was using mobile phone and that tower range is of 5 kms. Radius.
PW-28 is Police Inspector serving at Kalavad Police Station. According to his deposition, he has registered a complaint. He has prepared a
panchnama of scene of offence. He has recorded statement of witnesses. He recovered the mobile phone. He asked for the remand of accused
No.1. He has prepared arrest panchnama. According to his deposition, he had arrested PW-20 approver from his shop and thereafter, he was taken to
the police station. He has denied that PW-20 was in custody since 23.7.2009 to 4.8.2009. He has admitted that he has applied for narco analysis test
of PW-20 on 13.8.2009. He had pleaded his ignorance that whether the prosecution has applied for cancellation of bail of approver. He has stated that
during his inquiry, it was found that the victim did not have any quarrel with anybody and no one was doubted, in his missing complaint. He has
admitted that he has not inquired in the revenue record or sub registrar office about the power of attorney document and he has not collected any
document from any office. He has not recorded any statement of stamp vendor. According to him, the price of the disputed land was much more than
Rs.100 (Rupees One Hundred). He has admitted that he has not inquired the purchase of mobile instrument or about sim card.
PW-29 was CPI at Dhrol during 2009 to 2010. He has arrested accused No.5 with mobile and had prepared arrest panchnama. He has collected
Rs.3,50,000/- from the brother of the accused and he has prepared panchnama. He has also taken possession of motorcycle of PW-20. He has
arrested accused No.6 along with his esteem car on 12.9.2012 and prepared arrest panchnama. From his car, he has collected election card, Nokia
mobile, sim card and four number plates. He had identified accused Nos.5 and 6. He has admitted that he has not collected any document about victim
Chanabhai. He has admitted that he has asked FSL Officer to investigate about mobile but no fruitful thing was found in his inquiry. He has admitted
that PSO has opposed the bail application of PW-20 and filed protest affidavit.
PW-31 is Dy.S.P. and at the relevant time he was LCB P.I. Jamnagar and he has arrested accused No.7. PW-32 is a P.S.I. of Jodiya Police
Station at the time of incident. He has recorded statement of PW-24. PW-33 is Dy.S.P. of C.I.D. Crime at the time of incident and has filed charge-
sheet against accused No.7. There is also one witness who is DySP, has not inquired anything but filed a charge-sheet.
PW-3, PW-5, PW-7, PW-8, PW-9, PW-12, PW-13, PW-14, PW-15, PW- 18, PW-21, PW-22, PW-23, PW-24, PW-25 and PW-27 are panch
witnesses who had turned hostile and had not supported the case of the prosecution. PW-19 had purchased the land from accused No.1 for Rs.10
lakh.
The defence had examined one witness Kiritbhai H. Joshi, advocate. According to his deposition, he is 10ehavior10d at Jamnagar Court since
1999. He has stated that accused No.4 qua PW-20 was produced before In-charge Magistrate Shri Dholakia at Jamnagar for the offence punishable
under Sections 302, 120B of IPC with a remand report. PW- 20 had engaged him as an advocate to oppose the remand application. The accused has
signed vakalatnama in his presence in the court room. He and his junior Amit Bhambhi had signed the said vakalatnama. According to the instruction
of PW-20, he had prepared written objection against the remand application and PW-20 had signed the said application as provided by him. After
hearing both the parties, the learned Magistrate had rejected the remand application. The vakalatnama is at Exh.277 and the remand application is at
Exh.287 in the record of Sessions Court. The said witness is not cross-examined by the learned public prosecutor.
At the time of argument, learned advocate appearing on behalf of the appellant has contended that the Sessions Court has convicted the appellant
on the basis of evidence of approver but the approver cannot be relied on and the Sessions Court has erred in relying on the said evidence. It is
contended that the evidence of the approver requires close scrutiny for reliability and trustworthyness, more so when it is the evidence of person who
himself is an accused. It is contended that if his evidence is trustworthy, reliable and corroborated with other evidence, then it can be relied on. It is
submitted that his evidence shows that he is absolutely not reliable and not trustworthy and there is no corroboration to his evidence. Therefore, his
evidence was required to be ignored by the Sessions Court. It is vehemently contended that even the evidence of approver is a weak evidence.
To support his submissions, Mr.Dagli, learned advocate for the appellants has relied on the judgment in case of Chandan vs. State of Rajasthan
[AIR 1988 SC 599], wherein the Apex Court has held that:
“So 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/s. State of Maharashtra, (1968) 2 SCR 641
it was observed as under:
“An 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 the crimeâ€.
Similarly in Revinder Singh vs. State of Haryana [(1975) 3 SCR 453] it was observed as under:
“An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This
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 any 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.â€
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 corroborated. In 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.â€
22.1 He has also relied on the judgment in case of Venkatesha Versus State Of Karnataka [AIR 2013 SC 3634 ], wherein the Apex Court has held
that:
“Section 133 of the Evidence Act, makes an accomplice a competent witness against the accused person and declares that a conviction shall not
be illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Even so, the established rule of practice evolved on the
basis of human experience since times immemorial, is that it is unsafe to record a conviction on the testimony of an approver unless the same is
corroborated in material particulars by some untainted and credible evidence. So consistent has been the commitment of the courts to that rule of
practice, that the same is now treated as a rule of law. Courts, therefore, not only approach the evidence of an approver with caution, but insist on
corroboration of his version before resting a verdict of guilt against the accused, on the basis of such a deposition. The juristic basis for that
requirement is the fact that the approver is by his own admission a criminal, which by itself makes him unworthy of an implicit reliance by the Court,
unless it is satisfied about the truthfulness of his story by evidence that is independent and supportive of the version given by him. That the
approver’s testimony needs corroboration cannot, therefore, be doubted as a proposition of law. The question is whether any such corroboration is
forthcoming from the evidence adduced by the prosecution in the present case.â€
As against this, Mr.Unwala, learned senior advocate appearing on behalf of the respondent, has contended that the prosecution has proved his
case on the basis of cogent evidence. The deposition of PW-20 is not shaken in the cross-examination. There is no cross-examination about main
incident at farm on 21.7.2009 by accused Nos.5, 6 and 7 which is clearly established from the evidence of PW-20. It is contended that the deposition
of PW-20 is well supported. It is contended that the statements of PW-20 are supported by Exh.17 and Exh.22 with his previous statement, so his
deposition is admissible. It is contended that in his deposition, PW-20 has stated that accused Nos.5, 6 and 7 were with the victim Chanabhai and they
had a car and motorcycle. The said car is of ownership of accused Karan as per RTO registration at Exh.148. It is contended that the deposition of
PW-20 is supported by his statement to the police. There is a consistent statement regarding the fact in furtherance of criminal conspiracy. In the
further statement under Section 313, the accused has not made any explanation as to why PW- 20 has given deposition against them. They have not
denied that PW-20 is known to accused Nos.5, 6 and 7. They have not taken any defence of alibi. It is contended that when the accused have failed
to explain when they parted with the company of victim Chanabhai, Section 106 of the Evidence Act would come into play as these facts are within
the special knowledge of the accused and they have failed to do in the statement under Section 313. The case against them is proved. It is contended
that the allegations against PW-20 about his false story is baseless. He has vehemently argued that when the trial Court has tendered pardon under
Section 306 read with Section 307 of CR.P.C. and it has not been challenged by the accused and has attained finality, they cannot argue against him.
In support of his submission, Mr.Unwala, learned senior advocate has relied on the judgment in case of Maghar Singh Versus State Of Punjab
And Haryana [1975 (4) SCC 234], wherein the Apex Court has held that:
“3. The central evidence in this case consists of the testimony of the approver Baldev Singh, P.W. 11. Who has given a full narrative of the
manner in which the deceased was hacked to death by Maghar Singh, with the aid of the approver and Smt. Surjit Kaur. The learned counsel
appearing for the appellant raised two points before us. In the first place he submitted that the evidence of the approver Baldev Singh must be
excluded from consideration because the provisions of Section 337 of the Code of Criminal Procedure were, not complied with in as much as the
statement given by the approver on the basis of which he was granted pardon was a purely self-exculpatory statement and did not fall within the four
corners of Section 337 of the Code of Criminal Procedure. On a perusal of the statement of Baldev Singh we are unable to agree with this contention.
It is true that Baldev Singh did not say that he took any active part in the assault on the deceased, but his statement clearly shows that he was a privy
to or an a better in the commission of the offence. The Magistrate who granted the pardon to the approver was fully satisfied that the approver was
going to make a full and complete disclosure which he undoubtedly did. In these circumstances, we do not think that the provisions of Section 337 of
the Code of Criminal Procedure have been violated in any way.
Another leg of the argument regarding the testimony of the approver was that he was not examined before the Committing Magistrate, as required
by sub-clause (2) of Section 337 of the Code. On a reference to the record of the Committing Court we find that the statement of Baldev Singh was
recorded by the Committing Magistrate who had taken cognizance of the case and when the attention of the learned counsel for the appellant was
drawn to this fact he did not press this point.
The second contention put forward by the learned counsel for the appellant was that there was no material corroboration of the statement of the
approver and the High Court had convicted the appellant on the basis of the extra-judicial confession made by the two accused before some persons
but that could not in law be regarded as any corroboration at all, because one tainted evidence cannot corroborate another tainted evidence. The
evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is
required it is only by way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the
confession was voluntary, then in such a case conviction can be founded on such evidence alone as ,was done in Rao Shiv Bahadur Singh V/s. State
of Vindhya Pradesh, 1954 SCR 1098 where their Lordships of the Supreme Court rested the conviction of the accused on the extra-judicial confession
made by him before two independent witnesses, namely, Gadkari and Perulakar. In the instant case also, after perusing the evidence of P.W. 3 and
P.W. 12 we are satisfied that they are independent witnesses before whom both the appellant and accused Surjit Kaur made confession of their guilt
and this therefore forms a very important link in the chain of circumstantial evidence. In our opinion the argument proceeds on fundamentally wrong
premises that the extra-judicial confession is tainted evidence.â€
24.1 He has also relied on the judgment in case of Prithipal Singh Etc. vs. State of Punjab [2012 (1) SCC 10], wherein the Apex Court has held that:
“39. An accomplice is a competent witness and conviction can lawfully rests upon his uncorroborated testimony, yet the court is entitled to
presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless
the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular
accused in the commission of the crime. (Vide: Rameshswar S/o Kalyan Singh V/s. The State of Rajasthan, AIR 1952 SC 5; 4and Sarwan Singh
Rattan Singh V/s. State of Punjab, AIR 1957 SC 637).
In K. Hasim V/s. State of Tamil Nadu, AIR 2005 SC 128 t,his Court examined the issue while taking into consideration the provisions of Section
133 read with Section 114 Illustration (b) of the Evidence Act and held that the provision of Section 114 Illustration (b) embodies a rule of prudence
cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. The legislature in its
wisdom used the word `may’ and not `must’ and, therefore, the court does not have a right to interpret the word `may’ contained therein
as `must’. The court has to appreciate the evidence with caution and take a view as to the credibility of the evidence tendered by an accomplice.
In case evidence of an accomplice is found credible and cogent, the court can record the conviction based thereon even if uncorroborated.
The Court in K. Hasim further explained that the word “corroboration†means not mere evidence tending to confirm other evidence. Firstly, it
is not necessary that there should be an independent corroboration of every material circumstance in the sense that the independent evidence in the
case, apart from the testimony of the accomplice, should in itself be sufficient to sustain conviction. All that is required is that, there must be some
additional evidence rendering it probable that the case of the accomplice is true and it is reasonably safe to act upon it. Secondly, the evidence on
record must reasonably connect or tend to connect the case with the crime by confirming in some material particular the testimony of an accomplice.
Thirdly, the circumstances involved in the case must be such as to make it safe to dispense with the necessity of corroboration, though, such evidence
may be merely circumstantial evidence to show connection of the case with the crime.
(See also: Suresh Chandra Bahri V/s. State of Bihar, AIR 1994 SC 2420).
The issue was again considered by this Court in Chandran alias Manichan alias Maniyan & Ors. V/s. State of Kerala, (2011) 5 SCC 16,1 wherein
the Court had an occasion to appreciate the evidence of a person who had not been put on trial, but could have been tried jointly with accused and
found his evidence reliable in view of the law laid down by this Court in Laxmipat Choraria & Ors. V/s. State of Maharashtra, AIR 1968 SC 938. The
Court held as under:
“78. The argument raised was that this evidence could not be taken into consideration and it would be inadmissible because this witness, though
was an accomplice he was neither granted pardon under Section 306 CrPC nor was he prosecuted and the prosecution unfairly presented him as a
witness for the prosecution. The contention is clearly incorrect in view of the decision of this Court in Laxmipat Choraria (supra). While commenting
on this aspect, Hidayatullah, J. observed in AIR para 13 that there were a number of decisions in the High Courts in which the examination of one of
the suspects as the witness was not held to be legal and accomplice evidence was received subject to safeguards as admissible evidence in the case.
The Court in Laxmipat Choraria (supra) held:
“13. On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness
was not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case. In those cases, Section 342
of the Code and Section 5 of the Oaths Act were considered and the word `accused’ as used in those sections was held to denote a person
actually on trial before a court and not a person who could have been so tried… …. the evidence of an accomplice may be read although he could
have been tried jointly with the accused. In some of these cases the evidence was received although the procedure of Section 337 of the Criminal
Procedure Code was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion in
India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead
made to give evidence in the case. Section 5 of the Oaths Act and Section 342 of the Code of Criminal Procedure do not stand in the way of such a
procedure.â€
In view of the above, the law on the issue can be 16ehavior16d to the effect that the deposition of an accomplice in a crime who has not been
made an accused/put to trial, can be relied upon, however, the evidence is required to be considered with care and caution. An accomplice who has
not been put on trial is a competent witness as he deposes in the court after taking oath and there is no prohibition in any law not to act upon his
deposition without corroboration.â€
We first addressed the issue whether the evidentiary value of the testimony of approver PW-20, is rightly relied by the trial Court or not? It would
be fruitful to refer Section 133 and illustration (b) to Section 114 of the Indian Evidence Act, 1872 . They read as under:
“133. 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.â€
Illustration (b) to Section 114
“(b) The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.â€
25.1 Having stated the legal position with regard to the statutory provisions, presently we shall proceed to consider the requisite tests to be applied to
accept the credibility of the testimony of the approver. The aforesaid two provisions came to be considered by Full bench of the Apex Court in Bhiva
Doulu Patil V/s. State of Maharashtra, AIR 1963 SC 599 wherein the Supreme Court held as follows:
“The combined effect of Sections 133 and Illustration (b) to Section 114, may be stated as follows:
According to the former, which is a Rule of law, an accomplice is competent to give evidence and according to the latter, which is a Rule of practice it
is almost always unsafe to convict upon his testimony alone. Therefore, 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.â€
25.2 In Mohd. Husain Umar Kochra etc. V/s. K.S. Dalipsinghji and another etc., (1969) 3 SCC 429, the Supreme Court observed thus:
“… The combined effect of Sections 133 and 114, Illustration (b) is that though a conviction based upon accomplice evidence is legal, the Court
will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be
direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration
is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another.â€
25.3 In Ravinder Singh V/s. State of Haryana, (1975) 3 SCC 742, the full bench of the Supreme Court has observed that:
“An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This
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. … 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.â€
25.4 Similar principles have been reiterated in Mrinal Das and Ors. Vs. State of Tripura, AIR 2011 SC 3753:
25.5 In A. Devendran vs. State of T.N., (1997) 11 SCC 720, the Court has expressed the view that there cannot be any dispute with regard to the
proposition that ordinarily an approver’s statement has to be corroborated in material particulars. Certain clinching features of involvement
disclosed directly to an accused by an approver must be tested qua each accused from independent credible evidence and on being satisfied, the
evidence of an approver can be accepted. The Court further observed that the extent of corroboration that is required before the acceptance of the
evidence of the approver would depend upon the facts and circumstances of the case, however, the corroboration required must be in material
particulars connecting each of the accused with the offence, or in other words, the evidence of the approver implicating several accused persons in
the commission of the offence must not only be corroborated generally but also qua each accused but that does not mean that there should be
independent corroboration of every particular circumstance from an independent source. The court proceeded to state that all that is required is that
there must be some additional evidence rendering it probable that the story of the accomplice is true and the corroboration could be both by direct or
circumstantial evidence. Be it noted, the said principle was stated on the basis of pronouncements in Ramanlal Mohanlal Pandya vs. State of Bombay,
AIR 1960 SC 961, Tribhuvan Nath vs. State of Maharashtra, (1972) 3 SCC 511 ,Sarwan Singh vs. State of Punjab (supra), Ram Narain V/s. State of
Rajasthan, (1973) 3 SCC 805 and Balwant Kaur vs. Union Territory of Chandigarh, (1988) 1 SCC 1.
25.6 In Chandan and another V/s. State of Rajasthan, (1988) 1 SCC 696, the Supreme Court held that so 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 conviction could only be
based on the testimony of the accomplice if it is thought reliable as a whole and if it is corroborated by independent evidence either direct or
circumstantial, connecting the accused with the crime.
25.7 In Haroon Haji Abdulla V/s. State of Maharashtra, AIR 1968 SC 832, the view in this regard was expressed in the following terms: -
“An 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 the crime.â€
25.8 In Major E.G. Barsay V/s. State of Bombay, AIR 1961 SC 176,2 it has been observed that the Supreme Court had never intended to lay down
that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the court
shall first have to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his
evidence is unreliable; but if it comes to the conclusion that it is reliable, then it will have to consider whether that evidence is corroborated by any
other evidence.
25.9 In Renuka Bai alias Rinku alias Ratan and another V/s. State of Maharashtra, (2006) 7 SCC 44,2 the Supreme Court held that the evidence of
the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts.
25.10 In Ranjeet Singh and another V/s. State of Rajasthan, (1988) 1 SCC 63,3 the full bench of the Supreme Court observed that while looking for
corroboration, one must first look at the broad spectrum of the approver s version and then find out whether there is other evidence to lend assurance
to that version. The nature and extent of the corroboration may depend upon the facts of each case and the corroboration need not be of any direct
evidence that the accused committed the crime. The corroboration even by circumstantial evidence may be sufficient.
25.11 At this juncture, we may quote a passage from Sarwan Singh S/o Rattan Singh V/s. State of Punjab, AIR 1957 SC 63 (7Full bench) wherein it
has been held as follows: -
“…An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he
has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the
evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in
minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by
the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the
question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the
approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether
his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver’s evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which
still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted
evidence like that of the approver. [Emphasis supplied by us]
8…Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before
the question of corroboration of his evidence is considered by criminal courtsâ€.
25.12 Keeping in view the aforesaid principles which relate to the acceptance of the evidence of an approver, we have bestowed our anxious
consideration and carefully perused the judgment of the trial court.
From the evidence of approver, it appears that he was arrested within 2-3 days from the date of the incident. He had admitted that during these 13
days, he was interrogated by Mr.Hirpara, Police Inspector and also by Police Officer of Jamangar LCB. He had admitted that his food and everything
was managed by the police. He had admitted that accused No.1 Babu Bhura was in police custody for 4 days. He had admitted that he was
remanded by Kalavad Magistrate for 3 days and during that 3 days, Chhagan Nagji and Babu Bhura were with him. He had admitted that LCB police
had taken him out of police station for 3 days and during those 3 days, his statement was recorded. He was kept in LCB Police Station and not
allowed to go outside. Thus, from his cross-examination, it emerges that his arrest was made on 4.8.2009 but according to him, he was arrested on
23.7.2009 and for 13 days, he was kept in custody in the police station. He had admitted that he was guided by Mr.Ramani to switch off his mobile.
He had switched off his mobile as he was instructed. He had admitted that he had stayed in the police station and had never made representation. He
has denied his own signature on vakalatnama of defence witness No.1. He had also admitted that the police had filed an application for cancellation of
his bail. He had admitted that his brother namely, Ramesh after issuance of a notice in cancellation of bail was called by the police. The defence has
successfully established that PW-20 is not speaking a complete truth. The Court has also warned the public prosecutor saying that the witness is not
giving proper answer and he should be apprised for the legal consequence and the case was adjourned due to his non-cooperational 21ehavior.
Further, the deposition of the Investigating Officer and this witness is contrary to each other. Thus, as per the above referred cases of Full Bench, it
cannot be said that PW-20 approver has successfully crossed the hurdle that he is reliable witness.
The principal basis on which the Trial court convicted the accused is contrary to the evidence on the record and suffers from a manifest
perversity. The evidence on the record is indicative of the following circumstances:
(1) The case is based on circumstantial evidence, there is no eye witness to the incident.
(2) That the complainant had first filed missing report with the police station. In his complaint he had stated that his father has no enmity with anybody.
He had not doubted anybody. Suddenly he had filed complain on the next day he had doubted accused no. 1 as the he has lost all civil cases against his
father and uncle. He has admitted that the litigation is pending for 46 years. He was not in the town at the time of incident.
(3) There are following contradiction in the evidence of approver.
(i) According to approver evidence he had seen accused Nos. 6,7 and unknown person at in his filed. The victim was bitten by accused no 7. The
victim was asked to sign certain documents by accused no 6. The victim was bitten with wooden log. The victim was so badly beaten that he was to
loss his consciousness. The victim was forced to sit in a car. Thereafter accused Nos 6, 7 and unknown person left the farm of the approver.
(ii) The doctor who performed post mortem has not found any injury mark on the body of victim. As per evidence of doctor the cause of death of
victim is asphyxia due to drowning. The weapon (wooden log) is not recovered by investigation. The car was sent to FSL, but no incriminating
material was found from the said car.
(iii) According to approver he was arrested in his farm on 23-7-2009, while according the IO he was arrested on 4-8-2009. According to approver he
was in police custody 13 days the accused no 1,2 and 3 were with him in police station but according to IO during those 13 days only accused no 1
was in his custody.
(iv) According to approver, he had not objected his remand application. He had not engaged advocate Mr. Kirit Joshi. In his cross examination he has
disowned his own signature on the vakalatnama of Mr. Kirit Joshi. While as per defence witness advocate Mr. Kirit Joshi the approver had engaged
him as advocate to oppose remand application. The approver had signed his vakalatnama.
(v) There is no explanation by the prosecution that on the hand the approver had stated in his deposition, that he had witnessed the part of incident, and
on the other hand in his written objection (Exhibit No.278) before Kalavad Court, he had stated that he does not know anything about crime.
In the above referred cases the Apex Court has said so many words that if it is found that approver is not a reliable witness, the Court should not look
further and further examine that whether his deposition is corroborated or not, but straightaway, his deposition should be discarded. It appears that the
trial Court has not looked into this aspect and straightaway relied on his deposition. Thus, the trial Court has failed to consider this settled position of
law and under the circumstances, we are of the opinion that the evidence given by the approver cannot be relied by the trial Court.
(4) If we discard the evidence of approver, then there is only PW17. In his cross-examination, he has categorically admitted that when he had seen
victim Chanabhai kidnapped, there was no light and he was not able to see anything. He has further admitted that he has not stated anything to
anybody about kidnapping till 10 days of incident. Under the circumstances, the deposition is not helpful to the prosecution. We are of the view that the
prosecution has miserably failed to establish its case against any of the accused.
(5) There is no evidence to establish that the accused had hatched conspiracy.
27.1 Conspiracy is referred in Sections 120A and 120B of IPC. Reading of Section 120A and Section 120B, IPC makes it clear that an offence of
“criminal conspiracy†is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors
must be present in the case on facts: first, involvement of more than one person and second, an agreement between/among such persons to do or
causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.
27.2 The expression “criminal conspiracy†was aptly explained by this Court in a case reported in Major E.G. Barsay vs. State of Bombay (1962)
2 SCR 195. Learned Judge Subba Rao (as His Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said:
“31…..... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though
the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal
act. It may comprise the commission of a number of acts.â€
Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other
words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each
and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.
27.3 In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched
in secrecy and is never an open affair to anyone much less to public at large.
27.4 It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence,
such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the
principle applicable for appreciating the circumstantial evidence for holding the accused guilty for commission of an offence. (See also Baldev Singh
vs. State of Punjab [2009 (6) SCC 564].
Thus, with respect to conspiracy, it is trite law that the existence of three elements must be shownâ€" a criminal object, a plan or a scheme embodying
means to accomplish that object, and an agreement or understanding between two or more people to cooperate for the accomplishment of such object.
30.It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to
be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain
may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.
Having gone through the material on record we are of the considered view that evidence adduced against the appellants do not form the complete
chain connecting them with the crime and the prosecution has failed to prove the guilt beyond doubt.
In the result, Criminal Appeal No.582 is allowed. The impugned judgment and order of sentence passed by the learned Sessions Judge, Jamnagar
in Sessions Case No.132 of 2009 with Sessions Case No.59 of 2010 dated 25.3.2015 is hereby quashed and set aside. The appellants are hereby
acquitted of the offence punishable under Sections 364, 365, 302, 201, 120B, 34 and 114 of the Indian Penal Code, 1860, by giving benefit of doubt.
The appellants â€" original accused Nos.1, 5, 6 and 7 are ordered to be released forthwith, if not required in any other case. The appellants accused to
furnish Bail Bond of Rs.10,000/- afresh before the trial court as prescribed under section 437(A) of the Code of Criminal Procedure, 1973.
Criminal Appeal No.38 of 2016 filed by the State Government is hereby dismissed.