STATE OF GUJARAT v. GIRASIA MANGALSINH KESHUBHA — 1968 DIGILAW 136 (GUJ)

N. G. SHELAT, B. G. THAKOR, J. ( 1 ) * * * * ( 2 ) THE point however that requires to be determined in this appeal is as to whether the evidence in the case is so sufficient and reliable as to hold the accused liable for the same beyond any reasonable doubt. The prosecution has mainly relied upon the evidence of the approver Sajubha Ex. 8 the son of Pratapsinh for showing that not only the accused killed his father but that both of them had removed his dead body along with various incriminating articles etc. to the well in the Moti Wadi of Swami Narayan Temple and had thrown the same in that well so that it may not be detected by any one. The evidence of this approver is sought to be corroborated by certain circumstances disclosed from other evidence in the case and we shall deal with them in the serial order as they have been urged before us. Before however we consider the effect of the evidence of this approver Sajubha as also the other evidence of a corroborative character in the case it is essential to keep in mind certain principles for appreciating the same. Without going to various decisions which lay down more or less the same principles we can usefully refer to the principles set out in the decision of the Supreme Court reported in Saravanabhavan and Govindaswamy v. State of Madras A. I. R. 1966 Supreme Court 1273. Under sec. 133 of the Indian Evidence Act an accomplice is a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Even so under sec. 114 of the Indian Evidence Act it is provided that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. Ordinarily therefore a Court seeks for corroboration of the evidence of an approver before convicting an accused person on that evidence. Then the Supreme Court has observed as under:-GENERALLY speaking this corroboration is of two kinds. Ordinarily therefore a Court seeks for corroboration of the evidence of an approver before convicting an accused person on that evidence. Then the Supreme Court has observed as under:-GENERALLY speaking this corroboration is of two kinds. Firstly the Court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime secondly after the Court is satisfied that the approvers statement is credible and his part in the crime is corroborated by other evidence the Court seeks corroboration of the approvers evidence with respect to the part of other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime. IN the case of Sarawan Singh v. State of Punjab A. I. R. 1957 Supreme Court 637 it is observed as under:- but it must never be forgotten that before Court reaches the stage of considering the question of corroboration and its adequacy or otherwise the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter and no question as to whether his evidence is corroborated or not falls to be considered. In other words the appreciation of an approvers evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied to second test which still remains to be applied is that the approvers evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver. BUT from this it does not mean that the evidence of an approver is to be dealt with in two water tight compartments and even then the Court has to consider whether the approvers evidence is credible in itself and in doing so it may refer to such corroborative pieces of evidence as may be available_ But there may be cases where the evidence of the approver is so thoroughly discrepant and so inherently incredible that the Court might consider him wholly unreliable. In other words reliability or credibility of the evidence of the approver has to be judged not only by reason of his own evidence but having regard to the other evidence adduced in the case. It must be considered as a whole along with the other evidence in the case. It was however pointed out by Mr. Chhaya the learned Assistant Govt. Pleader for the State by a reference to a decision in Jnanendra Nath Ghose v. The State of West Bengal A. I. R. 1959 Supreme Court 1199 that the moment there is corroborative evidence which connects or tends to connect an accused with the crime such corroborative evidence relates to the identity of the accused in connection with that crime. It is the approvers evidence which is the direct evidence of the crime. In other words his emphasis was that the corroborative evidence should be such which may not entirely connect the accused with the crime but that if it tends to connect the accused with the crime that should be considered enough for acting upon the evidence of the approver provided of course the first test of his reliability is accepted. But as observed in this very decision that corroboration should be in respect of material particulars not only concerning the crime but of the approvers story by evidence which connects or tends to connect an accused with the crime and then the Supreme Court has observed that in our view it is essential to emphasize that it is this corroborative evidence which determines the mind of the Court or a jury that the approvers evidence that the accused committed the crime is true. In our view what must have weighed with the mind of the Court is not only the approvers evidence but the corroborative evidence in respect of material particulars affecting the crime as also the accused having committed the crime. It is so satisfactory that the Court is inclined to treat it as true so as to act upon the approvers evidence. That safeguard is considered well settled for the simple reason that it is the evidence of the tainted character inasmuch as he is a person who is shown to have participated in the crime in question and that he has been promised to be given a pardon from being dealt with in respect of this offence by the State. That safeguard is considered well settled for the simple reason that it is the evidence of the tainted character inasmuch as he is a person who is shown to have participated in the crime in question and that he has been promised to be given a pardon from being dealt with in respect of this offence by the State. While it is difficult to lay down any test for accepting the evidence of an approver witness as also the evidence of the type of the person such as approver and accomplice in the case but those tests have to be the common tests which shall apply before being satisfied about that part of the approver. In the light of observations made by the Supreme Court in the aforesaid decisions and other decisions referred to by the learned advocates for the parties we may deduce the following principles governing the appreciation of the approvers evidence. ( 3 ) AN approver though a competent witness and a conviction based on his evidence alone may not be legally bad it is recognised rule of law that before convicting an accused person on that evidence it must be firstly credible in itself or say of a reliable witness at the same time showing that he had taken part in the crime. Secondly if that initial test is satisfied the Court has to find out whether his evidence finds sufficient corroboration both with regard to the crime as also in relation to the identity of accused in connection therewith from other reliable material on record. Thirdly credibility or reliability of an approver can well be considered as a whole along with the other evidence in the case. The corroborative evidence should be independent and reliable since that weighs with the mind of the Court in acting upon the other part of the evidence of the approver relating to the crime committed by the accused in any such case. With these broad principles before our mind we shall consider the evidence in the case and find out whether the learned Sessions Judge was right in acting upon the same in holding the accused guilty for the murder of Pratapsinh in the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [ His Lordship after discussing the evidence further observed:- ] ( 4 ) THEN comes the other piece of evidence which relates to discovery of certain articles at the instance of the accused. This accused was arrested on 14th May 1968. His house was searched on the 15th and no incriminating articles were found. It was on 16th that both Sajubha and this accused were taken to Sayla by Mr. Tahmane as according to him he had to carry on the inspection work along with the investigation of this case. It has to be remembered that he was at Muli from 13th onwards till 16th and he had carried out the major part of the investigation. It was on 17th May according to the evidence of Mr. Tahmane Ex. 59 read with that of panch witness Jagmal Ex. 21 that this accused showed his willingness to point out certain articles such as Jamaiya Bandi shoes and turban of the deceased. A part of that panchnama was made. Then they were taken in a jeep to Muli police station from where they proceeded to the well which was pointed out by the accused. The attempt of the prosecution is that he had stated before the panchas and the investigating officer about his having thrown Bandi and Jamaiya in the well of Swami Narayan Temple and that it was he who showed his willingness to produce the same. That Jamaiya is suggested to be an instrument used in causing injuries to the deceased by reason of its being found to have stains of human blood. The accused is thus sought to be connected therewith inasmuch as he had thrown the same in the well along with the dead body and other articles. The evidence in this regard consists of panch witness Jagmal Ex. 21 and the P. S. I. Tahmane Ex. 59 read with the recitals about the same in the panchnama Ex. 22 in the case. The evidence of Jagmal is to the effect that when they were at Sayla and before they proceeded for going to Muli the accused had stated before them that he had thrown a Bandi and Jamaiya in the well of the Swami Narayan Temple and a panchnama Ex. 22 in that respect was made. 22 in the case. The evidence of Jagmal is to the effect that when they were at Sayla and before they proceeded for going to Muli the accused had stated before them that he had thrown a Bandi and Jamaiya in the well of the Swami Narayan Temple and a panchnama Ex. 22 in that respect was made. That is one part of the statement said to have been made by the accused before the panchas and the police. Then when they went near the well the accused is further said to have made another statement pointing out the well in which he had thrown those articles. On the basis of these two statements said to have been made by the accused some divers were called and put inside the well and articles Nos. 18 to 26 were discovered by them from the well itself. Now before we consider the evidence of Jagmal and Tahmane and the circumstances relating to the discovery of those articles it has to be ascertained as to whether the accused had in fact spoken about his having thrown those articles in that particular well. In the English deposition of this witness Jagmal recorded by the learned Sessions judge it appears no doubt clear that he had stated about the accused having thrown the articles in the well at both the stages. Mr. Trivedi the learned advocate for the appellant invited our attention to the deposition of this witness recorded in Gujarati and urged that it does not say about the accused having thrown the same in the well. All that it shows is about the articles having been thrown in the well and not as to who had thrown the same. His contention was that the evidence recorded in Gujarati which is the Court language must be taken as a correct record and should outweigh the one recorded in English by the learned Sessions Judge. The language of the Court is Gujarati and the evidence given by that witness Jagmal was also in Gujarati. It can therefore be easily said that it would be ordinarily recorded by the deposition writer in the same words that the witness may have spoken before the Court. The language of the Court is Gujarati and the evidence given by that witness Jagmal was also in Gujarati. It can therefore be easily said that it would be ordinarily recorded by the deposition writer in the same words that the witness may have spoken before the Court. Not only that but it is the Gujarati deposition which is being read over to the witness and it is only after he admits the same to be correct that the learned Sessions Judge puts signature thereon. The Judge is only expected to write a memorandum of evidence and sometimes may not be very accurate though no doubt the learned Sessions Judge has taken down all depositions in full details in this case. It appears also clear that after evidence of any witness is taken by the Court under sec. 356 or sec. 357 of the Criminal Procedure Code it is required to be read over as contemplated in sec. 360 (1) of the Criminal Procedure Code to him in the presence of the accused if in attendance or of his pleader if he appears by pleader and shall if necessary be corrected. If the witness denies the correctness of any part the evidence when the same is read over to him the Magistrate or Sessions Judge may instead of correcting the evidence make a memorandum thereof on the objection made to it by the witness and shall add such remarks as he thinks necessary. We can therefore easily assume that his Gujarati deposition was read over to him and it is only then that the learned Sessions Judge must have put his signature there below. That should have in our view preference to the one recorded by the learned Judge in English and more so as it affects the accused in the case. The benefit of any such doubt arising even if what was recorded in English were correct must go to the accused. What is essential for the Courts is to see that when any such discrepancy arises or is noticed when the deposition is read over to the witness a suitable correction must bemade so that no such conflict arises and that too in respect of the material aspect of the matter. What is essential for the Courts is to see that when any such discrepancy arises or is noticed when the deposition is read over to the witness a suitable correction must bemade so that no such conflict arises and that too in respect of the material aspect of the matter. The learned Sessions Judge has gone on the basis of his record kept in English and allowed the Gujarati deposition to read as it stands which materially touch the accused in the case inasmuch as it makes no reference about the accused having thrown those articles in the well. ( 5 ) IN his Gujarati deposition we find the relevant statement recorded as under :- it does not refer to about his having thrown the same into the well. The word I is not stated there when it has been so stated in his English deposition. It is capable of two interpretations namely as meaning as the learned Sessions Judge thought that he had thrown those articles in the well. It may however more properly mean that all that he said was that those articles were thrown in the well but by whom they were thrown is not stated. Whether he had thrown therein or as to how he came to know about the same having been thrown is not stated. In those circumstances we have to read it as giving no indication as to who i. e. whether the accused had thrown them in the well for any benefit of doubt must go to him apart from its legal effect before the Court as pointed out above. ( 6 ) SO far as his subsequent statement in examination in chief is concerned however the rendering thereof in English is correct inasmuch as it shows the termil (1)before his having thrown the same in the well. In his cross examination he has stated that after going to the well he had said that the muddamal articles were in the well. In Gujarati it runs thus:- however that part of his English deposition refers to about the accused having said that he had thrown the muddamal articles in the well. That obviously refers to the latter part of his having so said to the panchas and it follows therefore that both the statements attributed by witness Jagmal to him are capable of double interpretation. That obviously refers to the latter part of his having so said to the panchas and it follows therefore that both the statements attributed by witness Jagmal to him are capable of double interpretation. They do not clearly and unambiguously take us to think that he meant to convey no other than that about his having stated on both the occasions that he had thrown those articles in the well. We however feel fortified in this view of ours if we were to refer to the evidence of the investigating officer as also the recitals in the panchnama Ex. 22 in the case. Mr. Tahmane Ex. 59 in his evidence has referred to about the accused having told the panchas in his presence that he was willing to point out the Jamaiya as well as the Bandi the shoes and the turban of the deceased and then later on at the well he showed the well stating that the said articles were in the well. Now both these statements do not refer about his having stated that the had thrown those articles in the well. The panch witness therefore has chosen to go a little further than what the investigating officer has stated before the Court. Going then to the panchnama itself Ex. 22 all that it has been stated therein is about his having made the statement at the first stage that he will point out the well in which the above articles are shown. That does not appear to be the correct translation in the Paper Book of what has been stated in the panchnama itself. The panchnama was recorded in Gujarati and the relevant sentence runs thus:- here also he does not make it clear by saying that he would show the well in which he had thrown those articles. As to who had thrown them is not so clearly and unambiguously stated. As to the second statement attributed to the accused having been made at the place when they went near the well there is no reference whatever in the panchnama. The attempt therefore in the first place is to attribute a second statement said to have been made by the accused in the evidence of the panch witness as also the P. S. I. who made the panchnama in respect thereof. The attempt therefore in the first place is to attribute a second statement said to have been made by the accused in the evidence of the panch witness as also the P. S. I. who made the panchnama in respect thereof. Their evidence cannot be accepted particularly when such a recital could never be missed if he had made it near the well when they reached that place. As to the first part of the statement the evidence of both the witnesses as also the recitals in that respect in the panchnama do not show about his having stated that he had thrown them in the well. It is sufficiently vague so as to put other meaning and no attempt has been made either by the learned Judge or by the learned Public Prosecutor who was in charge of the case to have the same cleared. ( 7 ) IT was however urged by Mr. Chhaya that if we read the previous part of the statements in the panchnama (which admittedly are bracketed they being not admissible in law) it would give no other meaning than the one that the accused had thrown the same in the well. He tried to even read that part of it which no doubt up to a particular stage about his having taken away the bundle containing the dead body to a well he refers to have done all that himself. Then comes a sentence which relates to about Sajubha having lifted up the two grinding stones and the same having been tied to the dead body with a rope. Then it refers to about the push given to that bundle and about other articles such as mattress pillow turban Bandi along with Jamaiya and shoes having been thrown in the well. The subsequent sentence does not refer to his having done all that for as we said above it starts with reference to Sajubha and does not make it clear about the accused having done the same. It is no doubt true that the evidence of the approver is to the effect that the accused had then given a push to the bundle containing the dead body of his father and thrown away all the remaining articles of his father into the well. But that has not been so stated in the panchnama itself in clear terms. It is no doubt true that the evidence of the approver is to the effect that the accused had then given a push to the bundle containing the dead body of his father and thrown away all the remaining articles of his father into the well. But that has not been so stated in the panchnama itself in clear terms. Then comes the material sentence saying that he would show the well in which those articles have been thrown. It cannot therefore mean that those articles were thrown by him into that particular well. The attempt on the part of Mr. Chhaya to convince us to the contrary has failed. At any rate it cannot lead to only one conclusion that it was the accused who had thrown those articles in question into the well at that time. The act of throwing attributed to the accused was of considerable importance. In fact if those articles were found as a result of any such statement made by him it would go a long way against him and might as sell serve as a piece of good corroboration to the evidence of the approver for connecting the accused with the commission of the crime. But in that part of the statement is taken away as it must hen what remains is about his having pointed out a well from which certain articles came to be found. Now when such is the effect of the evidence it can be easily said that it would not amount to a circumstance which necessarily can connect the accused with the crime for it is capable of two other possible hypothesis. It may well be that the accused day have seen someone throwing those articles in the well. It may well be that he might have come to know from someone about some such article having been thrown in the well. It may as well be about his having thrown or his having thrown along with some other person such articles in the well. When a circumstance of this character is there and when it is sought to be utilized against the accused it must be clearly established that it is incompatible with his innocence. It may as well be about his having thrown or his having thrown along with some other person such articles in the well. When a circumstance of this character is there and when it is sought to be utilized against the accused it must be clearly established that it is incompatible with his innocence. The mere fact that he has offered no explanation as to how he derived that knowledge in our view cannot necessarily lead us to come to the conclusion that it was this accused who had thrown away the same into the well. The essential onus for showing the same would obviously lie on the prosecution and it is only when that is established and established beyond any reasonable doubt that an explanation may well be required from the accused. In this connection it has to be noted that this well was not in his own field. It was in a Wadi belonging to the Swami Narayan Temple. The well was open and quite accessible to any other person. In fact no guard was at all kept on this well down from the time when the dead body was found on 12-5-68 till this accused is said to have got a discovery of the articles made on 17 Thus this part of the circumstance cannot help the prosecution to connect the accused with the commission of the crime even on the basis that these articles were found from the well and that they belonged to the deceased. ( 8 ) MR. Trivedi had also attacked the evidence of this panch witness Jagmal on some other grounds. One was that when the investigating officer had to take the accused to Muli where the place was situated and in fact where the incident had taken place there was hardly good reason for him to carry panchas from Sayla. To that it was said that since the investigating officer was at Sayla and as the accused showed his willingness at that place he called the panchas before whom such a statement could be made. In the first place Mr. Tahmane was all along at Muli down from 12-5-68 to 16-5-68 and was investigating the offence. The accused and Sajubha were with him at Muli. In the first place Mr. Tahmane was all along at Muli down from 12-5-68 to 16-5-68 and was investigating the offence. The accused and Sajubha were with him at Muli. If any such statement leading to the discovery to be made at the instance of the accused was to be made he could have been taken to Muli Police Station and have the panchas called there from Muli for that purpose. Besides the other panch was an illiterate person. In cases of this character wherever possible the panchas should be quite literate and responsible persons so as to read at any rate what was written in the panchnama itself before putting his thumb impression or signature thereon. It is not that no such literate persons were available. In matters relating to such panchnamas where statements attributed to the accused are to be recorded and which are sought to be utilised against him unless a perfect and unimpeachable record is maintained the confidence of the accused persons is liable to be shaken. Wherever therefore literate persons are available in matters of this kind where any such statements are sought to be attributed to the accused the Courts would certainly expect the investigating officers to take good care to avail themselves of the services of literate people. This Jagmal has as already pointed out here above chosen to improve upon his version in Court by making a reference to two statements said to have been made by the accused when only one was made as would appear from the panchnama and that again by adding the words that the accused had thrown the same in the well. He had thus shown considerable anxiety to improve upon the recitals of the panchnama already made and help the prosecution in the case. He has also denied to have been prosecuted for some criminal complaints in the Court of the Magistrate at Sayla. The accused had produced copies of two of the complaints filed against him in the Court with view to show that he was prosecuted. Those complaints have no doubt come to be settled with the result that he came to be acquitted under sec. 345 of the Criminal Procedure Code. The fact however remains that he chose to deny that fact much though those complaints were disposed of only a few months before the date of the incident. Those complaints have no doubt come to be settled with the result that he came to be acquitted under sec. 345 of the Criminal Procedure Code. The fact however remains that he chose to deny that fact much though those complaints were disposed of only a few months before the date of the incident. In our view his evidence also does not create much confidence in our minds. The other point is about the investigating officer having taken with him Sajubha as well. There was hardly any justification for the investigating officer to take him along with him particularly when only the accused was to point out a place from where certain articles were to be traced. This Sajubha knew everything about the incident. He was in fact at the well even when the dead body was taken out from the well. He had seen the well. There was nothing to be discovered. Apart from that this well was seen both by the investigating officer as also Sajubha at the time when the dead body was found and even thereafter no attempts were made to find out all possible articles from the well. The attempts must have been no doubt made fully. We would naturally expect the investigating officer to have the well properly searched with a view to find out all possible articles from the well which were connected with this crime or even other articles if found lying therein. In fact iron hookswere pup with a view to have taken out any articles even lying below the water. Not only that but even the divers were put inside the well for the same purpose. If therefore any such articles had remained to be in the well after the dead body was taken out they could have certainly been brought out therefrom. The accused had not concealed anything inside the well. Nor had he gone inside the well for taking out articles from any particular spot or place known to him. This is not therefore a case in which anything was required to be discovered and which could only happen at the instance of the accused in the case. The attempt is to fasten that statement to him with a view to show that he had thrown those articles and more particularly the Jamaiyaarticle 24 in the case. This is not therefore a case in which anything was required to be discovered and which could only happen at the instance of the accused in the case. The attempt is to fasten that statement to him with a view to show that he had thrown those articles and more particularly the Jamaiyaarticle 24 in the case. No inference can therefore arise out of any such statements attributed to the accused. We shall also show how and in what circumstances the articles were sought to be traced and point out that it is not at all safe and in no way free from any doubt even about these articles having been found from the well. 23 Now of the four articles said to have been found from the well at the instance of the accused the most important is the Bandi article 18 in the case. That was found to contain in one of its pockets a Jamaiyaarticle 23 and in some other packet a key said to have been of a box in which certain documents relating to lands etc. were kept. The other articles were turban and shoes. The shoes have not been found from the well and so far as the turban is concerned it is difficult to understand how it could not have been floating on the water of the well and not found at the time when the dead body was taken out along with various other articles. Now the evidence of Sajubha in relation to this Bandi is that it was below the pillow on the mattress on which deceased Pratapsinh was sleeping. The dead body of Pratapsinh was wrapped in that very mattress which was obviously stained with blood and after having wrapped the same the other articles such as the pillow Bandi etc. were also tied to the piece of cloth along with it. As would appear from the evidence of Sajubha he had seen both the turban and Bandi being also tied with it. It would therefore follow that the Bandi must have been taken out either by the accused or by himself and then tied in a bundle in which the dead body of his father was wrapped. His cross examination reveals that he did not see the accused placing the Jamaiya in that Bandi at that time. It would therefore follow that the Bandi must have been taken out either by the accused or by himself and then tied in a bundle in which the dead body of his father was wrapped. His cross examination reveals that he did not see the accused placing the Jamaiya in that Bandi at that time. He also admits to have made no inquiries as to with what instrument the accused had caused those injuries to his father; nor was he told about it. It is therefore difficult to understand how and when this Jamaiya article ( 9 ) COULD have been placed in the pocket of this Bandi. This Jamaiya was kept in a sheath and then placed in the pocket of the Bandi. This Jamaiya was sent to the Chemical Analyser and the Serologist and it was found to have on it stains of human blood. However it was not possible to ascertain that it was of the same group of blood as that of deceased Pratapsinh so as to connect that very instrument as being used in causing injuries to Pratapsinh. With all that in respect of this Jamaiya Sajubha has been cross examined and it appears from his evidence that he had never seen this muddamal Jamaiya article 23 with the accused at any time before this incident. Not only that but on his own showing when the accused tame to his house just after killing his father he had with him a `chhari. That `chhari was pointed at him while giving him a threat that if he did not accompany him for disposing of the dead body he would be killed. In fact according to him he had flourished that `chhari at him. He could not however say whether it was stained with blood or not. It also appears from his evidence that `chhari was being kept by this accused during last 2 or 3 years. It is not that that`chhari was in itself a Jamaiya article 23 and there is no other evidence to show that this accused was having any such Jamaiya with him at any time. It also appears from his evidence that `chhari was being kept by this accused during last 2 or 3 years. It is not that that`chhari was in itself a Jamaiya article 23 and there is no other evidence to show that this accused was having any such Jamaiya with him at any time. The possibility was greater about the accused having made use of a `chhari if at all he had used it rather than any other instrument since he had with him that `chhari at that mid hour of the night when he goes to call Sajubha for accompanying him to the `utara and then for disposing off the dead body. It can therefore be easily said that the prosecution has failed to show any real connection about this Jamaiya article 23 having been used in the commission of this crime and the same being of the accused himself. ( 10 ) THEN it was found to contain a key article 24 and it appears from the evidence of panch witness Bhaskar read with the recitals in the panchnama Ex. 23 that it was with this key that one box which was locked was opened on the same day. That box was found to contain some documents etc. relating to the lands and as we have already pointed out here above some of them were in the name of Sajubha himself. The evidence in the case also clearly shows that Sajubha was managing the property since at any rate last 2 or 3 years and it was therefore more probable that the key of such a box which contained all those documents relating to lands etc. would be with him. In fact we find from the evidence of his own wife Nirmala Ex. 17 that the key of the lock of that box in which documents were kept remained with her husband. Much though therefore this Sajubha has stated about this key also remaining with his father apart from the probability of the same being with the approver the evidence of his own wife Nirmala clearly shows that it remained with Sajubha and not with his father. Even in his confessional statement Ex. 36 Sajubha has made no such statement at all saying that the key of the lock remained with his father. Even in his confessional statement Ex. 36 Sajubha has made no such statement at all saying that the key of the lock remained with his father. ( 11 ) WITH all this it is further surprising that this Bandi article 18 was not found to have stains of blood. If it was so tied with the dead body having received bleeding injuries along with other blood stained articles ordinarily speaking that Bandi would have some stains of blood. In fact that circumstance also creates considerable suspicion in our mind about the same having been put in that bundle along with other articles and thrown in the well. In our view therefore that part of the circumstance sought to be used for connecting the accused with the commission of the crime by reason of the instrument Jamaiya article 23 and the Bandiarticle 18 cannot be accepted as in any way reliable in the case. The possibility about the same having been thrown by anyone in the well cannot be ruled out for as we said above the well was open unguarded and accessible to anyone during the time from 12th to 17th May 1968. The learned Sessions Judge has not properly considered all such aspects and has been carried away by an impression that since no suggestion is made in the cross examination of Shri Tahmane that the police either knew about this fact before hand or that the said articles were thrown subsequently into the well by someone and was made to point out the same before panchas only with a view to implicate the accused with the said offences he accepted that evidence as quite reliable and true. Now it is true that no such suggestions have been made as observed by the learned Sessions Judge. But in our view there is hardly any reasonable justification to think that such suggestions are always essential to be made in cross examination. The evidence of a witness has to be judged on its own strength applying suitable tests and if it is found to be acceptable there may arise some point to be considered if no such suggestion is made in the cross examination. Courts may no doubt expect some suggestions made provided they were in view of the defence within the knowledge of the accused either directly or indirectly. Courts may no doubt expect some suggestions made provided they were in view of the defence within the knowledge of the accused either directly or indirectly. But when that is not so and when that is not a part of a clear cut defence it would be too much to expect an advocate to necessarily put some such suggestions in crossexamination. Such inferences have to be drawn having regard to the trend of the cross examination and if they bear out the possibility of some such thing happening it would hardly sound reasonable for the Court to give any such emphasis over such a fact that the accused has not made any suggestion in the cross examination of the witness. The accused in the case may not be knowing how and in what manner such articles came into the well. He may be able to only see that they were taken out from the well and if he were to say that such an article was not found from the well one would expect him to cross examine the witness on that point by at any rate suggesting that particular article was not found at that stage at that time. The necessity of such suggestion to be made in the cross examination depends upon some such circumstances and is not required in all cases necessarily. ( 12 ) THE next circumstance relied upon by Mr. Chhaya was in respect of muddamal underwear article 30 said to have been produced by Kashibhai the father of the accused on 19 5-68. The evidence of Mr. Tahmane is to the effect that the accused wanted to change his clothes and that for that purpose he i. e. Mr. Tahmane asked his father to bring his clothes. Thereupon he brought a pant a `khesia a `bandia and one underwear at the police station on 19-5-68. As it appeared to Mr. Tahmane that there were some stains of blood which were washed off he called the panchas and attached this underwear article 30 by making a panchnama in respect thereof. Kashibhai has denied to have produced any such clothes before the police. He was therefore required to be treated as a hostile witness to the prosecution. We may however accept the evidence of Mr. Kashibhai has denied to have produced any such clothes before the police. He was therefore required to be treated as a hostile witness to the prosecution. We may however accept the evidence of Mr. Tahmane read with that of the panch witness Bhaskar when they say that of those four clothes an underwear was in their view found to have some stains of blood washed away and on that basis they attached the same. Then from the evidence of Sajubha an attempt was made to show that this underwear was put on by the accused at the time of the commission of this crime. Since he had put on this underwear at the time when the incident took place some blood must have touched his underwear when he caused injuries to Pratapsinh on that night and much though those stains were washed some still remained and it is that way that the prosecution attempts to connect this accused with the crime in question. Turning to the evidence of Sajubha the recording of the evidence of Sajubha went on for two days. It appears that no such question was put in the examination in chief relating to the dress said to have been put on by the accused at the time of the commission of the crime. It was after the cross examination was over that an application Ex. 9 came to be presented by the learned Public Prosecutor appearing for the State in the case for being permitted to put some questions in re examination. If we turn to the application Ex. 9 all that has been stated is that it is necessary to ask some questions about the clothes put on by the accused at the time of the incident and that he may be permitted to do so. The permission was granted by the Court as prayed for. It is that way that for the first time after the whole examination of this important witness was over that he has been allowed to put such a question. His evidence in that respect then is that after the incident when the accused came to call him he had put on an underwear and a `pyjama. He has then stated that he can identify the underwear put on by the accused at that time and has then identified article 30 as the same before the Court. His evidence in that respect then is that after the incident when the accused came to call him he had put on an underwear and a `pyjama. He has then stated that he can identify the underwear put on by the accused at that time and has then identified article 30 as the same before the Court. In cross examination the question put to him was that such underwears were available in the market. Now in this connection it is clear from the evidence of Mr. Tahmane that the house of this accused was searched on 15th and no incriminating articles were found therefrom. Even if the accused had put on such an underwear and had received stains of blood from that of the body of Pratapsinh while giving blows with a Jamaiya that he had that night it would be too much to think that he was to keep such an underwear which was put on by him in his house and even if he did it would be too much to think that his father would not be able to see the stains of blood thereon and that he would carry it on to the police station and present it to the P. S. I. for the accused to put on there. Besides this underwear is not shown to have stains of human blood. All that the report of the Chemical Analyser shows is that there were stains of blood and it was not possible to say that they were stains of human blood. We also find that Kashibhai had three sons; as to of what age we do not know and it may well be that they underwear may be of any of his sons. But more than that is the absence of any such statement made by this Sajubha in his confessional statement about this accused having put on any such underwear at the time when the incident took place. He would not fail to say so for after all he had gone to call him immediately after killing his father and that too for removing the dead body from that `utara. He would not fail to say so for after all he had gone to call him immediately after killing his father and that too for removing the dead body from that `utara. He could therefore see that the underwear put on by him must have stains of blood at that stage and when such a thing has not been stated by him it can be easily characterized as he has done so in respect of several other circumstances as out to improve upon the version and make it such as could be utilised against the accused in the case. His desire to get pardon would be far too uppermost in his mind and it is that which appears to have led him to make improvements as can suit the prosecution so as to connect the accused with the commission of the crime. ( 13 ) IT was next urged by Mr. Chhaya that the learned Sessions Judge has found the evidence of Sajubha most convincing and acceptable evidence and in view of the remarks made by him in the judgment about his evidence in the case this Court should accept his evidence and act upon the same. He invited a reference to the remarks made by the learned Sessions Judge in his judgment in para 22 and they are as follows :-I have seen the demeanour of the witness in the witness box. He appeared to be a simple unsophisticated person. He was giving his deposition in a very straight forward manner without mincing words. As a matter of fact it appeared to me that he was incapable of mincing words. NOW the appellate Court would no doubt pay due attention to the remarks made by the trial Court in respect of the demeanour of the witnesses who gave evidence before it. The Judge hearing the witness is no doubt entitled to make such remarks. But we may in this connection refer to sec. 363 of the Criminal Procedure Code under which such remarks can be made. Sec. 363 says that when a Sessions Judge or Magistrate has recorded the evidence of witness he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination. But we may in this connection refer to sec. 363 of the Criminal Procedure Code under which such remarks can be made. Sec. 363 says that when a Sessions Judge or Magistrate has recorded the evidence of witness he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination. On that basis in the first instance the Judge or the Magistrate as the case may be must feel that such remarks are necessary and material for the purpose of or in respect of the demeanour of such witness whilst under examination and that if he so thinks he shall record such remarks if any at that time i. e. while recording his evidence and at the most if they are to be of a general character about his demeanour at the end below his deposition so that the parties and their advocates know about the same before they can put forward any arguments about the reliability or otherwise of any such witness. That would prevent a party from attacking the same in the appellate Court on the ground that the learned Judge or the Magistrate as the case may be by saying that the Court may have forgotten about the same later on or about the same having been made with an eye to the appellate Court which may not be able to easily disturb the view it has taken of the evidence of such a witness in view of such remarks. While we do not go to the length of saying that having not made any such remarks at the time when the evidence is recorded of any particular witness the Judge is precluded from doing so at a later stage in his judgment we feel it necessary to impress upon the Judge or the Magistrate as the case may be that it is always desirable and necessary to record such remarks if at all they are to be made about a witness examined before him at the time while his evidence is recorded or at the foot of his evidence in the end. That would give a detached view of the witness then formed and has nothing to do with the other evidence or the conclusions or inferences drawn or formed later on in the case. That would give a detached view of the witness then formed and has nothing to do with the other evidence or the conclusions or inferences drawn or formed later on in the case. Normally speaking such remarks may be of some value in case they are adverse against the witness but they do not carry the same if they are not adverse and made with a view to strengthen the view taken about the evidence of such a witness. We find often such remarks about the witnesses examined in the case made in the judgment and they have appeared to be so made more often in such high degrees with an eye to the appellate Court so as to serve against any different view being taken of the evidence of any such witness by the appellate Court. That however should not be and it is enough if the Court can express it in simple language about being well impressed by his evidence or the like. We have been taken through the entire evidence of this witness as also of other witnesses examined in the case. On a consideration thereof we do not think that any such remarks made by the learned Sessions Judge relating to the demeanour of the witness should deter us from disbelieving him in the circumstances of this case. The evidence of a witness has to be judged mainly and broadly on the strength of the nature of the evidence he has given in the case and not on so much as to how he has been able to impress the Court while in the witness box. ( 14 ) LASTLY it was urged by Mr. Chhaya that such a murder could not have been committed by only one person and that there must have necessarily been more than one person and he went to the length of saying that even if the accused has not committed the crime and when the approver also has not committed the same who else could have committed and thereby suggesting that the approvers evidence should be believed when he says that it was the accused who must have committed the crime in collaboration and at any rate with connivance and assistance of the approver. We wish such an argument were not advanced before us. We wish such an argument were not advanced before us. We are concerned with as to whether the other co conspirator with Sajubha was this accused and no other and the mere fact that there was or may be some other person it is too much to suggest or urge that necessarily the second man was no other than this accused. The cumulative effect of the discussion that we have made here above is that the evidence of the approver is not so very reliable and at any rate and in any event the evidence which is sought to corroborate that of the approver in this case has created the least confidence in us and it does not help in any manner so as to connect the accused with the commission of this crime beyond any reasonable doubt. We therefore disagree with the findings and the conclusions arrived at by the learned Sessions Judge in holding the accused guilty and sentencing him as stated here above. ( 15 ) IN the result therefore the appeal is allowed and the order of conviction and sentence passed against the appellant accused is set aside. The accused is acquitted as the offence against him is not proved beyond any reasonable doubt. .