JUDGMENT 1. - These two appeals (one represented and the second through Jail) are directed against the judgment dated 22.10.91, passed by the Additional Sessions Judge No. 1, Udaipur, by which the learned Additional Sessions Judge convicted the accused-appellants for the offence under Section 302 Indian Penal Code and sentenced each of them to undergo imprisonment for life and a fine of Rs. 100/- each and in default of payment of fine to further undergo one month's simple imprisonment. 2. The facts of the prosecution case are that on 8.9.86, at about 8.00 a.m., one Mr. Roda informed Rama Rawat, the Sarpanch, that a dead-body of one unidentified person is lying near the bridge of Heeranada and one starter, saw, pillar etc. are, also, lying by the side of the corpse. Rama Rawat, the Sarpanch, after receiving this information, alongwith Hukmi Chand, Bhagwati Lal and some other persons, went to the place where the dead-body was lying and saw a dead-body of a young person of twenty to twenty five years in age and there were some signs of electrocution on the head, neck and legs of the dead-body. Leaving these persons at the place where the dead-body was found lying, Sarpanch Rama Rawat went to Police Station, Gordhan Vilas, Udaipur and lodged the F.I.R. (Ex. P. 1) at 9.15 p.m. During the course of investigation it revealed that the three appellants alongwith PW 26 Rama - the approver-committed the murder of Logar R/o Lokarwas by electrocution. The accused-appellants were tried by the learned Additional Sessions Judge No. 1, Udaipur, for the offences under Sections 302 and 201 Indian Penal Code The prosecution, in support of its case examined thirty-nine witnesses. The accused did not examine any witness in their defence. Out of thirty-nine witnesses, PW 18 Lalu - the father of the deceased, PW 19 Ram Lal, PW 20 Udai Lal, PW 21 Abhey Singh and PW 22 Smt. Sabba - the mother of the deceased - were produced to show that the dead-body found at the place was that of Logar. PW 6 Gopa - father-in-law of the deceased, PW 7 Smt. Kamla, PW 8 Shailu (wife of the deceased), PW 9 Smt. Douli (mother-in-law of the deceased) and PW 22 Smt. Sabba (mother of the deceased) have been produced to show that Smt. Shailu had illicit relations with accused Kanna. PW 6 Gopa - father-in-law of the deceased, PW 7 Smt. Kamla, PW 8 Shailu (wife of the deceased), PW 9 Smt. Douli (mother-in-law of the deceased) and PW 22 Smt. Sabba (mother of the deceased) have been produced to show that Smt. Shailu had illicit relations with accused Kanna. PW 1 Rama, PW2 Kishan Das, PW 3 Heera Lal, PW 4 Chain Ram, PW 5 Ganga Ram, PW 12 Hira Lal, PW 14 Varda, PW 15 Mohan Lal, PW 16 Shanker Lal, PW 23 Bhairu Lal, PW 24 Moda and PW 37 Khema are the Motbir witnesses and they are witnesses either to the recoveries or to the preparation of site-plan etc. PW 31 Mangi Lal, PW 33 Narain Lal, PW 36 Keshar Singh, PW 38 Bhanwar Lal and PW 39 Ummed Singh, S.H.O., are the police witnesses who are involved in the investigation at one stage or the other. The accused did not examine any witness in their defence. The learned Additional Sessions Judge, after trial, acquitted all the accused of the offence under Section 201 Indian Penal Code but convicted and sentenced them as stated above. It is against this judgment dated 22.10.91, passed by the learned Additional Sessions Judge No. 1, Udaipur, convicting and sentencing the accused-appellants that the appellants have preferred these two appeals. 3. While convicting the appellants the learned trial Court relied upon (i) the statement of PW 26 Rama - the approver, which, according to the learned trial Court, stood corroborated by the evidence of Dr. N.S. Kothari and the recovery of saw by Rama near the dead-body which was borrowed by the accused-appellants from PW 26 Rama; (ii) the illicit relations of Smt. Shailu (the wife of the deceased) with accused Kanna, which stands proved from the statements of 7 Kamal Chand and PW 9 Smt. Doli - the parents of the deceased; (iii) from the statements of PW 17 Smt. Laxmi W/o PW 26 Rama that Rama was called by accused Kanna in the fateful night of the incident and did not turn up in the whole night and came in the next day's morning and (iv) the recovery of the wire etc. 4. 4. There is no eye-witness of the occurrence and the prosecution case mainly depends upon the statement of the approver, which is sought to be corroborated from the aforesaid circumstances, namely, the medical evidence, the recovery of the saw; the illicit relations of Smt. Shailu (wife of the deceased) with accused-appellant Kanna; the statement of Smt. Laxmi (w/o PW 26 Rama) and the recoveries of the wire, starter etc. from the place nearby the dead-body. Section 133 of the Indian Evidence Act, which deals with the evidence of an approver, states that a accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeded upon the uncorroborated testimony of an accomplice. Illustration `B' appended to Section 144 of the Indian Evidence Act states that the evidence of an accomplice is unworthy of credit unless he is corroborated in material particulars. The Supreme Court, in the case of Sarwan Singh v. The State of Punjab, AIR 1957 SC 637 had an occasion to consider : whether a conviction can be based on the statement of an approver only and it was held that "an approver is undoubtedly a competent witness under the Evidence Act, but the appreciation of his 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 the witnesses. If this test is satisfied, the second test is that the `approver's evidence must receive sufficient corroboration." This controversy, also, came-up for consideration in the recent judgment of the Supreme Court in the case of; Suresh Chandra Bahri v. The State of Bihar, AIR 1994 SC 2420 : 1994 Cr. L.R. (SC) 725 .The view taken by the Supreme Court in the earlier case of Sarwan Singh (supra) has been reiterated in this judgment and it was held as under:- "Section 133 deals with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice in other words a guilty companion in crime shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. The first part envisages that an accomplice in other words a guilty companion in crime shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if one read Section 133 with Illustration (b) of Section 114 it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 Illustration (b) to Section 114 lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars." A combined reading of the two provisions that is Section 133 and Illustration (b) of Section 114 go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to Section 133 a conviction is "not illegal or in other words not unlawful" merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of Section 114 with a view to emphasise that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to Section 114 is placed in Chapter VII of Evidence Act while Section 133 is inserted in Chapter IX of the Act. The better course was to insert the illustration (b) to Section 114 as an explanation or in any case as proviso to Section 133 of the Act instead of their insertion at two different places and that too in different Chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the Courts should have regard. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the Courts should have regard. It is now well settled that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114 illustration (b) and the Legislature requires that the Courts should make the natural presumption in that section. Though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section ll4." In the light of the law laid down by the Hon'ble Supreme Court regarding acceptance of the evidence of an approver, it is, therefore, clear that the evidence of an approver, who is self- confessed criminal, has to be testified in terms of pardon tendered to him. There is a, real risk in convicting the accused on the basis of the approver's evidence alone because in order to save himself on the basis of the pardon given to him, he can implicate other persons. He is a tainted witness and. his evidence is looked with suspicion and it needs corroboration. Though Section 133 of the Indian Evidence Act states that an approver is a competent witness but in view of Illustration (b) of Section 114 of the Evidence Act, it would be risky to base conviction on the uncorroborated testimony of an approver. 5. Now, it has to be seen: whether the evidence of PW 26 Rama inspires confidence and whether is there it any corroboration to his evidence on material particulars - both as to the commission of the offence as well as to the participation of each of the accused in the crime. PW 26 Rama, though has been declared hostile by the prosecution, but his whole evidence cannot be wiped-out from the record and that portion of his evidence can be read which inspires confidence. He has stated that on 6.9.86, when he was sleeping in his house, Kanna and Toli Ram came to his house and called him. He came out and Kanna thereupon told that in Manwakhera one of his relative is unwell and he should accompany him. Thereafter all of them went there on bicycles. He has stated that on 6.9.86, when he was sleeping in his house, Kanna and Toli Ram came to his house and called him. He came out and Kanna thereupon told that in Manwakhera one of his relative is unwell and he should accompany him. Thereafter all of them went there on bicycles. They went to the well of accused Toli Ram. There Logar was sleeping. Accused Unkar was, already, present there. Toli Ram caught hold of Logar, Kanna gaged him and Unkar sat on his chest and he was standing by the side. Thereafter accused Kanna took a torch in his hand, Toli Ram put the wire in the socket and he started the current and Logar died due to electrocution. Toli Ram then asked him to dispose of the dead-body of Logar, whereupon be enquired who he was but Toli Ram did tell nothing and tried to beat him. Thereafter the other three persons put the dead-body in the field of Toli Ram and there was a tatooing mark on the hand of the deceased. This witness is not related to the other accused in any manner. He has not said in his statement that he had any good relations with the deceased. When the accused had gone to kill another person; they were three in number and wanted to kill Logar with electrocution then there was no necessity for them to take this witness with them to create evidence against them. There was no tatooing mark on the person of Logar nor it was said by any of the witnesses including the parents of the deceased and his wife. Even in the Panchnama, such mark has not been shown. The evidence of this witness is, also, not corroborated from the medical evidence. A number of injuries have been found on the person of deceased Logar and PW 34 Dr. N.S. Kothari, who was the Medical Jurist, General Hospital, Udaipur, and who conducted the post-mortem examination on the dead-body of Logar, has specifically stated that injuries No. 1 to 6 and 13 and 16 cannot be caused by electrocution. It is, therefore, clear that the deceased had two types of injuries - one by electrocution and the others by any other weapon. This witness has not stated that any other injury was inflicted by any of the accused to Logar. It is, therefore, clear that the deceased had two types of injuries - one by electrocution and the others by any other weapon. This witness has not stated that any other injury was inflicted by any of the accused to Logar. Moreover, this witness has stated that the dead-body of Logar was thrown by these accused in the field of Toli Ram while the dead-body was found lying near the First Bridge of Heeranada. We are, therefore, of the opinion that neither this witness is reliable nor is there any corroboration of the evidence of this witness on material from other source points. If the evidence of the approver, viz., PW 26 Rama, goes away, then there is no other evidence to connect the accused-appellants with the crime. 6. The other evidence, relied-upon by the trial Court, for the purpose of corroboration is that of medical evidence but the medical evidence, also, does not support the statement of PW 26 Rama, as there were two types of injuries found on the dead-body of Logar and the injuries Nos. 1 to 6, 13 and 16 cannot be caused by electrocution. 7. The next evidence relied upon by the learned trial Court is the recovery of the saw, which was alleged to have been borrowed by the accused from PW 16 Ram Lal and the recoveries of the wire, starter etc. These recoveries were made from the open place accessible to all and the evidence is not of such a nature which can connect the accused with the crime and otherwise too do not inspire confidence. 8. The next evidence, relied upon by the learned trial Court is relating to alleged illicit relations of PW 8 Smt. Shailu with accused-appellant Kanna. Shailu is a girl of thirteen years of age only and may not know what actually the illicit relations means. Though all the witnesses on this point have been turned hostile and have not supported the prosecution case but the learned lower Court relied-upon the testimony of PW 7 Kamal Chand and PW 9 Smt. Doli-the parents of the deceased. They have only stated that Smt. Shailu was not coming to her in-laws house and was going with accused Kanna on his motor-cycle. They have only stated that Smt. Shailu was not coming to her in-laws house and was going with accused Kanna on his motor-cycle. Merely going on a motor-cycle with accused Kanna by a girl of thirteen years of tender age will not make her a lady of easy virtues particularly when she does not know what sex means. The learned trial Court was, therefore, not justified in accepting this circumstance of alleged illicit relations of Smt. Shailu with accused Kanna against the accused-appellants as the motive for committing the murder of Logar. 9. The next circumstance believed by the learned trial Court is the statement of PW 17 Smt. Laxmi W/o PW 26 Rama (the approver). She has stated that on the fateful night, her husband was taken by accused Kanna and he did not return to the house in the night and reached the house on the next morning. But she has not stated that it was the same night when the incident took place that Rama was called by the accused and he had gone with them. Moreover, we have not believed the testimony of PW 26 Rama - the approver - and as such the evidence of this witness is, also, of no consequence against the accused-appellants. 10. From the above discussion, we are of the opinion that the learned trial Court was not justified in convicting and sentencing the accused-appellants and they deserve acquittal. 11. In the result, the appeals, filed by the accused-appellants, are allowed. The judgment dated 22.10.91, passed by the learned Additional Sessions Judge No. 1, Udaipur, convicting and sentencing the appellants for the offence under Section 302 Indian Penal Code, is set-aside and the appellants are acquitted of all the charges levelled against them. Appellant Kanna is in jail. He shall be released forthwith if he is not required in any other case. Appellant Toli Ram and Unkar are on bail. They need not surrender and their bail bonds shall stand cancelled.Appeals allowed. *******