Kanka Singh and Another vs The State

G.C. Das, J.—This is an appeal by two Appellants Kanka Singh and Peta Singh against their conviction u/s 201 I. P. C., and the sentence of R.I. for five years each.

Originally the Appellants were charge-sheeted under Sections 302 and 201, I.P.C. At the trial, however, an alternative charge was framed under Sections 302/34, I. P. C. The learned Sessions Judge on a careful consideration of the evidence of p.ws. 1 to 5 disbelieved the prosecution case as far as the murder is concerned and acquitted the Appellants both under Sections 302 and 302/34. He, however, convicted them u/s 201 relying upon the evidence of the self-same witnesses.

The prosecution case, briefly stated, is this. The Appellants Kanka Singh and Peta Singh in furtherance of their common intention caused the death of Sandhya Singh by giving lathi blows on his head in the afternoon of June 2, 1959. They were also charged for having caused the evidence of death of Sandhya Singh to disappear by removing the deadbody and depositing it first in the cattle shed of the deceased and subsequently carrying it to river Sona where the deadbody was cut into pieces and thrown into the river. A police Havildar received information on June 4 and lodged the first information report (ext. 14) on the same day at about 5 p. m. in the police station. On June 5 the skeleton of the mutilated trunk with its head, hands and legs chopped off was recovered. This trunk was sent for post mortem examination to the medical officer who held the post mortem examination on June 6, 1959 at 10 a. m. He, however was unable to give any opinion whether the mutilation of the legs, bands and the bead was ante mortem or post mortem (vide post mortem report ext. 12). Thereafter on June 7, the skull was recovered which was also sent for further post mortem examination. The medical officer found something like a depressed fracture on the frontal bone 1" above the left eye of the size of 2" x �". The medical officer- was unable to give any opinion whether the wound was ante mortem or post mortem.

The prosecution examined five witnesses p. ws. 1 to 5 as direct witnesses to the occurrence, besides the other formal witnesses. The learned Sessions Judge relied upon the evidence of p. ws. 1 to 5 and came to the conclusion that the two Appellants were responsible for the disposal of the deadbody in order to conceal the evidence of murder and accordingly convicted them as stated earlier.

Mr. S. C. Mohapatra, learned Counsel on behalf of the Appellants, contended that the learned Sessions Judge should not have relied upon the same set of evidence witnesses whom he had disbelieved while considering the charge both u/s 302 and Section 302/34, I.P.C. Secondly he contended that the p.ws. 2 to 5 were accomplices and their evidence should not have been accepted by the learned sessions judge without any independent corroboration.

It is evident from the records of the case that the murder, if any, was committed on June 2, 1959. The trunk without the head, hands and legs was recovered on the 6th and the skull was recovered on the 7th. These mutilated parts of the body were not identified by anybody even by his widow, p.w. 1, to be that of the deceased Sandhya Singh. The only attempt at identification was made by the prosecution by examining p.ws. 2, 3 and 4 to the effect that they chopped off the head, the arms and the legs from the deadbody of Sandhya Singh. Even if that evidence is taken to be true that does not connect the mutilated; parts recovered with the deadbody of Sandhya Singh. Of the prosecution witnesses relied upon by the learned Sessions Judge, p. w. 1 is the widow of the deceased. She is a thoroughly discredited witness and .no reliance can be placed on her evidence for any purpose whatsoever. Appellant Kanka Singh is a nephew of the deceased whereas Appellant Peta Singh is grandson by courtesy, There is no evidence with regard to the existence of any enmity between the deceased and the Appellants. The evidence is that it is Kanka Singh who went to call p. ws. 2, 3, 4 and 5 for disposal of the deadbody. There is nothing unnatural that the nephew would go to call these people for the disposal of the deadbody in the absence of the son of-the deceased. P.W.2 Dokani Singh is one of the persons who carried the deadbody to the river Sona. None of the "prosecution witnesses had said that the Appellants were responsible for mutilating the corpse. On the contrary the evidence is that p. ws.2 and 3 chopped off the various parts of the body. According to p. w. 2, p. w. 3 Malu Singh chopped off the legs and arms at the suggestion of the Appellant Kanka Singh. This is also admitted by him. He admitted in his cross-examination that he gave his deposition at the threat of the police. According to him the police was not only threatening the people with assault, but he in fact found the police assaulting some of the witnesses. P. Ws. 3 admitted that he had chopped off the head and legs whereas p. w. 2 chopped off the two hands. Here p. w 3 contradicts p. w. 2 with respect to the chopping off the hands, There are also other contradictions in his evidence. His statement at the trial varies from his statement before the committing magistrate. Before the committing magistrate he had stated that he had removed the corpse to the cow-shed which he denied at the trial. This statement before the committing court is also corroborated by p. w. 4. Hence p. w 3 cannot be taken to be a witness who was speaking the truth. This witness also admitted in his cross-examination that he gave this evidence due to the police threat. P. W. 4 Mangala Singh also stated that p. w.3 chopped off the head and one leg whereas p. w. 2 chopped off two hands and one leg. With regard to the allegation of adultery against the deceased, he contradicts P. W. 3. He also admitted in his cross-examination to have given this evidence due to threat by the police. P. W. 5 is the brother of p. w. 2. He contradicts p. w. 4 regarding the sequence in which p. ws. 2, 3, 4 and the Appellants Kanka Singh and Peta Singh entered into the house of the deceased. He merely speaks about the chopping off the parts of the body by p. ws. 2 and 3 without stating as to which part of the body was chopped off by which witness. The learned Sessions Judge having once disbelieved these witnesses, should not have in view of the above evidence, believed them with regard to the disposal of the dead body for the purpose of concealment of evidence of murder.

It is to be considered whether the Appellants had the knowledge that an offence punishable with death was committed at the time when they went out with the dead body for disposal with the intention of concealing or removing the evidence of murder. P. W. 2 is alleged to have -washed away the blood-stains. With respect to this, the only witness is p. w. l who, as I have stated, earlier, cannot be relied upon for any purpose whatsoever. From the post mortem report (ext. 121) it is evident that the medical officer was unable to say whether these amputations were ante mortem or post mortem. There is no evidence that these Appellants by then knew that an offence punishable with death was committed.

The only other point that yet remains to be considered is that how far the evidence of these witnesses as accomplices can be taken as corroboration of each other. Mr. Mohapatra relied upon a decision of the Supreme Court in the case of Rameshwar v. The State of Rajasthan 4, (1), wherein their Lordships of the Supreme Court had laid- down certain tests where such evidence can be regarded as corroboration. They held that it would be impossible indeed it would be dangerous to formulate the kind of evidence which should or would be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear;

(1) It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, a part from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.

(2) 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.

(3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.

(4) 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 learned. Government Advocate relied upon a decision of the Supreme Court in the case of State of Bihar v. Basawan Singh. In that case their Lordships held that it is necessary that the judge should give some indication in his judgment that he has had his rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case. The rule is succinctly laid down in the case of Bhubani Sahu v. The King. In the instant case neither the prosecution witnesses have given any clear evidence connecting the Appellants with the crime, nor is there any independent evidence to corroborate the evidence of the accomplices (pws. 2 to 5). The learned Sessions Judge also has not given any reason as to why he believed the uncorroborated testimony of these accomplices. In view of the above discussion I would set aide the order of conviction and sentence as passed upon the Appellants u/s 201 of the Indian Penal Code, allow the appeal, acquit the Appellants and direct that they be set at liberty forthwith.