Sunny Chauhan Vs State

2024:HHC:9804

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 117 of 2012 a/w Cr. Revision No. 86 of 2012 Reserved on: 13.08.2024 Date of Decision: 16.10.2024

1. Cr. Revision No. 117 of 2012 Bir Bahadur ...Petitioner Versus State of H.P. ...Respondent ___________________________________ 2. Cr. Revision No. 86 of 2012 Sunny Chauhan ..Petitioner Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes

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For the Petitioner(s) : Ms. Shikha Chauhan, Advocate, in Cr. Appeal No. 117 of 2012. Ms. Kiran Dhiman, Advocate, in Cr. Revision No. 86 of 2012. For the Respondent : Mr. Jitender Sharma, Additional Advocate General, in both the petitions.

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Rakesh Kainthla, Judge

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The present revisions are directed against the

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judgment dated 20.03.2012 passed by learned Sessions Judge,

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Shimla (learned Appellate Court), vide which the judgment dated 08.09.2011 and order dated 09.09.2011 passed by learned Judicial Magistrate, First Class, Court No.7 (learned Trial Court) were affirmed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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2 Briefly stated, the facts giving rise to the present revisions are that the police presented a challan before the learned Trial Court against the accused for the commission of an offence punishable under Section 379 read with Section 34 of the Indian Penal Code (IPC). It was asserted that Atul Sood (PW3) had parked his motorcycle bearing registration No.DL9-SE-9053 near Government Boys Senior Secondary School, Shimla on Sunday night at about 8:30 pm. He found on Monday morning that the motorcycle was missing. He filed a complaint (Ext. PW3/F) in the police station. The police registered the FIR (Ext. PW13/J). HC Sahib Singh (PW13) conducted the investigation. He visited the spot and prepared the site plan (Ext. PW13/A). He searched for the motorcycle but could not trace it. HC Hem Raj (PW5) was on night duty on 31.01.2007. Mast Ram (PW7) was also with him. A pick-up bearing registration No. HP-63-2580 came from Victory Tunnel at 9:20 pm. HC Hem Raj stopped the pick-up and found that a

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motorcycle was loaded on it. The driver of the pick-up revealed his name as Sandeep Kumar. He demanded the papers of the motorcycle from Sandeep; however, Sandeep could not produce any papers. Bir Bahadur and Sunny Chauhan were also found on the spot in the shop of Vijay Sood (PW1). They were trying to sell the motorcycle to Vijay Sood. HC Hem Raj and Constable Mast Ram informed Police Station Sadar about the recovery of the motorcycle. The pick-up and motorcycle were brought to the office of traffic police. Lachhi Ram (PW2) went to inquire into the matter. He demanded the papers of the motorcycle but no papers were produced; hence, he seized the motorcycle under Section 102 of Cr.P.C. He filed a complaint against Sunny Chauhan, Bir Bahadur and Sandeep in the Court of learned Sub Divisional Magistrate (SDM), Urban, Shimla on 01.02.2007. They were released on bail by learned SDM. The motorcycle was parked outside the police post, Lakkar Bazaar. HC-Gian Chand (PW6) went to Police Post Lakkar Bazaar and traced the Engine and Chassis Number of the motorcycle (Ext. PW6/A). Atul Sood was informed about the recovery of the motorcycle. He identified the motorcycle as the one, which was stolen from his possession. Registration Certificate (Ext. PW3/A) and sale deed (PW PW3/B)

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were produced by him. The Engine and Chassis Number of the motorcycle were tallied with the Engine number and Chassis number on the RC and they were found to be the same. The police seized the motorcycle vide memo (Ext. PW3/D). HC Sahib Singh arrested Bir Bahadur and Sunny Chauhan. The accused showed the place from where the theft was committed. Site plans (Ext. PW13/B, Ext. PW13/C and Ext. PW13/E) were prepared. Statements of the witnesses were recorded as per their version and after the investigation, the challan was presented before the Court.

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The learned Trial Court charged the accused with the commission of an offence punishable under Section 379 read with Section 34 of IPC. The accused pleaded not guilty and claimed to be tried.

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The prosecution examined 13 witnesses to prove its case. Vijay Sood (PW1) was running a junk shop where the accused attempted to sell the motorcycle. Lachhi Ram (PW2) was informed about the recovery of the motorcycle and he conducted the investigation partly. Atul Sood (PW3) was the owner of the motorcycle. Shalig Ram (PW4) is a witness to the recovery. Hem Raj (PW5) was on traffic duty and intercepted the pickup containing the motorcycle. HC Gian Chand (PW6) was posted as a

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Mechanic who traced the Engine and Chassis numbers of the motorcycle. Mast Ram (PW7) accompanied HC Hem Raj. Rohit Karol (PW8) had sold the motorcycle to Atul Sood. ConstableSanjay (PW9) is the witness to the recovery. Sandeep Kumar (PW10) was the driver of the pickup in which the motorcycle was loaded. Brijesh Sood (PW11) prepared the challan. Naresh Kumar (PW12) is the owner of the pickup. Sahib Singh (PW13) conducted further investigation.

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The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that a false case was registered against them and witnesses deposed against them falsely. No defence was sought to be adduced by the accused.

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Learned Trial Court held that the testimonies of the witnesses were satisfactory and there was no reason to disbelieve them. It was duly proved that the motorcycle belonged to Rohit Karol, who had sold it to Atul Sood (PW3). Atul Sood had parked it and it was found missing on the next morning. Both the accused were found in possession of the motorcycle. They could not give any satisfactory reason for their possession. The engine and chassis numbers were tallied with the engine and chassis number

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mentioned in the registration certificate. The recovered motorcycle was owned by Atul Sood. The accused failed to provide any explanation for their possession of the motorcycle. Hence, they were convicted of the commission of an offence punishable under Section 379 read with Section 34 of IPC and were sentenced to undergo six months of simple imprisonment and pay a fine of ₹1,000/- for the commission of the aforesaid offence.

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Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed separate appeals, which were decided by learned Sessions Judge, Shimla (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the statements of the witnesses were satisfactory. The accused could not provide any explanation for their possession. Therefore, they were rightly held guilty of the commission of theft of the motorcycle. There were minor contradictions in the statements of official witnesses but these were not sufficient to discard them because the contradictions are bound to come with time; hence, the appeals filed by the accused were dismissed.

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Being aggrieved from the judgments and order passed by the learned Courts below, the accused have filed the present

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revisions asserting that the learned Courts below did not appreciate the evidence properly. The motorcycle was found in possession of Sandeep Kumar and the accused were wrongly held liable. Vijay Sood (PW1) had also not identified the accused. Therefore, it was prayed that the present revisions be allowed and the judgments and order passed by learned Courts below be set aside.

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I have heard Ms Shikha Chauhan, learned counsel for the petitioner/accused Bir Bahadur, Ms Kiran Dhiman, learned counsel for the petitioner/accused Sunny Chauhan and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State.

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Ms Shikha Chauhan, learned counsel for the petitioner/accused-Bir Bahadur submitted that the learned Courts below erred in appreciating the evidence. As per the prosecution case, the motorcycle was found in the pickup being driven by Sandeep Kumar. Sandeep Kumar was arrested by the police on suspicion of theft. He along with the present accused was produced before learned SDM and was released on bail. He implicated the accused to save himself. His testimony should not have been relied upon. The prosecution's version regarding the

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interception of the pick-up was highly contradictory. The scrap dealer Vijay Sood had also not identified the accused. Learned Courts below failed to properly appreciate the evidence and the judgments and order passed by them are not sustainable. She submitted in the alternative that the accused was a young person and the benefit of the Probation of Offenders Act should have been granted to him. Learned Courts below erred in not extending this benefit to the accused. Therefore, she prayed that the present revision be allowed and the Judgments and order passed by learned Courts below be set aside.

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Ms. Kiran Dhiman, learned counsel for the petitioner/accused Sunny Chauhan adopted the submissions made by Ms. Shikha Chauhan, learned counsel for the petitioner/accused Bir Bahadur and submitted that Sunny Chauhan was wrongly arrayed as an accused. He was not even present in the pick-up when the police had intercepted it; hence, she prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.

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Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that learned Courts below had correctly appreciated the material on record. It was

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duly proved by the statement of Vijay Sood that the accused had attempted to sell the motorcycle to him, which shows the possession of the accused. Sandeep Kumar (PW10) had categorically stated that the accused had loaded the motorcycle in his pick-up and he had properly identified the accused. The accused had also identified the place from where the theft was committed by them. All these circumstances point to the guilt of the accused. Therefore, he prayed that the present revisions be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page

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207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of interference in

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revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v.

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Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:

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“13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this

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Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

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Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a muchadvanced stage in the proceedings under the CrPC.”

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The present revisions have to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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17. H.C.-Hem Raj (PW5) and Constable Mast Ram (PW7) were on traffic duty on the night of 31.01.2007. As per the prosecution, they intercepted the pick-up containing a motorcycle. Therefore, they are the best witnesses to depose about the possession of the motorcycle.

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HC-Hem Raj (PW5) stated that he and Constable-Mast

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Ram were at a local bus stand on night duty. A pick-up bearing registration No. HP-63-2580 came from Victory Tunnel at 9:20

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pm. They stopped the pick-up and found that a motorcycle was loaded on it. The driver revealed his name as Sandeep, who informed that the motorcycle was brought after paying its fare. The papers were demanded but no documents were produced. HC Hem Raj informed the Police Station Sadar about the incident. He was permitted to be cross-examined. He admitted that the Investigating Officer had conducted investigations and recorded his statement. He had heard portions ‘A to A’, ‘B to B’ and ‘C to C’ of his previous statement (Mark ‘H’). He had made such a statement to the police. He identified Bir Bahadur and Sunny Chauhan in the Court.

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Reliance was placed upon the parts of the statements made by him to the police during the investigation, which were admitted by him to be correct. It was laid down by the Hon’ble Supreme Court in Alauddin v. State of Assam, 2024 SCC OnLine SC 760 that a statement recorded under Section 161 of Cr.PC is not a substantive piece of evidence and the statement made to the police cannot be used for any purpose except to contradict the prosecution witness as per Section 162 of Cr. PC. It was observed:

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“The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except

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as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, ‘Evidence Act’) . Thus, what is provided in sub-Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in subSection (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case.”

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Therefore, it is not permissible to ask a witness as to

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what was told by him to the police and in this manner prove the statement recorded by the police. In Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875: AIR 1959 SC 1012: 1959 Cri LJ 1231 (six-

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judges bench) learned counsel for the defence asked the following questions from the witness during his cross-examination:

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1 . “Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh, and scrutinise them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?”

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2 . “Did you state to the investigating officer about the presence of the gas lantern?”

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Learned Sessions Judge disallowed the questions

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holding that omission does not amount to contradiction and cannot be put under Section 161 of Cr.P.C. He held:

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“Therefore, if there is no contradiction between his evidence in court and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in court that a certain fact existed but had stated under Section 161 CrPC either that that fact had not existed or that the reverse and irreconcilable fact had existed, it is a case of conflict between the deposition in the court and the statement under Section 161 CrPC and the latter can be used to contradict the former. But if he had not stated under Section 161 anything about the fact, there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under Section 161 may amount to contradiction of the deposition in court; they are the cases where what is stated is irreconcilable with what is omitted and impliedly negatives its existence.”

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A question arose before the Hon’ble Supreme Court

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whether the questions were wrongly disallowed. It was held that the form of the questions was defective as they elicited from the

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witness what he had told the police and were properly disallowed. It was observed:

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“13.. …… The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is

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more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “Did you say before the police officer that you saw a gas light?” and he answers “Yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure.

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51. It must not be overlooked that the cross-examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose. If the cross-examination does anything else, it will be barred under Section 162 which permits the use of the earlier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why crossexamination may not be like this:

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Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today?

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A. No. I saw both events.

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Q. If that is so, why is your statement to the police silent as to stabbing?

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A. 1 stated both the facts to the police.

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The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense. Of course, if the questions framed were:

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Q. What did you state to the police? or

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Q. Did you state to the police that D stabbed X?

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they may be ruled out as infringing Section 162 of the Code of Criminal Procedure because they do not set up a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross-examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the court. But we are of the opinion that relevant and material omissions amount to vital contradictions, which can be established by cross-

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examination and confronting the witness with his previous statement.

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59. This brings us to the consideration of the questions, which were asked and disallowed. These were put during the cross-examination of Bankey, PW 30. They are:

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Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?

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Q. Did you state to the investigating officer about the presence of the gas lantern?

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These questions were defective, to start with. They did not set up a contradiction but attempted to obtain from the witness a version of what he stated to the police, which is then contradicted. What is needed is to take the statement of the police as it is, and establish a contradiction between that statement and the evidence in court. To do otherwise is to transgress the bounds set by Section 162 which, by its absolute prohibition, limits even cross-examination to contradictions and no more. The cross-examination cannot even indirectly subserve any other purpose. In the questions with which we illustrated our meaning, the witness was not asked what he stated to the police but was told what he had stated to the police and asked to explain the omission. It is to be borne in mind that the statement made to the police is “duly proved” either earlier or even later to establish what the witness had then stated. ”

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60. In our opinion, the two questions were defective for the reasons given here and were properly ruled out, even though all the reasons given by the court may not stand scrutiny. The matter was not followed up with proper questions, and it seems that similar questions on these and other points were not put to the witness out of deference (as it is now suggested) to the ruling of the court. The accused can only blame themselves if they did not.” (Emphasis supplied)

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Thus, no advantage can be derived from the parts of the statements admitted to be correct by this witness. These parts are inadmissible and cannot be proved by the admission of the witness that he had made such statement to the police.

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Constable Mast Ram (PW7) stated that he was on duty on 31.01.2007. He had gone to Parveen Dhaba at 08:50 P.M. He was going towards the office of traffic police at about 09:20 P.M. He found that HC Hem Raj had stopped a pickup bearing Registration No.HP-63-2580. Sandeep Kumar was driving the pickup. He revealed that Bir Bahadur and Sunny Chauhan had gone to the junk shop. Sandeep Kumar revealed that he had come from the lift. He was asked to park the vehicle on the roadside. A motorcycle was found in the pickup and when the inquiry was made about the motorcycle, Sandeep Kumar got frightened. He called Sunny Chauhan and Bir Bahadur. Bir Bahadur and Sunny Chauhan were brought to the office of the traffic police. A request was made to send the Investigating Officer. The vehicle DriverSandeep Kumar and Bir Bahadur were handed over to the Investigating Officer who took them to the police station.

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His testimony is not as per the version of HC Hem Raj. As per HC Hem Raj, the vehicle came from the Victory Tunnel and

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was stopped near Panchayat Bhawan, whereas as per this witness, the vehicle came from the lift and was parked at a bus stand. Therefore, both the witnesses have given a different version regarding the place from where the vehicle had come and the circumstances, in which the vehicle was intercepted by the police.

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Vijay Sood (PW1) stated that two persons came to his shop in the evening. A vehicle bearing registration No. HP-632580 stopped near his shop, which had a motorcycle on it. He asked the persons to show the documents but they did not show any documents. The motorcycle did not have any number plate. Two police officials came to the shop and demanded the papers. Bir Bahadur could be identified by him but the other person could not be identified. Since the documents were not shown to him, therefore, he did not purchase the motorcycle.

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The testimony of this witness is quite different from the statements of Lachhi Ram and Mast Ram. As per his version, Bir Bahadur and Sunny Chauhan came to his shop and he demanded the papers. The police came afterwards to his shop and demanded the papers from Bir Bahadur and Sunny Chauhan. HC Lachhi Ram and Constable Mast Ram have nowhere stated that they went to the shop of Vijay where the accused were present.

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Constable Mast Ram stated that Bir Bahadur and Sunny Chauhan were called from the shop of the junk dealer.

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Vijay Sood has not identified Sunny Chauhan. He stated in his cross-examination that he was not aware who had brought the vehicle on that day. He also could not tell the registration number of the pick-up. He had demanded the papers from the driver of the pickup. He admitted that Bir Bahadur had not brought the motorcycle to his shop.

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The cross-examination of this witness makes the prosecution case highly doubtful. He clarified in the crossexamination that he had demanded the papers from the driver of the pick-up and he could not say who had visited his shop along with the vehicle. He also admitted that Bir Bahadur had not brought the motorcycle to his shop. Since he has made a contradictory version, has not identified Sunny Chauhan and denied that Bir Bahadur had brought the motorcycle to his shop, his statement was not sufficient to show the possession of the accused.

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Prosecution has heavily relied upon the statements of Sandeep Kumar (PW10). He stated that on 31.01.2007, he met Bir Bahadur and Sunny Chauhan. Sunny Chauhan said that he had a

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motorcycle that he wanted to sell to the junk seller. The motorcycle was to be carried to the junk seller. He demanded ₹100/- as the fare for the motorcycle. Sunny Chauhan agreed. Bir Bahadur and Sunny Chauhan loaded the motorcycle in his vehicle. They reached the shop of the junk seller. The vehicle was parked outside the shop. Bir Bahadur and Sunny Chauhan went to the shop of a junk seller. He remained in the vehicle. The police officials came and demanded the papers of the motorcycle and he revealed that the papers were with Bir Bahadur and Sunny Chauhan. Sunny Chauhan and Bir Bahadur could not produce the documents; hence, they were taken to the office of the traffic police. He parked the motorcycle on the premises of Lakkar Bazaar Police Post and parked the vehicle at the bus stand. When the accused could not produce the papers of the motorcycle, he became suspicious that the motorcycle was stolen.

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It was submitted by Ms. Shikha Chuahan, learned counsel for accused-Bir Bahadur that he was apprehended by the police and produced before learned SDM as a thief. He had furnished bail bonds before the learned SDM. It means that he was being treated as a thief initially and the police proceeded on the assumption that he had stolen the motorcycle along with Bir

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Bahadur and Sunny Chauhan. The police could not cite him as a witness without tendering pardon to him. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Chandran v. State of Kerala, (2011) 5 SCC 161: (2011) 2 SCC (Cri) 551: 2011 SCC OnLine SC 558 that the prosecution can cite an accomplice as a witness without tendering pardon to him but his testimony is subjected to usual caution regarding the testimony of an accomplice. It was observed at page 196:

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“78. The argument raised was that this evidence could not be taken into consideration and it would be inadmissible because this witness, though an accomplice was neither granted pardon under Section 306 CrPC nor was he prosecuted and the prosecution unfairly presented him as a witness for the prosecution. The contention is clearly incorrect in view of the decision of this Court in Laxmipat Choraria v. State of Maharashtra [ AIR 1968 SC 938: 1968 Cri LJ 1124] . While commenting on this aspect, Hidayatullah, J. observed in AIR para 13 that there were a number of decisions in the High Courts in which the examination of one of the suspects as the witness was not held to be legal and accomplice evidence was received subject to safeguards as admissible evidence in the case. The Court in Laxmipat Choraria [AIR 1968 SC 938: 1968 Cri LJ 1124] held: (AIR p. 944)

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“ 13 . On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case. In those cases, Section 342 of the Code and Section 5 of the Oaths Act were considered and the word ‘accused’ as used in those sections was held to denote a person actually on trial before a court and not a person who could have

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been so tried. The witness was, of course, treated as an accomplice. The evidence of such an accomplice was received with necessary caution in those cases. These cases have all been mentioned in Kandaswami Gounder, In re [AIR 1957 Mad 727 ], and it is not necessary to refer to them in detail here. The leading cases are Queen Empress v. Mona Puna [ILR (1892) 16 Bom 661], Banu Singh v. Emperor [ILR (1906) 33 Cal 1353], Keshav Vasudeo Kortikar v. Emperor [AIR 1935 Bom 186], Empress v. Durant [ILR (1899) 23 Bom 213], Akhoy Kumar Mukerjee v. Emperor [AIR 1919 Cal 1021], A.V. Joseph v. Emperor [AIR 1925 Rang 122], Amdumiyan v. Emperor [AIR 1937 Nag 17], Gallagher v. Emperor [AIR 1927 Cal 307] and Emperor v Har Prasad Bhargava [AIR 1923 All 91] . In these cases (and several others cited and relied upon in them) it has been consistently held that the evidence of an accomplice may be read although he could have been tried jointly with the accused. In some of these cases, the evidence was received although the procedure of Section 337 of the Criminal Procedure Code was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. Section 5 of the Oaths Act and Section 342 of the Code of Criminal Procedure do not stand in the way of such a procedure.”

¶120

The Court finally observed: ( Laxmipat Choraria case [AIR 1968 SC 938: 1968 Cri LJ 1124 ], p. 944, para 13)

¶121

“ 13 . … It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case.”

¶122

79. The Court has also observed in para 11: (AIR pp. 94344)

¶123

“ 11 . The position that emerges is this:

¶124

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¶125

No pardon could be tendered to Ethyl Wong because the pertinent provisions did not apply. Nor could she be prevented from making a disclosure, if she was so minded. The prosecution was not bound to prosecute her if they thought that her evidence was necessary to break a smugglers' ring . Ethyl Wong was protected by Section 132 (proviso) of the Evidence Act even if she gave evidence incriminating herself. She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence. The expression ‘criminal proceeding’ in the exclusionary clause of Section 5 of the Oaths Act cannot be used to widen the meaning of the word accused. The same expression is used in the proviso to Section 132 of the Evidence Act and there it means a criminal trial and not investigation. The same meaning must be given to the exclusionary clause of Section 5 of the Oaths Act to make it conform to the provisions in pari materia to be found in Sections 342, 342-A of the Code and Section 132 of the Evidence Act. The expression is also not rendered superfluous because if given the meaning accepted by us it limits the operation of the exclusionary clause to criminal prosecutions as opposed to investigations and civil proceedings. It is to be noticed that although the English Criminal Evidence Act, 1898, which (omitting the immaterial words) provides that ‘every person charged with an offence … shall be a competent witness for the defence at every stage of the proceedings’ was not interpreted as conferring a right on the prisoner of giving evidence on his own behalf before the grand jury or in other words, it received a limited meaning; see R. v. Rhodes [(1899) 1 QB 77 ] .” (emphasis supplied)

¶126

25

¶127

80. This case would bring about the legal position that even if the prosecution did not prosecute PW 53 and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. The contention of Shri Radhakrishnan that his evidence would be inadmissible because he was not granted a pardon or he was not made accused would, thus, be of no consequence and is rejected. Against this backdrop, after considering the whole material and the findings of the trial court and the appellate court, we have no hesitation to hold that the trial court and the appellate court were right in convicting A-7.”

¶128

Thus, there is no prohibition in examining an accomplice as a witness without making him an approver but the Court has to be careful about his status while dealing with his testimony.

¶129

Section 114, Illustration (b) provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. It was laid down by the Hon’ble Supreme Court in Mrinal Das v. State of Tripura, (2011) 9 SCC 479 : (2011) 3 SCC (Cri) 810: 2011 SCC OnLine SC 1208 that the testimony of an accomplice is unworthy of credit and his testimony should be corroborated in material particulars. It was observed at page 489:

¶130

“17. 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 upon the testimony of an accomplice unless it is corroborated in

¶131

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¶132

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.

¶133

18. In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Evidence Act, 1872 along with Illustration ( b ) to Section 114 which read as under:

¶134

“ 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.”

¶135

Illustration (b) to Section 114

¶136

“The court may presume—

¶137

¶138

( b ) that an accomplice is unworthy of credit unless he is corroborated in material particulars;”

¶139

19. Dealing with the scope and ambit of the abovenoted two provisions, this Court, in Bhiva Doulu Patil v. State of Maharashtra [AIR 1963 SC 599: (1963) 1 Cri LJ 489: (1963) 3 SCR 830] , has held that both the sections are part of one subject and have to be considered together. It has further been held: (AIR p. 601, para 7)

¶140

“ 7 . The combined effect of Sections 133 and 114, Illustration ( b ) may be stated as follows: according to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of

¶141

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¶142

such a witness without corroboration in material particulars.”

¶143

20. The very same principle was reiterated in Mohd. Husain Umar Kochra v. K.S. Dalipsinghji [(1969) 3 SCC 429: 1970 SCC (Cri) 99] and it was held: (SCC p. 438, para 21)

¶144

“ 21 . … The combined effect of Sections 133 and 114, Illustration ( b ) is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another….”

¶145

21. While considering the validity of the approver's testimony and tests of credibility, this Court, in Sarwan Singh v. State of Punjab [AIR 1957 SC 637: 1957 Cri LJ 1014: 1957 SCR 953] has held as under: (AIR pp. 640-42, paras 7 & 8)

¶146

“ 7 . … An accomplice is undoubtedly a competent witness under the Evidence Act, 1872. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

¶147

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.

¶148

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¶149

But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver, then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.

¶150

In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special for cases of weak or tainted evidence like that of the approver.

¶151

¶152

8 . … Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.”

¶153

22. Further, in Ravinder Singh v. State of Haryana [(1975) 3 SCC 742: 1975 SCC (Cri) 202] , this Court, while considering the approver's testimony within the meaning of Section 133 of the Evidence Act, 1872 has observed: (SCC pp. 747-48, para 12)

¶154

“ 12 . An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. … Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular

¶155

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¶156

case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”

¶157

23. In Abdul Sattar v. UT, Chandigarh [1985 Supp SCC 599: 1985 SCC (Cri) 505] where the prosecution had sought to prove its case by relying upon the evidence of the approver, it was held that: (SCC p. 602, para 6)

¶158

“ 6 . … 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.”

¶159

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 abovesaid ratio has been reaffirmed and reiterated by this Court in Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80: 1995 SCC (Cri) 60], Ramprasad v. State of Maharashtra [(1999) 5 SCC 30: 1999 SCC (Cri) 651: AIR 1999 SC 1969: 1999 Cri LJ 2889] and Narayan Chetanram Chaudhary v. State of Maharashtra [(2000) 8 SCC 457: 2000 SCC (Cri) 1546]. 24. In Narayan Chetanram Chaudhary [(2000) 8 SCC 457: 2000 SCC (Cri) 1546] it was further held that: (SCC p. 479, para 37)

¶160

“ 37 . For corroborative evidence, the court must look at the broad spectrum of the approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the

¶161

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¶162

form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable.”

¶163

25. Similar question again came up for consideration before this Court in K. Hashim v. State of T.N. [(2005) 1 SCC 237: 2005 SCC (Cri) 292: 2005 Cri LJ 143] and Sitaram Sao v. State of Jharkhand [(2007) 12 SCC 630 : (2008) 3 SCC (Cri) 319] , wherein this Court has held that: ( K. Hashim case [(2005) 1 SCC 237: 2005 SCC (Cri) 292: 2005 Cri LJ 143 ] , SCC p. 247, para 26)

¶164

“ 26 . Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with Section 114 Illustration ( b ). The latter section empowers the court to presume the existence of certain facts and the illustration elucidates what the court may presume and makes clear by means of examples as to what facts the court shall have regard to in considering whether or not the maxims illustrated apply to a given case. Illustration ( b ) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in Illustration ( b ) to Section 114 of the Evidence Act strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”

¶165

26. In Sheshanna Bhumanna Yadav v. State of Maharashtra [(1970) 2 SCC 122: 1970 SCC (Cri) 337] the test of reliability of the approver's evidence and rule as to corroboration was discussed. The following discussion and conclusion are relevant which read as under: (SCC pp. 12526, paras 12 & 13)

¶166

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¶167

“ 12 . The law with regard to appreciation of the approver's evidence is based on the effect of Sections 133 and 114, Illustration ( b ) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness against the accused. But if the skins were found in the accused's house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft.

¶168

13 . This Court stated the law of corroboration of accomplice evidence in several decisions. One of the earlier decisions is Sarwan Singh v. State of Punjab [AIR 1957 SC 637: 1957 Cri LJ 1014: 1957 SCR 953] and the recent decision is Lachhi Ram v. State of Punjab [AIR 1967 SC 792: 1967 Cri LJ 671: (1967) 1 SCR 243]. In Sarwan Singh case [AIR 1957 SC 637: 1957 Cri LJ 1014: 1957 SCR 953] this Court laid down that before the court would look into the corroborative evidence it was necessary to find out whether the approver or accomplice was a reliable witness. This Court in Lachhi Ram case [AIR 1967 SC 792:

¶169

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¶170

1967 Cri LJ 671: (1967) 1 SCR 243] said that the first test of the reliability of approver and accomplice evidence was for the court to be satisfied that there was nothing inherently impossible in evidence. After that conclusion is reached as to reliability, corroboration is required. The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime.”

¶171

27. In Dagdu v. State of Maharashtra [(1977) 3 SCC 68: 1977 SCC (Cri) 421] the scope of Section 133 and Illustration ( b ) to Section 114 of the Evidence Act, 1872 and nature of the rule of corroboration of accomplice evidence was explained by a three-Judge Bench of this Court in the following manner: (SCC p. 76, paras 24-25)

¶172

“ 24 . In Bhuboni Sahu v. R. [(1948-49) 76 IA 147] the Privy Council after noticing Section 133 and Illustration ( b ) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase ‘corroborated in material particulars’ in Illustration ( b ). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them

¶173

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¶174

but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused.

¶175

25 . This Court has in a series of cases expressed the same view as regards accomplice evidence. (See State of Bihar v. Basawan Singh [AIR 1958 SC 500: 1958 Cri LJ 976] ; Haricharan Kurmi v. State of Bihar [AIR 1964 SC 1184 : (1964) 2 Cri LJ 344]; Haroon Haji Abdulla v. State of Maharashtra [AIR 1968 SC 832: 1968 Cri LJ 1017] and Ravinder Singh v. State of Haryana [(1975) 3 SCC 742 : 1975 SCC (Cri) 202] .) In Haricharan [AIR 1964 SC 1184: (1964) 2 Cri LJ 344] Gajendragadkar, C.J., speaking for a five-judge Bench observed that the testimony of an accomplice 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.”

¶176

28. In Rampal Pithwa Rahidas v. State of Maharashtra [1994 Supp (2) SCC 73: 1994 SCC (Cri) 851] , while considering the very same provisions, this Court has held that the approver's evidence must be corroborated in material particulars by direct or circumstantial evidence. This Court further held that while considering the credibility of the approver and the weight to be attached to his statement, the statement made in the bail application of the approver can be looked into by the court.

¶177

29. It is clear that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and is not merely a rule of law. Corroboration need not be in the form of ocular testimony

¶178

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¶179

of witnesses and may even be in the form of circumstantial evidence.

¶180

This position was reiterated in Somasundaram v. State,

¶181

(2020) 7 SCC 722: (2020) 3 SCC (Cri) 465: 2020 SCC OnLine SC 480

¶182

wherein it was observed at page 763:

¶183

“Accomplice evidence

¶184

71. Section 133 of the Evidence Act declares that an accomplice is a competent witness and further that a conviction based on the uncorroborated testimony of an accomplice is not illegal only on account of it being so. Section 133 reads as follows:

¶185

“ 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.”

¶186

72. It is apposite to notice Section 114 of the Evidence Act, Illustration ( b ), the court may presume:

¶187

“( b ) that an accomplice is unworthy of credit, unless he is corroborated in material particulars.”

¶188

73. Thus, there appears to be a contradiction between these provisions. The matter is no longer res integra. We may notice the following statement of the law contained in an early judgment of this Court in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, AIR 1957 SC 637 : 1957 Cri LJ 1014] : (AIR pp. 640-41, para 7)

¶189

“ 7 . … It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

¶190

It would not be right to expect that such independent corroboration should cover the whole of the prosecution

¶191

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¶192

story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true .

¶193

But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered .

¶194

In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver .” (emphasis supplied)

¶195

74. We may profitably also refer to the views expressed in Haroon Haji Abdulla v. State of Maharashtra [Haroon Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 : 1968 Cri LJ 1017] : (AIR pp. 835-36, para 8)

¶196

“ 8 . … The law as to accomplice evidence is well settled. The Evidence Act in Section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the court trying an accused may legally convict him on the single evidence, of an accomplice. To this there is a rider in Illustration ( b ) to Section 114 of the Act which provides that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision

¶197

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¶198

incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice . In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law .”

¶199

(emphasis supplied)

¶200

75. The dichotomy between the mandate of Section 133 and Illustration ( b ) to Section 114 of the Evidence Act has been explained as follows in Sheshanna Bhumanna Yadav v. State of Maharashtra [Sheshanna Bhumanna Yadav v. State of Maharashtra, (1970) 2 SCC 122 : 1970 SCC (Cri) 337] : (SCC pp. 125-26, para 12)

¶201

“ 12 . The law with regard to appreciation of approver's evidence is based on the effect of Sections 133 and 114, Illustration ( b ) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must

¶202

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¶203

implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused. But if the skins were found in the accused's house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft .” (emphasis supplied)

¶204

76. We may finally advert to a recent pronouncement of this Court in K. Hashim v. State of T.N. [K. Hashim v. State of T.N., (2005) 1 SCC 237 : 2005 SCC (Cri) 292] : (SCC pp. 25051, paras 38-42)

¶205

“ 38 . First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain a conviction . As Lord Reading says:

¶206

‘Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony.’ ( Baskerville case [R. v. Baskerville, (1916) 2 KB 658 : (1916-17) All ER Rep 38 (CCA) ] , KB p. 664 : All ER p. 42 B-C)

¶207

39 . All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it .

¶208

40 . Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This

¶209

38

¶210

does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence . Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that:

¶211

‘A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all…. It would not at all tend to show that the party accused participated in it.’

¶212

41 . Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course, the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.

¶213

42 . Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime . Were it otherwise, ‘many crimes which are usually committed between accomplices in secret, such as incest, offences with females’ (or unnatural offences) ‘could never be brought to justice’. (See M.O. Shamsudhin v. State of Kerala [M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351: 1995 SCC (Cri) 509] .)”

¶214

(emphasis supplied)

¶215

77. To summarise, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows: the combined result of Section 133 read with Illustration ( b ) to Section 114 of the Evidence Act is that the courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the

¶216

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¶217

material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused.

¶218

78. As laid down by this Court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word “ordinarily” inspired by the statement of the law in para 4 in K. Hashim [K. Hashim v. State of T.N., (2005) 1 SCC 237: 2005 SCC (Cri) 292] wherein this Court did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence.

¶219

This position was reiterated in A. Srinivasulu v. State,

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2023 SCC OnLine SC 900 wherein it was observed:

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“83. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel, this Court has laid down two tests in Sarwan Singh v. State of Punjab 1957 SCR 953 , to be satisfied before accepting the evidence of an approver. The first is that the approver is a reliable witness and the second is that his statement should be corroborated

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with sufficient evidence. Again, in Ravinder Singh v. State of Haryana(1975) 3 SCC 742 this Court pointed out that, “ an approver is a most unworthy friend ” and that he having bargained for his immunity, must prove his worthiness for credibility in court. The test to be fulfilled was pithily put in paragraph 12 of the Report by this Court as follows: —

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“12. … This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu . Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”

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84. Section 133 of the Indian Evidence Act, 1872 declares an accomplice to be a competent witness and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, while considering the import of Section 133. this Court held in M.O. Shamsudhin v. State of Kerala (1995) 3 SCC 351 that the court is bound to take note of a precautionary provision contained in Illustration (b) to Section 114 of the Evidence Act, which provides that an accomplice is unworthy of credit unless he is corroborated in material particulars .”

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Therefore, an accomplice is not considered a witness worthy of credit upon whose testimony the conviction can be based unless it is corroborated in material particulars. In the present case, the motorcycle was found in the pickup being driven by Sandeep Kumar. He was alone when the pickup was seen by the police. As per the statement of Vijay, he had demanded the papers of the motorcycle from the driver of the pickup which means that the papers were demanded by Vijay from the witness Sandeep Kumar who was driving the vehicle. As per Hem Raj (PW5), he stopped the pickup, when it was being driven from Victory Tunnel and Sandeep was alone. He revealed on inquiry that as per Constable Mast Ram, the motorcycle belonged to Bir Bahadur and Sunny Chauhan, who were called from the junk shop. Thus, Bir Bahadur and Sunny Chauhan were not present in the vehicle as per the prosecution, when it was seen by the police. Therefore, he was the only person in possession of the motorcycle. His explanation that the accused had loaded the motorcycle in his pickup and he had merely agreed to transport the vehicle on the payment of ₹ 100/- is not supported by any person. The fact that he was in possession is also corroborated by the fact that he was arrested by the police as the possessor of the stolen property and

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was produced before learned SDM. All these circumstances show that he has a motive to shift the blame from himself to other persons to save himself from criminal liability and his testimony cannot be accepted unless it is corroborated in material particulars.

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A heavy reliance was placed upon the fact that accused Bir Bahadur and Sunny Chauhan made the statements and led the police to the place from where the motorcycle was stolen. The police prepared the memo (Ext. PW3/E) regarding this fact. The police also prepared the site plans (Ext. PW13/B and Ext. PW13/C) regarding the places identified by the accused. The memo (Ext. PW3/E) does not show that anything was discovered according to the statement made by the accused. They had merely pointed out the place from where the theft was committed. It was laid down by the Hon’ble Supreme Court in State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088: 2000 SCC OnLine SC 842 that where no recovery was effected from the place, the statement

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is inadmissible. It was observed at page 283:

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Digitally signed by KARAN SINGH GULERIA Date: 2024.10.16 16:19:54 IST

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“37. How did the particular information lead to the discovery of the fact? No doubt, the recovery of the dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the

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information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.” (Emphasis supplied) 38. In the present case, the police knew the place of theft

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and had prepared the site plan (Ext. PW13/A) on 19.12.2006 at the instance of Atul Sood showing the place from where the theft was committed. Both the site plans (Ext. PW13/A and Ext. PW13/B) are identical and therefore, there was no discovery of even the place. It was laid down by the Hon’ble Supreme Court in Thimma and Thimma Raju v. State of Mysore, (1970) 2 SCC 105: 1970 SCC (Cri) 320 that where the fact is discovered from other sources, there cannot be a discovery of that fact. It was observed at page 112:

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“10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information, it was argued, also lends support to the appellant's guilt. It appears to us that when PW 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and courts have to be

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watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary . It would, in the circumstances, be somewhat unsafe to rely on this information for proving the appellant's guilt. We are accordingly disinclined to take into consideration this statement.” (Emphasis supplied)

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It was laid down by the Hon’ble Supreme Court in

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Vijender v. State of Delhi, (1997) 6 SCC 171: 1997 SCC (Cri) 857 that where the fact was within the knowledge of the police, it cannot be discovered at the instance of the accused. It was observed at

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page 179:

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“17. Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on 30-61992, they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case — evidence could not be led in respect thereof.”

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A similar view was taken in Allarakha Habib Memon

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Etc. v. State of Gujarat, 2024 SCC OnLine SC 1910 wherein it was observed:

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“41. We find that these so-called confessions are ex - facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr. Arvindbhai (PW-2) in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872 (hereinafter being referred to as ‘Evidence Act’). As a consequence, we are not inclined to accept the said admissions of the accused as incriminating pieces of evidence relevant under Section 21 of the Evidence Act. The circumstance regarding the identification of the place of incident at the instance of the accused is also inadmissible because the crime scene was already known to the police and no new fact was discovered in pursuance of the disclosure statements .” (Emphasis supplied) 41. Thus, no reliance can be placed upon the disclosure

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statement made by the accused.

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The other evidence led by the police does not show the involvement of Bir Bahadur and Sunny Chauhan. The other evidence is regarding the steps taken by the police after the vehicle and the motorcycle were seized by the police. Therefore, they do not implicate the accused in any manner.

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Thus, there is no corroboration to the statement of Sandeep and the prosecution cannot derive any advantage from his testimony.

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Learned Courts below had not looked into this aspect. They assumed that Sandeep Kumar was a creditworthy witness.

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They failed to appreciate the discrepancies in the statements of Hem Raj (PW5) and Constable Mast Ram (PW7). They failed to appreciate that the admission of the previous statement recorded by the police by Hem Raj was inadmissible and could not have been used to base the conviction. Therefore, they had misdirected themselves and concluded what no reasonable person could have concluded. Therefore, interference is required with the judgments and order passed by learned Courts below.

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Consequently, the present revisions are allowed and the accused are acquitted of the commission of offences punishable under Section 379 read with Section 34 of IPC. The fine amount be refunded to them after the expiry of the period of the limitation.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioners are directed to furnish their personal bonds within four weeks in the sum of ₹25,000/- with one surety each in the like amount to the satisfaction of the learned Trial Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellants on

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receipt of notice thereof, shall appear before the Hon’ble Supreme

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Court.

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