Holding

The trial court's grant of pardon and recording of the approver's statement under Section 307 after commitment is lawful, and the approver's testimony, being corroborated in material particulars, is admissible and sufficient to uphold the conviction and death sentence.

Summary

The appellants, Narayan Chetanram Chaudhary and Jitu, along with Raju, murdered seven members of a family, including two children and a pregnant woman, to conceal a robbery. Raju later became an approver after the trial court granted him pardon and recorded his confession. Both the trial court and the High Court convicted the appellants and sentenced them to death. The Supreme Court examined whether the approver's statement, recorded after commitment under Section 307 CrPC without complying with Section 306(4)(a), was admissible, whether the delay and alleged contradictions affected its reliability, and whether a death sentence was appropriate. The Court held that the procedure under Section 307 was valid, the approver's testimony was sufficiently corroborated, and the crime qualified as a "rarest of rare" case warranting the death penalty. Consequently, the appeals were dismissed, upholding the convictions and death sentences.

Issues considered

Whether the approver's statement recorded after the case was committed, without complying with Section 306(4)(a) of the CrPC, is admissible.
Whether the delay in recording the approver's statement renders it unreliable for conviction.
Whether conviction based solely on the approver's uncorroborated testimony is safe, especially when the death penalty is sought.
Whether contradictions or improvements in the approver's statements affect the credibility of his testimony.
Whether the death sentence is appropriate given the nature of the crime and the youth of the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 306, s. 307
Indian Penal Code, 1860s. 114, s. 120B, s. 133, s. 302, s. 34, s. 342, s. 397, s. 449

Subjects

murderapproverpardonSection 306 CrPCSection 307 CrPCdeath penaltyrarest of rarecorroborationaccomplice testimonycriminal procedureIPC 302evidence lawcontradiction

Judgment

A NARAYAN CHETANRAM CHAUDHARY AND ANR.
v.
ST A TE OF MAHARASHTRA

SEPTEMBER 5, 2000

B [K.T. THOMAS AND R.P. SETHI, JJ.)

Criminal Procedure Code, 1973: Sections 306 and 307-Evidence of
approver-Non-recording by the Magistrate-Effect of-Law mandates
C satisfaction of the Court that accused would make full and true disclosure
of the circumstances without his knowledge relating to the crime-It could
also be recorded after commitment of the case and before the judgment is
passed

Criminal Procedure Code, 1973-Sections 161, 162-Statement under
D interrogation-Held, cannot be used for contradicting witness.
Penal Code Section 302-Murder of seven females of a family including
two children and a pregnant woman-One of the accused becoming
approver-Death sentence for other accused granted by Sessions Court
confirmed by High Court-Held, rarest of rare case-Hence death sentence
E confirmed

Appellants along with one R, committed the murder of seven female
members of a family including two children and a maid servant. The offence
of murder was committed with a view to wipe out all evidence of theft and
robbery committed by the accused. After the case was committed to the
F Sessions Court and prior to the trial as per the request of the accused R the
prosecution sought for permission to get his confession recorded which was
granted by the trial court. The prosecution then filed an application for
tendering pardon to R on making necessary inquiries and on the condition
that he shall make true and full disclosure of all facts within his knowledge,
G which was allowed by the trial court. After trial, the trial court convicted both
the Appellants and sentenced them to death. The criminal Appeals filed by
Appellants were dismissed and the death sentence was confirmed by the High
Court.

In Appeal to this Court the Appellants submitted that it would be unsafe
H to award death sentence solely on the basis of testimony of PW2; that there
104 .
NARAYANCHETANRAMCHAUDHARYv. STATE OF MAHARASHTRA 105
are numerous alleged contradictions and improvements in the statement of A
aforesaid witness PW2; that as the statement of PW2 was not recorded in
terms of Clause (a) of Sub-section (4) of Section 306, his statement recorded
by the Trial Court after tendering pardon was illegal; that the statement of
every accomplice is required to be recorded firstly in the court of the
Magistrate and subsequently in the Trial Court; that as the statement of PW2
was recorded only in the Trial Court, the appellant had lost a legal opportunity B
of having his second statement enabling them to elaborately cross-examine
him; that as the statement of the Approver was recorded after an unexplained
prolonged delay, the same could not be made the basis for conviction of the
accused; that conviction based upon the uncorroborated testimony of the
Approver is neither safe nor proper particularly in a case where extreme C
penalty of death is awarded, and that as PW2 has made improvements in his
statement on material particulars, it would not be safe to rely upon his
testimony for convicting the appellants and sentencing them to death. The
appellants contended in the alternative that even if the conviction of the
appellants is upheld, they may not be sentenced to death keeping in view young
age and the possibility of their being reformed, and that in no case appellant D
No. 2 can be sentenced to death as he is alleged to have killed only one child.

Dismissing the Appeals, the Court

HELD: 1. A perusal of the Sections 306 and 307 Cr.P.C. clearly indicates
that Section 306 is applicable in a case where the order of commitment has not E
been passed and Section 307 would be applicable after commitment of the case
but before the judgment is pronounced. The provisions of sub-section (4) (a) of
Section 306 would be attracted only at a stage when the case is not committed to
the court of Sessions. After the Commitment, pardon is to be granted by the
trial court subject to the conditions specified in sub-section (1) of Section 306, F
i.e. approver making a full and true disclosure of the whole of the circumstances
within his knowledge relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof. Section 307 in its
present form does not contemplate the recording of the statement of the approver
twice as argued. Accepting the submissions made on behalf of the appellant would
amount to legislating something in Section 307 which the legislature appears G
to have intentionally omitted. (120-D-G]

Suresh Chandra Bahri v. State of Bihar, (1995] Supp. 1 SCC 80, referred
to.

2. There is no legal obligation on the Trial Court or a right in favour of H
106 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A the accused to insist for the compliance with the requirement of Section 306
(4) Cr.P.C. Section 307 provides a complete procedure for recording the
statement of an accomplice subject only to the compliance of conditions
specified in Sub-Section (1) of Section 306. The law mandates the satisfaction (

of the court granting pardon, that the accused would make a full and true
B disclosure of the circumstances within his knowledge relative to the offence
and to every other person concerned, whether as principal or abettor, in the
commission thereof. It is not necessary to comply with the requirement of
Section 306 (4) when the pardon is tendered by the Trial Court. The Trial
Court, in this case has taken all precautions in complying with the provisions
of Section 306 (1) before tendering pardon to accused R, who later appeared
C as PW2. There is no violation of law or illegality in the procedure for
tendering the pardon and recording the statement of PW2. (121-C-E]

3. There is no substance in the submissions of the Appellants that as
the statement of the Approver was recorded after a prolonged delay, no reliance
could be placed upon it. The delay in granting the pardon may be a just
D criticism, where it is found that the pardon had been tendered at the end of
the trial and in effect was intended to fill up the lacunes in the prosecution
case. Such is not the present case. (123-B]

Lal chand & Ors. v. State of Haryana, (1984] 1 SCC 686, relied on.
E
4. From the judgment of the Trial Court as well as the High Court it is
crystal clear that the courts were conscious of the credibility of an Approver's
witness and insisted upon the corroborative evidence in material particulars of
'J
the depositions made by PW2. It cannot be said that the testimony of PW2 has
not been corroborated in material particulars. The statement of PW2 is vivid in
F explanation and inspires full confidence of the court to pass the conviction on
the appellants for the offences with which they were charged. The
corroborative evidence to the aforesaid statement leaves no doubt in the mind of
the court regarding the involvement of the appellants in the commission of the
crime for which they have been convicted and sentenced. (131-H; 132-A-B)
G
Suresh Chandra Bahri v. State of Bihar, (1995] Supp. 1 80, Jananendra
Nath Ghose v. The State of West Bengal, [1960] 1 SCR 126; Bhiva Doulu
Patil v. State of Maharashtra, AIR (1963) SC 599; Dagdu & Ors. v. State of
Maharashtra, [1977] 3 SCC 68; Ba/want Kaur v. Union Territory,
Chandigarh, [1988] 1 SCC 1 and Niranjan Singh v. State of Punjab, JT (1996)
H ~ SC 582, referred to.
NARAYAN CHETANRAM CHAUDHARYv. STA TE OF MAHARASHTRA 107

Taylor in "A Treatise on the Law of Evidence" 1931 Vol I Para 967, A
referred to.

5. The statement made under interrogation cannot, in any way, be termed
to be a statement recorded under Section 161 which could be used for the
purpose of contradiction of the witness under section 162 Cr.P.C. Only such
omissions which amount to contradiction in material particulars can be used B
to discredit the testimony of the witness. Omission in the police statement by
itself would not necessarily render the testimony of witness unreliable. When
the version given by the witness in the Court is different in material
particulars from that disclosed in his earlier statements, the case of the
prosecution become doubtful and not otherwise. Minor contradictions are C
bound to appear in the statements of truthful witnesses as memory sometimes
plays false and the sense of observation differ from person to person. The
omissions in the earlier statement if found to be of trivial details, as in the
present case, the same would not cause any dent in the testimony of PW2.
Even if there is contradiction of statement of a witness on any material point,
that is no ground to reject the whole of the testimony of such witness. On an D
analysis of the statement of PW2 his statement under section 161 Cr.P.C.
and the deposition made by him during investigation the court has come to a
conclusion that there is no material improvement, much less contradiction
in the deposition made by him before the Trial court after being granted
pardon. The so-called improvements are in fact the details of the narrations E
extracted by the Public Prosecutor and the defence counsel in the course of
his examination-in-chief and cross-examination. (133-B, C; 134-G-H]

State ofHP. v. Lekh Raj andAnr., (1999) 9 Supreme Today 155, referred to.

6. The present case is one of the rarest of rare cases warranting the
extreme penalty imposable by law. The case of appellant No. 2 is not F
distinguishable. But for his active participation in the conspiracy and its
execution, accused No. 1 could not have succeeded in committing the murder
of six persons including a pregnant woman and a teenaged child. The manner
in which appellant No. 2 committed the murder of Pis not only ghastly but
reflects his beast like mental attitude. The appellants do not deserve any G
sympathy from the law and society. Thus, the conviction and sentence awarded
to the appellants by the Trial Court and confirmed by the High Court, are
upheld. (141-E-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 25-
26 or2000. H
108 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A From the Judgment and Order dated 22.7.99 of the Bombay High Court
in Crl.A. No. 415 and 462of1998.

S. Muralidhar and S: Vallinayagam for the Appellants.

U.U. Lalit, Arun Pednekar, S.S. Shinde and S.V. Deshpande for the
B Respondent.

The Judgment of the Court was delivered by ·

SETHI, J. Three desperadoes, the two appellants and one Raju (PW2)
who had gone amuck, committed the heinous crime of murders in a most
.C ghastly and shocking manner for which the appellants were charged with
various offences punishable under Sections 120B, 302, 34, 342, 392, 297 and
449 of Indian Penal Code. On proof of the charge that the appellants had
committed the murder of five innocent women, one of whom was pregnant,
and two children of teenage of one and a half years and two and a half years,
they were convicted and sentenced to death alongwith other sentences by
D the Trial Court. The High Court accepted the Reference made for confirmation
of the death sentence and dismissed the appeals filed by the appellants for
setting aside their convictions.

On the date of occurrence the appellants were of 20-22 years of age.
E The deceased, victims of the crime, included Meerabai Rathi, aged about 45
years, her daughter-in-law Babita @ Nita Rathi, aged about 24 years, her
unmarried daughter Preeti aged about 19 years, her married daughter Hemlata
aged about 27 years, her maid servant Satyabhamabai Sutar aged about 42
years, Chirag, son of Babita aged two and a half years, Pratik, son of Hemlata
aged one and a half years.
F
All women and children were killed one by one by inflicting numerous
knife blows on their persons. All the deaths, except of Pratik (child of one and
a half years) were actually caused by the brutal knife blows inflicted by
Narayan Chetanram Chaudhary (hereinafter referred to as "the accused No. l").
G Pratik was killed by Jitendra@ Jitu Nayansingh Gehlot (hereinafter referred
to as "the accused No.2"). Raju, PW2 actively participated and facilitated the
commission of the crime. The murders were apparently committed to wipe out
all evidence of robbery and theft committed by the accused persons.
.
I

The prosecution case, as revealed from the investigation and official
H report filed in the Court, is that complainant Sanjay Rathi (PWl) along with
NARA YAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA [SETHI. J.] 109

his father Keshrimal Rathi, his mother deceased Meerabai Rathi, his younger A
sister deceased Km.Preeti, his wife deceased Babita and his son deceased
Chirag were residing in Flat No. 6 on the Second Floor ofHimanshu Apartment,
Shilavihar Colony, Puad Phata, Kothrud, Pune. One of the daughters of
Keshrimal Rathi, deceased Hemlata was married to Shri Shrikant Navandhar
PW15 in the year I 992 and had come to her parents' house along with her
son on the fateful day. Raju Rajpurohit who was Accused No.3 and later after B
becoming approver appeared as PW2, a resident of Muklava District,
Ganganagar, Rajasthan after passing I I standard examination in the year I 993-
94 came to his elder brother Kalyan Singh at Pune for the purposes of getting
further education while working or serving there. He was employed in Bombay
Vihar situated at Laxmi Road, Pune since June, I994. Accused No.I and C
Accused No.2 were also working at the said Bombay Vihar during the aforesaid
period as Cook and Counter Salesman respectively. After being acquainted
with each other, all the three became friends. Raju, PW2 was removed from
Bombay Vihar on 8th June, I994 whereafter he got the service at Sagar Sweet
Mart owned by Keshrimal Rathi and his son Sanjay Rathi (complainant). In
the course of his employment he used to go to the house of Rathis to bring D
Chappatis for servants of the shop, daily and thus acquainted himself with
the family members of the complainant as also their maid-servant. Raju worked

- with the Rathis for about two to two and a half months. When his request
for enhancement of salary was declined by the Rathis, he left their service.
At this time Accused No.2 went to him and informed that he too has left the E
job at Bombay Vihar and, therefore, Raju should talk to his employer to keep
Jeetu in their service. Raju requested Sanjay Rathi to employ Accused No.2
but as he demanded a salary of Rs. 1200, Sanjay Rathi expressed his inability
to provide him the job. Meanwhile Raju learnt that Accused No. I has also
left the job at Bombay Vihar. Thereafter all the three went to a room in Nagpur
Chaw! in which Accused No. I was residing and started living there. F
After being rendered jobless and the limited amount they had with them
.
being spent, they started thinking about their future. They hatched a conspiracy
and made up a plan of robbing the house of some "seth" i.e. a businessman.
On the night of 23rd August, I 994 they decided to commit theft/robbery at G
the house of Rathis. Accused No. I told the other accused that before
committing the theft/robbery they have to make some further preparations. He
suggested to purchase a knife because all the inmates of the house were to
be killed so that no-one could depose anything against them. They also
· decided to sprinkle chilly powder in the mouth and eyes of their victims to
immobilise them for easy killings by the accused. On 24th August, I 994 all H
110 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A the accused persons discussed the details of the plan to commit the theft and
killings at the house of Rathis. Accused No.2 agreed to sell his silver anklet
and out of its sale proceeds to purchase a new knife. They went to the shop
of Shrinagar Jewellers on 24th August, 1994 in the evening. Accused No.2
requested the proprietor of the shop to purchase his said silver anklet. As
B Accused No.2 was not having the purchase receipt of his anklet, the
shopkeeper refused to purchase it. However, as the accused persons were
then residing at Nagpur Chaw! which was adjacent to the Shrinagar Jewellers'
shop, the anklet was kept as pledge and they were given a sum of Rs. 90/
- as loan. They went to the shop of Jaswant (PW5) and purchased one utility
knife ofFiscer make (Article 147) for Rs. 55.
c
On 25th August, 1994 at about 11 a.m. to 12 Noon, the accused persons
went towards the house of Rathis to observe the situation. They stayed and
surveyed the said area and found that the area remained isolated during 2.00
p.m. to 4.00 p.m. They decided to commit the act of theft after killing all the
persons, whosoever were found at the house of Rathis during the aforesaid
D period only.

On 26th August, 1994 at about 8.45 a.m. the complainant Sanjay Rathi
is stated to have left his house for his shop. Thereafter Hemlata, deceased
with her husband and son arrived at the house of Rathis in connection with
E tying Rakhi to her brother PWl as she had not come for the said purpose
on the day of Rakhi, Poornima Festival on 2 lst August, 1994. Sanjay Rathi,
PWI came to his house at about I p.m. to 1.30 p.m. on his motorcycle. Sanjay
and his brother-in-law Shri Shrikant Navandhar, PW15 took their meals and
went to the complainant's shop. Accused persons left their room at about 12
Noon for going to the house of Rathis. Accused No. I was armed with the new
F knife and Accused No.2 with the old one. They had taken with them chilly
powder regarding which decision had already been taken, as according to
them its throwing in the eyes of victims would have facilitated the commission
of the crime. They reached near the house of Rathis at about 2 p.m. They saw
one motorcycle kept near the said building whicb was identified by Raju PW2
G as belonging to Sanjay Rathi, PWI. Realising that Sanjay Rathi, PW I was
at his house, they returned to the main road and watched. After about one
hour they again returned near the building of Rathis. After noticing that the
motorcycle of Sanjay Rathi was not there, they decided to execute their plan.
Accused No. I told Accused No.3 (PW2) to go-ahead into the house of Rathis
and start talking with the family members in respect of his service and by that
H time they would reach there after chaining the doors of other flats in the said

0
NARAYAN CHETANR.\M CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 111

building from outside. After the doors of all other flats were chained from A
outside, Raju (PW2) went to the flat of Rath is. He found that the door of the
flat was half open and when he peeped into the said flat he saw the maid-
servant, deceased Satyabhamabai Sutar cleaning the floor with the water. He
entered the flat and the ~ppellants followed him. Appellant Jeetu closed the
door from inside.
B
AccusP.d No.2 Jeetu threw chilly powder on the inmates of the flat who
had collected into the hall on hearing the call made by the maid-servant. All
the inmates were made to keep quite and surrender to the orders of the
accused persons lest they may be deprived of their lives with the knives
which the appellants had in their hands. The family members of Rathis were C
taken to different rooms in the flat.

Realising that the middle aged woman Meerabai, who had raised her
voice, was the lady of the house, Accused No. 1 promptly asked her about
valuables. Seeing a knife in his hand and realising the danger to her life as
also the lives of the rest of the members of the family she immediately pointed D
out a finger towards an almirah inside the room. Accused Nos. I and 2 took
her to the said room. Accused No.2 handed over the packet containing
remaining chilly powder to Raju, PW2 and directed him to sprinkle it on the
victims if they started shouting or making any other effort.

Smt. Meerabai was done to death with the knife blows inflicted by E
Accused No. I and was left to lie on bed where she died. Thereafter Babita
@ Nita was taken to another room, apparently for getting the valuables and
was killed by Accused No. I by inflicting knife injuries on her person. Her son
Chirag was also likewise killed by the aforesaid accused. Raju PW2 took Preeti
into the bath room at the instance of Accused No. I who cut a length of wire
of washing machine and used it to choke her to death, who however, survived. F
When they came out of the bathroom, they heard some noise from the
bathroom which prompted accused No. I to go again inside. In the bathroom
he found Preeti alive and told his other colleagues that 'she was still alive
and had not died'. To accomplish the conspiracy hatched he gave knife blows
to her which resulted in her death. Raju PW2 took Satyabhamabai Sutar in G
the kitchen where the accused No. I had already reached and was washing the
blood stained knife. Raju held Satyabhamabai Sutar and accused No. l gave
knife blows resulting in her death. Thereafter Raju and accused No. I went
towards a room where the married daughter of Rathis was held up by Accused
No.2. Pratik, her son was tried to be taken from her, which she resisted.
Accused No.2 assured her that he will not kill the child but will give him to H
- ..
112 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A his grandmother and threatened that ifthe child was not given to him, he will
kill the child. Hemlata was also killed by inflicting knife injuries. Accused No.2
and Raju PW2 took the child into the room where Mecrabai was lying dead
in the pool of blood. The child was suffocated by gagging and when his
movements stopped, the Accused No.2 put down the child on the floor
B saying he had died. Accused No.2 and Raju PW2 then came out and joined
Accused No. I who was standing before Hemlata. Upon enquiry about the
child she was told by Accused No.2 that the child had been given to her
grandmother. Accused No. I then caught hold of Hemlata who put some
resistence and in the process fell down. Accused No.2 gave her blows by
putting his knees on her stomach and when she was immobilised this way,
C the Accused No. I gave her knife blows on her neck with the result she also
died.

Almirahs found in the flat were emptied to the extent the accused could
put articles and other cash and valuables in the air-bag obtained from the said
flat. Before leaving the scene of occurrence Accused No. I changed his pant
D which was blood stained and also put on him khaki jerkin clothes which were
available in the house. Accused No.2 helped himself to a black shirt. Blood
stained clothes of Accused No.2 were put in the air-bag along with stolen
articles. At the time when they were about to leave the flat, the phone
installed therein started ringing. Accused No. I cut the telephone wires with
E his knife. At this stage they heard the cries of child from the room where
Meerabai was lying dead. All of them went inside and found that the child,
Pratik had not died. Despite the death spree caused, they did not think even
to leave that child alive. Accused No.2 took the knife from Accused No. I and
gave blows to the child and killed him.

F After completing the crime of theft/robbery and murders, the accused
persons came out of the house with the air-bag in which they had kept the
blood stained clothes, knives and stolen property. Vishwajit Joshi, PW9 saw
accused persons coming out of the compound wall of the concerned Himanshu
Apartments where the flat of the Rathis was located. On the road they
boarded a Ricks~aw ~nd came back to their room in Nagpur Chaw!.
G As noticed earlier, Sanjay Rathi, PWI, his brother-in-law Shrikant
Navandhar (PWI5) had left the flat before the accused attacked the victims.
Both of them went back to the house ofRathis by 6.45 p.m. Sanjay Rathi PWI
rang the door-bell and as nobody opened the door, he made inquiries from
Smt. Khara and Smt. Dhade as to whether the key of the door of his flat was
H kept at their houses. On getting reply in the negative, Sanjay Rathi made
.. -
NARAYAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.) 113

inquiries from his relatives and family members by making phone calls from A
the house of Mrs. Khara as to whether his family members had gone there
and on receiving the information in the negative he telephoned his father at
the shop. His father told him that nobody from the family members had come
to the shop nor did he receive any message from them. Sanjay Rathi went to
the shop and brought the duplicate key. Meanwhile Damu Sutar, the husband B
of the maid-servant had also come there. Sanjay Rathi PWI opened the door
with the duplicate key in the presence of Shrikant Navandhar PW15, Damu
Sutar and Smt. Shannila Dhade. Upon entering in the flat they saw the maid-
servant Satyabhamabai Sutar lying dead in a pool of blood. They rushed out
crying and saying that the police be called. On hearing the cries of co1nplainant
Sanjay Rathi, the neighbourers and by-passers got collected in front of the C
building. Two of the neighbours went to Kothrud Police Station and informed
the police that several persons had gathered in front of the Apartment in
which the flat of Rath is was situated. Entry about the information was recorded
in the Station Diary whereafter PI Vikram Pawar along with his staff rushed
to the Apartment building. The said Sh. Vikram Pawar along with Sanjay Rathi
PWI and Shrikant Navandhar, PWI 5 entered the flat and saw the maid- D
servant Satyabhamabai Sutar, Preeti, Meerabai, Pratik, Babita, Hemlata and
Chirag lying dead in pools of blood in the kitchen, bathroom, bed-room and
the store of the flat of Rathis. The almirahs were found open. Sanjay Rathi
was asked to verify the purportedly stolen articles. Sanjay Rathi was not in
a condition to check the articles on account of the shock received after E
having seen the dead bodies all around in his flat. However, after the passage
of some time and consolation by Vikram Pawar, Sanjay Rathi told the police
that a cash of Rs.85,000 besides gold and silver ornaments was missing.

Meanwhile, after reaching Nagpur Chawl, where the accused persons
were residing, Accused No.2 asked PW 2 Raju to bring liquor and some F
edibles for which he was given Rs. 200. The air-bag was opened in which they
had kept their blood stained clothes, mouth-organ, knives, camera, one bundle
of Rs. 500 currency notes denomination, one bundle of Rs. I 00 currency notes
denomination, one bundle of Rs. 50. currency notes denominations and bundles
of Rs. l 0. denominations, besides gold and silver ornaments. Raju kept for G
himself a mouth-organ, camera and a lady wrist watch of Rico make as also
some coins of Nepal origin. Mangalsutra and one HMT watch was taken
away by Accused No. I. Golden chain, three golden bangles and one golden
ring, having S.R. written on it, were taken away by Accused No.2.

Raju PW2 was asked by Accused No. I to wash the blood stained H
114 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A clothes. While washing Pant of Accused No.I Raju found one gold ring in
the pocket which he took out and kept with him. As he could not wash the
blood stained clothes of Accused No. 1 he put back the ring in the pocket
of the pant which was later on concealed in the tin roof. The accused
thereafter went to the jewellery shop where the silver anklet was pledged.
B After making the payment they got the silver anklet released. On reaching
back in the room in the Nagpur Chawl, they consumed the liquor brought by
PW2 and moved around the area for about an hour or so. Again coming back
to the said room, Accused No. l declared that he will go and hide the knives.
He went away and on his return, upon inquiry, he told that the knives were
hidden near the latrine.
c
On the next day at the instance of Accused No. I Raju brought Newspaper
"Prabhat" and "Aaj Ka Anand" wherein the incident of murders and dacoity
was reported without indicating the identity of the accused persons. In the
afternoon they purchased the Evening Newspaper "Sandayanad" which carried
further details of the incident and mentioned the name of Accused No.2 being
D probably responsible for the crime. After reading such news item they agreed
to part company and to meet at Ahmedabad on 29th August, 1994. They met
at Ahmedabad and again dispersed. Accused No. I was arrested on 5th
September, 1994, Accused No.2 on 21st November, 1994 and Raju PW2 on
15th October, 1994 from different places in Rajasthan. They made disclosure
E statements consequent to which various articles were recovered vide
panchanamas prepared in accordance with law. In the identification parades
they were identified by various witnesses.

All the three accused persons were committed to the Court of Sessions
for standing trial of various offences under the Indian Penal Code as noticed
F earlier.

After the commitment but before the commenc~ment of the trial Accused
No.3 Raju Rajpurohit sent a letter to the Commissione; of Police repenting and
expressing his wish to make a confessional statement. PI Shinde (PW 63) filed
G an application in the Trial Court along with letter of accused Raju dated 22nd
November, 1995 praying the permission of the Court for getting the confrssional
statement of the accused Raju Rajpurohit recorded. The Trial Coµrt accepted
the application and directed the Superintendent of Prisons to allow to get the
confessional statement of Raju recorded. Shri Khomane, Special Judicial
Magistrate was also directed to record the confessional statement of Raju.
H The confessional statement, as recorded by Special Judicial Magistrate (PW41)
NARAYAN CHETANRAM CHAUDHAR Y v. ST A TE OF MAHARASHTRA [SETHI, J.) 115

was received by the Trial Court in a closed envelope. A

On 3rd January, 1996 an application under Section 307 of the Cr.P.C. was
filed on behalf of the prosecution with a prayer to tender pardon to accused
_. Raju Rajpurohit, on making necessary inquiries and on the condition of his
making true and full disclosure of all the facts within his knowledge. On
receipt of the said application, the Trial Court directed the Superintendent of B
the concerned jail to produce the aforesaid accused in the Court on 4.1.1996
at 11 a.m. The arguments on the application of the prosecution were heard
after affording the advocates of the appellants an opportunity of addressing
the court. The Trial Court, after hearing accused Raju observed:
c
"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 D
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. Khomne, 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 E
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 F
Rajusingh alias Rajendra Singh Ramlal Purohit has participated into
the entire incident involved and thus his privy with all the happenings
at the time of incident.

It is clear from the record of this sessions case that there is only G
circumstantial evidence and there are no eye-witnesses of this incident,
and therefore, with a view of obtaining at the trial the evidence of any
person who have witnessed the incident, it is necessary to tender
pardon to the present accused Rajendrasingh alias Rajusingh Ramlal
Purohit as prayed by the prosecution. The accused Rajusingh alias
Rajendrasingh Ramlal Purhoit has also shown his willingness to become H
116 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A an approval and to make a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offences and the
every other persons concerned whether as principle or abetor in the
commission thereof and further shown his willingness to accept pardon
if the same is tendered to him."

B and ordered that accused Raju was tendered pardon on condition that he
'
shall make a full and true disclosure of the whole of the circumstances within
his knowledge relating to the offence. The aforesaid accused was directed to
be sent to the District Prison, Satara and be detained there until further orders.
Copies of the statement were furnished to the counsel of the appellants.
c
After recording the statement of the prosecution witnesses the learned
Trial Judge recorded the statement of the accused under Section 313 of the
Criminal Procedure Code. The Trial Court undertook a very elaborate exercise
by putting almost 600 questions to the accused with respect to the evidence
brought on record and the circumstances appearing against them. Accused
D No. I pleaded alibi by stating that he was not in Pune. Accused No.2 admitted
of being in Pune and also that he knew the Approver as they had been
working together in Bombay Vihar Restaurant. He put forth a case of there
being enmity with the Approver. He has admitted that Raju PW2 was working
in Bombay Vihar where he also worked. Accused No. I denied that he knew
E Raju PW 2 at all. None of the accused, however, led any defence evidence.
On behalf of Accused No.2 besides making oral submissions his counsel
submitted written arguments comprising of 470 pages (Exhibit 349 contained
in Vol. IV of the paperbook).

After scanning the whole of the prosecution evidence, hearing the oral
F submissions and perusing the written arguments, the Trial Court, in a very
lucid and detailed judgment, convicted and sentenced the appellants as under:

"The accused No. I 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
G
Sanjay Rathi deceased Priti Kesrimal Rathi, deceased Chirag Rathi,
deceased Hemlata Shrikant Navandhar and deceased Satyabhamabai
Damu Sutar), for the offence punishable under section 302 read with
120-B of the Indian Penal Code (for causing the death of deceased
Pratik Navandhar), and for the offence punishable u/s 120-B of the
H Indian Penal Code, and is sentenced to death and he be hanged by
.-
NARAYAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 117

neck till he is dead and to pay a fine of Rs. 10,000 I/d to suffer R.I A
for three years on all counts.

The accused No.2, Jitu is convicted for the offence punishable under
section 302 of the Indian Penal Code (for causing the death of Pratik
Shrikant Navandhar) and for the offences punishable under section
302 read with 120-B of the Indian Penal Code (for causing the death B
of deceased Meeradevi Rathi, deceased Babita alias Nita Rathi, deceased
Hemlata Shrikant Navandhar, deceased Preeti Rathi, Satyabharnabai
Damu Sutar and Chirag Rathi) and for the offence punishable under
section 120-B 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.
c
Both the accused persons are convicted for the offence punishable
under section 397 read with 120-B of the Indian Penal Code and each
is sentenced to suffer R.l. 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.
D
Both the accused persons are convicted for the offence _punishable
under section 449 read with 120-B of the Indian Penal Code and each
is sentenced to suffer R.I. for seven years and to pay a fine of Rs.
5,000 I/d to suffer R.l. for two years for such offence.

Both the accused persons are further convicted for the offence E
punishable under section 342 read with 34 of the Indian Penal Code
and each is sentenced to suffer R.I. for one year and to pay a fine of
Rs. 500 lid 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. F
Accused No. l Narayan be given set off of the period from 5.9.94 till
today and the accused No.2 Jitu be given set off of the period from
21.1.94 till today during which they were in custody during
investigation and trial."
G
Criminal Appeal Nos. 462 of 1998 and 415 of 1998 filed by the Appellants 1
and 2 respectively were dismissed by the High Court vide an elaborate
judgment. The High Court also accepted the Reference made to it by the Trial
Court for confirmation of the death sentence. Not satisfied with the judgment
of the High Court, the present appeals have bi>~n filed in this Court by special H
118 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A leave.
We have heard the learned counsel for the parties appearing in the case
and perused the record. Mr. S. Muralidhar, Advocate who appeared as amicus
curaie, has taken us through the whole record of the case besides making
legal submissions to assail the concurrent judgments, impugned herein, by
B which the appellants have been held guilty of the commission of the offences
for which they were charged and sentenced to various punishments including
the death sentence.

Mr. S. Muralidhar has attacked the statement of the Approver on various
ti
C grounds and submitted that it would be unsafe to award the appellants the
death sentence solely on the basis of testimony of PW2. He has also referred
to numerous alleged contradictions and improvements in the statement of
aforesaid witness PW2. Alternatively it has been argued that keeping in mind
the young age of the appellants, they be not deprived of their lives and
instead be deprived of their liberty though for longer period.
D
Referring to Sections 306 and 307 of the Cr.P.C. the learned counsel for
the appellants submitted that as the statement of Raju PW2 was not recorded
in terms of Clause (a) of Sub-section (4) of Section 306, his statement recorded
by the Trial Court after tendering pardon was, illegal. According to the
E learned counsel the statement of every accomplice is required to be recorded
firstly in the court of the Magistrate and subsequently in the Trial Court. As
the statement of PW2 Raju was recorded only in the Trial Court, the appellants
are reported to have lost a legal opportunity of having his second statement
enabling them to elaborately cross-examine him.

F In order to appreciate the submissions of the learned counsel a reference
to Sections 306 and 307 Cr.P.C. is necessary. Section 306 provides:

"Tender of pardon to accomplice (I) With a view to obtaining the
evidence of any person supposed to have been di:-ectly or indirectly
concerned in or privy to an offence to which this section applies, the
G 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 ...
H c'ircumstances within his knowledge relative to the offence and to
~
(
\/
I
NARAYANCHETANRAMCHAUDHARYv. STATEOFMAHARASHTRA[:sETHl,J.J· 119

every other person concerned, whether as principal or abettor, in the A
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 B
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 (J)
shall record- C
(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 D
such record free of cost.

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

(a) shall be examined as a witness in the court of the magistrate E
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.
F
(5) Where a person has accepted a tender of pardon made under sub-
section (l) 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- G
(i) to the court of session if the offence is triable exclusively by
that court or if the magistrate taking cognizance is the Chief
Judicial Magistrate;
(ii) to a court of special Judge appointed under the Criminal Law H
120 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
.A 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
~agistrate who shall try the case himself."

B Section 307 provides:

"Power to direct tender ofpardon-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
c concerned in, or privy to, any such offence; tender a pardon on the
same condition to such person."

A perusal of both the-Sections clearly indicates that Section 306 is applicable
in a case where the order of commitment has not been passed and Section
D 307 would be applicable after commitment of the case but before the judgment
is pronounced. The provisions of sub-section (4)(a) of Section 306 would be

-
attracted only at a stage when the case is not committed to the Court of
Session. After the commitment, the pardon is to be granted by the Trial Court
subject to the conditions specified in sub-section (I) of Section 306, i.e.
approver making a full and true disclosure of the whole of the circumstances
E within his knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof. it may
be noticed that under the old Code, only the District Magistrate had the·
power to tender pardon, at any stage of the investigation, enquiry or trial
even though he himself might not be holding such enquiry or trial. Pardon
F could be granted by the District Magistrate even during the pendency of the
trial in the Sessions Court. By Criminal Law Amendment Act, 1952, old
sections 337 to 339 were substituted by sections 306 to 308 of the C:ode of·
Criminal Procedure conferring the power to tender pardon only to Judicial
Magistrates and the Trial Court. Section 307 - in its present form - does not
contemplate the recording of the statement of the approver twice as argued.
G Accepting the submissions made on behalf of the appellant would amount to
legislate something in Section 307 which the Legislature appears to have
intentionally omitted.

In Suresh Chandra Bahri v. State of Bihar, [1995] Supp. 1 SCC 80 this
Court while dealing with the case where the Approver was granted pardon
H by the committal court observed that every person accepting the tender of I ,
NARA YAN CHETANRAM CHAUDHARYv. STATE OF MAHARASHTRA [SETHI, J.) 121

pardon made under sub-section (1) of Section 306 has to be examined as a A
witness in the court of the Magistrate taking cognizance of the offence and
in the subsequent trial, if any. The examination of the accomplice in such a
situation was held to be mandatory which could not be dispensed with.
Referring to a Full Bench Judgment of the Gujarat High Court in Kalu Khoda
v. State, AIR (1962) Guj. 283 this Court observed that:
B
"If the said defect of not examining the approver at the committal
stage by the committing Magistrate is rectified later, no prejudice can
be said to be caused to an accused person and therefore the trial
cannot be said to be vitiated on that account."

There is no legal obligation on the Trial Court or a right in favour of C
the accused to insist for the compliance with the requirement of Section 306(4)
of the Cr.P.C. Section 307 provides a complete procedure for recording the
statement of an accomplice subject only to the compliance of conditions
specified in Sub-Section ( 1) of Section 306. The law mandates the satisfaction
of the court granting pardon, that the accused would make a full and true D
disclosure of the circumstances within his knowledge relative to the offence
and to every other person concerned, whether as principal or abettor, in the
commission thereof. It is not necessary to comply with the requirement of
Section 306(4) when the pardon is tendered by the Trial Court. The Trial
Court, in this case has taken all precautions in complying with the provisions
of Section 306(1) before tendering pardon to accused Raju, who later appeared E
as PW2. We do not find any violation of law or illegality in the procedure for
tendering the pardon and recording the statement of PW2.

It has been further argued by the learned counsel for the appellants that
as the statement of the Approver was recorded after an unexplained prolonged
delay, the same could not be made the basis for conviction of the accused. F
In support of his submissions he has relied upon a judgment of this Court
in Lal Chand & Ors. v. State of Haryana, [1984] 1 SCC 686. In Lal Chand's
case this Court while dealing with the peculiar facts and circumstances of the
case found that the prosecution version of the fraudulent transaction was
extremely doubtful. In that context it was observed that the evidence of the G
Approver could not improve the prosecution case. The testimony of the
Approver is required to be viewed with great caution inasmuch as he was
self- confessed traitor and his earlier statements have been kept back by the
prosecution which gave rise to the adverse inference that the earlier statements
did not support the prosecution. Keeping in view the fact of the Approver's
statements made after 20 months, while exercising due care and caution the H
122 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A court found that his evidence was not reliable to be made the basis for
returning the finding of guilt against the accused persons.

Such is not the position in the instant case. Otherwise the words of the
section "at any time after commitment of the case but before judgment is
passed" are clearly indicative of the legal position which the Legislature
B intended. No time limit is provided for recording such a statement and delay
by itself is no ground to reject the testimony of the accomplice. Delay may
be one of the circumstances to be kept in mind as a measure of caution for
appreciating the evidence of the accomplice. Human mind cannot be expected
to be reacting in a similar manner under different situations. Any person
C accused of an offence, may, at any time before the judgment is pronounced,
repent for his action and volunteer to disclose the truth in the court. Repentance
is a condition of mind differing from person to person and from situation to
situation. In the instant case PW2 appears to be repenting upon his action
from the very beginning as is evident from the two notes (Exhs. 84 and 85)
recovered from his pocket at the time of his arrest. It appears that the
D apprehension of his colleagues being convicted and sentenced prevented him
from taking a final decision at an early stage to make a truthful statement. The
defence has not put any question to the aforesaid witness which could
suggest that the delay in PW2 becoming the Approver by itself was fatal to
the prosecution case. In one of the notes Exhibit 84 dated I I. IO. I 994 addressed
E to his parents and brother he is shown to have stated:

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

In Exhibit 85 he is reported to have informed the police:

G "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 ofrobbery and murder with my friends Narayan and Jeetu.
I only assisted my friend Jeetu and Naryan in committing those seven
gruesome murders on that fateful days. I had not assaulted any one
H but committing murder and helping to commit the same are both sins .
NARAYAN CHETANRAM CHAUDHARYv. STATE OF MAHARASHTRA [SETHI, J.] 123

I am burning in that sins. I have repentance over my act and I want A
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. l l.10.94."

We, therefore, do not find any substance in the submissions of the

- learned defence counsel that as the statement of the Approver was recorded
after a prolonged delay, no reliance could be placed upon it. The delay in
granting the pardon may be a just criticism, where it is found that the pardon
had been tendered at the end of the trial and in effect was intended to fill up
B

the lacunae in the prosecution case. Such is not the present case.

Learned defence counsel has then contended that conviction based
c
upon the uncorroborated testimony of the Approver is neither safe nor proper
particularly in a case where extreme penalty of death is awarded. Section 133
of the Evidence Act provides that an accomplice is a competent witness

-- against an accused person and the conviction is not illegal merely because
it proceeds on uncorroborated testimony of the accomplice. No distinction is
made between an accomplice who is or is not an Approver. As both have
been treated alike, the rule of corroboration applies to both. Accomplice's
D

evidence is taken on record as a matter of necessity in cases where it is
impossible to get sufficient evidence of a heinous crime unless one of the
participators in the crime is disposed to disclose the circumstances within his E
knowledge on account of tender of pardon.

Taylor, in his treatise has observed that "accomplices who are usually
interested, and always infamous witnesses, and whose testimony is admitted
from necessity, it being often impossible, without having recourse to such
evidence, to bring the principal offenders to justice". [Taylor in "A Treatise F
on the Law of Evidence" - (1931) Vol. l Para 967].

This Court in Suresh Chandra Bahri v. State of Bihar, [1995) Supp. I
sec 80 observed that:
"Since many a times the crime is committed in a manner for which no G
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 H
124 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.
t'
A 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
B 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
c not implicate himself to the same extent as the other accused because
all that Section 306 requires is that pardon may be tendered to any
person believed to be involved directly or indirectly in or privy to an
offence."

The evidence of the Approver must, however, be shown to be of a
D reliable witness.

In Jtinanendra Nath Ghose v. The State of West Bengal, [1960) 1 SCR
126 this Court observed that there should be corroboration in material
particulars of the Approver's statement, as he is considered as a 5elf-confessed
E traitor. This Court in Bhiva Doulu Patil v. State of Maharashtra, AIR (1963)
SC 599 held that the combined effect of Sections 133 and 114 illustration (b)
of the Evidence Act was that an accomplice is competent to give evidence
but it would be unsafe to convict the accused upon his testimony alone.
Though the conviction of an accused on the testimony of an· accomplice
cannot be said to be illegal, yet the courts will, as a matter of practice, not
F accept the evidence of such a witness without corroboration in material
particulars. In this regard the court in Bhiv Doulu Patil's case observed:

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

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

It cannot be doubted that under that section a conviction based
merely on the uncorroborated testimony of an accomplice may not be
H illegal, the courts nevertheless cannot lose sight of the rule of prudence
NARAYAN CHETANRAM CHAUDHAR Y v. STA TE OF MAHARASHTRA [SETHI, J .] 125
and practice which in the words of Martin B. in R v. Boyes, ( 1861) 9 A
Cox CC 32 "has become so hallowed as to be deserving of respect"
and the words of Lord Abinger "it deserves to have all the reverence
of the law". This rule of guidance is to be found in illustration (b) to

- S.114 of the Evidence Act which is as follows:

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

Both sections are part of one subject and have to be considered
together. The Privy Council in Bhuboni Sahu v. The King, 76 Ind
App, 147; AIR (I 949 PC 257) when its attention was drawn to the
judgment of Madras High Court in In re Rajagopal /LR (1994) Mad C
308: (AIR 1944 Mad 117) where conviction was based upon the
evidence of an accomplice supported by the statement of a co-accused,
said as follows:

"Their Lordships......... would nevertheless observe that Courts D
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 E
position in which he can hardly fail to have a strong bias in favour
of the prosecution; the real danger is that he is telling a story which
in its general outline is true, and it is easy for him to work into the
story matter which is untrue."

The combined effect of Ss.13 3 and 114, illustration (b) may be stated F
as follows:

According to the former, which is a rule of law, an accomplice is
competent to give evidence and according to the latter which is a rule
of practice it is almost always unsafe to convict upon his testimony G
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 CJ. in R. v. Baskerville 1916-2 KB 658 as
~M: H
126 SUPREME COURT REPORTS (2000) SUPP. 3 S.C.R.

A "There is no doubt that the uncorroborated evidence of an
accomplice is admissible in law (R. v. James Atwood, (1787) l 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
B judge should point out to the jury that it is within their legal province
to convict upon such unconfirmed evidence (R. v. Stubbs, (1855)
Dears CC 555; in re, Meunier, 1894-2 Q.B. 415)."

Again in Dagdu & Ors. v. State of Maharashtra, [1977] 3 SCC 68 this
C Court declared:

"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
D
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

E
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
F 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
G 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 it safe to dispense with it.
•
In King v. Baskerville, (1916) 2 KB 658, the accused was convicted
H for committing gross acts of indecency with two boys who were
NARAYAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA [SETHI, J.] 127

treated as accomplices since they were freely consenting parties. A
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 B
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 C
properly cautioned by the Judge the Jury nevertheless convicted the
prisoner, the Court would not quash the conviction merely upon the
ground that the accomplice's testimony was uncorroborated.
In Rameshwar v. State of Rajasthan, [1952] SCR 377, this Court
observed that the branch of law relating to accomplice evidence was D
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 E
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 particular case.
In Bhuboni Sahu v. The King, (76 IA 147), the Privy Council after
noticing Section 133 and illustration (b) to Section 114 of the Evidence F
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 G
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 H
128 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
B 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
c 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
D Ravinder Singh v. State ofHaryana, [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
E has now become virtually a part of the law that it is corroborated in
material particulars."

To the same effect is the judgment in Ba/want Kaur v. Union Territory, ·
Chandigarh, [1988] 1 SCC I.
F For corroborative evidence the court must look at the broad spectrum
of the Approver's version and then find out whether there is other evidence
to corroborate and lend assurance to that version. The nature and extent of
such corroboration may depend upon the facts of different cases. Corroboration
need not be in the form of ocular testimony of witnesses and may be even
G in the form of circumstantial evidence. Corroborative evidence must be
independent and not vague or unreliable. Relying upon its earlier judgment
in Suresh Chandra Bahri's case (supra) this Court in Niranjan Singh v. State
of Punjab, JT (1996) 5 SC 5 82 held that once the evidence of the Approver
is held to be trustworthy, it must be shown that the story given by Approver
so far as an accused is concerned, must implicate him in such a manner as
H to give rise to a conclusion of guilt beyond reasonable doubt. Insistence
NARAYAN CHET AN RAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 129

- upon corroboration is based on the rule of caution and not merely a rule of
law.
A

-
From the judgment of the Trial Court as well as the High Court it is
crystal clear that the courts were conscious of the credibility of an Approver's
witness and insisted upon the corroborative evidence in material particulars
of the depositions made by PW2. The Trial Court, after referring to various B
judgments of this Court and the High Courts observed:

"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 Territory
a/Chandigarh, AIR (1986) SC 1438; Sureshchand and others v. State C
of Bihar, (1994) 2 Crimes 1033 and Niranjan Singh v. State ofPunjab,
[1996] 2 Supreme Court Cases 13 by the Hon'ble Supreme Court and
the Patna High Court and more particularly the latest decision of
Hon'ble Supreme Court as stated above, in mind, we will have to
consider the evidence of approver Raju Rajpurohit (PW No.2) to see D
as to whether his evidence is reliable and whether the same is
corroborated in material particulars to assume its trueness first and
then we will have to consider the other circumstantial evidence against
the accused persons.

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

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

(1) That both the accused persons viz. Narayan and Jitu with approver
Raju (P.W. 2) conspired on 23-8-94 to commit theft at the house of
complainant Sanjay Kesrimal Rathi and to kill all the persons who so G
ever may be found at his house/flat at the time of such theft and
thereby committed an offence punishable under section 120-B of the
Indian Penal Code.

(2) That both the accused persons alongwith approver Raju (P.W.
No.2) in pursuance to the conspiracy between them committed house H
130 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A tresspass into the house/flat ofcomplainant Sanjay Kesrimal Rathi in
order to commit the dacoity i.e. theft of valuables and to commit
murders of all the persons whosoever may be found in the said flat
at the time of such dacoity or theft and thereby committed an offence
punishable under section 449 read with 120-B of the Indian Penal
Code.
B
(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
c closing the door at the time of entry itself by the accused No.2 Jitu
and thereby committed an offence punishable under section 342 read
with 34 of the Indian Penal Code.

(4) Both the accused persons in pursuance of conspiracy with approver
Raju (P. W. No.2) committed theft of cash of Rs.85,000 and other
D
ornaments such as one wrist watch (Art. 78), gold ring (Art. 80) gold
necklace (Art. 103) foreign coins (Art. 138), three coins (Art. 183)(1),
(B-1 ), Camera (Art. 160), ladies wrist watch (Art. l 62)(b), mouth organ
(Art. 182), gold ring (Art. 185), gold chain (Art.186), three bangles
(Art. 186) etc. and for committing such theft first wrongfully restrained,
E 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,
Priti Kesarimal Rathi, Hemlata Shrikant Navandhar wife of Srikant
Navandhar, Satyabhamabai Damu Sutar the maid servant, Chirag Rathi
F and Pratik S/o Shrikant Navandhar by a weapon.(Utility knife) chhuri
(Art.14 7) and thereby committed an offence punishable under section·
397 read with 120-B of the Indian Penal Code.

5. That it was accused No. I Narayan who voluntarily caused the
deaths of deceased Meeradevi Kesarimal Rathi, deceased Babita alias
G Nita Sanjay Rathi wife of complainant Sanjay Rathi, deceased Preeti
Kesrimal Rathi deceased Hemlata Shrikant Navandhar wife of Shrikant
Navandhar, Chirag Rathi son of Sanjay Rathi and the maid servant
Satyabhamabai Damu Sutar by personally causing them injuries with
weapon chhuri (Art.147) with intention to cause their deaths and
H thereby committed offences punishable under section 302 of the Indian
NARA YAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 131
. Penal Code for causing their deaths. A
6. The accused No.1 Narayan being one of the conspirator in causing
the death of all the persons whosoever were found at the said flat at
the time of commission of the robbery, committed offence punishable
under section 302 read with 120-B of the· Indian Penal Code in concern
with the death of Pratik Navandhar. B
7. The accused No.2 Jitu being conspirator alongwith the accused
No.I Narayan in committing the murders of the above referred persons
viz. Meeradevi Kesrimal Rathi, Hemlata Srikant Navandhar, Babita
alias Sanjay Rathi, Preeti Rathi and thereby committed an offence
punishable under section 302 read with 120-B of the Indian Penal C
Code for causing their deaths.

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

The High Court referred to the chart prepared by the prosecutor wherein
62 corroborative circumstances were mentioned along with the names of the
corroborative witnesses and the substance of corroborative evidence. All
corroborative evidence, to the testimony of Raju PW2 has been considered E
by the High Court in its judgment in paras 60 to 188 whereafter it was
concluded:

"Having carefully considered the various submissions made on behalf
of the accused with regard to the order of conviction and after going
through the record as also judgment of the trial court and taking into F
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 G
corroboration on the material particulars, in our opinion, is
unassailable."

We have minutely scrutinised the evidence of PW2 and the corroborative
evidence noticed by both the Trial Court as well as the High Court and find
no substance in the submission of the learned counsel for the appellants that H
132 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A the testimony of PW2 has not been corroborated in material particulars. The .
statement of PW2 is vivid in explanation and inspires full confidence of the
court to pass the conviction on the appellants for the offence~ with which
they were charged. The corroborative evidence to the aforesaid statement
leaves no doubt in the mind of the court regarding the involvement of the
B appellants in the commission of the crime for which they have bee,i convicted
and sentenced.

Learned counsel for the appellants took us through the whole of the
testimony of PW2 which is Exhibit No. 74 forming part of Vol.IV of the
paperbook and spread over pages 104 to 345. He has taken pains to point out
C some alleged discrepancies in his statement purportedly with respect to the
material particulars and contended that as PW2 has made improvements in his
....
statement on material particulars, it would not be safe to rely upon his
testimony for convicting the appellants and sentencing them to death. The
alleged improvements and contradictions are stated to have been elicited from
the cross-examination of PW2 as noticed in his statements from paras 77 to
D 91(pages275 to 324 of Vol.IV of the paperbook). The portion of the earlier
statements put to the witnesses, do not, in fact show any contradiction much
less in material particulars. Most of the alleged improvements are in fact the
details and description of the facts already stated by PW2 in his confessional
statement or before the police during his investigation on 15.10.1994. The
E witness is stated to have improved by using the words "due to that" for the
reason to his coming to Pune for further education and employment. Omission
of the aforesaid words in the earlier statement cannot, in any way, be termed
as material on facts. Some alleged omissions in relation to his statement
before the court, during the trial, are referred to his statement before the
police. It may be kept in mind that what was stated by him on 15.10.1994 was
F not the statement of PW2 in terms of Section 161 of the Cr.P.C. but was only
the substance of the interrogation recorded by the Investigating Officer. The
aforesaid statement cannot, in any way, be termed to be a statement recorded
under Section 161 which could be used for the purpose of contradiction of
the witness under Section 162 of the Cr.P.C. Similarly, the alleged contradiction
G of not mentioning the "eyes" and instead mentioning the "mouth" of the
victims for the purposes of sprinkling of the chilly powder cannot be termed
to be a major contradiction or improvement particularly when the witness
himself says that by "mouth" he meant "eyes" as well. It may be worthwhile
to notice that wherever any alleged contradiction or improvement was
confronted to the witness, the learned Trial Court has made a note of it in
H the statement, at the time of recording of the deposition of the witness. The
NARAYAN CHETANRAMCHAUDHARYv. STA TE OF MAHARASHTRA [SETHI, J.] 133

notes unambiguously indicate that the alleged improvement made by PW2 in A
his deposition at the trial, are no way in material particulars.
Only such omissions which amount to contradiction in material
particulars can be used to discredit the testimony of the witness. The omission
· in the police statement by itself would not necessarily render the testimony
of witness urireliable. When the version given by the witness in the Court B
is different in material particulars from that disclosed in his earlier statements,
the case of the prosecution become doubtful and not otherwise. Minor
contradictions are bound to appear in the statements of truthful witnesses as
memory sometimes plays false and the sense of observation differ from
person to person. The omissions in the earlier statement if found to be of C
trivial details, as in the present case, the same would not cause any dent in
the testimony of PW2. Even if there is contradiction of statement of a witness
on any material point, that is no ground to reject the whole of the testimony
·of such witness. In this regard this Court in State of Him.achal Pradesh v.
Lekh Raj & Anr., (1999) 9 Supreme Today 155 (in which one of us was a
party), dealing with discrepancies, contradictions and omissions held: D
"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 incidence there may occur E
minor discrepancies, such discrepancies in law may render credential
to the depositions. Parrot like statements are disfavoured by the
courts .. In order to ascertain as to whether the discrepancy pointed
out was minor or not or the same amounted to contradiction, regard
is required to be had to the circumstances of the case by keeping in
view the social status of the witnesses and environment in which F
such witness was making the statement. This Court in Ousu Varghese
v. State of Kera/a, [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 G
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 & Anr., [1981] 2 SCC 752 held
that in the depositions of witnesses there are always normal
discrepancy, however, honest and truthful they may be. Such H
134 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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.

B Referring to and relying upon the earlier judgments of this Court in
State of U.P. v. MK Anthony, AIR (1985) SC 48; Tehsildar Singh and
Anr. v. State ofU.P., AIR (1959) SC 1012; Appabhai andAnr. v. State
of Gujarat, JT (1988) 1 SC 249; Rami alias Rameshwar v. State of
Madhya Pradesh, JT (1999) 7 SC 247; Bhura alias Sajjan Kumar v.
State of Madhya Pradesh, JT (1999) 7 SC 247 and this Court in a
c recent case Leela Ram v. State of Haryana and Anr., JT (1999) 8 SC
274 held:
"There is bound to be some discrepancies between the narrations of
different witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same should not be
D used to jettison the evidence in its entirety. Incidentally, corroboration
of evidence with mathematical niceties cannot be expected in criminal
cases. Minor embelishment, there may be, but variations by reason
therefor should not render the evidence of eye witnesses unbelievable.
Trivial discrepancies ought not to obliterate an otherwise acceptable
evidence ..... .
E
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
F depends upon individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and to discard a piece of
evidence on the ground of his reaction not failing within a set pattern
is unproductive and a pedantic exercise."
On an analysis of the statement of PW2 (which is part of Vol. IV of the
G paperbook}, his statement under Section 161 of the Cr.P.C. and the deposition
made by him on 15.10.1994 during investigation (which is part of Vol.III of the
paperbook) we have come to a conclusion that there is no material improvement,
much less contradiction in the deposition made by him before the Trial court
after being granted pardon. The so-called improvements are in fact the details
H of the narrations extracted by the Public Prosecutor and the defence counsel

J
'I
NARAYANCHETANRAM CHAUDHARYv. STATE OF MAHARASHTRA [SETHI, J.] 135

in the course of his examination-in-chief and cross-examination. A
Mr. S. Muralidhar has submitted in the alternative that even if the
conviction of the appellants is upheld, they may not be sentenced to death
keeping in view their young age and the possibility of their being reformed.
He has further contended that in no case Jeetu, the appellant No.2 can be
sentenced to death as he is alleged to have killed only one child. We are not B
impressed by this submission as well. While dealing with the question of
sentence the Trial Court, after referring to various judgments of this Court
held:

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

(1) Both the accused persons and Approver Raju selected the place
c
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 D
about commission of robbery and killings by discussing about it.
Securing weapon i.e. Chhuri (Art.147) and also surveyed the area
around the building housing the flat of Rathi on the earlier day.
(3) Both the accused and approver Raju, on the suggestion of accused
No. I Narayan agreed to kill all the persons whosoever are found at E
the house/flat of Rathi's at the time of commission of such robbery
to eliminate all the possible eye wi(nesses 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 F
of those whosoever found in the house/flat of Rathi at the relevant
time. One could have understood ifthe accused No. I Narayan would
have said and all of them would have agreed to take Chhuri (Art.14 7)
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 G
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 H
136 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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. l Narayan, killed deceased
Meeradevi Kesrimal Rathi, deceased Nita alias Babita Rathi, deceased.
Hemlata Shrikant Navandhar deceased Satyabhamabai Damu Sutar,
B deceased Priti Rathi and a small child Chirag Rathi by taking them to
various rooms in the flat and accused No.2 Jitu killed the child Pratik
Navandhar, even though all the said ladies were saying that the
accused persons may take away all that they wanted but should not
kill them. Thus inspite of this, they have killed the said persons even
it was not necessary for them for committing the robbery. They have
naturally co-operated with each other actively in such killings.
(6) The evidence of Approver Raju (P.W. No, 2) further disclosed that
in the beginning he asked deceased Meeradevi, the eldest lady member
in the family to come with them to their bedroom and thereafter he and
accused No. 2 Jitu took her to her bedroom and then the accused No. l
D Narayan assaulted her with Churri (Art.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.
E (7) The evidence of approver Raju (P.W.No.2) further discloses that
the accused No. I Narayan assaulted Nita alias Babita with Churri
(Art. I47) even though sl:\e was ready to give whatever she was
having and was praying for mercy because she was having a small
child aged I Yz years old and she was pregnant and expected a child
very soon. However, the accused No.1 Narayan or any of the accused
F
did not feel any mercy for her and accused No. I Narayan assaulted
her with Churri (Art. I47) including giving stroke into her stomach as
if he wanted to kill the foetus, and also after she fell down, also
assaulted her son Chirag with the Churri (Art. 147).
(8) The accused No. I Narayan assaulted the maid servant with the
G
Churri (Art. 147) so forcibly that he caused her as many as 12 external
injuries and 5 internal injuries. The medical evidence shows that out
of the external injuries, four external injuries were on the palm showing
that the said maid servant Satyabhamabai Sutar tried to save herself
getting Churri blows on her vital part of her body by taking the same
H on her palm. The said fact, however, did not make the accused No.1
NARAYAN CHETANRAM CHAUDHARYv. STATE OF MAHARASHTRA [SETHI, J.] 137

Narayan giving further blows/assault to her with the Churri. It shows A
merciless killing.

(9) The evidence further discloses that deceased Preeti 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. I Narayan assaulted B
her with the Churri on her neck which resulted into her death.

(10) The prosecution evidence further discloses that the accused No.2
Jitu demanded her son from deceased Hemlata Navandhar and when
she refused to give him by saying that they may kill him, on that the
accused No. 2 Jitu falsely stated her that he would give her child to C
his grandmother knowing fully well that they have already done her
to death and further threatened that they will kill her son if she does
not give her son to him, therefore she gave her son to accused No.2
Jitu and thereafter the accused Jitu after going into the bedroom of
deceased Meeradvi gagged the mouth and nostrils of deceased Pratik D
as a result of which his movements stopped and on that the accused
No.2 Jitu put him on the floor. Subsequently when they were about
to leave the said flat, on hearing the cry of the small child Pratik,
accused No.2 Jitu alongwith the other accused Narayan and approver
Raju went near him and there the accused No.2 Jitu took the Churri
(Art.I47) from accused No.I Narayan and assault Pratik on his neck E
causing his instant death. The words uttered by him at that the like
"the child was still alive" shows his merciless and cruel nature.

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

(12) Thus, both the accused killed helpless five ladies and two children
who being the weaker section of the society in fact who needs
protection from the society.
G
Thus the acts of both the accused in killing the said five ladies and
two children was of extreme brutal involving exception depravity as
contemplated by the Hon 'ble Supreme Court in· the above referred
Bachansingh's case, it was nothing less that butchering them."

The High Court while dealing with this aspect observed: H
138 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A "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
B 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
c 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
D 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
E 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
F representative of an Indian household, they were women read up in
the atmosphere of domesticity. The eldest of them, Meerabai, 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
G 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
H gone amuck. We have ample testimony with regard to this, as discussed .--._
NARA YAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA [SETHI, J.] 139
earlier. A
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 B
execution, in our opinion, more than upsets us. Except the young ages
referred to by Learned Advocate for the defence, there is nothing on
record to indicate about either their past behaviours or the behaviour
in course of the trial."

and concluded: c
"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 D
recovered is before the court by way of articles. For the rest, there
is nothing on record. Killing of adult as possible witnesses can be
explained away by the accused but the manner in which each of them
were dealt with several blows coupled with cruelty done to the children
which was totally wanton and senseless, and blows given in the
stomach of a pregnant woman, who has been inflicted a fatal wound, E
it all taken together along with the position culled out from the
various judicial pronouncements referred to above, in our opinion
there is no escape from coming to the conclusion that they fall in the
category of the rarest of the rare cases."

Referring to the judgment delivered in Bachan Singh v. State of Punjab, F
[1980] 2 SCC 684 this Court in Ram Deo Chauhan v. State ofAssam, (2000)
5 Supreme Today 312 has held:

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

The Trial Court, after referring to various judgments, concluded:

"In the case in our hand, it is apparently a pre-planned, cold-blooded, H
140 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 of2-l/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
B view, a rarest of the rare cases which is of exceptional nature. Facts
and circumstances of the case justify the extreme penalty provided
under Section 302 IPC. The accused seems to be a menace to the
society and in my view, sentence of life imprisonment would be
altogether inadequate, because the crime is so brutal, diabolical and
c revolting as to shock the collective conscience of the community.
Extreme penalty, in my view, is necessary in such cases to protect the
community and to deter others from committing such crime."
The High Court also referred to various judgments of this Court and
found on facts:
D "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
E 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
F have not been able to lay our hands upon any observations of the
Apex Court and none has been brought to our notice during the
course of arguments that even if all the aggravating circumstances are
present in a particular given case, single circumstance of the accused
being too young or too old would outweigh other aggravating
circumstances and the court must on the basis of a single circumstance
G
grant lighter punishment. Having given our deep and thoughtful
consideration and after giving due weight to the mitigating as well as
aggravating circumstances which have been referred to above, we are
of the view that the accused in the present case must be given death'
sentence. The present is one of the rarest of rare cases in which
H infliction of extreme penalty is called for."
NARAYAN CHETANRAM CHAUDHARY v. STA TE OF MAHARASHTRA [SETHI, J.] 141
It is true that in a civilised society a tooth for tooth, and a nail for A
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 B
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 C
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." D
After going through whole of the evidence, perusing the record,
thoughtfully considering the submissions made before us and before the Trial
Court as well as the High Court, we have come to an unmistakable conclusion
that the present case is one of the rarest of rare cases warranting the extreme
penalty imposable by law. The case of the appellant No.2 Jeetu is :not E
distinguishable. But for his active participation in the conspiracy and its
execution, accused No. I could not have succeeded in committing the murder
of six persons including a pregnant woman and a teenaged child. The manner
in which Jeetu, appellant No.2 committed the murder of Pratik is not only
ghastly but reflects his beast like mental attitude. The appellants do not p
deserve any sympathy from the law and so.ciety.

There is no merit in these appeals which are accordingly dismissed by
upholding the conviction and sentence awarded to the appellants by the Trial
Court and confirmed by the High Court.

We record our appreciation of Mr. S. Muralidhar, learned counsel G
appearing for the appellant for his hard work and the assistance rendered to
us in disposal of the present case.

VM Appeals dismissed.