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CASE NO.: Appeal (crl.) 992-993  of  1999

PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: DAMU S/O GOPINATH SHINDE AND OTHERS

DATE OF JUDGMENT:       01/05/2000

BENCH: K.T. THOMAS & D.P. Mohapatra

JUDGMENT:

Thomas J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Abduction  and  triple infanticide are the  gravamen  of this  case.   Kids, male and female, were abducted  not  for ransom  but for their blood to propitiate gods to reveal the spot  beneath  which a treasure trove was believed  to  have been  embedded.   What  finally  disinterred  were  not  the treasures  -  not even a tiny bit of it - but the  putrefied corpses  of  three  infants whose blood had  copiously  been collected  in vain for searching out a non existing cauldron of  jewelleries.   One of the abducted kids (Sagar) was  not destined  to die then as he escaped from the clutches of the kidnappers  and his infantile recollections were utilised by the prosecution to tell the tale to the court.

   The  Sessions Judge found all the four persons who  were arraigned  before  him  for such  grisly  perpetrated  acts, guilty  of  the offences charged against them and they  were all  sentenced  to death.  But a division bench of the  High Court  of  Bombay, Aurangabad Bench (VK Barde and JA  Patil, JJ) extended benefit of doubt which they entertained and set all the accused free.  This is the appeal which the State of Maharashtra  has filed by Special Leave in challenge of  the order of acquittal.

   Sri  Satish Chandra B.Subrik learned counsel who entered appearance  for  the accused reported to us that  the  first accused  (Dami  Gopi Nath) died during the pendency of  this appeal and hence the appeal as against him can be treated as abated.   The remaining three respondents are A2-  Gangadhar Gitaram  Kotka  @  Guruji,  A3-Mukinda Anna  Thorat  and  A4 Dhananjaya  @ Balu Joshi.  It is convenient for us to  refer to them in the rank as they were arraigned as accused in the trial court.

   The events narrated in this case have the silhoutte of a crime  thriller.   Mystery hovered around Chanda village  in Newasa  Taluk (Ahmadnagar district in Maharashtra) over  the sudden  disappearances  of  children one  after  the  other. Horror  struck  the minds of the villagers when cadavers  of

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the  children were recovered one after another from a  canal which flowed through Newasa.

   The  episodes started on 4.3.1992 when a little girl  by name  Meera (one of the four children of Ramdas) was missing from  her  house.   The  elders of the  family  made  hectic searches  and  then  caused announcements  to  be  broadcast through  loudspeakers fitted at the Gram Panchayat’s  office regarding  the  disappearance  of  the child.   Next  day  a complaint  was lodged with the police.  On the third day her dead  body was recovered from the canal flowing through  the locality.   It  was  wrapped in a gunny bag  made  for  urea storage.  Among the injuries noted on the dead body two were so   peculiar  that  the   mystery  deepened  further.   Dr. Ramprasad  (PW33)  who  conducted autopsy on  the  body  has described  one injury as anti-mortem and the other as  post- mortem.  The former was multiple abrasions on the left labia majora  on the lateral aspect.  The latter was a "triangular wound  on  the  perenial region just  posterior  to  vaginal opening."  PW33 Doctor opined from the other injuries  noted by him that death of Meera was caused by throttling.

   On  9.2.1994 a five-year-old kid by name Devidas (one of the  two  children of PW 26 - Khandu) was found missing.   A complaint  was lodged with the police on the succeeding  day and  three  days  later the dead body of Devidas  was  found floating in the canal at Dedgaon in Newasa Taluk.  He had an injury  on  the  back  of his head and his  penis  was  seen chopped  off.  His father PW26, a rustic villager, wished to avert  a  post-mortem examination on the remainings  of  his dear  child and hence he did not choose to inform the police about recovery of the dead body.

   On  13.2.1995  another little male child by name  Deepak (who  was  then  studying  in the 2nd  standard)  was  found missing  from his house.  His father PW2 Suresh deputed  his uncle  to  lodge the complaint with the police.  Three  days later  the  dead body of Deepak was found in the same  canal and  penis of that child was also seen chopped off,  besides the lobes of his two ears were sliced off.

   While  the  above  events had rocked the  locality,  the particular  village at Newasa Taluk was agog with  different stories  - In the meanwhile a seemingly event-less  incident took  place.   A five year old boy by name Sagar (PW31)  was endeared to A4 Balu Joshi whom the boy used to address "Balu Mama"  (as  the nephew of A4 Balu Joshi by name Krishna  and Sagar  were  classmates and friends).  On two  occasions  A4 (Balu Joshi) tried to allure Sagar by offering sweets to him and  took  him to some distance but on both occasions  Sagar wriggled  out from his grip and ran off.  The first  attempt took place in February 1993 and second was in 1995.  The boy told  his  father PW30 Ramakant about it but the latter  did not  take  it  as  a matter of  serious  implication  to  be reported   to  any  authorities.    But  later  when  things crystallized  into  larger dimensions PW30 felt the need  to bring it to the notice of the police.

   A1 Damu Gopi Nath was arrested on 26.2.1995 and with his interrogation   the  police  could   make  a   break-through regarding  the  mysterious disappearances and death  of  the children.   Arrests  of  the remaining  three  accused  were followed  swiftly and thereafter investigation progressed to a  considerable  extent.   Certain articles  were  recovered consequent  upon  the information elicited from the  accused

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and  such  recovery  threw  further light  on  the  multiple infanticides.   A  confession  was recorded by  Ms.   Anjali Apte, a Judicial Magistrate, First Class on 26.5.1995 and it became  the  sheet-anchor  of the prosecution  matrix.   The confession is marked by the prosecution as Ex.88.

   Narration  of  the prosecution case would be  incomplete without  giving at least a summary of what has been recorded by  PW19  in  Ex.88.  Hence the following extract  is  taken therefrom.

   When  Balu  Joshi(A-4) talked to Kotkar @  Guruji(A-  2) about  his  financial problems, the latter  brought  Mukinda Thorat(A-3) for suggesting some solution.  Mukinda Thorat(A- 3)  mentioned about the hidden treasures in the property  of Guruji(A-2) and wanted to seek the assistance of someone who practiced  occult things.  The genesis of that thinking  was the recovery of a gold ring from this land twenty five years ago  when  a  manual  labourer(PW 25) tilled  the  land  for agricultural  operation.  Pursuant to it, Damu Gopinath(A-1) was  brought and the latter told them that sacrificing  five infant  children would help to disinter the treasure  trove. Damu  Gopinath(A-1)  then  suggested  the  sequences  to  be adhered to as well as the auspicious days for performance of each   such  sacrifice.   Guruji(A-2)   would  perform   the necessary ceremonies or rituals for the same.

   As  suggested by Guruji(A-2), the first to be sacrificed was  a female child by name ‘Guddi’.  The task was  assigned to  Balu  Joshi(A-4)  for  procuring   the  girl.   So  Balu Joshi(A-4)  managed  to abduct Meera @ Guddi on 4.3.92  from the place where she was playing with her friends and brought her  to the house("Wada") of Guruji(A-2).  At 11.30 p.m.,the girl  was  bathed  and  thereafter her  legs  were  held  by Guruji(A-2)  and  Mukinda Thorat(A-3).   Damu  Gopinath(A-1) took  out a knife and inflicted a cross shaped incised wound on   her  vagina  and  collected   the  blood  in  a   brass pitcher(Kalash).   After the blood collection was over,  she was  throattled to death and the dead body was covered in  a gunny  bag.  Guruji(A-2) and Mukinda Thorat(A-3) carried the dead body to the canal on a motor cycle(Bajaj-M50) and threw it into the water.

   As  directed  by Guruji(A-2), an endeavour was  made  by Balu  Joshi(A-4)  to abduct a boy by name "Sagar"(PW 30)  in March,  1993.  But the boy did not respond to the allurement offered  by  Balu  Joshi(A-4).  The accused  persons  became fearful  lest Sagar might disclose it to other people  about the  abduction attempt but nothing happened for one year and hence   they  decided  to   revive  their  operation.   Then Guruji(A-2)  mentioned  the  name  of  Bhau  Khandu  Murge(@ Devidas) as a sacrificial kid.  Balu Joshi(A-4) succeeded in abducting  Devidas on 4.3.94 and brought him to the Wada  of Guruji(A-2).   After  performing the rituals in  the  night, Damu  Gopinath(A-1) directed Mukinda Thorat(A-3) to take  up the  knife  and inflict the cut.  Strictly adhering  to  the said direction, Mukinda Throat(A-3) chopped the penis of the child off and collected the blood in a pitcher.  Thereafter, a  heavy  blow was inflicted on the head of the boy  with  a club  and  Devidas  died instanteously.  His body  was  also disposed of in the canal.

   Almost  one  year  elapsed thereafter and  the  treasure hunters  wanted  to try once again to get  Sagar(PW30).   On 10.2.95,  Balu Joshi(A-4) went to the school where that  boy

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was  studying  and  he  took the boy  to  some  distance  by offering  sweets to be purchased But somehow, Sagar did  not bite  the  bait  and  hence the child  ran  away  from  Balu Joshi(A-4).

   Three  days  after, Damu Gopinath(A-1) was  directed  to procure  another boy by name Dipak Waware.  Balu  Joshi(A-4) went prowling for that boy and succeeded in abducting him on 15.2.95.   As it was a full moon night, A1 to A3 bathed  him first and took him out of the room for exposing his penis to moonrays.   Damu Gopinath(A-1) commanded Mukinda Thorat(A-3) to  cut the earlobes of the boy first and then to chop  down his  penis  and the commands were implicitly obeyed.   After collecting  his blood a heavy blow was given to his head and the  boy  died.  The dead body was carried on a  TVS  Suzuki Motor Cycle and was consigned to the same canal.

   The  above narration is only a summary of the confession recorded  by PW19 Judicial Magistrate First Class.  In fact, the  confession  contains much greater elaboration  of  each episode  with  minute  details.   We  thought  it  not  very necessary to reproduce the whole details.

   The  trial  court  relied  on  the  said  confession  as voluntary and true but the Division Bench of the High Court, after   a  detailed  discussion,   reached   the   following conclusion:  -

   "It  will be, thus, seen that there is reasonable  doubt to   hold  that  Balu  Joshi   (A-4)  made  the   confession voluntarily.   On  scrutinizing  the details  given  in  the confessional  statement, it does not appear that whatever is stated  would  be  possible or probable.   The  confessional statement  does  not appear to be true.  Furthermore, it  is retracted, may be at a late stage by the accused."

   As  we  pointed out earlier, the confessional  statement was  recorded by PW19 Mrs.  Anjali Apte (Judicial Magistrate First  Class),  and  when  she was examined  in  Court,  she pointed  to the details of the various steps adopted by  her for  ensuring  that the confession was voluntary.  In  fact, the Division bench of the High Court discussed the procedure adopted  by PW 19 elaborately and found that no fault  could be  discerned regarding the steps adopted for recording  the confession.   The finding made by the Division Bench in that regard is extracted below:  -

   "So,  on going through the evidence of learned  Judicial Magistrate(F.C.),  Mrs.  Apte (PW 19), and the statement  of Balu  Joshi (A-4) recorded by her on 25th and 26th May 1995, it  can  very  well  be   said  that  the  learned  Judicial Magistrate(F.C.) followed the provisions regarding recording confession  properly and correctly.  No defect can be  found in recording of confession."

   What  persuaded  the  Division  Bench  to  sideline  the confession are the following reasons:  -

   1.   The  fourth accused Balu Joshi remained  in  police custody for a considerably long period and that circumstance is sufficient to view the confession with suspicion.

   2.   The  Sub-Jail,  Newasa (in which  the  accused  was interred)  was  located adjacent to the police  station  and

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hence the mere fact that he was locked up in the Sub-Jail is not  enough to dispel the fear in the mind of the confession regarding police survillence.

   3.   PW 19 (Mrs.  Anjali Apte) was a Judicial Magistrate at  Ahmednagar,  whereas,  there was a  Judicial  Magistrate First  Class at Newasa itself.  As the accused was locked up in  the  Sub-Jail at Newasa, there is no explanation  why  a magistrate  belonging to a distant place was asked to record the  confession,  in  preference to a magistrate at  a  near place.

   4.   The Investigating Officer (PW42) has not  explained how  he  knew  that Balu Joshi(A-4) was willing  to  make  a confession  to  him.  Learned judges draw an inference  like the following:-

   "If  the  circumstance,  that   the  Police  Station  is adjacent  to Sub-Jail, Newasa, is taken into  consideration, then  an  inference can very well be drawn that  nobody  but Police  contacted  Balu Joshi(A-4) and Police  informed  mr. Suryawanshi(PW  44)  that  the accused was willing  to  make confessional statement."

   We  have considered the above reasons and the  arguments addressed for and against them.  We have realised that those reasons  are ex facia fragile.  Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference.  Even if he was produced  from  police  custody, the Magistrate was  not  to record  the  confession until the lapse of such time, as  he thinks  necessary to extricate his mind completely from fear of  police to have the confession in his own way by  telling the magistrate the true facts.

   In fact, A4 (Balu Joshi) remained in police custody only till  26.4.1995  and  the confession was  recorded  only  on 25.5.1995,  which  means, there was an interval of almost  a full  month  after  he was removed from  police  custody  to judicial custody.

   The  geographical  distance between the two buildings  - sub-jail  and  the police station - should not have  been  a consideration  to decide the possibility of police  exerting control  over  a detenue.  To keep a detenue in  the  police fear  it  is not necessary that the location of  the  police station  should  be  proximal to the edifice  in  which  the prisoner  is  detained in judicial custody.  In many  places judicial  courts  are situated very near to  police  station houses,  or  the offices of higher police officers would  be housed  in  the same complex.  It is not a contention to  be countenanced   that   such  nearness   would   vitiate   the independence of judicial function in any manner.

   Newasa  is a taluk located within the territorial limits of   the  district  of   Ahmadnagar.   The  Chief   Judicial Magistrate,  Ahmadnagar  was  approached  for  nominating  a magistrate  within  his  jurisdiction   for  recording   the confession.   There could have been a variety of reasons for the  Chief  Judicial  Magistrate for choosing  a  particular magistrate to do the work.  When not even a question was put to  PW19 or PW 44 (the Investigating Officer) as to why  the CJM,  Ahmadnagar did not assign the work to a magistrate  at Newasa,  it  is not proper for the High Court to  have  used that  as  a  ground for holding that  voluntariness  of  the

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confession  was  vitiated.   Similarly, it  is  a  worthless exercise  to  ponder  over  how or  from  which  source  the investigating  officer  would  have come to  know  that  the accused  was desiring to confess.  Investigating Officer can have  different  sources  to know that fact and  he  is  not obliged  to state in court the same, particularly in view of the  ban  contained in Section 162 of the Code  of  Criminal Procedure.

   Thus  the reasons built up by the division bench of  the High  Court  for carving out an area of doubt regarding  the voluntariness  of  the  confession made by A4  (Balu  Joshi) cannot stand scrutiny.  High Court should not have upset the finding of the trial court regarding that aspect.

   The  division bench has erroneously understood the ratio laid  down  by  this court in Kashmira Singh vs.   State  of Madhya  Pradesh  [AIR  1952  SC 159].  The  portion  of  the decision  extracted  by the division bench in  the  impugned judgment  was the same as this court has quoted in State  of Gujarat  vs.   Subamiya Deshmohmed [1992 (1) SCC 473].   The following is that portion:

   "The  confession of an accused person is not evidence in the  ordinary sense of the term as defined in Section 3.  In cannot  be made the foundation of a conviction and can  only be  used  in support of other evidence.  The proper way  is, first, to marshal the evidence against the accused excluding the  confession  altogether  from   consideration  and   see whether,  if  it  is believed a conviction could  safely  be based  on  it.  If it is capable of belief independently  of the  confession, then of course it is not necessary to  call the  confession in aid.  But cases may arise where the Judge is  not  prepared to act on the other evidence as it  stands even  though, if believed, it would be sufficient to sustain a  conviction.   In such an event the Judge may call in  aid the  confession  and use it to lend assurance to  the  other evidence  and thus fortify himself in believing what without the  aid  of  the  confession he would not  be  prepared  to accept."

   We may make it clear that in Kashmira Singh (supra) this Court  has rendered the ratio that confession cannot be made the  foundation of conviction in the context of  considering the  utility of that confession as against a co- accused  in view  of  Section  30  of   the  Evidence  Act.   Hence  the observations  in that decision cannot be misapplied to cases in which confession is considered as against its maker.  The legal position concerning confession vis--vis the confessor himself  has been well-neigh settled by this court in Sarwan Singh Ratan Singh vs.  State of Punjab [AIR 1957 SC 637}] as under:

   "In  law  it is always open to the court to  convict  an accused  on his confession itself though he has retracted it at  a later stage.  Nevertheless usually courts require some corroboration   to   the   confessional   statement   before convicting an accused person on such statement.  What amount of  corroboration  would be necessary in such a  case  would always  be a question of fact to be determined in the  light of the circumstances of each case."

   This  has been followed by this Court in Kehar Singh vs. State (Delhi (Administration) [AIR 1988 SC 1883].

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   There  are quite a large number of circumstances in this case  which  substantially support the truth of the  version contained in the confessional statement given by A4 to PW19. We may now refer to them one by one.

   The  foremost among such circumstances can be seen  from the  testimony of PW31 (Sagar) the boy who escaped from  the abduction  attempt  twice.  His father PW30 (Ramakant)  also supported  it.  The boy was aged nine, when he was  examined in  court,  and  he said that he knew A4 as  "Balumama",  he being  the  uncle of his classmate.  He said in  court  that once  he was playing with his friends A4 Balu Joshi took him to  a short distance by offering sweets but he did not  like to  go with him further and hence he ran away.  He also said that  while  he was studying in the first standard A4  (Balu Joshi)  went near him and caught hold of his hand by  saying that  he  (A4-Balu Joshi) would escort him to his house  but then  also the boy ran away to the school.  His father  PW30 said  that Sagar told him of both the above episodes but his initial  reaction  was not to treat them seriously.  It  was only  when  he  heard  later  about  the  arrest  of  A4  in connection  with abducting and killing of children, that  he and  the  other  elder members of his  family  realised  how narrowly their child escaped.

   The  unrealistic approach made by the Division Bench  of the High Court to the evidence of PW 30 and PW31 can be seen even by a glance through the observation made by the learned judges which is extracted below:

   "Sagar  is stating about the instances which took place, according  to him, when he was of 5 or 6 years of age.   The instances  by  themselves  are  so minor  that  anybody,  in ordinary  course, being of that age, would not remember  the same  even by the end of the day on which the incident  took place.   Trying  to find corroboration to the deposition  of Sagar  (PW31)  from the deposition of Ramakant (PW30)  is  a futile exercise."

   For  the  boy  the said instances might have  been  very minor  not to keep them alive in memory even till evening of that  day.   But  when he was told later of  the  danger  he escaped from, that minor incident would winch to the surface of  his  mood.  This is how human mind works and mind  of  a child  is  no exception to the process.  For the parents  of the  boy the two episodes could not have created any  impact at the time the incident happened.  But when they knew later that  A4  was kidnapping infants and killing them  it  would have  created  the most probable reaction of human  mind  in them also by realising how they escaped by the skin of their teeth  from  a perennial calamity.  The Division  Bench  was therefore too unrealistic when it brushed aside the truthful evidence of PW 31 (Sagar) and his father PW30 (Ramakant).

   PW  41  Kum.   Archana  was 11 years old  when  she  was examined  as  a  witness.   She  said  that  Guddi  was  her neighbour  and  they were playmates.  The last occasion  she saw  Guddi  was  when they played together with  some  other children.   During  then,  A4 Balu Joshi reached  there  and after  a  few minutes, Guddi was found walking with A4  balu Joshi.  PW41 Kum.  Archana had not seen her thereafter.  The said evidence of PW 41 Kum.  Archana has been found reliable by  the  trial  court, but the High  Court  disbelieved  her testimony  on the sole ground that it is not possible for  a

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child of that age to remember what happened three years ago.

   It  is rather unfortunate that the Division Bench of the High  Court  said so.  As a matter of fact, PW 41  had  seen Guddi  last while they were playing together and later  dead body  of Guddi was recovered.  If so, the one thing which  a child of that age could have never forgotten would have been the  last occasion they had played together.  The  reasoning of  the  High Court in rejecting her testimony was not  only unreasonable,  it  reflected  a poor  understanding  of  how children would react and retain.

   Recovery  of  dead body of the children from the  canal, the  post-mortem findings of the Doctors(PW22 Dr.  Ashok who conducted the autopsy on the body of Dipak and PW33 Dr.  Ram Prasad  who conducted the autopsy on the dead body of Mira); the  condition  of the dead body of Devidas as seen  by  his father(PW  26 Khandu) as the penis of the child was seen cut off are all circumstances which unmistakably corroborate the detailed  confessional statement made by A4 Balu Joshi.  The High  Court  did not even believe that death of Devidas  was homicidal  because no post-mortem examination was  conducted on  that dead body.  The position would be different if  the High  Court  had concluded that death of Devidas  could  not have  been  homicidal.  The Court should  be  circumspective over  the  broader  features in deciding whether  death  was homicidal  or  not.   PW 26 Khandu had  noted,  besides  the devastation  caused on the penis of the child, an injury  on the back of his head.  If the latter alone was noticed by PW 26  perhaps  one could have entertained the doubt  that  the death  of  the child could as well be accidental.   But  the presence  of the other injuries on the dead body, would lead any  sensible  person to the conclusion that the  child  was done  to  death  and  it is no  matter  that  a  post-mortem examination was not conducted on the dead body.

   When  A2-Guruji was arrested and interrogated, he stated to  PW44-Investigating Officer regarding a "Kalash"(pitcher) which  was recovered by PW44-Investigating Officer from  the house  of A2-Guruji.  What is significant about the recovery is  that  when chemical test was made on the pitcher,  blood was  found  sticking  on the outer side of the  vessel.   Of course,  the chemical analyst could not determine the origin of  the blood as it was disintegrated by that time.  But the learned Judges of the High Court did not attach any value to the  circumstance on that sole reason.  At the first  blush, the  approach of the High Court may appear to be sound.  But when  we considered the answer which A2-Guruji had given  to the  questions  put  on him under Section 313  of  the  Code regarding  the said circumstance, he simply denied even  the recovery  of  "Kalash"  as   stated  by  PW44  Investigating Officer.   When we know that there was blood on the  pitcher it  is  for  A2 Guruji to explain how it was.  But  when  he denied  even  the seizure of the pitcher, such a denial,  in this  context,  is not inconsequential.  In another case,  a similar  denial  was treated by this Court as sufficient  to provide  a  "missing  link" to the chain  of  circumstances. (State of Maharashtra Vs.  Suresh 2000(1) SCC 471)

   After  the  arrest  of A3 Mukinda Thorat,  he  told  the Investigating Officer that "Dipak’s dead body was carried by me  and  Guruji(A-2)  on his motor cycle and thrown  in  the canal."  The  said  statement of A3 Mukinda Thorat  was  not found  admissible  in  evidence  as the dead  body  was  not recovered  pursuant  to  the said  statement.   This  aspect

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requires  more  consideration.  It must be pointed out  that pursuant  to  the  said statement and the offer made  by  A3 Mukinda  Thorat  that  he would point out the spot,  he  was taken  to  the  spot and there  PW44(Investigating  Officer) found  a broken piece of glass lying on the ground.  It  was picked up by him.  In this context, it is important to refer to  another  item of evidence.  A motor cycle was  recovered from  the  house  of A2 Guruji and its tail lamp  was  found broken and one piece of it was missing.  But when the broken glass  piece  recovered  from  the spot pointed  out  by  A3 Mukinda  Thorat  was placed on the broken situs of the  tail lamp  of  the motor cycle, it so fitted with the space  that PW44  Investigating Officer had no doubt whatsoever that the said  glass  piece was originally part of the tail  lamp  of that motor cycle.

   The  basic  idea embedded in Section 27 of the  Evidence Act  is  the doctrine of confirmation by subsequent  events. The doctrine is founded on the principle that if any fact is discovered  in  a  search  made  on  the  strength  of   any information  obtained from a prisoner, such a discovery is a guarantee  that the information supplied by the prisoner  is true.   The  information  might  be  confessional  or   non- inculpatory  in nature, but if it results in discovery of  a fact   it  becomes  a   reliable  information.   Hence   the legislature  permitted  such  information  to  be  used   as evidence  by  restricting  the  admissible  portion  to  the minimum.   It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section.  The decision  of  Privy  Council  in  Pullukurri  Kottayya   vs. Emperor  AIR  1947  PC 67 is the most quoted  authority  for supporting  the  interpretation that the  "fact  discovered" envisaged  in the Section embraces the place from which  the object  was produced, the knowledge of the accused as to it, but  the  information given must relate distinctly  to  that effect.

   No  doubt,  the information permitted to be admitted  in evidence  is  confined  to that portion of  the  information which  "distinctly relates to the fact thereby  discovered". But  the  information  to get admissibility need not  be  so truncated as to make it insensible or incomprehensible.  The extent  of  information admitted should be  consistent  with understandability.   In this case, the fact discovered by PW 44  is  that A3 Mukinda Thorat had carried the dead body  of Dipak to the spot on the motor cycle.

   How  the particular information led to the discovery  of the fact?  No doubt, recovery of dead body of Dipak from the same  canal  was antecedent to the information which  PW  44 obtained.   If  nothing more was recovered pursuant  to  and subsequent  to  obtaining the information from the  accused, there  would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and  that piece was found to be part of the tail lamp of the motor  cycle  of A2 Guruji, it can safely be held  that  the Investigating Officer discovered the fact that A2 Guruji had carried  the  dead body on that particular motor cycle  upto the spot.

   In  view  of  the  said discovery of the  fact,  we  are inclined  to hold that the information supplied by A2 Guruji that  the dead body of Dipak was carried on the motor  cycle up  to the particular spot is admissible in evidence.   That information,  therefore, proves the prosecution case to  the

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above-mentioned extent.

   In Exh.  88 confession, A4 Balu Joshi has stated that on 4.2.95,  A3 Mukinda Thorat had handed over to him a list  in which  A3 Mukinda Thorat had written down the articles to be purchased for performing the ceremony before Sagar and Dipak were  killed.   Later,  A4 Balu Joshi  had  purchased  those herbals  as per the said list.  Now, it is important to note that  when  PW44 Investigating Officer made a search in  the house  of A4 Balu Joshi on 8.3.95, a small book(an  Almanac) which  contained  a  slip of paper inside.  A few  names  of herbal   articles   were  written  on  that   slip(such   as frankencense).   That slip was forwarded to the  handwriting expert alongwith the specimen handwritings collected from A3 Mukinda  Thorat  for  comparison.  Ex.  64  is  the  opinion forwarded  by  the said handwriting expert holding that  the scribe  who wrote the slip and the specimen manuscripts  was the same.

   Exh.   64  is  only  the opinion of  the  Asstt.   State Examiner  of  Documents.   From that description  alone,  it cannot  be gathered whether his office would fall within the purview  of Sec.  293 of the Code.  Hence, without examining the  expert as a witness in Court, no reliance can be placed on Exh.  64 alone.

   But,  excluding  Exh.  64, we have come across a lot  of other   circumstances  to  corroborate   the  truth  of  the confessional  statement  contained in Exh.  88.  As we  have adverted  to  many  such circumstances, we do not  think  it necessary  to exhaust all of them for a detailed  discussion here.   All  the circumstances discussed above would  ensure confidence  in our mind in believing that the confession was made voluntarily and it contained the true narration of what all transpired between the conspirators and how the children were  abducted and killed.  No doubt, it can be used against A4 Balu Joshi without any difficulty whatsoever.

   For  using Exh.  88 as against A2 Guruji and A3  Mukinda Thorat,  there  is a constraint.  Section 30 of  the  Indian Evidence Act permits only a limited use of the confession as against a co-accused to whom a major role is ascribed by the confessor.   It is well settled that the confession made  by one accused can be used against the co-accused even when the other conditions under Section 30 are satisfied only for the purpose of corroboration of other evidence.  But this aspect is  not  sufficient to end the travails of A2 Guruji and  A3 Mukinda Thorat in this case.

   One  of the offences alleged against all the accused  is criminal conspiracy under Section 120(B) of the Indian Penal Code.  Section 10 of the Evidence Act falls within Chapter 2 which deals with "relevancy of facts".  That Section renders anything said, done or written by anyone of the conspirators in  reference to their common intention as a relevant  fact, not only as against each of the conspirators but for proving the  existence of the conspiracy itself.  Further, the  said fact  can be used for showing that a particular person was a party to the conspiracy.  The only condition for application of  the rule in Section 10 is that there must be "reasonable ground  to  believe that two or more persons have  conspired together  to  commit an offence".  In this context,  we  may refer  to  S.  Nalini and Others Vs.  State by D.S.P.,  CBI, SIT, Chennai 1999(5) SCC 253.  In paragaraph 107, this Court has stated thus:-

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   "The first condition which is almost the opening lock of that  provision  is the existence of "reasonable  ground  to believe"  that  the  conspirators have  conspired  together. This  condition  will be satisfied even when there  is  some prima  facie evidence to show that there was such a criminal conspiracy.   If  the  aforesaid  preliminary  condition  is fulfilled  then  anything  said by one of  the  conspirators becomes  substantive  evidence against the  other,  provided that  should  have been a statement "in reference  to  their common intention".  Under the corresponding provision in the English  law  the expression used is "in furtherance of  the common  object".  No doubt, the words "in reference to their common  intention" are wider than the words used in  English law(vide  Sardar  Sardul  Singh  Carveeshar  Vs.   State  of Maharashtra)."

   The basic principle which underlies in Section 10 of the Evidence  Act  is  the  theory of  agency  and  hence  every conspirator is an agent of his associate in carrying out the object of the conspiracy (State of Gujarat Vs.  Mohd.  Atik- 1998(4)  SCC 351).  Section 10 permits "anything said,  done or  written by anyone of such persons in reference to  their common  intention"  to  be recorded as a  relevant  fact  as against each of the persons believed to be so conspired.

   In this case, there can be no doubt, relying on Exh.  88 that,  there are reasonable grounds to believe that all  the four  accused have conspired together to commit the offences of  abduction  and murders of the children involved in  this case.   So  what these accused have spoken to each other  in reference  to  their common intention as could  be  gathered from  Exh.   88  can be regarded as relevant  facts  falling within  the  purview of the Section 10 of the Evidence  Act. It  is  not necessary that a witness should have deposed  to the fact so transpired between the conspirators.  A dialogue between  them  could  be proved through  any  other  legally permitted  mode.  When Exh.  88 is legally proved and  found admissible  in  evidence, the same can be used to  ascertain what  was  said, done or written between  the  conspirators. All the things reported in that confession referring to what A1 Damu Gopinath and A3 Mukinda Thorat have said and done in reference  to  the common intention of the conspirators  are thus  usable under Section 10 of the Evidence Act as against those  two accused as well, in the same manner in which they are usable against A4 Damu Joshi himself.

   The  net  result is, the circumstances in this case  are sufficient  to establish that there was criminal  conspiracy to  abduct  and slay five little children in which the  four accused  persons  were  the conspirators  and  further  that abductions  of  four children and killing of three  of  them were carried out as sequel to the said conspiracy.  There is no  escape  for them from conviction of the  offences  found against  them by the Sessions Court.  The Division Bench  of the  High Court has gone gravely erroneous in  side-stepping everyone   of   the  circumstances    established   by   the prosecution.    Criminal  justice   became  the  unfortunate casualty  as  a consequence of the unwarranted  interference made  by  the High Court with a  well-considered  conclusion arrived at by the trial court.  By acquitting the accused in a  case  of  this  nature, despite so  much  of  sturdy  and reliable  circumstances,  the judicial system became  mauled and  faith  of  the public in the efficacy of  the  judicial

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function would have considerably impaired.

   Now,  we have to make up our mind regarding the sentence to be imposed on the three accused.  Learned Counsel for the state pleaded for restoration of the same sentence which the trial  court has imposed, i.e., death penalty.  The question is whether this case can be regarded as rarest of rare cases in   which   the  lesser   alternative   is   unquestionably foreclosed.  Looking at the horrendous acts committed by the accused,  it  can  doubtlessly  be  said  that  this  is  an extremely  rare  case.   Nonetheless, a factor  which  looms large  in  this case is that the accused genuinely  believed that a hidden treasure trove could be winched to the surface by  infantile  sacrifice  ceremoniously  performed.   It  is germane  to note that none of the children were abducted  or killed  for  ransom  or  for  vengeance  or  for  committing robbery.   It was due to utter ignorance that these  accused became  so  gullible  to such  superstitious  thinking.   Of course,  such thinking was also motivated by greed for gold. Even  so,  we  persuade  ourselves   to  choose  the  normal punishment  prescribed  for  murder as  for  these  accused. Accordingly,  while  restoring  the sentence passed  by  the trial court in respect of other counts of offences, we order that the accused shall undergo imprisonment for life for the offence under Section 302 read with Section 34 of the I.P.C.