1. Abduction and triple infanticide for superstitious treasure recovery — Appeal against acquittal by High Court — Criminal conspiracy and murder. (Para 1 , 2 , 4 , 5 , 6 , 7 , 8 , 11 , 12 , 13 , 15 )
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2000 Supreme(SC) 920
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
State Of Maharashtra
Versus
Damu S/o Gopinath Shinde
Case No. : 992 , 993 of 1999
Date of Decision : 5/1/00
Advocates Appeared: Chandra Satish : Deshpande S.V. : Deshpandey S.V. : Gandhi S.H. : Jadhav M. : Joshi V.B. : Phadnis A.R. : Sathey Gopal Balwant : Shinde S.S. : Shivaju : Sudheer V.
The judgment affirms that a retracted confession can sustain a conviction if corroborated, child witnesses' testimonies are valid if reliable, and statements by one conspirator are admissible against others under Section 10 of the Evidence Act once a prima facie conspiracy is established.
Headnote:(A) Indian Evidence Act, 1872 - Sections 10, 27, and 30 - Indian Penal Code, 1860 - Sections 120(B), 302, and 34 - Code of Criminal Procedure, 1973 - Sections 162 and 293 - Abduction and triple infanticide for superstitious purposes - Voluntariness of confession - A confession recorded by a Magistrate is not vitiated merely by the proximity of the judicial custody facility to the police station or the appointment of a Magistrate from a different location, provided the procedure is followed and sufficient time has elapsed since the accused was in police custody (Paras 20-24) - Retracted confession - It is open to the court to convict an accused on a retracted confession if it is corroborated by other circumstances of the case (Paras 25-27) - Reliability of child witnesses - Testimony of child witnesses cannot be dismissed solely on the ground of their age or the time elapsed since the incident, as children can retain memories of significant or traumatic events (Paras 29-33) - Discovery of fact - Under Section 27, the recovery of an object (such as a broken vehicle part) from a spot pointed out by the accused, which links a vehicle to the crime, constitutes a "discovery of fact" and renders the related information admissible (Paras 36-40) - Criminal conspiracy - Under Section 10, once there is reasonable ground to believe that two or more persons have conspired to commit an offence, anything said, done, or written by any one of them in reference to their common intention is a relevant fact against each of the conspirators (Paras 44-47).
Facts of the case:
Four individuals were accused of abducting and killing three infants as human sacrifices to uncover a hidden treasure. One child escaped the abduction attempts. The trial court found the accused guilty and sentenced them to death. However, the High Court acquitted the accused, doubting the voluntariness of a confessional statement and the reliability of child witnesses. The State appealed against the acquittal.
Findings of Court:
The court found that the confession was voluntary as it was recorded nearly a month after the accused was removed from police custody. The testimonies of the child witnesses were deemed reliable and corroborated by the post-mortem findings and the recovery of a vehicle part from the crime scene. The court concluded that the acts were the result of a criminal conspiracy.
Issues: Whether the confessional statement was voluntary and could be used for conviction; whether the testimonies of child witnesses were reliable; whether the recovery of a glass piece constituted a "discovery of fact" under Section 27 of the Evidence Act; and whether the statements of one conspirator were admissible against others under Section 10 of the Evidence Act.
Ratio Decidendi: The court held that the High Court erred in dismissing the confession and child testimonies. It ruled that a confession is admissible if recorded following due process and corroborated. It further held that Section 10 of the Evidence Act allows statements of one conspirator to be used against others once a prima facie conspiracy is established. The recovery of a specific part of a vehicle at the scene of the crime served as a discovery of fact under Section 27, corroborating the prosecution's case.
Result: Conviction restored; sentence modified to life imprisonment for the offence under Section 302 read with Section 34 of the Indian Penal Code.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Voluntariness of confessional statement — Influence of police custody and proximity of jail to police station — Admissibility of confession. (Para 17 , 19 )
3. Confession corroborated by witness testimony and forensic evidence — Admissibility of conspirators' statements under Section 10, Evidence Act — Evaluation of child witness reliability. (Para 18 , 20 , 21 , 22 , 23 , 24 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 43 , 44 , 45 , 46 , 47 )
4. Confessions may form the basis of conviction if corroborated — Statements of conspirators in reference to common intention are admissible against all co-conspirators under Section 10, Evidence Act. (Para 26 , 45 , 46 , 47 )
5. Acquittals set aside — Convictions restored — Death sentences commuted to life imprisonment. (Para 48 , 49 )
6. How is the voluntariness of a confession determined when the accused was previously in police custody?
The court considers the interval between police and judicial custody. A significant gap helps dispel fear of police interference, and the proximity of the jail to the police station does not automatically vitiate the independence of the judicial function. (Para 20 , 21 , 22 )
7. Can a court convict an accused based on a retracted confession?
Yes, it is legally open to the court to convict an accused on their confession even if retracted, although courts usually require some corroboration, the amount of which is a question of fact based on the circumstances of each case. (Para 26 )
8. Under what conditions are statements made by one conspirator admissible against others?
Under Section 10 of the Evidence Act, if there is reasonable ground to believe two or more persons conspired to commit an offence, anything said, done, or written by any conspirator in reference to their common intention is relevant against all. (Para 45 , 46 , 47 )
9. What constitutes a discovery of fact under Section 27 of the Evidence Act?
A discovery occurs when information provided by a prisoner leads to the discovery of a fact, such as a specific object at a specific spot, which serves as a guarantee that the information supplied is true. (Para 37 , 38 , 39 , 40 )
K.T.THOMAS, J.
(1) ABDUCTION and triple infanticide are the gravamen of this case. Kids, male and female, were abducted not for ransom but for their blood to propitiate gods to reveal the spot beneath which a treasure trove was believed to have been embedded. What finally disinterred were not the treasures-not even a tiny bit of it-but the putrefied corpses of three infants whose blood had copiously been collected in vain for searching out a non existing cauldron of jewelleries. One of the abducted kids (Sagar) was not destined to die then as he escaped from the clutches of the kidnappers and his infantile recollections were utilised by the prosecution to tell the tale to the Court.
(2) THE Sessions Judge found all the four persons who were arraigned before him for such grisly perpetrated acts, guilty of the offences charged against them and they were all sentenced to death. But a Division Bench of the High Court of Bombay, Aurangabad Bench (VK Barde and JA Patil, JJ) extended benefit of doubt which they entertained and set all the accused free. This is the appeal which the State of Maharashtra has filed by Special Leave in challenge of the order of acquittal.
(3) SRI Satish Chandra B.Subrik learned counsel who entered appearance for the accused rePORted to us that the first accused (Damu Gopinath) died during the pendency of this appeal and hence the appeal as against him can be treated as abated. The remaining three respondents are A2-Gangadhar Gitaram Kotka @ Guruji, AS-Mukinda Anna Thorat and A4 -Dhananjaya @ Balu Joshi. It is convenient for us to refer to them in the rank as they were arraigned as accused in the trial court.
(4) THE events narrated in this case have the silhoutte of a crime thriller. Mystery hovered around Chanda village in Newasa Taluk (Ahmadnagar district in Maharashtra) over the sudden disappearances of children one after the other. Horror struck the minds of the villagers when cadavers of the children were recovered one after another from a canal which flowed through Newasa.
(5) THE episodes started on 4.3.1992 when a little girl by name Meera (one of the four children of Ramdas) was missing from her house. The elders of the family made hectic searches and then caused announcements to be broadcast through loudspeakers fitted at the Gram Panchayats office regarding the disappearance of the child. Next day a complaint was lodged with the police. On the third day her dead body was recovered from the canal flowing through the locality. It was wrapped in a gunny bag made for urea storage. Among the injuries noted on the dead body two were so peculiar that the mystery deepened further. Dr. Ramprasad (Public witness 33) who conducted autopsy on the body has described one injury as anti-mortem and the other as post-mortem. The former was multiple abrasions on the left labia majora on the lateral aspect. The latter was a "triangular wound on the perennial region just posterior to vaginal opening." Public witness 33 Doctor opined from the other injuries noted by him that death of Meera was caused by throttling.
(6) ON 9.2.1994 a five-year-old kid by name Devidas (one of the two children of Public witness 26 Khandu) was found missing. A complaint was lodged with the police on the succeeding day and three days later the dead body of Devidas was found floating in the canal at Dedgaon in Newasa Taluk. He had an injury on the back of his head and his penis was seen chopped off. His father Public witness 26, a rustic villager, wished to avert a post-mortem examination on the remainings of his dear child and hence he did not choose to inform the police about recovery of the dead body.
(7) ON 13.2.1995 another little male child by name Deepak (who was then studying in the 2nd standard) was found missing from his house. His father Public witness 2 Suresh deputed his uncle to lodge the complaint with the police. Three days later the dead body of Deepak
