1994 Supreme(SC) 405

SUPREME COURT OF INDIA
(BEFORE K. JAYACHANDRA REDDY AND G.N. RAY, JJ.)
SHANKAR ALIAS GAURI SHANKAR AND OTHERS
Versus
STATE OF T.N.
Criminal Appeal No. 634 of 1992, decided on April 4, 1994
Advocates appeared :
S. Muralidhar and Ms Shomona Khanna, Advocates, for the Appellants; V.R. Reddy, Additional Solicitor General (K.V. Venkataraman, K.V. Vishwanathan, V.G. Pragasam and P.K. Subramaniam. Advocates, with him) for the Respondent.

Headnote:(i) Evidence- Approver Principles and guidelines regarding the appreciation of evidence of an approver - Extent and nature of corroboration - Evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime - Corroboration as to the material circumstances and the. Time and of the identity of the accused in relation to the crime. (Evidence Act, 1872 - Sec. 133 and illustration (b) to Section 114)

       Held: Section 133 and illustration (b) to Section 114 of the Evidence Act deal with the law relating to an accomplice evidence. An accomplice namely a guilty associate in crime is a competent witness. Section 133 lays down that the conviction based on the uncorroborated testimany 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 has now virtually assumed the force of a rule of law 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. An accomplice by becoming an approver becomes a prosecution witness. In interpretation of Section 133 and illustration (b) to Section 114, the Court have laid down that an approvers evidence has to satisfy a double test; (1) his evidence must be reliable and (2) his evidence should be sufficiently corroborated. (Para 10)

       Further held: Coming to the extent and nature of corroboration, the Courts have held that ordinarily the approvers statement has to be corrobated in material particulars bridging close1y 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 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 circumstances and it need not consist of evidence which standing alone would be sufficient to justify the conviction. In other words, there 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 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 in relation to the crime. The corroborative evidence can be direct or circumstantial. Ultimately the question whether there is such sufficient corroboration or not again depends upon the facts and circumstances of each case. (Para 11)

       (ii) Evidence - Retracted confession evidentiary value Held: The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it and a statement that contains a self-exculpatory matter can not amount to confession. The confession should be a voluntary one, that means not caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact. The judicial confessions arc those which are made before a Magistrate or in Court in due course of 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 of prudence namely requiring corroboration does not mean that each and every circumstance mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approvers evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction. It may not be necessary to refer to remaining aspects governing the use of retracted confession for the purposes of this case. Suffice it to say that it is also laid down that it is not illegal to base a conviction on an uncorroborated confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the Courts do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined, in the light of the circumstances of the case. (Para 26)

       (iii) Indian Penal Code, 1860 - Sections 302/34, 201, 147, 404 - Convictions under. Appeal. Evidence of approver - Retracted confessions of A-1 and A-2 - Eye-witnesses Retracted confessions amply corroborated on all material aspects establishing guilt of A-1 and A-2 independently - Motive for the crime Guilt of A-1 to A-2 satisfactorily established in respect of the murders of D-1 to D-6 - Convictions sustainable. Held: The confession of A-1 contains wealth of details. As regards the first three murders he has implicated himself, A-2, A-3 and Mohan and he has given all the details as to how all the deceased were killed. He also referred to the extrajudicial confession made by him later to his wife P.W.25. He has made a lengthy statement about his early life and how later he took to business of illicit arrack and the brothel business. He has also stated that he married Jagdeeswari. He also mentioned about Sumati, Anita and other girls whom he inducted into the brothel business. He has also given details as to how he used to send the girls to the customers of Taj Mahal Hotel. He has also mentioned about his association with other accused as well as with D-1 to D-3. Regarding D-1 death he stated that D-2 deceived him and took away Lalita and he made a search. Ultimately on 27.10.87 he learnt through Inspector Hari that D2 was caught by the police and was kept in that lock-up and that he went to Pallavarm to the house of relatives of D-2 and there he found D-1 and brought her. He has also given details as to how he ultimately managed to take her to his house and how he bribed the Constable and sent him away. Coming to the actual occurrence he brought brandy and they both drank it and when they were talking, A-2 brought Mohan in the auto. They went to his house at Periyar Nagar in the auto. A took D-1 on the first floor after collecting the key from his wife. A-2 and Mohan also followed him. Then he questioned D-1 as to why she betrayed him when he was giving so much to her. Then both of them had indulged in sexual intercourse and he stated that Lalita told him that D-2 was his partner. This enraged A-1 and he slapped D-1 and she got angry and started scolding him. At that time A-2 and Mohan also came to the first floor and A-1 asked them to beat her and Mohan ran towards her and pulled her by hairs and A-1 sprang on her caught hold of her neck and A-2 caught hold of the hands of D-1 from behind and A-1 continued to crush the neck of D-1 and in the process she died. Then they decided to dispose of the body and him suggested that the body could be buried in the garden itself. A-1 removed the ear studs and chain from the body of Lalita. After some time A-2 and Mohan came along with A-3. All them lifted the body, took it into an auto and went to Kuttumadu. There they buried the body near the north entrance of the liquor go down. Her jacket also was thrown into the pit and they filled it up. He has also given all the details regarding the murders of D-2 and D-3. In his confession he has also mentioned about P.W .1s participation in these two murders as well as the murders of D-4 to D-6. Likewise he has also given all the details regarding the murder of Ravi, D-3 and about burying his body in the back He has also mentioned about utilising the services of P.W.68 and Thoppai Mistry, both on the earlier occasion namely when D-2s murder was committed and also later when D.3 murder took place and D-3s body was buried in the pit dug by P.W. 68 and Thoppill Mistry. Now coming to the death of D4 too V-5, A-1 has stated that they were trying to referee with his business and creating unseemly situations by harassing and teasing the girls belonging to his brother. Then he has given all the details as to how they beat all the three deceased who attack A-2 and also the initial quarrel that took place in the firewood depot. He has also given details of beating these three deceased and how they were locked up in the store room and how D-6 was throttled to death and how the bodies were buried ill the trenches of the foundation of a building under construction. At the instance of A1 some recoveries were effected Likewise at the instance of A-1, a gold ring belonging to D- 2 also was recovered and A-1 further showed the pits where the dead bodies were buried. A-2 was with A-1 throughout and according to the prosecution, he participated in all the murders. In his retracted confession, Ex. P. l06, A-2 has stated that he married the sister of A-1. Then he has given all the details about their business activities and about D-1s murder. Then so far as the murders of D-2 to D-6 are concerned, he has also stated that P.W. 1 participated along with him and other accused Now we shall consider whether there is sufficient corroborating evidence to the versions given in these confessions regarding the murder of D-1. As already noted, the charge is that A-1 to A-3 and absconding accused committed the murder of D-1 on 28.10.87 at 142, Gandhi Road Periyar Nagar. So far as the motive behind this murder is concerned, we have already referred to the evidence of P.Ws. 25, 40, 43, 46, 66, 98, 121 and 134. A-1 as well as A-2 in their confessions have given the details about the misbehavior of D-2 and his elopement with D-1 and how they went in search of them to Bangalore and other places and how ultimately they could trace them and brought them back. So far as D-1 is concerned, it is in the confessional statement of A1 that since she was beautiful, he was keeping her excursively for himself. He has also mentioned about his marriages with Jagdeeswari as well as P.W. 25. There is also enough of corroboration from the evidence of P.Ws. 21, 51, 71 and 121 besides the evidence of P.W. 22, the neighbourer, P.W.1 and P.W.32, his own employee and also the evidence of P.Ws. 25 and 50. In addition there is the evidence of P.Ws. 46, 48 and P.W.4, his own driver. Their evidence, to which we have already referred to, amply corroborates the retracted Confessions on several aspects particularly that of running brothel business. P.W.25 in her deposition referred to M.O.20, a diary maintained by A1 and also the extra-judicial confession made by him. There is the evidence of P.W.66, the Constable No. PC 176 who, as directed by P.W.133, the Inspector, accompanied D-1 to the Central Station as she refused to live either with D-2 or with A-1. It is also in his evidence as to how on the way A -1 met D-1 and how they went to the house of A-1. He also deposed that A-1 bribed him by giving Rs. 100/- and sent him away saying that he would send Lalita himself to Bangalore. Thus there is ample corroboration so far the motive aspect is concerned. Then there is evidence of P.Ws. 32 arid 48 who last saw D-1 in the company of A-1 to A-3 and absconding accused Mohan. P.W.48 was residing in the house belonging to A1 behind Puthukoil at Periyar Nagar and her husband was working in A-1s brothel house. P.W.49 is yet another witness who was living in the adjoining house of P.W.48. P.W.48 deposed that on the day of occurrence at about 10 P.M. he saw accused A-1 and A-3 talking together after coming in an auto driven by A-2 opposite to the arrack shop of Mohan and thereupon A-1 along with A-3 and D-1 proceeded to the house of A-1 in the same auto driven by A-2. Both the courts below have accepted the evidence of P.W. 48 as fully reliable. Then as to the actual murder of D1, we have already referred to the details as found in the confessional statements of A-1 and A-2. Then there is evidence of P.W. 61. He was asked to dig a pit under the guise of concealing arrack barrels. It is in his evidence that he was called by Mohan, the absconding accused at about 2.30 A.M. while he was sleeping and he was asked assist A-2 and A-3 in digging the pit and he dug a pit of the of 5 feet length and 3 feet depth and thereupon he was asked to go away. The evidence of P.W.61 is important. It is also in the evidence of that he was taken again at 8 A.M. and he along with one Sumathi plastered the portion where the burial was made. Both the courts after considering the same found it to be reliable and rendering sufficient corroboration on a very important aspect. P.W.25 also deposed about the diary and also the confession made by A-1 stating that he along with A-2 and A-3 and Mohan strangled her neck and murdered her and buried her and she wrote in M.O. 20,28.10.87 as the date of death of D-1 as directed by A-1. M.O. 20 also contained another entry made by A-1 in his own handwriting to the effect that D-1, his beloved wife and him self separated permanently. Learned Counsel submitted that these entries appeared to be artificial and at any rate Section 122 of the Evidence Act makes them inadmissible. We have already referred to this aspect and held that she is only a mistress and not legally wedded wife and Section 122 does not in any manner come in the way. Both the courts have also relied on the evidence of P.W.25 on other aspects and after going through her evidence we have no grounds to come to a different conclusion. (Paras 28 & 29) Further held: So far as the murders of D-2 and D-3 are concerned, the prosecution case is that A-1 to A-3 and absconding accused Mohan and P.W. l, the approver participated. We have given the details of the prosecution case in this regard and we have also referred to the deposition of P.W. 1, the approver. The versions in the retracted confessions of A-1 and A-2 are the same as the one given by P.W.1. There is absolutely no difference. The same witnesses, whose evidence was relied upon for the purpose of corroboration of the evidence of P.W .1, would be again the relevant witnesses for the purpose of corroborating the retracted confessions given by A-1 and A-2. The evidence of P.Ws. 21, 51, 71 and 121 as well as that of P.Ws. 31, 32 and P.W.25 coupled with the evidence of P.Ws. 50, 51 and P.W.4 corroborate the retracted confession about A-1 running the brothel business and the motive aspect. So far as the actual occurrence is concerned, the details given in the confessional statements are one and the same as given by P.W.1 and we need not refer to them again. Now coming to the burning of the body and throwing away the remnants of the burnt body of D-2, the evidence of P.Ws. 67, 68 and 69 coupled with the evidence of P.Ws. 4 and 32 lends sufficient corroboration. On examination of the evidence of these witnesses we are also satisfied that the version given by A-1 and A-2 is a true one (Para 31) Regarding the murders of D-4 to D-6, apart from the retracted confessions, there is also the evidence of other eye-witnesses as well as those who speak to certain important circumstances. By way of corroboration the prosecution relied on the evidence of P.Ws. 2 to 30, 32, 33, 37, 38,45,47, 53, 54, 72 to 76, 89, 91, 98, 112, 114, 117, 118, 119, 121 to 123, 130, 132, 133 and 134. The evidence of P.Ws. 7, 8 and 9 lends ample corroboration to the retracted confessions of A-1 and A-2 regarding the initial part of this occurrence. P.W.37 has actually seen the beating of the three deceased persons by the accused on the cement floor. There is also the evidence of P.W. 89. It may not be necessary to again refer to the details of their evidence since we have already discussed the same while considering the evidence of P.W.1 and we have found that the evidence of these witnesses is reliable and that both the courts below have rightly relied upon the same. (Para 32)

       (iv) Sentence - Indian Penal Code, 1860 Sections 302/34, 201, 147 and 404 - Convictions under - Six murders - Victims were helpless and undefended - Murders committed in an organised manner were cold-blooded, grue - some in nature, diabolic in conception and extremely craelin execution - A-1, leader of the gang - The way dead bodies were disposed of manifested his criminal state of mind - A-1 was indulged in illicit arrack and brothel businesses - A-2 throughout actively associated with A-1- Their case is one of the rarest of rare cases fully warranting imposition of death sentence - The fact that they are victims of circumstances not a mitigating factor - Likelihood of the films having remotely influenced - the mind of A-1, not a mitigating circumstance. Held, that A-1 was the leader of the gang indulged, in illicit arrack and brothel businesses which are unlawful and most harmful to the society. He was responsible for spoiling the life of many girls. He used to keep some of the girls for himself by setting up a separate residence. He used to be very cruel to them and used to burn the young girls with cigarette butts and as a result one of them committed suicide. Lalita, D-1 who could not adjust herself to live with him was brutally murdered and in order to screen the said offence he got the body buried. Having successfully committed the murder of Lalita, he planned to murder Sudalai, D-2 obviously apprehending that he may cause some trouble. He was also angry with him because he was interfering with his business. D-2 was also brutally murdered and what is more, in a diabolical manner the body was burnt in A-1s house. Thereafter the remnants of the body were taken and thrown in the Boat Yard. Then D-3 who was the supporter of D-2 was also brutally murdered since it was apprehended that he may expose them with regard to the murders of D-1 and D-2. D-3 was also brutally murdered in the same manner in which D-1 and D-2 were murdered and his body was also buried. When D4 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 three bodies were buried. Thus it can be seen that A-1 indulged in these crimes in an organised manner. His own confession, though retracted, which is found to be true and voluntary gives the details of the diabolical and cruel manner in which he participated in killing D-1 to D-3 as well as D-4 to D-6. The crime indulged was gruesome, cold blooded, heinous, atrocious and cruel and he has proved to be an ardent criminal and thus a menace to the society. It is an exceptional 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 42. A-2 throughout had been actively associated with A-1. He participated in every crime. So far murders of D-1 to D-3 are concerned A-2 played an active role in a most cruel and diabolical manner as we find from his own retracted confession. 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 above in respect of A-1 for awarding the death sentence equally apply to the case A-2 also. Apart from their own retracted confession, the evidence of P.W. l as corroborated by the other evidence as discussed above, also independently establishes the active participation of A-1 and A2 in the murder of D-2 to D-6. (Paras 41, 42)

       Further held: In large urban areas this kind of organised crime has taken deep roots. It has become the way life of these organised criminal groups particularly indulging in underground unlawful activities Eventually the underground economy has entered on the vitals of the society gradually rendering it malignant. The organised crime has profit its primary goal to be achieved at any cost. The potential for criminal violence in such crimes is inherently present in an organised crime group. The activities such crime groups indulge in may numerously vary. Prostitution is an activity bad in social sense as witnessed and is prohibited legally Yet for many potential buyers the services of prostitutes are goods in the strict economic sense of the term "goods". The buyers are willing to pay for these goods in the market transaction. It is these monetary values, though illegal, underlying that eventually lead to growth of these organised crimes and further criminal specialization whose only common aim is attainment of wealth primarily, of course and then if possible power and influence by illegal means. It has thus become an enterprises not infrequently aiming at purchase of respectability. After all money is money and that which is illegally gained can seemingly be legally spent to achieve social status. That kind of criminally acquired social status is completely out of place and forlorn as to come anywhere near the conduct of mitigating circumstances. Learned counsel submitted that if the retracted confession of A-1 is taken as a whole, it would reveal that the cruel treatment meted out to him by the police forced him to carry on the illicit arrack business and brothel business and therefore he was only a victim of circumstances and the police should be blamed for that. No doubt in his confession A-1 has come out with various allegations against the police stating how he has been paying the bribes to them regularly. However, we cannot express a opinion on the conduct of the police in this case on the basis of the allegations made by him though they do not appear to be far from truth. However, that by itself cannot be a mitigating circumstance. Assuming what he alleges is true that would only show that A-1 used corruption for carrying out his organised crime to gain a competitive edge or to protect them selves from police interference. It is usually and implicitly assumed that such corruption is always involved in these kind of crimes and how such corruption should be eradicated is a different and every-lasting question. That cannot, however, be amitigating circumstances for the purpose of awarding death sentence. When once a criminal becomes an organiser of such crimes the reasons for his entry can not have mitigating effect nor his plea of repentance which inherently is evasive to avoid sentence can be the same as abiblical repentance. (Para 44)

       (v) Evidence - Six murders - So far as individual participation of A-3 in the murders of D.2 and D.3 is concerned, there is only the evidence of an approver - Discrepancy in the evidence of the approver. No other evidence as to the actual nature of participation of A-3 in the murders - Enough of corroborative evidence in general for the purpose of inferring common intention in respect of offences u/ss. 302/34 I.P.C. - 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 (Para 43) Result: Ordered accordingly. Conviction of A-1 and A-2 and the sentence of death rewarded against them confirmed - Sentence of death for A3 reduced to one of imprisonment. Conviction of A-4 to A-6 confirmed