14 March 1956
Supreme Court


Case number: Appeal (crl.) 28 of 1955






DATE OF JUDGMENT: 14/03/1956


CITATION:  1956 AIR  379            1956 SCR  247

ACT:        Crime,  perpetration of-A person present but not  aiding  or        abetting-Whether principal or accessory-Corroboration of the        statement  of a single witness against accused-What the  law        requires.

HEADNOTE:        There  is no warrant for the extreme proposition that  if  a        man  sees  the  perpetration of a crime and  does  not  give        information of it to anyone else, he might well be  regarded        in law as an accomplice and that he could be put in the dock        with the actual criminals.         A  person may be present, and, if not aiding and  abetting,        be neither principal nor accessory; as, if A, happens to  be        present at a murder and takes no part in it, nor  endeavours        to prevent it, or to apprehend the murderer, this course  of        conduct  will not of itself render him either  principal  or        accessory.        Russell on Crime, 10th Edition, p. 1846, referred to.        33        248        In  the matter of corroboration of the evidence of a  single        witness  against the accused what the law requires  is  that        there  should be such corroboration of the material part  of        the  story  connecting the accused with the  crime  as  will        satisfy  reasonable minds that the man can be regarded as  a        truthful  witness.   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 nature of the  corroboration        will  depend  on  and  vary  according  to  the   particular        circumstances of each case.        Rex v. Baskerville (1916) 2 K.B.D. 658, referred to.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 28  to        31 of 1955.        Appeals  by special leave from the judgment and order  dated        the  11th  February,  1953 of the Hyderabad  High  Court  in        Criminal Appeals Nos. 1260 to 1263 of 1951/1952 arising  out



      of  the judgment and order dated the 6th November,  1951  of        the  Court  of the Sessions Judge at  Warangal  in  Original        Criminal Case No. 127 of 1950.        H.   J. Umrigar, for appellant No. 1.        K.   R. Choudhry, for appellants Nos. 2 to 4. Porus A. Mehta        and P. G. Gokhale, for the respondent.        1956.  March 14.  The Judgment of the Court was delivered by        CHANDRASEKHEARA AIYAR J.-The four appellants and two  others        named  Sheshaya  and Pitchi Reddy, who are  all  communists,        were  charged with the murder of one Venkatakrishna  Shastry        who was a Congress worker or leader.        The  appellants were convicted of the offence but the  other        two   were  acquitted  by  the  Sessions  Judge,   Warangal,        Hyderabad State, on the astounding ground that no overt acts        were proved against them.  The appellants preferred  appeals        to  the  High  Court at Hyderabad and there  was  the  usual        reference for confirmation of the death sentences imposed on        them.   The  appeals  were heard by a  Bench  consisting  of        Deshpande J. and Dr. Mir Siadat Ali Khan J. and        249        they disagreed with each other.  Deshpande J. held that  the        evidence  did not establish the guilt of the appellants  and        be  acquitted them.  On the other band, Dr. Mir  Siadat  Ali        Khan  came  to  the  conclusion  that  the  prosecution  had        established its case beyond reasonable doubt.  He  confirmed        the  convictions but reduced the sentences  to  imprisonment        for  life.  Owing to this difference of opinion, the  matter        was  referred  to a third Judge, Manohar Pershad J.  and  be        agreed with the finding of guilty given by his learned  bro-        ther  Dr. Mir Siadat Ali Khan.  We granted special leave  to        the appellants to come before this court.        The facts of the occurrence, as alleged by the  prosecution,        are  these.   On  the evening  of  19-1-1949,  the  deceased        Venkatakrishna Shastry of the village of Maturpeta and  five        other  persons,  who were Congress workers  like  him,  were        returning to the village from a tank.  One of the  communist        leaders called Nagabhushan Rao had been arrested a month  or        two  previously  and  the  communist  party  believed   that        Venkatakrishna Shastry was responsible for the arrest.  So a        large  group  of  communists,  about  25  or  30  in  number        including  the accused, armed with guns and swords,  paid  a        visit  to Maturpeta to wreak vengeance against the  Congress        group  led  by Venkatakrishna Shastry.  They  ran  into  the        Congress  group  as they were getting back  to  the  village        after the evening stroll.  P.W. 14, a dhobi boy named  Gopai        was  one  of  the camp followers of  this  communist  group.        Venkatakrishna Shastry and his co-workers were tied up  with        their  own clothes and were led to the village chavadi  over        which  a Congress flag was flying.  A rope was brought  from        the house of P. W. 17 and the members of the Congress  group        were tied with this rope and led some distance away from the        village to a red-gram field, and all of them were beaten  by        their  enemies;  except Shastry, the rest were  driven  away        from the place.  Shastry was tied with the rope and taken in        the  eastern  direction  by Mangapaty (the  dalam  or  troup        leader)  and the accused.  P. W. 14 was following the  group        carrying  a  bundle of their clothes on his head.   After  a        short halt at the village of        250        Suknevedu, where some food was taken, the party went towards        a  mango-tope near a brook, four or five miles away  leading        Venkatakrishna Shastry as the captive.  The deceased,  Gopai        (P.W.  14) and some of the accused remained on the  bank  of        the  brooklet.  The others went a little beyond and  one  of        them  came  back  with orders  that  Venkatakrishna  Shastry



      should  be fetched.  Venkatakrishna Shastry was taken  along        and  when the moon was at the meridian, the rope with  which        he  was led was tied round the neck of the deceased  into  a        noose.   Two of the accused pulled one end of the  rope  and        two  others  at  the  other  end  in  opposite   directions.        Venkatakrishna  Shastry was thus strangled to death.  A  pit        was dug and the body of Venkatakrishna Shastry was buried in        the  river-bed.   P.W. 14 saw all this from  a  distance  of        twenty yards in clear moonlight.        Two or three days later, after some wanderings in the jungle        and  mountain-dens P.W. 14 left the company of  his  masters        who  were implored by the boy’s father P.W. 7 to permit  him        to take the boy away.        Next  morning a report was sent by P.W. 2 the  police  patel        about   the   abduction  of   Venkatakrishna   Shastry   and        investigation was begun.  On 8-2-1949, that is about  twenty        days  after the occurrence, some bones of a human-body  were        discovered  in  the  riverbed as the  result  of  crows  and        vultures hovering round the place.  The police Patwari (P.W.        10) sent a report about this discovery.  The police  arrived        on  the scene and exhumed the body which was  identified  as        that  of Venkatakrishna Shastry.  This was on 9-2-1949.   It        was sent for postmortem examination.  The condition in which        the  body  was  at the time of exhumation  is  stated  in  a        panchnama  that  was  then prepared.   The  results  of  the        postmortem examination are spoken to by the doctor P.W. 7.        Being the only witness for the commission of the crime,  the        dhobi boy (P.W. 14) was subjected to severe criticism by Mr.        Umrigar  who  held the dock brief for  the  appellants.   He        described  him as an accomplice and as an  unmitigated  liar        and  he asked us not even to look at his evidence.  P.W.  14        does not satisfy the        251        definition of an accomplice; he falls somewhat short of  the        requirements   which  would  confer  on  him  this   status.        According to the evidence, he left his parents’ roof after a        quarrel  with his father and while wandering in the  jungles        he  was picked up by the communists only 3 days  before  and        taken  as  their servant on promise to give him  food.   His        main duty appears to have been to go with the group carrying        their  bundles  of  clothes on his head.   It  was  in  this        capacity  that he was not only able to see the abduction  of        the deceased but also to witness the actual murder.  He took        no part whatever in the commission of the offence or in  any        active  or passive preparations for the same.  He was not  a        particeps  crimines.   After securing his release  from  his        temporary  masters,  he  went back with his  father  to  the        village.   It is true he did not divulge the secret  of  the        murder  to any one else except to his own father.   But  who        would,  in  view  of  the  atrocities  and  terrorism   that        prevailed  in  that  region during the  relevant  time?   It        required a very courageous man to have proclaimed the truth,        needless  of consequences to himself, And we  cannot  credit        the  dhobi  boy with so much of fearlessness.   The  learned        counsel urged that if a man sees the perpetration of a crime        and does not give information of it to anyone else, he might        well  be regarded in law as an accomplice and that he  could        be  put  in the dock with the actual criminals.   There  is,        however, no warrant for such an extreme proposition.  On the        other  hand,  the following short passage  from  Russell  on        Crime, 10th Edition, page 1846, will show its untenability:-        "But  a  person  may  be present, and,  if  not  aiding  and        abetting,  be  neither principal nor accessory;  as,  if  A,        happens  to be present at a murder and takes no part in  it,        nor endeavours to prevent it, or to apprehend the  murderer,



      this course of conduct will not of itself render him  either        principal or accessory".        Indeed,  there  can be no doubt that the evidence of  a  man        like P.W. 14 should be scanned with much caution and we must        be fully satisfied that he is a witness of truth, especially        when no other person        252        was  present at the time to see the murder.  Though  he  was        not  an  accomplice, we would still  want  corroboration  on        material  particulars in this particular case, as he is  the        only witness to the crime and as it would be unsafe to  hang        four  people on his sole testimony unless we feel  convinced        that he is speaking the truth.  Such corroboration need not,        however, be on the question of the actual commission of  the        offence;,  if this was the requirement, then we  would  have        independent testimony on which to act and there would be  no        need  to rely on the evidence of one whose position may,  in        this  particular case, be said to be somewhat  analogous  to        that  of an accomplice, though not exactly the  same.   What        the law requires is that there should be such  corroboration        of  the  material part of the story connecting  the  accused        with the crime as will satisfy reasonable minds that the man        can be regarded as a truthful witness.  In the leading  case        of Rex v. Baskerville(1) it was pointed by Lord Reading C.J.        that "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 nature of the corroboration will depend on  and        vary according to the particular circumstances of each case.        What  is required is some additional evidence  rendering  it        probable  that the story of the accomplice is true and  that        it is reasonably safe to act upon it.        Judged  by this test, we can say that the evidence given  by        P.W.  14 has been amply corroborated.  It was  not  disputed        for   the  appellants  that  there  is   abundant   evidence        consisting of the testimony of several witnesses in  support        of the truth of the narrative given by P.W. 14 regarding the        abduction  of the deceased.  This evidence was given not  by        mere  onlookers but by men like P.Ws. 3, 4, 5, 6 and 9,  who        were  with the deceased when the communist group  came  upon        them  and  who were themselves badly beaten up by  the  gang        before being released from, impending death at the  merciful        intervention of        (1)  [1916] 2 K.B.D. 658        253        some one of them.  They say that at the time of the  release        the  accused  retained the deceased with them and  took  him        away in the direction of Mulgupad.        From  this stage, P. W. 14 takes us to the river bank  where        the  deceased and he were allowed to sit.  The accused  went        into  the river bed and later on orders were issued  by  the        appellant  No.  1, the deceased was led by a rope  from  the        bank  by Muthyalu (4th appellant).  The rope was tied  round        the neck of the deceased into a noose and pulled in opposite        directions  by two of the accused on each side  and  Shastry        was  thus strangled to death.  His body was buried in a  pit        dug  in the river bed.  The rope which was found  round  the        neck of the dead body when it was exhumed is said to be  the        rope  with which P.Ws. 3 to 6 and 9 were tied up and as  the        one  that the members of the gang brought from the house  of        Silam  Brahmareddi (P.W. 17) earlier that evening  when  the        village was raided and the Congress workers were marched  to        the Congress flag.        There  is also evidence that the party of the  accused  when        they  first encountered the party of the deceased asked  who



      and  where was Venkatakrishna Shastry.  The assailants,  who        were armed to the teeth, indulged in threats to kill all  of        them.   The  deceased was a Congress leader and  it  is  not        surprising that he was singled out for terrific  punishment,        while  the  others were let off with a  good  thrashing  and        admonitions  that they should give up their  Congress  affi-        liations.  It is but natural in the circumstances that  they        should take away the deceased to a distant place to do  away        with him.  That he was so led by the group of the accused is        also corroborated by the evidence of Yesob (P.W. 12) who was        watching  his  jawar  crop on the night  in  question  in  a        neighbouring field.        Let  us  now turn to the exhumation of the  dead  body,  the        inquest report, the postmortem certificate, and the evidence        of  the doctor (P.  W. 7).  The patwari of  Sakrivedu  (P.W.        10)  sent  a report on the 8th February, 1949, that  he  had        information  that a dead body lay buried in  the  river-bed.        The report has not        254        been  filed but its purport about the condition of the  body        is  given  in  the inquest report  as  unidentifiable.   Two        police sub-inspectors and some constables reached the river-        bed  the same day and exhumed the body.  Its then  condition        is described in these words in the inquest report:        "It was noticed that a rope of Chinna and Ambara was wrapped        from neck to the waist.  Both hands were missing and out  of        the two legs one was attached to the body with little flesh.        The  bones of the other separated leg (the down part of  the        knee)  and  the  bones of one hand were found  in  the  pit.        There  were some hairs in the head.  The flesh of  the  face        was rotten and decayed.  Teeth are safe and sound.  There is        rotten flesh from the neck to the buttocks.  It appears that        this dead body is of a Hindu Brahmin".        The panchnama is signed by two persons, one of whom HAS BEEN        EXAMINED AS P.W. 16.  He, along with the witnesses who  gave        evidence as co-sufferers with the deceased in the  communist        raid  of that evening, have identified the body as  that  of        Venkatakrishna Shastry.  The doctor’s postmortem certificate        is exhibit 2 and according to it the body was petrified  and        even the marks of strangulation could not be detected;  both        the  palms  had  been cut out, the  left  hand  was  severed        completely;  there  was  only  the  left  eye  in  a  rotten        condition;  the right eye was not found, the right  ear  was        not there.  Examined as P.W. 7, the doctor has said that the        face of the corpse could not be identified, as the scalp was        eaten  away by mud, and the bony structure of the  face  was        present.        In  the face of this evidence, the learned counsel  for  the        appellants  contended  with much force  that  identification        must  have been impossible and that the witnesses who  speak        to  the  same  should be  disbelieved.   Two  factors  are,,        however,  overlooked in this argument.  Though the body  was        in an advanced state of decomposition and many parts of  the        limbs were missing and even the flesh in the face was  gone,        it would not have been difficult for close associates of        255        Venkatakrishna  Shastry to say that it was his corpse,  from        the  general  features form, outline, contour build  of  the        body,  and  the  appearance of such of  the  limbs  as  were        available to see.  His friend Madhusudhana Rao, P.W. 15, was        working  with  the deceased for some years in  the  Congress        office  and  knew him well indeed.  There  is  his  evidence        about   identification.    More  important  still   is   the        identification  of the rope round the neck of the body,  the        dhoti with the violet border that was on its waist, and  the



      janjam  or the holy thread.  The rope was brought  from  the        house  of Brahma Reddy (P.W. 17).  It was the one which  was        tied  in  loops round each member of the Congress  group  as        they were led from the village to the redgram field; it  was        the rope that was used to lead Venkatakrishna Shastry to the        brooklet; and it was the rope that was found round the  neck        of the dead body when it was unearthed.  The bordered  dhoti        which was on the corpse belonged to Venkatakrishna  Shastry.        From these external marks, and the general features, friends        of the deceased like P.Ws. 3 to 6 and 9 and P.W. 17 in whose        house Shastry was living could say, we think, that the  body        buried  in  the waist-deep pit in the bed of the  river  was        that of Venkatakrishna Shastry.        Whether  he  is  regarded as an accomplice or  as  the  sole        witness of the offence P.W. 14 has been corroborated in such        a  manner  that his evidence about the steps  taken  by  the        accused immediately prior to the perpetration of the  murder        carries  conviction  to our minds.  The  connection  of  the        accused  with the crime must be held to have been made  out.        We have also to accept that the dead body recovered was that        of Venkatakrishna Shastry and no question of the absence  of        the body arises.        For  this gruesome and revolting murder the appellants  have        got  only  imprisonment  for life for  which  they  must  be        thankful  to the difference of opinion that arose among  the        learned Judges of the High Court.        The appeal fails and is dismissed.        34        256