N Criminal Appeal Nos
345 346 of 1991
From the Judgement and Order dated 1461990 of the Madras High Court in Referred Trial Nos 489 and 589 and Crl
Appeal Nos
59389 and 594 of 1989
715 Raju Ramachandran Jaga Rao Alok Agarwal Ms Malini Bhat and section Ravindra Bhatt for the appellants
VR Karthikeyan and V Krishnamurthy for the respondent
The Judgment of the Court was delivered by K RAMASAWAMY J
Special leave to appeals granted
Heard the learned counsel Sri Raju Ramachandran amicus curiae for the appellants and Sri V Krishnamurthy the learned Standing Counsel for the State
The appellants Sevaka Perumal and Isakkimuthu for short A 1  and A 2  in Appeal arising out of SLP Crl No 184290 are accused in Sessions Case No 283 of 1986 on the file of the Addl
Sessions Judge Tirunelveli Sessions Division and appellants in Criminal Appeal No 594 of 1989 and RT No 4 of 1989 by judgment dated June 14 1990 of the High Court of Madras
Criminal Appeal arise out of SLP Crl No 184190 Sessions Case No 284 of 1986 of the same Sessions Division and Criminal Appeal No 593 and RT No 5 of 1989 dated June 14 1990 of the Madras High Court respectively A 1 is the appellant
In each case the Sessions Court convicted them under sections 120B 364 392 read with section 397 section 302 read with section 34 IPC and sentenced to death
In Crl
Appeal No 594 of 1989 and RT No 4 of 1989 the High Court confirmed the conviction and sentence of death of both the appellants
In Crl
Appeal No 593 of 1989 and RT No 5 of 1989 the High Court confirmed the conviction and sentenced of death of the A 1 and acquitted A 2 of all the charges
The case of the prosecution in brief is that the appellants and PW 1 the approver belonged to kidarakulam village and became friends
A 1 used to bring money form the timber shop of his brother in law PW 4 in Sessions Case No 28486 in whose shop A 1 had worked
They used to go to various places
A 1 used to purchase ganja from chenglapatai and other places and A 1 and A 2 used to sell them
Yet they did not have enough money to spend lavishly
They attempted to commit theft in the localities but became impracticable
Therefore they conspired to entice boys from affluent families to bring cash and jewellery from their houses take them to far away places take their money or jewellery and to murder them for gain
Pursuant thereto in 1978 they murdered one Athippan in 1981 one Chelladurai in March 1982 one Hariramachandran and in 1983 one Christodas
In Sessions Case No 28386 the deceased boy is Athiappan
In 716 Sessions Case No 28486 the deceased boy is Hariramachandran
Sessions Case No 28286 on the file of the Sessions Court
Madurai Division relates to deceased Chelladurai
Therein also we are informed that the appellants were convicted but on appeal they were acquitted
In sessions Case relating to the death of Christodas it also ended in conviction and sentence of death was imposed on the appellants and is pending confirmation in the High Court
It is sufficient to set out the material fact leaving out the minor details in Sessions Case No 28486 to meet the points raised by the counsel for the appellants
A 1 enticed the deceased Hariramachandran his nephew elder sister PW 2  son to bring jewellery from the house of PW 2 and PW 4
The appellants and PW 1 took him to Madurai
On the way the deceased went to the house of PW 3 and handed over one chain to be delivered to his mother and took MO 1 chain with him
A 1 had taken a room in the lodge at Madurai run by PW 16
On coming to know that they were staying in Madurai PW 2 PW 4 her husband and PW 3 went to the lodge and the deceased was found threat
He informed them that the chain was with A 1 and he would come in the evening at 800 pm After waiting for some time and when it was getting dark the ladies went away asking PW 4 to get the chain and the deceased after A 1 s arrival
While PW 4 was waiting the deceased went down stairs and after A 1 s arrival told him of his mother s coming etc
and from there they went away to Madras and having come to know that they left the place PW 4 left to his village
On the next day they returned to Madurai
From there they went to Usilampatti and A 1 then purchased a knife at the Bus Stand without the knowledge of the deceased and proceeded to Peraiyar road
They sat near a jungle stream
While A 1 and the deceased Harirmachandran were sitting near a stone on the southern side of the road A 2 and PW 1 were standing at a distance A 1 stabbed Harirmachandran in his stomach with a knife and the deceased collapsed on the stone
A 1 threw away the knife in the river
He threw the deceased in the nearby well and washed his hands and legs in the stream
They returned to Usilampatti Bus Stand
From there they came to Madurai
A 1 sold MO 1 chain to PW 24 and gave one hundred rupees each to PW 1 and A 2
This evidence of PW 1 received sufficient corroboration from the evidence of prosecution witnesses
Sri Raju Ramachandran contended that the dead body was admittedly found in a highly decomposed condition
There is no proper identification of the dead body to be of the deceased
The 717 mother PW 2 identified only with reference to the photograph taken of the dead body
There is evidence that the deceased wrote a letter of leaving to unknown destination
Unless there is proof that the dead body belongs to Hariramachandran it is not safe to convict to A 1 to a capital punishment of death sentence
We find no force in the contention
In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti
The fact of death of the deceased must be established like any other fact
Corpus delicti in some cases may not be possible to be traced or recovered
Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or steam or burnt out
It is unlikely that the dead body may be recovered
If recovery of the dead body therefore is an absolute necessity to convict an accused in many a case the accused would manage to see that the dead body is destroyed etc
and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved
What therefore is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence although the dead body may not be traced
In this case the evidence of PWs 7 to 10 would establish that they have seen the dead body of the deceased Hariramachandran in the well and brought it out and the photograph was taken at the time of inquest
It was identified to be that of the deceased by no other than his mother PW 2
Thus we have no hesitation to hold that there is no doubt as regards the identity of the dead body and that the medical evidence establishers that the deceased died due to stabbing with sharp edged weapon like knife
It is next contended that PW 1 being an approver his evidence must be reliable and must receive corroboration on all material particulars from independent evidence
PW 1 is neither a reliable witness nor did his evidence receive such corroboration
Therefore his evidence cannot form the basis to convict the appellants
It is his contention that in Hariramachandran s death case the evidence of PW 1 was not accepted as regards the complicity of A 2 and he was acquitted
Therefore PW 1 is not a reliable witness
This contention too is devoid of any force
PW 1 had given wealth of details of commission of the crimes
Under section 133 of the Evidence Act 1 of 1872 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
Section 114 illustration b postulates that an accomplice is unworthy of credit unless he is corroborated in mate 718 rial particulars
In King vs Baskervilli Lord Reading CJ laid the test that the corroboration need not be direct evidence that the accused committed the crime
It is merely circumstantial evidence of his connection with the crime
The nature of the corroboration will depend and vary according to the particular circumstances of each case
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon
In Mahadeo vs The King AIR 1936 P C 242 the judicial committee held that the evidence of an accesory must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused s implication in it
This Court in Rameshwar vs The State of Rajasthan  held that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence of the case apart from the testimony of the complainant or its accomplice should in itself be sufficient to sustain conviction
All that is necessary is that there should be independent evidence which will make it reasonably safe to believe that the witness s story that the accused was the one that committed the offence could be acceptable
The corroboration need not be direct evidence that the accused committed the crime
It is sufficient if it is merely circumstantial evidence of his connection with the crime
In section Swaminathan vs State of Madras AIR 1957 SC 340 this Court held that corroboration of approver s evidence need not be of a kind which prove the offence against the accused
It is sufficient if it connects the accused with the crime when the accused had been charged for the offences of conspiracy and of cheating a specific instance of cheating proved beyond doubt against one of the accused would furnish the best corroboration of the offence of the conspiracy
In Sarwan Singh vs The State of Punjab  relied by Shri Raju Ramachandran this Court held that the approver must be a reliable witness and the evidence must receive sufficient corroboration
In that case the corroboration of minor particulars was accepted to be sufficient to hold the approver to be reliable witness
In BD Patil vs State of Maharashtra this Court held that 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 do not accept the evidence of such a witness without corroboration in material particulars
There should be corroboration of the approver in material particulars and must be qua each accused
In Md Hussain Umar Kochra etc
vs KS Dalipsinghji  Anr 1970 1 SCR 130 it was held that the combined effect of sections 133 and 114b is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is 719 Corroborated in material particulars
The corroboration must be from an independent source
If several accomplices simultaneously and without previous concert giving consistent account of the crime implicating accused the court may accept the several statements as corroborating each other
In Ram Narain vs State of Rajasthan  this Court held that section 114b 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 is as matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge
In Abdul Sattar vs Union Territory Chandigarh 1985 Suppl SCC 599 this Court further held that it is not safe to convict an accused on the charges like murder upon the evidence of uncorroborated testimony of the approver
Thus the settled law is that an approver is a competent witness against the accused person
But the court to satisfy its conscience insists as caution and prudence to seek as a rule corroboration to the evidence of the approver a particips criminis from independent evidence occular or circumstantial of general particulars regarding the story spoken off by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances
In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted
We find no infirmity in that regard
In the trial of the death of Hariramachandran A 2 was acquitted on the ground that his extra judicial confession made to PW 23 the only corroborative evidencewas disbelieved by the High Court
Both the courts below gave categorical finding that PW 1 is a reliable witness
the evidence of the approver received corroboration from independent evidence on general prosecution case namely PW 16 spoke that the deceased was brought by the accused and stayed in the lodge
PWs 2 to 4 spoke of A 1 working in their shop previous theft by A 1 and MO 1 being missing their attempt to take back the deceased and MO 1 the deed body was found in the well and was taken out as spoke to by P Ws
7to 10
The medical evidence establishes the stabbing with the knife and death was due to it
PW 24 corroborates A 1 of selling MO 1 chain and taking the money
The canopy of the material evidence from independent sources sufficiently corroborates the approver  evidence
720 PW 1 is a reliable witness
No infirmity has been pointed out to disbelieve his evidence
It is next contended that the courts below were not justified in imposing the extreme penalty of death sentence under section 302 IPC and strongly relied upon the judgment of Bachan Singh s case
It is contended that the acquittal of A 2 giving the benefit of doubt in Hariramachandran s death trial introduces an element of doubt which should be extended to convert the death sentence of A 1 to life imprisonment
We find no susbstance in the contention
The doctrine of benefit of doubt only would operate in proof of the commission of the offence
If there is any reasonable doubt not the doubt of vacillating mind of a Judge the accused is entitled to the benefit and acquitted
The benefit of doubt again does not enter in the area of consideration of imposing sentence
The law regulates social interest arbitrates conflicting claims and demands
Security of persons and property of the people is an essential function of the State
It could be achieved through instrumentality of criminal law
Undoubtedly there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges
The contagion of lawlessenss would undermine social order and lay it in ruins
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence
Therefore law as a corner stone of the edifice of order should meet the challenges confronting the society
Friedman in his Law in Changing Society stated that State of criminal law continues to be as it should be a decisive reflection of social consciousness of society
Therefore in operating the sentencing system law should adopt the corrective machinery or the deterrence based on factual matrix
By deft modulation of sentencing process be stern where it should be and tempered with mercy where it warrants to be
The facts and given circumstances in each case the nature of the crime the manner in which it was planned and committed the motive for commission of the crime the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration
For instance a murder committed due to deep seated personal rivalry may not call for penalty of death
But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence
In Mahesh vs State of MP this Court while refusing to reduce that death sentence observed thus 721 It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts
To give the lesser punishment for the accused would be to render the justicing system of the country suspect
The common man will lose faith in courts
In such cases he understands and appreciates the language of deterrence more than the reformative jargon 
Therefore undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats
If the courts did not protect the injured the injured would then resort to private vengeance
It is therefore the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc
It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja
They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected
Four murders in a span of five years were committed for gain in cold blooded  pre meditated and planned way
It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders the subsequent murders are not relevant facts to be considered
But in this case the trial of the murder relating to Athiappan and Hariramachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chelladurai and Christodas
Therefore the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts
The deceased Hariramachandran is no other than the nephew elder sister s son of A 1
This would establish his depravity and hardened criminality
No regard for precious lives of innocent young boys was shown
They adopted the crime of murder for gain as a means to living
Undoubtedly under section 2352 of Code of Criminal Procedure the accused is entitled to an opportunity to adduce evidence and if need be the case is to be adjourned to another date
It is illegal to convict an accused and to impose sentence on the same day
It is true 722 as contended for the State that under section 309 third proviso brought by Amendment Act 1978 that no adjournment should be granted for the purpose only of enabling the accused person to show cause against sentence to be imposed upon him
Under section 2352 when the accused has been given right to be heard on the question of sentence it is a valuable right
To make that right meaningful the procedure adopted should be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence
The hearing may be on the same day if the parties are ready or be adjourned to a next date but once the court after giving opportunity propose to impose appropriate sentence again there is no need to adjourn the case any further thereon
No doubt the Sessions Judge needed to adjourn the case under section 2352 to next date but in the High Court the counsel was directed to show any additional grounds on the question of sentence 
The High Court observed that the counsel was unable to give any additional ground
It is Further contended that the appellants are young men
They are the bread winners of their family each consisting of a young wife
minor child and aged parents and that therefore the death sentence may be converted into life
We find no force
These compassionate grounds would always be present in most cases and are not relevant for interference
Thus we find no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference
The appeals are accordingly dismissed
GN Appeal dismissed


Summary:
The appellants A 1 to A 3 and A 5 6 along with Co accused A 4 were prosecuted under sections 302149 of the Indian Penal Code
Test identification parades were conducted by the Magistrates in which A 6 was identified by PWs 1 2 3 and 4 and A 1 23and 5 were identified by PWs 1 and 2
The trial court held that the identification parade was perfunctory and was of no assistance to the prosecution
It also rejected the testimony of PWs 1 to 5 by holding that the evidence of PWs 3 4 and 5 was untrust worthy and that it was unsafe to accept the testimony of other two eye witnesses PWs 1 and 2 for recording a conviction
Accordingly the trial court acquitted all the accused persons
Against the order of acquittal the State preferred an appeal before the High Court
The High Court accepted the testimony of PWs 1 and 2 corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty
Accordingly the High Court reversed the order of acquittal and convicted the appellants
Since A 4 was not identified by the PWs 1 to 4 he was given the benefit of doubt and the High Court confirmed his acquittal
724 In appeal to this court under section 2 of the  it was contended on behalf of the appellants that PWs 1 and 2 were strangers to the assailants and in the circumstances of the case they did not have the opportunity to identify the assailants and consequently their testimony was not free from doubt the trial court was right in rejecting the testimony of these witnesses but the High Court erred in reversing the order of acquittal and convicting the appellants by accepting the testimony of these witnesses
Allowing the appeal and setting aside the order of conviction and sentence this Court HELD 1It is open to Supreme Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case
In an appeal against acquittal the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion
But where the view taken by the trial court on an appreciation of the evidence is also a plausible view the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence
728F G 11 Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt
731F 2The evidence given by the witnesses before the Court is the substantive evidence
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time the court will not ordinarily accept that identification as conclusive
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence give by the witness before the Court
But in a case where the evidence before the court is itself shaky the identification before the magistrate would be of no assistance to the prosecution
729D E 21 The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression
725 In the instant case at the scene of the crime when no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake
Therefore the testimony of PWs 1 and 2 is unsafe to be acted upon
The overall view of the evidence taken by the Trial Court is reasonable and plausible
The High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellant was not established beyond reasonable doubt731A B E F G 730H 3
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned
When persons who have already known the accused persons to be identified are mixed up with the witnesses the test identification is clearly vitiated and is futile
In the instant case the magistrates in conducting the test identification parade have committed a grave error because in the case of Accused No 6 he had mixed up along with PWs 1 and 2 a person known to the accused
Similarly in the identification of the other accused PW 4 who claimed acquitance with Accused Nos 2 3 and 5 was mixed up with PWs 1 and 2
731C E