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Kamboji Venkataramanna and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1934Mad248
AppellantKamboji Venkataramanna and ors.
RespondentEmperor
Cases ReferredReg v. Malapa
Excerpt:
.....of law raised in this case as regards the nature of the corroborative evidence in support of the evidence of an accomplice so as to warrant the conviction of the accused in a case of murder, it would be well to refer briefly to the evidence supplied by the approvers in this case. we think it unsafe to rely upon p. the principle has been clearly stated at p. , that the evidence requisite for the corroboration of the testimony of an accomplice must proceed from an independent and reliable source. by saying that the evidence of one approver corroborates to some extent the evidence of another approver, we would not be giving effect to the well-recognized maxim that the evidence of an accomplice must as a rule be considered untrustworthy unless it is corroborated in material particulars by..........testimony of an accomplice must proceed from an independent and reliable source. as regards the approver's evidence itself, he observed that the mere fact that the evidence given by him was only consistent with the statements made at previous stages is not to be taken as criterion for his veracity. in the present case we do not find even such consistency between the evidence given by the approvers (p.ws. 7 and 8) and their former statements.6. in a case of this kind, where a large number of persona are charged with a very serious crime, we find that the case of the prosecution rests upon the evidence of two approvers alone without any independent corroboration. by saying that the evidence of one approver corroborates to some extent the evidence of another approver, we would not be.....
Judgment:

Sundaram Chetty, J.

1. Accused 1 to 7 are the appellants. Eleven persons were charged in connexion with the murder of one Pullayya, a Vysya money lender, of 21st August 1932, on his way from his village called Thappetavaripalli to the railway station at Malakazemala which is at a distance of six or seven miles from his village. Accused 1 to 8 stood charged directly under Section 302, Penal Code, whereas accused 1 to 7 and 9 to 11 were charged under Section 201 for having disposed of the dead body on that night, the murder itself having been committed in the afternoon It was only on 1st September 1932 that two gunny bags weighted with stone containing the parts of the body of the deceased without the head were found at the bottom of a deep pond about four miles from the scene of offence. The learned Sessions Judge acquitted accused 8 to 11, and convicted accused 1 to 7 of the offence of abetment of murder under Section 302 read with Section 114, Penal Code, and sentenced them to transportation for life. They were also convicted under Section 201, Penal Code, and sentenced to three years rigorous imprisonment with a direction that both the sentences should run concurrently.

2. As regards the alleged participation of accused 1 to 8 in the actual murder, the case for the prosecution rests mainly on the evidence of an approver Fakeerappa (P.W. 7), Another witness, K. Kondappa who has been examined as P.W. 10, has deposed to an incident which, if true, may lend some slight corroboration to the story of the approver. As to the case for the prosecution in respect of the commission of the offence under Section 201, I.P.C., there is nothing besides the evidence of another approver Venkatasami (P.W. 8) in support of it. Before discussing the question of law raised in this case as regards the nature of the corroborative evidence in support of the evidence of an accomplice so as to warrant the conviction of the accused in a case of murder, it would be well to refer briefly to the evidence supplied by the approvers in this case. (After referring to the facts and evidence of the approvers and the other prosecution witnesses, his Lordship proceeded.) It is extremely difficult to hold that so many persons of different castes and professions would have made common cause as against the deceased and conspired together in order to put an end to his life. Even assuming the facts mentioned by P.W. 1 to be true, it seems to us that there is no adequate or substantial motive for the perpetration of such a heinous crime by all of them combining together in the manner alleged. Is it likely that within an hour and a half or two on the date of the occurrence, accused 6 could have arranged for the gathering of such a large number of people after getting scent of the deceased's travelling alone that way for the railway station, in order to waylay and make a murderous attack on him?

3. There are, in our opinion, several infirmities in the prosecution story and the evidence of the two approvers is not, apart from its being tainted evidence, free from discrepancies and suspicious later developments. We think it unsafe to rely upon P.W. 10 for the purpose of corroborating the approver, (P.W. 7). The evidence of P.W. 10 savours much of artificiality. If his evidence is discarded as untrustworthy, what is the position? As regards the offence of murder with which the appellants are charged we have to fall back only on-the evidence of the approver, (P.W. 7). The learned Sessions Judge seems to be of opinion that the evidence of one approver may be corroborated by the evidence of another approver. It is true that one approver speaks to the incidents connected with the murder and the other approver speaks to the incidents connected with the subsequent, disposal of the body in order to conceal the offence. The fact that they are accomplices in two different catagories of crime does not free their evidence from the taint attached to the evidence of an accomplice. Even assuming that the evidence of P.W. 8 can be regarded as coroborative in some way of the evidence of P.W. 7, is it not a case where the evidence of one approver is corroborated by the evidence of another approver? Is it not necessary that the evidence of an accomplice should be corroborrated in material particulars by independent evidence which is free from, the taint attached to the evidence of an accomplice? The answer to this query should in our opinion be in the affirmative.

4. There is also the authority of judicial decisions in support of our view. The case Rex v. Mohesh Biswas (1873) 19 W.R. 16 Cr is very instructive. The evidence in that case which was before the learned Judges was somewhat akin to the evidence in the present case. The principle has been clearly stated at p. 21 in the following passage:

The corroboration which is needed in order to make Soorat All's testimony against the prisoners trustworthy should be corroboration derived from evidence which is independent of accomplices, which is not vitiated by the accomplice-character of the witness...and further should be such as to support that portion of the accomplice's testimony which makes out that the prisoner was present at the time when the crime was committed and participated in-the acts of commission.

5. This latter test was also laid down by Lord Reading, C.J., in Rex v. Basherville (1916) 2 K.B. 658 . This principle was also adopted by a decision of this High, Court reported in Venhatasubba Reddi. In re A.I.R. 1931 Mad. 689 to which one of us was a party. In this view, it is even doubtful whether the evidence of P.W. 8 can be taken to support that portion of the story of the approver (P.W. 7) as to who were the participants in the act of murder. A and B may be the actual murderers, but both or either of them may or may not engage themselves at any subsequent time in the concealment of the body and may engage some others for that purpose If so, the fact that some parsons were engaged in disposing of the body does not necessarily lead to the presumption that they were the actual murderers. Such a difficulty does exist in the present case and therefore we cannot agree with the learned Sessions Judge that the evidence of P.W. 8 is necessarily a corroboration of the evidence of P.W. 7 as the persons who actually committed the murder. At any rate, applying the principle that the corroboration in order to make the approver's testimony trustworthy should be corroboration derived from evidence which is independent of an accomplice, we must bold that the testimony of P.W. 7 has not got such a corroboration. The same view has been taken by the Calcutta High Court in a recent decision reported in Kashemali v. Emperor : AIR1933Cal6 . The omission to tell the jury that the corroboration must come from independent witnesses and not from evidence which in itself was tainted as the evidence of an accomplice was taken to be a serious non-direction vitiating the charge to the jury. In a case reported in Reg v. Malapa (1874) 11 Bom. H.C.R. 196, Nanabhai Haridoss, J., laid down the same principle, viz., that the evidence requisite for the corroboration of the testimony of an accomplice must proceed from an independent and reliable source. As regards the approver's evidence itself, he observed that the mere fact that the evidence given by him was only consistent with the statements made at previous stages is not to be taken as criterion for his veracity. In the present case we do not find even such consistency between the evidence given by the approvers (P.Ws. 7 and 8) and their former statements.

6. In a case of this kind, where a large number of persona are charged with a very serious crime, we find that the case of the prosecution rests upon the evidence of two approvers alone without any independent corroboration. By saying that the evidence of one approver corroborates to some extent the evidence of another approver, we would not be giving effect to the well-recognized maxim that the evidence of an accomplice must as a rule be considered untrustworthy unless it is corroborated in material particulars by independent and untainted evidence. We are therefore unable to adopt the reasoning of the learned Subordinate Judge in the matter of accepting the evidence of the approver as trustworthy.

7. We think it unsafe to act upon the evidence of the approvers and that is the only evidence upon which the main case of the prosecution rests. In our opinion, the guilt of the appellants has not been made out as required by law, and we therefore set aside the conviction and sentences of the appellants under Sections 302, 114 and 201, Penal Code. The appellants are accordingly acquitted and will be set at liberty.


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