DAULAT Vs. EMPEROR

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The following nine persons were tried by the Sessions Judge, Hoshangabad, for two separate offences under Sections 302 and 395, I.P.C.: (1) Baulat, son of Jairam Bhoir, (2) Hiraji, son of Sakia Bhoir, (3) Lehram, son of Sakia Bhoir, (4) Lehram, son of Gangu Bhoir, (5) Bajya, son of Sukhya Bhoir, (6) Keoli, son of Ganesh Bhoir, (7) Ganpat, son of Jairam Bhoir, (8) Patiram, son of Karu Mehra, (9) Bhomia, son of Bhogaji Mehra. Of these accused 1, 2, 3 and 6 were convicted And sentenced to death for the offence of murder and to transportation for life for dacoity and the rest were acquitted. The convicted persons have preferred appeals which are registered in this Court as Criminal Appeals Nos. 28, 29, 30 and 31 of 1929. There are also references by the Sessions Judge for confirmation of the sentences of death passed upon the appellants and these are registered as Criminal References Nos. 6, 7, 8 and 9 of 1929. The Local Government has also preferred appeals against the acquittal of accused 4, 5, 7 and 8 and these are registered as Criminal Appeals Nos. 51, 52, 53 and 54 of 1929. As the two sets of appeals and the references are connected, this judgment will govern the disposal of all the cases.

(2.) THE case, for the prosecution was that in pursuance of a conspiracy all the nine accused and one Tukaram (P.W. 2), who turned an approver, entered the house of one Shiamrao Sonar, a malguzar and money lender of mouza Siladehi, in the Multai Tahsil, Betul District, on the nigh of 11th October 1928, and while the unfortunate man was fast asleep accused 1. and 2 did him to death by striking him with an axe while the other accused and the approver watched this atrocious crime being committed in their presence, and that after the murder all the accused rifted the safe of the deceased and robbed him of its contents and also took away other articles from the house valued at about Rs. 2,000. The case rests almost entirely upon the evidence of the approver Tukaram (P.W. 2) whose testimony has heen believed in by the learned Sessions Judge as it was sufficiently corroborated by the recovery of some of the stolen articles at the instance of some of the accused. At the hearing of the appeals in this Court Mr. R.N. Padhye represented accused 1 Daulat, Mr. Eazak appeared for accused 2 and 3, Hiraji and Lehram, while Mr. Pathak appeared for accused 6 Keoli. In the Government appeals Mr. Fida Husain appeared for all the four accused 4, 5, 7 and 8, who had been acquitted in the lower Court.

(3.) WITH regard to the first contention it is undoubtedly correct to say that under Section 133, Evidence Act, an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice: Govinda v. Emperor A.I.R. 1921 Nag. 39; but by a series of judicial decisions the rule as to the necessity of substantial corroboration of this sort of tainted evidence embodied in Section 114, Illus. (b) ipid, has become a rule of practice of so universal application that it has now almost acquired the force of law. As observed by Jardine, J., in Queen-Empress v. Chagan Dayaram [1890] 14 Bom. 331: The rule in Section 114 and that in Section 133 are part of one subject, and both are found in most of the great judgments mentioned in our judgments in that case; and neither section is to be ignored in the exercise of judicial discretion. Illus. (b) is, however, the rule, and when it is departed from, I think the Court should show or that it should appear, that the circumstances justify the exceptional treatment of the case. As I said in Queen-Empress v. Maganlal [1890] 14 Bom. 115, 'it has been hold by two eminent Judges, now members of the Judicial Committee of the Privy Council, that it would certainly be unsafe to depart in India from the established practice of England in the application of the rule requiring corroboration. These are the words of Couch, C.J., in Reg v. Imam 3 B.H.C.R. 57 and they pervade Sir Barnes Peacock's decision in Elahee Bukhsh In re 5 W.R. 80 Cr. is not enough for a Court to state the rule pro forma and merely as a reason to evade it the Courts must act up to it.