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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.