# SHANKAR @ GAURl SHANKAR AND OTHERS v. STATE OF TAMIL NADU

- **Citation:** [1994] 3 S.C.R. 298
- **Court:** Supreme Court of India
- **Decided:** 1994-04-04
- **Case number:** Criminal Appeal No. 634 of 1992
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-gaurl-shankar-and-others-v-state-of-tamil-nadu-12240
- **Pages:** 56

## Headnote

SHANKAR @ GAURl SHANKAR AND OTHERS
v.
STATE OF TAMIL NADU
APRIL 4, 1994
B
IK. JAYACHANDRA REDDY AND G.N. RAY, JJ.I
Criminal Procedure Code, 197rSection 354 sub-Sec. rDeath sentence-When to be awarded-Rarest of rare crimes-Mitigating and aggravating circumstances--Brutal murder of six persons in an organised manne~
C Dead bodies disposed of in a diabolic manner-Held, death penalty is justified
-Mitigating circumstances-Indian Penal Code, 1860-Section 302.
Evidence Act, l872-Sections 133 and 114 illustration (b )-Approver's
statement-corroboration of-Corroboration of material particular qua each
accused required-Every 1naterial circumstance need not be co"oborate~
D Corroboration should show that the approver is speaking the truth-code of
Criminal procedure, 197rSection 306.
Words and Phrases-Accomplice-Meaning of
E
Evidence Act, 1872-Section 24-Confession-Meaning orExcul·
pat01y statement not covered-Should be volunta~Judicial confession--
Meaning of-Retracted judicial confession-Extent of corroboration Material
particulars should be corroborated-Each and every circumstance need not
be corroborated-Criminal Procedure Code 197rSection 164.
F
The appellants were charged of murder of six persons, D-1 to D-6.
Both the Trial Court as well as the High Court had convicted them for
murder of D-1 to D-6. According to the case of the prosecution, which was
accepted by the Trial Court as well as the High Court, A-1 was the gang
leader whereas A-2 to A-6 were his associates. Initially, A-1 used to drive
G auto rickshaw. Thereafter, he switched over to the business of arrack which
he handed over to his brother (Mohan) and started the business of brothel.
A-1 had married several times and it was alleged that be used to torture
his wives by burning them with cigarette buts.
The conviction of A-1 to A-6 was based on the evidence of P.W.l. (who
H was an accomplice and had turned into an approver), the retracted judicial
298
•
> '
.... -..Ji,
)
GAU RI SHANKAR v. STATE OFT.N .
299
confes~ions of A-1 and A-2 and other corroborating evidence.
P.W.1 stated in his deposition that D-1 was a prostitute and had
intimate relationship with A-1 but later on she eloped with D-2 which
incensed A-1, D-2 was taken to A-l's house; got him drunk and thereafter
throttled him. A-1, A-2, A-3, P.W.I and Mohan (absconding accused) were
present there and D-2 was burnt in the room and the unburnt remains of
his body were thrown away in the river.
According to P.W.I, D-3 was killed as he was blackmailing A-1 in
. respect of the death of D-2, D-3 was brought in A-l's godown and after
intoxicating him with liquor, A-1, A-2, A-3, P.W.1 and Mohan throttled him
to death and buried the dead body in a pit. D-4 to D-6 were beaten and
locked up in a store room in A-l's house, D-4 and D-5 died in the room
whereas D-6 was throttled to death. The dead bodies were buried in the
basement of a house under construction.
A
B
c
In the retracted confession, A-1 and A-2 stated that D-1 was beaten D
by A-1, A-2 and Mohan and thereafter, throttled to death by A-1. Her body
was buried in the liquor godown.
The Trial Court found all the appellants as well as A-7 and A-8 to
be guilty of offence under Section 120-B, r/w 302-201, 147, 304/34 and 404
of !PC. A-1 to A-3 were sentenced to death whereas A-4 to A-8 were E
sentenced to life imprisonment.
The High Court confined the sentence awarded to A-1 to A- 6 but
acquitted them of offence under Section 120-B I.P.C. A-7 and A-8 were
acquitted of all charges against them.
F
Before this Court, the appellants contended that the evidence of
P.W.1 was full of contradictions and discrepancies whereas the retracted
corifessions of A-1 and A-2 were uncorroborated and therefore reliance
upon them for conviction of the appellants was not correct. It was also
contended that the present case was not the rarest of rare cases and there G
were sel·eral mitigating circumstances and therefore, sentencing A-1 to A-3
to death was unjust.
This Court confirmed the death

## Text

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SHANKAR @ GAURl SHANKAR AND OTHERS
v.
STATE OF TAMIL NADU
APRIL 4, 1994
B
IK. JAYACHANDRA REDDY AND G.N. RAY, JJ.I
Criminal Procedure Code, 197rSection 354 sub-Sec. rDeath sentence-When to be awarded-Rarest of rare crimes-Mitigating and aggravating circumstances--Brutal murder of six persons in an organised manne~
C Dead bodies disposed of in a diabolic manner-Held, death penalty is justified
-Mitigating circumstances-Indian Penal Code, 1860-Section 302.
Evidence Act, l872-Sections 133 and 114 illustration (b )-Approver's
statement-corroboration of-Corroboration of material particular qua each
accused required-Every 1naterial circumstance need not be co"oborate~
D Corroboration should show that the approver is speaking the truth-code of
Criminal procedure, 197rSection 306.
Words and Phrases-Accomplice-Meaning of
E
Evidence Act, 1872-Section 24-Confession-Meaning orExcul·
pat01y statement not covered-Should be volunta~Judicial confession--
Meaning of-Retracted judicial confession-Extent of corroboration Material
particulars should be corroborated-Each and every circumstance need not
be corroborated-Criminal Procedure Code 197rSection 164.
F
The appellants were charged of murder of six persons, D-1 to D-6.
Both the Trial Court as well as the High Court had convicted them for
murder of D-1 to D-6. According to the case of the prosecution, which was
accepted by the Trial Court as well as the High Court, A-1 was the gang
leader whereas A-2 to A-6 were his associates. Initially, A-1 used to drive
G auto rickshaw. Thereafter, he switched over to the business of arrack which
he handed over to his brother (Mohan) and started the business of brothel.
A-1 had married several times and it was alleged that be used to torture
his wives by burning them with cigarette buts.
The conviction of A-1 to A-6 was based on the evidence of P.W.l. (who
H was an accomplice and had turned into an approver), the retracted judicial
298
•
> '
.... -..Ji,
)
GAU RI SHANKAR v. STATE OFT.N .
299
confes~ions of A-1 and A-2 and other corroborating evidence.
P.W.1 stated in his deposition that D-1 was a prostitute and had
intimate relationship with A-1 but later on she eloped with D-2 which
incensed A-1, D-2 was taken to A-l's house; got him drunk and thereafter
throttled him. A-1, A-2, A-3, P.W.I and Mohan (absconding accused) were
present there and D-2 was burnt in the room and the unburnt remains of
his body were thrown away in the river.
According to P.W.I, D-3 was killed as he was blackmailing A-1 in
. respect of the death of D-2, D-3 was brought in A-l's godown and after
intoxicating him with liquor, A-1, A-2, A-3, P.W.1 and Mohan throttled him
to death and buried the dead body in a pit. D-4 to D-6 were beaten and
locked up in a store room in A-l's house, D-4 and D-5 died in the room
whereas D-6 was throttled to death. The dead bodies were buried in the
basement of a house under construction.
A
B
c
In the retracted confession, A-1 and A-2 stated that D-1 was beaten D
by A-1, A-2 and Mohan and thereafter, throttled to death by A-1. Her body
was buried in the liquor godown.
The Trial Court found all the appellants as well as A-7 and A-8 to
be guilty of offence under Section 120-B, r/w 302-201, 147, 304/34 and 404
of !PC. A-1 to A-3 were sentenced to death whereas A-4 to A-8 were E
sentenced to life imprisonment.
The High Court confined the sentence awarded to A-1 to A- 6 but
acquitted them of offence under Section 120-B I.P.C. A-7 and A-8 were
acquitted of all charges against them.
F
Before this Court, the appellants contended that the evidence of
P.W.1 was full of contradictions and discrepancies whereas the retracted
corifessions of A-1 and A-2 were uncorroborated and therefore reliance
upon them for conviction of the appellants was not correct. It was also
contended that the present case was not the rarest of rare cases and there G
were sel·eral mitigating circumstances and therefore, sentencing A-1 to A-3
to death was unjust.
This Court confirmed the death sentence awarded to A-1 and A-2
and the life imprisonment awarded to A-4 to A-6; the sentence of A-3 was
reduced to life imprisonment from death, and it was
H
300
SUPREME COURT REPORTS
[1994) 3 S.C.R.
A
HELD : 1.1. The choice as to which one of the two punishments
B
provided for murder is the proper one in a given case will depend upon the
Particular circumstances of that case and the Court has to exercise its
discretion judicially and on well-recognised principles after balancing all
the mitigating and aggravating circumstances of the crime. The Court also
should see whether there is something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls for death
sentence. The nature of the crime and the circumstances of the offender
should be revealing that the criminal is a menace to the society and the
sentence of imprisonment for life would be inadequate. The sentence of
death should be reserved for the rarest of rare cases after a due consideraC tion of both mitigating and aggravating circumstances. [344-B-C]
D
1.2. What circumstances bring a particular case under the category
of rarest of rare cases vary from case to case depending upon the nature
of the crime, weapons used and the manner in which it is perpetrated etc.
(344-F]
Jagmohan Singh v. State of U.P., (1973] 1 SCC 20; Bachan Singh v.
State of Punjab etc. etc., (1980] 2 SCC 684; Ediga Anamma v. State of A.P.,
(1974] 4 SCC 443; Machhi Singh and others v. State of Punjab, (1983] 3
SCC 470; Ke/tar Singh and others v. State (Delhi Administration), (1988] 3
E
SCC 609; Mangal Singh, v. State of U.P., AIR (1975) SC 76 and Allaudin
Mian and Ors. v. State of Bihar, AIR (1989) SC 1456, relied on.
F
Dudh Nath Pan_dey v. State of Uttar Pradesh, (1981] 2 SCC 166;
Suresh v. State of U.P., (1981] 2 SCC 569 and Ummilal v. State of Madhya
Pradesh, [1981] 3 SCC 574, distinguished.
Dalbir Singh and others v. State of Punjab, (1979] 3 SCC 745 and
Rajendra Prasad v. State of Uttar Pradesh, (1979] 3 SCC 646, referred to.
2.1 Section 133 and illustration (b) to Section 114 of the Evidence
Act deal with the law relating to evidence of an accomplice. An accomplice
G namely a guilty associate in crime is a competent witness. The word
'accomplice' has not been defined by the Evidence Act and it is generally
understood that an accomplice means a guilty associate or partner in
crime. Section 133 lays down that the conviction based on the uncorroborated testimony of an accomplice is not illegal, but tho rule of
guidance indicated in illustration (b) to Section 114 has resulted in the
H settled practice to require corroboration of evidence of or accomplice and
;.,,'
'
...
GAURI SHANKAR v. STATE OF T.N.
301
which has now virtually assumed the force of rule of law. [312'C)
Swaran Singh Rattan Singh v. State of Punjab, AIR (1957) SC 637;
Lachhi Ram v. State of Punjab, AIR (1967) SC 792 and Mohd. Hussain
Umar Kochra v. K.S. Dalipsinghji, [1969) 3 SCC 429, referred to.
A
2.2. An approver's statement has to be corroborated in material B
particulars bridging closely the distance between the crime and the
. criminal and furnishing the need ·and assurance for acceptance of his
testimony. The corroboration need not be of a kind which proves the
offence against the accused and it would be sufficient if it connects the
accused with the crime. What is required is that there should be sufficient C
corroborative evidence to show that the approver is speaking the truth with
regard to the accused whom he seeks to implicate. Such corroboration
should be on material particulars and qua each accused. But it is not
n•cessary that there should be independent corroboration of every
material circumstance and it need not consist of evidence which standing
alone would be sufficient to justify the conviction. In other words, there D
should be additional evidence by way of corroboration rendering the story
of an accomplice probably true and that it is reasonably safe to act upon
)
such evidence. The corroborative evidence can be direct or circumstantial.
.)
Ultimately the question whether there is such sufficient corroboration or
not depends upon the facts and circumstances of each case.
E
[312-F-H, 313-A-C)
Swaran Singh Rattan Singh v. State of Punjab, AIR (1957) SC 637;
Lachhi Ram v. State of Punjab, AIR (1967) SC 792; Mohd. Hussain v. State,
[1970) 1 SCR 130; Ravindra Singh v. State of Punjab, AIR (1975) SC 856;
Rameshwar v. State of Rajasthan, AIR (1952) SC 54; Tirubhawan Nath v.
State of Maharashtra, AIR (1973) SC 460 and Vemireddy Satyanarayan
Reddy and others v. State of Hyderabad, AIR (1956) SC 379, referred to.
Wigmore on Evidence, 7th Volume, 3rd Edn., referred to.
F
2.3. P.W.l's evidence is sufficiently corroborated by other evidence G
and establishes beyond all reasonable doubt that A-1 had the motive to do
away D-1 and that A-1 to A-3 and P.W.l alongwith the absconding accused
committed the murders of D-2 and D-3 and all these appellants also
• · •
committed the murders of D-4 to D-6. [328-D-E]
3. The confession is a form of admission consisting of direct acknowH
A
B
c
302
SUPREME COURT REPORTS
[1994] 3 S.C.R.
ledgment or guilt in a criminal charge. It must be in express words by the
accused in a criminal case or the truth or the guilt fact charged or some
essential part or it and a statement that contains self-exculpatory matter
can not amount to a confession. The confession should be a voluntary one,
that means not caused by inducemeut, threat or promise. Whether a
confession is voluntary or not is essentially a question or fact. The judicial
confessions are those which are made before a Magistrate or in court in
due course or legal proceedings and when such a confession is retracted,
the courts have held that apart from the statement being voluntary it
should be true and should receive sufficient corroboration in material
particulars by independent evidence. The rule or prudence namely requiring corroboration does not mean that each and every circumstance mene
tioned in the confession with regard to the participation or the accused in
the crime must be seperately and independently corroborated. It is sufficient ir there is general corroboration or the important incidents, just like
in the case of an approver's evidence and it is not necessary t~at the
corroborative evidence itself should be sufficient for conviction. What
D amount of corroboration would be necessary in a case would be a question
or fact to be determined in the light or the circumstances or the case.
[329-C-G]
E
F
Ba/bir Singh v. State of Punjab, AIR (1975) SC 216; Swam Singh
Rattan Singh v. State of Punjab, AIR (1957) SC 637; Ediga Anamma v. State
of Andhra Pradesh, AIR (1974) SC 799 and State of Uttar Pradesh v. Boota
Singh and others, AIR (1978) SC 1770, referred to.
4.1. Individual part played may assume some importance in some
cases, but in an organised crime that kind of enquiry may not be relevant
for the purpose of finding out the special reasons. However, under the
facts and circumstances of the case, the part played by the individual
accused i.e. A-1 to A-3 may be relevant in weighing mitgating and aggravating circumstances in awarding death sentence, particularly in view
of the fact that A· 4 to A-6 who were also associates of A-1 and who also
participated in murders or D-4 to D-6 are awarded only imprisonment for ·
G lire and also in view of the fact that the case mainly rests on the evidence
of approver. [346-C-D]
4.2. The prosecution has satisfactorily proved that A·l was the leader
of the gang. It is also established that he used to be very cruel and he did
not hesitate to burn young girls with cigarette buts and atleast one of them
H could not bear the cruel treatment and committed suicide. He used to keep
..
GAURISHANKAR v. STATEOFT.N.
303
many good-looking prostitutes exclusively for himself and thus spoiled A
many girls. He alongwith A-2, A-3, Mohan and P.W.1 killed D-1 to D-3 in
a very brutal and ghastly manner and disposed of the bodies. The way the
dead bodies were disposed of would manifest his criminal state of mind
which is diabolical and he, as a leader, could go to any extent to cause the
disappearance of the dead bodies with a view to screen the offences of B
murders. He was of such a nature that he was prepared to elim.inate
anybody who came in his way and caused any hinderduance to the running
of the business. When D-4 to D-6 threatened to his running of brothel
business, A-1 obviously to prove his supremacy in the illicit business
wanted to eliminate them and they were severely beaten and brutally
murdered. D-6 was strangulated in a cold-blooded manner and all the C
three bodies were buried. The public at large were agitated and in all the
six murders, the victims were helpless and undefended. The murders
committed in an organised manner were cold-blooded, gruesome in nature,
diabolic in conception and extremely cruel in execution. A-1 has proved to
be an ardent criminal and thus a menace to the society. It is an exceptional
D
case where the crime committed by him is so gruesome, diabolical and
revolting which shocks the collective conscience of the community. There
cannot be any doubt that his case is one of the rarest of rare cases fully
warranting the imposition of death sentence. [346-F, 347-A-D]
4.3. A-2 throughout actively associated with A-1. He participated in E
every crime. As a close associate of A-1 in every unlawful business activity,
A-2 went on participating with him in these organised crimes. The reasons
given in respect of A-1 for awarding the death sentence equally apply to
the case of A-2 also. [347-E]
4.4. A-3 is not related to A-1. There is discrepancy in evidence of
P.W.1 in so far as role of A·3 is concerned. There is no other evidence as
to the actual participatio~ of A-3 in the murders of D-2 and D-3 apart from
that of P.W.1, though there is enough of corroborating evidence in general
F
for the purpose of inferring common intention in respect of the offences
punishable under Sections 302/34 I.P.C. In the case of A-1 and A-2 there G
are their own individual retracted confessions which can be acted upon
regarding their individual roles. The retracted confessions of co-accused
cannot be taken into consideration for assessing the nature of participation of A-3 for the purpose of deciding whether his case is one of the rarest
of rare cases. [347-G-H; 348-E]
H
)'1" .
304
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
Dudh Nath Pandey v. State of Uttar Pradesh, [1981) 2 SCC 166 and
..., -
Suresh v. State of U.P., [1981) 2 SCC 569, relied on.
5. The fact that A-1 liberally donated to the social organisations, the
cruel treatment meted out to him by the police, forcing him to carry on the
illicit arrack business and brothel business, and the likelihood of the films
B having remotely influenced the mind of A·l, cannot be "mitigating circumstances" for the purpose of awarding death sentence. [353-D-E]
(This court observed that by exhibiting scenes of violence, sex, rape,
bootlegging and drug trafficking etc. in such a manner which have propenc sities of disturbing and corrupting the mind of some viewers like children
and particularly of those who are weak-minded, wayward, indisciplined,
frustated and likewise, who are very likely to become wicked and evil
minded and ultimately end up as criminals indulging in organised crime,
the avowed objects get frustrated. The films should be of educative value
and then only they can play an important role in subserving the interests
D of the society. It is here that the Censor Board should step in firmly and
insist that the film being released has a message meant to improve the
values of life and should see that the film contains only such scenes which
do not affect the value of life). [351-G)
c
E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
634 of 1992.
From the Judgment and Order dated 17. 7 .92 of the Madras High
Court in Cr!. A. No. 457 of 1991.
F
S. Muralidhar and Ms. Shomona Khanna for the Appellants.
..
V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V.
'
Vishwanathan, V.G. Pragasam and P. Subramaniam for the Respondents.
The Judgment of the Court was delivered by
G
K. JAYACHANDRA REDDY, J. Shankar@ Gauri Shankar (original
accused no. 1), Eldin @Albert (original accused no. 2), Shivaji (original
Accused no. 3), Jayavelu (original accused no. 4), Raman@ Raja Raman
(original accused no. 5) and Ravi (original accused no. 6) are the appel-
' -
]ants here. They alongwith four others; Palani (original accused no. 7),
H Paramasivam (original accused no. 8) and two absconding accused Mohan
GAURISHANKAR v. STATEOFT.N. [K.J.REDDY,J.]
305
.. '-'-
and Selvam @ Sclvaraj were arrayed as accused. The case against the two A
absconding accused was separated. The gravamen of the charge against the
accused was that all of them entered into a conspiracy and committed the
murders of six deceased persons in the case namely Lalita (deceased no.
1), Sudalai (deceased no. 2), Ravi (deceased no. 3), Sampath (deceased
no. 4), Mohan (deceased no. 5) and Govindaraj (deceased no. 6). The trial B
court found A-1 to A-8 guilty under Sections 120-B read with 302, 201147,
302/34 and 404 I.P.C. In respect of the murder' charges the trial court
_;.
sentenced A-1 to A-3 to death and A-4 to A-8 to imprisonment for life
under each count and various other terms of imprisonment for the other
minor offences. The High Court acquitted A-7 and A-8 of all the charges
and confirmed the convictions and sentences of the appellants. The High c
Court, however, acquitted them of the conspiracy charge punishable under
Sections 120-B read with 302 I.P.C. So far as A-1 to A-3 are concerned,
both the courts have concurrently held that this is one of the rarest of rare
cases where the sentence of death alone will meet the ends of justice.
A -1 is said to be the leader of the gang consisting of other accused. D
He was originally driving an auto and subsequently he started business in
illicit arrack. A-2 to A-6 were assisting _him. Then he entrusted the illicit
arrack business to his younger brother Mohan, one of the absconding
accused and started brothel business and was running the same profitably
by employing a number of prostitutes. A-1 is said to be a 'cruel and r~thless E
person and he would not hesitate to eliminate anybody who interfered and
obstructed his criminal activities. According to the prosecution, six
deceased persons incurred his wrath and were done away to death by A-1
and his associates and their dead bodies were either buried or were caused
to disappear.
F
The prosecution sought to prove its case by the evidence of Babu,
P.W.1, the approver in the case and the corroborating evidence ._,well as
by retracted judicial confessions made by A-1 and A-2 and the necessary
corroborating evidence to the same. The prosecution case in general as
unfold by evidence adduced may be stated thus :
G
A-1 Shankar who originally was running an auto and thus earning
-~
livelihood, took to business in illicit arrack by transporting the same from
Andhra, Thiruneermalai and other places. A-1 entrusted this business to
Mohan, his young brother and started brothel business. A-2 Eldin married H
306
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A
the younger sister of A-1. The first wife of A-1 is·one Jagadeeswari, A-2
...., ·~.
to A-6, the absconding accused Selvaraj, deceased nos. 2 and 3, P.W.32
Sasi and P.W.l, the approver were also assisting A-1 and Mohan in their
illegal business activities.
B
P.W.1, the approver was doing masonry work in the house of one
c
Guraibabu at Thiruvanmiyur previously and at that time he developed
association with A-1. P.W.1 was prosecuted for the murder of one Natesa
Nadar on 31.12.1985. However, he came out on bail. A-1 asked P.W.1 to
assist his brother Mohan in his illicit arrack business and P.W.1 was
accordingly assisting him. P.W.2 was running a firewood depot at L.B.
Road, Thiruvanmiyur. P.W.3 was residing at Gandhi Road, Periyar Nagar,
Thiruvanmiyur. P.W.4 was employed as the driver of the car of A-1. P.W.5
was an auto driver. P.W.7 was a Dhabi and he used to do ironing at 29th
cross Street, Indira Nagar, Thiruvanmiyur. All these witnesses knew that
A-1 was doing brothel business and D-2, D-3, P.W. 32, A-2, A-3 and others
D were assisting him. They also knew that P.W.1 was assisting Mohan. P.W.1,
A-1 and P.W. 56 encroached upon the poramboke land (Government waste
land) at Periyar Nagar and there was a dispute in respect of that land and
when it came for settlement, A-1 purchased the same from P.W. 56 for Rs.
10,000 in the name of his brother Mohan. A-1 gave Rs. 6,000 to P.W. 56
E
F
and agree to pay Rs. 4,000 to P.W.1 towards the expenses in the murder
case against P.W.1. Thus P.W.1 became closer to him. In that poramboke
land, A-1 put up a shed and was running the brothel house. P.Ws. 21, 51,
71 and 121, one Banu, Kundu Vijaya, Asthina, Begum, Viji and other ladies
were prostitutes in the said brothel house. It is also stated that whenever
good-looking and beautiful women came to the brothel house, A-1 used to
set up a separate house for them and to keep them as _his mistresses. In or
about 1986, A-1. developed intimacy with P.W. 25, Sumathi and he married
her. A-1 used to maintain a diary M.O. 20 and in that he made an entry
about the factum of this marriage. Jagadeeswari, the first wife quarrelled
with A-1 in respect of the second marriage and A-1 set up a separate
residence for P.W. 25 at Marutheeswarar Nagar. D-2 was a close associate
G of A-1 and he celebrated the marriage of D-2 with one Durga on 9.7.1986.
Thereupon D-2 and Durga were staying in the house of P.W. 25. P.Ws. 1
and 32 also knew about it. Two months later, A-1 brought a girl by name
Vijaya to the h0use of P.W. 25 and also married her but Vijaya left him
stealthily as she was tortured by him. P.W. 71, Madhu Alias Gowri came
H to join the brothel and A-1 took her to the house of P.W. 25 and married
·-
-·-""-·
-·
GAURJ SHANKAR v. STATE OFT.N. IK.J. REDDY, J.J
307
her also on 14.3.87 in the presence of P.W. 25 and he also tatooed her A
name on his hand. Similarly P.W. 71 tatooed the name of A-1 as "Gowri
Shankar" in her right hand. Since A-1 used to burn P.W. 71 with cigarette
butts and she was unable to bear the ill- treatment, she ran away. Thereupon A-1 shifted the residence of P.W. 25 to the house of P.W. 34 in June
1987 and he also accommodated D-2 alongwith his wife Durga in another
B
portion of the said house. A-2 and his wife Sandhi were also residing in
the third portion of the said house. A-1 who had made good money from
the brothel business, constructed a house at 142, Gandhi Road, Periyar
Nagar and celebrated the house warming ceremony and M.0. 35 series and
M.O. 36 series are the photo albums taken at the time of the house
warming ceremony. In the photos, D-2, D-3, P.W. 32, P.W. 4 and some of C
the prostitutes who were the inmates of the brothel are found. P.W. 20 was
the neighbourer of A-1 at Gandhi Road, Periyar Nagar and she noticed
that there were frequent quarrels between Jagadeeswari and one Sundari,
who was brought by A-1 after marrying her into that house. It is stated that
A-1 used to torture Sundari by burning her With cigarette butts and as she D
could not bear the same she committed suicide by setting fire to herself.
P.W. 20 also purchased one of the autos from A-1 for the amount due to
her. She further stated that A-1 brought 10 more prostitutes and was
running another brothel. D-1 Lalita, a prostitute who came alongwith other
prostitutes, developed intimacy with A-1 and Jagadeeswari used to complain to P.W. 20 that A-1 was giving away all his earnings to D-1. It appears
E
at that stage D-1 who was not happy, eloped with D-2. A-1 was very
unhappy and searched for D-1 and D-2 and ultimately D-1 was brought by
Pallawaram police. Jagadeeswari told P.W. 20 that. A-1 to A-3 and Mohan
brought Lalita and murdered her and buried her somewhere. D-2 started
brothel business separately and it is said that he used to. take the customers
F
of A-1 to his brothel house and he thus incurred the wrath of A-1.
According to the prosecution, D-2 was brought into the house of A-1 and
there he was killed and the body was burnt and the remnants of the burnt
body were thrown away in the sea. Likewise it is alleged that Ravi, D-3,
who was making enquiries about D-2 was also done to death and his body
was buried in a pit dug in the house of A-1.
G
P.W. 32, Sasi who was assisting A-1 in running the brothel business
was in charge of the collections. Deceased nos. 4, 5 and 6 who belonged
to Mandhaveli area were the friends of P.W. 24. D- 3 was the brother of
P.W. 15 and D-5 was his relation. D-6 was also a friend of D-4. It is alleged H
308
SUPREME COURT REPORTS
[1994[ 3 S.C.R.
A
that these people used to go to Taj Mahal Hotel where the prostitutes from
A-1 brothel used to entertain the customers and make galata and the
information was given to A-1 and he wanted lo do something about that.
On 29.5.88, P.w. 38 and his brother-in-law took a prostitute from the
B brothel of A-1 to V.G.P. Golden Beach. Again they approached P.W.32,
the Cashier for another prostitute who sent P.W .. 121, Anita and told them
that she should be returned at about 3 P.M. At that time D-4, D-5 and D-6
were gain& in an auto fully drunk and they saw P.W. 121 getting down from
another auto and they caught hold of her and pulled her and created galata.
P.W. 7 was ironing the clothes at the street. At that time P.W. 32 and A-2
C
were standing and talking. P.W.21 also was there. P.W. 121 raised a hue
and cry when the three deceased caught hold of her. A-2 questioned them
but they threatened him. This was also witnessed by P.Ws. 7, 9, 11 and 32.
At about 3.30 P.M., P.W.l, A-1 and A-3 were playing cards at the house
of P.W. 25. A-7 and A-8 came there. A-6 who also came there informed
D A-1 about the incident and also told him .that A-2 was beaten by three
persons of Mandhaveli. and that they also misbehaved with P.W. 121.
Thereupon P.W.l, A-1, A-3 and A-6 rushed to the 29th Cross Street
alongwith.A, 7 and A ,8 taking casuarina poles from the shed of the arrack
shop ·of Mohan.' Mohan, A-4, A-5 and Selvaraj also joined them carrying
casuarm~'.stii:ks. In the meantime, A-3 beat the· auto cl.river P.W. 11 who
· E . .brought ·the three deceased. He,. however, escaped with the auto. Thereupon A-1 ha.cl his associates encircled the three deceased and attacked
them. D-5; however, escaped and started rurming. He was chased but he
got into the firewood shop of P.W. 2 at L.B. Road, P.W. 1 and Mohan went
into the shop and brought D-5 out and the Same was witnessed by P.Ws.
F
2 and 3. Meanwhile A-1 and others dragged D-4 and D-6 and brought them
to the cement floor behind the illicit arrack shop and D-5 was also brought
there and all of the three were beaten on the cement floor which is in front
of P.W.S's house. This was witnessed by P.Ws. 3, 8, 89, 32 and 37.
Meanwhile P.W.4 was asked to go to Mandhaveli to find out whether the
three deceased persons were from Mandhaveli. P.W.6 was brought from
G Mandhaveli to identify the th.ree injured persons and on enquiring they told
him that A-1 and bis men have beaten them. P.W.6 was sent back. He,
however, informed P.W. 13 as to what happened. P.W.24 coming to know
about the occurrence went to 29th Cross Street and learnt from P.W.32
that all of the three were beaten. In the meantime A-1 decided to remove
H the three injured persons to his house as he felt that the matter would
.,
GAURI SHANKAR v. STATE OFT.N. (KJ. REDDY, J.]
309
become serious. They were taken in an auto to the house of A-1 who went A
in advance. He also threatened the residents in the locality not to reveal
to the outsiders. P.W.3, a neighbourer, standing in front of his house also
noticed A-1 going away with blood stains all over his shirt and he also saw
the auto carrying the three injured persons. The three injured persons were
put inside the store room and it was locked. At about 10 P.M., P.W.l, A-1 B
to A-3 and the absconding accused Mohan opened the store room and
found D-4 and D-5 already deac! and D-6 groaning. A-1 felt that_it was
dangerous to leave D-6 alive. He was dragged from the store room and
was throttled to death. P.W.1 gave the idea to bury the dead bodies in the
basement of the building under construction belonging to P.W. 14 and the
said house was being built by P.W.1 as contractor. P.W.9, a watchman, and C
another person were lying there. A-1 and others asked them to go away on
the pretext that they wanted to play cards. P.W.9 expressed his inability to
go to his house at that time and A-3 took him to his house where he slept.
Thereupon the accused procured a spade and removed the ·sand in the
trenches of the foundation at to places and buried two dead bodies at one D
place and the third one at another place. The accused came back and
washed blood stains in the store-room. In the meantime since the three
deceased did not return home, P.Ws. 15 and 17 and Puratchi Mani came
to Periyar Nagar and enquired P.W.32 and they also later enquired A-1
who told them that the three deceased came and made galata and they
were beaten and sent away. P.W.15 went to Thiruvanmiyur Police Station E
on 31.5.88 and orally reported about the missing persons. The Circle
Inspector, P.W.133 sent them away saying that the constable told him that
no such incident has taken place. Thereupon P.W.15 went to
Abiramapuram· Police Station and gave the complaint Ex. P.14. P.W.129,
the Sub Inspector registered the case under the heading "Man missing" and F
took up the investigation. Inspector of Police, Thiruvanmiyur arrested P.W.
32 but he told him that the three deceased persons were sent back. On
7.6.88 P.Ws.11 and 15 reported about the missing of the three persons to
the D.S.P., Parangimalai and on his instructions next d~y they went and
made a complaint Ex.P.11 to P.W.98 sub Inspector of Police, Thiruvanmiyur who registered the crime. On 27.6.88 A-1 Was arrested by P.W.98 G
but he was released on bail. P.W.132 Inspector of Police took up both the
cases for investigation. On 6.7.88 he arrested P.W.1 at Tambaram Busstand and questioned him in the presence of P.W.126. P.W.1 gave a
confessional statement and it was reduced to writing. The admissible
H
310
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A
portions were marked as Ex. P.182 to P.186. On this information further
investigation commenced and on being questioned A-1 also made a confessional statement and the admissible portion is marked as Ex. P.187.
P.W.132 seized several articles and searched the house of A-1 at Gandhi
Road. In pursuance of the information given by P.W.1 and A-1 and on
B
c
being pointed out by them the dead bodies of D-4 to D-6 were exhumed
as per the orders of P.W.108, the Tehsildar, and the same were identified
by P.Ws. 15, 17, 18 and 19. The inquest was held over the three dead bodies
and the same were sent for post-mortem. On the basis of the information
given by P.W.l and A-1 further investigation into the deaths of D-1 to D-3
took an active turn. However, the dead body of D-2 was not traced. The
panchnama was made and several incriminating articles from the room of
A-1 where the body of D-2 was burnt, were seized. The Inspector arrested
Mohan and recorded his confession and under the orders of the Tehsildar
they went to the place where the dead body of Lalita, D-1 was said to have
been buried and the earth was dug out and the photo of the place was
D taken and the remnants of the body that were found and other articles like
hair, broken bangles, blouse etc. were seized. The Inspector also recovered
the dead body of D-3 from the back side of the house of A-1 and it was
found decomposed and skeltonised. Likewise dead bodies of D-4 to D-6
·were recovered. Post'mortem was conducted by P.W.122 ·on the dead
bodies of D-3 to D-6. On the dead bodies ofD-4 to D-6, P.W.122 found
E several injuries and opined that they died due to injuries caused by
violence. P.W.122, who also conducted post- mortem on the dead .body of
D-3, Ravi opined that he died because of asphyxia due to strangulation.
On 15.7.88 P.W.122 went to the shed as per the requisition issued by
F
the Tehsildar from which place the remnants of the dead body of Lalita,
D-1 were dug out and she conducted post-mortem on the spot. She noted
various details in the post-mortem report including the fracture of the
bones. P.W.122 sent the skull and jaw bones to the Chemical Examiner and
after receipt of the report P.W.122 gave her final report Ex.P.170. P.W.134,
Inspector, C.B., C.I.D. took up !lie investigation on 15.7.88 and made a
G thorough search of the all the places and examined several witnesses. He
also sent the skulls and bones of the deceased persons to the Forensic
Science Department for super-imposition test. As P.W.l, A-1 and A-2 were
in a mood to confess he gave the requisitions for recording their confes-
,
sional statements. P.W.106, Judicial Magistrate, Thiruvanmiyur recorded
H the confessional statement of A-1 after the necessary warnings and after
GA URI SHANKAR v. STA TE OF T.N. [K.J. REDDY, J. J
311
~ ....
complying with the necessary formalities. Ex. P.100 is the confessional A
statement of A-1. On 15.8.1988, P.W. 134 arrested A- 2 and recorded his
confessional statement and its admissible portion under Section 27 of the
Evidence Act is marked as Ex. P.68. Later A-2 was produced before
P.W.107, Judicial Magistrate, Ponneri who recorded his confessional statement and it is marked as Ex.P.106.
B
The confessional statement of P.W.1 was recorded by another
Magistrate under Section 164. Inspector P.W.134 issued a requisition
Ex.P.94 and P.W.105, Chief Judicial Magistrate, directed P.W.1 to be
produced before him on 21.12.88 and on that date P.W.105 read over
Ex.P.5, the confessional statement of P.W.1, who admitted it to be correct c
and also stated that he made the statement voluntarily and that he would
depose in detail in court and also prayed for pardon. P.W. 105 accepted
his statement and granted pardon.
P.W.118, the Assistant Director of the Forensic Science Department
conducted the super-imposition test and sent his report. P.W. 120, the D
Director of Forensic Science Department sent his reports regarding the
handwritings of A-1, A-2 and P.W.25 and after completion of the investigalion, the charge-sheet was laid. However, meanwhile Mohan who was
arrested escaped and another accused Selvaraj was found to be still
absconding. The charge-sheet was laid against A-1 to A-8 as well as the E
two absconding accused. When examined under Section 313 Cr.P.C. the
accused denied the prosecution case. A-1, however, gave a lengthy statemen! and we will refer to the relevant portions of the same at an appropriate stage while considering further details and the evidence.
From the above stated facts it can be seen that it is the attack on D-4 F
to D-6 that brought to light the whole case and the further investigation
was conducted into tluo deaths of D-1 to D-3 also.
As mentioned above the prosecution sought to prove its case against
these accused both by the evidence of P.W.1 alongwith corroborating G
evidence as well as the retracted judicial confessions of A-1 and A-2 and
the necessary corroborating evidence to the same. Learned counsel for the
appellants submitted that the evidence of P.W.l, the approver is full of
' '
contradictions and discrepancies and the version given by him goes not
appeal to be true and in any event his evidence is not corroborated in
material particulars by independent evidence. His further submission is H
312
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
that the other item of evidence namely the retracted confessions can not
be relied upon since they do not appear to be true and voluntary and that
in any event they are also not corroborated by independent evidence.
B
It may not be necessary to refer to the various decisions of the courts
laying down principles and guidelines regarding the apprecia~ion of
evidence of an approver.
Section 133 and illustration (b) to Section 114 of the Evidence Act
deal with the law relating tq an accomplice evidence. An accomplice
namely a guilty associate in crime is a competent witness. Section 133 lays
C down that the conviction based on the uncorroborated testimony of an
accomplice is not illegal, but the rule of guidance indicated in illustration
(b) to Section has resulted in the settled practice to require corroboration
of evidence of an accomplice and which was now virtually assumed the
force of a rule of law. The word 'accomplice' has not been defined by the
D
Evidence Act and it is generally understood that an accomplice means a
guilty associate or partner in crime. An accomplice by becoming an approver becomes a prosecution witness. In interpretation of Section 133 and
illustration (b) to Section 114, the Courts have laid down that an approver's
evidence has to satisfy a double test; (1) his evidence must be reliable and
(2) his evidence should be s~fficiently corroborated. It is enough if we refer
E to some of those decisions. (See Swaran singh Rattan Singh v. State of
Punjab, AIR (1957) SC 637; Lachhi Ram v. State of Punjab, AIR (1967)
SC 792 and Mohd. Hus~ain v. State, [1970] 1 SCR 130.
Coming to the extent and nature of corroboration, the Courts have
F
held that ordinarily the approver's statement has to be corroborated in
material particulars bridging closely the distance between the crime and
the criminal and furnishing the need and assurance for acceptance of his
testimony. The corroboration need not be of a kind which proves the
offence against and accused and it would be sufficient if it connects the
accused with the crime. What is required is that there should be sufficient
G corroborative evidence to show that the approver is speaking the truth with
regard to the accused whom he seeks to implicate. Such corroboration
should be on material particulars and qua each accused. But it is not
necessary that there should be independent corroboration of every material
circumstance and it need not consist of evidence which standing alone
H would be sufficient to justify the conviction. In other words, there shoul.d
>
'
GAURI SHANKAR i·. STATE OFT.N. [K.J. REDDY.].]
313
be additional evidence by way of corroboration rendering the story of an
A
accomplice probably true and that it is reasonably safe to act upon such
evidence. The independent corroboration need not also cover the whole of
the prosecution story or even whole of the material particulars, for that'
would amount to render the story of the accomplice itself superfluous.
What is required is that the evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to
connect him with the crime. It is sufficient if there is corroboration as to
the material circumstances and the crime and of the identity of the accused
B
in relation to the crime. The corroborative evidence can be direct or
circumstantial. Ultimately the question whether there is such sufficient
corroboration or riot again depends upon the facts and circumstances of C
each case. (See Ravindra Singh v. State of Punjab, AIR (1975) SC 856;
Rameshwar v. State of Rajasthan, AIR (1952) SC 54; Tirnbhawan Nath v.
State of Maharashtra, AIR (1973) SC 450 and Vemireddy Satyanarayan
Reddy and others v. State of Hyderabad, AIR (1956) SC 379.
It will be interesting to note an ideal instruction by a Judge to the
Jury In a passage which occurs in Wigmore on Evidence (7th Vol.-Third
Edn. at page 328) which reads as under :-
D
"It may not be unfit to observe to you here that the confirmation E
to be derived to an accomplice is not a repetition by others of the
whole story of the accomplice and a confirmation of every part of.·
it; that would be either impossible or unnecessary and absurd; ............