http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: CHANDAN & OM PRAKASH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT12/01/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHARMA, L.M. (J)

CITATION:  1988 AIR  599            1988 SCR  (2) 599  1988 SCC  (1) 696        JT 1988 (1)   141  1988 SCALE  (1)29

ACT:      Indian Evidence  Act, 1872: Ss. 114(6) and 133-Evidence of   accomplice-Corroboration   by   independent   evidence- Necessity for.

HEADNOTE: %      Five persons  were tried for the murder of a widow, out of which  one turned  approver. There was no direct evidence in the  case. The  only evidence  was the  evidence  of  the approver  and  the  other  evidence  regarding  recovery  of articles by three witnesses.      The  trial   court  discarded   the  testimony  of  two witnesses  who  had  identified  some  articles.  The  third witness, the  son of the deceased and who had identified the articles was  not examined at the trial. The court, however, convicted all  the accused persons under s. 302 read with s. 34 lPC.      The High  Court  maintained  the  conviction  of  three persons on  the finding  that the evidence of identification was sufficient to corroborate the testimony of the approver.      In the  appeals by special leave by two of the accused, it was  contended for the State that although the son of the deceased  had  not  been  examined  at  the  trial,  he  had identified  articles   at  the   test  identification   and, therefore, that  evidence was  sufficient to corroborate the testimony of the accomplice.      Allowing the appeals, ^      HELD: It  is established as a rule of prudence that the testimony of  an 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. [603A-B]      Haroon Haji  Abdulla v.  State of Maharashtra, [1968] 2 SCR 641  and Ravinder  Singh v.  State of  Haryana, [1975] 3 SCR 453. referred to.      In the  instant case,  the evidence  of the  son of the deceased could 600 not be looked into because (i) what he identified and stated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

to the  Magistrate, who conducted the identification parade, was only  a hearsay evidence and 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 was not subjected to  cross-examination and  was at  the back of the accused. Further,  there is  nothing about identification or anything to  connect the 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.  It  could  not, therefore, be used as evidence against the accused. [604C-D]      The only  evidence against  the accused was that of the approver. He  has claimed  to be a spectator at every moment but has  not participated  at any  stage. Apart from it, the initial story  appears also  to be  absolutely unnatural, as according to  him he  did not  know anyone  of  the  accused persons but  a month  before the incident they took him into confidence and  told him  to join  them. The evidence of the witnesses as  a whole  does not appear to be natural version and is  not such  which inspires confidence. Moreover, there was  no   corroboration  at  all  from  another  independent circumstance or  source of  evidence. The  conviction of the appellant, therefore, could not be maintained. [604F-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 106- 107 of 1986.                               WITH      (Criminal Appeal Nos. 166-67/1986).      From the  Judgment and order dated 5.9.1985 of the High Court of  Rajasthan in  D.B. Appeal  No. 126/77 and Criminal Appeal Nos. 98 and 99 of 1977.      R.L. Kohli, Uma Dutt and R.C. Kohli for the Appellant.      B.D. Sharma  and M.I.  Khan Additional Advocate General for the Respondent.      The Judgment of the Court was delivered by      OZA, J.  These two  appeals arise out of the conviction of these  two appellants alongwith one another under Section 302 read  with Section  34 and sentenced to imprisonment for life and  fine of Rs. 100 each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhunu dated 601 29th January  1977. Alongwith  these two  appellants Chandan and Om  Prakash one  Babulal  son  of  Onkar  Mal  was  also convicted but  we have  no appeal  before us  on  behalf  of Babulal.      The prosecution  case was that Smt. Dhaka widow of Shri Hanuman Prasad  and mother of Shri Gyarsi Lal was living all alone in  her house  (Haveli) at Ward No. 1, Khetadi. In the morning of  23rd August,  1975 a  person engaged for grazing the goats  in jungle  went to  Smt. Dhaka’s house for taking her goats  for grazing  and called Smt. Dhaka but he did not get any  response. P.W. 2 Smt. Banarsi who was living in the vicinity came  on the  spot and  alongwith the  Goatmen went inside the Haveli. They found goods scattered here and there and even  when they  loudly called  Smt. Dhaka  they did not hear any  reply. P.W.  1 Matadeen  who was  feeding  pigeons nearby was informed by Smt. Banarsi that Smt. Dhaka normally used to  get up  early but it appears that she had not woken up by  that time  and therefore  expressed surprise. On this Matadeen went  inside the house, reached the upper floor and found all the rooms opened and plenty of goods of Smt. Dhaka lying scattered.  There he saw Smt. Dhaka Iying on a cot and found that she was wounded and bleeding at number of places.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

Shri Matadeen,  then went to the Police Station, Khetadi and submitted his  report Ex.  P. 1.  The Station  House officer Surindra Singh reached the spot, prepared a memo and carried out the  investigation. On 3rd September, 1975 one Mam Chand was arrested  as an  accused. Another  accused  Babulal  was arrested  on   5th  September   and  the  acquitted  accused Laxmikant  was   arrested  on  7th  September  and  the  two appellants in  this  appeal  Om  Prakash  and  Chandan  were arrested on  11th  September,  1975.  Mam  Chand  later  was granted pardon  and has been examined as an approver in this case. On  trial the learned Sessions Judge convicted all the accused persons  and on  appeal the High Court acquitted the accused Laxmikant  but maintained the conviction against the three and  aggrieved by  the judgment  of the High Court the present appeal  on special leave has been filed before us by the two appellants mentioned above.      It is  not in  dispute that there is no direct evidence in this  case. The  only evidence  is the  evidence  of  the approver Mam  Chand and other evidence regarding recovery of articles. Learned  counsel for  the appellant contended that certain articles  were  recovered  at  the  instance  of  Om Prakash  and   were  put  up  for  test  identification  and according to  the evidence  of the test identification these articles that were put up for identification, four witnesses were supposed  to identify.  Four witnesses appeared at test identification but three appeared in the 602 Court at  trial. Out  of these  four  witnesses,  the  first witness did  not identify  any article.  The  two  witnesses Rameshwar and  Phool Chand, P.Ws 13 and 14 did identify some articles.  Their   evidence  after  consideration  has  been rejected by  the trial  court  and  the  other  witness  who identified the articles was Gyarsi Lal who happens to be the son of  deceased, for  the reasons  best known, has not been examined at  the trial at all and it was therefore contended by the  learned counsel  that so  far as  the  recovery  and identification  of   articles  are   concerned  no   article recovered has been identified to be that of the deceased and therefore  this   evidence  of   recovery  in   absence   of identification is  not at  all relevant for the prosecution. He therefore  contended that  as  it  is  settled  law  that accomplice’s evidence  if it  inspires confidence  could  be used  to  convict  the  accused  person  only  if  there  is independent corroboration  which could  connect the  accused with the  crime and  it was  contended that this evidence of recovery and  identification was supposed to be the evidence connecting the  accused with the crime and corroborating the testimony of the approver but the learned Judges of the High Court did  not consider  this aspect  of the matter that the two  witnesses   who  had  identified  some  articles  their testimony has been discarded by the trial court and the High Court has  not come  to the  conclusion that the trial court was not right in rejecting their testimony but superficially held that  the evidence  of identification  is sufficient to corroborate the  testimony of  the  approver.  It  was  also contended that  even the  reading of  the testimony  of  the approver shows  that he  has tried  to keep himself away and the manner  in which he has described the whole incident and the way  in which  he was taken into confidence by the other accused persons  make his  testimony unnatural and therefore could not  be accepted. Learned counsel also placed reliance on certain  decisions  of  this  Court  where  the  rule  of prudence about  the testimony  of the  accomplice  has  been repeatedly stated.      Learned counsel  appearing for  the State  of Rajasthan

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

admitted that  so far  as  the  identification  evidence  is concerned, the  most important  witness Gyarsi  Lal has  not been examined  at the  trial and  the  other  two  who  were examined, their testimony has been rejected but he attempted to contend that although Gyarsi Lal has not been examined in evidence at  the trial  but in  test identification  he  had identified  articles   and  therefore   that   evidence   is sufficient to  corroborate the  testimony of the accomplice. He however  did  not  challenge  the  proposition  that  the conviction could  not be maintained on the sole testimony of the accomplice unless it is corroborated by some independent evidence connecting the accused with the crime. 603      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.  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           crime". Similarly in  Ravinder Singh  v. 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  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. 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. " 604 In this  decision the  first test  indicated is  that if the story given  out by  the accomplice appears intrinsically to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.      It is  not disputed  that except  this we are left with the only  evidence of  the approver  Mam Chand. His evidence has been  read by  the counsel for the parties before us and his evidence  clearly indicates  that he  has  attempted  to suggest that  he did  nothing. Neither  he  stated  that  he participated in  looting nor  in injuring  or attacking  the deceased. Reading  through his  evidence  clearly  indicates that he  has claimed  to be  a spectator at every moment but has not participated at any stage. Apart from it the initial story appears  also to  be absolutely unnatural as according to him,  he did not know anyone of these accused persons but a month  before the  incident they  took him into confidence and told him to join them. After reading the evidence of the witnesses as  a whole  apparently the  impression created is that the  version does  not appear to be natural version. In this view  of the  matter, in  our opinion, the testimony is not such  which inspires  confidence. Apart from it as there is no  corroboration  at  all  from  any  other  independent circumstance or  source of evidence therefore the conviction of the  appellants could  not be  maintained. It  is  rather unfortunate that  the appeal has come up for hearing after a long time and ultimately it is found that 605 there is  no evidence to sustain the conviction. The appeals are there-  A fore  allowed.  The  sentence  and  conviction passed  against   both  the   accused  are  set  aside.  The appellants shall be set at liberty forthwith. P.S.S. P.S.S.                                      Appeals allowed. 606