Jnanendra Nath Ghose Vs. The State of
West Bengal  INSC 76 (8 May 1959)
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1959 AIR 1199 1960 SCR (1) 126
Indian Evidence Act, 1872 (1 of 1872)s. 133
The appellant was tried on a charge of murder
by the Sessions judge with the aid of a jury. The evidence against him
consisted of the testimony of an approver and the proof of corroborative
circumstances tending to connect him with the crime. The jury found the
appellant guilty and the Sessions judge accepting the verdict sentenced him to
imprisonment for life. An appeal to the High Court was dismissed as that Court
found no mis-directions in the charge to the jury. The appellant contended that
there was misdirection in the charge to the jury in that the jury was not told,
as laid down in Sarwan Singh v. The State of Punjab,  S.C.R. 953, that
the approver's evidence had to satisfy a double test i.e., he must be a
reliable witness and his evidence must receive sufficient corroboration and in
that the corroborating evidence was not sufficient to connect the appellant
with the crime.
Held, that there were no mis-directions in
the charge. The observations in Sarwan Singh's case that it must be shown that
the approver was a reliable witness were made in the special circumstances of
that case where the approver had definitely been found to be so thoroughly
discrepant as to be wholly unreliable. In the present case there was nothing to
show that the evidence of the approver was in any way unreliable.
Saywan Singh v. The State of Punjab, 
S.C.R. 953, distinguished.
The Sessions judge had correctly directed the
jury that the corroboration of the evidence of the approver in material
particulars must relate not only to the commission of the crime, but also to
the evidence connecting or tending to connect the accused with the crime. The
circumstances proved in the case corroborated the approver's evidence connecting
the appellant with the crime. Once there was evidence of such circumstances it
was for the jury to decide whether they were sufficient corroboration of the
approver's evidence that the appellant murdered the deceased.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 101 of 1958.
Appeal by special leave from the judgment and
order dated the 12th September, 1956 of the Calcutta High Court in Criminal
Appeal No. 19 of 1956, arising 127 out of the judgment and order dated the 8th
December, 1955 of the Sessions Judge, Birbhum in Sessions Trial No. 1 of
H. J. Umrigar and D. N. Mukherjee, for the
K. B. Bagchi, P. K. Ghosh for P. K. Bose, for
1959. May 8. The Judgment of the Court was
delivered by IMAM J.-The appellant was sentenced to imprisonment for life under
s. 302 by the Sessions Judge of Birbhum who agreed with the majority verdict of
the jury that he was guilty.
He appealed against his conviction to the
Calcutta High Court. That Court being of the opinion that there was no
misdirection in the Sessions Judge's charge to the jury dismissed the appeal.
Two persons Jagdish Gorain and Sudhir Gorain were also tried along with the
appellant but were acquitted by the jury whose verdict the Sessions Judge
accepted. The appellant appealed to the High Court for a certificate to appeal
to this Court which was refused. The present appeal is by special leave.
According to the prosecution Sibapada Hati
was married to a girl by the name of Lila. About a month previous to the date
of occurrence the appellant had made a proposal to her that she should live
with him which was rejected. The appellant thought that the removal of Sibapada
Hati would clear the way and improve his chance of gaining Lila's favour.
Accordingly he murdered Sibapada Hati on the May 26, 1955. In that murder he
was assisted by Jagdish Gorain, Sudhir Gorain and the approver Sastipada Ghose.
The conviction of the appellant depended on
the evidence of the approver and the circumstantial evidence which corroborated
him in connecting or tending or connect the appellant with the murder of the
deceased Sibapada Hati.
Unless there was a misdirection or
non-direction amounting to a misdirection in the charge to the jury which, in
fact, had occasioned a failure of justice the jury's verdict must prevail and
128 it cannot be interfered with. The High Court was of the opinion that there
was no misdirection in the Sessions Judge's charge to the jury and we are in
agreement with the High Court.
We have examined the charge to the jury. The
Sessions Judge in dealing with the evidence of the approver charged the jury as
follows:" Before doing so, some established legal principles as regards
the approver's evidence and the confessions on which the prosecution has relied
in the present case are required to be explained to you. The approver is a
competent witness against an accused person and although his evidence is
strictly admissible and a conviction is not illegal, merely because it is based
on approver's evidence, it is a settled rule of practice not to convict a
person on such evidence except under very rare and exceptional circumstances,
and usually substantial corroboration is required. I, therefore, warn you,
gentlemen, that it is highly dangerous to convict on approver's evidence alone.
There can, no doubt be a legal conviction upon the uncorroborated evidence of
an accomplice and, as already stated, the uncorroborated testimony of an
accomplice is strictly admissible and a conviction based on it alone is not illegal,
yet you should remember, gentlemen, that experience teaches us that an
accomplice being always an infamous person, he having thrown to the wolves his
associates and friends in order to save his own skin and, though criminal, has
purchased his liberty by betrayal, his evidence must be received with very
great caution and it is highly dangerous to act upon his evidence unless it is
materially corroborated. I must also tell you that this rule as to
corroboration has become a settled rule of practice of so universal an
application that it has now almost the force and reverence of law.
Corroboration must be as to the crime and the identity of each one of the
accused and the corroboration required must be independent evidence that is
reliable evidence of another kind.
129 Evidence in corroboration must be
independent testimony, which affects the accused by connecting or tending to
connect the accused with the crime. In other words. it must be evidence which
implicates him, that is, which conforms in some material particulars not only
the evidence that the crime has been committed but also that the prisoner
(accused) committed it. Corroborative evidence, you should bear in mind, is
evidence which shows or tends to show that the story of the accomplice that the
accused committed the crime is true. The corroboration need not be direct
evidence that the accused committed the crime. It would be sufficient if it is
merely circumstantial evidence of his connection with the crime. The
corroboration in material particulars must be such as to connect or identify
each of the accused with the offence. In the present case, a previous statement
of an approver, viz., the confession has been made exhibit before you, but that
previous statement, you are further to bear in mind, cannot corroborate his
latter statement, viz., the statements that have been made by him before you in
In dealing with the question what amount of
corroboration is required you, gentlemen, must exercise careful discrimination
and look at all the surrounding circumstances in order to arrive at a
conclusion whether the facts deposed to by the approver Sastipada are borne out
by those circumstances. " Mr. Umrigar on behalf of the appellant urged
that the aforesaid direction given by Sessions Judge to the jury was not
sufficient. The jury should have been told (1) in accordance with the decision
of this Court in the case of Sarwan Singh v. The State of Punjab (1) that the
approver's evidence has to satisfy a double test. It must show that he is a reliable
witness and that his evidence receives sufficient corroboration, (2) that the
evidence of an approver must be confirmed not only as to the circumstances of
the crime but also as to the identity of the prisoner.
The corroboration (1)  S.C.R. 953.
17 130 ought to consist in circumstances that
affects the identity of the party accused. Reliance was placed on the case of
The King v. Baskerville (1), (3) that the circumstantial evidence corroborating
the approver was not sufficient to connect the appellant with the murder of the
deceased and (4) that on similar corroboration of the approver's testimony the
accused Jagdish Gorain had been acquitted.
There was no real distinction between the
case of Jagdish Gorain and the appellant.
It is true that in Sarwan Singh's case this
Court had held, " The appreciation of an approver's evidence has to
satisfy a double test. It must show that he is a reliable witness and that his
evidence receives sufficient corroboration and that is a test which is common to
all witnesses. If this test is satisfied the second test which still remains to
be applied is that the approver's evidence must receive sufficient
corroboration. This test is special to the cases of weak or tainted evidence
like that of the approver." These observations were made in the special
circumstances of the case which this Court was deciding when dealing with the
case of Sarwan Singh. This Court went on to observe, " The argument that
the character of the approver's evidence has not been considered by the High
Court cannot be characterised as merely academic or theoretical in the present
case because, as we shall presently point out, the evidence of the approver is
so thoroughly discrepant that it would be difficult to resist the conclusion
that the approver in the present case is a wholly unreliable witness.
Indeed it may be legitimate to point out that
the learned Judges of the High Court have themselves criticised the evidence of
the approver in dealing with the prosecution case against Gurdial Singh and
have ultimately found that the account given by the approver is unreliable and,
though there was circumstantial evidence which raised an amount of suspicion
against Gurdial Singh, that would not be enough to sustain his conviction. It
seems to us that if it was found that the approver's account against one of the
accused persons was wholly discrepant, this (1) (1916) 2 K.B.D. 658, 131
finding itself should inevitably have led the court to scrutinise his evidence
in respect of the other accused persons with greater caution." It is clear
therefore that in the special circumstances of the case of Sarwan Singh the
approver had been found to be a wholly unreliable witness.
It is important to observe that this Court
stated that the approver's evidence must show that he is a reliable witness and
that is the test which is common to all witnesses.
Nothing has been shown to us in this case, as
was shown in Sarwan Singh's case that apart from the approver's testimony in
the present case being regarded as tainted evidence his evidence as it stood
was in any way unreliable. Indeed, the Sessions Judge went to the length of
telling the jury that although an approver's evidence is strictly admissible
and a conviction is not illegal merely because it is based on an approver's
evidence, it was a settled rule of practice not to convict a person on such
evidence except under very rare and exceptional circumstances and usually
substantial corroboration was required. The jury could not have been more
clearly warned about the danger of acting on an approver's evidence. In other
words, the jury were told not to convict the appellant on the approver's
evidence unless his evidence had been substantially corroborated. Apart from
the question of corroboration of the approver's evidence nothing was suggested
to us or to the High Court in what respect the approver's evidence was
unreliable after testing his evidence in the same way as one would test the
evidence of any witness for the prosecution in a criminal case. In our opinion,
the decision in Sarwan Singh's case can be distinguished in the present case.
Obviously, it was never suggested that the approver's evidence in this case was
entirely unreliable, if his evidence was tested in the same way as the evidence
of any prosecution witness in a criminal trial. We cannot accept the submission
made on behalf of the appellant that the charge to the jury is vitiated because
of the decision of this Court in Sarwan Singh's case.
132 As to the second submission made by Mr.
Umrigar it is to be remembered that in Baskerville's case the Court of Criminal
Appeal in England after discussing various authorities on the subject came to
the following conclusion :" We hold that evidence in corroboration must be
independent testimony which affects the accused by connecting or tending to
connect him with the crime. In other words, it must be evidence which
implicates him, that is, which confirms in some material particular not only
the evidence that the crime has been committed, but also that the prisoner
committed it. The test applicable to determine the nature and extent of the
corroboration is thus the same whether the case falls within the rule of
practice at common law or within that class of offenses for which corroboration
is required by statute. The language of the statute, implicates the accused,
" compendiously incorporates the test applicable at common law in the rule
of practice. The nature of the corroboration will necessarily vary according to
the particular circumstances of the offence charged. It would be in high degree
dangerous to attempt to formulate the kind of evidence which would be regarded
as corroboration, except to say that corroborative evidence is evidence which
shows or tends to show that the story of the accomplice that the accused
committed the crime is true, not merely that the crime has been committed, but
that it was committed by the accused.
" The corroboration need not be direct
evidence that the accused committed the crime; it is sufficient if it is merely
circumstantial evidence of his connection with the crime.
In the present case the jury had been clearly
directed by the Sessions Judge that corroborative evidence must be evidence
which implicates the accused, i.e., which confirms in some material particulars
not only the evidence that the crime had been committed but also that the
appellant had committed it. The Sessions Judge told the jury that "
Corroborative 133 evidence, you should bear in mind, is evidence which shows or
tends to show that the story of the accomplice that the accused committed the
crime is true. The corroboration need not be direct evidence that the accused
committed the crime.
It is sufficient if it is merely
circumstantial evidence of his connection with the crime. The corroboration in material
particulars must be such as to connect or identify each of the accused with the
offence. " It seems to us that the Sessions Judge directed the jury in
accordance with the principle laid down in Baskerville's case and no serious
objection can be taken to the manner in which the Sessions Judge directed the
jury in this respect. The moment there is corroborative evidence which connects
or tends to connect an accused with the crime such corroborative evidence
relates to the identity of the accused in connection with that crime. It is the
approver's evidence which is the direct evidence of the crime. There should be
corroboration in material particulars not only concerning the crime but
corroboration of the approver's story by evidence which connects or tends to
connect an accused with the crime. It is this corroborative evidence which
determines the mind of the Court or a jury that the approver's evidence that
the accused committed the crime is true.
As to the 3rd Submission made on behalf of
the appellant the following circumstances were established by the evidence
which were accepted by the jury:
1. There was a motive for the appellant to
commit the, crime, that is to say, his immoral proposal to Lila, wife of the
2. On the 25th of May, 1955, the appellant
came to Lila's house and had a talk with the deceased.
3. On the 26th of May, 1955, in the morning
the appellant also came to the house and talked with the deceased. Later on
that very day a little after sunset the appellant came to the house and asked
the deceased to go for a walk with him.
The deceased did so.
4. Thereafter the appellant was seen going
with Jagdish Gorain and the deceased-by Brojeswari and 134 Lila towards the
north of the village after 5 p.m. while they were bathing in Talbona tank.
5. According to the approver at the time that
the, deceased was stabbed by the appellant he had sustained an injury on the
dorsum of his left palm. The medical evidence established that the appellant
had an almost healed up ulcer I inch in length on the left side of the palm at
its posterior surface one inch below the wrist joint and another healed up
ulcer 1/3 inch in length on the left thumb at the posterior surface and that
these injuries could be caused by a sharp cutting weapon like a knife.
6. As it had become night and the deceased
had not returned, Lila's mother Brojeswari and. her uncle Radharaman Sadhu
searched for him. They went to the club-house where the appellant and his two
co-accused Jagdish Gorain and Sudhir Gorain and the approver used to associate
with each other. When enquiries were made from the appellant by Brojeswari he
first replied that the deceased had not gone with him and that he did not know
anything about his whereabouts. When he was remainded that it was he who had
taken the deceased for a walk which he was denying, the appellant replied that
the deceased went with him upto the canal towards north of the village, but as
he felt a headache he came away and it was not possible for the appellant to
give any news about the deceased's whereabouts.
The above-mentioned circumstances either
individually or collectively may fall short of proving that the appellant
committed the murder of the deceased. Indeed, the High Court was of the opinion
that these circumstances independent of the direct evidence of the approver
would not be sufficient to induce any reasonable person to come to the
conclusion that the appellant had committed the crime. As already stated,
however, the approver's evidence is the direct evidence which establishes that
the appellant had \murdered the deceased. The jury had to decide for themselves
whether the above-mentioned circumstances were sufficient corroborative
evidence to satisfy 135 them that the approver's evidence that the appellant
murdered the deceased was true. It is, however, urged by Mr. Umrigar that the
circumstances mentioned were not circumstances corroborating the evidence of
the approver in material particulars which would connect or tend to connect the
appellant with the crime. In our opinion, at least in one circumstance the
corroboration is in a very material particular connecting or tending to connect
the appellant with the crime. The approver's evidence that while the appellant
was murdering the deceased he had received an injury on the dorsum of his left
palm is corroborated by the medical evidence. It was, however, pointed out that
the medical evidence does not show that the injury was on the dorsum of the
left palm. In our opinion, there is no substance in this submission because the
first injury is described as one on the left side of the-palm at its posterior
surface 1 inch below the wrist joint, that is to say, the dorsum of the left
palm. The second injury is clearly on the left thumb at its posterior surface
which is also consistent with the evidence of the approver that the dorsum of
the left palm was injured. The jury were entitled to accept this evidence as
sufficient corroboration in a material particular connecting the appellant or
tending to connect him with the crime. In addition, the circumstance that it
was the appellant who had called for the deceased a little after sunset and had
taken him away and thereafter was seen going along towards the north of the
village with the deceased and that thereafter the deceased was not seen alive
was one upon which the jury could rely in coming to the conclusion that it
connected or tended to connect the appellant with the crime. The appellant's
pretended ignorance of the whereabouts of the deceased that very night and his
ultimate admission that he had taken the deceased towards the north of the
village was also a circumstance upon which the jury could rely as inconsistent
with his innocence. In our. opinion, all the circumstances referred to above
were sufficient corroboration of the approver's evidence connecting or tending
to connect the appellant with 136 the crime and accordingly the, approver's
evidence that the appellant did commit the crime was true.
As to the 4th submission that although there
was similar corroboration of the approver's evidence against Jagdish Gorain but
he had been acquitted by the jury although no real distinction between his case
and the case of the appellant arose is unsound as, in our opinion, the two
cases are not comparable. In the first place, there was no motive for Jagdish
Gorain to commit the murder. In the second place, the injury which Jagdish
received was while he caught the knife in the hand of the appellant saying
" what have you done?" The approver's evidence therefore rather tended
to show that he tried to prevent the appellant from further stabbing the
deceased. These circumstances may have induced the jury to make a distinction
between the case of Jagdish Gorain and the appellant. It was for the jury to
say whether they regarded the circumstantial evidence as sufficient to connect
or tending to connect Jagdish with the crime. It would seem that on the
approver's evidence the jury may well have regarded the circumstances as
insufficient corroboration to connect or tending to connect Jagdish Gorain with
In our opinion, it cannot be said with any
good reason that there was any defect in the charge to the jury delivered by
the Sessions Judge which would justify us in saying that the verdict of the
jury was vitiated. The appeal is accordingly dismissed.