1. The appellant Ramrao was adjudged guilty by a majority of the jury under S. 395, Penal Code, and he was convicted and sentenced to undergo 5 years' rigorous imprisonment by the 2nd Additional Sessions Judge, Buldana. With his appeal will be considered Cri. Apps. Nos. 318-324 of 1949 filed filled by Pirkhan, Taharu, Baldarkhan, Burhankhan, Sardarkhan, Tukaram and Dilawarkhan respectively of whom Dilawarkhan received the same sentence as Ramrao while the others were each sentenced to 4 years rigorous imprisonment under the same section.
2. The prosecution case was, briefly stated, as follows. Shankar (P.W 1). approver, used to visit the weekly market at Kurba, which is about 2 miles from his village Bhota, and the appellants Pirkhan and Baldarkhan used to sell sticks for driving bullocks in that market. When Shankar wont to their shop about April 1948 to purchase a stick of that kind, he met there the appellant Dilawarkhan and in the course of a conversation between them the latter told him that he was a dacoit and that he should join him for the commission of dacoities and show him the house of some wealthy man where a dacoity could take place. The approver on that occasion refused to join him, but Dilawarkhan assured him that he was equipped with everything necessary for the commission of a dacoity and that the sole function of the approver was to show him the house of a wealthy man. On the next market day, Dilawarkhan asked him whether he had discovered a man of that type and he replied that he had not 5-6 months later, Dilawarkhan went to the approver's house and was joined there about an hour later by the appellant Ramrao. On that occasion Dilawarkhan questioned Ramrao concerning the extent of Ganeshgir P.W 18's wealth at Pimpalgaon Kale and asked him to join him in the commission of a dacoity at that place. Ramrao eventually signified his acceptance of the proposal when he received Dilawarkhan's assurance that he had associates and sufficient equipment to commit the offence. He also told Dilawarkhan that 1-1¼ lacs in cash could be found at Ganeshgir's house. Ekadashi, viz., 27-12-1948, was fixed as the day on which the dacoity was to take place, and Dilawarkhan asked the approver Shankar to meet him in the afternoon at the river of mauza Parthala where he promised to come with his associates. Shankar on his way there took the appellant Tukaram with him from Tukaram had consented to take part in the commission of the dacoity. On arrival at the river, they were met by the appellants Baldarkhan, Sardarkhan, Pirkhan, Burhankhan and Taharu; and on proceeding beyond Adol and crossing a culvert on the road, they halted at a mango tree where the appellant Ramrao was to join them. On his arrival about an hour later, they all went to the outskirts of Pimpalgaon Kale which they reached late at night. There they halted under a tree near a dilapidated temple, and Ramrao took the approver and Dilawarkhan to show them Ganeshgir's house. Ganeshgir was found asleep in a room which was closed from inside and the trio after having examined the premises returned to the tree where their associates were awaiting them. When Dilawarkhan asked how the door of Ganesbgir's house was to be opened, Ramrao replied that Ganeshgir should be asked to open the door and to give medicine for one Sheosingh on the ground that he was suffering from a pain in the stomach.
3. After this, Ramrao stood at the tree while the others went to Ganeshgir's house where Dilawarkhan acted in the manner suggested by Ramrao. When Ganeshgir opened the door, Dilawarkhan seized him and Pirkhan knocked him down, sat on his chest and told him to deliver his keys and to show his cash. At this stage the approver joined Ramrao under the tree, while Dilawarkhan, Baldarkhan, Pirkhan and Burhankhan entered Ganeshgir's house and Sardarkhan, Tukaram and Taharu kept watch in the compound. The string by which the keys were hanging on Ganesbgir's waist was cut and his boxes were opened. He himself was picked up, thrown on the staircase, belaboured and asked at the point of a dagger to reveal the whereabouts of his remaining cash.
4. In the course of the ransacking property worth Rs. 1601 and consisting of cash ornaments, watches, 2 chains and a pair of shoes was removed from his house. The dacoits thereafter went to the tree where they joined Ramrao and the approver and with them proceeded to another tree where the booty was distributed.
5. Next morning, Ganeshgir had the report Ex. P-6 written by the working patel Yeshwant (P.W 4) and after he signed it, it was sent to the Jalgaon police-station with Narayan (P.W 7), chaukidar. Dattatraya (P.W 22), Sub-Inspector, proceeded to Pimpalgaon Kale, saw Ganeshgir's condition and had him examined by Shri G.B Untwale (P.W 5), Assistant Medical Officer, who found 3 contusions on the back of the left ear, centre of the chest and below the right nipple which were probably caused by a blunt weapon if a thrust blow had been given with it.
6. The investigation yielded no results for a long time. On the night of 8th/9th May 1949 there was a dacoity at mauza Bhon and in the course of its investigation the chain Article C was found in a tin in a trunk in the appellant Ramrao's house on 12-5-1949. The police officers present on that occasion were Yeshwantrao (P.W 20), S.B Deo (P.W 21) and A.N Shukla. (P.W 16) and the seizure memorandum Ex. P-2 was attested by Muhammad Basir and Amruta (P.W 15) who respectively live in Nandura and Manegaon. It was also signed by Ramrao.
7. Prior to this on 9-5-1949, the approver Shankar had at his sister's house in Hingni unlocked a box and produced a coat which con-tainted ornaments said to be connected with the Bhon dacoity as well as the chain article A which was attached to the whistle article B. The seizure was effected by A.N Shukla (P.W 16) Sub-Inspector, and the memorandum was signed by Shankar.
8. On 18-5-1949, Shankar made the confession Ex. P-1 to Shri D.L Chitaley, First Class Magistrate, Khamgaon.
9. On 21-5-1949, Ganeshgir and Yeshwant (P.W 4) identified the chains Articles A and C as the former's property in the presence of Shri W.N Khadse (P.W 11), Naib-tahsildar, Narayanrao (P.W 17), Sub-Inspector and the patwari Vishnu (P.W 13). Yeshwant, who did Ganeshgir's court-work for 7-8 years, had seen the chains during that period and had taken Article C to a goldsmith for repairs.
10. The appellants disclaimed all connection with the dacoity and Ramrao denied association with Shankar and Dilawarkhan. Regarding the chain Article C, his version was that he was occupied in arranging tea for the police party and when he brought it, S.B Deo (P.W 21) told him that it had been found in his house. He was not prepared to sign the seizure memo random as the chain was not found in his house, but he did so when S.B Deo directed him to do so. No evidence was adduced in defence.
11. There was some evidence to indicate that the approver, Dilawatkhan and Ramrao were associates and that Ramrao had been seen in the company of a taller man in Pimpalgaon Kale during the evening which preceded the dacoity. This evidence was by no means satisfactory and the learned trial Judge cautioned the jury in respect of it. He also warned them regarding Yeshwanta's identification of the chains Articles A. and C. and pointed out that there was no reason to doubt Ganeshgir's identification of them. The question of the recovery of the chain Article C, from Ramrao's house was examined at length in the summing up and here too the Judge counselled caution.
12. The first information report in cases of this kind is not often of value because of the victim's inability to identify the raiders. Exhibit P-6 was, however, of some use in that it was made without delay and corroborated Ganeshgir's assertion that seven men had raided his house after one of them had induced him to open the door on the pretext that medicine was required for Vithalsingh's son. The approver specifically referred to the plan for and the employment of this pretext at Ramrao's instance; and the evidence on record demonstrated that Ganeshgir was a physician and that Vithalsingh (P.W 2) used to obtain medicine from him whenever he stood in need of it. With regard to the number of the raiders, the approver also stated that there were 7 of them, although he explained that 4 of them entered the house while 3 remained outside. He had, he added, gone away at this stage to join Ramrao and it was possible that the 3 had entered the house immediately afterwards or that Ganeshgir had retained the impression that 7 had entered his house because he had seen that number of men when he opened his door.
13. The rule as to accomplice evidence is the same here as in England and from the bead-roll of cases beginning with Rex v. Baskerville, (1916) 2 K.B 658 : (86 L.J.K.B 28) it is clear that such evidence must be confirmed not only as to circumstances of the crime but also as to the identity of the prisoners. This corroboration need not be by direct evidence that an accused committed the crime and it is sufficient if there is circumstantial evidence of his connexion with the crime. The Judge should warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice and in his discretion advise them not to convict upon such evidence, but he should at the same time point out to them that it is within their legal province to disregard the caution and to convict upon such unconfirmed evidence if believed by them.
14. What then is required of the Judge in a case in which accomplice testimony is corroborated in respect of one or some accused but not in respect of all? This question was also considered in Rex v. Baskerville, (1916) 2 K.B 658 : (86 L.J.K.B 28) and the learned Judges signified at p. 669 their agreement with the following statement of law by Alderson B. in Regina v. Jenkins, (1843) 1 Cox C.C 177:
“Where there is one witness of bad character giving evidence against both prisoners a confirmation of his testimony with regard to one, is no confirmation of his testimony as to the other. If, therefore, you find there is a corroboration applicable to one prisoner, take it as against him; but unless it exists with regard to both it seems to me it would be unjust to give it a general effect.”
15. The learned Judges also said at p. 670:
“We see no reason in principle why a different rule as to corroboration should apply to a prisoner tried with another, against whom there is corroborative evidence of the accomplice's story, from that applicable if the first prisoner had been tried alone. In that case the uncorroborated evidence of the accomplice would be admissible against him, but it would be the Judge's duty to give the proper caution to the jury; and it would be equally incumbent upon the Judge to give the warning to the jury when the prisoner is tried with another against whom there was corroboration of the accomplice's story. If the Judge failed to give the warning, this Court would be bound to set aside the conviction. If the Judge gave the warning, this Court would then have to consider all the circumstances of the case as already indicated.”
16. In the present case the relevant part of the trial Judge's charge to the jury runs as follows:
“Gentlemen, the principal witness for the prosecution-is the approver Shankar, (P.W 1). I have to explain to you the law relating to an approver's testimony. Under Section 133 of the Evidence Act, he is a competent witness and a conviction is not illegal merely because it proceeds upon his uncorroborated testimony. But his testimony is naturally to be looked upon with suspicion and (Illustration (b) to Section 114 of the Evidence Act, provides that an accomplice is unworthy of credit unless he is corroborated in material particulars. He is a person who has thrown to the wolves his erstwhile associates and friends in order to save his skin, he is a person who purchases his liberty by betrayal and his evidence must be received with great caution. He is considered an immoral person likely to commit perjury out of hope for pardon. This rule as to corroboration. Gentlemen, is a long rule of practice and is now virtually a rule of law. Corroboration ought to be of material particular and by independent evidence of a trustworthy character. Further, the corroboration must be not only of the circumstances of the actual crime but also of the identity of each one of the accused, as participators in the crime. Of course, you cannot expect corroboration of each and every particular; had such corroboration been available, there would have been no necessity to tender pardon to the approver. The safeguard of corroboration in material particulars is provided so that you may, if such corroboration is available, come to the conclusion that the approver is, in all probability, telling the truth. In considering whether he is doing so you have also to look to the intrinsic value of his evidence by itself.”
17. Scrutiny of that part of the charge shows that it was fully in accord with the standards laid down by the Court in Rex v. Baskerville, (1916) 2 K.B 658 : (86 L.J.K.B 28) Supra.
18. Ramrao's learned counsel contended, however, that the trial Judge failed to direct the jury that the search of his house was illegal. The material concerning the search at Ramrao's house was set out exhaustively and fairly in paras. 54-62 of the charge to the jury; and as was held by a Division Bench in Bono Mali v. Emperor, I.L.R (1939) 1 cal. 210 : (A.I.R (27) 1940 Cal. 85 : 41 Cr. L.J 316) although the failure to comply with the provisions regulating searches may cast doubts upon the bona fides of the officers conducting the search, there is nothing in law which makes evidence relating to an irregular search inadmissible and a conviction based on such evidence is not invalid on that ground alone. Macnair, J.C had taken a similar view in Local Government v. Nainsukh, 29 N.L.R 67 : (A.I.R (20) 1933 Nag. 99 : 34 Cr. L.J 721).
19. Here the learned trial Judge had pointed out to the jury the non-compliance with Section 103(2) of the Cr PC concerning the locality from which the attesting witnesses were secured and the non-respectability of one of them. He had also carefully analysed their evidence and that of the police officers concerned in the search. There were also the undoubted facts that the chain Article C had actually been found in Ramrao's house and that there was evidence to show that it was part of Ganesbgir's property. Ramrao had, as shown, signed the seizure memorandum and it was improbable that he as a patel would have signed a false statement. The conclusion that the majority of the jury accepted the evidence concerning the discovery of the chain and its identification may safely be presumed; and it was significant that they adjudged the other accused liable although no property had been recovered from them and although the trial Judge had in the charge duly cautioned them that corroboration of the approver's evidence must also extend to the identity of each accused as a participator in the crime.
20. As the verdict of the jury was not erroneous because of misdirection by the Judge or because of their misunderstanding of the law as laid down by him, this Court is under Section 423(2) of the Cr PC inhibited from altering or reversing the verdict. It is not open to this Court to consider whether it would have convicted any of the accused on the same material or to interfere with the verdict even if, it thought differently of the evidence. The sentences were deserved and they are maintained. The appeals are dismissed.
21. Appeals dismissed.