LODYA MAHAR Vs. EMPEROR

JUDGEMENT

(1.) THE judgment in this appeal will also dispose of Criminal Appeals Nos. 53-B, 54-B, 55-B, 56-B, and 57-B of 1928. That on 21st February 1928, a dacoits was committed by a party of certain dacoits amongst whom were approver Banshya (P.W. 17), the confessing accused 5 Surya and the accused 7 Mahadya who has not appealed, is undisputable. The question, however, is whether the six appellants were also members of that gang of dacoits and whether any guilt has been legally brought home to them by any reliable evidence on record. This must depend mainly upon the evidence of identification. Kaluram (P.W. 13) and Nandram (P.W. 14) are on the point of identification. Prosecution witness 13 said he identified accused Rupya 3, Tukia accused 4 and Lodya accused 2 at the time when they committed the dacoits. Prosecution witness 14's evidence is of no avail as he identifies only Banshya the approver and none else. Bhagirath's (P.W. 16) evidence, which is indirect, only shows that he struck one of the dacoits; that dacoit can on the evidence of P.W. 1 be said to be the confessing accused Surya. So the evidence of P.W. 14 and P.W. 16 does not advance the case against the appellants at all. However strong the corroboration which the evidence of P.W. 10 and P.W. 11 lends to the evidence of the approver Banshya may be, that is only as regards Mahadya accused 7 and Surya accused 5 and not about the present 6 appellants. The omission on the part of P.W. 13 to mention the dacoits by their names in the first information report (Ex. P. 6) and Ex. P. 7 has been rightly held to be a disqualifying circumstance for rejecting his evidence on the point of identification. Otherwise why should there have been seven days' delay in arresting these appellants? Thus there is no reliable evidence against the 6 appellants except that of the approver. But it is urged on behalf of the appellants that the very circumstance which induced the learned Sessions Judge to disbelieve the approver Banshya so far as Tankia accused was concerned, ought to have weighed with him also for discarding his testimony even a against Tankia's relations. It is amply proved in the case by the evidence on record that Tankia is related to the rest of the accused except Surya. I think there is much force in this contention. Banshya had a motive in bringing Tankia into trouble naturally, he took this opportunity of impleading him as one of his own associates. But, the story would, on the face of it be unlikely, unless he introduced into it element of plausibility. This he did by placing Tankia in a group of his own relations and trying to make out that the whole gang consisted of Tankia and his relations besides, Surya, Mahadya and himself. But this, on the face of it, made the combination highly improbable as it was not expected that Tankia and his relations would take their enemy in their own camp and thus betray all their plans and accomplishments. Viewed in the light of this improbability, it was unsafe to base the conviction of the appellants on the evidence of Banshya without any independent corroboration in material particulars in respect of each of them.

(2.) IN deciding a criminal case with reference to the evidence of an accomplice the Court must take into consideration the maxim that it is unsafe to convict a person upon the evidence of an accomplice unless he is corroborated in material particulars both as to the circumstances of the offence and the identity of the persons, whom he implicates: per Aston, J. in Emperor v. Hanmunt [1901] 6 Bom. L.R. 443. The corroboration ought to consist of some circumstance that affects the identity of the person accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only of the truth of that history, without identifying the persons, that is no corroboration at all: Queen Empress v. Ram Sarup [1885] 8 All. 306. When several persons are indicated and the evidence of the accomplice is confirmed as to some only and not as to others, the Court ought, as a general rule, to acquit those against whom there is no corroboration: cf.: Queen-Empress v. Ram Sarup [1885] 8 All. 306 where the Allahabad High Court set aside the conviction based on the uncorroborated evidence of an approver. The following observations at p. 119 of 17 Nag. L.R. in Govinda v. Emperor A.I.R. 1921 Nag. 39 clearly show that this Court also does not disagree with the Allahabad High Court in regard to this indispensable condition of a corroborating piece of evidence: We are in agreement with the view that so long as there is no corroboration by independent evidence regarding a particular accused, the evidence may be termed uncorroborated evidence of accomplices.

(3.) KISAN Raghuji v. Emperor A.I.R. 1922 Nag. 172, which Kotval, A.J.C., decided following the latest English ruling of Lord Reading, C.J., R. v. Baskerville [1916] 2 K.B. 658, quotes the following observation: Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connexion with the crime.