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2004 DIGILAW 283 (MP)

Rambihari v. State of Madhya Pradesh

2004-03-22

AJIT SINGH, S.P.KHARE

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Judgment ( 1. ) APPELLANTS Rambihari, Ramswarup and Devideen have been convicted under Section 302/34 Indian Penal Code and sentenced to imprisonment for life. They have also been convicted under Section 120-B Indian Penal Code and awarded the same punishment. Both the sentences were directed to run concurrently. Appellant No. 2 Ramswarup has died during the pendency of this appeal and, therefore, his appeal has abated. ( 2. ) THE prosecution case was that in the intervening night of 15th and 16th March, 1987 accused Rambihari, Ramswarup, Kallu and Devideen committed murder of Ghuram in furtherance of their common intention after hatching a conspiracy. On that night Goli and Sullu were also done to death by the accused persons to take revenge of the murder of Manku, father of accused Rambihari and Ramswarup. It is also the prosecution case that Ghuram was meted out the same treatment by the accused persons so that later on he may not avenge the death of his father Goli. It has been stated during the course of hearing of this appeal that the accused persons have been acquitted of the charge of committing murder of Goli and Sullu. The dead body of Ghuram is said to have been buried under the debris by the accused persons in the outskirts of village Sarani. According to the prosecution case accused Kallu took Ghuram from his house to the forest on the pretext of searching his father. On the way accused Devideen accompanied them. They went to a place where accused Rambihari and Ramswarup were standing with a bullock-cart. Rambihari had an axe and Ramswarup was armed with a Bhala, They caused injuries to Ghuram with these weapons. He fell down and died. Then they buried his dead body under the debris. Their clothes were stained with blood. The prosecution case has been built up mainly 6n the statement of co-accused Kallu who has been granted pardon under Section 307 Cr. P. C. after recording his statement on 12-10-1987 by the Trial Court. The prosecution has alleged that the dead body of Ghuram was recovered on the basis of the information given by the accused persons. ( 3. ) KALLU (P. W 1) was examined as a witness during the trial after the pardon was granted to him. It is primarily on the basis of his testimony that the appellants have been convicted for the aforesaid offences. ( 3. ) KALLU (P. W 1) was examined as a witness during the trial after the pardon was granted to him. It is primarily on the basis of his testimony that the appellants have been convicted for the aforesaid offences. Corroboration has been sought from the recovery of dead body of the deceased on the basis of the information given by the accused persons under Section 27 of the Evidence Act and also the recovery of certain weapons and blood stained clothes on similar information. ( 4. ) IT is no longer in dispute that deceased Ghuram met a homicidal end. That is clearly established from the evidence of Dr. Sudhir Kumar Khare (P. W, 2) and the post mortem report (Ex. P-3 ). ( 5. ) IN this appeal it has been argued that the evidence of Kallu (P. W. 1), the approver, is not reliable and there is no independent corroboration of his evidence. It is argued that the conviction of the appellants is not well merited. ( 6. ) THE evidence of Kallu (P. W. 1) and other material on record have been carefully scrutinized by this Court. Kallu (P. W. 1) has deposed that on the date of Holi he went to the house of Ghuram at about 8. 00 P. M. He claims that deceased Ghuram was his friend. He was asked by the mother of Ghuram to accompany him to the forest for the search of the father of Ghuram. Therefore, he accompanied Ghuram to a place known as "kherihar". On the way accused Devideen met him and he accompanied them. Thereafter accused Rambihari and Ramswarup exclaimed that Ghurams father was with them. They went towards them. Accused Rambihari was armed with an axe and Ramswarup was having a Bhala, Accused Rambihari dealt an axe blow on the head of Ghuram. This witness has further stated that he asked accused Rambihari that he should desist from causing any further injury to Ghuram and at that point time accused Ramswarup caused injuries with Bhala to Ghuram. Accused Rambihari and Ramswarup inflicted more injuries on the body of Ghuram, as a result of which he died on the spot. This witness has further stated that he asked accused Rambihari that he should desist from causing any further injury to Ghuram and at that point time accused Ramswarup caused injuries with Bhala to Ghuram. Accused Rambihari and Ramswarup inflicted more injuries on the body of Ghuram, as a result of which he died on the spot. According to this witness he was threatened by accused Ramswarup that he would cause his death if he does not help him in burying the dead body of Ghuram under the debris and, therefore, he also covered the dead body of Ghuram with the cow dung lying there. This witness has further stated that in the process of doing so his clothes were stained in the blood. There were blood stains on the clothes of other accused persons. ( 7. ) KALLU (P. W. 1) has further deposed that he was threatened by accused Rambihari and Ramswarup that they would cause his death if he disclosed this incident to anyone. In Para 14 he has stated that next day at about 9. 00 A. M. the police came to him and he disclosed to the police that the dead body of Ghuram is lying under the debris. He was also taken by the police to the police station and he was taken into custody. Thereafter accused Rambihari and Ramswarup took the police to the place where the dead body of Ghuram was buried and it was taken out by the police. A close scrutiny of the evidence of Kallu (PW. 1) shows that he has made every attempt to exculpate him from the crime. He has thrown entire blame on accused Rambihari and Ramswarup. It must be taken note of that statement of Kallu was not recorded by the police under Section 161 Cr. P. C. He was also not produced before any Magistrate for recording his statement under Section 164 Cr. P. C. He also did not make any confessional statement before the Magistrate by whom the case was committed to the Court of Session. For the first time he submitted an application in the Court of Session under Section 307 Cr. P. C. and he was granted pardon by the Court after recording his statement. He was on bail when he was examined as a witness. In cross-examination he has denied the suggestion that he himself has caused the death of Ghuram. For the first time he submitted an application in the Court of Session under Section 307 Cr. P. C. and he was granted pardon by the Court after recording his statement. He was on bail when he was examined as a witness. In cross-examination he has denied the suggestion that he himself has caused the death of Ghuram. He has further admitted in cross-examination that at about 9. 00 A. M. he had informed the police that the dead body of Ghuram is lying under the debris. ( 8. ) MST. Ghasitia (P. W. 5) is mother of deceased Ghuram. She has deposed that she asked her son Ghuram to go with Kallu (P. W. 1) to search out his father. ( 9. ) HARDAS Bairagi (P. W. 13) is the investigating officer. He has deposed in Para 2 that Kallu, who was subsequently examined as P. W. 1, informed him for the first time that the dead body of Ghuram was lying under the debris of cow dung. He made this statement in the presence of Rajkishore and Laxmikant and he recorded it as Ex. P-23. Then Kallu took him to the place where the dead body of Ghuram was concealed and took it out. He prepared the seizure memo Ex. P-2. He prepared Panchnama of the dead body and that is Ex. P-9. He has further stated that accused Rambihari and Ramswarup subsequently informed him regarding the place where the dead body of Ghuram was hidden. The two Panch witnesses have not been examined. From the evidence of investigating officer it is clear that the dead body of Ghuram was recovered on the basis of the information given by Kallu (PW. 1 ). He was first to inform him about this fact. As the police officer on the information given by Kallu had come to know about the place where the dead body was hidden, the subsequent statements of accused Rambihari and Ramswarup are not admissible in evidence under Section 27 of the Evidence Act as the dead body of Ghuram was recovered in consequence of the information given by Kallu (P. W. 1 ). State of Haryana v. Jagbir Singh, (2003) 11 SCC 261 . ( 10. ) THE evidence of Kallu (P. W. 1) is not reliable. State of Haryana v. Jagbir Singh, (2003) 11 SCC 261 . ( 10. ) THE evidence of Kallu (P. W. 1) is not reliable. He did not disclose the incident to anyone for a long time after he is said to have been released by the other two accused persons. As already stated, his statement was not recorded by the police under Section 161 Cr. EC. He was also not produced before any Magistrate for his statement under Section 164 Cr. P. C. He kept silent for a long time. He did not submit any application before the Magistrate by whom the case was committed to the Court of Session to tender pardon to him on his promise to disclose the full facts. He gave an application before the Trial Court for the first time and offered himself to be a prosecution witness. He "purchased immunity" in this manner from his being prosecuted for the offence of committing murder of Ghuram. In his evidence he does not inculpate himself at all. His attempt is to extricate himself and throw the entire blame on accused Rambihari and Ramswarup. Therefore, his testimony is not dependable and it does not receive any independent corroboration. ( 11. ) AN accomplice has been described as an "infamous witness", "purchaser of immunity", "partner in crime", "associate in guilt", "person of low morals" and a person who has betrayed his associates in order to save his own skin. The probative value of the evidence of an accomplice has been considered by the Supreme Court in a number of cases. The same has been thoroughly examined by the Supreme Court in Narayan Chetanram Chaudhaty v. State of Maharashtra, (2000) 8 SCC 457 . The law which has been stated in this judgment of the Supreme Court is as under:- " section 133 of the Evidence Act provides that an accomplice is a competent witness against an accused person and the conviction is not illegal merely because it proceeds on uncorroborated testimony of the accomplice. No distinction is made between an accomplice who is or is not an approver. As both have been treated alike, the rule of corroboration applies to both. No distinction is made between an accomplice who is or is not an approver. As both have been treated alike, the rule of corroboration applies to both. Accomplices evidence is taken on record as a matter of necessity in cases where it is impossible to get sufficient evidence of a heinous crime unless one of the participators in the crime is disposed to disclose the circumstances within his knowledge on account of tender of pardon. The evidence of the approver must, however, be shown to be of a reliable witness. Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. For corroborative evidence the Court must look at the broad spectrum of the approvers version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable. Once the evidence of the approver is held to be trustworthy, it must be shown that the story given by approver so far as an accused is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and not merely a rule of law. In the present case the Courts were conscious of the credibility of an approvers witness and insisted upon the corroborative evidence in material particulars of the depositions made by the approver. " ( 12. ) THE evidence of Kallu (P. W. 1) has to be tested in light of the legal position given above. He is not a reliable witness and the reasons for the same have been given in the preceding paragraphs of this judgment. His evidence does not find corroboration qua each of the accused persons. " ( 12. ) THE evidence of Kallu (P. W. 1) has to be tested in light of the legal position given above. He is not a reliable witness and the reasons for the same have been given in the preceding paragraphs of this judgment. His evidence does not find corroboration qua each of the accused persons. The prosecution made an attempt to rely upon the recovery of the dead body of the deceased on the basis of the information given by accused Rambihari and Ramswarup, but as already stated the evidence of investigating officer is to the effect that this information was given to him for the first time by Kallu (P. W. 1) and that became the basis for the recovery of the dead body. The subsequent statements of co-accused Rambihari and Ramswarup are not admissible in evidence under Section 27 of the Evidence Act as the police had already come to know before their interrogation, on the basis of the information given by Kallu (P. W. 1), that the dead body of Ghuram is hidden under the debris of cow dung. There is no corroboration of the nature which is required for acting upon the evidence of an accomplice. ( 13. ) IN the result this appeal is allowed. The conviction and sentence are set aside and appellants Rambihari and Devideen are acquitted of the charges under Sections 302, 302/34 and 120-B, Indian Penal Code.