Mohinder Singh and others vs The State

Harbans Singh, J.—This is an appeal filed by Mohinder Singh, Swaranjit Singh and Gurcharan Singh against their conviction u/s 302 read with S. 149 of the Indian Penal Code and sentence of imprisonment for life They were also convicted u/s 148 and sentenced to two years'' rigorous imprisonment each. Tarlok Chand, who was tried along with the Appellants was, however, acquitted. Finding of the Court was that these Appellants along with one other person, who was unidentified, and the approver did attack Paramjit Singh with knives resulting in his death.

According to the prosecution story, Paramjit Singh deceased along with Mohinder Singh accused and one Kewal committed a robbery in Gill Road at Ladhiana. After some time when relations between Paramjit Singh and Mohinder Singh got strained, Mohinder Singh laid information with the police regarding the said robbery. Paramjit Singh and Kewal were arrested and challaned but were acquitted. Thereafter Paramjit Singh remained on the lookout to belabour Mohinder Singh and the latter always avoided him. As Gurdev Singh approver was a friend of Mohinder Singh, being a class-fellow in the school, Paramjit Singh also was on the lookout to give beating to Gurdev Singh and he also avoided him because Paramjit Singh was stronger than Gurdev Singh in physical strength. Swaranjit Singh and Gurcharan Singh, the other two Appellants, are said to be friends of Mohinder Singh. Some three or four days before the present occurrence these three persons met Gurdev Singh at a shop, a little distance from the premises of Harjit Mechanical Works belonging to Gurdev Singh, and they planned to kill Paramjit Singh, who was a source of trouble to them. Tarlok Chand was in the employment of Gurdev Singh and on being consulted he also agreed to join hands with them.

On 3rd of June, 1960, the four accused and the approver on getting information that Paramjit Singh was likely to go to Kailash Theatre to see Chaudhvin Ka Chand'', armed themselves with knives and went towards that side but did not find him there though they waited till 7 30 p. m. Thereafter they went towards the house of Kewal P.W., who was a friend of Paramjit Singh and whom he was in the habit of visiting. These persons stood outside in the street in the dark and they saw Paramjit Singh sitting inside the baithak of Kewal. There being light inside, they could see him through the wire-gauze door while he could not see them outside. Mohinder Singh, Tarlok Chand and Swaranjit Singh, therefore, stood on one side of the entrance while the remaining two stood on the other, to block the way. When Paramjit Singh came out after about 20 minutes, he turned towards the Grand Trunk Road on which side Mohinder Singh, Swaranjit Singh and Tarlok Chand were standing. They attacked him with their knives and meanwhile the other two also reached there and gave him injuries. When the deceased fell on the ground, his watch also dropped there which was taken away by Mohinder Singh who handed it over to Swaranjit Singh. Three persons, two being Sikhs and one Hindu, were near-about the place where they were attacking the deceased and they used abusive language towards them and threatened to capture them. When they made an attempt to come towards them, the accused threatened them and so they did not come near. Thereafter all the accused ran away in different directions. Those three persons (two of whom now depose as eye witnesses) also left the place and did not take any steps to render any assistance to the injured or call for any help. The injured, in about 15 minutes or so, went back into the baithak of Kewal, who went and informed Prithipal Singh, brother of the injured and when Prithipal Singh came to to the baithak, he found that Paramjit Singh had died.

Matter was reported to the police by Prithipal Singh at 10.15 p. m. Next day Sant Singh P.W.6 and Ujagar Singh P. W. 7 came forward as eye-witnesses of the occurrence and took the position that they were able to identify the accused because there was street light at or near the place of occurrence. Mohinder Singh, Gurcharan Singh, Tarlok Chand and Gurdev Singh were arrested on 7th of June while Swaranjit Singh surrendered into the Court the same day. They were remanded to judicial lockup but on the same day the investigating officer obtained their remand to the police custody but the Magistrate warned the accused that they should keep their faces covered. Identification parade was arranged for 13th June but all the accused and the approver refused to participate on the ground that they had been shown, to the witnesses. During the course of the investigation, Gurdev Singh and Tarlok Chand on 19th of June and Mohinder Singh on 20th of June are said to have led to the recovery of a knife each from different places after making disclosure statements. On 20th Swaranjit Singh led to the recovery of a watch alleged to be of the deceased). On 20th of June, 1960 Gurdev Singh was produced before the Superintendent of Police and thereafter before the Additional District Magistrate and was granted pardon and made an approver.

The accused denied the guilt and pleaded that they have been implicated on suspicion because of enmity.

The main evidence in the case is that of the approver and the two eye-witnesses. The learned Additional Sessions Judge came to the conclusion that the statements of the eye-witnesses with regard to Tarlok Chand cannot be relied upon and the statement of the approver with regard to Tarlok Chand was also unsatisfactory. In cross-examination of the approver it was brought out that for four days before the date when the alleged conspiracy was hatched, he did not attend the workshop. In view of that it was hardly likely that he would be available in the workshop for hatching a conspiracy after the working hours of the workshop. The learned Additional Sessions Judge, however, did feel that there was a fifth person though his identity has not been established and, consequently, relying on the statements of the eye-witnesses and that of the approver, he convicted and sentenced the three Appellants, as stated above.

We were taken through the evidence of Sant Singh and Ujagar Singh and to us, it appears that their evidence is highly unsatisfactory and no reliance can be placed on the same. In the first place, Sant Singh belongs to Millar Ganj, which is at a considerable distance from the place of occurrence, while Ujagar Singh belongs to village Mehmoodpura and they have not given any reasonable explanation for their presence near the spot at the crucial moment. According to Sant Singh, after closing time of the workshop he came to the workshop and residence of one Harnam Singh, near the place of occurrence, to purchase a machinery part. He found the workshop closed, but that was only expected because he had started after the working hours. And thereafter he did not purchase the machinery part for a period of five months. Ujagar Singh had come from his village to Millar Ganj to see one Gurdev Singh at 2.30 p.m. The latter was, however, not available and he had no other business that day in Ludhiana. Still we find him at about 8.30 p.m. going from Millar Ganj to the railway station and reaching the place of occurrence at the relevant time. Apart from this, their conduct is unnatural. According to them they both shouted out that the culprits should be caught but on being threatened, they stepped back and they saw the accused running away from the spot after committing the offence. After the accused bad gone, there was obviously no fear of anybody but instead of going to the injured or even raising raula, they themselves ran away towards the bus-stand Sant Singh then appears for the first time on 4th of June at 4 p.m. before the police after he had gone to the house of Prithipal Singh to express condolence. He did not know Prithipal Singh. It is difficult to understand why he went to Prithipal Singh next day and disclosed the story. Ujagar Singh was examined by the police on 3rd day of the occurrence.

The site plan further shows that the occurrence took place only at a short distance from the house of Kewal P. W. and if these two eye-witnesses were, in fact, present and did, in fact, shout out, the raula must have been heard by Kewal. The fact that he heard nothing renders the evidence of these alleged eye-witnesses unreliable.

On behalf of the accused it was urged that no bloodstains were found by the Sub-Inspector outside in the street at the alleged place of occurrence. The injured had as many as 19 injuries out of which one injury was on the chest, a little above the nipple, three injuries were in the abdomen and the remaining on all parts of the body including shoulders, back of chest etc. From these injuries he was found to have bled profusely. The occurrence took place soon after he went out of the baithak and, according to Kewal, he came back into the baithah after about 15 to 20 minutes. That would mean that for some time he had been lying injured in the street and there must have been a quantity of blood fallen there. According to the Sub-Inspector, as soon as he received the information he sent two constables to guard the spot and he went there next morning. The explanation offered by the State counsel is that the blood must have been absorbed by the clothes, which is quite possible, but in the present case that does not appear to be probable because it was the month of June and he was wearing only a banian and a shirt, and a large number of injuries were above the level of the umbilicus, and these two clothes were not likely to absorb all the blood that must have come out of such a large number of wounds, tor a period of some 15 minutes.

However, the main thing in the case is that the so-called eyewitnesses are not reliable and we are left only with the statement of the approver. His statement has not been found reliable so far as Tarlok Chand is concerned. Apart from this, even if his statement be treated as reliable, there is no corroboration from any independent source establishing connection of the accused with the crime. As was observed by the Supreme Court in Sarwan Singh Vs. The State of Punjab, , an approver''s statement has to pass a double test. The first test is of reliability, being common to all witnesses. The. second test required is that there must be some other independent evidence which corroborates or tends to corroborate the statement of the approver not only with regard to the commission of the offence but also with regard to the connection of the accused with the offence. Same view was taken by the Supreme Court in Jnanendra Nath Ghose Vs. The State of West Bengal, The State counsel could rely only on the alleged recoveries. No recovery of any knife was made from Swaranjit Singh Appellant. He led to the recovery of the wrist watch, about the identification of which the learned Additional Sessions Judge did not feel satisfied. There was no recovery from Gurcharan Singh Appellant either. We are, therefere, left only with the recovery of a knife from Mohinder Singh on 20th of June. Hukarn Singh is the only recovery witness to this, and he, on his own showing, is not a reliable or truthful witness at all. To begin with he denied that he had appeared in any other police case. He had, however, to admit that he had appeared in a number of cases when the names of those cases were put to him. The fact that he had appeared in a number of cases was further established from the evidence of the Magistrate, Mr. Kessar P.W.16. Such a recovery, made long time after the arrest of the accused and in these circumstances, can hardly inspire any confidence or afford any independent corroboration to the statement of the approver connecting the accused with the offence.

In view of the above, therefore, I feel that the evidence on the record does not establish the guilt of the accused beyond all reasonable doubt, and I, consequently, accept this appeal, set aside the sentences and convictions of the Appellants and acquit them.

There is a private revision (Criminal Revision No. 994 of 1961) filed by the complainant. The same will stand dismissed.

Dua, J.

I agree with the conclusion of my learned brother but would like to express my own opinion on the question whether or not it is essential as a matter of law that an approver''s statement must be corroborated by an independent source to sustain the conviction of the accused. The question of the value to be attached to the testimony of an approver is to be considered in the light of the provisions of Section 133 and illustration (b) of Section 114, Indian Evidence Act. Section 114 provides for permissive presumptions as to the existence of facts which the Court thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a given case. Illustration (b) to this section gives an example of an accomplice being unworthy of credit unless corroborated in material particulars. Section - 133 then lays down in express terms that an accomplice is 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 relation between Section 133 which is a rule of law and illustration (b) to Section 114, which, as its language clearly connotes, is merely a rule of prudence, has been the subject of comment and discussion in a fairly large number of decisions. It has been mooted even before the highest tribunal more than once.

In Srinivas Mall Bairoliva etc. v. Emperor A.I.R 1947 P.C. 135, the following observation occurs in paragraph 17 of the report at page 139:

Finally it was urged that reliance had been placed on the uncorroborated evidence of accomplices. Section 133, Evidence Act, expressly provides that an accomplice shall be a competent witness against an accused person'' and that ''a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must, however, vary according to the extent and nature of the complicity: sometimes, as was said by Sir John Beaumount C.J. in Papa Kamalkhan v. Emperor ILR 59 Bom. 486 the accomplice is ''not a willing participant in the offence but a victim of it.'' There is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist." Here, I may reproduce the exact words of Beaumount C.J. in Papa Kamalkhan v. Emperor ILR 59 Bom. 486. Thus spoke the learned Chief Justice:

In my opinion, the rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case like the present, in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is, the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence.

In AIR 1949 257 (Privy Council) the opinion of the Judicial Committee was expressed thus:

Reading these two enactments together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, thefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase ''corroborated in material particulars in Illustration (b) to S. 114.

Here, it is noteworthy that the opinion of the Privy Council in this case was recorded by Sir John Beaumount himself, who was also a party to the earlier decision of 1947 in which his own observations as contained in Papa Kamalkhan v. Emperor4 were approved by the Judicial Committee. The Supreme Court (Fazl Ali and Bose JJ.) also considered this very question in Rameshwar Vs. The State of Rajasthan, , and in the words of Bose J., expressed itself thus:

There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years. AIR 1944 363 (Nagpur) is typical of that point of view. On the other hand, the Privy Council has said in Mohamed Sugal Esa v. The King AIR 1946 P.C 3, at p. 5 that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge, In a jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and injury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.

Bose J. then proceeded to consider the nature and extent of the corroboration required when it is not considered safe to dispense with it and in this connection the learned Judge referred to the lucid exposition by Lord Reading in King v. Baskerville (1916) 2 K.B. 658. Again in the same volume of the report at p. 159 in Kashmira Singh Vs. State of Madhya Pradesh, , a Bench of three Judges (Fazl Ali, B.K. Mukherjee and Bose JJ.) considered the same question. Head-note (a) of this decision is as follows:

The confession of an accused person is not evidence in the ordinary sense of the term as defined is Section 3. It cannot be made the foundation of conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

As regards its use in the corroboration of accomplices and approvers, a co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corrobrate another has repeatedly been pointed out. The danger is in no way lessened when the ''evidence'' is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it.

It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. The tendency to include the innocent with the guilty is peculiarly prevalent in India and it is very difficult for the Court to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused.

The matter again came up before the Supreme Court in Jnanendra Nath Ghose v. The State of West Bengal2, and it is this decision on which the learned Counsel for the Appellant before us placed reliance and actually read out a passage at page 1201 which is a quotation from an earlier decision of the Supreme Court in Sarwan Singh v. State of Punjab1. That passage reads as under:

The appreciation of an approver''s evidence has to satisfy a double test. It must show that he is a reliable witness and that his evidence receives sufficient corroboration 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.

It is, however, noteworthy that in Jnanendra Nath Ghose Vs. The State of West Bengal, the Court distinguished Sarwan Singh Vs. The State of Punjab, and rejected the Appellant''s contention for holding the charge to jury to be vitiated. Now referring to the decision in Sarwan Singh''s case1, it appears to me that that decision is no authority for the proposition enunciated by the Appellant''s counsel that as a mirter of law it is essential to have corroboration of an approver''s testimony and as I read that judgment, the learned Judges there did not seem to intend to depart from or to disapprove the rule laid down in the earlier decisions of the Supreme Court. The rule as laid down there, so far as it goes, is not in conflict with the law as enunciated by the same Court earlier. As observed by the Privy Council in one of the cases already quoted, the law in India is the same as in England and the law there has been stated with great clarity and lucidity by Lord Reading C.J. in Baskerville''s case9 as noticed by the Supreme Court in Rameshwar''s case6, in the latter case after referring to this English decision and after observing that the law in India is exactly the same, Bose J. clarified that for the purposes of this country, offences like those which were the subject-matter in Baskerville''s case9 are tried by a Judge without the aid of Jury. He then proceeded to observe as follows:

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 shows why he considers it safe to convict without corroboration in that particular case. I am of the opinion that the learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corroboration.

In view of the foregoing discussion, as at present advised, I am unable to persuade myself to subscribe to the general proposition advanced by Shri Dara Singh, the learned Counsel for the Appellant, that even if the approver is considered to be a very trustworty witness-on whom it is safe to place implicit reliance, and even if after giving full weight to the rule of caution or prudence based on illustration (b) of Section 114, Indian Evidence Act, which has virtually hardened into a rule of law, that it is unsafe to base a conviction on the uncorroborated testimony of an approver, the Court considers it safe enough, for reasons given by it, to act upon the uncorroborated testimony of the approver in the special circumstances of a given case, the rule of caution or prudence mentioned above would in law stand in its way to do so. This, in my opinion, would virtually have the effect of obliterating Section 133, Indian Evidence Act, from the statute, which as at present advised, and I speak with respect, I am not persuaded to hold. A close scrutiny of the judgment prepared by Lord Reading C.J. in Baskerville''s case9 also does not seem to me to support this broad proposition and the Supreme Court decisions discussed above too do not rule out departure from this rule of prudence in a fit case for the special reasons given by the Court. Without quoting many passages from Lord Reading''s judgment. I may just refer to a passage at pages 668 and 669 of King v. Baskerville (1916) 2 K.B. 658 ;-

The Court there said that it was the practice of this Court to require corroboration before it could allow a conviction to stand. We did not intend to lay down such a rule of practice. It is too strongly expressed and is too general a statement ; the correct view is that laid down earlier in the present judgment.

That cases in which corroboration may not be insisted on may be rare-- and I dare say they are very rare--does not by itself militate against the legal proposition just stated.

Without pursuing the matter any further, so far as the instant case goes, the approver in question is not such a trustworthy witness, whose testimony can be safely relied upon without corroboration connecting or intending to connect the accused with the crime.

With these observations, I would agree with the final conclusion of my learned brother that Criminal Appeal No. 477 of 1961 should be allowed and Criminal Revision No. 994 of 1961 dismissed.