# DAGDU & OTHERS ETC v. STATE OF MAHARASHTRA

- **Citation:** [1977] 3 S.C.R. 636
- **Court:** Supreme Court of India
- **Decided:** 1977-04-19
- **Case number:** Crl. A. Nos. 437 & 438 of 1976
- **Bench:** Y. V. Chandrachud, P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dagdu-others-etc-v-state-of-maharashtra-7222
- **Pages:** 28

## Headnote

. Evidence Act 1912-Sections 114 illustration (b) and
133-Accomplice
01dence, whether a competent ·witness-Whether conviction can be based on
u_ncorr&boratul. evidence of an accomplice-Appreciation-Rule of corroboratlon-Presumpllon by courts.
Criminal Procedure Code 1989-Sections 163, 164, 367(5) and 554--Confessional statements-Criminal Manual 1960 oj Bombay High Court-PaYa 18
-Failure to comply with Sec. 164(3) and High Court circulars if renders confessions inadmissible in evidence-Evidence Act, Section 29.
C:iminal Procedure Code 1973- Sections 235, 354-Hearing, accused on the
question of sentence-I/ mandatory-If appellate court can give hearing, on
failure by the trial court.
Accused No. 1 though in her thirties had entered a period of premature
menopause. She was anxious to get a child which could only happen if her
menstrual cycle was.restored. She used to consult quacks and Mantriks in order
to help get a child. Accused No. l's mother was accredited with sixth sense
in the matter of discovery of treasure trove.
She had oracled that a treasure
trove Jay buried in accused No. l's house underneath the Pimpal tree. The
Pimpal tree is believed to be the haunt of Munjaba, who is supposed .to be the
spirit of an unmarried Brahmin boy. Accused Nos. 1 and 2 consulted quacks
who prescribed that virgins should be offered as sacrifice to Munjaba and to
propitiate the deity, blood from their private parts be sprinkled on the food
offered by way of 'Naivedya'. Five small girls about 10 years of age, a year old
infant and 4 women in their
mid-thirties
were found
murdered
between
14-11-1972 and 4-1-1974 in a villa~e called Manawa!. The murders of these 10
females showed significant similarities in pattern and conception. The time and
place chosen for crime, preference for females as victims, the nature of injuries
caused to them, the strange possibility that the private
parts of some of the
victims were cut in order to extract blood, the total absence of motive for killing
these very girls and women, the clever attempt to dcxlge the police and then to
put them on a false scent and the' extreme brutality surroundings the crimes gone
to the case an eerie appearance.
Eighteen persons were put up for trial before the Session Judge for the 10
murders. Two out of these persons were tendered pardon and were examined
in the case as approvers. Accused No. 6 died during the trial. The Sessions
Judge acquitted accused 4, 5, 7, 8 and 13 to 16. Accused No. l and 2 were
convicted under s. 302 read with s. 120-B and section 34 of the Penal Code.
Ac:used No. 1, 2 and 3 were sentenced to death while accused No. 9 to 12
were sentenced to life imprisonment. The· matter went to the High Court in the
form of various proceedings. The High Court acquitted accused No. 1 and
2 holding that the offence of conspiracy which formed the gravamen of the
eharge against them was not proved. Since the charge of conspiracy failed and
since it was a common ground that accused No. 1 and 2 had not taken any
direct part in the commission of the murders; the High Court held that they
were entitled to acquittal on all the charges.
The High Court dismissed the
appeal filed by accused No. 3 holding that he was responsible for the first 4
murders and confirmed his conviction under s. 302 read with s. 34 as also the
sentence of death imposed upon him. The High Court dismissed the State's
appeal against acquittal of accused No. 4 and 5 but allowed the State's appeal
and enhanced the sentence of accused No. 9 to 12 to death.
Criminal Appeal No. 437 of 1976 was filed by accused Nos. 9 to 12. Criminal
Appeal No. 438 of 1976 was filed by accused No. 3 and Criminal Appeal No.
441 of 1976 was filed by the State of Maharashtra against acquittal of accused
Nos. 1 and 2. The Court acquitted accused No. 12 by giving him the benefit
of doubt and while dismissing the three .appeals.
•
DAGDU v. MAHARASHTRA (Chandrachud, I.)
63 7
HELD : (1) There is no antithesis betweens. 133 and illustratio

## Text

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636
DAGDU & OTHERS ETC.
v.
STATE OF MAHARASHTRA
April 19, 1977
{Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
. Evidence Act 1912-Sections 114 illustration (b) and
133-Accomplice
01dence, whether a competent ·witness-Whether conviction can be based on
u_ncorr&boratul. evidence of an accomplice-Appreciation-Rule of corroboratlon-Presumpllon by courts.
Criminal Procedure Code 1989-Sections 163, 164, 367(5) and 554--Confessional statements-Criminal Manual 1960 oj Bombay High Court-PaYa 18
-Failure to comply with Sec. 164(3) and High Court circulars if renders confessions inadmissible in evidence-Evidence Act, Section 29.
C:iminal Procedure Code 1973- Sections 235, 354-Hearing, accused on the
question of sentence-I/ mandatory-If appellate court can give hearing, on
failure by the trial court.
Accused No. 1 though in her thirties had entered a period of premature
menopause. She was anxious to get a child which could only happen if her
menstrual cycle was.restored. She used to consult quacks and Mantriks in order
to help get a child. Accused No. l's mother was accredited with sixth sense
in the matter of discovery of treasure trove.
She had oracled that a treasure
trove Jay buried in accused No. l's house underneath the Pimpal tree. The
Pimpal tree is believed to be the haunt of Munjaba, who is supposed .to be the
spirit of an unmarried Brahmin boy. Accused Nos. 1 and 2 consulted quacks
who prescribed that virgins should be offered as sacrifice to Munjaba and to
propitiate the deity, blood from their private parts be sprinkled on the food
offered by way of 'Naivedya'. Five small girls about 10 years of age, a year old
infant and 4 women in their
mid-thirties
were found
murdered
between
14-11-1972 and 4-1-1974 in a villa~e called Manawa!. The murders of these 10
females showed significant similarities in pattern and conception. The time and
place chosen for crime, preference for females as victims, the nature of injuries
caused to them, the strange possibility that the private
parts of some of the
victims were cut in order to extract blood, the total absence of motive for killing
these very girls and women, the clever attempt to dcxlge the police and then to
put them on a false scent and the' extreme brutality surroundings the crimes gone
to the case an eerie appearance.
Eighteen persons were put up for trial before the Session Judge for the 10
murders. Two out of these persons were tendered pardon and were examined
in the case as approvers. Accused No. 6 died during the trial. The Sessions
Judge acquitted accused 4, 5, 7, 8 and 13 to 16. Accused No. l and 2 were
convicted under s. 302 read with s. 120-B and section 34 of the Penal Code.
Ac:used No. 1, 2 and 3 were sentenced to death while accused No. 9 to 12
were sentenced to life imprisonment. The· matter went to the High Court in the
form of various proceedings. The High Court acquitted accused No. 1 and
2 holding that the offence of conspiracy which formed the gravamen of the
eharge against them was not proved. Since the charge of conspiracy failed and
since it was a common ground that accused No. 1 and 2 had not taken any
direct part in the commission of the murders; the High Court held that they
were entitled to acquittal on all the charges.
The High Court dismissed the
appeal filed by accused No. 3 holding that he was responsible for the first 4
murders and confirmed his conviction under s. 302 read with s. 34 as also the
sentence of death imposed upon him. The High Court dismissed the State's
appeal against acquittal of accused No. 4 and 5 but allowed the State's appeal
and enhanced the sentence of accused No. 9 to 12 to death.
Criminal Appeal No. 437 of 1976 was filed by accused Nos. 9 to 12. Criminal
Appeal No. 438 of 1976 was filed by accused No. 3 and Criminal Appeal No.
441 of 1976 was filed by the State of Maharashtra against acquittal of accused
Nos. 1 and 2. The Court acquitted accused No. 12 by giving him the benefit
of doubt and while dismissing the three .appeals.
•
DAGDU v. MAHARASHTRA (Chandrachud, I.)
63 7
HELD : (1) There is no antithesis betweens. 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 under s. 114 of the Evidence Act. The
Court may presume the existence of any fact which it thinks likely to have
happened regard being had to the common course of natural .events, human
conduct and public and private business in their relation to th<: facts of the
particular ca'3e.
Under s. 133 of the Evidence Act, an ~c~omr.hce _shall be a
competerit wi~ess against an accused person and a conv1;tion is
not
illegal
merely because it proceed,s upon the uncorroborated testimony of an accomplice.
[643 B-CJ
(2)' Though an accomplice .is a competent witness and though a conviction
maiy fawfully rest upon his uncorroborated testimony yet the court is entitled
to _presume and may be justified in presuming ini the generality of cases that tm
reliance can be placed on the evidence of an accomplice unless that evidence
is corroborated in material particulars, by which is n1eant that there boo to be
some independent evidence tending to incriminate the particular accused in the
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commis.'iion of the crime.
f643 C-Dl
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( 3) It is hazardous as a matter of prudence to proceed on the evidence· ot
a self-confessed criminal.
The risk involved in convicting an accused on the
testimony of an accomplice unless it is corroborated in material particulars is
so real and potent that what during the early development of law was felt to
be a matter of prudence hoo been elevated by judicial experience into a requirement or rule of law.
What has bardeiled into a rule of law is not that the
conviction is illegal if it proceeds upon the uncorroborated testimony of an
accomplice but that the rule of corroboration must be present to the mind. of
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the Judge and that corroboration maoy be dispensed with only if the peculiar circumstances of the case make it safe to dispense with it. [643 ,E-F]
Kini? v. Baskerville f19161 2 K.B. 653; Rameshwar v. State of Rajastlian
[1952] S.C.R. 377, Bhuboni Saku v. The King 76 I.A. 147; The State of Bihar
v. Basawan. Sinxh 'f19591 SCR 195 and Ravinder Singh v. State of Haryana
[19751 3 S.C.R. 453. relied on.
(4) It is true that an approver has real incentive to speak out big mind after
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tender of pardon but where it is impossible to reconcile hi5 earlier statements
with his later assertions his evidence has to be left out of consideration. It is
one thing to say that an approver's statement cannot be discarded for the mere
reason that he did not disclose the entire story in his police statement and quite
another to accept an anorover in spite of contradictions which cast a veil of
doubt over his involvement of others. [646 B~C]
Madan Mohan Lal v. State of Punjab [1970] 2 S.C.C. 733 relied on.
Tahsildar's case [1959) Supp. 2 S.C.R. 875, distinguished.
(5) The failure to comnly with section 164(3) Cr. P.C. with the Hi•h Court
circulars .w~ll. !lot rende_r the confessions inadmiss_ible ~n evidence .. ReJevancy
and adm1ss1b1hty of evidence have to be determined 1n accordance with the
provisions of the Evidence Act. [651 El
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(6) Under section 29 of the Evidence Act, if a confession is otherwi8e rele~
v~nt, it does not become irrelevant merelv because, inter olia, the accu1111ed was
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not warnt'\d that he was not bound to make it and the evidence of it mip:ht be
given against him.
If, therefore. a confession doe<: not violate anv one of the
C?ndi~ions _onerative under ~s. 24 to 28 of the Evidence Act, it will be admis·
s1ble 1n evidence. But as in resnect of anv other admi~sible evidence oral or
documentary, so in the case of confessional statt-ments which are ~therwise
admissible. the Co1;1rt has still to consider whether th1>;v can be _accented as true.
If the facts and circumst:inc~c: surrounrlin2 the m~kin2 of a confession annear
to cast a doubt on the veracitv or voluntariness of the confession,
the Court
may refuse to act upon the confession even if it is admissible in cvid,.nce.
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[651 E-GJ
.
(7). A st.rict and faithful compliance with s. 164 of the Code and with the
instructions issued by the High Court affords in a large measure the guarantee
638
SUPREME COURT .,l\EPQ)lTS
[1977] 3 S.C.R.
A
that the confession is voluntary.
The failure to observe the safeguards pres~
cribed .therein a.re in practice calculated to impair the evidentiary value of the
confessional statements.
In the instant case no reliance can be placed on any of the contesstons.
· Apart from the Cofessions of the two approvers, all others were retracted, which
),,.,,_
further cripples their evidentiary value.
(657 H]
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(8) The imperative language of sub~section {2) leaves no room 'tor doubt
that aifter recording the finding of guilt and the order of conviction, the Court
is under an obligation to hear the accused on the question of sentence unless
it releases him on probation of good conduct or after admonition under s. 360.
The. social compulsions, the pressure of poverty, the retributive
instinct
to
uek an extra-legal remedy to a sense of being wronged, the lack of rueans to
be educated in the difficult art of an honest living the pa·rentage, the hered1tyall these and similar other considerations can, hopefully and legitimately, tilt
the scales on the propriety of sentence.
The mandate of s. 235 (2) must,
therefore, be obeyed in its letter and spirit.
{657 F-l:l]
(9) The failure on the part of the Court, which convicts au accused, :to ~ear
him on the question of sentence does not necessa.rily ent~il a remari.d to that
Court in order to afford to the accused an opportunity to be heard on the
question of sentence.
[658 A-Bl
Santa Singh v. State of Puniab [1976] 4 S.C.C. 190, explained. '
(10) The .C9μrt, on convicting .<;in accused, must unquestionably hear him
on the questi_qn of sentence. But if, for any reason, it omits to do so and the
accused makes a grievance of it in the higher court, it would be open tO that
Cou:r:t to r~medy the breach by giving a hearing to the accused qn the qu~tion
of .~nJ.~n.c.e. That .Q.pportμnity has to Qe real a11d eff~ctive, which l\leflQS ,tμat
the _ a~used must be perniitted to adduce before the Court all the data whi~h
he desires· to adduce on the question ·of sente11ce: The o.<ecused .may exer~jse
that right either by instructing his counsel to make oral submissions to the Court
or he -Pl~Y •. on af&davit or otherwise, place in writing before the Court w-hatev:er he desires to place before it on (he question· of sentence. The _Court ma.y,
.in appropriate cases, have to !ldiourn the matter order to give to the accused
suffl.cient tilij.e to produce the necessary data and to make his contention .on ,the
qtWStion ,of ~ntence. For a proper apd .effectiv:e implementation of ,the prov.ision
:Contained .in ,s, 235(2) it-is not alway,s .uecessary to remand the matter -.~o Jfle
Court which has recorded the conviction.
Jlem,and is a.n .exceptio,n, not ,the
rule, and ought, therefore, be avoided as far as possible in the interesl'i
of
expeditious, though .f~ir disposzl of cases.
[658 B-D, FJ
Santa Singh v. State of Puniab [1976] 4 S.C.C. 190, distinguished.
GOSWAMI, J.
(Conc~r1ing) :~
Whenever an appeal court finds th~t tqe _p;ian~ase of secti.Qn Z35 (2) Cr. P.C.
for a hearing on sentence has not been complied With it becomes the duty of the
Court .to offer to the .accused _an adequa,te ,QppQrtunity to prbduce .QefQre
it
whatever ma-terial he chooses in wh,atever reasonal;ile :way poss.ible. Courts .should
as rar as pq_ssible av.oid r~m.ands wh~n the ~ccuse,d can secure ~ fuU benefit ot
s. 235 (2) Cr. P.C. in the appeal CQurt.
[661 .C-D]
CRIMINAL APPELLATE JURISDICTION : Crl. A. Nos. 437 & 438 of
1976.
(Appeals by Special Leave from .the Judgment aμd Order dated the
8/9/10-3-1916 .of the Bombay High Court ill Cr). Appeals Nos. 17 .a.nd
18 -Of l976 and confirmation Case No. 3 of 1976) and
QI. A. No. 441 of 1976.
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DAGDU v. MAHARASHTRA (Chandrachud, J.)
639
(Appea! by Special Leave from the Judgment and Order dated the
A
8/9/10-3-1976 of the Bombay High Court in Criminal Appeal No. 18
of 1976).
~
P. Narayan, B. G. Kolse Pall1, B. S. Bhonde and V. N. Ganpule,
•
for the appellants in Cr!. A. Nos. 437-438 and for respondent in CrJ:
A. 441/76.
V. S. Desai, P. P. Hudlekar and M. N. Shroff for respdndertt~in'Crl.
B
Appeal Nos. 437-438 and for the appellant in Cr!. A. No. 441/76.
The Judgment of Y. V. Chandrachud and P. N. Sbirrghal, JJ. was
delivered by Chandrachud, J. P. K. Goswatni, J.
gave ai separate
opinion.
CHANDRACHUD, J.
Five stnall girls about ten years of age·1 a: year
old infant and four women in their tnidcthirties wete found mutder~
between November 14, 1912 and January 4, 1974 in a villllgl!i called
Manwat in Maharashtra.
The murders of these ten femal\ls shl>W si~i
ficant sitnilarities in pattern and conception. The time al:l'd' place! chosen
for the crimes, the preference for fomales as victims, the narute of
injuries caused t() thetn, the strange possibility that the ptivate par!S of
some of the victim~ Were cut in order to extract blood, the total-absem:e
of motive for killirig these very girls and women, the cleve'r· attempt to
dodge the police and then to put them on a false scent and the extreme
brutality surrounding the crimes give to the case an eerie appearance.
Such harrowing happenings make the task of discovering truth difficult
and it is just as well to begin with Justice Vivian Bose's remin'lfer that
the shocking nature of the crime ought not to induce an instinctive
reaction against a dispassionate scrutiny of facts and law.
We have three appeals before us, all by special leave granted by this
Court.
Criminal Appeal No. 437 of 1976 is filed by accused Nos. 9
to 12, Criminal Appeal No. 438 of 1976 by accused No. 3 while Criminal Appeal No. 441 of 1976 is filed by the State of Maharashtra
against the acquittal of accused Nos. 1 and 2.
Eighteen persons were put up for trial before the learned Sessions
Judge; Parbhani for the ten murders. Two out of these, Ganpat Bhagoji
&ilve and Shankat Gyanoba Kate were tendered pardon by tlie learned
Judge and were exatnined in the case as approvers.
Accused Nos. 6
died during the trial leaving 15 persons for consideration of the question
whether they had conspired to commit the murders and whether the
mtJrdets were comtnitted in pursuance of that conspiracy. The learned
Sessions Judge acquitted accused Nos. 4, 5, 7, 8 and 13 to 16. Accused Nos. 1 and 2 were convicted under sec. 302 read with sec. 120-B
and set. 109 of the Penal Code.
Accused Nos. 3 and 9 to 12 were
convicted under sec. 302 read with sec. 120-B and sec. 34 of the Penal
Code.
Accused Nos. 1, 2 and 3 were sentenced to death while· accused
Nos. 9 to 12 were sentenced to life itnprisonment.
The matter went to the Bombay High Court in various forms. ·The
seven accused who were convicted by the Trial Court filed an appeal
challenging the order of conviction and sentence.
The Sessions Court
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649
·SUPREME COURT REPORTS
[1977] 3 S.C.R.
made a reference to the High Court for confirmation of tho death sentence imposed on accused Nos. 1, 2 and 3. The State·Goverument
filed an appeal against the acquittal of accused Nos. 4 and 5. l\ also
filed an appeal under s. 3 77 of the Criminal Procedure Code 1973
asking that the sentence of life imprisonment imposed on accused Nos.
9 to 12 be en_ltanced to death.
The. State uot having challenged the
order of acqmttal passed by the Sessions Court in regard to accused
Nos. 7, 8 aud 13 to 16, that order has become final and was not in any
form assailed before us as erroneous.
·
The High Court acquitted accused Nos. 1 and 2 holding that the
ojl'ence of conspiracy which formed the gravamen of the charge against
them. was not proved.
The charge of conspiracy having failed and it
being common ground that accused Nos. 1 and 2 had not taken any
direct part in the commission of the murders, the High Court held that
they were entitled to acquittal on all the charges.
The High Court dismissed the appeal filed by accused No. 3 holding that he was responsible
for the first four murders and confirmed his conviction under s. 302
read with s. 34 as also the sentence of death imposed upon him.
The
conviction and sentence of accused No. 3 under s. 302 read with s.
120-B was set aside by the High Court in view of its finding that the
prosecution had failed to establish the charge of conspiracy.
The High
Court dismissed the State's appeal against the acquittal of accused Nos.
4 and 5 but it allowed tho appeal filed by the State for enhancement of
the sentence oflife imprisonment imposed on accused Nos. 9 to 12.
The High Court enhanced their senrence to death under s. 302 read
with s. 34 but consistently with its finding on the charge of conspiracy .
it set aside their conviction and sentence under s. 302 read with s. 120B.
There were·delay on the part of the State Government in filing the
appeal for enhancement of the sentence of accused Nos. 9 to 12 but the
High Court condoned that delay.
We are thus called upon to consider the correctness of : ( 1) the
order of the High Court acquitting accused Nos. 1 and 2; ( 2) the order
of conviction of accused No. 3 under s. 302 read with s. 34 and the
sentence of death imposed upon him by the Sessions Court and the High
Court; and (3) the order of conviction of accused Nos. 9 to 12 under
sr. 302 read with s. 34.
Thus, we are concerned in these appeals with
accused Nos. 1 to 3 and 9 to 12 only.
The hamlet of Manwat has a population of 15 thousand and is
situated in Taluka Pathri, District Parbhani, Maharashtra.
Accused
No. 1 Rukhinini was about 32 years of age at the relevant time and
despi~ the pledg~ to secularism, it has to be mentioned that she is
Pardhi by caste.
She was in the keeping of accused No. 2, Uttall':rao
Barahate a non-pardhi, who is a man of means and was at one time
the President of the Manwat Municipality. He purchased a house for
accused No. 1 in which the two lived tr>gether and it is this hnuse or
wada which became the focal point of the consniracy. f\ccused No. ~
purchased the house really in order to ensnre the exc.lus1veness of his
mistress but it happened to blaze an altogether new tnal.
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DAGDU v. MAHARASHTRA (Chandrachud, J.)
64 I
In the house was a Pimpal tree which is believed to be the emblem
of God Vishnu, the Preserver.
The Pimpal is also believed to be the
haunt of Munjaba, who is supposed to be the spirit of an unmarried
Brahmin boy. The Parbhani District Gazetteer says at page 115 that
"some childless persons who trace their misfortune to the influence of
some evil spirit cause the Brahminic thread ceremony performed for a
pimpal tree and a masonry platform built round its trunk."
The Manwant village-folk commonly believe that treasure troves are
lying buried in the town ever since the sixteenth century when its inhabitants fled away after the troops of Murtazahad invaded the town,
which was then under the Nizamshahi of Ahmednagar.
Quite some
quacKS m the periphery of Manwat make their living by diagnosing
where the treasure trove lies and what means to adopt for discovering
it.
Accused No. 1, though in her thiries, had entered a period of
premature menopause.
She was anxious to get a child which could
only happen if her menstrual cycle was restored. She used to consult
quacks and mantriks who, she believed, could help her get a child.
Accused No. 2's mother was credited with a sixth sense in the matter
of discovering treasure troves. · She bad oracled that a treasure trove
lay buried in accused No. l's house underneath the Pimpal tree. The
stage was thus set for the visits of mountebanks to the house of accused No. 1 for the display of their supernatural attainments.
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The case of the prosecution is that accused Nos. 1 and 2 consulted
quacks who prescribed that virgins should be offered as sacrifice to
Munjaba and blood from their private parts be sprinkled on the food
offered by way of Naivedya ta the God.
One of such quacks was
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Ganpat Salve, the approver, who was examined as P.W. 1.
Accepting Ganpat's advice, accused Nos. 1, 2, 3, 4 and 6 conspired to commit the murders of virgin girls. Ganpat himself joined the conspiracy
and so did .Shankar Gyanoba Kate who was a servant of accused No.
2. Shankar, also an approver, was examined in the case as P.W. 2.
Accused Nos. 5 and 7 to 16 are alleged to have joined the conspiracy
at a later point of time.
In pursuance of the conspiracy, ten murders
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were coirullitted between November 14, 1972 and January 4, 1974.
The first four murders are alleged to have been committed by the
aporover Shankar and accused No. 3, Sopan, who was also in the
employment of accused No. 2. Gayabai, a girl of 11 was murdered
on November 14, 1972; Shakila, a girl of 10, was murdered
on
December 9, 1972; Sugandhabai, a woman of 35 was murdered on
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Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April
13, 1973.
.
It is said that the blood from the private parts of these victims
was offered to Munjaba and yet there was no clue as to where the
treasure trove lay.
Gayabai, Shakila and Sugandhabai had evidently
died in vain and therefore Nasima, the fourth victim, was beheaded
so that the severed head could be offered to propitiate the deity.
Even Nasima's head fa;Jed to move Munjaba's heart.
The treasure
trove remained undisclosed.
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stiilP.'EME couR'.f i!ii>oilr's
(l<of77) 3 S.C.R.
The next two' murders are alleged to have been committed by
accused Nos. 5 and 6.
Kalavati, a· woman of 30, was murdered on
Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973.
Accused·
No. 5 ha·s beer\ acquitted and the. order of acquittal has become finat
Accused No. 6 died during the pendency of the trial in the Sessions
Court.
.
The seventh murder is alleged to have been committed by accused
Nos: 7 and 8 when Patvatibai, aged about 35, was murdered on October 8; 1973.
These two accused. were acquitted by
the Sessions·
Coilrf and the a:~quitta! was not challenged by the· State.
The three last murders are· alleged to have been co1ilmitted by ae-
. cused Nos. 9· to 12, all at the silnle tinie;
Hatil:fai, aged' 35;
Wl!s
going along with her daughter Taravati aged 9 and was carrying in'
her arms an infant daughter, Kamal, aged a year and half.
AU of
them were murdered ori the afterrioori of January 4, 197'4.
Accused Nos. 1, 2, and 14 were arrest&l on June 18,
1973
in connection with the first four murders which had taken place between No~mber 14, 1972 and April 13, 1973. It is alleged that,
while in- custody, accused No. 2 sent a message to accused N&. 5 to
coinmit a few more murders so that no suspicion may fall ol'i those
who were arrested.
That is why accused Ni>s. 5 and 6, accused Nq.
6 being a servant of accused No. 1, are said to have committed the
murde_rs. of Kalavati and. Halima in June and July, 1973. On July
30, 1973 accused Nos'. l, 2, 9 arid 14 we're released on.bail ori con-
·dition that they shall not entef the lirtiitS of Mariwaf.
This condition·
was relaxed oil October 4, 1973 fcir investigittional purposes. Accus~.
Nos. 1 and 2 were in Manwat frorti Octol'ier' 4 to October 21, 1973-
. dliring which periOd they are [\ileged to have procured' the serviceli of
accused Nos. 7 and 8 for the commission of Parvatibai's murder on
October 8.
On December 18, 1973, an application was moved for
cancellation of the bail granted to accused Nos. 1 and 2.
That
applicatiM was allowe<t and they, were re-arrested on January 4, 1974
whtlti the murders o'f Hiliibai, Tat\\:tiiati arid Kamal were coniniitted.
Accil~ed No: 3 waif atr'esred on December 28, 1973, accused Nos.
9 to 11 on January 8; 1974' and acc'tised No. 12 on January 11, 1974.
Accused Nos~ 1 a'.ild' 2 are tile lincli~pin of the case and therefore it would be ap-pr'~riate to dea1 with t!Jeir cases first.
Accused
. No.' 1 is the misttess of' aecused' N'o: 2 and wllereas the fofniet was
ariXious to' get a child, the)'' both were aiiXioiis' to discover tlie treasure
trove' lying buried)n their liouse.
The charge against them is that
for' the purpose of achieving tliese objects they consulted quack.- who
advised that the Munjaba should be propitiated by offering the blood
of virgin girls.
Accepting that advice, accused Nos. 1 and 2
are
alleged to have entered into a conspiracy with the other accused to
conimit· the· various murders.
'The prosecution relied inter ali/J on: the evidence of
the
two
apptovers, Ganpat, P.W. 1, and Shaitkar, P.W. 2, in order to prove
the' chi!tge of conspiracy against accused' Nos. 1 and 2 as also for
proving that various murders were committed in pursuance of
that
I
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DAGDU v. MAHARASHTRA (Chandrachud, J.)
643
conspiracy.
The learned Sessions Judge accepted the evidence of
A
bot!\ the approvers as against accused Nos. 1 and 2 but the High
Court rejected the evigence of Ganpat and accepted that of Shankar
only.
Before considering that evidence, it would be necessary to state
the legal position in regard to the evidence of accomplices and approvers.. Section 13 3 of the Evidence Act lays down that an accomplice
shall be a competent witness against an accused person; and a convicB
tion is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.
Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common course
of natural events, human conduct and public and private business. in
their relation to the facts of the particular case.
Illustration (b) to
s. 114 says that the Court may presume that an accomplice is unworthy
C
of credit unless he is corroborated in material particulaffi.
There is no antithesis betweens. 133 and illustration (b) cos. 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 irrebutable presumption. Reading the two together
the position which emerges is that though an accomplice is a comD
pctent witness and though a conviction may lawfully rest upon
his
uncorroborated testimony, yet the Court is entitled to presume and
may indeed be ju:stified in presuming in the generality of cases that no
reliance can be placed on the evidence of an accomplice unless that
evidFnce is corroborated in material particulars, by which is meant
that there has to be some independent evidence tending to incriminate,
the paticular accused in the commission of the crime. It is hazardous,
E
as a matter of prudence, to proceed 'upon the evidence of a sclfconfessed criminal, who, in so far as an approver is concerned, has
to testify in terms of the pardon tendered to him.
The risk involved
In convicting an accused on the testimony of an accomplice, unless
it is corroborated in material particulars, is so real and potent that
what during the early development of law was felt to be a matter
of prudence has been elevated by judicial experience into a requireF
ment or rule of law.
All the same, it is necessary to understand that
what has hardened into a rule of law is not that the conviction is
illegal if it proceeds upon the uncorroborated testimony of an accomplice bnt that the rule of corroboration must be present to the mind
of the Judge and that corroboration may be dispensed with only it
the peculiar circumstances of a case make it safe to dispense with 1t.
In King v. Baskerville(') the accnsed was convicted for commit!-
G
ing groS'S acts of indecency with two boys who were treated as
accomplices since they were freely consenting parties. Dealing with
their evidence Lord Reading, the Lord Chief
Justice of
England,
observed that thongh there was no doubt that the uncorrooorated evidence of an accomplice was admissible in law it was for a long time
a rule of practice ~t _common law for the Judge to warn the Jury 0£
the danger ?f convicting a person on the uncorroborated testimony of
H
an accomplice. Therefore, though the Judge was entitled. to point out
(1) [1916] 2 KB. 658.
2-707SCI/77
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to the Jury that it was within their legal province to! convict upon the
unconfirmed evide~1ce of an accomplice, the rule of practice had pecome Vfftually eqmvalent to a rule of law and therefore in the absence
of a proper warning by the Judge the conviction could not be permitted to stand. If after being properly cautioned by the Judge the Jury
neve:th.eless convicted the prisoner, the Court would not .quash the
conv1c!Ion merely upon the ground that the accomplice's testimony was
uncorroborated.
In Rameshwar v. State of Rajasthan(') this Court observed that
the branch otf law relating to accomplice evidence was the same in
India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England.
The only clarification made by this Court Was that
in cases tried by a Judge without the aid of a Jury it was necessary
that the Judge should give some indication in his judgment that he
had this rule of caution in mind and should proceed to give reasons
for considering it unnecessary to require corroboration on the facts ot
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(') the Privy Council after noticing
s. 133 and illustration (b) to s. 114 of the Evidence Act observed
that whilst it is not illegal to act 011 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 imp:icate the accused; and further that the evidence of one accom·
plice 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 accomolice 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 himse.rn
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 whtch
in its general outline is true, and it is easy for him to work into the
story matter which is untrue. He may implicate ten people in an
offence and the story mav be true in all its details as to eight of
them but untrue as to the other two whose names mav have been
introduced because they are enemies of the approver.
The only real
safeguord therefore aoainst the risk of condemning the innocent with
the · l!llilty lies in insisting on independent evidence which in
some
measure implicates each accused.
This Court has in a series of cases exoressed the same view as
H
regards accomplice evidence.
(see The State of Bihar v. Basawan
(1) [1952] S.C.R. 377.
(2) 76 IA 147.
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DAGDU v. MAHARASHTRA ( Chandrachud, J.)
64 5
Singh('); Hari Charan Kurmi v. State of Bihar;(2)
Haroon
Haji
A
Abdulla V· State of Maharashtra;(') and Ravinder Singh v. State of
llaryana('). In Hari Charan( 2 ) Gajendragadkar, C.J., speaking for
a five-Judge Bench observed that the testimony of an accomplice is
evidence under s. 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, sub1ect to
the requirement which has now become virtually a part of the law
B
that it is corroborated in material particu1ars.
We will assess the evidence of the two
approvers
Ganpat and
Shankar in the light of these principles.
Ganpat
Bhagoji
Salve,
P.W. I, fails to cross the initial hurdle of reliability and no amount
of corroboration cure the infirmities which beset his evidence.
He is
c
not a quack but a charlatan who traded on the credulous optimism ot
the steri:e village women.
He admits that he possessed no cnre but
made a pretence of it by carrying the confidence of lay, uninformed
women.
He was sent for to prescribe a cure to enable accused No. l
to bear a child but accused Nos. 1 and 2, taking advantage of his
expert presence, consulted him on where the treasure trove lay. G"npat
prescribed the facade of a procedure which was in the nature of
a
D
confidence trick.
Practising it deftly on his credulous audience,
he
passed on the errand of God that Munjaba has to be appeased by
offering the blood of virgin girls.
That work was assigned by accused No. 2 to his servants, accused No. 3 and the
other
approver
Shankar.
Accused No. 3 and Shankar conunitted the murders of Gayabai
E
and Shakita and handed over the bowlful of blood from the private
parts of the victims to accused Nos. 1 and 2 who performed the Puja
of Munjaba.
But the treasure trove did not come up.
Then Sugandhabai was murdered and her menstural blood was offered to
the
God, again without a purpose.
The fourth to die was Nasima whose
head and small finger were offered as sacrifice.
But even that heavy
price yielded no clue to the treasure trove.
Ganpat was paid a fee
F
of Rs. 100 whereupon he made himself scarce and left for a place
called Baramati from where he was traced by the police.
That is
what Ganpat's evidence comes to .
Ganpat is an utterly worthless witness whose evidence has been
right)y discarded by the High Court.
His entire story is incredible
and abounds in contradictions of the gravest kind.
Accused No. 2 is
a man of some means and was for some time the President of the
Manwat Municipality.
It is hardly likely that a person in his position
wou:d readily gulp the fantastic process prescribed by Ganpat for
discovering the treasure trove.
Ganpat was interrogated by the police
for nearly a month and a half after his arrest at Baramati and it was
only at the end of that trying period that he trotted out some story
(1) [1959] SCR 195
f3) [l 9Sq] ~ SCR 6ll
(2) [1964] 6 SCR 623
(4) [1975] 3 SCR 453
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to save his skin. It is1 common ground, and we see much more in
that episode, that Ganpat struck his head against a wall while in police
custody and sustained a head injury for which he was charge-sheeted
for attempting to commit suicide.
He admits in his evidence that he
was driven to break his head, as a result of the torture inflicted upon
him by the police.
Though he implicated both accused Nos. 1 and
2 in the search for treasure trove, he admitted later that accused No.
1 had never talked to him in that behalf.
He made several significant statements for the first time in the Court and though we agree
that an approver has real incentive to speak out his mind after tender
of pardon, it is impossible to reconci1e his earlier statements with his
later assertions.
It is one thing to say as was said in Madan Mohan
Lal v. State of Punjab(') that an approver's statement cannot
be
discarded for the mere reason that he did not disclose the entire story
in his police statement and quite another to accept an approver in spite
ol contradictions which cast a veil of doubt over his involvement or
others.
Conceding the ratio of Tahsildar's( 2 ) case, on ,which Mr.
Desai for the State Government relies, the conclusion seems to us
inescapable that Ganpat has mixed a ton of falsehood with an ounce
of truth.
His evidence has therefore to be left out of consideration.
The other approver Shankar Gyanoba Kate, P.W. 2, has greater
credibility than Ganpat.
Shankar was working with accnsed No. 1
as an agricultural servant along with accused No. 3.
He speaks ot
Ganpat's visits, the performance of the 'shakun' and of being commanded by accused Nos. 1 and 2 to commit murders of virgin girls.
He has unreservedly admitted having committed the murders of Gayabai, Shaki!a, Sugandhabai and Nasima with accused No. 3's assistance.
He implicates accused Nos. 1 and 2 by depooing that after each of
the murders was committed, he and accused No. 3 used to go to
accused No. l's house for delivering the blood and that the accused
used to perform the Puja thereafter.
Not only has Shankar tarred himself with the same brush as
accused Noo. 1, 2 and 3 but he has confessed to having played the
leading role in the commission of the first four murders.
Impressed
by that circumstance, the Sessions Court and the High Court concluded that he is a reliable witness. but they took the view that the
conviction of accused Nos. I and 2 cannot be permitted to rest on
his uncorroborated testimony.
We unhesitatingly share that view.
Having played the role of the master killer in four ghastly murders,
he is bound to know every little detail as to the manner of killing.
The vivid description given by him of the luring, the gagging and
the throwing away of the dead bodies may therefore be true. But 1t
is easy enough for him to introduce nice falsities here and there by
ilwolving some others in the broadly true framework of his story.
1l is therefore necessary to se(l whether the evidenc~ of Shankar in
regard to the implication of accused Nos. 1 and 2 is corroborated
by some independent evidence.
(I) [197012 S.C.C. 733.
(2) [1959] Supp, 2 S.C.R. 875.
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DAGDU v. MAHARASHTRA (Chandrachud, J.)
647
Before looking out for corroboratio11 we must point out
that
A
Shanlrnr used to be interrogated by the police every night for about 'I
or l 0 days and it was at the end of that gruelling interrogation that his
statement came to be recorded.
Though Shankar claims that he had
seen the 'shakun' being performed by Ganpat, he had not stated so
before the police nor had he then described the elaborate ritual observed during the performance of that ceremony.
He also did not say to
the police that accused No. l had asked him to commit the murdelb.
B
•
Neither to the police nor in his statement recorded under s. 164 of the
Code of Criminal Procedure did he say that he had gone to accused
No. l's house on the morning following the first murder and that she
had told him that since the treasure trove was not found another murder should be committed.
The statement attributed by Shankar to
accused No. l that menstrual blood was required for sacrifice is also
conspicuous by its absence in his police statement. These significant
C
omissions are in the nature of contradictions because not only do they
pertain to a very vital aspect of the case against accused Nos., 1 and 2.
but they are of such' a nature that the story told by Shankar to
the
police and under s. 164 of the Code of Criminal Procedurd cannot
sensibly stand along with what he told the Court in regard to' the part
played by accused Nos. 1 and 2. It is true that Shanker was under
a higher obligation while deposing in the Court because as a condiD
tion of the pardon tenderedl to him he had to disclos<> the whole truth
to the Court.
But while assessing the value of Shankar's evidence in
so far as he implicates accused Nos. l and 2 we find it impossible to
overlo0k the studied improvements which he made to involve them.
Such gross departure from the earliest versions makes the story of
conspiracy suspect and uninspiring.
All the same, we may examine
the argument advanced before us by the learned counsel for the State
E
that Shankar's e'idence against accused Nos. I and 2 is corroborated
in material particulars and should therefore be accepted.
For affording corroboration to Shankar's evidence reliance is placed
on the evidence of four witnesses-Laxman (P.W.
19), Sakharam
(P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W.