K.D. Sharma, J. - (1.) D .B. Criminal Appeal No. 80 of 1974 filed by Gurnam Singh and D.B. Criminal Jail Appeal No. 131 of 1974, preferred by Avtar Singh, arise out of one and the same judgment of the Sessions Judge, Sri Ganganagar, dated January 17, 1974, by which each appellant was convicted under section 302 read with section 34 and 201, I.P.C. and sentenced to undergo imprisonment for life on the first count and on the second to suffer rigorous imprisonment for two years. The prosecution case against both the appellants was as follows: -Two days prior to September 11, 1972, at about 2 p.m., Gurnam Singh appellant met Karnail Singh, approver, at his house situated in 3 H, Choti. He had a battle of liquor with him. Both Gurnam Singh and Karnail Singh took in liquor. Under intoxication of wine, Gurnam Singh disclosed to the approver that he wanted to kill a person. Gurnam Singh, however, did not disclose the name of the person to be murdered by him. Thereafter, he wont to his house situated in Chak 20Z the very day in the evening. Thereafter on September 11, 1972, Gurnam Singh appellant accompanied by Avatar Singh appellant and Jeet Singh, deceased, came to the approver in the evening about one hour before the sun -set. At that time the approver was plastering a temple. Gurnam Singh and his associates took one cot from a Sadhu and sat in the neighbouring field and began to drink wine. After sun -set the approver finished his work and joined Gurnam Singh and his companions in drinking wine. After taking in some liquor along with Gurnam Singh and his associates, the approver went to his house for taking bath and for preparing food. Then Jeet Singh, deceased, and Gurnam Singh appellant visited the approver's house. The approver asked them where Avatar Singh had gone. Thereupon, Gurnam Singh replied that he had gone to his house to call for Kulvir Singh. After some time Avatar Singh and Kulvir Singh also came to the approver's house. Gurnam Singh asked the approver to fetch wine from the shop. The approver brought liquor and all of them then consumed it. Thereafter, the approver was again sent to purchase more wine. He brought about 1 1/2 bottles of wine, which also was taken in by all of them. Thereafter, the approver brought half a bottle of wine again and all the five persons proceeded on foot towards 20 Z. On the way, near the house of one Gurdayal Singh, Jeet Singh, deceased, abused Avatar Singh appellant in a foul manner under intoxication of wine. Avatar Singh also hurled abuses upon the deceased. The other persons asked them not to exchange filthy abuses. Avatar Singh and appellant thereafter proceeded towards 20z along with their companions. When they went about two Bighas away from the house of Gurdayal Singh, all of them again took in wine and proceeded further. Jeet Singh, deceased, was going a little ahead of his associates. Behind him Avatar Singh was going having a lathi in his hand and he was followed by Gurnam Singh appellant, Kulvir Singh and the approver. Gurnam Singh had a 'Gupti' in his hand while Kulvir Singh was armed with a 'Barcha', the approver was empty banded. All of sudden, Avatar Singh appellant struck a lathi blow on the back -side of the neck of Jeet Singh, deceased. As a result of this blow, Jeet Singh fell -down. Thereafter Gurnam Singh appellant dealt two or three blows with his 'Gupti' on the front side of his neck. Karnail Singh, approver, intervened and tried to rescue the deceased. In the course of intervention, he received an injury from the 'Gupti' of Gurnam Singh appellant. Gurnam Singh, appellant, thereupon, told the approver that Jeet Singh was the person whom he wanted to kill. Then Karnail Singh approver caught hold of the legs of the deceased and Kulvir Singh (absconder) inflicted two blows on the stomach of Jeet Singh with his 'Barcha' Thereafter, all the four assailants dragged Jeet Singh at a distance of about 1 1/2 Bighas towards 3 H. Choti and brought him to a water -channel which had some water in it. The deceased was again dragged along with the water -channel towards the village. The assailants found life in the deceased. So Gurnam Singh asked his companions to drown Jeet Singh in the water. Then they threw the body of Jeet Singh into the water and stood over it for some time. Jeet Singh breathed his last. Then the dead Body was taken out of water and tied with the bush -shirt and trousers of the deceased and the piece of cloth of Avatar Singh appellant was tied to the lathi and 'Barcha' and was carried away to a canal through the fields and 'Kutcha' routes to the canal half filled with water. The dead body was then thrown into the canal. Kulvir Singh, absconder, and Avatar Singh, appellant, thereafter went to their village 3 H. Choti along with Gurnam Singh. The approver also went from there to the house of one Ratna Chamar and slept there. On the next day in the morning, the approver came to his house from the house of Ratna Chamar. When he reached his house, he saw Gurnam Singh appellant standing there. Gurnam Singh asked the approver to go to the place where Jeet Singh was murdered and to see that no clue of murder was left there. The approver went on bicycle to the place where Jeet Singh was murdered and found the nicker of the deceased lying on the ground near the road. When the approver was locking at the nicker Phuman Singh asked him what he was doing. The approver replied that the nicker was of Jeet Singh who had been murdered by Gurnam Singh, Kulvir Singh and Avatar Singh. Then Karnail Singh approver came back to his house leaving the nicker there. At his house he told Gurnam Singh appellant that the nicker of the deceased was lying there but he could not pick it up as Phuman Singh was there. Thereupon, Guruam Singh asked the approver to go with him and to inform the father of Jeet Singh, deceased Gurnam Singh and the approver went on bicycle to village 20Z and met Niranjan Singh, father of Jeet Singh deceased in the latter's field. Gurnam Singh appellant disclosed to Niranjan Singh, father of the deceased, that his son Jeet Singh had been murdered by Kulvir Singh, absconder, Avatar Singh and the approver. Niranjan Singh told Gurnam Singh, appellant, that he had taken his son Jeet Singh along with him from the village and that he was murdered. Then Niranjan Singh along with Gurnam Singh appellant and the approver went to the place where Jeet Singh was murdered. He saw Jeet Singh's nicker lying there. He noticed marks of dragging also. Meanwhile other inhabitants of the village also reached there and Niranjan Singh accompanied by Gurnam Singh rushed to the police station for making a report. He lodged a first information report about the incident of murder with the police at police station, Chunawad, on September 13, 1972 at 11.30 a.m. The report contained all the facts disclosed to him by Gurnam Singh appellant. On the basis of the report Birju Singh, Head Constable, registered a criminal case under section 302 read with section 34, I.P.C., and sent a copy of the report to the Station House Officer at Ganganagar for investigation. He rushed to the place of occurrence for supervision of the site. Inder Singh, Station House Officer on receipt of the copy of the first information report took up the usual investigation into the matter and reached the place of occurrence along with the Circle Officer. He inspected the dead -body of Jeet Singh, prepared a 'Panchnama' Ex. P. 7 and the inquest report Ex. P. 6. He prepared the site -plan and the site inspection memo at the instance of the father of the deceased and took blood stained earth and one nicker, i.e. 'Kachha' of the deceased into his possession. Then he seized the piece of cloth, bush -shirt and the pieces of trousers also and recorded the statements of Niranjan Singh, Hari Das and Phuman Singh. The dead body of Jeet Singh was sent to the Medical Jurist, General Hospital, Sri Ganganagar, for post -mortem examination. Dr. M.P. Agrawal, conducted an autopsy over the dead body at 12.30 p.m. He found the following external injuries on the body of Jeet Singh: - 1. soft tissue swelling 3" x 2" on the right cheek in front of the ear. There was bleeding from the right ear; 2. INCISED wound 1/4" x 1/8" bone deep with fracture of mandible 3/4" on the left side of the chin (transverse); Incised wound 3/4" x 1/8" x bone deep (oblique) on the centre of the inferior aspect of the chin; 3. BRUISE with abrasion irregular 2 ¼" x 1 ¼" on the left side of the neck anterior laterally, with a second bruise 1/4" x 1/4" x 1/4" medial to the preceding one near the centre of the neck anteriorly; 4. BRUISE with abrasion 2 1/2" x 2" on the left side of forehead; Bruise 1" x 1/4" on the anterior aspect of left shoulder (vertical); 5. INCISED wound 1 ¼" x 3/4" x peritoneal cavity deep (vertically oblique) with omentum protruding out, 3" below and on right side of the umbilicus on anterior abdominal wall on right iliac region; 6. INCISED wound 1 1/2" x 1/2" x peritoneal cavity deep (transverse) on the left side of supra pubic region; Bruise multiple abrasion 19" x 9" (vertical) on the left side of whole back of chest, lumber region and iliac and gluteal region; 7. BRUISE with multiple abrasions 9" x 3" on the right side of the chest lower 1/4"; 8. BRUISE with multiple abrasions all over the right scapular region 5" x 3"; Incised wound 1/2" x 14" abdominal cavity deep on the right lumber region of the back. There were soft tissue haematoma over the right tempo -parietal region. There was fracture of the petrus part of the right temporal part of the bone Membranes and the brain were congested. There was haemorrhage in the right fossa. There was heamorrhage also in soft tissues in the left side of the neck. Larynx and trachea were congested. Both the lungs were congested and frothy. Froth mixed with blood was coming out of the mouth and nostrils. On pressing the chest stomach was found empty and congested Mesentery of the colon and caecum showed perforation and haemorrhage in the mesentery under injury No. 7. Liver, spleen and kidney were congested. In the opinion of the Medical Jurist, the cause of death of Jeet Singh was asphyxia, heed injury with fracture, base of skull, intra -cranial haemorrhage and shock with multiple injuries. In the opinion of the Doctor, the injuries found on the dead body were sufficient in the ordinary course of nature to cause the death of Jeet Singh Then he handed over the investigation to Sadhu Singh, ASI as he had to go outside for giving evidence in some other case. Sadhu Singh arrested Karnail Singh, approver, and Gurnam Singh appellant vide memos of arrests Exs. P. 14 and P. 15 respectively and handed over the investigation again to the Station House Officer upon his return on October 1, 1972. The Station House Officer got Karnail Singh medically examined as to his injuries and then went on leave from October 10, 1972. Thereafter, his successor Harnam Singh, S.H.O. made investigation into the case. In the course of investigation, Avatar Singh, appellant, gave him an information, while in custody, on November 30, 1972, that he had concealed one lathi in a cluster of reeds and that he was prepared to get it recovered at his instance. The Station House Officer recorded the above information in a memo Ex. P. 16 and recovered the lathi at the instance of Avatar Singh, appellant, and in consequence of his information. The lathi was seized and sealed by Harnam Singh in the presence of Motbirs Thereafter pardon was granted to Karnail Singh who turned an approver in this case. Kulvir Singh accused could not be arrested as he was absconding. So a challan was filed against him under section 512, old Cr.P.C. Harnam Singh, Station House Officer filed a charge -sheet against Gurnam Singh and Avatar Singh appellants also in the court of the Additional Munsiff and Magistrate First Class, Sri Ganganagar, under sections 302, 201/34, I.P.C. The learned Magistrate held an inquiry, preparatory to commitment, and upon finding a prima -facie case exclusively triable by the court of Sessions, committed both the appellants to the court of the Sessions Judge, Sri Ganganagar, for trial under section 302 and 201, I.P.C. and in the alternative under section 302 read with section 34, I.P.C.
(2.) THE Sessions Judge, Sri Ganganagar, tried both the appellants for the aforesaid offences and found them guilty under section 302/34 and 201, I.P.C. and sentenced them in the manner stated above. Aggrieved by their convictions and sentences both the appellants have preferred separate appeals in this Court. As both the appeals are directed against one and the same judgment of the Sessions Judge and as common questions of law and facts are involved in both of them, they are disposed of together by our one judgment.
(3.) WE have carefully perused the record and heard Mr. Than Chand Mehta, for Gurnam Singh, B.R. Arora, appearing on behalf of Avatar Singh and Mr. N.S. Acharya, Public Prosecutor, for the State of Rajasthan assisted by Mr. M.L. Garg, Advocate. It has been contended on behalf of the appellants that the evidence of Karnail, Singh, approver, is highly incredible in itself and apart from the statement of the approver, there is no evidence that he also played some important role in the commission of the crime. It was further urged that even if the approver is held to be a reliable witness, his evidence with respect to the part played by the appellants in the crime stands uncorroborated by any evidence coming from independent source. The Public Prosecutor, on the other hand, argued that the approver is a reliable witness and there is ample corroboration of his statement with regard to the facts of the case and to the identity of the offenders who participated in the commission of the crime. We have given our anxious consideration to the rival contentions. Before dealing with the evidence of the approver, we may observe that under sec 133, Evidence Act, clearly lays down that an accomplice is a competent witness against an accused person and conviction can be based on his testimony, if the court is satisfied that it is true and reliable, but there is a rule of evidence provided in illustration (b) to section 114 of the Evidence Act, which the court should not ignore. The rule in illustration (b) to section 114 of the Evidence Act is that the court may presume that an accomplice is unworthy of credit, unless his testimony is corroborated in essential particulars. The general result, therefore, is that in almost all cases the presumption that an accomplice is unworthy of credit, unless corroborated in essential particulars, has became a rule of practice, which cannot be easily departed from, unless the circumstances of a particular case justify the exception.;