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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.

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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.@@

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Thereafter Hemlata, deceased with her husband and son@@

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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,@@

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Accused No.2 asked PW 2 Raju to bring liquor and some@@

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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@@

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necessary. Section 306 provides: "Tender of pardon to@@

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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@@

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not be sentenced to death keeping in view their young age@@

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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@@

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the assistance rendered to us in disposal of the present@@

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case.