1989 PLP 1638 (MLD)

"??????The difference of opinion has arisen in the main in reference to the question whether the corroborative evidence must connect the accused with the crime. The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly criminal????.." Resolving the difference of opinion it was held: "We hold that evidence in corroboration must be independent testimony which affected 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 s6txfe 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 offences for which corroboration is required by statute.." In 13alsbury's 1V Ed Vol. lI Para 454 the. following passage obtains: "Corroboration of a witness's testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged. It must be evidence which implicates him, that is which tends to confirm in some material particular not only that (he offence was committed, but also that the defendant committed it."

12. As to independent nature of the corroboration learned. Chief, Justice observed in Baskerville case: ??.... Again, the corroboration must be by some evidence other than that of an accomplice, and therefore one accomplice's evidence is not corroboration of the testimony of another accomplice: Rex. v. Noakes, (1832); 5 C&P 326)...:.." As to the extent of the requisite reassurance by way of corroboration, learned Chief Justice said: "?????.It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime. Parke B gave this opinion as a result of twenty-five years practice: it was accepted by the other Judges and has been much relied upon in later cases ..... "?????Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony????. (1916(2) KB 658) page 664 in Rex v. Baskerville. In Halsbury's Laws, of England, IV Edn., Vol. lI,. page 268 this proposition is stated thus: "The word corroboration is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other evidence ...... "????..The corroboration need not consist of direct evidence that the defendant committed the offence, nor need it amount to confirmation of the whole account given by the witness, provided that if corroborates the evidence in some respects material to the charge under consideration. It is sufficient if it is circumstantial evidence of the defendant's connection with the offence, but it must be independent evidence, and must not be vague???" However, there were some observations in Director of Public Prosecutions v. Kilbourne 1973 AC 729 which tended towards a departure from the rule in Rex v. Baskerville (191,5 (2) KB 658). In Killbourne case Lord Hailsham said--and this is also the statement of the law in Halsbury-IV Edition in Para 454:- "Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) confirmatory of that- evidence in a material particular, is capable of being corroborative and, when believed, is corroboration". The above passage was not wholly in consonance with what Lord Reading had earlier said: "?????For example, confirmation does not mean that there should be independent evidence of that which the accomplice relates, or his testimony would be unnecessary Reg. v. Mullins, (1848 (3) Cox CC 526) per Maulc, J" But, in R v: Beck, (1982) 1 All ER 807 at p. 815(G) (CA), it was reiterated by way of clarification that corroborating evidence need not relate to the particular evidence spoken to by a suspect-witness, and that it was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the accused person had committed it. Referring to the statement of Lord Hailsham in Killbourne case (1973 (1) All ER 440 it was observed: "The learned editors of Archbold para. 1416, after, to our judgment correctly, stating that the corroborative evidence need not relate to the particular incident or incidents spoken to by the `suspect witness', expressed the view that `Lord Hailsham's dictum that the corroborative evidence must be `relevant to the evidence requiring corroboration' may be misleading'. We agree. We do not think that Lord Hailsham?s LC was expressing any support for the proposition of counsel for the appellant. The position of law in Rex yr Baskerville (1916 (2) KB 658) was thus restored.

13. However; a marked tendency in England towards arresting the formalism in regard to the specific words to be used to caution the jury against the danger of accepting the testimony of the uncorroborated accomplice is now discernible. In R. v. Spencer (1986 (2) All ER 928) the grievance of the convicted person was that the trial Judge, in cautioning the jury, failed to use the word dangerous in describing the risks of injustice involved in convicting a person on the testimony of an uncorroborated accomplice. The Court of appeal and the i Louse of Lords declined to set aside the verdict and said that the summing up did not involve some legalistic ritual to be incanted in the summing up. However, to regard to the quality and extent of corroboration, in R. v. Donat, 1986 (2) Cr. App. R. 1973, it was reiterated that to count as corroboration, it is not enough that a piece of evidence merely supports the accomplice's credibility, however, convincingly and independently; but it must go a little further and implicate the accused. (See All ER: Annual Review 1986 page 158).

14. In Sarvana Bhavan v. State of Madras, AIR 1966 SC 1273 the corroboration was held to be of two kinds: the first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arses for conclusion after the Court is satisfied about the credibility of the approver as to the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused persons in the crime. If on the first area the Court is not satisfied the second stage does not arise. The position is attractively presented in Halsbury (IV Ed. Vol. 11, page 268): "Corroboration is required or afforded only if the witness requiring or giving it is otherwise credible; if a witness testimony falls of its own inanition, the question of his needing or being capable of giving, corroboration does not arise." However, the two areas of corroboration are not two separate, water?tight compartments. The evidence as a whole will have to be examined to reach conclusions on both aspects. In Attorney-General of Hong Kong v. Wong Muk Ping, (1987) 2 WLR 1033. Lord Bridge of Harwich speaking for the Judicial Committee of the Privy Council said: "????..It is said that this' two stage approach is implicitly indicated by passages from speeches in the House of Lords in two of the leading authorities." "?????The presence or absence of corroborated evidence may assist a jury to resolve, one way or the other, their doubts as to whether or not to believe the evidence of a suspect witness, it must, in their Lordships' judgment, be wrong to direct them to approach the question ,of credibility in two stages as suggested in the submission made on behalf of the defendant."

15. The controversy in the, present case in the ultimate analysis belongs to the second area, whether the approver's testimony as to appellant's complicity in the conspiracy could safely be held to have been corroborated hr independent evidence on 4hc material particulars. The facts that require sequentially to be established are that appellant's married life was in a serious disarray; that she and Nand Singh were on terms of illicit intimacy; that site also submitted herself to Ram Sarup (P.W. 2) in an ex?-marital relation that on 13-1.1-1973 she implored Nand Singh and Ram Sarup toy free her from a cruel husband by downg away with him; that she agreed that she would, thereafter, live with Nand Singh as his wife and that after coming to know of Pritam Singh's death she deliberately misled her mother-in-law, Mukhtiar Kaur. (P.W. 19) into making a report to the police containing false and misleading information in an attempt to draw a red herring across the trial. The evidence of P.Ws. 17 and 18 on the first two points has been discarded by the Sessions Court. It is riot also suggested that after the murder of Pritam Singh, appellant began to live with Nand Singh. There was considerable lapse of time, between the death of Pritam Singh and their arrest. There is no evidence to show that, in the interregnum, there was any liaison between the two.

16. There is yet another impediment in accepting the evidence on an important area of the alleged, conspiracy. The incriminating circumstances in the evidence of the approver appearing against the appellant had to be put to the appellant in her examination under section 313, Cr.P.C. The incriminating testimony of the approver pertaining to the case that on 13-11-1973 appellant wept and implored Nand Singh and Ram Sarup to do away with Pritam Singh and that appellant also agreed that she would thereafter live with Nand Singh has not been put to the appellant in the course of her examination tinder section 313, Cr.P.C. Appellant was not afforded an opportunity to submit an explanation to it. That part (if the evidence must for that reason be excluded from consideration (See Harijan Megha: 1979 (3) SCC 474: (AIR, 1979 SC 1566)).

17. On a consideration of the entire matter, it appears to us that tire approver's evidence in regard to the complicity of the appellant in to conspiracy lacks corroboration on certain material particulars necessary to connect the appellant. A little mote reassurance than is afforded by the state of evidence the case is perhaps necessary to convict appellant. Appellant, in the circumstance, would be entitled to the benefit of doubt.

18. At the time of the commission of the offence the appellant, even on the oasis of the observations made by the Sessions Court, was about 15-1/2 years of age and was a child within the meaning of East Punjab Children?s Act 1949. The relevant date is the date of the commission of the offence. Section 27 of the Ac provides: "

27. Sentences that may not be passed on child

Notwithstanding anything to the contrary contained in any law, no person who was a child at the date of the commission of the offence shall be sentenced to death or transported of committed to prison for any offence or in default payment of .fine, damages or costs: Provided that a child who is fourteen years of age or upward may be committed to prison where the Court certifies that he is of so unruly or of sty depraved a character that he is not fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable." The Sessions Court has invoked the proviso and has held that appellant was of so depraved a character that none of the other methods in which the case would legally be dealt with is suitable in her case. An examination of the legality o propriety of the procedure adopted in the case in the matter of the trial of a child under the East Punjab Children Act, 1949 and as to the correctness of the ?view of the. Sessions Court in appealing to the proviso to Section 27 and in sentencing appellant to imprisonment for life may not be necessary in this case, ii vi, w of our finding that appellant is entitled to the benefit of doubt.

19. In the result, this appeal is allowed and while the conviction and sentence of the other non-appealing accused is left undisturbed, the conviction and sentence of the appellant is set aside and appellant is directed to be set at liberty forthwith. M.BA./51/F.C ??????????? Appeal allowed.