http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (crl.)  1528 of 2007

PETITIONER: Sitaram Sao @ Mungeri

RESPONDENT: State of Jharkhand

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     1528            OF 2007 (Arising out of SLP (Crl.) No. 4942 of 2005) (With Crl. Appeal No. 1531 of 2007 (Arising out of SLP (Crl.) No.6265 of 2005)

Dr. ARIJIT PASAYAT, J.          

1.      Leave granted.

2.      Challenge in these appeals  is to the judgment of a  Division Bench of the Jharkhand High Court dismissing the  appeals filed by the appellants and upholding the conviction for  offences punishable under Sections 364 and 396 read with  Section 120B of the Indian Penal Code, 1860 (in short the ’IPC’).  In fact, the High Court disposed of two appeals both directed  against the judgment of conviction dated 16th July, 2002 and  23rd July, 2002 passed in Sessions Trial No.156/1997. As noted  above, the trial Court found both the accused appellants guilty  and awarded the sentence of imprisonment for life for the  offences punishable under Sections 364 and 396 IPC.  However,  no separate sentence under section 120B was awarded, while  the co-accused Laxmi Prasad was further sentenced to the  period already undergone for offence punishable under Section  412 IPC.     

3.      The High Court did not find any substance in the appeals  and dismissed the same as noted above.  

4.      Background facts in a nutshell are as follows: On 8.1.1992, Gayatri Devi, wife of the informant, had  gone to Pandra Agricultural Market by her Ambassador car  bearing registration No. AAY 7375 and from there she left for  her residence at about 8 PM after collecting the sale proceeds  of the day of shop Nos.244 to 251.  The driver of the car,  Laxmi Paswan, who was one of the accused, was driving the  car. Gayatri Devi after collecting a sum of Rs.1,84,405/- did  not return to her house, the informant informed Sukhdeo  Nagar P.S. regarding the missing of his wife and the driver of  the car, Laxmi Paswan. Laxmi Paswan was employed by the  informant as the driver of his car on the recommendation of  the previous driver, namely, Rajendra Choudhary. When the  wife of the informant as well as the driver did not return till  night, the informant, on the next morning i.e. on 9.1.1992,  submitted a written report alleging therein that Laxmi Paswan,  driver of the car, in collusion with anti-social elements,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

abducted his wife and car in order to kill her and snatch the  money. It was alleged that informant came to know from  reliable sources that his car was seen in the night on Ranch  Ramgarh road.

On the basis of the aforesaid information, Sukhdeo  Nagar P.S. registered a case under Section 364 IPC against  Laxmi Paswan only and in course of investigation the dead  body of the wife of the informant, namely, Gayatri Devi, was  found on Giddi National road under Ramgarh P.S. After  preparing the inquest report, in the presence of the witnesses,  the I.0. of the case sent the dead body to RMCH for post- mortem. Subsequently, the car of the informant bearing  registration No. AAY 7375 was found lying abandoned near  Kujju town outpost. Subsequently the officer incharge of  Sukhdeo Nagar P.S. took the said car from the Kujju TOP in  his possession and a search was made in the presence of the  witnesses and in the course of search, certain articles were  seized. The seizure list was prepared and in the course of  investigation, accused Laxmi Paswan was arrested on  14.1.1992 from his village Mungrahi within the district of  Aurangabad and a part of the money stolen from Gayatri Devi  amounting to Rs.30,695/- was also recovered from his house  on the basis of his confessional statement. Laxmi Paswan  disclosed the name of his associates to the police and  subsequently, the other accused persons were also arrested.  In course of investigation, on the basis of confessional  statement, a sum of Rs.27,220/- was also recovered from the  house of Girja Singh. Later, one of the accused, namely, Lalit  Sanga was also arrested, who confessed his guilt before the  police and expressed his desire to give statement with regard  to the occurrence. His statement was recorded by Chief  Judicial Magistrate under Section 306 of the Code of Criminal  Procedure, 1973 (in short ’Cr. P.C.’) and was granted pardon.  The case was committed to the Court of Sessions, which was  registered as ST No.319/92 and thereafter the accused  persons faced trial in the court of learned VIth Additional  Judicial Commissioner, Ranchi and the learned Additional  Judicial Commissioner, on consideration of evidence on  record, found them guilty; but acquitted two accused persons,  namely, Girja Singh and Dinesh Kumar Singh by his  judgment dated 1.10.1992. One of the accused, namely,  Laxmi Paswan was sentenced to death, while other accused  persons were sentenced to undergo RI for life. Thereafter, both  the State and the accused persons preferred appeal against  the impugned judgment and the  High Court, by its judgment  dated 28th July, 1993, set aside the judgment of conviction  passed by the VIth  Additional Judicial Commissioner, Ranchi  and the case was remanded to the Court of Learned Chief  Judicial Magistrate, Ranchi for fresh commitment proceeding  and learned C.J.M. was directed to examine Lalit Sanga, the  approver, (PW6), as prosecution witness in accordance with  law and procedure. After remand of the case, the learned  C.J.M. examined approver Lalit Sanga under Section 306  Cr.P.C. and thereafter committed the case to the Court of  Sessions by order dated 19.2.1997 and after remand of the  case, the case was registered as Sessions Trial No.156/97.  The Learned Judicial Commissioner, Ranchi transferred the  case to another Court for holding the trial of the accused  persons. On receipt of the record, charges were framed  against the accused persons for offences punishable under  Sections 396, 412 and 120 (B) IPC.  

5.       Trial proceeded and in the course of trial the trial court  recorded evidence of twenty-three witnesses, besides

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

documentary evidence and material exhibits and ultimately  came to a finding that the appellants are guilty and  accordingly convicted them.  After recording of the statement,  accused Girja Singh fled away and, therefore, his trial was  separated from the trial of other accused.   6.       The trial court recorded evidence of 23 witnesses and  scrutinized their evidence and found the accused-appellants  guilty. In this case, all necessary witnesses such as I.0.,  doctor and informant were examined. In appeal the High  Court held that the prosecution has not left any latches on its  part in examining the witnesses connected with this case.

7.      The basic contention of the appellants, as contended  before the High Court, was that there was no eye witness in  the occurrence and simply on the basis of evidence of Lalit  Sanga, the approver, the accused persons have been found to  be guilty. It is submitted that the manner in which Lalit Sanga  was granted pardon is illegal. Reference was made to the  judgment passed by the High Court in Criminal Appeal  No.202/1992. It is pointed out that the evidence recorded in  the first sessions case where Sessions trial No.319/1992 was  set aside and when the judgment in question was set aside,  the procedure should have been started afresh. By the  judgment, the case was remanded to the Court of C.J.M. who  was directed to examine Lalit Sanga as a witness. It is the  grievance of the accused appellants that the procedure laid  down under Section 306 Cr.P.C. was not followed after the  direction of the High Court in the first judgment. Lalit Sanga  was examined in the presence of the accused persons and he  was cross-examined and thereafter case was committed to the  Court of Sessions but Lalit Sanga was not granted pardon and  he was examined again by the order of the High Court.  Therefore, it is submitted that there was non-compliance of  the requirements of Section 306 Cr.P.C. It was submitted that  he should have been granted pardon and thereafter as per the  provisions of Section 306 Cr.P.C. he should have been  examined as a witness in the presence of accused and he  should have been cross examined. But  only one part has   been complied with and thereafter case was committed to the  Court of Sessions but the first part that he was to be granted  pardon has not been complied with.  It is also submitted that  the alleged confession of this witness does not satisfy the  requirements of Section 133 of the Indian Evidence Act, 1872  (in short the ’Evidence Act’).  Accused Lalit Sanga had not  confessed to his active participation in the occurrence. His  evidence is also not fully truthful.

8.      Learned counsel for the State on the other hand  supported the impugned judgment.

9.      The High Court noted that the order of CJM was not set  aside. What was set aside partly was that Lalit Sanga was  examined but not cross examined and his statement was not  recorded in the presence of the accused. That part of the order  has been complied with and Lalit Sanga was examined in the  presence of the accused and he was also cross examined and  thereafter case was committed to the Court of Sessions.  10.     We shall deal with this part of the appeal later. It is to be  noted that learned counsel for the respondent-State submitted  that the procedure mandated under Section 306 Cr.P.C. has  been fully complied with.

11.     Learned counsel for the State has submitted that not  only has there been compliance with the requirements of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Section 306 Cr.P.C. but also Section 133 read with Section  114 (b) of the Evidence Act.  

12.     Sections 133 and 114 (b) of the Evidence Act read as  follows:         "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.  

       114(b)- The Court may presume that an  accomplice is unworthy of credit, unless he is  corroborated in material particulars.  

13.     Section 133 of the Evidence Act is of significance. It  relates to the evidence of an accomplice. In positive terms it  provides that the conviction based on the evidence of an  accomplice is not illegal merely because it proceeds upon the  uncorroborated testimony of an accomplice, because the  accomplice is a competent witness.  

14.     In Bhubon Sahu v. The King (AIR 1949 PC 257), it was  observed that the rule requiring corroboration for acting upon  the evidence of an accomplice is a rule of prudence. But the  rule of prudence assumes great significance when its reliability  on the touchstone of credibility is examined. If it is found  credible and cogent, the Court can record a conviction even on  the uncorroborated testimony of an accomplice. On the  subject of the credibility of the testimony of an accomplice, the  proposition that an accomplice must be corroborated does not  mean that there must be cumulative or independent testimony  to the same facts to which he has testified.  At the same time,  the presumption available under Section 114 of the Evidence  Act is of significance. It says that the Court may presume that  an accomplice is unworthy of credit unless he is corroborated  in "material particulars".  15.     Section 133 of the Evidence Act expressly provides that  an accomplice is a competent witness and the conviction is not  illegal merely because it proceeds on an uncorroborated  testimony of an accomplice. In other words, this section  renders admissible such uncorroborated testimony. But this  Section has to be read along with Section 114, illustration (b).  The latter section empowers the Court to presume the  existence of certain facts and the illustration elucidates what  the Court may presume and make clear by means of   examples as to what facts the Court shall have regard in  considering whether or not maxims illustrated apply to a given  case. Illustration (b) in express terms says that accomplice is  unworthy of credit unless he is corroborated in material  particulars. The Statute permits the conviction of an accused  on the basis of uncorroborated testimony of an accomplice but  the rule of prudence embodied in illustration (b) to Section 114  of the Evidence Act strikes a note of warning cautioning the  Court that an accomplice does not generally deserve to be  believed unless corroborated in material particulars. In other  words, the rule is that the necessity of corroboration is a  matter of prudence except when it is safe to dispense with  such corroboration must be clearly present in the mind of the  Judge. [See Suresh Chandra Bahri v. State of Bihar (AIR 1994  SC 2420)].

16.     Although Section 114 illustration (b) provides that the  Court may presume that the evidence of an accomplice is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

unworthy of credit unless corroborated, "may" is not must and  no decision of Court can make it must. The Court is not  obliged to hold that he is unworthy of credit. It ultimately  depends upon the Court’s view as to the credibility of evidence  tendered by an accomplice.  

17.     In Rex v. Baskerville (1916 (2) KB 658), it was observed  that the corroboration need not be direct evidence that the  accused committed the crime; it is sufficient if there is merely  a circumstantial evidence of his connection with a crime.  

18.     G.S. Bakshi v. State (Delhi Administration) (AIR 1979 SC  569) was dealing with a converse case that if the evidence of  an accomplice is inherently improbable then it cannot get  strength from corroboration.

19.     Taylor, in his treatise has observed that "accomplice who  are usually interested and always infamous witnesses, and  whose testimony is admitted from necessity, it being often  impossible, without having recourse to such evidence, to bring  the principal offenders to justice".  (Taylor in "A Treatise on the  Law of Evidence" (1931) Vol. 1 para 967).

20.     The evidence of the approver must, however, be shown to  be of a reliable witness.

21.     In Jnanendra Nath Ghose v. State of West Bengal [(1960)  1 SCR 126] this Court observed that there should be  corroboration in material particulars of the approver’s  statement, as he is considered as a self-confessed traitor.  This  Court in Bhiva Doulu Patil v. State of Maharashtra, [AIR 1963  SC 599] held that the combined effect of Sections 133 and 114  illustration (b) of the Evidence Act was that an accomplice is  competent to give evidence but it would be unsafe to convict  the accused upon his testimony alone.  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.  In this regard the Court  in Bhiva Doulu Patil’s case observed as under:

"In coming to the above conclusion we have  not been unmindful of the provisions of S. 133  of the Evidence Act which reads:

Sec.133. "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."

It cannot be doubted that under that section a  conviction based merely on the uncorroborated  testimony of an accomplice may not be illegal,  the Courts nevertheless cannot lose sight of  the rule of prudence and practice which in the  words of Martin B. in R. v. Boyes, (1861) 9 Cox  CC 32 "has become so hallowed as to be  deserving of respect and the words of Lord  Abinger "It deserves to have all the reverence of  the law:."  This rule of guidance is to be found  in illustration (b) to S. 114 of the Evidence Act  which is as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

"The Court may presume that an  accomplice is unworthy of credit  unless he is corroborated in  material particulars."          22.     The word ’corroboration’ means not mere evidence  tending to confirm other evidence. In DPP v. Hester( 1972) 3  All ER 1056, Lord Morris said :  "The purpose of corroboration is not to  give validity or credence to evidence  which is deficient or suspect or incredible  but only to confirm and support that  which as evidence is sufficient and  satisfactory and credible; and  corroborative evidence will only fill its role  if it itself is completely credible ......"  

23.     In D.P.P. v. Kilbourne (1973) 1 All ER 440, it was  observed thus:  "There is nothing technical in the idea of  corroboration. When in the ordinary  affairs of life one is doubtful whether or  not to believe a particular statement one  naturally looks to see whether it fits in  with other statements or circumstances  relating to the particular matter; the  better it fits in the more one is inclined to  believe it. The doubted statement is  corroborated to a greater or lesser extent  by the other statements or circumstances  with which it fits in."  

24.      In R. V. Baskerville( supra), which is a leading case on  this aspect, Lord Reading said :  "There is no doubt that the  uncorroborated evidence of an accomplice  is admissible in law ..... But it has long  been a rule of practice at common law for  the judge to warn the jury of the danger  of convicting a prisoner on the  uncorroborated testimony of an  accomplice or accomplices, and, in the  discretion of the judge, to advise them  not to convict upon such evidence; but  the judge should point out to the jury  that it is within their legal province to  convict upon such unconfirmed evidence  ...... This rule of practice has become  virtually equivalent to a rule of law, and  since the Court of Criminal Appeal Act,  1907, came into operation this Court has  held that, in the absence of such a  warning by the judge, the conviction  must be quashed ...... If after the proper  caution by the judge the jury  nevertheless convicts the prisoner, this  Court will not quash the conviction  merely upon the ground that the  testimony of the accomplice was  uncorroborated."  

25.      In Rameshwar v. State of Rajasthan (AIR 1952 SC 54),  Bose, J., after referring to the rule laid down in Baskerville  case with regard to the admissibility of the uncorroborated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

testimony of an accomplice, held thus:  "That, in my opinion, is exactly the law in  India so far as accomplices are concerned  and it is certainly not any higher in the  case of sexual offences. The only  clarification necessary for purposes of  this country is where this class of offence  is sometimes tried by a judge without the  aid of a jury. 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 show why  he considers it safe to convict without  corroboration in that particular case."  Justice Bose in the same judgment further observed thus :  "I turn next to the nature and extent of  the corroboration required when it is not  considered safe to dispense with it. Here,  again, the rules are lucidly expounded by  Lord Reading in Baskerville case at pages  664 to 669. It would be impossible,  indeed it would be dangerous, to  formulate the kind of evidence which  should, or would, be regarded as  corroboration. Its nature and extent must  necessarily vary with circumstances of  each case and also according to the  particular the offence charged. But to this  extent the rules are clear.  

26.     First, it is not necessary that there should be  independent confirmation of every material circumstance in  the sense that the independent evidence in the case, apart  from the testimony of the complainant or the accomplice,  should in itself be sufficient to sustain conviction. As Lord  Readings says -  ’Indeed, if it were required that the  accomplice should be confirmed in every  detail of the crime, his evidence would  not be essential to the case, it would be  merely confirmatory of other and  independent testimony.’   27.     All that is required is that there must be some additional  evidence rendering it probable that the story of the accomplice  (or complainant) is true and that it is reasonably safe to act  upon it.  28.     Secondly, the independent evidence must not only make  it safe to believe that the crime was committed but must in  some way reasonably connect or tend to connect the accused  with it by confirming in some material particular the testimony  of the accomplice or complainant that the accused committed  the crime. This does not mean that the corroboration as to  identify must extend to all the circumstances necessary to  identify the accused with the offence. Again, all that is  necessary is that there would be independent evidence which  will make it reasonably safe to believe the witness’s story that  the accused was the one, or among those, who committed the  offence. The reason for this part of the rule is that -  "a man who has been guilty of a crime  himself will always be able to relate the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

facts of the case, and if the confirmation  be only on the truth of that history,  without identifying the persons, that is  really no corroboration at all ...... It would  not at all tend to show that the party  accused participated in it."  

29.     Thirdly, the corroboration must come from independent  sources and thus ordinarily the testimony of one accomplice  would not be sufficient to corroborate that of another. But of  course the circumstances may be such as to make it safe to  dispense with the necessity of corroboration and in those  special circumstances a conviction so based would not be  illegal. I say this because it was contended that the mother in  this case was not an independent source.  30.     Fourthly, the corroboration need not be direct evidence  that the accused committed the crime. It is sufficient if it is  merely circumstantial evidence of his connection with the  crime. Were it otherwise, "many crimes which are usually  committed between accomplices in secret, such as incest,  offences with females’ (or unnatural offences) ’could never be  brought to justice". [See: M.O. Shamsudhin v. State of Kerala  (1995 (3) SCC 351)]  31.     The above position was highlighted in K. Hashim v. State  of Tamil Nadu [2005(1) SCC 237].

32.     Accused Lalit Sanga in his evidence has given the  sequence of events which led to the murder of Gayatri Devi  and he has also deposed as to how a conspiracy was hatched  up and how the conspiracy was executed with the help of  other accused persons and how Gayatri Devi was stabbed by  Laxmi Paswan on the instigation and active participation of  accused Lalu Ram. It has been stated on behalf of the  accused-appellant that this witness did not give the name of  the boy, who came to call him nor he gave the number of auto  rickshaw and the place, where other associates were standing.  Though all these points are not material but the evidence of  PW-6 stands corroborated when doctor found injury on the  body of Gayatri Devi and further that abrasions were also  found on the cheek and neck when accused-appellant pressed  the mouth of Gayatri Devi so that she may not raise alarm and  further that money was looted and part of looted money was  recovered from the possession of Laxmi Paswan on the basis of  his confessional statement. Although this fact has occurred  prior to arrest of PW-6,  but with the evidence of PW-6 all  these facts corroborate the evidence of PW-6 because he was  not knowing all these facts and with his evidence all these  facts stand corroborated and, therefore, there is complete  corroboration of the evidence of PW-6 and there is no ground  for disbelieving the evidence of PW-6 and therefore on the  basis of the evidence of PW-6 accused-appellant and co- accused Lalu Ram were found guilty and they were involved in  the abduction as well as in the occurrence under Section 396  IPC.  

33.     We shall now deal with the question relating to the  pardon.

34.     So far as pardon portion of the order of CJM is  concerned, that has not been set aside and the proceeding  relating to other portion has been set aside by which Lalit  Sanga was examined but he was not cross examined nor his  statement was recorded in presence of the accused and so the  trial court below, after remand of the case completed this part  of the order and Lalit Sanga was examined in presence of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

accused and he was also cross examined and thereafter case  was committed to the Court of Sessions, and therefore, there  was complete compliance of Section 306 Cr.P.C. The stage of  examining the approver comes only after he has been granted  pardon and after pardon he was examined as a witness in  presence of the accused and also he was cross examined. So  there is no illegality in the order and in the procedure adopted  by the learned CJM after remand of the case.   

35.     In view of the factual position and the legal principles set  out above the inevitable conclusion is that the appeals are  sans merit and deserve to be dismissed which we direct.