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2007 DIGILAW 919 (BOM)

State of Maharashtra v. Sangita Gulab Chaure

2007-07-09

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT : [PER : S.R. DONGOANKAR,J.] 1] This appeal of the state, seeks to challenge the acquittal of the respondents for the offences punishable under section 302, 201 read with section 34 of the Indian Penal Code and also of respondent no.1 Sangita for the offence punishable under section 109 read with section 302 of the Indian Penal Code. 2] Respondents in appeal and one Sau. Kamla (respondent No.1 in Revision application) and one Gajanan (respondent no.4 in revision application) were prosecuted for the offences punishable under section 147, 148, 302, 201 read with section 149 of the Indian Penal Code. Respondents are original accused no.2, 3, 5 and accused no. 6. Accused no.1 Sau. Kamla; mother of accused no.2 Sangita; accused no.4 Gajanan now P.W. 6 [approver] are residents of Mahavir Nagar, Dabki Road, Akola. At the relevant time, deceased Narayan Chotelal Gohar was residing with accused no.1 and accused no.2 at their house at Mahavir Nagar, Akola. He is the husband of P.W. 4 Kamla. He had illicit relations with accused no.1 Kamla. Therefore, there were no good terms between the family of said Narayan and accused no.1 Kamla. Accused no.3 Baiju had love affair with accused no.2 Sangita and this was not liked by deceased Narayan. It is alleged that all these accused then with common object to cause murder of said Narayan, on 29.7.1989 at about 8.30 p.m. at Mahavir Nagar formed unlawful assembly, some of them armed with deadly weapons like spear, dagger, chain and pipe, & caused his murder by assaulting him and causing fatal injuries. According to the prosecution at the relevant time, said accused No.1 Kamla and accused no.2 Sangita were at their house. The rest of the accused, had followed the deceased for some time and when he was about to take turn for his house, rest of the accused had assaulted him with the aforesaid weapons and caused his death. He was lying there. It is alleged that accused Sangita when noticed him lying in injured condition in front of her house, she informed about this fact to P.W.-1 Raju who is son of deceased Narayan(Revision applicant). Thereafter, the said Narayan in injured condition was taken to police station and then to Civil Hospital, however, he was declared dead. P.W.1 Raju had expressed suspicion on accused no.1 Kamla and accused no.2 Sangita for killing his father. Thereafter, the said Narayan in injured condition was taken to police station and then to Civil Hospital, however, he was declared dead. P.W.1 Raju had expressed suspicion on accused no.1 Kamla and accused no.2 Sangita for killing his father. Police then arrested accused Kamla and accused Sangita. It appears that during investigation, the names of the rest of the accused were revealed as an assailants. During further investigation, accused no.3 Baiju disclosed about concealing of chain, spear and rod, which were used in the commission of the offence near the burial ground, and the same were recovered at his instance. Accused no.5 Vijay also discovered knife on memorandum statement. Thereafter, on information, furnished by the accused no.4 Gajanan and accused no.6 Ashok, blood stained clothes were recovered. Dead body was sent for P.M. Examination. Dr. Kadale P.W.7 who conducted autopsy, sent his P.M. Report and opinion to I.O. According to him deceased Narayan had died due to extensive brain 5 damage with haemorrhage from wounds. The clothes of the deceased and the accused and instruments recovered were sent to C.A. The report was received. It may be stated that during the investigation it was transpired that one Jayant Joshi P.W. 3 had found some chits written by accused Sangita to accused Baiju expressing her love affair, so the opinion of the Handwriting Expert was obtained. It was also found in the investigation, that the accused Baiju had taken knife from P.W. 5 Ramesh Pande by threatening. After completing the investigation the I.O., P.I. Rathod submitted charge sheet against the accused referred above. 3] When charge was framed, the accused pleaded not guilty to the same. Their defence is that of total denial and that they have been falsely implicated at the instance of P.W. 1 Raju son of the deceased. 4] It may be stated that when the trial was proceeded and evidence of all the prosecution witnesses was being recorded, accused no.4 Gajanan sought pardon and claimed that he wished to become approver. Accordingly, after considering the circumstances of the case, learned trial Judge tendered him pardon and recorded his evidence as P.W. 6. Besides him, the other main witnesses which were examined, are P.W. 1 Raju son of deceased, who has lodged FIR Ex.60. P.W. 2 Gopal is witness who had allegedly seen accused no.3 Baiju and accused no.4 Gajanan running away from the spot. Besides him, the other main witnesses which were examined, are P.W. 1 Raju son of deceased, who has lodged FIR Ex.60. P.W. 2 Gopal is witness who had allegedly seen accused no.3 Baiju and accused no.4 Gajanan running away from the spot. P.W. 4 Kamla Gohar widow of deceased has been examined to prove the illicit relations between her husband and accused no.1 Kamla Chavre. P.W. 5 Ramesh has been examined to prove that accused no. 3 had taken knife from him. P.W. 7 Dr. Kadale has conducted autopsy of the deceased. P.M. notes recorded by him are at Ex.66. He has given opinion regarding the cause of the death of the deceased. P.W. 8 Chinnilal Chavare is the witness to various Panchnamas, including memorandum statements of the accused and consequent discoveries. He is also witness to spot Panchnama Ex. 67 and Inquest Panchnama Ex. 84-A. Besides this, prosecution has examined P.W. 9 Handwriting Expert Dilip Ahiwale who has deposed about the writing of the chit, which was seized during the investigation to show that the said handwriting was of accused no.2 Sangita and thus there was love affair between accused no.2 Sangita and accused no.3 Baiju, for which there was dislike by deceased Naryan which led to his murder. P.W. 11 Ramcharan Sarvan is also a Panch witness to 7 Panchnama. P.W. 12 P.I. Rathod is the Investigating Officer. 5] Defence has also examined one defence witness namely Vilas Shidode who is a Civil Engineer, who has drawn the map of spot of occurrence. - Ex.155. By his evidence, mainly it is tried to show that even at the time when he had drawn the map of spot of occurrence there were no lights on the spot, meaning thereby there could be no lights or electric poles, at the time of incident. 6] Learned trial Judge after considering the evidence on record, including that of approver came to the conclusion that same is not satisfactory for basing conviction of the accused all or any of them. He has also found that in this case, the I.O. Rathod has gone to the extent of fabricating documents and evidence and therefore, he has issued show cause notice to the said Rathod P.I. while acquitting the accused. This judgment of acquittal is challenged in this appeal. He has also found that in this case, the I.O. Rathod has gone to the extent of fabricating documents and evidence and therefore, he has issued show cause notice to the said Rathod P.I. while acquitting the accused. This judgment of acquittal is challenged in this appeal. 7] It is not out of place here to state that the complainant Raju has also preferred Criminal Application No.1072/1992 to challenge the same judgment. Both these appeal and application are being disposed of by this common judgment. 8] Learned A.P.P. for the state has contended that the evidence of the approver i.e. P.W. 6 Gajanan, is recorded by the learned trial Judge after granting his prayer for tendering a pardon on complying the legal requirements and therefore, his evidence need not be disbelieved. According to him, his evidence can form the basis of conviction, even without corroboration. Considering the circumstances of the case, he has tried to submit that as there was no other independent material evidence available regarding the details of the acts committed by each of the accused, and the facts were within the knowledge of the accused persons, the tender of pardon to accused no.4 Gajanan, was rightly granted under section 307 of the Criminal Procedure Code and therefore, his evidence is quite reliable. He has also contended that his evidence is corroborated in material particulars on record i.e. place of assault, time of assault, the cause of the injuries, recorded by the Medical Officer found on the person of the deceased, C.A. report in which it is recorded that the blood group of deceased is .B. Group; of which stains have been found on the shirt of P.W. 6 Gajanan (approver). So also the motive for commission of the offence was pertinent. He has further submitted that the request of P.W. 6 Gajanan for pardon was genuine and therefore, there was no reason to disbelieve his evidence. According to him, the discoveries made on the memorandum of statements of the accused clearly support the evidence of approver and therefore, the learned trial Judge should have recorded the conviction of the accused respondents and he should have convicted them for the appropriate offences. 9] It may be stated that none appeared for applicant in Criminal Application No.1072/1992. According to him, the discoveries made on the memorandum of statements of the accused clearly support the evidence of approver and therefore, the learned trial Judge should have recorded the conviction of the accused respondents and he should have convicted them for the appropriate offences. 9] It may be stated that none appeared for applicant in Criminal Application No.1072/1992. 10] Learned counsel for respondent Baiju; Shri B.K. Gandhi has submitted that the learned trial Judge, should not have allowed the prayer of accused no.4 Gajanan for being an approver. He has submitted that there was clear possibility of his being tutored prior to seeking of pardon and also after the relevant order, before his evidence was recorded. Further according to him, no sufficient opportunity was granted to the accused no.3 for cross examination of the approver, as his previous statement was not made available to the defence for cross examination at the proper time and therefore, his defence is prejudiced. He has submitted that revision application was preferred against the order of the learned trial Judge according pardon to accused no.4 Gajanan, stay was also obtained, however, later on, stay was vacated so the trial was proceeded. Even at the stage of arguments, an attempt was made by the accused to seek postponement of the judgment till revision application of accused no.3 was decided. However, he could not succeed and the judgment was delivered. But then as it was of acquittal, no further proceedings were taken. In short it is the case of respondent no.3 that the approver was granted pardon without any legal basis, his evidence is therefore, not acceptable. Further it is urged that his evidence is not corroborated in material particulars and therefore, his evidence is hardly reliable. He has also submitted that, in the present case I.O. has gone even to the extent of fabricating the documents of Memorandum Statements etc. and therefore, learned trial Judge has rightly held the prosecution case unreliable and therefore, acquitted the respondents. 11] Learned counsel for the rest of the respondents Shri Meghe has submitted that the circumstantial evidence on record does not implicate the respondents for the offences charged. He has adopted the contentions raised by learned counsel for respondent Baiju. He has also contended that the evidence of an approver is not consistent with other evidence on record, therefore, it can not be relied upon. He has adopted the contentions raised by learned counsel for respondent Baiju. He has also contended that the evidence of an approver is not consistent with other evidence on record, therefore, it can not be relied upon. 12] It may be mentioned that the learned A.P.P. for the State has relied on the observations of the Apex Court in 2005 SCC (Cri.) 292 [K. Hashim ..vs.. State of T.N], to contend that uncorroborated evidence of accomplice in a criminal conspiracy can be relied upon and it ultimately depends upon the court's view as to the credibility of the evidence tendered by the accomplice. According to him, in the case in hand accomplice / approver is reliable. He has also submitted that in view of 2000 SCC Cri. 1546 [Narayan Chetanram Chaudhary & another ..vs.. State of Maharashtra], section 307 of the Criminal Procedure Code is invokable at post-commitment stage while section 306 is invocable at pre-commitment stage and therefore, the order of granting pardon of the learned trial court is correct. He has also taken us through the principles laid down by the Apex Court in AIR 1975 SC 1320 [Maghar Singh ..vs.. State of Punjab] and 1997 (11) SCC 720 [A.Devendran ..vs.. State of T.N.], to contend that in the present case the evidence of approver has been recorded after due compliance of the legal procedure and therefore, his evidence is reliable. It is his further contention that in view of the judgment reported in 1984 SC (Cri.) 355[Lal Chand and others ..vs.. State of Haryana], section 114, Illustration (b) and Section 133 of Evidence Evidence Act provides that testimony of approver needs to be examined carefully; but then if it is guaranteed, conviction can be based on the same. Besides this, he has also taken us through the recent decision of the Apex Court reported in AIR 2006 SC 3056 [Renuka Bai @ Rinku @ Ratan & another ..vs.. State of Maharashtra]. 13] Learned counsel for the respondent - Baiju Shri B.K.Gandhi has also relied on certain authorities namely - 1963 Mh.L.J. 273 [Bhiva Doulu Patil ..vs.. State of Maharashtra], 1999 Cri.L.J. 2889 [ Ramprasad ..vs.. State of Maharashtra], AIR 1988 SC 599 [Chandan and anothers ..vs.. State of Rajasthan], to contend that evidence of approver needs to be corroborated by material particulars. State of Maharashtra], 1999 Cri.L.J. 2889 [ Ramprasad ..vs.. State of Maharashtra], AIR 1988 SC 599 [Chandan and anothers ..vs.. State of Rajasthan], to contend that evidence of approver needs to be corroborated by material particulars. He has also taken us through the decision of the Apex Court reported in 2007(4) SCC 415 [Chandrappa and others ..vs. State of Karnataka], particularly paragraph 44 which reads: .44- In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by th trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court(the High Court), therefore, is liable to be set aside.. to contend that as this appeal is against acquittal, this Court can not interfere with the same, if there are two views possible and that of acquittal is taken by trial court. He has submitted that the conclusions drawn by the learned trial Judge are quite plausible, on the basis of the evidence on record and therefore, this court being an appellate court may not disturb the findings recorded by the trial court. 14] With this law in the mind, it is necessary to scrutinize the judgment of the learned trial Judge. He has submitted that the conclusions drawn by the learned trial Judge are quite plausible, on the basis of the evidence on record and therefore, this court being an appellate court may not disturb the findings recorded by the trial court. 14] With this law in the mind, it is necessary to scrutinize the judgment of the learned trial Judge. 15] It would be seen that the learned trial Judge has declined to accept the evidence of approver for basing conviction, as the same is not corroborated. He has found the evidence of memorandum statements of the accused, as well as the consequent discoveries of the weapons etc. is totally unreliable. He has, however, held that the prosecution has proved that the deceased Narayan had died due to homicidal death. 16] It is rather not disputed that deceased Narayan had died homicidal death. Therefore, crucial question would be whether all or any of the respondents can be said to be the author of the injuries caused to the deceased Narayan and whether it is so established beyond doubt. 17] Before turning to the scrutiny of evidence, it is necessary to find out whether there is any reason to hold that the tender of pardon to an approver, was without the compliance of legal requirement. 18] In this context, the provisions of section 306 and 307 of the Criminal Procedure Code need to be seen. Section 306 reads thus: .Section 306-(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies:- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall recorded (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4)Every person accepting a tender of pardon made under sub section (1)- (a)shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b)shall unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case- (a)commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952(46 of 1952), if the offence is triable exclusively that that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.. Section 307 provides thus: .307- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.. 19] It is evident that after commitment of the case provisions of section 307 of Cr.P.C. would be applicable and therefore, the tender of the pardon can be effected, at any time before the judgment is passed. 20] Here is a case where the evidence of prosecution witnesses was being recorded and when the same was in progress, accused no. 19] It is evident that after commitment of the case provisions of section 307 of Cr.P.C. would be applicable and therefore, the tender of the pardon can be effected, at any time before the judgment is passed. 20] Here is a case where the evidence of prosecution witnesses was being recorded and when the same was in progress, accused no. 4 Gajanan stood up and told before the court that he wanted to become approver. Therefore, his say in writing was obtained vide Ex.71, in which he has stated about the incident. Thereafter, after hearing the parties, including the accused, the learned trial Judge passed an order below Ex. 71 on 3.2.1992, wherein he held that it was necessary to tender pardon to accused no.4 Gajanan with necessary conditions for getting the material evidence on record. 21] This order was challenged by accused no.3 Baiju before this Court, however, initially, though stay was granted, it was vacated later on and therefore the trial proceeded and then the said application became infructuous so the same was disposed of. 22] Learned A.P.P. has tried to submit that, the said order has now become final and therefore, its validity cannot be challenged in this appeal 23] We are unable to accept this contention, for the simple reason that the said order has not become final after hearing the parties on merits. As stated by the learned counsel for the parties, it appears that the relevant revision was disposed of as infructuous. 24] Further, this being an appeal, against impugned judgment of acquittal and when the evidence of approver is being considered, so as to see whether it can form the basis of conviction or not, the contention that the tender of pardon was not in accordance with law, can certainly be raised. In such circumstances, it is necessary to find out as to whether the relevant order of tendering pardon at Ex.71 to accused 4 Gajanan was incorrect or illegal? 25] Learned counsel for accused Baiju has submitted that statement of accused Gajanan was exculpatory, as such tender of pardon to him was illegal. In such circumstances, it is necessary to find out as to whether the relevant order of tendering pardon at Ex.71 to accused 4 Gajanan was incorrect or illegal? 25] Learned counsel for accused Baiju has submitted that statement of accused Gajanan was exculpatory, as such tender of pardon to him was illegal. It is obvious that in the present case, the case of the prosecution is that the accused No.4 Gajanan, had taken part in the commission of offence, though, at the time of assault, he was at some distance and the actual assault on the deceased was made by the accused no.3 Baiju. But that by itself can not lead to the inference that his statement is completely exculpatory statement. In fact he had been, with the other accused including one who had caused fatal assault on the deceased to commit the offence, though at the time of actual assault he was at some distance. Therefore, merely because, he had not caused any fatal assault on the deceased, his complicity in the offence cannot be said to be, not existing and therefore, on this count, say of the learned counsel for the respondent that the tender of pardon should not have been granted and his evidence cannot be accepted, is far from acceptance. 26] Still the question would be, whether the evidence of P.W. 6 Gajanan (approver) can be accepted for basing conviction. Learned trial Judge, has held that it can not be accepted. 27] It would be seen from the record that earlier also, accused- Vijay, had preferred an application for being approver. However, later on he withdrew that application. This although does not affect the action in respect of other accused (accused no.4), it would reflect adverse on the prosecution case. 28] On perusal of cross examination of P.W. 6 Gajanan (approver) it would be seen that, he did not inform his advocate Shri Joshi about the same nor he was ready to consult with him. He suddenly got up during the course of recording of evidence of the prosecution witnesses and said that he be tendered pardon. There is nothing on record to suggest as to why he should take such recourse, particularly when no sufficiently incriminating evidence was adduced against the accused at that stage. He suddenly got up during the course of recording of evidence of the prosecution witnesses and said that he be tendered pardon. There is nothing on record to suggest as to why he should take such recourse, particularly when no sufficiently incriminating evidence was adduced against the accused at that stage. This would show that his evidence will have to be accepted with great caution as there is likelihood of some other forces behind him for his being an approver. In view of the provisions of section 133 of the Evidence Act, though accomplice is a competent witness to prove the incident, & conviction is not bad if it is based on his uncorroborated testimony, Section 114 of the Evidence Act, Illustration (b) requires that there needs to be corroboration in material particulars; for the obvious reasons. At least he needs to be totally reliable and trustworthy witness. 29] Here the prosecution has sought to corroborate his evidence by evidence of memorandum statements of the accused, as well as the consequent recoveries of weapons and the clothes. Learned trial Judge has considered the evidence of P.W. 8 Chinnilal and P.W. 11 Rameshchandra, in this behalf vis-a-vis evidence of P.W. 12 I.O. Rathod. On careful scrutiny of evidence, he has found that there are material inconsistencies in the timings of the Panchnamas, i.e. spot Panchnama, inquest Panchnama and memorandum statements and recovery. He has found that memorandum statement Ex. 103 of P.W. 6 Gajanan is alleged to be recorded between 10.10 to 11.20 a.m. on 30.7.1989, which is also inconsistent with the timings mentioned above in the same Panchnama. Spot Panchnama Ex. 67 appears to have been prepared between 9.45 to 11.00 a.m. Obviously these two Panchanamas with the same Panch witnesses cannot be prepared at two places. It definitely leads to the inference that Panchanamas are not correct and they are prepared falsely. Overwriting also appears at writings of timings in Ex.103. 30] Apart from this, there are such discrepancies in respect of timings mentioned in other memorandum statements and consequent recoveries. He has observed that on perusal of the timings written on these documents, it is apparently clear that they are not prepared one after another, as stated by the Panchas and the investigating officer, but they must have been prepared at one place and therefore, they are not trustworthy. He has observed that on perusal of the timings written on these documents, it is apparently clear that they are not prepared one after another, as stated by the Panchas and the investigating officer, but they must have been prepared at one place and therefore, they are not trustworthy. 31] He has also noted that pair of some Panchas has been repeated for all the Panchnamas, which clearly could not have been possible, taking into consideration, the time required for preparing each Panchnama and going for the seizure of the articles, on the memorandum statements of the accused. He has also considered the aspect that on 2.8.1989 they could have called Panchas from the place, where the shop of P.W. Jayant Joshi was situated, similarly on 4.8.1989, police could have called other Panchas, when the Panchnama of specimen handwriting was prepared. Although, learned trial Judge has termed them as false, least can be said is that the same are not reliable. Learned trial Judge has also taken serious view of the matter because as per Ex. 63, though in all 7 chits were seized, [in respect of handwriting of accused Sangita] only one chit was produced on record and therefore, there was no examination for the rest of 6 chits. He has also taken view that the recovery thereof is suspicious. 32] Learned trial Judge has also found that there is discrepancy as regards the mentioning of street lights on the spot of incident. He has found that P.W. 6 Gajanan has stated in cross examination that there are street lights on the spot of incident, however, the same was far from the statements of other P.Ws. and the inference that can be drawn from the evidence of D.W. 1 Vilas Shidode who is Civil Engineer & who has stated that there were no electric light poles near the spot of incident, when he visited the spot of incident for drawing the map. 33] Learned trial Judge has come down heavily on the conduct of the investigating officer P.W. 12 - P.I. Rathod and perhaps rightly. 34] Considering the whole scenario of the case it does appear that there are material inconsistencies in the evidence of P.W. 6 (approver) Gajanan vis-a-vis the evidence of other prosecution witnesses and that of D.W.1 Vilas. 33] Learned trial Judge has come down heavily on the conduct of the investigating officer P.W. 12 - P.I. Rathod and perhaps rightly. 34] Considering the whole scenario of the case it does appear that there are material inconsistencies in the evidence of P.W. 6 (approver) Gajanan vis-a-vis the evidence of other prosecution witnesses and that of D.W.1 Vilas. There are no sufficient reasons to hold that the evidence on memorandum statement and the consequent recoveries of at the instance of the accused are reliable, therefore, this aspect does not lead to the credence of the evidence of P.W. 6 Gajanan (approver). It is true that sole testimony of the approver can be considered for basing the conviction, but .provided he is found reliable.. It is not that he can be relied upon even when his evidence is not supported by the material particulars and the same is materially inconsistent with other evidence on record. In any case before recording conviction on the basis of such uncorroborated evidence of accomplice it has to be found credible, cogent & trustworthy. 35] In view of the above, it is not possible to hold that the view taken by the learned trial Judge is not probable or incorrect, or perverse to the record. Mere suspicion which is created by the evidence of approver can not take place of proof. In the instant case, apart from this, approver has also admitted that a case under section 395 of the Indian Penal Code is pending against him. His evidence can not be said to be corroborated by the tainted evidence. It can not be forgotten that, as this court is dealing with the appeal against acquittal, unless the view of the learned trial Judge is perverse and there are compelling reasons to interfere with the same, acquittal of the respondents can not be overturned. 36] In this view of the matter, we find no substance in the appeal, so also in the application. Therefore, appeal and application, both are dismissed.