Malasri Nandi, J
1. Heard Ms. B. Sarma, learned Amicus Curiae appearing for the appellant as well as Ms. B. Bhuyan, learned Senior Counsel and Addl. P.P.
appearing for the State assisted by Mr. J. Das.
2. This appeal is directed against the judgment and order dated 30.10.2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 150(J-J)
of 2015, convicting the accused/appellant under Section 302/392 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 20,000/-
in default of payment of fine, to undergo rigorous imprisonment for 6(six) months under Section 302 IPC. The accused/appellant was further
sentenced to undergo rigorous imprisonment for 10 (ten) years with a fine of Rs. 10,000/- in default of payment of fine, to undergo rigorous
imprisonment for 6(six) months under Section 392 IPC. Both the sentences were directed to run concurrently.
3. The brief facts of the case is that the informant Beni Prasad Beria lodged an FIR before the in-charge, Deberapar police out-post under Mariani
P.S. on 23.09.2014 stating inter-alia that one Manikchand Sarma had been staying as a tenant in his land at staff line of Bhelaguri Tea Estate. On
21.09.2014 at about 10.00 P.M., when Manikchand Sarma was sleeping inside his shop, some miscreants entered into his shop by breaking the back
door of the shop and killed Manikchand Sarma by assaulting him with a piece of iron rod. Thereafter, the miscreants also had stolen away money from
the shop.
4. On the basis of the complaint, a case was registered vide Mariani P.S. Case No. 219/2014 under Section 396 IPC and investigation was started.
During investigation, the Investigating Officer visited the place of occurrence and recorded the statement of the witnesses and seized some articles
like one iron rod etc from the place of occurrence. Inquest was done on the dead body of the deceased and subsequently, the dead body was sent for
postmortem examination. The postmortem examination of the deceased was conducted at Jorhat Medical College and Hospital. As per the
postmortem report, the death of the deceased was due to coma as a result of head injury. All the injuries were antemortem caused by blunt weapon
which was homicidal in nature.
5. After completion of investigation, the chargesheet was submitted before the Court of SDJM, Titabar of Jorhat district under Section 396 IPC
against the accused/appellant. As the case was exclusively triable by the Court of Sessions, the case was committed accordingly for trial.
6. During trial, charge was framed against the accused/appellant under Sections 302/392 IPC which was read over and explained to the
accused/appellant to which he pleaded not guilty and claimed to be trial.
7. During trial, the prosecution examined 8(eight) witnesses and marked 8(eight) exhibits and 3(three) material exhibits. On the other hand, the
defence did not choose to adduce any evidence. After completion of trial, the statement of the accused/appellant was recorded under Section 313
Cr.P.C, and the incriminating materials available in the evidence put before the appellant wherein he denied the same.
8. The accused/appellant stated in his statement recorded under Section 313 Cr.P.C that he had committed no offence. Mangal Majhi is the uncle of
Biresh Majhi (P.W-7). Mangal Majhi and Mathu Majhi (P.W-2) are brothers and they used to live in the same campus. Mathu’s father had two
wives and number of children from them. To help their families his mother had given up a job in the tea garden. Mangal Majhi had falsely implicated
his uncle Jugesh Majhi and now his nephew Biresh Majhi has falsely implicated him. Sniffer dog had gone to the house of Mangal Majhi only and not
to his house. P.W-7 Biresh Majhi himself was a salesman in the shop of the deceased Manik Chand Sharma and he and Mangal used to visit the shop
of the deceased.
9. It was urged by learned Amicus Curiae Smt. B. Sharma that P.W-7 who accompanied the accused/appellant on the day of incident is not the
approver or accomplice as no pardon was tendered by him. Though he did not disclose his participation in commission of the crime but as he
accompanied the accused/appellant on the day of incident in the shop of the deceased, he cannot be the witness of the prosecution but he should have
been treated as accused in the case. As such, his evidence cannot be taken into consideration. Learned counsel for the appellant also argued that
except P.W-7 no other witnesses examined by the prosecution had uttered a single word regarding involvement of the accused in committing the
murder of the deceased. As such, accused/appellant is entitled to get the benefit of doubt.
10. On the other hand, learned senior counsel, Ms. B. Bhuyan, additional public prosecutor has argued that it is an admitted fact that P.W-7 had
accompanied the accused/appellant on the day of incident to the shop of the deceased. As such, the presence of the accused/appellant in the shop
cannot be denied. P.W-7 also narrated the story how the incident occurred inside the shop of the deceased, which was also not denied by the
accused/appellant. Under the facts and circumstance of the case, it can be said that the prosecution has considerably proved the case against the
accused/appellant beyond all reasonable doubt and the judgment of conviction passed by the learned Trial court does not need for any interference.
11. We have considered the submissions of learned counsel for the parties. We have also gone through the record of the trial Court alongwith the
documents available thereon. Before further proceeding of the case, we have to ponder over the evidence of the witnesses recorded by the trial
Court.
12. P.W-1, Beni Prasad Beria is the informant who deposed in his evidence that the deceased was running a grocery shop on rent in his premises. On
the subsequent day of incident i.e. on 22.09.2014, he came to know from the nearby people that till 9.00 A.M., the deceased had not opened his shop.
After getting such information, he immediately went to the shop of the deceased and knocked the door but did not find any respond. Then his elder
brother informed about the same to Deberapar police outpost over telephone. Then police came and entered into the shop through back side as the
back side door was found open. Inside the shop Manikchand was found lying dead over there. He did not enter into the shop. He could not say what
articles were stolen from the shop of the deceased. Then, he lodged the FIR vide Exhibit-1.
13. P.W-2 is Mathu Majhi who deposed in his evidence that about one year back Manikchand Sarma died. Deceased owned a grocery shop in their
village. He came to know about his death on the subsequent day of the incident when police arrived at the place of occurrence. He came to know that
Manikchand Sarma was found dead inside his shop and he did not know how the deceased died.
14. P.W-3, Nemichand Sharma, also deposed in the same tune by stating that he came to know about the death of Manikchand Sarma on the
subsequent day of the incident. Police seized one iron rod, one piece of wood and one belt from the place of occurrence in his presence vide material
exhibit-1, 2 and 3.
15. P.W-4 Rohit Kumar Beria, is also the seizure witness.
16. P.W-5, Dr. Nitu Kr. Gogoi is the Medical officer who conducted postmortem examination on the dead body of the deceased. He deposed in his
evidence that on 23.09.2014, he was working as Asstt. Professor, Dept. of Forensic Medicine, JMCH, Jorhat. On that day, he performed the post-
mortem examination on the dead body of Manikchand Sarma, Male, aged about 45 years, on police requisition and found the following:-
1. Lacerated injury of size 3cm x 1cm x scalp deep over left frontal eminence underneath depressed fracture of frontal bone present.
2. Lacerated injury of size 4 cm x 1cm x scalp deep over parietal eminence underneath depressed fracture of parietal bone.
3. Lacerated injury of size 7cm x 1cm x muscle deep over left eye brow.
4. lacerated injury of size 5cm x 1cm x muscle deep below eyelid.
5. Lacerated injury of size 3cm x 1cm x muscle deep below the chin.
6. Abraded contusion of size 4cm x 2cm x over the right shoulder joint.
7. Abraded contusion of size 5cm x 1 cm over dorsum of left hand.
Brain was found congested. Cranium & spinal cord; membranes were found congested; subdural haemorrhage over both the hemispheres of the brain
were found congested.
Doctor opined that death was due to coma as a result of head injury. All the injuries were antemortem caused by blunt weapon which was homicidal
in nature. Approximate time since death was 15 to 24 hours.
In his cross-examination, P.W-5 replied that all the injuries were antemortem and injuries nos. 1 and 2 were fatal and sufficient to cause death.
17. P.W-7 is Biresh Majhi, who deposed in his evidence that about two years back he used to sell lau pani ( a type of local/country liquor made up of
fermentation of rice) near the shop of the deceased. The accused used to come to his place to consume lau pani. On the date of the incident at about
2.00 P.M., the accused came to his shop and had lau pani and told him that at night he would go to the shop of the deceased Manik to commit theft
and also asked to accompany him and also directed him to cover his face with gamucha. On his direction at about 10.00 p.m. he came out from his
house and along with the accused Dhiren Majhi he went to the shop of the deceased Manikchand Sarma and the accused called the deceased
‘Manik Da’, ‘Manik Da’ and after hearing the same the deceased came out and then the accused pushed the deceased inside his shop
room and tied him on the bed and hit him thrice with an iron rod, which the accused brought along with him. The deceased died on the spot.
Thereafter, the accused Dhiren Majhi searched for money inside the shop of the deceased and found one cash box and he took away the money. He
gave him Rs. 500/- and then, they both came out. The accused asked him not to disclose about the incident to anyone.
18. In his cross-examination, P.W-7 replied that at the time of the incident, he was a student of Class-X. His school timing was from 9.00 A.M. to
2.30 P.M. After his school, he used to sell lau pani. On the date of the incident, he went to school and started to sell lau pani at about 4.00 to 5.00 p.m.
He used to stay along with his uncle and aunt. On the date of the incident when he came out from his house, he did not tell anything to his aunt.
19. P.W-8 is the Investigating Officer. From his evidence, it discloses that on 23.09.2014, he was working as in-charge of Deberapara police out- post
under Mariani police station. On that day, he had received an FIR lodged by one Beni Prasad Beria. The same was entered in the General diary vide
G.D. Entry no. 703 dated 23.09.2014. Thereafter, forwarded the same to Mariani police station where it was registered as Mariani P.S. Case No.
219/2014 under Section 396 IPC. After registration of the said case, the same was entrusted to him for investigation. Preliminary investigation of the
case had already been started pursuant to a phone call received from the Manager, Bhelaguri Tea Estate, which was received at 10.15 a.m. on
22.09.2014 stating that the house of Manikchand Sarma was found closed in the morning and none of the inhabitant had come out from the house. The
said phone call was entered in the general diary vide G.D. Entry No. 663, dated 22.09.2014. Thereafter, he alongwith police personnel went to the
house of Manikchand Sarma and found the house closed from front side. The house was adjoining to a road and another road had gone by the side of
the said house. They went to the said road to the back side of the said house of Manikchand Sarma and found that a part of the bamboo fencing of the
rear boundary was broken. They entered through the broken bamboo fencing and found the house ransacked, things were lying here and there.
Manikchand Sarma, had been running a grocery shop in the said house. They found Manikchand Sarma lying in a pool of blood over a mattress. He
had noticed some injuries on his head. The sniffer dog after visiting the place of occurrence went straight to the house of Mangal Majhi whose house
was situated nearby and barked at indicating his involvement. He accordingly arrested Mangal Majhi. He prepared a rough sketch map of the place of
occurrence vide Exhibit-6. He also seized one iron rod, one wooden piece and one leather belt from the room wherein the dead body of the deceased
was found. After arrival of the Executive Magistrate, inquest was done over the dead body of the deceased Manikchand Sarma. Thereafter, dead
body was sent for postmortem examination to Jorhat Medical College and Hospital, Jorhat. He had also sent the sample of one foot print which found
on the courtyard in the back side house of the deceased. He also collected the report of the said foot print vide Exhibit-4. Due to insufficient evidence,
the case was not proceeded against Mangal Majhi. The investigation had revealed that accused Dhiren majhi @ Fekuwa was involved in commission
of the murder of the deceased.
20. P.W-8 further deposed that during investigation, he also produced one witness Biresh Majhi, for recording his statement under Section 164 Cr.P.C
before the Magistrate. Witness Biresh Majhi had disclosed before the Magistrate the manner in which the accused Dhiren Majhi had committed the
murder of the deceased Manikchand Sarma. After collection of postmortem report he submitted chargesheet against the accused Dhiren Majhi @
Fekuwa under Section 396 of IPC vide Exhibit-7.
21. In his cross-examination, P.W-8 replied that in the rough sketch map vide Exhibit-6, there is no mention about any cash box. In Exhibit-2(seizure
list) there is no mention about any blood stain found on the iron rod, piece of wood or the leather belt. The said seized articles were not sent to
Forensic Science Laboratory for their examination. Except the statement made by Biresh Majhi, he did not find any other evidence that showed the
complicity of accused Dhiren Majhi @ Fekuwa.
22. After going through the evidence of the aforesaid witnesses, it reveals that except P.W-7, no other witnesses had stated anything regarding
involvement of the accused/appellant in the instant case. Now the question comes how far the evidence of P.W-7 Biresh Majhi is acceptable in the
eye of law.
23. Admittedly, in the case in hand, no pardon was tendered by P.W-7 either before any Magistrate during investigation or trial before the Sessions
Judge. As such, P.W-7 cannot be treated as accomplice/approver as per provision of 306 Cr.P.C which reads as follows:-
“Section-306, tender of pardon to accomplice:- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly
concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the
investigation or inquiry into, or the trial of, the offence and the Magistrate of the first class inquiring into or trying the offence, at any stage of the
inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.â€
24. Section-307 Cr.P.C says that:-
“Power to direct tender of pardon:- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is
made may, with a view to obtaining at the trial the evidence of any person supposed to have directly or indirectly concerned in, or privy to, any such
offence, tender a pardon on the same condition to such person.â€
25. Section-308 Cr.P.C deals with trial of person not complying with conditions of pardon:- (1) Where, in regard to a person who has accepted a
tender of pardon made under Section 306 or section 307, the Public Prosecutor certified that in his opinion such person has, either by wilfully
concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for
the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the
same matter, and also for the offence of giving false evidence.
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing
contained in section 195 or section 340 shall apply to that offence.
26. Section-406 Cr.P.C deals with Irregularities which do not vitiate proceedings:- If any Magistrate not empowered by law to do any of the following
things, namely:-
(a) to issue a search-warrant under section 94;
(b) to order, under section 155, the police to investigate an offence;
(c) to hold an inquest under Section 176;
(d) to issue process under section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of
such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190;
(f) to make over a case under sub-section (20 of section 192;
(g) to tender a pardon under section 306;
(h) to recall a case and try it himself under section 410; or
(i) to sell property under section 458 or section 459, erroneously in good faith does that things, his proceedings shall not be set aside merely on the
ground of his not being so empowered.â€
27. Provisions of Section-132 of Indian Evidence Act says that a witness shall not be excused from answering any question as to any matter relevant
to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend
directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of
any kind:
Proviso:- provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against
him in any criminal proceeding, except a prosecution for giving false evidence by such answer.’’
28. Section-306 of Cr.P.C confers power of tendering pardon to accomplice/approver to C.J.M. or C.M.M. as well as to other Magistrates of 1st
Class and while C.J.M./C.M.M. has been conferred with such power to tender pardon to accomplice/approver at any stage of investigation, or inquiry
into or the trial of the offence, the other Magistrates of 1st Class have been conferred with such power at any stage of inquiry or trial, only meaning
thereby not at the stage of investigation.
29. In the case in hand, as we have already mentioned that no pardon was tendered by P.W-7 before any Magistrate during investigation or trial and
learned Sessions Judge also did not take any initiative to implead him as accused alongwith the present appeallant under Section 319 Cr.P.C. The
evidence of P.W-7 has not been challenged in the trial Court and no objection was raised by the appellant/accused on his examination as P.W-7 who
was cross-examined at length, but there was no whisper from the side of the appellant/accused by not following the provision under Section 306
Cr.P.C.
30. From the provisions of section 460 and 461 of the Code of Criminal Procedure, it is crystal clear that legislature has listed the defects or
irregularities in two different categories, viz (i) curable which does not vitiate proceedings and the other (ii) incurable which vitiates proceedings.
31. The provision of Section 460 of the Code of Criminal procedure clearly states that by an irregularity as alleged by the appellant’s counsel in
the instant case, the proceedings cannot be vitiated.
32. In the case of Hardeep Singh Vs. State of Punjab and others (2014) 3 SCC 92, Hon’ble Supreme Court has held that:-
“power under Section 319 Cr.P.C is a discretionary and an extraordinary power which is to be exercised sparingly only where strong and cogent
circumstances of the case warrants soâ€.
33. The admissibility of evidence of accomplice/approver withness against co-accused persons as well as his immunity from prosecution, in view of
the provisions of section 132 of Indian Evidence Act was upheld by the Hon’ble Apex Court in the case of Laxmipath Choraria and Others Vs.
State of Maharashtra, AIR 1968 SC 938, where Ethyl Wong was examined as a first witness and her testimony was clearly that of an accomplice.
Considering the argument that Ethyl Wong could not have been examined as a witness and it was the duty of the prosecution to try her jointly with the
appellants, for breach of which obligation, the trial was vitiated and even if the trial was not vitiated as a whole, the testimony of Ethyl Wong must be
excluded from consideration, it was held that:-
Though no pardon could be tendered to Ethyl Wong because the pertinent provisions did not apply, yet, she could not be prevented from making a
disclosure and the prosecution was not bound to prosecute her, if her evidence was necessary to break a smugglers ring. It was also held by the Apex
Court that Ethyl Wong was a competent witness under section 118 of the Indian Evidence Act and if the Custom Authorities treated Ethyl Wong as a
witness and produced her in Court, she was bound to answer all question and could not be prosecuted for her answers"".
34. The proviso to section 132 of Evidence Act provides a safeguard to such witness ""that no such answer, which the witness is compelled to give,
shall expose him to any arrest or prosecution, or can be proved against him in any criminal proceedings, except a prosecution for giving false evidence
by such answer"".
35. In the case of R. Dineshkumar @ Deena Vs. State Represented by Inspector of Police and others, (2015) 3 SCC (Cri) I, where after recording of
the statement under section 161 and 164 Cr.P.C. prosecution examined an accomplice as P.W. 64, it was held that:-
even if answers given by him are self incriminatory, apart from being evidence of the guilt of others, he cannot be prosecuted on the basis of his
deposition, in view of proviso of section 132 of the Indian Evidence Act and holding the correctness of order declining to summon him for trial as an
additional accused under section 319 Cr.P.C. It was also held that in the light of provisions contained in proviso to section 132 of the Indian Evidence
Act, deposition of P.W.64 cannot be treated as evidence within the meaning of that expression occurring in section 319 Cr.P.C., in order to summon
him as an accused to be tried along with appellants herein and other accused already facing trial"".
36. In the case of Chandran @ Manichan @ Maniyan and others Vs. State of Kerala, (2011) 2 SCC (Cri) 551, challenging the admissibility of
evidence of P.W. 53 accomplice/approver witness who had neither been granted pardon under section 306 Cr.P.C. nor was he prosecuted, it was
held that:-
evidence of such a witness subject to usual caution is admissible evidence and the contention of inadmissibility of his evidence for want of pardon,
was rejected being of no consequence"".
37. In the case of A Devendran Vs. State of Tamil Nadu 1998 SCC (Cri) 220, where order granting pardon was held incurable for want of
jurisdiction, the evidence of approver of having participated in the commission of the offence, though not to the same extent as the main accused, it
was held ""that the statement of such witness cannot be said to be of exculpatory nature and on that score his evidence cannot be excluded from
consideration"".
38. Reverting back to the present case, upon hearing the parties, perusal of record and in view of the aforesaid legal propositions, we have come to
the conclusion that:-
(i) the irregularity if any committed in tendering pardon to an accused does not vitiate the proceedings, in view of provisions of section 460 and 307 of
Cr.P.C.
(ii) the prosecution may produce an accused as prosecution witness even if he was not tendered pardon under section 306 Cr.P.C and his evidence
may not be discarded for want of valid tender of pardon.
(iii) the evidence of an accused produced as prosecution witness is admissible in evidence against the other accused person, even in absence of the
pardon under section 306 Cr.P.C., though required to be analyzed with caution, but it may not be considered to be inadmissible. So the statement of
P.W.-7 Biresh Majhi is admissible piece of evidence against the accused/appellant.
(iv) the statement of an accused produced as prosecution witness will be admissible piece of evidence against other accused but the same statement
will not be treated as evidence against him within the meaning of evidence under section 319 Cr.P.C. Hence, P.W-7 should not be summoned for trial
together with the accused/appellant on the basis of his evidence as P.W.-7.
(v) the legislature has provided protection to accomplice/approver witness together with other accused, under proviso of section 132 of Indian
Evidence Act as well as section 308 of Cr.P.C. So P.W-7 is duly protected against prosecution with accused/appellant or separately, except that he
may be prosecuted for giving false evidence.
39. Before considering the impugned judgment on merit, inasmuch as the Sessions Judge had relied on the evidence of P.W-7, let us find out the legal
position about the evidentiary value of accomplice/approver and its acceptability with or without corroboration.
40. 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 the evidence of an accomplice is regarded ab initio as open to grave
suspicion. If the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless
corroborated in some material particulars; but if the suspicion attaching to the 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 the evidence alone.
41. In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, along
with Illustration (b) to Section 114 which read as under :-
133. Accomplice.- 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.
Illustration (b) to Section 114 ""The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
42. While considering the validity of approver's testimony and tests of credibility, Hon’ble Supreme Court in the case of Sarwan Singh S/o Rattan
Singh vs. State of Punjab AIR 1957 SC 637 has held as under:-
“An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he
has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other independent evidence.â€
43. In Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp) SCC 599 where the prosecution had sought to prove its case by relying upon the
evidence of the approver, it was held that:-
“ The approver is a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver, it would be
risky to base the conviction, particularly, in respect of a serious charge like murder.â€
44. From the above, it transpires that once the evidence of the approver is found to be not reliable, the worth of his evidence is lost and such evidence,
even by seeking corroboration, cannot be made the foundation of a conviction. The above said ratio has been reaffirmed and reiterated by the
Hon’ble Supreme Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80); Ramprasad v. State of Maharashtra, : AIR 1999 SC
1969 : (1999 Cri LJ 2889) and Narayan Chetanram Chaudhary v. State of Maharashtra, : (2000) 8 SCC 457.
45. The Hon’ble Supreme Court has in a series of cases expressed the same view as regards accomplice evidence i.e. in the case of State of
Bihar Vs. Basawan Singh AIR 1958 SC 500; Hari Charan Kurmi v. State of Bihar AIR 1964 SC1184; Haroon Haji Abdulla v. State of Maharashtra;
(AIR 1968 SC 832) and Ravinder Singh v. State of Haryana (1975) 3 SCC 742. In the case of Hari Charan Kurmi (supra) a five-Judge Bench of the
Hon’ble Supreme Court observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as
such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the
requirement which has now become virtually a part of the law that it is corroborated in material particulars.
46. Reverting back to the present case, as we have already pointed out that P.W-7 nowhere tendered pardon either before any Magistrate during
investigation or before the Trial Court. He was cited as witness in the chargesheet and accordingly, he was examined as P.W-7 in the Court of
Sessions. It is true that whatever he stated before the Magistrate at the time of recording his statement under Section 164 Cr.P.C and under Section
161 Cr.P.C. during investigation and before the trial Court are identical to each other but there is no corroboration of the evidence of P.W-7 on the
material point. No other prosecution witness has supported the prosecution case by stating that they have knowledge regarding presence of P.W-7 on
the grocery shop of the deceased along with the accused/appellant on the fateful night. It appears from the evidence of P.W-7 that he used to stay
along with his uncle and aunt but none of them was examined by the Court of Sessions to prove the fact that whether, P.W-7 was present in his house
on the night of incident.
47. As far as the cause of death of the deceased is concerned, as per post-mortem report, the deceased sustained 7(seven) numbers of injuries on his
person. But according to P.W-7, the accused/appellant hit the deceased with an iron rod thrice, as a result of which he sustained injuries on his head
and died on the spot. Under such backdrop, relying on the evidence of P.W-7, the accused/appellant cannot be convicted without having corroborative
evidence.
48. In the result, present appeal succeeds and is allowed. The judgment and order of conviction dated 30.10.2017 passed by the learned Sessions
Judge, Jorhat in Sessions Case No. 150(J-J) of 2015 regarding the conviction of appellant is set aside and the appellant is acquitted from the charges
levelled against him. The accused/appellant is in jail. He shall be released forthwith if not required to be detained in connection with any other case.
49. LCR be returned back.
