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PETITIONER: KANBI KARSAN JADAV

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 24/01/1962

BENCH: KAPUR, J.L. BENCH: 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

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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.

JUDGMENT:      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

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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

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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. 302.      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

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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 Wasin  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,

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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.