Maharashtra Vs. Damu S/O Gopinath Shinde &
Ors  INSC 278 (1 May 2000)
THOMAS & D.P. Mohapatra
Abduction and triple infanticide are the gravamen of this case. Kids, male and
female, were abducted not for ransom but for their blood to propitiate gods to
reveal the spot beneath which a treasure trove was believed to have been
embedded. What finally disinterred were not the treasures - not even a tiny bit
of it - but the putrefied corpses of three infants whose blood had copiously
been collected in vain for searching out a non existing cauldron of jewelleries.
One of the abducted kids (Sagar) was not destined to die then as he escaped
from the clutches of the kidnappers and his infantile recollections were utilised
by the prosecution to tell the tale to the court.
Sessions Judge found all the four persons who were arraigned before him for
such grisly perpetrated acts, guilty of the offences charged against them and
they were all sentenced to death. But a division bench of the High Court of
Bombay, Aurangabad Bench (VK Barde and JA Patil, JJ) extended benefit of doubt
which they entertained and set all the accused free. This is the appeal which
the State of Maharashtra has filed by Special Leave in
challenge of the order of acquittal.
Chandra B.Subrik learned counsel who entered appearance for the accused
reported to us that the first accused (Dami Gopi Nath) died during the pendency
of this appeal and hence the appeal as against him can be treated as abated.
The remaining three respondents are A2- Gangadhar Gitaram Kotka @ Guruji,
A3-Mukinda Anna Thorat and A4 Dhananjaya @ Balu Joshi. It is convenient for us
to refer to them in the rank as they were arraigned as accused in the trial
events narrated in this case have the silhoutte of a crime thriller. Mystery
hovered around Chanda village in Newasa Taluk (Ahmadnagar district in Maharashtra) over the sudden disappearances of
children one after the other.
struck the minds of the villagers when cadavers of the children were recovered
one after another from a canal which flowed through Newasa.
episodes started on 4.3.1992 when a little girl by name Meera (one of the four
children of Ramdas) was missing from her house. The elders of the family made
hectic searches and then caused announcements to be broadcast through
loudspeakers fitted at the Gram Panchayat's office regarding the disappearance
of the child. Next day a complaint was lodged with the police. On the third day
her dead body was recovered from the canal flowing through the locality. It was
wrapped in a gunny bag made for urea storage. Among the injuries noted on the
dead body two were so peculiar that the mystery deepened further. Dr.
(PW33) who conducted autopsy on the body has described one injury as
anti-mortem and the other as post- mortem. The former was multiple abrasions on
the left labia majora on the lateral aspect. The latter was a "triangular
wound on the perenial region just posterior to vaginal opening." PW33
Doctor opined from the other injuries noted by him that death of Meera was
caused by throttling.
9.2.1994 a five-year-old kid by name Devidas (one of the two children of PW 26
- Khandu) was found missing. A complaint was lodged with the police on the
succeeding day and three days later the dead body of Devidas was found floating
in the canal at Dedgaon in Newasa Taluk. He had an injury on the back of his
head and his penis was seen chopped off. His father PW26, a rustic villager,
wished to avert a post-mortem examination on the remainings of his dear child
and hence he did not choose to inform the police about recovery of the dead
13.2.1995 another little male child by name Deepak (who was then studying in
the 2nd standard) was found missing from his house. His father PW2 Suresh
deputed his uncle to lodge the complaint with the police. Three days later the
dead body of Deepak was found in the same canal and penis of that child was
also seen chopped off, besides the lobes of his two ears were sliced off.
the above events had rocked the locality, the particular village at Newasa Taluk
was agog with different stories - In the meanwhile a seemingly event-less
incident took place. A five year old boy by name Sagar (PW31) was endeared to
A4 Balu Joshi whom the boy used to address "Balu Mama" (as the nephew
of A4 Balu Joshi by name Krishna and Sagar were classmates and
friends). On two occasions A4 (Balu Joshi) tried to allure Sagar by offering
sweets to him and took him to some distance but on both occasions Sagar
wriggled out from his grip and ran off. The first attempt took place in
February 1993 and second was in 1995. The boy told his father PW30 Ramakant
about it but the latter did not take it as a matter of serious implication to
be reported to any authorities. But later when things crystallized into larger
dimensions PW30 felt the need to bring it to the notice of the police.
Gopi Nath was arrested on 26.2.1995 and with his interrogation the police could
make a break-through regarding the mysterious disappearances and death of the
children. Arrests of the remaining three accused were followed swiftly and
thereafter investigation progressed to a considerable extent. Certain articles
were recovered consequent upon the information elicited from the accused and
such recovery threw further light on the multiple infanticides. A confession
was recorded by Ms. Anjali Apte, a Judicial Magistrate, First Class on
26.5.1995 and it became the sheet-anchor of the prosecution matrix. The
confession is marked by the prosecution as Ex.88.
of the prosecution case would be incomplete without giving at least a summary
of what has been recorded by PW19 in Ex.88. Hence the following extract is
Joshi(A-4) talked to Kotkar @ Guruji(A- 2) about his financial problems, the
latter brought Mukinda Thorat(A-3) for suggesting some solution. Mukinda Thorat(A-
3) mentioned about the hidden treasures in the property of Guruji(A-2) and
wanted to seek the assistance of someone who practiced occult things. The
genesis of that thinking was the recovery of a gold ring from this land twenty
five years ago when a manual labourer(PW 25) tilled the land for agricultural
operation. Pursuant to it, Damu Gopinath(A-1) was brought and the latter told
them that sacrificing five infant children would help to disinter the treasure
then suggested the sequences to be adhered to as well as the auspicious days
for performance of each such sacrifice. Guruji(A-2) would perform the necessary
ceremonies or rituals for the same.
suggested by Guruji(A-2), the first to be sacrificed was a female child by name
`Guddi'. The task was assigned to Balu Joshi(A-4) for procuring the girl. So Balu
Joshi(A-4) managed to abduct Meera @ Guddi on 4.3.92 from the place where she
was playing with her friends and brought her to the house("Wada") of Guruji(A-2).
At 11.30 p.m.,the girl was bathed and thereafter
her legs were held by Guruji(A-2) and Mukinda Thorat(A-3). Damu Gopinath(A-1)
took out a knife and inflicted a cross shaped incised wound on her vagina and
collected the blood in a brass pitcher(Kalash). After the blood collection was
over, she was throattled to death and the dead body was covered in a gunny bag.
Guruji(A-2) and Mukinda Thorat(A-3) carried the dead body to the canal on a
motor cycle(Bajaj-M50) and threw it into the water.
directed by Guruji(A-2), an endeavour was made by Balu Joshi(A-4) to abduct a
boy by name "Sagar"(PW 30) in March, 1993. But the boy did not
respond to the allurement offered by Balu Joshi(A-4). The accused persons
became fearful lest Sagar might disclose it to other people about the abduction
attempt but nothing happened for one year and hence they decided to revive their
operation. Then Guruji(A-2) mentioned the name of Bhau Khandu Murge(@ Devidas)
as a sacrificial kid. Balu Joshi(A-4) succeeded in abducting Devidas on 4.3.94
and brought him to the Wada of Guruji(A-2). After performing the rituals in the
night, Damu Gopinath(A-1) directed Mukinda Thorat(A-3) to take up the knife and
inflict the cut. Strictly adhering to the said direction, Mukinda Throat(A-3)
chopped the penis of the child off and collected the blood in a pitcher.
Thereafter, a heavy blow was inflicted on the head of the boy with a club and Devidas
died instanteously. His body was also disposed of in the canal.
one year elapsed thereafter and the treasure hunters wanted to try once again
to get Sagar(PW30). On 10.2.95, Balu Joshi(A-4) went to the school where that
boy was studying and he took the boy to some distance by offering sweets to be
purchased But somehow, Sagar did not bite the bait and hence the child ran away
from Balu Joshi(A-4).
days after, Damu Gopinath(A-1) was directed to procure another boy by name Dipak
Waware. Balu Joshi(A-4) went prowling for that boy and succeeded in abducting
him on 15.2.95. As it was a full moon night, A1 to A3 bathed him first and took
him out of the room for exposing his penis to moonrays. Damu Gopinath(A-1)
commanded Mukinda Thorat(A-3) to cut the earlobes of the boy first and then to
chop down his penis and the commands were implicitly obeyed. After collecting
his blood a heavy blow was given to his head and the boy died. The dead body
was carried on a TVS Suzuki Motor Cycle and was consigned to the same canal.
above narration is only a summary of the confession recorded by PW19 Judicial
Magistrate First Class. In fact, the confession contains much greater
elaboration of each episode with minute details. We thought it not very
necessary to reproduce the whole details.
trial court relied on the said confession as voluntary and true but the
Division Bench of the High Court, after a detailed discussion, reached the
following conclusion: - "It will be, thus, seen that there is reasonable
doubt to hold that Balu Joshi (A-4) made the confession voluntarily. On
scrutinizing the details given in the confessional statement, it does not
appear that whatever is stated would be possible or probable. The confessional
statement does not appear to be true. Furthermore, it is retracted, may be at a
late stage by the accused." As we pointed out earlier, the confessional
statement was recorded by PW19 Mrs. Anjali Apte (Judicial Magistrate First
Class), and when she was examined in Court, she pointed to the details of the
various steps adopted by her for ensuring that the confession was voluntary. In
fact, the Division bench of the High Court discussed the procedure adopted by
PW 19 elaborately and found that no fault could be discerned regarding the
steps adopted for recording the confession. The finding made by the Division
Bench in that regard is extracted below: - "So, on going through the
evidence of learned Judicial Magistrate(F.C.), Mrs. Apte (PW 19), and the statement
of Balu Joshi (A-4) recorded by her on 25th and 26th May 1995, it can very well
be said that the learned Judicial Magistrate(F.C.) followed the provisions
regarding recording confession properly and correctly. No defect can be found
in recording of confession." What persuaded the Division Bench to sideline
the confession are the following reasons: -
fourth accused Balu Joshi remained in police custody for a considerably long
period and that circumstance is sufficient to view the confession with
Sub-Jail, Newasa (in which the accused was interred) was located adjacent to
the police station and hence the mere fact that he was locked up in the
Sub-Jail is not enough to dispel the fear in the mind of the confession
regarding police survillence.
19 (Mrs. Anjali Apte) was a Judicial Magistrate at Ahmednagar, whereas, there
was a Judicial Magistrate First Class at Newasa itself. As the accused was
locked up in the Sub-Jail at Newasa, there is no explanation why a magistrate belonging
to a distant place was asked to record the confession, in preference to a
magistrate at a near place.
Investigating Officer (PW42) has not explained how he knew that Balu Joshi(A-4)
was willing to make a confession to him. Learned judges draw an inference like
the following:- "If the circumstance, that the Police Station is adjacent
to Sub-Jail, Newasa, is taken into consideration, then an inference can very
well be drawn that nobody but Police contacted Balu Joshi(A-4) and Police
44) that the accused was willing to make confessional statement." We have
considered the above reasons and the arguments addressed for and against them.
We have realised that those reasons are ex facia fragile. Even otherwise, a
Magistrate who proposed to record the confession has to ensure that the
confession is free from police interference. Even if he was produced from
police custody, the Magistrate was not to record the confession until the lapse
of such time, as he thinks necessary to extricate his mind completely from fear
of police to have the confession in his own way by telling the magistrate the
fact, A4 (Balu Joshi) remained in police custody only till 26.4.1995 and the
confession was recorded only on 25.5.1995, which means, there was an interval
of almost a full month after he was removed from police custody to judicial
geographical distance between the two buildings - sub-jail and the police
station - should not have been a consideration to decide the possibility of
police exerting control over a detenue. To keep a detenue in the police fear it
is not necessary that the location of the police station should be proximal to
the edifice in which the prisoner is detained in judicial custody. In many
places judicial courts are situated very near to police station houses, or the
offices of higher police officers would be housed in the same complex. It is
not a contention to be countenanced that such nearness would vitiate the
independence of judicial function in any manner.
is a taluk located within the territorial limits of the district of Ahmadnagar.
The Chief Judicial Magistrate, Ahmadnagar was approached for nominating a
magistrate within his jurisdiction for recording the confession. There could have
been a variety of reasons for the Chief Judicial Magistrate for choosing a
particular magistrate to do the work. When not even a question was put to PW19
or PW 44 (the Investigating Officer) as to why the CJM, Ahmadnagar did not
assign the work to a magistrate at Newasa, it is not proper for the High Court
to have used that as a ground for holding that voluntariness of the confession
was vitiated. Similarly, it is a worthless exercise to ponder over how or from
which source the investigating officer would have come to know that the accused
was desiring to confess. Investigating Officer can have different sources to
know that fact and he is not obliged to state in court the same, particularly
in view of the ban contained in Section 162 of the Code of Criminal Procedure.
the reasons built up by the division bench of the High Court for carving out an
area of doubt regarding the voluntariness of the confession made by A4 (Balu
Joshi) cannot stand scrutiny. High Court should not have upset the finding of the
trial court regarding that aspect.
division bench has erroneously understood the ratio laid down by this court in Kashmira
Singh vs. State of Madhya Pradesh [AIR 1952 SC 159]. The portion of the
decision extracted by the division bench in the impugned judgment was the same
as this court has quoted in State of Gujarat vs. Subamiya Deshmohmed [1992 (1)
SCC 473]. The following is that portion:
confession of an accused person is not evidence in the ordinary sense of the
term as defined in Section 3. In cannot be made the foundation of a conviction
and can only be used in support of other evidence. The proper way is, first, to
marshal the evidence against the accused excluding the confession altogether
from consideration and see whether, if it is believed a conviction could safely
be based on it. If it is capable of belief independently of the confession,
then of course it is not necessary to call the confession in aid. But cases may
arise where the Judge is not prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to sustain a conviction. In
such an event the Judge may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify himself in believing what
without the aid of the confession he would not be prepared to accept." We
may make it clear that in Kashmira Singh (supra) this Court has rendered the
ratio that confession cannot be made the foundation of conviction in the
context of considering the utility of that confession as against a co- accused
in view of Section 30 of the Evidence Act. Hence the observations in that
decision cannot be misapplied to cases in which confession is considered as
against its maker. The legal position concerning confession vis--vis the confessor
himself has been well-neigh settled by this court in Sarwan Singh Ratan Singh
vs. State of Punjab [AIR 1957 SC 637}] as under:
law it is always open to the court to convict an accused on his confession
itself though he has retracted it at a later stage. Nevertheless usually courts
require some corroboration to the confessional statement before convicting an
accused person on such statement. What amount of corroboration would be
necessary in such a case would always be a question of fact to be determined in
the light of the circumstances of each case." This has been followed by
this Court in Kehar Singh vs.
(Delhi (Administration) [AIR 1988 SC 1883].
are quite a large number of circumstances in this case which substantially
support the truth of the version contained in the confessional statement given
by A4 to PW19.
now refer to them one by one.
foremost among such circumstances can be seen from the testimony of PW31 (Sagar)
the boy who escaped from the abduction attempt twice. His father PW30 (Ramakant)
also supported it. The boy was aged nine, when he was examined in court, and he
said that he knew A4 as "Balumama", he being the uncle of his
classmate. He said in court that once he was playing with his friends A4 Balu
Joshi took him to a short distance by offering sweets but he did not like to go
with him further and hence he ran away. He also said that while he was studying
in the first standard A4 (Balu Joshi) went near him and caught hold of his hand
by saying that he (A4-Balu Joshi) would escort him to his house but then also
the boy ran away to the school. His father PW30 said that Sagar told him of
both the above episodes but his initial reaction was not to treat them
seriously. It was only when he heard later about the arrest of A4 in connection
with abducting and killing of children, that he and the other elder members of
his family realised how narrowly their child escaped.
unrealistic approach made by the Division Bench of the High Court to the
evidence of PW 30 and PW31 can be seen even by a glance through the observation
made by the learned judges which is extracted below:
is stating about the instances which took place, according to him, when he was
of 5 or 6 years of age. The instances by themselves are so minor that anybody,
in ordinary course, being of that age, would not remember the same even by the
end of the day on which the incident took place. Trying to find corroboration
to the deposition of Sagar (PW31) from the deposition of Ramakant (PW30) is a futile
exercise." For the boy the said instances might have been very minor not
to keep them alive in memory even till evening of that day. But when he was
told later of the danger he escaped from, that minor incident would winch to
the surface of his mood. This is how human mind works and mind of a child is no
exception to the process. For the parents of the boy the two episodes could not
have created any impact at the time the incident happened. But when they knew
later that A4 was kidnapping infants and killing them it would have created the
most probable reaction of human mind in them also by realising how they escaped
by the skin of their teeth from a perennial calamity. The Division Bench was
therefore too unrealistic when it brushed aside the truthful evidence of PW 31
(Sagar) and his father PW30 (Ramakant).
PW 41 Kum.
Archana was 11 years old when she was examined as a witness. She said that Guddi
was her neighbour and they were playmates. The last occasion she saw Guddi was
when they played together with some other children. During then, A4 Balu Joshi
reached there and after a few minutes, Guddi was found walking with A4 balu
Joshi. PW41 Kum. Archana had not seen her thereafter. The said evidence of PW
41 Kum. Archana has been found reliable by the trial court, but the High Court
disbelieved her testimony on the sole ground that it is not possible for a
child of that age to remember what happened three years ago.
rather unfortunate that the Division Bench of the High Court said so. As a
matter of fact, PW 41 had seen Guddi last while they were playing together and
later dead body of Guddi was recovered. If so, the one thing which a child of
that age could have never forgotten would have been the last occasion they had
played together. The reasoning of the High Court in rejecting her testimony was
not only unreasonable, it reflected a poor understanding of how children would
react and retain.
of dead body of the children from the canal, the post-mortem findings of the
Doctors(PW22 Dr. Ashok who conducted the autopsy on the body of Dipak and PW33
Dr. Ram Prasad who conducted the autopsy on the dead body of Mira);
condition of the dead body of Devidas as seen by his father(PW 26 Khandu) as
the penis of the child was seen cut off are all circumstances which
unmistakably corroborate the detailed confessional statement made by A4 Balu
Joshi. The High Court did not even believe that death of Devidas was homicidal
because no post-mortem examination was conducted on that dead body. The
position would be different if the High Court had concluded that death of Devidas
could not have been homicidal. The Court should be circumspective over the
broader features in deciding whether death was homicidal or not. PW 26 Khandu
had noted, besides the devastation caused on the penis of the child, an injury
on the back of his head. If the latter alone was noticed by PW 26 perhaps one
could have entertained the doubt that the death of the child could as well be
accidental. But the presence of the other injuries on the dead body, would lead
any sensible person to the conclusion that the child was done to death and it
is no matter that a post-mortem examination was not conducted on the dead body.
A2-Guruji was arrested and interrogated, he stated to PW44-Investigating
Officer regarding a "Kalash"(pitcher) which was recovered by
PW44-Investigating Officer from the house of A2-Guruji. What is significant
about the recovery is that when chemical test was made on the pitcher, blood
was found sticking on the outer side of the vessel. Of course, the chemical
analyst could not determine the origin of the blood as it was disintegrated by
that time. But the learned Judges of the High Court did not attach any value to
the circumstance on that sole reason. At the first blush, the approach of the
High Court may appear to be sound. But when we considered the answer which
A2-Guruji had given to the questions put on him under Section 313 of the Code
regarding the said circumstance, he simply denied even the recovery of "Kalash"
as stated by PW44 Investigating Officer. When we know that there was blood on
the pitcher it is for A2 Guruji to explain how it was. But when he denied even
the seizure of the pitcher, such a denial, in this context, is not
inconsequential. In another case, a similar denial was treated by this Court as
sufficient to provide a "missing link" to the chain of circumstances.
the arrest of A3 Mukinda Thorat, he told the Investigating Officer that "Dipak's
dead body was carried by me and Guruji(A-2) on his motor cycle and thrown in
the canal." The said statement of A3 Mukinda Thorat was not found
admissible in evidence as the dead body was not recovered pursuant to the said
statement. This aspect requires more consideration. It must be pointed out that
pursuant to the said statement and the offer made by A3 Mukinda Thorat that he
would point out the spot, he was taken to the spot and there PW44(Investigating
Officer) found a broken piece of glass lying on the ground. It was picked up by
him. In this context, it is important to refer to another item of evidence. A
motor cycle was recovered from the house of A2 Guruji and its tail lamp was
found broken and one piece of it was missing. But when the broken glass piece
recovered from the spot pointed out by A3 Mukinda Thorat was placed on the
broken situs of the tail lamp of the motor cycle, it so fitted with the space
that PW44 Investigating Officer had no doubt whatsoever that the said glass
piece was originally part of the tail lamp of that motor cycle.
basic idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events.
doctrine is founded on the principle that if any fact is discovered in a search
made on the strength of any information obtained from a prisoner, such a
discovery is a guarantee that the information supplied by the prisoner is true.
The information might be confessional or non- inculpatory in nature, but if it
results in discovery of a fact it becomes a reliable information. Hence the
legislature permitted such information to be used as evidence by restricting
the admissible portion to the minimum. It is now well-settled that recovery of
an object is not discovery of a fact as envisaged in the Section. The decision
of Privy Council in Pullukurri Kottayya vs.
AIR 1947 PC 67 is the most quoted authority for supporting the interpretation
that the "fact discovered" envisaged in the Section embraces the
place from which the object was produced, the knowledge of the accused as to
it, but the information given must relate distinctly to that effect.
doubt, the information permitted to be admitted in evidence is confined to that
portion of the information which "distinctly relates to the fact thereby
the information to get admissibility need not be so truncated as to make it
insensible or incomprehensible. The extent of information admitted should be
consistent with understandability. In this case, the fact discovered by PW 44
is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the
the particular information led to the discovery of the fact? No doubt, recovery
of dead body of Dipak from the same canal was antecedent to the information
which PW 44 obtained. If nothing more was recovered pursuant to and subsequent
to obtaining the information from the accused, there would not have been any
discovery of any fact at all.
when the broken glass piece was recovered from that spot and that piece was
found to be part of the tail lamp of the motor cycle of A2 Guruji, it can
safely be held that the Investigating Officer discovered the fact that A2 Guruji
had carried the dead body on that particular motor cycle upto the spot.
view of the said discovery of the fact, we are inclined to hold that the
information supplied by A2 Guruji that the dead body of Dipak was carried on
the motor cycle up to the particular spot is admissible in evidence. That
information, therefore, proves the prosecution case to the above-mentioned
88 confession, A4 Balu Joshi has stated that on 4.2.95, A3 Mukinda Thorat had
handed over to him a list in which A3 Mukinda Thorat had written down the
articles to be purchased for performing the ceremony before Sagar and Dipak
were killed. Later, A4 Balu Joshi had purchased those herbals as per the said
list. Now, it is important to note that when PW44 Investigating Officer made a
search in the house of A4 Balu Joshi on 8.3.95, a small book(an Almanac) which
contained a slip of paper inside. A few names of herbal articles were written
on that slip(such as frankencense). That slip was forwarded to the handwriting
expert alongwith the specimen handwritings collected from A3 Mukinda Thorat for
comparison. Ex. 64 is the opinion forwarded by the said handwriting expert
holding that the scribe who wrote the slip and the specimen manuscripts was the
64 is only the opinion of the Asstt. State Examiner of Documents. From that
description alone, it cannot be gathered whether his office would fall within
the purview of Sec. 293 of the Code. Hence, without examining the expert as a
witness in Court, no reliance can be placed on Exh. 64 alone.
excluding Exh. 64, we have come across a lot of other circumstances to
corroborate the truth of the confessional statement contained in Exh. 88. As we
have adverted to many such circumstances, we do not think it necessary to
exhaust all of them for a detailed discussion here. All the circumstances
discussed above would ensure confidence in our mind in believing that the
confession was made voluntarily and it contained the true narration of what all
transpired between the conspirators and how the children were abducted and
killed. No doubt, it can be used against A4 Balu Joshi without any difficulty
using Exh. 88 as against A2 Guruji and A3 Mukinda Thorat, there is a
constraint. Section 30 of the Indian Evidence Act permits only a limited use of
the confession as against a co-accused to whom a major role is ascribed by the
confessor. It is well settled that the confession made by one accused can be
used against the co-accused even when the other conditions under Section 30 are
satisfied only for the purpose of corroboration of other evidence. But this
aspect is not sufficient to end the travails of A2 Guruji and A3 Mukinda Thorat
in this case.
the offences alleged against all the accused is criminal conspiracy under
Section 120(B) of the Indian Penal Code. Section 10 of the Evidence Act falls
within Chapter 2 which deals with "relevancy of facts". That Section
renders anything said, done or written by anyone of the conspirators in
reference to their common intention as a relevant fact, not only as against
each of the conspirators but for proving the existence of the conspiracy
itself. Further, the said fact can be used for showing that a particular person
was a party to the conspiracy. The only condition for application of the rule
in Section 10 is that there must be "reasonable ground to believe that two
or more persons have conspired together to commit an offence". In this
context, we may SIT, Chennai 1999(5) SCC 253. In paragaraph 107, this Court has
stated thus:- "The first condition which is almost the opening lock of
that provision is the existence of "reasonable ground to believe"
that the conspirators have conspired together.
condition will be satisfied even when there is some prima facie evidence to
show that there was such a criminal conspiracy. If the aforesaid preliminary
condition is fulfilled then anything said by one of the conspirators becomes
substantive evidence against the other, provided that should have been a
statement "in reference to their common intention". Under the
corresponding provision in the English law the expression used is "in
furtherance of the common object". No doubt, the words "in reference
to their common intention" are wider than the words used in English Maharashtra)."
The basic principle which underlies in Section 10 of the Evidence Act is the
theory of agency and hence every conspirator is an agent of his associate in
carrying out the 1998(4) SCC 351). Section 10 permits "anything said, done
or written by anyone of such persons in reference to their common
intention" to be recorded as a relevant fact as against each of the
persons believed to be so conspired.
this case, there can be no doubt, relying on Exh. 88 that, there are reasonable
grounds to believe that all the four accused have conspired together to commit
the offences of abduction and murders of the children involved in this case. So
what these accused have spoken to each other in reference to their common
intention as could be gathered from Exh. 88 can be regarded as relevant facts
falling within the purview of the Section 10 of the Evidence Act.
not necessary that a witness should have deposed to the fact so transpired
between the conspirators. A dialogue between them could be proved through any
other legally permitted mode. When Exh. 88 is legally proved and found
admissible in evidence, the same can be used to ascertain what was said, done
or written between the conspirators.
the things reported in that confession referring to what A1 Damu Gopinath and
A3 Mukinda Thorat have said and done in reference to the common intention of
the conspirators are thus usable under Section 10 of the Evidence Act as
against those two accused as well, in the same manner in which they are usable
against A4 Damu Joshi himself.
net result is, the circumstances in this case are sufficient to establish that
there was criminal conspiracy to abduct and slay five little children in which
the four accused persons were the conspirators and further that abductions of
four children and killing of three of them were carried out as sequel to the
said conspiracy. There is no escape for them from conviction of the offences
found against them by the Sessions Court. The Division Bench of the High Court
has gone gravely erroneous in side-stepping everyone of the circumstances
established by the prosecution. Criminal justice became the unfortunate
casualty as a consequence of the unwarranted interference made by the High
Court with a well-considered conclusion arrived at by the trial court. By
acquitting the accused in a case of this nature, despite so much of sturdy and
reliable circumstances, the judicial system became mauled and faith of the public
in the efficacy of the judicial function would have considerably impaired.
we have to make up our mind regarding the sentence to be imposed on the three
accused. Learned Counsel for the state pleaded for restoration of the same
sentence which the trial court has imposed, i.e., death penalty. The question
is whether this case can be regarded as rarest of rare cases in which the
lesser alternative is unquestionably foreclosed. Looking at the horrendous acts
committed by the accused, it can doubtlessly be said that this is an extremely
rare case. Nonetheless, a factor which looms large in this case is that the
accused genuinely believed that a hidden treasure trove could be winched to the
surface by infantile sacrifice ceremoniously performed. It is germane to note
that none of the children were abducted or killed for ransom or for vengeance
or for committing robbery. It was due to utter ignorance that these accused
became so gullible to such superstitious thinking. Of course, such thinking was
also motivated by greed for gold.
so, we persuade ourselves to choose the normal punishment prescribed for murder
as for these accused.
while restoring the sentence passed by the trial court in respect of other
counts of offences, we order that the accused shall undergo imprisonment for
life for the offence under Section 302 read with Section 34 of the I.P.C.