Dagdu & Others Etc vs State Of Maharashtra on 19 April, 1977

           PETITIONER:
DAGDU & OTHERS ETC.

	Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT19/04/1977

BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
SHINGAL, P.N.

CITATION:
 1977 AIR 1579		  1977 SCR  (3) 636
 1977 SCC  (3)	68
 CITATOR INFO :
 RF	    1977 SC1936	 (39)
 D	    1988 SC1831	 (119)
 RF	    1992 SC1689	 (7)


ACT:
	    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  corrobora-
	tion---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--Hear-
	ing  accused on the question of	 sentence--If  mandatory--If
	appellate  court  can give hearing on failure by  the  trial
	court.



HEADNOTE:
	    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	bru-
	tality	surroundings  the crimes gone to the case  an  eerie
	appearance.
	    Eighteen  persons were put up for trial before the	Ses-
	sion  Judge  for the 10 murders.  Two out of  these  persons
	were  tendered pardon and were examined in the case  as	 ap-
	provers.  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  responsi-
	ble  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.
	637
	    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-
	theparticular casee.  Under s. 133 -of the Evidence-Act,  an
	accomplice  shall be acompetent 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 uncorroborat-
	ed 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  particu-
	lars, by which is meant that there has to be some  independ-
	ent  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  judi-
	cial  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 [1952] S.C.R. 377, Bhuboni Saku  v.	 The
	King 76 I.A. 147; The State of Bihar v. Basawan Singh [1959]
	SCR  195  and Ravinder Singh v. State of  Haryana  [1975]  3
	S.C.R. 453. relied on.
	    (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  consid-
	eration.  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 [1970]  2  S.C.C.
	733 relied on.
	     Tahsildar's  case	[1959] Supp. 2 S.C.R.  875,  distin-
	guished.
	(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 provi-
	sions 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 documen-
	tary,  so in the case of confessional statements  which	 are
	otherwise admissible. the Court has still to consider wheth-
	er  they can be accepted as true. If the facts	and  circum-
	stances	 surrounding  the making of a confession  appear  to
	cast a doubt on the veracity or voluntariness of the confes-
	sion,	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  state-
	ments.
	    In the instant case no reliance can be placed on any  of
	the  contesstons. Apart from the cofessions of the  two	 ap-
	provers,  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  admoni-
	tion  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	par-
	entage, the heredity-all these and similar  other  consider-
	ations	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 [1976] 4  S.C.C.  190,	 ex-
	plained.
	    (10)  The Court, on convicting an accused, must  unques-
	tionably hear him on the question of sentence.	But if,	 for
	any reason, it omits to do so and the accused makes a griev-
	ance  of  it in the higher court, it would be open  to	that
	Court  to remedy the breach by giving a hearing to  the	 ac-
	cused 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 [1976] 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]



JUDGMENT:

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 V.N.
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 respond-
ents in Crl. Appeal Nos. 437-438 and for the appellant in
Crl. A. No. 441/76.

The Judgment of Y.V. Chandrachud and P.N. Sitinghal, JJ.
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 pat-
tern 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 bru-
tality 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 flied 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 Penal Code.
Accused Nos. 1, 2 and 3 were sentenced to death while ac-
cused 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 conspira-
cy having failed and it being common ground that accused
Nos. 1 and 2 had not taken any direct part in the commis-
sion 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.con-
firmed 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 con-
spiracy. 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 en-
hancement of the sentence of accused Nos. 9 to 12 but the
High Court condoned that delay.

We are thus called upon to consider the correctness of:
(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, Maharash-
tra. 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 Presi-
dent 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 conspira-
cy. 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 Dis-
trict Gazetteer says at page 115 that “some childless per-
sons 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 Ni-
zamshahi of Ahmednagar. Quite some quacks in the periphery
of ‘Manwat make their living by diagnosing where the treas-
ure trove lies and what means to adopt for diScovering it.
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 of-
discovering treasure troves. ‘She had oracled that a’
treasure trove lay buried in accused No. 1’s house under-
neath 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 supernatural. attainments.

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 irpri-
vate arts be sprinkled on the food offered by way of Naive-
dya 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 commit-
ted 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 ac-
quired by the Sessions Court and the acquittal was not
challenged by the State.

The three last murders are alleged to have been commit-
ted 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 investiga-
tional 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 October 8.
On December 18, 1973, an application was moved for cancella-
tion 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 com-
mitted in pursuance of that
643
conspiracy. The learned Sessions Judge accepted the evi-
dence, 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 irre-
butable 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 corrobo-
rated 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 testimo-
ny of an accomplice. Therefore, though the Judge was enti-
tled, to point out
(1) [1916] 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 never-
theless convicted the prisoner, the Court would not quash
the conviction merely upon the ground that the accomplice’s
testimony was uncorroborated.

In Rameshwar v. State of Rajasthan(1) this Court ob-
served that the branch of law relating to accomplice evi-
dence 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 Evi-
dence 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 evi-
dence 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 ob-
served 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) [1952] 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 infirmi-
ties which beset his evidence. He is not a quack but a
charlatan who traded on the credulous optimism of the ster-
ile 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 as-
signed by accused No. 2 to his servants, accused No. 3 and
the other approver Shankar.

Accused No.3 and Shankar committed the murders of Gaya-
bai 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 menstur-
al 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 yield-
ed 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 po-
lice. 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 discov-
ering 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) [1959] SCR 195 (2) [1964] 6 SCR 623
(3) [1968] 2 SCR 641 (4) [1975] 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 sui-
cide. 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 contra-
dictions 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 conclu-
sion seems to us inescapable that Ganpat has mixed a ton of
falsehood with an ounce of truth. His evidence has there-
fore to be left out of consideration.

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, Sngandha-
bai and Nasima with accused No. 3’s assistance. He impli-
cates 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 Puja thereafter.
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 kill-
ing. The vivid description given by him of the luring, the
gagging and the throwing away of the dead bodies may there-
fore 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) [1970] 2 S.C.C. 733.

(2) [1959] 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 re-
corded. 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 ob-
served 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 state-
ment 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 sacri-
fice is also conspicuous by its absence in his police state-
ment. 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. 164- of the Code of Criminal Proce-
dure, 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 uninspir-
ing. All the same, we may examine the argument advanced
before us by the learned counsel for the State that Shan-
kar’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 reli-
ance 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 meno-
pause.

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 2.

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 ac-
cused Nos. 1 and 2 were trying to locate the treasure trove.
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 crime charged.

The last circumstance on which prosecution relies to.
connect accused Nos. 1 and 2 with the crime is the confes-
sion, Ex. 108, made by accused No. 1 Rukhmam. That confes-
sion 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 ac-
cused 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 prosecu-
tion 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 ac-
cused 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 approv-
ers 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 signifi-
cant 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 corrobo-
ration from an independent source and in material particu-
lars, 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’ group.
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 transla-
tion 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 unexcep-
tionable 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 undervest
(art. 19) at the instance of the approver affords no cor-
roboration 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 con-
fession 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 confes-
sion 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 confession-
al statements. Acting under s. 554 of the Criminal Proce-
dure Code, 1898, the High Court of Bombay had framed in-
structions 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 impor-
tance has been recognised by this Court in Sarwan Singh v.
State of Punjab(1) in which it was said that the instruc-
tions issued by the High Courts must be followed by the
Magistrates while recording confessional statements.
[1957] 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 confes-
sions. He made no effort to ascertain from any of the
accused whether he or she was making the confession volun-
tarily. 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 state-
ments contain a memorandum as required by s. 164 of the Code
that the Magistrate believed that the “confession was volun-
tarily made”. It is also clear that when the various ac-
cused 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 look-
ing out for a clue to these mysterious murders. They pro-
duced 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 admis-
sibility 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, there-
fore, a confession does not violate any one of the condi-
tions 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 admissi-
ble, the Court has still to consider whether they can be
accepted as true.. If the facts and circumstances surround-
ing 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 him-
self 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 procession-
al recording of the eight confessions and the abject disre-
gard, 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 corrobo-
rated in material particulars by the discovery of article
17, there is no valid reason for departing from the concur-
rent 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 conspir-
acy 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 consid-
eration,. 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 1-1/2 years.
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 convict-
ed 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 her head.
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 state-
ment.

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 impossi-
ble 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 an-
swer. 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 Serolo-
gist, 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 21.1974- a 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 arti-
cles 112 and 170 bore’ identical textile and physiochemical
characteristics.

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 handle was.
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 recov-
ered 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 strug-
gled 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 considera-
tion. It is alleged that he held Taramati from behind
whereupon accused No. 11 gave axe-blows on her head. Tara-
mati 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 somewhat infirm.
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 identifica-
tion 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, Ram-
chandra (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 dis-
crepancy 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 pro-
duced, the evidence in regard to. the recovery of the axe-
handle 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 issue.

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 after-
noon 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 ac-
cused were not heard on the question of sentence and there-
fore 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 sen-
tenced 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 provi-
sions 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 oppor-
tunity 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 admo-
nition 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 con-
siderations 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) [1976] 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 ques-
tion of sentence must necessarily entail a remand to that
Court in order to afford to the accused an opportunity to.
be heard on the question of sentence. The Court, on con-
victing 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 sen-
tence. 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 appropri-
ate 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 of sentence.
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 there-
fore, according to the learned Judge, be placed before the
Court by means of an affidavit. Fazal Ali, J., also ob-
serves 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 award-
ed, and in the case of sentence of death, the special rea-
sons for awarding that sentence. The legislative history of
the sentencing provisions and the explicit language of s.
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 nine-
year 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 Maharashtra.
Both the two Accused who are in jail shall be
released.

(2) We uphold the conviction of ac-

cused 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 ac-
cused 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 observa-
tions 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 keep-
ing 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 impuni-
ty. 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 Provi-
dence, 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 moving
fast.

It would perhaps have been more conducive to greater
efficiency if an unduly large number of senior police offi-
cers 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 will-
ing 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, self-
inflicted. 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 juris-
diction. 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 evi-
dence. 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 whatev-
er materials he chooses in whatever reasonable way possible.
Courts should avoid laws’ delay and necessarily inconsequen-
tial 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 Manwat murders.

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 occur-
rence 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) [1976] (4) SCC 190.

662

police investigation. The investigation does not reflect
any imaginative drive on the part of the police in a crime
of this magnitude.

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 family members.
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 investiga-
tion 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 master’s voice.
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 suc-
cess, 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 Metropoli-
tan 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 func-
tion 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 fea-
ture 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.

P.H.P.

664