P. Narayana Pillai, J.
1. The appellant is the 4th accused in S. G. Nos. 49 and 59 of 1967 on the file of the Court of Session, Kottayam Altogether there were 7 accused persons in the case. The charge against them was under Sections 120B, 143, 147, 148, 502, 324, 453 and 149 of the Indian Penal Code. They were convicted under Section 148, I.P.C. by the learned Additional Sessions Judge who tried the case and sentenced to undergo rigorous imprisonment for three months. All of them except accused 8 and 5 were also convicted under Section 147, I.P.C. and sentenced to rigorous imprisonment for sis months. Accused 1, 2, 4 and 6 were convicted under Section 148, I.P.C. and sentenced to rigorous imprisonment for eight months. Accused 1, 2 and 6 were convicted under Section 324, I.P.C. and sentenced to rigorous imprisonment for eight months. The 7th accused was convicted under Section 823, I.P.C. and sentenced to rigorous imprisonment for sis months. Accused 1, 2, 6 and 7 were convicted under Section 458, I. P. G. and sentenced to rigorous imprisonment for eight months. The 4th accused was convicted under Section 302 I.P.C. and sentenced to imprisonment for life. The sentences were directed to run concurrently.
2. The charge was that all the accused and P. W. 2 who was subsequently granted pardon, were members of an unlawful assembly and that at or about 8 P. M. on 11-54967 at Puthuparambu property in Mundakkayam in prosecution of the common object of the assembly which was to forcibly evict the occupants of the building in Puthuparambu property accused 1, 2, 6 and 7 committed house-breaking and caused hurt to P. Ws. 1, 3 and 4 and the 4th accused murdered one Mathew. Their plea was that 'they were only guilty.
3. The occurrence took place as a result of the 1st accused's attempt to take the law into bus own hands. The 2nd accused is the 1st accused's son. P. W. 4 is P. W. 1'a wife. P. W. 1 and the 1st accused are brothers. Mathew was their brother. P. W. 8 is their mother. The 3rd accused is a cousin of the 1st accused and P. W. 1. Puthuparambu propetty belonged to the deceased father of the 1st accused. Under a settlement-deed executed by him he gave 11/2 acres of land on the northernmost portion in that property to his daughter. 11/2 acres of land lying adjacently to the south of it in the same property was given by him to P. W. 8. The portions of the property lying farther south of it were given by him to his sons. The 1st accused purchased from his sister the northernmost 11/2 care of land belonging to her. Thereafter he constructed a building there. After reserving one room for his own use he rented out the remaining portions of the building to one Muthu Nadar. The 1st accused wanted to sell the northernmost 11/2 acres of land and the building constructed there by him. His brothers and P. W. 3 were opposed to it. In order to defeat him P. W. 3 started occupying the room in the building which he had reserved for his own use. Attempts made by respectable persons in the locality to settle the dispute between the parties failed.
4. On the date of occurrence the 1st accused who was a writer in an estate and who was living away from the scene of occurrence came with his family and articles for the purpose of occupying the building. He took with him the remaining accused and P. W. 2 also. After they all came near the property the accused and P. W. 2 alone entered the property. When they advanced towards the building in the property Mathew who was there abused them and threatened to out them to pieces. He also pelted stones at them. They in turn pelted stones at him and the house. Heating the cries from the place P. Ws. 1 and 4 whose house was close-by, came there. Then accused 1, 2, 6 and 7 broke open the building and entered it and caused hurt to P. Ws. 13 and 4 by pelting stones at them and beating them with stick and iron-rod. At the southern courtyard Mathew with the knife, M. C. 17, in his hand stabbed first the 4 th accused and then P. W. 2. The 4th accused in his turn with the knife M.O. 6 in hia hand stabbed Mathew. Then Mathew fled from there. Accused 4 and 5 and P. W.2 chased him. The 5 th accused and P. W. 2 succeeded in catching hold of him within a short distance from the courtyard. When he was in their grips the 4th accused stabbed him several times with M. O.6. Thereafter all the accused fled from the place. Mathew fell down and died. When accused 1, 2, 6 and 7 entered the house, P.W. 1 managed to go from there to the Mundakkayam Police Station and lodge there the first information, Ext. P2. On the basis of it a case was registered. At that time as P.W. 1 did not know anything about the incident in which Mathew sustained injuries nothing was mentioned by him about it in Ext. P2. It was only the next morning that it was known that Mathew had died after sustaining injuries. Then necessary alterations were made regarding the Sections of the offences in the case. The 1st accused was arrested on 16.5-1967, the 2nd accused on 18.5.1967 the 3rd accused on 22-5-1967, the 4th accused on 26-5-1967 and the 5th and 6th accused and P. W. 2 on 27-5-1967. After due investigation charge was laid before Court. As the 7th accused was absconding preliminary inquiry was separately conducted in respect of the remaining accused persons and they were committed to the Sessions Court. The 7th accused surrendered before Court on 17-6-1967. Thereafter the preliminary inquiry against him was also conducted and he was also committed to the Court of Session. On 26-6-1967 P. W. 2 was granted pardon. After the records in the two preliminary enquiry oases were received in the Sessions Court although two separate numbers were given for them in that Court only one charge was framed for both the cases as they both arose from the same incident.
5. In their statements before the committal Court all the accused said that what the witnesses examined on behalf of the prosecution spoke in Court was not true. In the Sessions Court the 1st accused said that he wanted to Bhift his residence to his building in Puthuparambu property and that for that purpose had sent some articles for being placed there. On the date of occurrence he took his ailing wife and children to Puthuparambu property. At that time P. W. 2 and three or four labourers were also with him. When he went near the house in Puthuparambu property stones were pelted at him and the per. sons with him. Utter confusion prevailed there at that time and some of the persons indulged in beating others. The 2nd accused stated that when atones were pelted he and the other persons with him took his ailing mother to a neighbouring house and that he did not know what all took place thereafter at Puthuparambu property. Accused 8 and 5 to 7 denied having had any knowledge about the occurrence. According to the 4th accused he was promised work for a few days by the 1st accused in Puthuparambu property and that was why he happened to go to that property on the date of occurrence. When he went there, there was pelting of stones at him and the other persons who went there. Some of the persons who were there beat the other persons there also. One of the stones pelted at the 4th accused hit him on his head. Then he fled from there to P. W. 16's house.
6. The accused did not examine any witness on their behalf.
7. The liability of the 4th accused for the offences under Sections 148, 147 and 148 of the I. P. C. can first be considered. P.W. 3 was staying in the room reserved for the 1st accused in the building in Puthuparambu property. She continued to stay there in order to prevent him from selling away the building. Muthu Nadar and his family were residing in the remaining portions of the building. P.W.16 is a member of the Mundakkayam Panchayat. His evidence shows that on 10 5 1967 the 1st and 3rd accused had gone to him and informed him that on the next day the 1st accused was going to occupy the building with the assistance of some others. P.W. 2 deposed that it was for the purpose of evicting Muthu Nadar and PW3 from the building that he and all the accused persons together came to Puthuparambu property on the night of occurrence as previously arranged by the 1st accused and that it was not their common object to do anything more than occupation of the building. The evidence of P. Ws. 1, 3 and 4 shows that all the accused actually came to the place and tried to evict from there the occupants of the building. Their evidence corroborates that of P. W. 2 in that respect. The 4th accused was in possession of M. O. 6 at the time of the occurrence. The learned Sessions Judge rightly accepted the prosecution evidence in respect of the offence of rioting and convicted and sentenced the 4th accused under Section 148, Penal Code. As that offence was an aggravated form of the offences under Sections 143 and 147 of the Penal Code separate convictions and sentences under those sections were not necessary.
8. What next falls for decision is whether the conviction of the 4th accused under Section 502, Penal Code is justified. Admittedly, Mathew died as a result of the injuries sustained by him at the time of the occurrence. Exhibits P-12 and P-50 are respectively the postmortem certificate and the inquest report. There were six ante mortem external injuries on the dead body. Of them one was only an abrasion 1/2' x 1/2' on the right upper arm. Another was a lacerated wound 1/2' x3/4 ' x 1/4' on the left thigh. The third although incised was only '3/4 x 3/4' x 1/2' and it was on the right fore-arm. The 4th was a punctured wound 1 6/8' x 6/6' x 1/4' on the deltoid muscle. None of them was serious. Only 2 wounds were serious and they were both penetrating. One of them was 8' x 1 6/8' x 2' on the right chest and the other 1 6/8' x 1/2' x 31/2' on the left chest. The wound on the right chest pierced the upper lobe of the right lung and that on the left chest pierced the upper lobe of the left lung.
9. The 4th accused and P. W. 2 also sustained injuries at the time of the occurrence. They were all with closely opposed edges. As regards the injuries sustained by the 4th accused one was 2 6/b' long on the medial aspect of right elbow joint, another 11/2' long on the web between the thumb and the index finger of the right hand and the third 2' long on the right half of the frontal region. As regards the injuries sustained by P. W. 2 one was 11/2' long on the right chest in the first inter costal space, another. If long on the left chest and the third 11/2' long on the left fore-arm.
10. As it was not the common object of the unlawful assembly to murder Mathew the learned Additional Sessions Judge treated the murder as an independent act and made the 4 th accused alone liable for it. There is no doubt that he had participated in the crime. It has come out from the evidence of P. W. 16 that after the occurrence it was to his house that the 4th accused first went and that when he went there he had injuries on his body. It has also come out from P. W. 16's evidence that it was from the top of a beam in his house that M. 0. 6, which had been placed there after the occurrence by the 4th accused, was recovered. Human blood was detected on M. 0. 6 by the Chemical Examiner. But these circumstances have no bearing on the question whether it was in exercise of the right of private defence that the 4th accused stabbed Mathew with M. O. 6.
11. In his statement before Court the 4th accused did not put forward a case of private defence. But as pointed out in Mumbai Earn v. Delhi Administration 1968-1 SC W R 30 : AIR 1968 S 0 702 that cannot stand in the way of the Court considering the question of private defence if it can be made out from the evidence on record.
12. At the time of the inquest in the right hand of the dead body was found a drawn knife. When the accused and P. W. 2 entered the property Mathew, whose house was about 50 miles away, was on the southern court yard. After asking who they were and abusing them he threatened to out them all to pieces. When they hid themselves behind a coffee plant on the northern Bide Mathew came to the western side of the building and started pelting stones at them. It was then that the accused and P. W. 2 went to the southern side of the building. When accused 4 and 5 and P. W. 2 were standing there Mathew came and attacked them with M. 0. 17. He first stabbed the 4th accused and thereafter P. W. 2 and inflicted injuries on them. At that time the 4th accused with the knife in his hand stabbed Mathew. All this is pact of the prosecution case. On the admitted facts Mathew was the aggressor and it was after he stabbed the 4th accused and P. W. 2 with a knife that he was stabbed by the 4th accused. If all that took place was only that the 4th accused would clearly have been protected by the right of private defence as the stabbing by him took place after he had reason to apprehend that death or at least grievous hurt would be caused to him and P. W. 2. Realising this the prosecution in order to show that the accused is really guilty of murder has put forward the case that after the first part of the incident when Mathew stabbed the 4th accused and P. W. 2 when he was stabbed by the 4th accused Mathew ran for some distance that the 5th accused and P. W. 2 then pursued him and that it was when he was caught hold of by the 5th accused and P. W. 2 and was in their grips that the 4th accused Stabbed him and inflicted on him the fatal injuries. There fore the liability of the 4th accused for murder depends mainly on the truth or otherwise of the prosecution case that after Mathew stabbed the 4th accused and P. W. 2 he ran for some distance and that he was pursued by the 4th and 5th accused and P. W. 2.
13. The only item of evidence relied upon by the prosecution to show that as regards the incident in which Mathew received in. juries it took place at 2 different places and not one is that of P. W. 2. Ext. P.81 is the proceeding dated 26-6-1967 granting him pardon. In stating the grounds for granting pardon it is mentioned in it that the investigation made by the police had disclosed that there was no person who actually witnessed the entire occurrence of murder, that P. W. 2 who was not primarily responsible for the murder had admitted his part of the occurrence and that it appeared from the confession he made on 80-5.1967 that he would give evidence for the successful prosecution of the case. He was absconding until he was arrested on 27.5-1967.
14. Pausing here for a moment let us see how an approver's evidence has to be treated. The leading case in England on the subject is The King v. Baskervilles 1916-2 K B 658. There Lord Reading, the Lord Chief Justice reviewed all the previous important authorities and stated the law in pellucid clear terms as follows:-
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 Act came into open. Ration this Court has held that, in the absence of such, a warning by the judge, the conviction must be quashed. If after 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. It can but rarely happen that the jury would convict in such circumstances.
The Indian law so far as approvers are concerned is not different. 1916-2 K B 658 was followed by the Supreme Court in Ramesh war v. State of Rajasthan : 1952CriLJ547 Jnanendra Nath Ghose v. State of West Bengal : 1959CriLJ1492 and the State of Bibar v. Basawan Singh : 1958CriLJ976 . In : 1959CriLJ1492 Sarwan Singh v. The State of Punjab 1957 SCR 955 : AIR 1957 SC 687 was explained as illustrating the application of general principles of appreciation of evidence to the particular approver in that case. In 1957 SCR 858 : AIR 1957 SC 687 which was followed in Laobhi Ram v. State of Punjab : 1967CriLJ671 the Supreme Court said:
There can be however, no doubt that the very fact that he has participated in the com. mission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence un-leas it is corroborated in material particulars by other independent evidence. * * * * In other words, the 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 corroboration. This teat is special to the cases of weak or tainted evidence like that of the approver.
15. Let us turn immediately to the statutory provisions. Section 183 of the Evidence Act provides that an accomplice shall be a competent witness against an accused. It further provides that a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Evidence Act Bays that unless be in corroborated in material particulars the Court may presume that an accomplice is unworthy of credit. Read in the light of Section 4 of the Evidence Act it cannot be considered as a presumption incapable of rebuttal. It may seem that there is some inconsistency between Section 183 and Illustration (b) to Section 114 of the Evidence Act Really there is none.
The provision in Section 138 is an absolute rule of law. Although it says that it is not illegal to convict an accused on the uncorroborated testimony of an accomplice it does not go to the extent of saying that such conviction is proper. It does not rule out precautions being taken in appreciating the evidence of an accomplice. What is said in illustration (b) to Section 114 is only a rule of caution or guidance to be observed in practice. It is not at all a rule of law. In that respect illustration (b) to Section 114 is complementary to Section 183 of the Evidence Act. The resulting position is that there is nothing legally wrong in convicting an accused on the uncorroborated testimony of an accomplice but prudence demands corroboration in material particulars of his evidence before conviction is entered.
16. The reasons for taking usually precautions before accepting the evidence of an approver are not far to seek. An approver is an accused converted as a prosecution witness. In order to escape the possible consequences of the charges against him he is one likely to swear falsely. He is an immoral person having participated in the crime. Consequently he cannot have much regard for the sanction of oath. The thought of pardon always makes him lean towards the prosecution. His inclination is always to make his own share in the transaction as slight as possible and to place the serious blame on others If there is other independent evidence about the crime the testimony of an accomplice is superfluous. Therefore in practice police usually invites a party to become an approver only after they have failed in every other way to supply the missing links. For all these reasons an approver is a suspect witness and his evidence can be accepted only if it is materially corroborated.
17. We now return to the facts of the case. If what P. W. 2 Bays is true he had gone to Puthuparambu property along with the accused persons for the purpose of evicting the occupants of the building there and even when he was stabbed with a knife by Mathew he did not cauce any harm to him. In one portion of his evidence P. W. 2 said that from the first place of incident Mathew ran for a die. tanee of 30 feet and that it was after he ran that distance that he was caugbt hold of by P. W. 2 and the 5th accused and stabbed by the 4th accused. In another place be said that it was after Mathew had run a distance of 60 feat that he was caught hold of and stabbed. The inquest report shows that the place where the dead body :lay was only 25 feet away from the north eastern corner of the building. P. W. 2 admitted that it was his first visit to the place. It was also dark night. P. W. 2 oould not have had a clear idea of the place. According to him the first plane of incident was the southern courtyard and it was there that all the injuries found on the 4th accussd and P. W. 2 were inflicted by Mathew and Mathew was stabbed once by the 4th accused. If that be true as a result of the profuse bleeding from the injuries sustained by P.W. 2, 4th accused and Mathew blood must have dropped at the first place of incident on the courtyard. If from there all those 3 persons ran for a distance of 30 or 60 feet to the second place of incident there must have been a trail of blood from the southern courtyard of the building to the place where the dead body lay. Significantly no mark of blood was found anywhere on the southern courtyard or at any place from there to the place where the dead body lay. P. W. 21, the Circle Inspector, who held the inquest clearly admitted that except at the place where the dead body lay he Could not find blood mark at any place on the southern side of the building. The circumstances brought out in the case do not corroborate the evidence of P. W. 2. He is one who was trying to escape the possible consequences of the charges against him by glibly telling tales which do not appear to be true and providing a much needed link sought by the prosecution to enable the charge of murder to succeed. No reliance can be placed on his evidence that from the plane where he and the 4th accused were stabbed Mathew ran for some distance, that Mathew was pursued by P. W. 2 and the 4th and 5th accused and that it was when Mathew was being held by the 5th accused and P. W. 2 that he was stabbed by the 4th accused. If that part of his evidence is discarded then it has to be taken that the whole incident in which Mathew, P. W. 2 and the 4th accused sustained injuries took place at one and the same place namely that where the dead body was subsequently found. If that be correct the injuries on Mathew were inflicted even if they were all inflicted by the 4th accused at the time when he and P. W. 2 were stabbed by Mathew with M. 0. 17 and the 4th accused reasonably apprehended that death or at least grievous hurt would be caused to him and P. W. 2 by Mathew, if he did not act in the manner that was done by him. In that view of the matter in stabbing Mathew and causing his death the 4th accused was clearly protected by the right of private defence. consequently the conviction and sentence against the 4th accused under Section 302, I.P.C. are set aside,
18. In the result, the conviction and sentence against the 4th accused under Section 148 I.P.C. are confirmed. AH the other convictions and sentences against him are set aside. This appeal is disposed of as mentioned above.