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2013 DIGILAW 1709 (PNJ)

Karambir Singh v. State of Haryana

2013-12-18

ANITA CHAUDHRY

body2013
JUDGMENT Ms. Anita Chaudhry, J.: (Oral) - The issue raised by the appellants in this appeal is whether conviction could be recorded solely on the statement of the approver if there is no corroboration to his statement. 2. The appellants were tried and convicted by Addl. Sessions Judge (I), Bhiwani, vide judgment of conviction dated 31.10.2008 and order of sentence dated 10.11.2008 in FIR No.48 dated 09.02.2004 registered for commission of offences punishable under Sections 307/34 IPC read with Section 120-B IPC at police station City Bhiwani and were sentenced to imprisonment mentioned herein below: ---------------------------------------------------------------------------------------------------------------------------------------- Accused Offence Sentence ---------------------------------------------------------------------------------------------------------------------------------------- Karambir U/s 307 IPC read with Section Rigorous imprisonment for ten years. 120-B IPC Dharambir U/s 307/34 IPC read with Section Rigorous imprisonment for ten years along @ Ballu 120-B IPC with a fine of Rs.1,000/-. In default of payment of fine to further undergo RI for one month. ---------------------------------------------------------------------------------------------------------------------------------------- 3. As accused Karambir was already undergoing sentence of life imprisonment in FIR No.414 dated 06.11.2004, it was specifically ordered that the sentence awarded in this case would run concurrently with the previous sentence awarded vide judgment dated 22.02.2007 (Ex.PEE). Accused Karambir died on 18.02.2012 and his appeal was dismissed as it had abated. 4. The facts may now be briefly put. Ramesh Masta was returning on his scooter after attending a wedding. At about 9.50 PM on 09.02.2004, he entered the Nai Kalala street when a red motorcycle crossed him, which had two young boys on the seat. The pillion rider of the motorcycle fired a shot at him with a small gun, which hit his back. The complainant could not see their faces but they were in the age group of 25-30 years. The boys, thereafter, fled on their motorcycle. The complainant went to the shop of Vikas Masta, who brought him to the Civil Hospital, Bhiwani. 5. The prosecution case is that Vikas and Karambir had been arrested in another case and they suffered disclosure statements and they named Dharambir as their accomplice. Dharambir was arrested subsequently. The accused were interrogated and some recoveries were effected. On completion of investigation challan was presented against the appellants and some others. One of the accused namely Bhawani was tried by the Juvenile Justice Board, Bhiwani. 6. Charge for commission of offence punishable under Sections 120-B, 307 read with Section 34 IPC was framed against Vikas and Karambir on 14.09.2004. The accused were interrogated and some recoveries were effected. On completion of investigation challan was presented against the appellants and some others. One of the accused namely Bhawani was tried by the Juvenile Justice Board, Bhiwani. 6. Charge for commission of offence punishable under Sections 120-B, 307 read with Section 34 IPC was framed against Vikas and Karambir on 14.09.2004. Bhawani was tried separately by Juvenile Justice Board, Bhiwani. Dharambir could not be arrested. The trial commenced but subsequently, Dharambir was also arrested and was tried accordingly. 7. The record reveals that both the trials were being conducted separately and under the directions of the this Court, the case bearing S.C. No.30/123/2004 was ordered to be tried by the same officer who had taken up case titled State vs. Vikas. It was after June, 2007 when the prosecution had completed its evidence that the cases were ordered to be clubbed together. 8. The prosecution had examined Vikas PW1, he is the only private witness. Besides him, the prosecution had examined fifteen other witnesses who are official witnesses, some had investigated the case or had arrested the accused and had prepared the challan etc. The complainant could not be examined as he had been murdered before he could make a statement in the trial Court. 9. Statement of the accused was recorded and all the accused pleaded false implication and denied making any disclosure statement. Thereafter, accused Vikas absented from the Court. The prosecution moved an application under Section 311 Cr.P.C. and the case was fixed for its reply when accused Vikas appeared and moved an application under Section 306/307 Cr.P.C. seeking permission to become an approver. The trial Court allowed the application on 24.10.2008 and Vikas was allowed to become approver. Pardon was accepted on the usual terms. His statement as a prosecution witness was recorded. 10. Vikas appearing as PW17 disclosed that 10 – 12 days prior to the incident Dharamvir @ Ballu accused contacted him and took him to Karambir’s house and Karambir disclosed that there was a land dispute going on between him and Ramesh Masta and he wanted to kill Ramesh Masta and if he was eliminated, he (Vikas) would be given a sum of Rs.10,000/-. The offer was made to him and Dharambir and arrangement of a vehicle & weapon had been made by his son Bhawani Singh. The offer was made to him and Dharambir and arrangement of a vehicle & weapon had been made by his son Bhawani Singh. The witness further disclosed that 10 – 12 days later Dharambir received a message and he called him and both of them came to Hansi Chowk near Government School, Bhiwani at about 8:00/8:30 PM and Bhawani Singh handed over a pistol and two live cartridges and a red motorcycle to them. He was asked to go to the marriage palace. He stated that he parked the motorcycle outside the marriage palace while Bhawani Singh and Dharambir went inside to point out the target and had shown Ramesh Masta to Dharambir and after some time, Bhawani and Dharambir came out of the marriage palace and asked him to follow the scooter which Ramesh Masta was starting. He stated that he started the motorcycle and Dharambir sat behind him as pillion rider and they followed the scooter and while overtaking it, Dharambir fired at Ramesh Masta with an intention to kill him and thereafter, they left for village Baund Kalan. He stated that on next day Bhawani handed over Rs.10,000/- to Dharambir and Bhawani Singh took away their motorcycle. 11. The application under Section 311 Cr.P.C. filed by the prosecution was allowed and judgment Ex.PEE was tendered in evidence. Additional statement of the accused under Section 313 Cr.P.C. was recorded. 12. The trial Court accepted the statement of the approver and found that there was sufficient corroboration to his statement and convicted the appellants and sentenced them to the punishment mentioned hereinabove. 13. I have heard the submissions made on behalf of both the sides and have gone through the record minutely. 14. It was contended on behalf of Dharambir appellant that the issue which is to be examined in the appeal was whether conviction could be recorded on the uncorroborated statement of the approver? It was urged that the timing of the application under Section 306/307 Cr.P.C. is important and the fact was that Vikas was related to the complainant and there was anxiety on the part of the prosecution to get him on their side as they were unable to collect any fresh material against the accused. It was urged that the timing of the application under Section 306/307 Cr.P.C. is important and the fact was that Vikas was related to the complainant and there was anxiety on the part of the prosecution to get him on their side as they were unable to collect any fresh material against the accused. It was urged that the complainant did not survive to make a statement in the Court would not be taken against the appellant and there is no corroboration to the approver’s statement. It was urged that the prosecution failed to recover any pistol and there was no motive for Dharambir to commit the murder. It was urged that the prosecution had not given any reason why the application was moved five days before passing of the judgment and at the last stage, when the statement under Section 313 Cr.P.C. had already been recorded. It was urged that the police could have collected the call details to show whether any call was made and the statement given by the approver has to be tested to find out whether the statement was correct. It was urged that neither Vikas had given his mobile number nor he had any license to drive a vehicle and there is no motive and there is no corroborative evidence and conviction on the basis of an uncorroborated statement should not have been recorded. Reliance was placed upon Jnanendra Nath Vs. The State of West Bengal 1959 AIR 1199 (SC), K.Hashim Vs. State of Tamil Nadu 2004(4) RCR(Crl.) 982 (SC), Renuka Bai Vs. State of Maharashtra 2006(4) RCR(Crl.) 128 (SC), A.Dedvendran Vs. State of Tamil Nadu 1998(1) RCR(Crl.) 440 (SC), Niranjan Singh Vs. State of Punjab 1962(2) RCR(Crl.) 770(SC), Shankar Vs. State of Tamil Nadu 1994(2) RCR (Crl.) 731(SC), Sarwan Singh Rattan Singh Vs. State of Punjab 1957 AIR 637 (SC). 15. As against it, it was urged by the prosecution that the complainant was murdered and an FIR was registered in November, 2004 and accused Karambir was convicted. State of Punjab 1962(2) RCR(Crl.) 770(SC), Shankar Vs. State of Tamil Nadu 1994(2) RCR (Crl.) 731(SC), Sarwan Singh Rattan Singh Vs. State of Punjab 1957 AIR 637 (SC). 15. As against it, it was urged by the prosecution that the complainant was murdered and an FIR was registered in November, 2004 and accused Karambir was convicted. It was urged that the law does not provide any time for moving an application and the application can be filed at any time before the judgment is pronounced and the evidence of Vikas cannot be said to be tainted nor there is any evidence that he was related to the complainant and the accused had the motive as there was litigation pending between Karambir and the complainant. 16. The appellants have attacked the statement of the approver on various grounds and the submission is that the conviction could not be recorded on the solitary statement of the approver as there was no corroboration. It would be necessary to refer to the legal position with regard to the evidentiary value of the approver/accomplice and its acceptability with or without corroboration. 17. Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars. The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion. 18. If the suspicion which attaches to the evidence of an accomplice is not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice’s evidence is removed, then that evidence can be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone. 19. In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 along with Illustration (b) to Section 114 which read as under:- “133. 19. In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 along with Illustration (b) to Section 114 which read as under:- “133. Accomplice .- 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.” Illustration (b) to Section 114 (b) The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.” 20. Dealing with the scope and ambit of the above-noted two provisions, Hon’ble Apex Court, in Bhiva Doulu Patil vs. State of Maharahshtra, AIR 1963 SC 599 : (1963) 3 SCR 830 had held that both the sections are part of one subject and have to be considered together. It was further held:- “The combined effect of Sections 133 and Illustration (b) to Section 114, may be 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 courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.” 21. The very same principle was reiterated by the Hon’ble Apex Court in Mohd. Husain Umar Kochra etc. Vs. K. S. Dalipsinghji and Another etc., (1969) 3 SCC 429 and it was held :- “....The combined effect of Sections 133 and 114, Illustration (b) is that though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another.” 22. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another.” 22. While considering the validity of approver’s testimony and tests of credibility, the hon’ble Apex Court, in Sarwan Singh S/o Rattan Singh vs. State of Punjab AIR 1957 SC 637 held as under:- “7.....An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver’s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver..... If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver..... 8.....Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts” 23. In Ravinder Singh v. State of Haryana, (1975) 3 SCC 742 , Hon’ble Apex Court, while considering the approver’s testimony within the meaning of Section 133 of the Indian Evidence Act, 1872 had observed as follows:- “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. 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 situation 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 approver’s 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.” 24. In Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp) SCC 599 where the prosecution had sought to prove its case by relying upon the evidence of the approver, it was held that the approver is a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver, it would be risky to base the conviction, particularly, in respect of a serious charge like murder. 25. 25. Once the evidence of the approver is found to be not reliable, the worth of his evidence is lost and such evidence, even by seeking corroboration, cannot be made the foundation of a conviction. 26. The above said ratio has been reaffirmed and reiterated by Hon’ble Apex Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80); Ramprasad v. State of Maharashtra, : AIR 1999 SC 1969 : (1999 Cri LJ 2889) and Narayan Chetanram Chaudhary v. State of Maharashtra, : (2000) 8 SCC 457 . 27. In Narayan Chetanram Chaudhary (supra), it was further held that for corroborative evidence, the court must look at the broad spectrum of the approver’s 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. 28. From the above discussion, it is clear that the approver’s statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. The corroboration need not be of a kind which proves the offence against an accused but it should sufficiently connect the accused with the crime. What is required is that there should be sufficient corroborative evidence to show that the approver is speaking the truth with regard to the accused whom he seeks to implicate. It is not necessary that there should be independent corroboration of every material circumstance and it need not consist of evidence which standing alone would be sufficient to justify the conviction. In other words, there should be additional evidence by way of corroboration rendering the story of an accomplice probably true and that it is reasonably safe to rely upon his statement. Ultimately, the question whether there is sufficient corroboration or not depends upon the facts and circumstances of each case. 29. Bearing the principles in mind, the important aspects of the evidence of PW17 and the other evidence led by the prosecution has to be examined. It has also to be seen whether the statement of the approver had satisfied the necessary requirement of law and whether it is corroborated in material particulars. 29. Bearing the principles in mind, the important aspects of the evidence of PW17 and the other evidence led by the prosecution has to be examined. It has also to be seen whether the statement of the approver had satisfied the necessary requirement of law and whether it is corroborated in material particulars. The prosecution had examined Vikas who is the elder brother of Ramesh Masta (deceased). He had only taken Ramesh Masta to the hospital. He had stated that nothing else had occurred in his presence. This witness was declared hostile. He maintained that his signatures were taken on blank paper. 30. SI Nihal Singh PW6 had arrested Vikas (now approver). The witness had deposed that Vikas had suffered a disclosure that he had concealed a pistol in the house of his friend at Buland Shahar and while they were proceeding, Vikas stated that the statement was false and the police party returned back. 31. SI Rajroop PW7 had recorded the statement of the injured-complainant. He stated that he made an endorsement and sent the same for registration of the FIR. 32. ASI Ranbir Singh PW8 deposed that Vikas was interrogated and he suffered a disclosure statement that he along with Dharambir had gone to the house of Karambir where Karambir promised to pay him Rs.10,000/- for committing the murder of Ramesh Masta and Karambir was to provide a motorcycle and subsequently Bhawani Singh had pointed out Ramesh Masta in the marriage party and how they had attacked and fired at him while he was returning from the marriage party. 33. Partap Singh EHC PW9 had interrogated Bhawani son of Karambir who suffered a disclosure statement and led the police party and got the motorcycle bearing registration No.HR- 50/0079 recovered which was stated to be used in crime and was taken into possession vide recovery memo Ex.PO. He stated that ASI Subhash had interrogated Karambir who suffered a disclosure statement Ex.PQ that he had kept a pistol concealed in the house of his in-laws in village Chuliana. He stated that accused Karambir made another disclosure statement Ex.PR that the weapon had been handed over by him to Billu @ Dharambir. 34. Dr. Rajinder Rai PW12 had examined Ramesh Masta injured and had found following injuries on his person:- 1. Lacerated wound of size 1.5 x 1 cm. x depth not measured. He stated that accused Karambir made another disclosure statement Ex.PR that the weapon had been handed over by him to Billu @ Dharambir. 34. Dr. Rajinder Rai PW12 had examined Ramesh Masta injured and had found following injuries on his person:- 1. Lacerated wound of size 1.5 x 1 cm. x depth not measured. Fresh bleeding was present, blackening, tattooing, grease collar was present over right lower back of chest, 9 cm. lateral to spine (entry wound). X-ray, surgeon’s opinion and ortho opinion was advised. 2. Lacerated wound of size 2.5 x 1.5 cm. x depth not measured. Fresh bleeding present over left lower back of chest just lateral to spine (6 cm. lateral to spine). X-rays and surgeon and ortho opinion was advised. 3. Swelling of back of chest lower part present. No foreign body detected. Surgeon opinion and x-ray was advised. Nature of injury was kept under observation. Type of weapon was the arm injuries. 35. Inspector Ram Avtar PW10 and ASI Subhash Chander PW13 had interrogated accused Vikas and Karambir who had suffered separate disclosure statements but no recovery was effected pursuant to the disclosures made by both the accused. 36. The FIR in the present case was recorded on the statement made by Ramesh Masta. He had been hit on his back and did not disclose the identity of the assailants. The complainant approached his brother Vikas Masta who brought him to the hospital for treatment. While the trial was pending Ramesh Masta died in an firing incident on 05.11.2004 and another case was registered. Ramesh Masta was the only person who could have seen the face of the appellant-rider and he could have identified the assailants in the Court but he did not survive to make a statement or identify the assailants. The prosecution had placed the copy of the judgment rendered in the case registered against Karambir. Karambir was sentenced to life imprisonment for the murder of Ramesh Masta. 37. The trial Court accepted the statement of the approver and found that there was material corroboration to his statement and discussed it in para 21 of the judgment. The prosecution had placed the copy of the judgment rendered in the case registered against Karambir. Karambir was sentenced to life imprisonment for the murder of Ramesh Masta. 37. The trial Court accepted the statement of the approver and found that there was material corroboration to his statement and discussed it in para 21 of the judgment. The trial Court has given a finding that there was material corroboration to every material particular and the relevant para reads as under:- “For the reasons recorded above, in my opinion, statement of accused turned approver Vikas, examined as PW17, can not disbelieved only because of the reason that he was a co-accused and has turned approver with a view to save his skin. The statement of approver Vikas, to my mind, is fully corroborated on every material particular by the statement of PWs including the investigating officer examined by the prosecution as well as the recovery of motorcycle and the weapon of offence i.e. pistol in another case pertaining to P.S. Mundawar in Rajasthan at the pointing out of Bhawani Singh and Dharambir (co-accused). There is sufficient circumstantial as well as ocular evidence on record to prove that it was accused Karambir who hatched conspiracy to commit the crime and accused Dharambir @ Ballu participated in the crime as per agreement arrived at between them.” 38. A perusal of the above could show that the trial Court had referred to the corroboration to the statement made by the approver and had referred to the statement made by the Investigating Officer and of the recovery of the motorcycle and the weapon of offence in another case. The statement given by Vikas PW17 is similar to the one given by the Investigating Officer but there is no evidence regarding recovery of the weapon which was used in the occurrence. The FSL report states that .315 bullet had been fired from a country made fire arm. There is no evidence to show that any pistol was recovered from Karambir. The experts had reported that the cartridge had been fired from a pistol but there is no evidence to further connect it. There is no evidence as to how the information was exchanged between the accused. The police failed to recover any mobile phone or procure any mobile data. The ownership of the motorcycle was not proved. The experts had reported that the cartridge had been fired from a pistol but there is no evidence to further connect it. There is no evidence as to how the information was exchanged between the accused. The police failed to recover any mobile phone or procure any mobile data. The ownership of the motorcycle was not proved. There is no evidence to suggest that the motorcycle referred to by the witnesses was actually used on that day. The fact that Karambir was ultimately convicted for the murder of Ramesh Masta cannot be a circumstance which the prosecution can hold against him in this case. 39. From the resume of the prosecution case as well as the evidence of the witnesses, it is found that there is no corroboration to the statement of the approver. In fact PW17 did not come out with any new details. He has not made any new revelations. The evidence of the approver cannot be held to be trustworthy. There is no corroboration on any material particular and could not be considered to base a conviction. The statement given by PW17 Vikas only raises suspicion which cannot take the place of proof and and it is held that the evidence of the approver is not reliable so as to record a conviction. Therefore, the judgment of the trial Court is set aside and the appeal is accepted. Lower Court record be sent back.