# SUPREME COUR.T REPORTS [1960(1)] JNANENDRA NATH GHOSE v. THE STATE OF \VEST BENGAL

- **Citation:** [1960] 1 S.C.R. 126
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 101 of 1958
- **Bench:** Syed Jafer Imam, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-cour-t-reports-1960-1-jnanendra-nath-ghose-v-the-state-of-vest-bengal-1725
- **Pages:** 11

## Headnote

j u.ry Trial-M isdirecti01i-A pprover-Reliability--C orroboratjon-1 ndian Evidence Act, I872 (I of I872) s. I33·
The appellant was tried on a charge of murder by the
Sessions Judge with the aid of a jury. The evidence against him
consisted of the testimony of an approver and the proof of
corroborative circumstances tending to connect him with the
crime. The jury found the appellant guilty and the Sessions
Judge accepting the verdict sentenced him to imprisonment for
life. An appeal to the High Court was dismissed as that Court
found no misdirections in the charge to the jury. The appellant
contended that there was misdirection in the charge to the jury
in that the jury was not told, as laid down in Sarwan Singh v.
The State of Punjab, [1957] S.C.R. 953, that the approver's
evidence had to satisfy a double test i.e., he must be a reliable
witness and his evidence must receive sufficient corroboration and
in that the corroborating evidence was not sufficient to connect
the appellant with the crime.
Held, that there were no misdirections in the charge. The
observations in Sarwan Singh's case that it must be shown that
the approver was a reliable witness were made in the special
circumstances of that case where the approver had definitely been
found to be so thoroughly discrepant as to be wholly unreliable.
In the present case there was nothing to show that the evidence
of the approver was in any way unreliable.
Sarwatt Singh v. The State of Pmijab, [1957] S.C.R. 953, distinguished.
The Sessions Judge had correctly directed the jury that the
corroboration of the evidence of the approver in material particulars must relate not only to the commission of the crime, but
also to the evidence connecting or tending to connect the accused
with the crin1e. The circumstances proved in the case corroborated
the approver's evidence connecting the appellant with the crime.
Once there was evidence of such circumstances it was for the jury
to decide whether they were sufficient corroboration of the
approver's evidence that the appellant murdered the deceased.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
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, a.rising
S.C.R.
SUPREME COURT REPORTS
127
out of the judgment and order dated the 8th December, 1955 of the Sessions Judge, Birbhum in Sessions
Trial No. l 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.
1959. May 8. The Judgment of the Court was
delivered by
IMAM J.-The appellant was sentenced to imprisonment for life under s. 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 t

## Text

Moy 8,
126
SUPREME COUR.T REPORTS [1960(1)]
JNANENDRA NATH GHOSE
v.
THE STATE OF \VEST BENGAL
(SYED JAFER IMAM AND J. L. KAPUR, JJ.)
j u.ry Trial-M isdirecti01i-A pprover-Reliability--C orroboratjon-1 ndian Evidence Act, I872 (I of I872) s. I33·
The appellant was tried on a charge of murder by the
Sessions Judge with the aid of a jury. The evidence against him
consisted of the testimony of an approver and the proof of
corroborative circumstances tending to connect him with the
crime. The jury found the appellant guilty and the Sessions
Judge accepting the verdict sentenced him to imprisonment for
life. An appeal to the High Court was dismissed as that Court
found no misdirections in the charge to the jury. The appellant
contended that there was misdirection in the charge to the jury
in that the jury was not told, as laid down in Sarwan Singh v.
The State of Punjab, [1957] S.C.R. 953, that the approver's
evidence had to satisfy a double test i.e., he must be a reliable
witness and his evidence must receive sufficient corroboration and
in that the corroborating evidence was not sufficient to connect
the appellant with the crime.
Held, that there were no misdirections in the charge. The
observations in Sarwan Singh's case that it must be shown that
the approver was a reliable witness were made in the special
circumstances of that case where the approver had definitely been
found to be so thoroughly discrepant as to be wholly unreliable.
In the present case there was nothing to show that the evidence
of the approver was in any way unreliable.
Sarwatt Singh v. The State of Pmijab, [1957] S.C.R. 953, distinguished.
The Sessions Judge had correctly directed the jury that the
corroboration of the evidence of the approver in material particulars must relate not only to the commission of the crime, but
also to the evidence connecting or tending to connect the accused
with the crin1e. The circumstances proved in the case corroborated
the approver's evidence connecting the appellant with the crime.
Once there was evidence of such circumstances it was for the jury
to decide whether they were sufficient corroboration of the
approver's evidence that the appellant murdered the deceased.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
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, a.rising
S.C.R.
SUPREME COURT REPORTS
127
out of the judgment and order dated the 8th December, 1955 of the Sessions Judge, Birbhum in Sessions
Trial No. l 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.
1959. May 8. The Judgment of the Court was
delivered by
IMAM J.-The appellant was sentenced to imprisonment for life under s. 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
:r959
J nanendra N atJ.
Ghose
v.
The Stale of
West Bengal
Imam/.
z959
J nanendra Nath
Ghose
v.
The State of
West Bengal
ltna111 j.
128
SUPREME COURT REPORTS [1960(1)]
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 circumstanc~s. and usua!lv 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.
S.O.R.
SUPREME COURT REPORTS
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 connept or indentify 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 r.orroborate 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 circumstances. "
·
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 v. 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 corrobor1~.tion
(1) (1957] S.C.R. 9S~·
17
I959
] nanendra N alll
Chose
v.
The State of
West Bengal
Imsm],
1959
]nanendra·Nath
Ghose
v.
The State of
West Bengal
Imam].
130
SUPREME COURT REPORTS [1960(1)]
ought to consist in circumstances that affects the
identity of the party accused. Reliance was placed
on the case of The King v. 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 J agdish
Gorain had been acquitted. There was no real distinction between the case of J agdish 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
(I) (1916) • K.B.D. 658.
-
S.C.R.
SUPREME COURT REPORTS
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 corroboratLm 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
evid~nce 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 Sarwa.n Singh's
case.
I959
j nanendra Nath
Ghose
v.
The State of
West Bengal
Imam].
I959 '
J nanendra Nath
Ghose
v.
The Slate of
West Ben.gal
Imam].
132
SUPREME COURT REPORTS [1960(1)]
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 n;iaterial 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. 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, i.e.,
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
-
s.c.R.
SUPREME COURT REPORTS
133
evidence, you should bear in mind, is evidence which
shows or tends to show t"hat 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 a.s 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 whi9h
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 :
L
There was a motive for the appellant to
commit the crime, that is to say, his immoral
proposal to Lila, wife of the deceased.
2. On the 25th of May, 1955, the appellant came
to Lila's house and had a talk with the deceased.
3. 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
I959
J nanendra Nath
Ghose
v.
The Stale of
West Bengal
Imam].
z959
Jumntlra Nath
Glwss
v.
The Slate of
Wesl Bengal
·Imam].
134
SUPREME COURT REPORTS [1960(1)]
Lila towards the north of the village after 5 p.m.
while they were bathing in Talbona tank.
5. 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 t inch in length on the
left side of the palm at its posterior surface one inch
belowthewrist joint and another healed up ulcer iinch
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.
6. 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
S.C.R.
SUPREME COURT REPORTS
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 corrobora.t.
ed by the m_edical 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 I inch below the
wrist joint, that is to say, the dorsum of the left pa.Im.
The second injury is clearly on the left thumb at its
posteri9r surface which is also consistent with the
evidence of the approver that the dorsum of the left
pa.Im 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 cir·
cumsta.nce that it was the appellant who had called
for the deceased a little after sunset and ha.d·ta.ken
him a.way and thereafter was seen going a.long towards
the north of the village with the deceased and that
thereafter the deceased was not seen a.live 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
ta.ken 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 ·
I959
] nantndra N allt
Ghose
v.
The State of
West Bengal
Imam].
1959
Jnanmdra Nath
Ghose
v.
The State of
West Bengal
Imam].
136
SUPREME COURT REPORTS [1960{1}]
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 J agdish 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 "7as no motive for J agdish 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 J agdish
Gorain with the crime.
In our opinion, it. cannot be said with anygood
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.