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TMI Blog1979 (3) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... lso P. Ws. 76 and 85 who were also more or less in the nature of accomplice witnesses. 3. Broadly speaking, the prosecution case was that the accused were members of the Communist Party Marxist which believed in the ideology of capturing power by force and by bringing about an armed revolution and in pursuance of this conspiracy the appellants attacked various police stations and committed dacoities in order to seize arms, weapons and explosives so that they may be able to achieve their objective. According to the prosecution, there were several limbs of the main conspiracy one of which was held at Calicut on the night of 30th October, 1968 and the other at Tutorial College at Tellichefry in the house of accused No. 2 who was the proprietor of the College. At these two places it was decided to raid the police stations and. commit various illegal acts. Thus, a close analysis of the case reveals the following incidents which form the basis of the charges against the accused: 1. Conspiracy in the house of accused No. 1 at Calicut on 30-10-1968; 2. Conspiracy in the Tutorial College at Tellicherry owned by accused No. 2 on 17-11-1968; 3. Attack on Tellicherry Police St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubtedly 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 taint 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. It is well settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is reliable witness and that is a test which is common to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. 5-A. This view was reiterated by this Court in the case of Mohd. Hussain Umer Kochra v. K.S. Dalip singh ji where Bachawat, J. speaking for the Court observed as follows: The combined effect of Sections 133 and 114 Illustration (b) is that though a conviction based upon accomplice evidence is legal the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 1968 at about 9-30 P.M. there was a meeting in the upstairs in the first story of the building which lasted till 4-30 in the morning. This witness does not claim to be present either in the room where the meeting took place or any place nearby. He was in the ground floor and over-heard the discussion from down stairs. The witness clearly admits that he had not seen the persons who had come there on that date. In view of this admission, it is manifest that he would not be in a position to identify any person much less the accused who is said to have participated in the meeting. The witness, however, merely draws from his imagination in order to prove the presence of accused Nos. 1, 3, 7, 71, 10 and 90. He, however, makes it clear that he thought that these persons' were present. The actual words used by him are these: I think that Narayan, Mandakini, Ajita, Balaraman, Balkrishnan, T.V. Appu were present at the meeting. The witness, however, went on to state that he did not hear how the weapons of thoughts should be propagated among the people and on this he was declared hostile. Thus, taking the evidence of this witness ex facie it does not prove anything nor does it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears from his evidence that before the police he had given a different version. There he had said that he was present in the hall and that the meeting (took) place to his hearing and in his presence. The witness has tried to resile from his previous statement and the reason is not far to seek. In the first place, the witness himself admitted that the Master was not friendly to him. Indeed, if this was so, then the leader of the party, viz., A. 2 would not allow an unfriendly person to be present in the hall where the meeting was convened and the discussions were held. He would immediately take the precaution of sending him out. Realising the inherent improbability of this story, the prosecution made the witness to give a different version when he came to depose in the Court, viz., that he was not in the hall but had heard the entire story from beneath the staircase .where he was lighting a beedi. In these circumstances, therefore, the evidence of this witness does not impress us and does not appear to be worthy of credence. If the evidence of this witness is rejected, then, apart from the evidence of the accomplice witnesses nothing remains. In those circumstances, therefore, we h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore and this man was A. 42. The evidence further states that these two accused who were armed had thrown away their arms but no arms were seized. It would appear from the evidence of this witness that the raid at the police station must have created a great sensation as a result of which a number of people gathered and ran helter-skelter pursued by the police. The possibility, therefore, that A. 42 and A. 43 may have been the spectators rather than the raiders cannot be safely excluded. Indeed, if these accused were armed and they had thrown their weapons, the weapons should have been seized by the police and produced to Court to corroborate the evidence of this witness. Thus, having regard to the facts mentioned by this witness in the F.I.R, we are not in a position to place any reliance on the evidence of this witness regarding the identity of the concerned appellants. 11. Similarly, the other witness who proved the participation of some of the appellants in the raid is P.W. 64. This witness states that the other policemen did not tell the names of the persons identified by them. He further states that when P.W. 63 came to the spot he was informed that two persons were identif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as A. 14 is concerned the witness states that he did not remember to have taken the name of this accused in his earlier statement before the police. Moreover, P.W. 92 in his statement before the Sub-Inspector, Medical College on 24-11-1968 did not name A. 14 as one of the persons who had participated in the attack at the Pulpally Wireless Station. In view of this significant and material omission we are not in a position to place any reliance on the evidence of this witness so far as the participation of A. 14 is concerned. As regards P.W. 94 he also stated that he identified only A. 7 among the persons who had entered the police station and he could not identify the others. 14. This takes us to the statement of Sub-Inspector Sankunny Menon Ex. P-107. This witness was injured in the raid and is a very competent witness to identify his assailants. According to the evidence of this witness which has been believed by the courts below A.5, A. 16, A.7, A. 128, A. 147, A. 146 A. 145 and A. 135 were the persons who had participated in the occurrence at the police station. The names of these accused persons are to be found in the evidence of the accomplice witness also and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d we find it unsafe to rely on the single identification of this witness made under serious strain and stress as deposed by him. In these circumstances, therefore, there does not appear to be any legal evidence against A.5 so far as this occurrence is concerned, and, therefore, the accomplice evidence cannot be called into aid. Dacoity in the shop of P.W. 116. 16. The F.I.R. of this occurrence is Ex. P-134. According to the FIR. lodged by P.W. 116 about 40 persons variously armed came to his shop and demanded a gun from him and after entering his shop took away articles worth ₹ 300/-. It is not at all mentioned in the F.I.R. whether any of the accused were identified either by name or by face, but P.W. 116 in his evidence in Court stated that he was able to identify Kissan Thomman (since dead), Muhammed A. 19, Barber Ramankutty A.16. He also identified A.5 and A.7 by face. It is obvious that if A.l6 and A.19 had participated in the occurrence and were known to him, their names must have been mentioned in the F.I.R. As the names were not at all indicated in the F.I.R. the evidence of this witness cannot be accepted. Similarly, as A.5 and A. 7 were persons who were not kn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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