TMI Blog1977 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... irls and women, the clever attempt to dodge the police and then to put them on a false scent and the extreme brutality surrounding the crimes give to the case an eerie appearance. Such harrowing happenings make the task of discovering truth difficult and it is just as well to begin with Justice Vivian Bose's 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy it set aside their conviction and sentence under s. 302 read with s. 120B. There were delay on the part of the State Government in filing the appeal for enhancement of the sentence of accused Nos. 9 to 12 but the High Court condoned that delay.We are thus called upon to consider the correctness of: (1)the order of the High Court acquitting accused Nos. 1 and 2; (2) the-order of conviction of accused No. 3 under s. 302 read with s. 34 and the sentence of death imposed upon him by the Sessions Court and the High Court; and (3) the order of conviction of accused Nos. 9 to 12 under s. 302 read with s. 34. Thus, we are concerned in these appeals with accused Nos. 1 to 3 and 9 to 12 only. The hamlet of Manwat has a population of 15 thousand and is situated in. Taluka Pathri, District Parbhani, Maharashtra. 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 President of the Manwat Municipality. He purchased a house for accused No. 1 in which the two liv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 committed 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. 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Munjaba should be propitiated by offering the blood of virgin girls. Accepting that advice, accused Nos. 1 and 2 are alleged to have entered into a conspiracy with the other accused to commit the various murders. The prosecution relied inter alia on the evidence of the two approvers, Ganpat, P.W. 1, and Shanku, P.W. 2, in order to prove the charge of conspiracy against accused Nos. 1 and 2 as also for proving that various murders were committed in pursuance of that conspiracy. The learned Sessions Judge accepted the evidence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong 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 testimony of an accomplice. Therefore, though the Judge was entitled, to point out (1) [1916] 2 K.B. 2--7078CI/77 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 nevertheless convicted the prisoner, the Court would not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated. In Rameshwar v. State of Rajasthan(1) this Court observed that the branch of law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England. The only clarification made by this Court was that in cases tried by a Judge without the aid of a Jury it was necessary that the Judge should give some in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars. We will assess the evidence of the two approvers Ganpat and Shankar in the light of these principles. Ganpat Bhagoji Salve, P.W. 1, fails to cross the initial hurdle of reliability and no amount of corroboration cure the infirmities which beset his evidence. He is not a quack but a charlatan who traded on the credulous optimism of the sterile 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Conceding the ratio. of Tahsildar's() [1959] Supp. 2 S.C.R. 875) case, on. which Mr. Desai for the State Government relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of falsehood with an ounce of truth. His evidence has therefore to be left out of consideration. The other approver Shankar Gyanoba Kate, P.W. 2, has greater credibility than Ganpat. Shankar was working with 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, Sngandhabai and Nasima with accused No. 3's assistance. He implicates accused Nos. 1 and 2 by deposing that after each o[ the murders was committed, he and accused No. 3 used to go to accused No.1's house for delivering the blood and that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith what he told the Court in regard to the part played by accused Nos. 1 and 2. It is true that Shanker was under a higher obligation while deposing in the Court because as a condition of the pardon tendered to him he had to disclose the whole truth to the Court. But while assessing the value of Shankar's. evidence in so far as he implicates accused Nos. 1 and 2 we find it impossible to overlook the studied improvements which he made to involve them. Such gross departure from the earliest versions makes the story of conspiracy suspect and uninspiring. All the same, we may examine the argument advanced before us by the learned counsel for the State that Shankar'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 reliance is placed on the evidence of four witnesses--Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).. We see nothing in the evidence of these witnesses which can lend corroboration to the approver's story, that accused Nos. 1 and 2 conspired to commit the murders or that they asked Shankar and accused No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned it is enough to point out that it is entirely exculpatory and can, therefore, serve no useful purpose. Besides, the confession was retracted by accused No. 1. Along with these considerations is the circumstance that the High Court has acquitted accused Nos. 1 and 2 after a fair examination of the material relied upon by the prosecution as against them. The various reasons given by us would so that there is no justification for interfering with the conclusion to which the High Court has come. The acquittal of accused Nos. 1 and 2 has, therefore, to be confirmed. It would now be convenient to take up the ease of accused No. 3, Sopan Rambhau Salve. The allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of Sugandhabai on February 21, 1973 and of Nasima on April 13, 1973. There is no 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 approvers Ganpat (P.W. 1) and Shankar (P.W.2), the discovery of article 17 by accused No. 3, the discovery of articles 18 and 19 by approver Shankar, the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed No,. 3 the authorship of concealment has the simple answer that the English translation of the Marathi panchanama is incorrect. The original document expressly states that accused No. 3 agreed to point out the place where. he had kept the shirt pieces. The evidence of the Panch (P.W. 27) and of Dy. S.P. Waghmare (P. W. 96) is. to. the same effect. In the absence of any effective cross-examination of these witnesses, we see no substance in the contention that accused NO. 3's father, who was standing near the hut, should have been examined as a witness.It is urged that it is highly unlikely that accused No. 3 will preserve the tell-tale evidence of the crimes in the manner alleged by the prosecution. Why the accused chose to do this is difficult to know but we are not examining the evidence in the case as a Court of first instance.. The evidence in regard to the discovery is accepted as unexceptionable by the Sessions Court as well as the High Court and we are unable to characterise that view of the matter as preverse or against the weight of evidence. The recovery of art. 17 thus afford material corroboration to the part played by accused No. 3, at least in Gayabal, s murder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us High Courts in India and their importance has been recognised by this Court in Sarwan Singh v. State of Punjab(1) in which it was said that the instructions issued by the High Courts must be followed by the Magistrates while recording confessional statements. [1957] S.C.R. 953 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 confessions. He made no effort to ascertain from any of the accused whether he or she was making the confession voluntarily. 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 statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements. Considering the circumstances leading to the processional recording of the eight confessions and the abject disregard, by the Magistrate, of the provisions contained in s. 164 of the Code and of the instructions issued by the High Court, we are of the opinion that no reliance can be placed on any of the confessions. Apart from the confessions of the two approvers, all others were retracted, which further cripples their evidentiary value. Since the evidence of the approver Shankar is corroborated in material particulars by the discovery of article 17, there is no valid reason for departing from the concurrent view of the High Court and the Sessions Court that the complicity of accused No. 3. in the four murders is proved beyond a reasonable doubt. As the charge of conspiracy fails, the High Court was right in convicting accused No. 3 under s. 302 read with s. 34 of the Penal Code only. That leaves the case of accused Nos. 9 to 12 for consideration,. being the subject-matter of Criminal Appeal No. 437 of 1976 filed by them. The charge against these accused is that in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer recorded his statement.Umaji's evidence having been concurrently accepted by the Sessions Court and the High Court, we do. not propose to undertake a fresh reappraisal of that evidence except to the extent to which the view of the Courts below is contrary to the weight of the record or is otherwise such as is impossible 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 answer. After returning to Manwat he saw his master but told him nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public because the handle was taken out after making quite some efforts to locate it. Accused No. 10 was the author of its concealment. On January 8, 1974 when accused No. 10 was arrested a turban, bush-shirt and dhoti (articles 150 to 1.52) were seized from his person. The serologist's report, Ex.267, shows that human blood was detected on the bush-shirt and the dhoti. The blood-stain. on the shirt was 0.5 cm in diameter and the blood detected on the bush-shirt and the dhoti belonged to 'A' group. Accused No. 10 admitted in his examination that the shirt and the dhoti were blood-stained but he offered an unconvincing explanation that a child of his had bled from the nose, The evidence of Dr. Salunke (P.W. 48) who examined accused No. 10 on the date of his arrest shows that he had four injuries on his person, the certificate in regard to, which is Ex. 174. Injuries Nos. 1 and 2 were interrupted abrasions which in the opinion of Dr. Salunke could be caused by teeth-bite. That fits in with 'the part played by accused No. 10, who according to Umaji's evidence, had held Haribai from behind by her waist. Evidently, Haribai struggled to release herself in a fran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herently incredible. 1t is significant that some time before the occurrence, Umaji met accused Nos. 9,10 and 11 near the scene of offence but not accused No. 12. The importance of this circumstance is twofold: Firstly that accused No. 12 was not in the company of the other three at or about the time of the incident and secondly that Umaji's identification of the person who held Taramati, namely accused No. 12, becomes somewhat infirm. There was standing crop about five feet high between the Mala where Umaji was standing and the place where Taramati was held. Besides, the spot where Taramati was done to death was in a depression, which would further affect the witness's ability to. identify the person who. had held Taramati. After all, Umaji had but a fleeting glimpse of the incident and the chance of an error in identifying accused No. 12, who w.as not seen earlier in the company of accused Nos. 9 to 11, cannot fairly be excluded. All the same, since Umaji has no particular reason to implicate accused No. 12 falsely and since the Courts below have concurrently accepted his evidence in regard to accused No. 12 also, we must examine carefully the strenuous submission made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Court too missed their impact on the point at issue. The seizure of a blood-stained' Dhoti from the person of accused No. 12 at the time of h,is arrest, even if the blood belonged to 'A' group, is not of a kind which, in the context of the various circumstances referred to above, can be accepted as safely of sufficiently corroborative of Umaji's evidence. This is particularly so because, at the very threshold, it is doubtful if Umaji could identify accused No. 12. The evidence regarding the presence of accused No. 12 in the fields roundabout the scene of offence on the afternoon of the day of incident cannot connect him with the crime. And the retracted confession of the accused, like its counterparts, has to be excluded from consideration altogether because of the cavalier fashion in which the Sub-Divisional Magistrate recorded the various confessions. Accused No. 12 is thus entitled to an acquittal for the reason that the prosecution has failed to prove its case against him beyond a reasonable doubt. Learned counsel for accused Nos. 3, 9, 10 and 11 whose conviction under s. 302 read with s. 34 has been affirmed by us and who stand sentenced to death, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of s. 235(2) must, therefore, be obeyed in its letter and spirit. (1) [1976] 4 S.C.C. 190. 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 question 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 convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. That takes us to the question of sentence. For the offence under s. 302, it is no longer obligatory to impose the sentence of death. Prior to the amendment of s. 367(5) of the Code of Criminal Procedure, 1898 by Act 26 of 1955, the normal sentence for murder was death and the Court had to record its reasons for imposing the lesser sentence of life imprisonment. The obligation to record reasons for imposing the lesser penalty was deleted by Act 26 of 1955, so that Courts became free to award either the sentence of life imprisonment or the sentence of death, depending on the circumstances of each individual case. Section 354(3) of the Code of 1973 provides that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by accused 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 observations 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 keeping vigil in the very locality in which most of the murders were committed. The evidence of Dy. S.P. Waghmare shows that apart from the mobile police, fixed post patrols were deputed to keep a close watch on the activities of all and sundry in the area which was chosen by the murderers for their criminal activities. Haribai and her daughters were murdered under the very nose of the policemen. Quite a few of them were on duty a few hundred yards away from the scene of occurrence and yet the culprits could escape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 evidence. I also agree with the views expressed therein on the legal questions raised in these appeals. Even so I feel obliged to add a few lines. I would particularly emphasise that there is no mandatory direction for remanding any case in Santa Singh v. The State of Punjab([1976] (4) SCC 190) nor is remand the inevitable recipe of section 235(2) Code of Criminal Procedure, 1973. Whenever an appeal court finds that the mandate of section 235(2) Cr. P.C. for a heating on sentence had not been complied with, it, at once, becomes the duty of the appeal court to offer to the accused an adequate opportunity to produce before it whatever materials he chooses in whatever reasonable way possible. Courts should avoid laws' delay and necessarily inconsequential remands when the accused can secure full benefit of section 235(2)Cr. P.C. even in the appeal court, in the High Court or even in this Court. We have unanimously adopted this very course in these appeals. Treasure-trove legen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 success, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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