Sri Dhiren Majhi vs The State Of Assam & Another
2022 Latest Caselaw 2733 Gua

                                                                                 Page No.# 1/21

GAHC010012112018




                        THE GAUHATI HIGH COURT
             (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )

                      Case No: CRL. Appeal No. 1(J) of 2018

             Sri Dhiren Majhi
                                ...............................appellant


                           VERSUS


             The State of Assam & Another
                                    ...............................respondents


                                :: BEFORE ::
              HONOURABLE MR. JUSTICE KALYAN RAI SURANA
                      HON'BLE MRS. JUSTICE MALASRI NANDI

For the Appellant               :       Ms. B. Sharma. (Amicus Curiae)

For the Respondents             :      Ms. B. Bhuyan, Senior Counsel
                                                       (Addl. P.P.)
Date of Hearing                 :      24.06.2022
Date of delivery of
Judgment and Order              :        04.08.2022
                                                                               Page No.# 2/21

                            JUDGMENT & ORDER (CAV)
Malasri Nandi, J.

1. Heard Ms. B. Sarma, learned Amicus Curiae appearing for the appellant as

well as Ms. B. Bhuyan, learned Senior Counsel and Addl. P.P. appearing for the State

assisted by Mr. J. Das.

2. This appeal is directed against the judgment and order dated 30.10.2017

passed by the learned Sessions Judge, Jorhat in Sessions Case No. 150(J-J) of 2015,

convicting the accused/appellant under Section 302/392 IPC and sentenced to

undergo rigorous imprisonment for life with fine of Rs. 20,000/- in default of payment of

fine, to undergo rigorous imprisonment for 6(six) months under Section 302 IPC. The

accused/appellant was further sentenced to undergo rigorous imprisonment for 10

(ten) years with a fine of Rs. 10,000/- in default of payment of fine, to undergo rigorous

imprisonment for 6(six) months under Section 392 IPC. Both the sentences were

directed to run concurrently.

3. The brief facts of the case is that the informant Beni Prasad Beria lodged an FIR

before the in-charge, Deberapar police out-post under Mariani P.S. on 23.09.2014

stating inter-alia that one Manikchand Sarma had been staying as a tenant in his

land at staff line of Bhelaguri Tea Estate. On 21.09.2014 at about 10.00 P.M., when

Manikchand Sarma was sleeping inside his shop, some miscreants entered into his

shop by breaking the back door of the shop and killed Manikchand Sarma by

assaulting him with a piece of iron rod. Thereafter, the miscreants also had stolen

away money from the shop.

Page No.# 3/21

4. On the basis of the complaint, a case was registered vide Mariani P.S. Case

No. 219/2014 under Section 396 IPC and investigation was started. During

investigation, the Investigating Officer visited the place of occurrence and recorded

the statement of the witnesses and seized some articles like one iron rod etc from the

place of occurrence. Inquest was done on the dead body of the deceased and

subsequently, the dead body was sent for postmortem examination. The postmortem

examination of the deceased was conducted at Jorhat Medical College and

Hospital. As per the postmortem report, the death of the deceased was due to coma

as a result of head injury. All the injuries were antemortem caused by blunt weapon

which was homicidal in nature.

5. After completion of investigation, the chargesheet was submitted before the

Court of SDJM, Titabar of Jorhat district under Section 396 IPC against the

accused/appellant. As the case was exclusively triable by the Court of Sessions, the

case was committed accordingly for trial.

6. During trial, charge was framed against the accused/appellant under Sections

302/392 IPC which was read over and explained to the accused/appellant to which

he pleaded not guilty and claimed to be trial.

7. During trial, the prosecution examined 8(eight) witnesses and marked 8(eight)

exhibits and 3(three) material exhibits. On the other hand, the defence did not

choose to adduce any evidence. After completion of trial, the statement of the

accused/appellant was recorded under Section 313 Cr.P.C, and the incriminating

materials available in the evidence put before the appellant wherein he denied the Page No.# 4/21

same.

8. The accused/appellant stated in his statement recorded under Section 313

Cr.P.C that he had committed no offence. Mangal Majhi is the uncle of Biresh Majhi

(P.W-7). Mangal Majhi and Mathu Majhi (P.W-2) are brothers and they used to live in

the same campus. Mathu's father had two wives and number of children from them.

To help their families his mother had given up a job in the tea garden. Mangal Majhi

had falsely implicated his uncle Jugesh Majhi and now his nephew Biresh Majhi has

falsely implicated him. Sniffer dog had gone to the house of Mangal Majhi only and

not to his house. P.W-7 Biresh Majhi himself was a salesman in the shop of the

deceased Manik Chand Sharma and he and Mangal used to visit the shop of the

deceased.

9. It was urged by learned Amicus Curiae Smt. B. Sharma that P.W-7 who

accompanied the accused/appellant on the day of incident is not the approver or

accomplice as no pardon was tendered by him. Though he did not disclose his

participation in commission of the crime but as he accompanied the

accused/appellant on the day of incident in the shop of the deceased, he cannot

be the witness of the prosecution but he should have been treated as accused in the

case. As such, his evidence cannot be taken into consideration. Learned counsel for

the appellant also argued that except P.W-7 no other witnesses examined by the

prosecution had uttered a single word regarding involvement of the accused in

committing the murder of the deceased. As such, accused/appellant is entitled to

get the benefit of doubt.

Page No.# 5/21

10. On the other hand, learned senior counsel, Ms. B. Bhuyan, additional public

prosecutor has argued that it is an admitted fact that P.W-7 had accompanied the

accused/appellant on the day of incident to the shop of the deceased. As such, the

presence of the accused/appellant in the shop cannot be denied. P.W-7 also

narrated the story how the incident occurred inside the shop of the deceased, which

was also not denied by the accused/appellant. Under the facts and circumstance of

the case, it can be said that the prosecution has considerably proved the case

against the accused/appellant beyond all reasonable doubt and the judgment of

conviction passed by the learned Trial court does not need for any interference.

11. We have considered the submissions of learned counsel for the parties. We

have also gone through the record of the trial Court alongwith the documents

available thereon. Before further proceeding of the case, we have to ponder over

the evidence of the witnesses recorded by the trial Court.

12. P.W-1, Beni Prasad Beria is the informant who deposed in his evidence that the

deceased was running a grocery shop on rent in his premises. On the subsequent day

of incident i.e. on 22.09.2014, he came to know from the nearby people that till 9.00

A.M., the deceased had not opened his shop. After getting such information, he

immediately went to the shop of the deceased and knocked the door but did not

find any respond. Then his elder brother informed about the same to Deberapar

police outpost over telephone. Then police came and entered into the shop through

back side as the back side door was found open. Inside the shop Manikchand was

found lying dead over there. He did not enter into the shop. He could not say what Page No.# 6/21

articles were stolen from the shop of the deceased. Then, he lodged the FIR vide

Exhibit-1.

13. P.W-2 is Mathu Majhi who deposed in his evidence that about one year back

Manikchand Sarma died. Deceased owned a grocery shop in their village. He came

to know about his death on the subsequent day of the incident when police arrived

at the place of occurrence. He came to know that Manikchand Sarma was found

dead inside his shop and he did not know how the deceased died.

14. P.W-3, Nemichand Sharma, also deposed in the same tune by stating that he

came to know about the death of Manikchand Sarma on the subsequent day of the

incident. Police seized one iron rod, one piece of wood and one belt from the place

of occurrence in his presence vide material exhibit-1, 2 and 3.

15. P.W-4 Rohit Kumar Beria, is also the seizure witness.

16. P.W-5, Dr. Nitu Kr. Gogoi is the Medical officer who conducted postmortem

examination on the dead body of the deceased. He deposed in his evidence that

on 23.09.2014, he was working as Asstt. Professor, Dept. of Forensic Medicine, JMCH,

Jorhat. On that day, he performed the post-mortem examination on the dead body

of Manikchand Sarma, Male, aged about 45 years, on police requisition and found

the following:-

1. Lacerated injury of size 3cm x 1cm x scalp deep over left frontal eminence underneath depressed fracture of frontal bone present.

2. Lacerated injury of size 4 cm x 1cm x scalp deep over parietal eminence underneath depressed fracture of parietal bone.

3. Lacerated injury of size 7cm x 1cm x muscle deep over left eye brow.

4. lacerated injury of size 5cm x 1cm x muscle deep below eyelid.

Page No.# 7/21

5. Lacerated injury of size 3cm x 1cm x muscle deep below the chin.

6. Abraded contusion of size 4cm x 2cm x over the right shoulder joint.

7. Abraded contusion of size 5cm x 1 cm over dorsum of left hand. Brain was found congested. Cranium & spinal cord; membranes were found

congested; subdural haemorrhage over both the hemispheres of the brain were

found congested.

Doctor opined that death was due to coma as a result of head injury. All the injuries

were antemortem caused by blunt weapon which was homicidal in nature.

Approximate time since death was 15 to 24 hours.

In his cross-examination, P.W-5 replied that all the injuries were antemortem and

injuries nos. 1 and 2 were fatal and sufficient to cause death.

17. P.W-7 is Biresh Majhi, who deposed in his evidence that about two years back

he used to sell lau pani ( a type of local/country liquor made up of fermentation of

rice) near the shop of the deceased. The accused used to come to his place to

consume lau pani. On the date of the incident at about 2.00 P.M., the accused

came to his shop and had lau pani and told him that at night he would go to the

shop of the deceased Manik to commit theft and also asked to accompany him and

also directed him to cover his face with gamucha. On his direction at about 10.00

p.m. he came out from his house and along with the accused Dhiren Majhi he went

to the shop of the deceased Manikchand Sarma and the accused called the

deceased 'Manik Da', 'Manik Da' and after hearing the same the deceased came

out and then the accused pushed the deceased inside his shop room and tied him

on the bed and hit him thrice with an iron rod, which the accused brought along with Page No.# 8/21

him. The deceased died on the spot. Thereafter, the accused Dhiren Majhi searched

for money inside the shop of the deceased and found one cash box and he took

away the money. He gave him Rs. 500/- and then, they both came out. The accused

asked him not to disclose about the incident to anyone.

18. In his cross-examination, P.W-7 replied that at the time of the incident, he was

a student of Class-X. His school timing was from 9.00 A.M. to 2.30 P.M. After his school,

he used to sell lau pani. On the date of the incident, he went to school and started to

sell lau pani at about 4.00 to 5.00 p.m. He used to stay along with his uncle and aunt.

On the date of the incident when he came out from his house, he did not tell

anything to his aunt.

19. P.W-8 is the Investigating Officer. From his evidence, it discloses that on

23.09.2014, he was working as in-charge of Deberapara police out- post under

Mariani police station. On that day, he had received an FIR lodged by one Beni

Prasad Beria. The same was entered in the General diary vide G.D. Entry no. 703

dated 23.09.2014. Thereafter, forwarded the same to Mariani police station where it

was registered as Mariani P.S. Case No. 219/2014 under Section 396 IPC. After

registration of the said case, the same was entrusted to him for investigation.

Preliminary investigation of the case had already been started pursuant to a phone

call received from the Manager, Bhelaguri Tea Estate, which was received at 10.15

a.m. on 22.09.2014 stating that the house of Manikchand Sarma was found closed in

the morning and none of the inhabitant had come out from the house. The said

phone call was entered in the general diary vide G.D. Entry No. 663, dated Page No.# 9/21

22.09.2014. Thereafter, he alongwith police personnel went to the house of

Manikchand Sarma and found the house closed from front side. The house was

adjoining to a road and another road had gone by the side of the said house. They

went to the said road to the back side of the said house of Manikchand Sarma and

found that a part of the bamboo fencing of the rear boundary was broken. They

entered through the broken bamboo fencing and found the house ransacked, things

were lying here and there. Manikchand Sarma, had been running a grocery shop in

the said house. They found Manikchand Sarma lying in a pool of blood over a

mattress. He had noticed some injuries on his head. The sniffer dog after visiting the

place of occurrence went straight to the house of Mangal Majhi whose house was

situated nearby and barked at indicating his involvement. He accordingly arrested

Mangal Majhi. He prepared a rough sketch map of the place of occurrence vide

Exhibit-6. He also seized one iron rod, one wooden piece and one leather belt from

the room wherein the dead body of the deceased was found. After arrival of the

Executive Magistrate, inquest was done over the dead body of the deceased

Manikchand Sarma. Thereafter, dead body was sent for postmortem examination to

Jorhat Medical College and Hospital, Jorhat. He had also sent the sample of one foot

print which found on the courtyard in the back side house of the deceased. He also

collected the report of the said foot print vide Exhibit-4. Due to insufficient evidence,

the case was not proceeded against Mangal Majhi. The investigation had revealed

that accused Dhiren majhi @ Fekuwa was involved in commission of the murder of

the deceased.

20. P.W-8 further deposed that during investigation, he also produced one witness Page No.# 10/21

Biresh Majhi, for recording his statement under Section 164 Cr.P.C before the

Magistrate. Witness Biresh Majhi had disclosed before the Magistrate the manner in

which the accused Dhiren Majhi had committed the murder of the deceased

Manikchand Sarma. After collection of postmortem report he submitted chargesheet

against the accused Dhiren Majhi @ Fekuwa under Section 396 of IPC vide Exhibit-7.

21. In his cross-examination, P.W-8 replied that in the rough sketch map vide

Exhibit-6, there is no mention about any cash box. In Exhibit-2(seizure list) there is no

mention about any blood stain found on the iron rod, piece of wood or the leather

belt. The said seized articles were not sent to Forensic Science Laboratory for their

examination. Except the statement made by Biresh Majhi, he did not find any other

evidence that showed the complicity of accused Dhiren Majhi @ Fekuwa.

22. After going through the evidence of the aforesaid witnesses, it reveals that

except P.W-7, no other witnesses had stated anything regarding involvement of the

accused/appellant in the instant case. Now the question comes how far the

evidence of P.W-7 Biresh Majhi is acceptable in the eye of law.

23. Admittedly, in the case in hand, no pardon was tendered by P.W-7 either

before any Magistrate during investigation or trial before the Sessions Judge. As such,

P.W-7 cannot be treated as accomplice/approver as per provision of 306 Cr.P.C

which reads as follows:-

"Section-306, tender of pardon to accomplice:- (1) With a view to obtaining

the evidence of any person supposed to have been directly or indirectly concerned

in or privy to an offence to which this section applies, the Chief Judicial Magistrate or Page No.# 11/21

a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial

of, the offence and the Magistrate of the first class inquiring into or trying the offence,

at any stage of the inquiry or trial, may 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 and to every other person concerned, whether as

principal or abettor, in the commission thereof."

24. Section-307 Cr.P.C says that:-

"Power to direct tender of pardon:- At any time after commitment of a case but

before judgment is passed, the Court to which the commitment is made may, with a

view to obtaining at the trial the evidence of any person supposed to have directly or

indirectly concerned in, or privy to, any such offence, tender a pardon on the same

condition to such person."

25. Section-308 Cr.P.C deals with trial of person not complying with conditions of

pardon:- (1) Where, in regard to a person who has accepted a tender of pardon

made under Section 306 or section 307, the Public Prosecutor certified that in his

opinion such person has, either by wilfully concealing anything essential or by giving

false evidence, not complied with the condition on which the tender was made,

such person may be tried for the offence in respect of which the pardon was so

tendered or for any other offence of which he appears to have been guilty in

connection with the same matter, and also for the offence of giving false evidence.

Provided that such person shall not be tried jointly with any of the other

accused:

Page No.# 12/21

Provided further that such person shall not be tried for the offence of giving false

evidence except with the sanction of the High Court, and nothing contained in

section 195 or section 340 shall apply to that offence.

26. Section-406 Cr.P.C deals with Irregularities which do not vitiate proceedings:- If

any Magistrate not empowered by law to do any of the following things, namely:-

(a) to issue a search-warrant under section 94;

(b) to order, under section 155, the police to investigate an offence;

(c) to hold an inquest under Section 176;

(d) to issue process under section 187, for the apprehension of a person within

his local jurisdiction who has committed an offence outside the limits of such

jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-

section (1) of section 190;

(f) to make over a case under sub-section (20 of section 192;

(g) to tender a pardon under section 306;

(h) to recall a case and try it himself under section 410; or

(i) to sell property under section 458 or section 459, erroneously in good faith

does that things, his proceedings shall not be set aside merely on the ground of his

not being so empowered."

27. Provisions of Section-132 of Indian Evidence Act says that a witness shall not be

excused from answering any question as to any matter relevant to the matter in issue Page No.# 13/21

in any suit or in any civil or criminal proceeding, upon the ground that the answer to

such question will criminate, or may tend directly or indirectly to criminate, such

witness, or that it will expose, or tend directly or indirectly to expose, such witness to a

penalty or forfeiture of any kind:

Proviso:- provided that no such answer, which a witness shall be compelled to

give, shall subject him to any arrest or prosecution, or be proved against him in any

criminal proceeding, except a prosecution for giving false evidence by such

answer.''

28. Section-306 of Cr.P.C confers power of tendering pardon to

accomplice/approver to C.J.M. or C.M.M. as well as to other Magistrates of 1 st Class

and while C.J.M./C.M.M. has been conferred with such power to tender pardon to

accomplice/approver at any stage of investigation, or inquiry into or the trial of the

offence, the other Magistrates of 1st Class have been conferred with such power at

any stage of inquiry or trial, only meaning thereby not at the stage of investigation.

29. In the case in hand, as we have already mentioned that no pardon was

tendered by P.W-7 before any Magistrate during investigation or trial and learned

Sessions Judge also did not take any initiative to implead him as accused alongwith

the present appeallant under Section 319 Cr.P.C. The evidence of P.W-7 has not

been challenged in the trial Court and no objection was raised by the

appellant/accused on his examination as P.W-7 who was cross-examined at length,

but there was no whisper from the side of the appellant/accused by not following the

provision under Section 306 Cr.P.C.

Page No.# 14/21

30. From the provisions of section 460 and 461 of the Code of Criminal Procedure,

it is crystal clear that legislature has listed the defects or irregularities in two different

categories, viz (i) curable which does not vitiate proceedings and the other (ii)

incurable which vitiates proceedings.

31. The provision of Section 460 of the Code of Criminal procedure clearly states

that by an irregularity as alleged by the appellant's counsel in the instant case, the

proceedings cannot be vitiated.

32. In the case of Hardeep Singh Vs. State of Punjab and others (2014) 3 SCC 92,

Hon'ble Supreme Court has held that:-

"power under Section 319 Cr.P.C is a discretionary and an extraordinary power which

is to be exercised sparingly only where strong and cogent circumstances of the case

warrants so".

33. The admissibility of evidence of accomplice/approver withness against co-

accused persons as well as his immunity from prosecution, in view of the provisions of

section 132 of Indian Evidence Act was upheld by the Hon'ble Apex Court in the

case of Laxmipath Choraria and Others Vs. State of Maharashtra, AIR 1968 SC 938,

where Ethyl Wong was examined as a first witness and her testimony was clearly that

of an accomplice. Considering the argument that Ethyl Wong could not have been

examined as a witness and it was the duty of the prosecution to try her jointly with the

appellants, for breach of which obligation, the trial was vitiated and even if the trial

was not vitiated as a whole, the testimony of Ethyl Wong must be excluded from

consideration, it was held that:-

Page No.# 15/21

" Though no pardon could be tendered to Ethyl Wong because the pertinent

provisions did not apply, yet, she could not be prevented from making a disclosure

and the prosecution was not bound to prosecute her, if her evidence was necessary

to break a smugglers ring. It was also held by the Apex Court that Ethyl Wong was a

competent witness under section 118 of the Indian Evidence Act and if the Custom

Authorities treated Ethyl Wong as a witness and produced her in Court, she was

bound to answer all question and could not be prosecuted for her answers".

34. The proviso to section 132 of Evidence Act provides a safeguard to such

witness "that no such answer, which the witness is compelled to give, shall expose him

to any arrest or prosecution, or can be proved against him in any criminal

proceedings, except a prosecution for giving false evidence by such answer".

35. In the case of R. Dineshkumar @ Deena Vs. State Represented by Inspector of

Police and others, (2015) 3 SCC (Cri) I, where after recording of the statement under

section 161 and 164 Cr.P.C. prosecution examined an accomplice as P.W. 64, it was

held that:-

"even if answers given by him are self incriminatory, apart from being evidence of the

guilt of others, he cannot be prosecuted on the basis of his deposition, in view of

proviso of section 132 of the Indian Evidence Act and holding the correctness of

order declining to summon him for trial as an additional accused under section 319

Cr.P.C. It was also held that in the light of provisions contained in proviso to section

132 of the Indian Evidence Act, deposition of P.W.64 cannot be treated as evidence

within the meaning of that expression occurring in section 319 Cr.P.C., in order to Page No.# 16/21

summon him as an accused to be tried along with appellants herein and other

accused already facing trial".

36. In the case of Chandran @ Manichan @ Maniyan and others Vs. State of

Kerala, (2011) 2 SCC (Cri) 551, challenging the admissibility of evidence of P.W. 53

accomplice/approver witness who had neither been granted pardon under section

306 Cr.P.C. nor was he prosecuted, it was held that:-

"evidence of such a witness subject to usual caution is admissible evidence and the

contention of inadmissibility of his evidence for want of pardon, was rejected being

of no consequence".

37. In the case of A Devendran Vs. State of Tamil Nadu 1998 SCC (Cri) 220, where

order granting pardon was held incurable for want of jurisdiction, the evidence of

approver of having participated in the commission of the offence, though not to the

same extent as the main accused, it was held "that the statement of such witness

cannot be said to be of exculpatory nature and on that score his evidence cannot

be excluded from consideration".

38. Reverting back to the present case, upon hearing the parties, perusal of

record and in view of the aforesaid legal propositions, we have come to the

conclusion that:-

(i) the irregularity if any committed in tendering pardon to an accused does not

vitiate the proceedings, in view of provisions of section 460 and 307 of Cr.P.C.

(ii) the prosecution may produce an accused as prosecution witness even if he was

not tendered pardon under section 306 Cr.P.C and his evidence may not be Page No.# 17/21

discarded for want of valid tender of pardon.

(iii) the evidence of an accused produced as prosecution witness is admissible in

evidence against the other accused person, even in absence of the pardon under

section 306 Cr.P.C., though required to be analyzed with caution, but it may not be

considered to be inadmissible. So the statement of P.W.-7 Biresh Majhi is admissible

piece of evidence against the accused/appellant.

(iv) the statement of an accused produced as prosecution witness will be admissible

piece of evidence against other accused but the same statement will not be treated

as evidence against him within the meaning of evidence under section 319 Cr.P.C.

Hence, P.W-7 should not be summoned for trial together with the accused/appellant

on the basis of his evidence as P.W.-7.

(v) the legislature has provided protection to accomplice/approver witness together

with other accused, under proviso of section 132 of Indian Evidence Act as well as

section 308 of Cr.P.C. So P.W-7 is duly protected against prosecution with

accused/appellant or separately, except that he may be prosecuted for giving false

evidence.

39. Before considering the impugned judgment on merit, inasmuch as the Sessions

Judge had relied on the evidence of P.W-7, let us find out the legal position about

the evidentiary value of accomplice/approver and its acceptability with or without

corroboration.

40. Though a conviction is not illegal merely because it proceeds on the

uncorroborated testimony of an approver, yet the universal practice is not to convict Page No.# 18/21

upon the testimony of an accomplice unless it is corroborated in material particulars.

The evidence of an approver does not differ from the evidence of any other witness

save in one particular aspect, namely, that the evidence of an accomplice is

regarded ab initio as open to grave suspicion. If the suspicion which attaches to the

evidence of an accomplice be not removed, that evidence should not be acted

upon unless corroborated in some material particulars; but if the suspicion attaching

to the accomplice's evidence be removed, then that evidence may be acted upon

even though uncorroborated, and the guilt of the accused may be established upon

the evidence alone.

41. In order to understand the correct meaning and application of this term, it is

desirable to mention Section 133 of the Indian Evidence Act, along with Illustration (b)

to Section 114 which read as under :-

"133. Accomplice.- An accomplice shall be a competent witness against an

accused person; and a conviction is not illegal merely because it proceeds upon the

uncorroborated testimony of an accomplice."

Illustration (b) to Section 114 "The Court may presume that an accomplice is unworthy

of credit, unless he is corroborated in material particulars."

42. While considering the validity of approver's testimony and tests of credibility,

Hon'ble Supreme Court in the case of Sarwan Singh S/o Rattan Singh vs. State of

Punjab AIR 1957 SC 637 has held as under:-

"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 Page No.# 19/21

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 particulars by other independent evidence."

43. In Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp) SCC 599 where the

prosecution had sought to prove its case by relying upon the evidence of the

approver, it was held that:-

" The approver is a competent witness but the position in law is fairly well settled that

on the uncorroborated testimony of the approver, it would be risky to base the

conviction, particularly, in respect of a serious charge like murder."

44. From the above, it transpires that once the evidence of the approver is found

to be not reliable, the worth of his evidence is lost and such evidence, even by

seeking corroboration, cannot be made the foundation of a conviction. The above

said ratio has been reaffirmed and reiterated by the Hon'ble Supreme Court in Suresh

Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80); Ramprasad v. State of

Maharashtra, : AIR 1999 SC 1969 : (1999 Cri LJ 2889) and Narayan Chetanram

Chaudhary v. State of Maharashtra, : (2000) 8 SCC 457.

45. The Hon'ble Supreme Court has in a series of cases expressed the same view

as regards accomplice evidence i.e. in the case of State of Bihar Vs. Basawan Singh

AIR 1958 SC 500; Hari Charan Kurmi v. State of Bihar AIR 1964 SC1184; Haroon Haji

Abdulla v. State of Maharashtra; (AIR 1968 SC 832) and Ravinder Singh v. State of

Haryana (1975) 3 SCC 742. In the case of Hari Charan Kurmi (supra) a five-Judge

Bench of the Hon'ble Supreme Court observed that the testimony of an accomplice Page No.# 20/21

is evidence under Section 3 of the Evidence Act and has to be dealt with as such.

The evidence is of a tainted character and as such is very weak; but, nevertheless, it is

evidence and may be acted upon, subject to the requirement which has now

become virtually a part of the law that it is corroborated in material particulars."

46. Reverting back to the present case, as we have already pointed out that P.W-

7 nowhere tendered pardon either before any Magistrate during investigation or

before the Trial Court. He was cited as witness in the chargesheet and accordingly,

he was examined as P.W-7 in the Court of Sessions. It is true that whatever he stated

before the Magistrate at the time of recording his statement under Section 164 Cr.P.C

and under Section 161 Cr.P.C. during investigation and before the trial Court are

identical to each other but there is no corroboration of the evidence of P.W-7 on the

material point. No other prosecution witness has supported the prosecution case by

stating that they have knowledge regarding presence of P.W-7 on the grocery shop

of the deceased along with the accused/appellant on the fateful night. It appears

from the evidence of P.W-7 that he used to stay along with his uncle and aunt but

none of them was examined by the Court of Sessions to prove the fact that whether,

P.W-7 was present in his house on the night of incident.

47. As far as the cause of death of the deceased is concerned, as per post-

mortem report, the deceased sustained 7(seven) numbers of injuries on his person. But

according to P.W-7, the accused/appellant hit the deceased with an iron rod thrice,

as a result of which he sustained injuries on his head and died on the spot. Under such

backdrop, relying on the evidence of P.W-7, the accused/appellant cannot be Page No.# 21/21

convicted without having corroborative evidence.

48. In the result, present appeal succeeds and is allowed. The judgment and order

of conviction dated 30.10.2017 passed by the learned Sessions Judge, Jorhat in

Sessions Case No. 150(J-J) of 2015 regarding the conviction of appellant is set aside

and the appellant is acquitted from the charges levelled against him. The

accused/appellant is in jail. He shall be released forthwith if not required to be

detained in connection with any other case.

49. LCR be returned back.

            JUDGE                             JUDGE




Comparing Assistant