B.N. Mishra, J.
1. Criminal Appeal No. 64 of 1978 has been filed by Harihar Samal who has been convicted Under Section 395. IPC by the learned Assistant Sessions Judge, Dhenkanal in Sessions Trial No. 37/40-D of 1976, The appellant has been sentenced to rigorous imprisonment for eight years and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for six months. The State Government have filed Government Appeal No. 77 of 1978 against the acquittal of respondents Dusassan Samal, Ekadasi Samal and Narahari Samal in the same case. Since these two appeals arise out of the same judgment, they were heard analogously and this judgment' shall dispose of both the appeals.
2. The prosecution case may be briefly stated. P.W. 2 is the wife and P.W. 3 is the mother of P.. W. 5. P.W. 1 is P.W. 2's brother. They belong to village Kolibania Kateni. On the night of 8-7-1974 P.W. 5 and the members of his family finished their meals at about 8. p. m. Thereafter they closed the doors of their house and went to sleep, p. Ws, 1 and 5 slept on the inside verandah of the house. P.W. 2 and her children also slept there, P.W. 3 slept on the verandah of the 'Dhanaghar' along with field servants Achyu-tananda Behera and Maheswar Dehury. At about midnight P.W. 5 heard some noice and woke up. He found that about 8 to 10 persons were standing near him. They asked P.W. 5 not to raise his voice. Thereafter P. Ws. 1,2 and 3 and the field servants woke up. Some of these intruders kept P.Ws. 1, 2 and 3 and the field servants under watch and threatened them not to shout. One of them also kept watch on P.W. 5. P. W, 5 requested the intruders not to assault them but to take their few belongings if they so desired. Some of the intruders entered inside the rooms and one of them took out a gun which was in one of the rooms. The intruders put P.W. 5 and his family members and the field servants inside one of the rooms and locked it from outside. After some time P, W. 5 saw that the intruders had left. He called his uncle who lived on the opposite side of the road and the latter came and opened the door in which P.W. 5 and the other members of the family had been locked. On coming out P.W. 5 checked and found that his gun, ornaments, cash, utensils etc. as described in the list appended to the F. I. R. (Ext. 2) had been carried away by the persons who had entered the house. Two of them were armed with knives and the others were armed with lathis. P. W- 5 had seen the faces of some of these persons when they had fleshed torch lights while they were inside his house, P.W. 5 further found that the intruders had snatched away the ear-rings from the ears of P.W. 3 as a result of which she had suffered injuries on her ears. P.W. 5 lodged F. I. R. (Ext. 2) on 9-7-1974 at 7 p. m. at Kamakshyanagar Police Station, P.W. 10, the Officer-in-charge, registered the present case and took up investigation. In course of investigation of another case Bhuban P.S. Case No. 33 of 1974) Under Section 436, I.P.C., P.W. 7, the Officer-in-charge of Bhuban Police Station, seized one S. B. B. L-gun with a burnt butt from the front-yard of appellant Harihar. On finding this clue and on receipt of other clues in course of investigation of this case, appellant Harihar and respondents Dusasan, Ekadasi and Narihari were arrested. On completion of investigation, charge-sheet was submitted against the aforesaid persons and four others. In the charge-sheet P.W. 12 Bhaskar Kanar is described as prosecution witness No. 10. The charge-sheet is dated 2-9-1976, The case was committed to the Court of Session and the Sessions Judge, Cuttack received the commitment on 30-10-1976 - vide order No. 1 of that date. On the same day the Sessions Case was registered and it was transferred to the Court of the Additional Sessions Judge. Dhenkanal for disposal according to law. On 22-12-1976 the Public Prosecutor filed a petition Under Section 319, Cr.P.C. praying that Bhaskar Kanar shown as witness in the' charge-sheet should be tried in the case as an accused as from the Case Diary it appeared that the said Bhaskar Kanar had admitted that along with other persons he had committed the dacoity in the house of P.W. 5 on the night of 8-7-1974. By order dated 23-12-1975 the learned Additional Sessions Judge directed that trial would proceed with Bhaskar Kanar as an accused along with the other accused persons. On 4-1-1977 the learned Sessions Judge, Dhenkanal charged the appellant Harihar and respondents Dusasan, Ekadasi, Narahari Bhaskar and four others Under Section 395, IPC On 11-5-1977 under orders of the High Court this case was transferred to the Court of the Assistant Sessions Judge, Dhenkanal for disposal. After P. Ws. 1 to 11 had been examined in Court, by order dated 11-11-1977, the learned Assistant Sessions Judge tendered pardon to Bhaskar Kanar who thus became the approver to the case. He was examined, cross-examined and discharged as P.W. 12. In the trial Court apart from the twelve prosecution witnesses, four witnesses had been examined on behalf of the defence. The defence plea was one of denial. Appellant Harihar has stated that he had altercation with the police on 6-6-1974 near Kamakshyanagar Court premises and therefore on a false allegation the police got him arrested and submitted charge-sheet against him. He has also stated that he had a dispute with the villagers on account of which he had gone away to Calcutta for 7 to 8 months. At Calcutta he learnt that the villagers had set fire to his house and that his father Dusasan was arrested by the police. So he returned home and he was arrested when he went to the police station to report about removal of some ornaments from him by two persons. Respondent Dusasan has stated that he had objected to the vending of liquor by the approver P.W. 12 and as such the latter had falsely implicated him in this case at the connivance of one Sukadeb Rout with whom his family had disputes. Respondent Ekadasi has stated that at the time of occurrence he was working at Marthapur and that he was not present at Kolibania Katani on the night of occurrence. Respondent Narahari has stated that he had received some burnt injuries and on that account he had been hospitalised prior to the occurrence and in connection with another case he was arrested by the police. After being released on bail he was again arrested by the police and. implicated in this case. The learned Assistant Sessions Judge who tried the case found the appellant Harihar guilty Under Section 395, I. P. C, convicted and sentenced him as noted above. Respondents Dusasan. Ekadasi and Narahari were acquitted along with the other accused persons,
3. That a docoity was committed in the house of P.W. 5 on the night of occurrence has been well established by the prosecution by overwhelming evidence including the oral testimonies of P. Ws. 1, 2,3 and 5. However the main question for determination is whether appellant Harihar and .respondents Dusasan, Ekadasi and Narahari had participated in that dacoity, p. Ws. 1,2, 3 and 5, the inmates of the house of P.W. 5, have failed to identify any of the accused persons. No test identification parade has been held in this case. No incriminating article has been recovered from any of the accused persons except the gun M. O. I which, according to the prosecution, was recovered from the front-yard of the house of appellant Harihar. The sole eye-witness to the occurrence is the approver P.W. 12 and he has implicated the aforesaid appellant and respondents and some others.
4. An approver is certainly a competent witness, It is now well established that the evidence of an approver must satisfy a double test. First, the Court must hold that the approver is a reliable witness. Secondly, the evidence of the approver must be corroborated in material particulars by other independent evidence. In Dagdu v. State of Maharashtra : 1977CriLJ1206 it was held (Para 21).
There is no antithesis between Section 133 and Illustration (b) to Section 114 of the Evidence Act because the illustration only says that the Court 'may' presume a certain state of affairs, It does not seek t0 raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal, if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboratinn may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it.
5. Keeping in view the principle of law enunciated above, I would now prorate to examine whether the approver P W. 12 is a reliable witness. First, I would refer to the petition dated 22-12-1076 filed by the prosecution praying that the said Bhaskar Kanar should be tried as an accused in this case since the Case Diary revealed that he admitted to have committed the dacoity along with the other accused persons in the house of P.W. 5. In this petition it is specifically mentioned that on the date of the application, P.W. 12 was undergoing rigorous imprisonment in Dhen-kanal Jail having been sentenced to rigorous imprisonment for seven years Under Section 395, IPC in another case. Thus P.W. 12 is not merely an accomplice in this case, he is also an ex-convict and his previous conviction was in respect of a dacoity previously committed by him. Therefore P.W. 12 must have to face a stricter test of reliability. It is indeed beyond my power of comprehension how this P.W. 12 who is described in the charge-sheet as son of Dandai Kanr of Gondia nasi, P, S. Gondia has stated on oath in the trial Court that he is son of Gunduchi Kuanr of Dandibanki, P.S. Gondia. This discrepancy throws a lot of doubt on the real identity of P.W. 12. In his evidence P.W. 12 has stated that at the instance of Harihar he drank wine and went to Bahada Hata where he found Dusasan, Ekadasi and Narahari and others. They were sitting under a tree and they informed P.W. 12 that they were going to commit dacoity, in spite of initial reluctance he accompanied the group and they reached the house of P. W, 5, They were armed with daggers and lathis and carried torches. They forced their entry into the house of P. W, 5 and after overpowering the inmates Harihar entered into the room and brought out a gun, Thereafter P. Ws. 5 and 2 were tied with a rope and along with the others they were brought outside. However P.W. 2 has stated that none of the inmates of the house of P.W. 5 had been actually tied although there had been an attempt in that regard. P.W. 5 has stated that he was tied with a rope. According to P.W. 1, his hands were also tied, but P.W. 12 does not say that they had tied the hands of P.W. 1. P.W. 12 has stated that in course of the dacoity Ekadasi had pulled out the ear ornaments from the ears of an old woman. The reference is obviously to P.W. 3. P, W. 12 has described how be and the accused persons rensacked the house and removed valuable including the gun. In cross-examination P.W. 12 has stated that the dacoitv in the house of P.W. 5 was the first occasion when he had committed dacoity. This assertion of P.W. 12 is entirely false inasmuch as the prosecution itself has indicated that P.W. 12 is an ex-convict and his previous conviction was for an offence of dacoity, P.W. 12 is certainly not an innocent as he pretends to be. P.W. 12 has also stated that Dusasan had given a lathi blow to P.W. 3 during the dacoity. but P.W. 2 has clearly stated that none of the members of P.W. 5's family had been assaulted. The medical evidnece does not indicate that P.W. 3 had received any lathi blow. P.W. 3 has also stated that she did not know of any assault having been made. According to her, only weapons were brandished to frighten the inmate. The infirmities and discrepancies in the evidence of P.W. 12 lead me to the conclusion that he is not a truthful or reliable witness. As already noted he has a previous conviction to his credit and that case was one of dacoity. The previous statement of P.W. 12 recorded Under Section 164, Cr.P.C. does not at all corroborate his evidence inasmuch as that statement relates to another occurrence. As I am firmly of the view that P. W, 12 is an unreliable witness, his evidence1 cannot be accepted as a true version of the occurrence.
6. As regards the seizure of the gun M. 0. I P.W. 7 has stated that on 14-10-1974 he had seized the said gun in Bhuban P.S. Case No. 33/74 from the front-yard of Harihar's house - vide seizure list Ext. 3. In cross-examination P.W. 7 has admitted that the place from where the gun was seized was accessible to outsiders. In view of this statement of P.W. 7 it cannot be definitely said that the gun was seized from the possession of Harihar. Further, the seizure witness P.W. 9, who has been declared hostile by the prosecution has stated that he and other villagers went to the house of Harihar and from there they brought a burnt gun. Harihar was taken to a room near Mangala from where he escaped. Therefore according to P.W. 9, the gun was seized while it was in possession of the villagers who had taken it out from the house of the appellant. This evidence contradicts the statement of P.W. 7 that he had seized the gun from the front-yard of Harihar's house. P.W. 12 who claims to have been hiding behind a bush while the villagers went to the house of Harihar does not say a word about seizure of the gun. Thus on scrutiny of the prosecution evidence the recovery and seizure of the gun M. O. I cannot be said to implicate Harihar with the offence of dacoity committed in the house of P.W. 5, nor can it be called in aid by the prosecution to corroborate the evidence of P.W. 12.
7. For the reasons stated above, the charge Under Section 395, IPC cannot be said to have been established against Harihar, Dusasan, Ekadasi and Narahari. Criminal Appeal No. 64 of 1978 is accordingly allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge under Section 395, I.P.C His bail bond stands discharged. Government Appeal No. 77 of 1978 Is dismissed and the acquittal of the respondents is confirmed.