JUDGMENT S.S. Kulshrestha, J.
1. Heard and also perused the materials on record.
2. This petition has been brought for quashing the written report registered at case crime No. 39 of 2005 under Section 302/201 Police Station Utraon, Allahabad. It :. said that the petitioner is not named in the F.I.R. and merely on confessional statement of the co-accused his involvement in the aforesaid offence cannot be construed, more so when the complainant Chhotey LaL, his wife Shivkali, Mahendra Kumar alias Naate, the nephew of the deceased have"already filed their affidavits denying involvement of the petitioner in the aforesaid offence. In order to facilitate the disposal of this petition, a brief resume of, the facts may be made. Complainant Chhotey Lal lodged a written report at police station Utraon district Allahabad at crime No. 39 of 2005 under Section 302/201 I.P.C, contending that his son Kallu (how deceased) and Sri Suresh Pasi were doing mazdoori and there were some differences in between them on payment of wages. Suresh Pasi threatened him that either he should settle the accounts otherwise he would be killed. On 13.5.2005 at about 8.00 p.m. Suresh Pasi came at the house of the complainant and told his son that one person is waiting for him there at MORI. Suresh Pasi himself fetched the son of the complainant on cycle. Thereafter he did not return. Rigorous search was made by the complainant and came to know , that one dead body was lying near the brick kiln of Laala. The complainant, his wife and nephew Ravi Shankar went, at: the spot and identified the same of Kallu and hence this report was lodged on 14.5.2005. Nobody is named in the F.I.R. However, in the course of investigation, as would appear from the Counter Affidavit filed by Sri Sunil Kumar Singh, on behalf of the State, Sanjai Chamar was arrested by the police and he made disclosure of the incident. In his statement recorded at parcha No. 7 on 25.5.2005, he narrated that "Santlal @ Pattar (petitioner) was having illicit relation with the sister of Kallu later on married with other person despite resistance made by the petitioner. That was the cause of enmity of the petitioner with Kallu." About 1/2 years back, Kallu had beaten Raju, brother of Sanjai Chamar. He was also harbouring ill will with him. Both - Sanjai Chamar and Sant LaL @ Pattar, petitioner decided to finish Kallu. They have brutally chopped off his head, legs and hands. On the pointing out of Sanjai Chamar, recovery of head of the . deceased was made. In the statement of Sanjai Chamar the accomplice, name of the petitioner figured.
3. It is urged by the learned counsel for the petitioner that the statement of co-accused before the police is not admissible in evidence. In that regard reliance has also been placed in the case of State (N.C.T. of DELHI) v. Navjot Sandhu (a), Afsan Guru JT 2005 (7) SC 1. It. is further contended that in view of illustration (b) to Section 114 of the Evidence Act testimony of an accomplice is unworthy of credit unless corroborated in material particular and so no reliance can be placed on such statement at this stage. There is basic dispute about the testimony of an accomplice and providing complete immunity to his statement would have far reaching consequences and may present a tarnished version.
4. Suffice is to mention that Sanjai Chamar has categorically stated about the active participation of the petitioner in the aforesaid killing and on the pointing out of the accomplice, head of the deceased was recovered. Admissibility of, the statement of Sri Sanjai Chamar may be looked keeping in view illustration (b) to Section 114 and 133 of the Evidence Act. There is no legal hurdle in acting on the testimony of an accomplice but it is well nigh settled that it would be imprudent to base conviction on such testimony unless it is corroborated on material particulars, where the conviction of the accused is solely based on the testimony of accomplice, it has to pass the test, of reliability and must secure adequate corroboration before the same can be acted upon.
5. Apex Court in the case of K. Hashim v. State of Tamil Nadu 2005 (52)ACC 802 has observed as under ;
"Section 133 of the Evidence Act is also of significance, It relates, to the. evidence of an accomplice. In positive terms it provides that the conviction based on the evidence of an accomplice is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice) because the accomplice is a competent witness.
In Bhuboni Sahu v. R. AIR 1949 PC 257 it was observed that the rule requiring corroboration for acting upon the evidence of an accomplice is a rule of prudence. But the rule of prudence assumes great significance when its reliability on the touchstone of credibility is examined. If it is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony of an accomplice, the proposition that an accomplice must be corroborated does not mean that there must be cumulative or independent testimony to the same facts to which he has testified. At the same time the presumption available under Section 114 of the Evidence Act is of significance. R says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in "material particulars". Section 13 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with Section 114 Illustration (b). The latter section empowers trie Court, to presume the existence of certain facts and the illustration elucidates what the Court may presume and makes clear by means of examples, as to what facts the Court shall have regard to in considering whether or not the maxims illustrated apply to a given case. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodies in illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge."
6. Identical point came into consideration in the case of M.O. Shamshudhin v. State of Karen , wherein the Supreme Court held as under : .
"Now coming to the nature of corroborating evidence that is required, it is well-settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case."
7. In the case of Jasbir Singh v. Vipin Kumar Jaggi it was observed by the Apex Court that "in any case the evidence of an approver does not differ from the evidence of any other evidence except that his evidence is looked upon with great suspicion. But the suspicion may. be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing conviction" .
8. The evidence of accomplice is not totally bereft of reassuring circumstance, can be relied upon for convicting accused. A Bench of three Judges in the case of Dagdu v. State of Maharastra, has laid down the legal position after making a survey of the case law by referring to Rameshwar v. State of Rajasthan, and a number of other decisions of this Court as well as of English Courts. Chandrachud, J. (as the learned Chief Justice then was) has started for the three Judges Bench as follows :
"21. There is no antithesis between Sec. 133 and Illustration (b) of Section 114 of the Evidence Act because the Illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witnesses and though a communication may lawfully rest upon his uncorroborated testimony, yet the Court in entitled to presume and may indeed be Justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but, that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it."
9. Identical question also figured for decision in the case of State of T.N. v. Suresh where in it was reiterated that the law is not that the evidence of an accomplice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration of accomplice's evidence it is desirable that Court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true.
10. Thus, the law is not that the evidence of an accomplice deserves outright rejection but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver. Accomplice must pass two test so as to prove his credibility in the court namely, that the story he relates involving him in the crime is intrinsically probable and probable catalogue of events that had taken place. Reliance may be placed in the case of Suresh Chandra Bahri v. State of Bihar, , Mohd. Hussaln Umar Kochra v. K.S. Dalip Singhji and Anr. , Bhiva Doulu Patil v. State of Maharashtra . The question of corroboration would be looked into at the trial stage. But for the purpose of ascertaining involvement of the petitioner at this stage in the aforesaid offence, such statement cannot be ignored.
11. In view of the aforesaid discussion, statement of the accomplice itself prima facie makes out an involvement of the petitioner in the aforesaid offence. Whatever corroboration part of the statement of the accomplice is concerned, that would be a matter to be embarked upon by trial court. In the case of State of Haryana v. Ch. Bhajan Lal, followingguidelines were laid down by the Apex Court for quashing the F.I.R. or dropping the proceedings :-
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence hut constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufecieient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/ or where the proceeding is" maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
12. They were also followed in the case of Ajay Mitra v. State of UP and Union off India v. Prakash P. Hinduja and Anr. . Thus we do not find any justified and justifiable ground to quash the F.l.R.
13. As regards the affidavits filed by the complainant, his wife, and nephew it may be mentioned that the correctness of those affidavits appears to have not been tested by the Investigation Officer while recording their statement under Section 161 Cr. P.C. Besides if the petitioner wants to rely on these witnesses who have filed their affidavits, may recall them at the trial stage as defence witness. Section 3 of the Evidence Act, contemplates oral evidence or documentary evidence. In the case of a living person evidence in judicial proceedings must be tendered by calling a witness to a witness stand and can not be substituted by an affidavit unless the law permits or the court expressly allows. Before parting with the case, we wish to clarify that nothing said herein before shall be construed to be an opinion in the case.
14. In view of the aforesaid discussions we do not find any merit in this petition, in the result it is dismissed.