Kanbi Karsan Jadav Vs. State of
Gujarat [1962] INSC 21 (24 January 1962)
24/01/1962 KAPUR, J.L.
KAPUR, J.L.
DAYAL, RAGHUBAR
CITATION: 1966 AIR 821 1962 SCR Supl. (2) 726
ACT:
Criminal Trial-Evidence of approver-
Corroboration on material particulars-Othere circumstances to be
considered-Chemical Examiner's evidence, if can be taken into Consideration to
decide identity of hairs-Indian Penal Code, 1860 (45 of 1860), 302, 201-India
Evidence Act, 1872 (1 of 1872), s. 45.
HEADNOTE:
The appellant and two others were convicted
for murder under ss. 302 and 201 of the Indian Penal Code. The High Court
accepted the testimony of the approver as being a reliable piece of evidence.
It relied upon the discovery of the dead body of the deceased at the instance
of the appellant and of blood stained buttons also at his instance and attached
importance to the scarf recovered from the pit where the dead body was alleged
to have been first buried and which had hairs both of the appellant as well as
the deceased.
The appellant contended that the evidence of
the approver, even though it had been accepted as true, was not corroborated in
material particulars connecting the appellant with the offence. None of the
recoveries are corroborative of the statement of the approver to the extent of
connecting the appellant with the offence committed; on the other hand they are
somewhat contradictory of the statement. The evidence of the Chemical Examiner
was not sufficient to prove that hairs on the scraf were of the appellant or of
the deceased because the Chemical Examiner was no expert on this matter and his
evidence was not admissible under s. 45 of the Evidence Act and, at the most,
according to the Chemical Examiner the hairs resembled those of the appellant.
^ Held, that where the evidence of the
approver is held not to be very helpful to the prosecution other circumstances
727 besides the evidence of the approver has to be considered. The mere fact
that the dead body was pointed out by the appellant or was discovered as a result
of a statement made by him would not necessarily lead to the conclusion of the
offence of murder.
In the present case beside the evidence of
the approver, the appellant's pointing out of the dead body, his pointing out
the silver buttons of the deceased which were stained with human blood and the
presence of his hairs on a pania (scraf) on which there were the hairs of the
deceased also, are important facts which are sufficient evidence to connect the
appellant with the commission of the offence.
Held, further, that writers of medical
jurisprudence have stated that from microscopic examination of the hairs it is
possible to say whether they are of the same or of different colours or sizes
and from the examination it may help in deciding where the hairs come from.
Vemireddy Satyanarayan Reddy v. State of Hyderabad, [1956] S.C.R. 247 and Wasim Khan v. State of Uttar Pradesh, [1956] S.C.R. 191,
relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 223 of 1959.
Appeal by special leave from the judgment and
ordered dated April 14, 1959, of the former Bombay High Court (Rajkot Branch)
at Rajkot in Criminal Appeal No. 84 of 1958.
Nur-ud-din Ahmed and K. L. Hathi for
appellant.
H. R. Khanna and R. H. Dhebar, for
respondent.
1962. January 24. The Judgment of the Court
was delivered by KAPUR, J.-The appellant and two others were convicted by the
Additional Sessions Judge, Gohilwad, under ss. 302 and 201 of the Indian Penal
Code for the murder of Kanji and they were sentenced to imprisonment for life
under the former section and to seven years' rigorous imprisonment under the
latter. The sentence were concurrent. On appeal the High Court set aside the
conviction 728 of Nanji Ravji but upheld the convictions and sentences of the
appellant and Karamshi Bhawan.
The appellant has Come in appeal to this
Court by Special leave.
The deceased Kanji was rather an unsavoury
character in village Chiroda and it is alleged that he had a illicit connection
with Shrimati Shantu the sister of Karamshi and also used to follow about Smt.
Baghu the sister of the appellant for a similar object. It is stated that five
days before the occurrence the appellant Karsan, Karamshi, Nanji and Gumansinh
approver met and decided to murder the appellant. With that object in view Gumansinh
approver was to decoy the deceased to the Vadi of the appellant and there the
murder was to be committed. At about sunset on March 19, 1958, the deceased was
decoyed to the place as previously arranged and there he was murdered by the
appellant who gave him a few blows. with a sharp cutting instrument called
Dharia. According to the statement of the approver the dead body was wrapped in
the scarf of the deceased and was carried by the appellant from the place of
the murder to the dry bed of the river and there it was burried in a pit.
Nothing was heard of the murder or of the deceased till on March 26, 1958, a
brother of the deceased made a report to the police about his disappearance and
that he suspected the three uncles of the appellant, subsequently the appellant
and the other accused persons were taken into custody by the police. One of
them while in the custody of the police, was allowed to go to the village and
he asked the help of Shamji and Manilal P.Ws. He also made a confession to them
and they reported the matter to the police. On March 31, 1958, Gumansinh and
Karamshi made confessions 729 which were recorded by a Magistrate. Between
March 26 and March 31, recoveries of various articles were made. At the
instance of the appellant, it is stated, the dead body and then the head of the
deceased was recovered from a distant well. At the instance of Nanji on March
28, 1958 a scarf was, discovered in the pit in which the dead body was
according to the approver, buried. On the scarf, there were some hairs which on
analysis by the Chemical Examiner were found to be similar to the hairs of the
appellant and of the deceased. A day previous, i. e. March 27, 1958, at the
instance of the appellant silver buttons which were stained with human blood
were discovered from the field of the appellant at small stick like a button
belonging to the deceased was also found at his instance.
The High Court rejected the confession of
Karamshi on the ground that it was not voluntary.
It acquitted Nanji on the ground that there
were no corroboration in regard to him of the approver's statement, the place
where the dead body was buried was not discovered at his instance, his
production of stick and shirt and trousers from his house was of no
consequence, and the oral evidence was contrary to the medical evidence and
Karamshi's confessional statement could not be used against Nanji.
In regard to the appellant the High Court
accepted the testimony of the approver as being a reliable piece of evidence.
It attached no importance to the recovery of the cutting instrument, Dharia,
nor to the discovery of the stick (Dhoka) at his instance. But the High Court
did rely upon the discovery of the dead body of the deceased, i.e. the trunk
and the head, at the instance of the appellant and of the blood-stained buttons
also at his instance and attached importance to scarf recovered from the pit
where the dead body was alleged to have been first buried and which had hairs
both of the appellant as well as of the deceased.
730 It was argued for the appellant that the
evidence of the approver, even though it had been accepted as true, was not
corroborated in material particulars connecting the appellant with the offence.
On the other hand it was contradicted.
The approver had stated that the dead body
was buried in a pit in the dry bed of the river but when that pit was dug up
the dead body was not found there and only a piece of ulna bone and a heel of a
human foot were found and all there recoveries had been made earlier and so
could not be called corroborative in material particulars.
It was further submitted that there was no
evidence to show as to when and how the body of the deceased was removed from
the pit, dismembered and thrown into the well. The recovery of the scarf, it
was pointed out, was an innocuous circumstance because on the evidence produced
it had not been shown to belong to the appellant but to his father and the
evidence of the Chemical Examiner was not sufficient to prove that the hairs on
the scarf were of the appellant or of the deceased because the Chemical
Examiner was certainly no expert on this matter and his evidence was, not
admissible under s. 45 of the Evidence Act, and at the most, according to the
Chemical Examiner's report the hairs resembled those of the appellant. And
secondly according to the approver the dead body of the deceased was wrapped in
his own pania (scarf). It was further submitted that the statement in regard to
the recovery of the trunk and the head will only show that the appellant knew
where the trunk and the head were, which at the most would lead to an inference
of an offence under 8. 201 and not of 8.
What the law requires in the case of an
accomplice's evidence is that there should be such corroboration of the
material Parts of the story connecting the accused with the crime as will
satisfy reasonable minds that the approver can be regarded 731 as a truthful
witness. The corroboration need not be direct evidence of the commission of the
offence by the accused. If it is merely circumstantial evidence of his
connection with the crime it will be sufficient and the nature of the
corroboration will depend on and vary with the circumstances of each case.
Vemireddy Satyanarayan Reddy v. The State of Hyderabad.
The confessional statement made by the
approver on March 31, 1958 gave the following facts connecting the appellant
with the murder.
(1) The appellant gave dharia blow to the
deceased. The dharia had already been discovered and it has been disregarded
from the evidence by the High Court as being of no importance. The next thing
stated by the approver was that the deceased's body was tied in a pania
(scarf). He did not state that the scarf in which it was bound belonged to the
appellant. The next fact stated by him was that the appellant carried the body
of the deceased and then it was buried in a pit and lastly he stated that the
appellant had told him that the head of the deceased had been thrown into a
well. None of these recoveries in the circumstances of this case are corroborative
of the statement of the approver to the extent of connecting the appellant with
the offence committed. On the other hand, they are somewhat contradictory of
the statement because the pania (scarf) which was found in the pit has now been
stated to belong to the appellant. The dead body was not found in the pit, the
head had already been discovered and the trunk had also been taken out of the
well. In these circumstances it was submitted that the approver's statement
cannot be said to have been corroborated in material particulars.
But there are other circumstances which have
to be considered even if the evidence of the approver is held not to be very
helpful to the prosecution. Firstly, there is the pointing out of 732 the dead
body by the appellant from the well;
secondly, the discovery of the blood-stained
(stained with human blood) buttons at the instance of the appellant i thirdly
the scarf which has been held to belong to the appellant and which was found
from the pit pointed out by the co-accused Nanji and fourthly by the presence
of the hairs of the appellant and of the deceased on that scarf.
The mere fact that the dead body was pointed
out by the appellant or was discovered as a result of a statement made by him
would not necessarily lead to the conclusion of the offence of murder.
But there are other circumstances which have
to be considered. The discovery of the buttons with bloodstains at the instance
of the appellant is a circumstance which may raise the presumption of the
participation of the appellant in the murder, In Was in Khan v. The State of Uttar Pradesh (1), it was held that the recent and unexplained possession of stolen
property would be presumptive evidence against a prisoner on a charge of
robbery as also of a charge of murder. But it must depend upon the circumstance
of each case. The third piece of evidence to be considered is the recovery of
the pania i.e. scarf. No doubt there is no statement by the approver that the
scarf in which the dead body was taken was that of the appellant.
But a scarf has been found which the High
Court has held as belonging to the appellant and hairs were found on that
scarf. It was argued that the finding of the hairs was of no consequence and at
least the Chemical Examiner was not he proper expert who could depose as to the
similarity or other wise of the hairs. The writers on medical jurisprudence,
however, have stated that from the microscopic examination of the hairs it is
possible to say whether they are of the same or of different colours or sizes
and from the examination it may help in deciding where the hairs come from. In
733 Taylor's Medical Jurisprudence (1956 Edn.) Vol. 1, at page 122, sine cases
are given showing that hairs were identified as belonging to particular
persons.
Thus, we have besides the evidence of the
approver three important facts which connect the appellant with the commission
of the offence. His pointing out the dead body, his pointing out the silver
buttons of the deceased which were stained with human blood and the presence of
his hairs on a pania (scarf) on which there were the hairs of the deceases
also. In our opinion this would be sufficient evidence in the circumstances of
the present case to connect the appellant with the commission of the offence.
We, therefore, dismiss the appeal.
Appeal dismissed.
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