1. While Jaswant Kaur alias Kulwant Kaur was tried for the murder of her husband Santokh Singh and his brother Bakhshish Singh with the aid of her co-accused Sarbjit Singh and Bahadur Singh P. W. on the night between 24th and 25th September, 1967, at Bhogpur, Sarbjit Singh her co-accused in addition to the charge of double murder was further tried for house-trespass as well in the building in occupation of Santokh Singh deceased and Jaswant Kaur. Sarbjit Singh was convicted under Section 302, Indian Penal Code, for the murders of Santokh Singh and Bakhshish Singh and has been sentenced to death. He has further been sentenced to undergo a concurrent sentence of two months' rigorous imprisonment under Section 447, Indian Penal Code. Jaswant Kaur has been sentenced to life imprisonment on two separate counts for abetting these two murders under Sections 302/114, Indian Penal Code, both sentences to run concurrently. This judgment will dispose of the appeal of the two convicts Sarbjit Singh and Jaswant Kaur (Criminal Appeal No. 1038 of 1968) and the reference for confirmation of the death sentence awarded to Sarbjit Singh (Murder Reference No. 72 of 1968).
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(After giving evidence in the case, the judgment proceeds.-Ed.)
10. In the absence of any satisfactory evidence about the tendering of pardon, the statement of Bahadur Singh who has been taken as an approver in the case, can only be regarded as that of an accomplice. The learned Sessions Judge apparently treated the evidence of Bahadur Singh as that of an approver and towards the end of judgment made an observation that he should be discharged from custody.
11. The position thus is that Bahadur Singh, to whom a tender of pardon has not been proved, cannot be regarded as an approver. Under Section 337 of the Code of Criminal Procedure it is provided that the competent Magistrate at any stage of the investigation or enquiry-
with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence ....
The basic idea of a pardon is that the fear of prosecution being removed, a person though privy to the offence may feel free to give true evidence and make a full disclosure of the events about the crime. The tender of pardon is, in other words, quid pro quo. The tender of pardon not having been proved, Bahadur Singh cannot be regarded in law as an approver, nor is he a person against whom the State at any stage has entered nolle prosequi Bahadur Singh was only discharged by the Sessions Judge after he had given a statement. It is frankly conceded by Mr. Bhim Sen Mehra, the learned Counsel for the appellants, that Bahadur Singh may still be regarded a competent witness but his legal status would be that of an accomplice. On occasions it is found desirable to include the evidence of an accomplice for what it is worth, without tendering him a pardon. Such a person, however, remains in a state of suspended animation as he does not know what may happen to him and will naturally have a strong motive for minimising his own part in any criminal transaction, and his evidence must be treated with even greater caution than that of an established approver. As is well-known, the evidence of an approver has to meet the twin tests of reliability and corroboration. In a like manner, the accomplice whose evidence has to be examined with greater caution than that of an approver, has to satisfy the Court both about his credibility in general and the corroboration of his evidence on material particulars from independent sources,
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(After elucidating further evidence, the judgment proceeds - Ed.)
22. Another feature of corroboration may now be mentioned. Fauja Singh P. W. 14, who is a tracker lifted three footprints from the spot and two footprints at a distance of 12 karams from there, and these were found to be of the gurgabis which had been taken into possession from the feet of Sarbjit Singh and Bahadur Singh. Both Sarbjit Singh and Bahadur Singh were asked to walk on the ground with these shoes and their footprints were also lifted for examination of the expert. Mr. Longia P. W. 12, Assistant Director, Forensic Science Laboratory, Chandigarh, received the moulds and the shoes for examination on 3rd and 6th of November, 1967. Five crime moulds and four test moulds were brought to him. The test moulds were in an unsealed condition, these being marked T. 1 to T. 4. The shoes which were also in an unsealed condition were marked Section 1 to Section 4. These exhibits had been kept too long with the police to impart confidence in the evidence of the expert. What has been frequently said by this Court is repeated in Mohinder Singh v. State (1961) 63 Pun LR 434 is-
that the police should not wait for the recovery of the actual weapon of offence before sending the empty cartridges or bullets which are found near the scene of occurrence for expert examination. No ground should ever be allowed for the attack by the defence that there was an opportunity for tampering with these empty cartridges while they remained in police custody.
On a parity of reasoning the same principle should apply in the instant case where there was a long interval between the lifting of moulds and their despatch to the expert. Whatever value there is of the comparison is lost altogether when we find that the shoes as well as the crime moulds were in an unsealed condition.
23. On the whole, therefore, we are of the view that the statement of Bahadur Singh made as an approver can only be regarded as the tainted testimony of an accomplice. He is undoubtedly a competent witness, but he has failed to meet the test of reliability as also of corroboration on material particulars. In this view of the matter, we think that the conviction of the appellants cannot be upheld. We would, therefore, allow the appeal and acquit both the accused. The question of confirmation of the death sentence does not, therefore, arise.