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CASE NO.: Appeal (crl.) 25-26  of  2000

PETITIONER: NARAYAN CHETANRAM CHAUDHARY & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       05/09/2000

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Three desperadoes, the two appellants and one Raju (PW2) who  had gone amuck, committed the heinous crime of  murders in  a  most  ghastly  and  shocking  manner  for  which  the appellants  were  charged with various  offences  punishable under  Sections  120B,  302, 34, 342, 392, 297  and  449  of Indian  Penal  Code.   On  proof  of  the  charge  that  the appellants  had committed the murder of five innocent women, one of whom was pregnant, and two children of teenage of one and  a  half  years  and two and a  half  years,  they  were convicted  and sentenced to death alongwith other sentences, by  the Trial Court.  The High Court accepted the  Reference made  for  confirmation of the death sentence and  dismissed the  appeals filed by the appellants for setting aside their convictions.

   On  the date of occurrence the appellants were of  20-22 years  of age.  The deceased, victims of the crime, included Meerabai  Rathi,  aged about 45 years,  her  daughter-in-law Babita  @  Nita  Rathi, aged about 24 years,  her  unmarried daughter  Preeti  aged about 19 years, her married  daughter Hemlata  aged about 27 years, her maid servant Satyabhamabai Sutar  aged  about 42 years, Chirag, son of Babita aged  two and a half years, Pratik, son of Hemlata aged one and a half years.

   All  women  and  children  were killed  one  by  one  by inflicting  numerous knife blows on their persons.  All  the deaths,  except  of Pratik (child of one and a  half  years) were  actually caused by the brutal knife blows inflicted by Narayan Chetanram Chaudhary (hereinafter referred to as "the accused  No.1").   Pratik  was  killed by  Jitendra  @  Jitu Nayansingh  Gehlot (hereinafter referred to as "the  accused No.2").  Raju, PW2 actively participated and facilitated the commission  of  the  crime.   The  murders  were  apparently committed  to  wipe  out all evidence of robbery  and  theft committed by the accused persons.

   The prosecution case, as revealed from the investigation

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and  official report filed in the Court, is that complainant Sanjay  Rathi  (PW1) along with his father Keshrimal  Rathi, his  mother  deceased  Meerabai Rathi,  his  younger  sister deceased  Km.Preeti,  his wife deceased Babita and  his  son deceased  Chirag  were residing in Flat No.6 on  the  Second Floor  of Himanshu Apartment, Shilavihar Colony, Puad Phata, Kothrud,  Pune.   One of the daughters of  Keshrimal  Rathi, deceased Hemlata was married to Shri Shrikant Navandhar PW15 in  the  year 1992 and had come to her parents’ house  along with  her  son on the fateful day.  Raju Rajpurohit who  was Accused  No.3 and later after becoming approver appeared  as PW2,  a resident of Muklava District, Ganganagar,  Rajasthan after  passing  11 standard examination in the year  1993-94 came  to  his  elder brother Kalyan Singh at  Pune  for  the purposes  of  getting  further education  while  working  or serving  there.  He was employed in Bombay Vihar situated at Laxmi Road, Pune since June, 1994.  Accused No.1 and Accused No.2  were also working at the said Bombay Vihar during  the aforesaid  period as Cook and Counter Salesman respectively. After being acquainted with each other, all the three became friends.   Raju,  PW2 was removed from Bombay Vihar  on  8th June, 1994 whereafter he got the service at Sagar Sweet Mart owned   by  Keshrimal  Rathi  and   his  son  Sanjay   Rathi (complainant).   In the course of his employment he used  to go to the house of Rathis to bring Chappatis for servants of the  shop, daily and thus acquainted himself with the family members of the complainant as also their maid-servant.  Raju worked  with  the  Rathis for about two to two  and  a  half months.   When  his  request for enhancement of  salary  was declined by the Rathis, he left their service.  At this time Accused  No.2 went to him and informed that he too has  left the  job at Bombay Vihar and, therefore, Raju should talk to his employer to keep Jeetu in their service.  Raju requested Sanjay  Rathi  to employ Accused No.2 but as he  demanded  a salary of Rs.1200/-, Sanjay Rathi expressed his inability to provide  him  the job.  Meanwhile Raju learnt  that  Accused No.1  has also left the job at Bombay Vihar.  Thereafter all the  three  went to a room in Nagpur Chawl in which  Accused No.1 was residing and started living there.

   After being rendered jobless and the limited amount they had with them being spent, they started thinking about their future.   They  hatched a conspiracy and made up a  plan  of robbing  the  house of some "seth" i.e.  a businessman.   On the  night  of  23rd  August, 1994 they  decided  to  commit theft/robbery at the house of Rathis.  Accused No.1 told the other  accused that before committing the theft/robbery they have  to  make some further preparations.  He  suggested  to purchase  a knife because all the inmates of the house  were to  be killed so that no- one could depose anything  against them.   They  also decided to sprinkle chilly powder in  the mouth  and eyes of their victims to immobilise them for easy killings  by  the  accused.  On 24th August,  1994  all  the accused  persons discussed the details of the plan to commit the theft and killings at the house of Rathis.  Accused No.2 agreed  to  sell  his  silver anklet and  out  of  its  sale proceeds  to purchase a new knife.  They went to the shop of Shrinagar  Jewellers  on 24th August, 1994 in  the  evening. Accused  No.2  requested  the  proprietor  of  the  shop  to purchase  his  said silver anklet.  As Accused No.2 was  not having  the  purchase receipt of his anklet, the  shopkeeper refused  to  purchase it.  However, as the  accused  persons were then residing at Nagpur Chawl which was adjacent to the Shrinagar Jewellers’ shop, the anklet was kept as pledge and they  were given a sum of Rs.90/- as loan.  They went to the

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shop  of  Jaswant (PW5) and purchased one utility  knife  of Fiscer make (Article 147) for Rs.55/-.

   On  25th August, 1994 at about 11 a.m.  to 12 Noon,  the accused  persons went towards the house of Rathis to observe the  situation.  They stayed and surveyed the said area  and found  that the area remained isolated during 2.00 p.m.   to 4.00  p.m.   They decided to commit the act of  theft  after killing  all the persons, whosoever were found at the  house of Rathis during the aforesaid period only.

   On 26th august, 1994 at about 8.45 a.m.  the complainant Sanjay  Rathi is stated to have left his house for his shop.@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Thereafter  Hemlata,  deceased  with  her  husband  and  son@@ JJJJJJJJJJ arrived  at  the  house of Rathis in connection  with  tying Rakhi  to  her brother PW1 as she had not come for the  said purpose  on  the  day of Rakhi, Poornima  Festival  on  21st August,  1994.  Sanjay Rathi, PW1 came to his house at about 1  p.m.   to 1.30 p.m.  on his motorcycle.  Sanjay  and  his brother-in-law  Shri  Shrikant  Navandhar, PW15  took  their meals  and went to the complainant’s shop.  Accused  persons left  their room at about 12 Noon for going to the house  of Rathis.   Accused  No.1  was armed with the  new  knife  and Accused  No.2  with the old one.  They had taken  with  them chilly  powder  regarding  which decision had  already  been taken,  as  according  to them its throwing in the  eyes  of victims  would have facilitated the commission of the crime. They  reached near the house of Rathis at about 2 p.m.  They saw  one  motorcycle kept near the said building  which  was identified  by  Raju PW2 as belonging to Sanjay Rathi,  PW1. Realising  that  Sanjay Rathi, PW 1 was at his  house,  they returned to the main road and watched.  After about one hour they  again  returned  near the building of  Rathis.   After noticing  that the motorcycle of Sanjay Rathi was not there, they  decided  to  execute their plan.   Accused  No.1  told Accused  No.3 (PW2) to go-ahead into the house of Rathis and start  talking  with  the family members in respect  of  his service  and  by  that  time they would  reach  there  after chaining  the doors of other flats in the said building from outside.   After  the doors of all other flats were  chained from  outside,  Raju (PW2) went to the flat of  Rathis.   He found  that  the door of the flat was half open and when  he peeped  into the said flat he saw the maid-servant, deceased Satyabhamabai  Sutar cleaning the floor with the water.   He entered the flat and the appellants followed him.  Appellant Jeetu closed the door from inside.  Accused No.2 Jeetu threw chilly  powder on the inmates of the flat who had  collected into the hall on hearing the call made by the maid- servant. All the inmates were made to keep quite and surrender to the orders  of the accused persons lest they may be deprived  of their  lives  with  the knives which the appellants  had  in their  hands.   The family members of Rathis were  taken  to different rooms in the flat.  Realising that the middle aged woman  Meerabai,  who had raised her voice, was the lady  of the  house, Accused No.1 promptly asked her about valuables. Seeing  a knife in his hand and realising the danger to  her life  as  also the lives of the rest of the members  of  the family  she  immediately  pointed out a  finger  towards  an almirah  inside  the room.  Accused Nos.1 and 2 took her  to the  said  room.   Accused  No.2   handed  over  the  packet containing remaining chilly powder to Raju, PW2 and directed him  to sprinkle it on the victims if they started  shouting or  making any other effort.  Smt.Meerabai was done to death

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with  the knife blows inflicted by Accused No.1 and was left to  lie on bed where she died.  Thereafter Babita @ Nita was taken  to another room, apparently for getting the valuables and  was killed by Accused No.1 by inflicting knife injuries on  her person.  Her son Chirag was also likewise killed  by the  aforesaid accused.  Raju PW2 took Preeti into the  bath room  at  the instance of Accused No.1 who cut a  length  of wire  of washing machine and used it to choke her to  death, who  however, survived.  When they came out of the bathroom, they  heard  some  noise from the  bathroom  which  prompted accused  No.1 to go again inside.  In the bathroom he  found Preeti  alive  and told his other colleagues that  ’she  was still alive and had not died’.  To accomplish the conspiracy hatched  he  gave knife blows to her which resulted  in  her death.   Raju  PW2 took Satyabhamabai Sutar in  the  kitchen where  the accused No.1 had already reached and was  washing the  blood stained knife.  Raju held Satyabhamabai Sutar and accused  No.1  gave  knife  blows resulting  in  her  death. Thereafter  Raju and accused No.1 went towards a room  where the  married daughter of Rathis was held up by Accused No.2. Pratik,  her  son was tried to be taken from her, which  she resisted.   Accused  No.2 assured her that he will not  kill the  child  but  will  give   him  to  his  grandmother  and threatened  that if the child was not given to him, he  will kill the child.  Hemlata was also killed by inflicting knife injuries.  Accused No.2 and Raju PW2 took the child into the room  where  Meerabai was lying dead in the pool  of  blood. The  child was suffocated by gagging and when his  movements stopped,  the  Accused No.2 put down the child on the  floor saying he had died.  Accused No.2 and Raju PW2 then came out and  joined  Accused No.1 who was standing  before  Hemlata. Upon  enquiry  about the child she was told by Accused  No.2 that  the child had been given to her grandmother.   Accused No.1 then caught hold of Hemlata who put some resistence and in  the  process fell down.  Accused No.2 gave her blows  by putting   his  knees  on  her   stomach  and  when  she  was immobilised  this way, the Accused No.1 gave her knife blows on  her neck with the result she also died.  Almirahs  found in the flat were emptied to the extent the accused could put articles  and  other  cash  and  valuables  in  the  air-bag obtained  from  the said flat.  Before leaving the scene  of occurrence  Accused  No.1 changed his pant which  was  blood stained  and also put on him khaki jerkin clothes which were available  in  the house.  Accused No.2 helped himself to  a black shirt.  Blood stained clothes of Accused No.2 were put in the air-bag along with stolen articles.  At the time when they  were  about  to leave the flat,  the  phone  installed therein  started  ringing.   Accused No.1 cut  the  telphone wires with his knife.  At this stage they heard the cries of child  from the room where Meerabai was lying dead.  All  of them  went  inside and found that the child, Pratik had  not died.   Despite  the death spree caused, they did not  think even to leave that child alive.  Accused No.2 took the knife from  Accused  No.1 and gave blows to the child  and  killed him.   After  completing  the  crime  of  theft/robbery  and murders,  the accused persons came out of the house with the air-bag  in  which they had kept the blood stained  clothes, knives  and  stolen  property.   Vishwajit  Joshi,  PW9  saw accused  persons  coming  out of the compound  wall  of  the concerned  Himanshu Apartments where the flat of the  Rathis was  located.  On the road they boarded a Rickshaw and  came back  to  their room in Nagpur Chawl.  As  noticed  earlier, Sanjay  Rathi,  PW1, his brother-in-law  Shrikant  Navandhar (PW15)  had  left the flat before the accused  attacked  the victims.   Both of them went back to the house of Rathis  by

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6.45 p.m.  Sanjay Rathi PW1 rang the door-bell and as nobody opened  the  door,  he  made inquiries  from  Smt.Khara  and Smt.Dhade  as to whether the key of the door of his flat was kept  at  their houses.  On getting reply in  the  negative, Sanjay  Rathi  made inquiries from his relatives and  family members by making phone calls from the house of Mrs.Khara as to  whether  his  family  members  had  gone  there  and  on receiving  the information in the negative he telephoned his father  at  the shop.  His father told him that nobody  from the  family members had come to the shop nor did he  receive any  message  from them.  Sanjay Rathi went to the shop  and brought  the  duplicate  key.   Meanwhile  Damu  Sutar,  the husband  of  the maid-servant had also come  there.   Sanjay Rathi  PW1  opened  the door with the duplicate key  in  the presence   of  Shrikant  Navandhar   PW15,  Damu  Sutar  and Smt.Sharmila  Dhade.  Upon entering in the flat they saw the maid-  servant  Satyabhamabai Sutar lying dead in a pool  of blood.  They rushed out crying and saying that the police be called.   On hearing the cries of complainant Sanjay  Rathi, the  neighbourers  and by-passers got collected in front  of the  building.  Two of the neighbours went to Kothrud Police Station  and  informed the police that several  persons  had gathered  in  front  of the Apartment in which the  flat  of Rathis  was  situated.   Entry  about  the  information  was recorded  in  the Station Diary whereafter PI  Vikram  Pawar along  with his staff rushed to the Apartment building.  The said  Sh.Vikram  Pawar  along  with  Sanjay  Rathi  PW1  and Shrikant  Navandhar,  PW15  entered  the flat  and  saw  the maid-servant  Satyabhamabai Sutar, Preeti, Meerabai, Pratik, Babita,  Hemlata and Chirag lying dead in pools of blood  in the kitchen, bathroom, bed-room and the store of the flat of Rathis.   The  almirahs were found open.  Sanjay  Rathi  was asked  to  verify the purportedly stolen  articles.   Sanjay Rathi  was  not  in  a condition to check  the  articles  on account  of  the shock received after having seen  the  dead bodies  all around in his flat.  However, after the  passage of  some time and consolation by Vikram Pawar, Sanjay  Rathi told  the police that a cash of Rs.85,000/- besides gold and silver  ornaments  was missing.  Meanwhile,  after  reaching Nagpur  Chawl,  where  the accused  persons  were  residing,@@                                              JJJJJJJJJJJJJJJ Accused  No.2  asked  PW  2 Raju to bring  liquor  and  some@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ edibles  for  which he was given Rs.200/-.  The air-bag  was opened  in which they had kept their blood stained  clothes, mouth-organ,  knives, camera, one bundle of Rs.500  currency notes  denomination,  one  bundle of Rs.100  currency  notes denomination,   one   bundle  of    Rs.50   currency   notes denominations  and bundles of Rs.10/- denominations, besides gold  and  silver  ornaments.   Raju   kept  for  himself  a mouth-organ,  camera and a lady wrist watch of Rico make  as also  some  coins of Nepal origin.  Mangalsutra and one  HMT watch  was taken away by Accused No.1.  Golden chain,  three golden  bangles and one golden ring, having S.R.  written on it,  were taken away by Accused No.2.  Raju PW2 was asked by Accused  No.1  to  wash the blood  stained  clothes.   While washing Pant of Accused No.1 Raju found one gold ring in the pocket which he took out and kept with him.  As he could not wash  the blood stained clothes of Accused No.1 he put  back the  ring  in  the  pocket of the pant which  was  later  on concealed  in the tin roof.  The accused thereafter went  to the  jewellery  shop  where the silver anklet  was  pledged. After  making  the  payment  they   got  the  silver  anklet released.  On reaching back in the room in the Nagpur Chawl, they consumed the liquor brought by PW2 and moved around the

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area for about an hour or so.  Again coming back to the said room,  Accused  No.1 declared that he will go and  hide  the knives.   He  went away and on his return, upon inquiry,  he told  that the knives were hidden near the latrine.  On  the next  day  at  the  instance of Accused  No.1  Raju  brought Newspaper  "Prabhat" and "Aaj Ka Anand" wherein the incident of  murders and dacoity was reported without indicating  the identity  of  the  accused persons.  In the  afternoon  they purchased  the Evening Newspaper "Sandayanad" which  carried further  details  of the incident and mentioned the name  of Accused  No.2  being  probably responsible  for  the  crime. After reading such news item they agreed to part company and to  meet  at  Ahmedabad on 29th August, 1994.  They  met  at Ahmedabad and again dispersed.  Accused No.1 was arrested on 5th September, 1994, Accused No.2 on 21st November, 1994 and Raju  PW2  on  15th October, 1994 from different  places  in Rajasthan.   They  made disclosure statements consequent  to which  various  articles  were  recovered  vide  panchanamas prepared  in  accordance  with law.  In  the  identification parades  they were identified by various witnesses.  All the three  accused  persons  were  committed  to  the  Court  of Sessions  for  standing trial of various offences under  the Indian  Penal Code as noticed earlier.  After the commitment but  before the commencement of the trial Accused No.3  Raju Rajpurohit  sent  a  letter to the  Commissioner  of  Police repenting  and  expressing his wish to make  a  confessional statement.   PI  Shinde (PW 63) filed an application in  the Trial  Court  along with letter of accused Raju  dated  22nd November,  1995  praying  the permission of  the  Court  for getting  the  confessional  statement of  the  accused  Raju Rajpurohit   recorded.   The  Trial   Court   accepted   the application  and  directed the Superintendent of Prisons  to allow  to  get the confessional statement of Raju  recorded. Shri  Khomane, Special Judicial Magistrate was also directed to   record  the  confessional   statement  of  Raju.    The confessional  statement,  as  recorded by  Special  Judicial Magistrate  (PW41)  was  received by the Trial  Court  in  a closed  envelope.  On 3rd January, 1996 an application under Section  307  of  the Cr.P.C.  was filed on  behalf  of  the prosecution  with a prayer to tender pardon to accused  Raju Rajpurohit,  on  making  necessary   inquiries  and  on  the condition  of his making true and full disclosure of all the facts  within  his  knowledge.   On   receipt  of  the  said application,  the Trial Court directed the Superintendent of the  concerned jail to produce the aforesaid accused in  the Court  on  4.1.1996  at  11   a.m.   The  arguments  on  the application  of  the prosecution were heard after  affording the advocates of the appellants an opportunity of addressing the  court.   The  Trial Court, after hearing  accused  Raju observed:   "On query by this Court he stated before me that he  is  prepared to make a full and true disclosure  of  the whole  of  the circumstances within his knowledge  regarding these  offences and the entire incident involved and that he is ready to accept the pardon.  I have carefully perused the entire  record  of  this  case  and  also  the  confessional statement  of  this  accused Rajendrasingh  alias  Rajusingh Ramlal  Purohit which has been recorded by Special  Judicial Magistrate,  Pune.   The  said  confessional  statement  was received  in  this Court in a closed envelope on  21.12.1995 from Shri G.H.  Komne, Special Judicial Magistrate and since the  said envelope was not bearing lac seals on the packet I kept  the said envelope in another envelope, closed the said envelope  and  got the lac seals put on it.  Today I  opened the  said  sealed envelope of this Court and also the  inner envelope  and  took out the said confessional statements  in

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open  court and then perused the same.  I am satisfied  from the  said  confessional  statements  made  by  this  accused Rajendrasingh  alias  Rajusingh  Ramlal  Purohit  and  other material  on  the  record of this sessions  case  that  this accused  Rajusingh  alias Raendra Singh Ramlal  Purhoit  has participated  into the entire incident involved and thus his privy with all the happenings at the time of incident.

   It  is clear from the record of this sessions case  that there  is only circumstantial evidence and there are no eye- witnesses  of  this incident, and therefore, with a view  of obtaining  at the trial the evidence of any person who  have witnessed  the incident, it is necessary to tender pardon to the  present  accused Rajendrasingh alias  Rajusingh  Ramlal Purohit as prayed by the prosecution.  The accused Rajusingh alias  Rajendrasingh  Ramlal  Purhoit  has  also  shown  his willingness to become a approval and to make a full and true disclosure  of  the  whole of the circumstances  within  his knowledge  relating  to  the offences and  the  every  other persons  concerned  whether  as principle or abetor  in  the commission  thereof  and  further shown his  willingness  to accept  pardon if the same is tendered to him." and  ordered that  accused Raju was tendered pardon on condition that  he shall  make  a full and true disclosure of the whole of  the circumstances  within his knowledge relating to the offence. The  aforesaid  accused  was  directed to  be  sent  to  the District  Prison, Satara and be detained there until further orders.   Copies  of  the statement were  furnished  to  the counsel of the appellants.

   After  recording  the  statement   of  the   prosecution witnesses  the learned Trial Judge recorded the statement of the  accused  under  Section 313 of the  Criminal  Procedure Code.   The Trial Court undertook a very elaborate  exercise by  putting almost 600 questions to the accused with respect to  the  evidence  brought on record and  the  circumstances appearing  against  them.   Accused No.1  pleaded  alibi  by stating  that he was not in Pune.  Accused No.2 admitted  of being in Pune and also that he knew the Approver as they had been  working  together in Bombay Vihar Restaurant.  He  put forth  a  case of there being enmity with the Approver.   He has admitted that Raju PW2 was working in Bombay Vihar where he  also worked.  Accused No.1 denied that he knew Raju PW 2 at  all.   None  of the accused, however,  led  any  defence evidence.   On  behalf of Accused No.2 besides  making  oral submissions   his   counsel   submitted  written   arguments comprising  of 470 pages (Exhibit 349 contained in Vol.IV of the paperbook).

   After  scanning  the whole of the prosecution  evidence, hearing  the  oral  submissions  and  perusing  the  written arguments,  the  Trial Court, in a very lucid  and  detailed judgment, convicted and sentenced the appellants as under:

   "The  accused No.1 Narayan is convicted for the  offence punishable  under Section 302 of the Indian Penal Code  (for causing  the  deaths of deceased Meeradevi  Kesrimal  Rathi, deceased  Babita  alias  Nita Sanjay  Rathi  deceased  Priti Kesrimal  Rathi,  deceased  Chirag Rathi,  deceased  Hemlata Shrikant  Navandhar and deceased Satyabhamabai Damu  Sutar), for the offence punishable under section 302 read with 120-B of  the Indian Penal Code (for causing the death of deceased Pratik  Navandhar), and for the offence punishable u/s 120-B of  the Indian Penal Code, and is sentenced to death and  he be  handed  by  neck till he is dead and to pay  a  fine  of

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Rs.10,000/- I/d to suffer R.I for three years on all counts.

   The  accused  No.2,  Jitu is convicted for  the  offence punishable  under section 302 of the Indian Penal Code  (for causing  the death of Pratik Shrikant Navandhar) and for the offences punishable under section 302 read with 120-B of the Indian  Penal  Code  (for  causing  the  death  of  deceased Meeradevi  Rathi, deceased Babita alias Nita Rathi, deceased Hemlata   Shrikant   Navandhar,    deceased   Priti   Rathi, Satyabhamabai  Damu  Sutar  and Chirag Rathi)  and  for  the offence  punishbale under section 120-B of the Indian  Penal Code and is sentenced to death and be handed by neck till he is  dead and to pay a fine of Rs.10,000/- I/d to suffer  R.I for three years on all counts.

   Both  the accused persons are convicted for the  offence punishable  under section 397 read with 120-B of the  Indian Penal  Code and each is sentenced to suffer R.I.  for  seven years  and  to pay a fine of Rs.5,000 I/d to suffer  further R.I.  for two years for such offence.

   Both  the accused persons are convicted for the  offence punishable  under section 449 read with 120-B of the  Indian Penal  Code and each is sentenced to suffer R.I.  for  seven years  and to pay a fine of Rs.5,000 I/d to suffer R.I.  for two years for such offence.

   Both  the accused persons are further convicted for  the offence  punishable  under section 342 read with 34  of  the Indian  Penal Code and each is sentenced to suffer R.I.  for one year and to pay a fine of Rs.500 I/d to suffer R.I.  for one month for such offence.

   Substantive  sentences of imprisonment and sentences  of imprisonment in default of fine to run consecutively.

   Accused No.1 Narayan be given set off of the period from 5.9.94 till today and the accused No.2 Jitu be given set off of the period from 21.1.94 till today during which they were in custody during investigation and trial."

   Criminal Appeal Nos.462 of 1998 and 415 of 1998 filed by the  Appellants  1 and 2 respectively were dismissed by  the High  Court vide an elaborate judgment.  The High Court also accepted  the  Reference made to it by the Trial  Court  for confirmation  of the death sentence.  Not satisfied with the judgment  of  the High Court, the present appeals have  been filed in this Court by special leave.

   We  have  heard  the  learned counsel  for  the  parties appearing   in   the   case    and   perused   the   record. Mr.S.Muralidhar, Advocate who appeared as amicus curaie, has taken us through the whole record of the case besides making legal  submissions  to  assail   the  concurrent  judgments, impugned  herein,  by  which the appellants have  been  held guilty of the commission of the offences for which they were charged  and sentenced to various punishments including  the death sentence.

   Mr.S.Muralidhar  has  attacked  the   statement  of  the Approver  on various grounds and submitted that it would  be unsafe  to award the appellants the death sentence solely on the  basis  of  testimony of PW2.  He has also  referred  to numerous  alleged  contradictions  and improvements  in  the statement  of  aforesaid witness PW2.  Alternatively it  has

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been  argued  that  keeping  in mind the young  age  of  the appellants,  they be not deprived of their lives and instead be deprived of their liberty though for longer period.

   Referring  to  Sections 306 and 307 of the Cr.P.C.   the learned  counsel  for the appellants submitted that  as  the statement  of  Raju PW2 was not recorded in terms of  Clause (a)  of  Sub-section  (4)  of  Section  306,  his  statement recorded  by  the  Trial Court after tendering  pardon  was, illegal.   According to the learned counsel the statement of every  accomplice is required to be recorded firstly in  the court of the Magistrate and subsequently in the Trial Court. As  the statement of PW2 Raju was recorded only in the Trial Court,  the  appellants  are reported to have lost  a  legal opportunity  of having his second statement enabling them to elaborately cross-examine him.

   In  order  to appreciate the submissions of the  learned counsel  a  reference  to Sections 306 and 307  Cr.P.C.   is@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ necessary.   Section  306  provides:  "Tender of  pardon  to@@ JJJJJJJJJJJJJJJJJJJJJJJJJ accomplice  (1) With a view to obtaining the evidence of any person   supposed  to  have   been  directly  or  indirectly concerned  in  or privy to an offence to which this  section applies,  the  Chief Judicial Magistrate or  a  Metropolitan Magistrate  at  any  stage of the investigation  or  inquiry into,  or  the trial of, the offence, and the Magistrate  of the first class inquiring into or trying the offence, at any stage  of the inquiry or trial, may tender a pardon to  such person on condition of his making a full and true disclosure of  whole of the circumstances within his knowledge relative to  the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

   (2) This section applies to:

   (a)  any  offence  triable exclusively by the  court  of session  or by the court of a special judge appointed  under the Criminal Law Amendment Act, 1952;

   (b)  any offence punishable with imprisonment which  may extend to seven years or with a more severe sentence.

   (3)  Every  magistrate who tenders a pardon  under  sub- section (1) shall record--

   (a) his reasons for so doing;

   (b)  whether  the tender was or was not accepted by  the person to whom it was made;

   and  shall, on application made by the accused,  furnish him with a copy of such record free of cost.

   (4) Every person accepting a tender of pardon made under sub-section (1) --

   (a)  shall be examined as a witness in the court of  the magistrate  taking  cognizance  of the offence  and  in  the subsequent trial, if any;

   (b)  shall, unless he is already on bail, be detained in custody until the termination of the trial.

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   (5)  Where a person has accepted a tender of pardon made under  sub-section  (1)  and has been  examined  under  sub- section (4), the magistrate taking cognizance of the offence shall, without making any further inquiry in the case, --

   (a) commit it for trial--

   i)  to  the court of session if the offence  is  triable exclusively  by  that  court  or if  the  magistrate  taking cognizance is the Chief Judicial Magistrate;

   ii)  to  a  court of special Judge appointed  under  the Criminal  Law Amendment Act, 1952, if the offence is triable exclusively by that Court;

   (b)  in any other case, make over the case to the  Chief Judicial Magistrate who shall try the case himself."

   Section 307 provides:

   "Power  to direct tender of pardon -- At any time  after commitment  of  a  case but before judgment is  passed,  the court  to  which the commitment is made may, with a view  to obtaining  at the trial the evidence of any person  supposed to  have been directly or indirectly concerned in, or  privy to,  any such offence, tender a pardon on the same condition to such person."

   A  perusal  of both the Sections clearly indicates  that Section  306  is  applicable in a case where  the  order  of commitment  has  not  been passed and Section 307  would  be applicable  after  commitment  of the case  but  before  the judgment  is  pronounced.   The  provisions  of  sub-section (4)(a)  of  Section 306 would be attracted only at  a  stage when  the  case is not committed to the court  of  Sessions. After  the  commitment, the pardon is to be granted  by  the Trial   Court  subject  to   the  conditions  specified   in sub-section (1) of Section 306, i.e.  approver making a full and true disclosure of the whole of the circumstances within his  knowledge  relative to the offence and to  every  other person  concerned,  whether as principal or abettor, in  the commission  thereof.   It may be noticed that under the  old Code,  only the District Magistrate had the power to  tender pardon,  at any stage of the investigation, enquiry or trial even  though he himself might not be holding such enquiry or trial.   Pardon could be granted by the District  Magistrate even during the pendency of the trial in the Sessions Court. By Criminal Law Amendment Act, 1952, old sections 337 to 339 were  substituted  by  sections 306 to 308 of  the  Code  of Criminal  Procedure  conferring the power to  tender  pardon only  to Judicial Magistrates and the Trial Court.   Section 307  -  in  its  present form -  does  not  contemplate  the recording  of the statement of the approver twice as argued. Accepting  the  submissions made on behalf of the  appellant would amount to legislate something in Section 307 which the Legislature  appears  to  have  intentionally  omitted.   In Suresh Chandra Bahri v.  State of Bihar [1995 Supp.  (1) SCC 80]  this  Court  while  dealing with  the  case  where  the Approver  was granted pardon by the committal court observed that  every person accepting the tender of pardon made under sub-section  (1)  of  Section 306 has to be  examined  as  a witness  in the court of the Magistrate taking cognizance of the  offence  and  in  the subsequent trial,  if  any.   The examination  of the accomplice in such a situation was  held to  be  mandatory  which  could   not  be  dispensed   with.

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Referring to a Full Bench Judgment of the Gujarat High Court in  Kalu  Khoda  v.  State [AIR 1962 Guj.  283]  this  Court observed  that:   "If the said defect of not  examining  the approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an  accused person and therefore the trial cannot be said to be  vitiated on that account." There is no legal  obligation on  the  Trial Court or a right in favour of the accused  to insist  for  the compliance with the requirement of  Section 306(4)  of  the  Cr.P.C.  Section 307  provides  a  complete procedure  for  recording  the statement  of  an  accomplice subject  only  to the compliance of conditions specified  in Sub-Section  (1)  of  Section  306.  The  law  mandates  the satisfaction  of the court granting pardon, that the accused would  make a full and true disclosure of the  circumstances within  his  knowledge relative to the offence and to  every other  person concerned, whether as principal or abettor, in the  commission thereof.  It is not necessary to comply with the  requirement  of  Section  306(4)  when  the  pardon  is tendered  by the Trial Court.  The Trial Court, in this case has  taken all precautions in complying with the  provisions of  Section 306(1) before tendering pardon to accused  Raju, who  later appeared as PW2.  We do not find any violation of law  or illegality in the procedure for tendering the pardon and  recording  the statement of PW2.  It has  been  further argued by the learned counsel for the appellants that as the statement  of the Approver was recorded after an unexplained prolonged  delay,  the same could not be made the basis  for conviction of the accused.  In support of his submissions he has  relied  upon  a judgment of this Court in Lal  Chand  & Ors.v.   State of Haryana [1984 (1) SCC 686.  In Lal Chand’s case  this  Court while dealing with the peculiar facts  and circumstances of the case found that the prosecution version of  the  fradulent transaction was extremely  doubtful.   In that  context  it  was  observed that the  evidence  of  the Approver  could  not  improve  the  prosecution  case.   The testimony  of  the  Approver is required to be  viewed  with great caution inasmuch as he was self- confessed traitor and his   earlier  statements  have  been   kept  back  by   the prosecution  which  gave rise to the adverse inference  that the  earlier  statements  did not support  the  prosecution. Keeping  in view the fact of the Approver’s statements  made after  20 months, while exercising due care and caution  the court  found  that his evidence was not reliable to be  made the  basis  for returning the finding of guilt  against  the accused  persons.   Such is not the position in the  instant case.  Otherwise the words of the section "at any time after commitment  of  the case but before judgment is passed"  are clearly   indicative  of  the   legal  position  which   the Legislature  intended.   No  time   limit  is  provided  for recording  such a statement and delay by itself is no ground to reject the testimony of the accomplice.  Delay may be one of  the  circumstances  to be kept in mind as a  measure  of caution  for  appreciating the evidence of  the  accomplice. Human  mind  cannot be expected to be reacting in a  similar manner under different situations.  Any person accused of an offence, may, at any time before the judgment is pronounced, repent for his action and volunteer to disclose the truth in the court.  Repentance is a condition of mind differing from person  to  person and from situation to situation.  In  the instant  case  PW2 appears to be repenting upon  his  action from  the  very beginning as is evident from the  two  notes (Exhs.84  and  85) recovered from his pocket at the time  of his  arrest.   It  appears  that  the  apprehension  of  his colleagues  being convicted and sentenced prevented him from

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taking a final decision at an early stage to make a truthful statement.   The  defence  has not put any question  to  the aforesaid  witness which could suggest that the delay in PW2 becoming the Approver by itself was fatal to the prosecution case.   In  one  of the notes Exhibit  84  dated  11.10.1994 addressed  to  his parents and brother he is shown  to  have stated:  "I am not worth calling your son.  I have committed gruesome  crime  for  which I could not be pardoned  by  God also.   I was instigated by my friend Jeetu and Narayan  and due  to  which I help them in the murder and  robbery  which took  place in the Rathi family in Pune.  I have no guts  to face  after  this incidents.  I have  tremendous  repentance over  it for which I have decided to commit suicide.  Please do not be sad after my death."

   In  Exhibit  85  he  is reported to  have  informed  the police:

   "I  have not committed murder of anyone during the crime of  robbery and murder of Rathi family of Pune.  I was  only involved  in  the conspiracy of robbery and murder  with  my friends  Narayan and Jeetu.  I only assisted my friend Jeetu and  Naryana  in committing those seven gruesome murders  on that  faithful  days.   I  had not  assaulted  any  one  but committing  murder  and helping to commit the same are  both sine.  I am burning in that sine.  I have dependence over my act  and  I want get rid of this feeling that is why,  I  am thinking  of  committing  suicide.  I request  you  that  my

family  should not be harassed after my death.  They have no fault of any kind.  11.10.94."

   We,  therefore,  do  not  find   any  substance  in  the submissions  of  the  learned defence counsel  that  as  the statement  of  the Approver was recorded after  a  prolonged delay,  no  reliance could be placed upon it.  The delay  in granting  the  pardon may be a just criticism, where  it  is found  that  the pardon had been tendered at the end of  the trial  and in effect was intended to fill up the lacunae  in the  prosecution  case.   Such  is  not  the  present  case. Learned  defence counsel has then contended that  conviction based  upon the uncorroborated testimony of the Approver  is neither safe nor proper particularly in a case where extreme penalty  of  death is awarded.  Section 133 of the  Evidence Act  provides  that  an accomplice is  a  competent  witness against  an accused person and the conviction is not illegal merely  because  it proceeds on uncorroborated testimony  of the   accomplice.   No  distinction  is  made   between   an accomplice  who is or is not an Approver.  As both have been treated  alike,  the rule of corroboration applies to  both. Accomplice’s  evidence  is  taken on record as a  matter  of necessity  in cases where it is impossible to get sufficient evidence  of a heinous crime unless one of the participators in  the  crime  is disposed to  disclose  the  circumstances within  his  knowledge  on  account  of  tender  of  pardon. Taylor,  in his treatise has observed that "accomplices  who are  usually interested, and always infamous witnesses,  and whose  testimony is admitted from necessity, it being  often impossible,  without  having recourse to such  evidence,  to bring  the  principal offenders to justice".  [Taylor in  "A Treatise  on the Law of Evidence" - (1931) Vol.1 Para  967]. This  Court in Suresh Chandra Bahri v.  State of  Bihar[1995 Supp.  (1) SCC 80] observed that:@@        JJJJJJJJJJJJJJJJJJJJJJJJJJ

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   "Since  many a times the crime is committed in a  manner for  which  no  clue  or  any trace  is  available  for  its detection and, therefore, pardon is granted for apprehension of the other offenders for the recovery of the incriminating objects  and the production of the evidence which  otherwise is  unobtainable.  The dominant object is that the offenders of  the heinous and grave offences do not go unpunished, the Legislature  in  its  wisdom   considered  it  necessary  to introduce  this  section and confine its operation to  cases mentioned in Section 306 of the Code.  The object of Section 306  therefore  is  to allow pardon in cases  where  heinous offence is alleged to have been committed by several persons so  that with the aid of the evidence of the person  granted pardon  the  offence may be brought home to the  rest.   The basis  of  the  tender of pardon is not the  extent  of  the culpability of the person to whom pardon is granted, but the principle  is  to prevent the escape of the  offenders  from punishment  in heinous offences for lack of evidence.  There can therefore be no objection against tender of pardon to an accomplice  simply  because in his confession, he  does  not implicate  himself  to the same extent as the other  accused because  all that Section 306 requires is that pardon may be tendered  to any person believed to be involved directly  or indirectly in or privy to an offence."

   The  evidence of the Approver must, however, be shown to be  of a reliable witness.  In Jnanendra Nath Ghose vs.  The State  of West Bengal [1960(1) SCR 126] this Court  observed that  there should be corroboration in material  particulars of  the Approver’s statement, as he is considered as a self- confessed  traitor.   This  Court in Bhiva  Doulu  Patil  v. State  of  Maharashtra  [AIR  1963 SC  599]  held  that  the combined  effect of Sections 133 and 114 illustration (b) of the Evidence Act was that an accomplice is competent to give evidence  but it would be unsafe to convict the accused upon his testimony alone.  Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.  In this regard the court in Bhiv Doulu Patil’s case observed:

   "In  coming  to  the above conclusion we have  not  been unmindful  of  the provisions of S.133 of the  Evidence  Act which reads:

   S.   133  "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".

   It  cannot  be  doubted  that   under  that  section   a conviction  based merely on the uncorroborated testimony  of an  accomplice  may not be illegal, the courts  nevertheless cannot lose sight of the rule of prudence and practice which in  the words of Martin B.  in R v.  Boyes, (1861) 9 Cox  CC 32  "has  become so hallowed as to be deserving of  respect" and  the words of Lord Abinger "it deserves to have all  the reverence of the law".  This rule of guidance is to be found in illustration (b) to S.114 of the Evidence Act which is as follows:

   "The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars."

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   Both  sections  are part of one subject and have  to  be considered  together.  The Privy Council in Bhuboni Sahu  v. The  King,  76  Ind  App 147;  (AIR 1949 PC  257)  when  its attention  was drawn to the judgment of Madras High Court in In  re  Rajagopal  ILR (1994) Mad 308:  (AIR 1944  Mad  117) where  conviction  was  based  upon   the  evidence  of   an accomplice  supported by the statement of a co-accused, said as follows:

   "Their  Lordships.........   would nevertheless  observe that  Courts  should  be  slow to depart from  the  rule  of prudence,  based  on  long experience, which  requires  some independent  evidence  implicating the  particular  accused. The  danger of acting upon accomplice evidence is not merely that  the  accomplice is on his own admission a man  of  bad character  who  took part in the offence and  afterwards  to save  himself  betrayed his former associates, and  who  has placed  himself in a position in which he can hardly fail to have  a strong bias in favour of the prosecution;  the  real danger  is  that he is telling a story which in its  general outline  is  true, and it is easy for him to work  into  the story matter which is untrue."

   The  combined effect of Ss.133 and 114, illustration (b) may be stated as follows:

   According  to  the  former, which is a rule of  law,  an accomplice  is  competent to give evidence and according  to the  latter which is a rule of practice it is almost  always unsafe  to  convict  upon his  testimony  alone.   Therefore though  the conviction of an accused on the testimony of  an accomplice cannot be said to be illegal yet the courts will, as  a matter of practice, not accept the evidence of such  a witness  without corroboration in material particulars.  The law  may be stated in the words of Lord Reading C.J.  in  R. v.  Baskerville 1916-2 KB 658 as follows:

   "There  is no doubt that the uncorroborated evidence  of an  accomplice  is admissible in law (R.  v.  James  Atwood, (1787)  1  Leach  464).   But it has been  long  a  rule  of practice at common law for the judge to warn the jury of the danger  of  convicting  a  prisoner  on  the  uncorroborated testimony  of  an accomplice, and in the discretion  of  the Judge, to advise them not to convict upon such evidence, but the  judge  should point out to the jury that it  is  within their  legal  province  to  convict  upon  such  unconfirmed evidence  (R.   v.   Stubbs, (1855) Dears CC  555;   in  re, Meunier, 1894-2 Q.B.  415)."

   Again  in  Dagdu & Ors.  v.  State of Maharashtra  [1977 (3) SCC 68] this Court declared:

   "There   is  no  antithesis   between  Section  133  and ilustration

   (b)  to  Section  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  irrebuttable 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

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placed on the evidence of an accomplice unless that evidence is  corroborated in material particulars, by which is  meant that  there  has to be some independent evidence tending  to incriminate  the particular accused in the commission of the crime.  It is hazardous, as a matter of prudence, to proceed upon  the evidence of a self-confessed criminal, who, in  so far  as an approver is concerned, has to testify in terms of the pardon tendered to him.  The risk involved in convicting an  accused on the testimony of an accomplice, unless it  is corroborated  in material particulars, is so real and potent that what during the early development of law was felt to be a  matter  of  prudence  has   been  elevated  by   judicial experience into a requirement or rule of law.  All the same, it  is necessary to understand that what has hardened into a rule  of  law  is not that the conviction is illegal  if  it proceeds  upon the uncorroborated testimony of an accomplice but  that  the rule of corroboration must be present to  the mind  of  the Judge and that corroboration may be  dispensed with  only  if the peculiar circumstances of a case make  if safe to dispense with it.

   In King v.  Baskerville (1916 2 KB 658), 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 rule of practice at common law for the Judge to warn the  Jury  of  the  danger of convicting  a  person  on  the uncorroborated  testimony  of  an  accomplice.    Therefore, though  the Judge was entitled to point out to the Jury that it  was  within  their legal province to  convict  upon  the unconfirmed  evidence of an accomplice, the rule of practice had  become  virtually  equivalent  to a  rule  of  law  and therefore  in  the absence of a proper warning by the  Judge the  conviction  could not be permitted to stand.  If  after being  properly cautioned by the Judge the Jury nevertheless convicted  the  prisoner,  the  Court would  not  quash  the conviction  merely  upon  the ground that  the  accomplice’s testimony was uncorroborated.

   In Rameshwar v.  State of Rajasthan (1952 SCR 377), this Court observed that the branch of law relating to accomplice evidence was the same in India as in England and that it was difficult  to  better  the lucid exposition of it  given  in Baskerville’s  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 withoutcorroboration in the particular case.

   In  Bhuboni  Sahu  v.  The King (76 IA 147),  the  Privy Council  after noticing Section 133 and illustration (b)  to Section  114 of the Evidence 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 evidence of one  accomplice

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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 observed  that the  danger  of acting on accomplice evidence is not  merely that  the  accomplice is on his own admission a man  of  bad character  who  took part in the offence and  afterwards  to save  himself  betrayed his former associates, and  who  has placed  himself in a position in which he can hardly fail to have  a strong bias in favour of the prosecution;  the  real danger  is  that he is telling a story which in its  general outline  is  true, and it is easy for him to work  into  the story  matter which is untrue.  He may implicate ten  people in  an offence and the story may be true in all its  details as  to  eight of them but untrue as to the other  two  whose names  may have been introduced because they are enemies  of the approver.  The only real safeguard therefore against the risk  of  condemning  the innocent with the guilty  lies  in insisting  on  independent  evidence which in  some  measure implicates each accused.

   This  Court has in a series of cases expressed the  same view as regards accomplice evidence.  (See State of Bihar v. Basawan  Singh, (1959 SCR 195);  Hari Charan Kurmi v.  State of Bihar (1964 6 SCR 623);  Haroon Haji Abdulla v.  State of Maharashtra  (1968 2 SCR 641);  and Ravinder Singh v.  State of  Haryana (1975 3 SCR 453).  In Haricharan Gajendragadkar, C.J.,  speaking  for  a five-Judge Bench observed  that  the testimony  of  an accomplice is evidence under Section 3  of the  Evidence  Act  and has to be dealt with as  such.   The evidence is of a tainted character and as such is very weak; but,  nevertheless,  it is evidence and may be  acted  upon, subject  to the requirement which has now become virtually a part  of  the  law  that  it  is  corroborated  in  material particulars."

   To  the  same effect is the judgment in Balwant Kaur  v. Union Territory, Chandigarh [1988(1) SCC 1].

   For  corroborative  evidence the court must look at  the broad  spectrum of the Approver’s version and then find  out whether  there  is  other evidence to corroborate  and  lend assurance  to  that version.  The nature and extent of  such corroboration  may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses  and  may  be even in the form  of  circumstantial evidence.   Corroborative  evidence must be independent  and not  vague or unreliable.  Relying upon its earlier judgment in  Suresh  Chandra  Bahri’s  case  (supra)  this  Court  in Niranjan  Singh v.  State of Punjab[JT 1996(5) SC 582]  held that  once  the  evidence  of the Approver  is  held  to  be trustworthy,  it  must  be  shown that the  story  given  by Approver  so far as an accused is concerned, must  implicate him  in  such  a manner as to give rise to a  conclusion  of guilt    beyond   reasonable     doubt.    Insistence   upon corroboration is based on the rule of caution and not merely a rule of law.  From the judgment of the Trial Court as well as  the High Court it is crystal clear that the courts  were conscious  of  the credibility of an Approver’s witness  and insisted  upon  the  corroborative   evidence  in   material particulars  of  the  depositions made by  PW2.   The  Trial Court,  after  referring to various judgments of this  Court and the High Courts observed:  "Bearing the above principles laid  down  in the above decisions and also in  other  cases

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such  as  Chandan  and Another versus State  of  Maharashtra (1988  (1)  SC  Cases  696), Abdul Sattar  versus  Union  of Territory  of Chandigarh [AIR 1986 SC 1438], Sureshchand and others  versus  State  of Bihar [1994 (2) Crimes  1033)  and Niranjan Singh versus State of Punjab [1996(2) Supreme Court Cases  13)  by the Hon’ble Supreme Court and the Patna  High Court  and more particularly the latest decision of  Hon’ble Supreme  Court  as  stated above, in mind, we will  have  to consider  the evidence of approver Raju Rajpurohit (PW No.2) to  see  as to whether his evidence is reliable and  whether the  same is corroborated in material particulars to  assume its  trueness  first and then we will have to  consider  the other circumstantial evidence against the accused persons.

   The  Trial  Court in its judgment from paras 68  to  401 referred to 26 corroborative circumstances and concluded:

   "All the above corroborations assure the correctness and trueness  of  the version of approver Raju  (P.W.No,2)  and, therefore,   from  his  evidence   corroborated   by   other circumstantial  evidence  as discussed above, I come to  the conclusion that the prosecution has proved beyond reasonable doubt   the  following  facts   and  offences  against   the respective accused persons as given below:-

   (1) That both the accused persons viz.  Narayan and Jitu with  approver Raju (P.W.  2) conspired on 23-8-94 to commit theft  at the house of complainant Sanjay Kesrimal Rathi and to  kill  all  the persons who so ever may be found  at  his house/flat  at the time of such theft and thereby  committed an  offence  punishable  under section 120-B of  the  Indian Penal Code.

   (2)  That  both the accused persons  alongwith  approver Raju  (P.W.   No.2) in pursuance to the  conspiracy  between them  committed  house  tresspass  into  the  house/flat  of complainant  Sanjay  Kesrimal Rathi in order to  commit  the dacoity  i.e.   theft of valuables and to commit murders  of all  the persons whosoever may be found in the said flat  at the  time of such dacoity or theft and thereby committed  an offence  punishable under section 449 read with 120-B of the Indian Penal Code.

   (3)  Both  the accused persons alongwith  Raju  approver (P.W.No.2)   in  furtherance  of   their  common   intention wrongfully restrained all the persons found in the said flat of complainant Sanjay Kesrimal Rathi like deceased Meeradevi and  other  victims at the relevant time by forcing them  to stay  at one place and not to go out of the flat by  closing the  door  at the time of entry itself by the  accused  No.2 Jitu  and  thereby  committed an  offence  punishable  under section 342 read with 34 of the Indian Penal Code.

   (4)  Both the accused persons in pursuance of conspiracy with  approver Raju (P.W.  No.2) committed theft of cash  of Rs.85,000  and  other  ornaments  such as  one  wrist  watch (Art.78), gold ring (Art.80) gold necklace (Art.103) foreign coins  (Art.138),  three coins (Art.183)(1), (B-1),  Cameral (Art.160),  ladies  wrist watch (Art.  162)(b), mouth  organ (Art.182),  gold ring (Art.185), gold chain (art.186), three bangles  (Art.186) etc.  and for committing such theft first wrongfully  restrained,  thereafter put them under  fear  of instant  death and then caused death of the persons who were

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at  the  house/flat of complainant Sanjay Kesrimal Rathi  at that  time i.e.  deceased Meeradevi Kesrimal Rathi, deceased Babita alias Nita wife of complainant Sanjay Kesrimal Rathi, Priti  Kesarimal  Rathi, Hemlata Shrikant Navandhar wife  of Srikant  Navandhar,  Satyabhamabai  Damu   Sutar  the   maid servant, Chirag Rathi and Pratik s/o Shrikant Navandhar by a weapon   (Utility  knife)  chhuri   (Art.147)  and   thereby committed  an offence punishable under section 397 read with 120-B of the Indian Penal Code.

   5.   That  it was accused No.1 Narayan  who  voluntarily caused  the  deaths of deceased Meeradvei  Kesarimal  Rathi, deceased  Babita alias Nita Sanjay Rathi wife of complainant Sanjay  Rathi,  deceased  Preeti   Kesrimal  Rathi  deceased Hemlata  Shrikant  Navandhar  wife  of  Shrikant  Navandhar, Chirag  Rathi  son  of  Sanjay Rathi and  the  maid  servant Satyabhamabai Damu Sutar by personally causing them injuries with  weapon chhuri (Art.147) with intention to cause  their deaths  and  thereby  committed  offences  punishable  under section  302  of  the Indian Penal Code  for  causing  their deaths.

   6.    The  accused  No.1  Narayan   being  one  of   the conspirator  in  causing  the  death   of  all  the  persons whosoever  were  found  at  the said flat  at  the  time  of commission  of  the  robbery, committed  offence  punishable under  section 302 read with 120-B of the Indian Penal  Code in concern with the death of Pratik Navandhar.

   7.   The  accused No.2 Jitu being conspirator  alongwith the  accused  No.1 Narayan in committing the murders of  the above  referred  persons  viz.   Meeradevi  Kesrimal  Rathi, Hemlata Srikant Navandhar, Babita alias Sanjay Rathi, Preeti Rathi  and  thereby  committed an offence  punishable  under section  302  read with 120-B of the Indian Penal  Code  for causing their deaths.

   8.   The accused No.2 Jitu voluntarily caused the  death of  Pratik  Navandhar  with  intention to  cause  his  death firstly  by gagging his mouth and nostrils and  subsequently by  assaulting him with weapon chhuri (Art.147) and  thereby committed offence punishable under section 302 of the Indian Penal Code for causing his death.

   The  High  Court referred to the chart prepared  by  the prosecutor  wherein  62   corroborative  circumstances  were@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ mentioned   along  with  the   names  of  the  corroborative@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJ witnesses  and the substance of corroborative evidence.  All corroborative  evidence,  to the testimony of Raju  PW2  has been  considered by the High Court in its judgment in  paras 60  to  188 whereafter it was concluded:  "Having  carefully considered  the  various submissions made on behalf  of  the accused  with  regard to the order of conviction  and  after going through the record as also judgment of the trial court and  taking  into  consideration  the  submissions  made  by learned Public Prosecutor, we come to the conclusion that no infirmity  of  whatsoever  is found in the judgment  of  the trial  court.   The evidence has properly been  appreciated. The  material  placed before the trial court  has  carefully been  considered by it.  The conclusion as to the  testimony of  the  approver  getting  corroboration  on  the  material particulars, in our opinion, is unassailable."

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   We have minutely scrutinised the evidence of PW2 and the corroborative  evidence  noticed by both the Trial Court  as well  as  the  High  Court  and find  no  substance  in  the submission  of  the learned counsel for the appellants  that the  testimony of PW2 has not been corroborated in  material particulars.   The statement of PW2 is vivid in  explanation and  inspires  full  confidence  of the court  to  pass  the conviction  on  the appellants for the offences  with  which they  were  charged.   The  corroborative  evidence  to  the aforesaid statement leaves no doubt in the mind of the court regarding   the  involvement  of   the  appellants  in   the commission  of the crime for which they have been  convicted and sentenced.

   Learned  counsel for the appellants took us through  the whole of the testimony of PW2 which is Exhibit No.74 forming part of Vol.IV of the paperbook and spread over pages 104 to 345.   He  has  taken  pains  to  point  out  some   alleged discrepancies  in his statement purportedly with respect  to the  material particulars and contended that as PW2 has made improvements  in  his statement on material particulars,  it would  not be safe to rely upon his testimony for convicting the  appellants  and sentencing them to death.  The  alleged improvements  and  contradictions  are stated to  have  been elicited from the cross-examination of PW2 as noticed in his statements  from paras 77 to 91 (pages 275 to 324 of  Vol.IV of  the  paperbook).  The portion of the earlier  statements put to the witnesses, do not, in fact show any contradiction much  less  in  material particulars.  Most of  the  alleged improvements  are in fact the details and description of the facts already stated by PW2 in his confessional statement or before  the  police during his investigation on  15.10.1994. The  witness  is stated to have improved by using the  words "due  to  that"  for the reason to his coming  to  Pune  for further education and employment.  Omission of the aforesaid words in the earlier statement cannot, in any way, be termed as material on facts.  Some alleged omissions in relation to his  statement  before  the  court, during  the  trial,  are referred to his statement before the police.  It may be kept in  mind  that what was stated by him on 15.10.1994 was  not the  statement of PW2 in terms of Section 161 of the Cr.P.C. but  was only the substance of the interrogation recorded by the  investigating officer.  The aforesaid statement cannot, in  any  way,  be termed to be a  statement  recorded  under Section  161  which  could  be   used  for  the  purpose  of contradiction  of  the  witness  under Section  162  of  the Cr.P.C.   Similarly,  the  alleged   contradiction  of   not mentioning  the "eyes" and instead mentioning the "mouth" of the  victims  for the purposes of sprinkling of  the  chilly powder  cannot  be  termed to be a  major  contradiction  or improvement  particularly when the witness himself says that by "mouth" he meant "eyes" as well.  It may be worthwhile to notice   that   wherever  any   alleged   contradiction   or improvement was confronted to the witness, the learned Trial Court has made a note of it in the statement, at the time of recording  of  the  deposition of the  witness.   The  notes unambiguously  indicate that the alleged improvement made by PW2  in his deposition at the trial, are no way in  material particulars.

   Only  such  omissions which amount to  contradiction  in material  particulars can be used to discredit the testimony of  the  witness.  The omission in the police  statement  by itself would not necessarily render the testimony of witness

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unreliable.   When  the version given by the witness in  the Court  is  different  in   material  particulars  from  that disclosed  in  his  earlier  statements,  the  case  of  the prosecution  become  doubtful  and   not  otherwise.   Minor contradictions  are  bound  to appear in the  statements  of truthful  witnesses as memory sometimes plays false and  the sense  of  observation  differ from person to  person.   The omissions in the earlier statement if found to be of trivial details,  as  in the present case, the same would not  cause any  dent  in  the  testimony  of PW2.   Even  if  there  is contradiction  of  statement  of a witness on  any  material point,  that  is  no  ground  to reject  the  whole  of  the testimony  of  such witness.  In this regard this  Court  in State  of  Himachal Pradesh v.  Lekh Raj & Anr.   [1999  (9) Supreme Today 155] (in which one of us was a party), dealing with discrepancies, contradictions and omissions held:

   "Discrepancy has to be distinguished from contradiction. Whereas  contradiction  in the statement of the  witness  is fatal  for  the  case,  minor  discrepancy  or  variance  in evidence will not make the prosecutions case doubtful.  The normal  course  of  the human conduct would  be  that  while narrating  a  particular  incidence there  may  occur  minor discrepancies,   such  discrepancies  in   law  may   render credential  to the depositions.  Parrot like statements  are disfavoured  by  the  courts.  In order to ascertain  as  to whether  the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to  the  circumstances  of the case by keeping in  view  the social status of the witnesses and environment in which such witness  was  making  the  statement.  This  Court  in  Ousu Varghese  v.   State of Kerala [1974 (3) SCC 767] held  that minor  variations in the accounts of the witnesses are often the  hallmark  of the truth of their testimony.  In  Jagdish vs.   State  of  Madhya Pradesh [1981 SCC (Crl.)  676]  this Court held that when the discrepancies were comparatively of a  minor  character  and  did  not go to  the  root  of  the prosecution  story, they need not be given undue importance. Mere  congruity or consistency is not the sole test of truth in  the depositions.  This Court again in State of Rajasthan vs.   Kalki  &  Anr.  [1981 (2) SCC 752] held  that  in  the depositions   of   witnesses  there    are   always   normal discrepancy, however, honest and truthful they may be.  Such discrepancies  are  due  to normal  errors  of  observation, normal  errors of memory due to lapse of time, due to mental disposition  such  as  shock  and  horror  at  the  time  of occurrence,  and the like.  Material discrepancies are those which are not normal, and not expected of a normal person.

   Referring  to and relying upon the earlier judgments  of this Court in State of U.P.  Vs.  M.K.  Anthony (AIR 1985 SC 48), Tehsildar Singh and Anr.  Vs.  State of U.P.  (AIR 1959 SC  1012), Appabhai and Anr.  Vs.  State of Gujarat (JT 1988 (1)  SC  249),  Rami alias Rameshwar Vs.   State  of  Madhya Pradesh  (JT  1999 (7) SC 247), Bhura alia Sajjan Kumar  Vs. State  of Madhya Pradesh (JT 1999 (7) SC 247), this Court in a  recent case Leela Ram Vs.  State of Haryana and Anr.  (JT 1999 (8) SC 274) held:

   "There  is  bound to be some discrepancies  between  the narrations  of  different  witnesses   when  they  speak  on details,  and  unless the contradictions are of  a  material dimension,  the  same  should not be used  to  jettison  the evidence  in  its entirety.  Incidentally, corroboration  of evidence  with  mathematical niceties cannot be expected  in

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criminal  cases.   Minor  embelishment, there  may  be,  but variations by reason therefor should not render the evidence of  eye witnesses unbelievable.  Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.....

   The  Court  shall  have to bear in mind  that  different witnesses  react  differently  under  different  situations: whereas  some  become speechless, some start  wailing  while some  others run away from the scene and yet there are  some who  may  come forward with courage, conviction  and  belief that  the wrong should be remedied.  As a matter of fact  it depends  upon individuals and individuals.  There cannot  be any  set  pattern or uniform rule of human reaction  and  to discard  a  piece of evidence on the ground of his  reaction not  failing  within  a set pattern is  unproductive  and  a pedantic  exercise." On an analysis of the statement of  PW2 (which  is  part of Vol.IV of the paperbook), his  statement under Section 161 of the Cr.P.C.  and the deposition made by him  on  15.10.1994 during investigation (which is  part  of Vol.III  of the paperbook) we have come to a conclusion that there is no material improvement, much less contradiction in the  deposition  made  by him before the Trial  court  after being  granted  pardon.  The so-called improvements  are  in fact  the details of the narrations extracted by the  Public Prosecutor  and  the  defence counsel in the course  of  his examination-in-chief and cross-examination.

   Mr.S.Muralidhar  has  submitted in the alternative  that even if the conviction of the appellants is upheld, they may@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ not  be  sentenced to death keeping in view their young  age@@ JJJJJJJJJJJJJJJJJJJJJ and the possibility of their being reformed.  He has further contended  that in no case Jeetu, the appellant No.2 can  be sentenced  to death as he is alleged to have killed only one child.   We  are not impressed by this submission  as  well. While dealing with the question of sentence the Trial Court, after referring to various judgments of this Court held:

   "In  the  present  case, the following facts  are  fully established,

   (1)  Both the accused persons and approver Raju selected the  place  of crime as the house or flat of Rathi  and  the time in between 2.00 p.m.  to 4.00 p.m.  so that there could be only female members and the children at the house/flat of Rathi  and no other persons except Kumari Poornima Dadhe and Mrs.  Khara were in the same building.

   (2)  Both  the accused persons and approver Raju made  a planning  about  commission  of   robbery  and  killings  by discussing about it.  securing weapon i.e.  Chhuri (Art.147) and  also surveyed the area around the building housing  the flat of Rathi on the earlier day.

   (3)  Both  the  accused  and   approver  Raju,  on   the suggestion  of  accused No.1 Narayan agreed to kill all  the persons  whosoever are found at the house/flat of Rathi’s at the  time of commission of such robbery to eliminate all the possible  eye  witnesses to shield themselves  from  getting apprehended  or prosecuted for the offence of robbery  which would  have made each of them to suffer imprisonment for few years.   This  they  felt that their liberty  was  far  more

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important  than  the lives of those whosoever found  in  the house/flat  of  Rathi at the relevant time.  One could  have understood if the accused No.  1 Narayan would have said and all  of them would have agreed to take Chhuri (Art.147)  and other  weapon by way of precaution and would have decided to assault  the inmates if they cry for help or obstruct  their act  of  robbery or theft.  However it was not so  and  they proceeded  to  the spot with clear intention that they  will finish  all the persons whosoever found at the house/flat of Rathi at the time of such commission of theft or robbery.

   (4)  Both  the  accused in addition to other  injury  or injuries,  invariably  caused injuries on the necks  of  the victims  which  fact  clearly shows that were  intending  to cause their deaths only.

   (5)  The evidence of approver Raju (P.W.  No.2) which is accepted  by  this  Court discloses that  the  accused  No.1 Narayan,  killed deceased Meeradevi Kesrimal Rathi, deceased Nita  alias  Babita  Rathi,   deceased.   Hemlata   Shrikant Navandhar  deceased Satyabhamabai Damu Sutar, deceased Priti Rathi  and  a  small child Chirag Rathi by  taking  them  to various  rooms in the flat and accused No.2 Jitu killed  the child Pratik Navandhar, even though all the said ladies were saying  that the accused persons may take away all that they wanted but should not kill them.  Thus inspite of this, they have  killed the said persons even it was not necessary  for them  for  committing the robbery.  They have naturally  co- operated with each other actively in such killings.

   (6)  The  evidence of approver Raju  (P.W.No.2)  further disclosed that in the beginning he asked deceased Meeradevi, the  eldest  lady member in the family to come with them  to their bedroom and thereafter he and accused No.  2 Jitu took her  to  her  bedroom  and then  the  accused  No.1  Narayan assaulted  her with Churri (Art.147) and at last pulled  her to  the  bed  in the said room.  He has done  so  eventhough deceased  Meeradevi for all the time was pleading for  mercy and was showing her willingness to allow the accused persons and approver Raju to take away whatever they wanted.

   (7)  The  evidence of approver Raju  (P.W.No.2)  further discloses that the accused No.1 Narayan assaulted Nita alias Babita  with  Churri (Art.147) eventhough she was  ready  to give  whatever  she  was having and was  praying  for  mercy because  she was having a small child aged 1½ years old         and she  was pregnant and expected a child very soon.   However, the  accused No.1 Narayan or any of the accused did not feel any  mercy  for her and accused No.1 Narayan  assaulted  her with  Churri  (Art.147)  including giving  stroke  into  her stomach  as if he wanted to kill the foetus, and also  after she fell down, also assaulted her son Chirag with the Churri (Art.  147).

   (8)  The accused No.1 Narayan assaulted the maid servant with  the Churri (Art,147) so forcibly that he caused her as many  as 12 external injuries and 5 internal injuries.   The medical  evidence  shows that out of the external  injuries, four  external  injuries were on the palm showing  that  the said  maid servant Satyabhamabai Sutar tried to save herself getting Churri blows on her vital part of her body by taking the  same  on her palm.  The said fact however did not  make the accused No.1 Narayan giving further blows/assault to her with the Churri.  It shows merciless killing.

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   (9)  The evidence further discloses that deceased  Priti was  first strangulated with the wire of washing machine  to such  extent  the  blood started oozing from her  mouth  and subsequently on hearing the voice coming from her mouth, the accused  No.1  Narayan assaulted her with the Churri on  her neck which resulted into her death.

   (10) The prosecution evidence further discloses that the accused  No.2  Jitu demanded her son from  deceased  Hemlata Navandhar  and  when she refused to give him by saying  that they  may kill him, on that the accused No.  2 Jitu  falsely stated  her that he would give her child to his  grandmother knowing  fully well that they have already done her to death and  further  threatened that they will kill her son if  she does  not give her son to him, therefore she gave her son to accused  No.2  Jitu  and thereafter the accused  Jitu  after going into the bedroom of deceased Meeradvi gagged the mouth and  nostrils  of deceased Pratik as a result of  which  his movements  stopped and on that the accused No.2 Jitu put him on  the  floor.  Subsequently when they were about to  leave the said flat, on hearing the cry of the small child Pratik, accused  No.2  Jitu alongwith the other accused Narayan  and approver  Raju went near him and there the accused No.2 Jitu took  the  Churri  (Art.147) from accused No.1  Narayan  and assault  Pratik on his neck causing his instant death.   The words  uttered by him at that the like "the child was  still alive" shows his merciless and cruel nature.

   (11)  The  accused  No.1 Narayan and accused  No.2  Jitu killed  deceased  Chirag Rathi and deceased Pratik who  were aged 1½ to 2½ years old even though they were not having any fear or identification of themselves.

   (12)  Thus, both the accused killed helpless five ladies and two children who being the weaker section of the society in fact who needs protection from the society.

   Thus  the  acts of both the accused in killing the  said five ladies and two children was of extreme brutal involving exception  depravity as contemplated by the Hon’ble  Supreme Court  in  the  above referred Bachansingh’s  case,  it  was nothing less that butchering them."

   The High Court while dealing with this aspect observed:

   "It was a calculated Plan of committing robbery and also as  a  part  of  it to do away with  the  witness  who  will identify  them  which  plan  was  clearly  worked  out  with diabolical  clarity and detail.  It was also executed in the manner  stated  hereinabove.   Taking away  the  child  from Hemlata  before killing her and then killing the child,  the Accused were on a murder spree and were apparently relishing the  same.  This rules out either compunction or  compassion on their parts.

   From  the point of victims, as per Item No.V of the said judgment,  the innocent children have been killed and so are helpless women.  As has been noticed so far, the victims had been  five  helpless  women  and two  very  young  children. Referring  to the aforesaid two mitigating circumstances  as to  the  past  of the accused as also their  possibility  of reformation, in our opinion, an inference has to be drawn on the  basis  of the material on record.  It is the past  that

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portends  for  the future.  From the defence,  virtually  no material  is  produced.   The evidence on  record,  if  any, suggests  that none of the accused had least regard for  the human lives.  They were so self-centered on the idea of self preservation  that doing away with all inmates of the  house was  settled upon them as an important part of the plan from the  beginning.   The manner in executing the plan has  also been since beginning.

   It  cannot  be  forgotten  that  in  deciding  upon  the aforesaid  course  of action, the accused were confident  of the  fact  that  the persons to be done away with  would  be women  and,  therefore, it was an easy target to handle  it. To  use  the  current parlance of  terrorism,  the  intended victims were a "soft target".

   Coupled  with the fact that the victims, all women, were typical  representative  of an Indian household,  they  were women  read up in the atmosphere of domesticity.  The eldest of them, Mirabai, aged 45 years, has already become a grand- mother  twice.  In the traditional Indian family,  daughters are  to be married out by the age of 20 or thereabout,  soon they  attain  the  motherhood and start  looking  after  the household  in  the  family.   This  typical  Indian  family, happily  placed  financially, would complete the picture  of women  for  the  Rathis.  It is these women  who  have  been targeted and done away with.

   The  accused hardly held any reservation in  considering the  plan  and  did whatever was required in  executing  the same.   If  anything  contrary is the situation like  a  mad animal  on  prowl having tasted blood, had gone  amuck.   We have  ample  testimony  with regard to  this,  as  discussed earlier.

   It  was urged on behalf of the Accused that at the  time of  occurrence,  they were aged about 20 to 22 years.   This fact  should be borne in mind while considering the question of  awarding the sentence.  In our opinion, their youth  may explain  rashness.   However, the manner of  conceiving  the plot,  the  preparation  for the same and its  cold  blooded execution,  in our opinion, more than upsets us.  Except the young  ages referred to by Learned Advocate for the defence, there  is  nothing on record to indicate about either  their past behaviours or the behaviour in course of the trial."

and concluded:

   "The evidence has been thoroughly discussed by the trial court.   While considering the aspect of the  corroboration, we   too  have  done  so  to  the  extent  necessary.    The circumstances  that have been narrated above clearly suggest that  the  crime was definitely for gain.  The  accused  did gain  out  of  it.   Whatever little that  the  police  have recovered  is before the court by way of articles.  For  the rest,  there  is  nothing on record.  Killing  of  adult  as possible  witnesses can be explained away by the accused but the  manner  in which each of them were dealt  with  several blows  coupled  with cruelty done to the children which  was totally wanton and senseless, and blows given in the stomach of  a pregnant woman, who has been inflicted a fatal  wound, it  all  taken together along with the position  culled  out from  the various judicial pronouncements referred to above, in  our  opinion  there  is no escape  from  coming  to  the

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conclusion  that they fall in the category of the rarest  of the rare cases."

   Referring  to the judgment delivered in Bachan Singh  v. State  of  Punjab [1980 (2) SCC 684] this Court in  Ram  Deo Chauhan  v.  State of Assam [2000 (5) Supreme Today 312] has held:

   "Commission  of  the  crime in a brutal manner or  on  a helpless child or the woman or the like were held to be such circumstances  which  justify  the   imposition  of  maximum penalty.  In Magahar Singh v.  State of Punjab [1975 (4) SCC 234]  this  Court  held that "for pre-planned  cold  blooded murder death sentence is proper".

   The  Trial Court, after referring to various  judgments, concluded:

   "In   the  case  in  our   hand,  it  is  apparently   a pre-planned,  cold-blooded, brutal quadruple murder.  It  is relevant  that  the murder was committed in the most  brutal manner  with severe cruelty inflicting number of injuries on each victim including a female baby hardly of 2-1/2 years of age  and two helpless women.  They were murdered while  they were in deep sleep after lunch keeping the doors and windows of  the house open without suspecting any foul play from any quarter.   It  is,  in my view, a rarest of the  rare  cases which  is of exceptional nature.  Facts and circumstances of the  case justify the extreme penalty provided under Section 302  IPC.   The accused seems to be a menace to the  society and  in  my  view, sentence of life  imprisonment  would  be altogether  inadequate,  because  the crime  is  so  brutal, diabolical   and  revolting  as  to  shock  the   collective conscience  of the community.  Extreme penalty, in my  view, is  necessary in such cases to protect the community and  to deter others from committing such crime."

   The  High  Court also referred to various  judgments  of this Court and found on facts:

   "There cannot be any manner of doubt that in the present case  murders have been committed by the accused after  pre- meditation  with a motive to commit a theft.  The crime  can be  described to be heinous, dastardly, gruesome and  cruel. The persons asleep have been killed in a merciless manner by the  accused  who has no value for human lives.   The  crime committed  by  the  accused  falls  within  the  aggravating circumstances  as  it  has  been  committed  after  previous planning  involving  extreme  cruelty.  The murders  in  the present  case involve exceptional depravity.  In view of all this  the question arises whether the single circumstance of the  accused being too young should be good enough for us to award  lighter punishment or not.  We have not been able  to lay  our  hands upon any observations of the Apex Court  and none  has  been brought to our notice during the  course  of arguments that even if all the aggravating circumstances are present  in a particular given case, single circumstance  of the  accused being too young or too old would outweigh other aggravating circumstances and the court must on the basis of a  single  circumstance  grant lighter  punishment.   Having given our deep and thoughtful consideration and after giving due  weight  to  the  mitigating   as  well  as  aggravating circumstances  which have been referred to above, we are  of the  view that the accused in the present case must be given

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death  sentence.   The present is one of the rarest of  rare cases in which infliction of extreme penalty is called for."

   It  is  true  that in a civilised society  a  tooth  for tooth,  and  a nail for nail or death for death is  not  the rule  but it is equally true that when a man becomes a beast and  menace  to the society, he can be deprived of his  life according   to   the  procedure   established  by  law,   as Constitution  itself has recognised the death sentence as  a permissible  punishment for which sufficient  Constitutional provision  for  an appeal, reprieve and the like  have  been provided  under  the law.  It is true that life sentence  is the  rule  and  death  sentence is  an  exception.   We  are satisfied that the present case is an exceptional case which warrants  the  awarding of maximum penalty under the law  to the accused/appellant.  The crime committed by the appellant is  not  only  shocking  but it  has  also  jeopardised  the society.  The awarding of lesser sentence only on the ground of  the  appellant being a youth at the time  of  occurrence cannot be considered as a mitigating circumstance in view of our  findings  that the murders committed by him  were  most cruel,  heinous  and dastardly.  We have no doubt  that  the present case is the rarest of the rare requiring the maximum penalty,  imposable under law." After going through whole of the  evidence, perusing the record, thoughtfully considering the submissions made before us and before the Trial Court as well  as  the  High Court, we have come to  an  unmistakable conclusion  that  the present case is one of the  rarest  of rare  cases warranting the extreme penalty imposable by law. The case of the appellant No.2 Jeetu is not distinguishable. But  for his active participation in the conspiracy and  its execution,   accused  No.1  could   not  have  succeeded  in committing  the  murder of six persons including a  pregnant woman  and  a  teenaged child.  The manner in  which  Jeetu, appellant  No.2  committed the murder of Pratik is not  only ghastly  but  reflects his beast like mental attitude.   The appellants  do  not  deserve any sympathy from the  law  and society.

   There is no merit in these appeals which are accordingly dismissed  by upholding the conviction and sentence  awarded to  the  appellants by the Trial Court and confirmed by  the High Court.

   We  record our appreciation of Mr.S.Muralidhar,  learned counsel  appearing  for the appellant for his hard work  and@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the  assistance  rendered to us in disposal of  the  present@@ JJJJJJJJJJJJJJJ case.