Bhiva Doulu Patil Vs. State of
Maharashtra  INSC 244 (29 August 1962)
29/08/1962 KAPUR, J.L.
CITATION: 1963 AIR 599 1962 SCR Supl. (3) 59
CITATOR INFO :
R 1970 SC 45 (21) RF 1988 SC 672 (7) RF 1991
Criminal Trial-Approver- Corroboration, if
necessary qua each accused-Indian Evidence Act, 1872(1 of 1872), ss. 114,133.
The appellant and R were convicted for murder
on the testimony of an approver Corroborated by the recovery at the instance of
R of the knife with which the murder was committed and of the evidence that the
appellant and R had got the knife prepared nine weeks before the murder. The
appellant contended that his conviction was illegal as there was no corroboration
of the testimony of the approver so far as he was concerned.
Held, that the conviction of the appellant
was not sustainable. The law required that there should be corroboration of the
approver in material particulars and qua each accused. The combined effect of
ss. 133 and 114 illustration (b) is that though the conviction of an accused on
the testimony of an accomplice could not be said to be illegal, the courts will
not accept such evidence without corroboration in 831 material particulars. In
the present case there was no corroboration of the testimony of the approver
qua the appellant. The preparation of the knife nine weeks before the
occurrence was no corroboration of the approver as within that time gap the
appellant might have recanted; nor was the discovery of the knife at the
instance of R sufficient to connect the appellant with the murder. The fact
that the approver had made a confessional statement to his brother could not be
called corroboration of the approver. It was not sufficient for the conviction
of the appellant that there was evidence to corroborate the participation of R
in the murder.
Res. v. Boyes,(1861)9 Cox, crim. cas.32,
Bhuboni Sahu v. The King, (1949) L. R. 76 1. A. 147 and R. v. Baskerville,
(1916) 2 K. B. 658, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 174 of 1961.
Appeal by special leave from the judgment and
order dated April 12113, 1961, of the Bombay High Court in Cr. A. No.
308 of 1961.
G. C. Mathur, for the appellant.
S. B. Jathar and R. N. Sachthey, for the
1962. August 29. The Judgment of the Court
was delivered by KAPUP., J.-This is an appeal against the judgment and order of
the High Court of Bombay confirming the conviction of the appellant for an
offence under s. 302, Indian Penal Code, read with s. 34 for the murder of one
Lahu Vithu Patil on the night between May 23, and 24, 1960 at village Pasarde.
Four persons Rama Krishna Patil accused No.
1, Bhiva Doulu Patil accused No. 2 (now appellant before us), Lahu Santu Patil
accused No. 3 and Deoba approver P.W.5 are alleged to have taken part in murder
of Lahu Vithu Patil. Rama 832 Krishna Patil accused No.1 was convicted of
murder and sentenced to death but on appeal his sentence was reduced to one of
imprisonment for life. The appellant was convicted as above stated and
sentenced to imprisonment for life. The third accused Lahu Santu Patil was
acquitted and the 4th participant Deoba turned approver and is P.W.5.
The case for the prosecution was that the
appellant had a suspicion that the deceased bad a liaison with his wife.
He, the appellant, approached the approver
and suggested that the deceased should be killed. This was on March 16, 1960.
On March 17, 1960, Rama Krishna Patil accused No. 1 and appellant got a knife
prepared by Nanu Santu Sutar P.W.7 from a crowbar. The deceased was a wrestler
and he and his brother used to sleep in the fields and they also had dogs and
for that reason the murder could not be committed for some time. When rains set
in, the deceased started sleeping at Patil's Talim (gymnasium). There, on the
night of the murder the deceased was killed with the knife which was used by
Rama Krishna Patil accused No.1. At that time the appellant had a torch and two
others Lahu Santu Patil and Deoba were unarmed. Two blows ware given by accused
No.1 one on the throat and the second one on the left side of the chest. At the
place of the occurrence the assailants left a towel and a patka(turban). Both
these articles have been found to belong to accused No. 1 Rama Krishna Patil.
Hearing the noise and growing of the
deceased, Lahu Vithu Patil, other persons who were sleeping were awakened and
one of them went and informed the brother of the deceased and then the first
information report was made to the police but no names were mentioned therein.
On June 6, 1960, Deoba was arrested on information received by police
Sub-Inspector Nandke. On June 25, 1960, 833 as a result of a statement made by
accused No.1 the knife which is alleged to have been used for the murder was recovered.
This knife is stated to be stained with blood but it has not been proved to be
human blood. It may be stated that the knife was of rather unusually large
dimensions The two injuries on the deceased were very extensive and according
to the medical evidence they could have been caused with the knife which was
The question that arises in the present case
is whether the statement of the approver has been corroborated in material
particulars and qua the appellant. The trial court convicted the appellant on
the testimony of the approver and found corroboration for the approver's
testimony in the statement of Nanu Sintu Sutar, P.W. 7 who had prepared the
knife alleged to have be, been used for the offence on March 17, 1960, and hi,;
motive to commit the murder because of the suspicion he had about his wife
having a liaison with the deceased. These facts according to the learned Judge
were sufficient to convict the appellant.. The High Court on appeal found
corroboration in material particulars; from the evidence of Santu 1-.W. 6
brother of Deoba to whom Deoba had made a confession of his participation in
the offence the discovery of the 'knife at the instance of accused No. 1 and
the knife being found blood-stained and the unusual character of the knife
which fitted in with the dimensions of the injurious caused to the deceased.
From those facts the learned Judges came to the conclusion that the approver
Deoba was giving a true version of the occurrence. With great respect to the
High Court we are unable to agree because without corroboration of the approver
qua the appellant the conviction is unsustainable, the law being that there
should be corroboration of the approver in material particulars and qua each
834 The statement of Santu, brother of the
approver is no corroboration of the approver. it only means that approver made
a confessional statement to his brother. That cannot be called, in the
circumstances of this case, to be a corroboration of the approver. The evidence
of Nanu Santu Sutar P.W. 7 also cannot operate as a corroboration of the
approver's story because the knife was got prepared by accused No. 1 and the
appellant nine weeks before the murder and that fact by itself will not
corroborate the charge under s. 302 read with s. 34 of the Indian Penal Code
against the appellant. The time gap between the preparation of the knife and
murder is great and it is possible in such circumstances that the appellant
might have cemented and not proceeded with the commission of the offence. The
finding of the knife at the instance of the first accused also is no
corroboration of the approver's story which would be sufficient to connect the
appellant with the murder, under s. 34 of the Indian Penal Code. It may be that
in this case the approver's evidence was sufficiently corroborated for the
conviction of the first accused upon which we express no opinion but so far as
the appellant is concerned we find that there is no corroboration of the
approver's story and it is not-sufficient that there is evidence to corroborate
the participation of the first accused in the murder. It is also necessary for
there being independent corroboration of the participation of the appellant in
the offence with which he has been charged. In these circumstances the
conviction of the appellant is not sustainable.
In coming to the above conclusion we have not
been unmindful of the provisions of s. 133 of the Evidence Act which reads- :-
s. 133 "An accomplice shall be a competent witness against an accused
835 and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accomplice".
It cannot be doubted that under that section
a conviction based merely on the uncorroborated testimony of an accomplice may
not be illegal, the courts nevertheless cannot lose sight of the rule of
prudence and practice which in the words of Martin B in Res. v. Boyes (1) (has
become so hallowed as to be deserving of respect" and in the words of Lord
Abinger "it deserves to have all the reverence of the law". This rule
of guidance is to be found in illustration (b) to s. 114 of the Evidence which
is as follows :- "The court may presume that an accomplice is unworthy of
credit unless he is corroborated in material particulars".
Both sections are part of one subject and
have to be considered together. The Privy Council in Bhuboni Sahu v. The King
(2) when its attention was drawn to the judgment of Madras High Court in re
Rajagopal(3) where conviction was based upon the evidence of an accomplice supported
by the statement of a co-accused, said as follows :- "Their
Lordships................... would nevertheless observe that Courts should be
slow to depart from the rule of prudence, based on long experience, which
requires some independent evidence, implicating the particular accused. The
danger of acting upon accomplice evidence is not merely that the accomplice is
on his own admission a man of bad character who took part in the offence and
afterwards to save himself betrayed his former associates, and who has placed
himself in a (1) (1861) 9 Cox, Crim. Cas. 32.
(2) (1949) L.R. 76. I.A. 147, (3) I.L.R.
1944. Mad. 308.
836 position in which he can hardly fail to
have a strong bias in favour of the prosecution ; the real danger is that he is
telling a story which in its general outline is true, and it is easy for him to
work into the story matter which is untrue".
The combined effect of ss. 133 and 114,
illustration (b) may be stated as follows :
According to the former, which is a rule of
law, an accomplice is competent to give evidence and according to the latter
which is a rule of practice it is almost always unsafe to convict upon his
Therefore though the conviction of an accused
on the testimony of an accomplice cannot be said to be illegal yet the Courts
will, as a matter of practice, not accept the evidence of such a witness
without corroboration in material particulars. The law may be stated in the
words of Lord Reading C. J. in R. v.
Baskerville (1) as follows "There is Do
doubt that the uncorroborated evidence of an accomplice is admissible in law
(R. v Attwood, 1787, 1 Leach 464). But it has been Ion(,, a rule of practice at
common law for the judge to warn the jury of the danger of convicting a
prisoner on the uncorroborated testimony of an accomplice, and in the discre-
tion of the Judge, to advise them not to convict upon such evidence, but the
judge should point out to the jury that it is within their legal province to
convict upon such unconfirmed evidence (R. v Stubbs, Dears 555 In re Heunier,
1894 2 Q.B. 415)".
We, therefore, allow this appeal, set aside
the order of conviction and direct that the appellant be released forthwith.
Appeal allowed (1)  2. K.B.658.