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PETITIONER: RAMPRASAD

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       12/05/1999

BENCH: K.T.THOMS, D.P. Mohapatra

JUDGMENT:

THOMAS,J.

       These appeals relate to  a  case  of  mercenary  killing. Though  the  principal  target of the killers was one Ram Kishore Somani @ Ramu they could kill  only  his  younger  brother  Ashok Somani,  who,  per chance was with his elder brother then, due to his jinxed destiny.   Nevertheless  they  succeeded  in  brutally mangling the targeted person inflicting a lot of injuries on him, some of  them  near  fatal.    As  he  survived  such injuries he appeared in the trial court to tell the tale.

       If  the  story  is  true,  the  intrigue   was   hatched, ironically, at the precincts of a court of law and its finale was staged  on  a  public road near the Employment Exchange Office at Amravati (Maharashtra).  Ten persons, in all, were charge-sheeted by the police in connection with the said case, out of which  one Anil  Chaudhary  (PW.2)  was  granted  pardon  as  he  turned  an approver.  Four of the remaining alone were convicted and all the rest were acquitted by the  trial  court.    The  State  appealed against  the acquittal and the convicted accused appealed against their conviction and sentence.  During the pendency of the appeal A.2Ram Kishore Yadao  the kingpin  -  died  and  the  appeal  as against him got abated.

       A  Division  Bench  of  the  High Court of Bombay (Nagpur Bench) confirmed the  acquittal  of  A.9-Rajendra  and  also  the conviction and sentence passed on the four accused.  But the High Court  reversed  the  acquittal  of A.1-Gopal Maharaj and A.4-Ram Prasad Yadao and they too were convicted under  Section  302  IPC read with Sections 109 and 150 IPC and also to a few other lesser offences.   They  were  sentenced to imprisonment for life on the main offence, and to lesser terms of imprisonment for the  lesser offences.

       A synopsis  of  the  case  is this:  Ram Kishore Somani @ Ramu Somani(PW.1) and his brother Ashok  Somani  (deceased)  were doing cloth business at Amravati.  A.1-Gopal Maharaj contested as a candidate for the Municipal election in 1986 from the same Ward in which  PW.1-Ramu  Somani  also  contested as a candidate.  The contest  burgeoned  ill-feeling  which,  by   course   of   time, snowballed  into  deep-rooted  rancour  and  it  escalated to its zenith when he decided to go forward for the liquidation  of  his rival Ramu  Somani.  He sought the assistance of A.2- Ram Kishore Yadao who was leader of a  gangster-gang.    As  A.2-Ram  Kishore

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Yadao  was  already  in  jail in connection with a criminal case, A.1-Gopal Maharaj went to the court of the Judicial Magistrate of First Class (Amravati) where A.2-Ram Kishore Yadao  was  expected to  be  produced from jail in connection with that criminal case. A.1-Gopal Maharaj impressed upon A.2-Ram Kishore  Yadao  that  it was PW.1 who made all efforts to see that A.2 was not enlarged on bail.   He  then  requested  A.2  to  liquidate PW.1-Ramu Somani. However, he cautioned PW.1 that it was not easy to finish him off since he was always guarded  and  was  constantly  moving  around escorted by bodyguards.  A.1-Gopal Maharaj suggested to liquidate the  bodyguards  also  so  that  there would be no eye-witness to speak about the murder.

       The above talk was again repeated on  10.12.1987  at  the same place.    The only addition then was the presence of A.4-Ram Prasad Yadao  who  is  the  brother  of  A.2-Ram  Kishore  Yadao. A.4-Ram  Prasad  Yadao  told  his  henchmen-gangsters  to  do the needful and offered himself to be arrested in  the  meanwhile  in connection with some petty case, so that no penumbra of suspecian would fall  on  A.2  and  A.4.    It  was  thought  that,  as the mercenaries  are  unacquainted  to  the  targeted  persons,   the operation of killing can be carried out without much risk.

       A.2  and  A.4  wanted  their  henchmen  to liquidate Ramu Somani.  On 12.12.1986,  A.4-Ram  Prasad  Yadao  managed  to  get himself  arrested  on  some petty case concocted at his instance. But A.4-Ram Prasad Yadao exhibited his anxiety  as  to  why  Ramu Somani  was not killed even after A.4 got himself behind the bar. He threatened  his  henchmen  with  another  murder,  should  the assignment  for  Ramu  Somanis  liquidation  was not implemented without any further delay.

       Six accused persons  (A.5-Baba  Swami  @  Vinit,  A.6Anil Motiram  Dhote,  A.7-Raju @ Mitun Galhot and Pramod Ingale) along with Anil Chaudhary (PW.2)  went  on  a  prowl  for  the  target. Though Ramu  Somani  was  spotted  by  them  around  3  P.M.   on 15.12.1987 they could not reach him as  he  got  perched  in  his house in the meantime.  But it was only a short-lived safety.

       Around 4 P.M.  on 15.12.1987, Ramu Somani went out of the house without having any foreboding of the slinking marauders, he was  on  the  pillion  seat  of  a  scooter ridden by his younger brother Ashok Somani.    As  they  reached  near  the  office  of Employment  Exchange,  all  the  assailants  waylaid  them  and a massive onslaught was launched on them with deadly weapons.  When the gangsters saw that their victim was  very  grievously  mauled they fled from the place.

       Both  the  injured  were  removed to the hospital as both sustained many serious injuries.  Dying Declarations of both were recorded by a Judicial Magistrate (PW.16).   On  the  same  night Ashok   Somani   succumbed  to  the  injuries,  but  Ramu  Somani registered progress in the healing process and eventually he  was discharged from the hospital.

       All  the  accused  were  arrested,  different  accused on different dates, and some weapons  were  recovered  from  a  well situated near  the house of PW.2- Anil Chaudhary.  He was arrayed as accused No.8.  He gave a confessional statement to  the  Chief Judicial  Magistrate  and on 11.3.1988 pardon was tendered to him and he was made an approver.

       The roles ascribed to  A.5-Baba  Swami,  A.6-Anil  Dhote, A.7-Raju   Galhot   and   A.10-Pramod  Ingale  besides  PW.2-Anil Chaudhary as assailants in the  occurrence,  were  spoken  to  by

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PW.1-Ramu Somani  and  PW.2-Anil  Chaudhary in full measure.  The trial court and the Division Bench of the High Court have  chosen to act on their evidence and found them guilty of the offences.

       There  is  no  dispute  now  that  PW.1-Ramu  Somani  and deceased Ashok Somani sustained  very  serious  injuries  at  the place and  at  the  time  mentioned by the prosecution.  The only point of dispute, on that aspect, was regarding the  identity  of the assailants.    PW.2-Anil  Chaudhary  has  narrated the story, including the incident on  15.12.1986  with  all  vivid  details. PW.1-Ramu   Somani   also   narrated   the   incident  with  full particulars, though he could identify only  A.5,  A.6,  A.7,  and PW.2 among  the  assailants.  It is no matter that PW.1 could not identify  A.10  as  his  participation  in  the  occurrence   was effectively   vouchsafed   by   the   evidence  of  PW.5-Avinash. Testimony  of  PW.4-Balaji  Bobde  affords  additional   evidence regarding  the  participation  of  A.5-Baba  Swami  and  A.7-Raju Galhot.

       Ext.  52  is  the  Dying  Declaration  made  by  PW.1Ramu Somani,  which  was  recorded  by  a Judicial Magistrate (PW.16). Both the trial court and the High Court counted Ext.52 as a piece of evidence.  Shri R.S.  Lambat, learned counsel  contended  that both  courts  have  gone  wrong  in  treating  Ext.52 as evidence because the person who gave that statement is not dead and  hence it could  not fall under Section 32 of the Evidence Act.  Counsel further contended that even otherwise Ext.52 could only have been used to contradict PW.1 as provided in Section 162 of the Code of Criminal Procedure (for short the Code) as it was  a  statement recorded during investigation.

       We  are  in  full  agreement  with  the contention of the learned counsel that Ext.52 cannot  be  used  as  evidence  under Section  32 of the Evidence Act though it was recorded as a dying declaration.  At the time when PW.1 gave the statement  he  would have  been  under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32.   As  long  as  the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.

       Be  that  as  it  may,  the question is whether the court could treat it as an item of evidence for any purpose.    Section 157  of  the  Evidence  Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of  such  witness.    Though  a police officer is legally competent to investigate, any statement made   to  him  during  such  investigation  cannot  be  used  to corroborate the testimony of  a  witness  because  of  the  clear interdict contained  in Section 162 of the Code.  But a statement made to a magistrate is not affected by the prohibition contained in the said Section.  A magistrate can record the statement of  a person  as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within  the realm of  what  it  was  originally.    A statement recorded by a magistrate under Section 164 becomes usable  to  corroborate  the witness  as  provided  in  Section  157 of the Evidence Act or to contradict him as provided in Section 155 thereof.

       In Maqsoodan and ors.  v.  State of U.P.   (AIR  1983  SC 126)  a  three-Judge  Bench  of  this  Court has stated the legal position thus:

When a person who has made a statement, may be in expectation of

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death, is not dead, it is not a  dying  declaration  and  is  not admissible under  Section  32  of  Evidence  Act.  In the instant case, the makers of the statements Exts.Ka-22 and Ka-23, are  not only alive  but  they  deposed  in  the  case.  Their statements, therefore, are not admissible under Section 157 of  the  Evidence Act  as  former  statements  made by them in order to corroborate their testimony in Court.

       So we repel the contention of the  learned  counsel  that Ext.   52 cannot be used for corroborating the testimony of PW.1. Nothing could be shown to discredit his testimony.  He, being the injured, seems to be the most natural witness  to  speak  to  the occurrence.  When PW.1 pointed out PW.2 as one of the assailants, we  have  no  difficulty in believing that PW.2-Anil Chudhary had witnessed  everything  which  occurred  when  the  victims   were showered  with  lethal  blows, besides himself also participating along with other assailants.

       We, therefore, find  no  reason  to  interfere  with  the concurrent  finding  that A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot  and  A.10  Pramod  Motiram  Ingale  were  active participants  in  the  occurrence in which deceased and PW.1 Ramu Somani were violently attacked.

While dealing with the appeals concerning  A.1Gopal  Maharaj  and A.4-Ram  Prasad  Yadao  we are to point out that their conviction depends entirely on  the  testimony  PW.2-Anil  Chaudhary.    The Division  Bench  of  the  High  Court placed full reliance on his evidence.  Though there is no legal hurdle against acting on  the testimony  of an accomplice it is well-nigh settled that it would be imprudent to base a conviction on such testimony unless it  is corroborated in  material particulars.  Hence PW.2s evidence has to  pass  the  test  of  reliability  and  must  secure  adequate corroboration  before  the  same  can be acted upon, in so far as A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are concerned.

       PW.2-Anil Chaudhary said that on  4.12.1987  he  too  was present  at  the  court premises when A.1-Gopal Maharaj conversed with A.2-Ram Kishore Yadao regarding the necessity to exterminate Ramu Somani.  PW.2-Anil Chaudhary also said in his evidence  that on  10.12.1987,  A.1-Gopal Maharaj repeated the same conversation to A.2-Ram Kishore Yadao.  To corroborate the  aforesaid  version prosecution  examined PW.11Yusufkhan and PW.17-Kishan Jamu Goyal. The former has stated that he was present at the  court  premises on 4.12.1987 and saw A.1-Gopal Maharaj, A.2-Ram Kishore Yadao and others were talking with each other.  The other witness said that on 10.12.1987  he  saw  those  persons  conversing together.  But neither  of  them  could  hear  what  they  were  talking  about. Criminal liability can be fastened with A.1-Gopal Maharaj only if the  words  attributed  to  him by PW.2 have assurance from other sources.  The mere fact that A.1-Gopal Maharaj was found  talking with A.2 is hardly sufficient to elicit such an assurance.

       Shri V.B.   Joshi, learned counsel for the State candidly admitted before us that there is no other evidence or material to corroborate the testimony of PW.2 regarding  the  involvement  of A.1-Gopal Maharaj  in  the crime.  No other circumstance has been brought to our notice.  Nor is there any material  to  show  that A.1-Gopal  Maharaj  did  anything  for  bailing  out  any  of the assailants, nor that he expended any money for the defence of the said persons at any stage.

       Thus we are unable to uphold the conviction of  A.1-Gopal Maharaj  as  the  testimony  of  PW.2-Anil  Chaudhary against him remained uncorroborated.

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       But  the  position  regarding  A.4-Ram  Pradad  Yadao  is different.   The role attributed to him by PW.2-Anil Chaudhary is that on 10.12.1987 A.4-Ram Prasad Yadao told the assailants to go ahead with the operation for annihilation of Ramu Somani and that himself would, in  the  meantime,  go  behind  bars  so  that  no suspicion would arise against him also.  PW.2-Anil Chaudhary said that  it was A.4-Ram Prasad Yadao who supplied all the weapons to the assailants for carrying out the operation for annihilation of Ramu Somani.  PW.2-Anil Chaudhary further said that true  to  his statement  A.4Ram  Prasad  Yadao  got  himself  arrested  on  the succeeding day and when the witness visited A.4 at the  Executive Magistrate  Court  premises he was abused by A.4 for the delay in carrying out the operation.  According to PW.2-Anil Chaudhary  he complained  to  A.2Ram  Kishore  Yadao  regarding  the  aforesaid conduct of A.4-Ram Prasad Yadao and  then  A.2  warned  him  that A.4Ram  Prasad  might  even  go  to  the  extent  of  slaying the assailants after coming out of jail if they fail to carry out the operation.

       Learned counsel for the appellant pointed out  that  PW.2 in  cross-examination  has  said  that he did not disclose to any body earlier that A.4 supplied the weapons of offence.  So we are not inclined to accept that part of his testimony, whether it  is true or not.  That apart, how far the said testimony of PW.2-Anil Chaudhary  regarding the other part of the involvement of A.4-Ram Prasad be acted on as true?

The confessional statement given by Pw.2 to the Magistrate before pardon was tendered to  him,  is  projected  as  a  material  for corroboration.   Though legally it can be used as a corroborative material we are not disposed to attach great weight to  it  since it is only the former statement of an accomplice.

       Learned  counsel for A.4 Ram Prasad pointed out that PW.2 himself admitted that when he was questioned by the police he did not speak anything about A.4.  But that is not of  much  use  now because PW.2 was questioned by the police as an accused, and then he would  not  have  divulged  the  truth.   It was later that he changed his mind and offered to confess the entire truth.  In the confession he implicated himself and others.  So the fact that he did not divulge the  whole  truth  at  the  outset  when  he  was questioned by the police is not of much consequence.  That aspect only  goes  along  with the inherent weakness of the testimony of any approver.

PW.17-Kishan Jamu Goyal was a detenue during December 1987.    He said  in  his  evidence  that  he  was  on  the court verandah on 10-12-1987 along with A.2-Ram Kishore Yadao and then he  saw  A.2 talking with  the  assailants.    As  we  have pointed out, while dealing  with  the  case  of  A.1-Gopal  Maharaj,   corroboration provided   by   the  evidence  PW.17-Kishan  Jamu  Goyal  is  not sufficient to ensure confidence in judicial mind about the  truth of PW.2s  testimony.  It may be one circumstance, but we require more circumstances to assure that PW.2 spoke  the  truth  in  the court.

       There  is  one circumstance which is reasonably sturdy to corroborate the evidence of  PW.2-Anil  Chaudhary  regarding  his accusation against  A.4-Ram  Prasad  Yadao.   Ext.170 is a police report showing that a petty case was  registered  by  the  police against  A.4Ram Prasad Yadao and he was taken into custody by the police on 12.12.1987.  PW.29  Head  Constable  testified  that  a person  by  name Vilas Mulatkar went to the police station with a complaint that A.4-Ram Prasad Yadao created  unruly  scene  under

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the  influence  of alcohol in a public place, and that a case was registered against him under Section 151 of the Code and  he  was interned in the lock-up on 12.12.1987.

       The  fact  that  A.4 was so arrested on 12.12.1987 is not disputed.  The contention is that A.4 was released on  bail  even prior  to  the incident in the case and hence his arrest is of no use in this case.  That might be  so,  and  we  are  not  at  the question  whether  he  should  have  continued  in  jail till the occurrence was over.  We are scrutinizing the evidence  of  PW.2, and  ascertain  the  extent  it  has  been  corroborated by other evidence.  In that scrutiny we notice that the arrest of  A.4  on 12.12.1987  is a circumstance which corroborates the testimony of PW.2.

       Another item of  evidence  noticed  as  of  corroborative value is  the  testimony  of PW.3.  He was a boy aged 17, who was then a student.  He deposed that  he  too  had  connections  with A.2-Ram Kishore Yadao.   On 15.12.1987, at about 1.30 P.M.  while he was standing at Duffarin bus stop along  with  A.5  and  A.10, some  others  including  A.4 and A.6 and then A.7 joined them and PW.2 also came later.  A.4 was heard saying to  them  you  carry out  the work assigned and do not bother about consequences, and A.4 assured them that he would bear all the expenses.   Next  day of  the occurrence, A.6-Anil Dhote sent PW.3-Sudir Pohokar to the house of A.4-Ram Prasad Yadao to collect some money.   PW.3  went to  A.4  and  collected some money from him and then A.4 told him that the police was suspecting him and hence he would be able  to supply further  fund  only  later.  This is the substance of what PW.3 said regarding the role of A.4-Ram Prasad.

       The aforesaid evidence of PW.3 is a further item to  lend assurance  regarding  the  involvement  of  A.4-Ram Prasad in the murder case.  Of course, this was not counted by the  High  Court but that  does not matter much.  We are now at the question as to what extent the evidence of PW.2-Anil Chaudhary can be acted  on. We  feel assured from the circumstances enumerated above that the evidence of PW.2 in so far as he implicated A.4-Ram  Prasad  with this murder can be accepted as true.

       When  we record our finding against A.4-Ram Prasad we are also obliged to  record  our  gratitude  to  Shri  R.S.    Lambat (learned  counsel  who argued for A.4) for the able assistance he provided to the accused with the thorough and deep study he  made with the  facts  and  evidence  in  this case.  In the result the appeals filed by A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10-Pramod Motiram Ingale  are  dismissed.    But  we allow  the  appeal  filed by A.1-Gopal Maharaj, and set aside the conviction and sentence passed on him by the  High  Court.    His bail bond  will  stand  discharged.    However,  we  confirm  the