John Beaumont, Kt., C.J.
1. These are applications in revision in which the two accused ask us to interfere with their conviction under Section 201 of the Indian Penal Code, that is to say, for concealing evidence of an offence. The ground on which the accused ask us to interfere is that, as they say, the only evidence against them is that of an accomplice, and that there is no sufficient corroboration of that evidence such as the Court normally requires. At the outset the learned Government Pleader referred us to the case of Emperor v. Lallubhai (1909) Bom. L.R. 858 in which it was laid down that a conviction will not be disturbed by the High Court under its revisional jurisdiction on the mere ground that the rule of practice which requires that the evidence of an accomplice should be corroborated has not been adhered to by the Court which has convicted unless there are exceptional circumstances calling for the exercise of that jurisdiction in the interests of justice. The Criminal Procedure Code confers the widest powers of revision upon this Court, and I rather protest against Judges seeking to lay down rules which confine that discretion in a manner in which the Legislature has not seen fit to Confine it. I think myself that it is clearly open to an accused parson in revision to contend that he has been convicted on the strength of tainted evidence and tainted evidence only, and that it is not the practice of this Court to convict on such evidence; and that if such contention is established the Court should interfere. I think, therefore, we must consider the case on its merits.
2. The principal evidence in the case is that of a man named Chima who was undoubtedly an accomplice. It appears that some time in May 1931-the exact date is not proved-a man named Bapusaheb, who is the son of accused No. 1. murdered his mistress named Sundrabai in a house in Poona occupied by accused No. 1 and Bapusaheb as part of the joint family property. Bapusaheb informed his wife Lilavati of the murder and made her assist him in cleaning the room and the knife used. Subsequently Lilavati was confined by Bapusaheb in this house for about six months, when she escaped and informed the police about the murder, and ultimately Bapusaheb was prosecuted and convicted and sentenced to transportation for life. The story of Chima as to the suppression of evidence of this murder comes shortly to this: He is a servant of accused No. 1 employed at a place called Vadgaon, some five or six miles from Poona, where accused No. 1 owns some fields and a building which is described as a bungalow, in which a man named Raghunath, who was some relation of accused No. 1, lived. Raghunath had died, so his evidence was not available. On the day of the offence, according to Chima, he had gone to Poona to accused No. 1's house to carry some wood; he had taken the bullock cart over, and that was sent back with another servant, In the course of the afternoon Chima was driven back to Vadgaon in a tonga in which accused No. 2, who is the servant of accused No. 1, was in the habit of driving his master; so that the three of them, accused No. 1, accused No. 2 and Chima, were driven out to Vadgaon, according to Chima's evidence, on the day of the offence. Then, Chima was sent back to Poona with the bullock cart, as he says, in order to fetch manure, and accused No. 2 seems to have gone back to Poona by a lorry. Subsequently Chima and accused No. 2 helped to carry the body of the murdered woman which was wrapped in a carpet down the stairs, they placed it in the bullock cart under some manure, and took it out to Vadgaon, and then, according to Chima's evidence, they there buried it in a room in the bungalow under the express directions and superintendence of accused No. 1. Some six months later, Chima says, that, accused No. 1 told him that Lilavati had informed the police about this murder and that the bones of the murdered woman must, therefore be disposed of, and accordingly Chima and accused No. 2 dug up the bones and threw them into the canal. Eventually bones of a woman were found in the canal, which bones were identified as those of the murdered woman, and some teeth which fitted into the skull found in, the canal were found in the room of the bungalow where the body was said to have been first buried. Those facts undoubtedly tend to corroborate the general truth of Chima's story.
3. Now, both the trial Court and the lower appellate Court recognised that Chima is an accomplice, and that the rule of the Court is that the evidence of an accomplice requires some independent corroboration as against each accused, and both the Courts came to the conclusion that there was sufficient corroboration. The learned Government Pleader has contended that it is not necessary that the evidence corroborating the story of an approver or an accomplice should be evidence which directly connects the accused with the offence. I agree with that proposition, but there must be some evidence which tends to show that the story of the approver or accomplice is true in so far as it relates to the accused. For instance, if the story of an approver is that the accused took part in a murder and robbery and that he received part of the stolen goods, independent evidence that the property shown to have been stolen on the occasion of the offence is found with the accused would be corroboration of the approver's story against the accused, although the finding of stolen property is obviously not in itself evidence that the accused took part in a murder. As the learned Government Pleader points out, if the rule were that you must have independent evidence against the accused of the actual perpetration of the offence, it would come to this that the approver's evidence can only be used by way of corroboration, and that is not the rule.
4. Now with regard to accused No. 1 the evidence of corroboration relied on by the lower Courts is, first of all, that there is independent evidence that accused No. 1 did on the day of the murder go to Vadgaon in the tonga, and that I think is so. But there is also evidence that accused No. 1 used to go out to Vadgaon every afternoon, and there is no direct evidence that he actually went into the bungalow at Vadgaon either on this day or any other occasion. He did not live there and presumably his reason for going to Vadgaon as a rule would be that he wanted to inspect the land. Mr. Carden Noad, who appears for accused No. 1, has contended as a proposition of law that a circumstance cannot furnish corroboration of the story of an accomplice against an individual accused if either it has no criminal significance apart from details of the accomplice's story which are not themselves proved by independent evidence, or the circumstance is susceptible of an innocent explanation which the Court accepts as probable. I think that proposition is sound. Applying it here, there is no criminal significance in accused No. 1 having gone to Vadgaon on the day of the offence unless we accept the story of the accomplice that he went there for the purpose of disposing of the body, and his visit to Vadgaon is in itself capable of an innocent explanation because the evidence is that he went to Vadgaon every day at about the time on which he is alleged to have gone on the date of the offence. Therefore, it seems to me that the mere fact that the accused is shown to have gone to Vadgaon on the day of offence is no corroboration of the accomplice's story as to what the accused did when he got to Vadgaon.
5. Then it is said that all the circumstances of the case show that accused No. 1 must have been a party to the disposal of the body. No doubt there is force in that. Accused No. 1 was living with his son Bapusaheb, and if Bapusaheb committed a murder and desired to dispose of the body on the accused's place at Vadgaon, the probabilities are, having regard to the relationship between the parties, that Bapusaheb would take accused No. 1, his father, into his confidence, and would get him to make the necessary arrangements for the disposal of the body at Vadgaon. But the mere fact that the approver's story is a very probable one is no reason for dispensing with the rule that such evidence requires independent corroboration. That proposition was acted upon recently by this Court in Emperor v. Allisab : (1932)34BOMLR1453 where it was laid down as a definite rule of prudence that the evidence of an accomplice should, not be acted upon unless corroborated as against the particular accused in material respects, and that that rule should be applied however little reason there was to doubt the approver's story. I have no doubt that the strict application of that rule does sometimes result in a guilty person being acquitted, and this may be one of those cases. But on the other hand I am quite sure that if the rule were otherwise, the result would frequently be the conviction of innocent persons, because it is so easy for an approver or an accomplice, who is telling a story which is in substance true, and therefore not capable of being shaken in cross examination, to introduce in to that story the names of innocent persons along with the guilty. In my view there is really no corroboration of the story of Chima as against accused No. 1. It is conceivable that the relations between Bapusaheb and his father were not cordial, and that the arrangements for the disposal of the body were made by Bapusaheb with the two servants, who would no doubt have to act in collusion with the man who was living at the bungalow, but that their instructions were to keep matters from the knowledge of accused No. 1. It is possible that accused No. 1 knew nothing about the disposal of the body, although I quite agree with the learned Sessions Judge that the probabilities of the case are all the other way. However, in my judgment mere probability of guilt is not any corroboration of the approver's story. I think, therefore, that in the case of accused No. 1 we must set aside the conviction and sentence and allow his application.
6. The case of accused No. 2 is different, because there is undoubtedly as against him the evidence of Lilavati, the wife of Bapusaheb, who says definitely in her evidence that Chima and accused No. 2 brought down the murdered woman's corpse tied in a carpet and that they carried it to the back of the house where the cart was waiting. The trial Court and the lower appellate Court having accepted that evidence, and it being evidence of a nature on which they could properly act, there is, I think, no ground on which we can properly interfere in revision. I think, therefore, that in the case of accused No. 2 we must dismiss the application.
7. With regard to the sentence on accused No. 2, namely, eighteen months' rigorous imprisonment, we are asked to reduce that. I have no doubt that accused No. 2 was in a difficult position and that pressure was brought to bear upon him by his master. But it seems to me that the offence was a very serious one and servants must learn to resist this sort of pressure. There is, I think, no ground on which we can reduce the sentence.
8. Accused No. 1 acquitted and ordered to be set at liberty. Pine, if paid, to be refunded.
N.J. Wadia, J.
9. I agree. It has been admitted by both the lower Courts that as far as appellant No. 1 is concerned the case rests solely on the evidence of the accomplice Chima. With regard to appellant No. 2, Chima's evidence is supported by that of Lilavati. The question whether Lilavati's evidence is or is not reliable is not one which we could consider in revision, though if I had to give an opinion I would have no hesitation in saying that on this point it is quite reliable. There is, therefore, no reason to justify us in interfering with the conviction of appellant No. 2. As regards appellant No. 1 both the Courts have admitted the necessity of corroboration of the evidence of the accomplice. They have also realised that that corroboration must not merely be such as to prove generally the truth of the approver's story but such as would connect appellant No. 1 with the crime. The circumstances on which the lower Courts have relied as affording corroboration do not, in my opinion, carry the case against appellant No. 1 beyond providing very strong ground for suspicion that he must have been concerned in the offence. All that can be said against him is that the bungalow or farm-shed in which Sundrabai's body was first buried was on the appellant's own land and that he used to visit this land every day, that as the disposal of the dead body took two days, and as some months later the body was again exhumed from the room in the bungalow in which it had been buried, it is unlikely in the extreme that accused No. 2 and Chima, who were servants of accused No. 1. would have done these things without the consent or orders of their master appellant No. 1. It is, however, to be remembered that appellant No. 1 and Bapusaheb were members of a joint family, that Bapusaheb himself was a grown-up person, and according to the evidence a brother or relative of appellant No. 1 named Raghunath was permanently staying in the Vadgaon bungalow. It is, therefore, not impossible that the body may have been buried in the bungalow under the orders and supervision of Bapusaheb or Raghunath without appellant No. 1 knowing about it or without his taking an active part in the business. Mere knowledge on his part that the body had been buried in the bungalow would not be sufficient for his conviction under Section 201. The utmost, therefore, that the evidence would show would be that it is extremely improbable that appellant No. 1 could not have known of what had been done with regard to Sundrabai's body, and that it is extremely probable that he himself was concerned in what had been done. But such extreme probability cannot be considered as suffcient proof of his guilt. The accomplice's evidence would need corroboration under any circumstances according to the rule which the Courts have almost invariably followed. In this case the necessity of such corroboration is all the greater in view of the fact that Chima, according to the facts elicited in his own cross-examination and according to the evidence of the Police Sub-Inspector, was a most unwilling witness when he was first examined by the police, and it was only by very slow degrees and by repeated questioning that the story with regard to the offence could be elicited from him. For these reasons I consider that the application of appellant No. 1 should be allowed and that of appellant No. 2 dismissed.