N Criminal Appeal No 742 of 1979
From the Judgment and order dated 1611979 of the Punjab and Haryana High Court in Crl
656 of 1976
AS Sohal and PN Puri for the Appellant
Kiran Choudhri and T Sridharan for the Respondent
The Judgment of the Court was delivered by 749 VENKATACHALIAH J
This appeal by Special Leave preferred against the Judgment dated April 26 1976 of the High Court of Punjab  Haryana affirming the judgment dated 26 4 1976 of the Sessions Judge in SC No S of 1976 convicting appellant for offences under Sections 302 and 120 B of the Indian Penal Code and sentencing her to imprisonment for life raises certain questions as to the nature and extent of corroboration of an accomplice s evidence and as to the procedure for the trial of offences by a child under the East Punjab Children s Act 1949
Appellant Balwant Kaur was said to be 15 12 years of age at the time of the commission of the offence alleged against her
From 14111973 the whereabouts of appellant s husband Pritam Singh a police constable were not known
His mother Mukhtiar Kaur PW 19 reported this fact and expressed her apprehensions in the matter in her complaint to the Superintendent of Police
Appellant was arrested on 851975
Nand Singh and Ram Sarup were also arrested on 85 1975
Ram Sarup became an approver
Appellant s defence was one of total denial
The judgment of the High Court under appeal is common to Criminal Appeal No 676 of 1976 preferred by Nand Singh who was convicted under Sections 302 364 201 and 120 B of IPC and also sentenced to imprisonment for life
Appellant s husband Pritam Singh for whose murder appellant and the said Nand Singh had been arraigned was at the relevant time a police constable at the Police Station West Sector 11 Chandigarh
Nand Singh was another constable at the same Police Station
Nand Singh s brother Bhag Singh and Pritam Singh were neighbours residing in adjacent Government quarters in Sector 20 A Chandigarh
Ram Sarup who later turned approver was another police constable on Guard duty at the Punjab Raj Bhavan Chandigarh
The married life of Appellant and Pritam Singh according to the prosecution lacked connubial felicity and was marked by constant bickerings and quarrels the cause for this discord being the addiction of Pritam Singh to liquor
It is the prosecution case that Pritam Singh was a dipsomaniac and was constantly subjecting appellant to corporeal intransigence
It was further alleged that appellant had developed illicit intimacy with Nand Singh
Ram Sarup in the course of his visits 750 to Bhag Singh s house met and became friendly with Nand Singh and the two become accustomed to take liquor together
Ram Sarup also knew deceased Pritam Singh
It is alleged that on occasions Nand Singh when he lost self control under the influence of liquor used to confide in Ram Sarup of his illicit sexual exploits with appellant
This appears to have tempted Ram Sarup to ask Nand Singh to introduce Ram Sarup also to appellant for a similar intrigue
On November 13 1973 in the afternoon when Ram Sarup was off duty Nand Singh took Ram Sarup to his own quarters in Sector 20 A said to be at a short distance from the appellant s residence and the two had liquor together
Thereafter Nand Singh is stated to have taken Ram Sarup to the residence of and introduced him to the appellant and persuaded her to gratify the desire of Ram Sarup also
Appellant and Ram Sarup are stated to have indulged in acts of illegal intimacy
Later the same afternoon the three met again at appellant s home when it would appear appellant while narrating the privations and hardships endured by her at the hands of her husband broke down and implored Nand Singh and Ram Sarup to do away with Pritam Singh
She appears to have also offered that after Pritam singh s death she would marry and live with Nand Singh who was then unmarried
According to the prosecution it was agreed amongst the three that the appellant should persuade her husband to reach Chandigarh bus stand the following day ie November 14 1973 and that Nand Singh and Ram Sarup who would be present three would entice him away to Pinjore with the inducement of liquor and do away with him there
Pursuant to this design and conspiracy appellant is stated to have persuaded her husband to go to the bus stand at Chandigarh at 930 am
On 14111973 where Nand Singh and Ram Sarup who were waiting for him as pre arranged took him to Pinjore by bus
There all the three cumsumed liquor together
Nand Singh is also stated to have purchased Ghotna on the pretext that his sister in law had asked for the purchase of one
Thereafter all the three agreed to go back Chandigarh on foot which took them along a dandi  passing by the side of the Pinjore gardens
They reached the railway line near Surajpur Cement Factory and took the foot path towards Chandigarh
When the three reached a distance of almost 2 miles from Surajpur Nand Singh suggested that they should climb up a hill on the way side to enjoy a panoramic view of Chandigarh
Accordingly all the three started climbing
Ram Sarup PW 2 was ahead Pritam Singh was in 751 the middle with Nand Singh following behind him
Nand Singh is stated to have suddenly administered 2 3 Ghotna blows on the head of the unsuspecting Pritam Singh and told Ram Sarup PW 2 to pin the tottering Pritam Singh down
Ram Sarup pulled Pritam Singh down whereupon Nand Singh gave 8 to 10 more blows with the Ghotna on the person of Pritam Singh
Then Nand Singh threw away the Ghotna and the two namely ie Nand Singh and Ram Sarup hastened towards Chandigarh
However after the two had gone 2 furlongs or so Nand Singh urged Ram Sarup PW 2 that they both go back to find out whether Pritam Singh was really dead or not
They accordingly returned and ensured that Pritam Singh had died
They removed the pants and Bush shirt of the deceased and concealed them in a bush
Then the body of Pritam Singh was also concealed in the nearby hushes
The turban of the Pritam Singh had fallen down at the spot
Thereafter the two returned to Chandigarh by night fall
Next day ie On 15111973 Nand Singh came to Raj Bhavan where Ram Sarup was on duty and told the latter that he had in turn informed Balwant Kaur of the death of Pritam Singh
This in substance is the prosecution case as unfolded in the evidence of the Ram Sarup PW 2 who turned approver
On 13
121973 Mukhtiar Kaur PW 19 the mother of deceased Pritam lodged a complaint about her missing son in writing with the Senior Superintendent of Police Chandigarh
In that it was stated that she had learnt from Pandit Sita Ram that a certain Naik Singh and his two sons of the village Lahor Khuda and Dev Singh the Sarpanch of that village along with two other relatives of the Sarpanch had killed Pritam Singh the alleged motive was that deceased Pritam Singh when he was earlier serving in Lahorkhuda had developed illicit relations with Naik Singh s daughter Prito
At the trial Mukhtiar Kaur was examined to establish that this complaint was engineered by the appellant and Nand Singh to put the investigation on a wrong scent
Apparently nothing was heard of the matter for along time till 341975 when Nand Singh was arrested by ASI Gulzara Singh PW 24
On his information Exg P 8 a pair of shoes a purse 25 pieces of bones including an incomplete human skull were recovered
Dr Inderjit Dewan PW I examined the bones and was of the opinion that they were the remains of a well built adult but not old male of a height of about S 9
According to PW 1 the person had died more than 4 months previously
The death was ascribed in all probability to the injuries to the skull administered by a blunt weapon
PW 1 could 752 not however confirm whether the injuries were ante mortem or not
Appellant was arrested by ASI Subhash Chander PW 23 on 851975 and Ram Sarup was also arrested the same day
After the completion of the investigation charges were brought against them for conspiracy and murder
The trial court on the basis of the approver s testimony as corroborated by other evidence held both Nand Singh  and the appellant guilty of the offences they were charged with and sentenced them to imprisonment for life
The High Court has dismissed their appeals and has confirmed the convictions and the sentences
Shri AS Sohai Learned counsel appearing in support of the appeal urged that the evidence of the Approver in so far as the complicity of appellant is concerned lacked corroboration on materials particulars and that no conviction could be sustained on such uncorroborated accomplice s testimony
The development of the law touching the competency and credit of an accomplice as witness against others is not without its interesting antecedents
Historically in the background of the political trials since the time of Henry VIII where King s Evidence  was the main dependence of the crown in its prosecutions the question of the very admissibility of the evidence of the accomplice loomed large
In the 17th and the 18th centuries it was ruled repeatedly by the English courts that an accomplice was a competent witness
His credit  or the sufficiency of his evidence as a quantitative conception however remained in the background
Those were days when form  pre dominated over the substance  and the oath had a dead weight of its own
It was for this reason that struggle was made to keep out this evidence even at the threshold
On the further development in the law which slowly began to recognise the distinction between competency  and credit  Wigmore says Wigmore on Evidence 3rd Edition Vol
VII para 2054
G As time went on and the modern conception of testimony developed the possibility of admitting a witness and yet discriminating as to the qualitative sufficiency of his testimony became more apparent and the way was open for the consideration of this question
In a few instances as the 1700s wore on and even before then judicial suggestions are found as to feasibility of such a discrimination
But not until the end of that century does any Court seem 753 to have acted upon such a suggestion in its directions to the jury
About that time there comes into acceptance a general practice to discourage a conviction founded solely upon the testimony of an accomplice uncorroborated
But was this practice founded on a rule of law Never in England until modern times
It was recognised constantly that the judge s instruction upon this point was a mere exercise of his common law function of advising the jury upon the weight of the evidence and was not a statement of a rule of law binding upon the jury
An accomplice by long legal tradition is a notoriously infamous witness one who being partipes criminis purchases his immunity by accepting to accuse others
Section 114 Illus b of the Evidence Act envisages the presumptive uncredit worthiness of an accomplice
But then Section 133 provides that a conviction is not illegal merely because it rests upon an accomplice s uncorroborated testimony
In indictments particularly of serious crimes the counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars
Judicial experience was thus elevated to a rule of law
It is a practice it is said which deserves all the reverence of law
 The nature and extent of the corroboration must necessarily vary with the nature and circumstances of each case
Enunciation of any general rule valid for all occasions is at once unwise and unpractical
The aspect as to the extent and content of independent corroboration is again an interesting area of study
One view was that independent evidence tending to verify any part of the testimony of the accomplice should suffice
The other view required that the corroborative evidence should not only show that part of the accomplice testimony is true but should go further and also implicate the other accused
In R vs Bhaskerville the Court of Criminal appeal in England favoured and adopted the second view
Thirtyfive years ago Bose J referring with approval to the principles in Bhaskerville said that this branch of the law in India is the same as in England and that the lucid exposition of it given by Lord Reading cannot be bettered
754 The felicitous formulation of the law on the matter by that great master of phrase Bose J which has now become classical may be re called  
But to this extent the rules are clear 21 First it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case apart from the testimony of the complainant of the accomplice should in itself be sufficient to sustain conviction
22 Secondly the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime
This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence
23 Thirdly the corroboration must come from independent source and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another 24 Fourthly 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   See Rameshwar Kalyan Singh vs State of Rajasthan  In Rex vs Bhaskerville  Lord Reading CJ noticed the different views as to the extent and scope of reasonable corroboration 
The difference of opinion has arisen in the main in reference to the question whether the corroborative evidence must connect the accused with the crime
The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal   755 Resolving the difference of opinion it was held We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime
In other words it must be evidence which implicates him that is which confirms is some material particular not only the evidence that the crime has been committed but also that the prisoner committed it
The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute
In Halsbury s IV Edition Vol
II para 454 the following passage obtains Corroboration of a witness s testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged
It must be evidence which implicates him that is which tends to confirm in some material particular not only that the offence was committed but also that the defendant committed it
As to independent nature of the corroboration learned Chief Justice observed in Bhaskerville case  
Again the corroboration must be by some evidence other than that of an accomplice and therefore one accomplice s evidence is not corroboration of the testimony of another accomplice Rex vs Noakes   As to the extent of the requisite reassurance by way of corroboration learned Chief Justice said  
It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime
Parke B gave this opinion as a result of twenty five years  practice it was accepted by the other judges and has been much relied upon in later cases   756  
Indeed if it were required that the accomplice A should be confirmed in every detail of the crime his evidence would not be essential to the case it would be merely confirmatory of other and independent testimony   page 664 in Rex vs Bhaskerville In Halsbury s Laws of England IV Edn Vol
II page 268 this proposition is stated thus The word corroboration  is not a technical term of art it means by itself no more than evidence tending to confirm support or strengthen other evidence    
The corroboration need not consist of direct evidence that the defendant committed the offence nor need it amount to confirmation of the whole account given by the witness provided that it corroborates the evidence in some respects material to the charge under consideration
It is sufficient if it is circumstantial evidence of the defendant s connection with the offence but it must be independent evidence and must not be vague However there were some observations in Director of Public Prosecutions vs Killbourne 1973 Appeal AC 729 which tended towards a departure from the rule in Rex vs Bhaskerville
In Killbourne case Lord Hailsham said and this is also the statement of the law in Halsbury IV Edition Evidence which is admissible relevant to the evidence requiring corroboration and if believed conformatory of that evidence in a material particular is capable of being corroborative and when believed is corroboration
The above passage was not wholly in consonance with what Lord Reading had earlier said 
For example confirmation does not mean that there should be independent evidence of that which the accomplice relates or his testimony would be unnecessary Reg vs Mullins  1 per Maule J   But in R vs Beck   it was reiterated by way of clarification that corroborating evidence need not relate to 757 the particular evidence spoken to by a suspect witness and that it was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the accused person had committed it
Referring to the statement of Lord Hailsham in Killbourne case All England law reports 19821 page 815g it was observed The learned editors of Archbold para 1416 after in our judgment correctly stating that the corroborative evidence need not relate to the particular incident or incidents spoken to by the suspect witness express the view that Lord Hailsham s dictum that the corroborative evidence must be relevant to the evidence requiring corroboration may be misleading 
We agree
We do not think that Lord Hailsham LC was expressing any support for the proposition of counsel for the appellant
 The position of law in Rex vs Bhaskerville was thus restored 13
However a marked tendency in England towards arresting the formalism in regard to the specific words to be used to caution the jury against the danger of accepting the testimony of the uncorroborated accomplice is now discernible
In R vs Spencer   the grievance of the convicted person was that the trial judge in cautioning the jury failed to use the word dangerous  in describing the risks of injustice involved in convicting a person on the testimony of an uncorroborated accomplice
The Court of appeal and the House of Lords declined to set aside the verdict and said that the summing up did not involve some legalistic ritual to be incanted in the summing up
However in regard to the quality and extent of corroboration in R vs Donat 19861  it was reiterated that to count as corroboration it is not enough that a piece of evidence merely supports the accomplice s credibility however convincingly and independently but it must go a little further and implicate the accused
See All England Reports Annual Review 1986 page 158
In Sharvana Bhavan vs State of Madras AIR the corroboration was held to be of two kinds the first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness and the second which arises for conclusion after the court is satisfied about the credibility of the approver as to the corroboration in material particulars not only of the commission of the 758 crime but also of the complicity of other accused persons in the crime
If on the first area the court is not satisfied the second stage does not Arise
The position is attractively presented in Halsbury IV Edition Vol
II Page 268
Corroboration is required or afforded only if the witness requiring or giving it isotherwise credible if testimony falls of its own inanition the question of his needing or being capable of giving corroboration does not arise
 However the two areas of corroboration are not two separate water tight compartments
The evidence as a whole will have to be examined to reach conclusions on both aspects
In Attorney General of Hongkong vs Wong Muko Ping  Lord Bridge of Harwich speaking for the Judicial Committee of the Privy council said 
It is said that this two stage approach is implicitly indicated by passages from speeches in the House of Lords in two of the leading authorities   
The presence or absence of corroborated evidence may assist a jury to resolve one way or the other their doubts as to whether or not to believe the evidence of a suspect witness it must in their Lordship s Judgment be wrong to direct them to approach the question of credibility in two stages as suggested in the submission made on behalf of the defendant
The controversy in the present case in the ultimate analysis belongs to the second area whether the approver s testimony as to appellant s complicity in the conspiracy could safely be held to have been corroborated by independent evidence on the material particulars The facts that require sequentially to be established are that appellant s married life was in a serious disarray that she and Nand Singh were on terms of illicit intimacy that she also submitted herself to Ram Sarup PW 2 in an ex marital relation that on 13111973 she implored Nand Singh and Ram Sarup to free her from a cruel husband by doing away with him that she agreed that she would 759 thereafter live with Nand Singh as his wife and that after coming to know of Pritam Singh s death she deliberately missed her mother in law Mukhtiar Kaur PW 19 into making a report to the police containing false and misleading information in an attempt to draw a red herring across the trial
The evidence of PWs 17  18 on the first two points has been discarded by the sessions court
It is not also suggested that after the murder of Pritam Singh appellant began to live with Nand Singh
There was a considerable lapse of time between the death of Pritam Singh and their arrest
There is no evidence to show that in the interregnum there was any liasion between the two 16
There is yet another impediment in accepting the evidence on an important area of the alleged conspiracy
The incriminating circumstances in the evidence of the approver appearing against the appellant had had to be put to the appellant in her examination under Section 313 Cr
The incriminating testimony of the approver pertaining to the case that on 13111973 appellant wept and implored Nand Singh and Ram Sarup to do away with Pritam Singh and that appellant also agreed that she would thereafter live with Nand Singh has not been put to the appellant in the course of her examination under Section 313 Cr
PC Appellant was not afforded an opportunity to submit an explanation to it
That part of the evidence must for that reason be excluded from consideration See Harizan Mogha 17
On a consideration of the entire matter it appears to us that the approver s evidence in regard to the complicity of the appellant in the conspiracy lacks corroboration on certain material particulars necessary to connect the appellant
A little more reassurance than is afforded by the State of evidence in the case is perhaps necessary to convict appellant
Appellant in the circumstances would be entitled to the benefit of doubt
At the time of the commission of the offence the appellant even on the basis of the observations made by the session court was about 15 xab years of age and was a child within the meaning of East Punjab Children s Act 1949
The relevant date is the date of the commission of the offence
Section 27 of the Act provides 27
Sentences that may not be passed on child Notwithstanding anything to the contrary contained in any law 760 no person who as a child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment of fine damages or costs Provided that a child who is fourteen years of age or upwards may be committed to prison where the court certifies that he is of so unruly or of so depraved a character that he is not fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable
The sessions court has invoked the proviso and has held that appellant was so depraved a character that none of the other methods in which the case could legally be dealt with is suitable in her case
An examination of the legality or propriety of the procedure adopted in the case in the matter of the trial of a child  under the East Punjab Children s Act 1949 and as to the correctness of the view of the sessions court in appealing to the proviso to Section 27 and in sentencing appellant to imprisonment for life may not be necessary in this case in view of our finding that appellant is entitled to the benefit of doubt
In the result this appeal is allowed and while the conviction and sentence of the other non appealing accused is left undisturbed the conviction and sentence of the appellant is set aside and appellant is directed to be set at liberty forthwith
NPV Appeal allowed


Summary:
 The petitioner in this application under Article 136 of the Constitution entered into a contract with the respondent State for construction work
The contract could not be completed within the stipulated time because of alleged gross delay on the part of the State in allotment of work and discharge of its obligations under the contract
The petitioner incurred unforeseen expenditure and approached the Superintending Engineer for payment
Upon refusal of the Superintending Engineer to pay and also to refer the matter to arbitration the petitioner moved the District Judge under Section 20 of the Arbitration Act  the Act  for the filing of the arbitration agreement and for reference of the dispute to arbitration
The District Judge directed the respondent State to file the agreement and made a reference for specific question to the arbitration
The High Court dismissed the State s appeal against the order of the District Judge
Thereafter an arbitrator was appointed who made an award partly allowing the petitioner s claim
The award was filed in the Court of the District judge who made the award a rule of the court
The respondent appealed to the High Court
The High Court remanded the matter to the District Judge for a fresh decision
The District Judge accepted the respondent s objections and set aside the award
The High Court dismissed the appeal of the petitioner
The petitioner then moved this Court for relief by this petition for special leave
Dismissing the petition the Court  HELD The District Judge rightly found that the question regarding extra cost was a general question and not a specific legal question and the decision of the arbitrator was not final
The arbitrator 104 misconducted himself in allowing the claim without deciding the objection of the State
In view of the specific clauses the petitioner was not legally entitled to claim for extra cost
The decision of this Court in Seth Thawardas vs Union of India was of no avail on this point
If no specific question of law is referred the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally
The arbitrator is not a conciliator and cannot ignore the law or mis apply it in order to do what he thinks is just and reasonable
The arbitrator is a Tribunal selected by the parties to decide their disputes according to law and so he is bound to follow and apply the law and if he does not he can be set right by the Court provided his error appears on the face of the award
In this case the contractor having contracted could not go back to the agreement simply because it did not suit him to abide by it
111C F The petitioner had argued that since specific issues had been framed and referred by the District Judge to the arbitrator the same had been answered by a non speaking award and there was no mistake of law apparent on the face of the record and the District Judge had erred in setting aside the award by looking into the terms of the contract which neither formed part of the award nor were appended to it
The Court did not agree
This being a general question the District Judge rightly examined the question and found that the petitioner was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the State before giving the award
112B C The limits of the jurisdiction of the Court to challenge the award are well settled
While considering the objection under section 30 of the Act the Court does not act as an appellate Court it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under section 35c of the Act or the award has been improperly procured or is otherwise invalid
If a specific question is submitted to the arbitrator and he answers it the fact that the answer involves an erroneous decision in point of law does not make the award bad on its face so as to permit it being set aside
112E F 1l3A The High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the petitioner regarding extra cost towards rise in prices of material and 105 labour
Clauses 216 and 24 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract
There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Contract Act due to the abnormal rise in prices of materials and labour
This being so and the contractor having completed the work it was not open to him to claim extra cost towards rise in prices of material and labour
The arbitrator misdirected himself in not deciding this specific objection raised by the State regarding the legality of the extra claims of the petitioner
It has to be born in mind that there were specific clauses which barred consideration of extra claims in the event of price escalation
113D F 114B The award was properly set aside by the District Judge and the High Court was right in the view it took and there was no ground to interfere
113G Seth Thawardas vs Union of India  Ms Alopi Parshad vs Union of India   Kapoor Nilokheri Co operative Dairy Farm Society Ltd vs Union of India  Champsey Bhara and Co vs Jivraj Balloo Spinning and Weaving Co Ltd AIR 1923 PC 66 Re
King and Duveen  Government of Kelantan vs Duff Development Co Ltd  Bungo Steel Furniture vs Union of India   Saleh Mohd vs Nathoo Mal 54 IA 427 Abosalom Ltd vs Great Western  Allen Berry  Co vs Union of India  and Tarapare and Company vs Cochin Shipyard Ltd Cochin and Anr
1984 2 SCC 680 referred to