Judgment :- 1. This appeal and referred trial arise out of S.C. 26 of 1957 on the file of the Sessions Judge, Palghat. 2. There were seven, accused persons at the trail. Of these, one, namely the 4th accused, has been acquitted. Of the remaining six accused, accused 1, 3 and 6 have been convicted under S.3.02 read with S.34 I. P. C.; accused 2 and 5 have been convicted under S.302 read with S.149 I.P.C., and all have been convicted under S.147 I.P.C Accused 1, 2, 5, 6 and 7 have each been sentenced to rigorous imprisonment for two years for the offence of rioting and the 1st accused has been sentenced to death and accused 2,5 and 6 to rigorous imprisonment for life for the offence of murder. (We might here remark that the liability of accused 2 and 5 on the charge of murder being under S.149 I. P. C. no separate sentence ought to have been awarded to them for the offence under S.147 I. P. C.). The 3rd accused being below the age of 16 has not been awarded any sentence but has been dealt with under S.27 (1) of the Madras Children's Act, IV of 1920. 3. The prosecution case is briefly as follows: Accused 1 and 2 who are divided brothers are rich and influential landlords of the village of Moongalmada in the Chittur Taluk of this State bordering on the Pollachi Taluk of the Madras State. They have a brother by the name of Chinnaswami Goundan who, about one and a half years before the occurrence which took place on the night of be 1st February 1957, eloped with Pw. 2 the married daughter of Pw.1 (a labourer dependent on the 1st accused) who had left her husband and was living with her parents. He lived with her in Palani for about three or four months. Then her mother went to Palani and fetched her back and, Apparently with a view to keep her out of Chinnaswami Goundan's reach, took her to the house of her (the mother's) brother, the deceased Velayudhan Ezhuthessan, aged 28 in Kannadi about ten miles away and left her there. There Pw. 2 was living until about four days before the occurrence when she came back to her parents in Moongalmada. There Pw. 2 was living until about four days before the occurrence when she came back to her parents in Moongalmada. It is said that it was the apprehension on the part of accused 1 and 2 that this would result in the renewal of the intimacy between Pw. 2 and their brother that led to the events culminating in the murder of the deceased. 4. Ext. P-I9 is a plan of the scene of offence. N, O and P therein form the kalam or farm house of the 1st accused, 0 being the dwelling house in which he, was living with his, family. The kalam is about one and a half furlongs south of the main Palghat-Pollachi road and about three furlongs south-west of the chowki post (marked D) at the boundary of the two States. Pw. 1's house, where Pw. 2 was living at the time, is marked A on the northern side of the road practically opposite the chowki post, while the 2nd accused's kalam is marked N and is about two and half furlongs south-east of the 1st accused's kalam. 5. Accused 3 to 7 are servants and dependents Of the 1st accused, and so is the 20 year old Pw. 7, who was also a participant in the crime and was originally an accused, but has turned approver. He lives with his parents, Pws. 4 and 5 in the house market K. The remaining Accused live either in or near the 1st accused's kalam. 6. On Friday the 1st February 1957, a little after sunset, accused 1 to 7 and one Muthur Ramaswami Goundan, a farm servant of the 1st accused (who was also an accused in the case but is still at large) assembled in front of the house of one Venkattaswami Pillai (referred to by the witnesses as Andaman Dweepukaran or Andamankaran) marked E in the plan, hardly ten feet south of the chowki post, D. From there the 1st accused sent the approver's mother Pw. 4 to fetch Pw. 2 from the house of her parents. A moment later he despatched the approver on the same mission asking him to decoy Pw. 2 on the pretext that she was wanted by her former paramour. 4 to fetch Pw. 2 from the house of her parents. A moment later he despatched the approver on the same mission asking him to decoy Pw. 2 on the pretext that she was wanted by her former paramour. But instead of doing so, the approver went to the house and warned Pw.1 that the Ist accused was after her and asked her 'to run for her life. Out of fright Pw. 2 and her parents ran away from the house. Pw. 2 and her mother took shelter in the house of one Palaniappa Goundan some distance away while PW. 2's father Pw. 1, stationed himself behind the big banyan tree marked C to watch the further developments. By then accused 2 to 7 and Muthur Ramaswami Goundan had approached Pw. 1's house and found that their prey had flown and, suspecting that the approver was responsible for this, they caught him and took him to the 1st accused Who was still outside the Andamankaran's house directing the operations. On being told what had happened, the 1st accused gave the approver a few blows and asked the 7th accused and Ramaswami Goundan to take him to his kalam. Seeing this the approver's parents, Pws. 4 and 5, went to the 1st accused and begged of him to let their son off. The 1st accused relented and the approver was set free. 7. By them it was round about 8 P. M., and just then to his misfortune the deceased came and alighted from a bus at the road junction J apparently on a visit to his sister and brother-in law (Pw. 1) and proceeded to their house just opposite. On seeing this, the 1st accused, who having been baulked of his prey was apparently, looking for some other victim, despatched the 7th accused and Ramaswami Goundan to fetch the deceased and, when they brought him, he caught hold of the deceased and gave him a few blows and handed him back to the 7th accused and Ramaswami Goundan to be taken to his kalam. But the deceased freed himself from their hold and ran to Pw. 3's tea-shop (marked G) for shelter, Pw. 3 would not let him enter the shop for fear of trouble, and the 1st accused who had run in pursuit of the deceased caught him by his tuft and took him back to the Andamankaran's house. But the deceased freed himself from their hold and ran to Pw. 3's tea-shop (marked G) for shelter, Pw. 3 would not let him enter the shop for fear of trouble, and the 1st accused who had run in pursuit of the deceased caught him by his tuft and took him back to the Andamankaran's house. Then, after giving him a few more blows, the 1st accused handed him over to the 7th accused and Ramaswami Goundan with the direction that he should be taken to his kalam and tied up and detained there. Accordingly the 7th accused and Ramaswami Gounden took the deceased to the 1st accused's kalam and, some time later, accused 1, 2 and 5 got into the 1st accused's bullock cart which had mean while been fetched by the 3rd accused and went in it to the 1st accused's kalam driven by the 2nd accused and followed by accused 3 and the and the approver. 8. When the party reached there they found that the 7th accused and Ramaswami Goundan had faithfully carried out the 1st accused's directions and had kept the deceased seated on the of the house (0) leaning against a pillar and with his hands tied behind him to the pillar with ropes. Then under the 1st accused's orders the 6th accused began beating the deceased on the soles of his feet with a whip, the 3rd accused holding the deceased's legs in position for the purpose. After a while they exchanged places as directed by the 1st accused and then, again under the 1st accused's directions, the 4th accused brought a stone and struck the deceased with it on the back of his neck. Next, apparently so that everybody should play his part, the 1st accused ordered the approver to beat Velayudhan with a whip. The approver did so. After that the approver and accused 3,4 and 6, again acting under the orders of the 1st accused, took turns in beating the deceased with bamboo sticks all through the night until some time before day break. Then, under the 1st accused's orders, the 5th accused brought an Etna burner from the 1st accused's engine shed near by and the 5th accused and one Kandaswami Asari of Mannur, a mechanic who had come to repair the 1st accused's engine (a person whom the investigating officer was unable to trace) lighted it for him. Then, under the 1st accused's orders, the 5th accused brought an Etna burner from the 1st accused's engine shed near by and the 5th accused and one Kandaswami Asari of Mannur, a mechanic who had come to repair the 1st accused's engine (a person whom the investigating officer was unable to trace) lighted it for him. The 1st accused held the burner to the deceased's face with the flames licking the face, and he held it so until the whole face was charred. All this while the deceased was crying for mercy. But his cries of, "Master, don't kill me" fell on deaf ears. After the deceased's whole face was charred the 1st accused stopped the burning and then under his orders accused 3, 5 and 6 bound the deceased's hand and feet together and suspended him thereby with a rope from the rafter with his back almost touching the floor. At that time there was still some life left in him. 9. Satisfied with their night's work the 1st accused went inside his house while the 2nd accused left for his house. The approver and the 4th accused slept on the pial while the Asari and the 5th accused sat on a bench near by. At day-break when it was found that the deceased was dead, the 5th accused sent the approver and the 4th accused to fetch the 2nd accused They went and told the 2nd accused what had happened and the 2nd accused went in a cart to fetch one Kumaraswami Goundan of Pudur. He came back after a while without Kumaraswami Goundan and then went to the 1st accused's kalam accompanied by the approver and the 4th accused. The approver and accused 5 and 6 and the Asari next took the deceased's body to the plantain garden Q about 50 yards south of the house and left it there. The 1st accused came there and, after inspecting the body, went back to the house. Some time in the course of the morning, it is not clear when, the 3rd accused threw into the well. V, about 60 yards north of the house, the ropes, M 0.2, which had been used for tying up and suspending the deceased. The 1st accused came there and, after inspecting the body, went back to the house. Some time in the course of the morning, it is not clear when, the 3rd accused threw into the well. V, about 60 yards north of the house, the ropes, M 0.2, which had been used for tying up and suspending the deceased. The whip and the sticks used for beating the deceased were burnt by the 5th accused while the approver and accused 4 and 5 washed away the blood on the pial. After some time the 3rd accused's mother came and informed them that an excise party had arrived and were searching the 1st accused's land. All the accused and the approver then ran away, and at about sunset, after the excise party had left, the approver and accused 1/2, 3, 5 and 6 returned to the 1st accused's kalam. Then under the instructions of the 1st accused the approver and accused 3, 5 and 6 took the dead body in two gunny bags and left it in the turmeric garden, R, about 200 yards to the east. They then returned to the 1st accused's house. After night fall the approver slipped away and went home. His mother advised him to run away and he ran away and was arrested by the investigating officer at Nallappally, nine miles away, on 10-2-1957. 10. That night (the night of Saturday the 2nd February) the deceased's body was taken in a bullock cart underneath a heap of fire-wood to the Korayar river in Pudur about three miles to the north. At about 8 P. M., Pw. 15 and his brother-in-law, Pw. 16, who were returning along the Palghat-Pollachi road, from a shandy about four miles to the east to their village about six miles to the west, saw a bullock cart loaded with fire-wood turn from the main road into the Panchayat road branching off the main road at the point marked T in the plan and leading northwards to Pudur. It was followed by another bullock cart, a savari vandi. The 3rd accused was driving the bullock cart loaded with fire-wood while the 6th accused was seated by his side. The 1st accused was driving the savari vandi, and somebody whom they could not make out, was inside that cart. It was followed by another bullock cart, a savari vandi. The 3rd accused was driving the bullock cart loaded with fire-wood while the 6th accused was seated by his side. The 1st accused was driving the savari vandi, and somebody whom they could not make out, was inside that cart. Although it was a dark night they were able to see the carts clearly and identify accused 1, 3 and 6 by the aid of the torch light which Pw. 16 was flashing. 11. That night Pws. 20 and 21, two brothers working as farm servants under one Chinnakutty Goundan of Pudur, were directed by their master to go to his land just south of the Korayar river (and marked as No. 10 Kadu in the plan) for some work there. After taking their food they went and stationed themselves on the northern bank of the river waiting for their master who came a little later accompanied by one Kumarayya Goundan in the savari vandi belonging to the 1st accused. Then as ordered by their master, Pws. 20 and 21 followed Kumarayya Goundan to the southern side of the river and there they found a bullock cart loaded with fire-wood standing in the bed of the river. Accused 3 and 6 were by its side. Then, as directed by Kumarayya Goundan, the 3rd accused drove the bullock-cart westwards to the side of the rock marked B2 in the middle of the river bed and took out the fire-wood and some straw which Were in the cart. At the bottom, Pws. 20 and 21 found a dead body wrapped in two gunny bags. The body was that of an adult male wearing a blue shirt, and the face was burnt and charred Pws. 20 and 21, helped by accused 3 and 6, removed the body from the cart as ordered by Kumarayya Goundan. When Pw. 20 asked Kumarayya Goundan what the matter was, the latter gave rib answer but admonished him. Then they piled the fire-wood on the rock B2, put the body on it, piled the remaining firewood and placed the gunny bags (which were blood-stained), and the straw on the top of the pile. Then Kumarayya Goundan and Pw. 20 went to Kumaraswami Goundan's cattle shed marked fell in the plan and brought two tins of kerosene oil. Then they piled the fire-wood on the rock B2, put the body on it, piled the remaining firewood and placed the gunny bags (which were blood-stained), and the straw on the top of the pile. Then Kumarayya Goundan and Pw. 20 went to Kumaraswami Goundan's cattle shed marked fell in the plan and brought two tins of kerosene oil. Some of the kerosene oil was poured over the pyre and it was set on fire. After it had begun burning Kumarayya Goundan and accused 3 and 6 left the place in the cart asking Pws. 20 and 2.1 to remain there till the body was completely burnt. 12. While Pws. 20 and 21 were watching the burning pyre, the 1st accused and two others came to the northern bank of the river and called Pw. 20. Pws. 20 and 21 went there. The 1st accused asked them whether the body was completely burnt and when Pw. 20 replied that it was only half burnt the 1st accused directed them to pour the remaining kerosene oil on the pyre and put out the fire after the body was completely burnt and to go home at day-break. As they were returning, the 1st accused gave Pw. 21 Rs. 10. Pws. 20 and 21 were not able to make out who the other two persons with the 1st accused were, but Pw. 21 thought that they might perhaps be their master Chinnakutty Goundan and Kumaraswami Goundan. Returning to the pyre, Pws. 20 and 21 poured the remaining kerosene oil on the pyre and waited there until day-break. Some of the bones still remained partially unburnt and they removed these bones from the pyre and concealed them under some weeds and bushes on the southern side of the river bed at the spot marked B3. Then they left the place after washing the rock clean. 13. On the night of the occurrence, after seeing his brother-in-law, the deceased, marched to the 1st accused's kalam followed by the accused and the approver, Pw.1 left his hiding place behind the banian tree in search of his wife and daughter and, after discovering them, took them to the house of Pw. 14, a big man in Kozhinhampara, five miles away and slept there that night. He saw Pw. 14, a big man in Kozhinhampara, five miles away and slept there that night. He saw Pw. 14 when the latter got up in the morning and reported to him what had happened and sought his assistance. Leaving Pw.1 and his wife and daughter there, Pw. 14 went to the 1st accused's kalam and reached there a little before noon. He found the 2nd accused there, and, to his inquiry, the 2nd accused replied that the deceased had left the previous night and was not there. Pw. 14 then returned home and advised Pw.1 to make further inquiries at the deceased's village of Kannadi before making a report to the police. Pw.1 accordingly went to Kannadi and made inquires of the deceased's wife, Pw. 13, and learned from her that the deceased had not returned after leaving his house on the 1st of February. Pw.1 went back to Pw. 14 with this information the next day (that is on the 3rd February) and Pw. 14 sent him to make a report to the police. Pw.1 however did not go to the police station but went about from place to place making inquiries until the 6th when, on learning that the deceased had been murdered, he got the petition, Ext. P-I, written by somebody at the Kozhinhampara Jaggery Society of which Pw. 14 is the secretary and, after signing it, presented it at about 7.45 P.M. to Pw. 24, the Sub-Inspector of Police, Kozhinhampara, at the Police Station. It was on this petition that the case was registered and investigated. 14. Pw. 25, the Inspector of Police, Alathur, who received the express report in the case at about 1 P. M. the same day, took up the investigation and proceeded to Moongalmada which he reached at about 2 P. M He questioned Pws. 1, 2 and 6 the same day, Pws. 4,5 and 14 the next day, and Pws. 3 and 13 on the 9th. On the 10th he arrested the approver at Nallapalli and questioned him. The same day, accompanied by the approver, he visited the 1st accused's kalam and recovered the Etna burner, M.O.1, from the verandah of the house. The approver pointed out the well V, and from this Pw. 25 recovered the rope, M. 0.2, the next morning with the help of Pw. 19 and another diver. On that day (the 11th February) he questioned Pws. The approver pointed out the well V, and from this Pw. 25 recovered the rope, M. 0.2, the next morning with the help of Pw. 19 and another diver. On that day (the 11th February) he questioned Pws. 20 and 21 and they took him to the place marked B3 in the river bed where, under the weeds, Pw. 25 found and seized a big bone, M 0.3.On and around the rock B2, Pw. 25 found some chips of bones and he seized them as also some charcoal and ashes which he found at the place. 15. M. 0.3 and the chips of bones were partially burnt and the evidence of the doctor, Pw. 8, and of the expert, Pw. 10, (the Professor of Forensic Medicine, Medical College, Trivandrum) shows that M. 0.3 is a portion of the backbone of a human being over the age of 20. 16. On 14-2-1957, Pw. 11, the First Class Magistrate, Chittur, recorded the confession, Ext. P-10, from the approver after observing all the necessary formalities and after taking due precautions to ensure its voluntary nature. On 26-3-1957 the approver was taken before the Additional District Magistrate, Palghat, who tendered him a pardon under S.337 of the Criminal Procedure Code. 17. The accused were absconding. The 2nd accused was arrested by Pw. 25 on 29-3-1957 while the remaining accused surrendered before court on various dates between 30-3-1957 and 15-5-1957. As already mentioned Muthur Ramaswami Goundan is still absconding. 18. The case of the accused both at the preliminary inquiry and at the trial was one of complete denial. They knew nothing whatsoever about the alleged death of the deceased and the entire case was, so far as they were concerned, a complete fabrication, 19. The accused examined no witnesses in their defence. 20. The learned Sessions Judge convicted accused 1 to 3 and 5 to 7, as already mentioned accepting the evidence of the approver for which he found sufficient corroboration in the evidence regarding the incident that took place outside the Andamankaran's house, the evidence relating to the disposal of the body, and the evidence relating to the recovery of M. Os. 1, 2 and 3. 21. 1, 2 and 3. 21. The prosecution depends in large measure on the evidence of the approver in fact on the charge of murder there is no direct evidence apart from his - and the first question to consider is whether that evidence is intrinsically worthy of credit leaving aside for the moment the consideration that it is tainted evidence requiring corroboration before it can be acted upon. That we are afraid it is not. For the story which the approver has narrated strikes us as an improbable story, and the approver himself as a most unreliable witness even as approvers go. 22. The first thing that impresses us about this story is that there seems to be no adequate motive for so cruel and so revolting a murder; and, in a case like this, depending on circumstantial evidence and the testimony of an accomplice motive assumes some importance All that the prosecution has alleged with regard to motive is that accused 1 & 2 resented the intimacy of their brother with Pw. 2 and were determined to put an end to it. For that it was scarcely necessary to commit such a crime Pw. 2 and her parents are poor people dependent on the 1st accused whose very word is, according to the case of the prosecution, law in that area. A mere word from him would have sufficed to send Pw. 2 back to her uncle in Kannadi, and it was by no means beyond the resources of the 1st and 2nd accused to drive her and her parents away from the place if that was necessary. Even assuming that they were on that day intent on terrorising Pw. 2 and her parents and, baulked of their prey, turned their attention on the deceased, that can hardly account for the way in which the 1st accused chose to put the deceased to death by long drawn out torture of the most cruel kind imaginable. And this in the open pial of his own dwelling house, with his family inside the house and the main bus road hardly 11/2 furlongs away and a chowki post within three furlongs. And this in the open pial of his own dwelling house, with his family inside the house and the main bus road hardly 11/2 furlongs away and a chowki post within three furlongs. The evidence further shows that the locality was subject to frequent prohibition raids indeed there was one while the body was still lying in the plantain garden and even if the 1st accused did decide to do away with the deceased one would have expected him to do that with some despatch and dispose of the body without delay rather then leave the victim hanging all but dead from the rafter of his own house and risking discovery every moment. Even assuming that the 1st accused had some motive to torture the deceased (and in this connection there is a statement by the approver both in his evidence and in his confession, Ext. P-10 that while the deceased was being tortured the 1st accused was asking him whether it was not he who had set fire to the 2nd accused's shed which had burnt down about a week earlier, a matter in respect of which there is no other evidence forthcoming and a charge which, on the face of it, is highly improbable seeing that the deceased is a person living about ten miles away and having nothing to do either with the 1st or with the 2nd accused) and had therefore set about burning his face, there was no question of letting the deceased who was almost dead remain alive thereafter. For, that would have meant certain peril for the accused themselves. Naturally the conduct of the accused would have been to kill the deceased straightaway and dispose of the body without delay, and the story of the deceased having been hung from the roof to remain there till the morning seems to us most improbable. Had the case been that, some how or other, the deceased had died at the hands of the accused, and that they then set about burning his face to prevent identification and later to dispose of the body, it might have sounded more plausible, but the story as spoken to by the approver is one which we find it very difficult to believe. 23. 23. The learned Sessions Judge himself thought that there was not sufficient motive for the accused to perpetrate so heinous a crime, and his finding that it may be said that accused 1 and 2 were not without motive to do harm to the deceased who was the uncle of Pw. 2 is tantamount to saying that no motive had been shown. Both with regard to the motive and with regard to the manner of the perpetration of the crime, the prosecution case seems to us unacceptable. 24. The approver's participation in the crime, which alone gave him the opportunity to bear witness to it, seems to us even more doubtful. On his own showing he was a person who had been dismissed from the service of the 1st accused about a year prior to the occurrence. It is hardly likely that the 1st accused would have made use of such a person for services of the nature which the approver claims to have performed; and what strikes us as most improbable is that, after having been saved from a fate similar to that which overtook deceased only by the intercession of his parents, the approver should have remained at the spot (instead of having made himself scarce as any normal person would do in such circumstances) and, of his own accord, accompanied the accused to the kalam to participate in the strange and cruel drama that was enacted there. He was free to go away; no one asked him to stay; and it is not the case that his release was on condition of his services being conscripted. 25. Although in his confession, Ext. P-10, the approver spoke in broad outline more or less to the same story as he deposed to at the trial, his testimony at the preliminary enquiry Was to the effect that he knew nothing whatsoever about the case; that as soon as the police arrested him they told him that if he gave evidence as directed by them he would be pardoned and that otherwise he would be hanged; and that with a view to get a pardon he told the magistrate the lies the police had directed him to tell. In the face of this it would be dangerous to act upon his evidence at the trial even if it were otherwise acceptable, & we might remark that, even at the trial, the approver repeated that the Police Inspector told him that he was implicated in the murder and that if he gave evidence for the prosecution he would be taken as approver and that otherwise he would be hanged. At another stage he said that when the police sent him to the magistrate they told him that if he did not make the statement they gave he would be hanged, and that hence he made the statement to the magistrate. We think that the learned Sessions Judge too readily discounted this unequivocal admission by the approver that the statement he made in Ext. P 10 (which statement he repeated at the trial) was not a true and voluntary statement, as an admission made in the stress of cross-examination, accepting the approver's statement elsewhere in his evidence that the Inspector did not ask him to depose in that manner and that he did not make any false statement before the magistrate. And we think that he too readily committed himself to the theory that because during the six months that elapsed between the making of the confession, Ext. P-10, and the approver's examination in the committing magistrate's court, the approver and some of the accused were lodged in the same sub-jail, (whereas on the commencement of the trial on a request made by the Public Prosecutor they were lodged in different sub jails) that during their contact in the sub jail the accused must have prevailed upon the approver to depose as he did at the preliminary enquiry. That the 1st accused is a rich and influential person while the approver is a, poor cooly dependent on him is again not sufficient reason for accepting the approver's explanation that it was out of fear of the 1st accused that he did not depose to the correct facts in the committing magistrate's court. That the 1st accused is a rich and influential person while the approver is a, poor cooly dependent on him is again not sufficient reason for accepting the approver's explanation that it was out of fear of the 1st accused that he did not depose to the correct facts in the committing magistrate's court. Equally probable, in fact more probable in the light of the approver's admission regarding the circumstances in which he came to make the confession, is the inference that his confession and his evidence at the trial were the result of extraneous pressure (which at the trial had this added weapon in its armoury, namely, that unless the approver went back to Ext. P 10 he could be convicted of murder on the strength of that confession) and that his evidence at the preliminary enquiry was a lapse into the truth at a time when that pressure could not conveniently be exercised either owing to the presence of some of the accused in the same sub jail or for other reasons. In the light of what has been already said regarding the confession, Ext. P 10, we do not think that the learned Sessions Judge was justified in holding, on the strength of that confession, that what the approver said in the committing magistrate's court must be untrue and that what he said at the trial was to be accepted in preference. Nor are we impressed with his refusal to believe that within a week of his arrest, the approver could have mastered such a long and complicated story connecting several incidents and involving a large number of persons, or that even if he did master such a story, he would be able to repeat it at the trial after a lapse of eight months. Any one who has experience of the evidence of the approvers must know that their stories are usually very long and very complicated stories, abounding in a wealth of circumstantial detail (doubtless with an eye to the independent corroboration which the law requires), and that their truth or falsity has nothing to do with the facility with which such stories are mastered and repeated. 26. 26. It is no doubt open to a court to believe a witness in the face of a completely contrary previous statement made by him, but then it must have convincing reasons for holding that his present testimony is true and that his previous statement is false. Ordinary prudence dictates that one should be slow in believing a person who has committed himself to different statements at different times and when as in this case, a witness has spoken to a story which is inherently improbable and quite contrary to what he himself stated on oath on a previous occasion, it goes without saying that his story must be rejected as unworthy of acceptance. We see no reason whatsoever for accepting the approver's testimony at the trial supported though it be by his confession Ext. P-10 in preference to his denial of all knowledge of the occurrence not merely at the preliminary enquiry in this case but also, it would appear, at the preliminary enquiry in another case charged under S.201 I. P. C. against some of the present accused and some others. 27. The approver's evidence having failed to pass the very first test, a test which as has been pointed out in Sarwan Singh v. State of Punjab, A.I.R. 1957 S.C. 637 is common to all witnesses, namely, the test of reliability, the question whether it has secured that independent corroboration, both with regard to the crime and the criminal which the law requires, does not really arise. The inquiry should rather be whether the remaining evidence in the case is sufficient to sustain the conviction. The learned Public Prosecutor's argument that should not be so and that the remaining evidence in the case would satisfy us that the approver's story must be true, is but another way of saving much the same thing. To compel us to accept the approver's story, the other evidence must, having regard to what we have said about the approver's testimony, be of such a character as to well nigh sustain a conviction on its own strength. 28. Since part at any rate of that other evidence, namely, the evidence of Pws. To compel us to accept the approver's story, the other evidence must, having regard to what we have said about the approver's testimony, be of such a character as to well nigh sustain a conviction on its own strength. 28. Since part at any rate of that other evidence, namely, the evidence of Pws. 20 and 21 stands, in our opinion, on the same footing as accomplice evidence, it might be as well to repeat what has so often been said by the courts in India including the Supreme Court, that the law in India with regard to accomplice evidence is no different from the law in England, that it is a rule of practice so invariable and peremptory that it must be regarded as having hardened into a rule of law that the judge must be fully and expressedly alive to the need for independent corroboration in material particulars both with regard to the offence and the offender, that one accomplice cannot corroborate another, and that although no doubt a previous statement of an accomplice satisfying the requirements of S.157 of the Evidence Act can be used to corroborate his testimony, it is not the independent corroboration required by this rule. Notwithstanding the lip service paid by some decisions to S.133 of the Evidence Act and the theoretical possibility of a judge, whilst having the need for corroboration in mind, being able to muster sufficient reasons for acting on the uncorroborated testimony of an accomplice, we think it safe to assert that, save in the most exceptional circumstances, no court will record a conviction on such evidence. 29. The learned Public Prosecutor concedes that, without the aid of the approver's evidence, he will not be able to support the conviction of murder although he would still press the charge of rioting. As we have said his attempt has been to persuade us to accept the evidence of the approver in the light of remaining evidence. We shall now proceed to consider that evidence. 30. As we have said his attempt has been to persuade us to accept the evidence of the approver in the light of remaining evidence. We shall now proceed to consider that evidence. 30. For the first incident which took place outside the Andamankaran's house, which would go to establish the change of rioting, and would be an important piece of circumstantial evidence on the charge of murder in that it would show that the deceased was last seen alive in the hostile company of the accused, who, after having assaulted him, had taken him in captivity to the 1st accused's kalam from which he never emerged The witnesses examined by the prosecution to prove this part of its case are Pws. 1 and 3 to 6. (Pw. 2 it will be remembered had run away before the deceased's arrival). Of these, Pws. 3 to 6 did not support the prosecution at the trial and their depositions in the committing magistrate's court were received in evidence under S.288 of the Crl. P. C. and were accepted as true by the learned Sessions judge in view of the prior statements of Pws. 3 to 5 under S.164 Crl. P. C. Now, it is no doubt true that evidence received under S.288 Crl. P. C. is to be treated as evidence in the case for all purposes; but it does not follow from that it must be accepted and acted upon. It might be that such evidence is not to be regarded as tainted evidence like that of an accomplice, and, as an abstract proposition of all law, it might be correct enough to say that evidence so accepted does not as a matter of law or caution require independent corroboration before it can be acted upon. But as a rule of prudence, which, perhaps, has not yet hardened into a rule of law, the courts will be slow to act upon evidence that has been recanted by its very maker. And decisions are not wanting in support of the view that evidence received under S.283 Crl. P. C. though no doubt substantive evidence is not to be safely relied upon in the absence of corroboration. (See for example In re Chinna Papiah, A. I. R.1940 Mad. 136). Although we do not wish to lay it down as an absolute proposition that independent corroboration is required before evidence received under S.288 Crl. P. C. though no doubt substantive evidence is not to be safely relied upon in the absence of corroboration. (See for example In re Chinna Papiah, A. I. R.1940 Mad. 136). Although we do not wish to lay it down as an absolute proposition that independent corroboration is required before evidence received under S.288 Crl. P. C. can be acted upon, we would hesitate and look for compelling cause before recording a conviction on such evidence in the absence of such corroboration. We might remark that courts do sometimes fall into the error of thinking, though unconsciously, that because such evidence is evidence for all purposes under the provisions of S.288 Crl. P.C, it must be accepted; thus unwittingly giving the witness greater credit than if he had given the same evidence at the trial as at the preliminary enquiry. 31. This infirmity apart, the story spoken to by Pws. 3 to 6 at the preliminary enquiry is, on the face of it, not improbable excepting that would still appear to be no sufficient reason for the accused to have indulged in such a wanton attack on the deceased. Great reliance is placed by the prosecution on the evidence of Pw.1 in proof of its case regarding the incident in front of the Andamankaran's house. But it is precisely this evidence that prevents us from accepting that case notwithstanding the support lent to it by what Pws. 3 to 6 said at the preliminary inquiry. For, in the light of Pw. 1's admitted conduct after he left his hiding place, and in the light of the petition, Ext. P 1, which he presented at the police station five days later, we find it very difficult to accept his present evidence as true. 32. What Pw.1 said in Ext. P-1 was that accused 1 to 6 accompanied by the approver and Pw. 5 and Andamankaran and about ten others went to his house at about 8 P. M. on the 1st of February, armed with knives, sticks, ploughshares and other deadly weapons and that he and his daughter ran away and escaped. At about this time his brother-in-law the deceased came to the house and happened to fall into the hands of the unlawful assembly. The members of that assembly, namely, the accused and the others, repeatedly beat him with boots and sticks. At about this time his brother-in-law the deceased came to the house and happened to fall into the hands of the unlawful assembly. The members of that assembly, namely, the accused and the others, repeatedly beat him with boots and sticks. Then they carried him bodily to the 1st accused's kalam, his arms and legs broken. All this Pw.1 saw hiding near the chowki post not far off. 33. This it will be observed is a story greatly at variance with the present story according to which there was no trespass into Pw. 1's house, no deadly weapons, and no assault on the deceased such as to incapacitate him but only a few blows for which he was little the worse off and which did not prevent him from walking unaided, although in captivity, to the kalam of the 1st accused. The reason for the change, which we have no doubt is deliberate, is apparent; for, without such a change it would be well-nigh impossible to explain away Pw. 1's subsequent conduct. 34. If what he said in Ext. P-1 were true - & Ext. P-1 being the first information given by an aggrieved person who claims to be an eye-witness, the prosecution cannot easily be allowed to go back upon it - Pw. 1 knew that serious injuries involving the breaking of limbs had been inflicted on his brother-in-law and that he had been carried away to the 1st accused's kalam where, in all probability, worse was to befall him. Yet Pw.1 did not seek the assistance of the chowkidars or of any persons in the locality Worse still, although he passed by the Kozhinhampara Police Station on his way to Pw. 14's house, he did not choose to report the matter to the Police and, what is still more surprising neither did Pw. 14 (a respectable and influential man of the place and a previous M. L. A. whose assistance Pw.1 sought and which assistance was readily forthcoming) advise Pw.1 to make such a report. On the contrary he asked Pw.1 to make further enquiries before going to the police, and when Pw.1 went to the deceased's house for the purpose and questioned the deceased's wife, Pw. On the contrary he asked Pw.1 to make further enquiries before going to the police, and when Pw.1 went to the deceased's house for the purpose and questioned the deceased's wife, Pw. 13, about the deceased's whereabouts he admittedly did not tell her anything of what he knew, but was content to elicit the information that the deceased had not come back after he had left his house on the 1st February. This is most surprising of all and is, by itself, sufficient to show that neither what Pw.1 said in Ext. P-I, nor what he has now chosen to say, can be believed. If there were the least truth in what Pw.1 has deposed to, it is incredible that he should not have told Pw. 13 what had happened to her husband. 35. It seems to us highly improbable that Pw.1 would have remained at the spot to observe and make a note of the further, conduct of the riotous assembly. There was no reason for him to do so. His wife and daughter had escaped, and his brother-in-law the deceased had not arrived. It is possible that, assuming for the moment the truth of prosecution story. Pw. I ran away with his wife and daughter and saw nothing of what happened thereafter, that in order to persuade the police to prompt and effective action he embodied in Ext. P-1 an exaggerated version of the information he had gathered in the course of his four day's enquiry, and that to make assurance doubly sure, he pretended that he was speaking from personal knowledge. This is no doubt possible. But it is only conjecture. It is not the case of the prosecution or of Pw. 1. 36. We think it unnecessary to go in to the discrepancies in the evidence regarding the occurrence in front of the Andamankaran's house, but we might observe that the evidence of pws. 3 to 6 does not show that, after being beaten, the deceased was removed to the 1st accused's kalam. 37. For this, and for what happened in the kalam that night and the day after, there is only the evidence of the approver regarding which we have said enough. For the events of the night of the 2nd February, leading to the burning of the body, we do not set much store by the evidence of the way-farer witnesses, Pws. For this, and for what happened in the kalam that night and the day after, there is only the evidence of the approver regarding which we have said enough. For the events of the night of the 2nd February, leading to the burning of the body, we do not set much store by the evidence of the way-farer witnesses, Pws. 15 and 16, illuminated though it be by Pw. 16's torch light Even if we accept it, it does not amount to much. All that it shows is that a cart-load of firewood was taken towards Pudur by accused 3 to 6 and that the 1st accused followed this cart in another cart. It is on the evidence of Pws. 20 and 21 that this part of the prosecution case depends. 38. Now, on their own showing, Pws. 20 and 21 suspected foul play, and to use the very words of Pw. 20, when he found blood-stains on the gunny bags and the burning on the face of the dead body, he suspected murder, in fact, he though that it was a case of murder. Nevertheless they voluntarily assisted in disposing of the body by burning it and thus causing disappearance of evidence of the murder. After having burnt the body they swept the rock and washed it. They could not afford to wait until the body was completely burnt, for day-break would risk discovery, and so they concealed the unburnt bones in various places This, according to the evidence of Pw. 20, they did of their own accord, and they received Rs. 10 as a reward from the 1st accused for their services. If what they have said is true there can be little doubt that Pws. 20 and 21 are guilty of an offence under S.201 I. P. C. in respect of the murder alleged to have been committed by the accused even if they did not know who the murderers were. The object of their activities could have been to cause the disappearance of evidence so as to screen the offenders from punishment. 39. There is no doubt that Pws. 20 and 21 are what is known to the English law as accessories after the fact and there is equally no doubt that in England they would be regarded as accomplices whose evidence required independent corroboration before it could be acted upon. 39. There is no doubt that Pws. 20 and 21 are what is known to the English law as accessories after the fact and there is equally no doubt that in England they would be regarded as accomplices whose evidence required independent corroboration before it could be acted upon. (See Para.561 and 844 of Halsbury, III Edition, Vol. X, and the House of Lord's decision in Davies v. Director of Prosecutions, (1954) 1 All. E. R. page 507, where the rule regarding accomplice evidence is set out and the question as to what is an accomplice within the meaning of the rule is discussed at page 515 of the report). The Privy Council has treated an accessory after the fact as an accomplice whose evidence required corroboration in two cases arising from as far afield as Swaziland and Fiji. (See Mahadeo v. The King, A. I. R.1936 P. C. 242 and Mahlikilali v. The King, A. I. R.1943 P. C. 4). After all the reasons for requiring independent corroboration with regard to an accessory before the fact, or a principal, apply with equal force to an accessory after the fact whether it be in England or in India. And it is to be remembered that in most cases, as in the present case, there will only be the evidence of the accessory himself to show that he was nothing more and was not a participant in the actual crime. To accept an accessory after the fact as a clean witness, if we might use that expression, would often be to enable a participant to parade as such a witness merely by deliberately withdrawing himself from the actual act while at the same time retaining his connection with the subsequent events so as to give him the inside knowledge necessary for his figuring as a witness. Supposing an accessory after the fact were not to be treated as an accomplice, then it would mean that witnesses like Pws. 20 and 21 in the present case would be clean witness on the charge of murder. Conversely, we suppose, the approver who did not participate in the offence under S.201 I. P. C. would be a clean witness, in a prosecution for that offence. The impossibility of this position would be manifest if we imagine a common trial for the two offences under S.302 and 2011. Conversely, we suppose, the approver who did not participate in the offence under S.201 I. P. C. would be a clean witness, in a prosecution for that offence. The impossibility of this position would be manifest if we imagine a common trial for the two offences under S.302 and 2011. P. C. as there well might be in certain circumstances. Pws. 20 and 21 would be accomplices whose evidence would require corroboration with regard to the minor offence under S.201, but they would be untainted witnesses requiring no such corroboration for the major offence under S.302, I. P. C. conversely the approver would be an accomplice so far as the charge under S.302, I. P. C. is concerned, but an untainted witness in respect of the charge under S.201, I. P. C. And we might also remark that, had Pws. 20 and 21 been charged with murder as they might have been on the strength of their participation in the disposal of the body, they could have been convicted under S.201, I. P. C. even without a charge under that section. We are of the view that whether or not Pws. 20 and 21 can properly be described as accomplices in respect of the offence of murder, their evidence is tainted evidence standing on the very same footing as the evidence of an accomplice and requiring the same measured corroboration. We do not think that the observations on this question in Ramaswami Goundan v. Emperor, I.L.R. 27 Mad. 271 and in In re Sattar Khan, A. I. R 1939 Mad 283 which have been followed by the learned Sessions Judge are correct, and we might point out that some other High Courts have taken the same view as we have (see for example, Alimuddin v. Queen-Empress, I. L. R 33 Cal. 361, Darshan Lal v. Munnoo Singh, A. I. R.1937 Shyam Kumar Singh v. Emperor, A. I R.1941 Oudh.130 and Ismail Hassan Ali v. Emperor, A. I. R.1947 Lahore 220) and that the Supreme Court has stated, although not expressly with reference to this particular question, that the law in India with regard to accomplice evidence is the same as the law in England. (See the observation in Rameshwar Kalyan Singh Singh v. State of Rajasthan A I. R.1952 S. C. 54, at para 17 of the judgment). 40. The evidence of Pw. (See the observation in Rameshwar Kalyan Singh Singh v. State of Rajasthan A I. R.1952 S. C. 54, at para 17 of the judgment). 40. The evidence of Pw. 20 shows that there is a burning that by the side of the river, and the circumstance that, with the help of Pws. 20 and 21, Pw. 25 was able to collect chips of bones and the big bone, M. 0.3, from the bed of the river in the Vicinity of the rock is hardly corroboration of the story of these witnesses. In the circumstances little turns on the evidence of the expert witnesses that M 0.3 is a portion of the back-bone of a human being above the age of 20. 41. On its own merits, the evidence of Pws. 20 and 21 does not appear to be entitled to much weight, for they do not seem to be dependable witnesses. To give but one example of their prevarications they have now attributed to the 1st accused the part they assigned to their master, Chinnakutty Goundan, when questioned by the investigating officer. And they have pretended that they did not see their master at the scene or, at any rate, did not make him out. It also seems to us somewhat unlikely that the 1st accused, who obviously utilised the agency of others like Chinnakutty Goundan and Kumarayya Goundan to get rid of the body so as to keep his connection with the crime a secret, would have presented himself at the burning of the body to reveal his secret to Pws. 20 and 21. 42. We might also draw attention to one other circumstance in dealing with the evidence of Pws. 20 and 21. It was a dark night and the body was wrapped in gunni bags. Yet Pws. 20 and 21 claim to have noticed that the face was charred and that there was a blue shirt on the body. This they saw by the light of the electric torch which Kumarayya Goundan was flashing from time to time. It was not necessary for Kumarayya Goundan to flash the torch on the body to help Pws. 20 and 21 with their work and it is to be presumed that since he was not prepared to take them into confidence he would have avoided doing so. It was not necessary for Kumarayya Goundan to flash the torch on the body to help Pws. 20 and 21 with their work and it is to be presumed that since he was not prepared to take them into confidence he would have avoided doing so. It looks suspiciously as if the charring of the face and the blue shirt noticed by Pws. 20 and 21 were dictated by an appreciation of the importance of establishing the identity of the body with that of the deceased (the deceased's wife Pw. 13 has said that the deceased was wearing a blue shirt when he set oat from his house); and in this connection we might remark that in the absence of proof of such identity there would be little to show, apart from the evidence of the approver, that the alleged victim of the murder is really dead. Further, that this very appreciation dictated the burning of the face with the Etna burner spoken to by the approver. And, of course, the charring noticed by Pws. 20 and 21 would be corroboration of the approver's story regarding the crime. 43. The discovery of an Etna burner in the verandah of the 1st accused's house means little, since the 1st accused admittedly owns such a burner, apparently for the purposes of his engine. Nor does much turn on the fact that some ropes were found inside a well (And here it is to be remarked that the actual recovery of the ropes was only the day after P.W. 25 reached the kalam with the approver). There is only the evidence of the approver to connect either the Etna burner or the ropes with the crime, and the learned judge fell into an obvious error when he thought that the identification of the ropes and of the burner by the approver amounted to independent corroboration of his testimony. 44. The other circumstances relied upon by the learned Subordinate Judge as offending independent corroboration of the approver's testimony are hardly worthy of mention. They are detailed in Para.35, 36 and 37 of the judgment. 44. The other circumstances relied upon by the learned Subordinate Judge as offending independent corroboration of the approver's testimony are hardly worthy of mention. They are detailed in Para.35, 36 and 37 of the judgment. Briefly speaking they are that the investigating officer found a plantain garden and a turmeric garden near the 1st accused's kalam as spoken to by the approver; that when P. W.14 went to the kalam the next morning to inquire about the deceased he found only the 2nd accused there thus corroborating the evidence of the approver that the 2nd accused had been sent for that morning and that on seeing P.W. 14 come the 1st accused had hid himself; and that the fact that the kerosene oil for burning the body was brought from Kumaraswami Goundan's shed supported the approver's story of the 2nd acccused having gone in search of Kumaraswami Goundan obviously to enlist his help. 45. We reject the evidence of the approver as altogether unworthy of credit. We are not prepared to act upon the evidence of P.Ws. 20 and 21, and the remaining evidence in the case does not serve to make out any of the charges against the accused. 46. In the result we allow the appeal, set aside the conviction and sentence against the several accused and acquit them. The reference is answered accordingly. Allowed.