Bhiva Doulu Patil vs State Of Maharashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 174 of 1961

Decision Date: 29 August 1962

Coram: J.L. Kapur, A.K. Sarkar, M. Hidayatullah

In the matter of Bhiva Doulu Patil versus the State of Maharashtra, the Supreme Court rendered its judgment on 29 August 1962. The judgment was authored by Justice J. L. Kapur and the bench comprised Justice J. L. Kapur, Justice A. K. Sarkar and Justice M. Hidayatullah. The case was cited in the 1963 Annual Report of Indian Reports at page 599 and also appeared in the 1962 Supplement to the Supreme Court Reports at page 59. Subsequent citations include references in the 1970 Supreme Court Reports at page 45, the 1988 Supreme Court Reports at page 672, and the 1991 Supreme Court Reports at page 1463. The legal issue concerned the application of the provisions of the Indian Evidence Act of 1872, specifically sections one hundred fourteen and one hundred thirty‑three, relating to the requirement of corroboration when an approver’s testimony is used against an accused. The headnote explained that both the appellant and a co‑accused, identified as R, had been convicted of murder on the basis of the approver’s testimony, which was supported by the recovery of a knife at the direction of R and by evidence that the appellant and R had arranged for the knife to be prepared nine weeks before the killing. The appellant argued that his conviction was unlawful because there was no corroboration of the approver’s testimony with respect to him personally. The Court held that the conviction could not be sustained because the law demands corroboration of the approver’s statements in each material point and against each accused. The combined effect of sections one hundred thirty‑three and one hundred fourteen, illustration (b), is that although a conviction based on an accomplice’s testimony is not per se illegal, such testimony must be backed by corroborative evidence in essential particulars. In the present case, no corroboration existed concerning the appellant. The preparation of the knife nine weeks earlier did not constitute corroboration, as the appellant might have withdrawn his involvement during that interval, and the discovery of the knife at R’s insistence did not link the appellant to the murder. The approver’s confession to his brother also failed to qualify as corroboration. While evidence existed to corroborate R’s participation, it was insufficient to sustain the appellant’s conviction. The Court referred to authorities including Res. v. Boyes (1861) paragraph nine of Cox’s Criminal Cases, Bhuboni Sahu v. The King (1949) volume 76 of the Law Reports, and R. v. Baskerville (1916) volume two of the King’s Bench Reports. The judgment concerned Criminal Appeal No. 174 of 1961, filed by special leave against the Bombay High Court order dated 12 April 1961 in criminal trial number 308 of 1961. Counsel for the appellant was G. C. Mathur, while counsel for the State were S. B. Jathar and R. N. Sachthey. The Court’s decision, delivered by Justice Kapur, addressed the appeal against the High Court’s affirmation of the appellant’s conviction under section three hundred two of the Indian Penal Code, read in conjunction with section thirty‑four, for the murder of Lahu Vithu Patil that occurred on the night of 23 to 24 May 1960 at the village of Pasarde.

On the night of 23 and 24 May 1960, a murder occurred at Pasarde village. Four persons were alleged to have participated in the killing of Lahu Vithu Patil. The persons named were Rama Krishna Patil, identified as accused number one; Bhiva Doulu Patil, identified as accused number two and now the appellant before this Court; Lahu Santu Patil, identified as accused number three; and Deoba, who turned approver and was recorded as witness number five. Rama Krishna Patil was convicted of murder and initially sentenced to death, a sentence later reduced on appeal to life imprisonment. The appellant, Bhiva Doulu Patil, was also convicted of murder and sentenced to life imprisonment. Lahu Santu Patil was acquitted of all charges, while Deoba, the approver, testified against the others.

The prosecution asserted that the appellant, Bhiva Doulu Patil, harboured a suspicion that the deceased was having an illicit relationship with his wife and therefore conspired to have the deceased killed. On 16 March 1960, the appellant is said to have approached Deoba and suggested that the deceased should be murdered. The following day, 17 March 1960, Rama Krishna Patil and the appellant allegedly obtained a knife that had been fashioned from a crow‑bar by Nanu Santu Sutar, recorded as witness number seven. Because the deceased, a wrestler, and his brother ordinarily slept in the fields with their dogs, the murder could not be carried out immediately. When the monsoon rains began, the deceased started sleeping at Patil’s gymnasium, providing the opportunity for the crime. On the night of the murder, the knife prepared by Nanu Santu Sutar was used by Rama Krishna Patil to stab the deceased. At that moment the appellant held a torch, while Lahu Santu Patil and Deoba were present but unarmed. Rama Krishna Patil delivered two blows, one to the throat and another to the left side of the chest. After the assault the assailants left a towel and a turban at the scene; both items were later identified as belonging to Rama Krishna Patil. Neighbours awakened by the victim’s cries alerted his brother, and a first‑information report was filed without naming any suspects. Deoba was arrested on 6 June 1960 following information received by Police Sub‑Inspector Nandke. On 25 June 1960, based on a statement of accused number one, the knife alleged to have been used in the murder was recovered. The recovered knife was described as unusually large and reportedly stained with blood, although forensic proof that the blood was human was not established. Medical testimony indicated that the two extensive injuries inflicted on the deceased could have been caused by the recovered knife. The principal issue before this Court is whether the approver’s statement has been corroborated in material particulars, particularly with respect to the appellant’s alleged participation.

In this case, the evidence of Nanu Sintu Sutar, identified as PW‑7, was considered. He had prepared the knife that the prosecution alleged was used in the offence dated 17 March 1960. The prosecution further alleged that the motive for the murder arose from the accused’s suspicion that his wife was having an intimate relationship with the deceased. According to the learned judge at the trial, those facts were enough to sustain a conviction of the appellant. On appeal, the High Court held that material corroboration existed. It relied on the testimony of Santu, PW‑6, who was the brother of the approver Deoba, and on Deoba’s confession to his brother that he had taken part in the crime. The High Court also pointed to the discovery of the knife after it was produced by the first accused, noting that the weapon was found stained with blood and that its unusual size matched the injuries recorded on the victim. The High Court observed that the brother’s testimony indicated that Deoba, after committing the act, had confessed his involvement to his sibling, thereby creating a direct link between the accused and the crime. It further emphasized that the knife’s recovery, prompted by the first accused, was a tangible piece of evidence that connected the weapon to the alleged assault. The court noted that the blood‑stained condition of the blade, together with its dimensions, corresponded closely with the two extensive injuries described in the medical report. Consequently, the appellate court regarded these factual matrices as sufficient corroboration of the approver’s version of events.

With due respect to the High Court’s findings, the Supreme Court was unable to agree that the appellant’s conviction was legally sustainable. The Court held that, without specific corroboration of the approver’s statement as it related to the appellant, the conviction could not stand, because the law requires corroboration of an approver in material particulars for each accused. The Court stated that the statement of Santu, the brother of the approver, did not constitute corroboration; it merely showed that the approver had made a confessional statement to his brother, which cannot be treated as independent proof. Likewise, the evidence of Nanu Sintu Sutar, PW‑7, could not serve as corroboration because the knife was prepared by the first accused nine weeks before the murder, a circumstance that by itself does not confirm the appellant’s participation under sections 302 and 34 of the Indian Penal Code. The long interval between the preparation of the knife and the homicide left open the possibility that the appellant might have refrained from executing the offence. The finding that the knife was recovered at the instance of the first accused also failed to establish a direct link between the appellant and the murder under section 34. While the Court acknowledged that the approver’s evidence might have been adequately corroborated for the conviction of the first accused, it found no such corroboration for the appellant. The Court further emphasized that independent corroboration of the appellant’s participation was necessary. In these circumstances, the Court concluded that the conviction of the appellant was not sustainable. In reaching this conclusion, the Court was mindful of the provisions of section 133 of the Evidence Act, which require that an accomplice’s testimony be corroborated in material particulars.

The Court observed that Section 133 of the Evidence Act declared that an accomplice was a competent witness against an accused and that a conviction was not illegal merely because it rested on the uncorroborated testimony of an accomplice. While acknowledging that the statute permitted a conviction on such uncorroborated evidence, the Court stressed that judges must nevertheless remain mindful of the long‑standing rule of prudence and practice. This rule, the Court noted, had been described by Martin B in Res. v. Boyes (1861) 9 Cox, Crim. Cas. 32 as “so hallowed as to be deserving of respect,” and Lord Abinger had expressed that it “deserves to have all the reverence of the law.” The Court further explained that the guidance embodied in illustration (b) to Section 114 of the Evidence Act manifested this rule by stating that “the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.” The Court emphasized that both sections dealt with the same subject matter and therefore had to be read together.

The Court referred to the Privy Council’s decision in Bhuboni Sahu v. The King (1949) L.R. 76 I.A. 147, where the Council, after reviewing the Madras High Court judgment in re Rajagopal (I.L.R. 1944 Mad. 308), observed that courts should be slow to depart from the rule of prudence derived from long experience, which required some independent evidence implicating the particular accused. The Court explained that the danger of relying on accomplice evidence was not limited to the accomplice’s admitted bad character or his bias in favor of the prosecution. The more serious danger, the Court said, lay in the possibility that the accomplice’s narrative, while broadly true, could be embellished with false particulars.

In summarising the combined effect of Sections 133 and 114, illustration (b), the Court stated that the former, being a rule of law, recognised the competency of an accomplice to give evidence, whereas the latter, a rule of practice, rendered it almost always unsafe to secure a conviction solely on such testimony. Consequently, although a conviction based on an accomplice’s uncorroborated evidence could not be declared illegal, the courts, as a matter of practice, would not ordinarily accept that evidence without corroboration of material particulars. The Court quoted Lord Reading C.J. in R. v. Baskerville (1916) 2 K.B. 658, who affirmed that there was no doubt the uncorroborated evidence of an accomplice was admissible in law, but that at common law it was a rule of practice for the judge to warn the jury of the danger of convicting on such evidence and, at his discretion, to advise the jury against doing so, while also pointing out that the jury retained the legal authority to convict on uncorroborated accomplice testimony.

The Court explained that when an accomplice’s testimony has not been corroborated, the jury should be warned of the risk of convicting a defendant solely on such evidence. It further stated that, at the judge’s discretion, the judge could advise the jury not to base a conviction on uncorroborated accomplice testimony. However, the judge was also required to inform the jury that it remained within the jury’s legal authority to reach a conviction even in the absence of corroboration. The Court supported this description of judicial practice by referring to the authority in R. v Stubbs, Dears 555 and In re Heunier, 1894 2 Q.B. 415.

Applying this principle to the present case, the Court concluded that the appellant’s conviction could not be sustained on the uncorroborated testimony of an accomplice. Consequently, the Court allowed the appeal, set aside the earlier order of conviction, and directed that the appellant be released immediately. The order of the Court was recorded as an appeal allowed, with the citation (1) [1916] 2 K.B.658.