TMI Blog2000 (5) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... division bench of the High Court of Bombay, Aurangabad Bench (VK Barde and JA Patil, JJ) extended benefit of doubt which they entertained and set all the accused free. This is the appeal which the State of Maharashtra has filed by Special Leave in challenge of the order of acquittal. Sri Satish Chandra B.Subrik learned counsel who entered appearance for the accused reported to us that the first accused (Dami Gopi Nath) died during the pendency of this appeal and hence the appeal as against him can be treated as abated. The remaining three respondents are A2- Gangadhar Gitaram Kotka @ Guruji, A3-Mukinda Anna Thorat and A4 Dhananjaya @ Balu Joshi. It is convenient for us to refer to them in the rank as they were arraigned as accused in the trial court. The events narrated in this case have the silhoutte of a crime thriller. Mystery hovered around Chanda village in Newasa Taluk (Ahmadnagar district in Maharashtra) over the sudden disappearances of children one after the other. Horror struck the minds of the villagers when cadavers of the children were recovered one after another from a canal which flowed through Newasa. The episodes started on 4.3.1992 when a little girl by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce but on both occasions Sagar wriggled out from his grip and ran off. The first attempt took place in February 1993 and second was in 1995. The boy told his father PW30 Ramakant about it but the latter did not take it as a matter of serious implication to be reported to any authorities. But later when things crystallized into larger dimensions PW30 felt the need to bring it to the notice of the police. A1 Damu Gopi Nath was arrested on 26.2.1995 and with his interrogation the police could make a break-through regarding the mysterious disappearances and death of the children. Arrests of the remaining three accused were followed swiftly and thereafter investigation progressed to a considerable extent. Certain articles were recovered consequent upon the information elicited from the accused and such recovery threw further light on the multiple infanticides. A confession was recorded by Ms. Anjali Apte, a Judicial Magistrate, First Class on 26.5.1995 and it became the sheet-anchor of the prosecution matrix. The confession is marked by the prosecution as Ex.88. Narration of the prosecution case would be incomplete without giving at least a summary of what has been recorded by PW1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inda Thorat(A-3) to take up the knife and inflict the cut. Strictly adhering to the said direction, Mukinda Throat(A-3) chopped the penis of the child off and collected the blood in a pitcher. Thereafter, a heavy blow was inflicted on the head of the boy with a club and Devidas died instanteously. His body was also disposed of in the canal. Almost one year elapsed thereafter and the treasure hunters wanted to try once again to get Sagar(PW30). On 10.2.95, Balu Joshi(A-4) went to the school where that boy was studying and he took the boy to some distance by offering sweets to be purchased But somehow, Sagar did not bite the bait and hence the child ran away from Balu Joshi(A-4). Three days after, Damu Gopinath(A-1) was directed to procure another boy by name Dipak Waware. Balu Joshi(A-4) went prowling for that boy and succeeded in abducting him on 15.2.95. As it was a full moon night, A1 to A3 bathed him first and took him out of the room for exposing his penis to moonrays. Damu Gopinath(A-1) commanded Mukinda Thorat(A-3) to cut the earlobes of the boy first and then to chop down his penis and the commands were implicitly obeyed. After collecting his blood a heavy blow was giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lence. 3. PW 19 (Mrs. Anjali Apte) was a Judicial Magistrate at Ahmednagar, whereas, there was a Judicial Magistrate First Class at Newasa itself. As the accused was locked up in the Sub-Jail at Newasa, there is no explanation why a magistrate belonging to a distant place was asked to record the confession, in preference to a magistrate at a near place. 4. The Investigating Officer (PW42) has not explained how he knew that Balu Joshi(A-4) was willing to make a confession to him. Learned judges draw an inference like the following:- If the circumstance, that the Police Station is adjacent to Sub-Jail, Newasa, is taken into consideration, then an inference can very well be drawn that nobody but Police contacted Balu Joshi(A-4) and Police informed mr. Suryawanshi(PW 44) that the accused was willing to make confessional statement. We have considered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facia fragile. Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court regarding that aspect. The division bench has erroneously understood the ratio laid down by this court in Kashmira Singh vs. State of Madhya Pradesh [AIR 1952 SC 159]. The portion of the decision extracted by the division bench in the impugned judgment was the same as this court has quoted in State of Gujarat vs. Subamiya Deshmohmed [1992 (1) SCC 473]. The following is that portion: The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. In cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest of A4 in connection with abducting and killing of children, that he and the other elder members of his family realised how narrowly their child escaped. The unrealistic approach made by the Division Bench of the High Court to the evidence of PW 30 and PW31 can be seen even by a glance through the observation made by the learned judges which is extracted below: Sagar is stating about the instances which took place, according to him, when he was of 5 or 6 years of age. The instances by themselves are so minor that anybody, in ordinary course, being of that age, would not remember the same even by the end of the day on which the incident took place. Trying to find corroboration to the deposition of Sagar (PW31) from the deposition of Ramakant (PW30) is a futile exercise. For the boy the said instances might have been very minor not to keep them alive in memory even till evening of that day. But when he was told later of the danger he escaped from, that minor incident would winch to the surface of his mood. This is how human mind works and mind of a child is no exception to the process. For the parents of the boy the two episodes could not have created any impact at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation caused on the penis of the child, an injury on the back of his head. If the latter alone was noticed by PW 26 perhaps one could have entertained the doubt that the death of the child could as well be accidental. But the presence of the other injuries on the dead body, would lead any sensible person to the conclusion that the child was done to death and it is no matter that a post-mortem examination was not conducted on the dead body. When A2-Guruji was arrested and interrogated, he stated to PW44-Investigating Officer regarding a Kalash (pitcher) which was recovered by PW44-Investigating Officer from the house of A2-Guruji. What is significant about the recovery is that when chemical test was made on the pitcher, blood was found sticking on the outer side of the vessel. Of course, the chemical analyst could not determine the origin of the blood as it was disintegrated by that time. But the learned Judges of the High Court did not attach any value to the circumstance on that sole reason. At the first blush, the approach of the High Court may appear to be sound. But when we considered the answer which A2-Guruji had given to the questions put on him under Section 313 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered . But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle. How the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficulty whatsoever. For using Exh. 88 as against A2 Guruji and A3 Mukinda Thorat, there is a constraint. Section 30 of the Indian Evidence Act permits only a limited use of the confession as against a co-accused to whom a major role is ascribed by the confessor. It is well settled that the confession made by one accused can be used against the co-accused even when the other conditions under Section 30 are satisfied only for the purpose of corroboration of other evidence. But this aspect is not sufficient to end the travails of A2 Guruji and A3 Mukinda Thorat in this case. One of the offences alleged against all the accused is criminal conspiracy under Section 120(B) of the Indian Penal Code. Section 10 of the Evidence Act falls within Chapter 2 which deals with relevancy of facts . That Section renders anything said, done or written by anyone of the conspirators in reference to their common intention as a relevant fact, not only as against each of the conspirators but for proving the existence of the conspiracy itself. Further, the said fact can be used for showing that a particular person was a party to the conspiracy. The only condition for application of the rule in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that confession referring to what A1 Damu Gopinath and A3 Mukinda Thorat have said and done in reference to the common intention of the conspirators are thus usable under Section 10 of the Evidence Act as against those two accused as well, in the same manner in which they are usable against A4 Damu Joshi himself. The net result is, the circumstances in this case are sufficient to establish that there was criminal conspiracy to abduct and slay five little children in which the four accused persons were the conspirators and further that abductions of four children and killing of three of them were carried out as sequel to the said conspiracy. There is no escape for them from conviction of the offences found against them by the Sessions Court. The Division Bench of the High Court has gone gravely erroneous in side-stepping everyone of the circumstances established by the prosecution. Criminal justice became the unfortunate casualty as a consequence of the unwarranted interference made by the High Court with a well-considered conclusion arrived at by the trial court. By acquitting the accused in a case of this nature, despite so much of sturdy and reliable circumstances, the judi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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