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PETITIONER: DAGDU & OTHERS ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT19/04/1977

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. SHINGAL, P.N.

CITATION:  1977 AIR 1579            1977 SCR  (3) 636  1977 SCC  (3)  68  CITATOR INFO :  RF         1977 SC1936  (39)  D          1988 SC1831  (119)  RF         1992 SC1689  (7)

ACT:             Evidence  Act 1972--Sections 114 illustration  (b)   and         133--Accomplice     evidence,    whether     a     competent         witness--Whether  conviction can be based on  uncorroborated         evidence of an accomplice--Appreciation--Rule of  corrobora-         tion---Presumption by courts.            Criminal  Procedure Code 1989--Sections 163, 164,  367(5)         and  554--Confessional statements--Criminal Manual  1960  of         Bombay  High  Court--Para 18 --Failure to comply  with  Sec.         164(3)  and  High  Court circulars  if  renders  confessions         inadmissible in evidence--Evidence Act, Section 29.             Criminal Procedure Code 1973-- Sections 235,  354--Hear-         ing  accused on the question of  sentence--If  mandatory--If         appellate  court  can give hearing on failure by  the  trial         court.

HEADNOTE:             Accused,  No.  1 though in her thirties  had  entered  a         period  of  premature menopause.  She was anxious to  get  a         child  which  could only happen if her menstrual  cycle  was         restored.  She used to consult quacks and Mantriks in  order         to  help.get a child. Accused No.1’s mother  was  accredited         with  sixth  sense in the matter of  discovery  of  treasure         trove.   She had oracled that a treasure trove lay buried  I         in  accused No. 1’s house underneath the Pimpal  tree.   The         Pimpal  tree is believed to be the haunt of Munjaba, who  is         supposed  to  be  the spirit of an  unmarried  Brahmin  boy.         Accused  NOs. 1 and 2 consulted quacks who  prescribed  that         virgins  should  be offered as sacrifice to Munjaba  and  to         propitiato  the  deity, blood from their  private  parts  be         sprinkled  on the food offered by way of  ’Naivedya’.   Five         small girls about 10 years of age, a year old infant and.  4         women in their  mid-thirties  were found  murdered   between         14-11-1972  and 4-1-1974 in a village called  Manawat.  The.         murders of these 10 females showed significant  similarities         in  pattern  and conception. The time and place  chosen  for         crime,  preference  for females as victims,  the  nature  of

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       injuries  caused to them, the strange possibility  that  the         private   parts of some of the victims were cut in order  to         extract blood, the total absence of motive for killing these         very girls and women, the clever attempt to dodge the police         and  then to put them on a false scent and the extreme  bru-         tality  surroundings  the crimes gone to the case  an  eerie         appearance.             Eighteen  persons were put up for trial before the  Ses-         sion  Judge  for the 10 murders.  Two out of  these  persons         were  tendered pardon and were examined in the case  as  ap-         provers.  Accused No. 6 died during the trial. The  Sessions         Judge  acquitted accused 4, 5, 7, 8 and 13 to  16.   Accused         No.  1 and 2 were convicted under s. 302 read with s.  120-B         and  section  34 of the Penal Code. Accused No. 1, 2  and  3         were  sentenced  to  death while accused No. 9  to  12  were         sentenced to life imprisonment.  The matter went to the High         Court  in the form of various proceedings.  The  High  Court         acquitted  accused No. 1 and 2 holding that the  offence  of         conspiracy  which formed the gravamen of the charge  against         them was not proved.  Since the charge of conspiracy  failed         and  since it was a common ground that accused No. 1  and  2         had  not  taken  any direct part in the  commission  of  the         murders,  the  High Court held that they  were  entitled  to         acquittal on all the charges.  The High Court dismissed  the         appeal filed by accused No. 3 holding that he was  responsi-         ble  for  the first 4 murders and confirmed  his  conviction         under  s. 302 read with s. 34 as also the sentence of  death         imposed  upon  him.  The High Court  dismissed  the  State’s         appeal against acquittal of accused No. 4 and 5 but  allowed         the State’s appeal and enhanced the sentence of accused  No.         9 to 12 to death.             Criminal  Appeal  No. 437 of 1976 was filed  by  accused         Nos.  9 to 12. Criminal Appeal No. 438 of 1976 was filed  by         accused No. 3 and Criminal Appeal No. 441 of 1976 was  filed         by  the  State of Maharashtra against acquittal  of  accused         1%s. 1 and 2.  The Court acquitted accused No. 12 by  giving         him  the  benefit of doubt and while  dismissing  the  three         appeals.         637             HELD:  (1)  There is no antithesis between  s.  133  and         illustration (b) to section-114 ’of the Evidence Act because         the  illustration  only says that-the-Gourt  may  presume  a         certain  state of affairs under s. 114 of the  Evidence  Act         The  Court  may presume the existence of any fact  which  it         thinks  likely  to have happened regard’ being  had  to  the         common  course of natural events, human conduct  and  public         and  private  business in their  relation-to  the  facts-of-         theparticular casee.  Under s. 133 -of the Evidence-Act,  an         accomplice  shall be acompetent wireess against  an  accused         person  and a conviction is  not  illegal merely because  it         proceeds upon-the uncorroborated testimony of an accomplice:         [643 B-C]           (2)   Though  an  accomplice is,a  competent  witness  and         though a conviction may lawfully rest upon his uncorroborat-         ed testimony yet the court is entitled to presume and may be         justified  in presuming in the generality of cases  that  no         reliance  can  be placed on the evidence  of  an  accomplice         unless  that evidence is corroborated in  material  particu-         lars, by which is meant that there has to be some  independ-         ent  evidence tending to incriminate the particular  accused         in the commission of the crime.  1643 C-D]           (3) It is hazardous as a matter of prudence to proceed  on         the  evidence a self-confessed criminal.  The risk  involved         in  convicting  accused on the testimony  of  an  accomplice         unless it is corroborated in material particulars is so real

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       and potent that what during the early development of law was         felt  to be a matter of prudence has been elevated by  judi-         cial  experience into a requirement or rule of  lave.   What         has  hardened into a rule of law is not that the  conviction         is illegal if it proceeds upon the uncorroborated  testimony         of an accomplice but that the rule of corroboration must  be         present to the mind an the Judge and that corroboration  may         be dispensed with only if the peculiar circumstances of  the         case make it safe to dispense with it. [643 ,E-F]             King  v.  Baskerville [19161 2 K.B.  653;  Rameshwar  v.         State  of Rajasthan [1952] S.C.R. 377, Bhuboni Saku  v.  The         King 76 I.A. 147; The State of Bihar v. Basawan Singh [1959]         SCR  195  and Ravinder Singh v. State of  Haryana  [1975]  3         S.C.R. 453. relied on.             (4)  It is true that an approver has real  incentive  to         speak  out his mind after tender of pardon but where  it  is         impossible  to  reconcile his earlier  statements  with  his         later assertions his evidence has to be left out of  consid-         eration.  It is one thing to say that an approvers statement         cannot  be  discarded for the mere reason that  he  did  not         disclose the entire story in his police statement and  quite         another  to  accept an approver in spite  of  contradictions         which  cast a veil of doubt over his involvement of  others.         [646 B-C]                Madan  Mohan Lal v. State of Punjab [1970]  2  S.C.C.         733 relied on.              Tahsildar’s  case  [1959] Supp. 2 S.C.R.  875,  distin-         guished.         (5) The failure to comply with section 164(3) Cr. P.C.  with         the  High  Court circulars will not render  the  confessions         inadmissible  in evidence.  Relevancy and  admissibility  of         evidence have to be determined in accordance with the provi-         sions of the Evidence Act.  [651 E]         (6) Under section 29 of the Evidence Act, if a confession-is         otherwise  relevant,  it does not become  irrelevant  merely         because, inter alia, the accused was not warned that he  was         not  bound to make it and the evidence of it might be  given         against  him.  If, therefore a confession does  not  violate         any  one of the conditions operative under ss. 24 to  28  of         the Evidence Act, it will be admissible in evidence.  But as         in respect of any other admissible evidence oral or documen-         tary,  so in the case of confessional statements  which  are         otherwise admissible. the Court has still to consider wheth-         er  they can be accepted as true. If the facts  and  circum-         stances  surrounding  the making of a confession  appear  to         cast a doubt on the veracity or voluntariness of the confes-         sion,   the Court may refuse to act upon the confession even         if it is admissible in evidence.                                           [651 E-G]             (7) A strict and faithful compliance with s. 164 of  the         Code  and  with the instructions issued by  the  High  Court         affords in a large measure the guarantee         638         that  the confession is voluntary.  The failure  to  observe         the safeguards prescribed therein are in practice calculated         to  impair the evidentiary value of the confessional  state-         ments.             In the instant case no reliance can be placed on any  of         the  contesstons. Apart from the cofessions of the  two  ap-         provers,  all others were retracted, which further  cripples         their evidentiary value.  [657 H]             (8) The imperative language of sub-section (2) leaves no         room for doubt that after recording the finding of guilt and         the  order of conviction, the. Court is under an  obligation         to  hear the accused on the question of sentence  unless  it

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       releases  him on probation of good conduct or after  admoni-         tion  under s. 360. The social compulsions, the pressure  of         poverty,  the retributive  instinct  to seek an  extra-legal         remedy to a sense of being wronged, the lack of means to  be         educated  in the difficult art of an honest firing the  par-         entage, the heredity-all these and similar  other  consider-         ations  can, hopefully and legitimately, tilt the scales  on         the  property of sentence.  The mandate of s. 235 (2)  must,         therefore, be obeyed in its letter and spirit.  [657 F-H]             (9) The failure on the part of the Court, which convicts         an accused, to hear him on the question of sentence does not         necessarily entail a remand to that Court in order to afford         to the accused an opportunity to be heard on the question of         sentence.  [658 A-B]         Santa  Singh  v. State of Punjab [1976] 4  S.C.C.  190,  ex-         plained.             (10)  The Court, on convicting an accused, must  unques-         tionably hear him on the question of sentence.  But if,  for         any reason, it omits to do so and the accused makes a griev-         ance  of  it in the higher court, it would be open  to  that         Court  to remedy the breach by giving a hearing to  the  ac-         cused on the question of sentence.  That opportunity has  to         be real and effective, which means that the accused must  be         permitted  to adduce before the Court all the data which  he         desires to adduce on the question of sentence.  The  accused         may exercise that right either by instructing his counsel to         make  oral submissions to the Court or he may, on  affidavit         or otherwise, place in writing before the Court whatever  he         desires to place before it on the question of sentence.  The         Court may, in appropriate cases, have to adjourn the  matter         order to give to the accused sufficient time to produce  the         necessary data and to make his contention on the question of         sentence.  For a proper and effective implementation of  the         provision contained in s. 235(2) it is not always  necessary         to  remand  the matter to the Court which has  recorded  the         conviction.   Remand  is  an exception, not  the  rule,  and         ought,  therefore,  be  avoided as far as  possible  in  the         interests   of expeditious, though fair disposal  of  cases.         [658 B-D, F]              Santa  Singh  v. State of Punjab [1976] 4  S.C.C.  190,         distinguished.              GOSWAMI, I. (Concurring) :--              Whenever  an  appeal court finds that  the  mandate  of         section  235(2) Cr. P.C. for a hearing on sentence  has  not         been complied with it becomes the duty of the Court to offer         to the accused an adequate opportunity to produce before  it         whatever  material  he chooses in  whatever  reasonable  way         possible.  Courts  should as far us possible  avoid  remands         when the accused can secure a full benefit of s. 235 (2) Cr.         P.C. in the appeal court.  [661 C-D]

JUDGMENT:              CRIMINAL APPELLATE JURISDICTION: Crl. A. Nos. 437 & 438         of 1976.              (Appeals  by Special Leave from the Judgment and  Order         dated  the  8/9/10-3-1976 of the Bombay High Court  in  Crl.         Appeals  Nos. 17 and 18 of 1976 and confirmation Case No.  3         of 1976) and         Crl. A. No. 441 of 1976.         639             (Appeal  by  Special Leave from the Judgment  and  Order         dated the 8/9/10-3-1976 of the Bombay High Court in Criminal         Appeal No. 18 of 1976).

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           P.  Narayan,  B.G.  Kolse Patil, B.S.  Bhonde  and  V.N.         Ganpule, for the appellants in Crl. A. Nos. 437-438 and  for         respondent in Crl. A. 441/76.             V. S. Desai, P.P. Hudlekar and M.N. Shroff for  respond-         ents  in Crl. Appeal Nos. 437-438 and for the  appellant  in         Crl. A. No. 441/76.             The Judgment of Y.V. Chandrachud and P.N. Sitinghal, JJ.         was  delivered by Chandrachud, J.  P.K. Goswami, J.  gave  a         separate opinion.             CHANDRACHUD,  J.   Five small girls about ten  years  of         age, a year, old infant and four women in their mid-thirties         were found murdered between November 14, 1972 and January 4,         1974 in a village called Manwar in Maharashtra.  The murders         of  these ten females show significant SimilaritieS in  pat-         tern  and  conception.  The time and place  chosen  for  the         crimes, the preference for females as victims, the nature of         injuries  caused to them, the strange possibility  that  the         private  parts’ of some of the victims were cut in order  to         extract blood, the total absence of motive for killing these         very girls and women, the clever attempt to dodge the police         and  then to put them on a false scent and the extreme  bru-         tality  surrounding  the crimes give to the  case  an  eerie         appearance.  Such  harrowing  happenings make  the  task  of         discovering truth difficult and it is just as well to  begin         with Justice Vivian Bose’s reminder that the shocking nature         of  the  crime ought not to induce an  instinctive  reaction         against a dispassionate scrutiny of facts and law.             We  have three appeals before us,. all by special  leave         granted  by this Court.  Criminal Appeal No. 437 of 1976  is         flied  by accused Nos. 9 to 12, Criminal Appeal No.  438  of         1976 by accused No. 3 while Criminal Appeal No. 441 of  1976         is  flied by the State of Maharashtra against the  acquittal         of accused Nos. 1 and 2.             Eighteen  persons  were  put up  for  trial  before  the         learned  Sessions judge, Parbhani for the ten  murders.  Two         out of these, Ganpat Bhagoji Salve and Shankar Gyanoba  Kate         were tendered pardon by the learned Judge and were  examined         in  the case as approvers.  Accused Nos. 6 died  during  the         trial  leaving 15 persons for consideration of the  question         whether they had conspired to commit the murders and whether         the murders were committed in pursuance of that  conspiracy.         The learned Sessions Judge acquitted accused Nos. 4, 5, 7, 8         and  13  to 16.  Accused Nos. 1 and 2 were  convicted  under         sec.  302  read with sec. 120-B and sec. 109  of  the  Penal         Code.  Accused Nos. 3 and 9 to 12 were convicted under  sec.         302  read  with sec. 120-B and sec. 34 of  the  Penal  Code.         Accused  Nos. 1, 2 and 3 were sentenced to death  while  ac-         cused Nos. 9 to 12 were sentenced to life imprisonment.             The  matter  went to the Bombay High  Court  in  various         forms.  The  seven accused who were convicted by  the  Trial         Court  filed an appeal challenging the order  of  conviction         and sentence.  The Sessions Court         640         made a reference to the High Court for confirmation of.  the         death.  sentence  imposed on-accused Nos. 1, 2  and  3.  The         State  Government flied an appeal against the  acquittal  of         accused Nos. 4 and 5.  It also filed an appeal under  s..377         of  the  Criminal  Procedure  Code,  1973  asking  that  the         sentence  of life imprisonment imposed on accused Nos. 9  to         I2  be enhanced to death.  The State not  having  challenged         the  order  of  acquittal passed by the  Sessions  Court  in         regard  to  accused Nos,7, 8 and 13 to 16,  that  order  has         become  final and was not in any form assailed before Us  as         erroneous.         The  High  court acquitted. Nos.1 and 2  holding  friar  the

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       offence  of  conspiracy  which formed the  gravamen  of  the         charge against them was not proved.  The charge of conspira-         cy  having  failed and it being common ground  that  accused         Nos.  1 and 2 had not taken any  direct part in the  commis-         sion  of  the murders, the High Court held  that  they  Were         entitled  to acquittal on all the charges.  The  High  Court         dismissed  the  appeal file flied by accused No.  3  holding         that he was responsible for the first four murders  and.con-         firmed  his conviction under s. 302 read with s. 34 as  also         the sentence of death imposed upon him. The conviction  ,and         sentence-of accused No. 3 under s. 302 read with s.120B  was         set  aside by the’ High Court in view of its  finding,  that         the  prosecution had failed to establish the charge,of  con-         spiracy. High court dismissed the State’s appeal against the         acquittal  of accused Nos.4 and 5 but it allowed the  appeal         flied.by  the State for enhancement of the sentence of  life         imprisonment  imposed  on accused Nos. 9 to  12.  The.  High         Court  enhanced  their sentence to death under s.  302  read         with 8. 34 but consistently, with its finding on the  charge         of  conspiracy  it set aside their conviction  and  sentence         under  s. 302 read with s. 120B.  There were delay  on  the"         part  of the State Government in filing the appeal  for  en-         hancement  of the sentence of accused Nos. 9 to 12  but  the         High Court condoned that delay.             We are thus called upon to consider the correctness  of:         (1)the order of the High Court acquitting accused Nos. 1 and         2; (2) the-order of conviction of accused No. 3 under s. 302         read  with s. 34 and the sentence of death imposed upon  him         by the Sessions Court and the High Court; and (3) the  order         of conviction of accused Nos. 9 to 12 under s. 302 read with         s. 34.  Thus, we are concerned in these appeals with accused         Nos. 1 to 3 and 9 to 12 only.             The hamlet of Manwat has a population of 15 thousand and         is situated in. Taluka Pathri, District Parbhani,  Maharash-         tra.  Accused No. 1, Rukhmini, was about 32. years of age at         the  relevant time and despite the pledge-to secularism,  it         has to be mentioned that she is Pardhi by caste.  She was in         the  keeping  of  accused No. 2, Uttamrao  Barshate,  a  non         pardhi, who is a man of means and was at one time the Presi-         dent  of the Manwat Municipality.  He purchased a house  for         accused No. 1 in which the two lived together and it is this         house or wada.which became ’the focal point of the conspira-         cy.  Accused  No. 2 purchased the house really in  order  to         ensure  the  exclusiveness of mistress but  it  happened  to         blaze an altogether new trial.         641         In  the house was a Pimpal tree which is believed to be  the         emblem  of  God Vishnu, the Preserver.  The Pimpal  is  also         believed  to be the haunt of Munjaba, who is supposed to  be         the  spirit of an unmarried Brahmin boy. The  Parbhani  Dis-         trict  Gazetteer says at page 115 that "some childless  per-         sons  who  trace their misfortune to the influence  of  some         evil  spirit cause the Brahminic thread  ceremony  performed         for  a  pimpal tree and a masonry platform built  round  its         trunk."             The Man want village-folk commonly believe that treasure         troves are lying buried in the town ever since the sixteenth         century  when its inhabitants fled away after the troops  of         Murtazahad  invaded the town, which was then under  the  Ni-         zamshahi of Ahmednagar.  Quite some quacks in the  periphery         of ’Manwat make their living by diagnosing where the  treas-         ure trove lies and what means to adopt for diScovering it.             Accused  No.  1, though in her thiries,  had  entered  a         period   of premature menopause.  She was anxious to  get  a         child   which could only happen if her menstrual  cycle  was

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       restored.  She used to consult quacks and mantriks who,  she         ’believed,  could  help  her get a child.  Accused  No.  2’s         mother  was ,credited with a sixth sense in the  matter  of-         discovering  treasure  troves.   ’She had  oracled  that  a’         treasure  trove lay buried in accused No. 1’s  house  under-         neath the Pimpal tree. The stage was thus set for the visits         of mountebanks to the house of accused No. 1 for the display         of their supernatural. attainments.             The  case of the prosecution is that accused Nos land  2         consulted  quacks  who  prescribed that  virgins  should  be         offered  as sacrifice to munjaba. and blood from the  irpri-         vate arts be sprinkled on the food offered by way of  Naive-         dya  to the God.  One of such quacks was Ganpat  Salve,  the         approver,  who was examined as: P.W. 1.  Accepting  Ganpat’s         advice, accused Nos. 1,, 2, 3,4  and 6 conspired  to  commit         the  murders  of  virgin girls. Ganpat  himself  joined  the         conspiracy and so did Shankar Gyanoba Kate who was a servant         of accused No. 2. Shankar, also an approver, was examined in         the case as P.W.2. Accused Nos. 5 and 7 to 16 are alleged to         have  joined  the conspiracy at a later point of  time.   In         pursuance  of  the conspiracy, ten  murders  were  committed         between November 14, 1972 and January 4, 1974.              The first four murders are alleged to have been commit-         ted  by the approver Shankar and accused No. 3,  Sopan,  who         was  also  in the employment of accused No. 2.   Gayabai,  a         girl  of  11 was murdered on November-14, 1972;  Shakila,  a         girl of 10, was murdered on December 9, 1972;.  Sugandhabai,         a woman Of 35 was murdered on February 21, 1973 and Nasima a         girl of lO was murdered on April 13, 1973.              It  is  said that the-blood from the private  parts  of         these  victims was offered to Munjaba and yet there  was  no         clue as to where  the treasure trove lay.  Gayabai,  Shakila         and  Sugandhabai  had evidently died in vain  and  therefore         Nasima, the fourth victim, was beheaded so that the  severed         head  could  be  offered. to propitiate   the   deity.  Even         Nasima’s head failed to move Munjaba’s heart.  The  treasure         trove remained undisclosed.         642             The next two murders are alleged to have been  committed         by  accused  Nos.  5 and 6.  Kalavati, a woman  of  30,  was         murdered on June 29, 1973 and Halires, a girl of 11, on July         12, 1973.  Accused No. 5 has been acquitted and the order of         acquittal  has become final. Accused No. 6 died  during  the         pendency of the trial in the Sessions Court.             The seventh murder is alleged to have been committed  by         accused  Nos.  7 and 8 when Parvatibai, aged about  35,  was         murdered  on  October 8, 1973.  These two accused  were  ac-         quired   by   the Sessions Court and the acquittal  was  not         challenged by the State.             The three last murders are alleged to have been  commit-         ted by accused Nos. 9 to 12, all at the same time.  Haribai,         aged 35,  was going along with her daughter Taravati aged  9         and was carrying in her arms an infant daughter, Kamal, aged         a year and half. All of them were murdered on the  afternoon         of January 4, 1974.             Accused  Nos.  1, 2, and 14  were arrested on  June  18,         1973  in  connection with the first four murders  which  had         taken place between November 14,  1972  and April  13, 1973.         It  is alleged that, while in custody, accused No. 2 sent  a         message  to  accused No. 5 to commit a few more  murders  so         that no suspicion may fall on those who were arrested.  That         is  why accused Nos. 5 and 6, accused No. 6 being a  servant         of accused No. 1, are said to have committed  the murders of         Kalavati  and Halires in June and July, 1973.  On  July  30,         1973  accused Nos. 1, 2, 9 and 14 were released on  bail  on

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       condition  that they shall not enter the limits  of  Manwat.         This condition was relaxed on October 4, 1973 for investiga-         tional  purposes. Accused Nos. 1 and 2 were in  Manwat  from         October  4 to October 21, 1973 during which period they  are         alleged to have procured the service. of accused Nos. 7  and         8  for the commission of Parvatibai’s murder on  October  8.         On December 18, 1973, an application was moved for cancella-         tion  of the bail granted to accused Nos. 1  and  2.    That         application was allowed and they were rearrested on  January         4, 1974 when the murders of Haribai, Taramati and Kamal were         committed. Accused No. 3 was arrested on December 28,  1973,         accused  Nos. 9 to 11 on January 8, 1974 and accused No.  12         on January 11, 1974.         Accused  Nos.  1  and 2 are the linch-pin of  the  case  and         therefore, it would be appropriate to deal with their  cases         first.   Accused No. 1 is the mistress of accused No. 2  and         whereas  the  former was anxious to get a child,  they  both         were anxious to discover the treasure trove lying buried  in         their  house.   The  charge against them is   that  for  the         purpose of achieving these objects they consulted quacks who         advised  that the Munjaba should be propitiated by  offering         the  blood of virgin girls.  Accepting that advice,  accused         Nos. 1 and 2  are alleged to have entered into a  conspiracy         with the other accused to commit the various murders.             The  prosecution  relied inter alia on the  evidence  of         the   two approvers, Ganpat, P.W. 1, and Shanku, P.W. 2,  in         order to prove the charge of conspiracy against accused Nos.         1  and 2 as also for proving that various murders were  com-         mitted in pursuance of  that         643         conspiracy.   The learned Sessions Judge accepted  the  evi-         dence, of both the approvers as against accused Nos. 1 and 2         but  the  High  Court rejected the evidence  of  Ganpat  and         accepted that of Shankar only.             Before considering that evidence, it would be  necessary         to  state  the legal position in regard to the  evidence  of         accomplices and approvers.  Section 133 of the Evidence  Act         lays  down that an accomplice shall be a  competent  witness         against  an accused person; and a conviction is not  illegal         merely because it proceeds upon the uncorroborated testimony         of an accomplice.  Section 114 of the Evidence Act  provides         that  the Court may presume the existence of any fact  which         it  thinks likely to have happened, regard being had to  the         common  course of natural events, human conduct  and  public         and private business, in their relation to the facts of  the         particular  case.  Illustration (b) to s. 114 says that  the         Court  may presume that an accomplice is unworthy of  credit         unless he is corroborated in material particulars.             There is no. antithesis between s. 133 and  illustration         (b)  to s.114 of the Evidence Act, because the  illustration         only  says that the Court ’may’ presume a certain  state  of         affairs.   It does not seek to raise a conclusive and  irre-         butable presumption.  Reading the two together the  position         which  emerges is that though an accomplice is  a  competent         witness and though a conviction may lawfully rest upon   his         uncorroborated  testimony,  yet  the Court  is  entitled  to         presume   and  may indeed be justified in presuming  in  the         generality  of cases that no reliance can be placed  on  the         evidence  of an accomplice unless that evidence is  corrobo-         rated in material particulars, by which is meant that  there         has to be some independent evidence tending to  incriminate,         the particular accused in the commission of the crime. It is         hazardous,  as  a matter of prudence, to proceed.  upon  the         evidence of a self confessed criminal, who, in so far as  an         approver is concerned, has to testify in terms of the pardon

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       tendered to him.  The risk involved in convicting an accused         on the testimony of an accomplice, unless it is corroborated         in  material  particulars, is so real and potent  that  what         during the early development of law was felt to be a  matter         of prudence has been elevated by judicial experience into  a         requirement  or rule of law.  All the same, it is  necessary         to  understand that what has hardened into a rule of law  is         not that the conviction  is illegal if it proceeds upon  the         uncorroborated testimony of an accomplice but that the  rule         of  corroboration must be present to the mind of  the  Judge         and  that  corroboration may be dispensed with only  it  the         peculiar  circumstances of a case make it safe  to  dispense         with it.             In King v. Baskerville(1) the accused was convicted  for         committing  gross acts of indecency with two boys  who  were         treated  as  accomplices since they were  freely  consenting         parties.  Dealing with their evidence Lord Reading, the Lord         Chief   Justice of  England, observed that though there  was         no  doubt that the uncorroborated evidence of an  accomplice         was  admissible  in  law it was for a long time  a  role  of         practice at common law for the Judge to warn the Jury of the         danger of convicting a person on the uncorroborated testimo-         ny  of an accomplice. Therefore, though the Judge was  enti-         tled, to point out             (1) [1916] 2 K.B. 658.         2--7078CI/77         644         to  the  Jury  that it was within their  legal  province  to         convict upon the unconfirmed evidence of an accomplice,  the         rule  of practice had become virtually equivalent to a  rule         of  law and therefore in the absence of a proper warning  by         the Judge the conviction could not be permitted to stand. If         after being properly cautioned by the Judge the Jury  never-         theless  convicted the prisoner, the Court would  not  quash         the conviction merely upon the ground that the  accomplice’s         testimony was uncorroborated.             In  Rameshwar  v. State of Rajasthan(1) this  Court  ob-         served  that the branch of law relating to  accomplice  evi-         dence  was the same in India as in England and that  it  was         difficult  to  better the lucid exposition of  it  given  in         Baskerville’s  (supra)  case by the Lord  Chief  Justice  of         England.  The only clarification made by this Court was that         in  cases tried by a Judge without the aid of a Jury it  was         necessary that the Judge should give some indication in  his         judgment that he had this rule of caution in mind and should         proceed  to give reasons for considering it  unnecessary  to         require  corroboration on the facts of the  particular  case         before  him  and show why he considered it safe  to  convict         without corroboration in the particular case.             In  Bhuboni Sahu v. The King(a) the Privy Council  after         noticing  s. 133 and illustration (b) to s. 114 of the  Evi-         dence  Act observed that whilst it is not illegal to act  on         the  uncorroborated evidence of an accomplice, it is a  rule         of  prudence so  universally followed  as  to amount  almost         to a rule of law that it is unsafe to act on the evidence of         an accomplice unless it is corroborated in material respects         so  as to implicate the accused; and further that  the  evi-         dence  of one accomplice cannot be used to  corroborate  the         evidence  of another accomplice.  The rule of  prudence  was         based  on the interpretation of the phrase "corroborated  in         material  particulars" in illustration (b).  Delivering  the         judgment  of the Judicial Committee, Sir John  Beaumont  ob-         served  that the danger of acting on accomplice evidence  is         not merely that the accomplice is on his own admission a man         of bad character who took part in the offence and afterwards

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       to save himself betrayed his former associates, and who  has         placed himself in  a position in which he can hardly fail to         have  a  strong bias in favour of the prosecution  the  real         danger  is that he is telling a story which in  its  general         outline  is  true, and it is easy for him to work  into  the         story  matter which is untrue.  He may implicate ten  people         in  an offence and the story may be true in all its  details         as  to eight  of them but untrue as to the other  two  whose         names may have  been introduced because they are enemies  of         the approver.  The only real safeguard therefore against the         risk  of  condemning the innocent with the  guilty  lies  in         insisting  on  independent evidence which in   some  measure         implicates each accused.             This  Court has in a series of cases expressed the  same         view  as  regards accomplice evidence.  (see  The  State  of         Bihar v. Basawan         (1)  [1952] S.C.R. 377.         (2) 76 I.A. 147.         645         Singh(1);  Hari Charan Kurmi v. State of  Bihar;(2)   Haroon         Haji Abdulla v. State of Maharashtra;(a) and Ravinder  Singh         v.  State of Haryana(4).  In Hari Charan(2)  Gajendragadkar,         C.J.,  speaking  for a five-Judge Bench  observed  that  the         testimony  of an accomplice  is evidence under s. 3  of  the         Evidence Act and has to be dealt with as such.  The evidence         is  of  a tainted character and as such is very  weak;  but,         nevertheless, it is evidence and may be acted upon,  subject         to the requirement which has now become virtually a part  of         the law that it is corroborated in material particulars.             We  will  assess  the evidence  of  the  two   approvers         Ganpat and Shankar in the light of these principles.  Ganpat         Bhagoji  Salve, P.W. 1, fails to cross the initial hurdle of         reliability and no amount of corroboration cure the infirmi-         ties  which  beset his evidence.  He is not a  quack  but  a         charlatan who traded on the credulous optimism of the  ster-         ile village women.  He admits that he possessed no cure  but         made  a  pretence of it by carrying the confidence  of  lay,         uninformed  women.  He was sent for to prescribe a  cure  to         enable accused No. 1 to bear a child but accused Nos. 1  and         2, taking advantage of his expert presence, consulted him on         where  the treasure trove lay. Ganpat prescribed the  facade         of  a  procedure  which was in the nature  of  a  confidence         trick.  Practising it deftly on his credulous audience,   he         passed on the errand of God that Munjaba has to be  appeased         by  offering the blood of virgin girls.  That work  was  as-         signed  by accused No. 2 to his servants, accused No. 3  and         the  other  approver Shankar.             Accused No.3 and Shankar committed the murders of  Gaya-         bai  and Shakila and handed over the bowlful of  blood  from         the private parts of the victims to accused Nos. 1 and 2 who         performed  the puja of Munjaba.  But the treasure trove  did         not come up.  Then Sugandhabai was murdered and her menstur-         al  blood was offered to  the God, again without a  purpose.         The  fourth  to die was Nasima whose head and  small  finger         were offered as sacrifice.  But even that heavy price yield-         ed  no clue to the treasure trove  Ganpat was paid a fee  of         Rs.  100  whereupon he made himself scarce and  left  for  a         place  called Baramati from where he was traced by  the  po-         lice.  That is what Ganpat’s evidence comes to.             Ganpat  is an utterly worthless witness  whose  evidence         has  been rightly discarded by the. High Court.  His  entire         story  is  incredible and abounds in contradictions  of  the         gravest kind.  Accused No. 2 is a man of some means and  was         for some time the President of the Manwat Municipality.   It         is hardly likely that a person in his position would readily

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       gulp the fantastic process prescribed by Ganpat for  discov-         ering  the  treasure trove  Ganpat was interrogated  by  the         police  for  nearly a month and a half after his  arrest  at         Baramati  and it was only at the end of that  trying  period         that he trotted out some story          (1) [1959] SCR 195     (2) [1964] 6 SCR 623          (3) [1968] 2 SCR  641  (4) [1975] 3 SCR 453         646         to  save  his skin.  It is common ground, and  we  see  much         more  in that episode, that Ganpat struck his head against a         wall while in police custody and sustained a head injury for         which  he was charge-sheeted for attempting to  commit  sui-         cide.  He admits in his evidence that he was driven to break         his  head as a result of the torture inflicted upon  him  by         the police.  Though he implicated both accused Nos. 1 and  2         in  the search for treasure trove, he admitted  later  that.         accused  No.1 had never talked to him. in that  behalf.   He         made  several significant statements for the first  time  in         the  Court  and though we agree that an  approver  has  real         incentive  to speak out his mind after tender of pardon,  it         is  impossible  to  reconcile his  earlier  statements  with         his later assertions.  It is one thing to say as was said in         Madan  Mohan  Lal v. State of Punjab(1) that  an  approver’s         statement  cannot  be discarded for the mere reason that  he         did  not disclose the entire story in his  police  statement         and quite another to accept an approver in spite of  contra-         dictions which cast a veil of doubt over his involvement  of         others.   Conceding the ratio. of Tahsildar’s(2)  case,  on.         which Mr. Desai for the State Government relies, the conclu-         sion seems to  us inescapable that Ganpat has mixed a ton of         falsehood  with an ounce of truth.  His evidence has  there-         fore to be left out of consideration.             The  other  approver Shankar Gyanoba Kate, P.W.  2,  has         greater  credibility than Ganpat.  Shankar was working  with         accused No. 2 as an agricultural servant along with  accused         No. 3.  He speaks of Ganpat’s visits, the performance of the         ’shakun’  and of being commanded by accused Nos. 1 and 2  to         commit murders of virgin girls. He has unreservedly admitted         having committed the murders of Gayabai, Shakila,  Sngandha-         bai  and Nasima with accused No. 3’s assistance.  He  impli-         cates  accused Nos. 1 and 2 by deposing that after  each  o[         the  murders was committed, he and accused No. 3 used to  go         to  accused No.1’s house for delivering the blood  and  that         the accused used to perform the Puja thereafter.             Not only has Shankar tarred himself with the same  brush         as  accused Nos. 1, 2 and 3 but he has confessed  to  having         played the leading role in the commission of the first  four         murders.  Impressed by that circumstance, the Sessions Court         and the High Court concluded that he is a reliable  witness,         but they took the view that the conviction of accused Nos. 1         and  2  cannot be permitted to rest  on  his  uncorroborated         testimony.  We unhesitatingly share that view. Having played         the role of the master killer in four ghastly murders, he is         bound to know every little detail as to the manner of  kill-         ing.  The vivid description given by him of the luring,  the         gagging and the throwing away of the dead bodies may  there-         fore  be  true. But it is easy enough for him  to  introduce         nice  falsities here and there by involving some  others  in         the  broadly  true framework of his story. It  is  therefore         necessary  to see whether the evidence of Shankar in  regard         to  the implication of accused Nos. I and 2 is  corroborated         by some independent evidence..         (1) [1970] 2 S.C.C. 733.         (2) [1959] Supp. 2 S.C.R. 875.         647

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       Before  looking  out for corroboration., we must  point  out         that  Shankar  used to be interrogated by the  police  every         night  for about 9 or 10 days and it was at the end of  that         gruelling  interrogation that his statement came to  be  re-         corded.  Though Shankar claims that he had seen the ’shakun’         being  performed by Ganpat, he had not stated so before  the         police  nor had he then described the elaborate  ritual  ob-         served during the performance of that ceremony.  He also did         not  say to the police that accused No. 1 had asked  him  to         commit the murders. Neither to the police nor in his  state-         ment recorded under s. 164 of the Code of Criminal Procedure         did  he say that he had gone to accused No.1’s house on  the         morning following the first murder and that She had told him         that  since the treasure trove was not found another  murder         should be committed.  The statement attributed by Shankar to         accused No. 1 that menstrual  blood was required for  sacri-         fice is also conspicuous by its absence in his police state-         ment.   These  significant omissions are in  the  nature  of         contradictions  because not only do they pertain to  a  very         vital  aspect of the case against accused Nos. 1 and 2,  but         they are of such a nature that the story told by Shankar  to         the police and under s. 164- of the Code of Criminal  Proce-         dure,  cannot  sensibly stand along with what  he  told  the         Court in regard to the part played by accused Nos. 1 and  2.         It is true that Shanker was under a higher obligation  while         deposing  in the Court because as a condition of the  pardon         tendered  to him he had to disclose the whole truth  to  the         Court.  But while assessing the value of Shankar’s. evidence         in  so far as he implicates accused Nos. 1 and 2 we find  it         impossible  to  overlook the studied improvements  which  he         made to involve them. Such gross departure from the earliest         versions makes the story of conspiracy suspect and uninspir-         ing.   All  the same, we may examine the  argument  advanced         before  us by the learned counsel for the State  that  Shan-         kar’s evidence against accused Nos. 1 and 2 is  corroborated         in material particulars and should therefore be accepted.             For affording corroboration to Shankar’s evidence  reli-         ance  is  placed on the evidence of  four  witnesses--Laxman         (P.W.   19),  Sakharam (P.W. 29), Ramchandra (P.W.  30)  and         Kachru (P.W. 34)..             We see nothing in the evidence of these witnesses  which         can lend corroboration to the approver’s story, that accused         Nos.  1 and 2 conspired to commit the murders or  that  they         asked  Shankar and accused No. 3 to do so or that the  blood         of  victims was handed over to either of them, or  that  any         Puja was performed after the commission of murders.   Laxman         says  nothing  about  the treasure  trove,  Sakharam  merely         carried  the errand to Ganpat, Ramchandra was mauled by  the         police  who  pulled out Iris pig-tail and the  quack  called         Kachru only prescribed a medicine for accused, No.1’s  meno-         pause.             Nor indeed is the evidence of P.Ws. 20, 21 and 51 of any         assistance in the matter of corroboration.  They merely  say         that Ganpat was eking his livelihood by prescribing  Mantras         and  medicines, which takes one nowhere  near  corroborative         factors for implicating accused Nos. 1 and 2.         648             The recovery of Ganpat’s satchel. containing charms  and         herbs,  trader the Panchnama Ex. 130A, also  proves  nothing         beyond  showing  that  Ganpat was equipped  with  a  quack’s         repertoire.             One  of  the strongest arguments made by  Mr.  Desai  on         behalf  of the State was that accused Nos. 1 and 2 stood  to         gain by the commission of the murders and that would  afford         corroboration  to  their participation  in  the  conspiracy.

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       Motive may conceivably furnish the necessary  corroboration,         but  we  are unable to see any independent evidence  on  the         record regarding the treasure trove theory.  Scrapings  were         taken  from Munjaba’s image and samples of earth  were  also         taken  from the place where Munjaba is alleged to have  been         propitiated  with  the blood of the victims.   If  Puja  was         really  performed in the manner described by Shankar, it  is         strange that no blood stains should have been found anywhere         near  the Pimpal tree.  There is also no evidence at all  to         show  that any attempt was made by accused Nos. 1 and  2  to         discover  the treasure, as for example, by  digging.   These         circumstances  cast a serious doubt on the theory  that  ac-         cused Nos. 1 and 2 were trying to locate the treasure trove.         The  fact that accused No. 3 is a servant of accused  No.  2         cannot by itself be sufficient to connect accused No. 2 with         the crime charged.             The last circumstance on which  prosecution  relies  to.         connect  accused Nos. 1 and 2 with the crime is the  confes-         sion, Ex. 108, made by accused No. 1 Rukhmam.  That  confes-         sion  was recorded by a Sub-Divisional  Magistrate,  Devidas         Sakharam   Pawar, P.W. 23. Later, we will have a great  deal         to  say  about  the various  confessions  recorded  by  this         learned  Magistrate but in so far as the confession  of  ac-         cused  No. 1 is concerned it is enough to point out that  it         is entirely exculpatory and can, therefore, serve no  useful         purpose.   Besides, the confession was retracted by  accused         No. 1.             Along with these considerations is the circumstance that         the  High Court has acquitted accused Nos. 1 and 2  after  a         fair examination of the material relied upon by the prosecu-         tion as against them.  The various reasons given by us would         so  that there is no justification for interfering with  the         conclusion  to which the High Court has come. The  acquittal         of accused Nos. 1 and 2 has, therefore, to be confirmed.             It  would now be convenient to take up the ease  of  ac-         cused  No. 3, Sopan Rambhau Salve.  The  allegation  against         him is that he and the approver Shankar committed the murder         of  Gayabai on November 14, 1972, of Shakila on December  9,         1972,  of Sugandhabai on February 21, 1973 and of Nasima  on         April 13, 1973.  There is no eyewitness to any of these four         murders but for establishing the charge against accused  No.         3, the prosecution relies on the evidence of the two approv-         ers  Ganpat (P.W. 1) and Shankar (P.W.2), the  discovery  of         article  17 by accused No. 3, the discovery of  articles  18         and  19 by approver Shankar, the seizure of articles 20  and         21 from the house of accused No. 1 and lastly the  retracted         confession of accused No. 3 himself.  We have already  dealt         with  the  evidence of the approvers while  considering  the         case  against  accused Nos. 1 and 2 and we  have  given  our         reasons  for  discarding  Ganpat’s  evidence  outright.   In         regard  to  Shankar’s evidence we have taken the  view  that         though he is         649         a reliable witness, his evidence cannot be acted upon unless         it is corroborated in material particulars.             Shankar  and  accused No. 3 were in  the  employment  of         accused No. 2.  After describing the ’Shakun’ ceremony which         was  performed  for ascertaining the desire  of  the  deity,         Shankar deposes that he and accused No. 3 were  commissioned         to commit the murders of virgin girls.  Shankar, after  some         hesitation, agreed to do so on the promise that accused Nos.         1  and  2 will,give to him and accused No.3 a share  in  the         treasure trove.             Accused  No.  3, according to  Shankar,  lured  Gayabai,         Shakila  and Nasima to secluded spots., where  upon  Shankar

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       gagged  and throttled them.  Accused No. 3  facilitated  the         murders  by  holding the legs of victims which  also  helped         Shankar  to  collect blood from their  private  parts  after         causing cuts thereon.  Accused No. 3 played a more  signifi-         cant  role  in  the murder of Sugandabhai by  axing  her  to         death.             Shankar’s evidence is amply corroborated as regards  the         broad outlines of the story narrated by him. But that is not         enough.  We must see whether his evidence receives  corrobo-         ration  from an independent source and in material  particu-         lars, so as to fasten the guilt on accused No. 3.             The first circumstance which is said to corroborate  the         evidence  of the approver is the discovery of 27  pieces  of         shirt,  which  are collectively marked as article  17.   The         panchanama  of discovery (Ex. 127) is dated January 2,  1974         and  is   proved by the  Pancha  Vithalrai  Takankhar  (P.W.         27).  The report of the serologist which is at Ex. 312 shows         that  there  were several blood stains on the  shirt  pieces         ranging  from  0.1 cm. to 0.5 cm. in diameter,  all  of  ’A’         group. Gayabai’s blood also belonged to ’A’ group.             Mr. Bhonde who appears for accused No. 3 has,  subjected         the evidence of discovery to a searching criticism which  at         first   blush seems plausible but which does not bear  close         scrutiny.   The  argument that the panchanama  of  discovery         does  not  attribute  to accused No,. 3  the  authorship  of         concealment has the simple answer that the English  transla-         tion of the Marathi panchanama is  incorrect.  The  original         document expressly states that accused No. 3 agreed to point         out  the  place where. he had kept the  shirt  pieces.   The         evidence of the Panch (P.W. 27) and of Dy. S.P. Waghmare (P.         W.  96)  is.  to. the same effect.  In the  absence  of  any         effective  cross-examination of these witnesses, we  see  no         substance in the contention that accused NO. 3’s father, who         was  standing near the hut, should have been examined  as  a         witness.             It is urged that it is highly unlikely that accused  No.         3 will preserve the tell-tale evidence of the crimes in  the         manner  alleged by the prosecution.  Why the accused   chose         to  do this is  difficult to know but we are  not  examining         the evidence in the case as a Court of first instance..  The         evidence in regard to the discovery is accepted as  unexcep-         tionable by the Sessions Court as well as the High Court         650         and we are unable to characterise that view of the matter as         preverse  or against the weight of evidence.  The   recovery         of  art. 17  thus afford material corroboration to the  part         played by accused No. 3, at least in Gayabal, s murder.             The  discovery of the blade (art. 18) and the  undervest         (art.  19) at the instance of the approver affords no   cor-         roboration  as  against accused No. 3.  Nor indeed  can  the         recovery of the bowl (art. 20) and the bottle (art. 21) from         the  house of accused No. 1 connect accused No.. 3 with  the         crime.   These are articles of common use and no  blood  was         detected thereon.             What  remains to be  considered is the  retracted   con-         fession  accused  No. 3, which is Ex. 106.   While  on  this         question,  we would like to deal with all  the  confessional         statements  recorded  in  the case so that it  will  not  be         necessary to revert to. the question time and again.             As many as eight confessions were recorded in the  case,         the confessing accused, apart from the two approvers,  being         accused  Nos. 1, 3, 4, 5, 6, and 12.  The approvers,  Ganpat         and  Shankar,  stuck to their confessions while  all  others         retracted theirs.             Section  24  of the Evidence Act  makes  a  confessional

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       statement irrelevant in a criminal proceeding if the  making         thereof  appears  to  have been caused  by  any  inducement,         threat  or promise, having reference to the  charge  against         the  accused,  proceeding  from a person  in  authority  and         sufficient to give the accused  grounds  which  would appear         to  him reasonable for supposing that by making the  confes-         sion  he  would gain any advantage or avoid any  evil  of  a         temporal  nature  in reference to the  proceedings   against         him.   Section   163 of the Criminal Procedure Code  bars  a         Police  Officer or any person in authority from offering  or         causing  to be offered any inducement, threat or promise  as         is referred to in s. 24 of the Indian Evidence Act.  Section         164 of the Code prescribes the mode of recording confession-         al  statements.  Acting under s. 554 of the Criminal  Proce-         dure  Code,  1898, the High Court of Bombay had  framed  in-         structions  for the guidance of Magistrates while  recording         confessional  statements.  Those instructions are  contained         in  Chapter I,  Paragraph 18, of the  Criminal Manual  1960,         of  the  Bombay High Court.  The  instructions  require  the         Magistrate  recording  a confession to  ascertain  from  the         accused  whether  the  accused is  making  the  confessional         statement  voluntarily and to find whether what the  accused         desires  to  state appears  to  be true.   The  instructions         prescribe a form in. which the.  confessional statement  has         to be recorded.  Similar circulars or instructions have been         issued by the various High Courts in India and their  impor-         tance  has been recognised by this Court in Sarwan Singh  v.         State  of Punjab(1) in which it was said that  the  instruc-         tions  issued  by the High Courts must be  followed  by  the         Magistrates while recording confessional statements.         [1957] S.C.R. 953         651             All of the eight confessions were recorded in this  case         by  a Sub Divisional Magistrate, Devidas Sakharam Pawar  (P.         W. 23), whose evidence leaves no room for doubt that he  was         blissfully unaware of the stringent responsibilities east by         law  on Magistrates. who. are called upon to record  confes-         sions.   He  made  no effort to ascertain from  any  of  the         accused  whether he or she was making the confession  volun-         tarily.   He  did  not ask any of the  accused  whether  the         police had offered or promised any incentive for making  the         confessional statement nor did he ascertain for how long the         confessing  accused  was  in police custody  prior  to.  his         production  for recording the confession nor indeed  did  he         maintain  any  record to show where the  accused  were  sent         after  they  were  given time for reflection.   One  of  the         glaring infirmities from which the  confessional  statements         of the  various accused suffer is that none of those  state-         ments contain a memorandum as required by s. 164 of the Code         that the Magistrate believed that the "confession was volun-         tarily  made".  It is also clear that when the  various  ac-         cused were produced before the Magistrate after the time for         reflection  was  over, he asked no  further  questions   and         recorded the confessions. mechanically for the  mere  reason         that  the  accused expressed their willingness  to  confess.         The  Magistrate was either overcome by the sensation   which         the  case had  aroused in Maharashtra or perhaps he  blindly         trusted the high police officers who were frantically  look-         ing  out for a clue to these mysterious murders.  They  pro-         duced  the  accused for recording the  confessions  and  the         Magistrate thought that the mere production of the   accused         was guarantee enough of their willingness to confess.             Learned  counsel appearing for the State is  right  that         the  failure  to comply with s. 164(3),  Criminal  Procedure         Code, or  with the High Court Circulars will not render  the

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       confessions inadmissible in evidence.  Relevancy and  admis-         sibility  of  evidence have to be determined  in  accordance         with the provisions of the Evidence Act. Section 29 of  that         Act lays down that if a confession is otherwise. relevant it         does  not become irrelevant merely because, inter alia,  the         accused was not warned that he was not bound to make it  and         the  evidence of it might be given against him.  If,  there-         fore,  a confession does not violate any one of  the  condi-         tions  operative under ss. 24 to 28 of the Evidence Act,  it         will  be admissible in evidence.  But as in respect  of  any         other  admissible evidence, oral or documentary, so  in  the         case of confessional statements which are otherwise admissi-         ble,  the  Court has still to consider whether they  can  be         accepted as true.. If the facts and circumstances  surround-         ing  the making of a confession appear to. cast a  doubt  on         the  veracity or voluntariness of the confession, the  Court         may  refuse  to  act upon the confess;on even   if   it   is         admissible in evidence.  That shows how important it is  for         the  Magistrate who. records the confession to satisfy  him-         self  by appropriate questioning of the confessing  accused,         that  the  confession is true and voluntary.  A  strict  and         faithful  compliance  with s. 164 of the Code and  with  the         instructions issued by the  High Court  affords in a   Large         measure the guarantee that the confession is voluntary.  The         failure to observe the safeguards prescribed therein are  in         practice  calculated to impair the evidentiary value of  the         confessional statements.         652             Considering the circumstances leading to the procession-         al recording of the eight confessions and the abject  disre-         gard, by the  Magistrate, of the provisions contained in  s.         164 of the Code  and  of the instructions issued by the High         Court, we are of the opinion that no reliance can be  placed         on  any of the confessions.  Apart from the  confessions  of         the two approvers, all others were retracted, which  further         cripples their evidentiary value.             Since  the evidence of the approver Shankar is  corrobo-         rated  in material particulars by the discovery  of  article         17, there is no valid reason for departing from the  concur-         rent   view of the  High  Court and the Sessions Court  that         the  complicity  of accused No. 3. in the  four  murders  is         proved beyond a reasonable doubt.  As the charge of conspir-         acy  fails, the High Court was right in  convicting  accused         No. 3 under s. 302 read with s. 34 of the Penal Code only.             That leaves the case of accused Nos. 9 to 12 for consid-         eration,.  being the subject-matter of Criminal  Appeal  No.         437 of 1976 filed by them.  The charge against these accused         is  that  in furtherance of conspiracy and in  pursuance  of         their common  intention  they, on January 4, 1974, committed         the murders of Haribai, aged 35 years, her daughter Taramati         aged 9 years, and her infant child Kamal aged  1-1/2  years.         The Sessions Court convicted these accused under s. 302 read         with ss. 120B and 34 of the Penal Code and sentenced them to         life  imprisonment.  The charge of conspiracy having  failed         before the High Court and the main co-conspirators,  accused         Nos. 1 and 2, having been acquitted, the High Court convict-         ed  these accused under s. 302 read with s. 34  only.   But,         accepting  the  appeal flied by the State,  the  High  Court         enhanced their sentence from life imprisonment to death.             The evidence against accused Nos. 9 to 12 consists of  :         (1) The: eye-witness account of Umaji Limbaji, Pitale  (P.W.         31);  (2)  Discoveries effected in pursuance  of  statements         made by the accused; (3) Injuries on accused No. 10; (4) The         evidence  in  regard to the movements of the accused  at  or         about  the time when the murders were committed and (5)  the

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       confession of accused N6. 12.             Umaji  was working as. an agricultural servant with  one         Balabhau Lad on a daily wage of Rs. 3/-.  On January 4, 1974         while  he was on his way to one of the lands of his  master,         he first met  accused No. 10 and then accused Nos. 9 and 11,         and had some conversation with accused No. 10.  At about the         same  time, he saw Haribai carrying her infant child in  her         arms,  and a basket of food on her head. Her other  daughter         Taramati  was walking behind her.  Umaji climbed  the  Mala,         which  is a raised platform from which crops  are  generally         watched,  and  soon  thereafter he heard the  shrieks  of  a         child.   Turning  in the direction from  which  the  shrieks         came, he saw  accused  No. 10 holding Haribai from behind by         her  waist and accused No.9 giving an axe blow on her  head.         Almost  simultaneously,  Umaji saw accused  No.  12  holding         Taramati  from behind and accused No. 11 giving an axe  blow         on her head.  Feeling nervous and fearful, jumped down  from         the Maid, tethered his horse in his master’s land, went by         653         a  bus to the Manwat Road Railway Station, took a  train  to         Ranjani  and from there proceeded to the village of  Iregaon         where  his maternal uncle Mathaji lived.  After  staying  at         Iregaon for about four days, Umaji went back to his master’s         house  at  Manwar when a police constable took him  to.  the         Police  Station, where a Police Officer recorded his  state-         ment.             Umaji’s  evidence having been concurrently  accepted  by         the Sessions Court and the High Court, we do. not propose to         undertake a fresh reappraisal of that evidence except to the         extent to which the view of the Courts below is contrary  to         the weight of the record or is otherwise such as is impossi-         ble  in the context to sustain.  On a careful  consideration         of  Mr. Narayan’s closely  reasoned  submissions,  we   have         formed the conclusion, which does not materially differ from         that  of  the two Courts, that Umaji’s  evidence  cannot  be         accepted without adequate corroboration.             Our reasons for taking this view are briefly these: Fear         and  pame may account for the fact that the witness did  not         raise an alarm. But there is no reasonable explanation  why,         having  had the  presence mind to tether back the horse,  he         did  not see his master.  Then again, he sojourned from  the         scene  of offence to Iregaon but spoke to none. At  Iregaon,         which  was far removed from the scene of Manwat murders,  he         holidayed  with  his uncle for four days but even  on  being         questioned  as to the purpose of his visit, he made  no  an-         swer.  After returning to Manwat he saw his master but  told         him nothing.  His statement was recorded by the police after         two days of close interrogation.             In regard to accused No. 9, there are two  circumstances         which afford reliable corroboration to Umaji’s evidence.  On         January  11, 1974 accused No. 9 made a statement leading  to         the discovery of an axe blade, article 160, from his  house.         The panchnama of recovery is Ex. 91-A which is proved by the         Panch  Sheikh Imam (P.W. 11 ). It shows that accused  No.  9         took  out  an  axe blade from below a piece  of  wood  lying         behind a cupboard in his house.  The report  of  the Serolo-         gist,  Ex.  267, shows that the axe blade was  stained  with         human blood of ’A’ group.  The blood of the deceased Haribai         belonged  to the same group.  Accused No. 9 admitted in  his         examination  that he had produced the axe blade and that  it         was  stained with blood but he sought to explain  the  blood         stains by saying that his wife had sustained an injury while         hewing  wood  with the axe.  That is  a  flimsy  explanation         because were it true, it is difficult to understand why such         great care was taken to conceal the axe blade.

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           On  January 21.1974- a burnt shirt piece,  article  170,         was recovered in consequence of information given by accused         No.  9.   The Panchnama, Ex. 87-A, and the evidence  of  the         Panch  Munjaba (P.W. 25) show that the accused dug  out  the         shirt  piece  from under a heap of earth  lying  inside  his         house.   Article 170 was found by the Sessions Judge to  fit         squarely with the shirt sleeve, article 112, which was found         at  the place of occurrence near Haribai’s dead  body.   The         report  of the Chemical Analyser at Ex.271 shows that  arti-         cles 112 and 170  bore’ identical textile and physiochemical         characteristics.         654             In  our  opinion,  the courts below  were  justified  in         relying  upon these corroborative circumstances  to  connect         accused No. 9 with the murder of Haribai.             Turning  to accused No. 10, an axe handle, article  169,         was  recovered  at his instance on January  17,  1974.   The         Panchanama,  Ex. 86-A, and the evidence of the  Panch  Mohd.         Yusuf  Bade  Khan (P.W. 10) show that the  axe  handle  was.         recovered  from  below  a thorny fence in  the  Pardhi  Wada         locality.  The report of the serologist, Ex.267, shows  that         there was human blood on the axe but the group of, the blood         could  not be determined.  It is not possible to accept  the         submission   of  Mr. Narayan that the axe handle was  recov-         ered from a place which was easily accessible to the  public         because  the  handle was taken out after making  quite  some         efforts to locate it.  Accused No. 10 was the author of  its         concealment.             On  January 8, 1974 when accused No. 10 was  arrested  a         turban,  bush-shirt  and dhoti (articles 150 to  1.52)  were         seized  from  his person. The serologist’s  report,  Ex.267,         shows  that human blood was detected on the  bush-shirt  and         the  dhoti.   The blood-stain. on the shirt was  0.5  cm  in         diameter  and the blood detected on the bush-shirt  and  the         dhoti belonged to ’A’ group. Accused No. 10 admitted in  his         examination that the shirt and the dhoti were  blood-stained         but  he offered an unconvincing explanation that a child  of         his had bled from the nose,             The  evidence  of  Dr. Salunke (P.W.  48)  who  examined         accused  No. 10 on the date of his arrest shows that he  had         four  injuries on his person, the certificate in regard  to,         which  is Ex. 174.  Injuries Nos.  1 and 2 were  interrupted         abrasions  which  in  the opinion of Dr.  Salunke  could  be         caused by teeth-bite.  That fits in with ’the part played by         accused No. 10, who according to Umaji’s evidence, had  held         Haribai from behind by her waist.  Evidently, Haribai strug-         gled  to  release herself in a frantic attempt to  save  her         life she caused the injuries to accused No. 10.             We agree with the view taken by both the Courts that the         discovery  of the blood-stained axe-handle, the  seizure  of         clothes  stained  with ’A’ group blood  and  the  teeth-bite         injuries  afford adequate corroboration to Umaji’s  evidence         regarding  the part played by accused No. 10, in the  murder         of Haribai.             As  regards accused No. 11, an axe-blade (article.  167)         was recovered in consequence of information supplied by him.         The  Panchanama,  Ex. 84-A, and the evidence  of  the  Panch         Mohd.  Yusuf  Bade Khan. (P.W. 10) show that  accused  No.11         led the police party  and  the panchas to a water tap in the         Pardhi  Wada  locality and dug out the axe blade  which  was         lying buried under a stone.  The report of the   Serologist,         Ex.  269, shows that human blood of ’A’ group’ was  detected         on the axe blade.  Taramati, according to Umaji’s  evidence,         was  assaulted with an axe by accused No. 11.  Her  clothes,         articles  142 and 143, were found to be stained  with  human

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       blood  of ’A’ group..  We see no infirmity in  the  Pancha’s         evidence  and no substance in the counsel’s contention  that         the discovery of the axe-blade was foisted on the accused.         655             The discovery of the axe blade stained with human  blood         of ’A’ group sufficiently corroborates the evidence of Umaji         as  regards the part played by accused No. 11 in  Taramati’s         murder.             Before considering the case of accused No. 12, we  would         like   to point out that there is satisfactory  evidence  to         show  the  presence of accused Nos. 9 to 11 at or  near  the         scene of offence some time before the incident.  Dagdu (P.W.         5),  Bhanudas  (P.W. 14), Sitaram (P.W. 16),  Narayan  (P.W.         17),  Baliram (P.W. 18) and Santram (P.W. 24)  have  deposed         about  the same either in regard to all of these accused  or         some  of them.  Their evidence has been examined  with  gear         care  by  the learned Sessions Judge and we agree  with  his         assessment that except for Sant Ram, the other witnesses can         be  relied  up.on  for affording  corroboration  to  Umaji’s         evidence.               That leaves the case of accused No. 12 for  considera-         tion.   It   is alleged that he held  Taramati  from  behind         whereupon accused No. 11 gave axe-blows on her head.   Tara-         mati  was just a girl of 9 and  the allegation that  accused         No. 12 had to hold her from behind to enable accused No.  11         to assault her with an axe sounds inherently incredible.  1t         is  significant that some time before the occurrence,  Umaji         met  accused Nos. 9,10 and 11 near the scene of offence  but         not  accused No. 12. The importance of this circumstance  is         twofold: Firstly that accused No. 12 was not in the  company         of the other three at or about the time of the incident  and         secondly that Umaji’s identification of the person who  held         Taramati,  namely accused No. 12, becomes  somewhat  infirm.         There  was  standing crop about five feet high  between  the         Mala  where Umaji was standing and the place where  Taramati         was  held.   Besides, the spot where Taramati  was  done  to         death  was in a depression, which would further  affect  the         witness’s  ability  to. identify the person  who.  had  held         Taramati.   After all, Umaji had but a fleeting  glimpse  of         the  incident  and  the chance of an  error  in  identifying         accused No. 12, who w.as not seen earlier in the company  of         accused Nos. 9 to  11,  cannot fairly be excluded.             All the same, since Umaji has no particular  reason   to         implicate accused No. 12 falsely and since the Courts  below         have concurrently accepted his evidence in regard to accused         No.   12   also,  we  must examine carefully  the  strenuous         submission  made  by Mr. Desai for the State  that  even  as         regards  accused No. 12,  Umaji’s  evidence is  sufficiently         corroborated.             That  corroboration  consists of the discovery   of.  an         axe-handle, article 168, from the house of accused No. 12 on         January  17  1974. The Panchanama of recovery  is  Ex.  85-A         which  is  proved by the Panch Mohd.  Yusuf Bade Khan,  P.W.         10.   It  is  alleged that the axe-handle  was  produced  by         accused No. 12 from below the tin-sheet roof of his house in         Pardhi Wada.  The report  of  the  serologist, Ex. 269, says         that there was human blood of ’A’ group on the axehandle.             We  find  it impossible to place any.  reliance  on  the         discovery  of  the  axe-handle for  the  following  reasons:         Though accused No. 12 was         656         arrested  on  January  11, 1974 his house  was  searched  on         January  7, 1974 in connection with the murders  of  Haribai         and   her   daughters which had taken place  on  January  4,         1974.  That search is borne out by the Panchanama, Ex.  221.

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       On January 6, 1974 accused No. 12 figured in an  identifica-         tion parade which was arranged in order to ascertain if  the         Dog squad could afford assistance in fixing the identity  of         the  culprits.  The evidence of the Senior Dog Master,  Ram-         chandra  (P.W.  52),  shows that a female  dog  called  Mala         sniffed  her  suspicion at accused No. 12.   With  the  clue         provided  by the Dog Squad on the 6th, the house of  accused         No.  12 was searched  on  the  7th.  That house consists  of         one room only.  The Panchanama shows that the axe-handle was         not  in  any manner concealed under the tin-sheet.   It  was         lying openly, visible to the naked eye, so that he who cared         could  easily  see it.  It is then strange that it  was  not         found   on  the  7th itself.  There is also a  serious  dis-         crepancy  in the evidence of the two Panehas,  Mohd.  Yusuf,         P.W. 10, and Sheikh Imam, P.W. 11, regarding the  discovery.         Whereas according to the former, accused No. 12 said that he         had  concealed  the axe,handle below the  tin-sheet  of  the         roof, according to the latter the information which  accused         No.   12 gave was that he had kept the handle below a  stone         inside  his  house.  Coupled  with  the  circumstance  which         emerges from the evidence of Panch Sheikh Imam that there is         no  door  to the room  from  which the axe-handle  was  pro-         duced,  the evidence in regard to. the recovery of the  axe-         handle becomes manifestly suspect.  These infirmities in the         recovery of the axe-handle failed to evoke the attention  of         the High Court.  The Sessions Court too missed their  impact         on the point at issue.             The seizure of a blood-stained’ Dhoti from the person of         accused No. 12 at the time of h,is arrest, even if the blood         belonged   to   ’A’ group, is not of a kind  which,  in  the         context of the various circumstances referred to above,  can         be  accepted as  safely  of  sufficiently  corroborative  of         Umaji’s  evidence.  This is particularly so because, at  the         very  threshold,  it  is doubtful if  Umaji  could  identify         accused No. 12.             The  evidence regarding the presence of accused No.   12         in  the fields roundabout the scene of offence on the after-         noon  of  the day of incident cannot connect  him  with  the         crime.   And the retracted confession of the  accused,  like         its  counterparts,  has to be  excluded  from  consideration         altogether  because  of the cavalier fashion  in  which  the         Sub-Divisional Magistrate recorded the various confessions.             Accused No. 12 is thus entitled to an acquittal for  the         reason  that  the prosecution has failed to prove  its  case         against  him  beyond  a reasonable doubt.             Learned  counsel for accused Nos. 3, 9, 10 and 11  whose         conviction under s. 302 read with s. 34 has been affirmed by         us  and who stand sentenced to death, contend that  the  ac-         cused were not heard on the question of sentence and  there-         fore the sentence is not according to law.  It is urged that         we  should remand the appeal  of  accused Nos. 9, 10 and  11         to the High Court which sentenced them to death,         657         and  accused  No.  3’s appeal to the  Sessions  Court  which         sentenced him to death, in order to enable these accused  to         make  their  contentions as to why they should not  be  sen-         tenced  to death even though they have been convicted  under         s.  302  of  the Penal Code.  In support  of  this  argument         reliance  is  placed on a decision of this  Court  in  Santa         Singh v. State of Punjab(1).             In Santa Singh(1), the Sessions Judge, after pronouncing         the  judgment convicting the appellant for a double  murder,         did not give him opportunity to be heard on the question  of         sentence.   He   pronounced the appellant guilty  of  murder         and, as a part of a single judgment, imposed the sentence of

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       death.   The  High Court confirmed the  conviction  and  the         sentence  of  death.  In appeal, it was held by  this  Court         (Bhagwati  and Fazal Ali, JJ) that the provisions of s.  235         of the Code of Criminal Procedure, 1973, which are clear and         explicit, require that the Court must in the first  instance         deliver  a  judgment of acquitting the accused  and  if  the         accused  be convicted,  he  must be given an opportunity  to         be heard in regard to the sentence.  Holding that the provi-         sions of s. 235 are mandatory in character,  the  Court  set         aside  the sentence of death and remanded the case  to.  the         Sessions  Court  with the direction that it should  pass  an         appropriate sentence after giving to the appellant an oppor-         tunity to be heard on the question of sentence.                       Section  235 of the Criminal  Procedure  Code,                       1973 reads thus:                              "235(1)  After  heating  arguments  and                       points of law (if any), the Judge shall give a                       judgment in the case.                              (2).  If the accused is convicted,  the                       Judge shall, unless he proceeds in  accordance                       with  the provisions of Section 360, hear  the                       accused on the question of sentence, and  then                       pass sentence on him according to law."             The  imperative language of sub-section (2)  leaves  no.         room for doubt that after recording the finding of guilt and         the  order  of conviction, the Court is under an  obligation         to  hear the accused on the question of sentence  unless  it         releases him on  probation  of  good conduct or after  admo-         nition under s. 360.  The right to be heard on the  question         of sentence has a beneficial purpose, for a variety of facts         and  considerations  bearing  on the sentence  can,  in  the         exercise of that right, be placed before the Court which the         accused, prior to the enactment of the Code of 1973, had no.         opportunity to do.  The social compulsions, the pressure  of         poverty,  the  retributive instinct to seek  an  extra-legal         remedy to a sense of being wronged, the lack of means to  be         educated  in  the  difficult art of an  honest  living,  the         parentage,   the heredity--all these and similar other  con-         siderations can, hopefully and legitimately, tilt the scales         on  the  propriety of sentence.  The mandate  of  s.  235(2)         must, therefore, be obeyed in its letter and spirit.           (1) [1976] 4 S.C.C. 190.         658             But  we are unable to read the judgment in  Santa  Singh         (supra)  as laying down that the failure on the part of  the         Court, which convicts an accused, to ’hear him on the  ques-         tion  of sentence must necessarily entail a remand  to  that         Court  in order to afford to the accused an opportunity  to.         be  heard on the question of sentence.   The Court, on  con-         victing  an  accused, must unquestionably hear  him  on  the         question  of sentence.  But if, for any reason, it omits  to         do so and the accused makes a grievance of it in the  higher         court,  it would be open to that Court to remedy the  breach         by  giving a hearing to the accused on the question of  sen-         tence.  That opportunity has to be real and effective, which         means  that the accused must be permitted to  adduce  before         the  Court  all the data which he desires to adduce  on  the         question  of sentence.  The accused may exercise that  right         either  by instructing his counsel to make oral  submissions         to the Court or he may,  on affidavit or otherwise, place in         writing before the Court whatever he desires to place before         it on the question of sentence.  The Court may, in appropri-         ate  cases, have to adjourn the matter in order  to give  to         the  accused sufficient time to produce the  necessary  data         and  to  make his contentions on the question  of  sentence.

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       That,  perhaps, must inevitably happen where the  conviction         is recorded for  the first time by a higher court.             Bhagwati J. has observed in his judgment that care ought         to  be taken to ensure that the opportunity of a hearing  on         the  question of sentence is not abused and turned  into  an         instrument  for  unduly protracting  the  proceedings.   The         material  on which the accused proposes to rely  may  there-         fore,  according to the learned Judge, be placed before  the         Court  by  means of an affidavit.  Fazal Ali, J.,  also  ob-         serves  that the courts must be vigilant to exercise  proper         control over their proceedings, that the accused must not be         permitted  to adopt dilatory tactics under the cover of  the         new  right and that what s. 235(2) contemplates is  a  short         and  simple  opportunity  to place  the  necessary  material         before the Court.  These observations show that for a proper         and  effective implementation  of the  provision   contained         in  s.  235(2),  it is not always necessary  to  remand  the         matter to the court which has recorded the conviction.   The         fact  that  in Santa Singh (supra) this Court  remanded  the         matter to the Sessions Court does not spell out ratio of the         judgment  to  be that in every such case there has to  be  a         remand.   Remand  is an exception, not the rule,  and  ought         therefore to be avoided as far as possible in the  interests         of expeditious, though fair disposal of cases.             After counsel for accused Nos. 3, 9, 10 and 11 raised an         objection  before us that the sentence of death was  imposed         upon   the  accused without hearing them as required  by  s.         235(2)  of the code, we granted to them liberty  to  produce         before  us  such material as they desired and to  make  such         contentions  as  they thought necessary on the  question  of         sentence.  Accordingly, counsel made their oral  submissions         before  us on the question of sentence and they  also  flied         the  relevant material before us showing why we  should  not         uphold the death sentence imposed on the accused.         659             That  takes  us to the question of  sentence.   For  the         offence  under s. 302, it is no longer obligatory to  impose         the  sentence of death. Prior to the amendment of s.  367(5)         of  the Code of Criminal Procedure, 1898 by Act 26 of  1955,         the  normal sentence for murder was death and the Court  had         to  record its reasons for imposing the lesser  sentence  of         life  imprisonment.   The obligation to record  reasons  for         imposing  the lesser penalty was deleted by Act 26 of  1955,         so  that Courts became free to award either the sentence  of         life imprisonment or the sentence of death, depending on the         circumstances  of each individual case.  Section  354(3)  of         the Code of 1973 provides that when the conviction is for an         offence  punishable with death or, in the alternative,  with         imprisonment  for life or imprisonment for a term of  years,         the judgment shall state the reasons for the sentence award-         ed,  and in the case of sentence of death, the special  rea-         sons for awarding that sentence.  The legislative history of         the  sentencing provisions and the explicit language  of  s.         354(3)  show that capital punishment can be awarded for  the         offence  of  murder, only if there are special  reasons  for         doing  so.  All murders are inhuman, some only more so  than         others.             Having considered the matter in all its  aspects--penal,         juristic and sociological--and having given our most anxious         consideration  to  the problem, we are of the  opinion  that         accused Nos. 3, 9, 10 and 11 deserve the extreme penalty  of         law and that there is no justification for interfering  with         the sentence of death imposed upon them.         Accused No. 3 put an end to four innocent lives, three small         girls ten years of age and a woman in her thirties.  Accused

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       Nos.  10 and 11 committed the murders of Haribai, her  nine-         year  old  daughter and her infant child.  The  victims  had         given  no  cause for the’ atrocities  perpetrated  on  them.         They were killed as a child kills flies.  And the  brutality         accompanying  the  manner  of  killing  defies  an  adequate         description.   The luring of small girls, the  gagging,  the         cutting  of  their private parts, the ruthless  defiling  in         order    to  prevent identification of the victims  and  the         mysterious motive for the murders call for but one sentence.         Nothing  short  of  the death sentence can  atone  for  such         callous  and calculated transgression of law.   Morbid  pity         can  have  no place in the assessment of murders  which,  in         many  respects.  will remain unparalleled in the  annals  of         crime. Accordingly, we confirm the death sentence imposed on         accused Nos. 3, 9, 10 and 11.                       The overall result is as follows:                           (1  ) We uphold the acquittal  of  accused                       Nos.  1 and 2 and dismiss Criminal Appeal  No.                       441 of 1976 filed by the State of Maharashtra.                       Both the two Accused who are in jail shall  be                       released.                               (2)  We uphold the conviction  of  ac-                       cused  No. 3 under s.. 302 read with S. 34  of                       the  Penal  Code  and the  sentence  Of  death                       imposed upon him. Criminal Appeal No. 1438  of                       1976 filed by him is accordingly dismissed                                (3)  We  uphold  the  conviction   of                       accused  Nos. 9, 10 and 11 under s.  302  read                       with s. 34 of the Penal Code and                       3--707SCI/77                       660                       the  sentence of death imposed upon  them.  We                       acquit accused No 12 by giving him the benefit                       of doubt and direct that he shall be released.                       Criminal  Appeal No.437 of 1976 filed  by  ac-                       cused Nos. 9 to 12 thus succeeds partly in  so                       far  as accused No. 12 is concerned and  fails                       in  so  far as accused Nos. 9, 10 and  11  are                       concerned.             Before concluding, we would like to make a few  observa-         tions  concerning the detection and investigation  of  these         crimes.   It  is a matter of grave concern that  the  police         were not able to obtain any clue whatsoever to the  numerous         murders which were committed so systematically in the  small         village  of Manwat. The spate of those atrocities  commenced         with  the murder of Gayabai on November 14, 1972  and  ended         with the murders of Haribai and her two daughters on January         4,, 1974. All along, a strong patrol of policemen was  keep-         ing vigil in the very locality in which most of the  murders         were  committed.   The evidence of Dy. S.P.  Waghmare  shows         that  apart from the mobile police, fixed post patrols  were         deputed  to keep a close watch on the activities of all  and         sundry  in  the area which was chosen by the  murderers  for         their  criminal activities.  Haribai and her daughters  were         murdered under the very nose of the policemen.  Quite a  few         of them were on duty a few hundred yards away from the scene         of occurrence and yet the culprits could escape with impuni-         ty.   And it is astonishing that when the three dead  bodies         were lying in close proximity, the police with their trained         hawk-sight  could  see only one.  All this hardly  does  any         credit to the efficiency and watchfulness of a system  which         in  Maharashtra has won many encomiums.   Eventually  Provi-         dence, and perhaps the police, persuaded Samindrabhai Pawar,         accused No. 4, to make a confessional statement on  December         28, 1973 and the wheels of a baffled machine started  moving

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       fast.             It  would  perhaps have been more conducive  to  greater         efficiency if an unduly large number of senior police  offi-         cers were not commissioned for the investigational  work..No         one  seems  to have assumed an  overall  responsibility  for         investigation  and so many of them working together  spoiled         the broth like so many cooks.             It is plain common-sense that suspects are seldom  will-         ing  to furnish a quick and correct clue to the  crimes  for         which  they are arrested.  A certain amount of  coaxing  and         promising has inevitably to be done in order to persuade the         accused to disclose at least the outlines of the crime.  But         the  use  of  strong methods of  investigation,  apart  from         raising  problems  concerning the observance of  decency  in         public  affairs  and of human dignity, is fraught  with  the         danger that the very process by which evidence is  collected         may become suspect and fail to inspire confidence.   Ganpat,         the approver, was driven to admit that he was tortured while         in the lock-up and we have serious doubts whether the injury         caused  on  his head was, as alleged by  the  police,  self-         inflicted.  A witness called Ramchandra also  admitted  that         while under interrotation the police pulled out his pig-tail         We  have resisted the failing which tempts  even  judicially         trained  minds to revolt against such methods and throw  the         entire  case  out of hand.  But we must with hopes  for  the         future, utter a word of warning that just as crime does  not         pay         661         so  shall it not pay to resort  to torture  of suspects  and         witnesses during the course of investigation.  History shows         that  misuse  of authority is a common  human  failing  and,         therefore,  Courts  must guard against  all  excesses.   The         police,  with their wide powers, are apt to  overstep  their         zeal to detect crimes and are tempted to use the strong  arm         against those who happen to fall under their secluded juris-         diction.   That  tendency and that temptation must,  in  the         larger interests of justice, be nipped in the bud.         GOSWAMI, J.--I am in agreement with the judgment proposed by         my  brother  Chandrachud  which is a  piece  of  conspicuous         clarity  after  marshalling and compressing a mass  of  evi-         dence.  I also agree with the views expressed therein on the         legal  questions  raised in these appeals. Even  so  I  feel         obliged to add a few lines.         I  would particularly emphasise that there is  no  mandatory         direction for remanding any case in Santa Singh v. The State         of Punjab(1) nor is remand the inevitable recipe of  section         235(2) Code of Criminal Procedure, 1973.  Whenever an appeal         court finds that the mandate of section 235(2) Cr. P.C.  for         a  heating  on sentence had not been complied with,  it,  at         once,  becomes the duty of the appeal court to offer to  the         accused an adequate opportunity to produce before it whatev-         er materials he chooses in whatever reasonable way possible.         Courts should avoid laws’ delay and necessarily inconsequen-         tial  remands  when the accused can secure full  benefit  of         section  235(2)  Cr. P.C. even in the appeal court,  in  the         High  Court  or  even in this Court.   We  have  unanimously         adopted this very course in these appeals.             Treasure-trove  legend survives generations.  There  had         been many casualties in honest exploits to the peaks of gold         bars.  Gold was not found  So was treasure-trove not located         in spite of the notorious Manwat murders.             The  gruesome  story  revealed in  these  cases  beggars         description of the limit of human credulity, horrid  avarice         and unconcerned and heartless execution of evil ends.  I  am         not  on  that.  The final curtain, so far as  legal  process

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       goes is drawn.             Conviction in these cases does no credit to the  police,         nor to the hoodwinking demonstration of flashy  ’dog-squad’.         Murders committed. one ’after the other in series, under the         very  nose  of  a publicised ring of a  camping  platoon  of         police personnel widely cordoning the entire scene of occur-         rence  for months with check-posts, for recording  names  of         passers-by, may secure banner in newspapers, but no  laurels         for the police.             But  for  the blazing lust for life  of  the  confessing         approvers  supplying the infrastructure for the  prosecution         case which, we find, is corroborated in material particulars         by  independent testimony so far as some of  the  appellants         are  concerned,  there  is much more to be.  desired  in  an         investigation  of  such awe-inspiring  cases.   The  archaic         attempt to. secure confessions by hook or by crook seems  to         be the be all and end all of the         (1) [1976] (4) SCC 190.         662         police  investigation.  The investigation does  not  reflect         any  imaginative drive on the part of the police in a  crime         of this magnitude.             To  mention  one item only, even Balabhau Lad,  a  close         neighbouring relative of the deceased Haribai and master  of         Umaji,  the  star witness against accused 9 to 12,  has  not         been  produced  in this case to corroborate the  sudden  and         instant  disappearance of Umaji for four days from the  very         scene  of murder, being his master’s field, by  leaving  his         horse tethered therein.  Next having got blood stains in the         articles  produced  by the accused there was no  attempt  to         ascertain  the blood group of the accused’s family  members.         In  fact  accused No. 9 did tell the court  that  the  blood         stains  in the exhibit were from his wife’s injury from  the         axe.  Again, accused  No. 10 said that the  blood stains  on         the  exhibited clothes were from his child’s bleeding  nose.         We  have disbelieved the pleas of the accused but that  does         not  redound to the credit of the quality of the  investiga-         tion of these dastardly crimes.             It is distressing that when three murders took place  on         the 4th of January, 1974, and all the dead bodies were lying         at  the same field, only one dead body was located  and  the         other  two.  were  not traced until next  morning.   If  the         murderers could escape from the barricaded area in broad day         light by throwing dust in the eyes of the police, what would         have  happened  if the other two dead  bodies  were  removed         during the night beyond trace; ?  Is this investigation with         a  ’dog-squad’  at command ?  A dog is its  master’s  voice.         Did the police play the true master ?             The  police.  should remember that  confession  may  not         always  be  a short-cut to solution.  Instead of  trying  to         "start" from a confession they should strive to "arrive"  at         it.   Else, when they are busy on this short route  to  suc-         cess, good evidence may disappear due to inattention to  the         real  clues. Once a confession is obtained, there  is  often         flagging of zeal for a full and thorough investigation  with         a view to establish the case de hors the confession.  It  is         often  a  sad experience to find that  on   the  confession,         later,  being inadmissible for one reason or other the  case         founders in court.             It is an irony that a Sub-Divisional Magistrate  holding         executive  charge of a Sub-Division was completely  ignorant         of  the  duties imposed on him under section  164,  Code  of         Criminal  Procedure  and we had to reject  the  confessions.         Under the new Code such powers are exercised by a Metropoli-         tan  or  Judicial  Magistrate.  The  pitfalls  in  recording

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       confession  may be so. disastrous that it may be of  immense         value  for the Magistrates to have some  practical  guidance         from superior officers for properly discharging their  func-         tion under section 164, Cr. P.C.             Even after conclusion of the trial in a heinous case  of         this magnitude, the police should be well-advised to  pursue         clues and for missing links to unearth ’the yet undiscovered         guilty  ones and should not rest satisfied with ’the  result         of these cases. There is yet room for a wider probe into men         and matters in connection with these ghastly crimes.         663             Counsel  drew our attention to a very disquieting   fea-         ture   in the attempt of the police to see that the  accused         did not get the assistance of the local Bar.  The suggestion         has  of course been denied by the police officer.  If  there         is any truth in this unholy move for denying proper  defence         to  the  accused, no matter how heinous the offence,  it  is         highly  obnoxious to the notions of fair play and  all  that         justice stands for.  Such ideas should be banished.             I  hasten  to add that the accused before us  could  not         have  been  better defended as has been done  by  the  three         conscientious  young  counsel who impressed  us  with  their         industry and ability.         P.H.P.         664