- (1.) THE appellants Tillumal and Assandas have been convicted by the Additional Sessions Judge No. 1, Jaipur City, for offence under sec. 302, I. P. C. , and each of them has been sentenced to imprisonment for life.
(2.) THE prosecution story, in brief, is that the accused Tillumal and the approver Sajan became partners in the business of illicit liquor. Saroopa (decea-sed) was a taxi-driver. Sajan and Tillumal gave him Rs. 50 per trip in addition to the fare of conveyance by which he brought illicit liquor from outside. THE accused Asandas of Ajmer was another taxi-driver. He also used to supply Tillumal and Sajan with illicit liquor through his taxi. On the advice of the accused Tillumal Sajan bought an Ambassador car (No. R. S. L. 6598) in the month of February, 1967, in partnership with Saroopa. THEy gave Rs. 8000 towards the part-payment of its price. THE residue was obtained from Prakash Financier. Saroopa, who was in the service of K. B. Singh (P. W. 11), left his job and started driving the Ambassador Car. THE vehicle met with an accident in the month of March, 1967, on Amber road. It was sent for repairs. After it was mended, Saroopa again took to driving it for a couple of days. No profit, however, accrued to its owners. By negotiation Sajan took the car under his exclusive possession on May 22, 1967, and gave assurance to Saroopa that he would soon pay him the money that was due towards the purchase of the car. Saroopa again joined the service of K. B. Singh. He demanded his dues many a time, from Sajan. On June 10, 1967, Saroopa went to Sajan at about 9. 30 a. m. , and asked him to settle his account with the financier. Sajan told him to come at 12 a. m. to Bansi's hotel, situate in front of the Shah Building, Chaura Rasta, Jaipur. Saroopa could not spare time upto 3 p. m. At Bansi's hotel Sajan and his associates Assandas and Tillumal had already arrived earlier. THEy all waited for Saroopa. THEn all the 3 persons went to Ram Prakash cinematographic theatre to see a movie. In the interval Tillumal told Sajan that Saroopa had got his illicit liquor seized and that he had also put Sajan to loss and, therefore, he should be taken to jungle and be compelled to divulge what he had done. Both Assandas and Sajan agreed to it. After having seen the picture, all the three returned to Bansi's hotel. In the meantime Saroopa also reached there. He told Sajan that he had contacted the financier and he had told him that he was to go outside for about 25 days. Saroopa suggested that both of them should go to the financier for the adjustment of the account. Sajan agreed to it and told him that he would take him there in his car at about 9 p. m. THE accused Tillumal, Assandas and Sajan sat in the car and left for their respective houses. At 8-30 p. m. Sajan went to Tillumall' house, where Assandas had already arrived. All the three then sat in the car and came to Bansi's hotel, where they took wine. Meanwhile Saroopa also reached there. After about 15 to 25 minutes they all sat in the car No. RSL 6598 and first went to the financier's house. Sajan and Saroopa got down from the car and contacted the financier Uttamchand, P. W. 18. He told them to come to his office next day. When Assandas and Saroopa were coming out of Uttamchand's residence-cum office, Saroopa demanded a sum of Rs. 500 from Sajan. Sajan said that he had no money with him. He asked Tillumal to give him Rs. 500. Tillumal said that he would arrange for the amount from his wine shop at Phagi. Saroopa agreed to it. THEreafter Tillumal, Sajan, Assandas and Saroopa left for Phagi in the car. When they reached the hospital square, they met K. B. Singh, who was coming from the opposite direction on his scooter. THE car was stopped there. K. B. Singh asked Saroopa as to where he was going, Saroopa replied that he was going to get his account settled. AH the four persons reached Phagi at about 11 in the night. Sajan woke his servant Ghasi P. W. 3, at his Phagi liquor shop and asked him about the whereabouts of Chuhadmal, the sales-man at the wine shop. Ghasi informed him that he had gone to Jaipur. He further told him that neither wine nor money was available in the shop. Tillumal then told Assandas that at Dudu he had a friend Thawardas, from whom he would get Rs. 500. THEreupon the car started towards Dudu. After covering a distance of about 4 to 5 miles from Phagi, Tillumal asked Assandas to stop the car. All the 4 persons then came out of the car. Tillumal gave 4 or 5 fiat blows on the abdomen of Saroopa and told him as to how he had got his 2000 bottles of Rajasthan wine and 80 or 90 bottles of U. P. liquor seized. Saroopa replied that he had not done so and requested Sajan to rescue him. He was, however, given further 4 to 5 blows with iron bars by Tillumal Saroopa fell down on the ground. Tillumal tied his legs together. Assandas and Sajan also fastened his hands with cord, which Tillu Mal had brought from his house while boarding the car at 8 30 p. m. All of them lifted Saroopa and put him in front of the car. Under the direction of Tillumal Assandas ran over the car over Saroopa's body. Saroopa died soon after. THEn the accused asked Assandas to get petrol from the car. It was sprinkled over Saroopa's body. Tillumal set fire to it. Before doing so Sajan had removed the watch which Saroopa was wearing on his wrist and gave it to Tillumal. Later on Assandas, Tillumal and Sajan went to Dudu. where from they proceeded towards Ajmer side and covered a distance of about 4 to 5 miles. THEn they returned towards Jaipur. THE shoes of Saroopa and the iron bars were thrown on their way. THEy stopped the car at the P. W. D. nursery, situate on the Jaipur-Ajmer Road. THEre they washed the tyres of the car. Tillumal threw the watch into the nursery well. THEreafter the 3 persons went towards Purana Ghat. On their way to Bassi they saw some police constables. THEy, therefore, returned to Purana Ghat, where police constable Amar Singh, P. W. 20, saw Tillumal, Sajan and Assandas. Amar Singh stopped the car by putting a barrier. Tillumal told Amar Singh that he had gone to Bassi to take food. THE car was then allowed to pass. Subsequently all the three went to their respective houses at Jaipur at 2 in the night. Next day they met each other in the Ram Niwas Garden, where Tillumal told Sajan that if any body asked the whereabouts of Saroopa, he should tell him that Saroopa had been given Rs. 500 and that he had gone somewhere. Mst. Phula Devi, P. W. 7, mother of the deceased submitted a report to the police station, Ashok Nagar. on June 14, 1967, stating that her son had left Bikaner house at 10 p. m. on June 10, 1967, in the company of Sajan, Tillumal and the driver of car No RSL 6598 under the assurance that he would be given Rs. 4000 and that his whereabouts were not known. It was further mentioned in the report that on her asking Sajan she had been informed of his total ignorance in the matter. She came to know about the taking away of her son from K. B. Singh, who had employed him as his taxi-driver. After the receipt of the report a search was made in the vain hope of finding out Saroopa. On July 4, 1967, Investigating Officer Manzoor Ahmed, P. W. 23, came to know that; a dead body had been discovered near Chakwara village by a police constable and that certain articles had been recovered from the spot by the police officer Phagi. He was also informed that the post-mortem examinations of the dead body had already been conducted by the Medical Jurist, S. M. S. Hospital, Jaipur on 13-6-1967. THEre upon he registered a case u/s. 302 I. P. C. , and took up investigation in his hands. THE accused Tillumal, Asandas & Sajan were arrested on 16-7-1967. In the course of investigation Tillumal furnished information to the police that he had thrown Saroopa's watch into P. W. D. Nursery and he was prepared to get it recovered. THE information was reduced to writing and is marked Ex. P 10. Pursuant to that information the police recovered the watch Art. 1 at the instance of the accused Tillumal, under memo Ex. P. 9, dated 22-7-1967. THE articles recovered on the spot as also the watch were identified by certain prosecution witnesses in the presence of Shri Shyam Sunder Munsiff Magistrate, Jaipur, P. W. 2 on August 1, 1967, under memo Ex. P. 3. Certain articles recovered on the spot were sent to the Chemical Examiner and the Serologist and it was found that the cuttings from the burnt clothes (underwear, Baniyan, and half pant) were stained with human blood. Sajan was made approver by the District Magistrate, Jaipur, on September 20, 1967. After the conclusion of the investigation the police put up a challan against the accused Tillumal and Assandas in the court of the Munsiff Magistrate, Jaipur City ( East ). THE said Magistrate conducted preliminary inquiry in accordance with the provisions of sec. 207 A Cr. P. C , and committed both the accused to the court of Sessions Judge Jaipur City, to face trial under secs. 201, 302 and 365, I. P. C. THE case was partly tried by the then learned Sessions Judge, Jaipur City. THEreafter it was transferred to the court of the Additional Sessions Judge No. 1, Jaipur City, for trial. THE accused were charged under the aforesaid sections of the Indian Penal Code, to which they pleaded not guilty. In support of its case the prosecution examined 23 witnesses, including the approver Sajan, P. W. 1. Both the accused in their statements, recorded under sec. 342, Cr. P. C, denied the indictment. Tillumal also denied the fact that Ghasi was his employee. He further said that he did not meet the police constable Amar Singh. He also disowned the information memo Ex. P. 10, regarding the recovery of the watch (Art. 1) and the recovery memo Ex. P. 9. He then stated that Sajan (approver), Bansi and K. B. Singh, dealt in illicit liquor and they falsely implicated him. Tillumal added that Amar Nath, Excise Inspector, launched a false case against him and that he had nothing to do with the seizure of 93 bottles alleged to have been recovered by Lokesh Kumar from the possession of Narumal. Similarly the accused Assandas made a total denial of the crime, for which he was charged. He further stated that he did not see K. B. Singh, Ghasi or Bansi. In the end, he said that he was living in Ajmer during the relevant time. THE accused did not produce any evidence in their defence. THE trial court relied upon the statement of the approver Sajan P. W. 1 and on the corroborative evidence produced by the prosecution and convicted and sentenced the accused, as stated above. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What is an accomplice? There is no formal definition of the term 'accomplice'. An accomplice is one concerned with and one or others in the commission of a crime; see Whartons Law Lexicon, 5th Edn. and Wharton Cr. Ev. sec. 440. Persons who are "participle criminal in respect of the actual crime charged, whether as principals or accessaries before or after the fact are accomplices. This is surely the natural and primary meaning of the term 'accomplices', vide Davies vs. Director of Prosecution (1 ). In Hussain Umar vs. Dalpat Singhji (2), while approving the above citation of the House of Lords, it has been held that the witness concerned may not confess to his participation in the crime, yet it is for the Court to decide on a consideration of the entire evidence whether he is an accomplice. In the present case Sajan, P. W. 1, admits that he of his own accord or at the instance of Tillumal has participated in the crime. Therefore, he is an accomplice. The reasons which lead to the distrust of an accomplice's testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others It is ture that he is also charging himself, and in that respect he has burned his ships, but he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him, provided he helps them to secure the conviction of his partners in crime: vide Art. 2057 Wigmore on Evidence, 3rd Edn, Vol- VII. Where a person, who is an accomplice gives evidence, it is the duty of the Judge to seek corroboration. This rule although a rule of practice now has the force of law. In this connection a reference is made to Taylor on Evidence, 12th Edn, Art. 967, Vol. I, where it is said - "it may be regarded as a settled course of practice not to convict a prisoner, excepting in very special circumstances, upon corroborative testimony of an accomplice. " In Phipson on Evidence, 10th Edn. , P. 1569. the following useful passage occurs: "although the uncorroborated evidence of an accomplice is strictly admissible, it is a rule of practice, though not of law, that the Judge should warn the jury that it is always dangerous to convict on such evidence alone. . . . . . . . . . " In Bhiva vs. State of Maharashtra (3) it is mentioned that though the conviction of an accused on testimony of an accomplice cannot he said to be illegal, yet the courts will, as a matter of practice not accept the evidence of such a witness without corroboration in material particulars. There should be corroboration of the approver in materia] particulars and qua each accused. Similar views have been expressed in Buboni Sahu vs. The King (4 ). In the words of Lord Reading, G. J. in R. vs. Baskerville (5): "it has been long a rule of practice at common law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice. " Keeping in view the above authorities, it is clear that the combined effect of secs. 133 and 114 illustration (b ). Evidence Act, is that an accomplice is competent to give evidence and it is almost always unsafe to convict upon the evidence of an approver alone. Therefore, though the conviction of the accused on the evidence of an approver cannot be said to be illegal, yet the court will insist in not accepting his evidence without corroboration in material particulars. It is now to be seen what the phrase "corroboration in material particulars" means? Its answer is found in Wigmore on Evidence, 3rd Edn. Vol. VII Art. 2059 (c ). The learned author says: "but this phrase seems not to mean more, in any case, than that the corroboration must have the effect of persuading to trust the testimony. " Taylor on Evidence, 12th Edn, Vol. I, Art. 969 says - "some judges have deemed it sufficient if the witness be confirmed in any material part of the case; others have been satisfied with confirmatory evidence as to the corpus delicti only. . . . . . . . . . . . . " Phipson on Evidence, 10th Edn. P. 1569 writes - "as the nature and extent of the corroboration requires, it is now settled law, whether required by statute or common law, that there must be corroboration both as to the commission of the crime (i. e. , someone or more, but not of all) the material circumstances, otherwise the evidence of the accomplice would be superfluous. " In Halsbury's Laws of England 3rd Edn. Vol. 10 at page 460 it is laid down - "the corroboration need not be direct evidence that the accused committed the crime, nor need it amount to confirmation of the whole of the story of the witness to be corroborated; so long as it corroborates the evidence in some respects material to the charge under consideration. It is sufficient if it is merely circumstantial evidence of the accused's connection with the crime. " In Hussain Umar vs. Dalip Singhji (quoted supra), it is observed - "the corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should con-fim all the circumstances of the crime. " In Lachi Ram vs. The State of Punjab (6) his Lordship Bhargava J. lays down the principle on the subject of corroboration It will be useful to quote below para B of the judgment which runs thus - "it is true that there were some portions of the story of the approver for which no corroborative evidence was available. Learned counsel for the appellant pointed out that there was no corroboration of the fact that it was the appellant who mixed arsenic poison in the as sweets, nor was there any corroboration of the approver's statement that he himself handed over the sweets to Desi Ram's wife. This submission ignores the natural sequence of events. When poison was mixed with the Khoa, it could not be expected that the appellant would ensure presence of other persons to see him mixing the poison. Naturally, the poison was mixed at a time when there was no one else present, except the appellant himself and the approver who was his accomplice and whom the appellant had hired for the purpose of carrying out his scheme. At the latter stage when the approver gave the sweets to Devi Ram's wife, no corroborative evidence could be available, because Devi Ram's wife died of the poisoning and again, there is nothing to show that any other person was present when the sweets were delivered by the approver. " One of the earlier decisions is Sarwan Singh vs. State of Punjab (7), wherein it was laid down: "but it would not be right to expect that such independant 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 accomplice wholly superfluous. " In Dheshanna vs. State of Maharashtra (8), it has been observed by his Lordship Ray, J. that the nature of the corroboration required is that it should be confir-matory evidence and in para 16 it has been observed that it may be difficult to find corroborative evidence of the actual killing. 6. Having regard to the above authorities the first test to be applied in the case of an approver is that his evidence must show that he is a reliable witness, which is a test common to all witnesses. The second test, which ramains to be applied in such a case is that the approver's evidence must receive sufficient corroboration in material particulars. The corroboration may be direct or circumstantial. It is not necessary that the corroboration must be in respect of all the circumstances of the crime. We have carefully looked into the statement of Sajan (approver) P. W. I. He gives a graphic account of the whole story. There is nothing inherently improbable in his evidence and that the trial court has given a precise finding that the approver has given a truthful account of the whole story. It is true that there is no corroboration of the fact that the actual commission of the crime was seen by an independent witness. When the actual murder was committed in a lonely jungle, it could not be expected that the appellants would ensure the presence of other persons to see them committing the crime. The murder was committed at the time and place, when and where no one else was present except the appellants and the approver. That was dons to eliminate the possibility of detection. Moreover, the approver's evidence, as discussed above, has received sufficient corroboration due each accused. The trial court has held that the evidence of the approver was trust worthy and it stands corroborated on material parti-culars by reliable prosecution witnesses, who have been believed by the court below. We are, court therefore, unable to find any error in the judgment of the trial court, and in upholding the conviction of the appellants. In the result, the appeals fail and are dismissed. . ;