Post-committal pardon jurisdiction, exclusion of approver evidence, and limits on death penalty in a robbery-murder case

After committal, pardon to an approver could be tendered only by the court before which the case stood committed; a Magistrate's grant at that stage was without jurisdiction and the approver's evidence was therefore excluded. Non-compliance with Section 306(4)(a) CrPC did not vitiate the trial where pardon was granted post-committal under Section 307. The remaining evidence, including recoveries, eyewitness material and medical evidence, sustained the principal accused's liability for murder and allied offences, but was insufficient, without the approver's testimony, to prove conspiracy or to sustain murder convictions against the other accused beyond the proved possession of stolen property. The death sentence was also set aside as the case did not fall within the rarest of rare category.

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Issues: (i) Whether the pardon granted to the approver after committal of the case by the Chief Judicial Magistrate was valid and whether the approver's evidence could be relied upon; (ii) whether non-compliance with the procedure under Section 306(4)(a) of the Code of Criminal Procedure, 1973 vitiated the trial; (iii) whether the remaining evidence, including recoveries and witness testimony, sustained the convictions for murder, robbery-related offences and conspiracy; and (iv) whether the death sentence imposed on the principal accused was justified.

Issue (i): Whether the pardon granted to the approver after committal of the case by the Chief Judicial Magistrate was valid and whether the approver's evidence could be relied upon.

Analysis: After commitment of the case, the power to tender pardon vested in the court to which the commitment was made under Section 307 of the Code of Criminal Procedure, 1973. The Chief Judicial Magistrate had no concurrent jurisdiction to grant pardon at that stage, and the order passed through the Sessions Judge was not saved by Section 10(3). The defect was one of jurisdiction and not a mere irregularity curable under Section 460(g) or Section 465. As the approver was granted pardon without jurisdiction, his evidence could not be used against the accused.

Conclusion: The grant of pardon was invalid and the approver's evidence was excluded from consideration.

Issue (ii): Whether non-compliance with the procedure under Section 306(4)(a) of the Code of Criminal Procedure, 1973 vitiated the trial.

Analysis: The requirement in Section 306(4)(a) applies where pardon is tendered at the pre-committal stage under Section 306. Once pardon is granted after committal under Section 307, the statutory reference is only to the conditions for tendering pardon, not to the procedural safeguard in Section 306(4)(a). In such a situation, the omission to examine the approver immediately after pardon did not invalidate the proceedings.

Conclusion: Non-compliance with Section 306(4)(a) did not vitiate the trial in the post-committal pardon situation.

Issue (iii): Whether the remaining evidence, including recoveries and witness testimony, sustained the convictions for murder, robbery-related offences and conspiracy.

Analysis: The evidence of the eyewitnesses and medical witnesses established the occurrence of robbery and murders inside the house, and the recoveries of stolen property and the firearm linked the principal accused to the crime. Recent and unexplained possession of the stolen articles, together with the recovery and ballistic evidence, supported the inference against the principal accused under Section 114 of the Indian Evidence Act, 1872. However, as regards the other two accused, the recoveries made after a longer interval were insufficient by themselves to connect them with the murders. With the approver's evidence excluded, the charge of conspiracy also failed.

Conclusion: Conviction of the principal accused for murder and allied offences was sustained in substance, but the other two accused were acquitted of murder and conspiracy and were instead convicted only for possession of stolen property; the conspiracy conviction was set aside for all accused.

Issue (iv): Whether the death sentence imposed on the principal accused was justified.

Analysis: Although the principal accused was found guilty of murder, the record did not show a case falling within the rarest of rare category. The murders occurred in the course of a robbery and the material on record did not establish such extreme aggravation as to warrant capital punishment.

Conclusion: The death sentence was set aside and commuted to imprisonment for life.

Final Conclusion: The appeals succeeded in part: the approver's evidence was excluded for want of jurisdiction in the grant of pardon, the conspiracy conviction failed, the principal accused's death sentence was commuted to life imprisonment, and the remaining convictions were modified according to the respective roles and proved circumstances.

Ratio Decidendi: After committal of a case, pardon can be tendered only by the court to which the case is committed, and a pardon granted by a Magistrate lacking jurisdiction is void and cannot be cured by the general provisions saving irregularities; the presumption arising from recent, unexplained possession of stolen property may sustain liability for murder only where the surrounding evidence connects the accused with the homicide.

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