Rehman Wagay, Ali Wagay, Sattar Wagay vs State

Mir, J.

(1) This appeal has been filed by Rehman Wagay, Ali Wagay and Sattar Wagay against their conviction u/s 302,396, 120 B R P. C. and for

having been sentenced to life imprisonment by the Sessions Judge, Anantnag.

(2) The facts of the case, alleged by the prosecution are : that in the night falling between 31,3,1973 and 1. 4 1973 two persons, namely, Ragow

Kaul and Shabawati were murdered in their house situated in the village Ramnagri, Shopian, and burglary was committed in the house. It is alleged

that one Beja Wazir who was some time back a household servant of Ragow Kaul and his deceased brother's wife, Smt. Shobawati, entered into

a conspiracy with the appellants herein and the approver Jabar Dar for committing burglary in the house and for murdering the two persons who

lived in the house. It is alleged that it was PW 8, Gani Rather, who early in the morning on 1, 4, 73 went to the house of Ragow Kaul to purchase

alsi"", when he found a window of the house half open and through that half open window he saw Ragow Kaul lying on bed groaning with pain. He

also saw a woman in the bed as if in sleep. Gani Rather immediately thereafter meets PW 7, Dwarka Nath, near the village and narrates to him

what he had seen. Upon this almost all the Pandith Baradari of the village collected in the compound of the deceased Ragow Koul. Two

Lambardars, Wall Mohd and Mustafa and Chowkidar, Gulla Ganai, were sent for and when they came on spot they went inside and found that

Soba Wati was already dead but Ragow Koul was still breathing. The Police was informed. They came on spot along with a Doctor. The Doctor

declared that Mst. Shoba wati had already died and Ragow Kpul who was given some emergency treatment failed to respond to the medical aid

and he also breathed his last. Postmortem of the dead bodies was conducted on spot. All the belongings of the deceased persons were seized by

the police. According to the prosecution story, the police found on spot two shoe imprints which were covered by them and the mounds of the

same were taken on 3rd April, 1973, The Police started investigation but found no clue for about a year and four months. It is alleged that one

Rustum Galwan was under interrogation in another murder case registered in the Police Station Pulwama. He, it is alleged informed the police there

that the appellants and the approver were responsible for the crime committed at Ramnagri. This information was allegedly given by Rustam

Galwan on 21574. The police, therefore, immediately set itself to action and the three accused persons and approver were arrested from the forest

on 24874 It is alleged that on 9. x 74 one of the accused namely, Jabbar Dar, applied from the Central Jail that he would make a truthful

disclosure of the facts that led to the crime committed at Rsmnagri. The S. P. Anantnag applied for pardon being granted to him which was granted

and the confessional statement of Jabbar Dar was recorded on 26X74. The challan was produced in the court of law.

(3) The prosecution had named 43 witnesses in the challan but ultimately examined only 24 of them The rest were either given up or not produced.

The accused have not examined any witness in defence.

(4) The charge framed against each of the accused was that they alongwith the approver on the night of occurrence effected their entry through a

window into the house of the deceased with common intention and object to murder the inmates of the house and steal the cash, the ornaments and

documents. The accused therefore, have been charged as well as convicted u/ss 302, 396, 120 B R. P. C. As they pleaded before the Sessions

Judge that they were not guilty and claimed to be tried, the prosecution was directed to lead the evidence.

(5) The most important statement on recorded was that of the approver, Jabbar Dar, According to his statement he took part at all stages of the

crime, According to him, Bejard Wazir, the exservant of the deceased, met him in a fare and while he was having a talk with him. Bejard Wazir

inquired about the ad dress of his house, Five or six days thereafter Bejard Wazir came to the house of the approver and told him that a good

amount of money also would be available if burglary was committed at the house of the deceased. The approver, however, did not agree with

Bejard Wazir at that time but Bejard Wazir again called upon him and this time the approver called All Wagay to his house and Bejard Wazir

made the proposal again to them. AH Wagay told him that he has a cousin, who lived in village Wathu, and was an expert in the job. All the three

agreed to pay a visit to Wathu in this regard and the approver alongwith Ali Wagay and Bejard Wazir left for Wathu and met Rehman Wagay and

Sattar Wagay there. All of them agreed that the burglary shall be committed and one of the appellants, Rehman Wagay proposed that in case the

inmates of the house raised any noise they should be done to death. On the following day they met again in the house of Rehman Wagay and

agreed to meet on the following day. On that day they met again, took their meals and left for Ramnagri dividing the party into three groups;

Rehman Wagay and Bejard Wazir formed one group and Jabbar and Sattar Wagay another, and AH Wagay followed them. They reached the

house of the deceased but were unable to open the front door. They however, effected their entry through a window. They went upstaits where

Ragow Kaul was asleep. Bejard Wazir sat on his chest and made him unconscious. They made a search of the room but found no money there, so

they came downstairs to the room where Shoba Wati was sleeping. They kept Ali Waqayto keep vigil over the movements of Ragow Kaul and to

se"" whether he was really unconscious or was only pretending to b"" so. The room where Shobawati was sleeping was broken open and entered

into by the rest of the accused. Bejard Wazir gagged the mouth of Shobawati and put a piece of cloth into her mouth. Rehman Wag ay helped him

in pushing the piece of cloth with the help of an iron bar down into Panditani's throat. Shobawati died immediately thereafter. Bejard Wazir

searched for keys and found two of them and asked the approver to light the lantern for light One box was opened wherefrom cash and

documents in white bag were recovered which articles were put into his pheron by Rehman Wagay. A second trunk was opened from where some

cash in a maroon coloured bag was recovered. This bag also was put by Rehman Wagay into his pheron. The third trunk was opened by Rehman

Wagay with iron bar, wherefrom they got another bag containing silver coins and golden air ring golden bangles and some silver ornaments. These

articles were also put by Rehman Wagay into his pheron A fourth box was alse opened by Rehman but nothing was found therein, When these

proceedings were on, AH Wagay, shouted from upstairs that Ragow Koul had got up and was trying to come downstairs with the support of the

walls Ali. Wagay himself at this stage tried to run away from the spot, but Rehman Wagay threatened him that if he would run away he would kill

him. After this Rehman Wagay caught hold of one leg of Ragow Koul while the other was caught by Bejard Wazir. They dragged him down the

stairs to the room where grass and other such like things had been stored They both Rehman Wagay and Bejard Wazir trampled over the body of

Ragow Koul and made him unconscious till they thought his pulse stopped to move. They also struck him against the bricks of the floor. From that

room they dragged him to the room where Shoba Wati was already lying dead and put Ragow Koul in her bed and said that when in the morning

people would come to the house they would see both of them in one bed and would surely draw the conclusion that both of them were immoral

persons. After having finished their work they came out of the house from the same window from which they had entered into it. Sattar Wagay

accused had been posted outside the house to watch that no body else enters the house The approver has further stated that ht was wearing a

shoe with nails and stars. The wholt loot, according to the approver, was carried by Rehman Wagay to his place and all of them reached his house

just at dawn and took tea in the house of Rehman Wagay. In the room they counted tht cash and found Rs. 15000/ and silver coins, a golden ring,

a golden bangle and a golden Hanzra. They first divided the silver coins. Every one of them got 11 silver coins each. They then divided the cash

and each of them got Rs. 300000. The silver Hanzure was taken by Bejard Wazir. Bar rings were taken by Rehman Wagay. The golden bangle

was given to the approver. As it was supposed that the golden bangle cost much more, therefore, the approver had to pay Rs. 200/ to others on

this account All of them wrapped the cash and coins in the papers and documents, stolen from the house of the deceased. All of them promised to

each other not to divulge the secret or to accept the responsibility in any case whatsoever. All of them thereupon dispersed. After a few days,

Sattar Wagay informed the approver that Rehman has been taken into custody by the Police. Two months thereafter Rehman Wagay himself came

to the approver and told him that for two months he was detained by the police and subjected to torture but did not divulge anything to the police.

Rehman Wagay demanded some money from the approver which he gave to him and also asked him to collect Rs 600/ from Ali Wagay which

was also done. The approver thereafter left for Punjab and during the spring on his return Rehman Wagay again called upon him and told him that

Rustam Galwan had been arrested in connection with Mazahama murder case and that he had told the police that the murder of the Pandit and

Panditani and the plunder had been committed by him and others. Rehman Wagay also told the approver that it was he who had some time back

divulged the secret to Rustam Galwan. Rehman Wagay therefore, asked the approver to go into hiding. So they went into the forest to evade

arrest The police came to their village but as they were not there, they left empty handed. According to the approver, he and the others confined

themselves in a jungle for about 4 months but ultimately, they were arrested by a police party and taken to the police station Shopian. They were

kept in separate rooms and the police subjected him to torture and when it exceeded the tolerable limits he was forced to narrate the whole story

to the police and also told them that he was having some cash out of the stolen property. He also told the police that the silver coins were lying with

him. The police recorded his statement. The police searched his house and recovered Rs. 342/ and 5 silver coins from a trunk there. A seizure

memo was prepared. Then in police station Shopian he made yet another disclosure statement with regard to the bangles which he had sold to a

goldsmith. Police went to the goldsmith and recovered the golden bangle from him. The approver further state that his shoe EXPW 1/C was also

seized by the police and he admitted before the police, that he was putting on the same shoe on the day of occurrence. He also informed the police

that at the time of occurrance Rehman Wagay was using plastic shoes. Ali Wagay had put on a duckback rubber shoe with buttons. Sattar Wagay

was putting on a plastic shoe with laces. Bejard Wazir was also using a plastic shoe. After these disclosure statement and recoveries, they were

sent to Central Jail Srinagar. He met a Havaldar there and told him that he would like to make a truthful statement of the occurrence. He got an

application written by the constable to this effect as a result of which he was produced in the court of Judicial Magistrate, Dooru, where he made a

confessional statement. Thereafter his another statement was recorded by C. J. M. Anantnag. His confessional statement is marked EXPW 1/6.

He had purchased the shoe in Amritsar during the year 197273. In crossexamination he admitted that Mr. Zarger Inspector of Police who

investigated the case and Mohd Ibrahim Constable were present in the court premises on the day he was being examined in the court. His house

was searched, first and thereafter he was produced before the Magistrate. It was further stated by him that when they reached the compound of

the deceased their shoes had become wet because of rain, and under the circumstances he agreed that they must have left foot prints in the sagzars

through which they passed and also in the rooms or Regow Koul. He has stated next that he did not know that it was an offence to commit theft.

Had he known it he would not have accompanied Bejard Wazir. As he was afraid of Rehman Wagay, he did not inform the Police. He deposed

further that when they left for hiding place in Jungle none of them took any rice or any other kind of eatables with them, nor they carried any

beddings. He has denied that he remained in the police custody for about 21/2 months before he consented to make a statement as the police

wanted him to make. He was taken into custody on 24 8. 1974. One of them used to visit his house at night and fetch as much food as possible.

According to him Gulla Wani also had been arrested.

(6) (Note : The Court then briefly reproduced the statements of prosecution witnessesEd)

(7) The argument of the learned counsel for both the side w re heard at length.

(8) The main piece of evidence in the prosecution case consists apparently in that of the statement of the approver, Jabbar Dar. Under Section 103

of the Evidence Act, an approver is a competent witness against an accused person and conviction would not be illegal merely because it proceeds

upon an uncorroborated testimony of the accomplice It was therefore, evident that an accomplice was a competent witness. But u/s 115 (b) of the

Evidence Act, it is laid down that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars

of his testimony It is therefore obvious that Illustration (b) to Sec. 114 and the rule laid down in Sec: 133 of the Evidence Act are matters dealing

with one and the same subject and neither could be excluded in the exercise of judicial discretion except of course, in cases of very exceptional

nature. Though the evidence of an accomplice is admissible against a coaccused, his testimony as a rule of caution is regarded and considered with

distrust: and fullest corroboration by means to independent and reliable evidence whether direct or circumstantial, in material particulars, is required

for a conviction to be based on the approver's testimony, The law in this regard in this country is not different from the law in England, It has been

laid down in a number of cases by various High Courts in India and the Supreme Court as well, that a conviction based on an uncorroborated

testimony of an accomplice is not illegal But it has been also laid down that experience has shown that it was not safe to rely upon the evidence of

an accomplice unless it was corroborated in at least some of the material particulars. In AIR: 1936: Rangoon; 110 Roberts Chief Justice, has

observed as follows :

The rule of law says that an accomplice is competent to give evidence, and the rule of practice says that it is almost always unsafe to convict upon

this testimony alone. But the rule of law to this extent triumphs over the rule of practice and if special circumstances exist which render it safe in an

exceptional case to act upon the uncorroborated testimony of an accomplice and upon that alone the Court will not merely for the reasons that the

conviction proceeds upon such uncorroborated testimony, say that the conviction is illegal.

(9) The Supreme Court in AIR : SC : 599 having referred to the observations of Martin, Judge, and another Judge of the Privy Council had an

occasion to observe as follows :

The combined effect of Sec, 133 and 144 Illustration (B) 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 later which is the rule of practice, it is almost always unsafe to convict upon his

testimony alone. Therefore, 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. The evidence in corroboration need not

always be direct, it may be even circumstantial but the corroboration must be reliable and independent.

(10) At the same time the rule also appears to be that if a court is satisfied that the approver is speaking truth in some material part of his testimony

jn which he is supported by unambiguous evidence, there may be a reasonable ground for believing that the approver was also speaking truth so

for as other parts of his testimony were concerned. On a review of most of the English cases, the Supreme Court in AIR : 1968 : SC : 832 has laid

as follows :

The conviction upon uncorroborated evidence of one or more accomplice is valid in law but the danger of relying on the uncorroborated evidence

of accomplice is very great, and Judges and Juries ought not to pay any respect to the testimony of an accomplice, unless he is corroborated not

only as to the circumstances of the crime but also as to the person of the approver.

(11) It is now fully recognised to be an established practice equivalent to a rule of law to require corroboration of the evidence of an accomplice

by independent evidence on some material particulars relating to the offence itself and also implicating the accused.

In AIR: 1979: SC : 1761, it has been laid down that ""the law was well settled that the court looks with some amount of suspicion upon the

evidence of an accomplice witness which is a tented evidence and even S. 133 of the Evidence Act clearly provides that the evidence of an

accomplice witness should not be accepted unless corroborated.

The Supreme Court has further laid down as follows:

At the same time it must be remembered that corroboration must be in respect of material particulars and not with respect to each and every item,

however, minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for

satisfying the test of reliability of an approver, and has now been crystallised into a rule of law. It is equally well settled that one tainted evidence

cannot corroborate another tainted evidence because if it is allowed to be done then the very necessity of corroboration is frustrated.

(12) On the settled principals of law it be comes therefore, necessary to search for, in this case, the corroboration either direct or circumstantial to

the testimony given by the approver. Corroboration that may be reasonably acquired must by with regard to at least some material particulars

narrated by the approver in his testimony. That brings us to the point to find as to what were the important particulars referred to in deposition of

the approver so far as this case was concerned. To me it appears that the first material particular in the testimony was, the meeting of the approver

and Bejard Wazir at the fair : the second was, their meeting with the rest of the accused where a conspiracy was hatched by all of them to commit

the theft and if necessary ; murder of the deceased. The third important and material factor was, their entry into and the exit from the house of the

deceased and the beating there of Ragow Kaul and murder of Shobawati by putting a lloi (Chadder) in her mouth so as to suffocate her to death.

Next, the foot prints allegedly found by the police in the room of the deceased too are material particulars. On search of the houses of the

approver and some of the accused, it is alleged that documents, receipts, and prescriptions concerning Ragow Raul the deceased were recovered.

These also were important and material pieces of circumstantial evidence referred to in the testimony of the approver.

(13) At the very out set it may be said that besides the statement of the approver, there was no direct or circumstantial evidence with regard to the

conspiracy entered into by the accused persons and the approver for murder, and plunder of, the house of the deceased ; nor there was any

evidence of their entry into the house of the deceased or they having beaten and having murdered them. No doubt, the prosecution have led

evidence with regards the foot imprints allegedly left behind by the accused persons in the room of the deceased. The police have allegedly taken

pictures and then through an Expert got prepared the mouldes of these foot imprints and have also sent the same alongwith the shoes allegedly

worn by the accused at the time of their apprehension to an expert for comparison, opinion and report. In the first instance, the very fact of the

alleged foot imprints left on the floor of the room by the accused becomes doubtful inasmuch as it was in the evidence of the prosecution itself that

a large number of people entered the room and verandah immediately after the occurrence was discovered. It is under the circumstances doubtful

whether the foot imprints allegedly left behind by the accused in the room were in fact, and in reality the foot imprints left behind by them there.

Moreover the accused have been apprehended after about 18 months of the occurrence. There is no evidence to show that the accused were

putting on the same shoes on the date of occurrence, nor there is any evidence to show that the accused made no use of these shoes during the

period between the occurrence and their arrest. Further, there was no evidence to show that the shoes worn by the accused were of some special

type which they alone possessed. It may not be unusual to presume that if the accused had been using the shoes for about 18 months after the

occurrence, the foot imprints, left behind allegedly by them, would not continue to be the same as those found on the shoes at the time of their

arrest. The Expert has not considered this question. There is one more factor which indicates that that shoes seized from the accused and the

approver at the time of their apprehension may not really have belonged to them. The seizure memos : of the shoes indicate that only one person,

Gulla Ganai Chowkidar, was present at the time the shoes came to be seized by the Police, who, however, has stated in the first instance that the

accused themselves presented these shoes to the officer investigating the case, while in the crossexamination he deposed that he was not sure that

these shoes belonged to the approver and the accused. It was the Head Constable who had told him so, as otherwise it was not in his presence

that the shoes were removed from the person of the accused or the approver, The evidence led on this important circumstance appearing in the

case against the accused dose not wholeheartedly and convincingly support the case of the prosecution. On having given careful thought to this

aspect of the case I am of the view that it is not unmistakably and beyond reasonable doubt established that the accused were using these at the

time of occurrence and also that the same were seized from them at the time of their apprehension.

(14) From search of the house of the accused and the approver some silver coins have been recovered. It could not be reasonably said that these

silver coins could only belong to the deceased. Silver coins were common things and may be found in any house. The only relevant article allegedly

recovered on search from some of the houses of the accused and the approver are some documents executed in favour of Ragow Kaul,

prescription in the name of Ragow Kaul and the receipt issued by the Secretary, Hindu Action Committee for Rs. 10/in favour of the deceased.

May be these articles as alleged were recovered from the houses of the accused and the approver but the question that arises is as to why and for

what purposes the accused and the approver had been careful enough to keep these incriminating documents in their possession even after 18

months of the occurrence. May be all criminals are not as to destroy incriminating evidence against them, yet a lapse of time between the

occurrence and the search of the houses puts a shadow of doubt around the whole episode. There is a particular set of witnesses who have

accompanied the police in such searches, neighbours have been singularly excluded, Though it was not the case of the accused, yet there was

nothing unlikely to suggest that the incriminating documents might have been planted in the houses to connect the accused with the crime. I,

therefore feel it would be too hazardous to connect the accused with the crime on such doubtful piece of evidence. Moreover, there is no evidence

to show that the recovery of such documents was effected from the places which were in actual possession of the accused or the approver Under

section 114 Evidence Act, no presumption can be founded on the fact that the property was found in a house occupied by the accused and also by

others. To raise the presumption u/s 114of the Evidence Act it must be proved as fact that the possession of the place from where the articles were

recovered was that of the accused and that too the same was exclusive.

(15) It was thus obvious that the testimony of the approver has not been corroborated by any reliable, direct or circumstantial evidence in material

particulars and therefore, following the settled rule of law and practice it would be hazardous torely on such an uncorroborated testimony of the

approver. With regard to various important particulars the evidence led by the prosecution was either unreliable or doubtful.

(16) Under the circumstances it would not be possible to hold that the accused appellant had committed the murder of the deceased and

plundered the house. The whole matter appears to be doubtful. The benefit of the doubt is therefore, given to the accused, and as such I set aside

their sentence and conviction ordered by the Sessions Judge Anantnag and direct that they be released from the prison immediately after

performing necessary formalities.

(17) The article and cash and articles of gold etc. seized in the case shall be escheated to the State as none of the accused has claimed the

property as his own, nor the prosecution has claimed that there was any legal heir to the property recovered. However, if there was any legal heir,

he may peruse the matter further in a civil court of competent jurisdiction and till the period of limitation for thispurpose does not expire, the

prosecution shall not take any further action with regards the seized property and shall keep the same in proper custody.

(18) Under the circumstances mentioned above the reference for confirmation made by the Sessions Judge Anantnag is also rejected,