minal Appeal NO
134 of 1961
Appeal from the judgment and order dated March 2829 1961 of the Calcutta High Court in Criminal Appeal No 769 of 1960
D N Mukherjee for the appellant
P K Chakravarti and P K Bose for the respondent
December 10
The judgment of the Court was delivered by AYYANGAR J
This is an appeal on a certificate under article 134 1 c against the conviction of the appellant under section 302 Indian Penal Code and the sentence for imprisonment for life passed against him for the said offence
One Pancham Sukla was an employee under the Calcutta Port Commissioner where also the 854 appellant was employed
Pancham attended office last on the 10th of March 1960 and at about 530 that evening he was seen in the company of the appellant
That was the last time he was seen alive and since then he has not been found
Pancham not having returned to his house his brother in law and another lodged a report with the police stating that Pancham had been missing for the previous two days and in the said report gave a description of the missing person as well as the clothes that he wore at the time he left his residence
The fact that Pancham was last seen with the appellant was stated in a further report which the brother in law lodged with the police on the next day March 13 1960
The appellant was arrested on March 21 1960 and on interrogation by the police he stated that Pancham Sukla was dead and admitted that he had buried the body of the deceased in the mud in a tank of which he gave a description
The place pointed out was searched and therefrom a human skeleton partly covered with a torn dhoti underwear and a torn kurta in the side pocket of which was found a flag were discovered
The appellant was also stated to have pointed out to the police in the course of further investigation that he had thrown a knife into the same tank
A search was made when not merely a knife but a shoe with a rubber sole a human lower jaw bone etc were recovered
After some more investigation a complaint was laid before the Magistrate who after enquiry committed the appellant to take his trial before the Sessions Court where he was tried with the aid of a jury
of two offences  1 under section 364 Indian Penal Code of having abducted Pancham Sukla in order that he might be murdered and 2 the substantive offence of having committed the murder under section 302 Indian Penal Code
It may be mentioned that at the trial the articles recoverd the dhoti shirt underwear 855 shoe and the flag were all indentified as having belonged to and being worn by the deceased when he was last seen
The jury accepted the evidence of the prosecution and returned a verdict of guilty against the appellant on both the counts
The learned Session s judge accepted the verdict and sentenced him to death under section 302 Indian Penal Code and to rigorous imprisonment for life in respect of the offence under section 364 Indian Penal Code
The appellant filed an appeal to the High Court of Calcutta and the learned judges acquitted the appellant of the offence of kidnapping under section 364 Indian Penal Code but confirmed the finding of guilt as regards the offence of murder tinder s302 Indian Penal Code but reduced the sentence to imprisonment for life
Having regard to the points which have been urged before us we do not think it necessary to canvass the grounds upon which the learned judges set aside the verdict of guilty returned by the jury and the conviction of the appellant by the Sessions judge in respect of the offence under section 364 Indian Penal Code but are concerned only with two points which have been made by learned Counsel in support of the appeal
The first point urged relates to the identification of the skeleton which was found in the tank as that of the deceased Pancham Sukla in other words whether there was proof that Pancham Sukla was killed or had even died
The identification of the skeleton rested on three distinct lines of evidence  1 The statement of the appellant to the police under section 27 of the Indian Evidence Act which led to the discovery of the skeleton 2 The identification of the clothes shoe etc
which were found on or near the skeleton as those which were worn by Pancham Sukla at the time he last left his house
The place where these articles were discovered in relation to that where the skeleton was 856 found unmistakably pointed to the articles having formed part of the dress of person whose skeleton was there found and 3 a photograph of Pancham Sukla superimposed on the photograph of the skeleton
judge and the High Court as regards the admissibility in evidence of the superimposed photograph as a means of identifying the skeleton as that of the deceased and it is this legal objection raised by the appellant that forms the ground of the certificate granted by the learned judges of the High Court
Learned Counsel urged before us that the superimposed photograph was not admissible in evidence and that its reception vitiated the verdict of the jury
We are clearly of the opinion that even if this photograph was not admissible in evidence the verdict of the jury and the conviction of the appellant could not be set aside because there was very cogent other evidence to prove the identity of the skeleton
Since however the learned judges of the High Court have thought fit to grant a certificate though they were themselves conscious of the fact that besides the photographs there was plenty of other evidence to sustain the conviction we consider it proper to express our opinion on the question
The process adopted for taking the superimposed photograph as explained by P W 18 the Assistant Chemical Examiner of the West Bengal Government was this  He first got a photogrgph of Panchom Sukla
This was photographed the negative being taken on a quarter plate and the negative was enlarged
He got the skull and as the skull Was broken in some parts the bones were pieced together and an enlarged photograph of the skull as reconstructed was taken
A negative of this was enlarged to the same size as the negative of the photo of the deceased with the angle and positions of the two being identical
The two negatives were 857 then superimposed
For the superimposition the technique employed by him was thus explained  The ground glass of the camera was taken out the negative of the photograph alleged of Pancham Sukla was placed on it prominent markings of the negative were carefully jotted down on the ground glass the markings being the following viz nasion nasomental line malar bones with prominences and two outer canthuses and two inner canthuses of the two eye balls and the inner ends of the supra orbital ridges thereafter the ground glass was fitted in the camera the skull was so orientated that all the points of the skull came in exact position with the markings made on the ground glass as mentioned when the photograph of the skull was taken then the two negatives were placed by aligning in such a way that all the points as mentioned above corresponded on a sensitive bromide paper under an enlarger
The resultant is the photograph submitted to the Court
 The photographer who executed this work under the supervision of P W 18 was Tapendra Nath Mazumder who was examined as P W 19
This superimposed photograph showed the shape and contour of the bones of the face underneath the face as it looked when the deceased was alive and the prosecution sought by means of this document to establish the identity of the skull as that of the deceased or in any event to dispel any positive argument for the
defence that the skull was not that of the deceased
The contention urged before us by learned Counsel was that this photograph was not admissible under any section of the Indian Evidence Act
If learned Counsel is right here he could succeed in 858 having this evidence rejected as inadmissible
We are however clearly of the opinion that it is admissible in evidence under section 9 of the Evidence Act
The section reads 9
Facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of any thing or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted are relevant in so far as they are necessary for that purpose
 The question at issue in the case is the identity of the skeleton
That identity could be established by its physical or visual examination with reference to any peculiar features in it which would mark it out as belonging to the person whose bones or skeleton it is stated to be
Similarly the size of the bones their angularity or curvature the prominences or the recessions would be features on which examination and comparison might serve to establish the  identity of a thing whithin the meaning of section 9
What we have in the present case is first a photograph of that skull
That the skull would be admissible in evidence for establishing the identity of the deceased was not disputed and similarly a photograph of that skull
That a photograph of the deceased was admissible in evidence to prove his facial features where these are facts in issue or relevant facts is also beyond controversy
Now what PW 18 with the assistance of PW 19 has done is to combine these two
The outlines of the skull which is seen in the superimposed photograph show the nasion prominences the width of the jaw bones and their shape
the general contours of the cheek bones the position of the eye cavity 859 and the comparison of these with the contours etc of the face of the deceased as seen in the photograph serve to prove that features found in the skull and the features in the bones of the face of the deceased are indentical or at least not dissimiliar
It appears to us that such evidence would clearly be within section 9 of the Evidence Act
The learned Counsel for the appellant urged that the superimposed photograph was not a photograph of any thing in existence and was for that reason not admissible in evidence
This argument proceeds on a fallacy
In the first place a superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality
There is no distortion of truth involed in it or attempted by it
A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other
Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison
Possibly some illustrations might make this point clear
For instance if the photo of the deceased when alive were printed on a transparent medium and that were placed above a photograph of the skull both being of the same size the visual picture seen of the two together would approximate to the document objected as inadmissible
In the above it would be seen both the photographs would be admissible in evidence and no objection could be taken to their being examined together
Again for instance if instead of a two dimensional photograph we had first a hollow model of the head of the deceased say of transparent or semi transparent material constructed or made from a photograph that certainly would be admissible in evidence provided there was proof that the model was exactly and accurately made
If the model were dismantled into segments and placed upon the skull with a view 860 to show that the curves and angles the prominences or depressions etc
exactly corresponded there could be no dispute that it would be a perfect method of establishing identity
If this were granted the superimposed photograph which is merely a substitute for the experiment with the model which we have just now described would be equally admissible as evidence to establish the identity of a thing
It was pointed out that this was the first occasion that in India an identity of a skeleton was sought to be established by means of superimposed photographs and that P W 18 had done this experiment by reference to what he had read in the books on the subject and that on that ground the evidence could  not be accepted
Any deficiency in scientific accuracy might go to the weight of the evidence which in the case on hand was a matter for the jury to consider but we are now only on a very narrow question as to whether it is excluded from evidence as inadmissible
Our answer is that it was admissible in evidence
 The next point urged was that there had been a misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton
We have carefully gone through the charge to the jury and are satisfied that there is no substance in this objection
The learned Sessions judge has quoted extracts from the decision of the Privy Council in Kotayya vs Emperor 1 and of this Court in State of U P vs Deoman Upadhyaya 2 in which the scope of section 27 of the Indian Evidence Act has been discussed and has drawn to the attention of the jury only that portion of the statement of the accused which led to the discovery of the skeleton and the knife etc
Lastly it was urged that the grounds upon which the learned judges had set aside the conviction of the appellant of the offence under section 364 Indian Penal Code would necessarily lead to the conclusion 1 AIR 1947 PC 67
2   861 that he could not be held guilty of an offence under section 302 Indian Penal Code
The argument was on these lines
The learned judges considered that the appellant had not having regard to certain facts which they considered had been made out the intention of killing Pancham when he took him out and that the killing must have taken place as a result of some quarrel which arose between them
From this learned Counsel sought to urge  1 that there was a quarrel 2 that having regard to the quarrel the appellant must have had the right of private defence and that 3 consequently killing was either fully protected or at the most it was a case of an offence under section 304 Part 1 Indian Penal Code
We consider that there is no foundation for this argument
The trial was by jury whose verdict was that the appellant was guilty of murder
As we stated earlier we are not now concerned with the correctness of the acquittal by the High Court of the appellant of the offence under section 364 Ind tan Penal Code or of the reasons on which that order was based
We must however point out that there is no suggestion before us that save and except what we have discussed earlier there had been any misdirection by the Sessions judge in his charge to the jury
There is therefore no scope for the argument that that verdict should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record


Summary:
The appellant was tried by the jury for kidnapping and committing the murder of one Pancham Sukla
The jury returned a verdict of guilty against him under sections 364 and 302 of the Indian Penal Code
The Sessions judge accepted the verdict and sentenced him to death under section 302 and to rigorous imprisonment for life under section 364
The High Court acquitted appellant of the offence of kidnapping under section 364 but while confirming his conviction under section 302 reduced the sentence to imprisonment for life
The appellant came to this Court on a certificate granted by the High Court
In this Court the appellant challenged the identification of the skeleton produced in the case as that of the deceased
His other contentions were that the super imposed photograph was not admissible under any section of the Evidence Act there was misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton and that he had no intention of killing deceased and killing must have taken place as a result of some quarrel between him and the deceased
The super imposed photograph was admissible in evidence under section 9 of the Evidence Act
That photograph was not any trick photograph seeking to make something appear different from what it was in reality
There was no distortion of truth involved in it or attempted by it
A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other
Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison
Both the photographs would be admissible in evidence and no objection could be taken to their being examined together
853 There was no misdirection to the jury insetting out the statement of the accused to the police which led to the dis covery of the skeleton
There was no substance in the contention of the appellant that killing must have taken place as a result of some quarrel
The jury had held appellant guilty of murder
This Court is not concerned with the correctness of the acquittal of the appellant by the High Court under section 364 of Indian Penal Code
No suggestion has been made before this Court that there was misdirection by the Sessions judge in his charge to the jury
There is no scope for the argument that verdict of the jury should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record
Kotayya vs Emperor A 1
R and State of UP vs Deoman Upadhyaya 19611 1 section C R 14 relied on