Judgment M.L.Visa, J. 1. Being aggrieved by judgment and order dated 23.11.1987 by IIIrd Additional Sessions Judge, Nawada in Sessions Trial No. 33 of 1987/428 of 1984 convicting and sentencing all the three appellants to undergo rigorous imprisonment for life under Secs. 302/34, Indian Penal Code, the appellants have come before this Court in this appeal. 2. The case of prosecution in short, is that informant Ramchandra Puri (PW 6) used to work in the farm of one Balbhadra Prasad Singh and local persons, in order to grab his land, were agitating against him and had stopped local labourers from working in this farm and they had also asked the informant not to work there but the informant did not listen to them and for this reason, two months prior to 13.12.1979, Krishna Lal, Babulal Rajwar, Dharik Yadav and 40 to 50 others, after catching hold of informant, took him to another village, namely, Sikaria and gave him threatening to assault but they released him on the news of arrival of Magistrate and police. Again on 9.11.1979, Prasadi Yadav, Lakhan Paswan and 30 to 40 others cut the paddy crop from the field of informant. Inspite of these happenings, the informant continued to work in the farm of Balbhadra Prasad Singh. On the night intervening 12.12.1979 and 13.12.1979, the informant was in the farm of Balbhadra Prasad Singh when on 13.12.1979 at about 9 a.m., Bisheshwar Puri (not examined), brother of informant, informed him that his (informants) wife Sumitra Devi, aged about 32 years then, had been killed on the previous night while she was asleep by some unknown criminals by pressing her neck. On this information, the informant, alongwith his brother, came to his house from the farm and found the dead body of his wife placed on a cot and on perusal of her body, it appeared that she was murdered by pressing her neck. Finding his wife dead and his children crying, the informant could not go to the police station to lodge the information and he sent the information to police station through Dafadar. Fardbayan (Exhibit 5) of informant was recorded by Sub Inspector Raghuvansh Narain Singh (PW 10) on 13.12.1979 at 12.45 p.m. at the residence of informant. Finding his wife dead and his children crying, the informant could not go to the police station to lodge the information and he sent the information to police station through Dafadar. Fardbayan (Exhibit 5) of informant was recorded by Sub Inspector Raghuvansh Narain Singh (PW 10) on 13.12.1979 at 12.45 p.m. at the residence of informant. In his fardbeyan (Exhibit 5), the informant raised suspicion against persons who were stopping him from working in the farm of Balbhadra Prasad Singh and who were indulged two months prior to recording his fardbeyan (Exhibit 5) in stray incidents. On the basis of fardbeyan (Exhibit 5) of informant, formal first information report (Exhibit 6) under Sec. 302, Indian Penal Code was drawn against unknown. After investigation, police submitted chargesheet against the appellants and Kailash Puri under Secs. 302/34. Indian Penal Code. After taking cognizance, the case was committed to the Court of Session where charge under Secs. 302/34, Indian Penal Code was framed against all the three appellants and Kailash Puri and they all were put on trial. On the conclusion of trial, co accused Kailash Puri was held not guilty and was acquitted but so far appellants are concerned, they were found guilty under Secs. 302/34, Indian Penal Code and were convicted and sentenced to undergo rigorous imprisonment for life. The case of appellants, as it appears from the trend of cross-examination of prose-cution witnesses, is complete denial of charge framed against them and their false implication. 3. Altogether ten witnesses have been examined in this case on behalf of prosecution. Zohra Khatoon (PW 2) and Ram Tirath Singh (PW 3) have not supported the case of prosecution and they have been declared hostile. Anuj Kumar Singh @ Manoj Singh (PW 7) is a tendered witness. 4. Ram Prasad Singh (PW 8) is the doctor who had held autopsy on the dead body of deceased. Abhay Shankar Prasad (PW 9) is a judicial Magistrate who recorded the confessional statement of Rajendra Puri (PW 1). Ram Chandra Puri (PW 6) is the informant. Shiv Balak Puri (PW 4) is brother of Rajendra Puri (PW 1) to whom PW 1 had disclosed that he (PW 1), appellants and co-accused Kailash Puri had committed the murder of deceased. Madhusudan Singh (PW 5) had seen the appellants and co-accused Kailash Puri at a place near fire with two to four bottles of liquor. Shiv Balak Puri (PW 4) is brother of Rajendra Puri (PW 1) to whom PW 1 had disclosed that he (PW 1), appellants and co-accused Kailash Puri had committed the murder of deceased. Madhusudan Singh (PW 5) had seen the appellants and co-accused Kailash Puri at a place near fire with two to four bottles of liquor. Raghuvansh Narain Singh (PW 10) is the Investigating Officer. 5. Ram Prasad Singh (PW 8), in his evidence, has said that on 14.12.1979, he was posted at Nawada Sadar Hospital when he held post- mortem examination on the dead body of deceased and found that eyes and mouth of the dead body were closed and blood was coming from both nose and rigor mortis was present. There were finger marks on the neck on both sides and cut marks of teeth were found on left palm. Echymosis was found on all over the face and left upper arm and front of the left upper chest lavia majore and minora were cut by sharp weapon as per the above towards downward. According to him, the cause of death was by asphyxia and shock caused by throttling and all the injuries were ante mortem and time elapsed since death was at least 36 hours. He has proved his post-mortem examination report which is in his pen and signature (Exhibit 3). From his evidence, it appears that the death of deceased was homicidal and she died of throttling. 6. The entire case of prosecution hinges on the evidence of Rajendra Puri (PW 1) who has been treated by Court below as an approver. It appears that on 8.7.1985, Rajendra Puri (PW 1) filed a petition before Court for treating him as an approver and for pardon under Sec. 307, Code of Criminal Procedure and State also filed a petition for treating him as an approver and tendering him pardon. His prayer was allowed and he was tendered pardon. From the evidence of Abhay Shankar Prasad (PW 9), it appears that on 7.2.1980, confessional statement of Rajendra Puri (PW 1) was recorded by this witness when he was posted as Sub-Divisional Judicial Magistrate at Nawada. He has proved this confessional statement which is marked Exhibit 4. 7. His prayer was allowed and he was tendered pardon. From the evidence of Abhay Shankar Prasad (PW 9), it appears that on 7.2.1980, confessional statement of Rajendra Puri (PW 1) was recorded by this witness when he was posted as Sub-Divisional Judicial Magistrate at Nawada. He has proved this confessional statement which is marked Exhibit 4. 7. Rajendra Puri (PW 1), in his evidence has said that on the night between 12.12.1979 and 13.12.1979, he went to sleep in the cabin of his water pump and when he prepared his bed, appellant Babu Lal went to call him and he with appellant Babu Lal went to Goshala of a Math where he found appellants Bisheswar and Narmadeshwar Puri alongwith coaccused Kailash Puri already present and about seven to eight bottles of liquor were also kept there and appellants Narmadeshwar and Bisheswar asked him to drink and he was first not ready to drink but on their insistence, he also drank and felt some intoxication. thereafter, they all told him that they wanted to kill the wife of informant and when he said that he would raise hulla, appellant Narmadeshwar Puri put a pistol on his chest and appellant Babu Lal Kahar put a chura on him saying that in case he raised hulla, he would be killed. Thereafter, he, appellants and co-accused Kailash Puri went to the house of informant Ram Chandra Puri where Babu Lal Kahar entered the house of informant through the window and, thereafter, he opened the main gate of the house and thereafter he and others entered the house. Thereafter, he, appellants and co-accused Kailash Puri went to the house of informant Ram Chandra Puri where Babu Lal Kahar entered the house of informant through the window and, thereafter, he opened the main gate of the house and thereafter he and others entered the house. There was a room in the house which they opened by pushing its door and found a lamp was burning there which was extinguished by appellant Babu Lal on which a child who was sleeping with the wife of informant awoke and appellant Babu Lal then put that child on another cot on which already another child was sleeping and he alongwith appellant Bisheshwar and Kailash also entered the room and when wife of informant tried to raise alarm, co-accused Kailash Puri pressed her mouth and, thereafter, all the three appellants and co-accused Kailash Puri committed rape on her one by one and, thereafter, appellants Babu Lal and Narmadeshwar said that they would kill her and appellant Narmadeshwar Puri Pressed her neck and appellant Babu Lal sat on her chest and co-accused Kailash Puri pressed her mouth, When the wife of informant started struggling, he caught her legs and by that time, the hand of appellant Narmadeshwar slipped from the neck of wife of informant who caught hold of his hair and then appellant Narmadeshwar bit her palm with his teeth causing bleeding injury and wife of informant by that time died and, thereafter, appellants and he came to Math of Goshala where appellants Narmadeshwar and Babu Lal took bath in the ditch of water pump machine and, thereafter, they both said that they would go to verify whether wife of informant was dead or not and they left the place and again came there and informed that wife of informant had died and asked him to go to his house and he then came to his house. He has also said that he narrated the incident to his brother Shiv Balak Puri (PW 4) who took him to village Mohgain where one Babu Tirath Singh was told about the aforesaid facts and, thereafter, he went to police station and gave statement to police and his confessional statement was recorded by Court on which he put his signature (Exhibit 1). In cross-examination, he has admitted that informant is his own uncle. In cross-examination, he has admitted that informant is his own uncle. He has further said that informant is not married and he had kept a concubine but he does not know to which place that concubine originally belonged and he had seen that concubine for five to six years in his village but he never tried to know her name or about her parents and he used to visit the house in which she used to live and co-accused Kailash Puri, Surendra Kumar, Mahendra Singh and Binod Kumar also used to visit the house of that concubine. Contradicting his evidence that informant is not married, he, in para 17 of his evidence, has said that informant had married only once and deceased was his wife. About appellant Bisheshwar Puri, he has admitted that he is his uncle and he is Mahant of Sikaria Math. About appellant Narmadeshwar, he has said that he is son of co-accused Kailash Puri and Kailash Puri is brother-in-law (sisters husband) of appellant Bisheshwar Puri and in this way, appellant Narmadeshwar is maternal nephew of appellant Bisheshwar Puri. In para 30 of his evidence, he said that after occurrence he, out of fear, did not tell anybody in his village about the occurrence and on the next day of occurrence, police had come to the house of informant and he came to know that police had taken away the dead body and for about 10 to 12 days after the occurrence, he remained in his village and during this period, police came twice in his village in connection with this case. In para 32 of his evidence, he has said that four days after the occurrence, he told his brother about it suo motu and on the next day they both went to one Tirath Babu in village-Mohgain and told him about the incident who advised him to go to police station and he then went to police station where he narrated the incident and he was taken into custody and was subsequently remanded to jail where he remained for about three months. He has said that after remaining two days in jail custody, his confessional statement was recorded by a Magistrate. He has said that after remaining two days in jail custody, his confessional statement was recorded by a Magistrate. He has further said four to five days after the occurrence when a police Inspector had come for investigating the case, he took him to Mohgain Bandh and interrogated him and he narrated the incident in the same manner as it had happened and after enquiring from him, the police left him and thereafter, his statement by police was recorded at police station about four to five days before recording his statement by Magistrate. In Para 40 of his evidence, he has said that on 4.4.1985, he filed a petition in Court for treating him as approver and he had filed that petition without instigation by any body. His evidence, that at Mohgain Bandh, after interrogating him, the police inspector allowed him to go, does not appear trustworthy because had he narrated the incident in true form, as he says, he would have been arrested then and there. Besides this, his evidence that after meeting one Tirath Babu when he went to police station where he told about the occurrence and he was then taken into custody there is also falsified in view of evidence of Investigating Officer (PW 10) that he was arrested at Govindpur market and at that time he told that he was not knowing anything about the occurrence but subsequently confessed his guilt. 8. The evidence of Rajendra Puri (PW 1) that appellants, by putting pistol and dagger on his chest, compelled him to go with them for taking part in the commission of occurrence does not place him in the category of an accomplice. The accomplice has been defined in the Indian Evidence Act, Section 133 of which states that an accomplice shall be a competent witness against an accused person, According to Chambers English Dictionary, accomplice means an associate in crime. He is a particeps criminis and the term accomplice will include all persons who have concurred in the commission of an offence and have taken part in the commission of offence. A person who under threat of death or other form of pressure cannot be considered a willing participant in the commission of crime. On the contrary, he will be considered a victim of circumstances. A person who under threat of death or other form of pressure cannot be considered a willing participant in the commission of crime. On the contrary, he will be considered a victim of circumstances. In holding this view, we are supported by a decision of Privy Council in the case of Sriniwas Mall Bairoliya and another V/s. Emperor. No doubt, if PW 1 is not treated as an accomplice and his evidence as not one of an approver in that case his status will be of a simple witness and reliance can be placed on his uncorroborated evidence provided it inspires confidence and appears to be trustworthy. It is the own case of PW 1 that four to five days after the occurrence, he told about the occurrence to his brother but after returning from the place of occurrence to his house, he did not tell about the incident to any of his family members who include his wife, sister, Bhabhi, mother etc. and who reside with him in the same house. His this conduct seems very peculiar particularly considering the fact that deceased was noneless but his own aunt. A witness after witnessing the occurrence, remains quiet for a considerable time without any explanation of his silence cannot be relied upon. It also seems quite improbable that why the appellants will choose him and after putting him in threat of his murder will compel him to accompany them in committing the offence. It is true that one may argue that prosecution is not bound to explain the motive of appellants for this conduct because it is confined to the knowledge of appellants only but when prosecution comes up with a story about particular conduct or action of an accused, the theory of probability cannot be ignored. In this case, the story of prosecution that the appellants compelled PW 1 by putting revolver and dagger on his chest to accompany them in the commission of offence does not stand the test of probability when put on the touchstone of theory of probability. Notwithstanding this, we find that the evidence of PW 1 is that appellants and coaccused Kailash Puri committed rape on deceased one by one but medical evidence is silent on this point. Notwithstanding this, we find that the evidence of PW 1 is that appellants and coaccused Kailash Puri committed rape on deceased one by one but medical evidence is silent on this point. The Court below, taking note of this fact, has observed that the omission on the part of the doctor to give a finding about commission of rape appears to be due to simple reason that the doctor conducting autopsy over the dead body of Sumitra Devi might not have considered it necessary to ascertain the factum of commission of rape and it further observed that this omission is not at all a vital factor which could militate against the credibility of approver and this fact also loses its importance in view of the fact that accused have not been charged for commission of such offence. The Court below, after citing a judgment of the case of Sarvanabvohaven V/s. Madras, has observed that there the evidence of approver contained certain discrepancies and was also contradicted by the testimony of other witnesses and yet that evidence was held to pass the test of being credible and was accepted as it was also corroborated by other evidence. On the necessity of corroboration, the Court below has observed that the settled proposition of law is that such corroboration need not on one hand be of every particulars given by the approver but on the other hand of only minor particulars. Considering the medical evidence and the evidence of PW 5 who had seen the appellants and co-accused Kailash sitting near a fire with two to four bottles of liquor and talking with each other, the Court below has held that this corroboration in material particulars. We are unable to agree with this view because medical evidence is only to the effect that death of deceased was homicidal and evidence of PW 3 is only to the extent the he had seen the appellants alongwith coaccused Kailash Puri sitting together and talking with each other. PW 3 has not said what talks were going on between appellants and co-accused Kailash Puri. As stated above, we do not find that PW 1 is an accomplice but for the sake of argument it be assumed that he is an accomplice who turned subsequently as an approver, his evidence requires corroboration in material particulars connecting accused with crime. PW 3 has not said what talks were going on between appellants and co-accused Kailash Puri. As stated above, we do not find that PW 1 is an accomplice but for the sake of argument it be assumed that he is an accomplice who turned subsequently as an approver, his evidence requires corroboration in material particulars connecting accused with crime. The medical evidence or evidence of PW 3 is not in respect of those material particulars which are connecting the appellants with the offence. Their evidence is only to the effect that deceased died of homicidal death and appellants were found sitting together near a fire place talking with each other. It is true that according to Sec. 133, Indian Evidence Act, conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice but then the Court may presume by illustration (b) to Sec. 114, Indian Evidence Act that an accomplice is unworthy of credit unless he is corroborated in material particulars. The Apex Court, in the case of Bhiva Doulu Patil V/s. State of Maharashtra, has observed as follows: (7) The combined effect of Secs. 133 and 114, illustration (b) stated as follows: According to the former, which is a rule of law, an accomplice is, competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Court will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading CJ in R.V. Baskerville. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Court will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading CJ in R.V. Baskerville. 1916 (2) KB 658 as follows: There is no doubt that the uncorroborated evidence of an accomplice is admissible in law R.V. James Atwood, (1787) 1 Leach 464, but it has been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their local province to convict upon such unconfirmed evidence R.V. Stubbs, (1855) Dears CC 555; in re, Meunier, 1894 2 QB 415. 9. Considering the contradictory statement in his evidence on the point of marriage of informant, stating commission of rape by his companions on deceased which is not supported by medical evidence and probabilities of his story, we do not find that it is a case of that type of special nature which does not require corroboration of evidence of PW 1 if he is considered an approver, we are quite aware of the legal position that if presumption as stated in illustration (b) to Sec. 114 of Indian Evidence Act is raised in that case an accomplice, unless he is corroborated in material particulars, will remain unworthy of credit and the corroboration in such type of cases will be required for material particulars and it need not consist of evidence which itself is sufficient to sustain the conviction. It is true that corroboration need not be of every detail given by the accomplice in his evidence but it must be to the effect of making the evidence of accomplice probable and trustworthy for acting upon. 10. In other words. the corroboration, if considered necessary, must connect the accused with crime. We would like to quote below principle regarding testimony of an approver and his corroboration by the Apex Court in the case of Ravinder Singh V/s. State of Haryana:  12. 10. In other words. the corroboration, if considered necessary, must connect the accused with crime. We would like to quote below principle regarding testimony of an approver and his corroboration by the Apex Court in the case of Ravinder Singh V/s. State of Haryana:  12. An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu, Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approvers statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. 11. In the present case, as discussed above, the Court below has held the medical evidence and evidence of PW 5 as corroboration of evidence of PW 1. We have already observed that medical evidence is only to the extent that the death of deceased was homicidal and this medical evidence does not connect the appellants with the crime and evidence of PW 5 is only to the effect that he had seen the appellants sitting together near fire place talking with each other. Admittedly, he did not hear their talks, About the place where he had seen them, he had said that it was near the Goshala of a Math in Sikaria village. Admittedly, he did not hear their talks, About the place where he had seen them, he had said that it was near the Goshala of a Math in Sikaria village. This Math has been described by him in para 5 of his evidence as Math of appellant Bisheshwar Puri and evidence of Shiv Balak Puri (PW 4), who is brother of PW 1 and nephew of appellant Bisheshwar Puri, in para 4 is that appellant Bisheshwar Puri is Mahant of Sikaria Math. In this view of the matter, if appellant Bisheshwar Puri was found sitting alongwith other appellants who are his brother-in-law and nephew near a fire at his own residence for the purpose of warming themselves and that time, they were talking with each other, by no stretch of imagination, it will mean that they were hatching up any conspiracy and were planning to commit murder in prosecution of their common intention as observed by the Court below. The Apex Court, in the case of Sheshanna Bhumanna Yadav V/s. State of Maharashtra, has held as follows: If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as againstthe accused. But if the skins were found in the accuseds house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft. 12. In the present case neither the appellants were found sitting together and talking with each other near the place of occurrence immediately prior to commission of offence nor they were seen moving from the place of occurrence after commission of occurrence. So we find that the evidence of PW 5 that he saw the appellants sitting and talking with each other at the Math of appellant Bisheshwar Puri on evening and on the next day, he heard hulla in the village that deceased had been killed neither connects them with the occurrence nor it in any way corroborates the evidence of PW 1 in any material particular. 13. The judgment of Court below suffers with an another infirmity. PW 1, in his evidence, has named Kailash Puri also who, alongwith him and appellants, participated in the commission of offence. This Kailash Puri has been acquitted by the Court below. 13. The judgment of Court below suffers with an another infirmity. PW 1, in his evidence, has named Kailash Puri also who, alongwith him and appellants, participated in the commission of offence. This Kailash Puri has been acquitted by the Court below. It is true that, while acquitting him, the Court below considered his old age also which, in its judgment, has been stated about 80 years. The another reason to disbelieve participation of Kailash Puri in the commission of offence, as found by Court below, is that it is beyond all apprehension to think that Kailash Puri and his son appellant Narmadeshwar Puri will commit rape on Sumitra Devi in presence of each other and, thereafter, will commit murder in pursuance of their common object and this is an absurdity in the prosecution allegation. The Court below failed to consider the fact that allegation against the appellant Bisheshwar Puri is same that he, in presence of his nephew (brothers son) PW 1 and maternal nephew (sisters son) committed rape on the wife of his own younger brother. About appellant Narmadeshwar Puri, it is alleged that he also committed rape on deceased who was, admittedly, his Mami (maternal aunt) in presence of his Mama (Maternal uncle) appellant Bisheshwar Puri (not the husband of deceased.) This also appears absurd but then this absurdity is on a higher pedestal than that which has been found by the Court below in the case of co-accused Kailash Puri. In the case of Emperor V/s. Rai Singh Narain Singh, it has been held that if an approver is capable of introducing the name of an innocent person as the real organizer and moving spirit of the conspiracy, what guarantee can there be that he has not done the same with regard to the other? Admittedly, PW 1 is the solitary witness who has said about the occurrence. Whether he is treated as a simple witness or an approver in both the case his evidence is full of absurdities and contradictions. Present case is in respect of murder of aunt of PW 1 but, as stated, at one place, he says that his uncle informant never married and kept a concubine but at other place, he says that informant married only once and deceased was his wife. So he is not sure even on the point of identity of deceased. Present case is in respect of murder of aunt of PW 1 but, as stated, at one place, he says that his uncle informant never married and kept a concubine but at other place, he says that informant married only once and deceased was his wife. So he is not sure even on the point of identity of deceased. His evidence that appellants, who include his own uncle Bisheshwar, compelled him to take drink and, thereafter, in presence of his uncle, other appellants by putting pistol and dagger on his chest forced him to go with them for committing murder of his own aunt, his evidence that after opening the room of deceased, the lamp was extinguished by Babulal and, thereafter, he entered the room and witnessed the entire occurrence, admittedly, committed in night including rape by appellants one by one on deceased, his remaining silent for about four days and not disclosing the occurrence to any body, his evidence about place of his arrest falsified by the Investigating Officer, make his entire evidence quite absurd and unbelievable and no reliance on it can be placed. It will be quite unsafe to uphold the conviction of appellants on the basis of uncorroborated testimony of such witness. 14. In the result, both the appeals are allowed and appellants are acquitted. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. B.K.Jha, J. 15 I agree.