Kanbi Karsan Jadav vs State Of Gujarat

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 223 of 1959

Decision Date: 24 January, 1962

Coram: J.L. Kapur, Raghubar Dayal

In the matter titled Kanbi Karsan Jadav versus State of Gujarat, the Supreme Court rendered its judgment on 24 January 1962. The opinion was authored by Justice J. L. Kapur, who was joined on the bench by Justice Raghubar Dayal. The case is reported in the 1966 volume of the All India Reporter at page 821 and also appears in the 1962 Supplement to the Supreme Court Reports, part 2, page 726. The criminal trial involved offences punishable under sections 302 and 201 of the Indian Penal Code, 1860, and the evidential issues were governed by section 45 of the Indian Evidence Act, 1872.

The appellant, together with two other accused persons, had been convicted for the murder of the deceased, Kanji, by the Additional Sessions Judge at Gohilwad. The High Court had accepted the testimony of an approver as reliable and had placed reliance on several pieces of physical evidence that the appellant had allegedly helped discover. These included the location of the dead body, the recovery of blood‑stained silver buttons belonging to the deceased, and a scarf (referred to as a “pania”) recovered from a pit where the body was first buried. The scarf was said to contain hairs belonging both to the appellant and to the deceased. The appellant argued that, although the approver’s statement had been accepted as true, it was not corroborated by material particulars that would link him directly to the offence. He further contended that none of the discovered items corroborated the approver’s narrative and, in fact, were somewhat contradictory. The appellant also challenged the testimony of the chemical examiner, asserting that the examiner was not an expert in hair identification, that his evidence did not satisfy the requirements of section 45 of the Evidence Act, and that, at best, the examiner could only say that the hairs resembled those of the appellant.

The Court held that when the approver’s evidence does not substantially aid the prosecution, other circumstances must be examined in conjunction with it. The mere fact that the appellant pointed out the dead body or that the body was discovered because of his statement does not, by itself, prove the commission of murder. However, the Court found that the combination of the approver’s testimony, the appellant’s direction to the location of the body, his identification of the blood‑stained buttons, and the presence of his hair on the scarf together constituted sufficient material to connect the appellant with the criminal act. The Court further noted that medical jurisprudence authorities have observed that microscopic examination of hairs can determine whether hairs are of the same or different colours or sizes, and such examination may assist in ascertaining their origin. Accordingly, the Court concluded that the evidence, taken as a whole, was adequate to sustain the convictions under sections 302 and 201 of the Indian Penal Code.

The Court observed that microscopic examination of hair can reveal differences in colour, size and other characteristics, and that such examination may assist in determining the source of the hairs. The Court referred to the authorities 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, which were relied upon for this proposition.

The matter before the Court was Criminal Appeal No. 223 of 1959, filed by way of special leave against a judgment dated 14 April 1959 delivered by the former Bombay High Court, Rajkot Branch, in Criminal Appeal No. 84 of 1958. Counsel for the appellant were Nur‑ud‑din Ahmed and K. L. Hathi, while the respondent was represented by H. R. Khanna and R. H. Dhebar. The appeal was heard on 24 January 1962, and the judgment was delivered by Kapur, J. The appellant together with two co‑accused had been convicted by the Additional Sessions Judge, Gohilwad, under sections 302 and 201 of the Indian Penal Code for the murder of a person named Kanji. The appellant received a life term under the former section and a term of seven years’ rigorous imprisonment under the latter, with both sentences to run concurrently. On appeal, the High Court set aside the conviction of a co‑accused named Nanji Ravji but affirmed the convictions and sentences of the appellant and another accused, Karamshi Bhawan. By way of special leave, the appellant sought relief before this Court.

The deceased, Kanji, was described as a person of questionable character residing in the village of Chiroda. Allegations were made that he had an illicit relationship with Shrimati Shantu, the sister of Karamshi, and that he also pursued Smt. Baghu, the sister of the appellant, for similar reasons. It was alleged that five days prior to the incident, the appellant Karsan, Karamshi, Nanji and an approver named Gumansinh met and resolved to murder the deceased. According to the plan, Gumansinh was to lure the deceased to the appellant’s farm (vadi) where the killing was to be carried out. At sunset on 19 March 1958, the deceased was allegedly drawn to the pre‑arranged location and was murdered by the appellant, who is said to have struck him with a sharp cutting instrument known as a dharia. The approver’s statement further alleged that the dead body was wrapped in the deceased’s own scarf and that the appellant transported the wrapped body to the dry bed of a river, where he buried it in a pit.

The murder remained undisclosed until 26 March 1958, when the brother of the deceased filed a police report stating that his sibling was missing and that he suspected the three uncles of the appellant. Following the report, the appellant and the other accused were taken into police custody. While in custody, one of the accused was permitted to return to the village, where he sought assistance from individuals named Shamji and Manilal P. W. s, confessed the crime to them, and they in turn informed the police. On 31 March 1958, both Gumansinh and Karamshi made confessional statements that were recorded by a magistrate. Between 26 March and 31 March, the police recovered various items related to the case, including the dead body and, at the appellant’s request, the head of the deceased from a distant well. On 28 March 1958, at Nanji’s instance, a scarf was discovered in the pit where the body had been buried; the scarf bore hairs that, upon analysis by a chemical examiner, were found to be similar to those of both the appellant and the deceased. On the preceding day, at the appellant’s behest, silver buttons stained with human blood were recovered from the appellant’s field, and a small button resembling one belonging to the deceased was also found. The High Court later rejected the confession of Karamshi on the ground that it was not voluntary and acquitted Nanji, finding no corroboration for the approver’s statement and noting that the burial site had not been discovered at Nanji’s instance.

During the investigation several items were recovered. The prosecution submitted that, at the request of the appellant, the corpse and subsequently the head of the deceased were retrieved from a distant well. It was further stated that, on 28 March 1958, at the request of Nanji, a scarf was found in the pit in which the approver claimed the dead body had been buried. The scarf bore hair strands that, after examination by the Chemical Examiner, were reported to be similar to the hair of the appellant and to the hair of the deceased. A day earlier, on 27 March 1958, also at the appellant’s request, silver buttons bearing human blood stains were discovered in the appellant’s field, and a small stick‑shaped button that belonged to the deceased was also located at his instance. The High Court held that the confession of Karamshi could not be admitted because it was not given voluntarily, and consequently it acquitted Nanji. The court reasoned that there was no corroboration of Nanji’s involvement based on the approver’s statement, that the alleged burial place of the corpse had not been discovered at Nanji’s instance, that the production of a stick, shirt and trousers from his house was of no evidential value, that the oral testimony was inconsistent with the medical evidence, and that Karamshi’s confessional statement could not be used against Nanji. Regarding the appellant, the High Court accepted the approver’s testimony as reliable. The court, however, attached no significance to the recovery of the cutting instrument known as Dharia nor to the discovery of the stick (Dhoka) at the appellant’s instance. It did rely on the recovery of the dead body—specifically the trunk and the head—at the appellant’s instance, on the blood‑stained buttons also found at his request, and on the scarf recovered from the pit which contained hair identified as belonging to both the appellant and the deceased. The defence for the appellant argued that, although the approver’s testimony had been accepted as true, it was not corroborated in any material particulars that linked the appellant to the offence. This contention was countered by pointing out that the approver had asserted the body was buried in a pit on the dry riverbed, yet when that pit was excavated the body was not found; only an ulna bone fragment and a human foot heel were recovered, and those items had been discovered earlier and therefore could not constitute material corroboration. Further submissions highlighted the absence of any evidence explaining when and how the body was removed from the pit, dismembered and deposited in the well. The prosecution’s reliance on the scarf was described as an innocuous circumstance because the evidence presented did not establish that the scarf belonged to the appellant; rather, it was shown to have belonged to his father.

It was observed that the testimony of the chemical examiner did not establish that the hairs found on the scarf belonged either to the appellant or to the deceased. The reason was that the chemical examiner was not a specialist in hair identification, and his evidence could not be admitted under section 45 of the Evidence Act. At most, the examiner’s report indicated that the hairs bore a resemblance to those of the appellant. In addition, the approver testified that the dead body of the deceased had been wrapped in the appellant’s own pania, a type of scarf. It was further submitted that the statements concerning the recovery of the trunk and the head would merely demonstrate that the appellant knew the locations of those parts, which at most could lead to an inference of an offence under section 8.201 and not under section 8.302. The law governing accomplice testimony requires that there be corroboration of the material parts of the story that connect the accused with the crime, sufficient to satisfy a reasonable mind that the approver may be regarded as a truthful witness. Such corroboration need not be direct evidence of the accused’s commission of the offence; circumstantial evidence showing a connection with the crime is adequate, and the nature of the required corroboration varies according to the facts of each case. The Court referred to the precedent set in Vemireddy Satyanarayan Reddy v. State of Hyderabad for this principle.

The confessional statement made by the approver on 31 March 1958 was examined for facts that might link the appellant with the murder. The approver claimed that the appellant had struck the deceased with a dharia; the dharia was later discovered but the High Court had disregarded it as immaterial. The approver further stated that the deceased’s body had been tied in a pania (scarf), but he did not say that the scarf belonged to the appellant. He also said that the appellant had carried the body, that it was buried in a pit, and that the appellant had informed him that the head of the deceased had been thrown into a well. In the circumstances of the present case, none of these discoveries corroborated the approver’s statement to the extent of linking the appellant with the offence. Moreover, the statements were somewhat contradictory: the pania found in the pit was now said to belong to the appellant, the body was not recovered from that pit, the head had already been found, and the trunk had been removed from the well. Consequently, it was submitted that the approver’s statement could not be said to have been corroborated in material particulars. Nevertheless, the judgment noted that other circumstances might still be relevant even if the approver’s evidence was held not to be substantially helpful to the prosecution.

In this case, the Court noted that the evidence presented was very helpful to the prosecution. First, the appellant had physically indicated the place where the dead body could be found in the well. Second, the appellant prompted the discovery of buttons that were stained with human blood. Third, a scarf—referred to as a pania—had been identified by the High Court as belonging to the appellant, and this same scarf had been recovered from the pit that the co‑accused Nanji had pointed out. Fourth, forensic examination revealed the presence of hairs belonging both to the appellant and to the deceased on that scarf. The Court observed that the mere fact that the appellant pointed out the location of the dead body, or that the body was discovered as a result of a statement made by him, would not by itself lead to a conclusion that he committed murder. Nevertheless, the Court considered additional circumstances that were relevant to the question of his participation. The discovery of the blood‑stained buttons at the appellant’s suggestion was a circumstance that could raise a presumption of his involvement in the murder. In Wasin Khan v. The State of Uttar Pradesh (1), the Court had held that recent and unexplained possession of stolen property constitutes presumptive evidence against a prisoner on a charge of robbery as well as on a charge of murder, while emphasizing that each case must be examined on its own facts. The third piece of evidence was the recovery of the pania. Although the approver did not state that the scarf used to conceal the dead body was the appellant’s, the High Court had determined that the scarf belonged to him, and hairs from the appellant and the deceased were found on it. It was argued that the finding of the hairs was of no consequence because the Chemical Examiner was not a proper expert to testify about the similarity of the hairs. The Court, however, referred to authorities on medical jurisprudence that explain how microscopic examination of hairs can determine differences in colour, size and other characteristics, and can assist in identifying their source. Taylor’s Medical Jurisprudence (1956 edition), Volume 1, page 122, provides cases where hairs have been identified as belonging to particular individuals. Consequently, besides the approver’s testimony, the Court identified three important facts that linked the appellant to the commission of the offence: his indication of the dead body’s location, his direction to the discovery of the blood‑stained silver buttons, and the presence of his hairs on a scarf that also bore the hairs of the deceased. In the Court’s opinion, these facts together were sufficient, in the circumstances of the present case, to connect the appellant with the commission of the murder. Accordingly, the Court dismissed the appeal. The appeal was therefore dismissed.