D.M. Bhandari, J.
1. This is an appeal by Ram Deo, Bal Dev Chandani and Ramesh against the judgment of the Additional Sessions Judge, Churu dated the 25th of September, 1983, convicting all of them under Section. 302/34, Indian Penal Code, and sentencing each of them to rigorous imprisonment for life. All of them were further convicted under Section. 380/34, Indian Penal Code, and each of them was sentenced to two years' rigorous imprisonment. They were also convicted under Section 460/34, Indian Penal Code, and each of them was sentenced to two years' rigorous imprisonment. All the sentences were ordered to run concurrently. The deceased Bhanwarlal was post master of Sujangarh in November, 1981. He resided in the resi dential quarter attached to the post office. The case of the prosecution is that on the night intervening 10th/ 11th November, 1981, all the accused Ramdeo, Ramesh and Baldeo, along with Yaqub approver (P. W. 1) entered in the residential quarter of Bhanwarlal post master at Sujangarh and Baldeo appellant killed him by inflicting blows by the axe (Article 2) and then all of them entered in the Post Office, opened the look of the safe lying there and took away five insured covers and some cash out of which four insured covers contained Rs. 7,400/- in currency notes. Bhan-warlal was working as Post Master at the post office, Sujangarh from August/September, 1960. Ramdeo appellant was working as Telegraph signaller-cum-clerk in the Telegraph office from July/August, 1981 which was in the same office. Ramesh appellant and Yaqub appellant were two boy messengers. Ramesh was previously working at Ratangarh post office and was transferred to Sujangarh post office on the 1st of November, 1981. Yaqub approver was also serving at the post office for sometime, the exact date of his appointment being not on record. Ramesh was residing on or about the date of murder in the quarter attached to the quarter of the Post Master. The roofs of the quarters of Ramesh and the Post Master were at the same level and were accessible by two separate staircases. A person from the quarter of Ramesh could have access to the quarter of the Post Master from the roof. Yaqoob resided with Mohammad Hassan (P. W. 18) who was a Head Constable at the Police Station, Sujangarh. He also cooked food the Head Constable and gave tuition to Sarwa (P. W. 2) the son of the Head Constable. Baldeo Chandani was a Telephone Operator at Ratangarh and he came on the morning of the 10th of November, 1961 on relieving duty at the Telephone Exchange Sujangarh.
2. It is alleged by the prosecution that Ramdeo was not on good terms with Bhanwarlal post Master as he objected to the boy messenger Kishan employe at the Post Office serving as a private servant at the quarter of the Post Master. The prosecution evidence is that once or twice there were altercations between Bhanwarlal and Ramdeo, sometime before the occurrence on that account. After the altercations, it is said that Ramdeo once expressed in the presence of Yaqoob that Bhanwarlal was proud and had grown insolent and he could be taught a lesson within two minutes and that he (Ramdeo) was a resident from Rewari where people do not wash their hands and eat their bread even aiter murder. This incident is said to be of about a fortnight before the date of murder. The prosecution case further is that Baldeo Chandani, Ramdeo and Ramesh entered into a conspiracy to murder Bbanwarlal on the 10th and 11th of November, 1981 when Bbanwarlal was to be found alone in his quarter, his wife and children having gone to Sardarshahr. Yaqoob was also made a party to this conspiracy by Ramdeo and Ramesh; it may also be mentioned that Baldev Chandani had taken his lunch with Bbanwarlal postmaster on the day of Murder. The only evidence of the conspiracy is the testimony of Yaqoob. His evidence on this point is that after 7.00 p. m. of the night of murder, Ramdeo and Ramesh came out of the post office and sat on a bench, while he remained standing nearby. Ramdeo asked Ramesh; What is to be done about that matter? Ramesh told that whatever was to be done must be done that night, otherwise the children of the Post Master could come. This excited the curiosity of Yaqoob and he asked Ramesh: 'What is the matter'?. Ramesh replied that it was nothing. Ramdeo however, said that nothing should be hidden from Yaqoob as he was their own man. Thereupon Ramesh said that the Postmaster was to be set right. Ramdeo then told Yaqoob that they should go to cinema. Thereupon Yaqoob replied that be had seen the picture running at the Cinema and he had to teach the son of Hasan Khan. Ramdeo thereupon asked him to come to Ramesh at the post office at 10.00 p. m. to which Yaqoob did not agree. Ramdeo, however assured Yaqoob and asked him to come and remain standing outside the post office as whatever was to be done will be done by him and his other companion he and Ramesh. Yaqoob has not given any evidence on the point how Baldev Chandani joined this conspiracy.
The prosecution case further is that Ramdeo, Baldev Chandani and Ramesh and one Pyarelal went to the cinema in the first show on that night and returned from the cinema at about 10 p. m. There is divergence in the prosecution evidence as to what happened on their return from the Cinema. Yaqoob approver's story however, is that after 9 p. m. he reached the Post Office. Sometime after reaching the Post Officer he saw the Postmaster going into the Post Office at about 10.00 O'clock. After a short while, Ramdeo and Chainroop, another boy messenger aged about 13 years, employed in the Post Office also came there. Ramdeo directed Chainroop to shut up the door. Thereafter Ramdeo and Chainroop sat down on a beach. Yaqoob also went to them. Baldev Chandani was also coming from the Telephone Exchange. Yaqoob was informed by Ramdeo that Baldeo Chandaai was also in the conspiracy. There, after Chandani told how the Job was to be accompli-shed and thereupon Ramdeo told that Chainroop had not slept and that they should allow Chainroop to sleep and then it will be opportune time. All of them then went for a walk to the Naya Bazar and returned and went to the quarter of Ramesh.
After sometime they went to the Post Master's quarter by the staircase from the roof. Ramesh noticed that Chainroop was sleeping covering himself with a cloth. Thereupon Chandani asked what ar. rangements were made. Rimdeo said 'A stone may be picked up and he may be hit by it.' Baldev said that this was not proper as the victim may raise hue and cry and the police Station was so very near. Baldev Chandani's eyes fell on an axe which was lying where the Post Master was sleeping and which is shown as Room No. 13 in the steplan (Ex. P/3) prepared at the instance of the Deputy Superintendent of Police. The handle of the axe did not exactly fit into the blade and a pen was inserted in it by Baldev to make the axe tight. Baldev Chandani then went near the room of the Postmaster and knocked the chain of the door. The postmaster came out yawning. He came in the adjoining room which is Room No. 10 on the plan and there it is said by Yaqoob that Baldev Cbandanf gave a blow of axe and the Post Master fell down. Further 2/3 blows were given by the axe on the deceased by Baldev Chandani. Thereafter Baldev suggested to his companions that leaving the matter thus would not be proper and it will be better that some money was also stolen so that an impression may be created that dacoits had come to rob the post office and ran away with the money.
Ramdeo directed Ramesh to bring the keys of the safe from the room of the post master. Ramesh said that he could not. Thereupon he directed Yaqoob to bring the keys and then Yaqoob brought the keys from behind a radio and we at into Room No. 10. Ramdeo then directed Yaqoob to go into the post office and put off the light. Thereafter Yaqoob went inside the post office, opened the safe and took out the insured letters and put them in his bag. All of them then came out and again went to room No. 13 where there was a gadda lying and there were also two cots, with beddings spread over them. The insured covers were torn off on the gadda. One of the insured cover contained currency notes worth Ra. 4,000/ the second cover had Rs. 2.001)/. the third had Rs. 1 000/- the fourth had Rs. 300/-. The con-tents of the iif th insured cover are not detailed by Yaqoob. All this money was put in a handkerchief belonging to Ramesh and entiusted to Yaqoob to be kept by him in his custody. The case for the prosecution further is that Ramesh went to his quarter and slept there, Baldev Chandani went to the Exchange and slept with Jogeshwar (P. W. 10) another Telephone Operator and Yaqoob went to the police station where he slept in the Kothri of Mohammed Hussau, who had gone on duty.
The next morning when Chainroop woke up he found the postmaster murdered. He at once went to Ramesh and informed him and a report was lodged by Chainroop at 6.45 A. M. on the 11th of November, 1961. Alisher Khan (P.W. 20) who was in charge of the Police Station at that time, proceeded to the place of the occurrence after recording the report. Finding the matter serious he made a trunk call to the Superintendent of Police, at Churu. The Superintendent of Police directed that the post office may be kept closed as he and the Deputy Superintendent of Police were coming. They reached at 1.30 P. M They conducted the investigation. They found a blood stained axe (Ex. 2) lying near the mail box which was in the post office, from near the safe. They also found a clear footprint near the safe which had already been covered by Alisher Khan by a balti. There were also certain footprints found in Room No. 13 and one footprint was on the back. The Police officers also inspected the quarter of Ramesh where they found a blood stain on the cemented floor of the verandah. A portion of the cement stain* ed with blood was taken The investigation by these officers, however, proved fruitless.
Under orders of the competent authority the investigation was then entrusted to the Criminal Investigation Department and it was conducted by Bal Chand, Circle Inspector (P. W. 28) from February, 1962. A strange thing, however, took place on the 31st of Match, 1962 when Hassan (P. W 4) a packer in the Post Office found a bundle when he was taking out certain forms from beneath an almirah. He handed over the bundle to the then Post Master--Cyani Ram and it was discovered that the packet contained currency notes of the value of Rs. 7,460/-. The currency notes were wrapped up in -a handkerchief Ex. 1 which according to the prosecution belonged to Ramesb. The culprits were still not traced. According to Yaqoob ne, however, had qualms of conscience and he decided to divulge everything to the Deputy Inspector-General of Police, Thakur Jaswant Singh. He, therefore, submitted to him a written application (Ex. D/2) in which he narrated the whole incident on the 5th April, 1962. He was arrested on the 5th of April and was produced before the Sub-Divisional Magistrate, Ratangarh for making a confessional statement on the 6th of April, 1902, He made the confession (Ex. P/91) on the same day.
All the appellants had been then arrested on the 5th of April, 1962. The blood stained axe (Ex. 2) and the piece of cement flooring were sent to the Chemical Examiner and he found them positive for blood. The report of the Serologist, however, is that it could not be traced whether the scrapings from the axe and its handle and the scrapings from the cement floor were of human origin or not. The handkerchief (Ex. 1) along with other handkerchief was placed before the Tehsildar and Second Class Magistrate, Sujangarh and Jogeshwar and Chalnroop picked up the handkerchief (Ex. 1), the case of the prosecution being that these witnesses were able to identify it to be of Bamesh at the trial. The finger and footprint Expert Of the Government of Rajasthan reported that in his opinion the footprint marked 'Q' which had been traced on the glass.sheet from the mark found near the safe tallied with the right footprint of Yaqoob approver. He also gave the opinion that 'Q I' another footprint which was traced from the footprint mark found in Room No. 13 tallied with the upper portion of the left foot of Baldev Chandani. Yaqoob was granted pardon under the orders of the District Magistrate, Churu by the Sub-Divisional Magistrate on the 12th July, 1962,
3. All the three appellants were challaned before the Magistrate, First Class, Ratangarh and they were committed to the Additional Sessions judge, Churu to stand their trial under Ss, 302, 460 and 380 read with Section 34, Indian Penal Code. It may be mentioned at this stage that Yaqoob approver was not examined by the committing magistrate as required under Section 337 (2), Criminal P. C.
4. The appellants pleaded not guilty and claimed to be tried. Their case is that they were not in any way responsible for committing the offence. Baldeo Chandani stated that he had slept at the Telephone Exchange on the night of the lOth/llth of November, 1962 after he had returned from the cinema. Ramdeo stated that he was sleeping at his house after he had returned from the Cinema. Ramesh stated that he slept at his quarter after he was free from the duty from the office. He, however, stated that he had gone to the Telephone exchange at about 10.15 P. M. and had stayed with Chandani and Jogeshwar upto 11 or 11.15 p. m. He also denied that the handkerchief (Ex. 1) belonged to him. He also stated that there was no drop of blood found in his courtyard on the cement plaster. He also denied that any cement plaster had been removed from his courtyard. The learned Additional Sessions Judge, convicted and sentenced all the three appellants as aforesaid on the strength of the evidence of Yaqoob approver and other circumstantial evidence which we shall notice presently. The appellants, have, therefore, come in appeal to this Court.
5. The main contention of the learned Counsel for the appellants is that the statement of Yaqoob cannot be relied on as he is an altogether untruthful and tutored witness and has given evidence in the trial court as if he had crammed up the entire version which shows him to be tutored. They have assailed the testimony of Yaqoob on various points and have urged that his evidence should be altogether rejected. It is urged that the corroborative circumstances relied on by the trial court are not established by the evidence on record, or even if they are established, they are not sufficient to warrant the conviction of the : appellants. They have also urged that the approver was not examined under Section 337 (2), Criminal P. C, by the committing court and as such, the whole trial is vitiated. The learned Assistant Government Advocate has supported the Judgment of the trial court and has urged that Yaqoob has given a truthful version of the occurrence and his testimony is corroborated by other material circumstances established on record.
6. Before we deal with the contents of the evidence of Yaqoob, we may point out one noticeable feature of his evidence. His examlnation-in-chief covers 14 pages of the paper book. The learned Additional Sessions Judge, has noted that the first 12 pages of his examination-in-chief were in reply to one question of the Public Prosecutor and later on further questions were put by the Public Prosecutor and replies were given by him. From the mode in which the witness was giving his statement in the examination-in-chief in the court, the learned Counsel took the cue and asked him to repeat part of the story and the witness stated repeating in exact words his statement given in examination in chief and this is contained in the first 3 1/2 pages of the cross-examination by Shri Laxmi Narain, Advocate. At this stage the Public Prosecutor took an objection that there should be no repetition of the statement in the examination in chafe. learned Counsel for the defence pointed out that the witnesses had crammed the whole story and he should be allowed to cross-examine him further. The trial court allowed it and the counsel put a question from somewhere in the middle of the story given by him in the examination-in-chief.
The witness then staited repeating parrotlike the version given by him in the examination-in-chief and he continued to do so for another page and a half. This part of cross-examination is significant from one other aspect. At one stage he departed from his statement in the examinatlon. In chief by reversing the order of two sentences. The witness at once corrected himself and said, 'This line ought to come after' and then repeated the version given in the examination in chief, correcting himself. We have compared the statements and we find close identity in the language and the sequence of events given in cross-examination with that given in the examination, in-chief. This matter did not escape the attention o the learned Additional Sessions Judge and he observed in his judgment that 'No doubt, his statement is a crammed one and he has narrated the whole story by himself and has repeated the same'. He observed that 'la his cross-examination also ho could repeat verbatim from wherever he was asked to reproduce his statement. But there is no ruling or law that at witness cannot cram his statement. Yaqoob was simply a boy messenger and no wonder he had cram-' med his statement while sitting idle in the judicial lock up.
The learned Additional Sessions Judge further observed thus:
No law having been cited to the effect that such kind of statement is inadmissible in evidence or should be taken to be a false one while Yaqoob could reproduce the sentences crammed by him, he could stand the cross-examination also and despite his lengthy cross examination his statement was unshaken. His statement should not suffer on that account.
We are constrained to observe that the learned Additional Sessions Judge was in search of law of ruling or precedent where experience should have been his guide. Appreciation of evidence by a court of law cannot be based on any set principles. A court of law should while deciding the facts of a case seek guidance from its experience when it is called upon to appreciate correctly the value of the evidence before, it. In a trial by a Jury, usually it Is for the jury to appreciate the evidence of a witness and it is left to the Judge to lay down law. la India where there is no trial by a jury, the judge is not the Judge only of law but also of fact and in appreciating the evidence, he is to act as jury. He is to form his own estimate of the evidence produced before him and should not be haunted by the idea that there is no ruling or precedent to guide him. We may also point out that had he shown a spirit of research in this matter, he might have come across a case which happened in the United States of America, known as 'Triangular Fire Case', which finds mention in 'The Art of cross-examination by Francis Wellman' 4th Edition. The Learned author noted that case and observed:
Max D. Steuer, while conducting the defence developed a most striking illustration of the value, when the proper occasion arises, of compelling a witness to repeat on cross-examination every detail of the story given on direct.
In that case, the witness after examination in chief was asked four times to repeat the story given in the examination-in-chief, and she repeated it precisely in the same words in which she had answered the District Attorney in the examination-in-chief. While she was being asked to repeat the story third and fourth time she committed a slight mistake and omitted a word. Instantly she corrected it by saying 'yes', '1 made a mistake1. 'I left out a word1. This had its own effect on the jury and the author has observed that her carefully prepared story had aroused the suspicion of the jury regarding the entire case of the prosecution. We cannot refrain from expressing the same feelings in this case. The crammed story of Yaqoob does create an impression that we should be extremely cautious in taking the story given by this approver at its face value and we should probe deeper into the matter.
7. This is one circumstance. The other circumstance which has weighed with us in estimating the value of the evidence of the approver may now be referred. While examining the evidence of Yaqoob approver we found that he posed himself to be a most timid and reluctant person in entering the cons-piracy which was hatched by appellants Ramesh and Ramdeo for doing away with Bhanwarlal.
Every now and then Yaqoob starts saying that he was afraid of what was taking place and either Ramesh or Ramdeo Baboo put courage in him while re-assuring him that he was to do nothing but to remain standing. It is not unusual when we find an approver minimising his part in the crime, but Yaqoob surpasses all such persons because he cannot go on narrating his story without mentioning that at every stage of the crime he was very much afraid and was loath to participate in the crime. It cannot, however, be forgotten that Yaqoob himself admitted that he brought the keys and opened the safe and took out the insured covers and the money from the safe. It cannot also be for-gotten that it was Yaqoob who according to his own statement kept the money with him for 4J months, and thereafter had thrown the money in the post office. He cannot pretend to be so timid and innocent as he claims himself to be,
8. After mentioning these two circumstances in his statement we now proceed to examine his statement. According to him, it was by mere chance that he was taken in the conspiracy. Ramdeo and Ramesh were talking outside the post office on the evening of the murder and Ramdeo was foolish enough to divulge everything to him, though Ramesh had no such intention, We cannot easily accept this thing. There were already too many persons to deal with the post master and there was no necessity that Yaqoob should be taken in it Still for all, Ramdeo and Ramesh asked the witness to come to the post office at 10 p. m., on the night of the murder. It is nowhere in evidence of Yaqoob that at that time the witness knew what was going to happen at the post office on that night. It is nowhere in the evidence of Yaaoob that he was likely to gain anything by entering into the conspiracy. The prosecution case is that Eamdeo'wanted to set right the postmaster and it is for this purpose that the murder was contemplated on that night. In the evidence of Yaqoob, it has come out that there was no intention to commit robbery or to take away the money of the post office.
It was at the last moment after the post master had been murdered that Baldeo Chandani made the suggestion that unless money is taken out of the post office the crime will not appear to have been committed by the dacoits and then it was considered that the safe should be unlocked and insured covers and the money from it should be taken away. Thus on the evening of the murder there was no inducement for Yaqoob to come at 10 p. m., in the night. Still, the evidence of Yaqoob is that he came to the post office. There is discrepancy in the prosecution evidence as to exactly what happened at this hour. According to Yaqoob after sometime, Baldev Chandani came and finding Yaqoob there, took objection to his presence, but he seems to have been satisfied on being told by Ramdeo that Yaqoob was also with them. It cannot be easily accepted that the Baldev was satisfied by these answers of Ramdeo in taking a stranger in the crime.
9. Let us pause here and see how Baldeo Chandani became interested in the whole affair. There is no prosecution evidence except the statement of Yaqoob and Yaqoob came to know that Baldev Chandani was also participating in the crime only at 10P.M. when Baldev Chandani came to the post office. Baldeo Chandani had come on relieving duty as an operator at the Telephone Exchange. He was only there for 1/2 days. He had no grievance with Bhanwarlal. Rather it is in the evidence of the prosecution that he had come to take lunch with him on the afternoon of the 10th of November and he was also expected to sleep with him the same night. There was thus no earthly reason that Baldeo Chandani should enter into the conspiracy to murder Bhanwarlal who was a hospitable host to him. It is, therefore, not easily understandable that Baldeo Chandani should enter into the conspiracy to kill Bhanwarlal, not only that but he should take a leading part in killing Bhanwarlal. But Yaqoob's statement is to that effect. His evidence is that four of them, namely, Baldeo Chandani,Ramdeo, Ramesh and he himself went to the court-yard of the quarter of the postmaster from the house of Ramesh presumably for murdering the postmaster. Now here again one is left in suspense while appreciating the evidence of Yaqoob.
There was this party which conspired to murder the post master but it had not made up its mind as to how be was to be killed and it was at that time suggested that a stone may be picked up for the purpose of killing the postmaster. This suggestion was then rejected and an axe which was lying there was picked up. If the party had come there to deal with the postmaster, it must have come with appropriate weapons, but curiously enough such is not the story of the approver and a weapon which was lying there was picked up at the last moment. This version of the approver is again not acceptable to u7. We have already mentioned that we cannot easily accept the story that it was Baldev Chandani who had no cause for any grievance against Bhanwarlal who inflicted the fatal injuries to him. Thereafter though the suggestion is said to have emanated from Baldev Chandani that the money must be taken away from the post office, the actual doer is Yaqoob arid neither Baldev Chandani nor Ramdeo nor Ramesh.; It was Yaqoob who took out the insurance coven and the money from it. Granting all this happened in the manner deposed by him and if Baldev and Ramdeo took patt in the incident, they would be the last persons to have left a huge sum of money in the hands of Yaqoob who was a boy of 18 years and about whose antecedents they were not sure.
Yet the story of the approver is that the entire amount of money was entrusted to him to be kept with him and Yaqoob kept this money on the doli (wall) of the staircase of the police station and kept it there for a long time. Baldev not taking a single pie from this loot, and Ramdeo felt satisfied by taking a very paltry amount. On these broad facts, we have our own hesitation in accepting the version given by Yaqoob. The motive of the offence does not appear to us to be grievance of Ramdeo against the postmaster. The motive is apparent inasmuch as the amount of about Rs 8,000/- was taken away from the post office. It was money which had actuated the crime and not any enmity of the Tar Baboo with the postmaster. By this we do not mean that Yaqoob was not altogether in the crime. He was there and the presence of his footprint gives the evidence to that effect but who else were with him is the question to be determined. Whether the appellants were with him is the main question before us.
9-A. As observed by their Lordships of the Supreme court in Sarwan Singh Rattan Singh v. State of Punjab (S) AIR 1957 S C 637 (640-641).
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 to 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 test is special to the cases of weak or tainted evidence like that of the approver.
10. We are reluctant to accept the approver as a reliable witness in the circumstances of the case for reasons mentioned hereinbefore.
11. Coming to the question of corroboration, we may mention that the law on the subject has been laid down in a number of Supreme Court cases. We may quote the following observations from Sarwan Singh's case. (S) AIR 1957 S C 637.
The problem posed by the evidence given by an approver has been considered by the Privy Council and Courts in' India on several occasions. It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be however, no doubt that the very-fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particular by other independent evidence.
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous; on the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted, as writ.
12. The corroboration must, however, be of such a nature that it must connect or tend to connect an accused with the crime. This principle has been laid down in R. v. Baskerville 1916-2 KB 658 and has been adopted in India. In Jnanendanath Chose v. State of West Bengal AIR 1959 S C 1199, their Lordships of the Supreme Court observed.
There should be corroboration in material par. ticulars not only concerning the crime but corroboration of the approver's story by evidence which connects or tends to connect an accused with the dime.
13. Let us now examine how far there is such a corroboration in this case. In this connection we think it proper to deal with the case of each appellant separately. (After discussing the evidence (Paras 14-18, His Lordship held that each of the appellants was entitled to acquittal. The judgment then proceeded.)
19. We need not decide the point addressed by the learned Counsel for the appellants that Yaqoob was not examined under Section 337 (2) Cri. P.C. and so the whole trial is illegal, as on the merits we have decided to accept the appeal of the appellants.
20. As a result of the aforesaid discussion, the appeal is allowed and the conviction and the sentence of the appellants on all the charges are set aside. They are acquitted of all the charges. They shall be released forthwith, if not required in any other case.