- (1.) THIS is an appeal under sec. 417 of the Criminal Procedure Code filed on behalf of the Government against the judgment of the Additional Sessions Judge, Gangapur, dated the 31st March 1951, by which Bishna, who was charged with an offence under sec. 302 I. P. C. was acquitted.
(2.) THE facts of the case are that Nanga wanted to marry and in this connection he negotiated with Bishna and it was settled between them that on payment of Rs. 500/-Bishna would find a girl for him. In furtherance of this object, on the 4th of May 1950 Nanga came to Akrond where Bishna resided. That evening there was Ramlila performance in the village and after the show was over Nanga, Bishna, Kajor and Moolchand started for the temple of Khakhdar along with Mst. Gulbi. Gulbi had consented to be given in marriage to Nanga and she accompanied for the very same purpose. THE party reached the temple at Khakhdar at about midnight and Nanga gave Rs. 300/- to Bishna and kept back Rs. 200/- with him saying that if any dispute arose regarding the marriage he may have to spend the remaining amount to defend himself. Bishna wanted the full amount of Rs. 500/- as promised earlier. Upon this difference between Nanga and Bishna having arisen Bishna hit Nanga on his neck with a pharsi causing his death. THE dead body of Nanga was thrown in a nearby well and his kara, kanagati, Murki and turban, which he was wearing at that time were taken by the accused. It is said, Gulbi having seen this occurrence ran away from the spot but she was warned by Kajor that if she would relate this incident to some one she would be beaten. Gulbi then kept silent and did not inform anybody about this occurrence. THE next "morning Kajor and Johri Patel lodged an information with the police to the effect that during the night: a buffalo was stolen and as Kajor and the chaukidar were following the footprints of the thieves when they came across a pool of blood and a blood-stained Dhoti near the temple at Khakhdar. Lilaram Head Constable having received this report went on the spot and started investigation. From the well nearby he recovered a dead body which was later identified to be that of Nanga by Ramsahai, on the basis of the identity of the clothes which were found on the dead body. Ram Sahai could not see the dead body himself and at Akrond no one was found who knew the deceased. THE body was therefore disposed of after post-mortem examination without identification but subsequently the clothes of the deceased which were found on the dead body were identified and it was found that the dead body was that of Nanga. Bishna was arrested on the 8th of May in connection with the murder of Nanga and from information received from him the police recovered a kanagti, murki, kara and a turban from his house which the deceased was wearing on the day when he was last seen at Akrond. THEse articles were found buried in a heap of chaff in the house of Bishna from where the police recovered them. THE police chalaned Bishna, Kajor, Moolchand and Sheochand under sec. 302 I. P. C. but all except Bishna were discharged by the committing Magistrate. Bishna was committed to the Court of Sessions to stand a trial of the offence under sec. 302 I. P. C. but he was also acquitted. In this appeal, it was urged that the learned trial Judge was not right in rejecting the statement of Mst. Gulbi who was an eye-witness on the ground that she was no better than an accomplice and that her statement could not be made use of, unless it was corroborated in material particulars. It is also contended that even if the accused was acquitted of an offence under sec. 302 I. P. C. he should have been convicted of an offence under sec. 201 LP C. because Bishna has himself conceded at the time of the trial that he received the ornaments of the deceased from Kajor and Moolia and that he had seen them both committing the murder of Nanga. The ornaments have been recovered from the house of Bishna where they were lying hidden deep under a heap of chaff. These facts, it is said, were sufficient to warrant a conviction of the accused under sec. 201 I. P. C. The case of the accused was that he did not commit the murder of Nanga. Kajor and Moolia in fact inflicted two injuries on the person of Nanga and caused his death, in the presence of the accused. Nanga was to take away Gulbi from that village Akrond and as she had intimacy with Kajor, Kajor did not like that Nanga should take away Mst. Gulbi from that village. He, therefore, with the help of Moolia committed this murder. After the murder Kajor and Moolia gave the ornaments of the deceased to Bishna saying that the deceased was his relation and that they had already received cash of the deceased and Bishna was to receive the ornaments as his share. The ornaments were, therefore, found with the accused and the police received them from his possession. The only direct evidence regarding this murder is of Mst. Gulbi who has stated that she had agreed to be given in marriage to Nanga and that in connection with her giving away Bishna, Kajor, Mulia, Nanga and herself left Akrond late in the night for the temple at Khakhdar and when the party reached the temple Nanga gave Rs. 300/- to Bishna and Bishna demanded Rs. 500/- from him. Nanga having refused to make good the difference he was hit by Bishna with an axe on his neck. The witness thereupon ran away from the spot along with Moolchand but she was warned by Kajor before she could leave not to make a mention of this occurrence to any one whatsoever. She did not tell any one about this till she was questioned by the police. She also states that she was afraid of disclosing anything about this occurrence for she had been warned by Kajor. In addition to the statement of Mst. Gulbi one other fact has been proved against the accused regarding the recovery of the ornaments and the turban of the deceased which he was wearing the evening before the murder. Ram Sahai, the brother of the deceased, has identified the ornaments kanagti, kara, murki and the turban to belong to his brother. Mst. Gulbi has also stated that the deceased was wearing these ornaments and the turban at the time of his murder which subsequently were recovered from the possession of the accused Bishna. The trial court having put reliance on the authorities of the decisions in Sundarlal and other vs. Emperor (1); Turab vs. Emperor (2) (A. I. R. 1935 Oudh 1.); Emperor vs. Kallu (3) (A. I. R. 1937 Oudh 259.); Nawab vs. The Crown (4) has observed as follows: - "therefore, the position of Mst. Gulbi is only a little better than that of an accomplice, but her statement cannot be looked at free from suspicion and cannot be made a basis for conviction unless and until she is corroborated in material particulars. It is now a well settled principle of law also that the evidence of an accomplice should be corroborated before it can be relied upon. In the present case before me there is no evidence to corroborate this witness. There is no evidence to show that the accused Bishna committed this murder or was a party to this murder except this solitary statement of Mst. Gulbi. It appears there is some conflict of decisions among the High Courts in India on the point whether the statement of a witness who was present at the time of the commission of the offence and who did not disclose the fact of the commission of the offence to any one should be regarded no better than that of an accomplice. In Nawab vs. The Crown (4) it has been observed as follows: - "it has, however, been frequently laid down that when a person sees a murder committed and gives no information thereof, his evidence is little better than that of accomplice. " In Ismail vs. Emperor (5) (A. I. R. 1947 Lahore 220.) the Chief Court of Oudh did not follow the decision in Nawab vs. The Crown (4) and it adopted the views of Thomas, C. J. expressed in Jagannath vs. Emperor (6) (A. I. R. 1942 Oudh 221. ). The relevant observations are as follows: - "the word 'accomplice' has not been defined by the Evidence Act, and should therefore be presumed to have been used in its ordinary sense. An accomplice means a guilty associate or partner in crime, or who, in some way or other, is connected with the offence in question or who makes admission of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. The fact that he did not make a report to the police soon after the occurrence or the following morning by itself does not make him an accomplice. An accomplice confesses himself a criminal who has been concerned in the commission of a crime, participles criminis, whether he is concerned in the strict legal propriety as principal in the first or second degree or merely as accessory before or after the fact. All accessories before the fact, if they participate in the preparation for the crime, are accomplices, but if their participation is limited to the knowledge that a crime is to be committed they are not accomplices. Whether a person is or is not an accomplice depends upon the facts in each particular case considered in connection with the nature of the crime and persons to be accomplices must participate in the commission of the same as the accused persons in a trial are charged. " In Sunderlal and others vs. Emperor (1) (A. I. R. 1934 Oudh 315.), the proposition laid down by the case of Nawab vs. The Crown (4) (A. I. R. 1923 Lahore 391) was not accepted and it was observed as follows: - "although we are not prepared to go to the length of saying that the evidence of a person who has seen a murder committed and does not give any information thereof is little better than that of any accomplice as did the learned Judges of the Lahore High Court in Nawab vs. Emperor (A. I. R. 1923 Lah. 391), we are free to confess that we have grave reasons to suspect the truth of the story told by Bihari Kachhi, in the case before us, and that his evidence does not impress us as being reliable. In Turab vs. Emperor (1) (A. I. R. 1935 Oudh 1.), the Chief Court followed the proposition laid down by the decision of the earlier case of the same court in Sunderlal vs. Emperor (2) (A. I. R. 1934 Oudh 315.), which has been referred to above. In this case it was further held that the witness became an accessory after the commission of the murder by assisting the accused in disposing of the corpse. The statement of the witness was therefore not relied upon. In Brijpalsingh vs. Emperor (3) (A. I. R. 1936 Oudh 413.) the court accepted the minority view of Boddam, J. in Ramaswami Gounden vs. Emperor (4 ). In this Oudh case the two eye-witnesses who were produced by the prosecution were accessories after the incident and their statements were not relied upon as no material corroboration was available in support of them. The statement of one witness was held to be no corroboration in support of the statement of the other witness, because both the witnesses were accessories after the incident. The court-expressed its dissent from the majority judgment in Ramaswami Gounden vs. Emperor (4) (I. L. R. 27 Mad. 271.) referred to above. In Emperor vs. Kallu (5) the Oudh Chief Court changed its view on this point and held that a witness who was present at the time of the commission of the offence and who thereafter did not give information of the offence as required under sec. 44 Cr. P. C. should be considered to be an accessory after the incident and without material corroboration his evidence should hot be relied upon. This was a case under sec. 302 I. P. C. and the witness was the wife of the accused in whose presence the deceased was murdered by her husband. Even though the wife did not assist the accused in any way in the commission of the crime or thereafter in disposing of the dead body her statement was not believed without corroboration as she was considered no better than an accomplice, on the ground that she had failed to inform the police as required by sec. 44 I. P. C. The material observations on this point are as under: - "next as regards the question whether Mst. Duiji was an accessory after the fact or not, Ratanlal in his Law of Crimes, 13th Edn. p. 243 describes an accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, assists, harbours, or maintains the felon. It is admitted that the murder in the present case was committed in the presence and within the sight of Mst. Duiji. In the circumstances, she was under sec. 44 Criminal Procedure Code under a legal obligation of forthwith giving information to the nearest Magistrate or Police Officer of the commission of the murder. She did not do so even when her husband Kallu had gone away to Cawnpore about ten days after the murder. Her conduct in not divulging the crime was clearly intended to assist the accused. In the circumstances we think she must be regarded as an accessory after the fact. " p. 261. In Birja vs. Emperor (6) the Oudh Chief Court again reverted to its original view which had been expressed in Sunderlal and others vs. Emperor (7) (A. I. R. 1942 Oudh 221. ). The principle laid down in Emperor vs. Kallu (5) (A. I. R. 1937 Oudh 259.) was not followed in Birja vs. Emperor's case by the same court. It was observed in Birja's case that though it cannot be said that the evidence of a person who says he had seen a murder committed but did not give any information thereof is little better than that of an accomplice yet his evidence cannot be free from suspicion.
(3.) IT will be noticed that the definition of "accomplice" in Jagannath vs. Emperor (6) (A. I R. 1941 Oudh 563.) does not agree with the view expressed in Emperor vs. Kallu (5 ). We next turn to the decisions of the Madras High Court. Ramaswami Gounden vs. Emperor (4) is a Full Bench case and the majority judgment was delivered by Subrahmania Ayyar Offg. , C. J. and Bhashyam Ayyangar, J. and it was held by them as follows: - "the witness was not an accomplice in the crime for which the accused was charged in asmuch as he had not been concerned in the perpetration of the murder itself. Even assuming that, after the murder had been committed, the witness had assisted in removing the body to the pit, and that he could have been charged with concealment of the body under sec. 201 of the Penal Code, that was an offence perfectly • independent of the murder, and the witness could not rightly be held to be either a guilty associate with the accused in the crime of murder, or liable to be indicted with him jointly. The witness was therefore not an accomplice and the rule of practice as to corroboration had no application to the case. " The minority judgment in this case was given by Boddam, J. and he expressed his opinion in the following terms: - "even if the witness was not an accomplice having regard to the fact that he was cognizant of the crime for 15 days without disclosing it and that he had a cause of quarrel with the accused at the time when he did disclose it, it would be most unsafe to act upon his evidence unless it was corroborated in some material particular connecting the accused with the crime. " In re: Addanki Venkadu (1) (A. I. R. 1939 Madras 266.) a similar view was expressed as in the majority judgment of Ramaswami Gounden vs. Emperor (2) (I. L. R. 27 Mad. 271.) and it was held as follows : - "the circumstances that the deceased met his death at the hands of the accused in the presence of his wife who was probably in love with the latter and that she made no attempt to prevent the commission of the crime do not, in the absence of evidence to show that she shared with the accused the intention to kill the deceased, render her an accomplice whose evidence requires corroboration under the provisions of the Evidence Act. " Lastly, we would refer to the decision in Hafijuddi and others vs. Emperor (3 ). In this case it has been observed as follows: - "the testimony of a person who may not be an accomplice in a strict sense of the term but a person who in any way helped in the commission of the offence for which the accused are tried, or was cognizant of it, and ommitted to disclose it for a time, is not a testimony as could justify a conviction, except where there is corroboration. So far as the statutory provisions are concerned, there is nothing in law to justify the proposition that evidence of a witness who happens to be cognisant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case is the degree of credit to be attached to the testimony of such a witness; and that depends on all the facts and circumstances of the particular case; it may not be possible to place much reliance on the evidence coming from persons falling within the description given above, but they are not accomplices and it leads to confusion of thought to treat them as 'practically accomplices' and then apply the rule as to their credibility, instead of judging their credibility on a careful consideration of all the particular facts of the case affecting the evidence. " Having discussed all these authorities, we would like to note that a witness who was present at the time of the commission of the offence and who did not take part in any way in assisting the accused but who for one reason or the other could not inform the police about the occurrence cannot be regarded as an accomplice, and his testimony cannot be brushed aside solely for the reason that his evidence is no better than that of an accomplice. It would be different if such a witness does anything to assist the accused in the commission of the crime or which may render him an accessory after the incident. In such a case he may be considered an accomplice on account of the fact that he in some way or the other helped the accused after the event. We are in respectful agreement with the views expressed in the judgment of Hafijuddi and others vs. Emperor (3) (A. I. R. 1934 Cal. 678. ). The credibility of a witness who was present at the time of the commission of the crime and who subsequently did not disclose this fact to the police or to some one else shall have to be judged in each case on the merits and no rule can be laid down regarding the value to be attached to the statement of such a witness. Such a witness cannot be regarded as an accomplice or his evidence cannot be considered to be no better than that of an accomplice. The rule laid down in Nawab vs. The Crown (1) (A. I. R. 1923 Lahore 391.) does not appear to be a correct one. With these observations, we would like to judge the value of the testimony of Mst. Gulbi in the present case. Mst. Gulbi herself did not take part in the commission of the crime in any way. The accused and the deceased assembled to settle her marriage with the deceased and she was present at the spot for this very reason. It was on account of a difference between Nanga and Bishna which arose on the spur of the moment that Bishna is said to have lost' his temper and inflicted fatal blows on the person of Nanga. The witness having seen this occurrence is said to have run away from the spot. She was, it is said, threatened by Kajor not to disclose anything about this occurrence to anybody and on account of this threat she thought herself helpless in giving the information about this incident to the police or to any one else before she was summoned by the investigation officer. The mere fact that she did not disclose this occurrence to any one does not make her an accomplice. It was her duty under sec. 44 Cr. P. C. to give information to the police about the commission of the murder which had been committed in her own presence, but the mere fact that she failed to discharge the responsibility put on her by law does not put her in the category of an accomplice. The rule of prudence about the corroboration of the evidence of an accomplice would therefore not apply to the case of Mst. Gulbi and it would be necessary to examine the evidence of Gulbi on merits. We find that Mst. Gulbi has changed her statement from time to time. She has herself conceded in the statement recorded in the court of the Sessions Judge that her statement before the police that her marriage with Nanga was settled three days before the occurrence was wrong. She went on to say that it was on the date on which the murder was committed that she was shown to Nanga and her consent was obtained about her marriage with him. Though this fact has little bearing on the murder this does show that the witness is capable of making improvements in her statement for some reason or the other. Regarding the presence of Ram Sahai on the scene of occurrence she changed her version in the Court of Sessions. Before the committing Magistrate she stated that Ram Sahai was present at the time of the murder but in the Court of Sessions she changed this statement and stated that Ram Sahai was not present. The only explanation given by her for this change is that she had forgotten to state correctly the fact before the committing Magistrate. This explanation does not appear to be satisfactory. She could not have forgotten the incident when she stated before the committing Magistrate, because the incident must have been more fresh at that time than what it would be the case at the time when she gave the statement before the trial court. In the case of murder it would be unsafe to convict the accused on the sole testimony of a witness who had no scruples and who can change her version to suit the requirements of her own notions from time to time. Under these circumstances we think it is not safe to convict the accused on her sole testimony. There is no other evidence on the record to connect the accused with the crime of murder except the recovery of silver ornaments and a turban of the deceased from the possession of the accused. The explanation of the accused is that he received these articles from Kajor after the murder. This explanation is not an improbable one. The fact of the recovery therefore by itself cannot establish the fact of murder against the accused. 19. The learned Government Advocate has urged that even though the accused may be acquitted of an offence under sec. 302 I. P. C. he should have been convicted of an offence under sec. 201 I. P. C. He has cited the decision in the Public Prosecutor vs. Munigan alias Munisami (1) (I L. R. 1941 Mad. 503, ). The facts of the case are very similar to the facts of the case in The Public Prosecutor vs. Munigan (1 ). In that case it appeared from the statement of the accused that he took from the man who, according to him, committed the murder a jewel which was unquestionably the property of the deceased and he hid it and produced it later. It was held that the accused, when he hid the jewel, had the intention of screening the offender, whoever he was, from legal punishment and so was guilty of an offence under sec. 201 I. P. C. At the time of the trial the accused Bishna admitted that the statement made by him before the Extra Magistrate, Sawai Madhopur, was true. In that statement he had stated that Kajor and Moolia committed the murder in his presence and some time after the murder both of them came to him and gave him the ornaments of the deceased as his share in the profits of the ill-gotten gains. The accused at first refused to take the ornaments but he says that he threw them before him and went away. The accused thereupon took them. He has not stated anything about hiding the ornaments and the learned counsel of the accused has laid much stress on the fact that as there was no evidence about the hiding of the ornaments by the accused he should not be convicted of an offence under sec. 201 I. P. C. It may be pointed out that the three ornaments of the deceased, kanagti, kara, murki and a turban were recovered by the police at the instance of the accused from a heap of chaff in which they had been lying hidden. The manner, in which these articles were recovered goes to show that some one must have hid them at that place. Taking this fact along with the other fact that these articles were given by Kajor and Moolia to Bishna the inference is irresistible that these articles were hid by the accused in a heap of chaff. The accused knew that they belonged to the deceased and he also knew about the commission of the murder. The fact that he hid the ornaments which were subsequently recovered at his instance gives rise to an inference against him that he did so for causing the evidence to disappear to screen the offender whoever he may be from legal punishment. He is, therefore, liable to be convicted under sec. 201 of the Indian Penal Code. The accused was merely charged for an offence under sec. 302 I. P. C. but he can be convicted for an offence under sec. 201 I. P. C. in view of the decision of their Lordships of the Privy Council in Begu and others vs. King-Emperor (2) (A. I. R. 1925 P. C. 130. ). ;