STATE OF RAJASTHAN Vs. TEKA ALIAS TEK CHAND

JUDGEMENT

(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.

(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.