I.D. Dua, J.
1. Sohan Singh has been convicted under Sees.. 302, 380 and 457, Indian Panal Code, and has been sentenced to death Under Section 302 and to rigorous imprisonment for three years under each of the Sees. 457 and 380, Indian Penal Code; these sentences of imprisonment to run concurrently. He has preferred this apoeal against his conviction and sentence and the case is also before us for confirmation of the death sentence.
2. The prosecution story has been untied to Harbans Singh P. W. 1 who has turned approver and has been tendered pardon. According to his version he and Sohan Singh accused came to know each other in Toby Jail where they were both lodged together, Haibans Singh was undergoing imprisonment in a case; under the-Opium Act and was released on 27-5-1961. Sohan Single accused had been released four or five days earlier. One day before the occurrence which is the subject-matter of the case before us (the occurrence took piase oh the-night between 7th and 8th June, 1961) Harbans Singh antf Sohan Singh met each other In the Court compound of Tis Hazari Courts. Harbans Singh had gone there to receive back the articles which had been taken from him by the police at the time of his arrest. There be enquired from Sohan Singh if he could suggest to him same-work. To this, Sohan Singh replies that there was at shopkeeper in Sunder Nagar who had m his possession valuables Worth about 1J or 2 lakhs of rupees and that It was worthwhile committing theft in his house. Harbens Singh agreed to join Sohan Singh. The latt also toot the former that a person Suraj Parkash by name who used) to be an employee of the said shopkeeper had given hint this information. After the successful venture a sum of Rs. 1000/- would, according to Sohan Singh, have to be given to Suraj Parkash as a reward. They both agreed to meet again on the following day.
The following day they met at about 8.30 P.M. near Odean Cinema and they tried to chalk out a plan for the venture. Irt the meantime they got into a taxi and went to Kotla Mubarkpur and from there to Chandni Chowte where they tiad their meals in a hotel. Thereafter they went to Motl Cinema and saw the picture 'Jock desh men Ganga Bentl hai'. At the close of the picture after met night they both went In the same taxi to Sunder Nagar and stopped it near the market. From there they butts walked to the back side of the shop to be robbed. The taxi was made to wait though they paid the driver a sum of Rs. 13/6/- on account of the fares so far due. After reaching the shop to be robbed Harbans Singh-stayed on one side but Sohan Singh took out a sarya. end removed some bricks from the wattle and made hole therein. Sohan Singh was tire first to go in for Hawed by Harbans Singh.
After going In from the hole made In the watt found an entrance door to a house which was locked froes inside. Sohan Singh broke that lock and opened the door. After entering the house they found a room in which there was light, and a lady was awake; a fan was also on. After waiting for some time the two intruders went into the kitchen and tinkled some utensils. As a result thereof, the lady unbolted the door and tried to proceed towards the kitchen. As soon as the door was opened the accused and his companion caught hold of the lady and overpowered her. On her raising the alarm a small girl sleeping in the same room woke up. Ins lady was thrown on the floor and Sohan Singh directed Harbans Singh to manage the lady so that he may look after the child. Harbans Singh thereupon gagged the mouth of the lady and pressed her throat. As a matter of fact, Sohan Singh had also earlier pressed her throat and felled her down. Sohan Singh thereafter caught hold of the child from her throat, felled her on the floor and tied a knot round the child's neck with the lady's dhoti and tightened the noose as a result of which the child's tongue came out on account of strangulation and she stopped crying.
In the meantime the lady had also become unconscious. The two intruders then broke open an almirah and also the locks of other boxes and took out gold and silver ornaments. While coming out they also saw a key on the table with which they opened a small safe from which also they took some gold ornaments, two watches and some cash. The ornaments stolen by them were tied in a piece of cloth torn from the petticoat worn by the lady who was lying unconscious. The silver ornaments were: tied by Harbans Singh in his turban.
After finishing this job both of them came out and got into their taxi which) was already standing there and proceeded towards Jhandewalan where they paid the taxi driver Rs. 4/12/- and then proceeded to Bholi Shatiar Mahal. There they divided the booty. Two gold karas, one Tagri of silver and some other ornaments the details of which the approver could not remember fell to Harbans Singh's share. The remaining accounts were left to be settled the following day. The ornaments taken by Harbans Singh were sold to Gobind Ram at Chandni Chow for a sum of Rs. 3,280/- in respect of which an entry was made in the purchaser's bahi. Out of the money so received Harbans Singh deposited Rs. 1,300/- in the post office saving bank account and the balance was spent by him.
3. At the place of occurrence, it appears that Pokhar Mai whose shop in Sunder Nagar Market was burgled by these two persons woke up in the morning at about 5 or 5.15 A.M. It may be observed here that on the fatefirl night he was sleeping in the park along with two servants in front of his shop; the two servants being Hari Singh and Jagdish. His wife and two daoghters were sleeping inside the godown that night. One of the daughters sleeping there was aged three years and the other five or six years and it was the latter who was the victim of the callous murder by strangulation. According to Pokhar Mai's evidence there is a door from the lane opening Into the courtyard of the shop In question. He had got that door locked from inside before going to sleep and th9 door of the godown was also got bolted from inside by his wife. The door of the shop tiad, however, been locked by him from outside.
In the morning when he entered his shop from the front door he found that things were lying scattered in the godown. His wife was also lying unconscious and his daughter Sabo tying dead with her tongue protruding out of the mouth and a noose put around her neck with his wife's dhoti. His wife was at that time wearing a jumper and a petticoat; her dhoti was also sticking around her. The petty-coat was found torn. Pokhar Mai immediately called Hari Singh from outside and directed him to go to Indraj Mai shopkeeper for informing the Police Flying Squad. In about 10 minutes' time the Flying Squad reached the spot and removed Smt. Khazani and Sabo to the. hospital. Before his wife wag placed in the van Pokhar Mai changed her petticoat as also the dhoti. He also untied the knot of the dhoti with which his daughter had been strangulated. As a matter of fact, this was the same dhoti which was worn by his wife, at that time. His younger daughter was still asleep in her mother's bed and she was allowed to sleep on. Pokhar Mai thereafter sat outside his shop to- await the arrival of the local police.
A few minutes later the local police arrived and recorded Pokhar Mai's statement. It appears that Pokhar Mai suspected Suraj Bhan his ex-employee and Shivinder Singh Sub-Inspector, who was, at the relevant time, Station-House Officer Nizamuddin and who had reached the place of occurrence on the morning of 8thi June, 1961 or receiving information from the Control Room about the occurrence, tried to trace Suraj Bhan and succeeded in arresting him on 15-6-1961. After interrogating Suraj Bhan, Shivinder Singh Sub-Inspector tried to locate Sohart Singh accused and Dharam, Singh alias Dliami. it appears that Sohan Singh appellant who was on bail in some other case at the time of the occurrence in question surrendered himself after this occurrence. This information reached the police on 21-6-1961 and on the following day Sohan Singh was arrested in the present case.
On his arrest, an order was secured for his remand to police custody for two weeks. On 25-6-1961 he was interrogated as a result of which he made a disclosure statement disclosing that he had kept buried in the ground behind Bhooli Bhatian Mahal certain ornaments wrapped in a piece of cloth. In pursuance of further interrogation he disclosed that he had1 given one gold 'kanthi' to Mst, Ramsri. Sohan Singh thereafter led the police to Bhooli Bhatiari Mahal and then to the exact spot from where ornaments Exhibits P-12, P-14 to P-18 and P-22 were recovered after digging the ground They were all wrapped in a piece of cloth, Exhibit P-21. Pointed iron bar Exhibit P-l was also recovered from that very place. Ramsri was also traced and apprehended on 28-6-1961; she was there wearing on her person the gold 'Kanthi' Exhibit P-18, Harbans Singh approver was arrested on 27-6-1961 and on being interrogated he disclosed having sold certain ornaments in Chandni Chowk. He led the police to Chandni Chowk and pointed out the shop of Gobind Ram P.W. 18 as the person to whom those ornaments had been sold. Gobind Ram produced the 'bahi' Exhibit P-2 and the gold ingot Exhibit P-23. On 3-8-1961 Harbans Singh was tendered pardon Under Section 337, Criminal Procedure Code, on the condition of his making true and full disclosure .of all the circumstances within his knowledge relating to the offence in question. On 5-8-1961 Shri N. L. Kakkar, Magistrate 1st Class, recorded the statement of Harbans Singh.
4. On 2-6-1961 at 7 p.m. Dr. R. L. Handa, P.W. 3 condircted post-mortem examination on the dead body of Sabo 'altos' Salrtu the five years old daughter of Pokar Mai who Is alleged to have been callously murdered at the time of the occurrence at the hands of the appellant According to this examination rigor mortis was complete and there was froth at the nostrils. The tongue of the deceased was caught between the teeth. There was effusion of blood in the soft tissue of the neck on either side as well as on the front. Both lungs were slightly congested and exuded frothy blood Right side of the heart was also full of blood. Death, according to the doctor, was due to asphyxia from strangulation. There had been no sign of pressure by the hands on the neck. Strangulation was probably caused by a cloth because there was a broad and superficial bruise round the neck on its front side. Or. 0. P. Chadha P.W. 17 examined Smt. Khazani on 8-6-1961 at about 6 a.m. and found her unconscious and not in a position to respond to enquiries, though she did respond to painful stimuli. There were signs of ecchymosed over the frontal and1 lateral aspect of lower part of the neck. Slight blood clot at the right nostril was also present, though there was no active bleeding. The lady was found pregnant since about five months, though no signs or symptoms of any complication were located. She regained consciousness on the same day at about 11 a.m. and was discharged in a fit condition on 10-6-1961 at 2 p.m. Accordiny to the medical opinion the injuries had been caused during an attempted throttling and strangulation.
5. The prosecution story was in the main supported Court by Harbans Singh P.W. 1, approver, Pokhar Mai, P.W. 2, Smt. Khazani, P.W. 4, Dharam Singh, P.W. 5, and Tilak Ram, P.W. 7. Shri Yusafzai, Additional District Magistrate, has proved1 the pardon granted to the approver and Shri N. L. Kakkar, Sub-Divisional Magistrate has proved the statement made by Harbans Singh on' 5-8-1961 (Exhibit P.B.). Hart Singh P.W. 10 Is an employes of Pokhar Mai wtih also slept in front of his master's shop on the fateful night and went to Indraj's place from where information to the Flying Squad was given on telephone. Radha Kishan P.W. 14 is a witness to the recovery of the ornaments and 'sarya' at the Instance of Sohan Singh. Sunder Lai P. W. 15 is another witness to the recoveries just mentioned. Gobind Ram P.W. 18 has proved the purchase of gold ornaments from Harbans Singh and, as observed earlier, has produced the 'baht' Exhibit P. 2 Shivinder Singh P.W. 34 was the Station House Officer Nizamtfd-Din in June, 1961, and has deposed 'inter alia' to the recovery of Exhibits P-19 and P-20, 'dhoti' and petticoat of Smt. Khazani respectively. He has also deposed about the arrest of Sohan Singh and Harbans Singh as also to the recovery of gold ornaments and 'sarya'.
6. The learned Additional Sessions Judge who tiled the case after considering the evidence on the record felid that the statement of the approver is reliable and that there Is no reason to discard It. There is, In the opinion of the learned Judge, independent evidence which corroborates the statement of the approver in material particulars,- such independent evidence being 'inter alia' the disclosure statement Exhibit P.M. made by Sohan Singh that he had kept concealed certain ornaments buried In His ground behind Bhoir Bhathiari Mahal and recovery of the ornaments In pursuance thereof; these ornaments are amply proved to have been In possession of Pother Mai before the occurrence in question. The piece of cloth, exhibit P-21, also fits in at the place where the petticoat, Exhibit P-20, which was worn by Smt. Khazani Is torn: this torn petticoat, It may be recalled, had been taken Into possession by the police on 8-6-1961 at the earliest possible opportunity. The description of these ornaments was also contained in the First Information Report which was lodged soon after the occurrence and long before the recoveries. The witnesses to the recovery have also been held by the Court below to be free from taint and, therefore, trustworthy. Merely because they are Aggarwals does not, as has been observed, show that they are related to Pokhar Mai or belong to his brotherhood so as to incite suspicion about their trustworthiness. Sale of certain ornaments said to have been received by Harbans Singh as his share of the booty corroborated as it is by the statements of Gobind Ram P.W. 18 and BalKishart P. W. 13 has also been relied upon as lena-ing support to the prosecution story as given by the approver. Holding the offence to have been brought home to the accused the trial Court passed the sentences mentioned earlier In the judgment.
7. Before us, the learned Counsel for the convict-appellant has taken us through the entire record and has submitted that the evidence of Harbans Singh approver is not trustworthy and further that it has not been corroborated in material particulars connecting or tending to connect the accused-convict with the crime and, therefore, the conviction should be set aside and the appellant acquitted. He has drawn out attention to certain discrepancies in the approver's testimony and has also emphasised inimical relationship between him and the convict Reference has in this connection been made to an incident which took place when both Harbans Singh and Sohan Singh were lodged in jail where they quarrelled with each other and were as a consequence committed to solitary confinement. Harbans Singh has admitted that he and Sohan Singh did not thereafter talk to each other in the jail and indeed were kept apart. He has, however, also stated that he did not harbour any grievance against Sohan Singh on account of the said quarrel. The appellant's learned Counsel has in this context forcefully submitted that It is not possible to believe that Harbans Singh did not entertain any grudge against Sohan Singh on account of the quarrel and that it is most unlikely that these two persons should have joined hands with each other In committing the offence in question.
The appellant's case really is that it was virtually after the arrest of Harbans Singh approver that the whole story was concocted to implicate the present appellant and to Impute to him both the burglary and the murder. Harbans Singh, as the learned Counsel has put it, Is an old seasoned criminal and, therefore, it is not difficult to expect him to weave out a story for the purpose of saving his own skin and Implicating the appellant Instead. Gobind Ram has also been described by the appellant's learned Counsel to be an untrustworthy witness who Is a notorious receiver of stolen goods and, therefore, not a very trustworthy witness.
In so far as the testimony of Smt. Khazani is concerned, our attention has been drawn to her statement before the police that she could not identify any of the two assailants, with which she was confronted in the trial Court and about which she was forced to admit that she might have so stated Defers the police. Dharam Singh, P.W. 5, has also been criticised by the learned Counsel on the ground of his criminal propensities and it has been argued that his version stout meeting Sohan Singh end Sutra accused is most unimpressive, unnatural and untrustworthy, ft may be stated that Suraj was also tried with the appellant but acquitted as P.W. 5 was not relied upon. Pokfrar Mai did not witness the crime or see the assailants. TUB counsel has thus submitted that there is no reliable independent evidence which would connect the accused appellant with the offence.
8. in my opinion, the recoveries made in pursuance of the disclosure statement made by the accused appellant soon after his arrest constitute a very valuable piece of evidence against him. Not only do these recoveries corroborate the approver's testimony in material particulars but they also suggest very strongly that the accused was connected with the offence as a result of which, these articles were stolen from Pokhar Mai's shop. It is significant that these recoveries were made long before the arrest of Harbans Singh. The recovery of the piece of canto which fits in to the tear in the petty-coat of Smt. Khazanl seems to me to lead to the irresistible inference supporting the complicity of the accused with the crime beyond any reasonable doubt. On behalf of the appellant nothing has been suggested for discounting the recoveries made at his instance.
9. Our attention has been drawn on behalf of the convict to Bhiva Doulu Patil v. State of Maharashtra : 3SCR830 where the combined effect of Sections 133 and 114, illustration (b) has been stated to be as follows:
According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice It Is almost always unsafe to convict upon his testimony alone. Therefore, 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 yet material particulars. There should be corroboration of the approver In material particulars and 'qua' each accused.
Relying on this dicta the counsel has contended that there must be independent evidence connecting the accused-appellant with the offence. The legal proposition has been settled since long and is no longer in doubt. It is, however, not true, as assumed, that independent corroboration of an approver's evidence should cover the whole of the prosecution story or even all the material particulars. All that is required is that the approver's testimony should be corroborated in material particulars by other independent evidence and this as a rule of caution and prudence and not as a statutory requirement though the rule has come to find an honoured place in our criminal jurisprudence. According to statute a conviction Is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice and the rule of caution and prudence is based on: illustration (b) to Section 114, Indian Evidence Act, according to which an accomplice is unworthy of credit unless corroborated In material particulars. The nature and extent of corroboration required by this rule of prudence must, from the very nature of things, vary with the circumstances of each case and it is impossible, if not also dangerous, to formulate with precision the kind of evidence which should or may be regarded as sufficient corroboration to sustain conviction. What appears to me to be required Is that some additional evidence should be forthcoming render-Ing It probable that the story of the approver is true and it Is reasonably safe to act upon it and also that It reasonably connects or tends to connect the accused with the offence charged. The corroboration coming from independent source need not be direct, connecting the accused with the crime; circumstantial evidence may be sufficient to satisfy the test of the rule of prudence. In the instant case the requisite corroboration is, in my opinion, abundantly forthcoming on the present record. As already mentioned the recoveries made at the instance of the accused quite clearly connect him or at least tend to connect him with the offence when considered In the light of the approver's testimony; other corroborative evidence is also available on the present record in support of the approver's testimony making it safe basis for the appellant's conviction.
10. It is also not without significance that there Is no suggestion that Pokhar Mai and other prosecution witnesses are in any way inimical towards the convict The approver has of course been shown to have had some kind of a quarrel with the appellant when he was in Jail but then they both seem to be desperate characters who are apparently not novices in the life of crime of strangers to jail life. Such desperadoes not Infrequently do quarrel between themselves but on suitable occasions they again join hands in their nefarious activities in spite of occasional differences, bickerings and even quarrels. On the evidence, therefore, I have no hesitation in holding that the approver has stated substantially a true story and his testimony is corroborated in material particulars which clearly connect the accused convict with the crime.
11. The learned Counsel tried to make out a case of unfair practices having been adopted by the police and attempted to shew padding by the investigating agency. In my opinion, the charge of unfair practices or padding on the facts and circumstances of this case is clearly misconceived and unfounded. Some human hair were found at the place of occurrence on the arrival of the police and it was suspected that they probably belonged to the accused with whom Smt. Khazani had grappled. These hair along with the admitted hair both of tows approver and the appellant were sent to the expert but his report apparently did not implicate either of them. Now if the investigating agency was so minded it could without much difficulty have taken the hair from the approver and could easily have fabricated evidence by substituting them for those recovered from the place of occurrence in order to support the case against the appellant, but apparently no such course was adopted; to this extent, therefore, it clearly goes in the credit of the investigating agency and negatives the appellant's suggestion. The charge of padding etc., against the police is, therefore, baseless.
12. Capital was sought to be made on behalf of the convict that the ornaments recovered at the instance of the approver had already been melted by Gobind Ram to whom they had been sold by Harbans Singh. The 'bahi' produced by Gobind Ram was also criticised and described as forged. I am not impressed by this argument. It is not shown that the ornaments recovered at the Instance of the approver had been sold to Gobind Ram and melted by him. There is no doubt that some stolen articles were said by the approver to Gobind Ram but I am unable to hold on the evidence that they were the precise articles later recovered at the approver's instance thereby throwing doubt on the recovery evidence. The recovered articles are clearly proved to be the stolen ones and they connect the approver with the crime In question. The 'bahi' has also impressed me to be a reliable piece of evidence and the attack on its genuineness appears to be wholly unfounded.
13. The deposit of cash in his post office saving bank account by Harbans Singh approver was also criticised by the appellant's counsel on the ground that there was no reason why the whole of the cash amounting to Rs. 3,280/- representing the price of the ornaments sold to Gobind Ram should not have been deposited' and that only a sum of Rs. 1,300/- should have been deposited. The argument has merely to be stated to be rejected, for, the approver clearly stated that he deposited Rs. 1,300/- and spent the rest. There is no reason for suspecting this statement to be incorrect.
A point was also sought to be made on the submission that no identification parade of the accused was held but this criticism on the facts and circumstances of this case is without substance as the approver's testimony coupled with the recoveries made at the instance of the appellant and other corroborative evidence has amply brought home the appellant's guilt beyond the possibility of reasonable doubt. Some authorities were cited at the bar but on the view that I take it is really unnecessary to refer to them for they all proceed on their own peculiar facts and circumstances.
14. The appellant's counsel then submitted that the offence in question more appropriately falls within we purview of Section 460, Indian Penal Code and not of Section 302. The argument is that on the evidence on the record the appellant while committing the offence of house breaking by night causedi the death of the child Sabo and, therefore, he can only be punished Under Section 460 which does not prescribe capital sentence. The argument appears to me to be wholly misconceived and Inadmissible.
Section 460 merely provides for constructive liability of persons committing or corcerned In, 'inter alia' house breaking by night in the course of which death Is caused by one of the offenders and It prescribes enhanced penalty for the joint offenders. To attract this section It matters little as to wits actually causes the deatn, for, everyone jointly concerned in committing the house break-Ing Is liable to the enhanced penalty under this section if death is caused In the course of the offence, no matter who is really responsible for the death. It does not, as indeed it cannot, be considered to serve as an exception to Section 302, Indian Penal Code. If a person committing house breaking by night also actually commits murder he must attract the penalty for this latter offence Under Section 302 and I find it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of house breaking, and that he can only be dealt with Under Section 460. Neither the language of Section 460 nor the scheme of Indian Penal Code nor logic and common sense would seem to support this contention which; I unhesitatingly repel.
15. Our attention has been drawn to the following decisions in support of the argument of the offence being only Under Section 460:
16. Bhutta Shah v. The State AIR 1954 Pat 37 which merely lays down that for a conviction Under Section 460 It Is not necessary to ascertain the identity of the person who causes or attempts to cause death' or grievous hurt. This decision Is obviously of no assistance) to the appellant. Jinaram Kachari v. The State AIR 1951 Assam 60: There, charge Under Section 304/34, Indian Penal Code, was held unjustified when death was caused during the course of house breaking. This too is of no avail to the appellant. Mohammada v. Emperor AIR 1936 Lah 911: Here again the number of persons armed with 'dangs' and 'chhavis' jointly entered a house at dead of night to abduct a woman. While doing so, some of them attacked an inmate with 'lathi' blows causing his death. The offence there was held to fall Under Section 460 and not Under Section 302/34 or Under Section 304/1, Indian Penal Code. This case is equally unhelpful to the appellant. Bahadari v. Emperor AIR 1940 Lah 281: The observations in this case, however, appear to me to negative the appellant's contention. It has been observed as follows in the course of the judgment:
Section 460 does not provide for an offence but merely lays down a principle of constructive liability. If a person causes the death of another at the time of committing lurking house trespass by night or house-breaking by night, it does not mean that he escapes being tried Under Section 302 or Section 304, Indian Penal Code, as the case may be, and that he can only be tried Under Section 460, Indian Penal Code. If this were so, accused persons would escape capital punishment by pleading that they committed murder when they were committing house-trespass or house-breaking and that they consequently could not be tried Under Section 302 or Section 304, Indian Penal Code.
In re Slngaram AIR 1954 Mad 1S2: In this case also some observations seem to go against the appellant's contention, for, it is observed in the judgment that If the Court Is satisfied on the evidence that the accused are guilty of murder then Section 460, Indian Penal Code, Is out of place and in such a case the invocation of this section is irregular. As a matter of fact, as early as 1911 a Bench of the Allahabad High Court in Chatty v. Emperor, 11 and Cas 579, repelled a similar contention as Is now raised before us by holding that Section 460, Indian Penal Code, is intended to provide for the punishment of persons who are jointly concerned In committing house-trespass or house breaking quite irrespective of whether they cause or attempt to cause death or grievous hurt and it was never Intended that a person who commits murder while committing a burglary should be punished merely for burglary and not for murder.
In the case in hand, however, we nave also evidence that when house-breaking by night was planned, commission of murder was not ruled out if In the course of house breaking It became necessary to commit such an offence.
Lastly an appeal was made that the sentence is too severe. The Court below has found no mitigating circumstance in the case. I too find none. A small girl was callously put to death by strangulation for facilitating the offence of house-breaking by night The victim's mother was also attempted to be strangulated, expensive valuable property was removed by the offenders. These circumstances can hardly serve as mitigating circumstance, it is noteworthy that the appellant's counsel except for the bald assertion that the sentence is too levere pointed out no mitigating circumstance for the lesser penalty. I am, therefore, unable to find any cogent ground for reducing the sentence.
17. The appeal accordingly fails and Is dismissed the capital sentence confirmed.
R.P. Khosla, J.
18. I agree.