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In Re: Gundla Narayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal Nos. 403 to 408 of 1957
Judge
Reported inAIR1959AP387; 1959CriLJ947
ActsIndian Penal Code (IPC), 1860 - Sections 395 and 400; Evidence Act, 1872 - Sections 9, 27 and 133; Code of Criminal Procedure (CrPC) , 1898 - Sections 337
AppellantIn Re: Gundla Narayana and ors.
Appellant AdvocateAli Adil, ;M.A. Nomani, ;M. Ram Mohan Rao and ;Amina Naqvi, Advs.
Respondent AdvocateAddl. Public Prosecutor
DispositionAppeal dismissed
Excerpt:
.....of the learned sessions judge, but we find no indication in the whole of the judgment that the learned judge has considered the character of the approver's evidence and reached the conclusion that it was the evidence given by a reliable witness. after going through the same, we have no hesitation in coming to the conclusion that they are reliable witnesses. it would be merely confirmatory of other independent testimony'.all that is required is that there must bet--some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. then again, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the..........documents were filed. in defence, 9 witnesses were produced. on the evidence, the learned sessions judge held that in all the 19 villages dacoities were committed, but as the evidence was not sufficient to connect all the accused, he held the appellants alone responsible for the dacoities committed? at bilalpur, ginnerpalli, adkicherla and tadpalli. in the result, he convicted and sentenced the appellants as aforesaid. hence these separate appeals on behalf of the appellants. there is no appeal on behalf of the state against the acquittal of the other accused. 4. it is contended by the learned counsel for the appellants that when the learned sessions judge in para 57 of the judgment has held that the evidence does not prove that the approver and the accused were associated for the.....
Judgment:

Manoher Pershad, J.

1. In the district of Medak, Bidar and Gulbarga between November, 1952 and December, 1953, dacoities were committed by a gang of persons. 36 persons including the present appellants and two approvers (P.Ws. 1 and 2) were charged for the said dacoities under Section 400, I.P.C. The learned Sessions Judge, Medak held the appellants guilty under Section 400, I.P.C. and sentenced each of them to life imprisonment excepting the appellant (A-4) who was sentenced to 7 years' R.I. A-1, A-2, A-13, A-17 and A-21 were further sentenced to a fine of Rs. 50/-each and in default to one year R.I. The remaining persons were acquitted of the charge. Against the said convictions and sentences are these sis appeals (Cr. A. 403 of 1957 to 408 of 1957) on behalf of A-1, A-2, A-4, A-13, A-17 and A-21 respectively.

2. The facts leading to these appeals are: A party called P.D.F. was formed at Zahirabad, consisting of 24 members--A-1 to A-4, A-6 to A-17, A-21 to A-23, A-36 and Hafizuddin, Dharmiah and Rachappa. The object of the party was to win the support of the poor, to launch out a propaganda against the rich and to acquire money for this purpose by means of dacoity. In furtherance of this object, in the month of November, 1952, the said Dharmiah, otherwise called Swamy (now absconding) and the leader of the said party, hatched a conspiracy for habitually committing dacoities with his trustworthy associates (A-21, A-22 and others). They divided themselves into two hands, the first band consisting of A-1 to A-21 and the approver Mohd. Ismail (P.W. 1) and the second band consisting of A-22 to A-36 and some absconding accused. In about 19 villages, viz.,

1. Ranjole, Taluq Zahirabad.

2. Bilalpur --do-

3. Malkapur.

4. Maniarpur.

5. Edakulapalli.

6. Ginnerpalli.

7. Adkicherlu, Taluq Tandur.

8. Tatapally --do-

9. Jidoally, Taluq Gajwal.

10. Tuliapur, Taluq Narasapur.

11. Mubraspur, Taluq Gajwal.

12. Machanpalli, Taluq Gajwel.

13. Muppireddipally, Taluq Gajwel.

14. Gangapalli, Taluq Narasapur.

15. Kistapur, Taluq Gajwel.

16. Meenajipet, Taluq Gajwel.

17. Ibrahimabad, Taluq Narasapur. 18. Ahmednagar, Taluq Narasapur. 19. Venkatapur, Taluq Narasapur.

3. Dacoities were committed by the said members of the gang. Properties were recovered. The accused were charge-sheeted. They denied the charges. On behalf of the prosecution, 163 witnesses were examined and about 169 documents were filed. In defence, 9 witnesses were produced. On the evidence, the learned Sessions Judge held that in all the 19 Villages dacoities were committed, but as the evidence was not sufficient to connect all the accused, he held the appellants alone responsible for the dacoities committed? at Bilalpur, Ginnerpalli, Adkicherla and Tadpalli. In the result, he convicted and sentenced the appellants as aforesaid. Hence these separate appeals on behalf of the appellants. There is no appeal on behalf of the State against the acquittal of the other accused.

4. It is contended by the learned counsel for the appellants that when the learned Sessions Judge in para 57 of the judgment has held that the evidence does not prove that the approver and the accused were associated for the habitual commission of dacoities, he was not justified in convicting the accused under Section 400. I.P.C. It is nest urged that when the learned Sessions Judge has himself held that the evidence produced on behalf of the prosecution was not sufficient to connect the appellants, with the dacoities committed in other places, he could not hold them responsible merely on the recovery of certain articles which were not recovered on the information furnished by them or at their instance. It is also argued that the property recovered is from places which are accessible to others and in the joint possession of many persons, such recovery cannot be relied upon. Lastly, it is urged that the prosecution evidence is not at all sufficient to establish the guilt of the appellants; on the other hand, it is full of suspicion and doubt.

5. In order to appreciate the contentions of the learned counsel for the appellants, a reference to the evidence is necessary, but before discussing the evidence we would like to dispose of the legal question first. That legal question relates to the ingredients of Section 400, I.P.C. which runs thus :

'Whoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.'

To hold the appellants guilty under this Section, the prosecution will have to prove :

(1) that the appellants belong to the gang in question; and

(2) that such a gang was associated for the purpose of habitually committing dacoity.

6. One of the chief points to be established in a case of gang dacoity is association in the crime and if it can be proved that the appellants and other persons had joined together, to commit dacoities. the former fact would be strong evidence of criminal association and would be relevant to show that they are members of the gang, If a gang of persons can he shown to have been associated for the habitual commission of dacoities, evidence as to other crimes committed by the gang may very well bs relevant against the accused. A conviction under this section cannot be considered bad in law merely because the evidence on record would also justify conviction of a special offence under Section 395, I. P. C. Thus, we have to see whether the evidence on record sufficiently establishes that the appellants were members of a gang associated for the purpose of habitually committing dacoities.

We do not agree with the contention of the learned counsel for the appellants that the learned Sessions Judge has held that the accused were not members of a gang. According to the prosecution, a meeting was held first in the house of Gundia Narayan, which was attended by A-1, A-2, A-9, A-13 and Dharmiah and on Dharmiah's saying that they Were not doing the work of the party properly A-2 and A-9 stated that they were short of money and due to this they wero unable to devote time to the work. On this, Dharmiah stated that this matter would be discussed in detail and they should congregate in the mango grove of the village Sajjapur.

In this meeting, all the 24 members of the party were present and an oath of secrecy was administered to the persons present and in this meeting a systematic plan for committing dacoities was decided upon. The learned Sessions Judge has come to the conclusion that on the evidence of the ap-prover, he was not prepared to hold that all the 24 persons participated in the meetings but he has definitely held in the last portion of para 8 of the judgment that meeting did take place which was at least attended by the appellants and the approver where it was decided that they should launch upon and live by dacoities systematically. It cannot therefore be said that the learned Sessions Judge has given a finding that there was no gang and the present appellants were not members of that gang.

It is no doubt true that in so far as the question whether there was a Rang of persons associated for the purpose of habitually committing dacoities is concerned, there is only the evidence of the approvers, Mohd. Ismail and Gangiah respectively. Both these witnesses have given evidence to the fact of the formation of the party, the object and to the ways and means of achieving that object. They have clearly stated that meetings wene held and in Those meetings it was decided to launch a propaganda against the rich and to acquire money for this purpose by means of dacoity. The lower Court has believed their evidence. The contention of the learned counsel for the appellants is that unless the statement of the approvers is corroborated by other independent evidence, their statements cannot be accepted to prove that there was a gang.

7. The first question is whether the law requires corroboration. The Evidence Act no where says so. On the other hand when dealing with the testimony of an accomplice, though it says in Section 114(b) that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, it makes it clear in Section 133 that :

'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.'

Lord Reading, the Lord Chief Justice of England in King v. Baskerville, 1916-2 KB 658 at p. 663 ob-served :

'There is no doubt that the uncorroborated evidence of an accomplice is admissible in law.....But it has long been 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 or accomplices 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 legal province to convict upon such unconfirmed evidence.....

This rule of practice has become virtually equivalent to a rule of law and since the Court of Criminal Appeal came into operation, this Court has held that in the absence of such a warning by the Judge, the conviction must be quashed......Ifafter the proper caution by the Judge, the Jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated.'

This observation of his Lordship, the Chief Justice, has been approved in Rameswar Kalyan Singh v. State of Rajasthan, : 1952CriLJ547 and it has been held that :

'The rule which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction; but that the necessity of corroburation as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge and in Jury cases must find place in the charge before a conviction without corroboration can be sustained.'

It has been further observed that:

'It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.'

8. It follows therefore that an approver is undoubtedly a competent witness under the Evidence Act, but the appreciation of his evidence must show that he is a reliable witness. There can, however, be no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and the Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by some other Independent evidence. To put it in the words of Gajendragadkar, J.

'In other words, 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 corrohoration. This test is special to the cases of weak or tainted evidence like that of the approver.' (Vide, Sarwan Singh v. State of Punjab, (S) : 1957CriLJ1014 )

9. Mr. Nomani very strenuously contended that since the learned Sessions Judge has failed to address himself to this initial question, his appreciation of the approver's evidence suffers from a serious infirmity. This contention, in our opinion, is well founded. We have carefully gone through the judgment of the learned Sessions Judge, but we find no indication in the whole of the judgment that the learned Judge has considered the character of the approver's evidence and reached the conclusion that it was the evidence given by a reliable witness. No doubt, there is no such clear finding by the learned Sessions Judge, but we find that he has relied on their statements and has also held that their statements have been corroborated by other prosecution evidence. As there was no clear finding, we went through the statements of the approvers in detail. After going through the same, we have no hesitation in coming to the conclusion that they are reliable witnesses.

10. We next turn to the nature and extent of the corroboration required. This again is lucidly expounded by Lord Heading in Raskerville's case (1916) 2 KB 658 at pp. 664 to 669 :

'It would be impossible, indeed it would be dangerous, to formulate the, kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear.'

Further, as Lord Reading says :--

'Indeed, if it were required that the accomplice should he confirmed in every detail of the crime, his evidence would not be essential to the case. It would be merely confirmatory of other independent testimony'.

All that is required is that there must bet--

'Some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.'

11. It follows therefore that it is not necessary that there should be independent confirmation of every material circumstance in the same that the independent evidence in the case, apart from the testimony of the accomplice, should in itself be sufficient to sustain conviction. Then again, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witnesses' story that the accused was the one, or among those, who committed the offence. To put it in the words of Bose, J:

'The reason for this part of the rule is that: ''a man who has been guilty of a crime himself will always be, able to relate the facts of the case, and if the confirmation be only or the truth of that history, without identifying the persons, that is really no corroboration at all ..... It would not at all tend to show that the party accused participated in it.' (Vide : 1952CriLJ547 )

The corroboration must come from independent sources, but it need not be direct evidence that the appellants committed the crime. What the law re-quires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy the reasonable minds that he could be regarded as a truthful witness. In other words, it is sufficient if it is merely circumstantial evidence of their connection with the crime, for if it is otherwise, many crimes which are usually committed in secret, such as, offences with females for unnatural offences could never be brought to justice.

12. Judged by this test, we can say that the evidence given by P.Ws. 1 and 2 (the approvers) has been amply corroborated. There is abundant evidence consisting of the testimony of several wit-nesses in support of the truth of the narrative given by the approvers regarding the various dacoities committed at different places. (His Lordship then discussed the evidence with respect to the corroboration of testimony of approvers and recovery articles and proceeded :)

13. The learned counsel for the accused laid great stress on the fact that the articles recovered were not recovered at the instance of the accused and that most of the articles recovered were not found in the list submitted by the complainants and do not tally with the weight. There is no force in the contention that articles recovered were not the result of the information furnished by the accused. The panchas relating to the recovery and P.W. 168 the Sub-Inspector of Police have clearly stated that the discovery was made after the accused had pointed out. There is equally no force in the contention that tha articles recovered do not find a place in the list or that they do not tally in their weight.

Some of the articles recovered no doubt are different in weight, but it cannot be said that those articles do not find place in the list. The articles recovered have been identified by the witnesses and the appellants have not claimed these articles to be theirs. They have not given any explanation as to how they came to be in possession of those articles. The difference in weight is immaterial. It may be that the complainants may not have known tile exact weight and may have approximately stated so. Relying on Section 27 Evidence Act and Public Prosecutor v. Subba Reddi, AIR 1939 Mad 15 Dasu Ram v. State, AIR 1932 Raj 20 and In Re: Gopisetti Chinna Vcnkata Suhbiah, (S) : AIR1955AP161 it is contended that if the Inspector knew beforehand what the accused was going to say before the discovery was made, it would be hit by Section 37, Evidence Act.

Wo agree with the proposition that if the evidence on record shows that the discovery of the articles was not the result of the information furnished by the accused and that the Sub-Inspector of Police knew beforehand what the accused was going to say that would be hit by the said Section. But that is not so in the instant case. As discussed above, the panchas have clearly stated that the discovery was made after the accused had pointed out and stated so in their presence. Learned counsel relying on a portion of the statement of P.W. 168 and the fact that the accused were taken to several places before the discovery was made contended that that is enough to show that the Sub-Inspector knew beforehand what the accused were going to say.

This argument is equally devoid of force. P.W. 168 has clearly denied this fact and has stated that the information given by each accused leading to the several discoveries was recorded at the very place it was given and after the recovery, the pan-chanamas were completed at the places where the articles were recovered. In view of this, we need not discuss in detail the authorities cited. Relying on Subhan v. Rex, : AIR1950All180 and Nari Santa v. Emperor, AIR 1945 Pat 161, it is further urged on behalf of the appellants that the identification in court of the articles cannot be believed because they were not put forth for identification.

In this connection, the learned counsel also relied on Section 9 Evidence Act and contended that this section governs both the identification of person and property. We do not agree with the contention of the learned counsel that the identification of articles in court cannot be believed because they were not put forth for identification, for, in our opinion, tha identification in court assumes more importance. The cases relied upon do not support the contention of the learned counsel.

14. In the Allahabad case, the question was whether the identification proceedings held were actually genuine and the Court held that since the proceedings of the Magistrate wore not proper and there was no evidence to show that the articles to be mixed had not been seen by the prosecution witnesses for identification, such an identification could not be relied upon. That apart, the Court further held in that case that the articles were recovered from a house in which the accused and his brothers lived jointly.

15. The second case relied upon viz., the Patna case, also does not help the contention of the learned counsel. In that case, the learned Judges deprecated the practice of having test identifications at a police station where the police officers were present.

16. The learned counsel further placed his reliance on Muthaswami v. State of Madras, : AIR1954SC4 . This case also in our opinion does not help the contention of the learned counsel, for in this case, identification parade was held two and half months after the event and their Lordships came to the conclusion that the accused must have been pointed out to them earlier.

17. The other case Ramkishan v. State of Bombay, (S) : 1955CriLJ196 also does not support the contention of the appellant, for in that case identification parades were directed and supervised by the police.

18. A further argument was advanced by the learned counsel for the appellants that articles recovered were from places which were accessible to others. There is no force in this contention either. First of all, there is no evidence to show that those places were accessible to others. Even assuming it to be so, the articles have been recovered from places only known to the accused.

19. The evidence discussed above goes to prove not only the existence of a gang, but also that the appellants were members of that gang and that such a gang was associated for the purpose of habitually committing dacoity. This, in our opinion, is sufficient to hold the appellants guilty under Section 400, I.P.C.

20. As against the prosecution evidence, 9 witnesses have been produced on behalf of the accused. D.W. 1 says that he was the founder-member of the Central P.D.F. Council in Hyderabad. He denies that there was any communist party or office at Zahirabad or that A-1, A-13, and A-21 were members of that party. He also says that A-13 is an agriculturist and is of good character. Evidence of D.Ws. 2 and 3 relates to A-28 and A-29 who have been acquitted. We therefore do not discuss this evidence. D.W. 4 says that A-2 was not a member of the communist party and was an agriculturist of good character. The evidence of D.W. 4 relates to A-9 who has been acquitted. D.W. 6 speaks about A-13 being an agriculturist and an honest man. D.W. 7's statement relates to A-18 who has been acquitted. D.W. 8's statement relates to A-36 who has also been acquitted. D.W.9's statement concerns A-6 who has been acquitted.

21. This evidence only goes to show that the appellants are men of character. Even if this be true, this does not rebut the positive evidence of the prosecution discussed above. On the evidence, the learned Sessions Judge has held the appellants guilty and we do not see any reason to differ from the finding.

22. The appeals are therefore dismissed. This order shall govern the connected appeals. The material objects be disposed of as per directions of the Sessions Judge.


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