Kanbi Karsan Jadav v. State of Gujarat

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 Bench) at Rajkot in Criminal Appeal No. 84 of 1958. N·ur-ud-din Ahmed and K. L. Hatki for appel· lant. H. R. Khanna and R.H. Dkebar, 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, Gohihvad, under ss. 302 and 21)1 of the Indian Penal Codu for the murdPr of Kanji aud they were sentenced to imprisonment for life under the former section and to seven years' rigorous imprisonment under the latter. The sentenc" were eoncur-r«nt. On appeal the High Court set aside the conviction Konbi liarsan Jadao litale of Gujar•I Kap"' J. '962 KwiKu- Jq .. SW. of GujOT•I K-J. 728 SUPREME COCltT REPORTS [1962] SUPP. of Nanji Ravji but upheld the convictions and l!t'n· tenccs of the appollant and Karamshi Bhawan.

The appellant has come in appeal to this Court by Special leave. The deceased Kanji was rather an unsavoury character in villag<i Chirodo. and it is alleged that he had a illicit connection with Shrimati ::,bantu the sistor 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 tile appellant. With that ohjcct in ·view Gumansinh approver wns 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 therl' 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 tho deceased and was carried by the appellant from the place of the murder to the dry bed of the river and there it was hurried in a pit. Nothing was heard of the murder or of the deceased till on March 26, 1958, a brother of the deoeased ma.do 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 t-f the police, was allowed to go to the village and he asked the help of Shamji and Manila! P.Ws. He also made a confeBSion to them and they reported the matter to the police. On March 31, 1958, Gumansinh and Karamshi ma.de confcasions 2 s.c.R. SUPREJ-IE COURT REPOR'£ci 72ll which were recorded by a Magistrate. Between March 26 and March 31, recoveries of variotts articles. were m1td~.

At the instance of the appellant, it is stated, the dead body and then the head of the deceased was recovered from a lfoitant well. At tho instance of Nanji en :Vlarch 28, 195S a scDrf was, discovered in the pit in which the dearl body was according to the approver, buried. On the scarf, !here were some hairs which on analysis by the Chemical Examiner were fonnd to be similar to the hairs of the appellant and of the deceased. A day previous, i. e. March :!7, 1958, at the instance of the appellant silver buttons which were stained with human blood were discovered from the fieH of the appellant at small stick like a button belonging to the deceased was also found at his instanue. 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 regnrd to him of the apprl•Ver's statement, the place where the dead body was buried was not dis<'overed 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 agamst 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-stamed buttons also at his instance and attached importance to scarf renovered 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 of the deceased. 1 62 Kanbi Karsan J11dav State (Jf G~iarat Kapur J. Ktnthi Ktrrsan Jadao StaU of Gu;arat Kapur J. 730 SUPREME COlRT REPORTS ll962) SUPP. It was argued for the appellant that the <'Vidence 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 appr1Jver had btated that the dead body was buried in a pit in the dry bed of the river but wht•n thl\t pit was dug up the dead body was not found there and unly a piece of ulna bone and a heel of a human foot were found and all these recoveries had be(·n made earlier and so could not be ca.lied corroborative in material particulars. It was further submitted that there was no evidence to show as to when ;ind how the body of the deceased was removed from tho pit, dismembered and thrown into the well. 1 he recovery of the scarf, it was pointed out, was all innocuous circumstance because on tht> evidence produced it had not been shown to belong to the appellant but to hiR father and th(' evidencc of the Chemic'.\! Examiner was not sufiicieut, 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 ancl his evidence was not admiBBible under s.

4i) of the Evidence Act, and at the most, according to tho Chemical Examiuer's report the hairs resembled those of the appeilant. And secondly according to the approver the dead body of the deceased was wrapped in his own pania (scarf). lt was further submitteci that the statement in regard to tho recovery of the trunk and the head will only show that tho appellant knew where tho trunk and the head were, which at the most would lead to an inference of an offence under s. :10 l and not of s. 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 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 wiil depend on and vary with the circumstances of each case. Vemireddy Satyanarayan Reddy v. The State of Hyderabad('). The confessional statement mad(• by the approver on March 31, 1958 gave the following facts connecting the appellant with the murder. ( l) The appdlant gave dharia blow to the decl'Jased. The dharia bad li!ready 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 scad in which it was bound belonged to the appellant. The next fact stated by 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 h11d 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 commited. 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 tile pit, the head had already been discovered and the trnuk had also been taken out of the well. In these circ•umstances 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 uot to be very helpful to the prosecution. Firstly, thern is the pointing out of (I) [1956] S. C.R. 247. 252. Karibi Karsan Jridov State ,,JG1ljara( Kap•1r J. 1\anbi K <d1tU1 Jadori Stolt of Gijrutll Kap"' J. 732 SUPHEME COl:RT REPORTS [1962]

SUPP. tho dead body by the appellant from the well ; secondly, the di8covery of the blood-stained (stained with human blood) buttons nt the instance of tho appellant ; thirdly the srarf which has been held t'' belong to the appelh~nt and which was found from the pit pointed out by the co-accused Nanji and fourthly by tho presenct· of the hairs of the appellant and of the deceased on that scarf. The men· fa.ct that the dead bodv was pointed out by the appella11t or was tliocovered as a result of a statement made by him would not nece88arily lead to the conclusion of the dfonce of murder. But there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of tho appellant is a circumstance which may iaise the presumption of tho partir:ipation of the appellant in the murder, In Wa8in 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 prisonn on a charge of roblicry as also of a charge of murder.

But it must depend upon the circumstancl's of each case. The third piece of ev idenoo to be considered is the recovery of the p<mia i.e. scarf. No doul t lhl'le is no state!Il('llt by the approver that the scarf in which the dead bndy was taken was thJ.t of the appellant. But a sr,arf bas been found which tht· Hig!i Court has held as beJ.mging to the appelll\nt and hairs both of the dec·•at>ed a8 well as of the t•ppellant were found on tl:.at scarf. It was argm•d that the finding of the hairs was of no conHequence and at least the Chemical Examinrr "'as wit the proper 1·xpert who could depose a& to the similnrity or otherwise of thl' hair~. Tho writers on mt>dical jurisprudence, however, ha,·e stated that from the microscopic examination of th•· hairs it i:; po~sible to.say whether thoy 11r0 (If th0 same or of 1lifferi;nt colours or Ri1,.-~ and from 1.hA <•Xnmination it ma:v help in deciding where the hairs come from. In \I) [19:.0J S. C.R. 191. 2 s.c.R. SUPREME COURT .REPORTS Taylor's Medical Jurisprudence (1956 Edn.)

Voi. 1, at page 122, some cases ar~ given showing that hairs were identified as belonging to particular persons. Thus, we have besi<les 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 huma.n blood and the presence of his hairs on a pania (scarf) on whicli there were the hairs of the deceased .also. In our opinion this would be sufficient evidence in thA circumstances of the present case to connect· the avpellant with the commission of the offence. We, therefore, dismiss the appeal. Appeal disn. iss(d. BASANTRAM UNION OF INDIA (P. B. GAJENDRAGADKAR andK. N. WANC1HOO, JJ.) Evacuee Property--Inclu<ion in compensation. poolr-Effect -Power of Central Government-AdminiBtration of Evac"ee Property (Central) R"lea, r.

14 (6)-AdminiBtration of li'vacue< Property .1ct, 1950-Tlte displ~ced persons (Comp,nBation and Rekahilitation) ·4.ct, (XUV qf 1954), ss. 12, 14, 16 and 19. The appellants migrated to India in 1947 from West Pakistan. To begin with, they were given temporary allotment of land in two villages. In 1949, land was allotted to them on qua~i-pern1anent basis, and they have remained in possession of the same eversince. Originally, land was classi .. fied into two kinds : urban and agricultural land. Later on; a third classification was introduced, known as sub-urban land. fhe two villages in which land was allotted to the appellants were not included in. the notification with respect to sub-urban land. In February, 1952, the Director of Rehabilitation passed an order declaring those villages as L9af -- K11nb; liarsan Jadav State ofGujaud Kapur J. 1"62 January21.