# A. DEIVENDRAN v. STATE OF TAMIL NADU

- **Citation:** [1997] Supp. 4 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 1997-10-21
- **Case number:** Criminal Appeal No. 987 of 1997
- **Bench:** G.N. Ray, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-deivendran-v-state-of-tamil-nadu-15866
- **Pages:** 35

## Headnote

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 of pardon to the Chief Judicial 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 drawnF
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
591
H
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 of persons 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 exer

## Text

_Characters 0–39,678 of 95,517. This is a partial read: ask again with offset=39678 for what follows._

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 of pardon to the Chief Judicial 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 drawnF
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
591
H
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 of persons 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 preconditions for exercise of power under sub-section (3) of Section 10 of the
Code were satisfied or the Sessions Judge exercised his power under subsection (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 of Punjab, [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)
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.
F
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 of Punjab, (1983) 3 SCC 470; Bachhan
Singh v. State of Punjab, (1980) 2 SCC 684; Suresh v. State of U.P., [1981) 2
SCC 569; Raja Ram Yadav and Ors. v. State of Bihar, (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 of Delhi 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 of Punjab v. Raj Kumar, (1988) 1
SCC 696 and Rampa! Pithwa Rahidas v. State of Maharashtra, (1994) Supp.
F 2 sec 73, cited.
G
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.
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
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
A
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
1
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 chargesheet 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
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 3 07 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
F
counsel relating to the reliability of the approver's evidence is, that the said
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
E
F
on the same condition to such person."
"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
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
·-
1
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:-
"338. At any time after commitment of a case but before judgment
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."
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
B
c
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.