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IN SUPREME COURT OF INDIA Page 1 of 26

CASE NO.:
Appeal (crl.) 25-26 of 2000

PETITIONER:
NARAYAN CHETANRAM CHAUDHARY & ANR.

Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT: 05/09/2000

BENCH:
K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.
L...I...T.......T.......T.......T.......T.......T.......T..J

Three desperadoes, the two appellants and one Raju (PW2)

who had gone amuck, committed the heinous crime of murders
in a most 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 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. 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.

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.1"). 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.

The prosecution case, as revealed from the investigation

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and official report filed in the Court, is that complainant
Sanjay Rathi (PW1) along with his father Keshrimal Rathi,
his mother deceased Meerabai Rathi, his younger sister
deceased Km.Preeti, his wife deceased Babita and his son
deceased Chirag were residing in Flat No.6 on the Second
Floor of Himanshu 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 1992 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 becoming approver appeared as
PW2, a resident of Muklava District, Ganganagar, Rajasthan
after passing 11 standard examination in the year 1993-94
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, 1994. Accused No.1 and 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, 1994 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 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 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.1 has also left the job at Bombay Vihar. Thereafter all
the three went to a room in Nagpur Chawl in which Accused
No.1 was residing and started living there.

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, 1994 they decided to commit
theft/robbery at the house of Rathis. Accused No.1 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, 1994 all 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 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 Chawl 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
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shop of Jaswant (PW5) and purchased one utility knife of
Fiscer make (Article 147) for Rs.55/-.

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 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.@@
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Thereafter Hemlata, deceased with her husband and son@@
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arrived at the house of Rathis in connection with tying
Rakhi to her brother PW1 as she had not come for the said
purpose on the day of Rakhi, Poornima Festival on 21st
August, 1994. Sanjay Rathi, PW1 came to his house at about
1 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.1 was armed with the new 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 which was
identified by Raju PW2 as belonging to Sanjay Rathi, PW1.
Realising that Sanjay Rathi, PW 1 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.1 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 time they would reach there after
chaining the doors of other flats in the said building from
outside. After the doors of all other flats were chained
from outside, Raju (PW2) went to the flat of Rathis. 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 appellants followed him. Appellant
Jeetu closed the door from inside. Accused 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 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 out a finger towards an
almirah inside the room. Accused Nos.1 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
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with the knife blows inflicted by Accused No.1 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.1 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.1 who cut a length of
wire of washing machine and used it to choke her to death,
who however, survived. When they came out of the bathroom,
they heard some noise from the bathroom which prompted
accused No.1 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 the kitchen
where the accused No.1 had already reached and was washing
the blood stained knife. Raju held Satyabhamabai Sutar and
accused No.1 gave knife blows resulting in her death.
Thereafter Raju and accused No.1 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 his grandmother and
threatened that if the 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 Meerabai 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
saying he had died. Accused No.2 and Raju PW2 then came out
and joined Accused No.1 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.1 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, the Accused No.1 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.1 changed his pant 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.1 cut the telphone
wires with 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.1 and gave blows to the child and killed
him. 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 Rickshaw and came
back to their room in Nagpur Chawl. As noticed earlier,
Sanjay Rathi, PW1, his brother-in-law Shrikant Navandhar
(PW15) had left the flat before the accused attacked the
victims. Both of them went back to the house of Rathis by
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6.45 p.m. Sanjay Rathi PW1 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
kept at their houses. On getting reply in the negative,
Sanjay Rathi made inquiries from his relatives and family
members by making phone calls from 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 of the maid-servant had also come there. Sanjay
Rathi PW1 opened the door with the duplicate key in the
presence of Shrikant Navandhar PW15, Damu Sutar and
Smt.Sharmila 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 complainant Sanjay Rathi,
the neighbourers and by-passers got collected in front of
the 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
Rathis 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 PW1 and
Shrikant Navandhar, PW15 entered the flat and saw the
maid-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 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,@@
JJJJJJJJJJJJJJJ
Accused No.2 asked PW 2 Raju to bring liquor and some@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
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.100 currency notes
denomination, one bundle of Rs.50 currency notes
denominations and bundles of Rs.10/- denominations, besides
gold and silver ornaments. Raju kept for 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.1. 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.1 to wash the blood stained clothes. While
washing Pant of Accused No.1 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.
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
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area for about an hour or so. Again coming back to the said
room, Accused No.1 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. On the
next day at the instance of Accused No.1 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 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.1 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 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 earlier. After the commitment
but before the commencement of the trial Accused No.3 Raju
Rajpurohit sent a letter to the Commissioner of Police
repenting and expressing his wish to make a confessional
statement. PI Shinde (PW 63) filed 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 confessional statement of the accused Raju
Rajpurohit recorded. The Trial Court 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. The
confessional statement, as recorded by Special Judicial
Magistrate (PW41) was received by the Trial Court in a
closed envelope. 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
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: "On query by this Court he stated before me that
he is prepared to make a full and true disclosure of the
whole of the circumstances within his knowledge regarding
these offences and the entire incident involved and that he
is ready to accept the pardon. I have carefully perused the
entire record of this case and also the confessional
statement of this accused Rajendrasingh alias Rajusingh
Ramlal Purohit which has been recorded by Special Judicial
Magistrate, Pune. The said confessional statement was
received in this Court in a closed envelope on 21.12.1995
from Shri G.H. Komne, Special Judicial Magistrate and since
the said envelope was not bearing lac seals on the packet I
kept the said envelope in another envelope, closed the said
envelope and got the lac seals put on it. Today I opened
the said sealed envelope of this Court and also the inner
envelope and took out the said confessional statements in
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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 Rajusingh alias Raendra Singh Ramlal Purhoit 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 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 a 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." 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.

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 No.1 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.1 denied that he knew 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 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.1 Narayan is convicted for the offence

punishable under Section 302 of the Indian Penal Code (for
causing the deaths of deceased Meeradevi Kesrimal Rathi,
deceased Babita alias Nita Sanjay Rathi deceased Priti
Kesrimal Rathi, deceased Chirag Rathi, deceased Hemlata
Shrikant Navandhar and deceased Satyabhamabai Damu Sutar),
for the offence punishable under section 302 read with 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 Indian Penal Code, and is sentenced to death and he
be handed by neck till he is dead and to pay a fine of
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Rs.10,000/- I/d to suffer R.I for three years on all counts.

The accused No.2, Jitu is convicted for the offence

punishable under section 302 of the Indian Penal Code (for
causing the death of Pratik Shrikant Navandhar) and for the
offences punishable under section 302 read with 120-B of the
Indian Penal Code (for causing the death of deceased
Meeradevi Rathi, deceased Babita alias Nita Rathi, deceased
Hemlata Shrikant Navandhar, deceased Priti Rathi,
Satyabhamabai Damu Sutar and Chirag Rathi) and for the
offence punishbale under section 120-B of the Indian Penal
Code and is sentenced to death and be handed by neck till he
is dead and to pay a fine of Rs.10,000/- I/d to suffer R.I
for three years on all counts.

Both the accused persons are convicted for the offence

punishable under section 397 read with 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 further
R.I. for two years for such offence.

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.I. for
two years for such offence.

Both the accused persons are further convicted for the

offence 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 I/d to suffer R.I. for
one month for such offence.

Substantive sentences of imprisonment and sentences of

imprisonment in default of fine to run consecutively.

Accused No.1 Narayan be given set off of the period from

5.9.94 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."

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 been
filed in this Court by special 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 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 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
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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.

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 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.

In order to appreciate the submissions of the learned

counsel a reference to Sections 306 and 307 Cr.P.C. is@@
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necessary. Section 306 provides: "Tender of pardon to@@
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accomplice (1) With a view to obtaining the evidence of any
person supposed to have been directly or indirectly
concerned in or privy to an offence to which this section
applies, the Chief Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation or inquiry
into, or the trial of, the offence, and the Magistrate of
the first class inquiring into or trying the offence, at any
stage of the inquiry or trial, may tender a pardon to such
person on condition of his making a full and true disclosure
of whole of the circumstances within his knowledge relative
to the offence and to every other person concerned, whether
as principal or abettor, in the commission thereof.

(2) This section applies to:

(a) any offence triable exclusively by the court of

session or by the court of a special judge appointed under
the Criminal Law Amendment Act, 1952;

(b) any offence punishable with imprisonment which may

extend to seven years or with a more severe sentence.

(3) Every magistrate who tenders a pardon under sub-

section (1) shall record--

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the

person to whom it was made;

and shall, on application made by the accused, furnish

him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under

sub-section (1) --

(a) shall be examined as a witness in the court of the

magistrate taking cognizance of the offence and in the
subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in

custody until the termination of the trial.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 26
(5) Where a person has accepted a tender of pardon made
under sub-section (1) and has been examined under sub-
section (4), the magistrate taking cognizance of the offence
shall, without making any further inquiry in the case, --

(a) commit it for trial--

i) to the court of session if the offence is triable

exclusively by that court or if the magistrate taking
cognizance is the Chief Judicial Magistrate;

ii) to a court of special Judge appointed under the

Criminal Law Amendment Act, 1952, if the offence is triable
exclusively by that Court;

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

Section 307 provides:

"Power to direct tender of pardon -- At any time after

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

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 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, the pardon is to be granted by the
Trial Court subject to the conditions specified in
sub-section (1) of Section 306, 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. 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 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 Code 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.
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 by the committal court observed
that every person accepting the tender of pardon made under
sub-section (1) of Section 306 has to be examined as 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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 26
Referring to a Full Bench Judgment of the Gujarat High Court
in Kalu Khoda v. State [AIR 1962 Guj. 283] this Court
observed that: "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 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 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 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. 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 fradulent transaction was extremely doubtful. In
that context it was observed that the evidence of the
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
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 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 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 apprehension of his
colleagues being convicted and sentenced prevented him from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 26
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 11.10.1994
addressed 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 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:

"I have not committed murder of anyone during the crime

of robbery and murder of Rathi family of Pune. I was only
involved in the conspiracy of robbery and murder with my
friends Narayan and Jeetu. I only assisted my friend Jeetu
and Naryana in committing those seven gruesome murders on
that faithful days. I had not assaulted any one but
committing murder and helping to commit the same are both
sine. I am burning in that sine. I have dependence over my
act and I want get rid of this feeling that is why, I am
thinking of committing suicide. I request you that my

family should not be harassed after my death. They have no

fault of any kind. 11.10.94."

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 the lacunae in
the prosecution case. Such is not the present case.
Learned defence counsel has then contended that conviction
based 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 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 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 on the Law of Evidence" - (1931) Vol.1 Para 967].
This Court in Suresh Chandra Bahri v. State of Bihar[1995
Supp. (1) SCC 80] observed that:@@
JJJJJJJJJJJJJJJJJJJJJJJJJJ
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 26
"Since many a times the crime is committed in a manner
for which no clue or any trace is available for its
detection and, therefore, pardon is granted for apprehension
of the other offenders for the recovery of the incriminating
objects and the production of the evidence which otherwise
is unobtainable. The dominant object is that the offenders
of the heinous and grave offences do not go unpunished, the
Legislature in its wisdom considered it necessary to
introduce this section and confine its operation to cases
mentioned in Section 306 of the Code. The object of Section
306 therefore is to allow pardon in cases where heinous
offence is alleged to have been committed by several persons
so that with the aid of the evidence of the person granted
pardon the offence may be brought home to the rest. The
basis of the tender of pardon is not the extent of the
culpability of the person to whom pardon is granted, but the
principle is to prevent the escape of the offenders from
punishment in heinous offences for lack of evidence. There
can therefore be no objection against tender of pardon to an
accomplice simply because in his confession, he does not
implicate himself to the same extent as the other accused
because all that Section 306 requires is that pardon may be
tendered to any person believed to be involved directly or
indirectly in or privy to an offence."

The evidence of the Approver must, however, be shown to

be of a reliable witness. In Jnanendra Nath Ghose vs. 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 self-
confessed 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 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:

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 illegal, the courts nevertheless
cannot lose sight of the rule of prudence and practice which
in the words of Martin B. in R v. Boyes, (1861) 9 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 unless he is corroborated in material particulars."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 26

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 1949 PC 257) when its
attention was drawn to the judgment of Madras High Court in
In re Rajagopal ILR (1994) Mad 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 should be slow to depart from the rule of
prudence, based on long experience, which requires some
independent evidence implicating the particular accused.
The danger of acting upon accomplice evidence is not merely
that the accomplice is on his own admission a man of bad
character who took part in the offence and afterwards to
save himself betrayed his former associates, and who has
placed himself in a position in which he can hardly fail to
have a strong bias in favour of the prosecution; the real
danger is that he is telling a story which in its general
outline is true, and it is easy for him to work into the
story matter which is untrue."

The combined effect of Ss.133 and 114, illustration (b)

may be stated 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 alone. Therefore
though the conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the courts will,
as a matter of practice, not accept the evidence of such a
witness without corroboration in material particulars. The
law may be stated in the words of Lord Reading C.J. in R.
v. Baskerville 1916-2 KB 658 as follows:

"There is no doubt that the uncorroborated evidence of

an accomplice is admissible in law (R. v. James Atwood,
(1787) 1 Leach 464). But it has been long a rule of
practice at common law for the judge to warn the jury of the
danger of convicting a prisoner on the uncorroborated
testimony of an accomplice, and in the discretion of the
Judge, to advise them not to convict upon such evidence, but
the judge should point out to the jury that it is within
their legal province to convict upon such unconfirmed
evidence (R. v. 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 Court declared:

"There is no antithesis between Section 133 and

ilustration

(b) to Section 114 of the Evidence Act, because the

illustration only says that the Court ’may’ presume a
certain state of affairs. It does not seek to raise a
conclusive and irrebuttable presumption. Reading the two
together the position which emerges is that though an
accomplice is a competent witness and though a conviction
may lawfully rest upon his uncorroborated testimony, yet the
Court is entitled to presume and may indeed be justified in
presuming in the generality of cases that no reliance can be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 26
placed on the evidence of an accomplice unless that evidence
is corroborated in material particulars, by which is meant
that there has to be some independent evidence tending to
incriminate the particular accused in the commission of the
crime. It is hazardous, as a matter of prudence, to proceed
upon the evidence of a self-confessed criminal, who, in so
far as an approver is concerned, has to testify in terms of
the pardon tendered to him. The risk involved in convicting
an accused on the testimony of an accomplice, unless it is
corroborated in material particulars, is so real and potent
that what during the early development of law was felt to be
a matter of prudence has been elevated by judicial
experience into a requirement or rule of law. All the same,
it is necessary to understand that what has hardened into a
rule of law is not that the conviction is illegal if it
proceeds upon the uncorroborated testimony of an accomplice
but that the rule of corroboration must be present to the
mind of the Judge and that corroboration may be dispensed
with only if the peculiar circumstances of a case make if
safe to dispense with it.

In King v. Baskerville (1916 2 KB 658), the accused was

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

In Rameshwar v. State of Rajasthan (1952 SCR 377), this

Court observed that the branch of law relating to accomplice
evidence was the same in India as in England and that it was
difficult to better the lucid exposition of it given in
Baskerville’s case by the Lord Chief Justice of England.
The only clarification made by this Court was that in cases
tried by a Judge without the aid of a Jury it was necessary
that the Judge should give some indication in his judgment
that he had this rule of caution in mind and should proceed
to give reasons for considering it unnecessary to require
corroboration on the facts of the particular case before him
and show why he considered it safe to convict
withoutcorroboration 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 Act observed that whilst it is
not illegal to act on the uncorroborated evidence of an
accomplice, it is a rule of prudence so universally followed
as to amount almost to a rule of law that it is unsafe to
act on the evidence of an accomplice unless it is
corroborated in material respects so as to implicate the
accused; and further that the evidence of one accomplice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 26
cannot be used to corroborate the evidence of another
accomplice. The rule of prudence was based on the
interpretation of the phrase "corroborated in material
particulars" in illustration (b). Delivering the judgment
of the Judicial Committee, Sir John Beaumont observed that
the danger of acting on accomplice evidence is not merely
that the accomplice is on his own admission a man of bad
character who took part in the offence and afterwards to
save himself betrayed his former associates, and who has
placed himself in a position in which he can hardly fail to
have a strong bias in favour of the prosecution; the real
danger is that he is telling a story which in its general
outline is true, and it is easy for him to work into the
story matter which is untrue. He may implicate ten people
in an offence and the story may be true in all its details
as to eight of them but untrue as to the other two whose
names may have been introduced because they are enemies of
the approver. The only real safeguard therefore against the
risk of condemning the innocent with the guilty lies in
insisting on independent evidence which in some measure
implicates each accused.

This Court has in a series of cases expressed the same

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

To the same effect is the judgment in Balwant Kaur v.

Union Territory, Chandigarh [1988(1) SCC 1].

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 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 582] 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 to give rise to a conclusion of
guilt beyond reasonable doubt. Insistence upon
corroboration is based on the rule of caution and not merely
a rule of law. 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 judgments of this Court
and the High Courts observed: "Bearing the above principles
laid down in the above decisions and also in other cases
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 26
such as Chandan and Another versus State of Maharashtra
(1988 (1) SC Cases 696), Abdul Sattar versus Union of
Territory of Chandigarh [AIR 1986 SC 1438], Sureshchand and
others versus State of Bihar [1994 (2) Crimes 1033) and
Niranjan Singh versus State of Punjab [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 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 corroborative circumstances and concluded:

"All the above 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 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 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 tresspass into the house/flat of
complainant Sanjay Kesrimal Rathi in order to commit the
dacoity i.e. theft of valuables and to commit murders of
all the persons whosoever may be found in the said flat at
the time of such dacoity or theft and thereby committed an
offence punishable under section 449 read with 120-B of the
Indian Penal Code.

(3) Both the accused persons alongwith Raju approver

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

(4) Both the accused persons in pursuance of conspiracy

with approver Raju (P.W. No.2) committed theft of cash of
Rs.85,000 and other ornaments such as one wrist watch
(Art.78), gold ring (Art.80) gold necklace (Art.103) foreign
coins (Art.138), three coins (Art.183)(1), (B-1), Cameral
(Art.160), ladies wrist watch (Art. 162)(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, thereafter put them under fear of
instant death and then caused death of the persons who were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 26
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 and Pratik s/o Shrikant Navandhar by a
weapon (Utility knife) chhuri (Art.147) and thereby
committed an offence punishable under section 397 read with
120-B of the Indian Penal Code.

5. That it was accused No.1 Narayan who voluntarily

caused the deaths of deceased Meeradvei Kesarimal Rathi,
deceased Babita alias Nita Sanjay Rathi wife of complainant
Sanjay Rathi, deceased Preeti Kesrimal Rathi deceased
Hemlata Shrikant Navandhar wife of Shrikant Navandhar,
Chirag Rathi son of Sanjay Rathi and the maid servant
Satyabhamabai Damu Sutar by personally causing them injuries
with weapon chhuri (Art.147) with intention to cause their
deaths and thereby committed offences punishable under
section 302 of the Indian Penal Code for causing their
deaths.

6. The accused No.1 Narayan being one of the

conspirator in causing the death of all the persons
whosoever were found at the said flat at the time of
commission of the robbery, committed offence punishable
under section 302 read with 120-B of the Indian Penal Code
in concern with the death of Pratik Navandhar.

7. The accused No.2 Jitu being conspirator alongwith

the accused No.1 Narayan in committing the murders of the
above referred persons viz. Meeradevi 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 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 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@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
mentioned along with the names of the corroborative@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJ
witnesses and the substance of corroborative evidence. All
corroborative evidence, to the testimony of Raju PW2 has
been considered 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 consideration the submissions made by
learned Public Prosecutor, we come to the conclusion that no
infirmity of whatsoever is found in the judgment of the
trial court. The evidence has properly been appreciated.
The material placed before the trial court has carefully
been considered by it. The conclusion as to the testimony
of the approver getting corroboration on the material
particulars, in our opinion, is unassailable."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 26

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
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 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.

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 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 91 (pages 275 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 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 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 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 the statement, at the time of
recording of the deposition of the witness. The notes
unambiguously indicate that the alleged improvement made by
PW2 in 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 26
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 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. In this regard this Court in
State of Himachal 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:

"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 prosecutions case doubtful. The
normal course of the human conduct would be that while
narrating a particular incidence there may occur 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 such
witness was making the statement. This Court in Ousu
Varghese v. State of Kerala [1974 (3) SCC 767] held that
minor variations in the accounts of the witnesses are often
the hallmark of the truth of their testimony. In Jagdish
vs. State of Madhya Pradesh [1981 SCC (Crl.) 676] this
Court held that when the discrepancies were comparatively of
a minor character and did not go to the root of the
prosecution story, they need not be given undue importance.
Mere congruity or consistency is not the sole test of truth
in the depositions. This Court again in State of Rajasthan
vs. 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
discrepancies are due to normal errors of observation,
normal errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
occurrence, and the like. Material discrepancies are those
which are not normal, and not expected of a normal person.

Referring to and relying upon the earlier judgments of

this Court in State of U.P. Vs. M.K. Anthony (AIR 1985 SC
48), Tehsildar Singh and Anr. Vs. State of U.P. (AIR 1959
SC 1012), Appabhai and Anr. Vs. State of Gujarat (JT 1988
(1) SC 249), Rami alias Rameshwar Vs. State of Madhya
Pradesh (JT 1999 (7) SC 247), Bhura alia Sajjan Kumar Vs.
State of Madhya Pradesh (JT 1999 (7) SC 247), this Court in
a recent case Leela Ram Vs. 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 used to jettison the
evidence in its entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot be expected in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 26
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.....

The Court shall have to bear in mind that different

witnesses react differently under different situations:
whereas some become speechless, some start wailing while
some others run away from the scene and yet there are some
who may come forward with courage, conviction and belief
that the wrong should be remedied. As a matter of fact it
depends upon individuals and individuals. There cannot be
any set pattern or uniform rule of human reaction and to
discard a piece of evidence on the ground of his reaction
not 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 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 of the narrations extracted by the Public
Prosecutor and the defence counsel in the course of his
examination-in-chief and cross-examination.

Mr.S.Muralidhar has submitted in the alternative that

even if the conviction of the appellants is upheld, they may@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
not be sentenced to death keeping in view their young age@@
JJJJJJJJJJJJJJJJJJJJJ
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 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 of crime as the house or flat of Rathi and the
time in between 2.00 p.m. to 4.00 p.m. so that there could
be only female members and the children at the house/flat of
Rathi and no other persons except Kumari Poornima Dadhe and
Mrs. Khara were in the same building.

(2) Both the accused persons and approver Raju made a

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

(4) Both the accused in addition to other injury or

injuries, invariably caused injuries on the necks of the
victims which fact clearly shows that were intending to
cause their deaths only.

(5) The evidence of approver Raju (P.W. No.2) which is

accepted by this Court discloses that the accused No.1
Narayan, killed deceased Meeradevi Kesrimal Rathi, deceased
Nita alias Babita Rathi, deceased. Hemlata Shrikant
Navandhar deceased Satyabhamabai Damu Sutar, 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.1 Narayan
assaulted her with Churri (Art.147) and at last pulled her
to the bed in the said room. He has done so eventhough
deceased Meeradevi for all the time was pleading for mercy
and was showing her willingness to allow the accused persons
and approver Raju to take away whatever they wanted.

(7) The evidence of approver Raju (P.W.No.2) further

discloses that the accused No.1 Narayan assaulted Nita alias
Babita with Churri (Art.147) eventhough she was ready to
give whatever she was having and was praying for mercy
because she was having a small child aged 1½ years old and
she was pregnant and expected a child very soon. However,
the accused No.1 Narayan or any of the accused did not feel
any mercy for her and accused No.1 Narayan assaulted her
with Churri (Art.147) 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.1 Narayan assaulted the maid servant

with the 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 on her palm. The said fact however did not make
the accused No.1 Narayan giving further blows/assault to her
with the Churri. It shows merciless killing.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 26
(9) The evidence further discloses that deceased Priti
was first strangulated with the wire of washing machine to
such extent the blood started oozing from her mouth and
subsequently on hearing the voice coming from her mouth, the
accused No.1 Narayan assaulted her with the 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 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 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.147) from accused No.1 Narayan and
assault Pratik on his neck causing his instant death. The
words uttered by him at that the like "the child was still
alive" shows his merciless and cruel nature.

(11) The accused No.1 Narayan and accused No.2 Jitu

killed deceased Chirag Rathi and deceased Pratik who were
aged 1½ to 2½ years old even though they were not having any
fear or identification of themselves.

(12) Thus, both the accused killed helpless five ladies

and two children who being the weaker section of the society
in fact who needs protection from the society.

Thus the acts of both the accused in killing the said

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

The High Court while dealing with this aspect observed:

"It was a calculated Plan of committing robbery and also

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

From the point of victims, as per Item No.V of the said

judgment, the innocent children have been killed and so are
helpless women. As has been noticed so far, the victims had
been five helpless women and two very young children.
Referring to the aforesaid two mitigating circumstances as
to the past of the accused as also their possibility of
reformation, in our opinion, an inference has to be drawn on
the basis of the material on record. It is the past that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 26
portends for the future. From the defence, virtually no
material is produced. The evidence on record, if any,
suggests that none of the accused had least regard for the
human lives. They were so self-centered on the idea of self
preservation that doing away with all inmates of the house
was settled upon them as an important part of the plan from
the beginning. The manner in executing the plan has also
been since beginning.

It cannot be forgotten that in deciding upon the

aforesaid course of action, the accused were confident of
the fact that the persons to be done away with would be
women and, therefore, it was an easy target to handle it.
To use the current parlance of terrorism, the intended
victims were a "soft target".

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

The accused hardly held any reservation in considering

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

It was urged on behalf of the Accused that at the time

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

and concluded:

"The evidence has been thoroughly discussed by the trial

court. While considering the aspect of the corroboration,
we too have done so to the extent necessary. The
circumstances that have been narrated above clearly suggest
that the crime was definitely for gain. The accused did
gain out of it. Whatever little that the police have
recovered is before the court by way of articles. For the
rest, there is nothing on record. Killing of 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,
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 26
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 [1980 (2) SCC 684] this Court in Ram Deo
Chauhan v. State of Assam [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 of Punjab [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, brutal quadruple murder. It is
relevant that the murder was committed in the most brutal
manner with severe cruelty inflicting number of injuries on
each victim including a female baby hardly of 2-1/2 years of
age and two helpless women. They were murdered while they
were in deep sleep after lunch keeping the doors and windows
of the house open without suspecting any foul play from any
quarter. It is, in my view, a rarest of the rare cases
which is of exceptional nature. Facts and circumstances of
the case justify the extreme penalty provided under Section
302 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 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:

"There cannot be any manner of doubt that in the present

case murders have been committed by the accused after pre-
meditation with a motive to commit a theft. The crime can
be described to be heinous, dastardly, gruesome and cruel.
The persons asleep have been killed in a merciless manner by
the accused who has no value for human lives. The crime
committed by the accused falls within the aggravating
circumstances as it has been committed after previous
planning involving extreme cruelty. The murders in the
present case involve exceptional depravity. In view of all
this the question arises whether the single circumstance of
the accused being too young should be good enough for us to
award lighter punishment or not. We have not been able to
lay our hands upon any observations of the Apex Court and
none has been brought to our notice during the course of
arguments that even if all the aggravating circumstances are
present in a particular given case, single circumstance of
the accused being too young or too old would outweigh other
aggravating circumstances and the court must on the basis of
a single circumstance 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 26
death sentence. The present is one of the rarest of rare
cases in which infliction of extreme penalty is called for."

It is true that in a civilised society a tooth for

tooth, and a nail for nail or death for death is not the
rule but it is equally true that when a man becomes a beast
and menace to the society, he can be deprived of his life
according to the procedure established by law, as
Constitution itself has recognised the death sentence as a
permissible punishment for which sufficient Constitutional
provision for an appeal, reprieve and the like have been
provided under the law. It is true that life sentence is
the rule and death sentence is an exception. We are
satisfied that the present case is an exceptional case which
warrants the awarding of maximum penalty under the law to
the accused/appellant. The crime committed by the appellant
is not only shocking but it has also jeopardised the
society. The awarding of lesser sentence only on the ground
of the appellant being a youth at the time of occurrence
cannot be considered as a mitigating circumstance in view of
our findings that the murders committed by him were most
cruel, heinous and dastardly. We have no doubt that the
present case is the rarest of the rare requiring the maximum
penalty, imposable under law." 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 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 Jeetu,
appellant No.2 committed the murder of Pratik is not only
ghastly but reflects his beast like mental attitude. The
appellants do not deserve any sympathy from the law and
society.

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 appearing for the appellant for his hard work and@@
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the assistance rendered to us in disposal of the present@@
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case.