Dagdu & Ors Vs. State of Maharashtra  INSC 125 (19 April 1977)
CITATION: 1977 AIR 1579 1977 SCR (3) 636 1977
SCC (3) 68
CITATOR INFO :
RF 1977 SC1936 (39) D 1988 SC1831 (119) RF 1992
Evidence Act 1972--Sections 114 illustration
(b) and 133--Accomplice evidence, whether a competent witness--Whether
conviction can be based on uncorroborated evidence of an
accomplice--Appreciation--Rule of corroboration---Presumption by courts.
Criminal Procedure Code 1989--Sections 163,
164, 367(5) and 554--Confessional statements--Criminal Manual 1960 of Bombay
High Court--Para 18 --Failure to comply with Sec.
164(3) and High Court circulars if renders
confessions inadmissible in evidence--Evidence Act, Section 29.
Criminal Procedure Code 1973-Sections 235,
354--Hearing accused on the question of sentence--If mandatory--If appellate
court can give hearing on failure by the trial court.
Accused, No. 1 though in her thirties had
entered a period of premature menopause. She was anxious to get a child which
could only happen if her menstrual cycle was restored. She used to consult
quacks and Mantriks in order to help get a child. Accused No.1's mother was
accredited with sixth sense in the matter of discovery of treasure trove. She
had oracled that a treasure trove lay buried I in accused No. 1's house
underneath the Pimpal tree. The Pimpal tree is believed to be the haunt of
Munjaba, who is supposed to be the spirit of an unmarried Brahmin boy.
Accused NOs. 1 and 2 consulted quacks who
prescribed that virgins should be offered as sacrifice to Munjaba and to
propitiato the deity, blood from their private parts be sprinkled on the food
offered by way of 'Naivedya'. Five small girls about 10 years of age, a year
old infant and. 4 women in their mid-thirties were found murdered between
14-11-1972 and 4-1-1974 in a village called Manawat. The.
murders of these 10 females showed
significant similarities in pattern and conception. The time and place chosen
for crime, preference for females as victims, the nature of injuries caused to
them, the strange possibility that the private parts of some of the victims
were cut in order to extract blood, the total absence of motive for killing
these very girls and women, the clever attempt to dodge the police and then to
put them on a false scent and the extreme brutality surroundings the crimes
gone to the case an eerie appearance.
Eighteen persons were put up for trial before
the Session Judge for the 10 murders. Two out of these persons were tendered
pardon and were examined in the case as approvers. Accused No. 6 died during
the trial. The Sessions Judge acquitted accused 4, 5, 7, 8 and 13 to 16.
Accused No. 1 and 2 were convicted under s. 302 read with s. 120-B and section
34 of the Penal Code. Accused No. 1, 2 and 3 were sentenced to death while
accused No. 9 to 12 were sentenced to life imprisonment. The matter went to the
High Court in the form of various proceedings. The High Court acquitted accused
No. 1 and 2 holding that the offence of conspiracy which formed the gravamen of
the charge against them was not proved. Since the charge of conspiracy failed
and since it was a common ground that accused No. 1 and 2 had not taken any
direct part in the commission of the murders, the High Court held that they
were entitled to acquittal on all the charges. The High Court dismissed the
appeal filed by accused No. 3 holding that he was responsible for the first 4
murders and confirmed his conviction under s. 302 read with s. 34 as also the
sentence of death imposed upon him. The High Court dismissed the State's appeal
against acquittal of accused No. 4 and 5 but allowed the State's appeal and
enhanced the sentence of accused No. 9 to 12 to death.
Criminal Appeal No. 437 of 1976 was filed by
accused Nos. 9 to 12. Criminal Appeal No. 438 of 1976 was filed by accused No.
3 and Criminal Appeal No. 441 of 1976 was filed by the State of Maharashtra
against acquittal of accused 1%s. 1 and 2. The Court acquitted accused No. 12
by giving him the benefit of doubt and while dismissing the three appeals.
HELD: (1) There is no antithesis between s.
133 and illustration (b) to section-114 'of the Evidence Act because the
illustration only says that-the-Gourt may presume a certain state of affairs
under s. 114 of the Evidence Act The Court may presume the existence of any
fact which it thinks likely to have happened regard' being had to the common
course of natural events, human conduct and public and private business in
their relation-to the facts-of the particular casee. Under s. 133 -of the
Evidence-Act, an accomplice shall be a competent wireess against an accused
person and a conviction is not illegal merely because it proceeds upon-the uncorroborated
testimony of an accomplice:
[643 B-C] (2) Though an accomplice is a
competent witness and though a conviction may lawfully rest upon his
uncorroborated testimony yet the court is entitled to presume and may be
justified in presuming in the generality of cases that no reliance can be
placed on the evidence of an accomplice unless that evidence is corroborated in
material particulars, by which is meant that there has to be some independent
evidence tending to incriminate the particular accused in the commission of the
crime. 1643 C-D] (3) It is hazardous as a matter of prudence to proceed on the
evidence a self-confessed criminal. The risk involved in convicting accused on
the testimony of an accomplice unless it is corroborated in material particulars
is so real and potent that what during the early development of law was felt to
be a matter of prudence has been elevated by judicial experience into a
requirement or rule of lave. What has hardened into a rule of law is not that
the conviction is illegal if it proceeds upon the uncorroborated testimony of
an accomplice but that the rule of corroboration must be present to the mind an
the Judge and that corroboration may be dispensed with only if the peculiar
circumstances of the case make it safe to dispense with it. [643 ,E-F] King v.
Baskerville [19161 2 K.B. 653; Rameshwar v. State of Rajasthan  S.C.R.
377, Bhuboni Saku v. The King 76 I.A. 147; The State of Bihar v. Basawan Singh
 SCR 195 and Ravinder Singh v. State of Haryana  3 S.C.R. 453.
(4) It is true that an approver has real
incentive to speak out his mind after tender of pardon but where it is
impossible to reconcile his earlier statements with his later assertions his
evidence has to be left out of consideration. It is one thing to say that an
approvers statement cannot be discarded for the mere reason that he did not
disclose the entire story in his police statement and quite another to accept
an approver in spite of contradictions which cast a veil of doubt over his
involvement of others.
[646 B-C] Madan Mohan Lal v. State of Punjab
 2 S.C.C.
733 relied on.
Tahsildar's case  Supp. 2 S.C.R. 875,
(5) The failure to comply with section 164(3)
Cr. P.C. with the High Court circulars will not render the confessions
inadmissible in evidence. Relevancy and admissibility of evidence have to be
determined in accordance with the provisions of the Evidence Act. [651 E] (6)
Under section 29 of the Evidence Act, if a confession-is otherwise relevant, it
does not become irrelevant merely because, inter alia, the accused was not
warned that he was not bound to make it and the evidence of it might be given
against him. If, therefore a confession does not violate any one of the conditions
operative under ss. 24 to 28 of the Evidence Act, it will be admissible in
evidence. But as in respect of any other admissible evidence oral or documentary,
so in the case of confessional statements which are otherwise admissible. the
Court has still to consider whether they can be accepted as true. If the facts
and circumstances surrounding the making of a confession appear to cast a doubt
on the veracity or voluntariness of the confession, the Court may refuse to act
upon the confession even if it is admissible in evidence.
[651 E-G] (7) A strict and faithful
compliance with s. 164 of the Code and with the instructions issued by the High
Court affords in a large measure the guarantee 638 that the confession is
voluntary. The failure to observe the safeguards prescribed therein are in
practice calculated to impair the evidentiary value of the confessional statements.
In the instant case no reliance can be placed
on any of the contesstons. Apart from the cofessions of the two approvers, all
others were retracted, which further cripples their evidentiary value. [657 H]
(8) The imperative language of sub-section (2) leaves no room for doubt that
after recording the finding of guilt and the order of conviction, the. Court is
under an obligation to hear the accused on the question of sentence unless it
releases him on probation of good conduct or after admonition under s. 360. The
social compulsions, the pressure of poverty, the retributive instinct to seek
an extra-legal remedy to a sense of being wronged, the lack of means to be
educated in the difficult art of an honest firing the parentage, the
heredity-all these and similar other considerations can, hopefully and
legitimately, tilt the scales on the property of sentence. The mandate of s.
235 (2) must, therefore, be obeyed in its letter and spirit. [657 F-H] (9) The
failure on the part of the Court, which convicts an accused, to hear him on the
question of sentence does not necessarily entail a remand to that Court in
order to afford to the accused an opportunity to be heard on the question of
sentence. [658 A-B] Santa Singh v. State of Punjab  4 S.C.C. 190, explained.
(10) The Court, on convicting an accused,
must unquestionably hear him on the question of sentence. But if, for any
reason, it omits to do so and the accused makes a grievance of it in the higher
court, it would be open to that Court to remedy the breach by giving a hearing
to the accused on the question of sentence. That opportunity has to be real and
effective, which means that the accused must be permitted to adduce before the
Court all the data which he desires to adduce on the question of sentence. The
accused may exercise that right either by instructing his counsel to make oral
submissions to the Court or he may, on affidavit or otherwise, place in writing
before the Court whatever he desires to place before it on the question of
sentence. The Court may, in appropriate cases, have to adjourn the matter order
to give to the accused sufficient time to produce the necessary data and to
make his contention on the question of sentence. For a proper and effective
implementation of the provision contained in s. 235(2) it is not always
necessary to remand the matter to the Court which has recorded the conviction. Remand
is an exception, not the rule, and ought, therefore, be avoided as far as
possible in the interests of expeditious, though fair disposal of cases.
[658 B-D, F] Santa Singh v. State of Punjab
 4 S.C.C. 190, distinguished.
GOSWAMI, I. (Concurring) :-Whenever an appeal
court finds that the mandate of section 235(2) Cr. P.C. for a hearing on
sentence has not been complied with it becomes the duty of the Court to offer
to the accused an adequate opportunity to produce before it whatever material he
chooses in whatever reasonable way possible. Courts should as far us possible
avoid remands when the accused can secure a full benefit of s. 235 (2) Cr.
P.C. in the appeal court. [661 C-D]
CRIMINAL APPELLATE JURISDICTION: Crl. A. Nos.
437 & 438 of 1976.
(Appeals by Special Leave from the Judgment
and Order dated the 8/9/10-3-1976 of the Bombay High Court in Crl.
Appeals Nos. 17 and 18 of 1976 and
confirmation Case No. 3 of 1976) and Crl. A. No. 441 of 1976.
639 (Appeal by Special Leave from the Judgment
and Order dated the 8/9/10-3-1976 of the Bombay High Court in Criminal Appeal
No. 18 of 1976).
P. Narayan, B.G. Kolse Patil, B.S. Bhonde and
Ganpule, for the appellants in Crl. A. Nos.
437-438 and for respondent in Crl. A. 441/76.
V. S. Desai, P.P. Hudlekar and M.N. Shroff
for respondents in Crl. Appeal Nos. 437-438 and for the appellant in Crl. A.
The Judgment of Y.V. Chandrachud and P.N.
was delivered by Chandrachud, J. P.K.
Goswami, J. gave a separate opinion.
CHANDRACHUD, J. Five small girls about ten
years of age, a year, old infant and four women in their mid-thirties were
found murdered between November 14, 1972 and January 4, 1974 in a village
called Manwar in Maharashtra. The murders of these ten females show significant
SimilaritieS in pattern and conception. The time and place chosen for the
crimes, the preference for females as victims, the nature of injuries caused to
them, the strange possibility that the private parts' of some of the victims
were cut in order to extract blood, the total absence of motive for killing
these very girls and women, the clever attempt to dodge the police and then to
put them on a false scent and the extreme brutality surrounding the crimes give
to the case an eerie appearance. Such harrowing happenings make the task of
discovering truth difficult and it is just as well to begin with Justice Vivian
Bose's reminder that the shocking nature of the crime ought not to induce an
instinctive reaction against a dispassionate scrutiny of facts and law.
We have three appeals before us,. all by
special leave granted by this Court. Criminal Appeal No. 437 of 1976 is flied
by accused Nos. 9 to 12, Criminal Appeal No. 438 of 1976 by accused No. 3 while
Criminal Appeal No. 441 of 1976 is filed by the State of Maharashtra against
the acquittal of accused Nos. 1 and 2.
Eighteen persons were put up for trial before
the learned Sessions judge, Parbhani for the ten murders. Two out of these,
Ganpat Bhagoji Salve and Shankar Gyanoba Kate were tendered pardon by the
learned Judge and were examined in the case as approvers. Accused Nos. 6 died
during the trial leaving 15 persons for consideration of the question whether
they had conspired to commit the murders and whether the murders were committed
in pursuance of that conspiracy.
The learned Sessions Judge acquitted accused
Nos. 4, 5, 7, 8 and 13 to 16. Accused Nos. 1 and 2 were convicted under sec.
302 read with sec. 120-B and sec. 109 of the Penal Code. Accused Nos. 3 and 9
to 12 were convicted under sec.
302 read with sec. 120-B and sec. 34 of the
Accused Nos. 1, 2 and 3 were sentenced to
death while accused Nos. 9 to 12 were sentenced to life imprisonment.
The matter went to the Bombay High Court in
various forms. The seven accused who were convicted by the Trial Court filed an
appeal challenging the order of conviction and sentence. The Sessions Court 640
made a reference to the High Court for confirmation of. the death. sentence
imposed on-accused Nos. 1, 2 and 3. The State Government flied an appeal
against the acquittal of accused Nos. 4 and 5. It also filed an appeal under
s..377 of the Criminal Procedure Code, 1973 asking that the sentence of life
imprisonment imposed on accused Nos. 9 to I2 be enhanced to death. The State
not having challenged the order of acquittal passed by the Sessions Court in
regard to accused Nos,7, 8 and 13 to 16, that order has become final and was
not in any form assailed before Us as erroneous.
The High court acquitted. Nos.1 and 2 holding
friar the offence of conspiracy which formed the gravamen of the charge against
them was not proved. The charge of conspiracy having failed and it being common
ground that accused Nos. 1 and 2 had not taken any direct part in the commission
of the murders, the High Court held that they Were entitled to acquittal on all
the charges. The High Court dismissed the appeal file flied by accused No. 3
holding that he was responsible for the first four murders and.confirmed his
conviction under s. 302 read with s. 34 as also the sentence of death imposed
upon him. The conviction ,and sentence-of accused No. 3 under s. 302 read with
s.120B was set aside by the' High Court in view of its finding, that the
prosecution had failed to establish the charge,of conspiracy. High court
dismissed the State's appeal against the acquittal of accused Nos.4 and 5 but
it allowed the appeal flied.by the State for enhancement of the sentence of
life imprisonment imposed on accused Nos. 9 to 12. The. High Court enhanced
their sentence to death under s. 302 read with 8. 34 but consistently, with its
finding on the charge of conspiracy it set aside their conviction and sentence
under s. 302 read with s. 120B. There were delay on the" part of the State
Government in filing the appeal for enhancement of the sentence of accused Nos.
9 to 12 but the High Court condoned that delay.
We are thus called upon to consider the
(1)the order of the High Court acquitting
accused Nos. 1 and 2; (2) the-order of conviction of accused No. 3 under s. 302
read with s. 34 and the sentence of death imposed upon him by the Sessions
Court and the High Court; and (3) the order of conviction of accused Nos. 9 to
12 under s. 302 read with s. 34. Thus, we are concerned in these appeals with accused
Nos. 1 to 3 and 9 to 12 only.
The hamlet of Manwat has a population of 15
thousand and is situated in. Taluka Pathri, District Parbhani, Maharashtra.
Accused No. 1, Rukhmini, was about 32. years of age at the relevant time and
despite the pledge-to secularism, it has to be mentioned that she is Pardhi by
caste. She was in the keeping of accused No. 2, Uttamrao Barshate, a non
pardhi, who is a man of means and was at one time the President of the Manwat
Municipality. He purchased a house for accused No. 1 in which the two lived
together and it is this house or wada.which became 'the focal point of the
conspiracy. Accused No. 2 purchased the house really in order to ensure the
exclusiveness of mistress but it happened to blaze an altogether new trial.
641 In the house was a Pimpal tree which is
believed to be the emblem of God Vishnu, the Preserver. The Pimpal is also
believed to be the haunt of Munjaba, who is supposed to be the spirit of an
unmarried Brahmin boy. The Parbhani District Gazetteer says at page 115 that
"some childless persons who trace their misfortune to the influence of
some evil spirit cause the Brahminic thread ceremony performed for a pimpal
tree and a masonry platform built round its trunk." The Man want
village-folk commonly believe that treasure troves are lying buried in the town
ever since the sixteenth century when its inhabitants fled away after the
troops of Murtazahad invaded the town, which was then under the Nizamshahi of
Ahmednagar. Quite some quacks in the periphery of 'Manwat make their living by
diagnosing where the treasure trove lies and what means to adopt for
Accused No. 1, though in her thiries, had
entered a period of premature menopause. She was anxious to get a child which
could only happen if her menstrual cycle was restored. She used to consult
quacks and mantriks who, she 'believed, could help her get a child. Accused No.
2's mother was ,credited with a sixth sense in the matter ofdiscovering
treasure troves. 'She had oracled that a' treasure trove lay buried in accused
No. 1's house underneath the Pimpal tree. The stage was thus set for the visits
of mountebanks to the house of accused No. 1 for the display of their
The case of the prosecution is that accused
Nos land 2 consulted quacks who prescribed that virgins should be offered as
sacrifice to munjaba. and blood from the irprivate arts be sprinkled on the
food offered by way of Naivedya to the God. One of such quacks was Ganpat
Salve, the approver, who was examined as: P.W. 1. Accepting Ganpat's advice,
accused Nos. 1,, 2, 3,4 and 6 conspired to commit the murders of virgin girls.
Ganpat himself joined the conspiracy and so did Shankar Gyanoba Kate who was a
servant of accused No. 2. Shankar, also an approver, was examined in the case
as P.W.2. Accused Nos. 5 and 7 to 16 are alleged to have joined the conspiracy
at a later point of time. In pursuance of the conspiracy, ten murders were
committed between November 14, 1972 and January 4, 1974.
The first four murders are alleged to have
been committed by the approver Shankar and accused No. 3, Sopan, who was also
in the employment of accused No. 2. Gayabai, a girl of 11 was murdered on
November-14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972;.
Sugandhabai, a woman Of 35 was murdered on February 21, 1973 and Nasima a girl
of lO was murdered on April 13, 1973.
It is said that the-blood from the private
parts of these victims was offered to Munjaba and yet there was no clue as to where
the treasure trove lay. Gayabai, Shakila and Sugandhabai had evidently died in
vain and therefore Nasima, the fourth victim, was beheaded so that the severed
head could be offered. to propitiate the deity. Even Nasima's head failed to
move Munjaba's heart. The treasure trove remained undisclosed.
642 The next two murders are alleged to have
been committed by accused Nos. 5 and 6. Kalavati, a woman of 30, was murdered
on June 29, 1973 and Halires, a girl of 11, on July 12, 1973. Accused No. 5 has
been acquitted and the order of acquittal has become final. Accused No. 6 died
during the pendency of the trial in the Sessions Court.
The seventh murder is alleged to have been
committed by accused Nos. 7 and 8 when Parvatibai, aged about 35, was murdered
on October 8, 1973. These two accused were acquired by the Sessions Court and
the acquittal was not challenged by the State.
The three last murders are alleged to have
been committed by accused Nos. 9 to 12, all at the same time. Haribai, aged 35,
was going along with her daughter Taravati aged 9 and was carrying in her arms
an infant daughter, Kamal, aged a year and half. All of them were murdered on
the afternoon of January 4, 1974.
Accused Nos. 1, 2, and 14 were arrested on
June 18, 1973 in connection with the first four murders which had taken place
between November 14, 1972 and April 13, 1973.
It is alleged that, while in custody, accused
No. 2 sent a message to accused No. 5 to commit a few more murders so that no
suspicion may fall on those who were arrested. That is why accused Nos. 5 and
6, accused No. 6 being a servant of accused No. 1, are said to have committed
the murders of Kalavati and Halires in June and July, 1973. On July 30, 1973
accused Nos. 1, 2, 9 and 14 were released on bail on condition that they shall
not enter the limits of Manwat.
This condition was relaxed on October 4, 1973
for investigational purposes. Accused Nos. 1 and 2 were in Manwat from October
4 to October 21, 1973 during which period they are alleged to have procured the
service. of accused Nos. 7 and 8 for the commission of Parvatibai's murder on
On December 18, 1973, an application was
moved for cancellation of the bail granted to accused Nos. 1 and 2. That
application was allowed and they were rearrested on January 4, 1974 when the
murders of Haribai, Taramati and Kamal were committed. Accused No. 3 was
arrested on December 28, 1973, accused Nos. 9 to 11 on January 8, 1974 and
accused No. 12 on January 11, 1974.
Accused Nos. 1 and 2 are the linch-pin of the
case and therefore, it would be appropriate to deal with their cases first.
Accused No. 1 is the mistress of accused No. 2 and whereas the former was
anxious to get a child, they both were anxious to discover the treasure trove
lying buried in their house. The charge against them is that for the purpose of
achieving these objects they consulted quacks who advised that the Munjaba
should be propitiated by offering the blood of virgin girls. Accepting that
advice, accused Nos. 1 and 2 are alleged to have entered into a conspiracy with
the other accused to commit the various murders.
The prosecution relied inter alia on the
evidence of the two approvers, Ganpat, P.W. 1, and Shanku, P.W. 2, in order to
prove the charge of conspiracy against accused Nos.
1 and 2 as also for proving that various
murders were committed in pursuance of that 643 conspiracy. The learned
Sessions Judge accepted the evidence, of both the approvers as against accused
Nos. 1 and 2 but the High Court rejected the evidence of Ganpat and accepted
that of Shankar only.
Before considering that evidence, it would be
necessary to state the legal position in regard to the evidence of accomplices
and approvers. Section 133 of the Evidence Act lays down that an accomplice
shall be a competent witness against an accused person; and a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice. Section 114 of the Evidence Act provides that the Court may presume
the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.
Illustration (b) to s. 114 says that the Court may presume that an accomplice
is unworthy of credit unless he is corroborated in material particulars.
There is no. antithesis between s. 133 and
illustration (b) to s.114 of the Evidence Act, because the illustration only
says that the Court 'may' presume a certain state of affairs. It does not seek
to raise a conclusive and irrebutable presumption. Reading the two together the
position which emerges is that though an accomplice is a competent witness and
though a conviction may lawfully rest upon his uncorroborated testimony, yet
the Court is entitled to presume and may indeed be justified in presuming in
the generality of cases that no reliance can be placed on the evidence of an
accomplice unless that evidence is corroborated in material particulars, by
which is meant that there has to be some independent evidence tending to
incriminate, the particular accused in the commission of the crime. It is
hazardous, as a matter of prudence, to proceed. upon the evidence of a self
confessed criminal, who, in so far as an approver is concerned, has to testify
in terms of the pardon tendered to him. The risk involved in convicting an
accused on the testimony of an accomplice, unless it is corroborated in
material particulars, is so real and potent that what during the early development
of law was felt to be a matter of prudence has been elevated by judicial
experience into a requirement or rule of law. All the same, it is necessary to
understand that what has hardened into a rule of law is not that the conviction
is illegal if it proceeds upon the uncorroborated testimony of an accomplice
but that the rule of corroboration must be present to the mind of the Judge and
that corroboration may be dispensed with only it the peculiar circumstances of
a case make it safe to dispense with it.
In King v. Baskerville(1) the accused was
convicted for committing gross acts of indecency with two boys who were treated
as accomplices since they were freely consenting parties. Dealing with their
evidence Lord Reading, the Lord Chief Justice of England, observed that though
there was no doubt that the uncorroborated evidence of an accomplice was
admissible in law it was for a long time a role of practice at common law for
the Judge to warn the Jury of the danger of convicting a person on the uncorroborated
testimony of an accomplice. Therefore, though the Judge was entitled, to point
out (1)  2 K.B. 658.
2--7078CI/77 644 to the Jury that it was
within their legal province to convict upon the unconfirmed evidence of an
accomplice, the rule of practice had become virtually equivalent to a rule of
law and therefore in the absence of a proper warning by the Judge the
conviction could not be permitted to stand. If after being properly cautioned
by the Judge the Jury nevertheless convicted the prisoner, the Court would not
quash the conviction merely upon the ground that the accomplice's testimony was
In Rameshwar v. State of Rajasthan(1) this
Court observed that the branch of law relating to accomplice evidence was the
same in India as in England and that it was difficult to better the lucid
exposition of it given in Baskerville's (supra) case by the Lord Chief Justice
of England. The only clarification made by this Court was that in cases tried
by a Judge without the aid of a Jury it was necessary that the Judge should
give some indication in his judgment that he had this 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
considered it safe to convict without corroboration in the particular case.
In Bhuboni Sahu v. The King(a) the Privy
Council after noticing s. 133 and illustration (b) to s. 114 of the Evidence
Act observed that whilst it is not illegal to act on the uncorroborated
evidence of an accomplice, it is a rule of prudence so universally followed as
to amount almost to a rule of law that it is unsafe to act on the evidence of
an accomplice unless it is corroborated in material respects so as to implicate
the accused; and further that the evidence of one accomplice cannot be used to
corroborate the evidence of another accomplice. The rule of prudence was based
on the interpretation of the phrase "corroborated in material
particulars" in illustration (b). Delivering the judgment of the Judicial
Committee, Sir John Beaumont observed that the danger of acting on accomplice
evidence is not merely that the accomplice is on his own admission a man of bad
character who took part in the offence and afterwards to save himself betrayed
his former associates, and who has placed himself in a position in which he can
hardly fail to have a strong bias in favour of the prosecution the real danger
is that he is telling a story which in its general outline is true, and it is
easy for him to work into the story matter which is untrue. He may implicate
ten people in an offence and the story may be true in all its details as to
eight of them but untrue as to the other two whose names may have been introduced
because they are enemies of the approver. The only real safeguard therefore
against the risk of condemning the innocent with the guilty lies in insisting
on independent evidence which in some measure implicates each accused.
This Court has in a series of cases expressed
the same view as regards accomplice evidence. (see The State of Bihar v.
Basawan (1)  S.C.R. 377.
(2) 76 I.A. 147.
645 Singh(1); Hari Charan Kurmi v. State of
Bihar;(2) Haroon Haji Abdulla v. State of Maharashtra;(a) and Ravinder Singh v.
State of Haryana(4). In Hari Charan(2) Gajendragadkar, C.J., speaking for a
five-Judge Bench observed that the testimony of an accomplice is evidence under
s. 3 of the Evidence Act and has to be dealt with as such. The evidence is of a
tainted character and as such is very weak; but, nevertheless, it is evidence
and may be acted upon, subject to the requirement which has now become
virtually a part of the law that it is corroborated in material particulars.
We will assess the evidence of the two approvers
Ganpat and Shankar in the light of these principles. Ganpat Bhagoji Salve, P.W.
1, fails to cross the initial hurdle of reliability and no amount of
corroboration cure the infirmities which beset his evidence. He is not a quack
but a charlatan who traded on the credulous optimism of the sterile village
women. He admits that he possessed no cure but made a pretence of it by
carrying the confidence of lay, uninformed women. He was sent for to prescribe
a cure to enable accused No. 1 to bear a child but accused Nos. 1 and 2, taking
advantage of his expert presence, consulted him on where the treasure trove
lay. Ganpat prescribed the facade of a procedure which was in the nature of a
confidence trick. Practising it deftly on his credulous audience, he passed on
the errand of God that Munjaba has to be appeased by offering the blood of
virgin girls. That work was assigned by accused No. 2 to his servants, accused
No. 3 and the other approver Shankar.
Accused No.3 and Shankar committed the
murders of Gayabai and Shakila and handed over the bowlful of blood from the
private parts of the victims to accused Nos. 1 and 2 who performed the puja of
Munjaba. But the treasure trove did not come up. Then Sugandhabai was murdered
and her menstural blood was offered to the God, again without a purpose.
The fourth to die was Nasima whose head and
small finger were offered as sacrifice. But even that heavy price yielded no
clue to the treasure trove Ganpat was paid a fee of Rs. 100 whereupon he made
himself scarce and left for a place called Baramati from where he was traced by
the police. That is what Ganpat's evidence comes to.
Ganpat is an utterly worthless witness whose
evidence has been rightly discarded by the. High Court. His entire story is
incredible and abounds in contradictions of the gravest kind. Accused No. 2 is
a man of some means and was for some time the President of the Manwat
Municipality. It is hardly likely that a person in his position would readily
gulp the fantastic process prescribed by Ganpat for discovering the treasure
trove Ganpat was interrogated by the police for nearly a month and a half after
his arrest at Baramati and it was only at the end of that trying period that he
trotted out some story (1)  SCR 195 (2)  6 SCR 623 (3)  2 SCR
641 (4)  3 SCR 453 646 to save his skin. It is common ground, and we see
much more in that episode, that Ganpat struck his head against a wall while in
police custody and sustained a head injury for which he was charge-sheeted for
attempting to commit suicide. He admits in his evidence that he was driven to
break his head as a result of the torture inflicted upon him by the police.
Though he implicated both accused Nos. 1 and 2 in the search for treasure
trove, he admitted later that.
accused No.1 had never talked to him. in that
behalf. He made several significant statements for the first time in the Court
and though we agree that an approver has real incentive to speak out his mind
after tender of pardon, it is impossible to reconcile his earlier statements
with his later assertions. It is one thing to say as was said in Madan Mohan
Lal v. State of Punjab(1) that an approver's statement cannot be discarded for
the mere reason that he did not disclose the entire story in his police
statement and quite another to accept an approver in spite of contradictions
which cast a veil of doubt over his involvement of others. Conceding the ratio.
of Tahsildar's(2) case, on.
which Mr. Desai for the State Government
relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of
falsehood with an ounce of truth. His evidence has therefore to be left out of
The other approver Shankar Gyanoba Kate, P.W.
2, has greater credibility than Ganpat. Shankar was working with accused No. 2
as an agricultural servant along with accused No. 3. He speaks of Ganpat's
visits, the performance of the 'shakun' and of being commanded by accused Nos.
1 and 2 to commit murders of virgin girls. He has unreservedly admitted having
committed the murders of Gayabai, Shakila, Sngandhabai and Nasima with accused
No. 3's assistance. He implicates accused Nos. 1 and 2 by deposing that after
each o[ the murders was committed, he and accused No. 3 used to go to accused
No.1's house for delivering the blood and that the accused used to perform the
Not only has Shankar tarred himself with the
same brush as accused Nos. 1, 2 and 3 but he has confessed to having played the
leading role in the commission of the first four murders. Impressed by that
circumstance, the Sessions Court and the High Court concluded that he is a
reliable witness, but they took the view that the conviction of accused Nos. 1
and 2 cannot be permitted to rest on his uncorroborated testimony. We unhesitatingly
share that view. Having played the role of the master killer in four ghastly
murders, he is bound to know every little detail as to the manner of killing.
The vivid description given by him of the luring, the gagging and the throwing
away of the dead bodies may therefore be true. But it is easy enough for him to
introduce nice falsities here and there by involving some others in the broadly
true framework of his story. It is therefore necessary to see whether the
evidence of Shankar in regard to the implication of accused Nos. I and 2 is
corroborated by some independent evidence..
(1)  2 S.C.C. 733.
(2)  Supp. 2 S.C.R. 875.
647 Before looking out for corroboration., we
must point out that Shankar used to be interrogated by the police every night
for about 9 or 10 days and it was at the end of that gruelling interrogation
that his statement came to be recorded. Though Shankar claims that he had seen
the 'shakun' being performed by Ganpat, he had not stated so before the police
nor had he then described the elaborate ritual observed during the performance
of that ceremony. He also did not say to the police that accused No. 1 had
asked him to commit the murders. Neither to the police nor in his statement
recorded under s. 164 of the Code of Criminal Procedure did he say that he had
gone to accused No.1's house on the morning following the first murder and that
She had told him that since the treasure trove was not found another murder
should be committed. The statement attributed by Shankar to accused No. 1 that
menstrual blood was required for sacrifice is also conspicuous by its absence
in his police statement. These significant omissions are in the nature of
contradictions because not only do they pertain to a very vital aspect of the
case against accused Nos. 1 and 2, but they are of such a nature that the story
told by Shankar to the police and under s. 164of the Code of Criminal Procedure,
cannot sensibly stand along with what he told the Court in regard to the part
played by accused Nos. 1 and 2.
It is true that Shanker was under a higher
obligation while deposing in the Court because as a condition of the pardon
tendered to him he had to disclose the whole truth to the Court. But while
assessing the value of Shankar's. evidence in so far as he implicates accused
Nos. 1 and 2 we find it impossible to overlook the studied improvements which
he made to involve them. Such gross departure from the earliest versions makes
the story of conspiracy suspect and uninspiring. All the same, we may examine
the argument advanced before us by the learned counsel for the State that Shankar's
evidence against accused Nos. 1 and 2 is corroborated in material particulars
and should therefore be accepted.
For affording corroboration to Shankar's
evidence reliance is placed on the evidence of four witnesses--Laxman (P.W.
19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34)..
We see nothing in the evidence of these
witnesses which can lend corroboration to the approver's story, that accused
Nos. 1 and 2 conspired to commit the murders or that they asked Shankar and
accused No. 3 to do so or that the blood of victims was handed over to either
of them, or that any Puja was performed after the commission of murders. Laxman
says nothing about the treasure trove, Sakharam merely carried the errand to
Ganpat, Ramchandra was mauled by the police who pulled out Iris pig-tail and
the quack called Kachru only prescribed a medicine for accused, No.1's menopause.
Nor indeed is the evidence of P.Ws. 20, 21
and 51 of any assistance in the matter of corroboration. They merely say that
Ganpat was eking his livelihood by prescribing Mantras and medicines, which
takes one nowhere near corroborative factors for implicating accused Nos. 1 and
648 The recovery of Ganpat's satchel.
containing charms and herbs, trader the Panchnama Ex. 130A, also proves nothing
beyond showing that Ganpat was equipped with a quack's repertoire.
One of the strongest arguments made by Mr.
Desai on behalf of the State was that accused Nos. 1 and 2 stood to gain by the
commission of the murders and that would afford corroboration to their
participation in the conspiracy.
Motive may conceivably furnish the necessary
corroboration, but we are unable to see any independent evidence on the record
regarding the treasure trove theory. Scrapings were taken from Munjaba's image
and samples of earth were also taken from the place where Munjaba is alleged to
have been propitiated with the blood of the victims. If Puja was really
performed in the manner described by Shankar, it is strange that no blood
stains should have been found anywhere near the Pimpal tree. There is also no
evidence at all to show that any attempt was made by accused Nos. 1 and 2 to
discover the treasure, as for example, by digging. These circumstances cast a
serious doubt on the theory that accused Nos. 1 and 2 were trying to locate the
The fact that accused No. 3 is a servant of
accused No. 2 cannot by itself be sufficient to connect accused No. 2 with the
The last circumstance on which prosecution
connect accused Nos. 1 and 2 with the crime
is the confession, Ex. 108, made by accused No. 1 Rukhmam. That confession was
recorded by a Sub-Divisional Magistrate, Devidas Sakharam Pawar, P.W. 23.
Later, we will have a great deal to say about the various confessions recorded
by this learned Magistrate but in so far as the confession of accused No. 1 is
concerned it is enough to point out that it is entirely exculpatory and can,
therefore, serve no useful purpose. Besides, the confession was retracted by
accused No. 1.
Along with these considerations is the
circumstance that the High Court has acquitted accused Nos. 1 and 2 after a
fair examination of the material relied upon by the prosecution as against
them. The various reasons given by us would so that there is no justification
for interfering with the conclusion to which the High Court has come. The
acquittal of accused Nos. 1 and 2 has, therefore, to be confirmed.
It would now be convenient to take up the
ease of accused No. 3, Sopan Rambhau Salve. The allegation against him is that
he and the approver Shankar committed the murder of Gayabai on November 14,
1972, of Shakila on December 9, 1972, of Sugandhabai on February 21, 1973 and
of Nasima on April 13, 1973. There is no eyewitness to any of these four
murders but for establishing the charge against accused No.
3, the prosecution relies on the evidence of
the two approvers Ganpat (P.W. 1) and Shankar (P.W.2), the discovery of article
17 by accused No. 3, the discovery of articles 18 and 19 by approver Shankar,
the seizure of articles 20 and 21 from the house of accused No. 1 and lastly
the retracted confession of accused No. 3 himself. We have already dealt with
the evidence of the approvers while considering the case against accused Nos. 1
and 2 and we have given our reasons for discarding Ganpat's evidence outright.
In regard to Shankar's evidence we have taken the view that though he is 649 a
reliable witness, his evidence cannot be acted upon unless it is corroborated
in material particulars.
Shankar and accused No. 3 were in the
employment of accused No. 2. After describing the 'Shakun' ceremony which was
performed for ascertaining the desire of the deity, Shankar deposes that he and
accused No. 3 were commissioned to commit the murders of virgin girls. Shankar,
after some hesitation, agreed to do so on the promise that accused Nos.
1 and 2 will,give to him and accused No.3 a
share in the treasure trove.
Accused No. 3, according to Shankar, lured
Gayabai, Shakila and Nasima to secluded spots., where upon Shankar gagged and
throttled them. Accused No. 3 facilitated the murders by holding the legs of
victims which also helped Shankar to collect blood from their private parts
after causing cuts thereon. Accused No. 3 played a more significant role in the
murder of Sugandabhai by axing her to death.
Shankar's evidence is amply corroborated as
regards the broad outlines of the story narrated by him. But that is not
enough. We must see whether his evidence receives corroboration from an
independent source and in material particulars, so as to fasten the guilt on
accused No. 3.
The first circumstance which is said to
corroborate the evidence of the approver is the discovery of 27 pieces of
shirt, which are collectively marked as article 17. The panchanama of discovery
(Ex. 127) is dated January 2, 1974 and is proved by the Pancha Vithalrai
Takankhar (P.W. 27). The report of the serologist which is at Ex. 312 shows
that there were several blood stains on the shirt pieces ranging from 0.1 cm.
to 0.5 cm. in diameter, all of 'A' group. Gayabai's blood also belonged to 'A'
Mr. Bhonde who appears for accused No. 3 has,
subjected the evidence of discovery to a searching criticism which at first
blush seems plausible but which does not bear close scrutiny. The argument that
the panchanama of discovery does not attribute to accused No,. 3 the authorship
of concealment has the simple answer that the English translation of the
Marathi panchanama is incorrect. The original document expressly states that
accused No. 3 agreed to point out the place where. he had kept the shirt
pieces. The evidence of the Panch (P.W. 27) and of Dy. S.P. Waghmare (P.
W. 96) is. to. the same effect. In the
absence of any effective cross-examination of these witnesses, we see no
substance in the contention that accused NO. 3's father, who was standing near
the hut, should have been examined as a witness.
It is urged that it is highly unlikely that
accused No. 3 will preserve the tell-tale evidence of the crimes in the manner
alleged by the prosecution. Why the accused chose to do this is difficult to
know but we are not examining the evidence in the case as a Court of first
instance.. The evidence in regard to the discovery is accepted as unexceptionable
by the Sessions Court as well as the High Court 650 and we are unable to
characterise that view of the matter as preverse or against the weight of
evidence. The recovery of art. 17 thus afford material corroboration to the
part played by accused No. 3, at least in Gayabal, s murder.
The discovery of the blade (art. 18) and the under
vest (art. 19) at the instance of the approver affords no corroboration as against
accused No. 3. Nor indeed can the recovery of the bowl (art. 20) and the bottle
(art. 21) from the house of accused No. 1 connect accused No.. 3 with the
crime. These are articles of common use and no blood was detected thereon.
What remains to be considered is the
retracted confession accused No. 3, which is Ex. 106. While on this question,
we would like to deal with all the confessional statements recorded in the case
so that it will not be necessary to revert to. the question time and again.
As many as eight confessions were recorded in
the case, the confessing accused, apart from the two approvers, being accused
Nos. 1, 3, 4, 5, 6, and 12. The approvers, Ganpat and Shankar, stuck to their
confessions while all others retracted theirs.
Section 24 of the Evidence Act makes a
confessional statement irrelevant in a criminal proceeding if the making
thereof appears to have been caused by any inducement, threat or promise,
having reference to the charge against the accused, proceeding from a person in
authority and sufficient to give the accused grounds which would appear to him
reasonable for supposing that by making the confession he would gain any
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him. Section 163 of the Criminal Procedure Code bars a
Police Officer or any person in authority from offering or causing to be
offered any inducement, threat or promise as is referred to in s. 24 of the
Indian Evidence Act. Section 164 of the Code prescribes the mode of recording
confessional statements. Acting under s. 554 of the Criminal Procedure Code,
1898, the High Court of Bombay had framed instructions for the guidance of
Magistrates while recording confessional statements. Those instructions are
contained in Chapter I, Paragraph 18, of the Criminal Manual 1960, of the
Bombay High Court. The instructions require the Magistrate recording a
confession to ascertain from the accused whether the accused is making the
confessional statement voluntarily and to find whether what the accused desires
to state appears to be true. The instructions prescribe a form in. which the.
confessional statement has to be recorded. Similar circulars or instructions
have been issued by the various High Courts in India and their importance has
been recognised by this Court in Sarwan Singh v.
State of Punjab(1) in which it was said that
the instructions issued by the High Courts must be followed by the Magistrates
while recording confessional statements.
 S.C.R. 953 651 All of the eight
confessions were recorded in this case by a Sub Divisional Magistrate, Devidas
Sakharam Pawar (P. W. 23), whose evidence leaves no room for doubt that he was
blissfully unaware of the stringent responsibilities east by law on
Magistrates. who. are called upon to record confessions. He made no effort to
ascertain from any of the accused whether he or she was making the confession
voluntarily. He did not ask any of the accused whether the police had offered
or promised any incentive for making the confessional statement nor did he
ascertain for how long the confessing accused was in police custody prior to.
his production for recording the confession nor indeed did he maintain any
record to show where the accused were sent after they were given time for
reflection. One of the glaring infirmities from which the confessional
statements of the various accused suffer is that none of those statements
contain a memorandum as required by s. 164 of the Code that the Magistrate
believed that the "confession was voluntarily made". It is also clear
that when the various accused were produced before the Magistrate after the
time for reflection was over, he asked no further questions and recorded the
confessions. mechanically for the mere reason that the accused expressed their
willingness to confess.
The Magistrate was either overcome by the
sensation which the case had aroused in Maharashtra or perhaps he blindly
trusted the high police officers who were frantically looking out for a clue to
these mysterious murders. They produced the accused for recording the
confessions and the Magistrate thought that the mere production of the accused
was guarantee enough of their willingness to confess.
Learned counsel appearing for the State is
right that the failure to comply with s. 164(3), Criminal Procedure Code, or
with the High Court Circulars will not render the confessions inadmissible in
evidence. Relevancy and admissibility of evidence have to be determined in
accordance with the provisions of the Evidence Act. Section 29 of that Act lays
down that if a confession is otherwise. relevant it does not become irrelevant
merely because, inter alia, the accused was not warned that he was not bound to
make it and the evidence of it might be given against him. If, therefore, a
confession does not violate any one of the conditions operative under ss. 24 to
28 of the Evidence Act, it will be admissible in evidence. But as in respect of
any other admissible evidence, oral or documentary, so in the case of
confessional statements which are otherwise admissible, the Court has still to
consider whether they can be accepted as true.. If the facts and circumstances
surrounding the making of a confession appear to. cast a doubt on the veracity
or voluntariness of the confession, the Court may refuse to act upon the
confess; on even if it is admissible in evidence. That shows how important it
is for the Magistrate who. records the confession to satisfy himself by
appropriate questioning of the confessing accused, that the confession is true
and voluntary. A strict and faithful compliance with s. 164 of the Code and
with the instructions issued by the High Court affords in a Large measure the
guarantee that the confession is voluntary. The failure to observe the
safeguards prescribed therein are in practice calculated to impair the
evidentiary value of the confessional statements.
652 Considering the circumstances leading to
the processional recording of the eight confessions and the abject disregard,
by the Magistrate, of the provisions contained in s.
164 of the Code and of the instructions
issued by the High Court, we are of the opinion that no reliance can be placed
on any of the confessions. Apart from the confessions of the two approvers, all
others were retracted, which further cripples their evidentiary value.
Since the evidence of the approver Shankar is
corroborated in material particulars by the discovery of article 17, there is
no valid reason for departing from the concurrent view of the High Court and
the Sessions Court that the complicity of accused No. 3. in the four murders is
proved beyond a reasonable doubt. As the charge of conspiracy fails, the High
Court was right in convicting accused No. 3 under s. 302 read with s. 34 of the
Penal Code only.
That leaves the case of accused Nos. 9 to 12
for consideration,. being the subject-matter of Criminal Appeal No.
437 of 1976 filed by them. The charge against
these accused is that in furtherance of conspiracy and in pursuance of their common
intention they, on January 4, 1974, committed the murders of Haribai, aged 35
years, her daughter Taramati aged 9 years, and her infant child Kamal aged
The Sessions Court convicted these accused
under s. 302 read with ss. 120B and 34 of the Penal Code and sentenced them to
life imprisonment. The charge of conspiracy having failed before the High Court
and the main co-conspirators, accused Nos. 1 and 2, having been acquitted, the
High Court convicted these accused under s. 302 read with s. 34 only. But,
accepting the appeal flied by the State, the High Court enhanced their sentence
from life imprisonment to death.
The evidence against accused Nos. 9 to 12
consists of :
(1) The: eye-witness account of Umaji
Limbaji, Pitale (P.W. 31); (2) Discoveries effected in pursuance of statements
made by the accused; (3) Injuries on accused No. 10; (4) The evidence in regard
to the movements of the accused at or about the time when the murders were
committed and (5) the confession of accused N6. 12.
Umaji was working as. an agricultural servant
with one Balabhau Lad on a daily wage of Rs. 3/-. On January 4, 1974 while he
was on his way to one of the lands of his master, he first met accused No. 10
and then accused Nos. 9 and 11, and had some conversation with accused No. 10.
At about the same time, he saw Haribai carrying her infant child in her arms,
and a basket of food on her head. Her other daughter Taramati was walking
behind her. Umaji climbed the Mala, which is a raised platform from which crops
are generally watched, and soon thereafter he heard the shrieks of a child.
Turning in the direction from which the shrieks came, he saw accused No. 10
holding Haribai from behind by her waist and accused No.9 giving an axe blow on
Almost simultaneously, Umaji saw accused No.
12 holding Taramati from behind and accused No. 11 giving an axe blow on her
head. Feeling nervous and fearful, jumped down from the Maid, tethered his
horse in his master's land, went by 653 a bus to the Manwat Road Railway
Station, took a train to Ranjani and from there proceeded to the village of
Iregaon where his maternal uncle Mathaji lived. After staying at Iregaon for
about four days, Umaji went back to his master's house at Manwar when a police
constable took him to. the Police Station, where a Police Officer recorded his
Umaji's evidence having been concurrently
accepted by the Sessions Court and the High Court, we do. not propose to
undertake a fresh reappraisal of that evidence except to the extent to which
the view of the Courts below is contrary to the weight of the record or is
otherwise such as is impossible in the context to sustain. On a careful
consideration of Mr. Narayan's closely reasoned submissions, we have formed the
conclusion, which does not materially differ from that of the two Courts, that
Umaji's evidence cannot be accepted without adequate corroboration.
Our reasons for taking this view are briefly
these: Fear and pame may account for the fact that the witness did not raise an
alarm. But there is no reasonable explanation why, having had the presence mind
to tether back the horse, he did not see his master. Then again, he sojourned
from the scene of offence to Iregaon but spoke to none. At Iregaon, which was
far removed from the scene of Manwat murders, he holidayed with his uncle for
four days but even on being questioned as to the purpose of his visit, he made
no answer. After returning to Manwat he saw his master but told him nothing.
His statement was recorded by the police after two days of close interrogation.
In regard to accused No. 9, there are two
circumstances which afford reliable corroboration to Umaji's evidence. On
January 11, 1974 accused No. 9 made a statement leading to the discovery of an
axe blade, article 160, from his house.
The panchnama of recovery is Ex. 91-A which
is proved by the Panch Sheikh Imam (P.W. 11 ). It shows that accused No. 9 took
out an axe blade from below a piece of wood lying behind a cupboard in his
house. The report of the Serologist, Ex. 267, shows that the axe blade was
stained with human blood of 'A' group. The blood of the deceased Haribai
belonged to the same group. Accused No. 9 admitted in his examination that he
had produced the axe blade and that it was stained with blood but he sought to
explain the blood stains by saying that his wife had sustained an injury while
hewing wood with the axe. That is a flimsy explanation because were it true, it
is difficult to understand why such great care was taken to conceal the axe blade.
On January 21.1974a burnt shirt piece,
article 170, was recovered in consequence of information given by accused No.
9. The Panchnama, Ex. 87-A, and the evidence of the Panch Munjaba (P.W. 25)
show that the accused dug out the shirt piece from under a heap of earth lying
inside his house. Article 170 was found by the Sessions Judge to fit squarely
with the shirt sleeve, article 112, which was found at the place of occurrence
near Haribai's dead body. The report of the Chemical Analyser at Ex.271 shows
that articles 112 and 170 bore' identical textile and physiochemical
654 In our opinion, the courts below were
justified in relying upon these corroborative circumstances to connect accused
No. 9 with the murder of Haribai.
Turning to accused No. 10, an axe handle,
article 169, was recovered at his instance on January 17, 1974. The Panchanama,
Ex. 86-A, and the evidence of the Panch Mohd.
Yusuf Bade Khan (P.W. 10) show that the axe
recovered from below a thorny fence in the
Pardhi Wada locality. The report of the serologist, Ex.267, shows that there
was human blood on the axe but the group of, the blood could not be determined.
It is not possible to accept the submission of Mr. Narayan that the axe handle
was recovered from a place which was easily accessible to the public because
the handle was taken out after making quite some efforts to locate it. Accused
No. 10 was the author of its concealment.
On January 8, 1974 when accused No. 10 was
arrested a turban, bush-shirt and dhoti (articles 150 to 1.52) were seized from
his person. The serologist's report, Ex.267, shows that human blood was
detected on the bush-shirt and the dhoti. The blood-stain. on the shirt was 0.5
cm in diameter and the blood detected on the bush-shirt and the dhoti belonged
to 'A' group. Accused No. 10 admitted in his examination that the shirt and the
dhoti were blood-stained but he offered an unconvincing explanation that a
child of his had bled from the nose, The evidence of Dr. Salunke (P.W. 48) who
examined accused No. 10 on the date of his arrest shows that he had four
injuries on his person, the certificate in regard to, which is Ex. 174.
Injuries Nos. 1 and 2 were interrupted abrasions which in the opinion of Dr.
Salunke could be caused by teeth-bite. That fits in with 'the part played by
accused No. 10, who according to Umaji's evidence, had held Haribai from behind
by her waist. Evidently, Haribai struggled to release herself in a frantic
attempt to save her life she caused the injuries to accused No. 10.
We agree with the view taken by both the
Courts that the discovery of the blood-stained axe-handle, the seizure of
clothes stained with 'A' group blood and the teeth-bite injuries afford
adequate corroboration to Umaji's evidence regarding the part played by accused
No. 10, in the murder of Haribai.
As regards accused No. 11, an axe-blade
(article. 167) was recovered in consequence of information supplied by him.
The Panchanama, Ex. 84-A, and the evidence of
the Panch Mohd. Yusuf Bade Khan. (P.W. 10) show that accused No.11 led the
police party and the panchas to a water tap in the Pardhi Wada locality and dug
out the axe blade which was lying buried under a stone. The report of the
Serologist, Ex. 269, shows that human blood of 'A' group' was detected on the
axe blade. Taramati, according to Umaji's evidence, was assaulted with an axe
by accused No. 11. Her clothes, articles 142 and 143, were found to be stained
with human blood of 'A' group.. We see no infirmity in the Pancha's evidence and
no substance in the counsel's contention that the discovery of the axe-blade
was foisted on the accused.
655 The discovery of the axe blade stained
with human blood of 'A' group sufficiently corroborates the evidence of Umaji
as regards the part played by accused No. 11 in Taramati's murder.
Before considering the case of accused No.
12, we would like to point out that there is satisfactory evidence to show the
presence of accused Nos. 9 to 11 at or near the scene of offence some time
before the incident. Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16),
Narayan (P.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about
the same either in regard to all of these accused or some of them. Their
evidence has been examined with gear care by the learned Sessions Judge and we
agree with his assessment that except for Sant Ram, the other witnesses can be
relied up.on for affording corroboration to Umaji's evidence.
That leaves the case of accused No. 12 for
consideration. It is alleged that he held Taramati from behind whereupon
accused No. 11 gave axe-blows on her head. Taramati was just a girl of 9 and
the allegation that accused No. 12 had to hold her from behind to enable
accused No. 11 to assault her with an axe sounds inherently incredible. 1t is
significant that some time before the occurrence, Umaji met accused Nos. 9,10
and 11 near the scene of offence but not accused No. 12. The importance of this
circumstance is twofold: Firstly that accused No. 12 was not in the company of
the other three at or about the time of the incident and secondly that Umaji's
identification of the person who held Taramati, namely accused No. 12, becomes
There was standing crop about five feet high
between the Mala where Umaji was standing and the place where Taramati was
held. Besides, the spot where Taramati was done to death was in a depression,
which would further affect the witness's ability to. identify the person who.
had held Taramati. After all, Umaji had but a fleeting glimpse of the incident
and the chance of an error in identifying accused No. 12, who w.as not seen
earlier in the company of accused Nos. 9 to 11, cannot fairly be excluded.
All the same, since Umaji has no particular
reason to implicate accused No. 12 falsely and since the Courts below have
concurrently accepted his evidence in regard to accused No. 12 also, we must
examine carefully the strenuous submission made by Mr. Desai for the State that
even as regards accused No. 12, Umaji's evidence is sufficiently corroborated.
That corroboration consists of the discovery
of. an axe-handle, article 168, from the house of accused No. 12 on January 17
1974. The Panchanama of recovery is Ex. 85-A which is proved by the Panch Mohd.
Yusuf Bade Khan, P.W.
10. It is alleged that the axe-handle was
produced by accused No. 12 from below the tin-sheet roof of his house in Pardhi
Wada. The report of the serologist, Ex. 269, says that there was human blood of
'A' group on the axehandle.
We find it impossible to place any. reliance on
the discovery of the axe-handle for the following reasons:
Though accused No. 12 was 656 arrested on
January 11, 1974 his house was searched on January 7, 1974 in connection with
the murders of Haribai and her daughters which had taken place on January 4,
1974. That search is borne out by the Panchanama, Ex. 221.
On January 6, 1974 accused No. 12 figured in
an identification parade which was arranged in order to ascertain if the Dog
squad could afford assistance in fixing the identity of the culprits. The
evidence of the Senior Dog Master, Ramchandra (P.W. 52), shows that a female
dog called Mala sniffed her suspicion at accused No. 12. With the clue provided
by the Dog Squad on the 6th, the house of accused No. 12 was searched on the
7th. That house consists of one room only. The Panchanama shows that the
axe-handle was not in any manner concealed under the tin-sheet. It was lying
openly, visible to the naked eye, so that he who cared could easily see it. It
is then strange that it was not found on the 7th itself. There is also a
serious discrepancy in the evidence of the two Panehas, Mohd. Yusuf, P.W. 10,
and Sheikh Imam, P.W. 11, regarding the discovery.
Whereas according to the former, accused No.
12 said that he had concealed the axe,handle below the tin-sheet of the roof,
according to the latter the information which accused No. 12 gave was that he
had kept the handle below a stone inside his house. Coupled with the
circumstance which emerges from the evidence of Panch Sheikh Imam that there is
no door to the room from which the axe-handle was produced, the evidence in
regard to. the recovery of the axehandle becomes manifestly suspect. These
infirmities in the recovery of the axe-handle failed to evoke the attention of
the High Court. The Sessions Court too missed their impact on the point at
The seizure of a blood-stained' Dhoti from
the person of accused No. 12 at the time of h,is arrest, even if the blood
belonged to 'A' group, is not of a kind which, in the context of the various
circumstances referred to above, can be accepted as safely of sufficiently
corroborative of Umaji's evidence. This is particularly so because, at the very
threshold, it is doubtful if Umaji could identify accused No. 12.
The evidence regarding the presence of
accused No. 12 in the fields roundabout the scene of offence on the afternoon
of the day of incident cannot connect him with the crime. And the retracted
confession of the accused, like its counterparts, has to be excluded from
consideration altogether because of the cavalier fashion in which the
Sub-Divisional Magistrate recorded the various confessions.
Accused No. 12 is thus entitled to an
acquittal for the reason that the prosecution has failed to prove its case
against him beyond a reasonable doubt.
Learned counsel for accused Nos. 3, 9, 10 and
11 whose conviction under s. 302 read with s. 34 has been affirmed by us and
who stand sentenced to death, contend that the accused were not heard on the
question of sentence and therefore the sentence is not according to law. It is
urged that we should remand the appeal of accused Nos. 9, 10 and 11 to the High
Court which sentenced them to death, 657 and accused No. 3's appeal to the
Sessions Court which sentenced him to death, in order to enable these accused
to make their contentions as to why they should not be sentenced to death even
though they have been convicted under s. 302 of the Penal Code. In support of
this argument reliance is placed on a decision of this Court in Santa Singh v.
State of Punjab(1).
In Santa Singh(1), the Sessions Judge, after
pronouncing the judgment convicting the appellant for a double murder, did not
give him opportunity to be heard on the question of sentence. He pronounced the
appellant guilty of murder and, as a part of a single judgment, imposed the
sentence of death. The High Court confirmed the conviction and the sentence of
death. In appeal, it was held by this Court (Bhagwati and Fazal Ali, JJ) that
the provisions of s. 235 of the Code of Criminal Procedure, 1973, which are
clear and explicit, require that the Court must in the first instance deliver a
judgment of acquitting the accused and if the accused be convicted, he must be
given an opportunity to be heard in regard to the sentence. Holding that the provisions
of s. 235 are mandatory in character, the Court set aside the sentence of death
and remanded the case to. the Sessions Court with the direction that it should
pass an appropriate sentence after giving to the appellant an opportunity to be
heard on the question of sentence.
Section 235 of the Criminal Procedure Code,
1973 reads thus:
"235(1) After heating arguments and
points of law (if any), the Judge shall give a judgment in the case.
(2). If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of Section 360,
hear the accused on the question of sentence, and then pass sentence on him
according to law." The imperative language of sub-section (2) leaves no.
room for doubt that after recording the finding
of guilt and the order of conviction, the Court is under an obligation to hear
the accused on the question of sentence unless it releases him on probation of
good conduct or after admonition under s. 360. The right to be heard on the
question of sentence has a beneficial purpose, for a variety of facts and
considerations bearing on the sentence can, in the exercise of that right, be
placed before the Court which the accused, prior to the enactment of the Code
of 1973, had no.
opportunity to do. The social compulsions,
the pressure of poverty, the retributive instinct to seek an extra-legal remedy
to a sense of being wronged, the lack of means to be educated in the difficult
art of an honest living, the parentage, the heredity--all these and similar other
considerations can, hopefully and legitimately, tilt the scales on the
propriety of sentence. The mandate of s. 235(2) must, therefore, be obeyed in
its letter and spirit.
(1)  4 S.C.C. 190.
658 But we are unable to read the judgment in
Santa Singh (supra) as laying down that the failure on the part of the Court,
which convicts an accused, to 'hear him on the question of sentence must
necessarily entail a remand to that Court in order to afford to the accused an
be heard on the question of sentence. The
Court, on convicting an accused, must unquestionably hear him on the question
of sentence. But if, for any reason, it omits to do so and the accused makes a
grievance of it in the higher court, it would be open to that Court to remedy
the breach by giving a hearing to the accused on the question of sentence. That
opportunity has to be real and effective, which means that the accused must be
permitted to adduce before the Court all the data which he desires to adduce on
the question of sentence. The accused may exercise that right either by
instructing his counsel to make oral submissions to the Court or he may, on
affidavit or otherwise, place in writing before the Court whatever he desires
to place before it on the question of sentence. The Court may, in appropriate
cases, have to adjourn the matter in order to give to the accused sufficient
time to produce the necessary data and to make his contentions on the question
That, perhaps, must inevitably happen where
the conviction is recorded for the first time by a higher court.
Bhagwati J. has observed in his judgment that
care ought to be taken to ensure that the opportunity of a hearing on the
question of sentence is not abused and turned into an instrument for unduly
protracting the proceedings. The material on which the accused proposes to rely
may therefore, according to the learned Judge, be placed before the Court by
means of an affidavit. Fazal Ali, J., also observes that the courts must be
vigilant to exercise proper control over their proceedings, that the accused
must not be permitted to adopt dilatory tactics under the cover of the new
right and that what s. 235(2) contemplates is a short and simple opportunity to
place the necessary material before the Court. These observations show that for
a proper and effective implementation of the provision contained in s. 235(2),
it is not always necessary to remand the matter to the court which has recorded
the conviction. The fact that in Santa Singh (supra) this Court remanded the
matter to the Sessions Court does not spell out ratio of the judgment to be
that in every such case there has to be a remand. Remand is an exception, not
the rule, and ought therefore to be avoided as far as possible in the interests
of expeditious, though fair disposal of cases.
After counsel for accused Nos. 3, 9, 10 and
11 raised an objection before us that the sentence of death was imposed upon
the accused without hearing them as required by s.
235(2) of the code, we granted to them
liberty to produce before us such material as they desired and to make such
contentions as they thought necessary on the question of sentence. Accordingly,
counsel made their oral submissions before us on the question of sentence and
they also flied the relevant material before us showing why we should not
uphold the death sentence imposed on the accused.
659 That takes us to the question of
sentence. For the offence under s. 302, it is no longer obligatory to impose
the sentence of death. Prior to the amendment of s. 367(5) of the Code of
Criminal Procedure, 1898 by Act 26 of 1955, the normal sentence for murder was
death and the Court had to record its reasons for imposing the lesser sentence
of life imprisonment. The obligation to record reasons for imposing the lesser
penalty was deleted by Act 26 of 1955, so that Courts became free to award
either the sentence of life imprisonment or the sentence of death, depending on
the circumstances of each individual case. Section 354(3) of the Code of 1973
provides that when the conviction is for an offence punishable with death or,
in the alternative, with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded, and in
the case of sentence of death, the special reasons for awarding that sentence.
The legislative history of the sentencing provisions and the explicit language
354(3) show that capital punishment can be
awarded for the offence of murder, only if there are special reasons for doing
so. All murders are inhuman, some only more so than others.
Having considered the matter in all its
aspects--penal, juristic and sociological--and having given our most anxious
consideration to the problem, we are of the opinion that accused Nos. 3, 9, 10
and 11 deserve the extreme penalty of law and that there is no justification
for interfering with the sentence of death imposed upon them.
Accused No. 3 put an end to four innocent
lives, three small girls ten years of age and a woman in her thirties. Accused
Nos. 10 and 11 committed the murders of Haribai, her nineyear old daughter and
her infant child. The victims had given no cause for the' atrocities
perpetrated on them.
They were killed as a child kills flies. And
the brutality accompanying the manner of killing defies an adequate
description. The luring of small girls, the gagging, the cutting of their
private parts, the ruthless defiling in order to prevent identification of the
victims and the mysterious motive for the murders call for but one sentence.
Nothing short of the death sentence can atone
for such callous and calculated transgression of law. Morbid pity can have no
place in the assessment of murders which, in many respects. will remain
unparalleled in the annals of crime. Accordingly, we confirm the death sentence
imposed on accused Nos. 3, 9, 10 and 11.
The overall result is as follows:
(1 ) We uphold the acquittal of accused Nos.
1 and 2 and dismiss Criminal Appeal No. 441 of 1976 filed by the State of
Both the two Accused who are in jail shall be
(2) We uphold the conviction of accused No. 3
under s.. 302 read with S. 34 of the Penal Code and the sentence Of death
imposed upon him. Criminal Appeal No. 1438 of 1976 filed by him is accordingly
dismissed (3) We uphold the conviction of accused Nos. 9, 10 and 11 under s.
302 read with s. 34 of the Penal Code and 3--707SCI/77 660 the sentence of
death imposed upon them. We acquit accused No 12 by giving him the benefit of
doubt and direct that he shall be released.
Criminal Appeal No.437 of 1976 filed by accused
Nos. 9 to 12 thus succeeds partly in so far as accused No. 12 is concerned and
fails in so far as accused Nos. 9, 10 and 11 are concerned.
Before concluding, we would like to make a
few observations concerning the detection and investigation of these crimes. It
is a matter of grave concern that the police were not able to obtain any clue
whatsoever to the numerous murders which were committed so systematically in
the small village of Manwat. The spate of those atrocities commenced with the
murder of Gayabai on November 14, 1972 and ended with the murders of Haribai
and her two daughters on January 4,, 1974. All along, a strong patrol of
policemen was keeping vigil in the very locality in which most of the murders
were committed. The evidence of Dy. S.P. Waghmare shows that apart from the
mobile police, fixed post patrols were deputed to keep a close watch on the
activities of all and sundry in the area which was chosen by the murderers for
their criminal activities. Haribai and her daughters were murdered under the
very nose of the policemen. Quite a few of them were on duty a few hundred
yards away from the scene of occurrence and yet the culprits could escape with
impunity. And it is astonishing that when the three dead bodies were lying in
close proximity, the police with their trained hawk-sight could see only one.
All this hardly does any credit to the efficiency and watchfulness of a system
which in Maharashtra has won many encomiums. Eventually Providence, and perhaps
the police, persuaded Samindrabhai Pawar, accused No. 4, to make a confessional
statement on December 28, 1973 and the wheels of a baffled machine started
It would perhaps have been more conducive to
greater efficiency if an unduly large number of senior police officers were not
commissioned for the investigational work..No one seems to have assumed an
overall responsibility for investigation and so many of them working together
spoiled the broth like so many cooks.
It is plain common-sense that suspects are
seldom willing to furnish a quick and correct clue to the crimes for which they
are arrested. A certain amount of coaxing and promising has inevitably to be
done in order to persuade the accused to disclose at least the outlines of the
crime. But the use of strong methods of investigation, apart from raising
problems concerning the observance of decency in public affairs and of human
dignity, is fraught with the danger that the very process by which evidence is
collected may become suspect and fail to inspire confidence. Ganpat, the
approver, was driven to admit that he was tortured while in the lock-up and we
have serious doubts whether the injury caused on his head was, as alleged by
the police, selfinflicted. A witness called Ramchandra also admitted that while
under interrotation the police pulled out his pig-tail We have resisted the
failing which tempts even judicially trained minds to revolt against such
methods and throw the entire case out of hand. But we must with hopes for the
future, utter a word of warning that just as crime does not pay 661 so shall it
not pay to resort to torture of suspects and witnesses during the course of
investigation. History shows that misuse of authority is a common human failing
and, therefore, Courts must guard against all excesses. The police, with their
wide powers, are apt to overstep their zeal to detect crimes and are tempted to
use the strong arm against those who happen to fall under their secluded jurisdiction.
That tendency and that temptation must, in the larger interests of justice, be
nipped in the bud.
GOSWAMI, J.--I am in agreement with the
judgment proposed by my brother Chandrachud which is a piece of conspicuous
clarity after marshalling and compressing a mass of evidence. I also agree with
the views expressed therein on the legal questions raised in these appeals.
Even so I feel obliged to add a few lines.
I would particularly emphasise that there is
no mandatory direction for remanding any case in Santa Singh v. The State of
Punjab(1) nor is remand the inevitable recipe of section 235(2) Code of
Criminal Procedure, 1973. Whenever an appeal court finds that the mandate of
section 235(2) Cr. P.C. for a heating on sentence had not been complied with,
it, at once, becomes the duty of the appeal court to offer to the accused an
adequate opportunity to produce before it whatever materials he chooses in
whatever reasonable way possible.
Courts should avoid laws' delay and
necessarily inconsequential remands when the accused can secure full benefit of
section 235(2) Cr. P.C. even in the appeal court, in the High Court or even in
this Court. We have unanimously adopted this very course in these appeals.
Treasure-trove legend survives generations.
There had been many casualties in honest exploits to the peaks of gold bars.
Gold was not found So was treasure-trove not located in spite of the notorious
The gruesome story revealed in these cases
beggars description of the limit of human credulity, horrid avarice and
unconcerned and heartless execution of evil ends. I am not on that. The final
curtain, so far as legal process goes is drawn.
Conviction in these cases does no credit to
the police, nor to the hoodwinking demonstration of flashy 'dog-squad'.
Murders committed. one 'after the other in
series, under the very nose of a publicised ring of a camping platoon of police
personnel widely cordoning the entire scene of occurrence for months with
check-posts, for recording names of passers-by, may secure banner in
newspapers, but no laurels for the police.
But for the blazing lust for life of the
confessing approvers supplying the infrastructure for the prosecution case
which, we find, is corroborated in material particulars by independent
testimony so far as some of the appellants are concerned, there is much more to
be. desired in an investigation of such awe-inspiring cases. The archaic
attempt to. secure confessions by hook or by crook seems to be the be all and
end all of the (1)  (4) SCC 190.
662 police investigation. The investigation
does not reflect any imaginative drive on the part of the police in a crime of
To mention one item only, even Balabhau Lad,
a close neighbouring relative of the deceased Haribai and master of Umaji, the
star witness against accused 9 to 12, has not been produced in this case to
corroborate the sudden and instant disappearance of Umaji for four days from
the very scene of murder, being his master's field, by leaving his horse
tethered therein. Next having got blood stains in the articles produced by the
accused there was no attempt to ascertain the blood group of the accused's
In fact accused No. 9 did tell the court that
the blood stains in the exhibit were from his wife's injury from the axe.
Again, accused No. 10 said that the blood stains on the exhibited clothes were
from his child's bleeding nose.
We have disbelieved the pleas of the accused
but that does not redound to the credit of the quality of the investigation of
these dastardly crimes.
It is distressing that when three murders
took place on the 4th of January, 1974, and all the dead bodies were lying at
the same field, only one dead body was located and the other two. were not
traced until next morning. If the murderers could escape from the barricaded
area in broad day light by throwing dust in the eyes of the police, what would
have happened if the other two dead bodies were removed during the night beyond
trace; ? Is this investigation with a 'dog-squad' at command ? A dog is its
Did the police play the true master ? The
police. should remember that confession may not always be a short-cut to
solution. Instead of trying to "start" from a confession they should
strive to "arrive" at it. Else, when they are busy on this short
route to success, good evidence may disappear due to inattention to the real
clues. Once a confession is obtained, there is often flagging of zeal for a
full and thorough investigation with a view to establish the case de hors the
confession. It is often a sad experience to find that on the confession, later,
being inadmissible for one reason or other the case founders in court.
It is an irony that a Sub-Divisional
Magistrate holding executive charge of a Sub-Division was completely ignorant
of the duties imposed on him under section 164, Code of Criminal Procedure and
we had to reject the confessions.
Under the new Code such powers are exercised
by a Metropolitan or Judicial Magistrate. The pitfalls in recording confession
may be so. disastrous that it may be of immense value for the Magistrates to
have some practical guidance from superior officers for properly discharging
their function under section 164, Cr. P.C.
Even after conclusion of the trial in a
heinous case of this magnitude, the police should be well-advised to pursue
clues and for missing links to unearth 'the yet undiscovered guilty ones and
should not rest satisfied with 'the result of these cases. There is yet room
for a wider probe into men and matters in connection with these ghastly crimes.
663 Counsel drew our attention to a very
disquieting feature in the attempt of the police to see that the accused did
not get the assistance of the local Bar. The suggestion has of course been
denied by the police officer. If there is any truth in this unholy move for
denying proper defence to the accused, no matter how heinous the offence, it is
highly obnoxious to the notions of fair play and all that justice stands for.
Such ideas should be banished.
I hasten to add that the accused before us
could not have been better defended as has been done by the three conscientious
young counsel who impressed us with their industry and ability.