{"id":185219,"date":"1988-01-12T00:00:00","date_gmt":"1988-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandan-om-prakash-vs-state-of-rajasthan-on-12-january-1988"},"modified":"2015-09-29T23:58:41","modified_gmt":"2015-09-29T18:28:41","slug":"chandan-om-prakash-vs-state-of-rajasthan-on-12-january-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandan-om-prakash-vs-state-of-rajasthan-on-12-january-1988","title":{"rendered":"Chandan & Om Prakash vs State Of Rajasthan on 12 January, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chandan & Om Prakash vs State Of Rajasthan on 12 January, 1988<\/div>\n
Equivalent citations: 1988 AIR 599, \t\t 1988 SCR (2) 599<\/div>\n
Author: G Oza<\/div>\n
Bench: Oza, G.L. (J)<\/div>\n
           PETITIONER:\nCHANDAN & OM PRAKASH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT12\/01\/1988\n\nBENCH:\nOZA, G.L. (J)\nBENCH:\nOZA, G.L. (J)\nSHARMA, L.M. (J)\n\nCITATION:\n 1988 AIR  599\t\t  1988 SCR  (2) 599\n 1988 SCC  (1) 696\t  JT 1988 (1)\t141\n 1988 SCALE  (1)29\n\n\nACT:\n     Indian Evidence  Act, 1872: Ss. 114(6) and 133-Evidence\nof   accomplice-Corroboration\tby   independent   evidence-\nNecessity for.\n\n\n\nHEADNOTE:\n%\n     Five persons  were tried for the murder of a widow, out\nof which  one turned  approver. There was no direct evidence\nin the\tcase. The  only evidence  was the  evidence  of\t the\napprover  and  the  other  evidence  regarding\trecovery  of\narticles by three witnesses.\n     The  trial\t  court\t discarded   the  testimony  of\t two\nwitnesses  who\thad  identified\t some  articles.  The  third\nwitness, the  son of the deceased and who had identified the\narticles was  not examined at the trial. The court, however,\nconvicted all  the accused persons under s. 302 read with s.\n34 lPC.\n     The High  Court  maintained  the  conviction  of  three\npersons on  the finding\t that the evidence of identification\nwas sufficient to corroborate the testimony of the approver.\n     In the  appeals by special leave by two of the accused,\nit was\tcontended for the State that although the son of the\ndeceased  had  not  been  examined  at\tthe  trial,  he\t had\nidentified  articles   at  the\t test  identification\tand,\ntherefore, that\t evidence was  sufficient to corroborate the\ntestimony of the accomplice.\n     Allowing the appeals,\n^\n     HELD: It  is established as a rule of prudence that the\ntestimony of  an accomplice  if it  is thought reliable as a\nwhole conviction  could only  be based if it is corroborated\nby independent\tevidence  either  direct  or  circumstantial\nconnecting the accused with the crime. [603A-B]\n     Haroon Haji  Abdulla v.  State of Maharashtra,<\/a> [1968] 2\nSCR 641\t and Ravinder  Singh v.\t State of  Haryana, [1975] 3\nSCR 453. referred to.\n     In the  instant case,  the evidence  of the  son of the\ndeceased could\n600\nnot be looked into because (i) what he identified and stated\nto the\tMagistrate, who conducted the identification parade,\nwas only  a hearsay evidence and that evidence could only be\nused to\t corroborate his testimony if he was examined at the\ntrial, and  (ii) what  he stated  to the  Magistrate was not\nsubjected to  cross-examination and  was at  the back of the\naccused. Further,  there is  nothing about identification or\nanything to  connect the articles with the crime and in such\na situation  the evidence of recovery is not at all relevant\nas it  is not  connected  with\tthe  crime.  It\t could\tnot,\ntherefore, be used as evidence against the accused. [604C-D]\n     The only  evidence against\t the accused was that of the\napprover. He  has claimed  to be a spectator at every moment\nbut has\t not participated  at any  stage. Apart from it, the\ninitial story  appears also  to be  absolutely unnatural, as\naccording to  him he  did not  know anyone  of\tthe  accused\npersons but  a month  before the incident they took him into\nconfidence and\ttold him  to join  them. The evidence of the\nwitnesses as  a whole  does not appear to be natural version\nand is\tnot such  which inspires confidence. Moreover, there\nwas  no\t  corroboration\t at  all  from\tanother\t independent\ncircumstance or\t source of  evidence. The  conviction of the\nappellant, therefore, could not be maintained. [604F-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal Nos.
\n106- 107 of 1986.\n<\/p>\n
\t\t\t      WITH
\n     (Criminal Appeal Nos. 166-67\/1986).\n<\/p>\n
     From the  Judgment and order dated 5.9.1985 of the High
\nCourt of  Rajasthan in\tD.B. Appeal  No. 126\/77 and Criminal
\nAppeal Nos. 98 and 99 of 1977.\n<\/p>\n
     R.L. Kohli, Uma Dutt and R.C. Kohli for the Appellant.
\n     B.D. Sharma  and M.I.  Khan Additional Advocate General
\nfor the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     OZA, J.  These two\t appeals arise out of the conviction
\nof these  two appellants alongwith one another under Section
\n302 read  with Section\t34 and sentenced to imprisonment for
\nlife and  fine of Rs. 100 each in Sessions Case No. 39\/75 by
\nSessions Judge, Jhunjhunu dated
\n601<\/span>
\n29th January  1977. Alongwith  these two  appellants Chandan
\nand Om\tPrakash one  Babulal  son  of  Onkar  Mal  was\talso
\nconvicted but  we have\tno appeal  before us  on  behalf  of
\nBabulal.\n<\/p>\n
     The prosecution  case was that Smt. Dhaka widow of Shri
\nHanuman Prasad\tand mother of Shri Gyarsi Lal was living all
\nalone in  her house  (Haveli) at Ward No. 1, Khetadi. In the
\nmorning of  23rd August,  1975 a  person engaged for grazing
\nthe goats  in jungle  went to  Smt. Dhaka’s house for taking
\nher goats  for grazing\tand called Smt. Dhaka but he did not
\nget any\t response. P.W. 2 Smt. Banarsi who was living in the
\nvicinity came  on the  spot and\t alongwith the\tGoatmen went
\ninside the Haveli. They found goods scattered here and there
\nand even  when they  loudly called  Smt. Dhaka\tthey did not
\nhear any  reply. P.W.  1 Matadeen  who was  feeding  pigeons
\nnearby was informed by Smt. Banarsi that Smt. Dhaka normally
\nused to\t get up\t early but it appears that she had not woken
\nup by  that time  and therefore\t expressed surprise. On this
\nMatadeen went  inside the house, reached the upper floor and
\nfound all the rooms opened and plenty of goods of Smt. Dhaka
\nlying scattered.  There he saw Smt. Dhaka Iying on a cot and
\nfound that she was wounded and bleeding at number of places.
\nShri Matadeen,\tthen went to the Police Station, Khetadi and
\nsubmitted his  report Ex.  P. 1.  The Station  House officer
\nSurindra Singh reached the spot, prepared a memo and carried
\nout the\t investigation. On 3rd September, 1975 one Mam Chand
\nwas arrested  as an  accused. Another  accused\tBabulal\t was
\narrested  on   5th  September\tand  the  acquitted  accused
\nLaxmikant  was\t arrested  on  7th  September  and  the\t two
\nappellants in  this  appeal  Om\t Prakash  and  Chandan\twere
\narrested on  11th  September,  1975.  Mam  Chand  later\t was
\ngranted pardon\tand has been examined as an approver in this
\ncase. On  trial the learned Sessions Judge convicted all the
\naccused persons\t and on\t appeal the High Court acquitted the
\naccused Laxmikant  but maintained the conviction against the
\nthree and  aggrieved by\t the judgment  of the High Court the
\npresent appeal\ton special leave has been filed before us by
\nthe two appellants mentioned above.\n<\/p>\n
     It is  not in  dispute that there is no direct evidence
\nin this\t case. The  only evidence  is the  evidence  of\t the
\napprover Mam  Chand and other evidence regarding recovery of
\narticles. Learned  counsel for\tthe appellant contended that
\ncertain articles  were\trecovered  at  the  instance  of  Om
\nPrakash\t and   were  put  up  for  test\t identification\t and
\naccording to  the evidence  of the test identification these
\narticles that were put up for identification, four witnesses
\nwere supposed  to identify.  Four witnesses appeared at test
\nidentification but three appeared in the
\n602<\/span>
\nCourt at  trial. Out  of these\tfour  witnesses,  the  first
\nwitness did  not identify  any article.\t The  two  witnesses
\nRameshwar and  Phool Chand, P.Ws 13 and 14 did identify some
\narticles.  Their   evidence  after  consideration  has\tbeen
\nrejected by  the trial\tcourt  and  the\t other\twitness\t who
\nidentified the articles was Gyarsi Lal who happens to be the
\nson of\tdeceased, for  the reasons  best known, has not been
\nexamined at  the trial at all and it was therefore contended
\nby the\tlearned counsel\t that so  far as  the  recovery\t and
\nidentification\tof   articles  are   concerned\tno   article
\nrecovered has been identified to be that of the deceased and
\ntherefore  this\t  evidence  of\t recovery  in\tabsence\t  of
\nidentification is  not at  all relevant for the prosecution.
\nHe therefore  contended that  as  it  is  settled  law\tthat
\naccomplice’s evidence  if it  inspires confidence  could  be
\nused  to  convict  the\taccused\t person\t only  if  there  is
\nindependent corroboration  which could\tconnect the  accused
\nwith the  crime and  it was  contended that this evidence of
\nrecovery and  identification was supposed to be the evidence
\nconnecting the\taccused with the crime and corroborating the
\ntestimony of the approver but the learned Judges of the High
\nCourt did  not consider\t this aspect  of the matter that the
\ntwo  witnesses\t who  had  identified  some  articles  their
\ntestimony has been discarded by the trial court and the High
\nCourt has  not come  to the  conclusion that the trial court
\nwas not right in rejecting their testimony but superficially
\nheld that  the evidence\t of identification  is sufficient to
\ncorroborate the\t testimony of  the  approver.  It  was\talso
\ncontended that\teven the  reading of  the testimony  of\t the
\napprover shows\tthat he\t has tried  to keep himself away and
\nthe manner  in which he has described the whole incident and
\nthe way\t in which  he was taken into confidence by the other
\naccused persons\t make his  testimony unnatural and therefore
\ncould not  be accepted. Learned counsel also placed reliance
\non certain  decisions  of  this\t Court\twhere  the  rule  of
\nprudence about\tthe testimony  of the  accomplice  has\tbeen
\nrepeatedly stated.\n<\/p>\n
     Learned counsel  appearing for  the State\tof Rajasthan
\nadmitted that  so far  as  the\tidentification\tevidence  is
\nconcerned, the\tmost important\twitness Gyarsi\tLal has\t not
\nbeen examined  at the  trial and  the  other  two  who\twere
\nexamined, their testimony has been rejected but he attempted
\nto contend that although Gyarsi Lal has not been examined in
\nevidence at  the trial\tbut in\ttest identification  he\t had
\nidentified  articles   and  therefore\tthat   evidence\t  is
\nsufficient to  corroborate the\ttestimony of the accomplice.
\nHe however  did\t not  challenge\t the  proposition  that\t the
\nconviction could  not be maintained on the sole testimony of
\nthe accomplice unless it is corroborated by some independent
\nevidence connecting the accused with the crime.\n<\/p>\n
603<\/span><\/p>\n
     So far  as the  question about  the conviction based on
\nthe testimony  of the  accomplice is  concerned the  law  is
\nsettled and it is established as a rule of prudence that the
\ntestimony of accomplice if it is thought reliable as a whole
\nconviction could  only be  based if  it is  corroborated  by
\nindependent  evidence\teither\tdirect\t or   circumstantial
\nconnecting the\taccused\t with  the  crime.  In\tHaroon\tHaji
\nAbdulla v.  State of  Maharashtra,<\/a> [  1968] 2 SCR 641 it was
\nobserved as under:\n<\/p>\n
\t  “An accomplice  is a\tcompetent  witness  and\t his
\n\t  evidence could  be accepted and a conviction based
\n\t  on it if there is nothing significant to reject it
\n\t  as false.  But the  rule of prudence, ingrained in
\n\t  the consideration of accomplice evidence, requires
\n\t  independent corroborative  evidence first  of\t the
\n\t  offence and  next connecting\tthe accused  against
\n\t  whom the  accomplice evidence\t is used,  with\t the
\n\t  crime”.\n<\/p><\/blockquote>\n
Similarly in  Ravinder Singh  v. State of Haryana, [ 1975] 3
\nSCR 453 it was observed as under:\n<\/p>\n
\t  “An approver is a most unworthy friend, if at all,
\n\t  and he.  having bargained  for his  immunity, must
\n\t  prove his  worthiness for  credibility  in  court.
\n\t  This test  is fulfilled,  firstly if\tthe story he
\n\t  relates involves  him in  the\t crime\tand  appears
\n\t  intrinsically\t to   be  a   natural  and  probable
\n\t  catalogue of\tevents that  had  taken\t place.\t The
\n\t  story if  given of  minute details  according with
\n\t  reality is  likely to\t save it from being rejected
\n\t  brevi manu. Secondly, once that hurdle is crossed,
\n\t  the story  given by  an approver  so\tfar  as\t the
\n\t  accused on  trial is concerned, must implicate him
\n\t  in such  a manner  as to give rise to a conclusion
\n\t  of guilt  beyond reasonable  doubt. In a rare case
\n\t  taking  into\t consideration\t all   the   factors
\n\t  circumstances\t  and\t situations   governing\t   a
\n\t  particular   case,   conviction   based   on\t the
\n\t  uncorroborated evidence of an approver confidently
\n\t  held to  be true  and reliable by the court may be
\n\t  permissible. Ordinarily,  however,  an  approver’s
\n\t  statement  has  to  be  corroborated\tin  material
\n\t  particulars bridging\tclosely the distance between
\n\t  the crime  and  the  criminal.  Certain  clinching
\n\t  features of  involvement disclosed  by an approver
\n\t  appertaining directly\t to an accused, if reliable,
\n\t  by the  touchstone of\t other independent  credible
\n\t  evidence, would  give\t the  needed  assurance\t for
\n\t  acceptance of\t his testimony on which a conviction
\n\t  may be based. ”\n<\/p><\/blockquote>\n
604<\/span><\/p>\n
In this\t decision the  first test  indicated is\t that if the
\nstory given  out by  the accomplice appears intrinsically to
\nbe natural  and probable,  then alone that evidence could be
\nof  some   value  and  then  it\t is  further  observed\tthat
\nordinarily an  approver’s statement  has to be corroborated.
\nIn this\t view of  the settled  legal position  which was not
\ndisputed before us, it was contended that the evidence about
\nrecovery is  of no  consequence as  there is  no evidence of
\nidentification but  as\tit  was\t contended  by\tthe  learned
\ncounsel for  the respondent State that Gyarsi Lal who is the
\nson of\tthe deceased is not examined at the trial but he had
\nidentified articles  at the  identification parade  and\t the
\nlearned counsel\t attempted to  contend\tthat  this  evidence
\ncould be  used as  a piece  of corroboration.  Unfortunately
\nthis evidence  could not  be looked into because: i) what he
\nidentified and\tstated to  the Magistrate  who conducted the
\nidentification parade  is only\ta hearsay  evidence as\tthat
\nevidence could\tonly be used to corroborate his testimony if
\nhe was\texamined at the trial; and ii) what he stated to the
\nMagistrate at  the time of the test identification parade is
\nnot subjected  to cross\t examination and  was at the back of
\nthe accused  could not\tbe  used  as  evidence\tagainst\t the
\naccused. These\tare matters  so settled\t and therefore it is
\nsufficient to  say  that  this\tcontention  is\twithout\t any
\nsubstance. Except  this even  the learned  counsel  for\t the
\nState of  Rajasthan had\t to concede  that there\t is  nothing
\nabout identification  or anything  to connect these articles
\nwith the  crime and  in such  a situation  the\tevidence  of
\nrecovery is  not at all relevant as it is not connected with
\nthe crime.\n<\/p>\n
     It is  not disputed  that except  this we are left with
\nthe only  evidence of  the approver  Mam Chand. His evidence
\nhas been  read by  the counsel for the parties before us and
\nhis evidence  clearly indicates\t that he  has  attempted  to
\nsuggest that  he did  nothing. Neither\the  stated  that  he
\nparticipated in\t looting nor  in injuring  or attacking\t the
\ndeceased. Reading  through his\tevidence  clearly  indicates
\nthat he\t has claimed  to be  a spectator at every moment but
\nhas not participated at any stage. Apart from it the initial
\nstory appears  also to\tbe absolutely unnatural as according
\nto him,\t he did not know anyone of these accused persons but
\na month\t before the  incident they  took him into confidence
\nand told him to join them. After reading the evidence of the
\nwitnesses as  a whole  apparently the  impression created is
\nthat the  version does\tnot appear to be natural version. In
\nthis view  of the  matter, in  our opinion, the testimony is
\nnot such  which inspires  confidence. Apart from it as there
\nis no  corroboration  at  all  from  any  other\t independent
\ncircumstance or\t source of evidence therefore the conviction
\nof the\tappellants could  not be  maintained. It  is  rather
\nunfortunate that  the appeal has come up for hearing after a
\nlong time and ultimately it is found that
\n605<\/span>
\nthere is  no evidence to sustain the conviction. The appeals
\nare there-  A fore  allowed.  The  sentence  and  conviction
\npassed\tagainst\t  both\tthe   accused  are  set\t aside.\t The
\nappellants shall be set at liberty forthwith. P.S.S.\n<\/p>\n
P.S.S.\t\t\t\t\t    Appeals allowed.\n606<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chandan & Om Prakash vs State Of Rajasthan on 12 January, 1988 Equivalent citations: 1988 AIR 599, 1988 SCR (2) 599 Author: G Oza Bench: Oza, G.L. (J) PETITIONER: CHANDAN & OM PRAKASH Vs. RESPONDENT: STATE OF RAJASTHAN DATE OF JUDGMENT12\/01\/1988 BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHARMA, L.M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-185219","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChandan & Om Prakash vs State Of Rajasthan on 12 January, 1988 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandan-om-prakash-vs-state-of-rajasthan-on-12-january-1988\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandan & Om Prakash vs State Of Rajasthan on 12 January, 1988 - 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