Patna High Court
Kunj Behari Banka And Ors. vs The State on 14 December, 1950
Equivalent citations: AIR1951PAT84, AIR 1951 PATNA 84
ORDER Ramaswami, J.
1. These rules are directed against the Judgment of Mr. Darmodar Prasad, Addl. Ses. J. of Monghyr convicting the petnrs. of the charges under Sections 379 & 120B, I. P. C. & sentencing them to R. I. for two years each & also to pay amounts of fine.
2. According to prosecution case Babu Lal Agarwal had booked 74 bales of cloth from Jamalpore under two consignments of 22 & 52 bales each. The consignments were placed in wagon No. 38946H which was rivetted & sealed The wagon was attached to a goods train & taken to Kiul on 9-1-1949. From Kiul the wagon was taken to Lakhisarai by a pilot engine. It is stated that on 10-1-1919, the petnrs. having entered into a conspiracy to commit theft had gone to the goods shed & having tampered with the seal of the goods shed broke open the wagon & removed five bales of cloth from the consignment. The cloth was taken to the dispensary of Dr. Raja Ram which was opened by his servant Raghua & the cloth was stored in the inner room of the dispensary. The next morning Dr. Raja Ram having been appraised of the incident by Raghua made a report to the station master who in his turn informed the police. During the course of the investigation the dispensary was searched & three bales in addition to other cloth were recovered therefrom. Babulal Agarwal later identified the cloth as having formed part of the consignment which he had sent from Jamalpore.
3. On 31-1-1949 Karua (P. W. 3) made confession (Ex. 4). On 8-2-1949 Raghua (P. W. 2) made confession which was recorded by another Mag. (EX. 3). The trial of Karua & Raghua was split up in the Ct. of the Mag. They had been examined as witnesses in the present case in which petnrs. alone have been charged.
4. The learned Mag. convicted the petnrs. of the charges under Sections 379 & 120B, I. P. C. The decision of the Mag. has been affirmed in appeal by the Addl. Ses. J. of Monghyr.
5. In support of these rules Mr. Baldeva Sahay points out that the lower Cts. have based the conviction of the petnrs. in the main upon the statement of P. W. 2 Raghua & P. W. 3 Karua, that there was no independent evidence to corroborate the statement of these witnesses who are accomplices in the crime & that as a rule of practice, though not as a rule of law, it was unsafe to convict the petnrs. on the testimony of accomplices of which there is no corroboration by independent evidence. In my opinion this argument is well-founded & must prevail. Prom the record of the case it is plain, the prosecution evidence against the petnrs. consisted of the statement of P. Ws. 2 & 3 who said that the petnrs. had taken part in the conspiracy & in the theft of the bales of cloth after breaking open the rly. wagon. The lower Cts. have referred to the evidence of P. W. 60, Ramprasad Mahto, who deposed that in the night of 10-1-1949, at about 10 P. M. he had seen the petnrs. near the goods shed. It is not possible to hold that the statement of P. W. 60 corroborates the evidence of P. Ws. 2 & 3, for, in my opinion, the circumstances indicate that P. W. 60 has not given truthful evidence. In the first place, P. W. 60 made statement before the Police for the first time about 10 days after the investigation started. There is also proof that Kunjbehari had a dispute with Kataghara Singh & there was a proceeding Under Section 107, Cr. P. C. in which p. W. 60 was witness on behalf of Kataghara Singh against Kunjbehari. There is another fact to be taken into account. P. W. 60 stated that Jitu Pd. Varma was present at the time he saw the petnrs. near the rly. goods shed. But the latter, when examined in Ct., denied that he saw the petnrs. at the rly. goods shed at the alleged time. The trying Mag. who had an opportunity to see P. W. 60 in the witness-box has characterized his evidence as "somewhat shaky". In my opinion, it is impossible to hold that P. W. 60 has given true or reliable evidence in this case or that he corroborated the evidence of the two accomplices, P. Ws. 2 & 3 as regards participation of the petnrs. in the alleged crime.
6. In the important case The King v. Basker-ville, (1916) 2 K. B. 658 : (86 L. J. K. B. 28), the principle has been stated that the corroboration of an accomplice must be by independent testimony which confirms in material particular not only the evidence of the crime which has been committed but also that the prisoners committed it. It was pointed out that the rule of practice as to corroborative evidence had arisen in consequence of the danger of convicting a prisoner upon the unconfirmed testimony of one who was admittedly a criminal. It is true that in India Section 133, Evidence Act, lays down that an accomplice shall be a competent witness against an accused person & that conviction was not illegal merely because it proceeded upon uncorroborated testimony of an accomplice. But there is a rule of guidance which the Ct. should also regard & it is to be found in illustration (b) of Section 114 which enacts a rule of presumption that an accomplice is unworthy of credit unless he is corroborated in material particulars. The rules laid down in Section 133 & in Section 114 illustration (b) are part of one subject & neither section is to be ignored in the trial of a case. On the whole the effect of these sections is that the Legislature has laid it down as a maxim or rule of evidence resting on human experience that an accomplice is unworthy of credit against an accused person unless he is corroborated in material particulars in respect to that person & that it is the duty of the Ct. which in any particular case has to deal with an accomplice's testimony to consider whether this maxim applies to exclude that testimony or not. In the present ease, it is impossible upon the facts proved to accept the uncorroborated testimony of P. Ws. 2 & 3 or to hold that P. W. 60 has given reliable or independent evidence in corroboration of the testimony of P. Ws. 2 & 3. As regards petnr. Ratan Dusadh prosecution has adduced some additional evidence to corroborate P. Ws. 2 & 3. P. W. 38, Station Master, deposed that on 16-1-1949, Ratan made statement admitting to have taken part in the crime. The statement on the whole is apparently exculpatory & the lower appellate Ct. has consd. that the evidence of the Station Master in this respect is suspicious. According to this witness Ratan made the alleged statement on 16-1-1949. The statement was recorded by the Station Master but the statement does not bear the signature or thumb impression of Ratan. It is of significance that the Station Master produced this statement for the first time in Ct. on 23-9-1949. There is no good expln. why he did not produce this statement to the Police during investigation or in the Ct. of the Mag. during trial at an earlier stage. The lower appellate Ct. has, therefore, held that the evidence of the Station Master was of no value. Consequently, it cannot be said that the Station Master corroborates the testimony of P. Ws. 2 & 3 to any conceivable extent.
7. It is also established by authority that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The danger of acting upon an accomplice's evidence is not merely that the accomplice is on his own admission a man of the bad character who took part in the offence & afterwards to save himself betrayed his former associates; the real danger is that he is telling a story which in its general outline is true, & it is easy for him to work into the story matter which is untrue. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting upon independent evidence which in some measure implicates each accused. The principle has been clearly stated by the Judicial Committee in Bhuboni Sahu v. The King, A.I.R. (36) 1949 P. C. 267 : (50 Cr. L. J. 872). To the same effect is the decision of the Judicial Committee in Tumahole Berang v. The King, 1949 A. C. 253 in which Lord MacDermott refd. to the cautionary rule of English practice emphasising the danger of acting on an accomplice's evidence which is uncorroborated in some material respect implicating the accused. An accused admits nothing by exercising at his trial the right of electing not to deny the charge on oath, & silence of that kind affords no corroboration to satisfy the cautionary rule of English law as stated above. The Judicial Committee observed that the trial Judge in holding that the rule of practice was satisfied by the non-denial by the applts. of the evidence given by the accomplices incriminating the applts. had misdirected himself as to the nature of the corroboration required by the rule of practice & that for the purposes of the rule of practice the evidence of one accomplice is not corroborative of the evidence of another. Applying this principle to the present case it is manifest that the evidence of P. W. 2 cannot be corroborated by P. W. 3 who is admittedly an accomplice in the crime.
8. Upon these grounds, I am of opinion that the charges have not been proved against the petnrs. beyond reasonable doubt. Accordingly I would make the rules absolute & set aside the conviction & sentences imposed upon the petnrs, by the lower Cts. If the petnrs. are in jail they should be released forthwith.