Supreme Court of India

A. DEIVENDRANversusSTATE OF TAMIL NADU

Citation: 1997 INSC 703
Decided: 21 October 1997
Disposal: Disposed off
Bench: G N RAY

Holding

After commitment to a Sessions Court, only that Court may grant pardon; the Chief Judicial Magistrate's grant was ultra vires, making the approver's evidence inadmissible and the death sentence unwarranted.

Summary

The case involved a dacoity and murder where five accused were committed to the Sessions Court; one accused, MR, was granted pardon by the Chief Judicial Magistrate after commitment and examined as an approver. The Supreme Court held that after a case is committed to a Sessions Court, only that Court can grant pardon under Section 307 of the CrPC, rendering the Chief Judicial Magistrate's order jurisdictionally void and not curable under Section 460(g). Consequently, the approver's testimony was inadmissible, and the presumption under Section 114 Evidence Act could not be applied to the other accused. The Court also found that the death sentence imposed on the main accused did not satisfy the "rarest of rare" criterion and commuted it to life imprisonment. Convictions under Sections 120B, 148, 449, and 326/34 for the co‑accused were set aside, while the conviction of the main accused under Sections 302, 326 and 411 was upheld.

Issues considered

The jurisdiction to grant pardon after commitment to a Sessions Court under Sections 306 and 307 of the CrPC
Whether non‑compliance of Section 306(4)(a) vitiates proceedings when pardon is granted post‑commitment
The admissibility and required corroboration of an approver's statement
The applicability of the presumption under Section 114 of the Evidence Act to co‑accused
The appropriateness of the death penalty in the "rarest of rare" context

Legislation cited

Code of Criminal Procedure, 1973s. 10(3), s. 306, s. 306(4), s. 307, s. 460(g), s. 465
Indian Evidence Act, 1872s. 114, s. 3
Indian Penal Code, 1860s. 120B, s. 148, s. 302, s. 326, s. 34, s. 411, s. 449

Subjects

pardon jurisdictionCrPC Section 306CrPC Section 307approver evidencecorroborationSection 114 presumptiondeath penaltyrarest of rareIPC Section 302conviction reversal

Judgment

A. DEIVENDRAN A
v.
STATE OF TAMIL NADU

OCTOBER 21, 1997

B
[G.N. RAY AND G.B. PATTANAIK, JJ.]

Criminal Procedure Code, 1973-Sections 306, 307, 306(4) and 460
(g)-Pardon to Co-accused--Grant of-Matter committed to Sessions Judge--
Pardon granted by Chief Judicial Magistrate after commitment of case- C
Power to grant pardon lies only with the court to which commitment is
made-Held, after commitment of the proceedings the Sessions Judge had no
power to remit the matter for grant ofpardon to the ChiefJudicial Magistrate
and the order of the Chief Judicial Magistrate tendering pardon is without
jurisdiction not curable under Section 460(g) of the Code-Evidence of D
approver cannot be relied upon--Pardon to accused under Section 307 after
commitment of case to court of sessions-Compliance with provisions of
Section 306(4) is not necessary.

Evidence Act, 1872-Section 3-Approver-Evidence of--
Corroboration-Statement of approver implicating several accused- E
Approver's statement to be corroborated in material particulars-Must be
tested qua each accused from independent credible evidence-However,
independent corroboration of every particular circumstances from an
independent source not necessary.

Section 114, illustration (a)-Presumption-When can be drawn- F
Murder and robbery-Accused entered the house, killed two old ladies and
car driver and stole jewellery etc.-Ocular Evidence of two witnesses
establishing commission of offence though they had not seen the assailants--
Corroborated by medical evidence-Stolen jewellery recovered from house
of main accused on his statement two days after incident and also identified- G
Held, Presumption can be drawn against main accused under illustration (a)
to Section 114-0.lfence proved beyond reasonable doubt and accused liable
to be convicted under Section 302 and 326 /PC-Mere recovery of some
jewellery belonging to informant after two months of occurrence of incident
from t.vo other accused-Held, not sufficient to convict them for murder by
H
591
592 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A taking recourse to presumption under illustration (a) to Section 114 but can
be convicted under Section 411 JPC-Jndian Penal Code, Sections 302, 326
and 411.

Indian Penal Code, 1860-Section 302-Death Sentence-Rarest of
rare case-Accused killed two ladies by strangulation--Car driver also shot
B dead as soon as he entered the house-This itself not sufficient to hold that
it is a act of a depraved mind-Death of number ofpersons not determinative
factor for deciding whether extreme penalty of death could be awarded or
not-Evidence not showing that death of persons either diabolical, ghastly
or gruesome-Statement of approver taken out of consideration yet ocular
C evidence of two witnesses follow recovery of arms and stolen jewellery from
house of accused on his statement-Held, case does not fall within 'rarest of
rare cases' where extreme penalty of death could be awarded

The main accused alongwith accused 'RP', accused 'RT', accused B and
accused 'MR' who was granted pardon and was later examined as approver,
D hatched a conspiracy to commit robbery. The accused killed two old ladies, a
car driver and stole jewellery etc. and escaped. FIR was lodged, charge sheet
was submitted and the Magistrate on being satisfied, committed the five
accused for trial. The case was committed to court of Sessions; dnring its
pendency, an application for grant of pardon to accused 'MR' was filed. The
E court of Sessions forwarded it to Chief J·udicial Magistrate, who granted pardon
to accused 'MR'. Accused 'MR' was examined as approver before the Sessions
Judge along with other prosecution witnesses and main accused, accused 'RT'
and 'RP' were committed under different Sections. Accused B was acquitted
as Prosecution failed to establish the charges beyond reasonable doubt. The
High Court upheld the conviction and sentence passed by Sessions Judge under
F Section 120B, 148, 449, 302/34 and 326/34 IPC.

In this appeal challenging the order of the High Court, the appellant
contended that the Sessions Judge did not exercise his power and on the other
hand forwarded the matter to be dealt with by the Chief Judicial Magistrate
G and ultimately the Chief Judicial Magistrate granted pardon to the accused;
the said order was without jurisdiction and illegal and as such accused 'MR'
cannot be held to be an approver in the eye of law. Even assuming the order of
the Chief Judicial Magistrate granting pardon to the accused can be sustained,
but yet non-compliance of Sub-section (4)(a) of Section 306 of the Code vitiates
the entire proceedings and consequently the evidence of the approver when
H he was examined as PW-1 has to be excluded from consideration. Moreover if
A~DEIVENDRAN v. STATE OF T.N. 593
the approver's evidence is examined it would appear that the same is wholly A
exculpatory in nature and, therefore, no reliance can be placed on the same.

The approver's evidence does not get corroboration from any
independent materials neither w;th regard to the identity of the accused
persons nor with regard to the role played by them, and as such the approver's
evidence must be held to be untrustworthy and should not be acted upon. B

The respondent submitted that the very object of granting pardon to one
of the accused who agrees to be a witness of the prosecution to unfold the
entire incident engrafted under Sections 306 and 307 of the Code will be
frustrated ifa technical view of the provisions is taken; therefore, no prejudice C
having been caused by the grant of pardon by the Chief Judicial Magistrate
the said order cannot be held to be beyond jurisdiction.

Disposing of the appeals, this Court

HELD: 1.1. Under Section 306 Cr. P.C. power has been conferred upon D
the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the
Magistrate of the First Class to tender pardon to a person on condition of his
making a full and true disclosure of whole of the circumstances within his
knowledge relating to the offence. A Magistrate of the First Class can exercise
the power while enquiring into or trying the offence in question, the Chief E
Judicial Magistrate or a Metropolitan Magistrate can exercise the power at
any stage of investigation or enquiry into or trial of the offence which they
themselves may not be trying. But under Section 307 after commitment of a
case the only Court which can tender pardon is the Court to which the
commitment has been made. Once a proceeding is committed to a Court of
Sessions then only the said Court can exercise power to tender pardon to an F
accused. [603-F-H; 604-A)

1.2. It cannot be said that even under Section 307 after commitment of
a case a Chief Judicial Magistn1te retains the power to grant pardon. Once a
case is committ.ed to the court of sessions then it is only that court to which G
the proceedings have been committed can tender pardon to a person and the
Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for
tendering pardon. (604-G; 605-EJ

L3. The Sessions Judge has been empowered to make provision for
disposal of any urgent application in certain contingencies by requiring an H
594 SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.

A Additional or Assistant Sessions Judge or in their absence the Chief Judicial
Magistrate to deal with an application which otherwise would have been dealt
with by the Sessions Judge. The Chief Judicial Magistrate can be required
to act under the Sub-Section not when the Sessions Judge himself is absent
or unable to act but also when there is no ~dditional or Assistant Sessions
B Judge. In this case there is not an iota of material to indicate that the pre-
conditions for exercise of power under sub-section (3) of Section 10 of the
Code were satisfied or the Sessions Judge exercised his power under sub-
section (3) of Section 10. Therefore, the order of the Sessions Judge in
forwarding the application for grant of pardon to the Chief Judicial Magistrate
as well as order of the Chief Judicial Magistrate granting pardon to the
C accused who was examined as approver is not sustainable in law. (606-B-D)

1.4. The expression 'trial' used in sub-section (I) of Section 306 means

--
those cases which are triable either by a Magistrate or the Chief Judicial
Magistrate. The Magistrate First Class who is in session of the case can
tender pardon in course of inquiry or trial of the said case while the Chief
D Judicial Magistrate or Metropolitan Magistrate can tender pardon even though
the trial is pending before another First Class Magistrate. But by no stretch
of imagination it can be construed that under Section 306 (I) of the Code a
Chief Judicial Magistrate or Metropolitan Magistrate has power to grant
pardon even after the commitment of the proceedings to the court of sessions.
E [606-G-H; 607-A-BJ

1.5. The Chief Judicial Magistrate was authorised under Section 306
of the Code to tender pardon in course of an investigation, inquiry or trial
before the committal of the proceedings to the court of sessions. But after
commitment of the proceedings he does not have jurisdiction to grant pardon
F and in such a case ifthe said Chief Judicial Magistrate tenders pardon then
that would not be curable irregularity within the ambit of clause (g) of Section
460oftheCode. (607-E]

1.6. Section 306( 4) and Section 307 makes it clear that in a case
G exclusively triable by the Sessions Court if an accused is tendered pardon
and is taken as an approver before commitment then compliance of Sub-Section
(4) of Section 306 becomes mandatory and non-compliance of such mandatory
requirements would vitiate the proceedings but if an accused is tendered
pardon after the commitment by the Court to which the proceeding is
committed in exercise of powers under Section J07 then in such a case the
H provisions of Sub-section (4) of Section 306 are not attracted. The procedural
A. DEIVENDRAN v. STATE OFT.N. 595
requirement under Sub-section (4)(a) of Section 306 to examine the accused A
after tendering pardon cannot be held to be a condition for grant of pardon.
(608-H; 609-A-B)

2. An approver's statement has to be corroborated in material
particulars. The corroboration must be in material particulars connecting
each of the accused with offence. In other words the evidence of the approver B
implicating several accused persons in commission of the offence could not
only be corroborated generally but also qua each accused. But that does not
mean that there should be independent corroboration of every particular
circumstance from an independent source. All that is required is that there
must be some additional evidence rendering it probable that the story of the C
accomplice is true. Corroboration also could be both by direct or circumstantial
evidence. [613-B; D-E)

Raman/al Mohan/al Pandya v. State of Bombay, AIR (1960) SC 961;
Tribhuvan Nath v. State of Maharashtra, AIR (1973) SC 450; Swaran Singh
v. State ofPunjab, [1957) SCR 953; Ram Narain v. State of Rajasthan, (1973) D
3 SCC 805 and Ba/want Kaur v. Union Territory of Chandigarh, [1988) 1
sec 1, relied on.
3. A presumption under Section 114 Illustration (a) of the Evidence Act
should be drawn in a given situation is a matti;r which depends on the evidence
and the circumstances of the cases. The nature of the stolen articles, the E
nature of its identification by the owner, the place and the circumstances of
its recovery, the intervening period between the date of occurrence and the
date of recovery, the explanation of the persons concerned from whom the
recovery is made are all factors which are to be taken into consideration in
arriving at a decision. [621-E)
F
Baiju v. State of Madhya Pradesh, AIR (1978) SC 522 and Union
Territory of Goa v. Bea Ventura D'souza and Anr., (1993) Supp. 3 SCC 305,
relied on.

4.1. Even if the statement of approver is taken out of consideration; yet G
the ocular evidence of two witnesses follows recovery of arms and stolen
jewellery from house of the main accused on his statement. The aforesaid
evidence by no stretch of imagination brings the case in hand to be one of the
rarest of the rare cases where the extreme penalty of death can be awarded.
Accordingly, the conviction of the main accused under Section 302 IPC is
upheld and the sentence of death awarded by the High Court is set-aside and H
596 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A commuted to one for life imprisonment. [624-D)
Machhi Singh and Ors. v. State ofPunjab, (1983) 3 SCC 470; Bachhan
-
Singh v. State ofPunjab, (1980) 2 SCC 684; Suresh v. State of U.P., [1981) 2
SCC 569; Raja Ram Yadav and Ors. v. State ofBihar, (1996) 9 SCC 287 and
Mukund@ Kundu Mishra v. State of Madhya Pradesh, (1997) 3 Scale 769,
B relied on.
4.2. The evidence of approver being out of consideration the charge
under Section 120 IPC cannot be said to have been established beyond
reasonable doubt and accordingly the appellants are acquitted from the said
charge. The conviction of appellant "RP" and "RT" under Section 449 IPC
C cannot be sustained and they are acquitted, but main accused is found guilty
of the said charge. The accused "RP" and "RT" cannot be convicted under

-
Section 326/34 IPC because the prosecution failed to establish the charge
beyond reasonable doubt and they are accordingly acquitted from the said
charge. But the case against main accused is held to be proved beyond
D reasonable doubt and, therefore, he is convicted under Section 326 IPC and
sentenced to undergo rigorous imprisonment for three years. The sentences
against main accused are directed to run concurrently. (624-F-H)
S. Narayanaswami v. Paneer Salvam, (1973) 1SCR172; Iqbal Singh v.
State ofDelhi Administration & Ors, (1978) 2 SCR 174; State v. Bigyan Mallik
& Ors., (1975) Crl. Law Journal 1937; Saravanbhavan v. State of Madras,
E AIR (1966) SC 1278; Sevaka Perumal v. State of Tamil Nadu, (1991) 3 SCC
471; Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478; Suresh
Chandra Behari v. State of Bihar; (1995) Supp 1 SCC 80; Ravinder Singh v.
State ofHaryana, [1975) 3 SCC 742; State ofPunjab v. Raj Kumar, (1988) 1
SCC 696 and Rampa! Pithwa Rahidas v. State of Maharashtra, (1994) Supp.
F 2 sec 73, cited.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 987
of 1997.

From the Judgment and Order dated 31.10.95 of the Madras High Court
in Crl. A. No. 717 of 1995.
G
WITII
Civil Appeal No. 98of1997.
S. Muralidhar and Ms. Neeru Vaid for the Appellants.

H R. Mohan and V.G. Pragasam for the Respondent3.
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 597
The Judgment of the Court was delivered by A
PATTANAIK, J. Leave granted in both the Special Leave Petitions.

Criminal appeal arising out of Special Leave Petition (Crl.) No. 487 of
1996 is by the convict A. Devandran who has been sentenced to death by
the learned District and Sessions Judge, Madurai in. Sessions Case No. 91 of B
1994 and the said death sentence has been confirmed by the High Court of
Madras in Criminal Appeal No. 717of1995. The Criminal Appeal arising out
of Special Leave Petition (Criminal) No. 3598 of 1996 is by accused R. Pandian
and R. Thungamalai who have been convicted under Section 302 and have
been sentenced to imprisonment for life by the same learned Sessions Judge
in the same Sessions Trial and their conviction and sentence has been upheld C
by Madras High Court in the aforesaid Criminal Appeal No. 717 of 1995.
These three appellants alongwith two others stood charged of several offences
under Sections 1208, 148, 449, 302/34 and 326/34. Out of the five accused
persons accused 8ellaithai was acquitted by the learned Sessions Judge.
Accused Mohd. Rafiq was granted pardon by the Chief Judicial Magistrate D
on I 4.11.1994 while the case had already been committed to the court of
Sessions and was pending trial before the learned Sessions Judge. He was
examined as approver and is PW-I in the criminal proceedings. The three
accused appellants were also convicted under Sections 1208, 449, 326/34 !PC
and were sentenced to imprisonment for I 0 years for conviction under Section
1208, 10 years for conviction under Section 449 and 3 years for conviction E
under Section 326/34 !PC. The learned Sessions Judge directed the sentences
to run concurrently. All ofthl'.m, however, were acquitted of the charge under
Section 148 !PC. The High Court by the impugned judgment apart from
affirming the conviction and sentence under Section 302 !PC, as already
stated, affirmed the conviction and sentence under Sections 449, 326/34 !PC F
and 1208.

The Prosecution case in nutshell is that accused Devendran had given
some monetary assistance to the approver PW- I while he was ill. After the
approver was cured of his illness he was asked to work in the house of
Devendran. While he was so working the accused Nos. 2 and 3 came to the G
house of Devendran and informed him that there was lot of jewels and cash
in the house of PW-5 and they could commit robbery in the said house.
Accused Devendran, however, responded that it would not be easy affair to
commit dacoity witho~t knowing the topography of the house. At that point
of time accused no. 2 replied that his mother who was accused no. 5 has been
working in the house of PW-5 for more_ than ten years and, therefore, it would H
598 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A not be difficult to know the topography of the house from her. Accordingly
accused no. 2 went to the house of PW-5 on the direction of accused no. I
to ascertain the topography of the house. The said accused no. 2 then
intimated that the inmates of the house of PW-5 will be going out on 24.11~1992
and that would be an ideal occasion for committing robbery. He also intimated
B that the only way to enter into the house is through the Chimney. In accordance
with a conspiracy thus hatched, on 24.11.1992 accused Devendran gave some
money to other accused persons and asked them to come back after taking
tiffin. PW- I started weeping as he was forced to become a party to commit
robbery. Then under pressure from accused Devendran PW-1 accompanied
by other accused persons entered the house through the Chimney. Further
C prosecution case is that the accused persons while entering into the house
of PW-5 to commit robbery took with them a double barrel gun, a pistol, a
small knife, a torch light, gloves and some ropes. Thereafter all of them
entered into the house through the Chimney by the help of the rope which
had been tied upon. After entering the house accused Devendran made some
sound and on hearing the said sound an old lady came out of the room
D through the kitchen. Immediately Devendian twisted her neck while the accused
no. 3 tied her legs with a rope. PW- I was asked to stand as a guard. When
the lady asked PW- I to get some water PW- I went inside but before water
could be brought the lady died. The accused persons then entered into the
room where another lady was sleeping and accused Devendran strangulated
E the said lady with a piece of cloth and while accused Devendran was
strangulating her the 2nd accused was holding her legs and on account of
such strangulation the old lady also died. PW-2 a young girl who was there
inside the house then came running but the accused persons threatened her
to kill if she makes any sound. Then the accused persons wanted the keys
of the house from her and PW-2 gave a particular set of key. Through the
F help of that key the 2nd and 3rd accused persons opened up a container
where in lot of jewels and cash was there. The accused persons brought out
a box and filled the same with the cash and jewels. As they could not get
the keys of other containers they broke open through a crow-bar and it is at
that point of time the blowing of horn of a jeep was heard. PW-2 somehow
G escaped through the front door to tell her parents, who had gone out, about
what has happened in the house. Nagarajan the driver and PW-5 the father
of PW-2 rushed into the house and immediately accused Devendran fired at
him. Nagarajan sustained the Bullet injuries on his chest and fell down. All
the accused persons then took the jewels and cash a!.ld then escaped through
the staircase. By this time several other people had gathered but nobody
H could venture to catch hold of the accused persons as they were having the
A.DEIYENDRANv.STATEOFT.N. [PATTANAIK,J.] 599

guns and threatened to kill whosoever tries to catch them. The accused A
persons then went out of the place of occurrence and distributed the ornaments
recovered from the house of PW-5 and then dispersed. PW-2 then gave a
written complaint to the police which was treated as FIR and police thereupon
started investigation. Ultimately after completion of investigation charge-
sheet was submitted and the learned Magistrate on being satisfied about the B
existence of a prima facie case committed the accused for trial. The case has
been committed to the Court of Sessions on 27.1.1994 and while the matter
was pending before the learned Sessions Judge an application was filed for
grant of pardon to accused Mohd. Rafiq on 8.8.1994. The confessional
statement of the said accused was recorded under Section 164 of Code of
Criminal Procedure on 25.8.1994. The learned Sessions Judge then considered C
the application for grant of pardon and by order dated 27.10.1994 forwarded
the same to the Chief Judicial Magistrate to be dealt with in accordance with
law. The Chief Judicial Magistrate finally granted pardon to the said accused
Mohd. Rafiq on 14.11.1994 and re-submitted the records to the learned Sessions
Judge. Before the learned Sessions Judge the said accused who was granted D
pardon by the Chief Judicial Magistrate was examined as PW-I and thereafter
the other prosecution witnesses were examined and finally the learned Sessions
Judge by his judgment dated 14th July, 1995, convicted the three accused
appellants under different Sections and sentenced them differently as already
stated. Accused No. 5, however, was acquitted of the charges levelled agair.st
her on a finding that the prosecution failed to establish charges beyond E
reasonable doubt. Said conviction and sentences passed by the learned
Sessions Judge have been upheld by the High Court and thus these appeals.
It may be stated here that the prosecution examined as man as 25 witnesses
and exhibited large number of documents in support of its case and the
defence also examined three witnesses and exhibited number of documents. F
Out of the 25 prosecution witnesses examined in these cases apart from the
evidence of PW-I, the approver two other important witnesses are PW-2 the
young girl who ran out of the house immediately when the sound of the jeep
was heard and PW-5 who was injured while entering into the house after
hearing the incident from his daughter PW-2. The learned Sessions Judge as G
well as the High Court relied upon the evidence of the approver PW-1 having
held the same to be trustworthy and having come to the conclusion that the
approver's evidence gets corroboration in material particulars from the evidence
1 of the doctor and certain recoveries made from the accused persons. The two
courts also believed the evidence of PW-s 2 and 5 which establishes the
complicity of the three appellants with the commission of the crime. H
600 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Mr. Muralidhar, the learned counsel appearing for the appellants attacked
the evidence of PW-I on several grounds and submitted that the said evidence
of the approver cannot at all be relied upon by the prosecution in support
of the prosecution case. According to the learned counsel under Criminal
Procedure Code, 1973, the power to grant pardon lies only with the Sessions
Judge, once the case is committed to the Court of Sessions, as provided in
B Section 307 of the Code of Criminal Proced!.!re (hereinafter referred to as the
'Code'). Since the Sessions Judge did not exercise his power and on the other
hand forwarded the matter to be dealt with by the Chief Judicial Magistrate
and ultimately Chief Judicial Magistrate granted pardon to the accused the
said order is without jurisdiction and illegal and as such the accused Mr. Rafiq
C cannot be held to be an approver in the eye of law. The learned counsel
further contended that even assuming the order of the Chief Judicial Magistrate
granting pardon to the accused can be sustained, but yet non-compliance of
Sub-section (4)(a) of Section 306 of the Code vitiates the entire proceedings
and consequently the evidence of the approver when he was examined as
PW-I has to be excluded from consideration. According to the learned counsel
D the requirements of Sub-section (4)(a) of Section 306 is mandatory in nature
and confers a valuable right on the accused and non-compliance thereof
vitiates the entire proceeding relating to the examination of the approver as
a witness in the case. He also urged that if the approver's evidence is
examined it would appear that the same is wholly exculpatory in nature and
E therefore no reliance can be placed on the same. The further contention of
the learned counsel is that the circumstances under which the accused agreed
to become an approver indicates that it was under coercion and threat and
not voluntary and on this score the evidence of the approver PW-I cannot
be relied upon. The last argument advanced by Mr. Muralidhar, the learned
counsel relating to the reliability of the approver's evidence is, that the said
F evidence does not get corroboration from any independent materials neither
with regard to the identity of the accused persons nor with regard to the role
played by them, and as such the approver's evidence must be held to be
untrustworthy and should not be acted upon. So far as the other items of
evidence relied upon by the prosecution the learned counsel appearing. for
G the appellants urged that after the approver's evidence is excluded from
consideration, on the residuary evidence the charges against the appellants
cannot be said to have been established by the prosecution beyond all
reasonable doubts and, therefore, the appellants are entitled to be acquitted.
On the question of award of death sentence on accused Devendran the
learned counsel urged that no doubt in course of incident three persons have
H been alleged to have been killed by said Devendran but the circumstances
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 601

leading to the death of those three persons as unfolded through the A
prosecution evidence, even if believed in toto do not make out the case to
be one of the rarest of rare category justifying imposition of the extreme
penalty of death and, therefore, the order of the High Court confirming the
death sentence has to be set aside.

Mr. Mohan, the learned senior counsel appearing for the respondent/ B
State on the other hand contended that the very object of granting pardon
to one of the accused who agrees to be a witness of the prosecution to unfold
the entire incident engrafted under Sections 306 and 307 of the Code will be
frustrated if a technical view of the provisions is taken and, therefore, no
prejudice having been caused by the grant of pardon by the Chief Judicial C
Magistrate, the said order cannot be held to be beyond jurisdiction. Mr.
Mohan, the learned senior counsel further urged that a Sessions Judge has
the power to delegate his functions under the Code to a subordinate officer
by virtue of Sub-section (3) of Section IO of the Code and therefore, the
impugned direction of the Sessions Judge calling upon the Chief Judicial
Magistrate to deal with the application for grant of pardon in accordance with D
law cannot be held to be without jurisdiction. The learned counsel also urged
that on a plain reading of Section 306 of the Code it appears that the Chief
Judicial Magistrate can exercise power to grant pardon even after the committal
of the proceedings to the Court of Sessions which is apparent from the
expression 'at any stage of the trial' used in Sub-section(!) of Section 306 E
and, therefore, a combined reading of Sections 306 and 307 would indicate
that the Sessions Judge and the Chief Judicial Magistrate have concurrent
jurisdiction to grant pardon. Judged from this stand point the order of the
Chief Judicial Magistrate granting pardon to accused PW- I cannot be held
to be illegal. So far as non-compliance of Sub-section (4)(a) of Section 306 of
the Code is concerned, the learned senior counsel appearing for the State F
urged that after the case is committed to the Court of Sessions when pardon
to an accused is granted under Section 307 the provisions of Section 306, and
more particularly Sub-section (4)(a) thereof are not attracted. According to the
learned counsel the expression 'tender a pardon on the same condition' used
in Section 307 is referable to condition engrafted in Sub-section (I) of Section G
306 of the Code, namely, a Magistrate may tender pardon to a person on
condition of his making a full and true disclosure. The procedural requirements
of Sub-section (4)(a) of Section 306 cannot be held to be a condition and as
such the said provision cannot be attracted to a case where pardon is granted
under Section 307 after the case is committed to the Court of Sessions. In
support of this contention reliance was placed on the decisions of this Court H
602 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A in : S. Naravanaswami v. Paneer Selvam, [1973] I SCR 172; Iqbal Singh v.
State (Delhi Administration) Ors., [1978] 2 SCR 174 and a decision of Orissa
High Court in State v. Bigyan Mallik & Ors., (1975) Crl. Law Journal 1937.
The learned counsel further urged that even if it is held that the Chief Judicial
Magistrate had no jurisdiction to grant pardon since the case had been
B committed to the Court of Sessions yet the said order of the Magistrate is
curable under Section 460 (g) of the Code inasmuch as at the most it would
be a case of Magistrate not empowered by law to grant pardon has granted
pardon. The learned counsel also urged that no objection having been taken
to the procedure adopted by the Sessions Judge and then to the granting of
pardon by the Chief Judicial Magistrate and there have been no failure of
C justice on that score, the provisions of Section 465 of the Code get attracted
and the conviction and sentence of the accused appellants cannot be reversed.
On the question of appreciation of the evidence the learned counsel urged
that when the learned Sessions Judge and the High Court have appraised the
evidence and have accepted the same, it would not be appropriate for this
Court to enter into the arena of appreciation unless it is established that there
D has been violation of principles of natural justice or a mis-reading of a vital
part of the evidence or the Court have committed an error of law or of the
forms of legal process or procedure by which justice itself has failed. Since
none of these pre-conditions are satisfied, the learned counsel urged that this
Court should not re-appreciate the evidence and record its own conclusion.
E In support of this contention reliance was placed on the judgment of this
Court in the case of Saravanabhavan and Govindaswamy v. State of Madras,
AIR (1966) SC 1278. The learned counsel further urged that the evidence of
the approver gets corroborated from other independent sources to the material
particulars of the approver's evidence and such corroboration makes the
approver's evidence trustworthy and reliable. According to the learned counsel
F the medical evidence relating to the death of three persons and the injuries
of PW-5, the statement of the investigating officer as to what he found
immediately after the occurrence when he reached the place of occurrence, the
recovery ofMahaja exhibit P-29, the evidence of PW-2 who was in the house
at the time of occurrence and the lodging of FIR immediately after the
G occurrence as well as the recoveries made from different accused persons and
further the evidence of the ballistic expert PW-25 fully corroborate the evidence
of the approver PW- I and as such the Courts below rightly relied upon the
evidence of the said approver. The learned counsel also urged that the murder
of 3 persons and robbery committed by the accused constitute an integral
part of same transaction and therefore the possession of stolen ornaments by
H the accused would establish that the accused committed both murder and
A.DEIVENDRANv.STATEOFT.N. [PATTANAIK,J.) 603
robbery and the presumption would arise under Section 114 of the Evidence A
Act. The learned counsel also urged that even excluding the evidence of the
approver the conviction of the appellants can well be sustained on the
residuary evidence of PWs-2 and 5 and other recoveries made from the
accused persons. Lastly on the question of death sentence on appellant
Devendran the learned counsel urged that the manner in which said accused
mercile~sly killed two ladies and then shot at the man who entered inside the B
house indicate the action to be of depraved mind and in the absence of any
mitigating circumstances the case would be one coming within the category
of rarest of rare case and as such imposition of death sentence is wholly
justified. In support of this reliance has been placed on the decisions of this
Court in Sevaka Peruma/ v. State of Tamil Nadu, [1991] 3 SCC 471 and C
Shankar@Gaurishankar & Ors. v. State of Tamil Nadu, [1994] 4 SCC 478.

In view of the rival submissions, the first question that arises for
consideration is whether the approver's evidence can at all be relied upon to
bring home the charge against the accused persons? It .is no doubt true that
the very object of granting pardon to an accused is to unfold the truth in D
grave offence so that other accused. persons involved in the offence could
be brought home with the aid of the evidence of the approver. But all the same
the legislative mandate as well as the safeguards enshrined in the provisions
of the Code for the accused cannot be given a go by merely because of
gravity of the offence. With this background in mind it would be necessary E
to examine the provisions of the Code for testing the correctness of the rival
submissions. Coming now to the question as to whether the Chief Judicial
Magistrate could have at all granted pardon to the accused even after the
committal of the proceedings to the Court of Sessions, the same would
depend upon the interpretation of Sections 306 and 307 of the Code. A
combined reading of the aforesaid two provisions would indicate that under F
Section 306 power has been conferred upon the Chief Judicial Magistrate or
a Metropolitan Magistrate as well as the Magistrate of the First Class to
tender pardon to a person on condition of his making a full and true disclosure
of whole of the circumstances within his knowledge relating to the offence.
The only distinction between the two sets of Magistrates for exercise of their G
power lies at the stage when the power can be exercised. While a Magistrate
of the First Class can exercise the power while enquiring into or trying the
offrnce in question, the Chief Judicial Magistrate or a Metropolitan Magistrate
can exercise the power at any stage of investigation or enquiry into or trial
of the offence which they themselves may not be trying. But under Section
307 the power has been conferred upon the Court to which the commitment H
·-

604 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A is made to grant pardon. In other words once a proceeding is committed to
a Court of Sessions then only the said Court can exercise power to tender
pardon to an accused. Section 307 ·of the Code corresponds to Section 338
of Criminal Procedure Code, 1898, If the two provisions are examined in
juxtaposition it would be clear that while under Section 338 of the old Code
after commitment is made the Court to which the commitment was made could
B himself tender pardon to an accused or could order the committing Magistrate
or the District Magistrate to tender pardon, but under Section 307 of the Code
of 1973 the Court to whom commitment is made, no longer retains the power
to order the committing Magistrate or the District Magistrate to_ tender pardon.
In other words under Section 307 of the present Code after commitment of
C a case the only Court which can tender pardon is the Court to which the
commitment has been made. It would be appropriate at this stage to extract
Section 338 of the old Code and the corresponding provisions of Section 307
of the new Code :-

"338. Power to direct tender of pardon. - At any time after
D commitment, but before judgment is passed the Court to which the
commitment is made may, with the view of obtaining on the trial the
evidence of any person supposed to have been directly or indirectly
concerned in, or privy, to any, any such offence, tender, or order the
committing Magistrate or the District Magistrate to tender, a pardon
on the same condition to such person."
E
"307. 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 been directly or
indirectly concerned in, or privy to, any such offence, tender a pardon
F
on the same condition to such person."

Jn view of the aforesaid change in the provisions it is difl}cult for us to accept
the contention of the learned counsel appearing for the State that even
under Section 307 after commitment of a case a Chief Judicial Magistrate
G retains the power to grant pardon. It may not be out of place to notice the
recommendations of the Law Commission in its 41st Report in paragraph
2423;

"24.23. Under Section 338, the Court of Session may at any time
H after commitment of the case, but before passing judgment, either
tender pardon itself, or may "order the committing Magistrate or the
A. DEJVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 605
District Magistrate" to tender pardon. Though this power is rarely A
resorted to by a Court of Session, it will be useful to retain the
Section. But in view of the abolition of the commitment proceedings
the Court of Session need not be authorised to direct "the committing
Magistrate" or any other Magistrate to tender pardon. The section
may be revised to read as follows:-
B
"338. At any time after commitment of a case but before judgment

1 is passed, the Court of Session may, with the view to obtaining at the
trial the evidence of any person supposed to have been directly or
indirectly concerned in or privy to, any such offence, tender a pardon
on the same condition to such person."
c
The aforesaid Section has now taken the place of Section 307 in the new
Code. This indicates that in the changed circumstances the legislature thought
it necessary to delete the expression "or order the committing Magistrate or
the District Magistrate to tender a Pardon" from Section 307 of the present
Code which was there in Section 338 of the previous Code. On a plain reading D
of the provisions contained in Sections 306 and 307 of the Code and on
examining the changes that have been brought about by the legislature from
the corresponding provisions of the old Code, the conclusion is irresistible
that under the new Procedure Code of 1973 once a case is committed to the
Court of Sessions then it is only that Court to which the proceedings have
been committed can tender pardon to a person and the Chief Judicial Magistrate E
cannot be said to have concurrent jurisdiction for tendering pardon.

It would be necessary in this context to examine the contention raised
by Mr. Mohan, learned counsel appearing for the State that the Court to
whom commitment has been made could exercise power under Sub-section (3)
of Section I 0 of the Code of Criminal Procedure and, therefore, could direct F
a Chief Judicial Magistrate to deal with the question of tender of pardon
notwithstanding the deletion of the said power in Section 307 of the Code.
The aforesaid contention though prima facie looks attractive but does not
sustain a deeper scrutiny. Section IO (3) of the Code may be extracted for
better appreciation of the point in question:- G
"The Sessions Judge may also make provision for the disposal of any
urgent application, in the event of his absence or inability to act, by
an Additional or Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall be deemed to
have jurisdiction to deal with any such application." H
606 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A A plain reading of the aforesaid provision indicates that a Sessions
Judge has been empowered to make provision for disposal of any urgent
app Iication in certain contingencies by requiring an Additional or Assistant
Sessions Judge or in their absence the"Chief Judicial Magistrate to deal with
an application which otherwise would have been dealt with by the Sessions
Judge. This power can be exercised when the Sessions Judge himself is
B absent or is unable to act. Then again Chief Judicial Magistrate can be
required to act under this sub-section not merely when the Sessions Judge
himself is absent or unable to act but also when there is no Additional or
Assistant Sessions Judge. In the case in hand these is not an iota of material
to indicate that the pre-conditions for exercise of power under sub-section (3)
C of Section I 0 of the Code were satisfied or that in fact the Sessions Judge
exercised his power under sub-section (3) of Section I 0. In this view of the
matter the order of the Sessions Judge dated 27. I 0.1994 in forwarding the
application for grant of pardon to the Chief Judicial Magistrate as well as
order of the Chief Judicial Magistrate dated 14.11.1994 granting pardon to the
accused who was examined as P.W. I is not sustainable in law. It would also
D be appropriate to deal with submission of Mr. Mohan appearing for the
respondent that the expression 'trial' in Section 306(1) would mean trial of an
offence triable by the court of sessions and as such a Metropolitan Magistrate
or the Chief Judicial Magistrate may tender a pardon to a person even after
the commitment of the case to the court of sessions during the course of trial
E by the sessions judge. We are unable to accept this contention of the learned
counsel as in our view the plain and unambiguous language of Section 307
of the Code makes it explicitly clear that after the commitment of a case the
power to tender pardon lies, under the Code, with the court to which the
commitment is made and not with any other magistrate including the Chief
Judicial Magistrate. Once a commitment is made the committing magistrate no
F longer retains jurisdiction over the proceedings and that apart the
unambiguous language of Section 307 of the Code does not confer such
power on a magistrate to tender pardon after a case is committed to the court
of sessions. The expression 'trial' used in sub-section (1) of Section 306
would, therefore, convey the meaning those cases which are triable either by
G a magistrate or the chief judicial magistrate. In other words, in respect of those
cases which are triable by a magistrate, while the magistrate of First Class
inquiring into or trying the offence can tender pardon at any stage of inquiry
or trial, the Chief Judicial Magistrate can tender pardon at any stage of
investigation, or inquiring into or the trial. Further a magistrate First Class
who is in session of the case can tender pardon in course of inquiry or trial
H of the said case while the Chief Judicial Magistrate or Metropolitan Magistrate
A. DEIVENDRAN v. STATE OF T.N. (PATTANAIK, J.] 607
can tender pardon even though the trial is pending before another First Class A
Magistrate. But by no stretch of imagination it can be construed that under
Section 306(1) of the Code a Chief Judicial Magistrate or Metropolitan
Magistrate has a power to grant pardon even after the commitment of the
proceedings to the court of sessions.

At this stage we think it appropriate to notice another submission of B
Mr. Mohan appearing for the respondent that the order of the Chief Judicial
Magistrate tendering pardon can at the most be an irregularity curable under
Section 460(g) of the Code and is not null and void. Section 460, no doubt
cures the irregularity specified in the Section if it is committed by a Magistrate
not empowered by the law provided he committed irregularity erroneously in C
good faith. Clause (g) relates to tender pardon under Section 306. It would,
therefore, appear that a Magistrate who was not empowered under Section
306 to tender pardon but actually tenders pardon in good faith erroneously
then such an irregularity would be curable. Section 460 can have no reference
to an act of a Magistrate who is empowered under Section 306 but does not
possess the jurisdiction after an order of commitment is passed. The Chief D
Judicial Magistrate no doubt was authorised under Section 306 of the Code
to tender pardon in course of an investigation, inquiry or trial before the
committal of the proceedings to the court of sessions. But after commitment
of the proceedings he does not have jurisdiction to grant pardon and in such
a case if the said Chief Judicial Magistrate tenders pardon then that would E
not be a curable irregularity within the ambit of clause (g) of Section 460 of
the Code. This conclusion of ours is further strengthened from the fact that
under the 1898 Code, the corresponding provision to Section 460 (g) of the
1973 Code was Section 529(g).Jn the said provision it was specifically stated
that if any Magistrate not empowered by law to tender pardon under Section
337 or 338 the same would not vitiate the proceedings. But under Section F
460(g) of the new Code the legislatures have omitted Section 307 which is
corresponding to section 338, and therefore, such irregularity committed by
the Magistrate cannot be said to be a curable i~egularity under clause (g) of
Section 460.

The next question that arises for consideration is as to whether non-
G
examination of the approver as a witness after grant of pardon and thereby
non-compliance of sub-section 4(a) of Section 306 vitiates the entire
proceeding. In the case in hand there is no dispute that after the Chief Judicial
Magistrate granted pardon to the accused he was not examined immediately
after the grant of pardon and was only examined once by the learned Sessions H
608 SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.

A Judge in course of trial. The question that arises for consideration is : When
an accused is granted pardon after the case is committed to court of sessions
would it be necessary to comply with sub-section (4)(a) of Section 306 of the
Code. The contention of Mr. Mohan, the learned counsel appearing for the
State in this connection is that Section 307 merely mandates that pardon
should be tendered on the same condition and such condition obviously
B refers the condition indicated in sub-section (1) of Section 306, namely, on the
accused making a full and true disclosure of the whole of the circumstances
within his knowledge relating to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof. According
to the learned counsel sub-section (4) of Section 306 is not a condition for
C tendering pardon but is merely a procedure which has to be followed when
a persori is tendered pardon by a Magistrate in exercise of power under
Section 306. Since after a case committed to the court of sessions pardon is
tendered by the court to whom the commitment is made, it would not be
necessary for such court to comply with sub-section (4)(a) of Section 306. Mr.
Muralidhar, the learned counsel appearing for the appellants on the other
D hand contended, that the object and purpose engrafted in clause (a) of sub-
section (4) of Section 306 is to provide a safeguard to the accused who can
cross-examine even at the preliminary stage on knowing the evidence of the
approver against him and can impeach the said testimony when the approver
is examined in court during trial, if any contradictions or improvements are
E made by him. This right of the .accused cannot be denied to him merely
because ,pardon is tendered after the proceeding is committed to the court of
sessions.

The correctness of the rival submissions again would depend upon true
interpretation of Sections 306 and 307 of the Code. Under Section 307 when
F pardon is tendered after commitment of the proceedings by the Court to
which the commitment has been made the legislative mandate is that the
pardon would be tendered on the same condition. The expression "on the
same condition" obviously refers to the condition of tendering a pardon
en grafted in Sub-section (I) of Section 306, the said condition being the
G person concerned on making a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offence. Sub-section (4)
of Section 306 cannot be held to be a condition for tendering pardon. A
combined reading of Sub-section (4) of Section 306 and Section 307 would
make it clear that in a case exclusively triable by the Sessions Court if an
accused is tendered pardon and is taken as an approver before commitment
H then compliance of Sub-section (4) of Section 306 becomes mandatory and
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 609
non-compliance of such mandatory requirements would vitiate the proceedings A
but if an accused is tendered pardon after the commitment by the Court to
which the proceeding is committed in exercise of powers under Section 307
then in such a case the provisions of Sub-section (4) of Section 306 are not
attracted. The procedural requirement under Sub-section (4)(a) of Section 306
to examine the accused after tendering pardon cannot be held to be a condition B
of grant of pardon. The case of Suresh Chandra Bahri etc. v. State of Bihar,
(1995) supp. 1 Supreme Court Cases 80, on which the learned counsel for the
appellants strongly relied upon deals with a case where pardon had been
tendered to an accused before the commitment proceedings and the question
was whether non-compliance of Sub-section (4)(a) of Section 306 would
vitiate the trial. The Court held that the provision contained in Clause (a) of C
Sub-section (4) of Section 306 is of mandatory nature and, therefore, non-
compliance of the same would render an order of commitment illegal. It is no

- doubt true, as contended by Mr. Muralidhar the learned counsel appearing
forthe appellants, that the procedure indicated in Sub-section (4)(a) of Section
306 is intended to provide a safeguard to an accused inasmuch as the
approver has to make a statement disclosing his evidence at the preliminary D
stage before the committal order is made and thereby the accused becomes
aware of the evidence against him and further such evidence of an approver
can be ultimately shown as untrustworthy during the trial when the said
approver makes any contradictions or improvements to his earlier version. But
still when the legislature in Section 307 have made specific reference to only E
on "such conditions" and not to the other procedures in Section 306 it would
not be a rule of interpretation to hold that even Sub-section (4)(a) of Section
306 would also be applicable in such a case. ·

The decision of this Court in the case of Iqbal Singh v. State (Delhi
Administration) & Ors., [1978] 2 SCR 174, supports our conclusion, as F
aforesaid, to a great extent. In the said case under the Criminal Procedure
Code, 1898 the question for consideration was that when pardon had been
tendered to a person at the stage of investigation under section 337(1) of the
Code then a Special Judge who had the power to take cognizance of offence
under Section 8(1) of the Criminal Law Amendment Act 1952 would have no G
jurisdiction to take cognizance and, therefore, charge sheet has to be filed
before a Magistrate. This contention had been advanced because of Sub-
section (2)(8) of Section 337 of the Code of Criminal Procedure 1898. A
contention has been advanced in the said case that if a Magistrate takes
cognizance of the offence the approver will have to be examined as a witness
twice, namely, once in the court of the Magistrate and again in the Court of H
610 SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.

A Special Judge to whom the Magistrate sends the case for trial but on the other
hand if charge sheet is filed in the court of Special Judge itself then the
approver is examined only once and this is discriminatory. This Court repelled
the said contention advanced on behalf of the accused and held :

"It is clear from the scheme of Section 337 that what is required is that
B a person who accepts a tender of pardon must be examined as a
witness at the different stages of the proceeding. Where, however, a
Special Judge takes congnizance of the case, the occasion for
examining, the app~over as a witness arises only once. It is true that
in such a case there would be no previous evidence of the approver
against which his evidence at the trial could be tested, which would
c have been available to the accused had the proceeding been initiated
in the court of a Magistrate who under sub-section (28) of section 337
of the Code is required to send the case for trial to the special Judge

D
after examining the approver. But we do not find anything in sub-
section (28) of Section 337 to suggest that it affects in any way the
jurisdiction of the Special Judge to take congnizance of an offence
-
without the accused being committed to him for trial. Sub-section
(28) was inserted in section 337 in 1955 by Amendment Act 26 of
1955. lfby enacting sub-section (28) in 1955 the legislature sought to
curb the power given to the Special Judge by section 8( 1) of the
Criminal Law Amendment Act, 1952, there is no reason why the
E legislature should not have expressed its intention clearly. Also, the
fact that the approver's evidence cannot be tested against any previous
statement does not seem to us to make any material difference to the
detriment of the accused transgressing Article 14 of the Constitution.
The special Judge in any case will have to apply the well established
F tests for the appreciation of the accomplice's evideP~e."

In this view of the matter in the case in hand, admittedly pardon having been
tendered after the case was committed to the Court of Session question of
compliance of Sub-section (4)(a) of Section 306 does not arise and on that
score no invalidity is attached to the statement of the approver.
G
A contention had been raised by Mr. Muralidhar, learned counsel for
the appellants to the effect that the statement of the approver being exculpatory
in nature and his entire statement having revealed that he was merely a
bystander and was ·compelled to do something at the behest of accused
Devendran, the said evidence of the approver should be rejected. In support
H of such contention reliance has been placed on the decisions of this Court
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.) 611

in the case of Ravinder Singh v. State of Haryana, (1975] 3 SCC 742; State A
of Punjab v. Raj Kumar, (1988] I SCC 696 and Rampa/ Pithwa Rahidas v.
State of Maharashtra, [1994] Supp. 2 SCC 73.

In Ravindran' s case this Court has observed that :

"An approver is a most unworthy friend, if at all, and he having B
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. Secondly, once that hurdle
is crossed, the story given by the approver so far as the accused on
trial is concerned, must implicate him in such a manner as to give rise C
to a conclusion of guilt beyond reasonable doubt."

In Raj Kumar's case this Court held :

"His evidence has been read by the counsel for the parties before
us and his evidence clearly indicates that he attempted to suggest D
that he did nothing. Neither he stated that he participated in looting
nor in injuri,ng or attacking the deceased. Reading to this evidence
.r• '"-f
clearly indicates that he has claimed to be a spectator at every
movem,nt but has not participated at any stage. Apart from it the
initial story appears also to be unnatural as according to him, he did E
not know any one of these accused persons but a month before the
in~ident they took him into confidence and told him to join them.
After reading the evidence of the witness as whole apparently the
impression created is that the version does not appear to be a natural
version. In this view of the matter, in our opinion, the testimony is not
such which inspires confidence." F
In Ram pal Pithwa 's case this Court observed :-

"From all the attendant circumstances, we are satisfied that the
approver Ramcharan is not a reliable witness; his arrest was
intrinsically unnatural and his self-confessed participation in the crime G
without taking any active part in it is unacceptable. The approver has
claimed to be a spectator of every fact and of every moment but
asserted that he did not participate in the assault at any stage and
remained at a distance taking care of the clothes of some of the co-
accused. His statement is almost of an exculpatory nature. His statement
as a whole does not inspire confidence. His story is not worth of H
612 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R. ..
A credence. We find ourselves unable to place any reliance on his
untrustworthy and unreliable evidence."

All these aforesaid three cases deal with the question as to what extent a
Court can rely upon the evidence of an approver. Whether the evidence of
an approver can be relied upon ~y a Court would depend upon the facts and
B circumstances of the case. As has been indicated by this Court in the case
of Suresh Chandra (supra) that when heinous crime is committed in a manner
leaving no clue or any trace is available for its detection, pardon is granted
to one of the accused persons for apprehending other offenders and for
production of the evidence which otherwise is unobtainable. This Court held:-
c "The dominant object being that the offenders of the heinous and grave
offences do not go l!npunished, the Legislature in its wisdom considered it

-
necessary to introduce Section 306 and confine its operation to cases
mentioned in it. The object of Section 306 therefore is to allow pardon in cases
where heinous offence is alleged to have been committed by several persons
D so that with the aid of the evidence of the person granted pardon the offence
may be brought home to the rest. The basis of the tender of pardon is not
the extent of the culpability of the person to whom pardon is granted, but the
principle is to prevent the escape of the offenders from punishment in heinous
offences for lack of evidence. There can therefore be no objection against
E tender of pardon to an accomplice simply because in his confession, he does
not implicate himself to the same extent as the other accused because all that
Section 306 requires is that pardon may be tendered to any person believed
to be involved directly or indirectly in or privy to an offence."

Bearing in mind the aforesaid principle and on going through the
F evidence of the approver we are not in a position to hold that the said
evidence is entirely of exculpatory nature. The approver's evidence indicates
that he did participate in the crime though under persuasion and threat of
other persons but in the matter of killing three persons only accused Devendran
played the major role. Yet the statement of the approver cannot be heid to
G be of a purely of exculpatory nature and on that score the evidence cannot
be excluded from consideration, particularly when he indicated in his evidence
that he brought a bicycle from a cycle shop, took accused no. 2 on the cycle
and then took accused no. 3 on the cycle to the place of occurrence, climbed
up and reached the chimney of the house; tied the rope to the bricks of the
chimney through which he alongwith others got down, took the first victim,
H a woman, to the next room, went away through the first floor of the house
A. DEIVENDRAN v. STATE OF T.N. (PATTANAIK, J.] 613
carrying jewels. which they had coilected and received two golden bangles. A
These acts on the part of, the approver indicate that he participated in the
commission of the offence though not to the same extent as accused Devendran
and as such, the statement cannot be said to be of exculpatory nature. Mr.
Muralidhar, learned counsel appearing for the appellants further contended
that the approver's evidence at any rate has not been corroborated in the B
material particulars from any independent source connecting each of the
accused persons, and therefore, the said evidence cannot be relied upon.
There cannot be any dispute with the proposition that ordinarily an approver's
statement has to be corroborated in material particulars. Certain clinching
features of involvement disclosed directly to an accused by an approver must
be tested qua each accused from independent credible evidence and on being C
satisfied the evidence of an approver can be accepted. What is the extent of
corroboration that is required before the acceptance of the evidence of the
approver would depend upon the facts and circumstances of the case. The
corroboration required, however, must be in material particular conn~cting
each of the accused with the offence. In other words the evidence of the
approver implicating several accused persons in commission of the offence D
could not only be corroborated generally but also qua each accused. But that
does not mean that there should be independent corroboration of every
particular circumstance from an independent source. All that is required is
that there must be some additional evidence rendering it probable that the
story of the accompliance is true. Corroboration also could be both by direct E
or circumstantial evidence. (see Raman/al Mohan/al Pandya v. The State of
Bombay, AIR (1960) SC 961; Tribhuvan Nath v. The State of Maharashtra,
AIR (1973) SC 450; Swaran Singh v. The State of Punjab, [1957] SCR 953;
Ram Narain v. State of Rajasthan, [1973] 3 SCC 805 and Ba/want Kaur v.
Union Territory of Chandigarh, [1988] 1 SCC I. But we need not examine this
question in greater detail to find out whether the evidence of the approver F
gets corroboration from any other evidence since in view of our interpretation
of the provisions of Sections 306 and 307 of the Code and in view of our
conclusion that after commitment of the proceedings the Session Judge had
no power to remit the matter for grant of pardon to the Chief Judicial Magistrate
and the order of the Chief Judicial Magistrate tendering pardon is without G
jurisdiction not curable under Section 460(g) of the Code, the evidence of the
approver cannot be relied upon by the prosecution in the present case. ·

We may notice also the arguments advanced by Mr. Mohan, learned
counsel appearing for the State, that the conviction and sentence against the
appellants should not be interferred with in view of the provisions of Section H
614 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A 465 of the Code, inasmuch as there has been no failure of justice. We are
unable to accept this contention. Section 465 of the Code is the residuary
section intended to cure any error, omission or irregularity committed by a
Court of competent jurisdiction in course of trial through accident or
inadvertence, or even an illegality consisting in the infraction of any provisions
B of law. The sole object of the Section is to secure justice by preventing the
invalidation of a tri~I already held, on the ground of technical breaches of any
provisions in the Code causing no prejudice to the accused. But by no stretch
of imagination the aforesaid provisions can be attracted to a situation where
a Court having no jurisdiction under the Code does something or passes an ·
order in contravention of the mandatory provisions of the Code. In view of
c our interpretation already made, that after a criminal proceeding is committed
to a Court of Sessions it is only the Court of Sessions which has the
jurisdiction to tender pardon to an accused and the Chief Judicial Magistrate
does not possess any such jurisdiction, it would be impossible to hold that
such tender of pardon by the Chief Judicial Magistrate can be accepted and
D the evidence of the approver thereafter can be considered by attracting the
provisions of Section 465 of the Code. The aforesaid provision cannot be
applied to a patent defect of jurisdiction. Then again it is not a case of
reversing the sentence or order passed by a Court of competent jurisdiction
but is a case where only a particular item of evidence has been taken out of
E consideration as that evidence of the so-called approver has been held by us
to be not a legal evidence since pardon had been tendered by a Court of
incompetent jurisdiction. In our opinion, to such a situation the provisions
of Section 465 cannot be attracted at all. It is true, that procedures are
intended to subserve the ends of justice and undue emphasis on mere
technicalities which are not vital or important may frustrate the ends of
F justice. The Courts, therefore, are required to consider the gravity of irregularity
and whether the same has caused a failure of justice. To tender pardon by
a Chief Judicial Magistrate cannot be held to be a mere case of irregularity
nor can it be said that there has been no failure of justice. It is a case of total
lack of jurisdiction, and consequently the follow up action on account of such
G an order of a Magistrate without jurisdiction cannot be taken into consideration
at all. In this view of the matter the contention of Mr. Mohan, learned counsel
appearing for the State in this regard has to be rejected.

The next question which requires consideration, therefore, is excluding
the evidence of the approver from consideration whether the prosecution
H case can be held to be proved beyond reasonable doubt?.
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 615
The other evidence pressed into service by the prosecution is the A
evidence of PW-2, PW-3, PW-4 and PW-5 and the recovery of stolen articles
belonging to PW-4 from different accused persons and identification of those
articles by PW-4. That apart certain incriminating materials recovered on the
basis of information given by the accused while in custody have been pressed
into service by the prosecuti;m for establishing the charge beyond reasonable B
doubt. PW-2 is the girl whose marriage ceremony was to be performed and
it is for her marriage parents had gone to Madurai for purchase of marriage
articles. According to her evidence she was sleeping in the Puja room whereas
the two deceased grand-mothers were sleeping in the hall. It was about 2.30
a.m. on 24.11.1992 she heard some sound and so she went to her senior
grand-mother but the grand-mother asked her not to worry as junior grand- C
mother went to observe and advised her to sleep. Sometime thereafter she
heard some galloping sound and so she woke up. She then found that 4
outsiders are there and two of them were strangulating the senior grand-
mother. She further found that two others gagged the junior grand-mother and
then they thiemened PW-2 that if she raises any alarm she will be shot.
According to her all the accused persons were wearing masks and one of D
them was holding rifle MO- I. The second accused was holding a pistol and
the third one holding a rod while the fourth one was holding a bag. It is her
further evidence that when they demanded the key she replied that she does
not possess the same and the grand-mother might be having it. The accused
persons then removed the key from the bag of the grand-mother and then E
opened the bureau and removed cash and jewels from the blue colour box.
She also stated that she herself gave out the chain, locket, the pair of gold
rings to the accused persons. At that point of time she heard the noise of
the jeep and so she ran away towards the front gate. Seeing her father she
told that dacoits are inside and warned her father not to go in but the driver
Nagarajan and her father PW-5 went inside the house and they were followed F
by her brother and Mohan. While she stayed outside she heard the sound
of firing of rifle and she saw her father coming out bleeding. Thereafter her
elder brother and neighbour Mohan came and informed that two grand-
mothers as well as driver Nagarajan have died. This evidence of PW-2
establishes the fact of dacoity having been committed in the house and the G
fact of murd,er of her two grand-mothers by way of strangulation by four
accused persons though the witness is unable to identify as to which of the
accused person strangulated the elder grand-mother and which of the accused
person strangulated the younger grand-mother. She has been cross-examined
at great length by the accused persons but we do not find anything that has
been brought about in cross examination to impeach the veracity of her H
616 SUPREME COURT REPORTS (1997) SUPP. 4 S.C.R.

A statement. She being an inmate of the house and being present at the time
of the commission of the offence had the full opportunity to notice the
manner in which the incident occurred and vivid account of the same has
been given by her. Since the accused persons were not known to her she has
not been able to identify which of the accused person strangulated the senior
B grand-mother and which of the accused person strangulated the junior grand-
mother. PW-3 had gone with his father to Madurai for making some marriage
purchases. According to him they reached the village at about 2.00 a.m. and
hardly they had gone inside after getting down from the jeep his sister PW-
2 ran out of the house and intimated them not to go inside as thieves are
there. But notwithstanding such warning the driver Nagarajan followed by his
C father went inside the house and he followed them. It was at that time he
heard the blasting sound of the revolver and Nagarajan came and fell down
in the hall. His father PW-5 also sustained an injury and he came out by
holding his chest. He then found both his grand-mothers lying dead and
further found driver Nagarajan lying dead in the main hall. He also found
Almirahs to be kept open. So he came out and told PW-2 about the entire
D incident. His evidence establishes the commission of offence of robbery in
the house and three people found dead in the house one of whom on account
of gun shot but neither he had seen the actual assault given by anyone of
the accused persons on any of the deceased nor had seen the very presence
of the accused persons in the house. But all the same, his evidence
E corroborates the evidence of PW-2 that two grand-mothers were found dead
inside the house and it further establishes that the driver Nagarajan who
entered into the house after getting down from the jeep was shot at. by the
accused persons and ultimately he died on account of such gun shot injury.
PW-4 is the mother of PW-2 who had gone to Madurai for the marriage
shopping. She corroborates the evidence of PW-3 to the effect that her
F daughter PW-2 came running from the house as soon as the jeep reached the
house and' warned them from entering into the house as thieves are there
inside. While she was standing outside with her daughter PW-2, the driver
Nagarajan and her husband PW-5 as well as the son PW-3 en~ered inside the
house and at that point of time sound of gun blast was heard from inside the
G house. It is her further evidence that she found her husband coming out of
the house holding his chest and she was told that the thieves have shot at
him. While she was holding her husband who had been injured and was
preparing to take her husband to the hospital she was informed about the
death of the two ladies as well as the death of the driver Nagarajan. She was
also able to identify the ornaments which were recovered from the possession
H of the accused persons. Her evidence, therefore, establishes the fact of
A.DE!VENDRANv.STATEOFT.N. [PATTANAIK,J.] 617

commission of offence in the house but she had not seen the assailants who A
are responsible for the death of two old ladies as well as the death of driver
Nagarajan.

PW-5 is the owner of the house who had gone to Madurai for marriage
shopping. He states in his evidence that when they were getting down from
the jeep at about 2.00 a.m. his daughter Priya came running from inside the B
house and stated "Daddy thieves are committing theft in the house. They
have snatched the jewels from me by tying my hands forcibly." He then
attempted to go inside the house to find out what has happened but his driver
Nagarajan ran ahead and his wife and daughter prevented him from going
inside. He, however, could not resist and rushed inside the house following C
Nagarajan and then switched on the light on the southern side. Hardly he
attempted to proceed to the room where his mother was sleeping gun shot
sound was heard and then Nagarajan's shout that he had been shot. While
he was proceeding towards Nagarajan he also received gun shot injury. Then
he came back to the jeep where he found his wife and son and then he was
carried to the Government hospital at Cum bum. There at Cum bum hospital he D
was advised to go to Madurai and so he was taken to Madurai and was
admitted in the Meenakshi Mission Hospital. Doctors at Meenakshi Mission
Hospital had told him that bullets are there inside in a dangerous area near
the heart and it cannot be operated upon there at Madurai. So he was then
taken to G. Kuppusamy Hospital at Coimbatore and there bullets were removed E
by operating upon him. While he was in Meenakshi Mission Hospital at
Madurai he had been examined by the Police and he had narrated the
occurrence to the Police. His evidence, therefore, establishes the fact that on
that fateful night while he was trying to get into the house to find out what
all has been stolen and what incident had happened right in his front his
driver Nagarajan received the gun shot injury and then he also received the F
bullet injury which could be removed only in the Hospital at Coimbatore. In
addition to the aforesaid evidence of the four inmates of the house with
regard to the occurrence in question, the evidence of the Investigating Officer
PW-25 who at the relevant time was the Inspector of Police Chinnamannur
Circle clearly indicates that on reaching the place of occurrence he found the G
dead bodies of two ladies as well as the dead body of the deceased Nagarajan
and he prepared the Inquest Report in respect of the three dead bodies. He
also made some seizure from the place of occurrence and then examined the
witnesses and recorded their statements under Section 161 Cr.P.C. The post
mortem examination conducted by Dr. N. Manimohan PW-10 on the body of
Saraswati Ammal clearly indicated that she died due to strangulation and H
618 SUPREME COURT REPORTS (1997) SUPP. 4 S.C.R.

A gagging. Similarly the evidence of Dr. R. Anandan PW-11 who had conducted
the post mortem examination on the dead body of Deivammal the other lady
establishes the fact that she died due to strangulation of the neck and
smothering. This evidence fully corroborates the evidence of PW-2 the young
girl that two of her grand-mothers were strangulated by the accused persons.
B The evidence of PW-9 the_ Assistant Medical Officer, Government Hospital,
Cumbum who had conducted the post mortem examination on the dead body
of Nagarajan clearly indicates that said Nagarajan died on account of injuries
sustained by the shooting of revolver which fact corroborates the evidence
of PW-5 to the fact that while Nagarajan was proceeding inside the house he
received the bullet injury but of course, he has not been able to see the
C assailants. From the aforesaid prosecution evidence it is clearly established
that on the relevant date of occurrence at mid-night four persons entered into
the house of PW-5, one of them strangulated two ladies while other persons
were holding or gagging those ladies and then received the key by show of
force and opening the Almirah, took away the valuables and also snatched
ornaments from the person of PW-2 and finally when the owner of the house
D PW-5 arrived from Madurai and his driver Nagarajan rushed into the house
he was shot dead and PW-5 who was closely following also received bullet
injuries which could be removed· only by operating at the Hospital at
Coimbatore.

E Let us now examine the recoveries of the ornaments and other
incriminating materials from different accused persons which have been
identified by the inmates of the house to belong to them.

The pistol M0-2 was lying in fiont of the house of PW-20 and was
seized under Mazahar Exhibit P-30 the trigger of the pistol had been welded
F with brass powder. PW-7 in his evidence. stated that he knew accused
Devendran. It is he who had brought one pistol and requested him to weld
the trigger and said PW-7 had done the welding and thereafter Devendran
had taken away the pistol giving him Rs. 15. He also identified the portion
of M02 stating that it is this welding he had done on the pistol. In his cross-
G examination he categorically stated that he had been able to identify the pistol
by seeing welded part of the trigger of the pistol. During search of the house
of accused Devendran on 26.11.1992 pellets M0-75 series, Ball bureaus (Paulrus
pellets), empty cartridges M0-78, paper corks of bullet cartridges M0-93,
empty cartridges M0-79 which could be used in 12 bore gun were all seized
under Exhibit P-31. The prosecution has further been able to establish that
H the pellet which was removed from the body of PW-5 are-sinlilar in size as
A.DEIVENDRANv.STATEOFT.N. [PATTANAIK,J.] 619
pellets MO-72 series recovered from the house of accused Devendran. It was A
further established that MO-78 seized from the house of accused Devendran
as well as empty cartridges seized under Mazahar 28 are similar in nature. The
Ballistic expert PW-24 in his evidence stated that while conducting test on
the pistol with dummy rounds he observed the similarity of the markings of
the earlier firing and he ultimately came to the conclusion that MO-79 empty B
cartridges must have been fired by using the pistol M0-2. The report of the
Ballistic expert is Exhibit P-24. M0-2 was seized under Mazahar Exhibit P-37.
on the basis of the statement made by accused Devendran while in custody.
The aforesaid evidence unequivocally indicates that the pistol which was
used for shooting driver Nagarajllll and injured PW-5 was the pistol belonging
to the accused Devendran and the empty cartridges recovered from the house C
of Devendran also corroborates to the aforesaid conclusion. The jewellery
belonging to the informant were recovered on the basis of the statement of
accused Devendran are MOs-16 to 23, MOs-24 to 28 and MOs-30 to 59. PW-
4 not only identified those jewellery but also stated that these ornaments had
been taken away by the culprits from her house. Similarly jewels MOs-13, 14
and 15 were seized from accused no. 3 which the culprits had snatched from D
PW-2 and M0-29 was seized from accused no. 2 under Mazahar Exhibit P-35
and PW-4 identified the same to belong to the family and had been stolen ·
in the course of dacoity. The question for consideration would be whether
the recoveries of the jewelleries belonging to PW-5 from different accused
persons at their instance while in custody and the recovery of some of the E
weapons of assault from the house of different accused persons would be
sufficient to arrive at a conclusion that it is these accused persons who are
the perpetrators of the murders which took place in the house of PW-5 on
the fateful night and it is these accused persons who committed murder as
well as dacoity in the house and left the place with the booty. This conclusion
can be arrived at only by taking recourse to the provisions of Section 114 of F
the Evidence Act under which the Court is entitled to presume existence of
certain facts. Under Illustration (a) to Section 114 the Court may presume that
a man who is in possession of stolen goods after the theft, is either the thief
or has received the goods knowing them to be stolen, unless he can account
for his possession. From the prosecution evidence, as already discussed it G
must be held that the prosecution has been able to prove beyond reasonable
doubt that the commission of murders and the robbery formed part of one
transaction which has been fully unfolded through the evidence of PW-2 and
in such situation the recoveries of the stolen properties from the house of
some of the accused persons and at their instance and no explanation from
those accused persons, on being questioned under Section 313 er. P.C. H
620 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A reasonably points to the guilt of those accused persons establishing the fact
that it is they who committed the murders in the house and then committed
the robbery and left the scene of occurrence. Whether a presumption under
Section 114 Illustration (a) of the Evidence Act should be drawn in a given
situation is a matter which depends on the evidence and the circumstances
B of the cases. The nature of the stolen articles, the nature of its identification
by the owner, the place and the circumstances of its recovery, the intervening
period between the date of occurrence and the date of recovery, the explanation
of the persons concerned from whom the recovery is made are all factors
which are to be taken into consideration in arriving at a decision. In the case
of Baiju v. State of Madhya Pradesh, AIR (1978) Supreme Court 522, this
C Court had held that the prosecution having succeeded in proving beyond any
doubt that the commission of the murders and robbery formed part of one
transaction and the recent and unexplained possession of the stolen property
by the appellant justified the presumption that it was he and no one else, who
had committed the murders and the robbery. In the said case the offence had
been committed on the night of January 20 and 21, 1975 and the stolen
D property was recovered from the house of the appellant on January 28, 1975.

In the case of Shivappa and Others v. The State of Mysore, AIR ( 1971)
SC 196 the same question was considered by this Court. This Court had said
"If there is other evidence to connect an accused with the crime itself,
E however small, the finding of the stolen property with him is a piece of
evidence which connects him further with the crime. There is then no question
of presumption. The evidence strengthens the other evidence already against
him. It is qnly when the accused cannot be connected with the crime except
by reason of possession of the fruits of crime that the presumption may be
drawn. In what circumstances the one presumption or the other may be
F drawn, it is not necessary to state categorically in this case. It all depends
upon the circumstances under which the discovery of the fruits of crime are
made with a particular accused. It has been stated on more than one occasion
that if the gap of time is too large, the presumption that the accused was
concerned with the crime itself gets weakened. The presumption is stronger
G when the discovery of the fruits of crime is made immediately after the crime
is committed. The reason is obvious. Disposal of the fruits of crime requires
the finding of a person ready to receive them and the shortness of time, the
nature of the property which is disposed of, that is to say, its quantity and
its character determine whether the person who had the goods in his
possession received them from another or was himself the thief or the dacoit.
H In some cases there may be other elements which may point to the way as
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 621

to how the presumption may be drawn. They differ from case to case." In the A
aforesaid case the recoveries had been made within 5 days of the date of
occurrence and therefore, the Court ultimately came to the conclusion that the
High Court was right in drawing the presumption that the person concerned
are dacoit themselves.

In Guiab Chand v. State of Madhya Pradesh, [1995] 3 SCC 574, this B
Court considered at length the law relating to Section 114, Illustration (a) of
the Evidence Act and the circumstances under which the presumption can be
drawn. It was held by this Court that no hard and fast rule can be laid down
as to what inference should be drawn from certain circumstances. It was
further held that if the ornaments in possession of the deceased are found C
; i·n possession of the person soon after the murder, a presumption of guilt may
be permitted. But if several months had expired in the interval, the presumption
cannot be permitted to be drawn having regard to the circumstances of the
case. The Court approved the earlier decision of this Court in Earabhadrappa
v. State of Karnataka, (1983] 2 SCC 330 wherein it was held that the nature
of presumption and illustration (a) under Section 114 of the Evidence Act D
must depend upon the nature of the evidence adduced. No fixed time-limit can
be laid down to determine whether possession is recent or otherwise and
each case must be judged on its own facts. The question as to what amounts
to recent possession sufficient to justify the presumption of guilt varies
according to the stolen article is or is not, calculated to pass readily from E
hand to hand. If the stolen articles were such as were not likely to pass readily
from hand to hand, the period crf one year that elapsed cannot be said to be
too long particularly when the appellant had been absconding during that
period.

In the case of Gautam Maroit Uma/e v. State of Maharashtra, [1994] F
Supp. 3 SCC 326, on the other hand this Court held mere recovery of ornaments
belonging to the deceased at the instance of the accused did not connect him
with the murder and at the most he can be convicted for possession of stolen
property under Section 4 I I !PC. To the same effect is the judgment of this
Court in Union Territory of Goa v. Bea Ventura D'Souza and Another, (1993] G
Supp. 3 SCC 305. Bearing in mind the principles laid down in the aforesaid
cases and on examining the facts and circumstances of the present cases
which have been established by the prosecution beyond reasonable doubt
there cannot be any hesitation in coming to the conclusion that the prosecution
case as against Devendran under Section 302 has been proved beyond
reasonable doubt. The evidence of PW-7 indicating that Devendran had H
622 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A brought the pistol M0-2 to get trigger welded and getting the same welded
by PW-7 Devendran had taken away the pistol, the identification of the pistol
M0-2 by said PW-7, the recovery of pellets MO-75 series from the house of
accused Devendran two days after the fateful incident i.e. on 26.11.1992, the
seizure of empty cartridges and ball beareaus (Paulrus pellets), the recovery
of similar pellets from the body of PW-5 as were recovered from the house
B of accused Devendran, the evidence of Ballistic expert PW-24 that the pistol
M0-2 must have been fired which is apparent from the examination of empty
cartridges, the jewelleries MOs-16 to 23, MOs-24 to 28 and MOs-30 to 59
belonging to the informant were recovered on the basis of the statement of
accused Devendran and those jewelleries were identified by PW-4 to the
C effect that those ornaments had been taken away by the culprits from her
house are sufficient to raise the presumption under Section 114 of Illustration
(a) of the Evidence Act and the conclusion becomes irresistible that it is
accused Devendran who committed the murders in the house of PW-5 on
24.11.1992 and thereafter left the place with the booties and as such the
prosecution case against accused Devendran under Section 302 !PC must be
D held to be proved beyond reasonable doubt. But so far as the two other
accused persons are concerned the only items of evidence is the recovery of
some of the jewelleries after more than two months of the occurrence. On
such recoveries alone after two months of the occurrence it will not be safe
to draw a presumption for holding that they are also parties of the offence
E of murder committed in the house of PW-5. It is no doubt true that PW-2 in
her evidence had indicated that there were four persons who committed the
offence in their house but said PW-2 has not been able to identify the
culprits. It will therefore, be wholly unsafe to convict the two other accused
persons in the charge of murder by taking recourse to presume under Section
114 of the Evidence Act for the mere recovery of some of the ornaments
F belonging to the informant after two months of the occurrence. In that view
of the matter the conviction of two other accused persons for the charge of
murder cannot be sustained and is accordingly set aside, but instead they are
convicted under Section 411 !PC and are sentenced to rigorous imprisonment
of three years each.
G Coming now to the question of the sentence for conviction of accused
Devendran under Section 302, as has been stated earlier, he has been
sentenced to death by the learned Sessions Judge and the said sentence has
been affirmed by the High Court. From the prosecution evidence it is apparent
that there was no premeditated plan to kill any person and the main objective
H was to commit robbery. In course of the incident as stated by PW-2 when the
A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.] 623
two old ladies got up and rush~d towards culprits one of them strangulated A
them one after the other. The post mortem report also indicated that the death
of the two ladies are on account of strangulation. The learned Sessions Judge
awarded death sentence to accused Devendran on the ground that as soon
as the driver Nagarajan entered into the house said Devendran shot the gun
which hit Nagarajan and he died. This itself cannot be held to be sufficient B
to hold that it is an act of an depraved mind. The number of persons died
in the incident is not the determinative factor for deciding whether the extreme
penalty of death could be awarded or not. On the evidence of PW-2 as well
as the evidence of PW-5 it is difficult to hold that the death of the persons
were either diabolical, ghastly or gruesome.
c
In Machhi Singh and Others v. State of Punjab, [I983] 3 SCC 470, the
three judge bench of this Court considered the Constitution Bench decision
in Bachan Singh v. State of Punjab, [1980] 2 SCC 684 and came to hold that
where there is no proof of ex_treme culpability, the extreme penalty need not
be given. This Court also further observed that the extreme penalty of death D
may be given only in the rarest ofrare cases where aggravating circumstances
are such that the extreme penalty meets the ends of justice. In Suresh v. State
ofU.P., [1981] 2 SCC 569, the conviction was based upon the evidence ofa
child witness and Chandrachud, CJ speaking for the Court held that it will
not be safe to impose extreme penalty of death in a conviction based on the E
deposition of a child. It was further observed that the extreme sentence
cannot seek its main support from the evidence of a child witness and it is
not safe enough to act upon such deposition, even if true, for putting out
a life. In Raja Ram Yadav and others v. State of Bihar, [1996] 9 SCC 287, this
Court came to hold that a gruesome and cruel incident did take place and yet
did not think it appropriate to affirm a sentence of death and commuted to F
life imprisonment. It would be appropriate to quote the observation of the
court from the aforesaid case-

"We feel that both the murders had been committed in a premeditated
and calculated manner with extreme cruelty and brutality, for which
normally sentence of death is wholly justified but in the special facts G
will
of the case, it not be proper to award extreme sentence of death.''

In one of the most recent cases in the case of Mukund @ Kundu
Mishra v. State of Madhya Pradesh, (1997) 3 Scale 769, this Court while
upholding the conviction of the appellant for causing the murder of two H
624 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A persons set aside the sentence of death on the ground that it was not one
of the rarest of the rare cases. Bearing in mind the ratio of the aforesaid cases
it may be seen that since the evidence of an approver has been taken out of
consideration the conviction of appellant Devendran under Section 302 has
been upheld on the basis of the evidence of PW-2, PW-5 and the recovery
B of the pistol which was used for the commission of murder from the house
of said Devendran as well as the recoveries of ornaments and other jewelleries
belonging to· the informant recovered from the house of Devendran on the
basis of his statement, while in custody and those jewelleries being identified
by PW-4. The aforesaid evidence by no stretch of imagination brings the case
in hand to be one of the rarest of rare cases where the extreme penalty of
C death can be awarded. Accordingly, though we uphold the conviction of
accused Devendran under Section 302 IPC but we set aside the sentence of
death awarded by the learned Sessions Judge and affirmed by the High Court
and instead' commute the same by imprisonment for life. So far as the conviction •
of the appellants under Section l 20B IPC is concerned, in view of our
D conclusion arrived at and the evidence of the approver being out of
consideration the said charge cannot be said to have been established beyond
reasonable doubt and accordingly all the appellants are acquitted from the
said charge.

E S~ far as the conviction under Section 449 !PC is concerned, for the
same reasonings the conviction of appellant R. Pandian and R. Thungamalai
cannot be sustained and they are acquitted of the said charge. But accused
Devendran must be found guilty of the said charge and accordingly his
conviction and sentence thereunder would remain unaltered.

F
So far as the conviction under Section 326/34 !PC is concerned, on the
conclusion arrived at by us accused R. Pandian and R. Thungamalai cannot
be convicted thereunder and it must be held that the prosecution failed to
establish the charge beyond reasonable doubt and they are accordingly
acquitted from the said charge. But the case against accused Devendran must
G be held to be proved beyond reasonable doubt and, therefore, he is convicted
under Section 326 !PC and sentenced to undergo rigorous imprisonment for
three years. The sentences against accused Devendran are directed to run
concurrently.

H These appeals are disposed of accordingly.
- A. DEIVENDRAN v. STATE OF T.N. [PATTANAIK, J.)

Before we part with this case we must keep on record our appreciation
625
A
for the invaluable services rendered by Shri Muralidhar, learned counsel who
appeared for the appellants as amicus curiae and by his sincere and hard work
put forth all possible arguments for a correct interpretation of the provisions
of Sections 306 and 307 of'.he Code of Criminal Procedure. The analysis made
by him on the question of law as well as the evidence on record became an B
asset for delivering this judgment.

N.J . Appeals disposed of.

....

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