- (1.) THE accused-appellant Teka alias Tek Chand has been convicted and sentenced to death by the learned Additional Sessions Judge No. 2, Alwar by his judgment dated January 28, 1977. THE learned Additional Sessions Judge has made this reference for confirmation of the sentence of death and accused appellant Teka alias Tek Chand has filed an appeal from Jail against his conviction and sentence. As both these cases arise out of the same judgment, they are being disposed of by common judgment.
(2.) TERSELY speaking shorn of unnecessary details the prosecution story as disclosed at the trial is that Umar Khan (since deceased) and accused Jai Dayal (acquitted by the trial Court) were at daggers drawn. Jai Dayal wanted Umar Khan to be removed from the surface of earth and as such he approached Bhola-ram P. W. 2 (Approver) to suggest some way out. Thereafter Jai Dayal, Teka and Bholaram hatched a criminal conspiracy to commit the murder of Umar Khan. On the next day all the three met at the well of Jai Dayal where from a distance Jai Dayal pointed out Umar Khan and asked Teka to observe him properly so that mistake may not be committed. In pursuance of this conspiracy on April 7, 1975 the appellant went to the house of Umar Khan and inquired about the whereabouts of the inmates of the house. P. W. 5 Mst. Safedi informed him that Subhan had gone out and Umar Khan was on the well, whereupon the appellant went at the well of Umar Khan and found him sleeping. Umar Khan was awakened and the appellant expressed his desire to purchase a she buffalo. Umar Khan asked him to select the buffalo, but ultimately the accused-appellant disapproved them and asked the deceased to help him in purchasing a buffalo from some one else. Umar Khan showed his inability as he was shortly going to Tijara for some urgent work. It is alleged that in the evening at 5. 30 p m. the accused-appellant in the company of Umar Khan came to his field. He enjoyed the hospilability of Umar Khan, took his meals there. Umar Khan (deceased), Teka (accused-appellant) and P. W. 3 Mohammed Hanif (brother of the deceased) and PW. 4 Ishak Mohammed (son of the deceased) all the four shot on the well on the fateful night. It is alleged that PW 3 Mohammed Hanif and PW 4 Ishak Mohammed slopt on the same charpai. At the dead of the night PW 3 Mohammed Hanif and PW 4 Ishak Mohammed hearing the noise of a gun shot woke up. Both of them saw the accused appellant firing another short at Umar Khan as result of which he met instantaneous death. The accused-appellant took to his heels. A first information report of this occurrence Ex P/4 was lodged at the Police Station, Kishangarh by PW 3 Mohammed Hanif at 5-30 a. m. on April 8, 1975. The distance between the Police Station and the place of occurrence is ten miles PW 14 Mahendra Singh after registering the case came at the scene of occurrence. He prepared the site plan Ex P/3 and inquest report Ex. P/34 The pillow, Baniyan and heirs of the deceased were also seized. Autopsy on the dead body of Umar Khan was performed by PW 1 Dr. G. B. Khan-delwal on April 8, 1975 On opening the body he noticed pellets in the wound which were collected, sealed, labled and sent to the investigating officer with a forwarding letter Ex. P/2 on the same day. The post mortem report is Ex P/l. The police during (he course of investigation arrested accused Bholaram and Jai Dayal on April 14, 1975 and submitted a challan against them in the Court of Munsif Magistrate, Kishangarh on June 13, 1975. The learned Magistrate committed both of them to take their trial under Sec. 302 and Sec. 302 read with Sec. 120b I. P. C. On June 23, 1975 Bholaram was tendered a pardon and was made approver in the case. Accused appellant Teka was arrested on August 12, 1975 vide arrest memo Ex. P/6. At the time of his arrest he was armed with a gun. During the course of investigation he expressed his desire to get the pistol recovered. The information was reduced into writing and the same has been marked as Ex. P/44. In consequence of the information given by the accused-appellant Teka a country made 12 bore pistol was recovered from the place of its concealment. The recovery memo is Ex. P/45. The police after completing the investigation submitted a challan against the accused appellant. The accused-appellant along with Jai Dayal (acquitted by the trial Court) was ultimately tried by the learned Additional Sessions Judge No. 2, Alwar. The accused-appellant pleaded not guilty to the charge. The prosecution examined 15 witnesses in support of their case, out of whom PW 1 is Dr. G. B. Khandelwal, who performed autopsy on the dead body of Umar Khan. PW 2 Bholaram is the approver- PW 3 Mohammed Hanif is the brother of the deceased and PW 4 Ishak Mohammed is the son of the deceased. Both of them were examined as eye witnesses of the occurrence. PW 12 Mumtaz Ahmed Siddiqi was examined to prove the identification of the accused in the identification prade held under his supervision. The identification memo is Ex. P/7. PW 14 Mahendra Singh and PW 15 Padam Singh have been examined to prove the different steps taken during the course of investigation of the case. The accused-appellant denied his complicity in the crime. He did not examine any witness in his defence. The learned Additional Sessions Judge held that the evidence produced in the case against accused Jai Dayal was unbelievable. He further held that the prosecution has failed to prove that there was any dispute between Umar Khan and Jai Dayal regarding land. He extended benefit of doubt to accused Jai Dayal and acquitted him of the charges levelled against him. Placing reliance on the statement of PW 2 Bholaram (approver), the two eye witnesses PW 3 Mohammed Hanif and PW 4 Ishak Mohammed and other cirmustan-tial evidence, the learned Additional Session Judge found the prosecution case against the accused appellant proved beyond any shadow of doubt. He convicted the accused-appellant under Section 302 IPC and sentenced him to death. He also found him guilty of the offence punishable under Section 302 read with section 120b I. P. C. but he did not award any separate sentence under this count. The learned Additional Sessions Judge has made this refcrence for confirmation of the death sentence and the accused has challenged the conviction and sentence by filing an appeal from the jail. It cannot be disputed and has not rightly been disputed that the shots were fired at Umar Khan on the date and time alleged by the prosecution as a result of which he met instantaneous death. Dr. G B. Khandelwal P. W. 1 performed the post mortem examination on the dead body of Umar Khan. He found three lacerated wounds. In the opinion of the doctor, injury No. 1 was a wound of entry and injury No. 2 was the result of external injury No. 1. As regards the third injury the doctor noticed that it was a lacerated wound 2. 5 cm. x 2 cm. perforating the whole thickness of the skill and brain. The margins were inverted and the surrounding area was blackened. Brain matter was coming out of the wound. The temporal and occipital bones were fractured. The death of Umar Khan was, in the opinion of the doctor P. W. 1gb Khandelwal, due to fatal injury on the vital part i. e. the brain He further opined that the deceased must have taken his food approximately before four hours of his death. The learned counsel appearnig on behalf of the accused-appellant have urged that there are certain outstanding features of the case, which, according to them, are sufficient to throw doubt on the entire prosecution case. The arguments advanced by them will be dealt with shortly adseriatum the learned Public Prosecutor appearing on behalf of the State has supported the prosecution case. The learned counsel for the accused -appellant urged that criminal conspiracy has been defined in Section 120a, Indian Penal Code. By the term of definition itself there ought to be two or more persons, who must be parties to such a crime, one person alone can never be held guilty for criminal conspiracy for the simple reason that one person cannot conspire, with himself In the case in hand two persons namely, Jai Dayal and the appellant were charged wit having committed the offence under Sec. 120b I. P. C. and as Jai Dayal has been acquitted of the charge, the remaining accused-appellant cannot be held guilty of the offence of criminal conspiracy. No doubt the argument is attractive, but it suffers from an inherent weakness. We do not feel persuaded to agree with the learned counsel for the appellant. In the case in hand, apart from the two persons namely, Jai Dayal and the accused-appellant placed on trial, there was the approver P. W. 2 Bholaram, who implicated himself equally with the other accused as having been privy to the conspiracy. In such circumstances, the acquittal of Jai Dayal under Section 302 read with Section 120b I. P. C. cannot have the effect of vitiating the conviction of the appellant under Section 302 read with Section 120b I P. G. and his conviction cannot be set aside only on the ground that Jai Dayal was acquitted by the trial court It is not the requirement of law that more than one person should be convicted of the effence of criminal conspiracy. Reference may be to Bimbadhar Pradhan vs. State of Orissa (1 ). Keeping the above principle in view, we now proceed to evaluate the evidence regarding criminal conspiracy against the accused appellant. The trial Court has held that the evidence of conspiracy against the acquitted accused Jai Dayal was unreliable. Admittedly there is no other evidence regarding conspiracy against the accused-appellant except the statement of P. W. 2 Bholaram, who is an approver in the case. P. W. 2 Bholaram has been disbelieved by the trial Court regarding Jai Dayal and the State has not come up in appeal against his acquittal. If his statement regarding Jai Dayal has been disbelieved how aught we knew that it is true against the appellant. Besides that, his statement suffers from contradiction and inherent improbabilities. This witness in his statement recorded before the Magistrate stated that Teka agreed to commit the murder of Umar Khan for an amount of Rs. 1,000/-, whereas in his statement before the trial Court he stated that the deal was settled for Rs. 10,000/ -. The learned trial Court while discussing the evidence against the appellant though noticed this contradiction, but brushed it aside simply by saving that the contradiction might have appeared due to mistake in writing. The story as disclosed at the trial regarding criminal conspiracy of committing the murder of Umar Khan appears to be incredible on the very face of the record. It does not stand to reason why a men should risk his own life by committing the murder without obtaining a single pie in advance and even after committing the murder be satisfied by not getting anything for the ghastly murder committed by him According to P W. 2 Bholaram, Teka appellant is an out law and a dacoit by profession. It has come in the statement of this witness that after committing the murder of Umar Khan Teka went to Jai Dayal and demanded the stipulated amount, whereupon Jai Dayal put him off by saying that he will pay him on 29th or 30th. If Teka is an out law, a dacoit and a murderer as the witness wants us to believe then he would not have left Jai Dayal so easily without obtaining the price of the murder alleged to have been committed by him.
(3.) IT is pertinent to note that P. W. 2 Bholaram is an approver. An approver has always been regarded as an infamous witness, who on his own showing has participated in a crime and later to save his own skin, turned against his former associates and agreed to give the evidence against him in the hope that he will be pardoned for the offence committed by him. Whether the evidence of the approver be accepted or not is required to be determined by applying the usual test such as the probability of the truth of what he has deposed to. He is required to fulfil the double test. His evidence must show that he is a reliable witness. That is a test which is common to all witnesses. If this test is satisfied the second test, which still remain to be satisfied is that the approver's evidence must receive sufficient corroboration. The statements of P. W. 2 Bholaram can not be said to have been corroborated in material particulars by the statement of P. W. 8 Rampal. Simply because Bholaram P. W. 2 and the accused were seen together, it cannot be said that they were going from place to place in pursuance of the conspiracy. The statement of Bholaram has not been corroborated in material particulars regarding conspiracy and as such the evidence of conspiracy cannot be relied upon. We hold that P. W. 2 Bholaram is neither a witness of truth nor his statement stands corroborated in material particulars and as such the conviction of the accused-appellant under Sec. 302 read with sec. 120 B I. P. C. cannnot be maintained. Now we will deal with the conviction of the accused-appellant under Section 302 I. P. C. The learned counsel for the appellant urged that the first information report is a highly suspicious document. Though it is alleged to have been despatched on April 8, 1975, but it appears from the endorsement on the first information report that the Magistrate received it on April 14, 1975. The court of the Magistrate was nearby, which makes it difficult to understand why the report could be received by the learned Magistrate after six days. He further urged that the first information report must have been recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements, embellishments and set up a distorted version of the occurrence. Inspite of sufficient opportunity and president querry by the Court the learned Public Prosecutor appearing on behalf of the State failed to give any explanation for the extra ordinary delay in the receipt of the report by the learned Magistrate In this case the suspicion regarding the first information report hardens into a definite possibility when one finds that the detailed description of the accused alleged to have given by the author of the first information report has been disowned by him. PW 3 Mohammed Hanif stated as under: *** PW 2 Bholaram in his statement before the trial Court admitted that he was summoned by the police on April 9, 1975 who interrogated him regarding Teka. A categorical statement by PW 3 Mohammed Hanif that he did not give description of physical features of Teka accused to the police while giving the first information report when read with the statement of PW 2 Bholaram is suggestive of the fact that police might have noted down the physical features of the accused after knowing it from Bholaram and Jai Dayal and the first information report Ex. P/4 was recorded much later than the date and hour mentioned in the first information report. The above mentioned circumstances do cast a reflection on the fairness of tie investigation. Then we have got the statements of the two eye witnesses P. W. 3 Mohammed Hanif and P. W. 4 Ishak Mohammed. The main point which arises for decision is whether we can safely act upon the evidence of P. W. 3 Mohammed Hanif and P. W. 4 Ishak Mohammed. Both these witnesses are close relatives of the deceased. P. W. 3 stated that at the relevant time when the accused and Umar Khan came on the field he was cutting the crop. On inquiring his brother told that the stranger wanted to purchase the she buffalo. At that time the stranger told him that he did not approve the she buffalo of Umar Khan and that he would purchase the buffalo owned by a Sharnarthi of Sallan village. The witness goes on to state that after some time he left the place and went to his house for taking his meals and whom he returned back his nephew, the stranger and Umar Khan all were fast asleep. He slept by the side of his nephew on the same cot. In between the period he had gone for taking his meals, the meals were provided to the stranger by his nephew. There appears to be considerable force in the contention of the learned counsel for the accused-appellant that this witness had no reason to be on the scene of occurrence at the relevant time. A perusal of the first information report Ex P/4 shows that the accused-appellant had seen the buffalo of Umar Khan in the morning and as such there was no reason for him to come to the well of Umar Khan again in the evening. It appears unusual that though the accused did not intend to purchase the buffalo of Umar Khan and yet he should come to his well at 5. 30 in the evening and the latter should provide him meals and allow him to sleep with him. Admittedly P. W. 3 Mohammed Hanif did not take his meals at the well. He had gone to take his meals to his house and there was no reason for him to have his own wife all alone in the house and come to the well late in the night and sleep on the cot on which his nephew was sleeping. It will be pertinent to note that it was hot summer night and sleeping of two persons on one cot can by no means be said to be convenient or comfortable. Pw, 4 Ishak Mohammed has more or less made a similar statement as made by P. W 3 Mohammed Hanif. Being the son of the deceased he is an interested witness. He also stated that 15 or 16 persons were mixed with the accused at the test identification parade. This portion of the statement is appa-rantly false, because in the test identification memo Ex. P/7 it has been specifically mentioned that six persons were mixed with the accused at the time of test identification parade. His statement also suffers from the infirmities appearing in the statement of P. W. 3 Mohammed Hanif. Besides that, he was young boy and it would be prudent to seek corroboration from other evidence. In Bhikha Valu vs. The State of Gujarat (2) their Lordships of the Supreme Court while con-siderirg the evidence of Khengar, who was a boy of 14 years observed as under: " The High court adopted the correct approach in finding that though there were no infirmities of Khengar's evidence as it stood but in view of the fact that he was a young man is would be prudent to seek corroborationof Khangar's evidence. " The observations made by their Lordships of the Supreme Court in the above noted case squarely applies to the facts of this case, because P. W 4 Ishak Mohd. was admittedly a boy of nearly 15 years on the date of the occurrence. ;