IMPORTANT POINTS
1. Once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is concerned, must implicate him in such manner as to give rise to a conclusion of guilt beyond reasonable doubt.
2. It is settled position of law that the evidence of hostile witnesses need not be rejected in its entirety but may be relied on for corroboration.
3. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence.
4. Once an accused is granted pardon under Section 306 of Criminal Procedure Code,1973, he ceases to be an accused and becomes witness for the prosecution.

Headnote:Indian Penal Code,1860- Sections 302r/w 34 and Section 27 of the Arms Act -Prosecution of accused persons thirteen in number for causing death of deceased by shooting at him by pistol causing severe bullet injuries-Trial Court while convicting A5 and A11 acquitted rest of the accused persons-On Appeals thereagainst High Court while maintaining conviction of A5 and A11 ,convicted four other accused persons-Appeals-During the recording of evidence, one of the accused filed an application praying for grant of ‘pardon’ and to treat him as an ‘approver’ which was granted by the trial Court- In categorical terms, PW-6, asserted that he was aware of the whole incident which led to the killing of deceased and also asserted that he was also connected with and involved in his murder along with others-The analysis of statement of various persons, particularly, eye-witnesses clearly strengthened the case of PW-6, approver, in all aspects including conspiracy, planning to attack the deceased for his statement about the students’ movement, actual incident, role played by assailants and subsequent events after the gunshot till the death of deceased - No reason to disbelieve version of PW-6 approver- High Court held justified in applying Section 34 IPC and basing conviction of six accused persons including two convicted appellants- Ocular version i.e., evidence of the approver (PW-6) stood corroborated by the medical evidence- No interference called for with impugned judgment of High Court-Appeals dismissed (Paras 41)
        Appeal against acquittal- It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by Apex Court exercising its extraordinary jurisdiction, is not warranted- However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision- In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused- The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court- If two reasonable views are possible on the basis of the evidence on record, appellate court should not disturb the findings of acquittal (Para 8)
        Appeal against acquittal -There is no limitation on the part of the appellate court to review evidence upon which order of acquittal is found and to come to its own conclusion- The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law- While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal- An order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so- If the order is “clearly unreasonable”, it is a compelling reason for interference- When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed (Para 8)
        Approver - Evidentiary value of -Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars-The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that evidence of an accomplice is regarded ab initio as open to grave suspicion- If the suspicion which attaches to evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if suspicion attaching to accomplice’s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon evidence alone (Paras 11, 12)
        Code of Criminal Procedure, 1973 - Section 306 -Scope and ambit of -The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home- The object of Section 306 of the Code is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest- This Section empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence- Under Section 306 of Code, Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime (Para 28)
        Code of Criminal Procedure, 1973 - Section 306 -Scope and ambit of -Section 307 of the Code vests the Court to which the commitment is made, with power to tender a pardon to an accomplice- An accomplice who has been granted pardon under Section 306 or 307 of the Code gets protection from prosecution- When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted (Para 28)
        Hostile witness-Evidence of –Admissibility-It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible- The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness-However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth- His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it- The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses- The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution. (Para 42)
       Facts of the Case :
        Accused persons thirteen in number were prosecuted herein in the instant case for causing death of deceased by shooting at him by pistol causing severe bullet injuries. Trial Court while convicting A5 and A11 acquitted rest of the accused persons. On Appeals thereagainst High Court while maintaining conviction of A5 and A11 ,convicted four other accused .Trial Court while convicting A5 and A11 acquitted rest of the accused persons. On Appeals thereagainst High Court while maintaining conviction of A5 and A11 ,convicted four other accused persons.
        2. Present appeals have been filed against said order of High Court.
       Findings of the Court :
        During the recording of evidence, one of the accused filed an application praying for grant of ‘pardon’ and to treat him as an ‘approver’ which was granted by the trial Court. In categorical terms, PW-6, asserted that he was aware of whole incident which led to the killing of deceased and also asserted that he was also connected with and involved in his murder along with others.The analysis of statement of various persons, particularly, eye-witnesses clearly strengthened the case of PW-6, approver, in all aspects including conspiracy, planning to attack the deceased for his statement about the students’ movement, actual incident, role played by assailants and subsequent events after the gunshot till the death of deceased. There was No reason to disbelieve version of PW-6 approver. Conclusion of High Court that trial Court failed to explain or adduce sufficient reasons as to why other part of the evidence that the accused persons named by the approver were found present in the place of occurrence could not be believed for the purpose of invoking Section 34 when two or more eye-witnesses corroborated the testimony of approver (PW-6) specifically naming six accused persons including the two convicted appellants held tenable. High Court was held justified in applying Section 34 IPC and basing conviction of six accused persons including two convicted appellants. Ocular version i.e., evidence of the approver (PW-6) stood corroborated by the medical evidence. No interference was called for with impugned judgment of High Court. Appeals were dismissed.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

The trustworthiness of the approver's evidence is crucial; once deemed trustworthy, it must implicate the accused beyond reasonable doubt (!) (!) .
Evidence of hostile witnesses need not be rejected in its entirety; it can be relied upon for corroboration, but caution is advised, and such evidence should be considered carefully and corroborated in material particulars (!) (!) (!) .
The quality of witness evidence is more important than the quantity; multiple witnesses corroborating the same fact strengthen the case (!) (!) .
When an accused is granted pardon under relevant legal provisions, the accused ceases to be an accused and becomes a witness, with specific obligations to disclose full and true details of the offense; failure to do so can lead to the lifting of protection (!) (!) (!) (!) (!) .
The appellate court has full authority to reappraise and review evidence in appeals against acquittal, with the presumption of innocence and the requirement of reasonable doubt guiding its decision (!) (!) (!) (!) (!) .
Interference with an order of acquittal is justified only when there are compelling and substantial reasons, such as the trial court ignoring, misreading, or failing to consider material evidence, or when the order is clearly unreasonable (!) (!) .
The evidentiary value of an approver or accomplice's testimony hinges on their reliability and corroboration in material particulars; uncorroborated evidence alone is generally insufficient for conviction, especially in serious offenses (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Corroboration can be in the form of independent, credible evidence that connects the accused with the crime, and it need not confirm all details but must support the core aspects of the case (!) (!) (!) (!) (!) (!) .
The presence of

JUDGMENT

P. Sathasivam, J. —

a) Criminal Appeal No. 1994 of 2009

1) This appeal is filed against the final judgment and order dated 29.01.2008 passed by the Gauhati High Court, Agartala Bench in Criminal Appeal No. 90 of 2005 whereby the Division Bench of the High Court, on an appeal filed by the State of Tripura-respondent herein, reversed the order of acquittal of the appellants herein dated 19.04.2005 passed by the Additional Sessions Judge, West Tripura, Khowai in Case S.T. No. 54(WT/K)/2002 and convicted and sentenced them to imprisonment for life under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”) with a fine of Rs.3000/- each, in default, to suffer a further term of simple imprisonment for three months.

b) Criminal Appeal No.1719 of 2011

@ SLP (Crl.) 6728/2011 ( Crl. M.P.17812 of 2008)

2) The convicted accused, Tapan Das (A-5) and Gautam Das (A-11), against the same order of the High Court dated 29.01.2008 confirming their conviction under Section 302 IPC and imposing life sentence with a fine of Rs.3,000/- each, in default, to suffer simple imprisonment for three months filed this appeal by way of special leave petition with a delay of 62 days. Delay condoned. Leave granted.

3) Brief facts:

a) On 31.08.2000, a meeting was convened in West Santinagar S.B. School at the invitation of Durgapur Local Committee of Democratic Youth Federation of India (in short “DYFI”). After the meeting was over, Tapan Chakraborty, (since deceased), a leader of DYFI accompanied by Babul Dey PW-1, Ganesh Kol PW-2, Nilai Das PW-3, Ramakanta Paul PW-10, Benu Ranjan Dhupi PW-11 and Prabir Biswas PW-12 reached Santinagar Ferry Ghat to cross the river on way to home, on the other side of the river. At about 6.30 p.m., when Tapan Chakbraborty and his companions disembarked from the boat, Ratan Sukladas (A-12) dragged him down and when he fell on the ground, Tapan Das (A-5) and Gautam Das (A-11) shot at him causing severe bullet injuries. After finishing their job, the assailants fled away. The victim was immediately taken to the local hospital but as he was sinking, he was referred to G.B. Hospital at Agartala for specialized treatment. The victim died on the way to hospital.

(b) On the very same day, at about 08:35 p.m, one Babul Dey (PW-1) lodged a First Information Report (in short “the FIR”) being FIR No. 85/2000 with the Police Station, Kalyanpur, West Tripura, Tripura. On the basis of the FIR, a case was registered under Sections 148, 149, 326 and 307 of the IPC read with Section 27 of the Arms Act, 1959 against eight persons, viz., Somesh Das (A-7), Mrinal Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra Das (A-3), Subal Deb (A-10) and Gautam Das (A-11) and others.

c) After the death of Tapan Chakraborty, Section 302 IPC was also added against the accused persons. During the investigation, the Investigating Officer arrested 13 accused persons and on completion, filed a report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) under Sections 148, 149, 326 and 302 IPC and Section 27 of the Arms Act against Somesh Das (A-7), Mrinal Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra Das (A-3), Subal Deb (A-10), Gautam Das (A-11), Anil Das (A-1), Bikash Das (A-6), Uttam Shil (A-8), Ratan Sukladas (A-12) and Radha Kant Das (A-13).

d) Vide order dated 12.08.2002, the Additional Sessions Judge, Khowai, West Tripura, framed charges under Sections 148, 149 and 302 IPC against all the 13 accused persons. Thereafter on 20.11.2002, on the request of the Special Public Prosecutor to alter the charges, the Additional Sessions Judge modified the charges under Section 302 read with Section 34/120B IPC and Section 27 of the Arms Act.

e) During the recording of evidence, on 16.06.2004, accused Ratan Sukladas (A-12) filed an application praying for grant of ‘pardon’ and to treat him as an ‘approver’

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2011 Supreme(SC) 860

Cases Referred (21)