Prakash alias Ajayan and etc. vs State of Kerala

K.T. Sankaran, J.—The criminal appeals arise out of S.C. No. 819 of 2001, on the file of the Court of the Sessions Judge, Kollam, Crl. A. No. 1070 of 2004 is filed by the first accused while Crl. A. No. 1071 of 2004 is filed by the second accused.

Accused No. 3, Sinu, turned out to be an approver and he was tendered pardon u/s 306(3) of the Code of Criminal Procedure.

The prosecution alleged offences punishable under Sections 302, 376, 394, 404 and 201 read with Section 34 of the Indian Penal Code. The trial Court found accused Nos. 1 and 2 guilty of the offences under Sections 302, 376, 404 and 201 read with Section 34 of the Indian Penal Code. They were sentenced to undergo imprisonment for life u/s 302. rigorous imprisonment for a term of ten years u/s 376, rigorous imprisonment for a term of three years u/s 404 and rigorous imprisonment for a term of seven years u/s 201 of the Indian Penal Code. Accused Nos. 1 and 2 were also directed to pay compensation of Rs. 50,000/- each and, in default, to undergo simple imprisonment for six months. The terms of sentence are to run concurrently.

The prosecution case is that deceased Shyla, a handicapped woman, who was in love with the first accused, was enticed by the said accused with ill motive and she was raped and murdered by him along with the second accused. It was also alleged that the second accused took away the gold chain belonging to the deceased.

The prosecution alleged that accused Nos. 1 and 2 and the accomplice were very close friends. Prakasan alias Ajayan, the first accused and Anson, the second accused, are auto drivers. The accomplice is their close associate. Anson is the owner of auto rickshaw by name "Hai Ma." The first accused was driving the auto rickshaw "Hai Ma" while the second accused was driving the auto rickshaw "Nono." The first accused was married. Suppressing that fact, he made the deceased Shyla to believe that he was unmarried. A false pretension of love was shown towards her. Shyla was enticed on the fateful day under the pretension of love. The first accused thought that his relationship with Shyla would affect his marital life. Accused Nos. 1 and 2 conspired together to do away with Shyla. With that motive, as per the pre-arranged plans, they came in an auto rickshaw at about 6 p.m. on 12-2-2000 and took Shyla in the auto rickshaw. They took Shyla to a partially constructed building near Arikkavu Temple. The first accused took her into the building and had sexual intercourse with her. Thereafter, they took Shyla to Kuthirakadavu at Kadavoor. Since people were available there on account of the festival in a temple, they moved to another place. The deceased was taken in the autorickshaw to other places and finally returned to Kuthirakadavu. They took her to a coir manufacturing shed. The first accused and Shyla got into the shed while the second accused and Sinu left the place. After some time, they returned to Kuthirakadavu. Thereafter, the second accused committed rape on Shyla in the presence of the first accused and the accomplice. After committing rape, with an intention to commit murder, a piece of cloth was put into her mouth and another piece of cloth was tied around her neck and made her suffocate. Shyla became unconscious and attained the stage of expiratory dysponoea. After midnight, accused Nos. 1 and 2 threw her in Kuthirakadavu Kayal, a branch of Ashtamudikayal. Shyla died due to the suffocation as well as due to drowning.

The trial Court, on the basis of the medical evidence in the case, came to the conclusion that the death of Shyla took place due to drowning and that constriction force around the neck contributed to her death. The evidence of the approver was found reliable. It was held that the statement of the approver was recorded u/s 164 of the Code of Criminal Procedure after complying with all the procedural formalities and that the tender of pardon to him u/s 306(3) of the Code of Criminal Procedure was in accordance with law. It was also found that the evidence of the approver (P.W. 1) was corroborated by the evidence of several other witnesses and the circumstances established in the case. It was found that the deceased was last seen with the accused and there was no explanation by the accused as to what happened to her thereafter. The trial Court took the view that the evidence of the other witnesses also supported the case that the deceased was last seen with the accused. The circumstances, as brought out in the evidence of the witnesses, were carefully and meticulously taken into account by the trial Court and it was held that the said circumstances proved the guilt of the accused. The Court below also relied on the discovery of MO 6 gold chain and the clothes worn by accused Nos. 1 and 2.

The learned Counsel appearing for the appellants (accused Nos. 1 and 2) submitted that the Court below was not justified in relying upon the evidence of the approver/accomplice, as he was a person under "psychiatric treatment," "a person of pretensions and manipulative behaviour" and a person suffering from epilepsy. They contended that the evidence of the other witnesses did not corroborate the evidence of the approver. The counsel contended that it is not established that the offences alleged were committed by accused Nos. 1 and 2 and there is nothing in the evidence to indicate that the accused persons were present at the place of occurrence. Learned Public Prosecutor controverted all the contentions put forward by the learned Counsel appearing for the appellants.

On 13-2-2000 at 8.30 a.m., P.W. 2, a member of the Panchayat, reported to the Sub-Inspector of Police that dead body of a woman, aged about 30 years, was found floating in Kuthirakadavu Kayal. The Sub-Inspector of Police (P.W. 50) registered Crime No. 56 of 2000. After reporting the matter to the superior officer, the Sub-Inspector took steps to get the services of dog squad, finger print expert, photographer, etc. P.W. 50 conducted the inquest of the dead body. Statements of some of the witnesses were recorded by P.W. 50. Further investigation was conducted by P.W. 51, Circle Inspector of Police, Kundara. P.W. 2, the Assistant Professor of Forensic Medicine and Deputy Police Surgeon attached to the Medical College Hospital, Thiruvananthapuram conducted the post-mortem examination and issued Ext. P16 report and Ext. P. 17 additional report. The dead body was identified by P.W. 13, the brother of the deceased. Accused Nos. 1 and 2, who were absconding, were arrested on 2-3-2000. The first accused stated before P.W. 51 about the place of occurrence and he had shown that place to the police. In the disclosure statement made by the first accused, he has stated that the gold chain was entrusted to Naseema (P.W. 18). The statement of Naseema was recorded before P.W. 40, the Judicial Magistrate of the First Class II, Kollam. Naseema stated that she had sold the gold chain to P.W. 15, the owner of Vishnupriya Jewellery. As led by P.W. 18 Naseema, MO 6 gold chain was discovered. MO 12 shirt and MO 13 pants belonging to the first accused were seized, as shown by the first accused. MO 14 shirt and MO 15 pants worn by the second accused were also seized as per the disclosure statement made by the second accused and as shown by him to the Investigating Officer. The accomplice, Sinu (P.W. 1) was arrested at 8 a.m. on 7-3-2000. The Chief Judicial Magistrate (P.W. 38) directed the Judicial Magistrate of the First Class II, Kollam to record the statement of the accomplice u/s 164 of the Code of Criminal Procedure. Accordingly, Ext. P. 13 statement was recorded on 16-11-2000., The accomplice was thereafter produced before the Chief Judicial Magistrate, who read over the statement in full to the accomplice. The Chief Judicial Magistrate was satisfied that the statement given by the accomplice was voluntary without undue influence, coercion, threat or any other vitiating circumstances. He recorded Ext. P12 statement u/s 306(3) of the Code of Criminal Procedure and tendered pardon to the, accomplice. After necessary investigation and seizure of material objects and other documents, P.W. 52, the Circle Inspector of Police filed charge-sheet. The learned Magistrate committed the case for trial by the Sessions Court.

The accused pleaded not guilty to the charges framed against them. The prosecution examined P.Ws. 1 to 52 and marked Exts. P1 to P.49 documents and MO1 to MO21 materal objects. On the side of the accused persons, DWs. 1 to 4 were examined and Exts. Dl to D8 were marked.

P.W. 42, Dr. Sasikala, who conducted the post-mortem examination, issued Ext. P16 post-mortem certificate. On the basis of the injuries noted on the body of the deceased and on the basis of the post-mortem findings, P.W. 12 gave an opinion in Exhibit P16, as follows:

Post-mortem findings are consistent with death due to drowning. Constrictive force around the neck might have contributed to death.

The post-mortem report shows that the ligature made up of a piece of white cotton khadi cloth was seen tied around the neck with a half knot on the right side Just below and in front of ear. Hymen showed multiple healed tears. Fluid blood was seen coming through vagina. Mud stained fluid was seen coming though nostrils. Blackish discolouration with thickening of skin was seen on the front of right thigh over an area of 16 x 7 cm, at 7 cm above knee. The following injuries (ante-mortem) and certain other observations are relevant, which are extracted below:

Injuries (Ante-mortem)

Pallor 20 cm long on the front and sides of neck, being invisible at the back due to darkened skin, was placed 3.5 cm below right ear (3.5 cm broad), 3.5 cm below the chin (4.5 cm broad) and 4 cm below left ear (3.5 cm broad).

Abraded contusion (4 numbers) 0.4 x 0.3 cm to 1 x 0.4 cm over an area 1.8 x 1 cm on the left side of neck 2 cm outer to mid-line and 4 cm below jaw bone.

Curved in abrasion 1.5 cm long 0,1 cm broad with the convexity facing outwards on the right side of neck, 5 cm outer to mid-line and 7 cm bellow jaw bone.

Abrasion 0.5 x 0.5 cm on the right side of neck, 4 cm outer to midline and 5 cm below the jaw bone. Injury Nos. 2 to 4 were seen beneath the ligature material, at the region of front pallor. The subcutaneous tissue underneath appeared normal.

Small areas of contusions (sizes varying from 0.4 x 0.4 x 0.2 cm) seen on the upper pole of both lobes of thyroid gland. Posterior pharyngeal wall on the left side showed a contusion 1 x 0.5 x 0.2 cm corresponding to the pallor. Left superior horn of thyroid cartilage showed a fracture with infiltration. Multiple small abrasions over an area 3.5 x 1 cm on the back of left forearm 4 cm above wrist.

Multiple small abrasions of size varying from 0.3 x 0.2 cm to 1.3 x 0.5 cm over an area 1.0 x 5 cm on the top of right shoulder and adjoining part of arm its lower extent 27 cm above elbow.

Contusion 0.5 x 0.2 x 0.2 cm on the outer aspect of right side of upper lip 1 cm outer to midline.

Brain congested and oedematous. Air passages congested and contained mud stained frothy fluid. Lungs showed sub pleural petechial haemorrhages.

P.W. 42 stated in evidence that the deceased might have inhaled the fluid medium while she was submerged in water and that was why mud stained fluid was coming from the nostrils. She stated that injury Nos. 1 to 4 would occur due to application of constrictive force on the neck by the ligature (MO8). The ligature was present on the neck of the deceased and it was removed only at the time of post-mortem examination. P.W. 42 deposed that the fracture sustained to thyroid cartilage was due to the application of constrictive force on the neck with the ligature. In the light of the post-mortem findings as well as the evidence of P.W. 42, it can safely be concluded that Shyla died due to drowning and the constrictive force applied around her neck.

The prosecution, to prove its case, heavily relied on the evidence of the approver who was examined as P.W. 1. It was contended by the prosecution that the evidence of P.W. 1 is corroborated on material particulars by the evidence of other witnesses. The evidence of P.W. 1 revealed, inter alia, the following facts : Accused Nos. 1 and 2 are the friends of P.W. 1. On 12-2-2000, the first accused stated that he wanted to meet his fiancee and requested the second accused Anson to go with him. Accused Nos. 1 and 2 asked P.W. 1 to remain in "Nono" auto rickshaw belonging to the second accused. Accused Nos. 1 and 2 went in another auto rickshaw. At about 11 p.m. while P.W. 1 was waiting in the auto rickshaw, he was assaulted by one Manoj. At about 11.30 p.m. accused Nos. 1 and 2 came back to the place in an auto-rickshaw. A girl was also with them. The first accused boarded in "Nono" auto rickshaw. P.W. 1 and the first accused went in that auto rickshaw to a place called Mathilil. The "Nono" auto rickshaw was parked in front of the house of the second accused. Thereafter, accused Nos. 1 and 2 and P.W. 1 went in the other auto rickshaw to Kadavoor. They reached Kadavoor near the backwaters. People were seen going to a temple festival. Since the circumstances available there were not favourable, they took the vehicle and went near Thevalli bridge. All the three men alighted from the auto rickshaw and smoked cigarettes. The first accused stated that if the girl were to be sent to her house on the next day morning, that would create problems and it was better to kill her. The second accused stated that he could not kill the girl and suggested that he would drive the vehicle and the first accused could strangulate the girl to death. The first accused replied that he could not kill. P.W. 1 stated that he thought that it was stated by accused Nos. 1 and 2 lightly and it was not intended. They went into the auto rickshaw to the place near the backwaters. The place was lonely. All of them alighted from the vehicle. Only then P.W. 1 realised that the girl was handicapped, who had a limp. The second accused took P.W. 1 in the auto rickshaw. The first accused and the girl went to the coir manufacturing shed. While going in the auto rickshaw, they met P.Ws. 9, 10 and 11. The second accused and P.W. 1 returned to the coir shed. The first accused was found smoking cigarette and the girl was crying. On enquiry as to why she was crying, the first accused told that she disliked to have sexual contact with P.W. 1 and that was why she was crying. At that time, P.W. 1 stated that he could have sexual relationship with a prostitute after paying Rs. 100/- and, therefore, he did not want to have sexual relationship with the deceased girl. The second accused stated that he would pacify the girl and went near her. At that time, the first accused and P.W. 1 waited and smoked cigarettes. The second accused took a khadi cloth which was tied along his waist and torn the same into two pieces. On seeing it, P.W. 1 offered to marry the girl if it was unacceptable to accused Nos. 1 and 2. Though the second accused agreed to it, the first accused opposed stating that if P.W. 1 were to go to the place of the girl, her people would kill him. When P.W. 1 stated to accused Nos. 1 and 2 not to quarrel, the first accused told P.W. 1 not utter a word or else he would be killed and thrown to the backwaters. Thereafter, P.W. 1 did not speak anything. The second accused thereafter had sexual contact with the girl. The first accused asked the second accused to put a cloth in her mouth. A stranger came there smoking a beedi, which was brought to the notice of accused Nos. 1 and 2 by P.W. 1. All of them lied down. Accused Nos. 1 and 2 lied on the girl so as to avoid the stranger seeing the girl. The first accused was afraid that the stranger would bring some other people. The first accused stated that the girl be thrown to the backwaters. Only at that time P.W. 1 came to know that the girl was dead. P.W. 1 had an epileptic attack at that time and he fell down. After some time, he was alright but he continued to lie down there. Accused Nos. 1 and 2 lifted the girl and threw her in the backwaters. The first accused asked why the dead person should have a gold chain. The second accused stood on the retaining wall, caught hold of the cloth tied on the neck of the girl, lifted the body and took the gold chain. All the three persons left the place and went to Kollam Railway Station. Thereafter, they came near the District Hospital and after taking tea, they went to a nearby church. P.W. 1 remained in the auto rickshaw while accused Nos, 1 and 2 went into the church. At about 4 a.m. on the next day, they went to the house of the second accused. In the morning, the second accused went for a marriage and the first accused went elsewhere. P.W. 1 remained in the house of the second accused. At about 4 p.m. accused Nos. 1 and 2 came there. Thereafter, all of them went to a jewellery shop to pledge the gold chain. The mother of the second accused was also with them.

On the way, they stopped near a church and lighted candles worth. Rs. 101/- per person. The second accused paid Rs. 1,500/- to P.W. 1 and asked him trot to come to Kollam any more. Thereafter/they went to a bar at Kottarakkara and accused Nos. 1 and 2 had drinks. They came back to the house of the second accused, took food and slept there. P.W. 1 stated that on the next day, he went to Kodakkal, where his aunt was residing.

The evidence tendered by P.W. 1 regarding his waiting at the auto rickshaw stand near the District Hospital, Kollam at about 11 a.m. the fact that one Manoj assaulted P.W. 1 and thereafter accused Nos. 1 and 2 along with the girl came in "Hal Ma" auto rickshaw while the deceased and the second accused went in "Hai Ma" auto rickshaw, are corroborated by he evidence of P.Ws. 23, 24 and 27. It is true that P.W. 27 did not see the girl in the auto rickshaw.

On a careful consideration of the evidence of P.Ws.3. 19, 20, 21, 22 and 23, it can be seen that the deceased Shyla was last seen in the company of accused Nos. 1 and 2 from 6.30 p.m. to 11.30 p.m. on 12-2-2000. P.W. 3, stated that he saw the auto rickshaw, three men and a lady during night while returning from Kadavoor temple, between 11.30 p.m. and mid night on 12-2-2000. P.W. 19, who is familiar with accused Nos. 1 and 2, stated that at 6.30 p.m. on 12-2-2000, accused Nos. 1 and 2 came to his tea shop and had tea. He saw the deceased girl also in the auto rickshaw. P.W. 19 also stated that the relatives of the deceased enquired with him as to the whereabouts of the deceased as she was found missing. He stated to them as to what he had seen. P.W. 20 is a Municipal Councillor. He stated that at 6.30 p.m. on 12-2-2000, the deceased came to his house in an auto rickshaw and requested him to arrange a loan which was being sanctioned by the Municipality to women. P.W. 20 stated that in that auto rickshaw there were two men, of whom one had a limping leg. It is not disputed that the first accused has such a handicap. He could identify the two men and he stated that he did so in the police station. P.W. 13, who is the brother of the deceased, had also seen accused Nos. 1 and 2 and the deceased in the auto rickshaw on 12-2-2000. The auto rickshaw was stopped at his request. He was told by his sister that she would be coming back soon. At that time, accused Nos. 1 and 2 were sitting in the driving seat of the auto rickshaw. P.W. 21, the salesman in a petrol bunk and who is also a friend of accused Nos. 1 and 2, deposed that accused Nos. 1 and 2 came in an auto rickshaw to the petrol bunk and that there was a lady in the auto rickshaw. He identified her in the photographs shown to him by the Circle Inspector of Police. He also identified the accused before the Police. P.W. 22, a salesman in another petrol bunk and who knew accused Nos. 1 and 2, stated that at about 10.30 p.m. on 12-2-2000, accused Nos. 1 and 2 came in an auto rickshaw to the petrol bunk. He deposed that a lady aged about 30 years, wearing skirt and blouse, was also there in the auto rickshaw. P.W. 23, who runs a stationery business and who knew accused Nos. 1 and 2, stated that at 11.30 p.m. on 12-2-2000 accused Nos. 1 and 2 came in "Hai Ma" auto rickshaw and enquired about "Nono" auto rickshaw which was parked in the auto stand. P.W. 23 stated that in the "Hai Ma" auto rickshaw, there was a lady. The evidence of these witness would establish that the deceased was seen last with accused Nos. 1 and 2. The evidence of P.W. 1, the approver, is materially corroborated by the evidence of the aforesaid witnesses. There is nothing to disbelieve the evidence of the aforesaid witnesses. That P.W. 1, the approver, was speaking the truth, and that the aforesaid witnesses saw the deceased with accused Nos. 1 and 2 at various places in the evening of 12-2-2000, is clear from the evidence of the aforesaid witnesses.

The evidence of P.Ws. 8, 9, 11, 24, 26, 31 and 36 would also, corroborate the evidence of P.W. 1 as to the various events which took place from 6.30 p.m. on 12-2-2000 till about early hours on the next day. There is nothing to indicate that these witnesses were not speaking the truth.

P.W. 12, the elder sister of the deceased, stated that in the evening on the date of incident, the deceased took Rs. 5/-from her. The deceased also borrowed a gold chain belonging to Ancy (P.W. 14) and went out. The gold chain (M.O. 6) was recovered from P.W. 15 at the instance of the accused. P.W. 14 stated that the gold chain was given to the deceased on 12-2-2000. P.W. 14 identified the gold chain. The gold chain was sold to P.W. 15 through P.W. 18, Naseema. Naseema knew accused Nos. 1 and 2. She stated that first accused entrusted the gold chain to her for sale. She sold the chain and the money was given to the first accused. M.O. 2 watch was also identified by P.W. 18 as the watch which was given by her son to the first accused. P.W. 18 stated that after sale of the gold chain, the first accused confessed to her that all the three accused murdered Shyla. The statement of Naseema was recorded u/s 164 of the Code of Criminal Procedure before the Magistrate who was examined as P.W. 40.

Before the sale of MO6 gold chain at the intervention of P.W. 18, the evidence would show that the chain was pledged by the second accused in the financial concern run by P.W. 36. P.W. 36 identified MO6 gold chain. Ext. P7 to P9 (b) are the documents relating to the pledge of the gold chain. The gold chain was also identified by P.W. 16, the jeweller who had sold the chain to the grand mother of P.W. 14. P.W. 17 goldsmith had weighed MO6 gold chain at the jewellery run by P.W. 15 in the presence of the police.

The "Nono" auto rickshaw belonged to P.W. 32, who sold it to P.W. 33. P.W. 33 is the sister-in-law of the first accused. Though the auto rickshaw was sold, P.W. 32 continued to be the registered owner. P.W. 32 stated that he sold the auto rickshaw to P.W. 33 for a sum of Rs. 25,000/-. P.W. 34, the Manager of the auto finance concern, stated that a sum of Rs. 10,000/- was given as loan to the second accused on his pledging the RC Book of "Hai Ma" auto rickshaw. "Hai Ma" auto rickshaw originally belonged to P.W. 37, who sold it to the second accused. The photocopy of the sale deed was produced and marked as Ext. P. 10 in the case.

The gold chain was recovered from Vishnupriya Jewellery run by P.W. 15, as per Ext. P32 mahazer. Ext. P33 mahazer was prepared by the investigating officer when the first accused led him to the place wherein deceased was taken by him in the auto rickshaw. The shirt and pants worn by the first accused were seized as per Ext. P.34(a) disclosure statement made by the first accused.

The evidence of P.W. 41, Assistant Chemical Examiner of the Chemical Examination Laboratory, Thiruvananthapuram and Ext. P15 report submitted by him would reveal that the vaginal swab and smear of the deceased reveals presence of human semen and spermatozoa. The evidence of P.W. 43, Assistant Director of Biology in Forensic Science Laboratory, Thiruvananthapuram, shows that semenal plasma was detected in the skirt and undergarments of the deceased. The evidence of P.Ws. 44 and 45 and their reports would reveal that the grouping of semen, blood and saliva of the accused tallied with the grouping of the same found in the items sent for chemical examination.

The evidence in the case would clearly establish that all the circumstances are leading to the inference of commission of offence by accused Nos. 1 and 2. There is no missing link in the chain of events. All the links to constitute a complete chain so as to establish the guilt of the accused, are properly established by acceptable evidence. The deceased was last seen in the company of accused Nos. 1 and 2. There is no evidence to indicate that the deceased left the company of accused Nos. 1 and 2 at any time before her death. She was missing and her relatives were making search for her. The evidence would indicate that the accused persons took the deceased to various places and that accused Nos. 1 and 2 had sexual intercourse with the deceased. It is also established that accused Nos. 1 and 2 had strangulated the deceased and pushed her body into the backwaters. The recovery of MO 6 gold chain is also another reliable circumstance leading to the conclusion that the accused persons are involved in the offence.

Section 306(3) of the Code of Criminal Procedure provides that with a view to obtaining the evidence of any person supposed to have been directly of indirectly concerned in or privy of an offence, the Magistrate concerned may tender pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. The object of Section 306(3) is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the evidence of the person pardoned, the offence could be brought home to the rest. In State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, , the Supreme Court has laid down as to how the evidence of the approver is to be considered. It was held as follows:

Now, as regards the reliability of the approver, it is no doubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. The High Court seems to think before reliance could be placed upon the evidence of the approver It must appear that he is a penitent witness. That, in our opinion, is not the correct legal position. The section itself shows that the motivating factor for an approver to turn, what in England is called "King''s evidence" is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely self exculpatory and so on and so forth. The Court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests the evidence of the approver should be acted upon.

Section 306(3) provides for tender of pardon to accomplice. An accomplice is any person supposed to have been directly or indirectly concerned in or privy to the offence. He is a guilty associate in a crime. An accomplice is one who confesses himself that he is a party to the offence. Section 133 of the Evidence Act provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) of Section 114 of the Evidence Act provides that the Court may presume that an accomplice is unworthy of credit, unless he corroborated in material particulars. As noticed by the Hon''ble Supreme Court in Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, , if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act, it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature. In Mangali Vs. Chhakki Lal and Others, , this question was considered and it was held thus:

The combined effect of Section 133 and 133, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corrobo-ration in material particulars.

In Ram Narain Vs. State of Rajasthan, , the Supreme Court held:

The statute permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of Section 133 strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.

In Ravinder Singh Vs. State of Haryana, , it was held that an approver is a most unworthy friend, if at all, and he having bargained for his immunity, must prove his worthiness for credibility in Court.

The Supreme Court in Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, referred to Mangali Vs. Chhakki Lal and Others, , Ram Narain Vs. State of Rajasthan, and Ravinder Singh Vs. State of Haryana, and held thus:

The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness.

The requirement of corroboration is a rule of prudence, corroboration is required in respect of material particular. It is not necessary that all what the accomplice/approver says in evidence must be corroborated. It is not the requirement that corroboration should be available in respect of each and every fact deposed to be by the approver, however insignificant it may be. (Vide : Chonampara Chellappan and Others Vs. State of Kerala, .

As early as in 1954, the Hon''ble Supreme Court in Rameshwar Vs. The State of Rajasthan, , enunciated the principles to be followed in considering the evidence of the accomplice and the nature and extent of corroboration required. After holding that it would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroborated and that its nature and extent must necessarily vary with the circumstances of each case, the following principles were laid down:

First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction.... Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as an identity must extend to all the circumstances necessary to identify the accused with the offence. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in their special circumstances a conviction so based would not be illegal.... Fourthly, the corroboration need not be direct evidence if it is merely circumstantial evidence of his connection with the crime.

In Balwant Kaur Vs. Union Territory of Chandigarh, , the Hon''ble Supreme Court referred to Rameshwar Vs. The State of Rajasthan, , and held that "the nature of corroboration must necessarily vary with the nature and circumstances of each case. Evidence of any general rule, valid for all occasions is, at once, unwise and impractical."

A three Judge Bench of the Hon''ble Supreme Court in Sarwan Singh Vs. The State of Punjab, held:

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver''s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver''s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.

In Ram Narain Vs. State of Rajasthan, , Hon''ble Supreme Court (three Judge Bench), dealing with approver''s evidence, held thus:

His pardon being conditional, to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the Courts as a matter of prudence and caution anxiously look for sortie corroboration to satisfy their conscience that the approver''s testimony which is Clearly admissible is also worth of belief. One can of course visualize an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the Court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.

Now we shall examine the contention that the evidence of the approver cannot be relied on since he was suffering from epilepsy and was under the psychiatric treatment and also on the ground that he is a person of pretensions and manipulative behaviour. D.W. 3, the Medical Officer attached to the Central Prison was examined by the defence to prove their contentions. D.W. 3 stated in evidence that on 2-6-2000, Sinu (P.W. 1) was examined for epilepsy and he was referred to Neurology Department of the Medical College Hospital, Thiruvananthapuram. On 16-4-2001, Sinu was subjected to a psychiatric consultation. On 18-2-2002, he was subjected to examination by a Medical Board. On 23-9-2002, Sinu was treated in the Central Prison Hospital for self inflicted injuries. On 28-9-2002, he was sent for psychiatric consultation. D.W. 3 also stated that on 13-3-2003, Sinu was on hunger strike and it continued for days. Again on 6-5-2003, he was sent for psychiatric consultation. Sinu was admitted on 28-4-2003 in the Medical College Hospital, Thiruvananthapuram and he as treated was an inpatient till 4-5-2003. D.W. 3 stated that except for some depression, Sinu had no mental illness and that his behaviour was a manipulative behaviour. The evidence of D.W. 3 would further disclose that the finding was psuedocizur following which all ante epilepsy drugs were stopped. D.W. 3 explained, psuedocizur means a form of tire-tension and that was why all the types of medicines were stopped. He stated that all the neurotic and psychiatric complaints of Sinu were ruled out by proper and authentic medical examination, on account of which all the drugs were stopped. D.W. 3 stated. that Sinu was capable of taking rational decisions. D.W. 4, psychiatric expert who had occasion to treat Sinu, stated that psuedocizur is not the symptom of any disease. He also stated that all the drugs administered on Sinu were stopped including the drugs for epilepsy. D.W. 4 deposed that Sinu had the capacity to take decisions on his own. The evidence of D.Ws. 3 and 4 would disclose that Sinu had only psuedocizur, a sort of pretension and that he was not a person suffering from any mental ailment.

Section 118 of the Indian Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The Explanation to Section 118 states that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them The requirement of Section 118 is that the disease, whether of body or mind, must be such as would prevent the witness from understanding the questions put to him and from giving rational answers to those questions. Epilepsy does not always make a person incompetent to testify; nor does it prevent him from understanding the questions put to him or from giving rational answers to those questions. Even assuming that the approver was suffering from epilepsy, that by itself is not a ground to reject his evidence. The evidence of D.Ws. 3 and 4 would clearly indicate that Sinu had the state of mind to understand matters and that he could take rational decisions. Even a person who has epileptic attack on certain occasions could not be termed as a person to whom tender of pardon u/s 306(3) cannot be made. The purpose of Section 306(3) is to obtain evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence so as to prevent the escape of the offenders from punishment for heinous offence for want of evidence. A person suffering from epilepsy cannot be termed as a person incapable of being tendered pardon and a person incapable of giving a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence as contemplated u/s 306(3) of the Code of Criminal Procedure. Section 118 of the Evidence Act applies in the matter of considering the question of tendering of pardon u/s 306(3) of the Code of Criminal Procedure. Section 315 of the Code of Criminal Procedure which provides that any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath, would also fortify this conclusion. It is relevant to note that the statement of Sinu was recorded u/s 164, Cri.P.C. on 16-11-2000. He was examined as the witness for prosecution on 11th November 2003. He made a complete disclosure of the events on both the occasions. In the circumstances mentioned above, we are of the view that the tender of pardon to Sinu and the acceptance thereof u/s 306(3) of the Code of Criminal Procedure was fully justified.

The evidence of P.W. 1, when considered along with the evidence of other witnesses, would clearly indicate that he was telling the truth. The evidence of the approver was not the sole basis on which the trial Court came to the conclusion that the accused persons are guilty of the offence. The circumstantial evidence in the case and the corroborative pieces of evidence of other witnesses were taken note of by the trial Court to arrive at the right conclusion that the guilt of the accused was established.

We are of the view that the Court below was right in holding that the accused have committed the offence. The conviction and sentence are legal and proper. There is no scope for interference in the Criminal Appeals. The Criminal Appeals are, accordingly, dismissed.