Suresh Chandra Bahri Vs. State of Bihar [1994] INSC 366 (13 July 1994)
Faizan Uddin (J) Faizan Uddin (J) Anand, A.S. (J)
CITATION: 1994 AIR 2420 1995 SCC Supl. (1) 80 JT 1994 (4) 309 1994 SCALE (3)197
ACT:
HEAD NOTE:
The Judgment of the Court was delivered by FAIZAN UDDIN, J.- In Sessions Trial No. 77 of 1985 the appellants Suresh Bahri and Raj Pal Sharma were convicted under Section 302 of the Penal Code for causing murder of Urshia Bahri and her two children, namely, Richa Bahri and Saurabh Bahri. All the three appellants, Suresh Chandra Bahri, Gurbachan singh and Raj Pal Sharma were also convicted under Sections 302/120-B of the penal Code for the offence of criminal conspiracy to commit murder of Urshia Bahri and her two children named above. The appellants Suresh Chandra Bahri and Raj Pal Sharma were further convicted under Section 201 of the Penal Code for causing disappearance of evidence of murder of Saurabh Bahri and the appellants Suresh Chandra Bahri, Gurbachan Singh and Raj Pal Sharma were also convicted under Section 201 of the Penal Code for causing disappearance of evidence of murder of Urshia Bahri by the Additional Judicial Commissioner, anchi by judgment dated 27-7-1990 who awarded the sentence of death for the offences under Sections 302 and 302/120-B of the Penal Code and rigorous imprisonment to all the three appellants for a period of seven years for the offence under Section 201 of the Penal Code . The learned trial Judge made a reference to the High Court of Patna, Ranchi Bench under Section 366 of the Code of Criminal Procedure for confirmation of the sentence of death and at the same time the three appellants also preferred separate Criminal Appeal Nos. 142, 143 and 152 of 1990 challenging their convictions under Sections 302/120B and 201 of the IPC . The High Court of Patna (Ranchi Bench) dismissed the three appeals preferred by the three appellants affirming the sentences awarded to them and accepted the death reference by judgment dated 16-12-1991 against which these three appeals by leave of this Court have been preferred. Since all these appeals arise out of the common judgment of the High Court, they are being disposed of together.
2.It may be pointed out that along with the above named three appellants three other accused, namely, Y.D. Arya, the maternal uncle of the appellant Suresh Bahri, Smt Santosh Bahri, the mother of the appellant Suresh Bahri and one Mohd. Suhail, truck driver, were also charged and tried as co-accused for the offences punishable under Sections 302/120-B and 201 of the Penal Code , out they were acquitted by the learned trial Judge giving them benefit of doubt. No appeals against their acquittal are preferred.
3.Admittedly, at the relevant time the appellant Suresh Chandra Bahri (hereinafter referred to as Suresh Bahri) resided along with his deceased wife Urshia Bahri at South Ranchi, House No. 936 on the Station Road within the jurisdiction of Chutia Police Station. He also had a farm and house attached thereto at Dulli, a place situated at a distance of about 40 kilometres from Ranchi towards Khelari within the jurisdiction of Police Station Khelari, District Ranchi. Suresh Bahri was married to the deceased Urshia Bahri in 1971 and out of their wedlock deceased Kumari Richa Bahri and Saurabh Bahri were born.Kmari Richa Bahri was a student of Class VI in Father Agnel School, New 90 Delhi in the year 1983 while Saurabh Bahri was a student of Class IV in the same school. The acquitted accused Smt Santosh Bahri is the mother of the appellant Suresh Bahri and the acquitted accused Y.D. Arya is the maternal uncle of appellant Suresh Bahri and real brother of Smt Santosh Bahri. There is no dispute that the parents of deceased Urshia Bahri were living in America having settled down there and the first informant of the incident Bineet Singh Sarang, PW 69, the brother of the deceased Urshia Bahri was employed as an Engineer in Libya. The deceased Urshia used to write letters from time to time to her parents in America and also used to talk to them on telephone.
4.This case has a chequered story and the prosecution case unfolds a pathetic, chilling and sinister phenomenon whereby the three innocent lives who were the heirs of the properties of appellant Suresh Bahri, were eliminated from this worldly scene and consigned to their heavenly abode by putting an untimely end to their innocent lives simply in a bid to avoid interference and intermeddling in the property belonging to the appellant Suresh Bahri and thwart the accomplishment and foil the wishes of Urshia of migrating to America with her children with the sale proceeds of Ranchi house and settle down at America.
5.The prosecution case is that the parents of deceased Urshia Bahri have settled down in America and their deceased daughter Urshia used to write letters to her parents from time to time but they did not receive any letters from Urshia in America for quite some time and on the contrary they received two letters in America from the appellant Suresh Bahri, one dated 29-10-1983 and another dated 3-11- 1983 which are marked Exts. 23/6 and 23/7, intimating them that henceforth his wife Urshia will not be in a position to address to them any letter as she was engaged in urgent work and, therefore, in her place he himself would be writing letters to them. This gave rise to a serious suspicion in the mind of the parents of deceased Urshia and they suspected some foul play. Consequently, the parents of Urshia directed their son Bineet Singh Sarang, PW 69, working in Libya to proceed to India with a view to find out the welfare and whereabouts of Urshia and her children.
6.Further prosecution case is that acting on the advice of his parents Bineet Singh Sarang (hereinafter referred to as Bineet) landed in India on 16-1-1984 and reached the house of his brother-in-law, the appellant Suresh at Delhi. But to his utter surprise he found the house locked. Bineet was informed by some of the tenants living on the first floor of the house that the acquitted accused Smt Santosh Bahri the mother of appellant Suresh would be coming to Delhi on 21-1- 1984. Finding no one in Delhi house Bineet visited the business premises of the appellant Suresh at Bajaj House, Nehru Place, New Delhi, where he met one Dhar, an employee of appellant Suresh who informed Bineet that the appellant Suresh was at Ranchi. In the meanwhile Smt Santosh, mother of appellant Suresh returned to Delhi and when Bineet met her and enquired about the whereabouts of his sister and her children, she informed him that they had gone to Ranchi.
Bineet, therefore, rushed to Ranchi on 25-1-1984 where he met the appellant Gurbachan Singh, Proprietor of Singh Furniture Works, Main Road, Ranchi as telephone number of Gurbachan Singh was found recorded in the records kept in the business premises of appellant Suresh at Delhi as his contact address of Ranchi. Bineet enquired from the appellant Gurbachan Singh 91 the whereabouts of his sister and her children. Gurbachan Singh took Bineet to the farmhouse of appellant Suresh at Dhulli but there they found neither Urshia Bahri nor her children, namely, Richa and Saurabh nor the appellant Suresh. However, at Dhulli farm Bineet, PW 69, was informed by Gopi Mistry, PW 29, the caretaker of the farmhouse of appellant Suresh that he had not seen Urshia for the last about 5-6 months and further he disclosed that the appellant Suresh had visited Dhulli farm in mid-December along with his two children and one unknown person and that during that period the appellant Gurbachan Singh had also visited the said farm.
7.When Bineet did not find the appellant Suresh, his sister Urshia and her children at Dhulli farm also he again came back to Station Road, Ranchi House No. 936 of the appellant Suresh but again he did not find anyone there. He, however, met one Murari, PW 1, the next door neighbour of House No. 936 of appellant Suresh situated at the Station Road, Ranchi, who used to keep the keys of the house of accused/appellant Suresh. On enquiry by the informant Bineet, Murari, PW 1, told him that he had seen Urshia Bahri at the house of appellant Suresh Bahri on 11-10-1983 but the children of Urshia Bahri had not come to the Ranchi house.
The witness Murari, PW 1, further told him that in the morning of 12-10-1983 the appellant Suresh Bahri told him that Urshia Bahri had left Ranchi for Delhi by aeroplane that very morning and Suresh remained at Ranchi till end of October 1983. Witness Murari Lal also told him that thereafter he did not see Urshia and her two children at Ranchi. The informant Bineet also met one B.N. Mishra, PW 2, another neighbour of appellant Suresh at Ranchi who told him that his sister Urshia Bahri was known to him because he was negotiating with her for purchase of the House No. 936, Station Road, Ranchi and the sale would have completed but for the sudden disappearance of Urshia Bahri, the sale could not take place. B.N. Mishra, PW 2, also told him that he had gone to the house of Suresh Bahri at Ranchi in the evening of 11-10-1983 to meet Urshia Bahri but he did not find her there. He, however, met Suresh Bahri there who was sitting in the verandah of the house and there was no electric light in the house of Suresh Bahri though there was light in the other neighbouring houses. The witness Mishra also told to Bineet that when he was ascending the verandah of the house the appellant Suresh Bahri caught hold of him and led him away from the house saying that Urshia had gone to the house of the appellant Gurbachan Singh to a party and she will proceed to Delhi direct from the house of Gurbachan Singh by next morning flight.
8.Later when the informant Bineet, PW 69 again had a talk with the witness Murari, PW 1 about the whereabouts of his sister Urshia and her children, it is said Murari told him that there was rumour that his sister Urshia has been murdered. Thereafter, Bineet PW 69 went to the Police Station Chutia where he made a written report that his sister and her children were missing. On the basis of this report P.S. Case No. 27/84 was registered at Chutia Police Station. Bineet then left Ranchi on 26-1-1984 and reached Delhi same day by plane and went to the house of Urshia Bahri at C-70, South Extension-II, New Delhi where he met the acquitted accused Mrs Santosh Bahri and enquired from her the whereabouts of his sister Urshia. It is said that Mrs Santosh Bahri told Bineet that she had no information about Urshia. Bineet further gathered information that Urshia was never seen at New Delhi after 30-9-1983 though 92 the appellant Suresh had come to New Delhi in the month of December 1983. He also learnt that in December 1983 the appellant Suresh Bahri had left Delhi along with his mother Mrs Santosh Bahri and the two children Richa and Saurabh in Ambassador Car No. DLE 3179 and the appellant Suresh Bahri came back to Delhi in January 1984. When appellant Suresh Bahri learnt about the arrival of the informant Bineet at New Delhi he disappeared.
9.Further prosecution case is that sometime in the month of September 1983 the appellant Suresh Bahri had sent his associate appellant Raj Pal Sharma to Ranchi who stayed in the Station Road House No. 936 at Ranchi but when the appellant Suresh Bahri along with his deceased wife Urshia arrived at Ranchi on 1-10-1983 the appellant Raj Pal Sharma left the house. Deceased Urshia Bahri had come to Ranchi to sell the said House No. 936 and had contacted several persons in that connection including Murari Lal, PW 1, Badri Narayan Mishra, PW 2 and Laxmi Narayan, PW 21 who in fact had agreed to purchase the said house and the deal was almost settled and the sale deed was likely to be executed very soon. It is said that as the appellant Suresh Bahri was not agreeable for sale of the said house, Suresh Bahri and the appellant Raj Pal Sharma murdered her in the night of 11-10-1983 in a room of the said house. The head of Urshia Bahri was truncated and severed from her body. At or about the same time the appellant Gurbachan Singh also arrived along with his servant Ram Sagar Vishwakarma who was also arrayed as an accused but later turned approver and was examined as PW 3. It is said that the headless body of Urshia Bahri was wrapped in a blanket and saree piece and tied with rope was dumped in a sceptic tank situated within the compound of the said house. Later on in the morning of 13-10-1983 it is said that the appellant Raj Pal Sharma and Suresh Bahri took the head of Urshia Bahri and threw the same under a bush in the forest on the Ranchi-Patratru Road.
It is also alleged that sometime in the month of January 1984 the appellant Suresh Bahri and Gurbachan Singh managed to take out the body of Urshia from the sceptic tank and took the body in Truck No. BHM 5879 driven by the acquitted accused Mohd. Suhail and threw it in a dumping pit known as Madhukam dump.
10.Further prosecution case with regard to the murder of the two children Richa Bahri and Saurabh Bahri is that they were studying in Father Agnel School, South Extension-II, New Delhi. Saurabh was a student of Class IV and Richa was a student of Class VI in the said school. It is said that on 5-12-1983 the appellant Suresh Bahri, the father of the two children filed two separate applications before the Principal of the school for withdrawal of both the children from the school. These applications are Exts. 40 and 40/1.
Both the children were, thus, withdrawn from the school on 5-12-1983. It is said that the appellant Suresh Bahri left his New Delhi House No. C-70 for going to Ranchi by his Ambassador Car No. DLE 3179 along with his two children, his mother, acquitted accused Mrs Santosh Bahri, one maidservant and the appellant Raj Pal Sharma. On his way to Ranchi, Suresh Bahri dropped his mother Mrs Santosh Bahri and a maidservant at Basti in Uttar Pradesh and having stopovers at Varanasi (Uttar Pradesh) and Daltonganj (Bihar) he reached his Dhulli farmhouse on 16-12-1983 where he along with the appellant Raj Pal Sharma and the two children stayed on 16-12-1983 and 17-12-1983. During the aforesaid stay the appellant Gurbachan Singh also visited Dhulli farmhouse. It is 93 said that a few days earlier appellant Gurbachan Singh had sent some cots and chairs at the Dhulli farmhouse and according to the prosecution in the intervening night of 17- 12-1983 and 18-12-1983 the appellants Suresh Bahri and Raj Pal Sharma committed the murder of Richa Bahri and Saurabh Bahri in Dhulli farmhouse of the appellant Suresh Bahri.
They took the bodies of Richa Bahri and Saurabh Bahri in the Ambassador Car No. DLE 3179 to Varanasi where they threw their dead bodies in Varuna River, a tributary of Ganges.
11.On 20-12-1983 at about 8.30 a.m. dead body of a boy aged about 12 years was found floating at the bank of River Varuna near the bridge of Village Puratepur which was noticed by one Hiralal, PW 36. The naked body was packed in a gunny bag. Report about it Ext. 11 was made by Hiralal, PW 36 in the Police Station Sarnath where P.S. Case No. 100/83 was registered. Atma Nand Singh, PW 46, Police Officer, Sarnath on receiving the report reached at the bank of Varuna River, inspected the dead body and having found marks of injury on the neck of the dead body prepared inquest report in the presence of witnesses. The gunny bag in which the dead body was packed was seized as per seizure memo Ext. 5/8. He also received information that one gadda, one quilt and one bedsheet were lying at the dumping place of Panchkoshi-Varanasi Road. The Police Officer, Atma Nand Singh, PW 46 seized the said articles by seizure memo Ext. 5/9 as also two bedsheets which were also found on the same road near the Forest Department Nursery vide seizure memo Ext. 5/ 10.
12.Dr B.K. Bhatnagar, PW 27, District Hospital, Varanasi performed an autopsy on the dead body of the boy on 21-12- 1983 at about 4.15 p.m. He found that it was a dead body of a male child aged about 12 years. The doctor noticed two incised wounds in the neck. The trachea and blood vessels and larynx were cut. There was also a contusion on the chest. There were various other injuries found on his person which were ante-mortem in nature caused by sharp object.
13.Police Officer, Sarnath, Atma Nand Singh, PW 46 got the photographs of the dead body taken by the photographer Ashok Kumar PW 48 and published the same in newspapers to collect information about the identity of the dead child but as nobody claimed the dead body he disposed of the same after preparing a panchnama to that effect. Consequently, the Police Officer, Sarnath closed the investigation of P.S. Case No. 100/83 by making a final report.
14.By a notification dated 18-6-1984 the Government of India, Ministry of Home Affairs entrusted the investigation of Chutia Police Case No. 27 to the CBI with the consent of the Government of Bihar. The CBI on the basis of the written report dated 1-2-1984 made by Bineet, PW 69 registered the case No. RC-2/84 on 28-6-1984 under Section 120-B read with Sections 302/364/201 of the Penal Code.
Shri Madanlal, PW 85, Senior Inspector of CBI, New Delhi was the Investigating Officer of this case. By another notification dated 14-9-1984 the Central Government, Ministry of Home Affairs entrusted the investigation of Sarnath P.S. Case No. 100/83 also to the CBI with the consent of the Government of Uttar Pradesh and the investigation of this case was entrusted to the CBI Inspector Rajendra Singh, PW 82.
15.The Investigating Officers Madanlal PW 85 and Rajendra Singh PW 82 seized the entire records of Chutia P.S. Case No. 27/84 as well as the records of Samath P.S. Case No. 100/83. Both these Investigating Officers visited and 94 inspected the Ranchi House No. 936 of appellant Suresh Bahri situated at Station Road, along with some experts where murder of Urshia Bahri is said to have been committed. A steel trunk containing bloodstains and some scrapings of the bloodstains of the wall of the room were seized which were examined by the Serologist and found it to be stained with human blood. A sketch map of the alleged place of occurrence was prepared. The photographs of the dead body taken by the photographer, Ashok Kumar, PW 48 in Sarnath P.S. Case No. 100/83 were identified by the witnesses who had seen Saurabh Bahri during his lifetime and stated that the photographs were of Saurabh Bahri, indicating that it was the body of Saurabh who was murdered. The articles gadda, quilt and bedsheets seized from Panchkoshi Road, Varanasi were also identified as belonging to the appellant Suresh Bahri.
16.The appellant Gurbachan Singh was already arrested earlier by Rajeshwar Singh (PW 59), In-charge, Police Station Chutia (Ranchi) before 22-4-1984 when charge-sheet by Chutia Police was filed, though further investigation continued by CBI, in pursuance of notification issued by the Government of India. During the course of investigation, Rajeshwar Singh, PW 59, interrogated Gurbachan Singh who made disclosure statement that he had thrown the dead body of Urshia Bahri in Madhukam dump known as "Khad gaddha". On digging of the said dumping pit no dead body was recovered but a piece of blanket, saree and rope were recovered from there which were seized as per seizure memo Ext. 5/12.
These articles were put on the test identification parade on 6-3-1984 in which the witnesses Murari Lal Sharma PW 1 and B.N. Mishra PW 2 had identified the said articles of piece of blanket, saree and rope to be the materials used in wrapping the dead body of Urshia Bahri on 11-10-1983.
17.The appellant Suresh Bahri was absconding but he was arrested on 31-7-1984 at Delhi. The appellant Raj Pal Sharma was arrested at Delhi by CBI Officer on 8-8-1984. He was produced before the Metropolitan Magistrate, New Delhi on 8-8-1984 and police remand for 10 days was obtained. On 12-8-1984 while in police custody, Raj Pal Sharma made a disclosure statement, Ext. 32 to the CBI Investigating Officer Madanlal, PW 85. In pursuance of the disclosure statement the appellant Raj Pal Sharma took the Investigating Officer and witnesses to the said forest on Ranchi-Patratru Road. The skull, some hairs and pieces of cotton were recovered from the bushes of the forest at the instance of the appellant Raj Pal Sharma which were seized as per seizure memo Ext. 33 dated 12-8-1984. The said skull was sent to Dr Harish Chander, Director, Medico-Legal Institute and Head of the Forensic Science, Gandhi Medical College, Bhopal for examination. Dr Harish along with some other experts examined the said skull and found that it was of a female aged about 33 years with a margin of plus minus five years on either side. Dr Harish for want of certain information could not definitely opine that the said skull was that of Urshia Bahri.
18.The Investigating Officers detected that one Ram Sagar Vishwakarma, an employee of the appellant Gurbachan Singh was also associated in hatching the conspiracy to commit the murder of Urshia and her two children. They, therefore, arrested Ram Sagar Vishwakarma on 3-12-1984 and produced him before the Chief Judicial Magistrate, Ranchi on 4-12-1984 who remanded him 95 to police custody till 17-12-1984. On 17-12-1984 Ram Sagar Vishwakarma filed a petition Ext. 3 before the Chief Judicial Magistrate for recording his confessional statement. The Judicial Magistrate, Shri Bhuneshwar Ram PW 76 recorded the confessional statement Ext. 28/1 under Section 164 Criminal Procedure Code of Ram Sagar Vishwakarma on 19-12-1984, 20-12-1984 and 21-12-1984. Thereafter on 8-1-1985 Ram Sagar Vishwakarma made a petition to tile Chief Judicial Magistrate, Ranchi that he may be granted pardon and he be made a prosecution witness. The Chief Judicial Magistrate granted pardon to Ram Sagar Vishwakarma by order dated 9-1-1985 and accepted him as an approver and recorded the statement of Ram Sagar Vishwakarma on 30-1-1986 as approver under Section 306 of the Code of Criminal Procedure . Thereafter, Ram Sagar Vishwakarma was granted bail by the order of the High Court dated 13-1-1987 and he was released from custody on 21-1-1987.
19.All the accused persons were charged and tried as said in the earlier part of this judgment. All the accused persons including the three appellants denied their guilt and pleaded false implication. The appellant Suresh Bahri in his statement under Section 313 CrPC stated that his wife Urshia Bahri and his two children were not murdered at all and that they were still alive. The appellants took the defence that the prosecution has failed to prove factum of death of Urshia Bahri and her two children and that in any case the prosecution has failed to bring home the guilt against any of the appellants for alleged murders and they have been implicated only on the basis of suspicion.
20.On evaluation of the evidence adduced by the prosecution and relying on various circumstances found to be established against the three appellants which according to the learned trial Judge are of conclusive nature and consistent only with the hypothesis of the guilt of the appellants convicted and sentenced them as said above. The said conclusions and findings found favour with the High Court also in appeals and, therefore, the High Court dismissed all the three appeals affirming the conviction and sentence awarded by the trial court.
21.At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention.
In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. In the present case before us the prosecution has adduced evidence that the appellant Suresh Bahri had strong motive to eliminate his wife and two children from his way which evidence has been accepted by both the courts below. We shall, therefore, have a look at the said evidence to see whether the two courts are justified or not in taking the view that the appellant Suresh Bahri had a strong motive to hatch a conspiracy with the 96 assistance of the other two appellants, namely, Raj Pal Sharma and Gurbachan Singh to commit the murder of his wife and the two children.
22.According to the prosecution the motive behind the murder of Urshia Bahri and her two children is said to be the strained relations and differences between the deceased Urshia and her husband, the appellant Suresh Bahri and her mother-in-law, Smt Santosh Bahri (since acquitted) which had developed on account of the firm determination of the deceased Urshia Bahri to dispose of House No. 936 situated on the Station Road, Ranchi and migrate along with her two children to America where her parents were already settled because her life and that of her two children had become miserable due to the mental and physical tortures caused by Suresh Bahri, his mother Santosh and maternal uncle Y.D. Arya (since acquitted). It is said that the acquitted accused Smt Santosh Bahri had started causing harassment to her daughter-in-law the deceased Urshia in diverse ways after her marriage with the appellant Suresh who maintained a quiescence and never intervened in the maltreatment meted out to her. It is said that the systematic course of ill- treatment meted out to Urshia was communicated by her to some of her relatives and parents orally and through letters. Admittedly at the time when Urshia was wedded to the appellant Suresh, his maternal uncle Y.D. Arya (since acquitted) was also living with Suresh and his mother in the same house and used to interfere not only in the family matters but in the business affairs also by reason of which Suresh had suffered great setback and loss to his property and business assets at Calcutta. Consequently Urshia had developed a dislike towards Y.D. Arya and ultimately Arya was made to leave Delhi house at the instance of the deceased. It is also said that the acquitted accused Smt Santosh Bahri mother-in-law of deceased Urshia had no love and affection either for Urshia or for her two children, namely, Richa and Saurabh and for that reason she never kept the children with her. According to the prosecution it is in this background that the deceased Urshia was forced to take the decision in her own interest and to fulfil her dreams of a better future of her two children, to dispose of the Ranchi house and migrate to America along with her two children with the sale proceeds of the property and settle down there. But the idea of migration with the sale proceeds of the house entertained by late Urshia could not be cherished by appellant Suresh Bahri and, therefore, the appellant Suresh Bahri hatched a conspiracy with the two convicted associates Raj Pal Sharma and Sardar Gurbachan Singh to eliminate his wife and two children from his way once for all and to achieve this objective all the three appellants are said to have systematically executed their scheme in a planned way in the commission of murders of Urshia and her two children on two different dates at Ranchi and Dhulli farmhouse of appellant Suresh Bahri. This part of the prosecution story is said to be established by the documentary as well as the oral evidence which we shall refer to briefly hereinafter.
23.Murarilal Sharma PW 1 is the next door neighbour of the appellant Suresh Bahri, his house-cum-grocery shop being just adjacent to the Station Road house of Suresh at Ranchi.
He deposed in para 3 of his deposition that the appellant Suresh Bahri used to tell him that there were frequent family squabbles between him and his wife deceased Urshia and his mother Smt Santosh Bahri on account of his maternal uncle Y.D. Arya and the insistence of 97 his wife for sale of their house at Ranchi and go to America with her children with the sale proceeds. The witness also deposed that Suresh Bahri told him that in fact he did not want to dispose of the said house and was very much disturbed on account of the frequent quarrels. The witness also stated that Suresh had also told him that his children were spoilt due to the encouragement by Urshia and they had no respect for his mother by reason of which he was fed up with this world and most often thought to put an end of the entire family along with his own life.
24.Dinanath Sharma, PW 6 is the witness who has been the classmate of the appellant Suresh Bahri and the entire family of Suresh Bahri is known to him. He was on visiting terms also. This witness has also deposed that the relations between the appellant Suresh Bahri and his deceased wife Urshia were strained since after about two years of their marriage. He deposed that as and when he met Urshia she always complained against the behaviour of Suresh towards her. Almost similar is the statement of Moolchand PW 24 who worked as mali at the Ranchi house of appellant Suresh. Smt Surina Narula PW 66 is the sister, Bineet Singh Sarang PW 69 is the brother and informant and Smt Rohtas Sarang PW 79 is the mother of the deceased Urshia Bahri.
They all deposed that the relations between the appellant Suresh Bahri and his deceased wife Urshia were not cordial but strained as Urshia used to complain against her husband, mother-in-law and the maternal uncle of her husband.
According to the evidence of Badri Narayan Mishra PW 2 through whom Laxmi Narayan PW 21 had negotiated for purchase of the Ranchi house, it turns out that the deal was almost finalised for purchase of the house by him but for the sudden disappearance of Smt Urshia on 11-10-1983, the same could not take place.
25.Besides the aforementioned oral evidence the prosecution has produced documentary evidence also to support the allegation that the relations of the appellant Suresh, his mother and maternal uncle were not cordial with the deceased Urshia Babri and that the deceased Urshia was determined to sell out the Ranchi house and migrate to America with her children and the sale proceeds against the wishes of the appellant Suresh Bahri and his mother. The trial court has elaborately dealt with the documentary evidence in this behalf. The High Court has also in paragraphs 25 to 28 of its judgment not only discussed but has reproduced various letters written by deceased Urshia to her parents in America to show the sufferings and state of mind of Urshia on account of the behaviour meted out to her by her husband Suresh Bahri and her mother-in-law and her determination to sell out the house and shift to America and arrived at the conclusion that the appellant Suresh had a strong motive to commit the murder of his wife Urshia and her two children in conspiracy with the other two appellants. It is, therefore, not necessary for us to discuss the entire evidence again which has been evaluated by the two courts below. On a close scrutiny of the evidence on this point we find ourselves in complete agreement with the view expressed by the learned trial Judge and the High Court. The argument of the learned counsel for the appellant that even if it is accepted that there were strained relations and serious differences between the deceased Urshia and the appellant Suresh Bahri, his mother Santosh and maternal uncle Y.D. Arya, yet Suresh would not go to the extent of hatching a conspiracy and actually killing his wife and the two children does not appeal to 98 us and we are not at all convinced by this argument because different persons react differently under given circumstances. It is difficult to lay down a hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compelled him to commit a particular crime. There may be persons who under frustration and on mere trifling domestic matters take decision to commit a serious crime, while others may approach it with cool and calm mind and think more dispassionately before taking any hazardous and serious steps. It all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof. In the present case, it appears that the appellant Suresh Bahri was under the misguided apprehension that the murder of his wife Urshia alone would not be safe as the survival of the two children may ultimately expose him of the murder of his wife Urshia and therefore, he was left with no option but to wipe of the entire family and clear the deck for smooth sail in life as a freelancer which to his misfortune proved to be too expensive as he had not only to pay the price with his own life but also the lives of his two associates who helped him actively in the commission of the crime in question.
26.Learned Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under Section 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants.
It is no doubt true that the underlying object behind Section 313 CrPC is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiates the trial unless it is shown that some prejudice was caused to him. In Bejoy Chand Patra v. State of W.B. 1 this Court took the view that it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342 of the Criminal Procedure Code (now Section 313 in the new Code) but he must also show that such examination has materially prejudiced him. The same view was again reiterated by this Court in Rama 1 1952 Cri LJ 644: AIR 1952 SC 105 : 1952 SCR 202 99 Shankar Singh v. State of W.B.2 In the present case before us it may be noted that no such point was raised and no such objection seems to have been advanced either before the trial court or the High Court and it is being raised for the first time before this Court which appears to us to be an afterthought. Secondly, learned counsel appearing for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused/appellant Suresh Bahri on the point of his motive for the crime. No material was also placed before us to show as to what and in what manner the prejudice, if any, was caused to the appellants or any of them.
27.Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a reference may be made to Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under Section 313 CrPC . The sum and substance of these questions is that from the prosecution evidence it turns out that the acquitted accused Y.D. Arya the maternal uncle of the appellant Suresh Bahri was living in a portion of the upper storey of his house at Delhi. He with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder.
In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf therefore has no merit.
28.Learned counsel for the appellants strenuously urged that there was utter non-compliance of clauses (a) and (b) of sub-section (4) of Section 306 of the Code of Criminal Procedure inasmuch as that after recording the statement of the approver Ram Sagar Vishwakarma under Section 164 of the Code of Criminal Procedure and after tendering him pardon, the approver was not examined as witness by the learned Magistrate who took cognizance of the offence, as required by clause (a) of sub-section (4) of Section 306 CrPC but he was examined as a witness by the committal Magistrate only after the Court of Sessions remitted the case back to the committal Magistrate for examining the approver as a witness in accordance with Section 306(4)(a) CrPC. Secondly clause (b) of Section 306(4) mandates that the approver shall be detained in custody until the termination of the trial unless he is already on bail but contrary to that the approver was enlarged on bail after he was granted pardon and as such the trial was vitiated. Reliance was placed on the decisions in Kalu Khoda 2 AIR 1962 SC 1239, para 14: (1962) 2 Cri LJ 296: 1962 Supp (1) SCR 49 100 V. State3; Ramasamy, Re4 and Uravakonda Vijayaraj Paul v.
State5 in support of his above submissions.
29. Section 306 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') relates to the tender of pardon to an accomplice and the procedure of committing the case for trial. It would be appropriate to reproduce Section 306 of the Code which reads as under:
"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 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.
(2) This section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3)Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5)Where a person has accepted a tender of pardon made under subsection (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
3 AIR 1962 Guj 283, FB :(1962) 2 Cri U 604: (1962) 3 Guj LR 654 4 1976 Cri LJ 770 : 1976 Mad LJ (Cri) 111: 1976 Mad LW (Cri) 36 (Mad) 6 1986 Cri LJ 2104: (1986) 1 Andh LT 364: (1986) 2 APLJ (HC) 19 (AP) 101 (ii)to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
30. A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) of clause (a) of subsection (5), as the case may be.
Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of sub- section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages.
The breach of the provisions contained in clause (a) of sub- section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial.
It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non- compliance on the trial? 102
31. It may be noted that the approver Ram Sagar Vishwakarma hereinafter referred to as Ram Sagar was arrested on 3-12- 1984 and was under police remand till 17-12-1984. He made an application Ext. 3 on 17-12-1984 for recording his confessional statement under Section 164 of the Code and his confessional statement Ext. 28/1 was recorded on 19-12-1984 to 21-12-1984 by the Magistrate Shri Bhuneshwar Nath PW 76.
Thereafter on 7-1-1985 CBI Investigating Officer made an application that Ram Sagar be granted pardon and his statement be recorded under Section 306 of the Code. The approver Ram Sagar also made an application Ext.1 for grant of pardon on 8-1-1985 stating that he wanted to become a prosecution witness and make disclosure of true facts of the case. Learned Chief Judicial Magistrate tendered pardon to Ram Sagar by his order dated 9-1-1985 stating that he was directly concerned with the commission of the crime relating to the offence of murders in question. The learned Chief Judicial Magistrate committed the case to the Court of Session for trial without examining the approver Ram Sagar as a witness in his court. But the learned Additional Judicial Commissioner, Ranchi to whom the case was committed for trial noticed this defect that the approver was not examined as a witness in the Court of Magistrate taking cognizance of the offence and committed him for trial before him and, therefore, learned Additional Judicial Commissioner remanded the case back to the Court of Chief Judicial Magistrate with a direction to record the statement of the approver Ram Sagar as required by clause (a) of sub-section (4) of Section 306 of the Code. After receiving the records with the aforesaid directions learned Magistrate examined the approver Ram Sagar as a witness on 31-1-1986 and then again committed him for trial to the Court of Additional Commissioner. Thus in any case the provisions of clause (a) of sub-section (4) of Section 306 were ultimately complied with. That being so, with no stretch of any amount of arguments can it be said that any prejudice much less in disadvantage was caused to any of the accused/appellants.
The order of the Additional Judicial Commissioner remanding the case back to the Court of Magistrate directing him to examine the approver as a witness was challenged by the accused persons in the High Court of Patna, Ranchi Bench but the High Court maintained the order of the Additional Judicial Commissioner in Criminal Revision No. 2347 of 1985.
This order of the High Court was not challenged further by any of the appellants and same attained finality and, therefore, it cannot be questioned now.
32. It may be noticed that similar question arose for consideration of Madras High Court in Ramasamy, Re4 and relied on by the learned counsel for appellants, wherein the learned Magistrate had committed the case for trial to the Court of Sessions without examining the approver as a witness in his court before committing the case. But Pandian, J. (as he then was) took the view that the action of the Magistrate in committing the case to the Court of Session without examining the approver was a clear violation of the mandatory provisions of Section 306 of sub-sections (4) and (5) of the new Code and as such he committed irregularity. The learned Judge, therefore, quashed the committal order and directed the Magistrate to comply with the provisions of Section 306 of the Code by examining the approver and then again pass fresh order of committal, if called for. In almost similar circumstances similar view 103 was taken by the High Court of Andhra Pradesh in the case of U. Vijayaraj5 and in this case also the Magistrate was directed to examine the approver as required by sub-section (4) of Section 306 of the Code by giving an opportunity to the accused to cross-examine the approver and then pass the appropriate orders in accordance with law.
33. In Kalu Khoda3 similar question came for consideration before the Full Bench of the Gujarat High Court wherein the committing Magistrate committed the accused to the Court of Session without examining the person who had been tendered pardon and who had accepted the same. The Full Bench set aside the committal order and directed the committing Magistrate to hold a fresh enquiry in accordance with law.
The ultimate result of the aforesaid discussion is that if the said defect of not examining the approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an accused person and therefore the trial cannot be said to be vitiated on that account. Since in the present case, as noticed above the defect was rectified, the argument that the trial was vitiated cannot be accepted.
34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub- section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No.
4735 of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar.
104 35.Learned counsel for the appellants next contended that the statement Ext. 28/1 of the co-accused Ram Sagar Vishwakarma who turned as an approver recorded under Section 164 of the Code after about 16 days of his arrest cannot be said to be voluntary confession particularly when the Magistrate did not inform him that he would not be remanded to police custody after the statement. It was further submitted that in any case the statement of the approver made under Section 164 was made under constant fear and with a promise of immunity because he was given to understand by the CBI officials that he would be set at liberty in case he made the confessional statement.
36.After the perusal of the statement of Ram Sagar PW 3 as well as the statement of learned Magistrate Shri Bhuneshwar Ram PW 76 who recorded the statement of Ram Sagar under Section 164 of the Code we find that there is absolutely no substance in these submissions.
37.Ram Sagar Vishwakarma was arrested on 3-12-1984. A perusal of the statement of Ram Sagar made under Section 164 of the Code will go to show that he himself made an application Ext. 3 before the Magistrate requesting him to record his confessional statement and according to Ram Sagar it was at his instance and request that his confessional statement Ext. 28/1 was recorded by the Magistrate PW 76 from 19-12-1984 to 21-12-1984 in which he had confessed the guilt. Ram Sagar PW 3 stated that the Magistrate had told him that it was his own choice and volition to make or not to make the confessional statement and that he made the statement on his free will. He denied the suggestion that while making the statement under Section 164 any police officer was present there and deposed that he was not given any assurance by the CBI officials that if he would become approver he would be set at liberty or discharged from the case. He, however, stated that he himself thought that if he made correct statement before the Magistrate he may be set at liberty. He asserted that he made a true disclosure of the circumstances relating to the offence before the Magistrate in his statement under Section 164 irrespective of the fact whether he would be released or not. Ram Sagar was subjected to a very lengthy and searching cross- examination in this regard but nothing could be elicited from him to suggest that he did not make true disclosure of the facts of the case or that he made the confession under threat or pressure or on any assurances from the prosecuting agency or from any official in authority. The statement that he made gives an impression that it was made on his own volition which fact is further fortified from the statement of the Judicial Magistrate who recorded his statement.
38.The Judicial Magistrate, Ranchi, Shri Bhuneshwar Ram PW 76, on the order passed by Chief Judicial Magistrate, Ranchi, recorded the confessional statement of Ram Sagar PW 3 as stated earlier from 19-12-1984 to 21-12-1984 which was marked as Ext. 28/1. Shri Bhuneshwar Ram deposed that before recording the statement of Ram Sagar under Section 164 he had given the necessary warning to him as required by law and this fact is borne out from the certificate Ext.
'A' appended to that effect in the confessional statement Ext. 28/1 before he proceeded to record the confession.
This is indicative of the fact that he did caution Ram Sagar and sounded a note of warning that he is not bound to make the confessional statement and if he chooses to make any the same may be used against him and it was thereafter that he made the confession 105 voluntarily on his own volition. He deposed that Ram Sagar did not tell him that he made his confessional statement under any threat or fear or on any promise. In view of this positive evidence on record it is difficult to accept that the confessional statement made by the approver Ram Sagar under Section 164 CrPC was not voluntary or under any fear or promise or assurance. On the contrary we find that the confession is free from all infirmities and conforms to the requirements of Section 164.
39.The prosecution case, for the sake of scrutiny of the evidence and discussion may be bifurcated into two parts, one relating to the murder of Urshia Bahri in the evening of 11-10-1983 and the other relating to the murder of the two children, namely, Richa and Saurabh in the intervening night of 17-12-1983 and 18-12-1983 although all the three murders stem out of one and the same conspiracy to do away with the lives of all the three deceased persons and both the acts on two different dates are so connected that they form the same transaction. It is true that there is no eyewitness to either of the two incidents and the prosecution case rests on the evidence of the approver Ram Sagar (PW 3) and the circumstantial evidence advanced by the prosecution. We shall therefore deal with the evidence of each of the two incidents one after the other.
40.Learned counsel appearing for the appellant Raj Pal Sharma next contended that there is no direct evidence or ocular testimony with regard to the alleged murder either of Urshia Bahri or that of her two children Richa and Saurabh and the conviction of the appellants has been founded on the approver's evidence and other circumstantial evidence adduced by the prosecution. Learned counsel submitted that the two courts below are not justified in relying on the evidence of accomplice/approver Ram Sagar PW 3 whose evidence is not free from serious doubt particularly in view of the fact that he was examined as a witness by the committing Magistrate on 30-1-1985 after about one year and two months of the occurrence. It was urged that in the absence of corroboration of material particulars no conviction can be based on the testimony of an accomplice and since the circumstances alleged against the appellants are not proved to the hilt, the same cannot be regarded as complete chain of circumstances established against the appellants so as to base their convictions on the same.
Similar arguments were advanced by the learned counsel appearing for the appellants Suresh Bahri and Gurbachan Singh. Before we discuss the merits or demerits of the aforesaid submissions we would like to state that the law relating to conviction based on circumstantial evidence is well settled and it hardly requires a detailed discussion on this aspect. Suffice to say that in a case of murder in which the evidence that is available is only circumstantial in nature then in that event the facts and circumstances from which the conclusion of guilt is required to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused but they also must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
41.In order to meet the aforementioned arguments of the learned counsel for the appellants, we shall now proceed to state the law relating to the grant of pardon to an accomplice/approver, the value of his evidence and the extent of reliance that can be placed on his evidence.
106
42.We have already reproduced above Section 306 of the Code the provisions of which apply to any offence triable exclusively by the Court of Special Judge to any offence punishable with imprisonment extending to seven years or with a more serious sentence. Section 306 of the Code lays down a clear exception to the principle that no inducement shall be offered to a person to disclose what he knows about the procedure (sic). Since many a times the crime is committed in a manner for which no clue or any trace is available for its detection and, therefore, pardon is granted for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence which otherwise is unobtainable. The dominant object is that the offenders of the heinous and grave offences do not go unpunished, the Legislature in its wisdom considered it necessary to introduce this section and confine its operation to cases mentioned in Section 306 of the Code. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.
43.The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of Section 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that 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. The first part envisages that an accomplice, in other words, a guilty companion in crime, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 illustration (b) to Section 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combined reading of the two provisions that is Section 133 and illustration (b) of Section 114 of Evidence Act goes to show that it was considered necessary to place the law of accomplice evidence on a better 107 footing by stating in unambiguous terms that according to Section 133 a conviction is "not illegal or in other words not unlawful" merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite atten
