N Criminal Appeal Nos
106 107 of 1986
WITH Criminal Appeal Nos 166 671986
From the Judgment and order dated 591985 of the High Court of Rajasthan in DB Appeal No 12677 and Criminal Appeal Nos 98 and 99 of 1977
RL Kohli Uma Dutt and RC Kohli for the Appellant
BD Sharma and MI Khan Additional Advocate General for the Respondent
The Judgment of the Court was delivered by OZA J
These two appeals arise out of the conviction of these two appellants alongwith one another under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs 100 each in Sessions Case No 3975 by Sessions Judge Jhunjhunu dated 601 29th January 1977
Alongwith these two appellants Chandan and Om Prakash one Babulal son of Onkar Mal was also convicted but we have no appeal before us on behalf of Babulal
The prosecution case was that Smt
Dhaka widow of Shri Hanuman Prasad and mother of Shri Gyarsi Lal was living all alone in her house Haveli at Ward No 1 Khetadi
In the morning of 23rd August 1975 a person engaged for grazing the goats in jungle went to Smt
Dhaka s house for taking her goats for grazing and called Smt
Dhaka but he did not get any response
PW 2 Smt
Banarsi who was living in the vicinity came on the spot and alongwith the Goatmen went inside the Haveli
They found goods scattered here and there and even when they loudly called Smt
Dhaka they did not hear any reply
PW 1 Matadeen who was feeding pigeons nearby was informed by Smt
Banarsi that Smt
Dhaka normally used to get up early but it appears that she had not woken up by that time and therefore expressed surprise
On this Matadeen went inside the house reached the upper floor and found all the rooms opened and plenty of goods of Smt
Dhaka lying scattered
There he saw Smt
Dhaka Iying on a cot and found that she was wounded and bleeding at number of places
Shri Matadeen then went to the Police Station Khetadi and submitted his report exhibit P 1
The Station House officer Surindra Singh reached the spot prepared a memo and carried out the investigation
On 3rd September 1975 one Mam Chand was arrested as an accused
Another accused Babulal was arrested on 5th September and the acquitted accused Laxmikant was arrested on 7th September and the two appellants in this appeal Om Prakash and Chandan were arrested on 11th September 1975
Mam Chand later was granted pardon and has been examined as an approver in this case
On trial the learned Sessions Judge convicted all the accused persons and on appeal the High Court acquitted the accused Laxmikant but maintained the conviction against the three and aggrieved by the judgment of the High Court the present appeal on special leave has been filed before us by the two appellants mentioned above
It is not in dispute that there is no direct evidence in this case
The only evidence is the evidence of the approver Mam Chand and other evidence regarding recovery of articles
Learned counsel for the appellant contended that certain articles were recovered at the instance of Om Prakash and were put up for test identification and according to the evidence of the test identification these articles that were put up for identification four witnesses were supposed to identify
Four witnesses appeared at test identification but three appeared in the 602 Court at trial
Out of these four witnesses the first witness did not identify any article
The two witnesses Rameshwar and Phool Chand PWs 13 and 14 did identify some articles
Their evidence after consideration has been rejected by the trial court and the other witness who identified the articles was Gyarsi Lal who happens to be the son of deceased for the reasons best known has not been examined at the trial at all and it was therefore contended by the learned counsel that so far as the recovery and identification of articles are concerned no article recovered has been identified to be that of the deceased and therefore this evidence of recovery in absence of identification is not at all relevant for the prosecution
He therefore contended that as it is settled law that accomplice s evidence if it inspires confidence could be used to convict the accused person only if there is independent corroboration which could connect the accused with the crime and it was contended that this evidence of recovery and identification was supposed to be the evidence connecting the accused with the crime and corroborating the testimony of the approver but the learned Judges of the High Court did not consider this aspect of the matter that the two witnesses who had identified some articles their testimony has been discarded by the trial court and the High Court has not come to the conclusion that the trial court was not right in rejecting their testimony but superficially held that the evidence of identification is sufficient to corroborate the testimony of the approver
It was also contended that even the reading of the testimony of the approver shows that he has tried to keep himself away and the manner in which he has described the whole incident and the way in which he was taken into confidence by the other accused persons make his testimony unnatural and therefore could not be accepted
Learned counsel also placed reliance on certain decisions of this Court where the rule of prudence about the testimony of the accomplice has been repeatedly stated
Learned counsel appearing for the State of Rajasthan admitted that so far as the identification evidence is concerned the most important witness Gyarsi Lal has not been examined at the trial and the other two who were examined their testimony has been rejected but he attempted to contend that although Gyarsi Lal has not been examined in evidence at the trial but in test identification he had identified articles and therefore that evidence is sufficient to corroborate the testimony of the accomplice
He however did not challenge the proposition that the conviction could not be maintained on the sole testimony of the accomplice unless it is corroborated by some independent evidence connecting the accused with the crime
603 So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime
In Haroon Haji Abdulla vs State of Maharashtra   it was observed as under An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false
But the rule of prudence ingrained in the consideration of accomplice evidence requires independent corroborative evidence first of the offence and next connecting the accused against whom the accomplice evidence is used with the crime
Similarly in Ravinder Singh vs State of Haryana   it was observed as under 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
This test is fulfilled firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place
The story if given of minute details according with reality is likely to save it from being rejected brevi manu
Secondly once that hurdle is crossed the story given by an approver so far as the accused on trial is concerned must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt
In a rare case taking into consideration all the factors circumstances and situations governing a particular case conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible
Ordinarily however an approver s statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal
Certain clinching features of involvement disclosed by an approver appertaining directly to an accused if reliable by the touchstone of other independent credible evidence would give the needed assurance for acceptance of his testimony on which a conviction may be based
 604 In this decision the first test indicated is that if the story given out by the accomplice appears intrinsically to be natural and probable then alone that evidence could be of some value and then it is further observed that ordinarily an approver s statement has to be corroborated
In this view of the settled legal position which was not disputed before us it was contended that the evidence about recovery is of no consequence as there is no evidence of identification but as it was contended by the learned counsel for the respondent State that Gyarsi Lal who is the son of the deceased is not examined at the trial but he had identified articles at the identification parade and the learned counsel attempted to contend that this evidence could be used as a piece of corroboration
Unfortunately this evidence could not be looked into because i what he identified and stated to the Magistrate who conducted the identification parade is only a hearsay evidence as that evidence could only be used to corroborate his testimony if he was examined at the trial and ii what he stated to the Magistrate at the time of the test identification parade is not subjected to cross examination and was at the back of the accused could not be used as evidence against the accused
These are matters so settled and therefore it is sufficient to say that this contention is without any substance
Except this even the learned counsel for the State of Rajasthan had to concede that there is nothing about identification or anything to connect these articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime
It is not disputed that except this we are left with the only evidence of the approver Mam Chand
His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he has attempted to suggest that he did nothing
Neither he stated that he participated in looting nor in injuring or attacking the deceased
Reading through his evidence clearly indicates that he has claimed to be a spectator at every moment but has not participated at any stage
Apart from it the initial story appears also to be absolutely unnatural as according to him he did not know anyone of these accused persons but a month before the incident they took him into confidence and told him to join them
After reading the evidence of the witnesses as a whole apparently the impression created is that the version does not appear to be natural version
In this view of the matter in our opinion the testimony is not such which inspires confidence
Apart from it as there is no corroboration at all from any other independent circumstance or source of evidence therefore the conviction of the appellants could not be maintained
It is rather unfortunate that the appeal has come up for hearing after a long time and ultimately it is found that 605 there is no evidence to sustain the conviction
The appeals are there A fore allowed
The sentence and conviction passed against both the accused are set aside
The appellants shall be set at liberty forthwith
PSS PSS Appeals allowed


Summary:
Section 6610 of the C P and Berar Municipalities Act 1922 empowered the municipalities to impose a terminal tax on goods or animals imported into or exported from the limits of a municipality
The respondent framed rules for the imposition of terminal tax
The appellant transported bales of cotton from Yeotmal to Nagpur by road and the vehicles carrying the goods passed through the limits of respondent municipality
The goods were neither unloaded nor reloaded at Wardha bat were merely carried across through the municipal area
The respondent collected terminal tax on these goods on the ground that they were exported by the appellant from the limits of the respondent municipality
The appellant disputed his liability to pay terminal tax and claimed a refund  Held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax
Terminal tax on goods imported into or exported 1103 from the limits of a municipality was payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit and had their terminus elsewhere
Terminal tax leviable under section 661o must have reference to some activity within the municipal area ie the entry for the purpose of remaining within that area or the commencement of the journey from that area
The words imported into do not merely mean bringing intobut comprise something more ie incorporating and mixing up of the goods with the mass of the property in the local area
Similarly the words exported from do not merely indicate taking out but have reference to the taking out of goods which  had become part and parcel of the mass of the property of the local area and will not apply to goods in transit ie brought into the area for the purpose of being transported out of it