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PETITIONER: R. PANDIAN AND ANOTHERA. DEIVENDRAN SON OF M. AMMAVASITHEVAR

       Vs.

RESPONDENT: STATE OF TAMIL NADUTHROUGH THE SECRETARY, DEPARTMENT OF HOME

DATE OF JUDGMENT:       21/10/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: Present:                 Hon’ble Mr. Justice G.N.Ray                 Hon’ble Mr. Justice G.B.Pattanaik S. Muralidhar and Ms. Neery Vaid, Advs. for the appellants R. Mohan,  Sr. Adv.,  V.G. Pragasam,  Adv. with  him for the Respondents                       J U D G M E N T      The following  Judgment of the Court was delivered:                             with                CRIMINAR APPEAL NO.988 OF 1997       (@SPECIAL LEAVE PETITION (CRL.) NO.398 OF 1996) PATTANAIK,J.      Leave granted on both Special leave Petitions.      Criminal appeal  arising out  of Special Leave Petition (Crl). No.  487 of  1996 is  by the convict A. Devandran who has been  sentenced to  death by  the learned  District  and Session Judge,  Madurai in  Sessions Case No. 91 of 1994 and the said  death. sentence  has been  confirmed by  the  High Court of  Madras in  Criminal Appeal  No. 717  of 1995.  The Criminal  Appeal  arising  out  of  special  Leave  Petition (Criminal) No.  3598 of 1996 is by accused R. Pandian and R. Thungamalai who  have been  convicted under  Section 302 and have been sentenced to imprisonment for life by same learned Sessions  Judge   in  the   same  Session  Trial  and  their conviction and sentence has been upheld by Madras High Court in the  aforesaid Criminal  Appeal No.  717 of  1995.  These three appellants  alongwith  two  others  stood  charged  of several offence  under Section  120B, 148,  449, 302/34  and 326/34. Out  of the  five accused persons accused Bellaithai was acquitted  by the  learned Sessions Judge. Accused Mohd. Rafiq was granted pardon by the Chief Judicial Magistrate on 14.11.1994 while  the case had already been committed to the court of  Sessions and  was pending trail before the learned Sessions Judge.  He was  examined as approver and is PW-1 in the criminal  proceedings. The three accused appellants were also convicted  under Section 120B, 449, 326/34 IPC and were sentenced to  imprisonment for 10 years for conviction under Section 120B,  10 years for conviction under Section 449 and 3 years fro conviction under Section 326/34 IPC. The learned Sessions Judge  directed the  sentences to run concurrently.

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All of  them, however,  were acquitted  of the  charge under Section 148  IPC. The  High Court  by the  impugned judgment apart from  affirming  the  conviction  and  sentence  under Section 302  IPC, as already stated, affirmed the conviction and sentence under Section 449, 326/34 IPC and 120B.      The  prosecution  case  in  nutshell  is  that  accused Devendran had given some monetary assistance to the approver PW-1 while  he was  ill. After the approver was cured of his illness he  was asked  to work  in the  house of  Devendran. While he was so working the accused Nos. 2 and 3 came to the house of  Devendran and  informed him  that there was lot of jewels and  cash in  the house of PW-5 and they could commit robbery in  the  said  house.  Accused  Devendran,  however, respondent that  it would  not  be  easy  affair  to  commit dacoity without  knowing the topography of the house. At the point of  time accused No. 2 replied that his mother who was accused no. 5 has been working in the house of PW-5 for more than ten  years and, therefore, it would not be difficult to know the  topography of  the  house  from  her.  Accordingly accused no.  2 went to the house of PW-5 on the direction of accused no.  1 ascertain  the topography  of the  house. The said accused  no. 2  then intimated  that the inmates of the house of PW-5 will be going out on 24.11.1992 and that would be  an  ideal  occasion  for  committing  robbery.  He  also intimated that  the only  way to  enter into to the house is through the  Chimney. In  accordance with  a conspiracy thus hatched,  on   24.11.1992  accused   Devendran   gave   some conspiracy thus  hatched. on  24.11. 1992  accused Devendran gave some  money to  other accused persons and asked them to the come  back after  taking tiffin. PW-1 started weeping as he was  forced to  become a  party to commit a robbery. Then under pressure  from accused  Devendran PW-1  accompanied by other accused persons entered the house through the Chimney. Further prosecution  case is  that the accused persons while entering into  the house of PW-5 to commit robbery took with them a  double barrel  gun, a pistol, a small knife, a torch light, gloves and some ropes. Thereafter all of them entered into the  house through  the Chimney by the help of the rope which had  been tied  upon. After entering the house accused Devendran made  some sound  and on hearing the said sound an old  lady   came  out  of  the  room  through  the  kitchen. Immediately Devendran  twisted her  neck while  the  accused no.3 tied her legs with a rope. PW-1 was asked to stand as a guard. When  the lady asked PW-1 to get some water PW-1 went inside but  before water could be brought the lady died. The accused persons  then entered  into the  room where  another lady was  sleeping and  accused Devendran  strangulated  the said lady  with a piece of cloth while accused Devendran was strangulating her  the 2nd  accused was holding her legs and on account of such strangulation the old lady also died. PW- 2 a  young girls  who was  there inside  the house then came running but  the accused persons threaten her to kill if she makes any sound. Then the accused persons wanted the keys of the house  from her  and PW-2  gave a particular set of key. Through the help of that key the 2nd and 3rd accused persons opened up  a container  wherein lot  of jewels  and cash was there. The  accused persons brought out a box and filled the same with  the cash  and jewels.  As they  could not get the keys of  other containers  they broke open trough a crow-bar and it  is at  that point  of time  the blowing of horn of a jeep was  heard. PW-2 somehow escaped through the front door to tell  her parents,  who had  gone  but,  about  what  has happened in  the house.  Nagarajan the  driver and  PW-5 the father of PW-2 rushed into the house and immediately accused Devendran fired  at  him.  Nagarajan  sustained  the  Bullet

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injuries on his chest and fell down. All the accused persons the took  the jewels  and cash  and then escaped through the staircase. By  this time  several other  people had gathered but nobody  could venture  to  catch  hold  of  the  accused persons as  they were having the guns and threatened to kill whosoever tries to catch them. The accused persons then went out of the place of occurrence and distributed the ornaments recovered from  the house  of PW-5  and then dispersed. PW-2 then gave  a written  complaint  to  the  police  which  was treated as  FIR and  police thereupon started investigation. Ultimately after completion of investigation chargesheet was submitted and  the learned  Magistrate  on  being  satisfied about the  existence  of  prima  facie  case  committed  the accused for  trail. The case has been committed to the Court of Sessions  on 27.1.1994  and while  the matter was pending before the  learned Sessions Judge an application was foiled for grant  of pardon to accused Mohd. Rafiq on 8.8.1994. The learned Sessions  164  of  Code  of  Criminal  Procedure  on 25.8.1994. The  learned Sessions  Judge then  considered the application  for   grant  of   pardon  and  by  order  dated 27.10.1994  forwarded   the  same   to  the  Chief  Judicial Magistrate to  be dealt  with in  accordance with  law.  The Chief Judicial Magistrate finally granted pardon to the said accused Mohd.  Rafiq  on  14.11.1994  and  re-submitted  the records to  the learned  Sessions Judge.  Before the learned Sessions Judge  the said  accused who  was granted pardon by the Chief  Judicial Magistrate  was  examined  as  PW-1  and thereafter the  other prosecution  witness were examined and finally the  learned Sessions  Judge by  his judgment  dated 14th July,  1995, convicted  the  three  accused  appellants under different  Sections and  sentenced them differently as already stated. Accused No. 5, however, was acquitted of the charges  levelled   against  her   on  a  finding  that  the prosecution failed  to establish  charges beyond  reasonable doubt. Said  conviction and  sentences passed by the learned Sessions Judge  have been  upheld by the High Court and thus the appeals.  It may  be stated  here that  the  prosecution examined as  many as 25 witnesses and exhibited large number of documents  in support  of its   case and the defence also examined three  witness and  exhibited number  of documents. Out of  the 25  prosecution witness  examined in these cases apart from  the evidence  of PW-1,  the approver  two  other important witnesses  are PW-2, the young girl who ran out of the house  immediately when the second of the jeep was heard and PW-5 who was injured while entering into the house after hearing the  incident from  his daughter  PW-2. The  learned Sessions Judge  as well  as the  High Court  relied upon the evidence of  the approver  PW-1 having  held the  same to be trustworthy and  having come  to  the  conclusion  that  the approver’s   evidence   gets   corroboration   in   material particulars from  the evidence  of the  doctor  and  certain recoveries made  from the  accused persons.  The two  Courts also believed  the evidence of PWs 2 and 5 which establishes the complicity  of the  three appellants with the commission of the crime.      Mr. Muralidhar.  the learned  counsel appearing for the appellants attached  the evidence of PW-1 on several grounds and submitted  that the said evidence of the approver cannot at all  be relied  upon by the prosecution in support of the prosecution case.  According to  the learned  counsel  under Criminal Procedure  Code, 1973,  the power  to grant  pardon lies  only  with  the  Sessions  Judge,  once  the  case  is committed to  the Court  of Sessions, as provided in Section 307 of  the Code of Criminal Procedure (hereinafter referred to as  the ‘Code’). Since the Session Judge did not exercise

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his power  and on  the other hand forwarded the matter to be dealt with  by the  chief Judicial Magistrate and ultimately Chief Judicial  Magistrate granted pardon to the accused the said order  is without  jurisdiction and illegal and as such the accused  Rafiq cannot  be held  to be an approver in the eye of  law. The learned counsel further contended that even assuming the order of the Chief Judicial Magistrate granting pardon to  the  accused  can  be  sustained,  but  yet  non- compliance of  Sub-section (4)(a) of Section 306 of the Code vitiates  the   entire  proceedings   and  consequently  the evidence of the approver when he was examined as PW-1 has to be excused  from consideration.  According  to  the  learned counsel the  requirements of  Sub-Section (4)(a)  of Section 306 is  mandatory in  nature and confers a valuable right on the accused  and non-compliance  thereof vitiates the entire proceedings relating  to the  examination of the approver as witness in  the case.  He also  ***** that if the approver’s evidence is examined it would appear that the same is wholly exculpatory in  nature and,  therefore, no  reliance can  be placed on  the same.  The further  contention of the learned counsel is  that the  circumstances under  which the accused agreed to  become an  approver indicated  that it  was under coercion and  threat and  not voluntary and on the score the evidence of  the approver  PW-1 cannot  be relied  upon. The last  argument  advanced  by  Mr.  Muralidhar,  the  learned counsel  relating  to  the  reliability  of  the  approver’s evidence  is,   that  the   said  evidence   does  not   get corroboration from  any independent  materials neither  with regard to  the identity  of the  accused  persons  nor  with regard   to the  role  played  by  them,  and  as  such  the approver’s evidence  must be  held to  be untrustworthy  and should not  be acted  upon. So  far as  the other  items  of evidence relied  upon by the prosecution the learned counsel appearing for the appellants urged that after the approver’s evidence is  excluded from,  consideration, on the residuary evidence the  charges against  the appellants cannot be said to have  been established  by  the  prosecution  beyond  all reasonable  doubts   and,  therefore,   the  appellants  are entitled to  acquitted. On  the question  of award  of death sentence on accused Devendran the learned counsel urged that no doubt  in course  of incident  three  persons  have  been alleged to  have been  killed  by  said  Devendran  but  the circumstances leading to the death of those three persons as unfolded the  prosecution evidence,  even if believe in toto do not  make out  the case  to be  one of the rarest of rare category justifying  imposition of  the extreme  penalty  of death and, therefore, the order of the High Court confirming the death sentence has to be set aside.      Mr. Mohan, the learned senior counsel appearing for the respondent/State on  the other  hand contended that the very object of  granting pardon  to one of the accused who agrees to be  a witness  of the  prosecution to  unfold the  entire incident engrafted  under Section  306 and  307 of  the Code will frustrated  if a  technical view  of the  provisions is taken and, therefore, no prejudice having been caused by the grant of  pardon by  the Chief  Judicial Magistrate the said order cannot  be held  to be beyond jurisdiction. Mr. Mohan, the learned  senior counsel  further urged  that a  Sessions Judge has  to the  power to  delegate his function under the Code to  a subordinate  office by  the virtue of sub-section (3) of  Section 10  of the Code and, therefore, the impugned direction of  the Sessions  Judge  calling  upon  the  Chief Judicial Magistrate  to deal  with the application for grant of pardon  in accordance  with law  cannot  be  held  to  be without jurisdiction. The learned counsel also urged that on

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a plain  reading of  Section 306 of the Code it appears that the Chef  Judicial Magistrate  can exercise  power to  grant pardon even  after the  committal of  the proceedings to the Court of  Session which  is apparent from the expression ‘at any stage  of the  trial’ used in Sub-section (1) of Section 306 and,  therefore, a  combined reading  of Section 306 and 307 would  indicate that  the Sessions  Judge and  the Chief Judicial Magistrate  have concurrent  jurisdiction to  grant pardon. Judged  from this stand point the order of the Chief Judicial Magistrate  granting pardon  to accused PW-1 cannot be held  to be  illegal. So  far as  non-compliance of  Sub- section (4)(a)  of Section 306 of the Code is concerned, the learned senior  counsel appearing  for the  State urged that after the  case is  committed to  the Court of Sessions when pardon to  an accused  is  granted  under  Section  307  the provision of  Section 306, and more particularly Sub-Section (4)(a) thereof  are not  attracted. According to the learned counsel  the   expression  ‘tender  a  pardon  on  the  same condition’ used  in Section  307 is  referable to  condition engrafted in  Sub-section (1)  of Section  306 of  the Code, namely, a  Magistrate may  tender  pardon  to  a  person  on condition of  his making  a full  and true  disclosure.  The procedural requirements of sub-section (4)(a) of Section 306 cannot be  held to  be a  condition and  as  such  the  said provision cannot  be attracted  to a  case where  pardon  is granted under Section 307 after the case is committed to the Court of  Sessions. In  support of  this contention reliance was  placed   on  the   decisions  of  this  Court  in  :  S Naravanaswami vs.  Paneer Salvam  (1973) 1  SCR  172,  Iqbal Singh vs.  State (Delhi  Administration) Ors.  (1978) 2  SCR 174, and a decision of Orissa High Court in State vs. Bigvan Mallik & Ors. (1975) Crl. Law Journal 1937. The learned  counsel further  urged that  even if it is held that the  Chief Judicial  Magistrate had  no jurisdiction to grant pardon  since the case had been committed to the Court of Session  yet the  said order of the Magistrate is curable under Section  460 (g)  of the  Code inasmuch as the most it would be  case of  Magistrate not  empowered by law to grant pardon has  granted pardon.  The leaned  counsel also  urged that no objection having been taken to the procedure adopted by the  Sessions Judge and then to the granting of pardon by the Chief Judicial Magistrate and there have been no failure of justice  on the  score, the  provisions of section 465 of the Code get attached and the conviction and sentence of the accused  appellants  cannot  be  reversed.  On  question  of appreciation of  the evidence the learned counsel urged that when the  learned Sessions  Judge and  the High  Court  have appraised the  evidence and have accepted the same, it would not appropriate  for this  Court to  enter into the arena of appreciation unless  it is  established that  there has been violation of  principles of natural justice or a mis-reading of a vital part of the evidence or the Court have  committed and error  of law  or of  the  forms  of  legal  process  or procedure by  which justice  itself has filed. Since none of there pre-conditions  are  satisfied,  the  learned  counsel urged that  this Court should not re-appreciate the evidence and record its own conclusion. In support of this contention reliance was  placed on  the judgment  of this  Court in the case of  Sarvanabhavan and  Govindaswamy vs. State of Madras AIR 1966 SC 1278. The learned counsel further urged that the evidence  of  the  approver  gets  corroborated  from  other independent sources  to  the  material  particulars  of  the approver’s  evidence   and  such   corroboration  makes  the approver’s  trustworthy   and  reliable.  According  to  the learned counsel  the medical  evidence relating to the death

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of three  persons and the injuries of PW-5, the statement of the investigating  officer as  to what  he found immediately after  the   occurrence  when   he  reached   the  place  of occurrence,  the   recovery  of  Mahaja  exhibit  P-29,  the evidence of  PW-2 who  was in  the  house  at  the  time  of occurrence and  the lodging  of FIR  immediately  after  the occurrence as  well as  the recoveries  made from  different accused persons  and further  the evidence  of the ballistic expert PW-25  fully corroborate the evidence of the approver PW-1 and  as such  the Courts  below rightly relied upon the evidence of  the said  approver. The  learned  counsel  also urged that  the murder of 3 persons and robbery committed by the accused  constitute an integral part of same transaction and, therefore,  the possession  of stolen  or named  by the accused would  establish that  the  accused  committed  both murder and  robbery and  the presumption  would arise  under Section 114  of the  Evidence Act.  The learned counsel also urged that  even excluding  the evidence of the approver the conviction of  the appellants  can well  be sustained on the residuary evidence  of PWs 2 and 5 and other recoveries made from the  accused persons.  Lastly on  the question of death sentence on  appellant Devendran  the learned  counsel urged that the manner in which said accused mercilessly killed two ladies and then shot at the man who entered inside the house indicate the  action to  be of  depraved  mind  and  in  the absence of  any mitigating  circumstances the  case would be one coming within the category of rarest of rare case and as such imposition  of death  sentence is  wholly justified. In support of  this reliance has been placed on the decision of this Court  in Sevaka Perumal vs. State of Tamil Nadu (1991) 3 SCC  471 and  Shankar @  Gaurishankar &  Ors. Vs. State of Tamil Nadu (1994) 4 SCC 478.      In view  of the  rival submission,  the first  question that arises  for consideration  is  whether  the  approver’s evidence can  at all be relied upon to bring home the charge against the  accused persons?  It si  no doubt true that the very objected  of granting pardon to an accused is to unfold the truth  in grave  offence so  that other  accused persons involved in  the offence  could be brought home with the aid of the  evidence of  the approver.  But  all  the  same  the legislative mandates  as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go by   merely  because of  gravity of the offence. With his backgrounds in  mind it  would be  necessary to  examine the provision of  the Code  for testing  the correctness  of the rival submission. Coming now the  question as to whether the Chief Judicial  Magistrate could  have at all granted pardon to the  accused even  after the committal of the proceedings to the  Court of  Sessions, the  same would  depend upon the interpretation of  Section  306  and  307  of  the  Code.  A combined reading  of Section  306 and  307 of  the  Code.  A combined  reading  of  the  aforesaid  two  provision  would indicate that  under Section  306 power  has been  conferred upon  the   Chief  Judicial  Magistrate  or  a  Metropolitan Magistrate as  well as  the Magistrate of the First Class to tender pardon  to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating  to the  offence.  The  only  distinction between the  two sets  of Magistrate  for exercise  of their power lies  at the  stage when  the power  can be exercised. While a Magistrate of the First Class can exercise the power while enquiring  into or trying the offence in question, the Chief Judicial  Magistrate or  a Metropolitan Magistrate can exercise the  power at any stage of investigation or enquiry into or  trail of  the offence which they themselves may not

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be  trying.  But  under  Section  307  the  power  has  been conferred upon  the Court to which the commitment is made to grant pardon.  In other words once a proceeding is committed to a Court of Session then only  the said Court can exercise power to  tender pardon  to an  accused. Section  307 of the Code corresponds  to Section 338 of Criminal Procedure Code, 1878, If the two provisions are examined in justaposition it would be  clear that while under Section 338 of the old Code after commitment  is made  the Court  to an accused or could order the  committing Magistrate  or the District Magistrate to tender  pardon, but under Section 307 of the Code of 1973 the Court  to whom commitment is made, no longer retains the power to  order the  committing Magistrate  or the  District Magistrate to  tender pardon.  In other  words under Section 307 of  the present Code after commitment of a case the only Court which  can tender  pardon is  the Court  to which  the commitment has  been made.  It would  be appropriate at this state of  extract Section  338  of  the  old  Code  and  the corresponding provisions of Section 307 of the new Code:-      "338. Power  to  direct  tender  of      pardon.  -   At  any   time   after      commitment, but  before judgment is      passed, the  Court to  which to the      commitment is  made may.  with  the      view of  obtaining on the trail the      evidence of  any person supposed to      have been  directly  or  indirectly      concerned in, or privy, to any, any      such offence,  tender, or order the      committing   Magistrate    or   the      District Magistrate  to  tender,  a      pardon on  the same  conditions  to      such persons."      "307. Power  to  direct  tender  of      pardon.   -At    any   time   after      commitment of  a  case  but  before      judgment is  passed, the  Court  to      which the  commitment is  made may,      with a  view to  obtaining  at  the      trail the  evidence of  any  person      supposed to  have been  directly or      indirectly concerned  in, or  privy      to  any   such  offence,  tender  a      pardon on  the  same  condition  to      such person."      In view of the aforesaid change in the provisions it is difficult for  us to  accept the  contention of  the learned counsel appearing  for the  State of  even under Section 307 after commitment  of a  case  a  Chief  Judicial  Magistrate retains the  power to  grant pardon.  It may  not be  out of place to  notice the recommendation of the Law Commission in its 41 st Report in paragraph 24.23      "24.23.  Under   Section  338,  the      Court of  Session may  at any  time      after commitment  of the  case, but      before  passing   judgment   either      tender pardon itself, or may "order      the committing  Magistrate  or  the      District  Magistrate"   to   tender      pardon. Though this power is rarely      resorted to  by a Court of Session,      it will  be useful  to  retain  the      section.  But   in  view   of   the      abolition   of    the    commitment      proceedings the  Court  of  Session

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    need not  be authorised  to  direct      "the committing  Magistrate" or any      other Magistrate  to tender pardon.      The section  may be revised to read      as follows:-      "338. At  any time after commitment      of a  case but  before judgment  is      passed, the  Court of  Session may,      with the  view to  obtaining at the      trial the  evidence of  any  person      supposed to  have been  directly or      indirectly concerned  in  or  privy      to,  any  such  offence,  tender  a      pardon on  the  same  condition  to      such person."      The aforesaid  Section  has  now  taken  the  place  of Section 307  in the  new Code.  This indicates  that in  the changed circumstances  the legislatures thought it necessary to delete the expression "or order the committing Magistrate or the  District Magistrate to tender a pardon" from Section 307 of  the present  Code which  was there in Section 338 of the previous  Code. On  a plain  reading  of  the  provision contained in  Section  306  and  307  of  the  Code  and  on examining the  changes that  have been  brought about by the legislature from  the corresponding  provisions of  the  old Code, the  conclusion is  irresistible that  under  the  new Procedure Code  of 1973   once  a case  is committed  to the Court of  Sessions then  it is  only that Court to which the proceedings have  been committed  can  tender  pardon  to  a person and  the Chief  Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.      It would  be necessary  in this  context to examine the contention raised  by Mr.  Mohan, learned  counsel appearing for the  Court  to  whom  commitment  has  been  made  could exercise power  under Sub-section  (3) of  Section 10 of the Code of  Criminal Procedure  and, therefore,  could direct a Chief Juridical  Magistrate to  deal with  the  question  of tender of  pardon notwithstanding  the deletion  of the said power in  Section 307  of the Code. The aforesaid contention though prima  facie looks  attractive but does not sustain a deeper scrutiny.  Section 10(3) of the Code may be extracted for better appreciation of the point in question.:-      "The Sessions  Judge may  also make      provision for  the disposal  of any      urgent application, in the event of      his absence or inability to act, by      an Additional or Assistant Sessions      Judge,  by   the   Chief   Judicial      Magistrate, and every such Judge or      Magistrate shall  be deemed to have      jurisdiction to  deal with any such      application."      A plain  reading of  the aforesaid  provisions indicate that a  Sessions Judge  has been empowered to make provision for  disposal   of  any   urgent  application   in   certain contingencies  by   requiring  an  Additional  or  Assistant Sessions Judge  or  in  their  absence  the  Chief  Judicial Magistrate to deal with an application which otherwise would have been dealt with by the Sessions Judge. The power can be exercised when  the Sessions  Judge himself  is absent or is unable to  act. The  again Chief  Judicial Magistrate can be required to  act under  this sub-section not merely when the Sessions Judge  himself is absent or unable  to act but also when there  is no Additional or Assistant Sessions Judge. In the case in hand there is no an iota of material to indicate

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that the  pre-conditions for exercise of power under-section (3) of Section 10 of the Code were satisfied or that in fact the Sessions Judge exercised his power under sub-section (3) of Section  10. In this view of the matter, the order of the Sessions  Judge   dated   27.10.1994   in   forwarding   the application for  grant of  pardon  to  the  Chief  Juridical Magistrate  as   well  as   order  of  the  Chief  Juridical Magistrate dated  14.11.1994 granting  pardon to the accused who was examined as PW-1 is not sustainable in law. It would also be  appropriate to  deal with  submission of  Mr. Mohan appearing for  the respondent that the expression ‘trial’ in Section 306(1) would mean trial of an offence triable by the court of  session and  as such  a Metropolitan Magistrate or the Chief  Judicial Magistrate  may tender  a  pardon  to  a person even after the commitment of the case to the court of session during the course of trial by the sessions judge. WE are unable  to accept this contention of the learned counsel as in our view the plain and unambiguous language of Section 307 of  the Code  makes it  explicitly clear  that after the commitment of  a case the power to tender pardon lies, under the Code, with the court to which the commitment is made and not with  any other  magistrate including the Chief Judicial Magistrate.  Once   a  commitment  is  made  the  committing magistrate  no   longer  retains   jurisdiction   over   the proceedings and  that  apart  the  unambiguous  language  of Section 307  of the  Code does  not confer  such power  on a magistrate to tender pardon after a case is committed to the court of session. The expression ‘trial’ used in sub-section (1) of Section 306 would, therefore, covey the meaning those cases which  are triable either by a magistrate or the chief judicial magistrate.  In other  words, in  respect of  those cases  which   are  triable   by  a  magistrate,  while  the magistrate of  First Class  inquiring  into  or  trying  the offence can  tender pardon at any stage of inquiry or trial, the Chief  Juridical Magistrate  can tender  pardon  at  any state of  investigation, or  inquiring into  or  the  trial. Further a  magistrate First  Class who  is in session of the case can  tender pardon in course of inquiry or trail of the said  case   while  the   Chief  Juridical   Magistrate   or Metropolitan Magistrate  can tender  pardon even  though the trial is  pending before another First Class Magistrate. But buy no  stretch of  imagination it  can be  construed   that under  Section   306(1)  of   the  code  a  Chief  Juridical Magistrate or  Metropolitan Magistrate  has a power to grant pardon even  after the  commitment of  the proceeding to the court of sessions.      At this stage we think it appropriate to notice another submission of  Mr. Mohan  appearing for  the respondent that the order  of the Chief Judicial Magistrate tendering pardon can at  the most  be in  irregularity curable  under Section 460(g) of  the Code  and is  not null and void. Section 460, not doubt cures the irregularity specified in the Section if it is  committed by  a Magistrate  not empowered  by the law provided  he  committed  irregularity  erroneously  in  good faith. Clause  (g) relates  to tender  pardon under  Section 306. It  would, therefore,  appear that a Magistrate who was not  empowered  under  Section  306  to  tender  pardon  but actually tenders  pardon in good faith erroneously then such an irregularity  would be  curable. Section  460 can have no reference to  an act  of a Magistrate who is empowered under Section 306  but does not  possess the jurisdiction after an order  of   commitment  is   passed.  Their  Chief  Judicial Magistrate no  doubt was authorised under Section 306 of the Code to tender pardon in course of an investigation, inquiry or trial  before the  committal of  the proceedings  to  the

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court of  sessions. But  after commitment of the proceedings he does  not have jurisdiction to grant pardon and in such a case if  the said  Chief Judicial  Magistrate tenders pardon then that  would not  be a  curable irregularity  within the ambit of  clause  (g)  of  Section  460  of  the  Code.  The conclusion of  ours is further strengthen from the fact that under the 1898 Code, the corresponding provisions to Section 460 (g)  of the  1973 Code  was Section  529(g). In the said provisions it was specifically stated that if any Magistrate not empowered  by law  to tender pardon under Section 337 or 338 the  same would  not vitiate  the proceedings. But under Section 460(g) of the new Code the legislatures have omitted Section 307  which is  corresponding  to  Section  338,  and therefore, such  irregularity committed  by  the  Magistrate cannot be  said to  be a  curable irregularity under clauses (g) of Section 460.      The next  question that  arises for consideration is as to whether  non-examination of  the approver  as  a  witness after grant  of pardon  and thereby  non-compliance of  sub- section 4(a)  of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate  granted pardon  to the  accused he  was not-examined immediately  after the  grant of pardon and was only examined  once by  the learned Sessions Judge in course of trial.  The question  that arises  for consideration is : when   an accused  is  granted  pardon  after  the  case  is committed to  court of  sessions would  it be  necessary  to comply with  sub-section (4)(a)  of Section 306 of the Code. The contention  of Mr.  Mohan, the learned counsel appearing for the  State in this connection is that Section 307 merely mandates  that   pardon  should  be  tendered  on  the  same condition and  such condition obviously refers the condition indicated in  sub-section (1)  of Section 306, namely on the accused making  a full  and true  disclosure of the whole of the circumstances  within  his  knowledge  relating  to  the offence and  to every  other person  concerned,  whether  as principal or  abettor, in  the commission thereof. According to the learned counsel sub-section (4) of Section 306 is not a condition  for tendering  pardon but is merely a procedure which has to be followed when a person is tendered pardon by a Magistrate  in exercise  of power under Section 306. Since after a  case committed  to the  court of  session pardon is tendered by  the court  to whom  the commitment  is made, it would not  be necessary  for such  court of comply with sub- section (4)(a)  of Section  306. Mr.  Murlidhar, the learned counsel appearing  for the  appellants  on  the  other  hand contended, that  the objects and purpose engrafted in clause (a) of  sub-section (4)  of Section  306  is  to  provide  a safeguard to  the accused  who can cross-examine even at the preliminary stage  on knowing  the evidence  of the approver against him  and can  impeach the  said testimony  when  the approver  is   examined  in   court  during  trial,  if  any contradictions or improvements are made by him. The right of the accused cannot be denied to him merely because pardon is tendered after  the proceeding  is committed to the court of sessions.      The correctness  of the  rival submission  again  would depend upon  true interpretation  of Section  306 and 307 of the Code.  Under Section  307 when  pardon is tendered after commitment has been made the legislative mandate is that the pardon  would   be  tendered  on  the  same  condition.  The expression "on  the same  condition" obviously refers to the condition of tendering a pardon engrafted in Sub-section (1) of  Section   306,  the  said  condition  being  the  person concerned on  making a full and true disclosure of the whole

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of the  circumstances within  his knowledge  relating to the offence. Sub-section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of Sub- section (4)  of Section  306 and  Section 307  would make it clear that  in a  case exclusively  triable by  the Sessions Court if  an accused  is tendered  pardon and is taken as an approver before  commitment then  compliance of  sub-section (4) of  Section 306  becomes mandatory and non-compliance of such mandatory  requirements would  vitiate the  proceedings but if an accused is tendered pardon after the commitment by the Court  to which the proceedings is committed in exercise of powers  under  Section  307  then  in  such  a  case  the provision  of   Sub-section  (4)  of  Section  306  are  not attracted.  The  procedural  requirement  under  Sub-Section (4)(a) of Section 306 to examine the accused after tendering pardon cannot  be held to be a condition of grant of pardon. The case  of Suresh  Chandra Bhari  etc. vs.  State of Bihar 1995 Supp.  (1) Supreme Court Cases 80, on which the learned counsel for the appellants strongly relied upon deals with a case where pardon had been tendered to an accused before the commitment proceedings  and the  question was  whether  non- compliance  of  Sub-section  (4)(a)  of  Section  306  would vitiate  the  trial.  The  Court  held  that  the  provision contained in Clause (a) of Sub-section (4) of Section 306 is of mandatory  nature and,  therefore, non-compliance  of the same would  render an  order of commitment illegal. It is no doubt true,  as contended  by  Mr.  Muralidhar  the  learned counsel appearing  for the  appellants, that  the  procedure indicated in  sub-section (4)(a)  of Section 306 is intended to provide  a  safeguard  to  an  accused  inasmuch  as  the approver has  to make a statement disclosing his evidence at the preliminary stage before the committal order is made and thereby accused  becomes aware  of the  evidence against him and further  such evidence  of an approver can be ultimately shown as  untrustworthy  during  the  trial  when  the  said approver makes  any contradictions  or improvements  of  his earlier version.  But still  when the legislature in Section 307  have   made  specific   reference  to   only  on  "such conditions" and  not to  the other procedures in Section 306 it would  not be  a rule of interpretation to hold that even Sub-section (4)(a)  of Section  306 would also be applicable in such a case.      The decisions  of this Court in the case of Iqbal Singh vs. State  (Delhi Administration)  & Ors.  1978 (2)  Supreme Court Reports,  174, supports  our conclusion, as aforesaid, to a  great extent.  In this  said case  under the  Criminal Procedure Code, 1878 the question for consideration was that when pardon  had been  tendered to  a person at the stage of investigation under  Section  337(1)  of  the  Code  then  a Special Judge  who had  the  power  to  take  cognisance  of offence offence  under Section  8(1)  of  the  Criminal  Law Amendment Act  1952  would  have  no  jurisdiction  to  take cognisance and,  therefore, charge  sheet has  to  be  filed before a  Magistrate.  This  contention  had  been  advanced because of  Sub-section (2)(B) of Section 337 of the Code of Criminal Procedure  1898. A  contention has been advanced in the said  case that  if a Magistrate takes cognisance of the offence the  approver will  have to be examined as a witness twice, once  in the Court of the Magistrate and again in the Court of Special Judge to whom the Magistrate sends the case for trial  but on the other hand if charge sheet is filed in the Court of Special Judge itself then the approver is ***** only once  and this  is discriminatory.  This Court repelled ***** *******  advanced on  behalf of the accused and held : "It is  clear from  the scheme  of Section  337 that what is

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required is  that a  person who  accepts a  tender of pardon must be  examined as  a witness  at the different st ages of the proceedings.  Where,  however,  a  Special  Judge  takes cognizance  of  the  case,  the  occasion  for  examing  the approver as  a witness  arises only once. It is true that in such a  case there  would be  no previous  evidence  of  the approver against  which his  evidence at  the trail could be tested, which  would have  been available to the accused had the proceedings,  be initiated  in the court of a Magistrate who under  sub-section (2B)  of section  337 of  the Code is required to  send the  case for  trial to  the special Judge after   examing the approver. But we do not find anything in sub-section (2B)  of Section 337 to suggest that it affect s in any  way the  jurisdiction of  the Special  Judge to take cognizance of an offence without the accused being committed to him  for trial.  Sub-section (2B) was inserted in section 337 in 1955 by Amendment Act 26 of 1995. If by enacting sub- section (2B)  in 1995  the legislature  sought to  curb  the power given  to the  Special Judge  by section  8(1) of  the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver’s evidence cannot be tested against any  previous statement  does not seem to us to make any material  difference to  the detriment  of  the  accused transgressing Article  14 of  the Constitution.  The special Judge in  any case  will have  to apply the well established tests for the appreciation of the accomplice’s evidence."      In this  view of  the  matter  in  the  case  in  hand, admittedly having been tendered after the case was committed to the  Court of  Session question  of  compliance  of  Sub- section (4)(a)  of Section  306 does  not arise  and on that score no  invalidity is  attached to  the statement  of  the approver.      A contention had been raised by Mr. Muralidhar, learned counsel appearing  for the  appellants to  the  effect  that statement of  the approver  being exculpatory  in nature and his entire  statement having  revealed that  he was merely a bystander and was compelled to do something at the behest of accused Devendran,  the said evidence of the approver should be rejected.  In support  of such  competition reliance  has been placed  on the  decisions of  this Court in the case of Ravinder Singh  vs. State of Haryana (1975) 3 SCC 742, State of Punjab  vs. Raj  Kumar (1989)  1 SCC  696, Rampal  Pithwa Rahidas vs.  state of  Maharashtra 1994 Supp. (2) SCC 73. In Ravindran’s case this Court has observed that :      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      related involves  him in  the crime      and appears  intrinsically to  be a      natural and  probable catalogue  of      events  that   had   taken   place.      Secondly,  once   that  hurdle   is      crossed, the  story  given  by  the      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  Raj  Kumar’s  case  this  Court      held:-      "He evidence  has been  read by the

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    counsel for  the parties  before us      and his  evidence clearly indicates      that he attempted to suggested that      he did  nothing. Neither  he stated      that he participated in looting nor      in  injuring   or   attacking   the      deceased. Reading  t this  evidence      clearly  indicates   that  he   has      claimed to  be a  spectator at ever      movement but  has not  participated      at any  stage. Apart  from  it  the      initial story  appears also  to  be      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 witness as whole apparently the      impression  created   is  that  the      version does  not appear  to  be  a      natural version.  In this  view  of      the matter,  in  our  opinion,  the      testimony   is   not   such   which      inspires confidence."      In Rampal  Pithwa’s case this Court      observed:-      "From     all     the     attendant      circumstances,  we   are  satisfied      that the  approver Ramcharan is not      a reliable  witness; his arrest was      intrinsically  unnatural   and  his      self-confessed participation in the      crime  without  taking  any  active      part in  it  is  unacceptable.  The      approver  has   claimed  to   be  a      spectator  of  every  fact  and  of      every moment  but asserted  that he      did not  participate in the assault      at any  stage  and  remained  at  a      distance taking care of the clothes      of  some  of  the  co-accused.  His      statement   is    almost   of    an      exculpatory nature.  His  statement      as  a   whole  does   not   inspire      confidence. His  story is not worth      of  credence.   We  find  ourselves      unable to place any reliance on his      untrustworthy    and     unreliable      evidence."      All these aforesaid three  cases deal with the question as to  what extent  a Court can rely upon the evidence of an approver. Whether  the evidence of an approver can be relied upon  by   a  Court   would  depend   upon  the   facts  and circumstances of  the case.  As has  been indicated  by this Court in  the case  of  Suresh  Chandra  (supra)  that  when heinous crime  is committed  in a  manner leaving no clue or any trace  is available for its detection, pardon is granted to  one  of  the  accused  persons  for  apprehending  other offenders and  for production of the evidence which other is unobtainable. This Court held :-      "The dominant  object being  that the  offenders of the and grave  offences do not go unpunished, the Legislature in its wisdom  considered it necessary to introduce Section 306 and confine  its operation  to cases  mentioned in  it.  The

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object of  Section 306 therefore is to allow pardon in cases where heinous  offence is  alleged to have been committed by several persons  so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in  heinous offences  for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply  because in  his confession,  he  does  no implicate himself  to the  same ex tent as the other accused because all  that Section 306 requires is that pardon may be tendered to  any person  believed to  involved   directly or indirectly in or privy to an offence."      Bearing in  mind the  aforesaid principle  and on going through the  evidence of  the  approver  we  are  not  in  a position to  hold that  the said  evidence  is  entirely  of exculpatory nature.  The approver’s  evidence indicates that he did  participate in the crime though under persuation and threat of  other persons  but in the matter of killing three persons only  accused Devendran  played the  major role. Yet the statement of the approver cannot be held to be of purely of exculpatory  nature and on that score the evidence ****** be  excluded   from  consideration,   particularly  when  he indicated in  his evidence  that he brought a bicycle from a cycle shop  took accused  no, 2  on the  cycle and then took accused no.  3 on  the cycle  to the  place  of  occurrence, climbed up  and reached  the chimney  of the house. tied the rope to the bricks of the chimney through which he alongwith others got down, room the first victim, a woman, to the next room, went  away  through  the  first  floor  of  the  house carrying jewels  which they  had collected  and received two golden bangles.  These acts  on the  part  of  the  approver indicate that  he participated  in  the  commission  of  the offence though  not to  the same extent as accused Devendran and as such, the statement cannot be aside to be exculpatory nature. Mr.  Muralidhar, learned  counsel appearing  for the appellants further contended that the approver’s evidence at any  rate   has  not   been  corroborated  in  the  material particulars from  any independent  source connecting each of the accused persons, and therefore, the said evidence cannot relied  upon.   There  cannot   be  any   dispute  with  tie proposition that  ordinarily an  approver’s statement has to be corroborated  in material  particulars. Certain clinching features of  involvement disclosed directly to an accused by a approver must be tested qua ea ch accused from independent credible evidence  and on being satisfied the evidence of an approver  can   be  accepted.   What  is   the   extent   of corroboration that  is required before the acceptance of the evidence of  the approver  would depend  upon the  facts and circumstances  of  the  case.  The  corroboration  required, however, must  be in  material particular connecting each of the accused with the offence. In other words the evidence of the  approver   implicating  several   accused  persons   in commission of  the offence  could not  only be  corroborated generally but  also qua each accused. But that does not mean that there  should be  independent  corroboration  of  every particular circumstances  from and  independent source.  All that is  required is  that there  must  be  some  additional evidence  rendering  it  probable  that  the  story  of  the accomplice is  true. Corroboration  also could  be  both  by direct or  circumstantial evidence.  (see Ramanlal  Mohanlal Pandava vs.  The State  of Bomaby-AIR 1960 SC 961: Tribhuvan Nath vs.  The State of Maharashtra - AIR 1973 SC 450; Swaran Singh vs.  The State  of Punjab - 1957 Supreme Court Reports

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953; Ram  Narain vs.  State of  Rajasthan (1973)  3  Supreme Court Cases  805; and  Balwant Kaur  vs. Union  Territory of Chandigarh - 1988 (1) Supreme Court Cases 1) But we need not examine this  question in greater detail to find whether the evidence of  the approver  gets corroboration from any other evidence  since   in  view  of  our  interpretation  of  the provision of  Section 306 and 307 of the Code and in view of our conclusion  that after commitment of the proceedings the Session Judge  had no power to remit the matter for grant of pardon to the Chief Judicial Magistrate and the order of the Chief  Judicial   Magistrate  tendering  pardon  is  without jurisdiction not  curable under Section 460 (g) of the Code, the evidence  of the  approver cannot  be relied upon by the prosecution in the present case.      We may  notice the  arguments advanced  by  Mr.  Mohan. learned counsel appearing for the State, that the conviction and sentence against the appellants should not be interfered with in  view of  the provisions of Section 465 of the Code, inasmuch as there has been failure of justice. WE are unable to accept  this contention.  Section 465  of the Code is the residuary section  intended to  cure any  error, omission or irregularity committed  by a Court of competent jurisdiction in course of trial through accident or inadvertence, or even an illegality consisting in the infraction of any provisions of law.  The sole object of the Section is to secure justice by preventing  the invalidation  of a trail already held, on the ground  of technical  breaches of  any provisions in the Code  causing no prejudice to the accused. But by no stretch of imagination  the aforesaid provisions can be attracted to a situation  where a  Court having no jurisdiction under the Code does  something or  passes an order in contravention of the mandatory  provisions  of  the  Code.  In  view  of  our interpretation  already   made,  that   after   a   criminal proceeding is  committed to  a Court  of Sessions it is only the Court  of Sessions  which has the jurisdiction to tender pardon to  an accused and the Chief Judicial Magistrate does not posses  any such jurisdiction, it would be impossible to hold that  such tender  of pardon  by  the  Chief,  Judicial Magistrate can  be accepted and the evidence of the approver thereafter can be considered by attracting the provisions of Section 465  of the  Code. The aforesaid provision cannot be applied to  a patent defect of jurisdiction. The again it is not a  case of  reversing the  sentence or order passed by a Court of  competent jurisdiction  but is a case where only a particular  item   of  evidence   has  been   taken  out  of consideration as that evidence of the so-called approver has been held  by us to be not a legal evidence since pardon had been tendered by a Court of incompetent jurisdiction. In our opinion, to  such a  situation the provisions of Section 465 cannot be  attracted at all. It is true, that procedures are intended to  subserve the ends of justice and undue emphasis on mere  technicalities which are not vital or important may frustrate the  ends of  justice. The  Courts, therefore, are required to consider the gravity of irregularity and whether the same  has caused  a failure of justice. To tender pardon by a  Chief Judicial  Magistrate cannot be held to be a mere case of  irregularity nor can it be said that there has been failure  of   justice.  It  is  a  case  of  total  lack  of jurisdiction, and  consequently  the  follow  up  action  on account  of   such  an   order  of   a  Magistrate   without jurisdiction cannot  be taken  into consideration at all. In this view  of the matter the contention of Mr. Mohan, leaned counsel appearing  for the  State in  this regard  has to be rejected.      The  next   question  which   requires   consideration,

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therefore,  is  excluding  evidence  of  the  approver  from consideration whether  prosecution case  can be  held to  be proved beyond reasonable doubt?.      The  other   evidence  pressed   into  service  by  the prosecution is the evidence of PW2, PW3, PW4 and PW5 and the recovery of  stolen articles belonging to PW4 from different accused persons and identification of those article by PW 4. That apart  certain incriminating  material recovered on the basis of  information given  by the accused while in custody have been  pressed  into  service  by  the  persecution  for establishing the  charge beyond  resonable doubt. PW2 is the girl whose  marriage ceremony  was to be performed and it is for her marriage parents had gone to Madurai for purchase of marriage article. According to her evidence she was sleeping in the  Puja room  whereas the  two decreased  grand-mothers were sleeping  in the  hall.  It  was  about  2.30  a.m.  on 24.11.1992 she  heard some  sound and  so she  went  to  her senior grand-mother  but the  grand-mother asked  her not to worry as junior grand-mother went to observe and advised her to sleep.  Sometime thereafter  she heard some galloping and so when  woke up,  she then found that 4 outsiders are there and two  of them were strangulating the senior grand-mother. She further  found that  two others gagged the junior grand- mother and  then they  threatened PW2 that if she raises any alarm she  will be  shot. According  to he  all the  accused persons were  wearing masks  and one   of  them was  holding rifle MO-1.  The second accused was holding a pistol and the third one  holing a  rod while  the fourth one was holding a bag. It  is the further evidence that when they demanded the key she  replied that  she does  no possess the same and the grand-mother might  be having  it. The  accused persons then removed the  key from  the bag  of the grand-mother and then opened the  bureau and removed cash and jewels from the blue colour box.  She also  stated that  she herself gave out the chain, locket,  the  pair  of  gold  rings  to  the  accused persons. At  that point  of time  she heard the noise of the jeep and  so she ran away towards the front gate. Seeing her father she  told that  dacoits are  inside  and  warned  her father not  to go in but the driver Nagarajan and her father PW5 went  inside the  house and  they were  followed by  her brother and  Mohan. While  she stayed  outside when head the sound of  firing of  rifle and she saw her father coming out bleeding. Thereafter  her elder  brother and  neighour Mohan came and  informed that  two grand-mothers as well as driver nagarajan have  died. This  evidence of  PW2 establishes the fact of  dacoity having  been committed in the house and the fact  of   murder  of   her  two  grand-mothers  by  way  of strangulation by  four accused  persons throught the witness is unable  to identify  as to  which of  the accused  person strangulated the elder grand-mother and which of the accused person strangulated  the younger  grand-mother. She has been cross-examined at great length by the accused persons but we do not  find anything  that has  been brought about in cross examination to  impeach the  veracity of  her statement. She being an  inmate of  the house and being present at the time of the commission of the offence had the full opportunity to notice the  manner in  which the  incident occurred and vide account of the same has been given by her. Since the accused persons were  not known  to her  she has  not been  able  to identify which of the accused person strangulated the senior grand-mother and  which of  the accused  person strangulated the junior  grand-mother. PW3  had gone  with his  father to Madurai for making some marriage purchases. According to him they reached  the village at about 2.00 a.m. and hardly they had gone  inside after getting down from the jeep his sister

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PW2 ran out of the house and intimated them not to go inside as thieven  are there.  But notwithstanding such warning the driver Nagarajan  followed by  his father  went  inside  the house and he followed them. It was at that time he heard the blasting sound  of the  revolver and Nagarajan came and fell down in  the hall.  His father  PW5 also sustained an injury and he came out by holding his chest. He then found both his grand-mothers lying  dead and further found driver Nagarajan lying dead  in the  main hall. He also found Almiriahs to be kept open.  So he  came out  and told  PW2 about  the entire incident. His evidence establishes the commission of offence of robbery  in the  house and three people found dead in the house one  of whom on account of gun shot but neither he had seen the  actual assault  given by  anyone  of  the  accused persons on  any of  the decreased  nor  had  seen  the  very presence of  the accused  persons in  the house. But all the same, his evidence corroborates the evidence of PW4 that was grand-mothers were  found  dead  inside  the  house  and  it further establishes  that the  driver Nagarajan  who entered into the  house after getting down from the jeep was shot at by the  accused persons and ultimately he died on account of such gun shot injury. PW 4 is the mother of PW2 who had gone to Madurai  for the  marriage shopping. She corroborates the evidence of  PW3 to  the effect  that her  daughter PW2 came running from the house as soon as the jeep reached the house and warned  them from entering into the house as thieves are there inside.  While  she  was  standing  outside  with  her daughter PW2,  the driver  Nagarajan and  her husband PW5 as well as  the son  PW3 entered  inside the  house and at that point of  time sound  of gun blast was heard from inside the house. It  is further  evidence that  she found  her husband coming out  of the  house holding his chest and she was tole that the  thieves haves  shot at  him. While she was holding her husband  who had  been injured and was preparing to take her husband to the hospital she was informed about the death of the  two ladies  as well  as  the  death  of  the  driver Nagarajan. She was also able to identify the ornaments which were recovered  from the  possession of the accused persons. He evidence,  therefore, establishes  the fact of commission of offence  in the  house but she had not sen the assailants who are  responsible for the death of two old ladies as well as the death of driver Nagarajan.      PW5 is  the owner  of the house who had gone to Madurai for marriage  shopping. He  states in his evidence that when they were  getting down from the jeep at about 2.00 a.m. his daughter Priya came running from inside the house and stated "Daddy thieves  are committing theft in the house. They have snatched the jewels from me by tying may hands forcibly." he then attempted  to go  inside the house to find out what has happened but  his driver  Nagarajan ahead  and his  wife and daughter prevented  him from going inside. He however, could not resist  and rushed  inside the house following Nagarajan and then switched on the light one the southern side. Hardly he attempted  to proceed  to the  room where  his mother was sleeping gun  shoot sound  was heard  and  then  Nagarajan’s shout that he had been shot. While he was proceeding towards Nagarajan he  also received  gun shot  injury. Then  he came back to the jeep where he found his wife and son and then he was carried  go the  Government hospital at Cumbum. There at Cumbum hospital  he was  advised to  go to madurai and so he was taken  to Madurai  and was  admitted  in  the  Meenakshi Mission Hospital.  Doctors at Meenakshi Mission Hospital and tole him  that bullets  are there inside in a dangerous area near the  heart and  it cannot  be operated  upon  their  at Madurai. So  he  was  taken  to  G.  Kuppusamy  Hospital  at

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Coimbatore and  there bullets were removed by operating upon him. While  he was  in Meenakshi Mission Hospital at Madurai he had  been examined  b the  Police and he had narrated the occurrence  to   the  Police.   His   evidence,   therefore, establish, the  fact that  on the fateful night while he was trying to  get into  the house to find out what all has been stolen and what incident had happened right in his front his driver Nagarajan  received the  gun shot  injury and then he also received  the bullet injury which could be removed only in the  Hospital at Coimbatore. In addition to the aforesaid evidence of the four inmates of the house with regard to the occurrence in  question, the  evidence of  the Investigating Officer PW-25  who at the relevant time was the Inspector of Police  Chinnamannur   Circle  clearly   indicates  that  on reaching the place of occurrence he found the dead bodies of two ladies  as  well  as  the  dead  body  of  the  deceased Nagarajan and  the prepared the Inquest Report in respect of the three  dead bodies.  He also  made some seizure from the place of  occurrence  and  then  examined  the  witness  and recorded their statements under Section 161 Cr.P.C. The post mortem examination  conducted by  Dr. N.  Manimohan PW-10 on the body  of Saraswati Ammal clearly indicated that she died due to  strangulation and gagging, Similarly the evidence of Dr. R.  Anandan PW-11  who had  conducted  the  post  mortem examination on  the dead  body of  Deivammal the  other lady establishes the  fact that  she died due to strangulation of the neck  and smothering.  This evidence  fully corroborates the evidence  of PW-2  the young girl that two of her grand- mothers  were  strangulated  by  the  accused  persons.  The evidence of  PW-9 the  Assistant Medical Officer, Government Hospital,  Cumbum   who  had   conducted  the   post  mortem examination on  the dead body of Nagarajan clearly indicates that said Nagarajan died on account of injuries sustained by the  shooting   of  revolver  which  fact  corroborates  the evidence of  PW-5 to  the  fact  that  while  Nagarajan  was proceeding inside  the house  he received  the bullet injury but of  course, he  has not been able to see the assailants. From  the  aforesaid  prosecution  evidence  it  si  clearly established that  on the relevant date of occurrence at mid- night four  persons entered  into the  house of PW-5, one of them  strangulated  two  ladies  while  other  persons  were holding or gagging those ladies and then received the key by show of  force and  opening  the  Almiriah,  took  away  the valuables and also snatched ornaments from the person of PW- 2 and  finally when the owner of the house PW-5 arrived from Madhurai and  his driver  Nagarajan rushed into the house he was shot  dead and  PW-5  who  was  closely  following  also received bullet  injuries which  could be  removed  only  by operating at the Hospital at Coimbatore.      Let us  now examine  the recovered of the ornaments and other incriminating materials from different accused persons which have  been identified  by the  inmates of the house to belong to them.      The pistol  MO-2 was lying in front of the house of PW- 20 and  was seized under Mazahar Exhibit P-30 the trigger of the pistol  had been  welded with  bras powder.  PW-7 in his evidence stated  the he knew accused Devendran. It is he who had brought one pistol and requested him to weld the trigger and said  PW-7 had done the welding and thereafter Devendran had taken  away the  pistol  giving  him  Rs.15/-.  He  also identified the  portion of  MO2  stating  that  it  is  this welding he  had done on the pistol. In his cross-examination he categorically  stated that  he had  been able to identify the pistol  by seeing  welded part  of the  trigger  of  the pistol. During  search of  the house of accused Devendran on

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26.11.1992  pellets  MO75  series,  Ball  beareaus  (Paulrus pellets), empty  cartridges MO  78, paper  corks  of  bullet cartridges MO 93, empty cartridges MO 79 which could be used in 12  bore gun  were all  seized under  Exhibit  P-31.  The prosecution has  further been  able to  establish  that  the pellet which  was removed  from the body of PW-5 are similar in size  as pellets MO 72 series recovered from the house of acccused Devendran.  It was further established MO 78 seized from the  house  of  accused  Devendran  as  well  as  empty cartridges seized  under Mazahar  28 are  similar in nature. The Ballistic expert PW-24 in his evidence stated that while conducting test  on the pistol with dummy rounds he observed the similarity  of the marking of the earlier firing and the ultimately  came   to  the   conclusion  that  MO  79  empty cartridges must  have been  fired  by using the pistol MO 2. The report  of the ballistic expert is Exhibit P24. MO-2 was seized under  Mazahar  Exhibit  P37  on  the  basis  of  the statement made  by accused  Devendran while  in custody. The aforesaid evidence  unequivocally indicated  that the pistol which was used for shooting driver Nagarajan and injured PW- 5 was  the pistol belonging to the accused Devendran and the empty cartridges  recover from  the house  of Devendras also corroborates to  the  aforesaid  conclusion.  The  jewellery belonging to  the informant  were re covered on the basis of the statement  of accused Devendras are MOs 16 to 12, MOs 24 to 28  and MOs  30 to  59. PW  4 not  only identified  those jewellery but  also stated  theat these  ornaments had  been taken away  by the culprits from her house. Similarly jewels MOs 13,  14 and  15 were seized from accused no. 3 which the culprits had   snatched  from PW2  and MO 29 was seized from accused no.  2 under Mazahar Exhibit P 35 and PW4 identified the same  to belong to the family and had been stolen in the course of  dacoity. The  question for consideration would be whether the  recoveries of the jewelleries belonging to PW-5 from different  accused persons  at their  instance while in custody and  the recovery  of some of the weapons of assault from  the  house  of  different  accused  persons  would  be sufficient to  arrive at  a  conclusion  that  it  is  these accused persons  who are  the perpetrators  of  the  murders which took  place in  the house of PW-5 on the fateful night and it is these accused persons who committed murder as well as dacoity  in the  house and left the place with the booty. This conclusion can be arrived at only by taking recourse to the provisions  of Section  114 of  the Evidence  Act  under which the  Court is entitled to presume existence of certain facts. Under  Illustration (a)  to Section 114 the Court may presume that  a man  who is  in possession  of stolen  goods after the  theft, is  either the  their or  has received the goods knowing  them to  be stolen, unless he can account for his possession.  From the  prosecution evidence,  as already discussed it  must be  filed that  the prosecution  has been able to prove beyond reasonable doubt that the commission of murders and the robbery formed part of one transaction which has been  fully unfolded through the evidence of PW-2 and in such situtation  the recovered of the stolen properties from the house  of some  of the  accused  persons  and  at  their instance and  no explanation  from those accused persons, on being questioned  under  Section  313  Cr.  P.C.  reasonably points to  the guilt  of those  accused persons establishing the fact  that it  is they  who committed the murders in the house and  then committed  the robbery and left the scene of occurrence.  Whether   a  presumption   under  Section   114 Illustration (a)  of the  Evidence Act  should be drawn in a given  situation   is  a   matter  which   depends  on   the evidence and  circumstances of its recovery, the intervening

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period between  the date  of  occurrence  and  the  date  of recovery, the explanation of the persons concerned from whom the recovery  is made  are all factors which are to be taken into consideration in arriving at a decision. In the case of Baiju vs.  State of  Madhya Pradesh,  AIR 1978 Supreme Court 522, this Court had held that the prosecution having succeed in proving  beyond any  doubt that  the  commission  of  the murders and  robbery formed  part of one transaction and the recent and  unexplained possession of the stolen property by the appellant  justified the  presumption that it was he and no one  else, who had committed the murders and the robbery. In the said case the offence had been committed on the night of January  20 and  21, 1975  and the  stolen  property  was recovered  from  the  house  of  the  appellant  on  January 28,1975.      In the  cases of  Shivappa and  other vs.  The State of Mysore-AIR 1971  SC 196  the same question was considered by this Court.  The Court  had said "If there is other evidence to connect an accused with the crime itself, however, small, the finding  of the  stolen property  with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthen the other evidence  already against  him. It  is only  when  the accused cannot  be connected with the crime except by reason of possession  of the  fruits of  crime that the presumption may be  drawn. In  what circumstances the one presumption or the other  may be  drawn,  it  is  not  necessary  to  state categorically  in   this  case.  It  all  depends  upon  the circumstances under  which the  discovery of  the fruits  of crime are made with a particular accused. It has been stated one more  than one  occasion that  if the gap of time is too large. the  presumption that  the accused was concerned with the crime  itself gets weakened. The presumption is stronger when  the   discovery  of   the  fruits  of  crime  is  made immediately after  the crime  is committed.  The  reason  is obvious. Disposal  of  the  fruits  of  crime  requires  the finding of  a person ready to receive them and the shortness of time,  the nature  of the property which is disposed, of, that is  to say,  its quantity  and its  character determine whether the  person who  had the  goods  in  his  possession received them  from another  or was himself the thief or the dacoit. In  some cases there may be other elements which may point to  the way  as to  how the  presumption may be drawn. They differ  from case to case .." In the aforesaid case the recoveries had  been made  within 5  days  of  the  date  of occurrence and  therefore, the  Court ultimately came to the conclusion  that  the  High  Court  was  right  drawing  the presumption that the person concerned are dacoit themselves.      In Gulab  Chand vs. State of Madhya Pradesh (1995) 3SCC 574, this  Court considered  at length  the law  relating to Section 114,  Illustration (a)  of the  Evidence Act and the circumstances under  which the  presumption can be drawn. it was held  by Court  that no  hard and  fast rule can be laid down as  to what  inference should  be  drawn  from  certain circumstance. It  was further  held that if the ornaments in possession of  the deceased  are found  in possession of the person soon  after the murder, a presumption of guilt may be permitted.  But   if  several  months  had  expired  in  the interval, the  presumption cannot  be permitted  to be drawn having regard  to the  circumstances of  the case. The Court approved the earlier decision of this Court in Earabhadrappa vs. State  of Karnataka (1983) 2 SCC 330 wherein it was held that the  nature of  presumption and  illustration (a) under Section 114  of the Evidence Act must depend upon the nature of the  evidence adduced.  No fixed time-limited can be laid

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down to  determine whether possession is recent or otherwise and each  case must be judged on its own facts. The question as to  what  amounts  to  recent  possession  sufficient  to justify the  presumption of  guilt varies  according as  the stolen article is or is not, calculated to pass readily from hand to  hand. If  the stolen  article were such as were not likely to  pass readily from hand to hand, the period of one years  that   elapsed  cannot   be  said   to  be  too  long particularly when  the appellant  had been absconding during that period. s      In the  case  of  Gautam  Maroti  Umale  vs.  State  of Maharashtra- 1994  Supp. (3) SCC 326, on the other hand this Court held  mere recovery  of  ornaments  belonging  to  the deceased at  the instance of the accused did not connect him with the  murder and  at the  most he  can be  convicted for possession of  stolen property under Section 411 IPC. To the same effect is the judgment of this Court in Union Territory of Goa vs. Bea Ventura  D’Sourza and another - 1993 Supp (3) SCC 305.  Bearing in  mind the  principle laid  down in  the aforesaid cases and on examining the facts and circumstances of the  present cases  which have  been established  by  the prosecution beyond  reasonable doubt there did cannot be any hesitation in  coming to the conclusion that the prosecution case  as  against  Devendran  under  Section  302  has  been provided  beyond  reasonable  doubt.  The  evidence  of  PW7 indicating that Devendran had brought the pistol MO 2 to get trigger welded and getting the same welded by PW-7 Devendran had taken  away the pistol, the identification of the pistol MO 2 by said PW-7, the recovery of pellets MO 75 series from the house  of accused  Devendran two  days after the fateful incident i.e. on 26.11.1992, the seizure of empty cartridges and ball beareaus (Paulrus pellets), the recovery of similar pellets from  the body  of PW-5  as were  recovered from the house of accused Devendran, the evidence of Ballistic expert PW-24 that  the MO-2  must have been fired which is apparent from the  examination of  empty cartridges,  the jewelleries MOs 16 to 23, MOs 24 to 28 and MOs 30 to 59 belonging to the informant were  recovered on  the basis  of the statement of accused Devendran  and those  jewelleries were identified by PW-4 to  the effect that those ornaments had been taken away by the  culprits from  her house are sufficient to raise the presumption under  Section 114  of Illustration  (a) of  the Evidence Act  and the  conclusion becomes irrestible that is accused Devendran who committed the murders in the house PW- 5 on  24.11.1992 and  thereafter left  the  place  with  the booties and  as such  the prosecution  case against  accused Devendran under  Section 302  IPC must  be held to be proved beyond reasonable doubt. But so far as the two other accused persons are  concerned the  only items  of evidence  is  the recovery of  some of  the jewelleries  after more  than  two months of the occurrence. On such recoveries alone after two months of  the occurrence  it will  not be  safe to  draw  a presumption for  holding that  they are  also parties of the offence of  murder committed  in the house of PW-5. It is no doubt true  that PW-2  in her  evidence had  indicated  that there were  four persons  who committed the offence in their house but  said PW-2  has not  been  able  to  identify  the culprits. It  will, therefore,  be wholly  unsafe to convict the two  other accused  persons in  the charge  of murder by taking recourse to presume under Section 114 of the Evidence Act for the mere recovery of some of the ornaments belonging to the informant after two months of the occurrence. In that view of  the matter  the conviction  of  two  other  accused persons for  the charge of murder cannot be sustained and is accordingly set  aside, but instead they are convicted under

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Section 411  IPC and  are sentenced to rigorous imprisonment of three years each.      Coming  now   to  the  question  of  the  sentence  for conviction of  accused Devendran  under Section  302, as has been stated  earlier, he  has been sentenced to death by the learned  Session  Judge  and  the  said  sentence  has  been affirmed by the High Court. From the prosecution evidence it is apparent  that there was no premeditated plan to kill any person and  the main  objective was  to commit  robbery.  In course of  the incident  as stated  by PW2  when the two old ladies got  up and  rushed  towards  culprits  one  of  them strangulated them  one after  the  other.  The  post  mortem report also  indicated that  the death of the two ladies are on account  of  strangulation.  The  learned  Session  Judge awarded death  sentence to  accused Devendran  on the ground that as  soon as the driver Nagarajan entered into the house said Devendran shot the gun which hit Nagarajan and he died. This itself  cannot be held to be sufficient to hold that it is an  act of an depraved mind. The number of persons did in the incident  is not  the determinative  factor for deciding whether the  extreme penalty  of death  could be  awarded or not. On  the evidence  of PW2 as well as the evidence of PW5 it is  difficult to  hold that the death of the persons were either diabolical, ghastly or gruesome.      In Machhi Singh and others vs. State of Punjab - (1983) 3 Supreme  Court Cases  470, the  three judge  of this Court consideration the  Constitution  Bench  decision  in  Bachan Singh vs.  State of  Punjab -  1980 (2)  SCC 684 and came to hold that  where there  is no  proof of extreme culpability, the extreme  penalty need  not be  given.  This  Court  also further observed  that the  extreme penalty  of death may be given only  in the  rarest of  rare cases  where aggravating circumstances are  such that  the extreme  penalty meets the ends of  justice. In Suresh vs. State of U.P. - 1981 (2) SCC 569, the  conviction was  based upon the evidence of a child witness and  Chandrachud, C.J.  speaking for  the Court held that it  will not be safe to impose extreme penalty of death in a  conviction based  on the  deposition of a child. I was further observed  that the  extreme sentence cannot seek its main support  from the evidence of a child witness and it is not safe  enough to  act upon such deposition, even if true, for putting  out a  life. In  Raja Ram  Yadav and others vs. State of  Bihar (1996)  9 SCC  287, this  Court came to hold that a  gruesome and  cruel incident  did take place and yet did not  think it  appropriate to affirm a sentence of death and commuted  to life  imprisonment. It would be appropriate to quote  the observation  of the  Court from  the aforesaid case -      "We feel  that both the murders had been committed in a premeditated and  calculated manner with extreme cruelty and brutality, for  which normally  sentence of  death is wholly justified but  in the special facts of the case, it will not be proper to award extreme sentence of death."      In one  of the most recent case in the case of Mukund @ Kundu Pradesh  vs. State  of Madhya Pradesh - 1997 (3) Scale 769, this  Court  while  upholding  the  conviction  of  the appellant for  causing the  murder of  two persons set aside the sentence  of death  on the ground that it was not one of the rarest  of the  rare case.  Bearing in mind the ratio of the aforesaid  cases it  may be seen that since the evidence of an  approver has  been taken  out  of  consideration  the conviction of appellant Devendran under Section 302 has been upheld on  the basis  of the  evidence of  PW2, PW5  and the recovery of  the pistol which was used for the commission of murder from  the house  of said  Devendran as  well  as  the

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recovered of  ornaments and  other jewelleries  belonging to the informant  recovered from  the house of Devendran on the basis  of   his  statement,   while  in  custody  and  those jewelleries being identified by PW 4. The aforesaid evidence by no  stretch of  imagination beings the case in hand to be one of the rarest of rare cases where the extreme penalty of death can  be awarded.  Accordingly, though  we  uphold  the conviction of accused Devendran under Section 302 IPC but we set aside  the sentence  of death  awarded  by  the  learned Sessions Judge  and affirmed  by the  High Court and instead commute the  same by  imprisonment for  life. So  far as the conviction of  the appellants  under  Section  120B  IPC  is concerned, in  view of  our conclusion  arrived at  and  the evidence of the approver being out of consideration the said charge cannot  be  said  to  have  been  established  beyond reasonable doubt  and accordingly  all  the  appellants  are acquitted from the said charge.      So far  as the  conviction under  Section  449  IPC  is concerned,  for   the  same  reasonings  the  conviction  of appellants  R.   Pandian  and   R.  Thungamalati  cannot  be sustained and  they are  acquitted of  the said  charge. But accused Devendran  must be  found guilty  of the said charge and accordingly his conviction and sentence thereunder would remain unaltered.      So far  as the  conviction under  Section 326/34 IPC is concerned, on  the conclusion  arrived at  by us  accused R. Pandian and  R. Thungamalai  cannot be  convicted thereunder and it must be held that the prosecution failed to establish the charge  beyond reasonable doubt and they are accordingly acquitted from the said charge. But the case against accused Devendran must  be held to be proved beyond reasonable doubt and, therefore,  he is  convicted under  Section 326 IPC and sentenced to  undergo rigorous imprisonment for three years. The sentence  against  accused  Devendran  directed  to  run concurrently.      These appeals are disposed of accordingly.      Before we  part with  this case  we must keep on record our appreciation for the invaluable service rendered by Shri Muralidhar, learned  counsel who appeared for the appellants as amicus  curiae and by his sincere and hard work put forth all possible  arguments for  a correct interpretation of the provisions of  Section 306  and 307  of the Code of Criminal Procedure. The  analysis made  by him on the question of law as well as evidence on record became an asset for delivering this judgment.