DAGDU & OTHERS ETC. v.

STATE OF MAHARASHTRA

April 19, 1977

{Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]

. Evidence Act 1912-Sections 114 illustration (b) and 133-Accomplice 01dence, whether a competent witness-Whether conviction can be based on u_ncorr&boratul. evidence of an accomplice-Appreciation-Rule of corroboratlon-Presumpllon by courts.

Criminal Procedure Code 1989-Sections 163, 164, 367(5) and 554--Confessional statements-Criminal Manual 1960 oj Bombay High Court-PaYa 18 -Failure to comply with Sec. 164(3) and High Court circulars if renders confessions inadmissible in evidence-Evidence Act, Section 29.

C:iminal Procedure Code 1973- Sections 235, 354-Hearing, accused on the question of sentence-I/ mandatory-If appellate court can give hearing, on failure by the trial court.

Accused No. 1 though in her thirties had entered a period of premature menopause. She was anxious to get a child which could only happen if her menstrual cycle was.restored. She used to consult quacks and Mantriks in order to help get a child. Accused No. l's mother was accredited with sixth sense in the matter of discovery of treasure trove.

She had oracled that a treasure trove Jay buried in accused No. l'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 propitiate 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 villae called Manawa!. 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 dcxlge the police and then to put them on a false scent and the' extreme brutality surroundings the crimes gone to the case an eerie appearance.

Eighteen persons were put up for trial before the Session Judge for the 10 murders. Two out of these persons were tendered pardon and were examined in the case as approvers. Accused No. 6 died during the trial. The Sessions Judge acquitted accused 4, 5, 7, 8 and 13 to 16. Accused No. l and 2 were convicted under s. 302 read with s. 120-B and section 34 of the Penal Code.

Ac:used 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 eharge against them was not proved. Since the charge of conspiracy failed and since it was a common ground that accused No. 1 and 2 had not taken any direct part in the commission of the murders; the High Court held that they were entitled to acquittal on all the charges.

The High Court dismissed the appeal filed by accused No. 3 holding that he was responsible for the first 4 murders and confirmed his conviction under s. 302 read with s. 34 as also the sentence of death imposed upon him. The High Court dismissed the State's appeal against acquittal of accused No. 4 and 5 but allowed the State's appeal and enhanced the sentence of accused No. 9 to 12 to death.

Criminal Appeal No. 437 of 1976 was filed by accused Nos. 9 to 12. Criminal Appeal No. 438 of 1976 was filed by accused No. 3 and Criminal Appeal No. 441 of 1976 was filed by the State of Maharashtra against acquittal of accused Nos. 1 and 2. The Court acquitted accused No. 12 by giving him the benefit of doubt and while dismissing the three .appeals.

HELD : (1) There is no antithesis betweens. 133 and illustration (b) to section 114 of the Evidence Act because the illustration only says that the Court 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 th<: facts of the particular ca'3e.

Under s. 133 of the Evidence Act, an comr.hce _shall be a competerit wiess against an accused person and a conv1; tion is not illegal merely because it proceed, s upon the uncorroborated testimony of an accomplice.

[643 B-CJ

(2)' Though an accomplice .is a competent witness and though a conviction maiy fawfully rest upon his uncorroborated testimony yet the court is entitled to _presume and may be justified in presuming ini the generality of cases that tm reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is n1eant that there boo to be some independent evidence tending to incriminate the particular accused in the

commis.'iion of the crime. f643 C-Dl C

( 3) It is hazardous as a matter of prudence to proceed on the evidence ot a self-confessed criminal.

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 hoo been elevated by judicial experience into a requirement or rule of law.

What has bardeiled 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 D the Judge and that corroboration maoy be dispensed with only if the peculiar circumstances of the case make it safe to dispense with it. [643 , E-F]

Kini? v. Baskerville f19161 2 K.B. 653; Rameshwar v. State of Rajastlian [1952] S.C.R. 377, Bhuboni Saku v. The King 76 I.A. 147; The State of Bihar

v. Basawan. Sinxh 'f19591 SCR 195 and Ravinder Singh v. State of Haryana [19751 3 S.C.R. 453. relied on.

(4) It is true that an approver has real incentive to speak out big mind after E tender of pardon but where it is impossible to reconcile hi5 earlier statements with his later assertions his evidence has to be left out of consideration. It is one thing to say 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 anorover 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, distinguished.

(5) The failure to comnly with section 164(3) Cr. P.C. with the Hi•h Court circulars .wll. !lot rende_r the confessions inadmiss_ible n evidence .. ReJevancy and adm1ss1b1hty of evidence have to be determined 1n accordance with the provisions of the Evidence Act. [651 El

(6) Under section 29 of the Evidence Act, if a confession is otherwi8e rele~

vnt, it does not become irrelevant merelv because, inter olia, the accu1111ed was G not warnt'\d that he was not bound to make it and the evidence of it mip:ht be given against him.

If, therefore. a confession doe<: not violate anv one of the

C?ndiions _onerative under s. 24 to 28 of the Evidence Act, it will be admis s1ble 1n evidence. But as in resnect of anv other admisible evidence oral or documentary, so in the case of confessional statt-ments which are therwise

admissible. the Co1;1rt has still to consider whether th1>; v can be _accented as true.

If the facts and circumst:incc: surrounrlin2 the mkin2 of a confession annear to cast a doubt on the veracitv or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in cvid,.nce.

[651 E-GJ

. (7). A st.rict 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 SUPREME COURT ., l\EPQ)lTS

[1977] 3 S.C.R.

A that the confession is voluntary.

The failure to observe the safeguards pres~ cribed .therein a.re in practice calculated to impair the evidentiary value of the confessional statements.

In the instant case no reliance can be placed on any of the contesstons. Apart from the Cofessions of the two approvers, all others were retracted, which ),,.,,_ further cripples their evidentiary value.

(657 H]

(8) The imperative language of subsection {2) leaves no room 'tor doubt that aifter recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under s. 360.

The. social compulsions, the pressure of poverty, the retributive instinct to uek an extra-legal remedy to a sense of being wronged, the lack of rueans to be educated in the difficult art of an honest living the parentage, the hered1tyall these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence.

The mandate of s. 235 (2) must, therefore, be obeyed in its letter and spirit. {657 F-l:l]

(9) The failure on the part of the Court, which convicts au accused, :to ear him on the question of sentence does not necessa.rily entil a remari.d to that Court in order to afford to the accused an opportunity to be heard on the question of sentence. [658 A-Bl

(10) The .C9µrt, on convicting .<; in accused, must unquestionably hear him on the questi_qn 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 Cou:r:t to rmedy the breach by giving a hearing to the accused qn the qution of .nJ.n.c.e. That .Q.pportµnity has to Qe real a11d effctive, which l\leflQS , tµat the _ aused must be perniitted to adduce before the Court all the data whih he desires to adduce on the question of sente11ce: The o.<ecused .may exerjse

that right either by instructing his counsel to make oral submissions to the Court or he -Pl~Y •. on af&davit or otherwise, place in writing before the Court w-hatev:er he desires to place before it on (he question of sentence. The _Court ma.y, .in appropriate cases, have to !ldiourn the matter order to give to the accused suffl.cient tilij.e to produce the necessary data and to make his contention .on , the

qtWStion , of ntence. For a proper apd .effectiv:e implementation of , the prov.ision :Contained .in , s, 235(2) it-is not alway, s .uecessary to remand the matter -.o Jfle Court which has recorded the conviction.

Jlem, and is a.n .exceptio, n, not , the rule, and ought, therefore, be avoided as far as possible in the interesl'i of expeditious, though .fir disposzl of cases.

[658 B-D, FJ

GOSWAMI, J. (Concr1ing) :~

Whenever an appeal court finds tht tqe _p; ianase of secti.Qn Z35 (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 adequa, te , QppQrtunity to prbduce .QefQre it whatever ma-terial he chooses in wh, atever reasonal; ile :way poss.ible. Courts .should as rar as pq_ssible av.oid rm.ands whn the ccuse, d can secure fuU benefit ot s. 235 (2) Cr. P.C. in the appeal CQurt.

[661 .C-D]

CRIMINAL APPELLATE JURISDICTION : Crl. A. Nos. 437 & 438 of 1976.

(Appeals by Special Leave from .the Judgment aµd Order dated the 8/9/10-3-1916 .of the Bombay High Court ill Cr). Appeals Nos. 17 .a.nd 18 -Of l976 and confirmation Case No. 3 of 1976) and

QI. A. No. 441 of 1976.

(Appea! by Special Leave from the Judgment and Order dated the A 8/9/10-3-1976 of the Bombay High Court in Criminal Appeal No. 18 of 1976).

~ P. Narayan, B. G. Kolse Pall1, B. S. Bhonde and V. N. Ganpule,

for the appellants in Cr!. A. Nos. 437-438 and for respondent in CrJ:

A. 441/76.

V. S. Desai, P. P. Hudlekar and M. N. Shroff for respdnderttin'Crl.

B Appeal Nos. 437-438 and for the appellant in Cr!. A. No. 441/76.

The Judgment of Y. V. Chandrachud and P. N. Sbirrghal, JJ. was delivered by Chandrachud, J. P. K. Goswatni, J. gave ai separate opinion.

CHANDRACHUD, J.

Five stnall girls about ten years of age1 a: year old infant and four women in their tnidcthirties wete found mutder~ between November 14, 1912 and January 4, 1974 in a villllgl!i called Manwat in Maharashtra.

The murders of these ten femal\ls shl>W sii ficant sitnilarities in pattern and conception. The time al:l'd' place! chosen for the crimes, the preference for fomales as victims, the narute of injuries caused t() thetn, the strange possibility that the ptivate par!S of some of the victim~ Were cut in order to extract blood, the total-absem:e of motive for killirig these very girls and women, the cleve'r attempt to

dodge the police and then to put them on a false scent and the extreme brutality surrounding the crimes give to the case an eerie appearance.

Such harrowing happenings make the task of discovering truth difficult and it is just as well to begin with Justice Vivian Bose's remin'lfer 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 filed by accused Nos. 9 to 12, Criminal Appeal No. 438 of 1976 by accused No. 3 while Criminal Appeal No. 441 of 1976 is filed by the State of Maharashtra against the acquittal of accused Nos. 1 and 2.

Eighteen persons were put up for trial before the learned Sessions Judge; Parbhani for the ten murders. Two out of these, Ganpat Bhagoji &ilve and Shankat Gyanoba Kate were tendered pardon by tlie learned Judge and were exatnined 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

mtJrdets were comtnitted 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 set. 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 accused Nos. 9 to 12 were sentenced to life itnprisonment.

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

made a reference to the High Court for confirmation of tho death sentence imposed on accused Nos. 1, 2 and 3. The StateGoverument filed an appeal against the acquittal of accused Nos. 4 and 5. l\ also filed an appeal under s. 3 77 of the Criminal Procedure Code 1973 asking that the sentence of life imprisonment imposed on accused Nos. 9 to 12 be en_ltanced to death.

The. State uot having challenged the order of acqmttal passed by the Sessions Court in regard to accused Nos. 7, 8 aud 13 to 16, that order has become final and was not in any form assailed before us as erroneous. ·

The High Court acquitted accused Nos. 1 and 2 holding that the ojl'ence of conspiracy which formed the gravamen of the charge against them. was not proved.

The charge of conspiracy having failed and it being common ground that accused Nos. 1 and 2 had not taken any direct part in the commission of the murders, the High Court held that they were entitled to acquittal on all the charges.

The High Court dismissed the appeal filed by accused No. 3 holding that he was responsible for the first four murders and confirmed his conviction under s. 302 read with s. 34 as also the sentence of death imposed upon him.

The conviction and sentence of accused No. 3 under s. 302 read with s. 120-B was set aside by the High Court in view of its finding that the prosecution had failed to establish the charge of conspiracy.

The High Court dismissed the State's appeal against the acquittal of accused Nos. 4 and 5 but it allowed tho appeal filed by the State for enhancement of the sentence oflife imprisonment imposed on accused Nos. 9 to 12.

The High Court enhanced their senrence to death under s. 302 read with s. 34 but consistently with its finding on the charge of conspiracy . it set aside their conviction and sentence under s. 302 read with s. 120- B.

There weredelay on the part of the State Government in filing the appeal for enhancement of the sentence of accused Nos. 9 to 12 but the High Court condoned that delay.

We are thus called upon to consider the 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 sr. 302 read with s. 34.

Thus, we are concerned in these appeals with accused Nos. 1 to 3 and 9 to 12 only.

The hamlet of Manwat has a population of 15 thousand and is situated in Taluka Pathri, District Parbhani, Maharashtra.

Accused No. 1 Rukhinini was about 32 years of age at the relevant time and despi~ the pledg~ to secularism, it has to be mentioned that she is Pardhi by caste.

She was in the keeping of accused No. 2, Uttall':rao Barahate a non-pardhi, who is a man of means and was at one time

the President of the Manwat Municipality. He purchased a house for accused No. 1 in which the two lived tr>gether and it is this hnuse or wada which became the focal point of the consniracy. f\ccused No. purchased the house really in order to ensnre the exc.lus1veness of his

mistress but it happened to blaze an altogether new tnal.

In the house was a Pimpal tree which is believed to be the emblem of God Vishnu, the Preserver.

The Pimpal is also believed to be the haunt of Munjaba, who is supposed to be the spirit of an unmarried Brahmin boy. The Parbhani District Gazetteer says at page 115 that

"some childless persons who trace their misfortune to the influence of some evil spirit cause the Brahminic thread ceremony performed for a pimpal tree and a masonry platform built round its trunk."

The Manwant village-folk commonly believe that treasure troves are lying buried in the town ever since the sixteenth century when its inhabitants fled away after the troops of Murtazahad invaded the town, which was then under the Nizamshahi of Ahmednagar.

Quite some quacKS m the periphery of Manwat make their living by diagnosing where the treasure 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 bad oracled that a treasure trove lay buried in accused No. l's house underneath the Pimpal tree. The stage was thus set for the visits of mountebanks to the house of accused No. 1 for the display of their supernatural attainments.

The case of the prosecution is that accused Nos. 1 and 2 consulted quacks who prescribed that virgins should be offered as sacrifice to Munjaba and blood from their private parts be sprinkled on the food offered by way of Naivedya ta the God.

One of such quacks was E 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 F were coirullitted between November 14, 1972 and January 4, 1974.

The first four murders are alleged to have been committed by the aporover 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 G Febrn•rv 21, 1973 and Nasima a girl of 10 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 fa; Jed to move Munjaba's heart.

The treasure trove remained undisclosed.

642 stiilP.'EME couR'.f i!ii>oilr's (l<of77) 3 S.C.R.

The next two' murders are alleged to have been committed by accused Nos. 5 and 6.

Kalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973.

Accused No. 5 has beer\ acquitted and the. order of acquittal has become finat 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 Patvatibai, aged about 35, was murdered on October 8; 1973.

These two accused. were acquitted by the Sessions Coilrf and the a:quitta! was not challenged by the State.

The three last murders are alleged to have been co1ilmitted by ae- . cused Nos. 9 to 12, all at the silnle tinie; Hatil:fai, aged' 35; Wl!s going along with her daughter Taravati aged 9 and was carrying in' her arms an infant daughter, Kamal, aged a year and half.

AU of them were murdered ori the afterrioori of January 4, 197'4.

Accused Nos. 1, 2, and 14 were arrest&l on June 18, 1973 in connection with the first four murders which had taken place between Nomber 14, 1972 and April 13, 1973. It is alleged that,

while incustody, accused No. 2 sent a message to accused N&. 5 to coinmit a few more murders so that no suspicion may fall ol'i those who were arrested.

That is why accused Ni>s. 5 and 6, accused Nq. 6 being a servant of accused No. 1, are said to have committed the murde_rs. of Kalavati and. Halima in June and July, 1973. On July 30, 1973 accused Nos'. l, 2, 9 arid 14 we're released on.bail ori con- dition that they shall not entef the lirtiitS of Mariwaf.

This condition was relaxed oil October 4, 1973 fcir investigittional purposes. Accus~.

Nos. 1 and 2 were in Manwat frorti Octol'ier' 4 to October 21, 1973- . dliring which periOd they are [\ileged to have procured' the serviceli 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 cancellation of the bail granted to accused Nos. 1 and 2.

That applicatiM was allowe<t and they, were re-arrested on January 4, 1974 whtlti the murders o'f Hiliibai, Tat\\:tiiati arid Kamal were coniniitted.

Acciled No: 3 waif atr'esred on December 28, 1973, accused Nos. 9 to 11 on January 8; 1974' and acc'tised No. 12 on January 11, 1974.

Accused Nos~ 1 a'.ild' 2 are tile linclipin of the case and therefore it would be ap-pr'riate to dea1 with t!Jeir cases first.

Accused . No.' 1 is the misttess of' aecused' N'o: 2 and wllereas the fofniet was

ariXious to' get a child, the)'' both were aiiXioiis' to discover tlie treasure trove' lying buried)n their liouse.

The charge against them is that for' the purpose of achieving tliese objects they consulted quack.- 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 conimit the various murders.

'The prosecution relied inter ali/J on: the evidence of the two apptovers, Ganpat, P.W. 1, and Shaitkar, P.W. 2, in order to prove the' chi!tge of conspiracy against accused' Nos. 1 and 2 as also for proving that various murders were committed in pursuance of that

...

conspiracy.

The learned Sessions Judge accepted the evidence of A bot!\ the approvers as against accused Nos. 1 and 2 but the High Court rejected the evigence 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 13 3 of the Evidence Act lays down that an accomplice shall be a competent witness against an accused person; and a convic- B tion 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 C of credit unless he is corroborated in material particulaffi.

There is no antithesis betweens. 133 and illustration (b) cos. 114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs.

It does not seek to raise a conclusive and irrebutable presumption. Reading the two together the position which emerges is that though an accomplice is a com- D pctent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be ju:stified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidFnce is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate, the paticular accused in the commission of the crime. It is hazardous, E as a matter of prudence, to proceed 'upon the evidence of a sclfconfessed 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 require- F ment 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 bnt 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 1t.

In King v. Baskerville(') the accnsed was convicted for commit!- G ing groS'S 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 thongh there was no doubt that the uncorrooorated evidence of an accomplice was admissible in law it was for a long time a rule of practice t _common law for the Judge to warn the Jury 0£ the danger ?f convicting a person on the uncorroborated testimony of H an accomplice. Therefore, though the Judge was entitled. to point out

(1) [1916] 2 KB. 658.

2-707SCI/77

to the Jury that it was within their legal province to! convict upon the unconfirmed evide~1ce of an accomplice, the rule of practice had pecome Vfftually eqmvalent 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 neve:th.eless convicted the prisoner, the Court would not .quash the conv1c!Ion merely upon the ground that the accomplice's testimony was uncorroborated.

In Rameshwar v. State of Rajasthan(') this Court observed that the branch otf law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England.

The only clarification made by this Court Was that in cases tried by a Judge without the aid of a Jury it was necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts ot 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(') the Privy Council after noticing s. 133 and illustration (b) to s. 114 of the Evidence Act observed that whilst it is not illegal to act 011 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 imp:icate the accused; and further that the evidence of one accom plice cannot be used to corroborate the evidence of another accomplice.

The rule of prudence was based on the interpretation of the phrase "corroborated in material particulars" in illustration (b). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomolice 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 himse.rn 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 whtch 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 mav be true in all its details as to eight of them but untrue as to the other two whose names mav have been introduced because they are enemies of the approver.

The only real safeguord therefore aoainst the risk of condemning the innocent with the l!llilty lies in insisting on independent evidence which in some measure implicates each accused.

This Court has in a series of cases exoressed the same view as H regards accomplice evidence. (see The State of Bihar v. Basawan

(1) [1952] S.C.R. 377.

(2) 76 IA 147.

Singh('); Hari Charan Kurmi v. State of Bihar;(2) Haroon Haji A Abdulla V State of Maharashtra;(') and Ravinder Singh v. State of llaryana('). 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, sub1ect to the requirement which has now become virtually a part of the law B that it is corroborated in material particu1ars.

We will assess the evidence of the two approvers Ganpat and Shankar in the light of these principles.

Ganpat Bhagoji Salve, P.W. I, fails to cross the initial hurdle of reliability and no amount of corroboration cure the infirmities which beset his evidence.

He is c not a quack but a charlatan who traded on the credulous optimism ot the steri:e village women.

He admits that he possessed no cnre 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. l to bear a child but accused Nos. 1 and 2, taking advantage of his expert presence, consulted him on where the treasure trove lay. G"npat prescribed the facade of a procedure which was in the nature of a D confidence trick.

Practising it deftly on his credulous audience, he passed on the errand of God that Munjaba has to be appeased by offering the blood of virgin girls.

That work was assigned by accused No. 2 to his servants, accused No. 3 and the other approver Shankar.

Accused No. 3 and Shankar conunitted the murders of Gayabai E and Shakita and handed over the bowlful of blood from the private parts of the victims to accused Nos. 1 and 2 who performed the Puja of Munjaba.

But the treasure trove did not come up.

Then Sugandhabai was murdered and her menstural blood was offered to the God, again without a purpose.

The fourth to die was Nasima whose head and small finger were offered as sacrifice.

But even that heavy price yielded no clue to the treasure trove.

Ganpat was paid a fee F of Rs. 100 whereupon he made himself scarce and left for a place called Baramati from where he was traced by the police.

That is what Ganpat's evidence comes to .

Ganpat is an utterly worthless witness whose evidence has been right)y 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 wou:d readily gulp the fantastic process prescribed by Ganpat for discovering the treasure trove.

Ganpat was interrogated by the police for nearly a month and a half after his arrest at Baramati and it was only at the end of that trying period that he trotted out some story

(1) [1959] SCR 195 f3) [l 9Sq] SCR 6ll

(2) [1964] 6 SCR 623

(4) [1975] 3 SCR 453

to save his skin. It is1 common ground, and we see much more in that episode, that Ganpat struck his head against a wall while in police custody and sustained a head injury for which he was charge-sheeted for attempting to commit suicide.

He admits in his evidence that he was driven to break his head, as a result of the torture inflicted upon him by the police.

Though he implicated both accused Nos. 1 and 2 in the search for treasure trove, he admitted later that accused No. 1 had never talked to him in that behalf.

He made several significant statements for the first time in the Court and though we agree that an approver has real incentive to speak out his mind after tender of pardon, it is impossible to reconci1e his earlier statements with his later assertions.

It is one thing to say as was said in Madan Mohan Lal v. State of Punjab(') 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 ol contradictions which cast a veil of doubt over his involvement or others.

Conceding the ratio of Tahsildar's( 2 ) case, on , which Mr.

Desai for the State Government relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of falsehood with an ounce of truth.

His evidence has therefore to be left out of consideration.

The other approver Shankar Gyanoba Kate, P.W. 2, has greater credibility than Ganpat.

Shankar was working with accnsed No. 1 as an agricultural servant along with accused No. 3.

He speaks ot 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, Shaki!a, Sugandhabai and Nasima with accused No. 3's assistance.

He implicates accused Nos. 1 and 2 by depooing that after each of the murders was committed, he and accused No. 3 used to go to accused No. l'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 Noo. 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. I and 2 cannot be permitted to rest on his uncorroborated testimony.

We unhesitatingly share that view.

Having played the role of the master killer in four ghastly murders, he is bound to know every little detail as to the manner of killing.

The vivid description given by him of the luring, the gagging and the throwing away of the dead bodies may therefore be true. But 1t is easy enough for him to introduce nice falsities here and there by ilwolving some others in the broadly true framework of his story. 1l is therefore necessary to se(l whether the evidenc~ of Shankar in regard to the implication of accused Nos. 1 and 2 is corroborated by some independent evidence.

(I) [197012 S.C.C. 733.

(2) [1959] Supp, 2 S.C.R. 875.

Before looking out for corroboratio11 we must point out that A Shanlrnr used to be interrogated by the police every night for about 'I or l 0 days and it was at the end of that gruelling interrogation that his statement came to be recorded.

Though Shankar claims that he had seen the 'shakun' being performed by Ganpat, he had not stated so before the police nor had he then described the elaborate ritual observed during the performance of that ceremony.

He also did not say to the police that accused No. l had asked him to commit the murdelb.

B • Neither to the police nor in his statement recorded under s. 164 of the

Code of Criminal Procedure did he say that he had gone to accused No. l'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. l that menstrual blood was required for sacrifice is also conspicuous by its absence in his police statement. These significant C 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 Procedurd 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 condi- D tion of the pardon tenderedl to him he had to disclos<> the whole truth to the Court.

But while assessing the value of Shankar's evidence in so far as he implicates accused Nos. l and 2 we find it impossible to overlo0k the studied improvements which he made to involve them.

Such gross departure from the earliest versions makes the story of conspiracy suspect and uninspiring.

All the same, we may examine the argument advanced before us by the learned counsel for the State E that Shankar's e'idence against accused Nos. I and 2 is corroborated in material particulars and should therefore be accepted.

For affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,

We see nothing in the evidence of these witnesses which can lend corroboration to the approver's story. tha~ accused Nos. l 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.

LaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.' 1 's menopause.

Nor indeed is the evidence of P.Ws. 20, 21 and 51 of 'any assistance in the matter of corroboration.

They merely say that Gann?t was ekrng his livelihood by prescribing Mantras and medicines, which takes one nowhere near corroborative factors for implicating accused Nos. 1 and 2-

A The recovery of Ganpat's satchel containing charms and herbs, under the Panchnama Ex. 130A, also proves nothing beyond showing that Ganpat was equipped with a quack's repertoire.

One df 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 parti- B cipation in the conspiracy.

Motive may conceivably furnish the necessary corroboration, but we are unable to see any independent evidence on the record regardin(\ 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 Wltll 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 C been fonnd anywhere near the Pimpal tree.

There is also no evidence at all to show that any attempt was made by accused Nos. 1 and L to discover the treasure, as for example, by digging.

These circumstances cast a serious doubt on the theory that accused Nos. 1 and 2 were trying to locate the treasure trove.

The fact that accused No. J 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 confessiori, Ex. 108, made by accused No. 1 Rukhmani.

That confession was recorded by a Sub-Divisional Magistrate', Devidas Sakharam Pawar, P. W. 23.

Later, wo will have a great deal to say about the various confessions recorded by this learned Magistrate but in so far as the confession of accused No. 1 is concerned it is enough to point out that it is entirely exculpatory and can, therefore, serve no useful purpose.

Besides, the confession was retracted by accused No'. 1.

Along with these considerations is the circumstance that the High Court has acquitted accused Nos. 1 and 2 after a fair examination of the material relied upon by the prosecution as against them.

The various reasons given by us would so that there is no justification for interfering with the conclusion to which the High Court has come.

The acquittal of accused Nos. 1 and 2 has, therefore, to be confirmed.

It would now be convenient to take up the case of accused No. 3, Sopan Rambhau Salve.

The allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of sugandhabai on February 21, 1973 and of Nasima on April 13, 1973. There is no eyr;,- witness to any of these four murders but for establishing the chargo against accused No. 3, the prosecution relies on the evidence of the two approvers Ganpat (P.W. 1) and Shankar (P.W.2), the discovery of article 17 by accused No. 3, the discovery of articles 18 and 19 by approver Shankar, the seizure of articles 20 and 21 from the house o.1' accused No. 1 and lastly the retracted confession of accused No. 3 himself.

We have already dealt with the evidence of the appmvers while considering the case against accused Noo. 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

a reliable witness, his evidence cannot be acted upon unless it is car- A roborated 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 tbc desire of the deity, Shankar deposes that he and accused No. 3 were commissioned to commit tbe murders of virgin girls.

Shankar, after some hesitation, agreed to do so on tbe pro- B mise tbat 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 tbe legs of victims which also helped Shankar to collect blood from their private parts after causing cuts tbereon.

Accused No. 3 played a more significant role in the murder of Sugandabhai by axing her to death.

Shankar's evidence is amplyi corroborated as regards the broad outlines of the story narrated by him. .But that is not enough.

We must see whetber his evidence receives! corrobQration from an inde~ pendent source and in material particulars, so as to fasten the guilt on accused No. 3.

The first circumstance which is said to corroborate the evidence of the approver is the discovery of 27 pieces of shirt, which are collectively marked as article 17. The panchanama of discovery (Ex. 127) is dated January 2, 1974 and is proved by tbe Pancha Vithalrai Takankhar (P.W. 27). The report of the serologist which is at Ex. 312 shows tbat tbere 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 tbe evidence of discovery to a searching criticism which at first blush seems plausible but which does not bear close scrutiny.

The argu- F men! that the panchanama of discovery does not attribute to accused No. 3 the autborship of concealment has the simple answer that tbe English translation of the Marathi panchanama is incorrect.

The original document expressly states that accused No. 3 agreed to point out tbe place where he had kept the shirt pieces.

The evidence ot 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 G of tbese witnesses, we see no substance in the contention that accused No. 3's fatber, who was standing near tbe hut, should have been examined as a witness.

It is urged tbat it is highly unlikely that accused No. 3 will preserve tbe tell-tale evidence of the crimes in tbe manner alleged by the prosecution.

Why the accused chose to do tbis is difficult to know but we are not examining the evidence in the case as a Conrt of first instance.

The evidence in regard to the discovery is accepted as unexceptionable by the Sessions Court as well as the High Court

and we are unable to characterise that view of the matter as preverse or against the weight of evidence.

The recovery of art. l 7 thus afford material corroboration to the part played by accused No. 3, at least in Gayabai's llUll'deir.

The discovery of the blade (art. 18) and the undervest (art. 19) at the instance of the approver affords no corroboration as against accused No. 3.

Nor indeed can the recovery of the bowl (art. 20) and the bottle (art. 21) from the house of accused No. 1 connect accused No. 3 with the crime.

These are articles of common use and no blood was detected thereon.

What remains to be considered is the retracted confession of accused No. 3, which is Ex. 106.

While on this question, we would c 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 D to their confessions while all others retracted theirs.

Section 24 of the Evidence Act makes a confessional statement irrelevant in a criminal proceeding if the making thereof appears to have been caused by any inducement, threat or promise, having reference to the charge against the accused, proceeding from a person in authority and sufficient to give the accused grounds which would appear to him reasonable for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Section 163 of the Criminal Procedure Code bars a Police Officer or any person in autho" rity from offering or causing to be offered any inducement, threat 01 promise as is referred to in s. 24 of the Indian Evidence Act.' Section 164 of the Code prescribes the mode of recorcil'ng confessional statements.

Acting under s. 554 of the Criminal Procedure Code, 1898, the High Court of Bombay had framed instructioµs 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 Conrts in India and their importance has been recognised by this Court in Sarwan Singh v. State of Punjab(') in which it was said that the instructions issued by the High Courts must be followed by the Magistrates while recording confessional statements.

(1) [1957] S.C.R. 953

All of the eight confessions were recorded in this case by a Sub- A Divisional Magistrate, Devidas Sakharam Pawar (P. W. 23), whose evidence leaves no room for doubt that he was blissfully unaware or

the stringent responsibilities cast by law on Magistrates who are called upon to record confessions.

He made no effort to ascertain from any of the accused whether he or she was making the confession volunt- 1arily.

He did not ask any of the accused whether the police had offered or promised any incentive for making The confessional state- B ment nor did he ascertain for how !orig the confessing accused was in police custody prior to hls production for recording the confession nor indeed did he maintain any record to show where the accused were sent after they were given time for reflection.

One of the glaring infirmities from which the confessional statements of the various accused suffer is that none of those statements contain a memorandum as required by s. 164 of the Code that the Magistrate believed that C the "confession was voluntarily made". It is also clear that when the various accused were produced before the Magistrate after the time for reflection was over, he asked no further questions and recorded the confessions mechanically for the mere reason that the accused expressed th_eir 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 D who were frantically looking out for a clue to these mysterious murders.

They produced the accused for recording the confessions and the Magistrate thought that the mere production of the accused was guarantee enough of their willingness to confess.

Learned counsel appearing for the State is right that the failure E to comply with s. 164(3), Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence.

Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence F 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.

Bu! as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true.. If the facts and circumstances surrounding the making of a confession appear G to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act unon the confcss; on even if it is admissible in evidence.

That shows .how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary.

A strict and faithful compliance with s. 164 of the Code and with the instructions issued by the High Court affords in a large H 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.

Considering the circumstances leading to the processional recording of the eight confessions and the ab1ect disregard, by the Magistrate, of the provisions contamed 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 pla.ced on any of the confessions.

Apart from the confessions of the two approvers, all others were retracted, which furthe, r cripples their evidentiary value.

Since the evidence of the approver Shankar is corroborated in material particulars by the discovery of article 17, _there is no valid reason for departing from the concurrent view of the High Court , and the Sessions Court that the complicity of accused No. 3 in the four murders is proved beyond a reasonable doubt.

As the charge of conspiracy fails, the High Court was right in convicting accused No. 3 under s. 302 read with s. 34 of the Penal Code only.

That leaves the case of accused Nos. 9 to 12 for consideration, being the subject-matter of Criminal Appeal No. 437 of 1976 filed by them.

The charge against these accused is that in furtherance of conspiracy and in pursuance of their common intention they, on January 4, 1974, conunitted the murders of Haribai, aged 35 years, D her daughter Taramati aged 9 years, and her infant child Kamal aged It yearsc The Sessions Court convicted these accused under s. 302 read with ss. !20B and :3"4 of the Penal Code and sentenced them to life imprisonment.

The charge of conspiracy having failed before the High Court and the main co-conspirators, accused Nos. 1 and 2, having been acquitted, the High Court convicted these accused under s. 302 read with s. 34 only.

But, acceptin'.l the appeal filed by the E State, the High 'Court enhanced their sentence from life imprisonment to death.

The evidence against accused Nos. 9 to 12 consists of : (I) 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 movell ments of the accused at or about the time when the murders were committed and (5) the confession of accused No. 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 !he lands of his master, he first met accused No. JO and then accused Nos. 9 and 1!, and had some conversation G with accused No. I 0.

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 pla.tform 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. I 0 holding Haribai from behind by her waist and accused No. 9 H 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 Mala, tethered his horse in his master's land, went by

DAGOU v. MAHARASHTRA (Clumdrachud, !.) 653

a bus to the Manwat Road Railway Station, took a train to Ranjani A and from there proceeded to the village of lregaon where his maternal uncle Mathaji lived.

After staying at Iregaon for about four days, Umaji went back to his master's house at Manwat when a police constable took him to the Police Station, where a Police Officer recorded his statement.

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 impossib:e 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 adc- G quate corroboration.

Our reasons for taking this view are briefly these : Fear and pamc may account for the fact that the witness did not raise an alarm. But there is no reasonable explanation why, having had the presence of 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. o; At Iregaon, which was far removed from the scene of Manwat murders, he holidayed with his uncle for four days but even on being questionc<t as to the purpose of his visit, he made no answer.

After returning to Manwat he saw his mruster 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, frCJm his house.

The panchnama of recovery is Ex. 91-A which is proved by the Panch Sheikh Imam (P.W. !!).

It shows that accused No. 9 took out an axe blade from below a piece of wood lying behind a cupboard in his house.

The report of the Serologist, Ex. 267, shows that the axe blade was stained with human blood of 'A' group.

The blood of the deceased Haribai belonged to the same group.

Accused No. 9 admitted in his examination that he had produced the axe blade and that it was stained with blood but lie sought to explain the blood stains by saying that his wife had sustamcd 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 ont the shirt piece from under a heap of earth lying inside his house.

Article 170 was found by the Sessions Judge to fit squarely with the shirt sleeve, article 112, which was found at the place of occurrence near Haribai's dead body.

The report of the Chemical Analyser at Ex.271 shows that articles 112 and 170 bore identical textile and physiochemical characteristics.

In our opinion, the courts below were justified in relying upo11 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 thornv fence in the Pardhi Wada locality.

The report of the serologist, Ex.267, shows that there was human blood on the axe but the group of the blood could not be determined'.

It is not possible to accept the submission of Mr.

Narayan that the axe handle was recovered from a piace 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 152) were seized from his person.

The serologist's report, Ex.267, shows that human blood was detected on the bush-shirt and the dhoti.

The blood-stain on the shirt was 0.5 cm in diameter and the blood detected on the bush-shirt and the dhoti belonged to 'A' group. Accused No. 10 admitted in his examination that the shirt and the dhoti were blood-stained but he offered an unconvincing explanation that a child of his had bled from the nose,

The evidence of Dr. Salunke (P.W. 48) who examined accused No. 10 on the date of his arrest shows that he had four injuries on his person, the certificate in regard to which is Ex. 174.

Injuries Nos. 1 and 2 were interrupted abrasions which in the opinion of Dr. Salunke

could be caused by, teeth-bite.

That fits in with 'the part played by accused No. 10, who according to Umaji's evidence, had held Haribai from behind by her waist.

Evidently, Haribai struggled to release herself in a frantic attempt to save her life she caused the injuries to accused N_o. 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 \vith '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 m consequence of information supplied by him.

The P:mchanama, Ex. 84-A, and the evidence of the Panch Mohd. Yusuf Bade Khan. (P.W. 10) show that accused No. 11 led the police partv and the panchas .to a wate~ tap i~ the Pardhi Wada locality and dug out the axe blade which was lying buned under a stone.

The report of 11- - 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.

The discovery of the axe blade stained with human blood of 'A' group sufficiently cocroborates t_he evidenc~ 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 IP.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 great care by the learned Sessions Judge and_ we agree with his assessment that except for Sant Ram, the other witnesses can be relied upon for affording corroboration to Umaji's evidence.

That leaves the case of accused No. 12 for consideration.

It is alleged that he held Taramati from behind whereupon accused No. 11 gave axe-blows on her head.

Taramati was just a girl of 9 and the allegation that accused No. 12 had to hold her from behind to enable accused No. 11 to assault her with an axe sounds inherently incredible.

It 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 was 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 F accused No. 12 falsely and since the Courts below have concurrently accepted his evidence in regard to accused No. 12 also, we mnst 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

arrested on January 11, 1974 his house was searched on January 7, 197 4 in connection with the murders of Haribai and her daughters wh'ch had taken place on January 4, 1974.

That search is borne out by the Panchanama, Ex. 221.

On January 6, 1974 accused No. 12 figured in an identification parade which was arranged in order to ascertain if the Dog squad could afford assistance in fixing the identity of the culprits.

The evidence of the Senior Dog Master, Ramchandra ( P. W. 5 2) , shows that a female dog called Mala sniffed her suspicion at accused No. 12.

With the clue provided by the Dog Squad on the 6th, the house of accused No. 12 was searched on the 7th.

That house consists of one room only.

The Panchanama shows that the axe-handle was not in any manner concealed under the tin-sheet. It was lying openly, visible to the naked eye, so that he who cared could easily see it. It is then strange that it was not found on the 7th itself.

There is also a serious discrepancy in the evidence of the two Panchas, Mohd. Yusuf, P.W. 10, and Sheikh Imam, P.W. 11, regarding the discovery.

Whereas according to the former, accused No. 12 said that he had concealed the axe-handle below the tin-sheet of the roof, according to the latter the information which accused No. 12 gave was that he had kept the handle below a stone inside his house.

Coupled with the circumstance which emerges from the evidence of Panch Sheikh Imam that there is no door to the room from which the axe-handle was produced, the evidence in regard to the recovery of the 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 his arrest, even if the blood l)elonged to 'A' group, is not of a kind which, in the context of the various circumstances referred to above, can be accepted as safely of sufficiently corroborative of Umaji's evidence. This is particularly so because, at the very threshold, it is doubtful if Umaji could identify accused No. 12.

The evidence regarding the presence of accused No. 12 in the fields roundabout the scene of offence on the afternoon of the day of

incident cannot connect him with the crime.

And the retracted confession of the accused, like its counterparts, has to be excluded from consideration altogether because of the cavalier fash'on in which the Sub-Divisional Magistrate recorded the various confessions. •

Accused No. 12 is thus entitled to an acquittal for the reason that L the prosecution has failed to prov~ its case against him beyond a 7 reasonable doubt.

Learned counsel for accused Nos. 3, 9, 10 and 11 whose conviction under s. 302 read with s. 34 has been affirmed by us and who stand sentenced to death, contend that the accused were not heard on the question of sentence and therefore the sentence is not according to Jaw. It is urged that we should remapd the appeal of accused Nos. 9, l O and 11 to the High Court which sentenced them to death.

and accused No. 3's appeal to the Sessions Court which sentenced

A • him to death, in order to enable these accused to make their contentions as to why they should not be sentenced to death even though they have been convicted under s. 302 of the Penal Code. In support of this argument reliance is placed on a decision of this Court in Santa Singh v. State of Punjab(').

In Santa Singh('), 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 (l3hagwati and Fazal Ali, JJ) that the provis•ions 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 or 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 tl>e provisions of s. 235 are mandatory in character, the Court set aside lhe sentence of death and remanded the case to the Sessions Court with the direction that it should pass an appropriate sentence after giving to the appellant an opportunity to be heard on the question of sentence.

Section 235 of the Criminal Procedure Code, 1973 reads thus

"235 (1) After hearing arguments and points of law (if

any), the Judge shall give a judgment in th<j case.

(2). If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions_'C>f Section 360, hear the accused op1 the question of. sentence, and then pass sentence on him according to law."

The imperative language of sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under s. 360.

The right to be heard on the question of sentence has a beneficial purpose, for a variety ot facts and considerations bearing on the sentence can in the exercise of that right, be placed before the Court which the acused, prior to the enactment of the Code of 1973, had no opportunity to do.

The social compulsions, the pressure of poverty, the rc:c'ibutiv.e instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity-all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of s. 235 (2) must, therefore, be obeyed in its letter and spirit.

(I) [l976] 4 S.C.C.190.

• A

But we are unable to read the judgment in Santa Singh (supra) as laying down that the fai:ure on the part of the Court, which convicts an accused, to hear him on the question of senteAce 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 convicting an accused, must unquestionably hear him on the question of sentence.

But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open tel that Court to remedy the breach by giving a hearing to the accused on the question of sentence.

That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question ot serJence. The accused may exercise that nght either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence.

The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question 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 therefore, according to the learned Judge, be placed before the Court by means of an affidavit.

Fazal Ali, J., also observes that the courts must be vigilant to exercise proper control over their proceedings, that the accused must not be permitted to adopt dilatory tactics under the cover of the new right and that what s. 235 (2) contemplates is a short and simple opportunity to place the necessary material before the Court.

These observations show that for a proper and effective implementation of the provision contained in s. 235 (2), it is not always necessary to remand the matter to the court which has recorded the conviction.

The fact that in Santa Singh

(supra) this Court remanded the matter to the Sessions Court does not spell out ratio of the judgment to be that in every such case there has to be a remand.

Remand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.

After counsel for accused Nos. 3, 9, 10 and 11 raised an objec- J tion before us that the sentence of death was imposed upon the accused without hearing them as required by s. 235 (2) of the code, d 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 filed the relevant material before us showing why we should not uphold the dealh sentence imposed on the accused.

That takes us to the question of sentence.

For the offence under A s. 302, it is no longer obligaory 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 mw:der was death and the Court had to record its reasons for imposing the lesser sen:ence 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 imprison- B ment 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, wi.h imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case. of sentence of death, the special reasons for awarding that sentence.

The legislative history of the sentencing provisions c 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 ll D 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 girl9 ten years of age and a woman in her thirties.

Accused; Nos. 9, 10 and 11 committed tpe murders of Haribai. her nine-year old daughter and her infant child. The victims had given no cause for E 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 cal:ous and calculated transgression of law.

Morbid pity can have no place in the assessment of murders which, in many F respects. will remain unparallelled 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 fied by the

State of Maharashtra.

Both the two Accused who are in jail shall be released.

(2) We uphold the conviction of accused No. 3 under s. 302 read with s. 34 of the Penal Code and the sentence of death imposed upon him.

Criminal Appeal No. 438 of 1976 filed by him is accordingly dismissed.

(3) We uohold the conviction of accused Nos. 9. 10 and 11 under s. 302 read with s. 34 of the Penal Code and

3-707SCI/77

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 'accnsed Nos. 9 to 12 thns succeeds partly 'in so far as accused No. t2 is concern- , ed and fails in so far as accused Nos. 9, 10 and 11 are

, concerned.

Before concluding, we \Voiiid like to make a reV: observations concerning the detection and, lnvesligation of these crimes. It is a ml; ttfer of grave concern that 'the police were not able to obtain any clue \vllat- -soeve, r lo, the mirnerous murders whiCh were coilllllltted so systeiria'tically m lhe small village of Manwat. The spate of those atrocities coin-, menced with ihe murder of Gayabai on November 14, 1972 and ended with the murders of Haribai and ber two daughters on January 4. r974.

All , ilong, a strong patrol ; of p01icemen was keeping vigil in the very

la<; ality in which most of the murders '\Vere comillitted. The evidence of Dy. S. P. Waghrnare_ shows _that apart riom the rnobile police, fue<lpost patrols were deputed to 'keep a close watch on the activities of , an

and sundry in the area which was chosen by the murderers for -their criminal activities. l!aiibai and her 'daughters Were murdered 'under

the yery nose of 'the 'PolicerneQ. _ Quite 'a ., f.,!" of, them .were on duty ; a few hundred yards away om the scene of occurrence and yet the cul-- prits could. escape 'With impilnity. And 1t 'is 'asti:inishing that When the thtee _'dead booies 'were 'lying in <close proximity, the police With t.'teir trained hawk-sight could i:e -only one. All this hardly -does any credit to 'the efficiency a:nd watchfulness of a system which in Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:indrabhai Pawar, accnsed No: 4, to make a c6nfessionhl statement on Deeember 28, 1973 'and the wheel" of a baflled machine started mo, ing fast. - · It wold perhaps have been more conducive to greater efficiency if.:m uridu1y'large number ofseitlorpolice officers wer_e_Iiot commissioni<d

fodhe 1nves'tigational_work. 'No one seems to have assumed-an 'overall responsibi!ityfor .investiga•ion and so many of them working fogetlier "!'oiled the broth 'like so many'eooks. . •

- _ _ __

- - It is -plain common-se=-1hat stistS are seldom willing to furnish a quk:k and cotrci:t cine to the 'crimes 'for whirh they are arrested. .A certain amount of coaxing and promising has inevitably to be dorni in order to persuade the accused to disclose at least the outlines of the crime. . But the use of Str<?Ug meiJicids of 'investigation, anart from raising :problems concerning the 'observanee of' decency in public affairs and of'imtnan dignity, 'is frauiibt wilh-ihe'danger lhanhe very process by which evidence in:ouectect 'may beeome suspect and fail to inspire confidence: . Ganpat, the appro\er, was 'driven to admit that he was tortured while in 'the lock:up and we have 'serious' dnubts whether the injury'carised on his 'head \<its, ; is a1Jei!ed bv the police, self-inflicted.

A witness 'called Rainch'andra 'also adrmtted that while under interrol!a•

tion the 'police brtlld-ollt his niv-roll. We 'hrive re<;•ted tne f•iHno wi.; h remots even judicially tr:iined _minds to !'evolt against such methods and throw the entire case out of hand. _-But we must, with ncoes for the future, utter a '-ord of warnirig that 'just as crime does not pay

DAGDU v. MAHARASHTRA (Goswami, !.) 661

so shall it 11ot 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 overs(ep their zeal to dt:tect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must, in the larger interests of justice, be nipped in th0 bud.

GosWAMi, J.-I am in agreement with the judgment proposed by my brother Cbaruirachud which is a piece of conspicuous clarity after marshalling and compressing a mass of evidence.

I also agree with the views expressed therein on the legal questions raised in the5': appeals .

Even so r foe! obliged to add a few lines.

I would particularly emphasise that there is no mandatory direction tor remanding any case in Santa Singh v. The State of Punjab(') 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 hearing on sentence had not been complied with, ii, at once, becomes the duty of the appeal court to offer to the accullCd au adequate opportunity to produce before it whatever materials he chooses in whatever reasonable way possible. Courts should avoid laws' delay and necessarily inconsequential remands when the ac~ 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 cawalties in honest exploits to the peaks of gold bars. Gold was not found.

So wJS ti-easnre-trove not located in spite of the notorious Manwat murders.

The gruesome story revealed in these cases beggars description of the !imi• 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 •Ire other in series, under the very nose of a publicised ring of a camping platoon of police personnel widely cordoning the entire scene of occurrnnce for months with check-posts, for recording names

of passers-by, may secure banner in newspapers, but no laurels for G the police. ·

But for th.o blazing lust for life of the confessing approvers supplying the infrastructure for the prosecution case which, we find, is corrobora'ed in material particulars by independent testimony so far as some of the appellants arc concerned, there is much more to be desired in an investigation of such awe-inspiring cases. The archaic attempt to secure con- H fessions by hook or by crook seems to be the be-all and end-all of the

(tl [t976J (41sec190.

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 investigation of these dastardly crimes.

It is distressing that when three murders took place ou 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 om the barricaded area in brood 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 trne master?

The police should remember that confession may not always be a , short-cut to solution.

Instead of trying to "start" from a confession they should strive to "arrive" at it. Else, when they are busy on this short route to success, good evidence may disappear dne to inattention to the real clues. Once a confession is obtained, there is often flagging of zeal for a full and thorough investigation with a view to establish the case de hors the confession. It is often a sad experience to find that on the confession, later, being inadmissible for one reason or other the case founders in court.

It is an irony that a Sub-Divisional Magistrate holding executive charge of a Sub-Division was completely ignorant of the duties imposed on him under section 164, Code of Criminal Procedure and we had to reject the confessions. Under the new Code such powers are exercised by a Metropolitan or Judicial Magistrate.

The pitfalls in recording confession may be so disastrous that it may be of immense value for the Magistrates to have some practical guidance from superior officers for properly discharging their function under section 164, Cr. P.C.

Even after conclusion of the trial iu a heinous case of •his 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 tlie result of these cases. There is yet room for a wider probe into men ; md matters in connection with these ghastly crimes.

DAGDU v. MAHARASHTRA (Goswami, !.) 663

Counsel drew our attention to a very disquieting feature in the attempt of the police to see that the accused did not get the assistance of the local Bar.

The suggestion has of course been denied by the police officer. If there is any truth in this unholy move for denying proper defence to the accused, no matter how heinous the offence, it is highly obnoxious to the notions of fair play and all that justice stands for. Such ideas should be banished. •

I hasten to add that the accused before us could not have been better defended as has been done by the three conscientious young counsel who impressed us with their industry and ability.

P.H.P.

A ,

DAGDU & OTHERS ETC

STATE OF MAHARASHTRA

Y. V. CHANDRACHUD

P. K. GOSWAMI

Evidence Act 1912

Sections 114

Sections 163, 164, 367(5) and 554

Sec. 164(3)

High Court circulars if renders confessions inadmissible in evidence-Evidence Act

Section 29

High Court circulars if renders confessions inadmissible in evidence-Evidence Act

High Court circulars if renders confessions inadmissible in evidence-Evidence Act

Procedure Code 1973

Sections 235, 354

Munjaba

s. 302

s. 120

section 34

Penal Code

s. 302

s. 34

State of Maharashtra

441 of 1976 was filed by the State of Maharashtra against acquittal of accused Nos.

section 114

s. 114

s. 133

Tahsildar

section 164(3)

section 29

s. 24 to 28

s. 164

s. 360

s. 235

GOSWAMI

[658 B-D, FJ

GOSWAMI, J. (Concr1ing) :~

Whenever an appeal court finds tht tqe p; ianase of secti.

s. 235

P. Narayan

~ P. Narayan, B. G. Kolse Pall1, B. S. Bhonde and V. N. Ganpule,

for the appellants in Cr!.

B. G. Kolse Pall1

B. S. Bhonde

V. N. Ganpule

V. S. Desai

V. S. Desai, P. P. Hudlekar and M. N. Shroff for respdnderttin'Crl.

P. P. Hudlekar

M. N. Shroff

Y. V. Chandrachud

The Judgment of Y. V. Chandrachud and P. N. Sbirrghal, JJ.

P. N. Sbirrghal

Chandrachud

was delivered by Chandrachud, J. P. K. Goswatni, J. gave ai separate opinion.

P. K. Goswatni

CHANDRACHUD

Vivian Bose

Ganpat Bhagoji

ilve

Shankat Gyanoba Kate

sec. 302

sec. 120

Penal Code

sec. 302

sec. 120

sec. 34

Penal Code

Bombay High Court

The matter went to the Bombay High Court in various forms.

s. 3

Criminal Procedure Code 1973

s. 302

s. 34

s. 302

s. 120

s. 302

s. 34

s. 302

s. 120

s. 302

s. 34

s. 34

Manwat

Maharashtra

Rukhinini

Uttall':rao Barahate

Manwat Municipality

Murtazahad

Ahmednagar

Naivedya

E Ganpat Salve

One of such quacks was E Ganpat Salve, the approver, who was examined as P.W. 1.

Ganpat

.Shankar Gyanoba Kate

Shankar

Shankar, also an approver, was examined in the case as P.W. 2.

November 14, 1972

January 4, 1974

Shankar

The first four murders are alleged to have been committed by the aporover Shankar and accused No.

Sopan

3, Sopan, who was also in the employment of accused No.

Gayabai

14, 1972

Shakila

December 9, 1972

Sugandhabai

G Febrn•rv 21, 1973

Nasima

April 13, 1973

Shakila

Sugandhabai

Nasima

Kalavati

Jurte 29, 1973

Halima

July 12, 1973

Patvatibai

October 8; 1973

Taravati

Kamal

June 18, 1973

s. 5 and 6

Kalavati

Halima

July 30, 1973

Ganpat

Shaitkar

Section 13

Section 114

s. 114

Reading

England

India

Baskerville

s. 133

s. 114

John Beaumont

Singh

Gajendragadkar

s. 3

Ganpat Bhagoji Salve

Gayabai E

Shakita

Baramati

[1964] 6 SCR 623

[1975] 3 SCR 453

Desai

Shankar Gyanoba Kate

The other approver Shankar Gyanoba Kate, P.W. 2, has greater credibility than Ganpat.

Shaki!a

s. 164

Code of Criminal Procedure

s. 164

Shanker

Laxman

Sakharam

Ramchandra

Kachru

LaXInan

Sakharam

Ramchandra

Kachru

Rukhmani

Devidas Sakharam Pawar

That confession was recorded by a Sub-Divisional Magistrate', Devidas Sakharam Pawar, P. W. 23.

Sopan Rambhau Salve

9, 1972

sugandhabai

February 21, 1973

article 17

articles 18 and 19

articles 20 and 21

Sugandabhai

3 played a more significant role in the murder of Sugandabhai by axing her to death.

article 17

January 2, 1974

127) is dated January 2, 1974 and is proved by tbe Pancha Vithalrai Takankhar (P.W. 27).

Pancha Vithalrai Takankhar

Bhonde

S. P. Waghmare

S. P. Waghmare (P. W. 96) is to the same effect.

art. 18

art. 19

art. 20

art. 21

Section 24

Section 163

s. 24

Indian Evidence Act

Section 164

s. 554

Criminal Procedure Code, 1898

High Court of Bombay

Devidas Sakharam Pawar

s. 164

s. 164(3)

Criminal Procedure Code

Section 29

ss. 24 to 28

s. 164

s. 164

article 17

s. 302

s. 34

Penal Code

Haribai

Taramati

s. 302

Penal Code

s. 302

s. 34

Umaji Limbaji .Pitale

Umaji

Umaji was working as an agricultural servant with one Balabhau Lad on a daily wage of Rs.

Balabhau Lad

Umaji

Ranjani A

lregaon

Mathaji

Iregaon

Narayan

Iregaon

Then again, he sojourned from the scene of offence to Iregaon but spoke to none.

Manwat

After returning to Manwat he saw his mruster but told him nothing.

January 11, 1974

article 160

January 21., 1974

article 170

Panch Munjaba

Article 170

article 112

articles 112 and 170

article 169

January 17, 1974

10, an axe handle, article 169, was recovered at his instance on January 17, 1974.

Panch Mohd. Yusuf Bade Khan

86-A, and the evidence of the Panch Mohd.

Pardhi Wada

January 8, 1974

articles 150 to 152

Salunke

article 167

Mohd. Yusuf Bade Khan

84-A, and the evidence of the Panch Mohd.

Taramati

Taramati, according to Umaji's evidence, was assaulted with an axe by accused No.

articles 142 and 143

Dagdu

Bhanudas

Sitaram

Narayan

Baliram

Santram

Sant Ram

article 168

Panch Mohd

Yusuf Bade Khan

January 7, 197 4

January 6, 1974

Mala

Mohd. Yusuf

There is also a serious discrepancy in the evidence of the two Panchas, Mohd.

Sheikh Imam

Yusuf, P.W. 10, and Sheikh Imam, P.W. 11, regarding the discovery.

Panch Sheikh Imam

Dhoti

The seizure of a blood-stained Dhoti from the person of accused No.

s. 302

s. 34

s. 302

Penal Code

Santa Singh

Fazal Ali

s. 235

Code of Criminal Procedure, 1973

s. 235

Section 235

Criminal Procedure Code, 1973

Section 360

s. 360

s. 235

Bhagwati

s. 235

s. 235

s. 235

s. 302

s. 367

Code of Criminal Procedure, 1898

Section 354(3)

s. 354(3)

s. 302

s. 34

Penal Code

s. 302

s. 34

Penal Code

January 4. r974

S. P. Waghrnare

S. P. Waghrnare shows that apart riom the rnobile police, fue<lpost patrols were deputed to 'keep a close watch on the activities of , an

and sundry in the area which was chosen by the murderers for -their criminal activities.

l!aiibai

l!aiibai and her 'daughters Were murdered 'under

the yery nose of 'the 'PolicerneQ.  Quite 'a .,

indrabhai Pawar

Deeember 28, 1973

Rainch'andra

GosWAMi

Cbaruirachud

section 235

Code of Criminal Procedure, 1973

section 235(2)

section 235

Balabhau Lad

4th of January, 1974

section 164

Code of Criminal Procedure

section 164