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PETITIONER: JNANENDRA NATH GHOSE

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 08/05/1959

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1959 AIR 1199            1960 SCR  (1) 126

ACT: jury  Trial-Misdirection-Approver-Reliability-Corroboration- Indian Evidence Act, 1872 (1 of 1872)s. 133

HEADNOTE: 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 misdirections 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, [1957] 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 misdirections 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, [1957] S.C.R. 953, dis- tinguished. 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.

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JUDGMENT: 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 November 1955. H.   J. Umrigar and D. N. Mukherjee, for the appellant. K.   B.  Bagchi,  P.  K.  Ghosh for  P.  K.  Bose,  for  the respondent. 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

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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 this Court. 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  circum- stances.  " 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)  [1957] 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.

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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  cor- roboration 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

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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

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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 deceased. 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

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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 the crime. 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. Appeal dismissed. 137