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PETITIONER: CHHI RAM

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 02/09/1966

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR  792            1967 SCR  (1) 243  CITATOR INFO :  RF         1970 SC1330  (13)

ACT: Indian Evidence Act, 1872 (1 of 1872), ss. 133 and 114  ill. (b)--Evidence of approver-Tests for.

HEADNOTE: The appellant was convicted of murder by the Sessions  Judge mainly on the evidence of the approver.  The High Court,  in appeal  did  not consider it safe to rely on a part  of  the approver’s evidence which related to an earlier incident but found   that  his  main  story  was  reliable  as  well   as corroborated  by  other  evidence.  The  conviction  of  the appellant  was  upheld.   In appeal  before  this  Court  by special leave, the appellant contended that the double  test for the approver’s evidence laid down in Sarwan Singh’s case had not been correctly applied by the courts below. HELD  : The first test laid down in Sarwan Singh’s  case  is that the approver’s evidence must show that he is a reliable witness,  and  that  is  a  test  which  is  common  to  all witnesses.   The test obviously means that the court  should find  that  there is nothing inherently  improbable  in  the evidence given by the approver and that there is no  finding that the approver had given false evidence.  The second test which thereafter still remains to be applied in the case  of an approver, and which is not always necessary when  judging the  evidence of other witnesses, is that his evidence  must receive sufficient corroboration. [247 H] In  the  present  case  the High Court  had  held  that  the evidence  of The approver was reliable and was  corroborated on  material particulars by good prosecution  witnesses  who had  been  believed by the Court.  There  was  therefore  no error  in  the judgment of the High Court in  upholding  the conviction  of the appellant.  The fact that the High  Court did not accept the evidence of the approver relating to  the earlier  incident  did  not mean that  the  Court  hold  the approver to be an unreliable or untruthful witness.  What it did  was to act on the principle of valuing the evidence  of the approver with caution and not accepting it unless it was corroborated at least in some material particulars. [246 D] Sarwan  Singh  v.  State  of  Rajasthan  (19571  S.C.R.  923

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explained and applied.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 177 of 1964. Appeal  by special leave from the judgment and  order  dated March  30, 1964 of the Punjab High Court in Criminal  Appeal No. 85 of 1963. B.   K. Bannerjee AND N. N. Keswani, for the appellant. B.   K. Khanna AND R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The appellant, Lachhi Ram, has come up to  this Court  in this appeal by special leave against the  judgment of  the High Court, of Punjab upholding the  conviction  and sentence of 244 imprisonment for life awarded to him under section 302  read with  sections 109 and II 5 of the Indian Penal Code by  the Additional Sessions Judge of Gurgaon.  Both the courts below have,  on  the  consideration of  evidence,  held  that  the appellant  had enmity with the complainant, Devi  Ram,  even though  they were collaterals in the third or fourth  degree and  their wives were sisters.  There was a dispute  between them about payment of compensation of some land, and on July 28,  1958,  the appellant had sent a post-card to  Devi  Ram inquiring  why he was delaying the payment of  compensation, asking  him to act intelligently and sensibly,  and  telling him  that  it was not good to forcibly usurp  the  share  of ,others.   Then,  about six months  before  the  occurrence, which  was the subject-matter of the charge,  the  appellant and  his  brother Chet Ram visited Devi Ram in  his  village Tigaon and made a demand in respect of the property,  adding a threat that otherwise he would have to pay heavily for the same.   On January 27, 1962, when Devi Ram came back to  his house in the evening, his wife told him that a friend of his from Rewari had sent some laddoos, peras and bananas through a  person  who  had given his name  as  Partap  Singh.   She further told him that Partap Singh had informed her that the letter  which he was asked to give with the sweets had  been lost on the way.  Devi Ram’s wife described that  youngster, Partap Singh.  Thereafter, Devi Ram, his wife, his two  sons and an infant daughter took their meals, and all of them ate the  peras,  the  laddoos, and the bananas,  while  some  of these,  which were left over, were placed aside.  At  night, the  infant  daughter  started vomiting  and  passing  loose motions,  and this was followed by vomiting and  passing  of loose motions by all the other members of the family.   Devi Ram  sent for the village Vaid, Mohinder Singh, who came  at about  4  a.m.  and gave some medicine  with  tea;  but  the condition of all the members of the family did not  improve. The local doctor, Rajinder Singh, was then sent for, but  by the time he arrived, the infant daughter, Padam Wati,  died. The  doctor  removed all the persons to his  dispensary  and from  there  sent  them to a hospital  in  Faridabad  in  an ambulance.   Devi Ram’s wife was removed from  Faridabad  to Irwin  Hospital,  Delhi,  but  she also  died  on  the  29th January,  1962.  Devi Ram himself, however, recovered.   The matter  was  brought  to the notice of  the  Police  and  on investigation,  one Himmat Singh, who turned  the  approver, was  arrested.  Himmat Singh then related the story  on  the basis of which the appellant has been convicted. According to Himmat Singh, after he passed his Matriculation Examination  in 1955, he remained in the employment of  some

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wine  ,contractors  in Ludhiana and later he took  to  motor driving  for which he obtained a licence in 1958.  Then,  he was looking for a job when he came to Gurgaon, where he used to  take his meals in the hotel of One Arjan Singh.  He  got acquainted with the appe- 245 llant  in that hotel as the appellant had his shop  opposite to it.  The appellant was nice to him and arranged to get  a house for him at a monthly rental of Rs. 9/-.  The appellant also  started  paying his rent and expenses for  the  meals. Thereafter,  the appellant took him in his confidence,  told him  that  he wanted to get Devi Ram murdered,  and  offered money  if  the  approver helped  him  in  accomplishing  his purpose.- The approver agreed.  In pursuance of this  agree- ment,  the approver once tried to kill Devi Ram by  shooting him  with  a  pistol which he had  obtained  in  an  illicit manner, but failed, After this failure, the appellant worked out  this plan of buying sweetmeats in which arsenic was  to be mixed.  On the 25th January, 1962, the appellant told the approver  that he had made all arrangements and promised  to pay  him Rs. 800/- if the approver did the job  assigned  to him.   On  the  morning  of  the  27th  January,  1962,  the appellant,  accompanied by the approver, went and  purchased one seer of Laddoos and half a seer of Khoa from the shop of Dal  Chand,  and sugar was purchased from the  shop  of  one Jodha Ram.  One dozen of bananas were also purchased from  a rehriwala.  The appellant had already procured white arsenic and  he  mixed  it in the khoa and the sugar  which  he  had purchased,  and  prepared peras with  it.   Thereafter,  the appellant gave to the approver two bags containing the peras and  the luddoos, and separately gave the bananas.  He  paid Rs.  150/-  in  cash  and promised to  pay  the  balance  on conclusion of the errand.  The approver then took a bus  for Tigaon and delivered the sweets and the bananas to Devi  Ram wife.  Subsequently, when the approver asked for the balance of  the  money,  it was not paid to him,  because  Devi  Ram survived and the appellant went back on the contract on  the ground  that success had not been achieved in his  objective which was to commit the murder of Devi Ram.  On these  facts disclosed  by  the  approver and  the  prosecution  evidence available,  the  appellant was prosecuted and has  now  been convicted and sentenced as mentioned above. The  only  point urged in this appeal before us  by  learned counsel  for  the appellant was that the Sessions  Judge  as well as the High Court did not apply the correct  principles of  law  applicable  to  appreciation  of  evidence  of   an approver.   We  find  no force in this  submission,  as  the judgment  of the High Court makes it quite clear that  there was  full  justification  in this  case  for  upholding  the conviction  of the appellant on the basis of the  approver’s evidence as corroborated by other prosecution evidence. The  High Court has held that the approver’s statement  with regard  to  the  poisoning of Devi Ram  and  his  family  is reliable  and  does not suffer from any  improbabilities  at all.   It is true that Court did not accept the  version  of the approver in respect of earlier attempt by him to  commit the  murder  of  Devi Ram by shooting  him  with  a  pistol. Dealing with this part of the case, the High Court 246 held  that it was not very much impressed with  this  story, and  it  was apparent that the only  witness,  Sri  Ramdutt, Advocate,  who appeared in respect of this  incident,  could not be expected to support the version of the approver  that the  appellant had caught hold of four cartridges  from  him and  given them to the approver.  It was also  noticed  that

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Advocate  was  acting as counsel for the appellant  in  some criminal  case  which  was pending agonist  him  for  having caused miscarriage.  In these circumstances, the Court  came to the finding that the manner in which the pistol story had been  related by the approver did not carry much  conviction and, therefore, it would not be safe to rely on the evidence relating  to  this  episode  which should  be  left  out  of consideration.  The High Court thus did not choose to act on this  evidence  given by the approver mainly on  the  ground that  there was no corroboration and partly for  the  reason that  it appeared to the Court that the story was  not  very convincing.  The Court did not, however, come to any finding that the story put forward by the approver was incorrect  or false.   What the Court did was to act on the  principle  of valuing the evidence of an approver with caution and of  not accepting  it  unless it is corroborated at  least  in  some material particulars.  The fact that the Court thus did  not accept  the  evidence of the approver for this part  of  the story  does not mean that the Court held that  the  approver was an unreliable or untruthful witness. On the other hand, the view of that Court on appreciation of the  approver’s  own  evidence  is that  he  has  given  his statement with regard to the entire manner in which the plot for  poisoning was carried out in such a manner that  it  is reliable and convincing.  Further, the Court found that  his evidence was corroborated on very material particulars. First,  there was corroboration provided by the  entries  in the register of the dealer from whom the appellant purchased arsenic.   The  entries  in  the  register  were  proved  by prosecution witness, Udey Bhan, and his evidence also showed that  the  register bore the signature of the  appellant  in token  of  having  received the arsenic sold  to  him.   The appellant  initially  denied  that  the  signatures  on  the register  were his, but, when later examined under  s.  342, Criminal Procedure Code, he admitted that his signatures had been obtained on a register and that register was this  very register produced by the prosecution.  He, of course,  added that  when his signature was taken, the register  was  blank and no entries about sale of poison had been made.  When  he originally  denied  his  signature, the  question  arose  of providing  corroboration  of the evidence of  Udey  Bhan  to strengthen  the  value  of the entries in  the  register  by obtaining  evidence  to  prove that  the  signature  on  the register against the entry was really made by the appellant. But, after the admission of the appellant that the signature on that register had been obtained                             247 from  him, it became unnecessary to bring further  proof  of the  signature on the register.  In these circumstances,  it cannot  be held that the High Court committed any  error  in holding  that this register provided good evidence to  prove that arsenic poison was purchased by the appellant from  the dealer Uday Bhan. The High Court found that two witnesses, Dal Chand and Jodha Ram  corroborated  the  sale  of laddoos  and  khoa  to  the appellant.  Thereafter, Sher Singh witness corroborated  the statement  of the approver that he boarded the bus and  that Devi  Ram’s house at the end of the bus journey was  pointed out  to him by Sher Singh himself.  Karnail Singh and  Giasi Ram, prosecution witnesses, also corroborated the approver’s version  of his journey by bus.  All of them identified  the approver.    They  happened  to  remember   the   approver’s traveling by bus because the approver was a Sikh and yet  he started  smoking  and had to be told by  the  driver  Kamail Singh  to throw away the cigarette.  Thus, on very  material

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points  of  the  version given by  the  approver  there  was corroboration by prosecution witnesses who were all found by the High Court to be reliable. It is true that there were some portions of the story of the approver for which no corroborative evidence was  available. Learned counsel for the appellant pointed out that there was no  corroboration of the fact that it was the appellant  who mixed  arsenic  poison  in  the  khoa,  nor  was  there  any corroboration  of the approver’s statement that  he  himself handed over the sweets to Devi Ram’s wife.  This  submission ignores the natural sequence of events.  When the poison was mixed  with  the  khoa, it could not be  expected  that  the appellant would ensure presence of other persons to see  him mixing  the  poison.  Naturally, the poison was mixed  at  a time  when  there  was  no  one  else  present,  except  the appellant  himself and the approver who was  his  accomplice and whom the appellant had hired for the purpose of carrying out his scheme.  At the later stage, when the approver  gave the  sweets  to Devi Ram’s wife, no  corroborative  evidence could  be  available, because Devi Ram’s wife  died  of  the poisoning;  and  again, there is nothing to  show  that  any other  person was present when the sweets were delivered  by the approver. It  was held by this Court in Sarwan Singh v. The  State  of Punjab  (1) that an approver’s evidence to be accepted  must satisfy two tests.  The first test to be applied is that his evidence  must show that he is a reliable witness, and  that is  a  test  which is common, to all  witnesses.   The  test obviously  means  that the Court should find that  there  is nothing inherent or improbable in the evidence given by  the approver, and that there is no finding that the approver has given  false  evidence.  The second  test  which  thereafter still (1)  [1957] S.C.R. 953. 248 remains to be applied in the case of an approver, and  which is  not always necessary when judging the evidence of  other witnesses,  is  that his evidence  must  receive  sufficient corroboration.  In the present case, as we have pointed  out above,  the  High Court has held that the  evidence  of  the approver  was  reliable  and was  corroborated  on  material particulars  by  good prosecution witnesses  who  have  been believed  by the Court.  We are, therefore, unable  to  find any error in the judgment of the High Court in upholding the conviction of the appellant. In the result, the appeal falls and is dismissed. G. C. Appeal dismissed 249