08 May 1970
Supreme Court


Case number: Appeal (crl.) 225 of 1969






DATE OF JUDGMENT: 08/05/1970


CITATION:  1970 AIR 1330            1971 SCR  (1) 617  1970 SCC  (2) 122

ACT: Indian  Evidence  Act  (1  of  1872),  ss.  133,  114,  ill. (b)--Evidence of accomplice and corroboration--Scope of.

HEADNOTE: Two accused father and son were convicted of the offence  of murdering  a  young  boy of 15 and the  offences  of  house- breaking  and theft next day, of articles from the house  of the  grand-father of the deceased in which the deceased  was living alone at the time of his murder.  The evidence mainly consisted of that of the approver, The corroboration of  the approver’s evidence as against one of the accused (the  son) consisted  of  the  following  :-(i)  on  the  day  of   the occurrence,  two witnesses saw the accused the approver  and another (a young boy of 15) wearing khaki shorts and a white shirt; (2) a few days later another witness saw a dead  body at the scene of the crime--a field, with khaki shorts and  a white  shirt; (3) the grand-father discovered the theft  and the  disappearance of his grandson when he returned  to  the house a week after the occurrence; (4) the approver, on  the date  of his arrest pointed out to the police the  scene  of the  crime where, among other things a shirt, a  chain,  and some bones were found-the shirt and chain were identified to be  those  of  the deceased-and  according  to  the  medical evidence  the  bones were those of a human  being,  possibly male;  (5)  the accused, after his arrest, produced  to  the police,  a  piece of cloth stolen from the  house;  (6)  the evidence  of pledge of a cycle and sale of a  cycle  carrier belonging  to the grand father of the deceased; (7) sale  of some utensils belonging to the grand-father of the deceased, by  the accused, after scrapping off the name; and  (8)  the finding  of  a  cloth belonging to the  grandfather  of  the deceased  in a tailor’s shop. which the accused hastened  to take  away,  when  he  learnt  that  the  grand-father   was questioning the tailor about the cloth. As regards the other accused (the father) the  corroborating evidence consisted of the following :- (1) there were  civil and criminal proceedings between him and the grand-father of the deceased over the possession of the house : (2) he  gave and sold several, articles and pieces of silver to a witness



who  was traced by the police as a result of the,  statement of  the  accused (son).  The articles were  produced  before police.  and  all of them except one lump  of  silver,  were identified  by’  the  grandfather of  the  deceased  as  his articles;  (3)  it was this accused who gave  the  piece  of cloth  to the approver who gave it to the, tailor and  which was hastily taken away by his son; and (4) he joined his son in the sale of cycle carrier. On the question whether the corroboration was sufficient  in law, HELD : In Sarwan Singh v. State of Punjab, [1957] S.C.R. 953 and in Lachi Ram v. State of Punjab, [1967] 1 S.C.R. 243, it was  held that the court should be satisfied : (1) that  the approver  or  accomplice was a reliable witness;  (2)  there must  be reliable corroboration of the approver’s  evidence; and  (3) there must be sufficient corroborative evidence  in material particulars to connect the accused with the  crime. The nature of 618 corroboration  is that it is confirmatory evidence  and  may consist   of   the  evidence  of  another  witness   or   of circumstances, like conduct of the accused.  When it is said that  corroborative evidence must implicate the  accused  in material  particulars it means that it is not-enough that  a piece  of evidence tends to confirm the truth of a  part  of the testimony to be corroborated.  It must confirm that part of the testimony which suggests that the crime was committed by the accused. [622 E-F; 625 A-B] In the present case, apart from the relationship between the two  accused,  there  was  also  close  association  in  the disposal  of  the  articles.  The close  proximity  of  time between  the  murder  and theft points  to  the  inescapable conclusion  that they formed part of the  same  transaction. Since  the transaction was one composite unit  of  murdering and committing theft, and it was found that the approver was a  reliable  witness, all the pieces  of  evidence  afforded sufficient  corroboration  of  the  approver’s  evidence  in material  particulars  and  proved  that  the  accused  were guilty’  of the offences with which they were charged.  [624 C-D; 625 D, E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.225  of 1969. Appeal  by special leave from the judgment and  order  dated December  18,  1962  of the Bombay High  Court  in  Criminal Appeal  No.  1426 of 1968 and confirmation Case  No.  21  of 1968. Yogeshwar Prasad, for the appellant. S. B. Wad and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Ray, J. This appeal by special leave is against the judgment dated  18  December,  1968  of  the  High  Court  at  Bombay dismissing the Appeal and confirming the conviction of  Moti alias  Narayan Sheshanna Yadav and Sheshanna Bhumanna  Yadav accused  No. 2 nd 3 respectively except that the  conviction of accused No. 2 of the substantive offence of murder  under section  302 was altered and accused No. 2 was convicted  of an offence under section 302 read with section 120B as  well as of offence under section 302 read with section 34 of  the Indian Penal Code.  The High Court confirmed the sentence of death passed against accused No. 3 Sheshanna Bhumanna Yadav. Accused  No. 2 son of accused No. 3 was at the time  of  the



judgment  of High Court of 17 years of age.  The High  Court reduced  the  punishment  of  accused  No.  2  to   rigorous imprisonment  for  life.   Accused No.  1  Hiralal  was  the domestic servant of Dr. Nanavati grandfather of the deceased Narendra.  Accused No. 2 is the son of accused No. 3. Accused  No.  1 Hiralal Jamnadas Joshi, accused No.  2  Moti alias  Narayan Sheshanna Yadav and accused No.  3  Sheshanna Bhumanna Yadav were charged with having entered into  crimi- nal conspiracy with approver Dinkar Sakharam between 19 619 December,  1967 and 4 January, 1968 at Deolali Camp for  the purpose  of committing the murder of Narendrakumar and  com- mitted house breaking and thefts in the house of his  grand- father  Dr.  Nanavati  and  disposed  of  the  property   so ’Obtained  and  caused the evidence of murder  to  disappear with  the intention of screening the offenders  from  lawful punishment and that these acts were done in pursuance of the said  criminal  conspiracy,  an  offence  punishable   under section 120B read with sections. 302, 454, 380, 414 and  201 of  the Indian Penal Code.  Accused No. 1 to 3 were  further charged with having committed the murder of Narendrakumar in complicity  with’  approver  Dinkar Sakharam  and  the  said murder  came  to  be  committed  in  furtherance  of  common intention  of  all the accused an offence  punishable  under section  302 read with section 34 of the Indian Penal  Code. They  were further charged under sections 201, 454,.380  and 411 of the Indian Penal Code. Dr.  Dalichand Nanavati the grand-father of deceased  Naren- drakumar who met unnatural and unfortunate end at the  hands of  accused  No.  2 and one  Dinkar  Sakharam,  subsequently turned  approver, resided at Deolali Camp at Dhondi Road  in bungalow  No. 17 for about 1 1 years.  He was  a  registered medical  practitioner.   At  the relevant  time  he  was  in pharmaceutical  business for the manufacture  of  medicines. The  head office was at Bombay.  The branch was at  Deolali. The  owner  of bungalow No. 17 was Narsanna  Bhumanna  Yadav brother  of accused No. 3. Narsanna was a person of  unsound mind and accused No. 3 was the holder of power of  attorney. Accused  No. 3 resided at the rear portion of  bungalow  No. 17.  The,  bungalow was agreed to be sold to  Dr.  Nanavati. There  were  civil  and criminal  proceedings  out  of  that transaction.  Bungalow No. 17 was eventually sold to a third party  on 11 May, 1964.  In the sale deed it was  said  that possession of the portion in the occupation of Dr.  Nanavati would  be  handed over to the vendee  when  the  proceedings pending  against  Dr.  Nanavati  concluded.   Dr.   Nanavati succeeded in those proceedings.  Therefore, possession could (not be given by the vendor to the vendee. In  the  month of November, 1967 Dr.  Nanavati’s  wife  left Deolali  -for Jodhpur.  Dr. Nanavati also left  Deolali  and went to his native place leaving his grandson Narendra,  who was  about  15  years of age in the care’  of  his  domestic servant accused No. 1. The prosecution case was as follows.  Accused No. 3  thought that  Dr.  Nanavati’s  departure from  Deolali  leaving  his grandson Narendra at the bungalow in charge of the  domestic servant  was a good opportunity to commit theft of  articles in  the  house of Dr. Nanavati and to  murder  his  grandson Narendra 620 with  a  view  to frightening Dr.  Nanavati  to  vacate  the bungalow  Accused No. 3 called Dinkar on 19  December,  1967 and  suggested to Dinkar that the latter should  commit  the murder of Narendra after 21 December, 1967 when Dr. Nanavati would .leave the bungalow and his grandson Narendra would be



there  with the domestic servant.  Accused No. 3 proposed  a reward .to Dinkar, namely,, a motor cycle and a further  sum of  Rs. 100 Accused No. 3 told Dinkar that the said  accused had  committed  two murders prior to that date  but  nothing happened to him.  Dinkar at first expressed his inability to undertake  the  job.  Accused No. 3 then  said  that  Dinkar should  take accused No. 2 who was the son of accused No.  3 for the job. Accused  No.  2  and Dinkar  started  getting  familiar  and ,’friendly with Narendra.  They visited his house regularly. They  moved  about  with Narendra.   On  25  December,  1967 accused  No.  I the domestic servant of  Dr.  Nanavati  left Deolali  ’and  -went  to  Bombay.  Accused  No.  2  and  the approver  Dinkar  took Narendra out with  the  intention  of murdering  him  but because of ,certain  interruptions  they could  not  muster courage to achieve that  object.   On  27 December, 1967 accused No. 3 called Dinkar and told him  and accused No. 2 that he was going to Nasik in connection  with some court work and they should murder Narendra and that  he would look to everything after his return from Nasik.  Nasik is about 5 or 7 miles from Deolali Accused  No.  2 and Dinkar took Narendra to  a  lonely  area beyond  Barne’s  High School on the  pretext  of  collecting clothes from a washerman and went to the house of the latter and collected a couple of garments.  Thereafter they went to a  grarden  where they drank water and then went to  a  open field.   There  they plucked fresh  groundnuts  and  started eating  them.  Accused ’No. 2 and Dinkar took Narendra to  a jowar field.  Dinkar gave ,a blow with his hand on the  neck of  Narendra  as  a  result of  which  Narendra  fell  down. Accused No. 2 and Dinkar held Narendra tightly.  Dinkar  set upon  his abdomen and started ,choking his throat with  both his  hands  and  accused No. 2 gagged his  mouth  and  nose. Dinkar gave blows on Narendra’s abdomen.  After Narendra was choked for about 10115 minutes, be breathed his last. Accused  No. 2 then asked Dinkar to take out the key of  the ’bungalow  which he had seen Narendra putting in his  pocket and  Dinkar  removed the key and gave it to accused  No.  2. Accused  No.  2 scraped some earth and dug a small  pit  and placed  Narendra in it, face downwards, and covered it  with some loose earth.  Accused No. 2 and Dinkar then returned to the house of accused No. 3. On being told that accused No. 2 and Dinkar had ac- 621 complished  the murder of Narendra accused No. 3  was  happy and gave them Rs. 1 0 to celeberate the occasion by seeing a picture.   Accused No. 3 told accused No. 2 and Dinkar  that the following day they must take out all the goods from  the house of Dr. Nanavati and hand them over to him. - When Dinkar went to the house of accused No. 3 the following morning,  Dinkar heard accused No. 2 and 3 saying that  )Dr. Nanavati  would  not be able to live in  that  bungalow  any ,longer.  Accused No. 2 and Dinkar then went to the bungalow of  Dr. Nanavati and opened the lock with the key which  had been  removed  from Narendra’s pocket.  Accused No.  2  and’ Dinkar locked the front door from outside and kept the  back door ajar and removed a large number of articles which  were in  cupboards which they opened with the help of a bunch  of keys  which  they  found in the house.  Accused  No.  2  and Dinkar  again  went to the bungalow of Dr. Nanavati  on  the subsequent  day.  They removed two cycles and several  other articles and. handed them over to accused No. 3. Accused No. 3  gave  to  the approver Dinkar a cycle  and  some  of  the property  which  had been recovered from the  house  of  Dr. Nanavati.



Dr.  Nanavati returned to Deolali along with his wife on  4- January,  1968.   They  found the front door  of  the  house locked.  They made enquiries.  Ultimately, they entered  the house by breaking open the lock and found that Narendra  was not  in the house, that the whole house had  been  ransacked and  the  back  door was ajar.  Dr.  Nanavati  reported  the matter  to  the police.  Clue was furnished by  a  piece  of cloth which had been stolen from the house of Dr.  Nanavati. That  piece of cloth had been given by accused No. 3 to  the approver  Dinkar  who gave it to a tailor named  Thakur  for stitching a pair of trousers for him.  Dr. Nanavati happened to  go  to the shop of Thakur and made enquiries  about  the piece  of  cloth  which  was found  in  the  tailor’s  shop. Accused  No.  2  and Dinkar took away  the  cloth  from  the tailor’s  shop  when they heard of the enquiries  about  the piece  of  cloth.   Dinkar gave some money  to  the  tailor. Dinkar  and  accused No. 2 raised some money by  pledging  a cycle  which  they had with them.  The police  came  to  the tailor’s  shop, made enquiries and ultimately accused No.  2 and  Dinkar  were  arrested on  23  January,  1968.   Dinkar pointed  out  the place of the occurrence to the  police  on that  day.  On 24 January, 1968 some human bones were  found at  that  place.   On 25 January, 1968  accused  No.  3  was arrested.  Dinkar and accused No. 2 made various  statements and  led  the police to various  places.   Several  articles stolen from the house of Dr. Nanavati were recovered.  On 12 February,   1968   Dinkar  made  a   full-fledged   detailed confession. 622 In  the High Court three questions were  canvassed.   First, whether  there  was corroboration in regard  to  the  crime. Secondly,  whether  there  was corroboration  in  regard  to accused No. 2 ,and 3 being guilty of the offence.   Thirdly, whether there was corroboration in regard to the  approver’s story  about the conspiracy and the common intention by  way of a pre-conceived plan to murder Narendra.  The High  Court found  that  there was corroboration of the  evidence  which connected accused No. 2 3 not only with the offence of theft but  also  with  murder.  The High Court also  came  to  the conclusion  that there was corroboration of the evidence  of Dinkar  in material particulars in regard to the  connection of  the  accused  with  the  crime  and  in  regard  to  the conspiracy as well as the common intention. The  law with regard to appreciation of approver’s  evidence is based on the effect of sections 133 and 114  illustration (b)  .of  the Evidence Act, namely, that  an  accomplice  is competent  ’to  depose but as a rule of caution it  will  be unsafe to convict upon his testimony alone.  The warning  of the  danger  of  convicting on  uncorroborated  evidence  is therefore given when the evidence is that of an  accomplice. The primary meaning of accomplice is any party to the  crime charged  and some one who aids and abets the  commission  of crime.    The  nature  of  corroboration  is  that   it   is confirmatory evidence and it may consist of the evidence  of second  witness or of circumstances like the conduct of  the person  against  whom it is  required.   Corroboration  must connect or tend to connect the accused with the time.   When it  is said that the corroborative evidence  must  implicate the accused in material particulars it means that it is  not enough  that a piece of evidence tends to confirm the  truth -of  a  part  of the testimony  to  be  corroborated.   That evidence  must  confirm  that part of  the  testimony  which suggests that the -crime was committed by the accused.  If a witness says that the accused and he stole the sheep and  he put the skins in a certain place, the discovery of the skins



in  that  place would not corroborate the  evidence  of  the witness  as against the accused.But if the skins were  found in the accused’s house, this wouldcorroborate  because   it would  tend  to confirm the statement that the  accused  had some hand in the theft. This Court stated the law of corroboration ofaccomplice evidence  in several decisions. One of the earlier  decision is Sorwan Singh v. State of Punjab(’) and the recentdecision is  Lachi  Ram  v. State of  Punjab(’).  In  Sarwan  Singh’s case(’)this Court laid down that before the court would look into the (1) [1957] S.C.R. 953.     (2) [1967] 1 S.C.R. 243 623 corroborative evidence it was necessary to find out  whether the  approver  or accomplice was a reliable  witness.   This Court  in  Lachi Ram’s case(’) said that the first  test  of reliability of approver and accomplice evidence was for  the court  to  be satisfied that there  was  nothing  inherently impossible in evidence.  After that conclusion is reached as to  reliability corroboration is required. - The rule as  to corroboration  is based on the reasoning that there must  be sufficient corroborative evidence in material particulars to connect the accused with the crime. In  the present appeal, counsel on behalf of  the  appellant ;contended  that  there was no corroboration of  the  actual participation in the murder and secondly that accused No.  3 could be guilty of theft ’but not of murder.  The  washerman said  that  Dinkar was his classmate and through  Dinkar  he came to know accused No. 2. The washerman further said  that he  used  to wash the clothes of accused No. 2  -and  on  27 December,  1967  Dinkar  and  accused  No.  2  came  to  the washerman’s  house  to take out a few clothes which  he  had washed  for them.  The washerman also said that  Dinkar  and accused  No. 2 had with them a boy who was of fair skin  and wore khaki shorts and a white shirt, Mohan  Lal Boob, an agriculturist gave evidence that  on  27 December,  1967  he was watering the crops.   Three  persons turned  up one of whom was accused No. 2 and the  other  was known  to  him by face and the third was a boy of 14  or  15 years  of age, wearing khaki shorts and a shirt.  Mohan  Lal Boob said that he saw all of them sitting down in the field, drank  water  and  purchase radishes from a  woman  who  was sitting nearby. It  may be difficult to find corroborative evidence  of  the actual  killing.   Dinkar showed the  place  of  occurrence. Eventually,  a few things were discovered there,  namely,  a shirt, a chain, a skull having the upper jaw with 13  teeth, a  bone,  bunch  of hair.  These things  were  found  on  28 January,  1968.  The shirt and the chain were identified  by Dr. Nanavati and his wife to belong to Narendra.  A girl  of 14 named Garadin Bride who was a classmate of Narendra  said that  Narendra  wore  a chain similar to the  one  that  was shown.   The medical evidence was that the bones were  those of  a human being probably a male.  Beyond that the  medical evidence  does not assist the prosecution.  The’ High  Court found  that the death of Narendr’a was not disputed  because it was put to Dinkar in cross examination that it was Dinkar alone who killed Narendra.  Therefore, the medical  evidence as to the skull and the bone is not of importance in view of the death of Narendra.  Dr. Nanavati en- (1) [1967] 1 S.C.R. 243. 624 tered  the  house by breaking open the lock.  He  found  the back  door  left ajar.  The key which was  produced  by  Dr. Nanavati was found to fit the lock though the lock could not



be  operated  with  the key in view of  the  fact  that  Dr. Nanavati  had  broken  it open for gaining  entry  into  the house. There, is also evidence of Kisan Prasad that after Christmas day in 1967 he saw a dead body which had on it khaki  shorts and  white shirt.  If the murder of Narendra and  the  theft were  not parts of the same transaction, Narendra would  not have  been  taken out to the field to be murdered  there  to eliminate the possibility of detection.  The close proximity between   murder  and  theft  points  to   the   inescapable conclusion  that they formed part of the  same  transaction. Narendra  was  seen alive by Kewal Ram, owner of  the  betel shop on 26th December, 1967.  Hira Lal, the domestic servant of  Dr.  Nanavati left Deolali on 25  December,  1967.   The theft  could  not  have been  committed  before  the  murder because  in that case there would be complaint  by  Narendra and  the  house in that case would also have been  broken  I open  for committing the murder.  All these  features  prove that  the murder and the theft formed the  same  transaction and  were committed by the same persons.  Narendra was  seen alive in the company of accused No. 2 and Dinkar.  That  was the  evidence of the washerman as also of the  agriculturist Mohan  Lal  Boob.  These witnesses  further  identified  the shorts and shirt of Narendra. Accused  No. 2 produced the piece of cloth which  was  iden- tical with the cloth of the matteress cover produced by  Dr. Nanavati.   Both  the  pieces  of  the  cloth  were  of  the identical design.  The pledging of the cycle by accused  No. 2 is of significance.  The cycle was identified both by  Dr. Nanavati  and his wife.  The next piece of evidence is  that accused  No.  2 sold some utensils to Gadekar.  One  of  the utensils  was  found  to have a name  thereon  scraped  off. There was also a piece of hand-writing with the signature of accused No. 2 at the foot of it and that was the list of the articles  sold to Gadekar.  There were some  articles  found from the tailor’s shop.  The evidence of the tailor was that that  those  articles  were  given by  accused  No.  2.  The discovery of the chain which Narendra wore was identified by Dr. Nanavati.  Accused No. 2 sold a cycle carrier to Rupvate on  16  January,  1968.   The  sale  of  that  article   was discovered on 23 January, 1968.  Dr. Nanavati identified the cycle carrier.  That identification was not challenged.  All these pieces of evidence prove the connection of accused No. 2 with the crime. With  regard  to accused No. 3 it is found that  there  were civil and criminal proceedings between him and Dr. Nanavati. 625 Accused No. 3 had the motive not only to make it  impossible for Dr. Nanavati to stay in the bungalow but also to  commit theft in his house.  Accused No. 3 gave several articles  to a,  person  called  Takalkar.  Takalkar  bad  dealings  with accused No. 3-in the past.  Takalkar said that accused No. 3 gave  him  some pieces from silver idols  and  other  silver articles  and  wanted  money  by  disposing  of  the   same. Takalkar  purchased the entire silver material from  accused No.  3 for Rs. 175.  Takalkar also said that at the  request of accused No. 3 he kept that bag of utensils in his  godown and  gave  the  key  of the godown  to  accused  No.  3  who afterwards returned the key The police cam,-, to the shop of Takalkar and he was asked to produce the gunny bag which  he did.   The  articles  in the gunny bag were  taken  and  the articles excepting the lump of silver were identified by Dr. Nanavati  and  by  his wife.   The  identification  was  not challenged in cross-examination.  It is obvious that  silver lump  could  not be identified.  At this stage it is  to  be



noticed  as to whether there is evidence to connect  accused No.3 with murder.  The transaction was one composite unit of murdering Narendra and committing theft. The discovery of articles in the godown of Takalkar was as a result of a statement by accused No. 2. The name of  accused No.  3  was  found  in  the  note-book  of  Takalkar.    The relationship  of  father and son between accused No.  3  and accused No. 2 is not to be lost sight of.  Accused No. 2 and 3  went together for the sale of cycle carrier  to  Rupvate. The High Court rightly came to the conclusion that there was sufficient  corroboration  of  the  evidence  of  Dinkar  in material particulars and that Dinkar was a reliable  witness and  it was proved that accused No. 2 and 3 were  guilty  of the  offence,  In view of the fact that  there  was  capital sentence  of accused No. 3 we went through the  evidence  to find out as to whether there was any infirmity in  evidence. We have found none. The  appeal therefore fails.  The accused-will surrender  to his bail. if any. V.P.S.                         Appeal dismissed. 13 Sup.  C.I./70-11 626