N Crl A Nos 437  438 of 1976
Appeals by Special Leave from the Judgment and Order dated the 8910 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 8910 3 1976 of the Bombay High Court in Criminal Appeal No 18 of 1976
P Narayan BG Kolse Patil BS Bhonde and VN Ganpule for the appellants in Crl
A Nos
437 438 and for respondent in Crl
A 44176
V section Desai PP Hudlekar and MN Shroff for respond ents in Crl
Appeal Nos
437 438 and for the appellant in Crl
A No 44176
The Judgment of YV Chandrachud and PN Sitinghal JJ was delivered by Chandrachud J PK 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 section 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 Nos7 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
Nos1 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 andcon firmed his conviction under section 302 read with section 34 as also the sentence of death imposed upon him
The conviction and sentence of accused No 3 under section 302 read with s120B was set aside by the  High Court in view of its finding that the prosecution had failed to establish the chargeof con spiracy
High court dismissed the State s appeal against the acquittal of accused Nos4 and 5 but it allowed the appeal fliedby the State for enhancement of the sentence of life imprisonment imposed on accused Nos 9 to 12
High Court enhanced their sentence to death under section 302 read with 8 34 but consistently with its finding on the charge of conspiracy it set aside their conviction and sentence under section 302 read with section 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 1the order of the High Court acquitting accused Nos 1 and 2 2 the order of conviction of accused No 3 under section 302 read with section 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 section 302 read with section 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 wadawhich 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 PW 1
Accepting Ganpat s advice accused Nos 1 2 34 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 PW2
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 PW 1 and Shanku PW 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 section 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 section 133 and illustration b to s114 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 vs Baskerville1 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 2 7078CI77 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 vs State of Rajasthan1 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 vs The Kinga the Privy Council after noticing section 133 and illustration b to section 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 vs Basawan 1  2 76 IA 147
645 Singh1 Hari Charan Kurmi vs State of Bihar2 Haroon Haji Abdulla vs State of Maharashtraa and Ravinder Singh vs State of Haryana4
In Hari Charan2 Gajendragadkar CJ speaking for a five Judge Bench observed that the testimony of an accomplice is evidence under section 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 PW 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 No3 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  2  3  4  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 No1 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 vs State of Punjab1 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 s2 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 PW 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 No1 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 2 1959 Supp
2 SCR 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 section 164 of the Code of Criminal Procedure did he say that he had gone to accused No1 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 section 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 section 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 PW 19 Sakharam PW 29 Ramchandra PW 30 and Kachru PW 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 No1 s meno pause
Nor indeed is the evidence of PWs 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 exhibit 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 exhibit 108 made by accused No 1 Rukhmam
That confes sion was recorded by a Sub Divisional Magistrate Devidas Sakharam Pawar PW 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 PW 1 and Shankar PW2 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 willgive to him and accused No3 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 exhibit 127 is dated January 2 1974 and is proved by the Pancha Vithalrai Takankhar PW 27
The report of the serologist which is at exhibit 312 shows that there were several blood stains on the shirt pieces ranging from 01 cm
to 05 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 PW 27 and of Dy
SP Waghmare P W 96 is
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 article 17 thus afford material corroboration to the part played by accused No 3 at least in Gayabal s murder
The discovery of the blade article 18 and the undervest article 19 at the instance of the approver affords no cor roboration as against accused No 3
Nor indeed can the recovery of the bowl article 20 and the bottle article 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 exhibit 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 section 24 of the Indian Evidence Act
Section 164 of the Code prescribes the mode of recording confession al statements
Acting under section 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 vs State of Punjab1 in which it was said that the instruc tions issued by the High Courts must be followed by the Magistrates while recording confessional statements
 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 section 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 section 1643 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 sections 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 confesson 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 section 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 section 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 section 302 read with section 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 12 years
The Sessions Court convicted these accused under section 302 read with sections 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 section 302 read with section 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 PW 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
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 No9 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 exhibit 91 A which is proved by the Panch Sheikh Imam PW 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 exhibit 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 211974 a burnt shirt piece article 170 was recovered in consequence of information given by accused No 9
The Panchnama exhibit 87 A and the evidence of the Panch Munjaba PW 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 Ex271 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 exhibit 86 A and the evidence of the Panch Mohd Yusuf Bade Khan PW 10 show that the axe handle was
recovered from below a thorny fence in the Pardhi Wada locality
The report of the serologist Ex267 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 152 were seized from his person
The serologist s report Ex267 shows that human blood was detected on the bush shirt and the dhoti
The blood stain
on the shirt was 05 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 PW 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 exhibit 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 exhibit 84 A and the evidence of the Panch Mohd Yusuf Bade Khan
PW 10 show that accused No11 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 exhibit 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 PW 5 Bhanudas PW 14 Sitaram PW 16 Narayan PW 17 Baliram PW 18 and Santram PW 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 upon 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
910 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 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 exhibit 85 A which is proved by the Panch Mohd Yusuf Bade Khan PW 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 exhibit 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 exhibit 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 PW 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 PW 10 and Sheikh Imam PW 11 regarding the discovery
Whereas according to the former accused No 12 said that he had concealed the axehandle 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 his 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 section 302 read with section 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 section 302 of the Penal Code
In support of this argument reliance is placed on a decision of this Court in Santa Singh vs State of Punjab1
In Santa Singh1 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 section 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 section 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 2351 After heating arguments and points of law if any the Judge shall give a judgment in the case
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 section 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 section 2352 must therefore be obeyed in its letter and spirit
1 658 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 section 2352 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 section 2352 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 section 2352 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 section 302 it is no longer obligatory to impose the sentence of death
Prior to the amendment of section 3675 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 3543 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 section 3543 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 section 302 read with section 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 section 302 read with section 34 of the Penal Code and 3 707SCI77 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 No437 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
SP 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 vs The State of Punjab1 nor is remand the inevitable recipe of section 2352 Code of Criminal Procedure 1973
Whenever an appeal court finds that the mandate of section 2352 Cr PC 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 2352 Cr
PC 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 1 662 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
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


Summary:
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 helpget a child
Accused No1 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 section 302 read with section 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 section 302 read with section 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 1s 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 section 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 section 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 section 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 isa 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 vs Baskerville 19161 2 KB 653 Rameshwar vs State of Rajasthan   Bhuboni Saku vs The King 76 IA 147 The State of Bihar vs Basawan Singh  and Ravinder Singh vs State of Haryana  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 vs State of Punjab 1970 2 SCC 733 relied on
Tahsildar s case 1959 Supp
2 SCR 875 distin guished
5 The failure to comply with section 1643 Cr
PC 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 sections 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 section 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 section 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 section 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 vs State of Punjab  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 section 2352 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 vs State of Punjab  distinguished
GOSWAMI I Concurring  Whenever an appeal court finds that the mandate of section 2352 Cr PC 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 section 235 2 Cr
PC in the appeal court
661 C D