NOTE

Section 161 Criminal Procedure Code - The statement of a witness is recorded under section 161 can be used for confrontation under section 162 Criminal Procedure Code

"On query by this Court he stated before me that he is prepared to make a full and true disclosure of the whole of the circumstances within his knowledge regarding these offences and the entire incident involved and that he is ready to accept the pardon. I have carefully perused the entire record of this case and also the confessional statement of this accused Rajendrasingh alias Rajusingh Ramlal Purohit which has been recorded by Special Judicial Magistrate, Pune. The said confessional statement was received in this Court in a closed envelope on 21.12.1995 from Shri G.H. Komne (Khomane ?), Special Judicial Magistrate and since the said envelope was not bearing lac seals on the packet I kept the said envelope in another envelope, closed the said envelope and got the lac seals put on it. Today I opened the said sealed envelope of this Court and also the inner envelope and took out the said confessional statements in open court and then perused the same. I am satisfied from the said confessional statements made by this accused Rajendrasingh alias Rajusingh Ramlal Purohit and other material on the record of this sessions case that this accused Rajendrasingh alias Rajusingh Ramlal Purohit has participated into the entire incident involved and thus his (he is) privy with all the happenings at the time of incident.

It is clear from the record of this sessions case that there is only circumstantial evidence and there are no eye-witnesses of this incident, and therefore, with a view of obtaining at the trial the evidence of any person who has witnessed the incident, it is necessary to tender pardon to the present accused Rajendrasingh alias Rajusingh Ramlal Purohit as prayed by the prosecution. The accused Rajendrasingh alias Rajusingh Ramlal Purohit has also shown his willingness to become a approval (an approver) and to make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offences and the every other person concerned whether as principal or abettor in the commission thereof and further shown his willingness to accept pardon if the same is tendered to him."

"The accused No. 1 Narayan is convicted for the offence punishable under Section 302 of the Indian Penal Code (for causing the deaths of deceased Meeradevi Kesrimal Rathi, deceased Babita alias Nita Sanjay Rathi, deceased Priti Kesrimal Rathi, deceased Chirag Rathi, deceased Hemlata Shrikant Navandhar and deceased Satyabhamabai Damu Sutar), for the offence punishable under Section 302 read with Section 120B of the Indian Penal Code (for causing the death of deceased Pratik Navandhar), and for the offence punishable under Section 120B of the Indian Penal Code, and is sentenced to death and he be hanged by neck till he is dead and to pay a fine of Rs. 10,000/- I/d to suffer R.I. for three years on all counts.

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

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

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

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

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

Accused No. 1 Narayan be given set off of the period from 5.9.1994 till today and the accused No. 2 Jitu be given set off of the period from 21.1.1994 till today during which they were in custody during investigation and trial."

"Tender of pardon to accomplice - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or, inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to :

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

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

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

(a) his reasons for so doing;

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

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

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

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

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

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

(a) commit it for trial -

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

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

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

Section 307 provides :

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

"If the said defect of not examining the Approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an accused person and therefore the trial cannot be said to be vitiated on that account."

"I am not worth calling your son. I have committed gruesome crime for which I could not be pardoned by God also. I was instigated by my friends Jeetu and Narayan and due to which I help them in the murder and robbery which took place in the Rathi family in Pune. I have no guts to face after this incident. I have tremendous repentance over it for which I have decided to commit suicide. Please do not be sad after my death."

"I have not committed murder of anyone during the crime of robbery and murder of Rathi family of Pune. I was only involved in the conspiracy of robbery and murder with my friends Naryan and Jeetu. I only assisted my friends Jeetu and Narayan in committing those seven gruesome murders on that faithful (fateful ?) days. I had not assaulted any one but committing murder and helping to commit the same are both sin. I am burning in that sin. I have dependence (repentance ?) over my act and I want get rid of this feeling that is why, I am thinking of committing suicide. I request you that my family should not be harassed after my death. They have no fault of any kind. 11.10.1994."

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

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

Section 133. "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

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

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

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

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

"There is no antithesis between Section 133 and illustration (b) to Section 114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an Approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make if safe to dispense with it.

In King v. Baskerville, 1916(2) KB 658, the accused was convicted for committing gross acts of indecency with two boys who were treated as accomplices since they were freely consenting parties. Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that though there was no doubt that the uncorroborated evidence of an accomplice was admissible in law it was for a long time a rule of practice at common law for the Judge to warn the Jury of the danger of convicting a person on the uncorroborated testimony of an accomplice. Therefore, though the Judge was entitled to point out to the Jury that it was within their legal province to convict upon the unconfirmed evidence of an accomplice, the rule of practice had become virtually equivalent to a rule of law and therefore in the absence of a proper warning by the Judge the conviction could not be permitted to stand. If after being properly cautioned by the Judge the Jury nevertheless convicted the prisoner, the Court would not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated.

In Rameshwar v. State of Rajasthan, 1952 SCR 337, this Court observed that the branch of law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's case by the Lord Chief Justice of England. The only clarification made by this Court was that in cases tried by a Judge without the aid of a jury it was necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considered it safe to convict without corroboration in the articulation case.

In Bhuboni Sahu v. The King, 76 IA 147, the Privy Council after noticing section 133 and illustration (b) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase "corroborated in material particulars" in illustration (b). Delivering the judgment of the Judicial Committee Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the Approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused.

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

"Bearing the above principles laid down in the above decisions and also in other cases such as Chandan and another v. State of Maharashtra, 1988(1) SC Cases 696, Abdul Sattar v. Union of Territory of Chandigarh, AIR 1986 Supreme Court 1438, Sureshchand and other v. State of Bihar, 1994(2) Crimes 1033 and Niranjan Singh v. State of Punjab, JT 1996(5) Supreme Court Cases 13 by the Hon'ble Supreme Court as stated above, in mind, we will have to consider the evidence of Approver Raju Rajpurohit (PW. No. 2) to see as to whether his evidence is reliable and whether the same is corroborated in material particulars to assume its trueness first and then we will have to consider the other circumstantial evidence against the accused person.

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

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

(1) That both the accused persons viz. Narayan and Jitu with Approver Raju (P.W.2) conspired on 23.8.1994 to commit theft at the house of complainant Sanjay Kesrimal Rathi and to kill all the persons whosoever may be found at his house/flat at the time of such theft and thereby committed an offence punishable under Section 120B of the Indian Penal Code.

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

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

(4) Both the accused persons in pursuance of conspiracy with Approver Raju (P.W. No. 2) committed theft of cash of Rs. 85,000 and other ornaments such as one wrist watch (Article 78), gold ring (Article 80), gold necklace (Article 103), foreign coins (Article 138), three coins (Article 183(1)), (B-1), Camera (Article 160), Ladies Wrist Watch (Article 162)(b)), mouth organ (Article 182), gold ring (Article 185), gold chain (Article 186), three bangles (Article 186) etc. and for committing such theft first wrongfully restrained, thereafter put them under fear of instant death and then caused death of the persons who were at the house/flat of complainant Sanjay Kesrimal Rathi at that time i.e. deceased Meeradevi Kesrimal Rathi, deceased Babita alias Nita wife of complainant Sanjay Kesrimal Rathi, Preeti Kesarimal Rathi, Hemlata Shrikant Navandhar wife of Srikant Navandhar, Satyabhamabai Damu Sutar the maid servant, Chirag Rathi and Pratik s/o Shrikant Navandhar by a weapon (Utility knife) Chhuri (Article 147) and thereby committed an offence punishable under Section 397 read with 120B of the Indian Penal Code.

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

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

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

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

"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.

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

Referring to and relying upon the earlier judgments of this court in State of U.P. v. M.K. Anthony, AIR 1985 Supreme Court 48, Tehsildar Singh and another v. State of U.P., AIR 1959 Supreme Court 1012, Appabhai and another v. State of Gujarat, JT 1988(1) SC 249, Rami alias Remeshwar v. State of Madhya Pradesh, JT 1999(7) SC 247, Bhura alia Sajjan Kumar v. State of Madhya Pradesh, JT 1999(7) SC 247, this Court in a recent case Leela Ram v. State of Haryana and another, JT 1999(8) SC 247 : 199(4) RCR 588 (SC) held:

"There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievebale. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.....

The court shall have to bear in mind that different witnesses react differently under different situations. Whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."

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

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

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

(3) Both the accused and Approver Raju, on the suggestion of accused No. 1 Narayan agreed to kill all the persons whosoever are found at the house/flat of Rathis at the time of commission of such robbery to eliminate all the possible eye witnesses to shield themselves from getting apprehended or prosecuted for the offence of robbery which would have made each of them to suffer imprisonment for few years. This they felt that their liberty was far more important than the lives of those whosoever found in the house/flat of Rathi at the relevant time. One could have understood if the accused No. 1 Narayan would have said and all of them would have agreed to take Chhurri (Article 147) and other weapon by way of precaution and would have decided to assault the inmates if they cry for help or obstruct their act of robbery or theft. However, it was not so and they proceeded to the spot with clear intention that they will finish all the persons whosoever found at the house/flat of Rathi at the time of such commission of theft or robbery.

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

(5) The evidence of Approver Raju (P.W. No. 2) which is accepted by this court discloses that the accused No. 1 Narayana, killed deceased Meeradevi Kesarimal Rathi, deceased Nita alias Babita Rathi, deceased. Hemlata Shrikant Navandhar, deceased Satyabhamabai Damu Sutar, deceased Pratik Navandhar, even though all the said ladies were saying that the accused persons may take away all that they wanted but should not kill them. Thus inspite of this, they have killed the said persons even it was not necessary for them for committing the robbery. They have naturally co-operated with each other actively in such killings.

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

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

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

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

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

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

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

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

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

From the point of victims, as per Item No. V of the said judgment, the innocent children have been killed and so are helpless women. As has been noticed so far, the victims had been five helpless women and two very young children. Referring to the aforesaid two mitigating circumstances as to the past of the accused as also their possibility of reformation, in our opinion, an inference has to be drawn on the basis of the material on record. It is the past that portends for the future. From the defence, virtually no material is produced. The evidence on record, if any, suggests that none of the accused had least regard for the human lives. They were so self-centered on the idea of self-preservation that doing away with all inmates of the house was settled upon them as an important part of the plan from the beginning. The manner in executing the plan has also been since beginning.

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

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

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

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

and concluded :

"The evidence has been thoroughly discussed by the trial Court. While considering the aspect of the corroboration, we too have done so to the extent necessary. The circumstances that have been narrated above clearly suggest that the crime was definitely for gain. The accused did gain out of it. Whatever little that the police have recovered is before the court by way of articles. For the rest, there is nothing on record. Killing of adults 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 the rare cases."

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

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

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

It is true that in a civilised society a tooth for tooth, and a nail for nail or death for death is not the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life according to the procedure established by law, as Constitution itself has recognised the death sentence as a permissible punishment for which sufficient Constitutional provision for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception. We are satisfied that the present case is an exceptional case which warrants the awarding of maximum penalty under the law to the accused/appellant. The crime committed by the appellant is not only shocking but it has also jeopardised the society. The awarding of lesser sentence only on the ground of the appellant being a youth at the time of occurrence cannot be considered as a mitigating circumstance in view of our findings that the murders committed by him were most cruel, heinous and dastardly. We have no doubt that the present case is the rarest of the rare requiring the maximum penalty, imposable under law."