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PETITIONER: RAM LOCHAN AHIR

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 10/12/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: 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 super- imposed  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.

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853 There  was  no misdirection to the jury  insetting  out  the statement of the accused to the police which led to the dis- covery 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.

JUDGMENT: 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  brother- in-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 therefrom 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

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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 recoverd-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

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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

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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 any thing 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 involed 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

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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. The appeal fails and is dismissed, 862