R.N. Misra, J.
1. Criminal Appeal No. 16 of 1974 is by 12 appellants while Criminal Appeal No. 37 of 1974 is by a sole appellant. These appellants along with several others were committed to the Court of Session on a charge punishable under Section 396 of the Indian Penal Code. In course of trial, the sole appellant of Criminal Appeal No, 37 of 1974 absconded and was not available for the rest of the trial. His case was, therefore, split up. By judgment dated 8-12-1973, the learned trial Judge convicted the appellants of Criminal Appeal No, 16 of 1974 - appellants 1 to 7, 11 and 12 under Section 396 of the Indian Penal Code and while appellant No, 1 was sentenced to rigorous imprisonment for life, the remaining appellants convicted under Section 396 of the Indian Penal Code were sentenced to rigorous imprisonment for ten years each; appellants 8 to 10 were convicted under Section 412 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for seven years. The sole appellant in Criminal Appeal No. 37 of 1974, by a separate judgment dated 29-1-1974, was convicted under Section 412 of the Indian Penal Code and given a sentence of seven years' rigorous imprisonment. As there was virtually one trial and essentially the judgments are one, the two appeals were heard together and this common judgment shall dispose of both the appeals.
2. Malla Biswanath was a resident of village Haradamara situated in the hilly tracts of Jarada Police Station on the Orissa-Andhra border and had taken to the professional occupation of Kumutis - running a shop of groceries and general merchandise within the village. He too was operating as a moneylender and advancing also loans of food-grains to the Adivasi community of the locality. On 7-4-1971, during the day time he and his wife had gone out to the house of one of their married daughters in the neighbourhood. The inmates of his house were his wife, he himself, his only son (P.W. 12) who happened to be unfortunately a congenital cripple by both the legs, the latter's wife Kumari . and his married sister (P.W. 20) who had come to her father's house for delivery and had already delivered a child a few months before the occurrence. The front room of the house was utilised both as a shop-cum-living room. In an ante room lay the iron-safe and other valuables and in yet another the deceased himself used to sleep. In the evening of that day, P.W. 12 had gone to sleep after dinner. In the front room slept the two ladies; a lantern was kept burning and the front door opening to the village street had been bolted from inside.
The house of Biswanath lay in the middle of the village. On the village street not far away from the main door of Biswanath's house was a one-roomed village school which was used as Puranghar and often referred to as the village temple, Apart from other connecting passages, the village is connected by a footpath leading to the hilly tracts and the jungle yonder across a rivulet locally known as Poichandia nallah. While members of the victim's family had thus retired, P.W. 8 was still busy reciting Purans on the temple verandah with the help of a lantern light and P.Ws. 6, 7 and 10 were some amongst his listeners,
3. Into this serene village life entered a gang led by one P. Appa Rao who on account of his educational qualification up to the P. U. C. standard had come to be known in the area as 'P. U. C. Appa Rao'. In this gang, there were persons like Paila Basudeb Rao, Rama Savara and two women by name Paramma and Ravanamma. These were a group of known naxalites operating in the area. These people along with the assistance of some local Adivasis had become a gang of 30 to 40 in strength and they suddenly appeared through the foot-path led by P. U. C, Appa Rao. Some of them were carrying guns and all others had lathis in their hands. The two women and some others were carrying cloth bags which were hanging from their shoulders and according to the prosecution, these bags contained hand-bombs. As they passed by the school, they proclaimed that they were naxalites and had come to the Kumuti's house (deceased) to kill him, loot his properties and distribute his assets among the poor people of the locality. Reading of Puran was suddenly stopped. The door of Biswanath's house was banged. P.W. 12 was given butt blows from a gun and Appa Rao enquired where Biswanath was. When P.W. 12 evaded saying that he was away, some more butt blows were given to him. As the front door was not yet opened, the same was cut with an axe P.W. 12 at this stage opened the door from inside. Appa Rao. the two women and some others entered into the house. Biswanath and the two female inmates opening the back door went into the inner courtyard with a view to running away. The deceased was hit on the head being chased and was brought into the room. Appa Rao demanded and took the keys and forced the deceased to open the iron-safe and other steel boxes. Cash and valuables were collected by Appa Rao and Basudeb, They threw away the clothes and other articles in the room through the opening of the door to the street and these were collected by the other members and tied into bundles. In the meantime, the women of the gang removed the jewelleries from the ladies. The hands of Biswanath were tied from behind and he was brought to the front veranda. P.W. 12, the son of the deceased who was being guarded by one of the members of the gang till then was pushed inside the house. Appa Rao directed Rama Savara who was till then patrolling in the village street with an axe to chop off the head of Biswanath. With an axe blow of Rama Savara on the neck, the deceased fell on the veranda Appa Rao took the axe from Rama and gave a blow. In the meantime, the man who was guarding P.W. 12 inside the room brought him up to the door to witness the murderous and brutal attack on his father through the door hole. P.W. 12 saw Paramma, one of these women, giving several blows with an axe on the neck of the deceased. Ravanamma joined and severed the head completely from the body. Some of these murderers stained their hands with the victim's blood and left full-hand impressions on the walls. Appa Rao wrote slogans on the wall with that blood. The front door was opened and Paramma went with a blood-soaked rag and painted a line of blood on the wall and asked P.W. 12 to come and see his father. They collected all the papers found inside, piled them up, poured kerosene and set fire thereto and shouting slogans left the place.
One by one, the villagers collected and started assisting P.W. 12. Information was lodged at the Jarada Police Station through the Grama Sevak. After a lengthy investigation, the appellants were charge-sheeted.
4. Prosecution mainly relies upon the evidence of P.W. 10, a co-villager, P.W. 12, the son of the deceased and the approver (P.W. 23) for proof of the case. These three witnesses have been believed by the trial court. Apart from their testimony, reliance had been placed on circumstantial evidence; evidence leading to discovery of stolen properties and other features which have lent assurance of truth to the prosecution case.
5. The defence of the several accused persons was one of denial. Even when some of them admitted their presence, they disputed the fact that they were there as members of the gang. Commitment of Rabi Das had been separately made and the approver (P.W. 23) had been examined only in his committal proceeding. On the concession of the prosecution, the learned trial Judge used the evidence of the approver only against Rabi Das. He considered the case of each of the accused persons separately in the background of the evidence on record and after sifting the evidence very carefully, he came to hold that several of the accused persons were not guilty and punished the remaining accused persons who have appealed to this Court on the two counts as indicated above.
6. Mr. Palit, learned Counsel for the appellants in Criminal Appeal No. 16 of 1974 has challenged the convictions mainly on three grounds:
(a) the evidence of the alleged approver could not have been relied upon to support the prosecution case, because-
(i) P.W. 23 had never been implicated as an accused person in the case;
(ii) the entire evidence given by this witness was exculpatory in nature; and
(iii) the evidence of P.W. 23 required corroboration on material particulars by independent witness which is wanting in the case;
(b) the evidence on record is wholly unsatisfactory. P.W. 10 has not been able to identify the accused persons. P.W. 12 is a highly interested witness and the identification made by him in court does not serve any real purpose as there had not been a test identification parade at an earlier stage. The evidence of these witnesses is also discrepant and contradictory. In these circumstances, on the basis of such weak evidence, the conviction should not have been made and we should not uphold it;
(c) Identity of articles having not been properly established on the basis of alleged recovery, no conviction on the basis that the link with the dacoity had been established or stolen property was possessed is justified.
We shall now proceed to examine the correctness of these contentions.
7. As already indicated, the evidence of approver has been used by the learned trial Judge against appellant Rabi Das alone, because it was only in his separate commitment proceeding that the approver had been examined. The position of law under the old Criminal Procedure Code is that unless the approver was examined at the earlier stage, his evidence could not be received at the trial. Preliminary charge-sheet in this case was furnished on 9-7-1971. On 16-8-1971, regular charge-sheet was filed. Rabi Das was not produced before the Court until 23-7-1972 on the ground that Rabi was accused in several cases and his production for commitment was not conveniently secured and the case against him was split up. On 28-12-1972, the approver was arrested. On 24-3-1973, pardon was tendered to him and Rabi Das was committed on 8-9-1973.
It was contended before us that P.W. 23 had never been arraigned as an accused in the case. As we find, after being taken into custody on 28-12-1972, the approver had been produced before the Magistrate. The Investigating Officer has said so. The learned Additional Government Advocate contends relying upon the decision of the Supreme Court in Pascal Fernandes v. State of Maharashtra : 1968CriLJ550 that it is not necessary that the person to whom pardon is granted should have been arraigned as an accused. In paragraph 12 of the decision, Hidayatullah, J. (as the learned Judge then was) observed:
There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion.............
The aforesaid observation of the Supreme Court directly repels the very foundation of Mr. Palit's contention.
Mr. Palit's contention that P.W. 23's evidence is exculpatory in character is not correct. The witness has indicated in his evidence as to how he was recruited into the gang. His evidence shows that more than a year before the occurrence, he became a member of the group. Though at the time of recruitment, there was opposition in his mind, it is difficult to accept the contention of Mr. Palit that he had not come to the village on the date of occurrence as a willing member of the gang According to Mr. Palit, the witness having stated that sometime after he slipped out of the gang, it must be assumed that at all points of time since his recruitment into the gang till his leaving it, the witness was under pressure. Therefore, his evidence must be accepted, Mr. Palit argues, as being exculpatory in character. To meet this contention of learned Counsel for the appellants, learned Additional Government Advocate has relied upon the observations of the Judicial Committee in the case of Srinivas Mall v. Emperor AIR 1947 PC 135. Lord Du Parcq speaking for the Board observed:.......... No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must however vary according to the extent and nature of the complicity: sometimes, as was said by Sir John Beaumont, C J. in (1935) ILR 59 Bom 486 : 36 Cri LJ 968 the accomplice is 'not a willing participant in the offence but a victim of it'. There is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist.
On this basis, learned Additional Government Advocate has argued that if we accept the contention of Mr. Palit that P.W. 23 had no complicity with the offence in view of his general attitude to the matter, he must not be branded as an accomplice and should be relied upon as a good witness. We do not, however, think the contention of Mr. Palit is acceptable. It may be that P.W. 23 while wandering in the jungle as an orphan boy had been picked up by the gang. At that point of time he had mental resistance, but there is no material to show that during the entire career he lived with the gang, he was under any pressure. Merely because he ran away from the gang when the leaders were murdered is no material on the basis of which it would be appropriate to hold that his continuance in the gang was under perpetual pressure.
In a recent decision of the Supreme Court in the case of Maghar Singh v. State of Punjab : AIR1975SC1320 , it has been observed:.......... It is true that Baldev Singh did not say that he took any active part in the. assault on the deceased, but his statement clearly shows that he was a privy to or an a better in the commission of the offence. The Magistrate who granted the pardon to the approver was fully satisfied that the approver was going to make a full and complete disclosure which he undoubtedly did. In these circumstances, we do not think that the provisions of Section 337 of the Code of Criminal Procedure have been violated in any way.
We are of the view that to P.W. 23, these observations do well apply and it must be held that P.W. 23 in the circumstances is an approver whose evidence can be acted upon subject to corroboration from other sources.
Mr. Palit has next contended that the evidence of the approver being that of an accomplice cannot be acted upon in the absence of corroboration from independent source. Undoubtedly, an accomplice when granted pardon in accordance with law becomes an approver. Under the provisions of Section 133 of the Evidence Act,
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 accomplice.
It has been pointed out in series of Supreme Court decisions that as regards the evidence of an accomplice, it is not necessary that there should be corroboration 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. Ail that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. 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 or complainant that the accused committed the crime. The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. See Rameshwar Kalyan Singh v. State of Rajasthan : 1952CriLJ547 .
In the case of Bhiva v. State of Maharashtra : 3SCR830 . it was observed that according to Section 133 of the Evidence Act, which is a rule of law, an accomplice is competent to give evidence. According to Section 114, Illustration (b), which is a rule of practice, it is almost always unsafe to convict upon the testimony of the accomplice alone. 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.
In the case of Ramanlal v. State of Bombay : AIR1960SC961 , it has also been observed that the corroboration need not be by direct evidence and it is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime.
In the case of State of Andhra Pradesh v. Ganeswara Rao : 3SCR297 , it has been indicated that the view that before reliance could be placed upon the evidence of the approver, it must appear that he is a penitent witness is not legally correct. Whether the evidence of the approver should in any case be. accepted or not will have to be determined by applying the usual tests, such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely exculpatory, etc. The Court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests, the evidence of the approver should be acted upon or not.
In the case of S. Swamirathnam v. State of Madras : 1957CriLJ422 , it was also observed that the corroboration of an approver's evidence need not be of a kind which proves the offence against the accused and it is sufficient if it connects the accused with the crime.
In Maghar Singh's case : AIR1975SC1320 , it has also been observed that where the chain of circumstantial evidence proved against the accused was not explanable on any other hypothesis except that the accused was guilty of murder, it was held that the circumstantial evidence constituted substantial and sufficient corroboration of the approver's statement in material particulars.
In view of what has been observed by the Supreme Court on several occasions, it must follow that once it is accepted that P.W. 23 was a truthful witness and his evidence is corroborated in material particulars or there is evidence on the record which lends assurance to what the approver says, the Court can act upon the approver's evidence. We have nothing on record to justify the criticism advanced by Mr. Palit that P.W. 23 is not a truthful witness. The story deposed to by P.W. 23 with particular reference to specific details not only received corroboration from eye-witnesses, but also circumstantial evidence to which we shall presently refer. For these reasons, we think, the evidence of P.W. 23 is not liable to be discarded.
8. The evidence in regard to identification is somewhat weak. P.W. 10 has failed to identify anybody at all. The learned trial Judge dealt with identification made by P.W. 12 saying:
P. W. 12 Appanna gave the same descriptions and the same role played by that particular dacoit, namely, that carrying the gun he was parading the street, shouting invitation to all who cared to come and take whatever they liked from the house. He was talking in Cuttacki Oriya. He identified accused Rabi Das in court.............
We think, there is merit in the criticism of Mr. Palit that the identification by P.W. 12 should not be relied upon. Rabi Das was committed separately and the witness had the advantage of that situation in the matter of identification. The learned trial Judge, however, analysed the evidence with great care and after rejecting all embellishments tried to find out the basic features upon which the evidence of witnesses was almost unanimous. In paragraph 40 of the judgment, the learned trial Judge has stated:
Among the many details of the occurrence which perfectly accord with the testimony of P.Ws. 10, 12 and 20, one very important feature stands out to his credit. It is that the first axe-blow by Rama Savara was given on the neck of the deceased from the back side when he was in a standing position, upon which he fell down flat on his face. Thereafter Appa Rao and the female dacoits gave further blows at the neck and hacked it apart. The approver P.W. 23 was standing close just below the veranda. These details of the manner of the killing completely fit in with the medical evidence of the doctor P.W. 24 who did the postmortem examination, ............
Some of the accused persons have given information leading to discovery of stolen articles. Appellant No. 3 Mangala while in custody showed the investigating officer several places in the jungle where the gang had rested while going to and returning from the village of occurrence. By the side of a hill-stream they had cooked their food and had eaten before going to the village. At the spot, the Investigating Officer found a chullah pieces of partially burnt firewood and broken earthen pots - M, Os, III and IV and seizure list-(Exh. 16). The said appellant had also pointed out the resting place when Puran was being read in the village. From that place, cigarette stubs and used match-sticks were picked up under seizure list (Ext. 23). A pool of water in the dry bed of the stream had been pointed out as the place where the blood stained hands of the butchers had been washed and the Investigating Officer had collected sample from the said pool of water which looked reddish and on being examined was found to be containing blood under Ext. 37. Though the Serologist found blood to have disintegrated and, therefore, was not able to indicate the origin of the blood, this was certainly a very implicating feature. The learned trial Judge very rightly relied upon the recoveries and the indications given by appellant No. 3 as circumstantial evidence to support the prosecution case. The learned trial Judge has examined the entire evidence with great care and pointedly with reference to each of the accused persons. The fact that several of them have been acquitted because the evidence does not link them directly and with certainty goes to show that the learned trial Judge has been very fair in his assessment of the evidence. We do not think, the criticism advanced on behalf of Mr. Palit can be accepted.
9. So far as the identification of the stolen articles is concerned, common arguments were advanced in both the appeals that the evidence was not adequate to hold that these articles were stolen. It would not be proper to overlook the fact that most of these appellants were akin to hill-tribe people being the local Adivasis. They would have no occasion to be in possession of some of the articles which have been seized from their houses. Some of the articles seized were also from very odd places where owners of the articles are not expected to store them. This peculiar feature tends to support the prosecution case that these were stolen articles. P.W. 12 is a competent witness regarding the identity of articles. Some of the family members of the deceased's house have also identified some stolen articles. We do not find, there is force in the criticism that identification of the articles is poor and it would be not proper on our part to take a different view. We would accordingly reject all the three contentions advanced on behalf of the appellants.
10. Mr. Palit next argued that there was no basis for making any distinction between Rabi Das and the other accused persons who have been convicted under Section 396 of the Indian Penal Code. As we find, Rabi Das was assigned the role of patrolling the street with a gun in hand and inviting people at large to come and take the plundered articles. He never came near the scene of occurrence. Learned Additional Government Advocate has fairly conceded that there is no evidence at all that killing the deceased was a pre-concerted decision of the gang. The learned trial Judge has made a distinction between the case of Rabi Das and the other accused persons by saying that Rabi was an educated person. There is no clear material on record, as we were told by counsel for both parties, indicating what exactly was the qualification of Rabi Das. Admittedly Rabi did not take the assistance of any lawyer for his defence and preferred to take charge of his own defence. It is quite possible, as has been suggested to us by counsel at the Bar, that from these features, the learned trial Judge has drawn the conclusion that Rabi was a qualified person and yet had participated in what has ultimately appeared to be a case of brutal butchery. In the absence of any positive material, and particularly about the complicity with the direct act of murder, we are prepared to hold that Rabi's case need not be distinguished from that of others who have been similarly convicted for the same offence. We would accordingly while sustaining the conviction of all the appellants under Section 396 of the Indian Penal Code reduce the sentence of rigorous imprisonment for life imposed upon appellant No, 1 to Ten Years' rigorous imprisonment as in the case of others.
So far as the conviction under Section 412 of the Indian Penal Code is concerned, we think, the evidence on record justifies conviction of each one of the four appellants convicted for that offence. But in the circumstances of the case, the sentence appears to be very disproportionate. There is no justification for a seven years' rigorous imprisonment. In our view, ends of justice would be appropriately met if the period is reduced to Two Years' rigorous imprisonment.
It has not been very convenient for us to indicate whether on the basis of the credit for the period of detention as under-trial prisoners, under the provisions of Section 428 of the Code of Criminal Procedure, the appellants would be entitled to be set free and that certainly is a matter to which the appropriate authorities will look into.
11. The net result, therefore, is, both the appeals are dismissed subject to the variation of the sentence in the case of appellant Rabi Das and appellants Khatia Bhoya, Anama Bisoi, Ananta Sahu and Jura Sahu.
N.K. Das, J.
12. I agree.