iminal Appeal No225 of 1969
Appeal by special leave from the judgment and order dated December 18 1962 of the Bombay High Court in Criminal Appeal No 1426 of 1968 and confirmation Case No 21 of 1968
Yogeshwar Prasad for the appellant
section B Wad and section P Nayar for the respondent
The Judgment of the Court was delivered by Ray J
This appeal by special leave is against the judgment dated 18 December 1968 of the High Court at Bombay dismissing the Appeal and confirming the conviction of Moti alias Narayan Sheshanna Yadav and Sheshanna Bhumanna Yadav accused No 2 nd 3 respectively except that the conviction of accused No 2 of the substantive offence of murder under section 302 was altered and accused No 2 was convicted of an offence under section 302 read with section 120B as well as of offence under section 302 read with section 34 of the Indian Penal Code
The High Court confirmed the sentence of death passed against accused No 3 Sheshanna Bhumanna Yadav
Accused No 2 son of accused No 3 was at the time of the judgment of High Court of 17 years of age
The High Court reduced the punishment of accused No 2 to rigorous imprisonment for life
Accused No 1 Hiralal was the domestic servant of Dr Nanavati grandfather of the deceased Narendra
Accused No 2 is the son of accused No 3
Accused No 1 Hiralal Jamnadas Joshi accused No 2 Moti alias Narayan Sheshanna Yadav and accused No 3 Sheshanna Bhumanna Yadav were charged with having entered into crimi nal conspiracy with approver Dinkar Sakharam between 19 619 December 1967 and 4 January 1968 at Deolali Camp for the purpose of committing the murder of Narendrakumar and com mitted house breaking and thefts in the house of his grand father Dr Nanavati and disposed of the property so Obtained and caused the evidence of murder to disappear with the intention of screening the offenders from lawful punishment and that these acts were done in pursuance of the said criminal conspiracy an offence punishable under section 120B read with sections
302 454 380 414 and 201 of the Indian Penal Code
Accused No 1 to 3 were further charged with having committed the murder of Narendrakumar in complicity with  approver Dinkar Sakharam and the said murder came to be committed in furtherance of common intention of all the accused an offence punishable under section 302 read with section 34 of the Indian Penal Code
They were further charged under sections 201 454380 and 411 of the Indian Penal Code
Dr Dalichand Nanavati the grand father of deceased Naren drakumar who met unnatural and unfortunate end at the hands of accused No 2 and one Dinkar Sakharam subsequently turned approver resided at Deolali Camp at Dhondi Road in bungalow No 17 for about 1 1 years
He was a registered medical practitioner
At the relevant time he was in pharmaceutical business for the manufacture of medicines
The head office was at Bombay
The branch was at Deolali
The owner of bungalow No 17 was Narsanna Bhumanna Yadav brother of accused No 3
Narsanna was a person of unsound mind and accused No 3 was the holder of power of attorney
Accused No 3 resided at the rear portion of bungalow No 17
The bungalow was agreed to be sold to Dr Nanavati
There were civil and criminal proceedings out of that transaction
Bungalow No 17 was eventually sold to a third party on 11 May 1964
In the sale deed it was said that possession of the portion in the occupation of Dr Nanavati would be handed over to the vendee when the proceedings pending against Dr Nanavati concluded
Dr Nanavati succeeded in those proceedings
Therefore possession could not be given by the vendor to the vendee
In the month of November 1967 Dr Nanavati s wife left Deolali for Jodhpur
Dr Nanavati also left Deolali and went to his native place leaving his grandson Narendra who was about 15 years of age in the care  of his domestic servant accused No 1
The prosecution case was as follows
Accused No 3 thought that Dr Nanavati s departure from Deolali leaving his grandson Narendra at the bungalow in charge of the domestic servant was a good opportunity to commit theft of articles in the house of Dr Nanavati and to murder his grandson Narendra 620 with a view to frightening Dr Nanavati to vacate the bungalow Accused No 3 called Dinkar on 19 December 1967 and suggested to Dinkar that the latter should commit the murder of Narendra after 21 December 1967 when Dr Nanavati would leave the bungalow and his grandson Narendra would be there with the domestic servant
Accused No 3 proposed a reward to
Dinkar namely a motor cycle and a further sum of Rs 100 Accused No 3 told Dinkar that the said accused had committed two murders prior to that date but nothing happened to him
Dinkar at first expressed his inability to undertake the job
Accused No 3 then said that Dinkar should take accused No 2 who was the son of accused No 3 for the job
Accused No 2 and Dinkar started getting familiar and  friendly with Narendra
They visited his house regularly
They moved about with Narendra
On 25 December 1967 accused No I the domestic servant of Dr Nanavati left Deolali and went to Bombay
Accused No 2 and the approver Dinkar took Narendra out with the intention of murdering him but because of certain interruptions they could not muster courage to achieve that object
On 27 December 1967 accused No 3 called Dinkar and told him and accused No 2 that he was going to Nasik in connection with some court work and they should murder Narendra and that he would look to everything after his return from Nasik
Nasik is about 5 or 7 miles from Deolali Accused No 2 and Dinkar took Narendra to a lonely area beyond Barne s High School on the pretext of collecting clothes from a washerman and went to the house of the latter and collected a couple of garments
Thereafter they went to a grarden where they drank water and then went to a open field
There they plucked fresh groundnuts and started eating them
Accused No 2 and Dinkar took Narendra to a jowar field
Dinkar gave a blow with his hand on the neck of Narendra as a result of which Narendra fell down
Accused No 2 and Dinkar held Narendra tightly
Dinkar set upon his abdomen and started choking his throat with both his hands and accused No 2 gagged his mouth and nose
Dinkar gave blows on Narendra s abdomen
After Narendra was choked for about 10115 minutes be breathed his last
Accused No 2 then asked Dinkar to take out the key of the bungalow which he had seen Narendra putting in his pocket and Dinkar removed the key and gave it to accused No 2
Accused No 2 scraped some earth and dug a small pit and placed Narendra in it face downwards and covered it with some loose earth
Accused No 2 and Dinkar then returned to the house of accused No 3
On being told that accused No 2 and Dinkar had ac 621 complished the murder of Narendra accused No 3 was happy and gave them Rs 1 0 to celeberate the occasion by seeing a picture
Accused No 3 told accused No 2 and Dinkar that the following day they must take out all the goods from the house of Dr Nanavati and hand them over to him
When Dinkar went to the house of accused No 3 the following morning Dinkar heard accused No 2 and 3 saying that Dr Nanavati would not be able to live in that bungalow any longer
Accused No 2 and Dinkar then went to the bungalow of Dr Nanavati and opened the lock with the key which had been removed from Narendra s pocket
Accused No 2 and  Dinkar locked the front door from outside and kept the back door ajar and removed a large number of articles which were in cupboards which they opened with the help of a bunch of keys which they found in the house
Accused No 2 and Dinkar again went to the bungalow of Dr Nanavati on the subsequent day
They removed two cycles and several other articles and
handed them over to accused No 3
Accused No 3 gave to the approver Dinkar a cycle and some of the property which had been recovered from the house of Dr Nanavati
Dr Nanavati returned to Deolali along with his wife on 4 January 1968
They found the front door of the house locked
They made enquiries
Ultimately they entered the house by breaking open the lock and found that Narendra was not in the house that the whole house had been ransacked and the back door was ajar
Dr Nanavati reported the matter to the police
Clue was furnished by a piece of cloth which had been stolen from the house of Dr Nanavati
That piece of cloth had been given by accused No 3 to the approver Dinkar who gave it to a tailor named Thakur for stitching a pair of trousers for him
Dr Nanavati happened to go to the shop of Thakur and made enquiries about the piece of cloth which was found in the tailor s shop
Accused No 2 and Dinkar took away the cloth from the tailor s shop when they heard of the enquiries about the piece of cloth
Dinkar gave some money to the tailor
Dinkar and accused No 2 raised some money by pledging a cycle which they had with them
The police came to the tailor s shop made enquiries and ultimately accused No 2 and Dinkar were arrested on 23 January 1968
Dinkar pointed out the place of the occurrence to the police on that day
On 24 January 1968 some human bones were found at that place
On 25 January 1968 accused No 3 was arrested
Dinkar and accused No 2 made various statements and led the police to various places
Several articles stolen from the house of Dr Nanavati were recovered
On 12 February 1968 Dinkar made a full fledged detailed confession
622 In the High Court three questions were canvassed
First whether there was corroboration in regard to the crime
Secondly whether there was corroboration in regard to accused No 2 and 3 being guilty of the offence
Thirdly whether there was corroboration in regard to the approver s story about the conspiracy and the common intention by way of a pre conceived plan to murder Narendra
The High Court found that there was corroboration of the evidence which connected accused No 2 3 not only with the offence of theft but also with murder
The High Court also came to the conclusion that there was corroboration of the evidence of Dinkar in material particulars in regard to the connection of the accused with the crime and in regard to the conspiracy as well as the common intention
The law with regard to appreciation of approver s evidence is based on the effect of sections 133 and 114 illustration b of the Evidence Act namely that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone
The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice
The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the commission of crime
The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required
Corroboration must connect or tend to connect the accused with the time
When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated
That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused
If a witness says that the accused and he stole the sheep and he put the skins in a certain place the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused
But if the skins were found in the accused s house this wouldcorroborate because it would tend to confirm the statement that the accused had some hand in the theft
This Court stated the law of corroboration ofaccomplice evidence in several decisions
One of the earlier decision is Sorwan Singh vs State of Punjab  and the recentdecision is Lachi Ram vs State of Punjab 
In Sarwan Singh s case this Court laid down that before the court would look into the 1  2  623 corroborative evidence it was necessary to find out whether the approver or accomplice was a reliable witness
This Court in Lachi Ram s case  said that the first test of reliability of approver and accomplice evidence was for the court to be satisfied that there was nothing inherently impossible in evidence
After that conclusion is reached as to reliability corroboration is required
The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime
In the present appeal counsel on behalf of the appellant contended that there was no corroboration of the actual participation in the murder and secondly that accused No 3 could be guilty of theft but not of murder
The washerman said that Dinkar was his classmate and through Dinkar he came to know accused No 2
The washerman further said that he used to wash the clothes of accused No 2 and on 27 December 1967 Dinkar and accused No 2 came to the washerman s house to take out a few clothes which he had washed for them
The washerman also said that Dinkar and accused No 2 had with them a boy who was of fair skin and wore khaki shorts and a white shirt Mohan Lal Boob an agriculturist gave evidence that on 27 December 1967 he was watering the crops
Three persons turned up one of whom was accused No 2 and the other was known to him by face and the third was a boy of 14 or 15 years of age wearing khaki shorts and a shirt
Mohan Lal Boob said that he saw all of them sitting down in the field drank water and purchase radishes from a woman who was sitting nearby
It may be difficult to find corroborative evidence of the actual killing
Dinkar showed the place of occurrence
Eventually a few things were discovered there namely a shirt a chain a skull having the upper jaw with 13 teeth a bone bunch of hair
These things were found on 28 January 1968
The shirt and the chain were identified by Dr Nanavati and his wife to belong to Narendra
A girl of 14 named Garadin Bride who was a classmate of Narendra said that Narendra wore a chain similar to the one that was shown
The medical evidence was that the bones were those of a human being probably a male
Beyond that the medical evidence does not assist the prosecution
The  High Court found that the death of Narendr a was not disputed because it was put to Dinkar in cross examination that it was Dinkar alone who killed Narendra
Therefore the medical evidence as to the skull and the bone is not of importance in view of the death of Narendra
Dr Nanavati en 1  624 tered the house by breaking open the lock
He found the back door left ajar
The key which was produced by Dr Nanavati was found to fit the lock though the lock could not be operated with the key in view of the fact that Dr Nanavati had broken it open for gaining entry into the house
There is also evidence of Kisan Prasad that after Christmas day in 1967 he saw a dead body which had on it khaki shorts and white shirt
If the murder of Narendra and the theft were not parts of the same transaction Narendra would not have been taken out to the field to be murdered there to eliminate the possibility of detection
The close proximity between murder and theft points to the inescapable conclusion that they formed part of the same transaction
Narendra was seen alive by Kewal Ram owner of the betel shop on 26th December 1967
Hira Lal the domestic servant of Dr Nanavati left Deolali on 25 December 1967
The theft could not have been committed before the murder because in that case there would be complaint by Narendra and the house in that case would also have been broken I open for committing the murder
All these features prove that the murder and the theft formed the same transaction and were committed by the same persons
Narendra was seen alive in the company of accused No 2 and Dinkar
That was the evidence of the washerman as also of the agriculturist Mohan Lal Boob
These witnesses further identified the shorts and shirt of Narendra
Accused No 2 produced the piece of cloth which was iden tical with the cloth of the matteress cover produced by Dr Nanavati
Both the pieces of the cloth were of the identical design
The pledging of the cycle by accused No 2 is of significance
The cycle was identified both by Dr Nanavati and his wife
The next piece of evidence is that accused No 2 sold some utensils to Gadekar
One of the utensils was found to have a name thereon scraped off
There was also a piece of hand writing with the signature of accused No 2 at the foot of it and that was the list of the articles sold to Gadekar
There were some articles found from the tailor s shop
The evidence of the tailor was that that those articles were given by accused No 2
The discovery of the chain which Narendra wore was identified by Dr Nanavati
Accused No 2 sold a cycle carrier to Rupvate on 16 January 1968
The sale of that article was discovered on 23 January 1968
Dr Nanavati identified the cycle carrier
That identification was not challenged
All these pieces of evidence prove the connection of accused No 2 with the crime
With regard to accused No 3 it is found that there were civil and criminal proceedings between him and Dr Nanavati
625 Accused No 3 had the motive not only to make it impossible for Dr Nanavati to stay in the bungalow but also to commit theft in his house
Accused No 3 gave several articles to a person called Takalkar
Takalkar bad dealings with accused No 3 in the past
Takalkar said that accused No 3 gave him some pieces from silver idols and other silver articles and wanted money by disposing of the same
Takalkar purchased the entire silver material from accused No 3 for Rs 175
Takalkar also said that at the request of accused No 3 he kept that bag of utensils in his godown and gave the key of the godown to accused No 3 who afterwards returned the key The police cam  to the shop of Takalkar and he was asked to produce the gunny bag which he did
The articles in the gunny bag were taken and the articles excepting the lump of silver were identified by Dr Nanavati and by his wife
The identification was not challenged in cross examination
It is obvious that silver lump could not be identified
At this stage it is to be noticed as to whether there is evidence to connect accused No3 with murder
The transaction was one composite unit of murdering Narendra and committing theft
The discovery of articles in the godown of Takalkar was as a result of a statement by accused No 2
The name of accused No 3 was found in the note book of Takalkar
The relationship of father and son between accused No 3 and accused No 2 is not to be lost sight of
Accused No 2 and 3 went together for the sale of cycle carrier to Rupvate
The High Court rightly came to the conclusion that there was sufficient corroboration of the evidence of Dinkar in material particulars and that Dinkar was a reliable witness and it was proved that accused No 2 and 3 were guilty of the offence In view of the fact that there was capital sentence of accused No 3 we went through the evidence to find out as to whether there was any infirmity in evidence
We have found none
The appeal therefore fails
The accused will surrender to his bail
if any
VPS Appeal dismissed


Summary:
Two accused father and son were convicted of the offence of murdering a young boy of 15 and the offences of house breaking and theft next day of articles from the house of the grand father of the deceased in which the deceased was living alone at the time of his murder
The evidence mainly consisted of that of the approver The corroboration of the approver s evidence as against one of the accused the son consisted of the following  i on the day of the occurrence two witnesses saw the accused the approver and another a young boy of 15 wearing khaki shorts and a white shirt 2 a few days later another witness saw a dead body at the scene of the crime a field with khaki shorts and a white shirt 3 the grand father discovered the theft and the disappearance of his grandson when he returned to the house a week after the occurrence 4 the approver on the date of his arrest pointed out to the police the scene of the crime where among other things a shirt a chain and some bones were found the shirt and chain were identified to be those of the deceased and according to the medical evidence the bones were those of a human being possibly male 5 the accused after his arrest produced to the police a piece of cloth stolen from the house 6 the evidence of pledge of a cycle and sale of a cycle carrier belonging to the grand father of the deceased 7 sale of some utensils belonging to the grand father of the deceased by the accused after scrapping off the name and 8 the finding of a cloth belonging to the grandfather of the deceased in a tailor s shop
which the accused hastened to take away when he learnt that the grand father was questioning the tailor about the cloth
As regards the other accused the father the corroborating evidence consisted of the following  1 there were civil and criminal proceedings between him and the grand father of the deceased over the possession of the house  2 he gave and sold several articles and pieces of silver to a witness who was traced by the police as a result of the statement of the accused son
The articles were produced before police
and all of them except one lump of silver were identified by  the grandfather of the deceased as his articles 3 it was this accused who gave the piece of cloth to the approver who gave it to the tailor and which was hastily taken away by his son and 4 he joined his son in the sale of cycle carrier
On the question whether the corroboration was sufficient in law HELD  In Sarwan Singh vs State of Punjab  and in Lachi Ram vs State of Punjab   it was held that the court should be satisfied  1 that the approver or accomplice was a reliable witness 2 there must be reliable corroboration of the approver s evidence and 3 there must be sufficient corroborative evidence in material particulars to connect the accused with the crime
The nature of 618 corroboration is that it is confirmatory evidence and may consist of the evidence of another witness or of circumstances like conduct of the accused
When it is said that corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated
It must confirm that part of the testimony which suggests that the crime was committed by the accused
622 E F 625 A B In the present case apart from the relationship between the two accused there was also close association in the disposal of the articles
The close proximity of time between the murder and theft points to the inescapable conclusion that they formed part of the same transaction
Since the transaction was one composite unit of murdering and committing theft and it was found that the approver was a reliable witness all the pieces of evidence afforded sufficient corroboration of the approver s evidence in material particulars and proved that the accused were guilty  of the offences with which they were charged
624 C D 625 D E