Appeal
Appeal against the dismissal of appeal by common order
1. These two appeals impugn a common judgment and order of the High Court of Delhi at New Delhi dated 02.08.2013, whereby six appeals including two appeals of the appellant against the order(s) of trial court in Sessions Case Nos. 25 and 25-A of 2008, arising from FIR No.300 of 1984 at P.S.4 Civil Lines, and FIR No.190 of 1984 at P.S. Alipur, respectively, were dismissed. As single set of evidence was led in both the trials, the High Court proceeded to decide the appeals by a common impugned order. As a result, these two appeals were heard together and are being decided by a common judgment.
Background facts
Two dead bodies found in different locations led to two sessions cases through two FIRs
2. Two dead bodies were found under jurisdiction of different police stations. One body was found on 13.7.1984, which gave rise to FIR No.300/ 1984 at P.S. Civil Lines, and the other was found on 16.7.1984, which gave rise to FIR No. 190/1984 at P.S. Alipur. FIR No.300 gave rise to Sessions Case No.25 of 2008 whereas FIR No.190/1984 gave rise to Sessions Case No.25-A of 2008. The dead body concerning FIR No. 300/1984 was identified as that of Arun Kumar. Whereas the dead body in respect of FIR No.190 /1984 was identified as that of Jasbir.
Investigation revealed that the accused killed the deceased, who were the driver and cleaner of his truck, to steal the truck
3. Investigation revealed that the two deceased i.e., Arun Kumar and Jasbir were driver and cleaner respectively of Truck No. URM 660 owned by Dayal Chand (PW-23); and the accused had killed them to steal the Truck.
Two co-accused were arrested while sitting the stolen truck: 4. On 24.7.1984, co-accused Tejpal, Kishan Lal and Ram Chhail were arrested found sitting in Truck No. OSC-4115. Forensic report confirmed that Truck No. OSC-4115 was none other than stolen Truck No. URM 660, which was later released in favour of its owner (PW-23).
Out of total five accused Ramesh kumar was made an approver and examined as PW.1 and other were convicted by the Trial court and the appeal also simissed
5. On 29.7.1984, Gopi Chand (i.e., the appellant) was arrested, and on 6.8.1984 Ashok was arrested. The materials collected during investigation indicated involvement of the aforesaid five persons. Out of those five, Ashok Kumar was made an approver and produced as PW-1 in the trial. Co-accused Ram Chhail, elder brother of the appellant, died during trial. The remaining three including the appellant were convicted by the trial court in Sessions Case Nos.25 and 25-A of 2008. In consequence, two appeals were filed by each of the three convicts. In total, six appeals were filed. All six appeals were dismissed vide the common impugned order.
6. As the sentence awarded to Tejpal and Kishan Lal has been remitted, as per policy of the State, these two appeals espouse the cause of Gopi Chand alone.
Case of the prosecution
While attempt to steal the truck all the accused killed the deceased: 7. The prosecution version, in a nutshell, is that the aforesaid five persons including Ashok Kumar, who later became approver, hatched a plan to steal a truck. In furtherance of that plan, they hired Truck No. URM 660 for carrying pumpkin (Kashiphal). In execution of the plan, the driver (i.e., Arun Kumar) and cleaner (Jasbir) were killed and the truck was stolen.
Confession of approver was first recorded (9.8.1984) and thereafter he sought pardon (23.08.1984): 8. Testimony of Ashok Kumar (PW1) is the sheet anchor of the prosecution case. He was arrested on 06.08.1984. On 09.08.1984, he moved an application to make his statement before the Magistrate concerned. After giving him two weeks’ time to ruminate, on 23.08.1984 his confessional statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. On 18.10.1984, Ashok Kumar sought pardon and offered to become an approver. On 19.10.1984, his prayer was accepted. Thereafter, a charge-sheet was filed on 20.10.1984. However, since the Magistrate concerned had committed the case without holding an enquiry as contemplated under Section 306 of the CrPC, the Court of Session, vide order dated 27.07.1985, remitted the matter to the Committal Magistrate for recording statement of Ashok Kumar. Whereafter, statement of Ashok Kumar was recorded on three dates i.e., 05.09.1985, 06.09.1985 and 17.09.1985, and the defence counsel was allowed to cross-examine him. After such enquiry, the case was again committed to the Court of Session by the concerned Magistrate on 20.09.1985.
Though two trials were conducted they were consolidated with a single set of evidence
9. Though there were two trials (i.e., Sessions Case No.25 and 25-A of 2008) arising from two FIRs (FIR No.300 of 1984 and FIR No.190 of 1984), they were consolidated and a single set of evidence was led in the lead Sessions Case No.25 of 2008 which arose out of FIR No.300 of 1984 qua dacoity and killing of Arun Kumar (i.e., the driver).
Conviction and sentencing by Trial court
10. In Sessions Case No.25 of 2008, arising from FIR No. 300 of 1984, the trial court convicted Tejpal, Gopi Chand and Kishan Lal vide judgment dated 03.03.2009 for offences punishable under Sections 302/ 396/ 201/ 120-B of the Indian Penal Code, 1860 and, vide order dated 7.3.2009, sentenced them as under:
(i) Life imprisonment plus fine of Rs. 2,00,000/- under Section 302 IPC; on default in payment of fine, additional simple imprisonment of two years;
(ii) Ten years rigorous imprisonment plus fine of Rs. 50,000/- under Section 396 IPC; on default in payment of fine, additional simple imprisonment of one year;
(iii) Six years rigorous imprisonment plus fine of Rs. 25,000/- for offence punishable under Section 201 IPC; on default in payment of fine, additional simple imprisonment of six months;
(iv) Six years rigorous imprisonment plus fine of Rs. 25,000/- for offence punishable under Section 120-B IPC; on default in payment of fine, additional simple imprisonment of six months. All sentences were to run concurrently.
High Court dismissed all the appeals
11. In Sessions Case No.25-A of 2008, arising from FIR No.190 of 1984 qua murder of Jasbir, the aforesaid three accused were convicted for offences punishable under Section 302/ 201/ 120-B IPC and sentenced similarly as in Sessions Case No.25 of 2008 for those offences.
Aggrieved by the dismissal present SLP
12. Aggrieved by the judgment and order of the Trial Court, the appellant i.e., Gopi Chand filed two appeals i.e., Criminal Appeal No(s). 349 of 2009 and 352 of 2009. The High Court dismissed all six appeals vide common impugned judgment and order dated 02.08.2013.
Issues
16. We have accorded due consideration to the rival contentions and have perused the record. Based on the submissions made, in our view, the following issues arise for our consideration:
(a)Whether the testimony of PW-1 (i.e., the approver) could form the basis of conviction of the appellant?
(b)Whether the appellant’s conviction under Section 302 read with Section 120-B IPC is sustainable?
Discussion & analysis
17. Before we address the issues posited above, it is necessary to examine the charges framed by the trial court and the nature of evidence led by the prosecution to secure conviction of the accused in the two cases.
18. At this stage, we may put on record that the numbers of the session trials, namely, 25 and 25-A of 2008, were generated on reassignment of the trials. Prior to the reassignment, those were differently numbered. However, since the trial court’s verdict refers to Sessions Case Nos.25 and 25-A, we have referred to those numbers.
Charges on which accused were tried
19. The charges were framed twice. Initially, the charges were framed on 30.10.1985. Thereafter, they were re-framed on 21.1.1986. To have a clear understanding of the prosecution case, we deem it apposite to reproduce the charge framing orders dated 30.10.1985 and 21.1.1986. On 30.10.1985, three charges were framed, which read as under:
“……”
20. On 21.1.1986, charges were reframed. The trial was held on the reframed five charges reproduced herein below:
“…………”
Nature of the evidence led by the prosecution
Direct evidence comes through approver (PW.1) circumstantial evidence are corroboratory in nature
21. The inculpatory evidence brought in the course of trial is both direct as well as circumstantial. Direct evidence comes from Ashok Kumar (PW-1) i.e., the approver. Circumstantial evidence(s) are corroboratory in nature. Those are, inter alia, regarding:
(a) ownership and identification of the stolen truck;
(b) possession of the stolen truck with some of the accused;
(c) identification of the bodies of the two deceased;
(d) the two deceased being driver and cleaner of the truck;
(e) autopsy reports confirming homicidal death; and
(f) seizure /recovery of dead bodies, articles, papers, etc corroborating the testimony of PW-
1. Issue (a) : Whether PW-1 (approver) testimony could form the basis of conviction?
Arguments to discard the approver’s evidence (PW.1)
22. In the present case, on behalf of the appellant, two points have been urged to discard the testimony of PW1. One, PW-1’s statement is self-exculpatory; and second, it has not been corroborated in material particulars. Before we consider the testimony of PW-1 (i.e., the approver), we must consider the legal principles on the probative value of an approver’s testimony.
Legal principles regarding Approver’s testimony
Why approver/accomplice evidence is considered untrustworthy is explained 23. Ordinarily, an approver is regarded as an infamous witness, who, on his own showing has participated in a crime 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 [State of A.P. v. Cheemalapati Ganeswara Rao & Anr., 1963 SCC OnLine SC 38: AIR 1963 SC 1850]. Woodroffe and Amir Ali in their treatise “Law of Evidence” [19th Edition, published by Lexis Nexis, Volume 4 at page 4918] cite three reasons as to why accomplice evidence is considered untrustworthy: (a) because an accomplice is likely to swear falsely to shift the guilt from himself; (b) because an accomplice, as a participator in crime, and consequently an immoral person, is likely to disregard the sanctity of an oath; and (c) because he gives his evidence under the promise of pardon, or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally; and his hope might lead him to favour the prosecution.
How to appreciate accomplice/approver’s evidence is discussed in detail: Corroboration in material particulars is necessary
24. Section 133 of the Evidence Act, 1872 states that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it is based upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114 of the Evidence Act adds a note of caution that testimony of an accomplice is unworthy of credit unless it is corroborated in material particulars. Thus, as a matter of practice and prudence, the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. 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.
25. On the interplay between Section 133 and Illustration (b) to Section 114 of the Evidence Act, a three-Judge bench of this Court in Somasundaram @ Somu v. State represented by the Deputy Commissioner of Police, after surveying several precedents, held:
77. … the combined result of Section 133 read with illustration (b) to Section 114 of the Evidence Act is that the courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accuse solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused.
78. As laid down by this court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word “ordinarily” inspired by the statement of the law in K. Hashim wherein this court did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be direct evidence and can be in the form of circumstantial evidence.” (Emphasis supplied)
26. In Kashmira Singh v. State of Madhya Pradesh speaking for the Bench, Vivian Bose, J., in his inimitable style, while holding that the requirement of corroboration of the testimony of an approver is only a rule of prudence, on the question whether conviction could be based on the uncorroborated testimony of an accomplice, observed: “so far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it.”
27. In K. Hashim v. State of T.N. this Court held that although Section 114 Illustration (b) provides that the court ‘may’ presume that the evidence of an accomplice is unworthy of credit unless corroborated, ‘may’ is not ‘must’ and no decision of court can make it ‘must’. It was held that the court is not obliged to hold that he is unworthy of credit; ultimately, it depends upon the court’s view as to the credibility of evidence tendered by an accomplice.
28. On the nature and extent of corroboration required, if need be, in Rameshwar v. State of Rajasthan, 17 which has been consistently followed, this Court observed that though it is impossible to formulate the kind of evidence which should, or would, be regarded as corroboration, its nature and extent would vary with the circumstances of each case and also according to the particular circumstances of the offense charged. After observing so, the following guiding principles were laid:
(i) It is not necessary that there should be independent confirmation of every material circumstance. It is not the requirement of law that the independent evidence by itself should be sufficient to sustain conviction. Rather, there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
(ii) 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 the complainant that the accused committed the crime. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’ story that the accused was the one, or among those, who committed the offence.
(iii) 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 if circumstances are such as to make it safe to dispense with the necessity of corroboration, a conviction so based would not be illegal.
(iv) The corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the accused’s connection with the crime.
Summary of legal principles regarding the necessity of corroboration of an approver’s testimony
29. In our view, the legal principles regarding the necessity of corroboration of an approver’s testimony could be summarised as under:
(a)It is not an inviolable rule of law that testimony of an approver must be independently corroborated in material particulars before it could form the basis of conviction. The requirement of corroboration is not mandated by law but is a rule of prudence. Therefore, the Court may convict an accused even on an uncorroborated testimony of the approver provided it is satisfied, and record reasons for its satisfaction, that it is safe to rely on such testimony even in the absence of corroboration.
(b) Corroboratory evidence, if required, may be either direct or circumstantial, or both.
(c) However, where corroboration is considered necessary, it must come from independent sources. Ordinarily, the testimony of one approver is not to be used to corroborate the testimony of another approver.
(d) Corroboration, when required, must be such that it renders the testimony of the approver believable in the facts and circumstances of the case. However, it is not the requirement of law that every material circumstance against the accused is independently confirmed.
30. Having noticed the law regarding the necessity of corroboration of an approver’s testimony, we shall now consider few decisions of this Court wherein certain tests were adopted to determine the creditworthiness of the testimony of an approver.
Tests to determine creditworthiness of the testimony of an approver
36. Having regard to the decisions discussed herein above, in our view, what is settled is that the creditworthiness / reliability of the testimony of an approver is not dependent on any one factor. There are several factors which must be considered cumulatively to determine whether the testimony is credible and reliable. The first and foremost is that the approver must not appear to be a planted witness. Once that hurdle is crossed, the testimony of an approver is to be tested as any other witness, though with greater care and caution. One of the necessary tests is that his testimony must be inculpatory and not exculpatory. However, if his testimony is not entirely exculpatory and makes a full and complete disclosure of the events qua commission of the crime, which inspires confidence i.e., appears truthful in the context of proven circumstances, his testimony cannot be discarded as one lacking credibility merely because he does not implicate himself to the extent he implicates the other co-accused.
Consideration of PW-1’s testimony
Reading or PW.1’s testimony clearly go to show that he has participated in the plan as well as the crime and hence argument of exculpatory is rejected: 38. The above-extracts of PW-1’s testimony would indicate that his testimony is not entirely exculpatory. It inculpates PW-1 by showing that he participated in the events that ultimately led to the murder. He stated that he held the legs of one of the deceased to make him unconscious so that they could steal the truck. Therefore, merely because he was not the one who inflicted the fatal blow is not sufficient to discard his testimony as one being entirely exculpatory. Besides, PW-1’s statement clearly shows that he was very much a part of the plan to steal the truck and had actively participated in the crime, though not to the extent the others did. Thus, the first argument that the statement of PW-1 is exculpatory and therefore, would have to be discarded is worthy of rejection and is rejected accordingly.
Approver’s testimony is creditworthy and reliable and form basis for conviction: 39. In so far as the contention that PW-1’s testimony was not corroborated in material particulars is concerned, suffice it to say that the High Court has considered in detail the various circumstances that corroborate the testimony of PW1 (the approver). These are, inter alia, regarding (a) ownership of the looted Truck and its use by the two deceased for transportation, which was found in possession of the co-accused; (b) identification of the headless body being of Arun Kumar; head/ skull of Arun Kumar found wrapped in a green Pyjama worn by Arun Kumar; torn papers of “bilty” etc lying near the body; head found separate from the body; body of Jasbir found in the agricultural field of village Hiranki where it was disposed of according to PW-1; besides, the dead body carried name ‘Jasbir’ tattooed on the right arm. All these bits and pieces of circumstances corroborated the graphic narration of the crime by PW-1. There is no specific challenge laid to all those circumstances found proved by the High Court. We thus do not propose to deal with the aforesaid submission any further. Suffice it to say that the High Court has dealt with this aspect in detail, and with clarity, to hold that the approver’s testimony was corroborated in material particulars. Besides no serious question was put to PW-1 to doubt his presence at the scene of crime. We, therefore, hold that PW-1’s testimony was reliable and creditworthy and could form the basis of conviction. Issue (a) is decided in terms above.
Issue (b) : Whether the appellant’s conviction under Section 302 read with Section 120-B IPC is sustainable?
40. The next submission on behalf of the appellant is that the appellant could not have been convicted under Section 302 read with Section 120-B IPC. In this regard, the argument is two-fold. First, there is no specific charge framed against the appellant for an offence of conspiracy to commit murder. Second, even assuming the charge was there, or that the appellant was aware of the charge of conspiracy of murder against him, there is no evidence to substantiate that charge.
Section 464 Cr.P.C explained
41. Section 464 of CrPC provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
No prejudice has been shown by accused on any defect in charge
43. On a careful scrutiny of the records, we notice that initially in the charge framing order, the name of Gopi Chand was also there along with Ram Chhail, Kishan Lal and Tejpal for offences punishable under Section 302 IPC read with Section 120-B IPC, but, later, the name of Gopi Chand seems to have been struck off. However, the charge framing order reflects that Gopi Chand had denied the said charge and claimed for trial. In these circumstances, Gopi Chand was fully aware of the charge he was facing and, therefore, having regard to the finding of the High Court, the questions asked to the witnesses which related to that charge, no prejudice could be said to have been caused to the appellant on ground of any defect in the charge. In the circumstances, we reject this argument also.
44. Now, we shall consider the second limb of the argument of learned counsel for the appellant, which is that even if the testimony of PW1 is accepted as correct, no case of criminal conspiracy to commit murder of Jasbir and Arun Kumar is made out against the appellant (Gopi Chand), though it may be said that he was part of the conspiracy to commit dacoity, or had committed the offence of dacoity punishable under Section 396 IPC.
45. To test the aforesaid submission a look at the relevant statutory provisions would be apposite.
Laws regarding criminal conspiracy
46. Criminal conspiracy is defined in Section 120-A of IPC as follows: Definition of criminal conspiracy. – When two or more persons agree to do, or cause to be done, –
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offense shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation. – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
47. Punishment for criminal conspiracy is provided in Section 120-B of IPC, which reads thus: Punishment of criminal conspiracy. –
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding 6 months, or with fine or with both.
48. Section 109 of IPC provides punishment of abetment in the following terms:
“Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation. – An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.”
49. Section 10 of the Evidence Act makes acts or statements of a conspirator relevant evidence against co-conspirators. It reads thus:
Section 10. Things said or done by conspirator in reference to common design.
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by anyone of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
Ingredient of criminal conspiracy is explained
50. The essential ingredients of the offence of criminal conspiracy are: (1) an agreement between two or more persons; (2) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal but is done by illegal means. To come to an agreement meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself. [Rajiv Kumar v. State of Uttar Pradesh & Another, (2017) 8 SCC 791]
54. From the decisions noticed above, it is clear that one who enters into a conspiratorial relationship is liable for every reasonable foreseeable crime committed by every other member of the conspiracy in reference to their common intention, whether or not he knew of the crimes or aided in their commission.
55. In the instant case, the prosecution with the aid of the testimony of PW-1 has succeeded in establishing that there was a prior meeting of mind between the five partners to the crime to commit an act of stealing the truck and in furtherance thereof they hired the truck of which the two deceased were driver and cleaner. Not only that they carried a ‘Gandasa’ which can be used as a weapon of assault to cause grievous injury. The finding is that in furtherance of their plan they hired a truck, separated the driver and cleaner by deception, and thereafter killed the driver and cleaner at separate places to take possession of that truck. The appellant was shown as maintaining vigil at one of the two trucks while his co-participants were trying to dump the driver and cleaner in the bushes to secure possession of the truck. The argument that the appellant was not aware that the driver and cleaner would be killed in the process is not acceptable, because their murder was a foreseeable event. This we say so because when you separate a person from the possession of his property or goods, use of force is a foregone conclusion unless it is done clandestinely, as in the case of theft. Here, the possession was taken not clandestinely but by force. In such a situation, causing injury to the victim including his murder is a foreseeable event to further the cause for which partners in crime had joined hands. Besides the planned manner in which the crime was committed leaves no shadow of doubt that the appellant, who happens to be brother of one of the co-conspirators, was in cahoots with the others. Therefore, in our view, he was justifiably convicted for criminal conspiracy to commit murder. Issue (b) is decided accordingly.
Conclusion
Conviction confirmed
56. We therefore uphold the conviction of the appellant for the offences for which he has been convicted by the Trial Court and the High Court.
57. At this stage, we would like to address the fervent appeal of the learned counsel for the appellant to commute the sentence to the period of sentence under gone. In this regard it was urged that admittedly the appellant did not directly participate in the murder of the two deceased; the conviction and sentence under Section 396 IPC is 10 years which has already been served; sentences of convicted co-accused have been remitted by the State; and by now appellant has served sentence for well over 18 years.
Resources
Cited Judgments
- State of A.P. v. Cheemalapati Ganeswara Rao & Anr. (1963 SCC OnLine SC 38: AIR 1963 SC 1850): Cited regarding the reasons why an accomplice’s evidence is traditionally considered untrustworthy and the tests to determine if their evidence should be accepted.
- Rampal Pithwa Rahidas & ors. v. State of Maharashtra (1994 Supp (2) SCC 73): Cited for the necessity of corroboration from direct or circumstantial evidence when relying on an approver’s testimony, and for outlining questions to determine the creditworthiness of such testimony.
- Somasundaram @ Somu v. State represented by the Deputy Commissioner of Police ((2020) 7 SCC 722): Cited to explain the interplay between Section 133 and Illustration (b) to Section 114 of the Evidence Act regarding accomplice testimony.
- Kashmira Singh v. State of Madhya Pradesh ((1952) 1 SCC 275: 1952 SCC OnLine SC 19): Cited to assert that the requirement of corroboration for an approver’s testimony is a rule of prudence, not a strict rule of law.
- K. Hashim v. State of T.N. ((2005) 1 SCC 237): Cited to clarify that a court “may” presume accomplice evidence is unworthy unless corroborated, but it is not obliged to do so.
- Rameshwar v. State of Rajasthan (1951 SCC 1213: 1951 SCC OnLine SC 83): Cited to provide guiding principles on the nature and extent of corroboration required for accomplice testimony.
- Ravinder Singh v. State of Haryana ((1975) 3 SCC 742): Cited regarding the tests an approver must fulfill to prove worthiness of credibility in court.
- Chandan and another v. State of Rajasthan ((1988) 1 SCC 696): Cited as an example where the Supreme Court rejected the testimony of an approver who claimed to be a spectator but did not participate at any stage.
- Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80): Cited regarding the dominant object of Section 306 CrPC (granting pardon) to prevent offenders of heinous crimes from escaping punishment due to lack of evidence.
- A. Devendran v. State of T.N. ((1997) 11 SCC 720): Cited to demonstrate that an approver’s testimony cannot be discarded merely because they participated under the threat or persuasion of others.
- Rajiv Kumar v. State of Uttar Pradesh & Another ((2017) 8 SCC 791): Cited for the principle that the existence of criminal conspiracy can be inferred from surrounding circumstances and conduct.
- Firozuddin Basheeruddin & Ors v. State of Kerala ((2001) 7 SCC 596): Cited regarding a conspirator’s liability for reasonably foreseeable crimes committed by other members in furtherance of the conspiracy.
- State through Superintendent of Police CBI/ SIT v. Nalini & Ors. ((1999) 5 SCC 253): Cited for summarizing the broad principles governing the law of conspiracy and mutual agency.
- Bhagwan Swarup Lal Bishan Lal & others v. State of Maharashtra (AIR 1965 SC 682: 1963 SCC OnLine SC 26): Cited to explain the essence of a conspiracy agreement and the evidentiary rules under Section 10 of the Evidence Act.
- Munna Moyuddin Shaikh v. State of Gujarat (2026 INSC 558 : 2026 SCC OnLine SC 939): Cited to support the modification of a life imprisonment sentence to the fixed term already undergone (if over 14 years).
- Union of India v. V. Sriharan ((2016) 7 SCC 1): Referenced in conjunction with the Munna Moyuddin case regarding the permissibility of modifying a life sentence to a fixed term.
- Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka ((2023) 9 SCC 817): Also referenced in conjunction with the Munna Moyuddin case regarding sentence modifications.
Acts and Sections
Indian Penal Code, 1860 (IPC)
- Section 34: Pertains to acts done by several persons in furtherance of a common intention.
- Section 109: Provides the punishment for abetment.
- Section 120-A: Defines the offense of criminal conspiracy.
- Section 120-B: Details the punishment for criminal conspiracy.
- Section 201: Relates to causing the disappearance of evidence of an offense or giving false information to screen an offender.
- Section 302: Relates to the punishment for murder.
- Section 396: Pertains to the offense of dacoity with murder.
Code of Criminal Procedure, 1973 (CrPC)
- Section 164: Relates to the recording of confessional statements by a Magistrate.
- Section 306: Details the provisions for tendering a pardon to an accomplice (approver).
- Section 464: Provides that a finding or sentence is not deemed invalid merely on the ground of an error, omission, or irregularity in the charge, unless it has caused a failure of justice.
Indian Evidence Act, 1872
- Section 10: Makes the acts or statements of a conspirator relevant evidence against co-conspirators in reference to their common design.
- Section 114, Illustration (b): Adds a note of caution that a court may presume an accomplice is unworthy of credit unless corroborated in material particulars.
- Section 133: States that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it relies on their uncorroborated testimony.
Party
Gopi Chand @ Pappu vs State (NCT of Delhi) - Criminal Appeal Nos. 847 & 848 of 2014 - 2026 INSC 598 - May 29, 2026 – Hon’ble Mr. Justice Pamidighantam Sri Narasimha and Hon’ble Mr. Justice Manoj Misra.
