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PETITIONER: BHIVA DOULU PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 29/08/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1963 AIR  599            1962 SCR  Supl. (3)  59  CITATOR INFO :  R          1970 SC  45  (21)  RF         1988 SC 672  (7)  RF         1991 SC1463  (5)

ACT: Criminal  Trial-Approver-  Corroboration, if  necessary  qua each  accused-Indian  Evidence  Act, 1872(1  of  1872),  ss. 114,133.

HEADNOTE: 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,

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(1916) 2 K. B. 658, referred to.

JUDGMENT: 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 respondents. 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 sometime.  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 recovered.

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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 accused. 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 person;                                    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

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             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   testimony   alone.               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-

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             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)  [1916] 2. K.B.658. 837