minal Appeal No 101 of 1958
Appeal by special leave from the judgment and order dated the 12th September 1956 of the Calcutta High Court in Criminal Appeal No 19 of 1956 arising 127 out of the judgment and order dated the 8th December 1955 of the Sessions Judge Birbhum in Sessions Trial No 1 of November 1955
H J Umrigar and D N Mukherjee for the appellant
K B Bagchi P K Ghosh for P K Bose for the respondent
May 8
The Judgment of the Court was delivered by IMAM J
The appellant was sentenced to imprisonment for life under section 302 by the Sessions Judge of Birbhum who agreed with the majority verdict of the jury that he was guilty
He appealed against his conviction to the Calcutta High Court
That Court being of the opinion that there was no misdirection in the Sessions Judge s charge to the jury dismissed the appeal
Two persons Jagdish Gorain and Sudhir Gorain were also tried along with the appellant but were acquitted by the jury whose verdict the Sessions Judge accepted
The appellant appealed to the High Court for a certificate to appeal to this Court which was refused
The present appeal is by special leave
According to the prosecution Sibapada Hati was married to a girl by the name of Lila
About a month previous to the date of occurrence the appellant had made a proposal to her that she should live with him which was rejected
The appellant thought that the removal of Sibapada Hati would clear the way and improve his chance of gaining Lila s favour
Accordingly he murdered Sibapada Hati on the May 26 1955
In that murder he was assisted by Jagdish Gorain Sudhir Gorain and the approver Sastipada Ghose
The conviction of the appellant depended on the evidence of the approver and the circumstantial evidence which corroborated him in connecting or tending or connect the appellant with the murder of the deceased Sibapada Hati
Unless there was a misdirection or non direction amounting to a misdirection in the charge to the jury which in fact had occasioned a failure of justice the jury s verdict must prevail and 128 it cannot be interfered with
The High Court was of the opinion that there was no misdirection in the Sessions Judge s charge to the jury and we are in agreement with the High Court
We have examined the charge to the jury
The Sessions Judge in dealing with the evidence of the approver charged the jury as follows  Before doing so some established legal principles as regards the approver s evidence and the confessions on which the prosecution has relied in the present case are required to be explained to you
The approver is a competent witness against an accused person and although his evidence is strictly admissible and a conviction is not illegal merely because it is based on approver s evidence it is a settled rule of practice not to convict a person on such evidence except under very rare and exceptional circumstances and usually substantial corroboration is required
I therefore warn you gentlemen that it is highly dangerous to convict on approver s evidence alone
There can no doubt be a legal conviction upon the uncorroborated evidence of an accomplice and as already stated the uncorroborated testimony of an accomplice is strictly admissible and a conviction based on it alone is not illegal yet you should remember gentlemen that experience teaches us that an accomplice being always an infamous person he having thrown to the wolves his associates and friends in order to save his own skin and though criminal has purchased his liberty by betrayal his evidence must be received with very great caution and it is highly dangerous to act upon his evidence unless it is materially corroborated
I must also tell you that this rule as to corroboration has become a settled rule of practice of so universal an application that it has now almost the force and reverence of law
Corroboration must be as to the crime and the identity of each one of the accused and the corroboration required must be independent evidence that is reliable evidence of another kind
129 Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect the accused with the crime
In other words
it must be evidence which implicates him that is which conforms in some material particulars not only the evidence that the crime has been committed but also that the prisoner accused committed it
Corroborative evidence you should bear in mind is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true
The corroboration need not be direct evidence that the accused committed the crime
It would be sufficient if it is merely circumstantial evidence of his connection with the crime
The corroboration in material particulars must be such as to connect or identify each of the accused with the offence
In the present case a previous statement of an approver viz the confession has been made exhibit before you but that previous statement you are further to bear in mind cannot corroborate his latter statement viz the statements that have been made by him before you in this Court
In dealing with the question what amount of corroboration is required you gentlemen must exercise careful discrimination and look at all the surrounding circumstances in order to arrive at a conclusion whether the facts deposed to by the approver Sastipada are borne out by those circum stances  Mr Umrigar on behalf of the appellant urged that the aforesaid direction given by Sessions Judge to the jury was not sufficient
The jury should have been told 1 in accordance with the decision of this Court in the case of Sarwan Singh vs The State of Punjab 1 that the approver s evidence has to satisfy a double test
It must show that he is a reliable witness and that his evidence receives sufficient corroboration 2 that the evidence of an approver must be confirmed not only as to the circumstances of the crime but also as to the identity of the prisoner
The corroboration 1  17 130 ought to consist in circumstances that affects the identity of the party accused
Reliance was placed on the case of The King vs Baskerville 1 3 that the circumstantial evidence corroborating the approver was not sufficient to connect the appellant with the murder of the deceased and 4 that on similar corroboration of the approver s testimony the accused Jagdish Gorain had been acquitted
There was no real distinction between the case of Jagdish Gorain and the appellant
It is true that in Sarwan Singh s case this Court had held  The appreciation of an approver s evidence has to satisfy a double test
It must show that he is a reliable witness and that his evidence receives sufficient corroboration and that is a test which is common to all witnesses
If this test is satisfied the second test which still remains to be applied is that the approver s evidence must receive sufficient corroboration
This test is special to the cases of weak or tainted evidence like that of the approver
 These observations were made in the special circumstances of the case which this Court was deciding when dealing with the case of Sarwan Singh
This Court went on to observe  The argument that the character of the approver s evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case because as we shall presently point out the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that the approver in the present case is a wholly unreliable witness
Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdial Singh and have ultimately found that the account given by the approver is unreliable and though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh that would not be enough to sustain his conviction
It seems to us that if it was found that the approver s account against one of the accused persons was wholly discrepant this 1 1916 2 KBD 658 131 finding itself should inevitably have led the court to scrutinise his evidence in respect of the other accused persons with greater caution
 It is clear therefore that in the special circumstances of the case of Sarwan Singh the approver had been found to be a wholly unreliable witness
It is important to observe that this Court stated that the approver s evidence must show that he is a reliable witness and that is the test which is common to all witnesses
Nothing has been shown to us in this case as was shown in Sarwan Singh s case that apart from the approver s testimony in the present case being regarded as tainted evidence his evidence as it stood was in any way unreliable
Indeed the Sessions Judge went to the length of telling the jury that although an approver s evidence is strictly admissible and a conviction is not illegal merely because it is based on an approver s evidence it was a settled rule of practice not to convict a person on such evidence except under very rare and exceptional circumstances and usually substantial cor roboration was required
The jury could not have been more clearly warned about the danger of acting on an approver s evidence
In other words the jury were told not to convict the appellant on the approver s evidence unless his evidence had been substantially corroborated
Apart from the question of corroboration of the approver s evidence nothing was suggested to us or to the High Court in what respect the approver s evidence was unreliable after testing his evidence in the same way as one would test the evidence of any witness for the prosecution in a criminal case
In our opinion the decision in Sarwan Singh s case can be distinguished in the present case
Obviously it was never suggested that the approver s evidence in this case was entirely unreliable if his evidence was tested in the same way as the evidence of any prosecution witness in a criminal trial
We cannot accept the submission made on behalf of the appellant that the charge to the jury is vitiated because of the decision of this Court in Sarwan Singh s case
132 As to the second submission made by Mr Umrigar it is to be remembered that in Baskerville s case the Court of Criminal Appeal in England after discussing various authorities on the subject came to the following conclusion   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 in 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 offenses for which corroboration is required by statute
The language of the statute implicates the accused  compendiously incorporates the test applicable at common law in the rule of practice
The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged
It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true not merely that the crime has been committed but that it was committed by the accused
 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
In the present case the jury had been clearly directed by the Sessions Judge that corroborative evidence must be evidence which implicates the accused ie which confirms in some material particulars not only the evidence that the crime had been committed but also that the appellant had committed it
The Sessions Judge told the jury that  Corroborative 133 evidence you should bear in mind is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true
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
The corroboration in material particulars must be such as to connect or identify each of the accused with the offence
 It seems to us that the Sessions Judge directed the jury in accordance with the principle laid down in Baskerville s case and no serious objection can be taken to the manner in which the Sessions Judge directed the jury in this respect
The moment there is corroborative evidence which connects or tends to connect an accused with the crime such corroborative evidence relates to the identity of the accused in connection with that crime
It is the approver s evidence which is the direct evidence of the crime
There should be corroboration in material particulars not only concerning the crime but corroboration of the approver s story by evidence which connects or tends to connect an accused with the crime
It is this corroborative evidence which determines the mind of the Court or a jury that the approver s evidence that the accused committed the crime is true
As to the 3rd Submission made on behalf of the appellant the following circumstances were established by the evidence which were accepted by the jury 1
There was a motive for the appellant to commit the crime that is to say his immoral proposal to Lila wife of the deceased
On the 25th of May 1955 the appellant came to Lila s house and had a talk with the deceased
On the 26th of May 1955 in the morning the appellant also came to the house and talked with the deceased
Later on that very day a little after sunset the appellant came to the house and asked the deceased to go for a walk with him
The deceased did so 4
Thereafter the appellant was seen going with Jagdish Gorain and the deceased by Brojeswari and 134 Lila towards the north of the village after 5 pm while they were bathing in Talbona tank
According to the approver at the time that the deceased was stabbed by the appellant he had sustained an injury on the dorsum of his left palm
The medical evidence established that the appellant had an almost healed up ulcer I inch in length on the left side of the palm at its posterior surface one inch below the wrist joint and another healed up ulcer 13 inch in length on the left thumb at the posterior surface and that these injuries could be caused by a sharp cutting weapon like a knife
As it had become night and the deceased had not returned Lila s mother Brojeswari and
her uncle Radharaman Sadhu searched for him
They went to the club house where the appellant and his two co accused Jagdish Gorain and Sudhir Gorain and the approver used to associate with each other
When enquiries were made from the appellant by Brojeswari he first replied that the deceased had not gone with him and that he did not know anything about his whereabouts
When he was remainded that it was he who had taken the deceased for a walk which he was denying the appellant replied that the deceased went with him upto the canal towards north of the village but as he felt a headache he came away and it was not possible for the appellant to give any news about the deceased s whereabouts
The above mentioned circumstances either individually or collectively may fall short of proving that the appellant committed the murder of the deceased
Indeed the High Court was of the opinion that these circumstances independent of the direct evidence of the approver would not be sufficient to induce any reasonable person to come to the conclusion that the appellant had committed the crime
As already stated however the approver s evidence is the direct evidence which establishes that the appellant had murdered the deceased
The jury had to decide for themselves whether the above mentioned circumstances were sufficient corroborative evidence to satisfy 135 them that the approver s evidence that the appellant murdered the deceased was true
It is however urged by Mr Umrigar that the circumstances mentioned were not circumstances corroborating the evidence of the approver in material particulars which would connect or tend to connect the appellant with the crime
In our opinion at least in one circumstance the corroboration is in a very material particular connecting or tending to connect the appellant with the crime
The approver s evidence that while the appellant was murdering the deceased he had received an injury on the dorsum of his left palm is corroborated by the medical evidence
It was however pointed out that the medical evidence does not show that the injury was on the dorsum of the left palm
In our opinion there is no substance in this submission because the first injury is described as one on the left side of the palm at its posterior surface 1 inch below the wrist joint that is to say the dorsum of the left palm
The second injury is clearly on the left thumb at its posterior surface which is also consistent with the evidence of the approver that the dorsum of the left palm was injured
The jury were entitled to accept this evidence as sufficient corroboration in a material particular connecting the appellant or tending to connect him with the crime
In addition the circumstance that it was the appellant who had called for the deceased a little after sunset and had taken him away and thereafter was seen going along towards the north of the village with the deceased and that thereafter the deceased was not seen alive was one upon which the jury could rely in coming to the conclusion that it connected or tended to connect the appellant with the crime
The appellant s pretended ignorance of the whereabouts of the deceased that very night and his ultimate admission that he had taken the deceased towards the north of the village was also a circumstance upon which the jury could rely as inconsistent with his innocence
In our opinion all the circumstances referred to above were sufficient corroboration of the approver s evidence connecting or tending to connect the appellant with 136 the crime and accordingly the approver s evidence that the appellant did commit the crime was true
As to the 4th submission that although there was similar corroboration of the approver s evidence against Jagdish Gorain but he had been acquitted by the jury although no real distinction between his case and the case of the appellant arose is unsound as in our opinion the two cases are not comparable
In the first place there was no motive for Jagdish Gorain to commit the murder
In the second place the injury which Jagdish received was while he caught the knife in the hand of the appellant saying  what have you done The approver s evidence therefore rather tended to show that he tried to prevent the appellant from further stabbing the deceased
These circumstances may have induced the jury to make a distinction between the case of Jagdish Gorain and the appellant
It was for the jury to say whether they regarded the circumstantial evidence as sufficient to connect or tending to connect Jagdish with the crime
It would seem that on the approver s evidence the jury may well have regarded the circumstances as insufficient corroboration to connect or tending to connect Jagdish Gorain with the crime
In our opinion it cannot be said with any good reason that there was any defect in the charge to the jury delivered by the Sessions Judge which would justify us in saying that the verdict of the jury was vitiated
The appeal is accordingly dismissed
Appeal dismissed


Summary:
The respondents who were non residents carrying on business at Secunderabad within the territories of the Nizam of Hyderabad were acting as agents of two firms in Bombay and Madurai in British India for the supply of certain goods to the Nizam s Government
In respect of the Commission due to the respondents by the firms the agreement between the parties was that the amounts were to be paid to the respondents in cash or by cheques at Secunderabad
For these amounts cheques drawn by the firms on the Bombay and Madras branches respectively of the Imperial Bank of India were sent by post at Bombay and Madurai to the respondents at Secunderabad and when received they were credited in their books of account the cheques being sent to their banker there for collecting and crediting to their account
For the assessment year 1945 1946 the Income tax Officer Berhampur in British India assessed these sums as taxable income holding that the amount was received in British 869 India and not at Secunderabad
The Appellate Tribunal found that all the cheques received at Secunderabad by the respondents were treated by them as payment
The respondents claimed that in view of the agreement between the parties that the amount of commission should be paid at Secunderabad when the cheques were sent by post the post office was the agent of the debtor and not of the respondents that the amount must be treated as having been received when the post office delivered the cheques to the respondents and that consequently the amount cannot be treated as having been received in British India
The Income tax authorities relied on the decision in Commissioner of Income tax vs Ogale Glass Works Ltd 1955 I SCR 185
Held that in the case of payment by cheques sent by post the determination of the place of payment would depend upon the agreement between the parties or the course of conduct of the parties
If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted
But where as in the present case the agreement was that the amount was to be paid at Secunderabad outside British India when the cheques were received by the respondents there the amount must be deemed to have been received at that place and therefore the amount was not liable to be taxed in British India
Commissioner of Tncome tax vs Ogale Glass Works Ltd  distinguished