N.J. Pandya, J.
1. All the three matters arise out of the judgment in Sessions Case No. 462 of 1994 of the Court of Additional Sessions Judge, Pune. The judgment of conviction came to be delivered on 19th February, 1998. As there was a possibility of death sentence being awarded, at the request of the State and with the consent of all the sides, the matter was postponed and finally the order of sentence came to be passed on 23rd February, 1998. While awarding the sentence, not only the Accused were heard but on their behalf, their respective counsel were also heard and so was the Special P.P. appointed for the case on behalf of the State.
2. The charges in the alternative were framed. Primary charge was of s. 120-B, 302 read with 120-B and in the alternative under Section 302 read with Section 34; there was the charge under Sections 302 and 342 read with Section 120-B and in the alternative the charge under Section 342 read with Section 34; the charge under Section 397 read with 120-B and in the alternative under Section 397 read with Sections 392 and 34; the charge under Section 449 read with Section 120-B and in the alternative under Section 449 read with Section 34 all of Indian Penal Code. Learned trial Judge by his aforesaid order of conviction dated 19th February, 1998 was pleased to accept the case of conspiracy as put forward by the State and, therefore, has convicted both the Accused for the offence punishable under respective substantive Sections read with Section 120-B. They have also been convicted for the offence under Section 120-B individually.
3. Of the two convicted Accused, so far as Accused No. 1 is concerned, he was convicted for the offence punishable under Section 302 in respect of six murders and Accused No. 2 was convicted for that very offence read with Section 120-B.
4. Accused No. 2 was convicted under Section 302 in respect of one death and Accused No. 1 was convicted for the death with the aid of Section 120-B.
5. As could be seen from the above, in all seven lives were lost in the incident. Five of them were grown up women and remaining two were children, who were of the tender age of 1 and 1/2 years and 2 and 1/2 years. Of the grown up women, one was house maid viz. Satyabhamabai Sutar. The lady of the House Mirabai Rathi was aged about 45 years, a married woman. The daughter-in-law of Mirabai, Babita alias Nita was aged about 24 years and had one son Chirag, aged about 2 and 1/2 years, Babita was 8 months pregnant. Preeti, the daughter of Mirabai, aged about 19 years, was unmarried. Hemlata, daughter of Mirabai, married to one Shrikant Navandhar, was aged about 27 years and had a son Pratik, aged about 1 and 1/2 years. The said maid servant Satyabhamabai Sutar was aged about 32 years.
6. According to the case of the prosecution, all women were murdered by inflicting knife blows. Chirag and Pratik also died because of knife injuries. Except for Pratik Navandhar, all the deaths were brought about with the use of knife by Accused No. 1 Narayan Chetanram Chaudhary, aged about 20 years at the time of incident. Pratik was killed by Accused No. 2 Jitendra alias Jitu Nayansingh Gehlot, aged about 22 years at the time of incident.
7. According to the prosecution case, the knife blows were given with the help of newly purchased Chhuri said to have been manufactured by Fiskar Company. This particular knife is meant for normal domestic use. It had a sharp point at the top end and, therefore, according to the prosecution, it could be used as 'stabbing weapon' as also 'cutting weapon'.
8. One and the same knife was used by Accused Nos. 1 and 2 for the respective victims as per the prosecution case.
9. The incident happened on 26th August, 1994 between 3 p.m. to 4 p.m. in Flat No. 6, 2nd Floor, Himanshu Apartments, Shila Vihar Colony, Paud Phata, Kothrud, Pune. The said flat belonged to Keshrijnal Rathi, the husband of Mirabai. This middle aged couple was staying in the said flat with their son Sanjay along with daughter-in-law Babita alias Nita Sanjay Rathi, Priti and the grand son Chirag. As luck would have it on that very day, by noon time, Hemlata, the married daughter had come there with her son Pratik, aged about 1 and 1/2 years and her husband Shrikant Navandhar. The reason of her visit was to tie Rakhi to her brother Sanjay, as on the Raksha Bandhan Day she could not come. Her marital home is at, Satara which is the district place at a distance of 2 to 2 and 1/2 hours from Pune by road. Rathis were having a shop known as 'Sagar Sweet Mart' in the Bazar area, Pune. The place of residence was in the interior side. It being a residential area, was usually deserted during afternoon hours.
10. They had in the said shop one helper by name Raju. His full name is Rajusingh Ramlal Rajpurohit. He had started working with them from 8th June, 1994 and he had worked there for more than two months. He was expecting a rise in the salary which did not materialise and, therefore, he left the job by about 21st August, 1994. Before he joined Sagar Sweet Mart on his coming to Pune for the first time from his native place called Muklava near Jodhpur on 1st June, 1994 or thereabout with the help of his brother he got employment in a Restaurant being run in the name and style of 'Bombay Vihar'. He was working on the counter at that place. As he was not conversant with the local language, it led the owner of the said Restaurant to remove the Raju within a week or so.
11. It is the said Bombay Vihar Restaurant in which this Raju is said to have come in contact with the said Accused No. 1 Narayanram Chetanram Chaudhary and the said Jitu Gehlot, Accused No. 2. They both were working in the said Bombay Vihar Restaurant. On Raju taking up employment with the said Sagar Sweet Mart, apparently their contact continued even after leaving his employment at Bombay Vihar Restaurant. Thus Raju, who had hardly anyone to turn to in Pune, apparently fell back on his acquaintance on leaving the job with Rathis after working for almost 2 and 1/2 months from 8th June, 1994. Initially, they stayed together at Bombay Vihar for three days. By that time Jitu had also lost his service at Bombay Vihar and was yet to receive his dues from his owner. By that time Narayanram was found to be staying in a room situate at Nagpur Chawl near Yeravada, the part of the city of Pune. On and from 21st August, 1994, all the three started leaving together in a room at Nagpur Chawl.
12. By then all three were rendered jobless. Whatever limited amount they had with them was being spent and they realised that the said amount was on the verge of getting exhausted. This made them to think about their future. They made up a Plan of robbing in the house of some Sethji i.e. a Businessman. This vague idea gradually developed into a well thought out plan. In the course of discussion, Accused No. 1 suggested to think of Rathis from that point of view. It was a sensible plan as Raju was with them to fill up all the details and the possible amount of loot. He imparted the information of Rathis keeping cash at their house, and daily take was Rs. 2,500/- It appears that Rathis were prospering in their business and because Raju was known to the family members as well, it would provide an opportunity to have an easy access and entry into the house.
13. The idea was to enter into the house in the afternoon, because in the afternoon hours only ladies were found in the house, that too three in number i.e. Mirabai, Priti and Babita with a possibility of maid servant being there. Nonetheless at the most four women only. The three youngsters felt that they can easily take care of all of them and achieve their objective.
14. The matter did not stop here. Accused No. 1 indicated that it would not be that easy to come away with the loot safely. The inmates of the house will surely witness the incident, and if not apprehended, they would at least be identified which, later on, will prove to be very risky for them. At this stage, Accused No. 1 indicated that the inmates of the house will have to be done away by with knife. For this purpose, he said that preparations will have to be made.
15. Raju could not understand the implications of this trend of the discussion and was made to realise by Accused No. 2 and Accused No. 1 that they must have a knife, and Accused No. 1 took the old knife from the room. On seeing the said old knife, Accused No. 2 said that it was totally useless even for cutting a piece of butter. They therefore decided to purchase a new one.
16. They did not have money for that purpose. A silver anklet which Accused No. 2 was wearing in his hand was therefore agreed to be sold. After several failures, they finally could get a Goldsmith to advance money on it. On pawning the anklet, they got Rs. 90/- which were utilised for purchasing a new knife for Rs. 55/-. This is how the talk which had started with a vague notion of looting a Sethji evolved into a Plan made on Rathis and proceeded with preparation of purchase of a new knife by 24th August, 1994.
17. On 25th August, 1994 they decided to carry out survey of the area. They left their Nagpur Chawl for reconnaissance and went to the Kothrud area and they were satisfied that in the afternoon hours particulary between 2.00 p.m. to 4.00 p.m. it is a deserted and isolated place.
18. On 26th August, 1994, they left Nagpur Chawl and reached the place. When they came near Himanshu Apartments where Rathi Flat is situated, Raju saw the Motor-cycle which he recognised to be that of Sanjay Rathi, the son of the family. All three of them therefore went away on the main road and whiled away about an hour by eating Vada Pav and moving around the area. After an hour or so they came to the spot by 3.00 p.m. They found the coast clear.
19. Making Raju to lead. Accused Nos. 1 and 2 started climbing the staircases following Raju. They took precaution on the way to chaining the door of each of the flats on the respective floors from the outside. It is three storeyed building with two flats on each of the floors. While they were so climbing, Raju noticed that maid servant Satyabhamabai was proceeding ahead on the stairs. Suddenly he lost courage. Accused No. 1 not only tried to stop Raju from coming down the staircases but threatened that he would finish him. He threatened the said Raju and accordingly made him to reach upto Rathi's place. Flat No. 6B was having its main door ajar. Raju could see from the outside that the maid servant was doing her work. The door being open, their entry in the house was made easier.
20. Raju entered the flat followed by the remaining two Accused. They shut the door. This prompted maid servant Satyabhamabai to call Mirabai. On finding Raju, she immediately raised her voice as to why he had come. She was naturally anxious when she saw Raju accompanied by two unknown persons almost of the same age.
21. Raju had occasions to visit Rathi family house because, as per the custom with Rathis, the servants employed in the shop were given meals for which Chapattis had to be brought from Rathi's house which was being done by Raju after a week or so of his employment with Rathis.
22. A query raised by Mirabai was met with an angry response from Accused No. 1. Over and above the preparation of carrying newly purchased knife, the second knife was also brought along with them for threatening the inmates of the house and a packet containing chilly powder was also brought by them. The new knife was with Accused No. 1. Accused No. 2 had the old knife as also chilly powder and Raju accompanied them.
23. As a part of conspiracy, Accused No. 2 also made use of chilly powder and, in the process, all inmates of the house were made to assemble in the corner of the hall referred to as a partition. Realising that the middle aged woman who had raised her voice was the lady of the house, Accused No. 1 promptly asked her about the valuables. Seeing his response with the knife in hand, the lady realised the danger to herself as also to the rest of the members of the family. On an inquiry about the valuables, she immediately pointed a finger towards Almirah inside the room.
24. Accused Nos. 1 and 2 took her to the said room. Accused No. 2 handed over the packet containing remaining chilly powder to Raju, instructed him to sprinkle it on the victims if they started shouting or making any other efforts. Thus, Raju had been on guard over them and the lady was taken inside the room. She was done to death with knife blows by Accused No. 1 and was left to lie on bed. She died on the bed. Thereafter Babita alias Nita was taken to the other room, of course, for getting the valuables. She too was inflicted knife injuries by Accused No. 1 and was killed. Her son Chirag was also likewise killed by Accused No. 1.
25. Thereafter, Raju went towards Preeti and took her into the bathroom at the instance of Accused No. 1 who cut a length of wire of washing machine and used it to choke her to death. He thought that he had succeeded in getting her killed and left her in the bathroom. However, Preeti did not die, and when Accused No. 1 heard her noise in the bathroom, he went there again with knife saying 'Jinda Hai Sail, Abhi Mari Nahi Sali.' He gave knife blows to her and she died. Raju had then taken Satyabhamabai in the kitchen at the instance of Accused No. 1 where he was already there in the kitchen washing the blood stained knife. Raju held Satyabhamabai and gave blows on her with knife given by Accused No. 1 and she was killed.
26. Thereafter Raju and Accused No. 1 turned towards the room where Accused No. 2 was standing in front of the married daughter Hemlata along with her child Pratik. Before she was killed, Pratik was tried to be taken from her, but Hemlata resisted. She was assured by Respondent No. 2 that he will not kill her child Pratik but he will give him to his grandmother and threatened her that if the child was not given to him, he will kill the child. Thereafter, Hemlata was killed. After the child was given to Accused No. 2, he and Raju took the child into the room where Mirabai was lying dead in the pool of blood on the bed. The child was suffocated by gagging and as his movements stopped, Accused No. 2 put down the said child on the floor saying he had died.
27. They both came out and joined Accused No. 1 who was standing before Hemlata. She naturally asked where the child is, and thereupon, Accused No. 2 told that the child has been given to her grandmother and said 'Ub Isko Dekh Lenge'. Accused No. 1 then drove to Hemlata. She put up some struggle and, in the process, she fell down. Accused No. 2 helped in giving her blows by putting his knee on her stomach and Accused No. 1 gave her knife blows on her neck. She also died. When she fell down, Sari and Petticoat had come up to her stomach which made Accused No. 1 to entertain some other ideas which he was prevented from carrying out by Raju.
28. Almirahs which were found in the flat were emptied to the extent that the Accused could put articles and other cash and valuables which they kept in the air bag obtained from the said flat and were ready to leave it. Before that, Accused No. 1 changed his pant which was blood stained as 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 inside the air bag along with articles that were taken from the house by him. As they were about to leave, the phone in the house started ringing. Accused No. 1 cut the telephone wire with the knife that was with him. As they were about to leave the flat, they heard cry of the child from the room where Mirabai was lying dead, all of them went inside at the instance of Accused No. 2. Accused No. 2 took knife from Accused No. 1 and gave blows to the child and killed him.
29. They all came out of the house with the air bag. Coming out on the lane, leading to the main door, they found one rickshaw standing on the road. From there, all of them made off to their room at Nagpur Chawl. All through their activities at Rathi's flat, it was raining.
30. Sanjay Rathi had left his house with his brother-in-law who had come from Satara. There being some work, they both had gone. They came back to his shop by 6.00 p.m. His worried father told him that there is no response on the telephone and, therefore, Sanjay Rathi went to the house along with his brother-in-law. They could not open the door. From the shop duplicate key of the hall was called for, and after opening the latch of the door, they witnessed the horrifying scene. The police were called and investigation started. Sanjay Rathi was the complainant.
31. Of the three Accused on reaching Nagpur Chawl, Accused No. 2 asked Raju to bring liquor first and some edibles. Raju was given a sum of Rs. 200/- for the purpose. On his return, articles were taken out from the air bag. Over and above the blood stained clothes, there were mouth organ i.e. (Baja) Shurries, Camera, one bundle of Rs. 500, one bundle of Rs. 100, bundle of Rs. 50/- and so on. Raju kept for himself the mouth organ, camera, a lady wrist watch of Ricoh make as also coins of Nepal origin. Accused No. 1 took Mangalsutra and one H.M.T. watch wrist. This Mangalsutra was snatched from around the neck of Hemlata by Accused No. 1. Accused No. 2 took one golden chain, three golden bangles and one golden ring having S.R. written.
32. Accused No. 1 thereafter asked Raju to wash the blood stained clothes of Accused Nos. 1 and 2. While washing pant of Accused No. 1, he 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 the said ring back in the pocket of the said pant, folded it and kept it in the tin roof.
33. They went to the Jewellery shop at 8.00 p.m. where the silver anklet was pawned by them and made payment of Rs. 100/- and came back with the said silver anklet to the said room and started consuming liquor there. Their landlady did not like these three boys using her steel glass particularly for consuming liquor, and she picked up quarrel. After finishing the same, they went to the shop of their landlord telling him to reason it out with his wife. Then they moved here and there for about an hour or so and came back to their room. After coming back to the said room, Accused No. 1 declared that he will go and hide the chhuris. Chhuris were so hidden and on his return, when inquired, Accused No. 1 told that chhuris were hidden near the latrine. They went to sleep.
34. On the next day, at the instance of Accused No. 1, Raju brought newspapers 'Prabhat' and 'Aaj ka Anand'. There, the incident was reported but identity of the Accused was not indicated anywhere. Thereafter, in the afternoon, they purchased the evening newspaper 'Sandyanand' which carried further details of the incident as also disclosed the name of Accused No. 2 and Raju. They were reading the said newspaper, when they were away from the room. They hurriedly came back to the room and decided to leave the city. As agreed, they parted the Company. Accused Nos. 1 and 2 travelled together to Ahmedabad Via Surat and they agreed to meet on 29th August, 1994. They left the place on 27th itself.
35. The particulars given so far are very stark. At the time of filing of the charge-sheet in the month of December, 1994, the police necessarily did not have all details qua to the incident as P.W. 2 Raju had not yet been turned as Approver. At the same time, the police did have his statements, said to have been recorded on or about 15th October, 1994. They also had with them two chits, said to have been written by P.W. 2 Raju, one addressed to the police and another to his parent, more or less, owning his guilt. That is why we would refer to the charge-sheet, which indicates that the said P.W. 2 was Accused No. 1 and he along with the remaining two had all decided to go to the house of Rathis and carry out the crime for personal gain.
36. The statement of the Accused, as such, could not have been of much help to the prosecution in proving the case. It would have afforded the clue for investigation and till the P.W. 2 decided to turn Approver, the police was relying entirely on the circumstances which they could collect.
37. The circumstances which are placed are that the three Accused were residing in a room; the owner of the room had seen them living together; pawning of silver anklet of Accused No. 2; purchase of Chhuri; travelling from the place of incident in a Rickshaw and going to Nagpur Chawl; waiting for the newspaper; waiting for the incident to be reported in the newspaper and going away from Pune.
38. About leaving Pune, as indicated earlier, they travelled separately from Pune; got together at Ahmedabad and proceeded to Rajasthan. They first halted at Jaipur. From there, they went to Ganganagar. Raju and Accused No. 2 separated while Accused No. 1 went to his native place Jalapsar. At the Dungargad Police Station, he came to be arrested on 5th September, 1994.
39. The remaining two travelled a lot and, as indicated above, P.W. 2 was arrested on 15th October, 1994 and he was brought before the Pune Police by his brother-in-law Saitansingh Rathod in the month of November, 1994.
40. The circumstances of their journey and stay at different places were sought to be meticulously collected by the Police in support of his case as originally filed. For this purpose, the police have obtained entries of hotel registers from Jaipur, Delhi and Ajmer. Certain articles were also recovered including one gold ring having the letters S.R. written on it. Whatever articles at the time of arrest, the respective Accused had, were also taken possession of. After Accused No. 2 was produced, he was taken to Pali and Sojat for recovery of certain articles and articles were recovered from the persons who are related to the Accused.
41. The said Saitansingh Rathod also had certain articles in his possession said to have been sent by Accused No. 2 through his friend one Shri Hirawat. The chits, Exhibits 84 and 85, clearly indicate that P.W. 2, who was accompanying the Accused, was involved in the incident. These chits also indicate that but for the availability of P.W. 2, the victims would not have been to Rathis. From the cross-examination of P.W. 2, it appears that his version before the police in the statement dated 15th October, 1994 was setting out many details of the incident about which the chits are silent.
42. However, the situation was radically altered when his confessional statement came to be recorded and was made use of by the police before the learned trial Judge for allowing the P.W. 2 to be made as an Approver. Till he became an Approver, the police were, no doubt, were heavily relying on those chits and that is why they had also taken pains to get the handwriting expert's opinion to prove those chits.
43. While in Jail, the said Approver wrote a note to the Police Commissioner indicating that he wants to confess. The matter was entrusted to Mr. V.L. Shrotri, A.C.P., Investigating Officer. As the said Approver was in judicial custody on 12th December, 1996, the application was made before Learned Additional Sessions Judge, Pune, to call the said Accused and to grant permission to record the confessional statements of Accused Raju Rajpurohit. Learned Additional Sessions Judge, Pune, directed that the said Accused be produced before Mr. Khomane, Special Judicial Magistrate for recording the statements.
44. That is how the statements of Raju came to be recorded by the said Special Judicial Magistrate who is one of the important witnesses, P.W. 41. After the statements were so recorded, the application was moved before the Trial Court by the prosecution under Section 307 of the Code of Criminal Procedure on 3rd January, 1996 as per Exhibit 11. Learned trial Judge directed that the said Accused Raju be produced before him on 4th January, 1996. It came to be allowed on 4th January, 1996 and after granting pardon, learned trial Judge directed that the said Raju be kept in District Prison, Satara, until further orders. In the order of grant of pardon itself, learned trial Judge had directed the prosecution to give copies of the confessional statements of the said Raju to the remaining Accused. Thereafter, charge came to be filed on 19th January, 1996 and the case proceeded to trial. In Trial Court, 66 witnesses in all were examined, of which, 18 were panch witnesses, 1 was the Doctor, and 14 were the police personnel of different rank. Two of the police personnel are from Rajasthan. Remaining 33 witnesses are there, except P.W. 2, of course, to bring about all other circumstances which according to the prosecution would implicate the Accused. Now there is a confessional statement of the Approver. The evidence of these witnesses is more or less for the purpose of corroborating the material particulars on record to the effect that what he has said in his statement as well as deposition is amply corroborated.
45. It was pointed out that from the original version as to the memorandum relating to the confession drawn up by the Special Judicial Magistrate Mr. Khomane that he had not recorded the confessional statement in the Open Court room as was supposed to be done. It is true that as per the instructions of the High Court as well as the provisions in the criminal manual, it is to be recorded in the Open Court room. However, from the answers given in the cross-examination, it is quite clear that the entire exercise was carried out in the Court room. The word 'Kholi' used in Marathi version, in our opinion, therefore cannot be construed to mean that the confession was recorded in the chamber and not in the Court room.
46. In this background, it is quite obvious that the confessional statement assumes great importance. However, it may be mentioned here that the grant of pardon essentially based upon the confessional statement is not at all challenged by the defence. The prosecution was in a position to lead so to say direct evidence through the Approver P.W. 2. From the point of view of the prosecution, he is the solitary eye witness.
47. At this juncture, we may refer to the aforesaid fact of his statement having been recorded on 15th October, 1994 in Rajasthan, Jodhpur. As the maker of the statement, who is now the Approver, was till the grant of pardon was an Accused, the prosecution was not naturally relying on the statement. Till 23rd May, 1996, it was nowhere in the picture. On that date, by filing Exhibit 70, learned advocate for both the Accused filed an application reading as under:
IN THE COURT OF THE ADDL. SESSIONS JUDGE,
PUNE SESSIONS CASE NO. 462/1994 State .. ComplainantVersusNarayan Chaudhari and one another (Accused in Jail)... Accused
Herein an application on behalf of both the accused is as under:-
On instructions from the accused it is learnt that during the investigations of this case a statement of the then Accused Raju now an 'Approver' was recorded by the Investigating Authorities.
It is submitted that copies of the statement allegedly taken by the police may kindly be furnished to the Counsel.
48. Learned Special Public Prosecutor sought time to find out about the same and finally on 30th May, 1996, learned trial Judge directed the prosecution to supply the copies of the statement and on that very day, learned Special Public Prosecutor submitted its copy in the Court under Exhibit 71-A and that is how the entire statement is produced in the paper book, as per Vol. II, pages 86 to 92.
49. As the witness has been examined and through the Magistrate, who recorded the confessional statement, the confessional statement is also brought on record, both with regard to the said confessional statement as well as the aforesaid statement of P.W. 2 produced with Exhibit 71-A can be made use of for the purpose of contradiction only.
50. Having thus created situation of getting the statement produced and obtained the copies thereof, suddenly the defence insisted that the case diary be examined to make sure that the statement in fact was recorded on 15th October, 1994. Mr. Shrotri, Investigating Officer, brought the case diary and produced it on 31st May, 1996. After perusing the same, the learned Judge has kept it on record. This order is to be found at pages 94 and 95 of the paper book of Vol. II.
51. In the aforesaid background, if one turns to the deposition of P.W. 2, it virtually sets out the entire prosecution case, in all its gory details. It is described how the accused on after the another had caught hold of and killed the members of the Rathis family. It is clearly said in deposition Exhibit 74, page 96 onwards of Vol. II that everyone was killed except Pratik by Accused No. 1. From utterances said to have been made by him of derogatory nature or also deposed to by him, more so with regard to Preeti who accused No. 1. having failed by tying electric wire around her neck to kill, on hearing her voice, he went uttering the words 'Sali Mari Nahi' and after giving knife blows to her, he said 'Mar Gayi Sali'.
52. Babita was pregnant and her pregnancy was in advanced stage. After giving blows in her neck and upper part of her body, the blow was also given in her stomach.
53. Exposure of Hemlata on account of disturbance of clothes leading accused No. 1 to entertain bad ideas about her is also deposed to by the said Approver.
54. Killing of Chirag and Pratik respectively by Accused Nos. 1 and 2 is also graphically described.
55. Snatching of Mangalsutra, Article 103, from the neck of the Hemlata after she died, is also referred to in the deposition by P.W. 2, Removing of articles from the Almirah; putting them in an air bag and putting; the blood stained clothes inside the bag is also deposed to by the said Approver. Accused No. 1 helped himself to a green colour pant in a Khaki Jerkin because his pant was blood stained. Accused No. 2 has also worn a shirt. Cutting of telephone wire is also deposed to by the said Approver when it started ringing.
56. All throughout the incident, virtually, it was raining. According to the Approver, after leaving the house, they went to the room at Nagpur Chawl in a rickshaw.
57. After the evidence was recorded of all witnesses, learned trial Judge recorded the statement under Section 313 of the Code of Criminal Procedure of both the Accused. It is a very elaborate exercise undertaken by him putting almost 600 questions to them. The defence is that of total denial. Accused No. 1 has tried to make out a case of not being in Pune at all. It seems to be an exercise in tight robe walking because he does not come out with a case of never having been in Pune. As against that, accused No. 2 admits he being in Pune and also admits that he knew the Approver as they worked together in Bombay Vihar Restaurant. He further puts forth a case of there being enmity with the said Approver. This is an answer to the question No. 585 page 388 of Vol. I. The Approver lost his job with Bombay Vihar as accused No. 2 had complained against him. He has also admitted in the earlier reply that Raju was working in Bombay Vihar and he came to work in Bombay Vihar after Raju joined the same.
58. So far as Accused No. 1 is concerned, he denies that he knows Raju at all but says that he knew Raju's elder brother. In question No. 585 Accused No. 1 says that he has no personal enmity with Raju. He does not know him. He knew his elder brother. He cannot say why Raju deposed against him i.e. Accused No. 1. This is at page 280 Vol. I.
59. In this background, we have to evaluate the deposition of P.W. 2 and other related evidence. The trial Judge has taken great pains in his elaborate judgment running into more than 200 printed pages occupying the entire Volume V of the paper book. At page 42 para 59 which refers to the fact that since the Approver is the only eyewitness to the incident, the requirement of law as to the acceptance of his testimony will have to be borne into mind. Thereafter, various Supreme Court decisions of the point of testimony of the Approver have been referred to in the judgment paragraphs 60 to 67. Before us, it was accepted position at the bar that so far as the aspect of law on the point is concerned, learned trial Judge had correctly understood the same. The dispute therefore necessarily evolves around the question whether the Approver's evidence is corroborated on material particulars or not. From paragraph 191, Vol. V, where learned trial Judge proceeds to listen the corroborating evidence on different aspects, he has broadly, itemised them in different 26 headings. The discussion starts from pages 11 to 195 of paper book Vol. V. Learned trial Judge is very much mindful of the fact that the confessional statement brought on record Exhibit 209 is not one of the corroborative piece of evidence and it refers to illustration of Section 30 of the Indian Evidence Act for this purpose, and in our opinion, rightly so. It has been allowed to be used in the cross-examination to bring about the contradiction either in the nature of omissions or additions.
60. Learned defence counsel had naturally commented upon the words expressed by the trial Judge in the aforesaid part of the judgment with regard to the corroboration of Raju's testimony. This will be dealt with at a later stage. Learned Public Prosecutor appearing in the matter on behalf of the State, who argued the case of the confirmation as also supporting the order of conviction in respective appeals of the respective accused, had taken great pains to cull out corroborating evidence, and according to her, if the evidence is segmented properly, there would be as many as 62 corroboration points.
61. Without being impressed by either of these two, one thing is to be noted that both, learned trial Judge as well as learned Public Prosecutor, have been right in identifying the corroborative pieces of evidence. They would certainly be the subject-matter of the comments by the defence. Needless to say that learned trial Judge came to the conclusion of their being ample corroborative evidence for the reasons stated by him. We are mainly referring in our discussions to the chart prepared by learned Public Prosecutor in the matters before us. The first advantage is that it chronologically covers the activities of the Approver and corroborative evidence, if any. If by chance something is left out from the elaborate exercise of learned Public Prosecutor, we will certainly be turning to the judgment where learned trial Judge has dealt with corroborative evidence in his own way.
62. Item No. 1 on the said Chart for corroborative evidence refers to the serving of the Approver with Sagar Sweet Mart. According to the Approver as well as the prosecution case, he came to Pune on or about 30th May, 1994; met his brother and was placed in Bombay Vihar Restaurant to work. At that place, the Approver came into contact with the remaining two Accused. Accused No. 1, as stated above, does not admit of his working in Bombay Vihar Restaurant. However, as rightly pointed out by learned Public Prosecutor during the cross-examination of P.W. 2 at page 179 paragraph 74, Vol. II, on behalf of Accused No. 1, the questions are put to the Approver that he had quarrelled with Accused No. 1 in Bombay Vihar and because of his unseeingly and indecent behaviour as also the use of filthy language, the Approver was driven out by his employer from Bombay Vihar. This was referred to by learned Public Prosecutor and, no doubt, the aforesaid questions are put and that too in denial of the same, we are mindful of the fact that the questions put during the cross-examination by counsel may not be binding to the Accused. We are referring to it because both Accused we have found to be trying to put forth almost an impossible defence. Wherever they can attack any of the witnesses, they took a stand in the cross-examination which brings them perilously closed to admitting the case, but the denial is maintained throughout. It creates problem for them because, at the end, there is material on record which on account of their persistent denial will clearly go against them. This aspect will be referred to at an appropriate stage.
63. So far as the working at Sagar Sweet Mart is concerned, there could not be much of a dispute as P.W. 1 complainant Sanjay Rathi has said so, as also P.W. 9 Vishwajit Joshi who had seen Raju working in the said Sagar Sweet Mart. He said to be a friend of Sanjay Rathi. P.W. 1. Their depositions respectively are in Vol. II. pages 52 to 81 and pages 254 to 267. Having entered the service of Rathi on 8th June, 1994, after a week or so, the Approver was asked by his employer to go to the residence of Rathis for bringing Chapattis. This has been deposed to by the Approver at page 97 para 8 of the paper book Vol. II and confirmed by Sanjay Rathi in para 7 page 52 of Vol. II.
64. According to the Approver both the Accused were visiting him at Rathi's shop. This would mean that the acquaintance which they had struck in 'Bombay Vihar' was maintained in this manner. However, Sanjay Rathi has spoken of only Accused No. 2 having come to his shop in Company of the said Raju, Accused No. 2 requested Sanjay Rathi for job. This is referred to in para 8 page 52 Vol. II. As against that, P.W. 9 Vishwajit Joshi (Vol. II page 261 lines 31 and 32) refers to Accused No. 1. Keeping aside the controversy of Accused No. 1 for the time being, so far as Accused No. 2 is concerned, he has admitted his acquaintance with Raju while denying he had gone to Rathi's shop.
65. About Raju having worked for more than two months in Rathi's shop, there is not much of a dispute and does not concern either of the Accused. In any case, P.W. 2 has confirmed the same in the course of his deposition. It was the case of the Approver that when he joined the services with Rathi, he was getting only Rs. 600/- per month, as against Rs. 800 that he was getting at Bombay Vihar. There was an understanding that after he is working for two months more, he will get an increase in the salary. At the end of two month's period or so, he asked for a raise in his salary which was refused by P.W.I.P.W. 1 has in Vol. II para 7 page 52 confirmed the same. He further says that on this issue Raju left the job after 8 to 10 days.
66. According to the Approver, Jitu Accused No. 2 came to him while he was thinking of leaving Rathi's job. P.W. 1 confirms by saying that two days prior to Raju leaving the job. Accused No. 2 had come seeking job. As Accused No. 2 demanded salary of Rs. 1,200/- Rathi could not afford him. (Vol. II para 8 page 52).
67. The Approver left the job on or about 17th August, 1994 and, thereafter, he along with Accused No. 2 went to the room of Accused No. 1 situate at Nagpur Chawl. About stay in Nagpur Chawl, there is evidence of the owner thereof Vimalabai Vaishnav, P.W. 35 and her husband Babulal Vaishnav, P.W. 32. Their depositions are in Vol. Ill respectively at pages 176 to 185 and pages 147 to 155. So far as leaving the job is concerned, it is, of course, confirmed by P.W. 1 in paragraph 7 page 52 Vol. II of his deposition.
68. The stay in Nagpur Chawl is denied by both the Accused. So far as the corroborative pieces of evidence are concerned, the oral testimony of the landlord and landlady is certainly there, and in the cross-examination of Babulal Vaishnav, he has come out with a case that the room in question was rented out to one Lala Modi. They allowed these three persons to live in the said room because an amount of Rs. 145/- of the said tenant Lala Modi was to be returned by the landlord. Said Lala Modi had already left the said room on 21st August, 1994 and prior to him, his brother had also left. This would mean that on or after 21st August, 1994, Accused No. 1 alone was staying in the room and the other two joined him.
69. P.W. 15 Mangalsingh Rajpurohit had taken the police to Nagpur Chawl on 29th August, 1994 i.e. 3rd day of the incident and search of the room was taken by the police. This witness has clearly stated that all the three I.e. two Accused and the said Approver Raju, were staying in the said room. When the search was carried out, certain empty bottles were found, of which, one was found containing finger print of accused No. 2, as per Exhibit 319, page 231 Vol. IV, the Report. Several articles were recovered from the room. According to the prosecution, Article 72 is the Jeans Pant. It belonged to Accused No. 1 and, in its pocket, a gold ring was also found. Articles belonging to the Approver were also found from this room. Incidentally, it may be mentioned here that from Accused No. 1 one receipt of 'Shree Datta Newspaper Agency' of Pune was found referring to Nagpur Chawl for the months of July and August, 1994. This article is 139.
70. Coming to the depositions of Vimalabai Vaishnav, P.W. 35, and Babulal Vaishnav, P.W. 32, it may be mentioned here that there is no suggestion whatsoever of enmity in relation to either of the Accused. Vimalabai had occasion to see all the three of them drinking liquor and she got angry because while two of the three Accused were using glass tumbler, the third one was holding the steel glass belonging to her. It is found containing the name of Babulal Vaishnav, P.W. 32. This was also recovered amongst the other articles from the said room when it was searched on 29th August, 1994.
71. The defence is unable to advance any reason as to why Vimalabai and Babulal Vaishnav should depose against the Accused.
72. With regard to the incident of glass, it is the case of the prosecution that Accused No. 1 had gone to Babulal Vaishnav, who generally stays in his shop nearby, to clear the misunderstanding and to request him to persuade his wife Vimalabai not to make much of it. On 24th August, 1994, after agreeing upon the plan, as there was paucity of funds, the Accused decided to raise money on silver ornament i.e. anklet belonging to Accused No. 2. For this purpose, they went to Shringar Jewellers which was owned by two brothers Gautam Lunawat, P.W. 29 and Ramesh Lunawat, P.W. 31. Their depositions are in Vol. Ill at pages 137 to 146. Needless to say that they corroborated the testimony of the Approver.
73. These two witnesses were there in the Test Identification Parade which was held in respect of both the Accused. There was Test Identification Parade of the Approver also, and these witnesses had participated in it. Exhibit 236 is the Identification Parade of Accused No. 2 in Vol. Ill at page 347, and the Identification Parade of Accused No. 1 Exhibit 203 is at pages 269 to 271 Vol. III. They have also identified both the Accused as well as the Approver in the Trial Court in the course of their depositions. The article anklet was pawned on 24th August, 1994 and it was redeemed on 27th August, 1994. They were given Rs. 100/- of which Rs. 10/- were deducted. Thus, the Accused got Rs. 90/- net. While redeeming the article, they gave currency note of Rs. 100/- and did not take back Rs. 10/-. These things are spoken to by the Approver and confirmed by these two witnesses. After raising money in the aforesaid manner, they went to purchase chhuri. To support this aspect, the shop owner Jaswant Munot has been examined as P.W. 5 (Vol. II pages 233 to 238). He states that three persons had come to his shop in the evening and purchased the last one of the six kitchen chhuris of Fiskar Company. He had sold it for Rs. 55/-. This was done after bargaining. According to the Approver, the price quoted was Rs. 75/- and later on settled it at Rs. 55/-. In the cross-examination of the shop owner, he has admitted that he sold all churis at Rs. 55/- and there was no bargaining.
74. During the course of the cross-examination of this witness, page 238 Vol. II, line 26, an attempt was made to bring on record through the Police statements that the witness did say something which demolish the story with regard to the pawning of Kada by one of the three persons. This person was referred to as the person of lesser height. However, this has been brought straightaway by putting the question as to 'whether in your statement before the police you have stated like the person of lesser height than the person of good height was wearing a silver anklet in his left hand?, and after quoting that portion, his answer was sought to be obtained. Learned Public Prosecutor in the Trial Court rightly objected to the same. The use of the statement was in clear violation of Section 162 of the Code of Criminal Procedure. It could not have been used for the purpose other than the contradiction. With regard to the contradiction proper foundation has to be laid which is not done. Obviously, this part of the police statement could not be read as substantive evidence. The objection by learned Public Prosecutor was, therefore, well taken. If this part of the cross-examination is discarded, what remains is uncertainty about the theory of bargaining. Raju speaks of it and so does the witness.
75. With regard to the purchase having been made of chhuri of the Fiskar Company referred to as the domestic knife, the story put forward by the Approver is confirmed by the witness. It is an ordinary knife, to be found in kitchen of fairly good length with blunt side on the top and sharp on the other. The sharper side as it goes towards the end curves into el point coinciding with the blunt side making it into a sharp point on the top. According to the prosecution, this is the weapon with which injuries were inflicted on the victims. It is Article 147.
76. Bringing of the steel glass by the Approver and not liked by Vimalabai, the landlady of the Nagpur Chawl, is recorded in the Panchanama Exhibit 215 (Vol. Ill pages 304 to 307). The said Vimalabai had identified the said steel glass before the Court, page 177 paragraph 3 Vol. III.
77. According to the Approver, before going to the house of Rathi in company of the two Accused, he had worn black Salwar Khameez with white slipper. According to the Approver, this belonged to Accused No.l, as per page 101, para 16, last line of the paper book Vol. II. Exhibit 106-A was found containing blood group 'O'. It was seized from him as per Panchanama Exhibit 178 at Jodhpur. Salwar Khameez was found from Article 119 as per Panchanama Exhibit 122 page 74, Vol. III. Article 119 was found stained with blood. As noted earlier, Article 72 Jeans pant, Article 73 - T - Shirt and Article 76 Chappal were recovered from Nagpur Chawl and the same is belonging to Accused No. 1. It was found containing blood group'O'. T-shirt had blood stain of two groups viz. 'B' and 'O'. P.W. 9 Vishwajit Joshi, as per Vol. II pages 254 to 267, has deposed that about 4.15 p.m. he saw Raju and Raju coming out of Himanshu Apartments with two persons and he also noticed that Raju was in black Salwar Khameez, paragraph 4 on page 255 of Vol. II.
78. On 26th August, 1994 about 2.00 p.m. when the accused and the Approver reached the house of Rathis, the Approver found a motor-cycle parked outside the house, which he had identified to be that of Sanju Sheth, i.e. P.W. 1. P.W. 1 in his deposition says that, on that day about 1.30 p.m., he went to the house on motor-cycle as his brother-in-law, P.W. 15, Shrikant Navandhar had come. He left the house along with her brother-in-law at 2.45 p.m. on motor-cycle. P.W. 15, in Vol. Ill pages 3 to 12, has also confirmed the same. The only contradiction sought to be brought was that the motor-cycle is not referred to by Raju in his statement. What is referred to is 'Vehicle', in Vernacular 'Gadi'. This would hardly be material.
79. On finding the motor-cycle they had gone away for an hour and on coming back when they saw that the said motor-cycle is not there, Accused No. 1 asked Raju to go ahead saying that they will follow him after chaining the doors of the flats from outside. After chaining the doors of the other flats from outside, it was submitted on behalf of the Accused that why should the three of them, on seeing the motor-cycle as alleged, know about the vicinity and thus make themselves available to be noticed by Sanjay Rathi. However, Raju has clearly said that they went away upto a distant, ate Vada Pav and thereafter came back. By that time, an hour had passed. In our opinion, therefore, moving around in the area, in the manner stated, is quite natural, of course, in the background of motor-cycle having been found outside the house.
80. So far as chaining part is concerned, we have the deposition of Sarika Ikke, P.W. 3 (Vol. II pages 2 to 24), Purnima Sudhakar Dhade. P.W. 4 (Vol. II pages 225 to 232), Sharmila Sudhakar Dhade, P.W. 6 (Vol. II, pages 239 to 246) and Shanta Vasant Sabnis, P.W. 7 (Vol. II pages 247 to 250). About these witnesses, a grievance was made that their statements were recorded very late. However, it may be so in respect of Purnima Dhade. The statements of Sharmila, P.W. 6 and Shanta, P.W. 7 have been recorded on 27th August, 1994. During the interval, according to the police, Purnima had gone to her grand-father's place. Purnima, on the contrary, says that earlier also she had experienced the door having been chained from outside which was prank played by the children of nearby Zopadpatti area. About the previous chaining incident, Shanta Sabnis, P.W. 7 has also, on pages 248 and 249, said so.
81. The mirchi powder was with Accused No. 2. On reaching the house of Rathis, when the Accused found that the ladies in the house were either resisting or raising shouts, they threatened them and mirchi powder was thrown on them, as a result, their eyes were conjested. The defence has heavily relied on the fact that though the eye wash was taken by Mr. Godbole, P.W. 49, the Doctor, who had carried out post-mortem, nothing was detected by him. As against that the prosecution has relied on the fact that the eyes of Hemlata, Babita and Mirabai were found congested. This may or may not be due to so mirchi powder. However, as per spot panchanama Exhibit 175, mirchi powder was found on the chairs and also on the sliding windows. This is deposed by Mr. Prakash Nimbalkar, as P.W. 36 in Vol. Ill, pages 186 to 296. The spot panchanama Exhibit 175 is also in the same Volume at pages 197 to 203 and relevant paragraph is 3.
82. Not only that but the clothes that were seized from the dead bodies also disclosed the presence of mirchi powder. The report of the Chemical Analyser in respect of chilly powder, as per Exhibit 326, Vol. IV. page 238, indicated that it was on the same composition as that of the powder that was found from Nagpur Chawl room. Article 176-A and Article 119, Shirt and Pyjama, respectively, said to have been worn by the Approver, had also traced on the same, the chilly powder. According to the Approver, after Accused No. 2 used the said chilly powder had given it to the Approver and he kept it in his pocket.
83. According to the defence, there is inconsistency with regard to the shirt pocket or pant pocket. In view of the fact that traces are found from both, shirt as well as pant pockets, as per Chemical Analyser's Report Exhibit 326, this so called inconsistency would lose its significance. During the spot panchanama, held by Mr. Vikram Pawar, P.W. 57, Vol. IV pages 86 to 98, 33 articles were seized including the mirchi powder.
84. Accused No. 2 was said to be using the second knife, Article 148, holding it in his hand to threaten the inmates. This has been deposed by the Approver, and along with Article 147 - the chhuri used for inflicting injuries, Article 148 was also found. This will be discussed later on.
85. Now coming to the important part where, according to the Apiprover, one after the other, the victims were inflicted blows by Accused No. 1. The first one was Mirabai, referred to as Badi Shethani by the Approver, P.W. 2. According to him, 2 or 3 blows were given on the neck and chest of this lady. The defence has tried to make out a case that if the victims were made to stand in the store room or by the sides and if P.W. 2 was standing guard over them, he could not have seen the blows having been inflicted on Mirabai as she was dragged into her room. If one turns to the Map - Exhibit 105, from the door of the store room, the distance is hardly of 10 ft. to the room where the deceased Mirabai was taken further at a distance of 10ft. may be added to her bed. However, it is nobody's case that the blows were inflicted on her while Mirabai was lying on the bed. On the contrary, after the blows were inflicted, she was made to lie down on the bed.
86. About the number of blows a case is sought to be made which refers to the earlier statement of P.W. 2. However, the exact count may not be there in the previous statement. In the deposition, the Approver refers to the number of blows having been given to each of the victims and taken together. In the medical evidence, injuries were found on the dead bodies that could be caused by weapon like chhuri, Article 147. Obviously, the discrepancy about the number of blows sought to be relied on, in our opinion, will be of no help to the defence. The Inquest panchanamas of each of the deceased, which are at Exhibits 34 to 40 in Vol. II pages 1 to 9, also corroborate the same. This can be said to be the general observation with regard to all the deceased except for the case of Mirabai. It is not the case of the defence that the Approver could not have seen the blows that were Inflicted on the other victims. This is borne out from the details given in the opening part of this judgment.
87. With regard to the injuries to Babita, the wife of Sanjay Rathi, P.W. 2 as also to Satyabhamabai, the maid servant of Rathi family, the questions were put to Mr. Godbole, P.W. 49, the Doctor, Vol. IV pages 1 to 18 about some of the injuries on the body, which would have been caused from backside. The Doctor has agreed to this suggestion. In our opinion, this is merely the view of an expert. As against that, when it is direct evidence of the blows having been given by Accused No. 1, as rightly discussed by learned trial Judge that the course of blows being inflicted, if the victim changes the position or tries in an attempt to avoid the blow on the body, it shifts the position, the injury may have occurred. This would not mean that the entire case of the prosecution that Accused No. 1 having been given blows to Babita as well as Satyabhamabai in the manner suggested were not given by Accused No. 1 With regard to the possible movement of the victims, learned Public Prosecutor has relied on the Supreme Court decision in the case of M.A. Abdulla Kunhi and other v. State of Kerala : 1991CriLJ525a . There also the case of prosecution was that one of the Accused had caught hold of the victim and another gave the blows. Inspite of this, injuries were found on the lateral side of the upper arm and on the left side. This would mean that the injuries could have been caused on the back. However, noting the natural tendency of the victim not remaining stationary and resorting to movement on being attacked, Their Lordships were pleased to negative the submissions. In our opinion, this part of the decision of the Supreme Court will certainly help the prosecution.
88. As the Approver had caught hold of the servant Satyabhamabai, the sleeves of shirt and pyjama near knee were blood stained. The Chemical Analyser's Report Exhibit 325, Vol. IV page 237 supports the same.
89. According to the Approver, after Satyabhamabai fell down, the blood was coming out of her body particularly from the neck region. Accused No. 1 asked the Approver to put nearby curtain on her. As per the spot panchanama, Exhibit 175, the curtain was lying on the dead body of the maid servant. The panch witness Mr. Nimbalkar, P.W. 36, corroborates the same in paragraph 3 of his deposition at pages 186 to 196, Vol. III. Mr. P.I. Pawar, P.W. 57 also supports the same.
90. The use of washing machine wire on Preeti has been referred to. In the said spot panchanama is Exhibit 175. The said two witnesses Mr. Nimbalkar and Mr. Pawar corroborate this fact. The defence is placing heavy reliance on the fact that there was absence of ligature marks. However, if one turns to the post-mortem Note Exhibit 244, Vol. IV page 52 onwards, in Column No. 17, as per the supplementary sheet attached, the external injuries were found on the neck. They are as under :
(i) Incised wound 2 cm. below and right mandibular angle extending obliquely downwards and forwards going across thyroid cartilage upto 3 cm. left lateral to laryngeal prominence measuring 1 lcm. x 3 cm.
In midline, it was opening in laryngeal cavity and 7.5 cm. above supra-sterna notch.
(ii) Incised wound measuring 2.5 cm. x 0.8 cm., 2 cm. below left angle of mandible extending obliquely downwards and forwards, skin deep.
91. Internal injuries were found as under :
(i) Incised injury involving left and right laminae of thyroid cartilage opening inside the laryngeal cavity above vocal cords, measuring 2.2 cm. in length, gaping;
(ii) Incised injury involving bilateral upper poles of thyroid glands throughout thickness, measuring 0.8 cm. x 0.3 cm.;
(iii) Incised injury involving anterior jugular veins, muscles and other structures of neck along the course of external injury No. 1.
92. Looking to the internal injuries and their locations, it is but obvious that the ligature marks referred to by the Defence even if it were caused as a result of the earlier attempt of strangulation would not be visible. Moreover, he admitted that the strangulation with wire had definitely failed. After thinking that Preeti had died while Accused No. 1 and the Approver were coming out of the bathroom, they heard whimper or moan. It prompted them to go back and Accused No. 1 made use of the knife and finished the job. For the aforesaid reason, the absence of ligature marks, in our opinion, is of no consequence. There is a distinct possibility of there being none as Preeti did not die of strangulation.
93. In this background, relying on the observation of renown author Mr. Modi on Medical Jurisprudence at 190 of 2 988 Edition will also not help the defence. This observation would apply in case of body that lost life on account of strangulation or hanging.
94. Almirah in the room of Badi Shethani i.e. Mirabai and the room of Sanjay Sheth were rifled. By P.W. 2 and Accused No. 2 had taken out articles from it i.e. cash, wrist watch, mouth-organ and other ornaments, etc. which were kept in the air bag. Almirah was opened and articles were looted from it. It is borne out from the spot panchanama, Exhibit 175, of the witnesses Mr. Prakash Nimbalkar, P.W. 36 and Mr. Vikram Pawar, P.W. 57. The articles were recovered from different places.
95. The first one is recovered from the Approver himself. This was done on 14th October, 1994 at Jodhpur Police Station by P.I. Choudhari, P.W. 58 in presence of the panch witness Kisan Pang P.W. 37. Their depositions are in Vol. IV pages 102 to 110 and in Vol. Ill pages 206 to 211, respectively. Panchanama is Exhibit 178 in Vol. Ill Pages 212 to 215 dated 15th October, 1994. The Ricoh Watch was identified by P.W. 1 Sanjay Rathi in para 14 of his deposition, Vol. II pages 52 to 81. Mr. Umesh Rathi, P.W. 12, identified the mouth-organ which he had purchased for his nephew Chirag, as per Vol. II, pages 277 to 281 in paragraph 2.
96. On behalf of the defence, much was made of the manner in which the arrest of Raju, the Approver was made by both, Rajasthan Police as well as Maharashtra Police. According to the Approver, they had gone to the house of Saitansingh Rathod at Jaipur at the instance of Accused No. 2. Mr. Saitansingh Rathod is the sister's husband of Accused No. 2. When he reached that place on 12th October, 1994, according to the Approver, Saitansingh made him to sit in the house. Thereafter, he went and came back with the Police. This would mean that the Approver was arrested on 12th October, 1994 at Saitansingh's house.
97. According to P.I. Pratap Choudhari, P.W. 58, the Accused was found near Bhogat Ki Kothi in Jodhpur. The said P.I. Choudhari was attached to Shastri nagar Police Station at Jodhpur. The Approver was sitting near the said place and, on seeing the police, he started hurriedly leaving the place and, therefore, the Police got suspicion and caught hold of him. According to the Rajasthan Police, the Approver Raju was arrested on 14th October, 1994.
98. On 15th October, 1994, the Police from Pune reached there and he was handed over to them. The details are given by this witness P.I. Choudhari during the cross-examination in para 8 at page 105 of Vol. IV. He also says in the said para that after apprehending Raju, he also prepared a list of articles that were found with him, and the Panchanama was prepared. On 15th October, 1994 i.e. the next day, he was produced before the Court with 'Istegasha', which is called in Rajasthan Police Parlance. The message to the police conveyed either by this witness or through S.P. of the District and that is how the Pune Police came on the scene on the next date.
99. None of the documents which this witness claims to have prepared are produced before the Court except the entry in the property register of the said Police Station at Jodhpur. It is Exhibit 266. Much was made of the fact that instead of these articles were being handed over to the Pune Police, the Rajasthan Police had handed them over to P.W. 2 Exhibit 178, the panchanama, is drawn up by the Maharashtra Police which pertains to very articles drawn up at Jodhpur in presence of the said Kisan Pang, P.W. 37.
101. What is on record is a xerox copy of the original property register. It seems to be in a tabular form being maintained not in full-escape paper but in a ream sized paper being bound not vertically but horizontally. In effect, therefore, two full-escape papers would be the size of the register but without paper being cut in the middle horizontally there was a stitching and bindings were also in the same manner i.e. horizontally. Four pages are before the Court which are in fact xerox copies of the two pages of the said register. The Defence is right to the extent that the signatures of P.W. 2 is to be found on the first of the said two sheets, beyond that, in our opinion, nothing else is brought by the Defence on record to weaken the case of the prosecution. That articles were seized from P.W. 2 at Jodhpur, as per the Panchanama Exhibit 266 or as per Panchanama Exhibit 178. They tally.
102. The statement of the Approver has been recorded by Pune Police on 15th October, 1994 about which reference has already been made. This was given to the Accused when the request was made by them as per the aforesaid application Exhibit 70, It is now an attempt made on the part of the Defence to say that this is a statement which was never recorded on 15th October, 1994 at Jodhpur, but it is subsequently got up. It was not forming part of the charge-sheet. By the time, it was requested at the instance of the Accused, for the confessional statement was very much there with the prosecution. If one examines the argument of concoction, the least that would be expected is that there would hardly be any variation between the statement and the confession. The variations are a plenty. As per the detailed cross-examination of P.W. 2, many omissions and additions are found in the confessional statement but no reference with regard to them has been made to the said previous statement of 15th October, 1994 by the Defence. It is not that the statement is overlooked by the Defence whenever necessary either in respect of the contradictions or omissions or additions, as the case may be, by way of contradictions, the use of the statement is made during the cross-examination of P.W. 2.
103. At the same time, an attempt is made to make out a case that the confessional statement of P.W. 2 was at the instance of the Police and under their pressure. The Approver was made to give confessional statement on the same line as the said statement of 15th October, 1994. If that be so, obviously, the statement was existing prior to the confessional statement. Not knowing that the original accused No. 1, who is now the Approver, P.W. 2, when agreed to become an Approver or when applied for the same, a pardon will be given to him by the Court, it is far-fetched to suggest that the statement and the confessional statement both were concocted by the Police in the manner suggested by the defence. The use for this purpose of the fact that when the Special Judicial Magistrate Mr. Khomane told the Approver to consider his decision of giving a statement for 24 hours, P.W. 2 asked for days time, that the police were out to see that the statements was recorded in conformity with the said earlier statements. If police were orchastrating, the exercise within the 24 hours time would have been more than enough. The police certainly would have primed up to Approver.
104. After the incident, P.W. 2 and Accused No. 2 had moved around a lot and had stayed in the course of their wondering at Anmol Hotel, Delhi. The register from that hotel was seized by the Police on 24th October, 1994 in presence of Panch Harbansing Jitsing, P.W. 16, Vol. III, pages 13 to 21, On that very day, an inquiry was made about one Rakesh Kumar, P.W. 18. He and another witness Bipin Krishnakumar Bhalla, P.W. 17, corroborate the deposition of P.W. 2 saying that on 30th September, 1994 or thereabout, the present Accused No. 2 posing himself as one Navin Kumar had pledged one ring to them and had gone out with the cash. It was the said Rakesh Kumar, P.W. 18, who had advanced the money against the said ring. This is the same one having the letters 'S.R.' written on it. It is Article 185 recognised as such by P.W. 1. It was his ring. It was given to him at the time of birth of Chirag, his first child, and it was so given by his in-law. P.S.I. Kamthe, P.W. 61 has carried the work of seizure of register and ring. His deposition is in Vol. IV, pages 114 to 135. The depositions of P.W. 17 and P.W. 18 are in Vol. III, pages 25 to 30 and in Vol. Ill pages 31 to 36, respectively.
105. P.W. 11 Mr. A.C. Mantri is the father-in-law of the said P.W. 1 Sanjay Rathi. He speaks about the said ring, Article 185, in his deposition at pages 272 to 276, Vol. II. In his deposition, he has confirmed that the aforesaid ring having written 'S.R.' was, in fact, given to P.W. 1 on the aforesaid occasion.
106. As noted above, Accused No. 1 was arrested on 5th September, 1994 by Dungargad Police Station in Rajasthan. The Police seized from: him certain articles in the presence of Panchas. One of them Mr. Anandram Jath has been examined as P.W. 24, Vol. III pages 76 to 86. Green Pant Article 123, Khaki Jerkin Article 122, Shirt Article 109 and Cash, etc. were recovered from Accused No. 1. This is deposed to by the Panch witness Mr. Chaturmal Smdhi, P.W. 23, in Vol. III, pages 70 to 74.
107. Mr. Sanjay Rathi, P.W. 1 identified the Green Pant, Shirt, Khaki Jerkin in his deposition at paragraph 13 at page 56 in Vol. II of his deposition. Mr. Mohammad Azhar Gulam Nabi Shaikh, P.W. 26, the Tailor, who had stitched the said Green Pant and had given the details in paragraph 4 of his evidence, Vol. III, pages 100 to 105. It is his practice to attach to the bill a small piece of cloth of which stitching is to prepare. One Indrakumar Shaha, Rickshaw Driver, P.W. 14, took the three Accused from Kothrud area to Nagpur Chawl. The articles were identified by P.W. 1 in presence of Panch Mr. Sunder Babasaheb Pawar, P.W. 34, Vol. III pages 164 to 172, as per Panchanama Exhibit 167 which is at page 173 of Vol. III. The Test Identification Parade of articles were held. Mr. Dilip Shinde, P.I. confirmed the seizure of articles from Accused No. 1 as being the one handed over to him by P.W. 62 - Daluram, P.S.I. Their depositions are in Vol. IV pages 1 52 to 158 and pages 136 to 143, respectively. About the black shirt, Sanjay Rathi, P.W. 2 has spoken in his deposition at paragraph 20 lines 24 to 26, page 107, Vol. II. No doubt, it refers to the same having been taken by Accused No. 1. According to the police, it is found from Accused No. 1.
108. A small incident of telephone started ringing before 4.00 p.m. and the telephone wires having been cut is also one of the factors relied upon by the prosecution. The cutting of the wires is not in controversy. In fact, it is so found at the spot panchanama Exhibit 175. The use of knife for cutting the wire is corroborated as per Chemical Analyser's Report Exhibit 309. These articles are at Sr. Nos. 27 and 28 of the C.A. Report Chart. This is in Vol. IV at pages 218 and 219. The Panch witness Prakash Nimbalkar, P.W. 36, Sanjay Rathi, P.W. 1, P.I. Vikram Pawar, P.W. 57, they all speak about the same. On P.W. 1 coming to the shop, his father informed him that no one is responding to the phone. The cutting of phone is thus established as a fact and is deposed to by the Approver.
109. Killing of Pratik, the son of Hemlata and Shrikant Navandhar is attributed to the Accused No. 2. He tried to smother him by pressing his nose and mouth. The child stopped crying for some time. When he resumed crying. Accused No. 2 had taken chhuri from Accused No. 1 and gave blows on the neck of the child. The post-mortem Note Exhibit 240 at page 25 of Vol. IV does not note any injury on the neck. The stab injuries are noted (i) measuring 2 cm. x 5 cm. in right 2nd intercostal space 0.2 cm. away from sternal edge, oblique in direction and (ii) measuring 2 cm. x 0.8 cm. in 4th right intercostal space 2.5 cm. from midline, oblique in direction. This caused injury to the right lung and also fracture of 4th right rib incomplete which carried intercostal muscles and pleura. For a small child of 1 and 1/2 years, the distance between the neck and spot where injuries in fact are caused, cannot be said to be that big. As per P.W. 2 when the blows were given, the child was lying on the floor. These two factors, in our opinion, would render variance which to be hardly of any consequence.
110. Incidentally it may be mentioned here that the wire cut from the washing machine was found containing human blood of 'B' group as per CA. Report. Preeti had Blood Group 'B'.
111. Mangalsutra, Article 103, is a subject-matter of comments. Firstly, it was the say of the Defence that there is no question of the Mangalsutra being snatched from the neck of Mrs. Hemlata. According to the spot panchanama Exhibit 175, there was a Mangalsutra (Fake) lying near the deceased Hemlata. Much reliance Is placed on the words used in Marathi 'Tyancha Galyat ...'. In our opinion, learned Public Prosecutor is right in submitting that this is nothing else but an inference drawn by the Panchas. This by itself could mean, that Mangalsutra belonged to Hemlata. As against that, the depositions of Sanjay Rathi, P.W. 1, Shrikant Navandhar, P.W. 15, would make it clear that the said Mangalsutra is of the deceased Hemlata. At Dungargad, the Mangalsutra was seized from Accused No. 1 in presence of the Panch Mr. Anadram Jath, P.W. 24, Vol. III, pages 76 to 86. P.S.I. Daluram, P.W. 62, Vol. IV, pages 136 to 143 who corroborates the same. Exhibit 134 is the Panchanama. There is also an Entry No. 240, Exhibit 280 in the Police Record of Rajasthan Police. It is at page 147 of Vol. IV. When it is compared with the Panchanama Exhibit 134 at page 87 of Vol. III, it indicated that there Is no reference to the said Mangalsutra.
112. Reference to the vest Article 120 and underwear, Article 121, is also missing while it is to be found in the said Panchanama, Exhibit 134, lines 18 and 19. The said Mangalsutra which was having three rows of which middle row was having 187 black beads, vest and underwear were separately sealed in one white cloth bag. Panchanama Exhibit 134 indicates that they were sealed in the said white cloth bag and were kept separately whilst remaining articles were kept in the police lock-up.
113. The importance of Exhibit 280 is that P.S.I. of Pune had not taken possession of articles, as set out therein. As the articles were not received by the said P.S.I. of Pune, obviously, according to the Defence, there remained mystery about Mangalsutra, Article 103, Vest, Article 120 and underwear, Article 121.
114. However, this got resolved in course of the testimony of Mr. V.L. Shrotri Investigating Officer, Vol. IV, page 172, paragraph 11, as also Identification Parade of Articles held by Mr. Ranpise on 15th September, 1994 in presence of Mr. S.B. Pawar and Mr. B.R. Tarte, as Panchas. The deposition of Mr. Pawar, P.W. 34 is Exhibit 166 and Panchanama is at Exhibit 167, page 173, Vol. III. There is a clear reference to the said Mangalsutra having been taken out of the sealed packet. The seal is that of Dungargad Police. Mr. Shinde, P.W. 63, has stated that he had given this packet to P.S.I. Mr. Khot, P.W. 64, was asked to go to village Jalapsar of Accused No. 1 and carry out the search of his house. He caught hold the articles from him. This so called discrepancy between the Panchanama and the aforesaid Entry No. 240, so heavily relied on by the Defence, in our opinion, will, therefore, be of no consequences.
115. About the identification of Mangalsutra, general submission was made that this Article is not unique in any manner and it is easily available in open market. That may be so. But unless it is explained as to how the Accused came in its possession, particularly, the Article like 103, the Mangalsutra, and if no explanation, except denial, is given and if the evidence of the prosecution in that regard is found acceptable, obviously, the aforesaid general submission will also be of not much help to the Defence.
116. When the three accused came out of the building after committing the crime, they were seen by one Mr. Vishwajit Joshi, P.W. 9. His deposition is in Vol. II, pages 254 to 267. According to this witness, he saw the three Accused coming out of Himanshu Apartment and had noticed P.W. 2 Raju, who is one of them, wearing black dress. He stated that at that time, it was raining and the sky was overcast. This is in paragraph 4 of the deposition of P.W. 9. P.W. 2 Raju says in paragraph 22, lines 34 to 37, page 108, Vol. 11, that he had seen one vehicle coming from the said side and its all doors were closed and glasses were rolled up as it was raining.
117. This would corroborate the evidence of P.W. 9. It was raining at that time. This is exactly what P.W. 9 also says that as he had come to his Aunt's house in Grish Apartment which is backside of Himanshu Apartment, as per Map Exhibit 105, on account of rain, it was not possible for P.W. 9 to take his car in the reverse. As he found the Hat of his Aunt locked, he proceeded towards Himanshu Apartment upto Budha Vihar and further says that he was not able to take his car in the reverse.
118. This witness has intensively been cross-examined on this point. The reason can well be understood. If he wanted to go on what is referred to as Paud Road, which is in Northern direction, as per the said Map Exhibit 105, coming out from Girish Apartment side on the road, one has to take turn as to Paud Road i.e. towards East and one more turn towards North to come on that road, after coming to that junction at Paud Road, on proceeding towards East from Girish Apartment, if one takes right turn i.e. towards South, immediately there would be Kothrud Police Station. These directions arc taken on the basis of the details as set out in the said Map Exhibit 105. The submission is, therefore, that there was no necessity for this witness to turn towards the Budha Vihar i.e. West, if he wanted to go to Paud Road.
119. If one closely examine the testimony of this witness, P.W. 9, it is clear that he happened to be in Pune on that day, but he was camping at Nasik to attend his work of Bore Well and for getting some spare parts of Bore Well. Afterwards he left and read about the incident in the newspaper. The significance struck him immediately and he came to Pune by 29th evening. It may be remembered that the name of the Approver as well as the present Accused No. 2 were already out in the newspaper by 27th August, 1994 evening.
120. The witness was prompted to come all from Nasik because he knew P.W. 1, the complainant, Sanjay Rathi initially as his customer and later on he developed friendship with him.
121. He went to the police of his own. He tried to contact the Commissioner of Police early in the morning. Later on, he contacted the Commissioner of Police by 11.00 a.m. He was directed to go to A.C.P. Mr. Shrotri, Investigating Officer. His statement came to be recorded on that day i.e. on 30th August, 1994.
122. This undeniable fact of the statement having been recorded on 30th August, 1994, in our opinion, would certainly refute the suggestion of P.W. 9 being a got up witness. He speaks about Raju, then an Accused and later on the Approver. He has also marked that one of the Accused had worn Khaki Jerkin. In this background, the fact that why he went to Budha Vihar side would lose its significance. This is to be noted here that he has otherwise been thoroughly cross-examined after suggesting the said alternate route. No attempt is made to seek an explanation as to why in inspite of the aforesaid road being available, he went to Budha Vihar side. The Trial Court has accepted his testimony and we do not see any reason to differ from the same.
123. Mr. Indrakumar Shaha, P.W. 14, Vol. II, pages 287 to 302, is the witness on the point as to the use of Rickshaw. According to the Approver, coming on to the main road, Accused No. 1 asked Rickshawala as to the availability of his vehicle. On getting reply in the affirmative by the said witness Rickshawala, all three of them travelled by his Rickshaw from that spot to the Nagpur Chawl room. According to the meter, the fare was Rs. 31, 50 ps. Accused No. 1 gaveRs. 40/-, four currency notes of Rs. 10/-each. As the Rickshaw Driver did not have change, he asked for the change from his passengers. Rickshawala was told to keep the change. In other words, against the fare of Rs. 31.50 ps., Rickshawala got Rs. 40/-. Thus, he got a tip of Rs. 8.50 ps.
124. All these facts are narrated by the said witness Mr. Indrakumar Shaha and made a reference to one of the persons who asked him of the availability of the Rickshaw as the one was in Khaki Jerkin. The statement of this witness was recorded on 4th September, 1994. He is also one of the witnesses in Test Identification Parade relating to all three Accused and he has identified them as the persons who had travelled in his Rickshaw on 26th August, 1994.
125. Much was said about this witness on behalf of the Defence that he had earlier committed crime, of course, but he finally got acquittal from the High Court. According to the Defence, the witness was not willing to admit this position. Moreover, this was urged that he being a Rickshawala, he was under constant danger on being apprehended by. the Police and, therefore, in order to oblige the Police, he is deposing against the Accused persons.
126. However, it is difficult to understand as to how the police had recorded the statement on 4th September, 1994 when none of the Accused were arrested. The Police had information of criminals having travelled by rickshaw and, therefore, were searching for the driver whose rickshaw for the said purpose was used. Having considered the, deposition of Mr. Shrotri, A.C.P., Investigating Officer, an attempt made on the part of the Defence, in our opinion, therefore, would not succeed.
127. On reaching Nagpur Chawl, from the air bag got from the house of Rathis, the articles were taken out. Raju, P.W. 2, had taken a lady wrist watch of Ricoh make, mouth-organ, Camera and coins of Nepal Origin. This P.W. 2 has said in his deposition at page 109, lines 18 to 32 ofVol. II. When the said Approver was arrested on 14th September, 1994, in presence of the Panch witness Mr. Kisan Pang, P.W. 37, Vol. III, pages 206 to 211, the said articles were recovered. P.S.I. Mr. Kamthe, P.W. 61, speaks about the same in his deposition in Vol. IV, pages 114 to 135. The seizure panchanama is at Exhibit 178, page 212, Vol. III.P.I. Mr. Prataprao Choudhari, P.W. 58, of Jodhpur also deposed about it in Vol. IV, pages 102 to 110. The panch witness Mr. Sayyed Nazir, P.W. 40, talks about the identification parade of articles which were identified by P.W. 1 Sanjay Rathi and Mr. Umesh Rathi, P.W. 12. P.W. 1 identified three articles and they are 160, 162 and 183 and Umesh Rathi, P.W. 12, identified the mouth-organ, Article 182.
128. About Article 103, the Mangalsutra, the discussion has already been made earlier. Along with the said Mangalsutra, one H.M.T. wrist watch was also kept by Accused No. 1 for himself. This is to be found at page 109, lines 32 to 39, Vol. II, of the deposition of the Approver. While collecting articles from Nagpur Chawl room, H.M.T. wrist watch was also found and seized by the police, and the panchanama. Exhibit 215, Vol. III, pages 304 to 307 reveals the seizure of the same along with other articles. Amongst other articles one jean pant was found to be damped and having in its pocket a ring. Over and above, the panch from Rajasthan, Mr. Anandram Jath, P.W. 24, in Vol. II pages 76 to 86, Mr. Daluram, P.S.I., P.W. 62 in Vol. IV, pages 136 to 143, the panch witness Mr. Balasaheb Mokar, P.W. 43 in Vol. III, pages 293 to 303 and A.C.P. Mr. Shrotri, Investigating Officer, P.W. 66 in Vol. IV, pages 169 to 215 speak about the same.
129. Accused No. 2 had taken one golden chain, three golden bangles and one golden ring having English letters S.R. written on it for himself. This is to be found in Vol. II, page 109, lines 39 to 44. These articles were recovered in presence of the panch Mr. Bhagirath Laddad, P.W. 38, Vol. III, pages 217 to 222, from one Saitansing Sakala, P.W. 51, said to be the relative of Accused No. 2, Raju. The relationship has been denied by Accused No. 2 and the questions were put to Saitansing Sakala except for not correctly spelling out the name of the father of Accused No. 2 with regard to the other matters. The witness can be said to have stood the test of cross-examination.
130. So far as the gold ring having the letters S.R. written on it, Article 185, is concerned, this was seized in presence of the panch Mr. Harbansingh, P.W. 16, Vol. III, pages 13 to 21 from one Rakesh Kumar. He was working as Cable Operator in Anmol Hotel, Chandni Chowk, Delhi. The Manager of the Hotel Mr. Bipin Bhalla, P.W. 17 and Mr. Rakesh Kumar, P.W. 18, have been examined for the purpose.
131. On 8th October, 1994, the Manager told Rakesh Kumar that there were two passengers staying in the Anmol Hotel from 30th September, 1994. They informed the Manager that they are short of money. They wanted to pledge the gold ring. The Manager called the said Rakesh Kumar. He took the said golden ring and paidRs. 1,300/- to P.W. 2. It was indicated by Accused No. 2, who posed himself as Navin Kumar, that he will come after three days and on paying the said sum, he will get the said ring back. The ring identified is the one having English letters S.R. written on it. The deposition of these two witnesses are in Vol. III, pages 25 to 30 and pages 31 to 36, respectively.
132. It was urged on behalf of the Defence that Rakesh Kumar, who himself hardly earned Rs. 1,300/- or so per month, could not save this money. However, Rakesh Kumar said that, over and above his own funds, he was having some funds of the Hotel also. As to this submission, the explanation of the Defence is that the cash of the Hotel would not be with a Cable Operator of the Hotel but it should be with the Manager of the Hotel. The Manager does not oblige and instead the Cable Operator, who docs so, the story therefore should not be believed. However, like the most of the witnesses who deposed against the Accused it was not suggested even remotely as to why they should depose against the Accused. Of course, the constant refrain is, therefore, in the submission of the Defence that the witnesses are doing so at the instance of and under the pressure of the police.
133. This would mean that not only the Maharashtra Police had exerted pressure on the witnesses but also Rajasthan as well as Delhi Police and exerted pressure on the witnesses. But in this exercise of the Maharashtra Police, both, Rajasthan and Delhi Police were the willing helpers. In our opinion, this appears to be a far-fetched theory. Needless to say, P.S.I. Mr. Kamthe who took ring in his possession speaks about it, as P.W. 61 in his deposition in Vol. IV, pages 114 to 135.
134. P.W. 2 was trying to wash the jeans pant of Accused No. 1 Narayan. While doing so, he got one ring in the pocket of the said pant. As he could not be able to remove the blood stains from the said pant, the ring which he got was kept back in the pocket of the said pant by the Approver. The discussions have already been made earlier. The submission of the defence was that there was no need for the approver to keep the said ring which he had taken out from the pocket of the jeans pant with himself. The defence may be right in its submission but at the same time it is to be noted that the ring was in fact found in the pocket of the jeans pant. The important point, so far as the testimony of the Approver is concerned, is that he had put the ring back in the pocket of the jeans and kept the said jeans under the tin roof and has spoken about there having been ring in the pocket. Both, the jeans pant and ring have been found. Then he speaks of redeeming of anklet which is supported by the deposition of Gautam Lunawat, P.W. 31, Vol. III, pages 137 to 146. He along with his brother identified these Accused also. This aspect has already been dealt with.
135. The steel glass of Mrs. Vaishnav having been used for consuming liquor has been referred to and so is the finger print that was found on one of the bottles. With regard to the search at Nagpur Chawl, a reference was made to the photographs taken at the instance of the police in the course of search. The photographer has said about it. Based on that, a statement was made that the photographs do not reveal any other articles except the steel glass. The search and the panchanama therefore should not be believed. It would mean that on 29th August, 1994, when the search was carried out, though nothing was found, the entire panchanama of the search was concocted, and the articles were also seized by the police though they were totally unaware of the exact identity of the accused, these submissions are, in our opinion, therefore, without any substance.
136. Before the accused started consuming liquor, accused No. 1 declared that he will go out and hide the chhuris. He accordingly left, and on his return, when the remaining two Accused inquired as to whether he has hidden the chhuris, they were told by Accused No. 1 that he has hidden the chhuris near the latrine. The panch witness Mr. Harish Rahikwar, P.W. 28, speaks about the discovery of panchanama dated 10th September, 1994 and says that the chhuris were recovered at the instance of Accused No. 1. The panchanama, Exhibit 152, the actual discovery is at pages 113 and 1 14 of Vol. III Mr. Shrotri, A.C.P., the Investigating Officer, refers to this as P.W. 66 in his deposition in Vol. IV, pages 169 to 215. The companion panch of Harish Rahikwar was Chandrasen Gokuldas Rathod. He too has been examined as P.W. 27. His deposition is in Vol. III, pages 106 onwards. In his cross-examination, he was trying to put his say that he is keeping his handcart for selling the flowers on footpath. He is therefore harassed by the police. Repeating that it is Cantonment people who have harassed him and not the Traffic police. He has refuted the suggestions. He has stated on page 109, lines 16 to 19, that he asked the name of the Accused only and thereafter the police were asking questions to the Accused and the replies given by the Accused were written down by the police. The chhuris were taken out from the heap of bricks and sand near the latrine which is meant for public. This witness has not stated much about how the chhuris were taken out from the heap.
137. This will probably explain why the 2nd panch witness has been examined as P.W. 28. He gave greater details about Accused No. 1 saying that he has hidden chhuris in the heap of bricks and sand which is by the side of latrine near the room in Nagpur Chawl. He also speaks of digging the heap or so to bring out the chhuris. The first panch, P.W. 27, was examined on 2nd December, 1996 and the second one, P.W. 28, was examined on 3rd December, 1.996. That is why the submission was made on behalf of the defence that having failed to get. satisfactory reply from the first panch, the second panch was examined to say about these details. Be that as it may, the recovery or discovery even if proved, is a very weak piece of evidence. Admittedly, this is a public place and it cannot be said that it was in the exclusive control of the Accused. However, even if it is to be treated as recovery, the fact remains that the place was indicated by the Accused. Considering this piece of evidence from the point of view of corroborating the say of the Approver, his version of chhuris having been hidden somewhere near the latrines is certainly borne out. No doubt, relying on the decision of the Supreme Court in the case of Khujji alias Surendra Tiwari v. State of Madhya Pradesh : 1991CriLJ2653 the learned Public Prosecutor has stated that if articles recovered during discovery procedure is found containing human blood, the blood group of stains, if not determined, would not make the find of human blood on the articles of the accused of no consequence. This can certainly lend corroboration with regard to the use of an article as per the case of the prosecution. The decision of the Supreme Court will, therefore, certainly help the prosecution.
138. No doubt, so far as the case of the prosecution is concerned, it's discovery seems to be on a very shaky ground, because, as admitted by one of the witnesses to the panchanama, the accused was found handcuffed in the police station. According to the decision in the case of Shankar Raju Banglorkar v. State of Goa : 1992(2)BomCR169 the disclosure, if there be any, must be held to have been made under duress. As stated above, the recovery indeed is made. The evidence in our opinion, is therefore useful only for the purpose of lending corroboration to the say of the Approver about the hiding of chhuris near the latrine and when the blood stains of human origin is found, the report has its own relevance, as per the aforesaid Supreme Court decision.
139. It may be recalled that both the Accused have denied about their staying Nagpur Chawl room. P.W. 2 the Approver has spoken about the purchase of 'Aaj Ka Anand' and 'Prabhat'. the two newspapers, in paragraph 26 of his deposition, Vol. II, pages 110 and 111. One of the panch witnesses took the search of the room in Nagpur Chawl. His name is Balasaheb Mokar, P.W. 43. His deposition, Vol. Ill at pages 293 to 303, does speak of seizure of 'Aaj KaAnand' Article 95 and 'Prabhat' - Article 96, the newspapers, from Nagpur Chawl room.
140. The approver, before leaving Pune, had left Khaki pant in the room of Nagpur Chawl and had also left broken spects and white slipper. The said pant was worn by him while he was working with Rathis. This is to be found in Vol. II, page 111, para 26, lines 27 to 29. The panch witness and Sanjay Rathi speak about the same. Article 87 -Khaki Pant, Article 100 Spects and Article 95 - Slipper were seized. Of them, Khaki Pant and Spects were identified by Sanjay Rathi on 30th August, 1994. The white slippers were found blood stained.
141. Before leaving Jaipur, Accused Nos. 1 and 2 had separated from the Approver and they had all met together at Jailer Bus Stand in the evening of 31st August, 1994. Accused No. 2, at that time, told the Approver that he had purchased one Rajai, three Sarees, two Bed-sheets, one tray and four cups.
142. According to P.W. 46, Saitansing Rathod, Navinkumar Haravat. a friend of Accused No. 2, had handed over one bag to him. On opening it, P.W. 46 found one Rajai Article 154, two Bed-sheets Article 155, three Sarees Article 156 and one Tray with four cups Article 157. The panch witnesses Babusingh Rajpurohit of Rajasthan, P.W. 54, and P.S.I. Sadashiv Khot, P.W. 64 they both speak about it in their respective depositions at pages 78 to 80 and pages 161 to 167 of Vol. IV. Accused No. 1 had purchased three wrist watches, of which, two of ricoh make and one of Vijay, Camera of Classic Company, one Tape-recorder and thirteen Cassettes a.nd one Iron. The Approver had seen all these articles. He speaks about it in his deposition at page 113 in para 27, lines 19 to 23 of Vol. II. The panch witnesses Chaturmal Sindhi, P.W. 23, and Anandram Jath, P.W. 24, pages 70 to 74 and 76 to 86 of Vol. III, respectively, have been examined. P.W. 24 Mr. Jath stated that Tape-recorder Article 149, Camera Article 150, 13 Cassettes Article 151 and wrist watch Article 152 were seized by the police. P.W. 23 Mr. Sindhi stated that six pant pieces, six shirt pieces and two wrist watches were seized by the police. P.S.I. Khot speaks about the search of Accused No. 1 at Jalapsar, near Dungargad, wherefrom some of the articles were recovered.
143. Accused No. 2 had handed over the articles to his friend Navinkumar Haravat, P.W. 44. The deposition of this witness is in Vol. III, pages 308 onwards. He speaks about the bag having been given by Accused No. 2 for being delivered to his brother-in-law Saitansingh Rathod, P.W. 46, and an attempt was made on behalf of Accused No. 2 that the said Navinkumar Haravat was not known to Accused No. 1. However, the evidence has come on record that Accused No. 2 and Navinkumar Haravat both travelled together by a bus upto Pali. Thereafter said Navinkumar went to Jodhpur and handed over a bag containing articles to Saitansingh, the brother-in-law of Accused No. 2. Accused No. 2 and the Approver then went towards Ajmer. Saitansingh had confirmed the seizure of articles. The discussion about the same has already been made above.
144. At Ajmer, they went to a hotel where the Approver entered his name as Rajesh Sharma and signed accordingly. The Manager of the hotel wrote two names in the register as two persons were occupying the room of the hotel, since Accused No. 2 was with the Approver, the panch witness Mr. Ramuji Tavar speaks about the seizure of the register of the hotel which was made under the panchanama, Exhibit 124, at pages 40 and 41 of Vol. III and the deposition of the said panch witness as P.W. 19 is in that very Volume at pages 37 to 39. The Manager of Ajmer Hotel Mr. Maheshkumar Joshi, P.W. 21 also confirms the same in his deposition at pages 47 to 57, Vol. III. The deposition of P.S.I. Mr. Barge, P.W. 42, who had seized the register of the Hotel, is in Vol. III, pages 286 to 291.
145. The Approver and Accused No. 2 stayed at Ajmer Hotel for about three days and moved around the city in rickshaw of one Raju Dhanka. They were getting smell of Ghee at Ajmer Hotel and, therefore, they left the said Hotel and shifted to the Venus Guest House on 6th September, 1994. On the next day i.e. 7th September, 1994 from Venus Guest House, they travelled by bus of Pankaj Travel to Katra and then to Jammu. From there they went to Goddess Vaishno Devi and then proceeded towards Delhi. So far as the stay in Ajmer Hotel, Venus Guest House, moving around the city of Ajmer and catching of the bus to proceed Vaishno Devi are concerned, Raju Dhanka, P.W. 22, has, in his deposition in Vol. III, pages 59 to 68, supported the case of the prosecution. In other words, he had lent corroboration to the version of the Approver. Here again, an attempt was made to say that Raju Dhanka, P.W. 22, being a rickshaw driver, was under pressure of the police. Again we are dealing with the submission that the Pune police exerted their influence through Ajmer Police on this witness and the witness has been obliged to the State police. This in our opinion is very far-fetched theory. Moreover, Raju and Accused No. 2 being pleased with the service rendered by him, P.W. 22 was paid Rs. 2,500/- by Accused No. 2 before leaving by bus towards Delhi. From Ajmer, they both went to Delhi and stayed at Anmol Hotel, Chandni Chowk. The hotel registers were taken possession of on 24th October, 1994. As per Exhibit 118, the panchanama, it appears that Accused No. 2 and the Approver had entered their names in the hotel register as Navinkumar and Rajeshkumar, respectively, and they stayed at Anmol Hotel for 3 to 4 days. At Jaipur also when Accused No. 2 was staying with Accused No. 1, according to the prosecution, Accused No. 2 had written his name as Navinkumar. At Jaipur, the real name of Accused No. 1 (i.e. Narayan) was written in the register which is a matter of comments from the defence. It may be noted that this name of Accused No. 1 was not yet revealed or at least its revelation was not to their knowledge.
146. At Delhi, they stayed for about 3 to 4 days, went on a journey and came back. About the register entry, the comment is made with regard to the date. The period of the month i.e. '8' shown to have been overwritten. However, if one looks at the register, Article 184, it is quite clear that the register is maintained serially and all preceding and subsequent dates are on record correctly without any overwriting. The overwriting, in our opinion, therefore, would lose its significance. We have already noted that before leaving the Anmol Hotel at Delhi through the Manager Mr. Bipin Bhalla, P.W. 17, Accused No. 2 and the Approver managed to get Rs. 1,300 on pleading the said gold ring having the letters S.R. written on it. The said ring is Article 181. This happened on or about 8th October, 1994. As per the hotel register, the Delhi Police had checked the hotel register as a part of checking exercises. The submission is, therefore, that if that be so, the police have noticed the presence of these two persons in hotel.
147. It may be recalled that by 8th October, 1994 the Delhi police had checked the hotel. They were physically not present when the check was carried at 11.20 in the night. In our opinion, therefore, checking of the hotel by the police would be of no consequence. On 11th October, 1994, the Approver and Accused No. 2 again came to Ajmer and went to Venus Guest House where Accused No. 2 gave his name as Navinkumar and signed as such. This deposition of the Approver is at page 116, paragraph 33, lines 35 to 40, Vol. II. Article 190 is the hotel register and the opinion of the handwriting Expert is also there in Vol. IV, Exhibit 329, page 241, which clearly indicates that the sample of handwriting obtained from accused No. 2 and the handwritings in the register of Venus Guest House are of the same person. This is the position with regard to the Anmol Hotel, Delhi, so far as Accused No. 2 is concerned, and the writing of the Approver also, as per Vol. IV, page 239. However, with regard to the Approver, the direct testimony of the Approver himself is on record admitting his writing.
148. There are two chits written by the Approver. A reference thereto is made in Vol. III, page 116, para 33, lines 35 to 41. The panch witness Mr. Kisan Pang speaks about it, as P.W. 37, in his deposition in Vol. Ill pages 206 to 211. The said chits were shown to the Approver as Articles 173-B and 173-C. They are brought on record as Exhibit 84 and Exhibit 85. They were taken out from the wallet said to be that of the Approver. All these things are accepted by the Approver. The handwriting Exhibit 327 on page 239 in Vol. IV also speaks about it. The Approver himself admits the authorship of the said chits and proves his own handwriting. The chits having been got up subsequently and made use of it etc. has already been gone into by us in the earlier part of the judgment.
149. The Approver and the Accused No. 2 left Venus Guest House at Ajmer on 12th October, 1994, and on 15th October, 1994, the statement of P.W. 2 came to be recorded as Accused No. 1 of this case. The recovery of articles etc., panchanama Exhibit 178, page 212, Vol. III has already been referred to. The panch witness Kisan Pang. P.W. 37, was examined for this purpose. The articles seized from the Accused were identified as stated hereinabove. On 22nd November, 1995, the Approver had written the chits to the Commissioner of Police indicating that he wants to confess the crime, as per page 118, paragraph 35, Vol. II. This is confirmed by A.C.P. Shrotri, Investigating Officer, P.W. 66, in his deposition in Vol. IV, pages 169 to 215. As he was the Investigating Officer, the Commissioner of Police, Pune, entrusted the said chits of the Approver lo him and, thereafter, the action was taken. Finally, under the orders of the learned Sessions Judge, Pune, the Special Judicial Magistrate Shri Khomane took down the statement of the Approver being the confessional statement under Section 164 of the Code of Criminal Procedure.
150. It was strongly urged on behalf of the Defence that the statements could not have been recorded by the Special Judicial Magistrate as he was not conferred with the powers. Though, admittedly, not urged before the Trial Court and inspite of the fact that no grounds are taken in the Memo of Appeal, the request made on behalf of the Defence that they be allowed to raise his plea, in the peculiar background of the case and particularly for the reason that the Accused are facing capital punishment, we thought it fit to allow the same. However, as will be presently seen, this does not seem to be the case of the Defence at all. For this purpose, Sections 3 and 13 of the Code of Criminal Procedure have to be seen first. The Magistrate is understood to be a Judicial Magistrate only, unless the context otherwise requires. Section 13 refers to Special Judicial Magistrate. The Magistrate appointed there under is, therefore, conferred with the powers. The powers on him can be conferred by the High Court under Sub-section 3. In this background, if one turns to Section 164 of the Code of Criminal Procedure, it is quite clear that the Judicial Magistrate may record the confessions or statements under Section 164, whether he has jurisdiction to try the case or not.
151. A decision in the case of Kadra Pahadiya and Ors. v. State of Bihar : 1997CriLJ2232 was cited with regard to the constitutional validity of Sections 13(1) and 18(1) of the Code of Criminal Procedure. It is not a direct, point in controversy before us. However, it is worthwhile to note that Their Lordships of the Supreme Court have, in paragraph 20 of the judgment, not only upheld the constitutional validity but have emphasized that the choice of power to be conferred on the appointees under these two provisions is left to the sole discretion of the High Court.
152. The Defence has to admit the fact that as per the Notification issued by the High Court on 24th September, 1993, Exhibit 198, Vol. III, pages 264 and 265 as also Exhibit 199 in Vol. III, pages 266 and 267, the powers are conferred by the High Court on the said Shri Khomane, the Judicial Magistrate. On this score, therefore, the Defence has hardly any case.
153. An attempt was made to build up a case on the fact that the Magistrate Shri Khomane was empowered to try only petty cases. However, Section 164 makes it clear that the Judicial Magistrate who records the statements may not have the jurisdiction to try the case himself. A decision of the Supreme Court in that regard in the case of A. Deivendran v. State of Tamil Nadu : 1998CriLJ814 was relied on. Their Lordships in that case have found that power under Sections 306 and 307 of the Code of Criminal Procedure were exercised by the Chief Judicial Magistrate after the case was committed to the Court of Sessions. As the Chief Judicial Magistrate has granted pardon after passing the order of committal, Their Lordships clearly held that if at all the pardon could have been granted it could have been so done by the Court to whom the case was committed. It certainly could not have been given by the Chief Judicial Magistrate after passing the committal order. In the case before us, pardon has been granted by the learned Judge to whose Court the case was committed. It is not the Magistrate who has granted pardon and certainly not Shri Khomane. He merely recorded the statements under Section 164 of the Code of Criminal Procedure. On this score, therefore, we do not see any substance in the defence.
154. Before proceeding further, it will be proper to quote paragraph 43 of the judgment of the Trial Court where the defence has been very correctly summarized.
43. The Defence of both the accused persons as can be seen from their statements recorded under Section 313 of the Cr.P.C. and suggestions given by their Counsels to the prosecution witnesses in the cross-examination is that of total denial arid false implication by the police since they could not trace out the real culprits arid to save the approver Raju on the say of his father since he is a police official in Rajasthan. It is their further case that nothing has been discovered or seized from any of them or at the instance of any of them. They never resided in any room in Nagpur Chawl at Yeravada, Pune. The prosecution witnesses have deposed falsely against them due to fear and under the pressure of the police. It is their further case that the Approver Raju gave false statement against them since he was shown inducement of letting him off and for the same reason he has falsely stated against them before the Court. It is their case that either they themselves or their photos were shown to the witnesses before the identification parades and the prosecution witnesses are got up witnesses.
155. The aforesaid defence is also to be appreciated and evaluated in the background of the fact that no enmity whatsoever has been suggested in respect of any of the witnesses. As noted so far, this will apply to the witnesses who are related to Accused No. 2 as well, though rightly noted by the learned Additional Sessions Judge, Pune, in the paragraph quoted above, accordingly to the Defence, the prosecution witnesses all went on giving deposition falsely under the police pressure. By very nature, this pressure will have to be exerted by Pune Police in concert with Rajasthan and Delhi police. We do not find any substance in this submission of the defence.
156. It has been brought on record that the Maharashtra Police at Pune were able to get some indication as to the appearances of the Accused and hence the posters and sketches of the Accused were got printed. The posters were pasted presumably in Pune and were certainly distributed to the police station of Rajasthan and Delhi as well. However, as noted above, the involvement of the present Approver, who was then Accused No. 1, as also present Accused No. 2 was suspected right on the next day He said that the news appeared in the newspaper as noted above. It is the present Accused No. 1 who was been arrested first and thereafter the other Accused came to be apprehended. The arrest of Accused No. 1 was on 5th September, 1994. In this background, the pasting, sketching and/or distribution of the posters of the Accused have also no significance.
157. It is significant to note that the witnesses of the Test Identification Parade have not been put any question about these posters. By itself therefore distribution of the posters in our opinion even according to the Defence did not have much impact.
158. In view of the original Accused later on turning into the Approver, his Test Identification Parade loses its significance. However, from the point of view of the Defence, there was delay in holding the Test Identification Parades. It will have to be considered but in the instant case, both in respect of the present Accused No. 1 and the original Accused No. 1 - the Approver, the delay has sufficiently been explained. The Test Identification Parade was held in case of Accused No. 1 on 28th September, 1994. He was brought to Pune on 8th September, 1994. There was a delay of 20 days. However, the Investigating Officer Mr. Shrotri, P.W. 66, has deposed that inspite of his efforts on one hand, and the witnesses were not available on the other for holding parade of the original Accused No. 1 i.e. Raju, the Approver, there was no Executive Magistrate appointed for the purpose. The delay in case of Raju was held 20 days after he was being brought to Pune. In the interval he was taken to Ajmer, Delhi, etc. for investigation. In our opinion, therefore, on the point of delay also, there is hardly any substance in the defence.
159. The report of the handwriting expert pertains to some of the papers and writing recovered from Raju the Approver and Accused No. 2 Jitu. As stated earlier, Raju being very much there to own up all his writings, however, with regard to Accused No. 2 this opinion will have its own significance particularly when as per the prosecution there have been entries made in the hotel registers by Accused No. 2. In our opinion, therefore, this aspect has been rightly appreciated by the learned trial Judge.
160. With reference to the argument that the Approver-Raju's father was the Police Officer, it may not be necessary to deal with the same. It turns out that at the time of incident, he was working as Head Constable in one of the Districts of Rajasthan. From this fact, the defence has tried to build up a case of the Head Constable of Rajasthan Police Establishment being able to exert influence on the Police Officers of the Maharashtra particularly the Investigating Officer like the A.C.P. Mr. Shrotri and thereafter, he arranged for Approver's confession being recorded. In our opinion, this is an argument in desperation.
161. If at all the said Head Constable could exert his influence in this manner and knew of the Chits Exhibits 84 and 85, he could have got it done earlier. Why did he wait for such a long time. There is no explanation forthcoming. Thus examined from that angle, as stated above, the fact of the Approver's father being Head Constable is nothing else but clutching at a straw when nothing else was available.
162. This will take us to contradictions that were to be relied on by the Defence. Necessarily the attention will have to be paid to this part of evidence particularly with reference to the Approver. P.W. 2 Raju Rajpurohit, the Approver, in his deposition says that at Jodhpur, he was apprehended at the instance of Saitansingh on 12th October, 1994. P.W. 58, Pratap Choudhari speaks of 14th October, 1994. Saitansingh also does not say anything about bringing the police and getting Raju arrested. In our opinion, this discrepancy as to the arrest by a period of 3 days though not explained is not found to have any significance at all.
163. We have already dealt with the use of police statement given by P.W. 5 Jaswant Munot, the Proprietor of the Shringar Jewellers that, according to the prosecution, Article 147, was sold by him to accused. An objection was raised by the prosecution which is allowed by us. The contradiction is sought to be used, as stated by us earlier, in direct violation of Section 162 of the Code of Criminal Procedure.
164. About Mangalsutra, Article 103, except for mentioning of the spot panchanama Exhibit 175 of fake chain lying near the dead body of Hemlata and the indication in the panchanama that it was from the neck of the deceased Hemlata, we have already dealt with the same. About rest, particularly with reference to P.W. 2 Raju, there is no contradiction whatsoever.
165. P.W. 2 Raju in his deposition at page 131 Vol. II says that Rajasthan Police did inquire from him but he did not prepare the list of articles in the two bags that were with him. P.W. 58 Pratap Choudhary speaks of seizure of two bags and entry of the article having been made in the police station record. This is Exhibit 266 referred to earlier. As this is not a contradiction but the variance in the version of Raju, and the version of P.W. 58 Pratap Choudhary. The signature in that register is admitted by Raju to be his signature.
166. According to Raju, he took about 45 minutes to narrate the incident. While according to P.S.I. Pratap Choudhary, P.W. 58, he interrogated Raju for about two hours. This does not amount to variance because he speaks about the time that he took for narrating the incident and not the actual time spent in his interrogation.
167. P.W. 2 Raju refers to the seizure of articles by Shastri Nagar Police Station, Jodhpur, and thereafter by Pune Police, However, his version and the version that of P.S.I. Kamthe, P.W. 61, when reconciled, it is obvious that, according to Mr. Kamthe, the articles were seized by Rajasthan Police and according to the Rajasthan Police, they were handed over to Raju, Raju also in his deposition at page 132, line No. 9, Vol. II, says that the Pune Police seized articles from him. He further refers that the articles that were seized by the police from him are the same and they are in custody of the police. This would mean, from Rajasthan police, it came to Raju and from Raju, it came to Pune Police. P.W. 58 Pratap Choudhari also said the same thing in his deposition.
168. Clarifying the position with regard to the contradictions, a decision in the case of Tahsildar Singh and Anr. v. State of U.P. : 1959CriLJ1231 is relied on. In the said decision, Their Lordships have categorically stated in para 19 that it should be such a statement as could not stand in contrast to what has been stated before the Court. The statement should be in direct contrast with each other. If various omissions are sought to be brought before us in view of this light, obviously, the essential element of one contradicting the other, to the extent making them mutually exclusive, is totally missing. Hence we place reliance on para 19 at page 1023 of the said decision.
169. In course of the investigation while sending almost all articles for examination by the Chemical Analyzer, a piece of tile from the floor of Nagpur Chawl room, Article 81, was also sent. This too was found blood stained as per C.A. Report, Exhibit 58, page 23, Vol. II. The result of Chemical Analysis is on page 24 of the very volume. Incidentally, it may be mentioned that the C.A. Report was brought on record on admission.
170. More time was given to Raju by the learned Magistrate as was sought by Raju and not given on his own. This aspect has already been discussed in the earlier part of the judgment. About injuries to the deceased particularly about backside injuries, discussion has already been made. Rest of the contradictions and omissions which are sought to be made out by the Defence, in our opinion, are hardly of any significance. There are more as to what the police ought to have done with the investigation. This would indicate that the police could have collected more or probably better evidence. If that be so, any lacuna in the investigation will certainly help the Defence. However, in the peculiar material and background of the case and particularly on account of subsequent development of one of the Accused turning Approver, the situation so far as the Defence is concerned, has radically altered. The aforesaid omissions or contradictions, as described by the Defence, are referred to from the list which was prepared by the Defence with reference to the witnesses.
171. So far as the deposition of Raju is concerned, this so called omissions and contradictions are sought to be related with his confessional statement. This in our opinion would necessarily mean that his statements said to have been recorded on 15th October, 1994 by Pune Police revealed more details and that was quite natural as the incident was fresh in the mind of Raju, the Approver.
172. As against that, the material produced by the prosecution, as discussed so far, also includes the testimony of the Approver. It clearly indicates that the incident had happened between 1.00 p.m. and 3.00 p.m. One more reason for this is that a telephone call was made from 'Sagar Sweet Mart' at about 4.00 p.m. to the house but there was no response. The Approver speaks the telephone call also.
173. The important aspect, according to the Approver and the said P.W. 9 Vishwajit Joshi as also rickshaw driver Ravindra Shaha, is that it was raining at that time. The rain was quite heavy. Ordinarily also in the afternoon hours in residential colonies, the women remain inside the house. If it is raining, the doors and windows remain shut. This would necessary mule a sound of anybody. On top of it, we have to proceed on his version that all inmates had been threatened. The threat was carried out by throwing chilly powder on the victims. Accused No, 2 was standing guard over them initially holding a knife in his hand. This knife is Article 148. This would indicate that inmates of the house were too frightened to raise shouts. Apparently they had resigned their fate, at best, they were able to whimper or plead for mercy.
174. About two chits, Exhibit 84 and Exhibit 85, written by the Approver, seized by the police on 15th October, 1994, it has been submitted by the Defence that they are got up by the police. They have made the Approver to throw light on the prosecution case and in order to oblige them, the chits were written. Looking to the Exhibits 84 and 85, it clearly indicate that they were taken possession of in presence of panchas at Jodhpur in Shastri Nagar Police Station on 15th October, 1994. The authorship of the said chits has been admitted by the Approver. Before that, handwriting expert has already opined, as per Exhibit 327, Articles Q-1 to Q-4, that they are written by the same person who has written sample Articles Section 1 to Section 36. The report is dated 5th May, 1995. P.W. 2 has turned as Approver in January, 1996. In the chits, Exhibits 84 and 85 there is clear cut reference to the present Accused No. 1 as Narayan as also Accused No. 2 as Jitu. The said attempt of the Defence as to the documents having been fabricated, in our opinion, does not succeed.
175. Most of the witnesses who knew the Accused were not called by the police as witnesses in he Test Identification Parade. They are more particularly the said landlord and landlady as also P.W. 1. Learned Public Prosecutor is relying on the judgment of the Supreme Court in the case of Ro nay alias Ronald James Alwaris and Ors. v. State of Maharashtra : 1998CriLJ1638 stating that under Section 9, substantive evidence is the one which is stated by the witness in the Court and the evidence of Test Identification Parade is merely corroborative. Their Lordships have stated that whether the witness had an opportunity either to know or to interact with the suspects and notice his distinctive features, if not or called in the parade, would not matter but their identification in the Court for the first time can be accepted. In our opinion, this is a suitable answer to the aforesaid submission of the defence.
176. In our opinion, therefore, having carefully considered the circumstances which are brought on record for corroborating material particulars, on the say of the Approver, the prosecution has succeeded in getting appropriate corroboration.
177. The learned Public Prosecutor has placed reliance on a decision of the Supreme Court in the case of Dagdu and Ors. v. State of Maharashtra : 1977CriLJ1206 referring to Sections 133 and 114 of the Evidence Act, 1872 Illustration (b). While appreciating the evidence of accomplice and also to the Rule of Corroboration. Their Lordships have explained that all it would mean is that there has to be some independent evidence tending to incriminate the particular Accused in the commission of crime. In the instant case before the Supreme Court, after carefully scrutinizing the evidence and discarding all that were found to be either inconsequential or not evidence corroborated finally, it was found that the recovery of Article 17 which was blood stained pieces of shirt was held to be material corroboration to the part played by Accused No. 3 at least in one of the murders. This discovery was at the instance of the Approver. These details are to be found in paragraphs, 38, 41 and 42 read with paragraph 21 of the said Supreme Court judgment.
178. It may be mentioned here that apart from the discovery of Article 147, the murder weapon, according to the case of the prosecution, along with it, Article 148 was also found which was a rusted old blunt knife. However, according to the C.A. Report, both were found containing blood stains and it was of the human origin. According to the prosecution and as per the version of the Approver, they were kept in the air bag where blood stained clothes were also put.
179. A decision in the case of Ahmad alias Ahmad Chakri and Ors. v. The Slate of Maharashtra is relied on, where the discovery was made after 5 days. It was held that the evidence of discovery was considerably weakened because of unexplained delay. As noted in the earlier part of discussion, in the case before us, much importance to the so called discovery is not required to be given. The very authenticity of the discovery panchanama was in question in the case before the Supreme Court in the case of Jackaran Singh v. State of Punjab 1995 Cri. L.J. 3993 more so when the panch witnesses were not examined. This is not the position before us. The judgment does not help the Defence.
180. The C.A. Report as to the jeans pant has been referred to. The blood of human origin is having its own significance and this is what the Supreme Court said in its judgment in the case of Khujji alias Surendra Tiwari v. State of Madhya Pradesh : 1991CriLJ2653 . This very judgment refers to one and the same panch having been used for drawing up different panchanamas. The Court has said that by itself this would not lead to discredit the panchas. This observation of the Supreme Court is to be found at page 1860 of paragraph 9.
181. With regard to the alleged omissions of P.W. 2, particulars of which are in Vol. II page 108, relying on para 31 of the : 1977CriLJ1206 (supra), it was urged that even in case of the Approver, by evaluating his evidence, whatever that may be worth discarding may be so discarded and, whatever is worth of acceptance has to be accepted. In other words, his testimony has to be evaluated like any other witness. No doubt, in that very paragraph, it has been noted that the Approver on owing pardon has a higher obligation to perform.
182. On behalf of the Defence, various decisions have been cited which we may now be considered. On the point of identification parade, various decisions have been cited. In one of such cases, there is a decision of the Supreme Court in the case of Ramnathan v. The State of Tamil Nadu : 1978CriLJ1137 where the observation is made that care should be taken to see that the person to be identified viz. suspect, is not visible to the witness. If necessary, he may be put even under Parda. This case seems to have been taken in the instant case. Budhsen and Anr. v. State of U.P. : 1970CriLJ1149 refers to the well known position of Test Identification Parade not being a substantive evidence. The remaining authorities are on the point of Accused having been identified for the first time in the Court by the witness, i.e. Kanan and Ors. v. State of Kerala : 1979CriLJ919 and State (Delhi Admn.) v. C. Shakla and Anr. : (1980)2SCC665 . In our opinion, these authorities are of little help of the Defence because the very witness identifies the Accused in the Court. Lastly, the reliance is placed on the case State of Maharashtra v. Rajesh alias Kaka Madanlal Soni and Ors. 1998 All M.R. (Cri.) 471 where the Division Bench of the Bombay High Court has held that the Magistrate who holds parade should ensure that dummies are similar to the suspects. This is the first requirement to make the parade valid. However, in the instant case, it is not borne out that such precautions were not taken.
183. The proforma used for recording the memorandum of identification parade had already been on record to the effect that the witnesses who are identifying the suspects had seen the suspects committing the crime. This has been verified from the original proforma and the aforesaid averment is, indeed, found in the original. Based on this, a submission was made that the witnesses who allegedly identified the suspects, even as per the case of the prosecution, have never seen the accused committing the crime. The whole exercise of Test Identification Parade is, therefore, a sham and got up one. In our opinion, this is a too far-fetched submission. The memorandum, like any other document, has to be read as a whole. At the end of the memorandum, the result of the parade has been recorded. There is clear averment of each of the witnesses identifying the respective suspects as to in what connection and the basis upon which the identification is made by the concerned witnesses. In our opinion, therefore, the aforesaid submission requires to be rejected.
184. Much was sought to be made by the Defence of the fact that there were delay in recording of statement of P.W. 15 Shrikant Navandhar, the husband of Hemlata. For this purpose, a decision in the case of Ganesh Bhavan Patel v. State of Maharastra : 1979CriLJ51 is relied on. Firstly, it may be stated that the judgment of the Supreme Court is based on the facts and circumstances of the case. If they arc seen in the case before us, it is quite clear that though P.W. 15, Shrikant Navandhar, was definitely present on the date of the incident, after obtaining body of his wife and child, he went to Satara for performing last rites and returned only after it wa:3 done. It was easy to say that Satara is near Pune, that too at a distance of 2 and 1/2 hours, but when he tested in the background of the state of mind of the witness, sanctity of death and feeling of grief of loss which the said witness was passing through one wishes that the suggestion was not even made.
185. About late recording the statement of Purnima and Sharmila with regard to the chaining of doors, in our opinion, nothing would depend on it, as there were statements of other witnesses on the point.
186. In a decision in the case of Atmaduddin v. The State of U.P. it was found that the witnesses were examined by the police after a very long time. This is not the position before us. If material witnesses are examined by the police after a very long time, there will be an adverse impact on the prosecution case. However, this is not the position before us. On the same line, Balakrushna Swain v. Slate of Orissa : 1971CriLJ670 and Jamimddin Molla v. The State and Ors. were relied on Chunni s/o. Balli Dhanuk and Ors. v. The State it is on the discrepancy between the police statement and evidence before the Court, about which, there cannot be any quarrel.
187. A decision in Sayed Osman s/o. Sayed Karim and Ors. v. The State of Maharashtra 1998 All M.R. (Cri.) 204 is cited in support of the contention that, if by chance witness happens to be a relative or friend of the victim or inimically disposed towards the Accused then his being a chance witness is viewed with suspicion and requires a close scrutiny. About this principle, as laid down by Aurangabad Bench, there cannot be any quarrel. This is sought to be relied on with regard to P.W. 9 Vishwajit Joshi. He may be the friend of the complainant Sanjay Rathi. However, there is no question of his being disposed of inimically towards any of the Accused. That part of his testimony about the reference to P.W. 2 who was known to him clad and black clothes and one person in Khaki jerkin which connects Accused No. 1 when found to have been recorded on 30th August, 1994, it takes away any such infirmity as suggested in the said Aurangabad Bench judgment in para 31.
188. Referring to the fact that the said P.W. 2 turning into an Approver in the month of November, 1995, though he was arrested in October, 1994 and ultimately the statement was recorded in January, 1996, relying on a decision in the case of Lalchand etc. v. Stale of Haryana : 1984CriLJ164 it was submitted that evidentiary value has to be considerd in that light. However, if one goes through the decision, one can find that on previous 5 occasions, his statements were recorded. The Approver in that case had suddenly decided to become an Approver after 20 months. His previous statement was not given to the defence. In the case before us, the Approver's previous statement was recorded on 15th October, 1994 and it has been given to the defence. The chits, Exhibits 84 and 85, are also to the effect, as stated above. In our opinion, therefore, this decision will not help the Defence.
189. 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.
190. Net result therefore is that the Appeals filed by the respective Accused/Appellants fail. Accordingly Appeals are dismissed and the order of conviction is confirmed.
191. This will take us to the question of sentence. In other words, we will address ourselves to the reference of the confirmation of sentence of hanging given by the Trial Court.
192. It was urged on behalf of the Defence that when the three intruders in the house had threatened the inmates which in effect was threatening to as many as five adult women, there should have been hue and cry, commotion and shouts but none of the witnesses have heard anything. This would mean, according to the Defence, the prosecution case is highly improbable. In our opinion, there is no force in the submission of the Defence. The fact is that as many as five adults and two children have died in a ghastly death. Going by the deposition of P.W. 1 Sanjay Rathi, he had left the place at about 3.00 p.m. He came by 6.30 p.m. and found the dead bodies. The incident had happened during the said interval. When P.W. 1, the complainant, came to the house, it was found locked from inside. It was opened with the help of duplicate key.
193. Before the Trial Court, leading cases with regard to the capital punishment were cited starting with the case of Bachan Singh, one after the other. We are considering the same in a reference for confirmation. A case of Bachan Singh was before the Constitutional Bench along with cases of several others, as set out in the Bachan Singh v. State of Punjab : 1980CriLJ636 . Constitutionality of the penalty was under challenge. By majority view (of 4:2), the Hon'ble Supreme Court has upheld the constitutional validity on that penalty. Speaking for the majority, Justice Sarkar concludes the discussion with regard to the constitutional validity in para 140 and proceeds to consider Question No. II from para 141 onwards. The second question related to the discretion left to the Court under Section 354(3) of the Code of Criminal Procedure.
194. Referring to various judgments both, Indian as well as Foreign, and after considering the various other factors, Their Lordships were of the view that it is neither practical nor desirable to imprison sentencing discretion of a Judge or Jury in the strait-jacket of exhaustive and rigid standards. This is set out in para 193 at page 942 of the said Supreme Court decision. Thereafter, it has been noted that it is possible to lay down broad guidelines as distinguished from ironcased standards. The guidelines will minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the Penal Code.
195. In para 195 at page 942, Their Lordships have accepted that sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. This refers to the decision available prior to 1973 Code where the relevant section was Sub-section (5) of Section 367 which came to be deleted. Presently the matter is to be dealt with as per the legislative policy discernible from Sections 354(3) and 235(2) of the Code of Criminal Procedure.
196. Thus viewed from any angle, it is clear as per the said paragraph: (i) the extreme penalty can be inflicted only in gravest cases of extreme culpability; and (ii) in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also.
197. After Sub-section 4 of Section 361 was deleted under the old Code also, as per para 197, if a murder is 'diabolically conceived and cruelly executed', the death penalty would be justified.
198. Thereafter, Justice V.R. Krishna Iyer's observations in Ediga Anamma case, have been quoted, They read as under :
The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence.
199. Thereafter, by majority (of 2:1) in Rajendra Prasad's case, the view expressed in Ediga Anamma's case was completely reversed. Section 354(3) of the Code of Criminal Procedure, 1973 was held to be enacting not principally of 'murder most foul' to be the test. The shocking nature of the crime or the number of murders committed was held not to be the criteria. It was held in Rajendra Prasad's case that the focus has now completely shifted from crime to the criminal. 'Special reasons' necessary for imposing death penalty 'must relate not to the crime as such but to the criminal.'
200. Expressing themselves in categorical terms, the majority of the said Constitutional Bench in the case of Bachan Singh, in para 199, clearly held that they do not agree with this enunciation. Referring to Sections 354(3) and 235(2) as also other related provisions of the Code of 1973, in the view of Their Lordships, due regard both, to the crime and criminal, has to be paid. It is further noted that most of the times, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. It is also noted that the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator.
201. In course of the argument, Dr. Chitale had suggested these 'aggravating circumstances', as set out in para 200, page 943. However, in para 201, while recording the broad agreement with suggestions, Their Lordships have clearly stated that they would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
202. In para 202 the aforesaid decision of Rajendra Prasad's case has been referred to and after quoting the relevant part, Their Lordships have, on page 944, stated that the discretion cannot be confined to whatever has been set out in that decision alone. In para 203, it has thereafter been stated that in order to qualify for inclusion in the category of 'aggravating circumstances' which may form the basis of 'special reasons' in Section 354(3), circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.
203. Thereafter, the mitigating circumstances had been suggested by Dr. Chitale in para 204, and in that regard, in para 205, it has been stated that these are the relevant circumstances and must be given great weight in the determination of sentence. In para 207, it is noted that there could be numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. This could not be fed 'into a judicial computer' because they are referred to as 'astrological imponderables in an imperfect and undulating society.' Thereafter, it has been stated that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expensive construction. It is stated that the Judges should never be blood thirsty. Noting that, as per Section 354(3) of the Code of Criminal Procedure and as per the legislative policy, the life imprisonment is the rule and death sentence an exception. That is how the constitutional validity came to be upheld.
204. Before us, special mention was made of Item No. 3 and Item No. 4 of para 204 at page 944 setting out mitigating factors in Bachan Singh's case. They read as under:-
(3). The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
Referring to the fact that it is for the State to prove that the Accused do not satisfy either of these conditions, the defence has urged that in the instant case, the State has not cared to do so. The benefit thereof should, therefore, be given to the Accused. The simple answer to this request is that these are the suggestions of Dr. Chitale held to be relevant by the Supreme Court. It is not laid down by that judgment with regard to the aforesaid two circumstances that it is the duty of the State to lead evidence. It would not therefore follow that failure to do so can lead to an inference of their existence favouring the Accused.
205. Learned Public Prosecutor has also relied on the decision in the case of Machhi Singh and Ors. v. Stale of Punjab : 1983CriLJ1457 . Referring to the aforesaid decision in Bachan Singh's case, Their Lordships in para 34 have clearly stated that in order to apply the aforesaid guidelines following questions may be asked and answered: '(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? and (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weight age to the mitigating circumstances which speak in favour of the offender? In para 35 thereafter Their Lordships have said that after considering the case in this manner, if the death sentence is warranted, the Court would proceed to do so.
206. Mr. Shelar, learned Counsel for Accused No. 2, has cited a decision in the case of Suresh Chandra Bahri etc. v. State of Bihar 1994 (2) Crimes 1027. He had cited it with regard to the identification of the Accused by the witness soon after his arrest stating that there is great importance to the immediate identification. That point is dealt with. In the instant case, as discussed earlier, about the test identification parade, submissions were made of delay for which answer has been given that either the witnesses were not available or the Magistrate was not designated for the purpose. However, this judgment also deals with the aspect of punishment, holding that there was cold blooded cruel murder of innocent children by none else but by their own real father and that this man had very cruelly killed his wife in a ghastly fashion and after cutting her body into two parts, the main culprit was awarded death sentence and was directed to surrender. In other words, the order of death sentence was approved. In view of this, in the instant case, let us turn to the circumstances and facts as to commission of crime.
207. On or about 22nd August, 1994, the Accused casually started wondering about penurious circumstances and an idea had of resorting to crime. Robbing a rich merchant was thought of in general terms. The fact that the Approver having worked with Rathis was known to the other two. They settled on an idea of going to the house of Rathis. This was possible because during the discussions, it emerged that Rathis are in the habit of keeping cash in the house and during afternoon hours except for the: female members, there will be none In the house. The Approver being known to the Rathi family members, it would be easy to get entry.
208. While robbing the house of Rathis, if any person identified the accused in future, the idea of eliminating them gradually took shape and towards that end the knife was purchased. For the said purpose, preparations are made of keeping another knife though useless to frighten the witnesses. The chilly powder is also brought for being used.
209. After making this preparations and chalking out a Plan on the previous day i.e. on 25th August, 1994, they surveyed the area and fixed the time for committing the crime. Accordingly they came to the place at 2.00 p.m. and on finding of motor-cycle of P.W.I. they went away and returned by 3.00 p.m. Rest of the details are given above. So far as killing of five adult women are concerned, it is quite clear that from the point of accused, they are justified. However, killing of two children, aged about 2 and 1/2 years and 1 and 1/2 years old, respectively, passes all comprehension. In the course of crime, streak of perversity is displayed. The child Pratik was taken from Hemlata and was said to have been given to his grandmother i.e. Mirabai. But she was already dead. This was known to the Accused. The child was smothered. He did not die. The knife blows were given and finally the child was killed.
210. About Priti, she did not die because of strangulation wounds and expression used by Accused No. 1 before and after knife blows were given have been referred to.
211. On displacement of the clothes of Hemlata, carnal idea passed in the mind of Accused No. 1 though she was dead.
212. Babita alias Nita who was pregnant and was expecting child in a couple of weeks is not only done to death by fatal injuries inflicted in vital area of neck, the blow has been given on the stomach as well.
213. The injuries are confirmed by Dr. Godbole, P.W. 49, who has carried post-mortem, as stated above.
214. The crime is indeed for gain. A faint attempt was made by the defence to show that as per the complaintant, articles taken away by the Accused were said to be worth Rs. 60,000/- to 62,000/- which later on increased to more than Rs. 3 lakhs. Some of them have been recovered. Therefore, according to the Defence, the so called crime for gain is not established.
215. It is true that some ornaments were left on the killed women. These ornaments on the respective bodies prompted the defence to argue that, if the motive was gain, the accused would not have left these ornaments on the bodies. However, as noted above, the Accused had helped themselves to cash in on whatever articles they could lay their hands on from two Almirahs.
216. Moreover, Rs. 5,000/- have been distributed amongst each of the Accused at Nagpur Chawl room (Vol. II, page 109) and thereafter at Ganganagar Rs. 15,000/-were taken by Accused No. 1. Rs. 30,000/- were taken by Accused No. 2 (Vol. II. page 113). On amount being exhausted, Accused No. 2 pawned the said ring in Hotel Anmol.
217. Thus, over and above the aforesaid amount of cash, there are other articles of Rathis for which discussion has already been made. There is no scope for argument that the crime was not for gain.
218. 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 part.
219. 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 portends for the future. From the defence, virtually no material is produeed. The evidence on record, if any, suggests that none of the accused had least regard for the human lives. They were so self-entered 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.
220. 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.'
221. 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, ages 45 years, has already become a grandmother 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.
222. 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.
223. To suggest, even remotely, that their past does not justify the extreme penalty or that the future in all probabilities does not warrant the same, in our opinion, it would be an empty submission under these circumstances.
224. While dealing with the question of death sentence, the case reported in : 1983CriLJ1457 , a reference was made to 'reverence for life' principle. In the said report, it was stated that the person who violates the 'reverence for life' principle by killing another person, the society may not feel itself bound by shackles of this doctrine, and the society at large to the extent feel that he may not expect any compassionate. Reference is made to the motive for commission of murder and the manner of its commission at page 966. It was held that the murder committed is an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. In the motive part for commission of murder also, a reference was made to an idea of gain. The category as to the magnitude of crime involves the multiple murder of members of a family. In the case before us, all these factors, in our opinion are present. In the case of Machhi Singh, the Supreme Court confirmed the death sentence of Machhi Singh as also of Kashmir Singh and Jagtar Singh.
225. Learned Advocate Mr. Gill has relied on Raja Ram Yadav and Ors. v. State of Bihar : 1996CriLJ2307 . The murder committed was found to be premeditated and calculated manner with extreme cruelty and brutality. However, when the testimony was of solitary child eyewitness who by telling names of another witness, had not told the names of 4 assailants, Their Lordships found that the sentence of hanging would not be proper.
226. Another case of the Supreme Court for setting aside the sentence of hanging was cited in the case of Allauddin Mian and Ors. v. State of Bihar . In the said case it was found that two infant daughters of the intended victims were killed. This appears to be the result of the intended victims running away. The motive for the crime is obscure. Killings possibly were not for gain. Noting that mere fact of killing of infants would not bring the case within the category of 'rarest of rare case', the death sentence was set aside.
227. 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 behavior or the behaviour in course of the trial.
228. It was urged on behalf of the Appellant/Accused that the delay in execution of the death sentence should be held in favour of the accused and the death sentence should not be confirmed.
229. The order of sentence was passed on 23rd February, 1998. After the filing of the Appeal in the year 1998, by 21st September, 1998, record and proceedings, Muddemal Articles along with printed copies of the paper books, etc., were received and made over to the learned Public Prosecutor as also to learned Counsel for the accused. On 22nd September, 1998, before V.P. Tipnis and S.S. Parkar, JJ., when the matter was put up, the learned Advocate Mr. Shelar, who appeared for accused No. 2, sought time as his son had suddenly developed serious illness. Looking to the bulk of the papers, the learned Public Prosecutor as also the learned Advocate for the Accused wanted time for preparation. The matter was, therefore, ordered to be placed on board on 2nd November, 1998 for fixing the date. Thereafter, it was adjourned to 9th November, 1998 and again on 16th November, 1998. On the said date i.e. 16th November, 1998, before the Division Bench consisting of A.A. Desai and Vishnu Sahai, JJ. Accused No. 1 requested for time to engage another lawyer in place of the one appointed by his parents. The case was, therefore, adjourned to 30th November, 1998. Thereafter, Mr. Gill came on record on behalf of Accused No. 1 in the appeal as well as in the confirmation case. The matter was adjourned to 22nd December, 1998. Thereafter, it was found that some of the documents were not translated, for which orders were issued. This continued to be the position even on 16th February, 1999. The matter was kept on 24th February, 1999. At that time, it was reported that the translations were ready. Hence the matter came up before Vishnu Sahai and Smt. R.P. Desai, JJ. On 10th March, 1999, the Bench fixed the matter for. 19th March, 1999. Finally, the matter came to be fixed on 12th April, 1999 before the Division Bench consisting of A.V. Savant and T.K. Chandrashekhara Das, JJ. On 16th April, 1999, the learned Judges noted that Mr. Gill, Advocate for Accused No. 1 was in some personal difficulty and, therefore, the Bench accommodated him and the matter was placed on 26th April, 1999. As the summer vacation was approaching, for want of time, the matter was adjourned beyond vacation.
230. On reopening, we fixed the matter on 16th June, 1999 and started hearing the same and concluded by this judgment.
231. In the aforesaid background, in our opinion, there is no delay whatsoever and certainly not the delay of the nature indicated in the Supreme Court judgment relied on by the learned Advocate Mr. Shelar. It was the ruling in the matter of Shivaji Jaising Bahar v. State of Maharashtra : 1991CriLJ3284 . The incident in that case was dated 3rd August, 1980. The accused came to be convicted on 28th June, 1982 and was awarded death sentence. The Supreme Court dealt with the matter by way of Special Leave Petition and delivered its decision on 11th September, 1991. In the earlier judgment of the High Court, there were factual mistakes which were not brought to the notice of the Supreme Court on an earlier occasion. Taking all these factors into consideration, speaking for the Bench, Justice S. Ratnavel Pandian held that there was inordinate delay and hence death sentence was required to be commuted to life sentence. Obviously, this is not the position here. The decision, therefore, does not help the defence.
232. In the background of the last two cases, if the case before us is considered, in our opinion, none of the circumstances noted in those cases arc to be found here. 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 byway 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, if 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 conclusion that they fall in the category of the rarest of rare case.
233. We, therefore, answer the reference for confirmation in the affirmative and direct that the sentence be carried out in accordance with law. Both the appeals filed by the respective Accused are dismissed.
234. After the judgment was pronounced whereby both the appeals came to be dismissed and the order of capital punishment came to be confirmed the learned Advocate for the Defence submitted that the execution of sentence be stayed for a period of 90 days. The other side has no objection. In the facts and circumstances of the case, we find that the request made by the Defence is reasonable and, therefore, it is granted. Accordingly the execution of sentence is stayed for a period of 90 days.