Ram Lochan Ahir Vs. State of West
Bengal [1962] INSC 354 (10 December 1962)
AYYANGAR, N. RAJAGOPALA AYYANGAR, N.
RAJAGOPALA IMAM, SYED JAFFER SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1963 AIR 1074 1963 SCR Supl. (2)
852
ACT:
Criminal Trial-Murder-Identification-Admissibility
of super imposed photograph to establish identity of skeleton--Mis-direction to
jury-Interference with verdict of jury on hupothetical considerations-Indian
Act 1872 (1 of 1872), ss.9, 27.
HEADNOTE:
The appellant was tried by the jury for
kidnapping and committing the murder of one Pancham Sukla. The jury returned a
verdict of guilty against him under ss. 364 and 302 of the Indian Penal Code.
The Sessions judge accepted the verdict and sentenced him to death under s. 302
and to rigorous imprisonment for life under s. 364. The High Court acquitted
appellant of the offence of kidnapping under s. 364, but while confirming his
conviction under s. 302, reduced the sentence to imprisonment for life. The
appellant came to this Court on a certificate granted by the High Court. In
this Court, the appellant challenged the identification of the skeleton
produced in the case as that of the deceased. His other contentions were that
the superimposed photograph was not admissible under any section of the
Evidence Act, there was misdirection to the jury in setting out the statement
of the accused to the police which led to the discovery of the skeleton and
that he had no intention of killing deceased and killing must have taken place as
a result of some quarrel between him and the deceased.
The super-imposed photograph was admissible
in evidence under s. 9 of the Evidence Act. That photograph was not any trick
photograph seeking to make something appear different from what it was in reality.
There was no distortion of truth involved in it or attempted by it. A
superimposed photograph is really two photographs merged into one or rather one
photograph seen beneath the other. Both the photographs are of existing things
and they are superimposed or brought into the same plane enlarged to the same
size for the purpose of comparison. Both the photographs would be admissible in
evidence and no objection could be taken to their being examined together.
853 There was no misdirection to the jury in
setting out the statement of the accused to the police which led to the discovery
of the skeleton.
There was no substance in the contention of
the appellant that killing must have taken place as a result of some quarrel.
The jury had held appellant guilty of murder.
This Court is not concerned with the
correctness of the acquittal of the appellant by the High Court under s. 364 of
Indian Penal Code. No suggestion has been made before this Court that there was
misdirection by the Sessions judge in his charge to the jury. There is no scope
for the argument that verdict of the jury should be interfered with or the
conviction based on it altered on hypothetical considerations not founded on
any facts on record.
Kotayya v. Emperor, A. 1. R. 1947 P. C. 67 and
State of U.P. v. Deoman Upadhyaya, (19611 1 S. C. R. 14, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal NO. 134 of 1961.
Appeal from the judgment and order dated
March 28/29, 1961, of the Calcutta High Court in Criminal Appeal No. 769 of 1960.
D. N. Mukherjee, for the appellant.
P. K. Chakravarti and P. K. Bose, for the
respondent.
1962. December 10. The judgment of the Court
was delivered by AYYANGAR, J.-This is an appeal on a certificate under Art.
134 (1) (c) against the conviction of the
appellant under s. 302, Indian Penal Code and the sentence for imprisonment for
life passed against him for the said offence.
One Pancham Sukla was an employee under the
Calcutta Port Commissioner where also the 854 appellant was employed. Pancham
attended office last on the 10th of March, 1960 and at about 5.30 that evening
he was seen in the company of the appellant. That was the last time he was seen
alive and since then he has not been found.
Pancham not having returned to his house, his
brother-in-law and another lodged a report with the police stating that Pancham
had been missing for the previous two days and in the said report gave a
description of the missing person as well as the clothes that he wore at the
time he left his residence. The fact that Pancham was last seen with the
appellant was stated in a further report which the brotherin-law lodged with
the police on the next day-March 13, 1960. The appellant was arrested on March
21, 1960 and on interrogation by the police he stated that Pancham Sukla was
dead and admitted that he had buried the body of the deceased in the mud in a
tank of which he gave a description. The place pointed out was searched and
there from a human skeleton partly covered with a torn dhoti, underwear and a
torn kurta in the side pocket of which was found a flag, were discovered. The
appellant was also stated to have pointed out to the police in the course of
further investigation that he had thrown a knife into the same tank. A search
was made when not merely a knife but a shoe with a rubber sole, a human lower
jaw bone etc., were recovered. After some more investigation a complaint was
laid before the Magistrate, who after enquiry committed the appellant to take
his trial before the Sessions Court where he was tried with the aid of a jury.
of two offences : (1) under s. 364, Indian
Penal Code of having abducted Pancham Sukla in order that he might be murdered,
and (2) the substantive offence of having committed the murder under s. 302,
Indian Penal Code. It may be mentioned that at the trial the articles recovered-the
dhoti, shirt, underwear, 855 shoe and the flag were all indentified as having
belonged to and being worn by the deceased when he was last seen. The jury
accepted the evidence of the prosecution and returned a verdict of guilty
against the appellant on both the counts.
The learned Session's judge accepted the
verdict and sentenced him to death under s. 302, Indian Penal Code and to
rigorous imprisonment for life in respect of the offence under s. 364, Indian
Penal Code.
The appellant filed an appeal to the High
Court of Calcutta and the learned judges acquitted the appellant of the offence
of kidnapping under s. 364, Indian Penal Code but confirmed the finding of
guilt as regards the offence of murder tinder s.302, Indian Penal Code but
reduced the sentence to imprisonment for life.
Having regard to the points which have been
urged before us we do not think it necessary to canvass the grounds upon which
the learned judges set aside the verdict of guilty returned by the jury and the
conviction of the appellant by the Sessions judge in respect of the offence
under s. 364, Indian Penal Code, but are concerned only with two points which
have been made by learned Counsel in support of the appeal. The first point
urged relates to the identification of the skeleton which was found in the tank
as that of the deceased Pancham Sukla; in other words, whether there was proof
that Pancham Sukla was killed or had even died. The identification of the
skeleton rested on three distinct lines of evidence : (1) The statement of the
appellant to the police under s. 27 of the Indian Evidence Act which led to the
discovery of the skeleton; (2) The identification of the clothes, shoe etc.
which were found on or near the skeleton as those which were worn by Pancham
Sukla at the time he last left his house. The place where these articles were
discovered in relation to that where the skeleton was 856 found unmistakably
pointed to the articles having formed part of the dress of person whose
skeleton was there found;
and (3) a photograph of Pancham Sukla
superimposed on the photograph of the skeleton.
judge and the High Court as regards the
admissibility in evidence of the superimposed photograph as a means of
identifying the skeleton as that of the deceased and it is this legal objection
raised by the appellant that forms the ground of the certificate granted by the
learned judges of the High Court. Learned Counsel urged before us that the
superimposed photograph was not admissible in evidence and that its reception
vitiated the verdict of the jury. We are clearly of the opinion that even if
this photograph was not admissible in evidence the verdict of the jury and the
conviction of the appellant could not be set aside, because there was very
cogent other evidence to prove the identity of the skeleton. Since, however,
the learned judges of the High Court have thought fit to grant a certificate,
though they were themselves conscious of the fact that besides the photographs
there was plenty of other evidence to sustain the conviction, we consider it
proper to express our opinion on the question.
The process adopted for taking the
superimposed photograph as explained by P. W. 18-the Assistant Chemical
Examiner of the West Bengal Government was this : He first got a photogrgph of
Panchom Sukla. This was photographed, the negative being taken on a quarter
plate and the negative was enlarged. He got the skull and as the skull Was
broken in some parts the bones were pieced together and an enlarged photograph
of the skull as reconstructed was taken. A negative of this was enlarged to the
same size as the negative of the photo of the deceased with the angle and
positions of the two being identical. The two negatives were 857 then
superimposed. For the superimposition the technique employed by him was thus
explained :
"The ground glass of the camera was
taken out, the negative of the photograph alleged of Pancham Sukla was placed
on it, prominent markings of the negative were carefully jotted down on the
ground glass, the markings being the following, viz., nasion-nasomental line,
malar bones with prominences and two outer canthuses and two inner canthuses of
the two eye balls and the inner ends of the supra orbital ridges, thereafter
the ground glass was fitted in the camera, the skull was so orientated that all
the points of the skull came in exact position with the markings made on the
ground glass as mentioned when the photograph of the skull was taken; then the
two negatives were placed by aligning in such a way that all the points as
mentioned above corresponded on a sensitive bromide paper under an enlarger.
The resultant is the photograph submitted to
the Court." The photographer who executed this work under the supervision
of P. W. 18 was Tapendra Nath Mazumder, who was examined as P. W. 19. This
superimposed photograph showed the shape and contour of the bones of the face
underneath the face as it looked when the deceased was alive, and the
prosecution sought by means of this document to establish the identity of the
skull as that of the deceased, or in any event to dispel any positive argument
for the. defence that the skull was not that of the deceased.
The contention urged before us by learned
Counsel was that this photograph was not admissible under any section of the
Indian Evidence Act. If learned Counsel is right here, he could succeed in 858
having this evidence rejected as inadmissible. We are, however, clearly of the
opinion that it is admissible in evidence under s. 9 of the Evidence Act. The
section reads:
"9. Facts necessary to explain or
introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or relevant fact, or which establish the
identity of any thing or person whose identity is relevant, or fix the time or
place at which any fact in issue or relevant fact happened, or which show the
relation of parties by whom any such fact was transacted, are relevant in so
far as they are necessary for that purpose." The question at issue in the
case is the identity of the skeleton. That identity could be established by its
physical or visual examination with reference to any peculiar features in it
which would mark it out as belonging to the person whose bones or skeleton it
is stated to be.
Similarly the size of the bones, their
angularity or curvature, the prominences or the recessions would be features on
which examination and comparison might serve to establish the "'identity
of a thing" whithin the meaning of s. 9. What we have in the present case
is first a photograph of that skull. That the skull would be admissible in
evidence for establishing the identity of the deceased was not disputed, and
similarly a photograph of that skull.
That a photograph of the deceased was admissible
in evidence to prove his facial features, where these are facts in issue or
relevant facts, is also beyond controversy. Now what P.W. 18 with the
assistance of P.W. 19 has done is to combine these two. The outlines of the
skull which is seen in the superimposed photograph show the nasion prominences,
the width of the jaw bones and their shape. the general contours of the cheek
bones, the position of the eye cavity 859 and the comparison of these with the
contours etc., of the face of the deceased as seen in the photograph serve to
prove that features found in the skull and the features in the bones of the
face of the deceased are indentical or at least not dissimiliar. It appears to
us that such evidence would clearly be within s. 9 of the Evidence Act.
The learned Counsel for the appellant urged
that the superimposed photograph was not a photograph of anything in existence
and was for that reason not admissible in evidence. This argument proceeds on a
fallacy. In the first place, a superimposed photograph is not any trick
photograph seeking to make something appear different from what it is in
reality. There is no distortion of truth in voled in it or attempted by it. A
superimposed photograph is really two photographs merged into one or rather one
photograph seen beneath the other. Both the photographs are of existing things
and they are superimposed or brought into the same plane enlarged to the same
size for the purpose of comparison. Possibly some illustrations might make this
point clear. For instance, if the photo of the deceased when alive were printed
on a transparent medium and that were placed above a photograph of the
skull-both being of the same size-the visual picture seen of the two together
would approximate to the document objected as inadmissible.
In the above, it would be seen both the
photographs would be admissible in evidence and no objection could be taken to
their being examined together. Again for instance, if instead of a
two-dimensional photograph we had first a hollow model of the head of the
deceased-say of transparent or semi-transparent material-constructed or made
from a photograph, that certainly would be admissible in evidence provided
there was proof that the model was exactly and accurately made. If the model
were dismantled into segments and placed upon the skull with a view 860 to show
that the curves and angles, the prominences or depressions etc. exactly
corresponded there could be no dispute that it would be a perfect method of
establishing identity. If this were granted the superimposed photograph which
is merely a substitute for the experiment with the model which we have just now
described would be equally admissible as evidence to establish the identity of
a thing.
It was pointed out that this was the first
occasion that in India an identity of a skeleton was sought to be established
by means of superimposed photographs and that P. W. 18 had done this experiment
by reference to what he had read in the books on the subject and that on that
ground the evidence could' not be accepted. Any deficiency in scientific
accuracy might go to the weight of the evidence which in the case on hand was a
matter for the jury to consider, but we are now only on a very narrow question
as to whether it is excluded from evidence as inadmissible. Our answer is that
it was admissible in evidence., The next point urged was that there had been a
misdirection to the jury in setting out the statement of the accused to the
police which led to the discovery of the skeleton. We have carefully gone
through the charge to the jury and are satisfied that there is no substance in
this objection. The learned Sessions judge has quoted extracts from the
decision of the Privy Council in Kotayya v. Emperor (1) and of this Court in
State of U. P. v. Deoman Upadhyaya (2) in which the scope of s. 27 of the
Indian Evidence Act has been discussed and has drawn to the attention of the
jury only that portion of the statement of the accused which led to the
discovery of the skeleton and the knife etc.
Lastly it was urged that the grounds upon
which the learned judges had set aside the conviction of the appellant of the
offence under s. 364, Indian Penal Code would necessarily lead to the
conclusion (1) A.I.R. 1947 P.C. 67. (2) [1961] 1. S.C.R. 14, 861 that he could not
be held guilty of an offence under s. 302, Indian Penal Code. The argument was
on these lines. The learned judges considered that the appellant had not,
having regard to certain facts which they considered had been made out, the
intention of killing Pancham when he took him out and that the killing must
have taken place as a result of some quarrel which arose between them. From
this learned Counsel sought to urge : (1) that there was a quarrel, (2) that
having regard to the quarrel the appellant must have had the right of private
,defence, and that (3) consequently killing was either fully protected or at
the most it was a case of an offence under s. 304 Part 1, Indian Penal Code.
We consider that there is no foundation for
this argument.
The trial was by jury whose verdict was that
the appellant was guilty of murder. As we stated earlier, we are not now
concerned with the correctness of the acquittal by the High Court of the
appellant of the offence under s. 364, Ind tan Penal Code or of the reasons on
which that order was based.
We must, however, point out that there is no
suggestion before us that save and except what we have discussed earlier there
had been any misdirection by the Sessions judge in his charge to the jury.
There is therefore no scope for the argument that that verdict should be
interfered with or the conviction based on it altered on hypothetical
considerations not founded on any facts on record.
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