Dagdu & Others Etc. v. State of Maharashtra

PETITIONER:
DAGDU & OTHERS ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT19/04/1977
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1579 1977 SCR (3) 636
1977 SCC (3) 68

ACT

Evidence Act 1972--Sections 114 illustration (b) and

133--Accomplice evidence, whether a competent

witness--Whether conviction can be based on uncorroborated

evidence of an accomplice--Appreciation--Rule of corrobora-

tion---Presumption by courts.

Criminal Procedure Code 1989--Sections 163, 164, 367(5)

and 554--Confessional statements--Criminal Manual 1960 of

Bombay High Court--Para 18 --Failure to comply with Sec.

164(3) and High Court circulars if renders confessions

inadmissible in evidence--Evidence Act, Section 29.

Criminal Procedure Code 1973-- Sections 235, 354--Hear-

ing accused on the question of sentence--If mandatory--If

appellate court can give hearing on failure by the trial

court.

HEADNOTE

Accused, No. 1 though in her thirties had entered a

period of premature menopause. She was anxious to get a

child which could only happen if her menstrual cycle was

restored. She used to consult quacks and Mantriks in order

to help.get a child. Accused No.1’s mother was accredited

with sixth sense in the matter of discovery of treasure

trove. She had oracled that a treasure trove lay buried I

in accused No. 1’s house underneath the Pimpal tree. The

Pimpal tree is believed to be the haunt of Munjaba, who is

supposed to be the spirit of an unmarried Brahmin boy.

Accused NOs. 1 and 2 consulted quacks who prescribed that

virgins should be offered as sacrifice to Munjaba and to

propitiato the deity, blood from their private parts be

sprinkled on the food offered by way of ’Naivedya’. Five

small girls about 10 years of age, a year old infant and. 4

women in their mid-thirties were found murdered between

14-11-1972 and 4-1-1974 in a village called Manawat. The.

murders of these 10 females showed significant similarities

in pattern and conception. The time and place chosen for

crime, preference for females as victims, the nature of

injuries caused to them, the strange possibility that the

private parts of some of the victims were cut in order to

extract blood, the total absence of motive for killing these

very girls and women, the clever attempt to dodge the police

and then to put them on a false scent and the extreme bru-

tality surroundings the crimes gone to the case an eerie

appearance.

Eighteen persons were put up for trial before the Ses-

sion Judge for the 10 murders. Two out of these persons

were tendered pardon and were examined in the case as ap-

provers. Accused No. 6 died during the trial. The Sessions

Judge acquitted accused 4, 5, 7, 8 and 13 to 16. Accused

No. 1 and 2 were convicted under s. 302 read with s. 120-B

and section 34 of the Penal Code. Accused No. 1, 2 and 3

were sentenced to death while accused No. 9 to 12 were

sentenced to life imprisonment. The matter went to the High

Court in the form of various proceedings. The High Court

acquitted accused No. 1 and 2 holding that the offence of

conspiracy which formed the gravamen of the charge against

them was not proved. Since the charge of conspiracy failed

and since it was a common ground that accused No. 1 and 2

had not taken any direct part in the commission of the

murders, the High Court held that they were entitled to

acquittal on all the charges. The High Court dismissed the

appeal filed by accused No. 3 holding that he was responsi-

ble for the first 4 murders and confirmed his conviction

under s. 302 read with s. 34 as also the sentence of death

imposed upon him. The High Court dismissed the State’s

appeal against acquittal of accused No. 4 and 5 but allowed

the State’s appeal and enhanced the sentence of accused No.

9 to 12 to death.

Criminal Appeal No. 437 of 1976 was filed by accused

Nos. 9 to 12. Criminal Appeal No. 438 of 1976 was filed by

accused No. 3 and Criminal Appeal No. 441 of 1976 was filed

by the State of Maharashtra against acquittal of accused

1%s. 1 and 2. The Court acquitted accused No. 12 by giving

him the benefit of doubt and while dismissing the three

appeals.

637

HELD: (1) There is no antithesis between s. 133 and

illustration (b) to section-114 ’of the Evidence Act because

the illustration only says that-the-Gourt may presume a

certain state of affairs under s. 114 of the Evidence Act

The Court may presume the existence of any fact which it

thinks likely to have happened regard’ being had to the

common course of natural events, human conduct and public

and private business in their relation-to the facts-of-

theparticular casee. Under s. 133 -of the Evidence-Act, an

accomplice shall be acompetent wireess against an accused

person and a conviction is not illegal merely because it

proceeds upon-the uncorroborated testimony of an accomplice:

[643 B-C]

(2) Though an accomplice is,a competent witness and

though a conviction may lawfully rest upon his uncorroborat-

ed testimony yet the court is entitled to presume and may be

justified in presuming in the generality of cases that no

reliance can be placed on the evidence of an accomplice

unless that evidence is corroborated in material particu-

lars, by which is meant that there has to be some independ-

ent evidence tending to incriminate the particular accused

in the commission of the crime. 1643 C-D]

(3) It is hazardous as a matter of prudence to proceed on

the evidence a self-confessed criminal. The risk involved

in convicting accused on the testimony of an accomplice

unless it is corroborated in material particulars is so real

and potent that what during the early development of law was

felt to be a matter of prudence has been elevated by judi-

cial experience into a requirement or rule of lave. What

has hardened into a rule of law is not that the conviction

is illegal if it proceeds upon the uncorroborated testimony

of an accomplice but that the rule of corroboration must be

present to the mind an the Judge and that corroboration may

be dispensed with only if the peculiar circumstances of the

case make it safe to dispense with it. [643 ,E-F]

King v. Baskerville [19161 2 K.B. 653; Rameshwar v.

State of Rajasthan [1952] S.C.R. 377, Bhuboni Saku v. The

King 76 I.A. 147; The State of Bihar v. Basawan Singh [1959]

SCR 195 and Ravinder Singh v. State of Haryana [1975] 3

S.C.R. 453. relied on.

(4) It is true that an approver has real incentive to

speak out his mind after tender of pardon but where it is

impossible to reconcile his earlier statements with his

later assertions his evidence has to be left out of consid-

eration. It is one thing to say that an approvers statement

cannot be discarded for the mere reason that he did not

disclose the entire story in his police statement and quite

another to accept an approver in spite of contradictions

which cast a veil of doubt over his involvement of others.

[646 B-C]

Madan Mohan Lal v. State of Punjab [1970] 2 S.C.C.

733 relied on.

Tahsildar’s case [1959] Supp. 2 S.C.R. 875, distin-

guished.

(5) The failure to comply with section 164(3) Cr. P.C. with

the High Court circulars will not render the confessions

inadmissible in evidence. Relevancy and admissibility of

evidence have to be determined in accordance with the provi-

sions of the Evidence Act. [651 E]

(6) Under section 29 of the Evidence Act, if a confession-is

otherwise relevant, it does not become irrelevant merely

because, inter alia, the accused was not warned that he was

not bound to make it and the evidence of it might be given

against him. If, therefore a confession does not violate

any one of the conditions operative under ss. 24 to 28 of

the Evidence Act, it will be admissible in evidence. But as

in respect of any other admissible evidence oral or documen-

tary, so in the case of confessional statements which are

otherwise admissible. the Court has still to consider wheth-

er they can be accepted as true. If the facts and circum-

stances surrounding the making of a confession appear to

cast a doubt on the veracity or voluntariness of the confes-

sion, the Court may refuse to act upon the confession even

if it is admissible in evidence.

[651 E-G]

(7) A strict and faithful compliance with s. 164 of the

Code and with the instructions issued by the High Court

affords in a large measure the guarantee

638

that the confession is voluntary. The failure to observe

the safeguards prescribed therein are in practice calculated

to impair the evidentiary value of the confessional state-

ments.

In the instant case no reliance can be placed on any of

the contesstons. Apart from the cofessions of the two ap-

provers, all others were retracted, which further cripples

their evidentiary value. [657 H]

(8) The imperative language of sub-section (2) leaves no

room for doubt that after recording the finding of guilt and

the order of conviction, the. Court is under an obligation

to hear the accused on the question of sentence unless it

releases him on probation of good conduct or after admoni-

tion under s. 360. The social compulsions, the pressure of

poverty, the retributive instinct to seek an extra-legal

remedy to a sense of being wronged, the lack of means to be

educated in the difficult art of an honest firing the par-

entage, the heredity-all these and similar other consider-

ations can, hopefully and legitimately, tilt the scales on

the property of sentence. The mandate of s. 235 (2) must,

therefore, be obeyed in its letter and spirit. [657 F-H]

(9) The failure on the part of the Court, which convicts

an accused, to hear him on the question of sentence does not

necessarily entail a remand to that Court in order to afford

to the accused an opportunity to be heard on the question of

sentence. [658 A-B]

Santa Singh v. State of Punjab [1976] 4 S.C.C. 190, ex-

plained.

(10) The Court, on convicting an accused, must unques-

tionably hear him on the question of sentence. But if, for

any reason, it omits to do so and the accused makes a griev-

ance of it in the higher court, it would be open to that

Court to remedy the breach by giving a hearing to the ac-

cused on the question of sentence. That opportunity has to

be real and effective, which means that the accused must be

permitted to adduce before the Court all the data which he

desires to adduce on the question of sentence. The accused

may exercise that right either by instructing his counsel to

make oral submissions to the Court or he may, on affidavit

or otherwise, place in writing before the Court whatever he

desires to place before it on the question of sentence. The

Court may, in appropriate cases, have to adjourn the matter

order to give to the accused sufficient time to produce the

necessary data and to make his contention on the question of

sentence. For a proper and effective implementation of the

provision contained in s. 235(2) it is not always necessary

to remand the matter to the Court which has recorded the

conviction. Remand is an exception, not the rule, and

ought, therefore, be avoided as far as possible in the

interests of expeditious, though fair disposal of cases.

[658 B-D, F]

Santa Singh v. State of Punjab [1976] 4 S.C.C. 190,

distinguished.

GOSWAMI, I. (Concurring) :--

Whenever an appeal court finds that the mandate of

section 235(2) Cr. P.C. for a hearing on sentence has not

been complied with it becomes the duty of the Court to offer

to the accused an adequate opportunity to produce before it

whatever material he chooses in whatever reasonable way

possible. Courts should as far us possible avoid remands

when the accused can secure a full benefit of s. 235 (2) Cr.

P.C. in the appeal court. [661 C-D]

JUDGMENT

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

of 1976.

(Appeals by Special Leave from the Judgment and Order

dated the 8/9/10-3-1976 of the Bombay High Court in Crl.

Appeals Nos. 17 and 18 of 1976 and confirmation Case No. 3

of 1976) and

Crl. A. No. 441 of 1976.

639

(Appeal by Special Leave from the Judgment and Order

dated the 8/9/10-3-1976 of the Bombay High Court in Criminal

Appeal No. 18 of 1976).

P. Narayan, B.G. Kolse Patil, B.S. Bhonde and V.N.

Ganpule, for the appellants in Crl. A. Nos. 437-438 and for

respondent in Crl. A. 441/76.

V. S. Desai, P.P. Hudlekar and M.N. Shroff for respond-

ents in Crl. Appeal Nos. 437-438 and for the appellant in

Crl. A. No. 441/76.

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

was delivered by Chandrachud, J. P.K. Goswami, J. gave a

separate opinion.

CHANDRACHUD, J. Five small girls about ten years of

age, a year, old infant and four women in their mid-thirties

were found murdered between November 14, 1972 and January 4,

1974 in a village called Manwar in Maharashtra. The murders

of these ten females show significant SimilaritieS in pat-

tern and conception. The time and place chosen for the

crimes, the preference for females as victims, the nature of

injuries caused to them, the strange possibility that the

private parts’ of some of the victims were cut in order to

extract blood, the total absence of motive for killing these

very girls and women, the clever attempt to dodge the police

and then to put them on a false scent and the extreme bru-

tality surrounding the crimes give to the case an eerie

appearance. Such harrowing happenings make the task of

discovering truth difficult and it is just as well to begin

with Justice Vivian Bose’s reminder that the shocking nature

of the crime ought not to induce an instinctive reaction

against a dispassionate scrutiny of facts and law.

We have three appeals before us,. all by special leave

granted by this Court. Criminal Appeal No. 437 of 1976 is

flied by accused Nos. 9 to 12, Criminal Appeal No. 438 of

1976 by accused No. 3 while Criminal Appeal No. 441 of 1976

is flied by the State of Maharashtra against the acquittal

of accused Nos. 1 and 2.

Eighteen persons were put up for trial before the

learned Sessions judge, Parbhani for the ten murders. Two

out of these, Ganpat Bhagoji Salve and Shankar Gyanoba Kate

were tendered pardon by the learned Judge and were examined

in the case as approvers. Accused Nos. 6 died during the

trial leaving 15 persons for consideration of the question

whether they had conspired to commit the murders and whether

the murders were committed in pursuance of that conspiracy.

The learned Sessions Judge acquitted accused Nos. 4, 5, 7, 8

and 13 to 16. Accused Nos. 1 and 2 were convicted under

sec. 302 read with sec. 120-B and sec. 109 of the Penal

Code. Accused Nos. 3 and 9 to 12 were convicted under sec.

302 read with sec. 120-B and sec. 34 of the Penal Code.

Accused Nos. 1, 2 and 3 were sentenced to death while ac-

cused Nos. 9 to 12 were sentenced to life imprisonment.

The matter went to the Bombay High Court in various

forms. The seven accused who were convicted by the Trial

Court filed an appeal challenging the order of conviction

and sentence. The Sessions Court

640

made a reference to the High Court for confirmation of. the

death. sentence imposed on-accused Nos. 1, 2 and 3. The

State Government flied an appeal against the acquittal of

accused Nos. 4 and 5. It also filed an appeal under s..377

of the Criminal Procedure Code, 1973 asking that the

sentence of life imprisonment imposed on accused Nos. 9 to

I2 be enhanced to death. The State not having challenged

the order of acquittal passed by the Sessions Court in

regard to accused Nos,7, 8 and 13 to 16, that order has

become final and was not in any form assailed before Us as

erroneous.

The High court acquitted. Nos.1 and 2 holding friar the

offence of conspiracy which formed the gravamen of the

charge against them was not proved. The charge of conspira-

cy having failed and it being common ground that accused

Nos. 1 and 2 had not taken any direct part in the commis-

sion of the murders, the High Court held that they Were

entitled to acquittal on all the charges. The High Court

dismissed the appeal file flied by accused No. 3 holding

that he was responsible for the first four murders and.con-

firmed his conviction under s. 302 read with s. 34 as also

the sentence of death imposed upon him. The conviction ,and

sentence-of accused No. 3 under s. 302 read with s.120B was

set aside by the’ High Court in view of its finding, that

the prosecution had failed to establish the charge,of con-

spiracy. High court dismissed the State’s appeal against the

acquittal of accused Nos.4 and 5 but it allowed the appeal

flied.by the State for enhancement of the sentence of life

imprisonment imposed on accused Nos. 9 to 12. The. High

Court enhanced their sentence to death under s. 302 read

with 8. 34 but consistently, with its finding on the charge

of conspiracy it set aside their conviction and sentence

under s. 302 read with s. 120B. There were delay on the"

part of the State Government in filing the appeal for en-

hancement of the sentence of accused Nos. 9 to 12 but the

High Court condoned that delay.

We are thus called upon to consider the correctness of:

(1)the order of the High Court acquitting accused Nos. 1 and

2; (2) the-order of conviction of accused No. 3 under s. 302

read with s. 34 and the sentence of death imposed upon him

by the Sessions Court and the High Court; and (3) the order

of conviction of accused Nos. 9 to 12 under s. 302 read with

s. 34. Thus, we are concerned in these appeals with accused

Nos. 1 to 3 and 9 to 12 only.

The hamlet of Manwat has a population of 15 thousand and

is situated in. Taluka Pathri, District Parbhani, Maharash-

tra. Accused No. 1, Rukhmini, was about 32. years of age at

the relevant time and despite the pledge-to secularism, it

has to be mentioned that she is Pardhi by caste. She was in

the keeping of accused No. 2, Uttamrao Barshate, a non

pardhi, who is a man of means and was at one time the Presi-

dent of the Manwat Municipality. He purchased a house for

accused No. 1 in which the two lived together and it is this

house or wada.which became ’the focal point of the conspira-

cy. Accused No. 2 purchased the house really in order to

ensure the exclusiveness of mistress but it happened to

blaze an altogether new trial.

641

In the house was a Pimpal tree which is believed to be the

emblem of God Vishnu, the Preserver. The Pimpal is also

believed to be the haunt of Munjaba, who is supposed to be

the spirit of an unmarried Brahmin boy. The Parbhani Dis-

trict Gazetteer says at page 115 that "some childless per-

sons who trace their misfortune to the influence of some

evil spirit cause the Brahminic thread ceremony performed

for a pimpal tree and a masonry platform built round its

trunk."

The Man want village-folk commonly believe that treasure

troves are lying buried in the town ever since the sixteenth

century when its inhabitants fled away after the troops of

Murtazahad invaded the town, which was then under the Ni-

zamshahi of Ahmednagar. Quite some quacks in the periphery

of ’Manwat make their living by diagnosing where the treas-

ure trove lies and what means to adopt for diScovering it.

Accused No. 1, though in her thiries, had entered a

period of premature menopause. She was anxious to get a

child which could only happen if her menstrual cycle was

restored. She used to consult quacks and mantriks who, she

’believed, could help her get a child. Accused No. 2’s

mother was ,credited with a sixth sense in the matter of-

discovering treasure troves. ’She had oracled that a’

treasure trove lay buried in accused No. 1’s house under-

neath the Pimpal tree. The stage was thus set for the visits

of mountebanks to the house of accused No. 1 for the display

of their supernatural. attainments.

The case of the prosecution is that accused Nos land 2

consulted quacks who prescribed that virgins should be

offered as sacrifice to munjaba. and blood from the irpri-

vate arts be sprinkled on the food offered by way of Naive-

dya to the God. One of such quacks was Ganpat Salve, the

approver, who was examined as: P.W. 1. Accepting Ganpat’s

advice, accused Nos. 1,, 2, 3,4 and 6 conspired to commit

the murders of virgin girls. Ganpat himself joined the

conspiracy and so did Shankar Gyanoba Kate who was a servant

of accused No. 2. Shankar, also an approver, was examined in

the case as P.W.2. Accused Nos. 5 and 7 to 16 are alleged to

have joined the conspiracy at a later point of time. In

pursuance of the conspiracy, ten murders were committed

between November 14, 1972 and January 4, 1974.

The first four murders are alleged to have been commit-

ted by the approver Shankar and accused No. 3, Sopan, who

was also in the employment of accused No. 2. Gayabai, a

girl of 11 was murdered on November-14, 1972; Shakila, a

girl of 10, was murdered on December 9, 1972;. Sugandhabai,

a woman Of 35 was murdered on February 21, 1973 and Nasima a

girl of lO was murdered on April 13, 1973.

It is said that the-blood from the private parts of

these victims was offered to Munjaba and yet there was no

clue as to where the treasure trove lay. Gayabai, Shakila

and Sugandhabai had evidently died in vain and therefore

Nasima, the fourth victim, was beheaded so that the severed

head could be offered. to propitiate the deity. Even

Nasima’s head failed to move Munjaba’s heart. The treasure

trove remained undisclosed.

642

The next two murders are alleged to have been committed

by accused Nos. 5 and 6. Kalavati, a woman of 30, was

murdered on June 29, 1973 and Halires, a girl of 11, on July

12, 1973. Accused No. 5 has been acquitted and the order of

acquittal has become final. Accused No. 6 died during the

pendency of the trial in the Sessions Court.

The seventh murder is alleged to have been committed by

accused Nos. 7 and 8 when Parvatibai, aged about 35, was

murdered on October 8, 1973. These two accused were ac-

quired by the Sessions Court and the acquittal was not

challenged by the State.

The three last murders are alleged to have been commit-

ted by accused Nos. 9 to 12, all at the same time. Haribai,

aged 35, was going along with her daughter Taravati aged 9

and was carrying in her arms an infant daughter, Kamal, aged

a year and half. All of them were murdered on the afternoon

of January 4, 1974.

Accused Nos. 1, 2, and 14 were arrested on June 18,

1973 in connection with the first four murders which had

taken place between November 14, 1972 and April 13, 1973.

It is alleged that, while in custody, accused No. 2 sent a

message to accused No. 5 to commit a few more murders so

that no suspicion may fall on those who were arrested. That

is why accused Nos. 5 and 6, accused No. 6 being a servant

of accused No. 1, are said to have committed the murders of

Kalavati and Halires in June and July, 1973. On July 30,

1973 accused Nos. 1, 2, 9 and 14 were released on bail on

condition that they shall not enter the limits of Manwat.

This condition was relaxed on October 4, 1973 for investiga-

tional purposes. Accused Nos. 1 and 2 were in Manwat from

October 4 to October 21, 1973 during which period they are

alleged to have procured the service. of accused Nos. 7 and

8 for the commission of Parvatibai’s murder on October 8.

On December 18, 1973, an application was moved for cancella-

tion of the bail granted to accused Nos. 1 and 2. That

application was allowed and they were rearrested on January

4, 1974 when the murders of Haribai, Taramati and Kamal were

committed. Accused No. 3 was arrested on December 28, 1973,

accused Nos. 9 to 11 on January 8, 1974 and accused No. 12

on January 11, 1974.

Accused Nos. 1 and 2 are the linch-pin of the case and

therefore, it would be appropriate to deal with their cases

first. Accused No. 1 is the mistress of accused No. 2 and

whereas the former was anxious to get a child, they both

were anxious to discover the treasure trove lying buried in

their house. The charge against them is that for the

purpose of achieving these objects they consulted quacks who

advised that the Munjaba should be propitiated by offering

the blood of virgin girls. Accepting that advice, accused

Nos. 1 and 2 are alleged to have entered into a conspiracy

with the other accused to commit the various murders.

The prosecution relied inter alia on the evidence of

the two approvers, Ganpat, P.W. 1, and Shanku, P.W. 2, in

order to prove the charge of conspiracy against accused Nos.

1 and 2 as also for proving that various murders were com-

mitted in pursuance of that

643

conspiracy. The learned Sessions Judge accepted the evi-

dence, of both the approvers as against accused Nos. 1 and 2

but the High Court rejected the evidence of Ganpat and

accepted that of Shankar only.

Before considering that evidence, it would be necessary

to state the legal position in regard to the evidence of

accomplices and approvers. Section 133 of the Evidence Act

lays down that an accomplice shall be a competent witness

against an accused person; and a conviction is not illegal

merely because it proceeds upon the uncorroborated testimony

of an accomplice. Section 114 of the Evidence Act provides

that the Court may presume the existence of any fact which

it thinks likely to have happened, regard being had to the

common course of natural events, human conduct and public

and private business, in their relation to the facts of the

particular case. Illustration (b) to s. 114 says that the

Court may presume that an accomplice is unworthy of credit

unless he is corroborated in material particulars.

There is no. antithesis between s. 133 and illustration

(b) to s.114 of the Evidence Act, because the illustration

only says that the Court ’may’ presume a certain state of

affairs. It does not seek to raise a conclusive and irre-

butable presumption. Reading the two together the position

which emerges is that though an accomplice is a competent

witness and though a conviction may lawfully rest upon his

uncorroborated testimony, yet the Court is entitled to

presume and may indeed be justified in presuming in the

generality of cases that no reliance can be placed on the

evidence of an accomplice unless that evidence is corrobo-

rated in material particulars, by which is meant that there

has to be some independent evidence tending to incriminate,

the particular accused in the commission of the crime. It is

hazardous, as a matter of prudence, to proceed. upon the

evidence of a self confessed criminal, who, in so far as an

approver is concerned, has to testify in terms of the pardon

tendered to him. The risk involved in convicting an accused

on the testimony of an accomplice, unless it is corroborated

in material particulars, is so real and potent that what

during the early development of law was felt to be a matter

of prudence has been elevated by judicial experience into a

requirement or rule of law. All the same, it is necessary

to understand that what has hardened into a rule of law is

not that the conviction is illegal if it proceeds upon the

uncorroborated testimony of an accomplice but that the rule

of corroboration must be present to the mind of the Judge

and that corroboration may be dispensed with only it the

peculiar circumstances of a case make it safe to dispense

with it.

In King v. Baskerville(1) the accused was convicted for

committing gross acts of indecency with two boys who were

treated as accomplices since they were freely consenting

parties. Dealing with their evidence Lord Reading, the Lord

Chief Justice of England, observed that though there was

no doubt that the uncorroborated evidence of an accomplice

was admissible in law it was for a long time a role of

practice at common law for the Judge to warn the Jury of the

danger of convicting a person on the uncorroborated testimo-

ny of an accomplice. Therefore, though the Judge was enti-

tled, to point out

(1) [1916] 2 K.B. 658.

2--7078CI/77

644

to the Jury that it was within their legal province to

convict upon the unconfirmed evidence of an accomplice, the

rule of practice had become virtually equivalent to a rule

of law and therefore in the absence of a proper warning by

the Judge the conviction could not be permitted to stand. If

after being properly cautioned by the Judge the Jury never-

theless convicted the prisoner, the Court would not quash

the conviction merely upon the ground that the accomplice’s

testimony was uncorroborated.

In Rameshwar v. State of Rajasthan(1) this Court ob-

served that the branch of law relating to accomplice evi-

dence was the same in India as in England and that it was

difficult to better the lucid exposition of it given in

Baskerville’s (supra) case by the Lord Chief Justice of

England. The only clarification made by this Court was that

in cases tried by a Judge without the aid of a Jury it was

necessary that the Judge should give some indication in his

judgment that he had this rule of caution in mind and should

proceed to give reasons for considering it unnecessary to

require corroboration on the facts of the particular case

before him and show why he considered it safe to convict

without corroboration in the particular case.

In Bhuboni Sahu v. The King(a) the Privy Council after

noticing s. 133 and illustration (b) to s. 114 of the Evi-

dence Act observed that whilst it is not illegal to act on

the uncorroborated evidence of an accomplice, it is a rule

of prudence so universally followed as to amount almost

to a rule of law that it is unsafe to act on the evidence of

an accomplice unless it is corroborated in material respects

so as to implicate the accused; and further that the evi-

dence of one accomplice cannot be used to corroborate the

evidence of another accomplice. The rule of prudence was

based on the interpretation of the phrase "corroborated in

material particulars" in illustration (b). Delivering the

judgment of the Judicial Committee, Sir John Beaumont ob-

served that the danger of acting on accomplice evidence is

not merely that the accomplice is on his own admission a man

of bad character who took part in the offence and afterwards

to save himself betrayed his former associates, and who has

placed himself in a position in which he can hardly fail to

have a strong bias in favour of the prosecution the real

danger is that he is telling a story which in its general

outline is true, and it is easy for him to work into the

story matter which is untrue. He may implicate ten people

in an offence and the story may be true in all its details

as to eight of them but untrue as to the other two whose

names may have been introduced because they are enemies of

the approver. The only real safeguard therefore against the

risk of condemning the innocent with the guilty lies in

insisting on independent evidence which in some measure

implicates each accused.

This Court has in a series of cases expressed the same

view as regards accomplice evidence. (see The State of

Bihar v. Basawan

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

(2) 76 I.A. 147.

645

Singh(1); Hari Charan Kurmi v. State of Bihar;(2) Haroon

Haji Abdulla v. State of Maharashtra;(a) and Ravinder Singh

v. State of Haryana(4). In Hari Charan(2) Gajendragadkar,

C.J., speaking for a five-Judge Bench observed that the

testimony of an accomplice is evidence under s. 3 of the

Evidence Act and has to be dealt with as such. The evidence

is of a tainted character and as such is very weak; but,

nevertheless, it is evidence and may be acted upon, subject

to the requirement which has now become virtually a part of

the law that it is corroborated in material particulars.

We will assess the evidence of the two approvers

Ganpat and Shankar in the light of these principles. Ganpat

Bhagoji Salve, P.W. 1, fails to cross the initial hurdle of

reliability and no amount of corroboration cure the infirmi-

ties which beset his evidence. He is not a quack but a

charlatan who traded on the credulous optimism of the ster-

ile village women. He admits that he possessed no cure but

made a pretence of it by carrying the confidence of lay,

uninformed women. He was sent for to prescribe a cure to

enable accused No. 1 to bear a child but accused Nos. 1 and

2, taking advantage of his expert presence, consulted him on

where the treasure trove lay. Ganpat prescribed the facade

of a procedure which was in the nature of a confidence

trick. Practising it deftly on his credulous audience, he

passed on the errand of God that Munjaba has to be appeased

by offering the blood of virgin girls. That work was as-

signed by accused No. 2 to his servants, accused No. 3 and

the other approver Shankar.

Accused No.3 and Shankar committed the murders of Gaya-

bai and Shakila and handed over the bowlful of blood from

the private parts of the victims to accused Nos. 1 and 2 who

performed the puja of Munjaba. But the treasure trove did

not come up. Then Sugandhabai was murdered and her menstur-

al blood was offered to the God, again without a purpose.

The fourth to die was Nasima whose head and small finger

were offered as sacrifice. But even that heavy price yield-

ed no clue to the treasure trove Ganpat was paid a fee of

Rs. 100 whereupon he made himself scarce and left for a

place called Baramati from where he was traced by the po-

lice. That is what Ganpat’s evidence comes to.

Ganpat is an utterly worthless witness whose evidence

has been rightly discarded by the. High Court. His entire

story is incredible and abounds in contradictions of the

gravest kind. Accused No. 2 is a man of some means and was

for some time the President of the Manwat Municipality. It

is hardly likely that a person in his position would readily

gulp the fantastic process prescribed by Ganpat for discov-

ering the treasure trove Ganpat was interrogated by the

police for nearly a month and a half after his arrest at

Baramati and it was only at the end of that trying period

that he trotted out some story

(1) [1959] SCR 195 (2) [1964] 6 SCR 623

(3) [1968] 2 SCR 641 (4) [1975] 3 SCR 453

646

to save his skin. It is common ground, and we see much

more in that episode, that Ganpat struck his head against a

wall while in police custody and sustained a head injury for

which he was charge-sheeted for attempting to commit sui-

cide. He admits in his evidence that he was driven to break

his head as a result of the torture inflicted upon him by

the police. Though he implicated both accused Nos. 1 and 2

in the search for treasure trove, he admitted later that.

accused No.1 had never talked to him. in that behalf. He

made several significant statements for the first time in

the Court and though we agree that an approver has real

incentive to speak out his mind after tender of pardon, it

is impossible to reconcile his earlier statements with

his later assertions. It is one thing to say as was said in

Madan Mohan Lal v. State of Punjab(1) that an approver’s

statement cannot be discarded for the mere reason that he

did not disclose the entire story in his police statement

and quite another to accept an approver in spite of contra-

dictions which cast a veil of doubt over his involvement of

others. Conceding the ratio. of Tahsildar’s(2) case, on.

which Mr. Desai for the State Government relies, the conclu-

sion seems to us inescapable that Ganpat has mixed a ton of

falsehood with an ounce of truth. His evidence has there-

fore to be left out of consideration.

The other approver Shankar Gyanoba Kate, P.W. 2, has

greater credibility than Ganpat. Shankar was working with

accused No. 2 as an agricultural servant along with accused

No. 3. He speaks of Ganpat’s visits, the performance of the

’shakun’ and of being commanded by accused Nos. 1 and 2 to

commit murders of virgin girls. He has unreservedly admitted

having committed the murders of Gayabai, Shakila, Sngandha-

bai and Nasima with accused No. 3’s assistance. He impli-

cates accused Nos. 1 and 2 by deposing that after each o[

the murders was committed, he and accused No. 3 used to go

to accused No.1’s house for delivering the blood and that

the accused used to perform the Puja thereafter.

Not only has Shankar tarred himself with the same brush

as accused Nos. 1, 2 and 3 but he has confessed to having

played the leading role in the commission of the first four

murders. Impressed by that circumstance, the Sessions Court

and the High Court concluded that he is a reliable witness,

but they took the view that the conviction of accused Nos. 1

and 2 cannot be permitted to rest on his uncorroborated

testimony. We unhesitatingly share that view. Having played

the role of the master killer in four ghastly murders, he is

bound to know every little detail as to the manner of kill-

ing. The vivid description given by him of the luring, the

gagging and the throwing away of the dead bodies may there-

fore be true. But it is easy enough for him to introduce

nice falsities here and there by involving some others in

the broadly true framework of his story. It is therefore

necessary to see whether the evidence of Shankar in regard

to the implication of accused Nos. I and 2 is corroborated

by some independent evidence..

(1) [1970] 2 S.C.C. 733.

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

647

Before looking out for corroboration., we must point out

that Shankar used to be interrogated by the police every

night for about 9 or 10 days and it was at the end of that

gruelling interrogation that his statement came to be re-

corded. Though Shankar claims that he had seen the ’shakun’

being performed by Ganpat, he had not stated so before the

police nor had he then described the elaborate ritual ob-

served during the performance of that ceremony. He also did

not say to the police that accused No. 1 had asked him to

commit the murders. Neither to the police nor in his state-

ment recorded under s. 164 of the Code of Criminal Procedure

did he say that he had gone to accused No.1’s house on the

morning following the first murder and that She had told him

that since the treasure trove was not found another murder

should be committed. The statement attributed by Shankar to

accused No. 1 that menstrual blood was required for sacri-

fice is also conspicuous by its absence in his police state-

ment. These significant omissions are in the nature of

contradictions because not only do they pertain to a very

vital aspect of the case against accused Nos. 1 and 2, but

they are of such a nature that the story told by Shankar to

the police and under s. 164- of the Code of Criminal Proce-

dure, cannot sensibly stand along with what he told the

Court in regard to the part played by accused Nos. 1 and 2.

It is true that Shanker was under a higher obligation while

deposing in the Court because as a condition of the pardon

tendered to him he had to disclose the whole truth to the

Court. But while assessing the value of Shankar’s. evidence

in so far as he implicates accused Nos. 1 and 2 we find it

impossible to overlook the studied improvements which he

made to involve them. Such gross departure from the earliest

versions makes the story of conspiracy suspect and uninspir-

ing. All the same, we may examine the argument advanced

before us by the learned counsel for the State that Shan-

kar’s evidence against accused Nos. 1 and 2 is corroborated

in material particulars and should therefore be accepted.

For affording corroboration to Shankar’s evidence reli-

ance is placed on the evidence of four witnesses--Laxman

(P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and

Kachru (P.W. 34)..

We see nothing in the evidence of these witnesses which

can lend corroboration to the approver’s story, that accused

Nos. 1 and 2 conspired to commit the murders or that they

asked Shankar and accused No. 3 to do so or that the blood

of victims was handed over to either of them, or that any

Puja was performed after the commission of murders. Laxman

says nothing about the treasure trove, Sakharam merely

carried the errand to Ganpat, Ramchandra was mauled by the

police who pulled out Iris pig-tail and the quack called

Kachru only prescribed a medicine for accused, No.1’s meno-

pause.

Nor indeed is the evidence of P.Ws. 20, 21 and 51 of any

assistance in the matter of corroboration. They merely say

that Ganpat was eking his livelihood by prescribing Mantras

and medicines, which takes one nowhere near corroborative

factors for implicating accused Nos. 1 and 2.

648

The recovery of Ganpat’s satchel. containing charms and

herbs, trader the Panchnama Ex. 130A, also proves nothing

beyond showing that Ganpat was equipped with a quack’s

repertoire.

One of the strongest arguments made by Mr. Desai on

behalf of the State was that accused Nos. 1 and 2 stood to

gain by the commission of the murders and that would afford

corroboration to their participation in the conspiracy.

Motive may conceivably furnish the necessary corroboration,

but we are unable to see any independent evidence on the

record regarding the treasure trove theory. Scrapings were

taken from Munjaba’s image and samples of earth were also

taken from the place where Munjaba is alleged to have been

propitiated with the blood of the victims. If Puja was

really performed in the manner described by Shankar, it is

strange that no blood stains should have been found anywhere

near the Pimpal tree. There is also no evidence at all to

show that any attempt was made by accused Nos. 1 and 2 to

discover the treasure, as for example, by digging. These

circumstances cast a serious doubt on the theory that ac-

cused Nos. 1 and 2 were trying to locate the treasure trove.

The fact that accused No. 3 is a servant of accused No. 2

cannot by itself be sufficient to connect accused No. 2 with

the crime charged.

The last circumstance on which prosecution relies to.

connect accused Nos. 1 and 2 with the crime is the confes-

sion, Ex. 108, made by accused No. 1 Rukhmam. That confes-

sion was recorded by a Sub-Divisional Magistrate, Devidas

Sakharam Pawar, P.W. 23. Later, we will have a great deal

to say about the various confessions recorded by this

learned Magistrate but in so far as the confession of ac-

cused No. 1 is concerned it is enough to point out that it

is entirely exculpatory and can, therefore, serve no useful

purpose. Besides, the confession was retracted by accused

No. 1.

Along with these considerations is the circumstance that

the High Court has acquitted accused Nos. 1 and 2 after a

fair examination of the material relied upon by the prosecu-

tion as against them. The various reasons given by us would

so that there is no justification for interfering with the

conclusion to which the High Court has come. The acquittal

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

It would now be convenient to take up the ease of ac-

cused No. 3, Sopan Rambhau Salve. The allegation against

him is that he and the approver Shankar committed the murder

of Gayabai on November 14, 1972, of Shakila on December 9,

1972, of Sugandhabai on February 21, 1973 and of Nasima on

April 13, 1973. There is no eyewitness to any of these four

murders but for establishing the charge against accused No.

3, the prosecution relies on the evidence of the two approv-

ers Ganpat (P.W. 1) and Shankar (P.W.2), the discovery of

article 17 by accused No. 3, the discovery of articles 18

and 19 by approver Shankar, the seizure of articles 20 and

21 from the house of accused No. 1 and lastly the retracted

confession of accused No. 3 himself. We have already dealt

with the evidence of the approvers while considering the

case against accused Nos. 1 and 2 and we have given our

reasons for discarding Ganpat’s evidence outright. In

regard to Shankar’s evidence we have taken the view that

though he is

649

a reliable witness, his evidence cannot be acted upon unless

it is corroborated in material particulars.

Shankar and accused No. 3 were in the employment of

accused No. 2. After describing the ’Shakun’ ceremony which

was performed for ascertaining the desire of the deity,

Shankar deposes that he and accused No. 3 were commissioned

to commit the murders of virgin girls. Shankar, after some

hesitation, agreed to do so on the promise that accused Nos.

1 and 2 will,give to him and accused No.3 a share in the

treasure trove.

Accused No. 3, according to Shankar, lured Gayabai,

Shakila and Nasima to secluded spots., where upon Shankar

gagged and throttled them. Accused No. 3 facilitated the

murders by holding the legs of victims which also helped

Shankar to collect blood from their private parts after

causing cuts thereon. Accused No. 3 played a more signifi-

cant role in the murder of Sugandabhai by axing her to

death.

Shankar’s evidence is amply corroborated as regards the

broad outlines of the story narrated by him. But that is not

enough. We must see whether his evidence receives corrobo-

ration from an independent source and in material particu-

lars, so as to fasten the guilt on accused No. 3.

The first circumstance which is said to corroborate the

evidence of the approver is the discovery of 27 pieces of

shirt, which are collectively marked as article 17. The

panchanama of discovery (Ex. 127) is dated January 2, 1974

and is proved by the Pancha Vithalrai Takankhar (P.W.

27). The report of the serologist which is at Ex. 312 shows

that there were several blood stains on the shirt pieces

ranging from 0.1 cm. to 0.5 cm. in diameter, all of ’A’

group. Gayabai’s blood also belonged to ’A’ group.

Mr. Bhonde who appears for accused No. 3 has, subjected

the evidence of discovery to a searching criticism which at

first blush seems plausible but which does not bear close

scrutiny. The argument that the panchanama of discovery

does not attribute to accused No,. 3 the authorship of

concealment has the simple answer that the English transla-

tion of the Marathi panchanama is incorrect. The original

document expressly states that accused No. 3 agreed to point

out the place where. he had kept the shirt pieces. The

evidence of the Panch (P.W. 27) and of Dy. S.P. Waghmare (P.

W. 96) is. to. the same effect. In the absence of any

effective cross-examination of these witnesses, we see no

substance in the contention that accused NO. 3’s father, who

was standing near the hut, should have been examined as a

witness.

It is urged that it is highly unlikely that accused No.

3 will preserve the tell-tale evidence of the crimes in the

manner alleged by the prosecution. Why the accused chose

to do this is difficult to know but we are not examining

the evidence in the case as a Court of first instance.. The

evidence in regard to the discovery is accepted as unexcep-

tionable by the Sessions Court as well as the High Court

650

and we are unable to characterise that view of the matter as

preverse or against the weight of evidence. The recovery

of art. 17 thus afford material corroboration to the part

played by accused No. 3, at least in Gayabal, s murder.

The discovery of the blade (art. 18) and the undervest

(art. 19) at the instance of the approver affords no cor-

roboration as against accused No. 3. Nor indeed can the

recovery of the bowl (art. 20) and the bottle (art. 21) from

the house of accused No. 1 connect accused No.. 3 with the

crime. These are articles of common use and no blood was

detected thereon.

What remains to be considered is the retracted con-

fession accused No. 3, which is Ex. 106. While on this

question, we would like to deal with all the confessional

statements recorded in the case so that it will not be

necessary to revert to. the question time and again.

As many as eight confessions were recorded in the case,

the confessing accused, apart from the two approvers, being

accused Nos. 1, 3, 4, 5, 6, and 12. The approvers, Ganpat

and Shankar, stuck to their confessions while all others

retracted theirs.

Section 24 of the Evidence Act makes a confessional

statement irrelevant in a criminal proceeding if the making

thereof appears to have been caused by any inducement,

threat or promise, having reference to the charge against

the accused, proceeding from a person in authority and

sufficient to give the accused grounds which would appear

to him reasonable for supposing that by making the confes-

sion he would gain any advantage or avoid any evil of a

temporal nature in reference to the proceedings against

him. Section 163 of the Criminal Procedure Code bars a

Police Officer or any person in authority from offering or

causing to be offered any inducement, threat or promise as

is referred to in s. 24 of the Indian Evidence Act. Section

164 of the Code prescribes the mode of recording confession-

al statements. Acting under s. 554 of the Criminal Proce-

dure Code, 1898, the High Court of Bombay had framed in-

structions for the guidance of Magistrates while recording

confessional statements. Those instructions are contained

in Chapter I, Paragraph 18, of the Criminal Manual 1960,

of the Bombay High Court. The instructions require the

Magistrate recording a confession to ascertain from the

accused whether the accused is making the confessional

statement voluntarily and to find whether what the accused

desires to state appears to be true. The instructions

prescribe a form in. which the. confessional statement has

to be recorded. Similar circulars or instructions have been

issued by the various High Courts in India and their impor-

tance has been recognised by this Court in Sarwan Singh v.

State of Punjab(1) in which it was said that the instruc-

tions issued by the High Courts must be followed by the

Magistrates while recording confessional statements.

[1957] S.C.R. 953

651

All of the eight confessions were recorded in this case

by a Sub Divisional Magistrate, Devidas Sakharam Pawar (P.

W. 23), whose evidence leaves no room for doubt that he was

blissfully unaware of the stringent responsibilities east by

law on Magistrates. who. are called upon to record confes-

sions. He made no effort to ascertain from any of the

accused whether he or she was making the confession volun-

tarily. He did not ask any of the accused whether the

police had offered or promised any incentive for making the

confessional statement nor did he ascertain for how long the

confessing accused was in police custody prior to. his

production for recording the confession nor indeed did he

maintain any record to show where the accused were sent

after they were given time for reflection. One of the

glaring infirmities from which the confessional statements

of the various accused suffer is that none of those state-

ments contain a memorandum as required by s. 164 of the Code

that the Magistrate believed that the "confession was volun-

tarily made". It is also clear that when the various ac-

cused were produced before the Magistrate after the time for

reflection was over, he asked no further questions and

recorded the confessions. mechanically for the mere reason

that the accused expressed their willingness to confess.

The Magistrate was either overcome by the sensation which

the case had aroused in Maharashtra or perhaps he blindly

trusted the high police officers who were frantically look-

ing out for a clue to these mysterious murders. They pro-

duced the accused for recording the confessions and the

Magistrate thought that the mere production of the accused

was guarantee enough of their willingness to confess.

Learned counsel appearing for the State is right that

the failure to comply with s. 164(3), Criminal Procedure

Code, or with the High Court Circulars will not render the

confessions inadmissible in evidence. Relevancy and admis-

sibility of evidence have to be determined in accordance

with the provisions of the Evidence Act. Section 29 of that

Act lays down that if a confession is otherwise. relevant it

does not become irrelevant merely because, inter alia, the

accused was not warned that he was not bound to make it and

the evidence of it might be given against him. If, there-

fore, a confession does not violate any one of the condi-

tions operative under ss. 24 to 28 of the Evidence Act, it

will be admissible in evidence. But as in respect of any

other admissible evidence, oral or documentary, so in the

case of confessional statements which are otherwise admissi-

ble, the Court has still to consider whether they can be

accepted as true.. If the facts and circumstances surround-

ing the making of a confession appear to. cast a doubt on

the veracity or voluntariness of the confession, the Court

may refuse to act upon the confess;on even if it is

admissible in evidence. That shows how important it is for

the Magistrate who. records the confession to satisfy him-

self by appropriate questioning of the confessing accused,

that the confession is true and voluntary. A strict and

faithful compliance with s. 164 of the Code and with the

instructions issued by the High Court affords in a Large

measure the guarantee that the confession is voluntary. The

failure to observe the safeguards prescribed therein are in

practice calculated to impair the evidentiary value of the

confessional statements.

652

Considering the circumstances leading to the procession-

al recording of the eight confessions and the abject disre-

gard, by the Magistrate, of the provisions contained in s.

164 of the Code and of the instructions issued by the High

Court, we are of the opinion that no reliance can be placed

on any of the confessions. Apart from the confessions of

the two approvers, all others were retracted, which further

cripples their evidentiary value.

Since the evidence of the approver Shankar is corrobo-

rated in material particulars by the discovery of article

17, there is no valid reason for departing from the concur-

rent view of the High Court and the Sessions Court that

the complicity of accused No. 3. in the four murders is

proved beyond a reasonable doubt. As the charge of conspir-

acy fails, the High Court was right in convicting accused

No. 3 under s. 302 read with s. 34 of the Penal Code only.

That leaves the case of accused Nos. 9 to 12 for consid-

eration,. being the subject-matter of Criminal Appeal No.

437 of 1976 filed by them. The charge against these accused

is that in furtherance of conspiracy and in pursuance of

their common intention they, on January 4, 1974, committed

the murders of Haribai, aged 35 years, her daughter Taramati

aged 9 years, and her infant child Kamal aged 1-1/2 years.

The Sessions Court convicted these accused under s. 302 read

with ss. 120B and 34 of the Penal Code and sentenced them to

life imprisonment. The charge of conspiracy having failed

before the High Court and the main co-conspirators, accused

Nos. 1 and 2, having been acquitted, the High Court convict-

ed these accused under s. 302 read with s. 34 only. But,

accepting the appeal flied by the State, the High Court

enhanced their sentence from life imprisonment to death.

The evidence against accused Nos. 9 to 12 consists of :

(1) The: eye-witness account of Umaji Limbaji, Pitale (P.W.

31); (2) Discoveries effected in pursuance of statements

made by the accused; (3) Injuries on accused No. 10; (4) The

evidence in regard to the movements of the accused at or

about the time when the murders were committed and (5) the

confession of accused N6. 12.

Umaji was working as. an agricultural servant with one

Balabhau Lad on a daily wage of Rs. 3/-. On January 4, 1974

while he was on his way to one of the lands of his master,

he first met accused No. 10 and then accused Nos. 9 and 11,

and had some conversation with accused No. 10. At about the

same time, he saw Haribai carrying her infant child in her

arms, and a basket of food on her head. Her other daughter

Taramati was walking behind her. Umaji climbed the Mala,

which is a raised platform from which crops are generally

watched, and soon thereafter he heard the shrieks of a

child. Turning in the direction from which the shrieks

came, he saw accused No. 10 holding Haribai from behind by

her waist and accused No.9 giving an axe blow on her head.

Almost simultaneously, Umaji saw accused No. 12 holding

Taramati from behind and accused No. 11 giving an axe blow

on her head. Feeling nervous and fearful, jumped down from

the Maid, tethered his horse in his master’s land, went by

653

a bus to the Manwat Road Railway Station, took a train to

Ranjani and from there proceeded to the village of Iregaon

where his maternal uncle Mathaji lived. After staying at

Iregaon for about four days, Umaji went back to his master’s

house at Manwar when a police constable took him to. the

Police Station, where a Police Officer recorded his state-

ment.

Umaji’s evidence having been concurrently accepted by

the Sessions Court and the High Court, we do. not propose to

undertake a fresh reappraisal of that evidence except to the

extent to which the view of the Courts below is contrary to

the weight of the record or is otherwise such as is impossi-

ble in the context to sustain. On a careful consideration

of Mr. Narayan’s closely reasoned submissions, we have

formed the conclusion, which does not materially differ from

that of the two Courts, that Umaji’s evidence cannot be

accepted without adequate corroboration.

Our reasons for taking this view are briefly these: Fear

and pame may account for the fact that the witness did not

raise an alarm. But there is no reasonable explanation why,

having had the presence mind to tether back the horse, he

did not see his master. Then again, he sojourned from the

scene of offence to Iregaon but spoke to none. At Iregaon,

which was far removed from the scene of Manwat murders, he

holidayed with his uncle for four days but even on being

questioned as to the purpose of his visit, he made no an-

swer. After returning to Manwat he saw his master but told

him nothing. His statement was recorded by the police after

two days of close interrogation.

In regard to accused No. 9, there are two circumstances

which afford reliable corroboration to Umaji’s evidence. On

January 11, 1974 accused No. 9 made a statement leading to

the discovery of an axe blade, article 160, from his house.

The panchnama of recovery is Ex. 91-A which is proved by the

Panch Sheikh Imam (P.W. 11 ). It shows that accused No. 9

took out an axe blade from below a piece of wood lying

behind a cupboard in his house. The report of the Serolo-

gist, Ex. 267, shows that the axe blade was stained with

human blood of ’A’ group. The blood of the deceased Haribai

belonged to the same group. Accused No. 9 admitted in his

examination that he had produced the axe blade and that it

was stained with blood but he sought to explain the blood

stains by saying that his wife had sustained an injury while

hewing wood with the axe. That is a flimsy explanation

because were it true, it is difficult to understand why such

great care was taken to conceal the axe blade.

On January 21.1974- a burnt shirt piece, article 170,

was recovered in consequence of information given by accused

No. 9. The Panchnama, Ex. 87-A, and the evidence of the

Panch Munjaba (P.W. 25) show that the accused dug out the

shirt piece from under a heap of earth lying inside his

house. Article 170 was found by the Sessions Judge to fit

squarely with the shirt sleeve, article 112, which was found

at the place of occurrence near Haribai’s dead body. The

report of the Chemical Analyser at Ex.271 shows that arti-

cles 112 and 170 bore’ identical textile and physiochemical

characteristics.

654

In our opinion, the courts below were justified in

relying upon these corroborative circumstances to connect

accused No. 9 with the murder of Haribai.

Turning to accused No. 10, an axe handle, article 169,

was recovered at his instance on January 17, 1974. The

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

Yusuf Bade Khan (P.W. 10) show that the axe handle was.

recovered from below a thorny fence in the Pardhi Wada

locality. The report of the serologist, Ex.267, shows that

there was human blood on the axe but the group of, the blood

could not be determined. It is not possible to accept the

submission of Mr. Narayan that the axe handle was recov-

ered from a place which was easily accessible to the public

because the handle was taken out after making quite some

efforts to locate it. Accused No. 10 was the author of its

concealment.

On January 8, 1974 when accused No. 10 was arrested a

turban, bush-shirt and dhoti (articles 150 to 1.52) were

seized from his person. The serologist’s report, Ex.267,

shows that human blood was detected on the bush-shirt and

the dhoti. The blood-stain. on the shirt was 0.5 cm in

diameter and the blood detected on the bush-shirt and the

dhoti belonged to ’A’ group. Accused No. 10 admitted in his

examination that the shirt and the dhoti were blood-stained

but he offered an unconvincing explanation that a child of

his had bled from the nose,

The evidence of Dr. Salunke (P.W. 48) who examined

accused No. 10 on the date of his arrest shows that he had

four injuries on his person, the certificate in regard to,

which is Ex. 174. Injuries Nos. 1 and 2 were interrupted

abrasions which in the opinion of Dr. Salunke could be

caused by teeth-bite. That fits in with ’the part played by

accused No. 10, who according to Umaji’s evidence, had held

Haribai from behind by her waist. Evidently, Haribai strug-

gled to release herself in a frantic attempt to save her

life she caused the injuries to accused No. 10.

We agree with the view taken by both the Courts that the

discovery of the blood-stained axe-handle, the seizure of

clothes stained with ’A’ group blood and the teeth-bite

injuries afford adequate corroboration to Umaji’s evidence

regarding the part played by accused No. 10, in the murder

of Haribai.

As regards accused No. 11, an axe-blade (article. 167)

was recovered in consequence of information supplied by him.

The Panchanama, Ex. 84-A, and the evidence of the Panch

Mohd. Yusuf Bade Khan. (P.W. 10) show that accused No.11

led the police party and the panchas to a water tap in the

Pardhi Wada locality and dug out the axe blade which was

lying buried under a stone. The report of the Serologist,

Ex. 269, shows that human blood of ’A’ group’ was detected

on the axe blade. Taramati, according to Umaji’s evidence,

was assaulted with an axe by accused No. 11. Her clothes,

articles 142 and 143, were found to be stained with human

blood of ’A’ group.. We see no infirmity in the Pancha’s

evidence and no substance in the counsel’s contention that

the discovery of the axe-blade was foisted on the accused.

655

The discovery of the axe blade stained with human blood

of ’A’ group sufficiently corroborates the evidence of Umaji

as regards the part played by accused No. 11 in Taramati’s

murder.

Before considering the case of accused No. 12, we would

like to point out that there is satisfactory evidence to

show the presence of accused Nos. 9 to 11 at or near the

scene of offence some time before the incident. Dagdu (P.W.

5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan (P.W.

17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed

about the same either in regard to all of these accused or

some of them. Their evidence has been examined with gear

care by the learned Sessions Judge and we agree with his

assessment that except for Sant Ram, the other witnesses can

be relied up.on for affording corroboration to Umaji’s

evidence.

That leaves the case of accused No. 12 for considera-

tion. It is alleged that he held Taramati from behind

whereupon accused No. 11 gave axe-blows on her head. Tara-

mati was just a girl of 9 and the allegation that accused

No. 12 had to hold her from behind to enable accused No. 11

to assault her with an axe sounds inherently incredible. 1t

is significant that some time before the occurrence, Umaji

met accused Nos. 9,10 and 11 near the scene of offence but

not accused No. 12. The importance of this circumstance is

twofold: Firstly that accused No. 12 was not in the company

of the other three at or about the time of the incident and

secondly that Umaji’s identification of the person who held

Taramati, namely accused No. 12, becomes somewhat infirm.

There was standing crop about five feet high between the

Mala where Umaji was standing and the place where Taramati

was held. Besides, the spot where Taramati was done to

death was in a depression, which would further affect the

witness’s ability to. identify the person who. had held

Taramati. After all, Umaji had but a fleeting glimpse of

the incident and the chance of an error in identifying

accused No. 12, who w.as not seen earlier in the company of

accused Nos. 9 to 11, cannot fairly be excluded.

All the same, since Umaji has no particular reason to

implicate accused No. 12 falsely and since the Courts below

have concurrently accepted his evidence in regard to accused

No. 12 also, we must examine carefully the strenuous

submission made by Mr. Desai for the State that even as

regards accused No. 12, Umaji’s evidence is sufficiently

corroborated.

That corroboration consists of the discovery of. an

axe-handle, article 168, from the house of accused No. 12 on

January 17 1974. The Panchanama of recovery is Ex. 85-A

which is proved by the Panch Mohd. Yusuf Bade Khan, P.W.

10. It is alleged that the axe-handle was produced by

accused No. 12 from below the tin-sheet roof of his house in

Pardhi Wada. The report of the serologist, Ex. 269, says

that there was human blood of ’A’ group on the axehandle.

We find it impossible to place any. reliance on the

discovery of the axe-handle for the following reasons:

Though accused No. 12 was

656

arrested on January 11, 1974 his house was searched on

January 7, 1974 in connection with the murders of Haribai

and her daughters which had taken place on January 4,

1974. That search is borne out by the Panchanama, Ex. 221.

On January 6, 1974 accused No. 12 figured in an identifica-

tion parade which was arranged in order to ascertain if the

Dog squad could afford assistance in fixing the identity of

the culprits. The evidence of the Senior Dog Master, Ram-

chandra (P.W. 52), shows that a female dog called Mala

sniffed her suspicion at accused No. 12. With the clue

provided by the Dog Squad on the 6th, the house of accused

No. 12 was searched on the 7th. That house consists of

one room only. The Panchanama shows that the axe-handle was

not in any manner concealed under the tin-sheet. It was

lying openly, visible to the naked eye, so that he who cared

could easily see it. It is then strange that it was not

found on the 7th itself. There is also a serious dis-

crepancy in the evidence of the two Panehas, Mohd. Yusuf,

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

Whereas according to the former, accused No. 12 said that he

had concealed the axe,handle below the tin-sheet of the

roof, according to the latter the information which accused

No. 12 gave was that he had kept the handle below a stone

inside his house. Coupled with the circumstance which

emerges from the evidence of Panch Sheikh Imam that there is

no door to the room from which the axe-handle was pro-

duced, the evidence in regard to. the recovery of the axe-

handle becomes manifestly suspect. These infirmities in the

recovery of the axe-handle failed to evoke the attention of

the High Court. The Sessions Court too missed their impact

on the point at issue.

The seizure of a blood-stained’ Dhoti from the person of

accused No. 12 at the time of h,is arrest, even if the blood

belonged to ’A’ group, is not of a kind which, in the

context of the various circumstances referred to above, can

be accepted as safely of sufficiently corroborative of

Umaji’s evidence. This is particularly so because, at the

very threshold, it is doubtful if Umaji could identify

accused No. 12.

The evidence regarding the presence of accused No. 12

in the fields roundabout the scene of offence on the after-

noon of the day of incident cannot connect him with the

crime. And the retracted confession of the accused, like

its counterparts, has to be excluded from consideration

altogether because of the cavalier fashion in which the

Sub-Divisional Magistrate recorded the various confessions.

Accused No. 12 is thus entitled to an acquittal for the

reason that the prosecution has failed to prove its case

against him beyond a reasonable doubt.

Learned counsel for accused Nos. 3, 9, 10 and 11 whose

conviction under s. 302 read with s. 34 has been affirmed by

us and who stand sentenced to death, contend that the ac-

cused were not heard on the question of sentence and there-

fore the sentence is not according to law. It is urged that

we should remand the appeal of accused Nos. 9, 10 and 11

to the High Court which sentenced them to death,

657

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

sentenced him to death, in order to enable these accused to

make their contentions as to why they should not be sen-

tenced to death even though they have been convicted under

s. 302 of the Penal Code. In support of this argument

reliance is placed on a decision of this Court in Santa

Singh v. State of Punjab(1).

In Santa Singh(1), the Sessions Judge, after pronouncing

the judgment convicting the appellant for a double murder,

did not give him opportunity to be heard on the question of

sentence. He pronounced the appellant guilty of murder

and, as a part of a single judgment, imposed the sentence of

death. The High Court confirmed the conviction and the

sentence of death. In appeal, it was held by this Court

(Bhagwati and Fazal Ali, JJ) that the provisions of s. 235

of the Code of Criminal Procedure, 1973, which are clear and

explicit, require that the Court must in the first instance

deliver a judgment of acquitting the accused and if the

accused be convicted, he must be given an opportunity to

be heard in regard to the sentence. Holding that the provi-

sions of s. 235 are mandatory in character, the Court set

aside the sentence of death and remanded the case to. the

Sessions Court with the direction that it should pass an

appropriate sentence after giving to the appellant an oppor-

tunity to be heard on the question of sentence.

Section 235 of the Criminal Procedure Code,

1973 reads thus:

"235(1) After heating arguments and

points of law (if any), the Judge shall give a

judgment in the case.

(2). If the accused is convicted, the

Judge shall, unless he proceeds in accordance

with the provisions of Section 360, hear the

accused on the question of sentence, and then

pass sentence on him according to law."

The imperative language of sub-section (2) leaves no.

room for doubt that after recording the finding of guilt and

the order of conviction, the Court is under an obligation

to hear the accused on the question of sentence unless it

releases him on probation of good conduct or after admo-

nition under s. 360. The right to be heard on the question

of sentence has a beneficial purpose, for a variety of facts

and considerations bearing on the sentence can, in the

exercise of that right, be placed before the Court which the

accused, prior to the enactment of the Code of 1973, had no.

opportunity to do. The social compulsions, the pressure of

poverty, the retributive instinct to seek an extra-legal

remedy to a sense of being wronged, the lack of means to be

educated in the difficult art of an honest living, the

parentage, the heredity--all these and similar other con-

siderations can, hopefully and legitimately, tilt the scales

on the propriety of sentence. The mandate of s. 235(2)

must, therefore, be obeyed in its letter and spirit.

(1) [1976] 4 S.C.C. 190.

658

But we are unable to read the judgment in Santa Singh

(supra) as laying down that the failure on the part of the

Court, which convicts an accused, to ’hear him on the ques-

tion of sentence must necessarily entail a remand to that

Court in order to afford to the accused an opportunity to.

be heard on the question of sentence. The Court, on con-

victing an accused, must unquestionably hear him on the

question of sentence. But if, for any reason, it omits to

do so and the accused makes a grievance of it in the higher

court, it would be open to that Court to remedy the breach

by giving a hearing to the accused on the question of sen-

tence. That opportunity has to be real and effective, which

means that the accused must be permitted to adduce before

the Court all the data which he desires to adduce on the

question of sentence. The accused may exercise that right

either by instructing his counsel to make oral submissions

to the Court or he may, on affidavit or otherwise, place in

writing before the Court whatever he desires to place before

it on the question of sentence. The Court may, in appropri-

ate cases, have to adjourn the matter in order to give to

the accused sufficient time to produce the necessary data

and to make his contentions on the question of sentence.

That, perhaps, must inevitably happen where the conviction

is recorded for the first time by a higher court.

Bhagwati J. has observed in his judgment that care ought

to be taken to ensure that the opportunity of a hearing on

the question of sentence is not abused and turned into an

instrument for unduly protracting the proceedings. The

material on which the accused proposes to rely may there-

fore, according to the learned Judge, be placed before the

Court by means of an affidavit. Fazal Ali, J., also ob-

serves that the courts must be vigilant to exercise proper

control over their proceedings, that the accused must not be

permitted to adopt dilatory tactics under the cover of the

new right and that what s. 235(2) contemplates is a short

and simple opportunity to place the necessary material

before the Court. These observations show that for a proper

and effective implementation of the provision contained

in s. 235(2), it is not always necessary to remand the

matter to the court which has recorded the conviction. The

fact that in Santa Singh (supra) this Court remanded the

matter to the Sessions Court does not spell out ratio of the

judgment to be that in every such case there has to be a

remand. Remand is an exception, not the rule, and ought

therefore to be avoided as far as possible in the interests

of expeditious, though fair disposal of cases.

After counsel for accused Nos. 3, 9, 10 and 11 raised an

objection before us that the sentence of death was imposed

upon the accused without hearing them as required by s.

235(2) of the code, we granted to them liberty to produce

before us such material as they desired and to make such

contentions as they thought necessary on the question of

sentence. Accordingly, counsel made their oral submissions

before us on the question of sentence and they also flied

the relevant material before us showing why we should not

uphold the death sentence imposed on the accused.

659

That takes us to the question of sentence. For the

offence under s. 302, it is no longer obligatory to impose

the sentence of death. Prior to the amendment of s. 367(5)

of the Code of Criminal Procedure, 1898 by Act 26 of 1955,

the normal sentence for murder was death and the Court had

to record its reasons for imposing the lesser sentence of

life imprisonment. The obligation to record reasons for

imposing the lesser penalty was deleted by Act 26 of 1955,

so that Courts became free to award either the sentence of

life imprisonment or the sentence of death, depending on the

circumstances of each individual case. Section 354(3) of

the Code of 1973 provides that when the conviction is for an

offence punishable with death or, in the alternative, with

imprisonment for life or imprisonment for a term of years,

the judgment shall state the reasons for the sentence award-

ed, and in the case of sentence of death, the special rea-

sons for awarding that sentence. The legislative history of

the sentencing provisions and the explicit language of s.

354(3) show that capital punishment can be awarded for the

offence of murder, only if there are special reasons for

doing so. All murders are inhuman, some only more so than

others.

Having considered the matter in all its aspects--penal,

juristic and sociological--and having given our most anxious

consideration to the problem, we are of the opinion that

accused Nos. 3, 9, 10 and 11 deserve the extreme penalty of

law and that there is no justification for interfering with

the sentence of death imposed upon them.

Accused No. 3 put an end to four innocent lives, three small

girls ten years of age and a woman in her thirties. Accused

Nos. 10 and 11 committed the murders of Haribai, her nine-

year old daughter and her infant child. The victims had

given no cause for the’ atrocities perpetrated on them.

They were killed as a child kills flies. And the brutality

accompanying the manner of killing defies an adequate

description. The luring of small girls, the gagging, the

cutting of their private parts, the ruthless defiling in

order to prevent identification of the victims and the

mysterious motive for the murders call for but one sentence.

Nothing short of the death sentence can atone for such

callous and calculated transgression of law. Morbid pity

can have no place in the assessment of murders which, in

many respects. will remain unparalleled in the annals of

crime. Accordingly, we confirm the death sentence imposed on

accused Nos. 3, 9, 10 and 11.

The overall result is as follows:

(1 ) We uphold the acquittal of accused

Nos. 1 and 2 and dismiss Criminal Appeal No.

441 of 1976 filed by the State of Maharashtra.

Both the two Accused who are in jail shall be

released.

(2) We uphold the conviction of ac-

cused No. 3 under s.. 302 read with S. 34 of

the Penal Code and the sentence Of death

imposed upon him. Criminal Appeal No. 1438 of

1976 filed by him is accordingly dismissed

(3) We uphold the conviction of

accused Nos. 9, 10 and 11 under s. 302 read

with s. 34 of the Penal Code and

3--707SCI/77

660

the sentence of death imposed upon them. We

acquit accused No 12 by giving him the benefit

of doubt and direct that he shall be released.

Criminal Appeal No.437 of 1976 filed by ac-

cused Nos. 9 to 12 thus succeeds partly in so

far as accused No. 12 is concerned and fails

in so far as accused Nos. 9, 10 and 11 are

concerned.

Before concluding, we would like to make a few observa-

tions concerning the detection and investigation of these

crimes. It is a matter of grave concern that the police

were not able to obtain any clue whatsoever to the numerous

murders which were committed so systematically in the small

village of Manwat. The spate of those atrocities commenced

with the murder of Gayabai on November 14, 1972 and ended

with the murders of Haribai and her two daughters on January

4,, 1974. All along, a strong patrol of policemen was keep-

ing vigil in the very locality in which most of the murders

were committed. The evidence of Dy. S.P. Waghmare shows

that apart from the mobile police, fixed post patrols were

deputed to keep a close watch on the activities of all and

sundry in the area which was chosen by the murderers for

their criminal activities. Haribai and her daughters were

murdered under the very nose of the policemen. Quite a few

of them were on duty a few hundred yards away from the scene

of occurrence and yet the culprits could escape with impuni-

ty. And it is astonishing that when the three dead bodies

were lying in close proximity, the police with their trained

hawk-sight could see only one. All this hardly does any

credit to the efficiency and watchfulness of a system which

in Maharashtra has won many encomiums. Eventually Provi-

dence, and perhaps the police, persuaded Samindrabhai Pawar,

accused No. 4, to make a confessional statement on December

28, 1973 and the wheels of a baffled machine started moving

fast.

It would perhaps have been more conducive to greater

efficiency if an unduly large number of senior police offi-

cers were not commissioned for the investigational work..No

one seems to have assumed an overall responsibility for

investigation and so many of them working together spoiled

the broth like so many cooks.

It is plain common-sense that suspects are seldom will-

ing to furnish a quick and correct clue to the crimes for

which they are arrested. A certain amount of coaxing and

promising has inevitably to be done in order to persuade the

accused to disclose at least the outlines of the crime. But

the use of strong methods of investigation, apart from

raising problems concerning the observance of decency in

public affairs and of human dignity, is fraught with the

danger that the very process by which evidence is collected

may become suspect and fail to inspire confidence. Ganpat,

the approver, was driven to admit that he was tortured while

in the lock-up and we have serious doubts whether the injury

caused on his head was, as alleged by the police, self-

inflicted. A witness called Ramchandra also admitted that

while under interrotation the police pulled out his pig-tail

We have resisted the failing which tempts even judicially

trained minds to revolt against such methods and throw the

entire case out of hand. But we must with hopes for the

future, utter a word of warning that just as crime does not

pay

661

so shall it not pay to resort to torture of suspects and

witnesses during the course of investigation. History shows

that misuse of authority is a common human failing and,

therefore, Courts must guard against all excesses. The

police, with their wide powers, are apt to overstep their

zeal to detect crimes and are tempted to use the strong arm

against those who happen to fall under their secluded juris-

diction. That tendency and that temptation must, in the

larger interests of justice, be nipped in the bud.

GOSWAMI, J.--I am in agreement with the judgment proposed by

my brother Chandrachud which is a piece of conspicuous

clarity after marshalling and compressing a mass of evi-

dence. I also agree with the views expressed therein on the

legal questions raised in these appeals. Even so I feel

obliged to add a few lines.

I would particularly emphasise that there is no mandatory

direction for remanding any case in Santa Singh v. The State

of Punjab(1) nor is remand the inevitable recipe of section

235(2) Code of Criminal Procedure, 1973. Whenever an appeal

court finds that the mandate of section 235(2) Cr. P.C. for

a heating on sentence had not been complied with, it, at

once, becomes the duty of the appeal court to offer to the

accused an adequate opportunity to produce before it whatev-

er materials he chooses in whatever reasonable way possible.

Courts should avoid laws’ delay and necessarily inconsequen-

tial remands when the accused can secure full benefit of

section 235(2) Cr. P.C. even in the appeal court, in the

High Court or even in this Court. We have unanimously

adopted this very course in these appeals.

Treasure-trove legend survives generations. There had

been many casualties in honest exploits to the peaks of gold

bars. Gold was not found So was treasure-trove not located

in spite of the notorious Manwat murders.

The gruesome story revealed in these cases beggars

description of the limit of human credulity, horrid avarice

and unconcerned and heartless execution of evil ends. I am

not on that. The final curtain, so far as legal process

goes is drawn.

Conviction in these cases does no credit to the police,

nor to the hoodwinking demonstration of flashy ’dog-squad’.

Murders committed. one ’after the other in series, under the

very nose of a publicised ring of a camping platoon of

police personnel widely cordoning the entire scene of occur-

rence for months with check-posts, for recording names of

passers-by, may secure banner in newspapers, but no laurels

for the police.

But for the blazing lust for life of the confessing

approvers supplying the infrastructure for the prosecution

case which, we find, is corroborated in material particulars

by independent testimony so far as some of the appellants

are concerned, there is much more to be. desired in an

investigation of such awe-inspiring cases. The archaic

attempt to. secure confessions by hook or by crook seems to

be the be all and end all of the

(1) [1976] (4) SCC 190.

662

police investigation. The investigation does not reflect

any imaginative drive on the part of the police in a crime

of this magnitude.

To mention one item only, even Balabhau Lad, a close

neighbouring relative of the deceased Haribai and master of

Umaji, the star witness against accused 9 to 12, has not

been produced in this case to corroborate the sudden and

instant disappearance of Umaji for four days from the very

scene of murder, being his master’s field, by leaving his

horse tethered therein. Next having got blood stains in the

articles produced by the accused there was no attempt to

ascertain the blood group of the accused’s family members.

In fact accused No. 9 did tell the court that the blood

stains in the exhibit were from his wife’s injury from the

axe. Again, accused No. 10 said that the blood stains on

the exhibited clothes were from his child’s bleeding nose.

We have disbelieved the pleas of the accused but that does

not redound to the credit of the quality of the investiga-

tion of these dastardly crimes.

It is distressing that when three murders took place on

the 4th of January, 1974, and all the dead bodies were lying

at the same field, only one dead body was located and the

other two. were not traced until next morning. If the

murderers could escape from the barricaded area in broad day

light by throwing dust in the eyes of the police, what would

have happened if the other two dead bodies were removed

during the night beyond trace; ? Is this investigation with

a ’dog-squad’ at command ? A dog is its master’s voice.

Did the police play the true master ?

The police. should remember that confession may not

always be a short-cut to solution. Instead of trying to

"start" from a confession they should strive to "arrive" at

it. Else, when they are busy on this short route to suc-

cess, good evidence may disappear due to inattention to the

real clues. Once a confession is obtained, there is often

flagging of zeal for a full and thorough investigation with

a view to establish the case de hors the confession. It is

often a sad experience to find that on the confession,

later, being inadmissible for one reason or other the case

founders in court.

It is an irony that a Sub-Divisional Magistrate holding

executive charge of a Sub-Division was completely ignorant

of the duties imposed on him under section 164, Code of

Criminal Procedure and we had to reject the confessions.

Under the new Code such powers are exercised by a Metropoli-

tan or Judicial Magistrate. The pitfalls in recording

confession may be so. disastrous that it may be of immense

value for the Magistrates to have some practical guidance

from superior officers for properly discharging their func-

tion under section 164, Cr. P.C.

Even after conclusion of the trial in a heinous case of

this magnitude, the police should be well-advised to pursue

clues and for missing links to unearth ’the yet undiscovered

guilty ones and should not rest satisfied with ’the result

of these cases. There is yet room for a wider probe into men

and matters in connection with these ghastly crimes.

663

Counsel drew our attention to a very disquieting fea-

ture in the attempt of the police to see that the accused

did not get the assistance of the local Bar. The suggestion

has of course been denied by the police officer. If there

is any truth in this unholy move for denying proper defence

to the accused, no matter how heinous the offence, it is

highly obnoxious to the notions of fair play and all that

justice stands for. Such ideas should be banished.

I hasten to add that the accused before us could not

have been better defended as has been done by the three

conscientious young counsel who impressed us with their

industry and ability.

P.H.P.

664