Holding

The Supreme Court upheld the death sentences for A‑1 and A‑2, reduced A‑3's death sentence to life imprisonment, and confirmed the convictions and sentences of the other appellants, finding the retracted confessions and approver's testimony sufficiently corroborated and the crimes to be among the rarest of rare cases.

Summary

The appellants, a gang led by A‑1 (Shankar @ Gauri Shankar) and his associates A‑2 to A‑6, were convicted of six murders committed in a brutal, organised manner involving a brothel and illicit arrack business. The prosecution's case rested on the testimony of an approver (P.W.1) and the retracted judicial confessions of A‑1 and A‑2, which were found to be voluntary and sufficiently corroborated by extensive material evidence. The Supreme Court examined whether the death penalty was justified under the "rarest of rare" doctrine, balancing aggravating factors such as the diabolical manner of the killings against alleged mitigating circumstances. It held that the nature of the crimes, the menace posed by the accused, and the thorough corroboration of evidence warranted the death sentence for A‑1 and A‑2, while reducing A‑3's death sentence to life imprisonment. The Court also affirmed the life sentences of A‑4 to A‑6 and dismissed the appeal.

Issues considered

The adequacy of retracted judicial confessions and approver testimony as basis for conviction
Whether the evidence of the approver required full corroboration under Sections 133 and 114 of the Evidence Act
If the murders constitute "rarest of rare" cases justifying death penalty
The relevance of alleged mitigating circumstances in sentencing
The appropriateness of death sentence for A‑3 given the quality of evidence against him
Compliance with Section 235(2) of the Criminal Procedure Code in sentencing

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 306, s. 354
Indian Evidence Act, 1872s. 114(b), s. 133, s. 164, s. 24, s. 27
Indian Penal Code, 1860s. 120-B, s. 147, s. 201, s. 302, s. 304/34, s. 404

Subjects

death penaltyrarest of rareretracted confessionapprover testimonycorroborationmurderorganized crimebrothelillicit arrackIPC 302IPC 120-Bsentencingmitigating circumstancesaggravating circumstancesCriminal Procedure CodeEvidence Act

Judgment

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

APRIL 4, 1994

B IK. JAYACHANDRA REDDY AND G.N. RAY, JJ.I

Criminal Procedure Code, 197rSection 354 sub-Sec. rDeath sen-
tence-When to be awarded-Rarest of rare crimes-Mitigating and aggravat-
ing circumstances--Brutal murder of six persons in an organised manne~
C Dead bodies disposed of in a diabolic manner-Held, death penalty is justified
-Mitigating circumstances-Indian Penal Code, 1860-Section 302.

Evidence Act, l872-Sections 133 and 114 illustration (b )-Approver's
statement-corroboration of-Corroboration of material particular qua each
accused required-Every 1naterial circumstance need not be co"oborate~
D Corroboration should show that the approver is speaking the truth-code of
Criminal procedure, 197rSection 306.
•

Words and Phrases-Accomplice-Meaning of

E Evidence Act, 1872-Section 24-Confession-Meaning orExcul·
pat01y statement not covered-Should be volunta~Judicial confession--
Meaning of-Retracted judicial confession-Extent of corroboration Material
particulars should be corroborated-Each and every circumstance need not
be corroborated-Criminal Procedure Code 197rSection 164.

F The appellants were charged of murder of six persons, D-1 to D-6.
Both the Trial Court as well as the High Court had convicted them for
murder of D-1 to D-6. According to the case of the prosecution, which was
accepted by the Trial Court as well as the High Court, A-1 was the gang
leader whereas A-2 to A-6 were his associates. Initially, A-1 used to drive
G auto rickshaw. Thereafter, he switched over to the business of arrack which
he handed over to his brother (Mohan) and started the business of brothel.
A-1 had married several times and it was alleged that be used to torture
his wives by burning them with cigarette buts.
> '

The conviction of A-1 to A-6 was based on the evidence of P.W.l. (who
H was an accomplice and had turned into an approver), the retracted judicial
298
GAU RI SHANKAR v. STATE OFT.N . 299
.... -..Ji,
confes~ions of A-1 and A-2 and other corroborating evidence. A
P.W.1 stated in his deposition that D-1 was a prostitute and had
intimate relationship with A-1 but later on she eloped with D-2 which
incensed A-1, D-2 was taken to A-l's house; got him drunk and thereafter
throttled him. A-1, A-2, A-3, P.W.I and Mohan (absconding accused) were
present there and D-2 was burnt in the room and the unburnt remains of B
his body were thrown away in the river.

According to P.W.I, D-3 was killed as he was blackmailing A-1 in
. respect of the death of D-2, D-3 was brought in A-l's godown and after
intoxicating him with liquor, A-1, A-2, A-3, P.W.1 and Mohan throttled him
to death and buried the dead body in a pit. D-4 to D-6 were beaten and
c
locked up in a store room in A-l's house, D-4 and D-5 died in the room
whereas D-6 was throttled to death. The dead bodies were buried in the
basement of a house under construction.

In the retracted confession, A-1 and A-2 stated that D-1 was beaten D
by A-1, A-2 and Mohan and thereafter, throttled to death by A-1. Her body
was buried in the liquor godown.

The Trial Court found all the appellants as well as A-7 and A-8 to
be guilty of offence under Section 120-B, r/w 302-201, 147, 304/34 and 404
of !PC. A-1 to A-3 were sentenced to death whereas A-4 to A-8 were E
sentenced to life imprisonment.

The High Court confined the sentence awarded to A-1 to A- 6 but
acquitted them of offence under Section 120-B I.P.C. A-7 and A-8 were
acquitted of all charges against them.
)
F
Before this Court, the appellants contended that the evidence of
P.W.1 was full of contradictions and discrepancies whereas the retracted
corifessions of A-1 and A-2 were uncorroborated and therefore reliance
upon them for conviction of the appellants was not correct. It was also
contended that the present case was not the rarest of rare cases and there G
were sel·eral mitigating circumstances and therefore, sentencing A-1 to A-3
to death was unjust.

This Court confirmed the death sentence awarded to A-1 and A-2
and the life imprisonment awarded to A-4 to A-6; the sentence of A-3 was
reduced to life imprisonment from death, and it was H
;.,,'
'

300 SUPREME COURT REPORTS [1994) 3 S.C.R.

A HELD : 1.1. The choice as to which one of the two punishments
provided for murder is the proper one in a given case will depend upon the
Particular circumstances of that case and the Court has to exercise its
discretion judicially and on well-recognised principles after balancing all
the mitigating and aggravating circumstances of the crime. The Court also
should see whether there is something uncommon about the crime which
B renders sentence of imprisonment for life inadequate and calls for death
sentence. The nature of the crime and the circumstances of the offender
should be revealing that the criminal is a menace to the society and the
sentence of imprisonment for life would be inadequate. The sentence of
death should be reserved for the rarest of rare cases after a due considera-
C tion of both mitigating and aggravating circumstances. [344-B-C]

1.2. What circumstances bring a particular case under the category
of rarest of rare cases vary from case to case depending upon the nature
of the crime, weapons used and the manner in which it is perpetrated etc.
(344-F]
D
Jagmohan Singh v. State of U.P., (1973] 1 SCC 20; Bachan Singh v.
State of Punjab etc. etc., (1980] 2 SCC 684; Ediga Anamma v. State of A.P.,
(1974] 4 SCC 443; Machhi Singh and others v. State of Punjab, (1983] 3
SCC 470; Ke/tar Singh and others v. State (Delhi Administration), (1988] 3
E SCC 609; Mangal Singh, v. State of U.P., AIR (1975) SC 76 and Allaudin
Mian and Ors. v. State of Bihar, AIR (1989) SC 1456, relied on.

Dudh Nath Pan_dey v. State of Uttar Pradesh, (1981] 2 SCC 166;
Suresh v. State of U.P., (1981] 2 SCC 569 and Ummilal v. State of Madhya
Pradesh, [1981] 3 SCC 574, distinguished.

F Dalbir Singh and others v. State of Punjab, (1979] 3 SCC 745 and
Rajendra Prasad v. State of Uttar Pradesh, (1979] 3 SCC 646, referred to.

2.1 Section 133 and illustration (b) to Section 114 of the Evidence
Act deal with the law relating to evidence of an accomplice. An accomplice
G namely a guilty associate in crime is a competent witness. The word
'accomplice' has not been defined by the Evidence Act and it is generally
understood that an accomplice means a guilty associate or partner in
crime. Section 133 lays down that the conviction based on the uncor-
roborated testimony of an accomplice is not illegal, but tho rule of ...
guidance indicated in illustration (b) to Section 114 has resulted in the
H settled practice to require corroboration of evidence of or accomplice and
GAURI SHANKAR v. STATE OF T.N. 301

which has now virtually assumed the force of rule of law. [312'C) A
Swaran Singh Rattan Singh v. State of Punjab, AIR (1957) SC 637;
Lachhi Ram v. State of Punjab, AIR (1967) SC 792 and Mohd. Hussain
Umar Kochra v. K.S. Dalipsinghji, [1969) 3 SCC 429, referred to.

2.2. An approver's statement has to be corroborated in material B
particulars bridging closely the distance between the crime and the
. criminal and furnishing the need ·and assurance for acceptance of his
testimony. The corroboration need not be of a kind which proves the
offence against the accused and it would be sufficient if it connects the
accused with the crime. What is required is that there should be sufficient C
corroborative evidence to show that the approver is speaking the truth with
regard to the accused whom he seeks to implicate. Such corroboration
should be on material particulars and qua each accused. But it is not
n•cessary that there should be independent corroboration of every
material circumstance and it need not consist of evidence which standing
alone would be sufficient to justify the conviction. In other words, there D
should be additional evidence by way of corroboration rendering the story
of an accomplice probably true and that it is reasonably safe to act upon
) such evidence. The corroborative evidence can be direct or circumstantial.
Ultimately the question whether there is such sufficient corroboration or
not depends upon the facts and circumstances of each case. E
[312-F-H, 313-A-C)
Swaran Singh Rattan Singh v. State of Punjab, AIR (1957) SC 637;
Lachhi Ram v. State of Punjab, AIR (1967) SC 792; Mohd. Hussain v. State,
[1970) 1 SCR 130; Ravindra Singh v. State of Punjab, AIR (1975) SC 856;
Rameshwar v. State of Rajasthan, AIR (1952) SC 54; Tirubhawan Nath v.
.) F
State of Maharashtra, AIR (1973) SC 460 and Vemireddy Satyanarayan
Reddy and others v. State of Hyderabad, AIR (1956) SC 379, referred to.

Wigmore on Evidence, 7th Volume, 3rd Edn., referred to.

2.3. P.W.l's evidence is sufficiently corroborated by other evidence G
and establishes beyond all reasonable doubt that A-1 had the motive to do
away D-1 and that A-1 to A-3 and P.W.l alongwith the absconding accused
committed the murders of D-2 and D-3 and all these appellants also
• ·• committed the murders of D-4 to D-6. [328-D-E]

3. The confession is a form of admission consisting of direct acknow- H
302 SUPREME COURT REPORTS [1994] 3 S.C.R.

A ledgment or guilt in a criminal charge. It must be in express words by the
accused in a criminal case or the truth or the guilt fact charged or some
essential part or it and a statement that contains self-exculpatory matter
can not amount to a confession. The confession should be a voluntary one,
that means not caused by inducemeut, threat or promise. Whether a
confession is voluntary or not is essentially a question or fact. The judicial
B confessions are those which are made before a Magistrate or in court in
due course or legal proceedings and when such a confession is retracted,
the courts have held that apart from the statement being voluntary it
should be true and should receive sufficient corroboration in material
particulars by independent evidence. The rule or prudence namely requir-
ing corroboration does not mean that each and every circumstance mene
c tioned in the confession with regard to the participation or the accused in
the crime must be seperately and independently corroborated. It is suffi-
cient ir there is general corroboration or the important incidents, just like
in the case of an approver's evidence and it is not necessary t~at the
corroborative evidence itself should be sufficient for conviction. What
D amount of corroboration would be necessary in a case would be a question
or fact to be determined in the light or the circumstances or the case.
[329-C-G]

Ba/bir Singh v. State of Punjab, AIR (1975) SC 216; Swam Singh
Rattan Singh v. State of Punjab, AIR (1957) SC 637; Ediga Anamma v. State
E of Andhra Pradesh, AIR (1974) SC 799 and State of Uttar Pradesh v. Boota
Singh and others, AIR (1978) SC 1770, referred to.

4.1. Individual part played may assume some importance in some
cases, but in an organised crime that kind of enquiry may not be relevant
for the purpose of finding out the special reasons. However, under the
F facts and circumstances of the case, the part played by the individual
accused i.e. A-1 to A-3 may be relevant in weighing mitgating and ag-
gravating circumstances in awarding death sentence, particularly in view
of the fact that A· 4 to A-6 who were also associates of A-1 and who also
participated in murders or D-4 to D-6 are awarded only imprisonment for ·
G lire and also in view of the fact that the case mainly rests on the evidence
of approver. [346-C-D]

4.2. The prosecution has satisfactorily proved that A·l was the leader
of the gang. It is also established that he used to be very cruel and he did
not hesitate to burn young girls with cigarette buts and atleast one of them
H could not bear the cruel treatment and committed suicide. He used to keep
GAURISHANKAR v. STATEOFT.N. 303

many good-looking prostitutes exclusively for himself and thus spoiled A
many girls. He alongwith A-2, A-3, Mohan and P.W.1 killed D-1 to D-3 in
a very brutal and ghastly manner and disposed of the bodies. The way the
dead bodies were disposed of would manifest his criminal state of mind
which is diabolical and he, as a leader, could go to any extent to cause the
disappearance of the dead bodies with a view to screen the offences of B
murders. He was of such a nature that he was prepared to elim.inate
anybody who came in his way and caused any hinderduance to the running
of the business. When D-4 to D-6 threatened to his running of brothel
business, A-1 obviously to prove his supremacy in the illicit business
wanted to eliminate them and they were severely beaten and brutally
murdered. D-6 was strangulated in a cold-blooded manner and all the C
three bodies were buried. The public at large were agitated and in all the
six murders, the victims were helpless and undefended. The murders
committed in an organised manner were cold-blooded, gruesome in nature,
diabolic in conception and extremely cruel in execution. A-1 has proved to
be an ardent criminal and thus a menace to the society. It is an exceptional D
case where the crime committed by him is so gruesome, diabolical and
revolting which shocks the collective conscience of the community. There
cannot be any doubt that his case is one of the rarest of rare cases fully
warranting the imposition of death sentence. [346-F, 347-A-D]

4.3. A-2 throughout actively associated with A-1. He participated in E
every crime. As a close associate of A-1 in every unlawful business activity,
A-2 went on participating with him in these organised crimes. The reasons
given in respect of A-1 for awarding the death sentence equally apply to
the case of A-2 also. [347-E]
F
4.4. A-3 is not related to A-1. There is discrepancy in evidence of
P.W.1 in so far as role of A·3 is concerned. There is no other evidence as
to the actual participatio~ of A-3 in the murders of D-2 and D-3 apart from
that of P.W.1, though there is enough of corroborating evidence in general
for the purpose of inferring common intention in respect of the offences
punishable under Sections 302/34 I.P.C. In the case of A-1 and A-2 there G
are their own individual retracted confessions which can be acted upon
. regarding their individual roles. The retracted confessions of co-accused
cannot be taken into consideration for assessing the nature of participa-
tion of A-3 for the purpose of deciding whether his case is one of the rarest
of rare cases. [347-G-H; 348-E] H
)'1"
.
304 SUPREME COURT REPORTS [1994] 3 S.C.R.
..., -
A Dudh Nath Pandey v. State of Uttar Pradesh, [1981) 2 SCC 166 and
Suresh v. State of U.P., [1981) 2 SCC 569, relied on.

5. The fact that A-1 liberally donated to the social organisations, the
cruel treatment meted out to him by the police, forcing him to carry on the
illicit arrack business and brothel business, and the likelihood of the films
B having remotely influenced the mind of A·l, cannot be "mitigating cir-
cumstances" for the purpose of awarding death sentence. [353-D-E]

(This court observed that by exhibiting scenes of violence, sex, rape,
bootlegging and drug trafficking etc. in such a manner which have propen-
sities of disturbing and corrupting the mind of some viewers like children
c and particularly of those who are weak-minded, wayward, indisciplined,
frustated and likewise, who are very likely to become wicked and evil
minded and ultimately end up as criminals indulging in organised crime,
the avowed objects get frustrated. The films should be of educative value
and then only they can play an important role in subserving the interests
D of the society. It is here that the Censor Board should step in firmly and
insist that the film being released has a message meant to improve the
values of life and should see that the film contains only such scenes which
do not affect the value of life). [351-G) c

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
E 634 of 1992.

From the Judgment and Order dated 17.7.92 of the Madras High
Court in Cr!. A. No. 457 of 1991.

F
S. Muralidhar and Ms. Shomona Khanna for the Appellants.

V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V.
.
'
Vishwanathan, V.G. Pragasam and P. Subramaniam for the Respondents.

The Judgment of the Court was delivered by
G K. JAYACHANDRA REDDY, J. Shankar@ Gauri Shankar (original
accused no. 1), Eldin @Albert (original accused no. 2), Shivaji (original
Accused no. 3), Jayavelu (original accused no. 4), Raman@ Raja Raman
(original accused no. 5) and Ravi (original accused no. 6) are the appel-
]ants here. They alongwith four others; Palani (original accused no. 7),
' -
H Paramasivam (original accused no. 8) and two absconding accused Mohan
GAURISHANKAR v. STATEOFT.N. [K.J.REDDY,J.] 305
.. '-'- and Selvam @ Sclvaraj were arrayed as accused. The case against the two A
absconding accused was separated. The gravamen of the charge against the
accused was that all of them entered into a conspiracy and committed the
murders of six deceased persons in the case namely Lalita (deceased no.
1), Sudalai (deceased no. 2), Ravi (deceased no. 3), Sampath (deceased
no. 4), Mohan (deceased no. 5) and Govindaraj (deceased no. 6). The trial
court found A-1 to A-8 guilty under Sections 120-B read with 302, 201147,
B
302/34 and 404 I.P.C. In respect of the murder' charges the trial court
_;. sentenced A-1 to A-3 to death and A-4 to A-8 to imprisonment for life
under each count and various other terms of imprisonment for the other
minor offences. The High Court acquitted A-7 and A-8 of all the charges
and confirmed the convictions and sentences of the appellants. The High c
Court, however, acquitted them of the conspiracy charge punishable under
Sections 120-B read with 302 I.P.C. So far as A-1 to A-3 are concerned,
both the courts have concurrently held that this is one of the rarest of rare
cases where the sentence of death alone will meet the ends of justice.

A -1 is said to be the leader of the gang consisting of other accused.
D
He was originally driving an auto and subsequently he started business in
illicit arrack. A-2 to A-6 were assisting _him. Then he entrusted the illicit
arrack business to his younger brother Mohan, one of the absconding
accused and started brothel business and was running the same profitably
by employing a number of prostitutes. A-1 is said to be a 'cruel and r~thless E
person and he would not hesitate to eliminate anybody who interfered and
obstructed his criminal activities. According to the prosecution, six
deceased persons incurred his wrath and were done away to death by A-1
and his associates and their dead bodies were either buried or were caused
to disappear.
F
The prosecution sought to prove its case by the evidence of Babu,
P.W.1, the approver in the case and the corroborating evidence ._,well as
by retracted judicial confessions made by A-1 and A-2 and the necessary
corroborating evidence to the same. The prosecution case in general as
unfold by evidence adduced may be stated thus : G

A-1 Shankar who originally was running an auto and thus earning
livelihood, took to business in illicit arrack by transporting the same from
-~ Andhra, Thiruneermalai and other places. A-1 entrusted this business to
Mohan, his young brother and started brothel business. A-2 Eldin married H
306 SUPREME COURT REPORTS (1994] 3 S.C.R.

A the younger sister of A-1. The first wife of A-1 is·one Jagadeeswari, A-2 ...., ·~.
to A-6, the absconding accused Selvaraj, deceased nos. 2 and 3, P.W.32
Sasi and P.W.l, the approver were also assisting A-1 and Mohan in their
illegal business activities.

B P.W.1, the approver was doing masonry work in the house of one
Guraibabu at Thiruvanmiyur previously and at that time he developed
association with A-1. P.W.1 was prosecuted for the murder of one Natesa
Nadar on 31.12.1985. However, he came out on bail. A-1 asked P.W.1 to
assist his brother Mohan in his illicit arrack business and P.W.1 was
accordingly assisting him. P.W.2 was running a firewood depot at L.B.
c Road, Thiruvanmiyur. P.W.3 was residing at Gandhi Road, Periyar Nagar,
Thiruvanmiyur. P.W.4 was employed as the driver of the car of A-1. P.W.5
was an auto driver. P.W.7 was a Dhabi and he used to do ironing at 29th
cross Street, Indira Nagar, Thiruvanmiyur. All these witnesses knew that
A-1 was doing brothel business and D-2, D-3, P.W. 32, A-2, A-3 and others
D were assisting him. They also knew that P.W.1 was assisting Mohan. P.W.1,
A-1 and P.W. 56 encroached upon the poramboke land (Government waste
land) at Periyar Nagar and there was a dispute in respect of that land and
when it came for settlement, A-1 purchased the same from P.W. 56 for Rs.
10,000 in the name of his brother Mohan. A-1 gave Rs. 6,000 to P.W. 56
and agree to pay Rs. 4,000 to P.W.1 towards the expenses in the murder
E case against P.W.1. Thus P.W.1 became closer to him. In that poramboke
land, A-1 put up a shed and was running the brothel house. P.Ws. 21, 51,
71 and 121, one Banu, Kundu Vijaya, Asthina, Begum, Viji and other ladies
were prostitutes in the said brothel house. It is also stated that whenever
good-looking and beautiful women came to the brothel house, A-1 used to
F set up a separate house for them and to keep them as _his mistresses. In or
about 1986, A-1. developed intimacy with P.W. 25, Sumathi and he married
her. A-1 used to maintain a diary M.O. 20 and in that he made an entry
about the factum of this marriage. Jagadeeswari, the first wife quarrelled
with A-1 in respect of the second marriage and A-1 set up a separate
residence for P.W. 25 at Marutheeswarar Nagar. D-2 was a close associate
G of A-1 and he celebrated the marriage of D-2 with one Durga on 9.7.1986.
Thereupon D-2 and Durga were staying in the house of P.W. 25. P.Ws. 1
and 32 also knew about it. Two months later, A-1 brought a girl by name

H
Vijaya to the h0use of P.W. 25 and also married her but Vijaya left him
stealthily as she was tortured by him. P.W. 71, Madhu Alias Gowri came
to join the brothel and A-1 took her to the house of P.W. 25 and married
·-
GAURJ SHANKAR v. STATE OFT.N. IK.J. REDDY, J.J 307
-·-""-·
her also on 14.3.87 in the presence of P.W. 25 and he also tatooed her A
name on his hand. Similarly P.W. 71 tatooed the name of A-1 as "Gowri
Shankar" in her right hand. Since A-1 used to burn P.W. 71 with cigarette
butts and she was unable to bear the ill- treatment, she ran away. There-
upon A-1 shifted the residence of P.W. 25 to the house of P.W. 34 in June
1987 and he also accommodated D-2 alongwith his wife Durga in another B
portion of the said house. A-2 and his wife Sandhi were also residing in
the third portion of the said house. A-1 who had made good money from
the brothel business, constructed a house at 142, Gandhi Road, Periyar
Nagar and celebrated the house warming ceremony and M.0. 35 series and
M.O. 36 series are the photo albums taken at the time of the house
warming ceremony. In the photos, D-2, D-3, P.W. 32, P.W. 4 and some of C
the prostitutes who were the inmates of the brothel are found. P.W. 20 was
the neighbourer of A-1 at Gandhi Road, Periyar Nagar and she noticed
that there were frequent quarrels between Jagadeeswari and one Sundari,
who was brought by A-1 after marrying her into that house. It is stated that
A-1 used to torture Sundari by burning her With cigarette butts and as she D
could not bear the same she committed suicide by setting fire to herself.
P.W. 20 also purchased one of the autos from A-1 for the amount due to
her. She further stated that A-1 brought 10 more prostitutes and was
running another brothel. D-1 Lalita, a prostitute who came alongwith other
prostitutes, developed intimacy with A-1 and Jagadeeswari used to com-
plain to P.W. 20 that A-1 was giving away all his earnings to D-1. It appears E
at that stage D-1 who was not happy, eloped with D-2. A-1 was very
unhappy and searched for D-1 and D-2 and ultimately D-1 was brought by
Pallawaram police. Jagadeeswari told P.W. 20 that. A-1 to A-3 and Mohan
brought Lalita and murdered her and buried her somewhere. D-2 started
brothel business separately and it is said that he used to. take the customers F
of A-1 to his brothel house and he thus incurred the wrath of A-1.
According to the prosecution, D-2 was brought into the house of A-1 and
there he was killed and the body was burnt and the remnants of the burnt
body were thrown away in the sea. Likewise it is alleged that Ravi, D-3,
who was making enquiries about D-2 was also done to death and his body
was buried in a pit dug in the house of A-1. G

-·
P.W. 32, Sasi who was assisting A-1 in running the brothel business
was in charge of the collections. Deceased nos. 4, 5 and 6 who belonged
to Mandhaveli area were the friends of P.W. 24. D- 3 was the brother of
P.W. 15 and D-5 was his relation. D-6 was also a friend of D-4. It is alleged H
308 SUPREME COURT REPORTS [1994[ 3 S.C.R.

A that these people used to go to Taj Mahal Hotel where the prostitutes from
A-1 brothel used to entertain the customers and make galata and the
information was given to A-1 and he wanted lo do something about that.

On 29.5.88, P.w. 38 and his brother-in-law took a prostitute from the
B brothel of A-1 to V.G.P. Golden Beach. Again they approached P.W.32,
the Cashier for another prostitute who sent P.W .. 121, Anita and told them
that she should be returned at about 3 P.M. At that time D-4, D-5 and D-6
were gain& in an auto fully drunk and they saw P.W. 121 getting down from
another auto and they caught hold of her and pulled her and created galata.
P.W. 7 was ironing the clothes at the street. At that time P.W. 32 and A-2
C were standing and talking. P.W.21 also was there. P.W. 121 raised a hue
and cry when the three deceased caught hold of her. A-2 questioned them
but they threatened him. This was also witnessed by P.Ws. 7, 9, 11 and 32.
At about 3.30 P.M., P.W.l, A-1 and A-3 were playing cards at the house
of P.W. 25. A-7 and A-8 came there. A-6 who also came there informed
D A-1 about the incident and also told him .that A-2 was beaten by three
persons of Mandhaveli. and that they also misbehaved with P.W. 121.
Thereupon P.W.l, A-1, A-3 and A-6 rushed to the 29th Cross Street
alongwith.A, 7 and A ,8 taking casuarina poles from the shed of the arrack
shop ·of Mohan.' Mohan, A-4, A-5 and Selvaraj also joined them carrying
casuarm~'.stii:ks. In the meantime, A-3 beat the· auto cl.river P.W. 11 who
· E . .brought ·the three deceased. He,. however, escaped with the auto. There-
upon A-1 ha.cl his associates encircled the three deceased and attacked
them. D-5; however, escaped and started rurming. He was chased but he
got into the firewood shop of P.W. 2 at L.B. Road, P.W. 1 and Mohan went
into the shop and brought D-5 out and the Same was witnessed by P.Ws.
F 2 and 3. Meanwhile A-1 and others dragged D-4 and D-6 and brought them
to the cement floor behind the illicit arrack shop and D-5 was also brought
there and all of the three were beaten on the cement floor which is in front
of P.W.S's house. This was witnessed by P.Ws. 3, 8, 89, 32 and 37.
Meanwhile P.W.4 was asked to go to Mandhaveli to find out whether the
three deceased persons were from Mandhaveli. P.W.6 was brought from
G Mandhaveli to identify the th.ree injured persons and on enquiring they told
him that A-1 and bis men have beaten them. P.W.6 was sent back. He,
however, informed P.W. 13 as to what happened. P.W.24 coming to know
about the occurrence went to 29th Cross Street and learnt from P.W.32
that all of the three were beaten. In the meantime A-1 decided to remove
H the three injured persons to his house as he felt that the matter would
GAURI SHANKAR v. STATE OFT.N. (KJ. REDDY, J.] 309

become serious. They were taken in an auto to the house of A-1 who went A
in advance. He also threatened the residents in the locality not to reveal
to the outsiders. P.W.3, a neighbourer, standing in front of his house also
noticed A-1 going away with blood stains all over his shirt and he also saw
the auto carrying the three injured persons. The three injured persons were
put inside the store room and it was locked. At about 10 P.M., P.W.l, A-1 B
to A-3 and the absconding accused Mohan opened the store room and
found D-4 and D-5 already deac! and D-6 groaning. A-1 felt that_it was
., dangerous to leave D-6 alive. He was dragged from the store room and
was throttled to death. P.W.1 gave the idea to bury the dead bodies in the
basement of the building under construction belonging to P.W. 14 and the
said house was being built by P.W.1 as contractor. P.W.9, a watchman, and C
another person were lying there. A-1 and others asked them to go away on
the pretext that they wanted to play cards. P.W.9 expressed his inability to
go to his house at that time and A-3 took him to his house where he slept.
Thereupon the accused procured a spade and removed the ·sand in the
trenches of the foundation at to places and buried two dead bodies at one D
place and the third one at another place. The accused came back and
washed blood stains in the store-room. In the meantime since the three
deceased did not return home, P.Ws. 15 and 17 and Puratchi Mani came
to Periyar Nagar and enquired P.W.32 and they also later enquired A-1
who told them that the three deceased came and made galata and they
were beaten and sent away. P.W.15 went to Thiruvanmiyur Police Station E
on 31.5.88 and orally reported about the missing persons. The Circle
Inspector, P.W.133 sent them away saying that the constable told him that
no such incident has taken place. Thereupon P.W.15 went to
Abiramapuram· Police Station and gave the complaint Ex. P.14. P.W.129,
the Sub Inspector registered the case under the heading "Man missing" and F
took up the investigation. Inspector of Police, Thiruvanmiyur arrested P.W.
32 but he told him that the three deceased persons were sent back. On
7.6.88 P.Ws.11 and 15 reported about the missing of the three persons to
the D.S.P., Parangimalai and on his instructions next d~y they went and
made a complaint Ex.P.11 to P.W.98 sub Inspector of Police, Thiruvan-
miyur who registered the crime. On 27.6.88 A-1 Was arrested by P.W.98 G
but he was released on bail. P.W.132 Inspector of Police took up both the
cases for investigation. On 6.7.88 he arrested P.W.1 at Tambaram Bus-
stand and questioned him in the presence of P.W.126. P.W.1 gave a
confessional statement and it was reduced to writing. The admissible
H
310 SUPREME COURT REPORTS (1994] 3 S.C.R.

A portions were marked as Ex. P.182 to P.186. On this information further
investigation commenced and on being questioned A-1 also made a con-
fessional statement and the admissible portion is marked as Ex. P.187.
P.W.132 seized several articles and searched the house of A-1 at Gandhi
Road. In pursuance of the information given by P.W.1 and A-1 and on
being pointed out by them the dead bodies of D-4 to D-6 were exhumed
B as per the orders of P.W.108, the Tehsildar, and the same were identified
by P.Ws. 15, 17, 18 and 19. The inquest was held over the three dead bodies
and the same were sent for post-mortem. On the basis of the information
given by P.W.l and A-1 further investigation into the deaths of D-1 to D-3
took an active turn. However, the dead body of D-2 was not traced. The
c panchnama was made and several incriminating articles from the room of
A-1 where the body of D-2 was burnt, were seized. The Inspector arrested
Mohan and recorded his confession and under the orders of the Tehsildar
they went to the place where the dead body of Lalita, D-1 was said to have
been buried and the earth was dug out and the photo of the place was
D taken and the remnants of the body that were found and other articles like
hair, broken bangles, blouse etc. were seized. The Inspector also recovered
the dead body of D-3 from the back side of the house of A-1 and it was
found decomposed and skeltonised. Likewise dead bodies of D-4 to D-6
·were recovered. Post'mortem was conducted by P.W.122 ·on the dead
bodies of D-3 to D-6. On the dead bodies ofD-4 to D-6, P.W.122 found
E several injuries and opined that they died due to injuries caused by
violence. P.W.122, who also conducted post- mortem on the dead .body of
D-3, Ravi opined that he died because of asphyxia due to strangulation.

On 15.7.88 P.W.122 went to the shed as per the requisition issued by
F the Tehsildar from which place the remnants of the dead body of Lalita,
D-1 were dug out and she conducted post-mortem on the spot. She noted
various details in the post-mortem report including the fracture of the
bones. P.W.122 sent the skull and jaw bones to the Chemical Examiner and
after receipt of the report P.W.122 gave her final report Ex.P.170. P.W.134,
Inspector, C.B., C.I.D. took up !lie investigation on 15.7.88 and made a
G thorough search of the all the places and examined several witnesses. He
also sent the skulls and bones of the deceased persons to the Forensic
Science Department for super-imposition test. As P.W.l, A-1 and A-2 were
in a mood to confess he gave the requisitions for recording their confes- , .
sional statements. P.W.106, Judicial Magistrate, Thiruvanmiyur recorded
H the confessional statement of A-1 after the necessary warnings and after
GAURI SHANKAR v. STATE OF T.N. [K.J. REDDY, J. J 311
~ ....
complying with the necessary formalities. Ex. P.100 is the confessional A
statement of A-1. On 15.8.1988, P.W. 134 arrested A- 2 and recorded his
confessional statement and its admissible portion under Section 27 of the
Evidence Act is marked as Ex. P.68. Later A-2 was produced before
P.W.107, Judicial Magistrate, Ponneri who recorded his confessional state-
ment and it is marked as Ex.P.106.
B
The confessional statement of P.W.1 was recorded by another
Magistrate under Section 164. Inspector P.W.134 issued a requisition
Ex.P.94 and P.W.105, Chief Judicial Magistrate, directed P.W.1 to be
produced before him on 21.12.88 and on that date P.W.105 read over
Ex.P.5, the confessional statement of P.W.1, who admitted it to be correct c
and also stated that he made the statement voluntarily and that he would
depose in detail in court and also prayed for pardon. P.W. 105 accepted
his statement and granted pardon.

P.W.118, the Assistant Director of the Forensic Science Department
conducted the super-imposition test and sent his report. P.W. 120, the D
Director of Forensic Science Department sent his reports regarding the
handwritings of A-1, A-2 and P.W.25 and after completion of the investiga-
lion, the charge-sheet was laid. However, meanwhile Mohan who was
arrested escaped and another accused Selvaraj was found to be still
absconding. The charge-sheet was laid against A-1 to A-8 as well as the
E
two absconding accused. When examined under Section 313 Cr.P.C. the
accused denied the prosecution case. A-1, however, gave a lengthy state-
men! and we will refer to the relevant portions of the same at an ap-
propriate stage while considering further details and the evidence.

From the above stated facts it can be seen that it is the attack on D-4 F
to D-6 that brought to light the whole case and the further investigation
was conducted into tluo deaths of D-1 to D-3 also.

As mentioned above the prosecution sought to prove its case against
these accused both by the evidence of P.W.1 alongwith corroborating
evidence as well as the retracted judicial confessions of A-1 and A-2 and G
the necessary corroborating evidence to the same. Learned counsel for the
appellants submitted that the evidence of P.W.l, the approver is full of
' ' contradictions and discrepancies and the version given by him goes not
appeal to be true and in any event his evidence is not corroborated in
material particulars by independent evidence. His further submission is H
312 SUPREME COURT REPORTS [1994] 3 S.C.R.

A that the other item of evidence namely the retracted confessions can not
be relied upon since they do not appear to be true and voluntary and that
in any event they are also not corroborated by independent evidence.

It may not be necessary to refer to the various decisions of the courts
laying down principles and guidelines regarding the apprecia~ion of
B evidence of an approver.

Section 133 and illustration (b) to Section 114 of the Evidence Act
deal with the law relating tq an accomplice evidence. An accomplice
namely a guilty associate in crime is a competent witness. Section 133 lays
C down that the conviction based on the uncorroborated testimony of an
accomplice is not illegal, but the rule of guidance indicated in illustration
(b) to Section has resulted in the settled practice to require corroboration
of evidence of an accomplice and which was now virtually assumed the
force of a rule of law. The word 'accomplice' has not been defined by the
D Evidence Act and it is generally understood that an accomplice means a
guilty associate or partner in crime. An accomplice by becoming an ap-
prover becomes a prosecution witness. In interpretation of Section 133 and
illustration (b) to Section 114, the Courts have laid down that an approver's
evidence has to satisfy a double test; (1) his evidence must be reliable and
(2) his evidence should be s~fficiently corroborated. It is enough if we refer
E to some of those decisions. (See Swaran singh Rattan Singh v. State of
Punjab, AIR (1957) SC 637; Lachhi Ram v. State of Punjab, AIR (1967)
SC 792 and Mohd. Hus~ain v. State, [1970] 1 SCR 130.

Coming to the extent and nature of corroboration, the Courts have
F held that ordinarily the approver's statement has to be corroborated in
material particulars bridging closely the distance between the crime and
the criminal and furnishing the need and assurance for acceptance of his
testimony. The corroboration need not be of a kind which proves the
offence against and accused and it would be sufficient if it connects the
accused with the crime. What is required is that there should be sufficient
G corroborative evidence to show that the approver is speaking the truth with
regard to the accused whom he seeks to implicate. Such corroboration
should be on material particulars and qua each accused. But it is not
necessary that there should be independent corroboration of every material > '

circumstance and it need not consist of evidence which standing alone
H would be sufficient to justify the conviction. In other words, there shoul.d
GAURI SHANKAR i·. STATE OFT.N. [K.J. REDDY.].] 313

be additional evidence by way of corroboration rendering the story of an A
accomplice probably true and that it is reasonably safe to act upon such
evidence. The independent corroboration need not also cover the whole of
the prosecution story or even whole of the material particulars, for that'
would amount to render the story of the accomplice itself superfluous.
What is required is that the evidence in corroboration must be an inde-
pendent testimony which affects the accused by connecting or tending to
B
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 riot again depends upon the facts and circumstances of C
each case. (See Ravindra Singh v. State of Punjab, AIR (1975) SC 856;
Rameshwar v. State of Rajasthan, AIR (1952) SC 54; Tirnbhawan Nath v.
State of Maharashtra, AIR (1973) SC 450 and Vemireddy Satyanarayan
Reddy and others v. State of Hyderabad, AIR (1956) SC 379.

D
It will be interesting to note an ideal instruction by a Judge to the
Jury In a passage which occurs in Wigmore on Evidence (7th Vol.-Third
Edn. at page 328) which reads as under :-

"It may not be unfit to observe to you here that the confirmation E
to be derived to an accomplice is not a repetition by others of the
whole story of the accomplice and a confirmation of every part of.·
it; that would be either impossible or unnecessary and ab-
surd; ............ and therefore you are to look to the circumstances to
see whether there are such a number of important facts confirmed F
as to give you reason to be persuaded that the main body of the
story is correct... .. You are, each of you, to ask yourselves this
question. Now that I have heard the accomplice and have heard
other circumstances which are said to confirm the story he has
told, does he appear to me to be so confirmed by unimpeachable
evidence, as to some of the persons affected by his story or with G
respect to some of the facts stated by him, as to afford me good
ground to believe that he also speaks the truth with regard to other
prisoners or other facts, with regard to which there may be no
confirmation? Do I, upon the whole, feel convinced in my con-
si::ience that his evidence is true and such as I may safely act upon?" H
314 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Bearing these principles in mind we shall now proceed to consider the
important aspects in the evidence of P.W.1 and also see whether his
evidence satisfies lhe necessary requirements of law and whether the same
is corroborated in material particulars?

Before P.W.1 was arrested in this case, he was residing al Kottivak-
B
kam and became a mason by profession. As he could not get masonry job
properly, he took to driving of auto which was given to him by his father.
The same met with an accident. Thereafter he hired another auto bearing
registration no. TNZ 7502 from his friends and later on purchased the
same. But even that he sold and again he was unemployed for some time.
c At that time his father was constructing a house in Palavakkam Village
where he worked as a mason. It is during that time that he became a friend
of A-1 and also came into contact with Mohan, the absconding accused as
well as Ravi, A-6, P.W.1 deposed that all the three of them were selling
illicit arrack. After completing the construction work again P.W.1 became
D unemployed and he also started selling illicit arrack and a conflict arose
between his men and A-l's men and both sides complained to the police.
However, the matter was compromised. P.W.1 got married in 1984. On
31.12.85 he was prosecuted for the alleged murder of one Natesa Nadar J
and he was released on Bail. As he was unemployed at that time A-1 asked
P.W.l to assist his younger brother Mohan and to help Mohan in selling
E illicit arrack. P.W.l also deposed that alongwith Mohan, Ravi, A-6,
Rajaram, A-5 and Jayavelu, A-4 were there helping him. P.W.1 further
deposed that Shankar, A-1 was actively carrying on brothel business and
Eldin, A-2, Shivaji, A- 3, Selvaraj, the absconding accused, P.W.32 and
Sudalai, D-2 were there helping A-1 in his brothel business. A-1 was doing
F brothel business in Periyar Nagar in Poramboke land on which they
encroached and ultimately purchased the same and A-1 raised a shed.
P.W.1 further deposed mentioning the names of several girls who were kept
by A-1 for doing brothel business. Among them, he named particularly,
P.Ws. 16, 21, 51, 71and121. It is also in his evidence that A-1 used to keep
beautiful girls for himself among those coming for the brothel business.
G P.W. 1 gave further particulars about A-l's extra marital relations with
Lalita, D-1 and Sunita, P.W.51 who joined his business. Since Lalita, D-1
was a beautiful girl, A-1 got a separate residence for her in the house of
Bommiammal, P.W.34 at Kalashetra Road. P.W.1 also gave details of A-l's
marriage with Jagdeeswari and where Jagdeeswari was residing etc. He
H also identified several photographs M.0.1 to 4. He next proceeded to state.
GAURI SHAN KAR v. STATE OFT.N. [K.J. REDDY, J.] 315

that Sudalai, D-2 used to send \Vomen to the customers and after getting A
the money from t.hem he used to give it to A-1. D-2 got married to one
Lala who was \Vith A-1 but she ran av. ay. D-2 was living very close to D-l's
1

house and they came into contact with each other. According to P.W.l they
ran away taking Rs. 7300 and a camera belonging to A-1 who gave a
complaint to the police and thereafter he made a hectic search for them.
The car in which he, A-1 to A-3 and Mohan travelled in search of D-1 and
B
D-2 was driven by Raghu, P.W.4. A- 1 went to Bangalore. However, A-1
ultimately managed lo secure D- 1. P.W.1 gave details about the hunt for
D-1 and D-2 by A-1 and his associates. In this context P.W.1 also deposed
that P.W. 85, brother-in-law of P.W.133 Inspector of Thiruvanmiyur was
working as a Manager of Santhi Theatre at Padi and both of them were c
trying to screen the offenders involved in such offences. P.W.1 proceeded
lo state about the enmity between Rajendran who was carrying a brothel
and D-2. Sudalai, D-2 was made to vacate the house. Thereafter D-2 with
the help of D-3 used to pick up A-l's customers from Taj Mahal Hotel
and take them in the auto with D-3 to Anna Nagar where prostitution was D
being carried on by commission. Because of this also A-1 became angry
with D-2. P.W.1 further stated that one film actress Bhuvaneswari, P.W.127
was residing at Valmiki Nagar in Thiruvanmiyur and one Sathyaraj intro-
duced her to P.W.1, A-1, A-2, A-3 and Mohan. These people used to go
to Bhuvaneswari's house to play Carrom Board now and them and she had
a car M.0.7. Whenever she needed the car, she used to take it from A-1. E
Likewise A-1 also used to take the car from her.

P.W.1 proceeded to depose that in the last week of February, 1988,
himself, A-1 and P.W.4 went to Bhuvaneswari's house, took the car and
roamed for some time and then they came to Taj Mahal Hotel and there p
they saw D-2 and D-3 talking. P.W.1 and A.1 stopped the car and A-1
asked P.W.1 to call D-2 saying that he should be finished. According to
P.W.l, A-1 further told him that he would finish off anybody who comes
in his way and that.he would have peace of mind only after killing D-2. As
directed by A-1, P.W.1 took D-2 alone and he was taken in the car and
they went to Mohan's liquor shop at Periyar Nagar and from there they G
picked up Mohan, Eldin, A-2 and Shivaji, A-3 and all of them came to
A-l's house at Periyar Nagar and entered the house and sat on the first
floor and started drinking brandy alongwith D-2. They gave large quantities
to D-2 to make him get drunk and they also gave him some food. After
taking meals D-2 lit a cigar and was sitting in a slanting position at about H
316 SUPREME COURT REPORTS 1199413 S.C.R.

A 8.30 or 9 P.M. At that time A-1 questioned D-2 about all the places where
D-2 had taken D-l. A-1 became angry and saying that D-2 has become a
hindrance to his brothel business also beat him severely on his cheek and
he also signalled P.W.1 to throttle the neck of D-2 with a towel. A-2 pulled
the legs of D-2 who fell down aod P.W.1 pulled the towel and throttled the
neck of D-2 while Mohan pressed the nose and mouth of D-2 and A-3
B caught hold of his hands. Then A· 1 kicked on the vital parts of the body
of D-2 who after some time died. (P.W.l also identified the photograph of
D- 2, M.0.8), A-1 suggested that they should burn the body of D-2 there
itself and sent A-2 and Mohan to bring six litres of petrol. A-2 took TVS
50 belonging to Mohan and brought the petrol. The bocly of D-2 was placed
C on the first floor in a room facing east. A-1 removed a gold ring and a gold
chain from the body of D-2 which was given by A-1 to D-2 at the time of
housing warming ceremony. After petrol was brought, it was poured on the
body ofD-2 and A-1 after lighting a cigarette with a match stick, threw the
burning stick on the body of D-2 which started burning. They closed all
D the windows and came out. After some time they heard some sounds
indicating the burst of the stomach and the liver etc. of the burning body.
After the fire started extinguishing A-2 asked Mohan to go down and bring
kerosene and some planks. The kerosene was poured on the burning body
and the body was lifted and placed on the planks. Then A-1 suggested the
unburnt portions could be dropped at the Muttukadu Boat Yard. At about
E 2 or 2.30 A.M. the unburnt portion of the body and the planks were packed
in a bed-sheet and when the car was brought by A-2 and Mohan, the body
was kept in the dicky. The car was driven by A-1. On the way he saw
P.W.32 Sasi and P.W.4, Raghu. A-1 also asked them to get into the car
saying that they had to bring arrack and gave the driving to P.W.4. Before
reaching the Boat Yard they dropped P.Ws. 4 and 32 since they should not
F
know that they were dropping the body of D-2. A-2 also was dropped just
to avoid any suspicion by them. Thereafter they went to Muttukadu Boat
Yard and threw away the remnants of the dead body which were not
traced. They came back at about 5 or 5.30 in the morning to the house.
A-1 asked Mohan to bring Thoppai Mistry and Painter Munusamy, P.W.
G 68. Those two people came and they were told that the bed got fire in the
night and that the paint has become black. As asked by A-1, P.W. 68 and
Thoppai Mistry painted the room and also did the other repairs. P.W.1 was
there throughout. After two days when A-1 and Mohan were talking, D-3
came and said that D-2 is not to be seen and that A-1 took him and asked
H
., __

GAURISHANKAR v. STATEOFT.N. [K.J.REDDY,J.] 317
~,-......,

A-1 why D-2 was not found for nearly two days and it appears D-3 also A
asked A-1 for some money. A-1 suspected that D-3 was often enquiring
about D-2 and ultimately planned to put an end to him. A-1 told P.W.1
that Ravi, D-3 should be finished off. In the month of March, 1988, A-1,
Mohan, A-2, A-3 and P.W.l were drinking in the house of Mohan at
Ranganathapuram were he also used to keep girls involved in the prostitu-
B
tion and it was called a godown. At about 9 or 9.30 P.M. D-3 came and
A-1 asked him to take drink. A-1 gave Rs. 100 to by whisky. While D-3
, went to bring whisky A-1 told P.W.l and others that if after coming back
D-3 asks anything about D-2, he should be finished. Meanwhile D-3
brought whisky and all of them started drinking. After a little while D-3 in
c
the effect of the drink started saying that A-1 has finished Lalita, D-1 and
also has finished Sudalai, D-2 and he also threatened A-1 that if he informs
the same to Inspector of Thiruvanmiyur, what would be his fate. So saying
he asked A-1 to buy an auto for him. Then Shivaji, A-3 questioned D-3 as
to why he was demanding an auto for which D-3 retorted him to keep quite.
Then A-3 slapped D-3 and all of them planned to finish him off. A-2 was
D
at the door and he caught hold of D-3's hairs and dragged him and made
him sit near the wall of the bath-room. A-3 picked up a towel with which
he strangtulated D-3's neck. A-1 closed his mouth and nose and pressed.
P.W.l sat on his chest. Mohan caught hold of Ravi's hands and A-3 caught
hold of Ravi's legs. After his death they decided to bury the body there
itself. A-1 asked A-2 to bring P.W.68 and Thoppai Mistry and when they E
came A-1 told them that some arrack barrels have come and they have to
be buried and a pit has to be dug. Accordingly the pit was dug by P.W. 68
and Thoppai Mistry and the accused gave a false alarm that police are
coming so that P.W. 68 and Thoppai Mistry could leave the place imme-
diately. After that P.W.l, Mohan and A- 1 to A-3 put the body in the pit
... and closed it. They also placed the clothes which were worn by D-3 in the
F
pit. A-1 warned all the accused who participated in the murders not to tell
anybody and also threatened them with dire consequences if they would
reveal the same to anybody.

P.W.l proceeded to depose about D-3's mother coming and asking G
A- 1 regarding the whereabouts of D-3 quite often. Then Mohan wrote a
letter Ex.P.l purported to have been written by D-3 stating that he had
gone to Bombay and the same was given to his mother.
~ -~

Then P.W.l deposed about the murders of D-4 to D-6 for which H
318 SUPREME COURT REPORTS [1994) 3 S.C.R.
t
A there is direct evidence of other witnesses also. He deposed that on 29.5.88
in the noon when he himself, A-1 and A-3 were playing cards in the house
of P.W. 25, A-l's concubine, A-7 and A-8 came there. A-6 and Mohan also
came there. Mohan told A-1 that three persons from Mandhaveli were
beating A-2. Then P.W.l has given all the details about the attack on the
three persons and how they were buried in the trenches of the foundation
B of a building which was under construction. These details have already
been set out while stating the prosecution case.

From the above resume of the prosecution case as well as the
evidence of P.W.l, it can be seen that murders of D-1 to D-3 from one
C transaction in the sense that A-J. did not tolerate the betrayal by D-1 and
D-2 and finished them off and since D-3 was trying to blackmail him in
respect of murders of D-1 and D-2, he was also finished off. The murders
of D-4 to D-6 also in a way are connected with the brothel business which
was being run by A- 1 and others. P.W.1 was also associated actively in all
D the activities of A-1 to A3 and Mohan. Therefore the prosecution first
sought to prove the background and the motive behind the commission of
these murders namely the illicit arrack business and the brothel business
and how D-1 to D-3 happened to come into picture and got thus
eliminated. P.W.1, as stated above, has deposed about the murders of D-2
to D-6. So far the murder of D-1 is concerned, P.W.1 only spoke about the
E association and the relationship between A-1 and D-1 and about the
elopement of D-1 and D-2. As to the actual murder of D-1, we have the
retracted confessions of A-1 and A-2 and we shall examine at a later stage
whether the retracted confessions as corroborated by other evidence suffi-
ciently establish the prosecution case regarding the murder of D-1.
F
Now we shall consider the important aspects in the evidence of P.W.1
and see whether there is enough of corroboration? So far as the murder
of D-1 is concerned, P.W.1 did not participate in the actual occurrence of
causing the death. He however, deposed about the association of A-1 and
D-2 with D-1 and about the illicit business activities of A-1 and Mohan and
G about the motive. His evidence shows that he was a close friend and
associate of A-1 and the same is beyond dispute. As a matter of fact, A-1
in his written statement under Section 313 Cr.P.C. admitted that he was a
close friend of P.W.l. P.W.l has also given the details as to how he became
an associate of A-1 and Mohan and also as to how A- 2 to A-6 and he
H himself were helping A-1 and Mohan in carrying on the said business
i·

,,.
GAURI SHANKAR v. STATE OFT.N. [K.J. REDDY,J.] 319
'~

activities, P,WJ also has spoken about the brothel business, He further A
deposed that 0-1 and Sunita, P.W.51 who were in the brothel tent of
P.W.50 were brought to the brothel den of A-1 by P,W.52. It is stated that
several girls including P.Ws. 21 and 71 were prostitutes in A-l's brothel
den. He has also stated that 0-1 was beautiful and that. A-1 kept her at
Kalashetra Road in P.W.34's ho'!se while he was living with his legally B
wedded wife Jagdeeswari in Periyar Nagar. It is also in his evidence that
0-2 used to collect money from the customers and give it to A-1 and that
0-2 married one Lala who was kept in the next room of 0-1 who fell in
love with 0-2 and both of them eloped with cash of Rs.7,300 and a camera
belonging to A-1. He has also stated about the arrest of 0-2 at Thiruvan-
miyur Police Station. So far as 0-l's murder is concerned, the evidence of C
P.W,l is relevant, to this extent regarding motive. This part of his evidence
is amply corroborated by the evidence of other witnesses, That A-1 was
carrying on brothel business, is clearly established by the evidence of the
prostitutes P.Ws. 21, 51, 71 and 121 besides the evidence of P.W.22, a
neighbourer, P.W.31, P.W.32, his own employee and P.W.25, his mistress D
and also by the evidence of P.Ws. 50, 51 and P.W.4, his own driver. Here
we may briefly refer to the evidence of P,W. 25, It is in her evidence that
while she was staying in a shed at Kalashetra Road, she became friendly
with A-1 who was indulging in brothel business. He expressed his desire
to marry her on 20.2.86 and took her to his step-mother and married her
by tying a thali. P.W.25 also deposed that A-1 used to write a diary M,O. E
20 wherein there is an entry about-his marriage with P.W.25. Because of
this marriage there was a quarrel between him and his first wife Jagdees-
wari and he took her and kept her separately in Marudeeswarar Nagar.
P,W.25 also deposed about the cruel acts of A-1 namely that he used to
burn the girls with lighted cigarette butts and because of that Vijaya, one F
of the girls brought by him, ran away. P.W.52 corroborated the evidence
of P.W.25 in respect of the marriage of A-1 and herself, P.W.34 cor-
roborated her evidence ,;,,d stated that A-1 kept her and one Lata, who
married 0-2 at Kalashetra Road in P.W. 34's house. P.W.25 also stated
about elopment of 0-1 and 0- 2, According to P,W.25, A-1 used to ask
her to right in the diary M,Q. 20 and that he also confessed to her about G
the murder of 0- 1. P.W.l's evidence also affirms that P.W.25 was the kept
mistress of A-1. P.W.31 corroborates the evidence of P,W. 1 regarding the
Grab Pravasam of A-l's newly built house. P.W.32 is yet another important
witness who corroborates the evidence of P.W.1 as well as that of P.W.25
H
320 SUPREME COURT REPORTS [1994] 3 S.C.R.

A regarding the running of the brothel house. P.W.37's evidence also cor-
. ' •·
roborates namely that he and A-1 went to Pallavaram and brought D-1.
Then P.W.35, who is the mother of D-1, deposed about A-1 approaching
her and enquiring about D-1. P.W.35 also identified A-1 and A-3 as the
persons who came to enquire. Then we have the evidence of P.W.43, the
Inspector attached to Thiruvanmiyur Police Station who informed A-1 that
B he brought D-2 from Meenabakkam and kept him in the Police Station.
P.W.98, Sub-Inspector of Thiruvanmiyur deposed about A-l's preferring a
complaint in September, 1987 against D-2 alleging that he abducted his
wife and took away cash and camera. P.W.133, is the Circle Inspector of
Thiruvanmiyur who directed to book a case against D-2 under Section 75
c of the City Police Act. So the evidence of the above witnesses amply
corroborates the evidence of P.W.1 on the above aspects and the same
establishes that A-1 had strong ill-feelings towards D-1 and D-2. Apart
from this evidence there is the evidence of P.W.4 who was originally a
driver in Mohan Raj Travels and who later joined the service of A-1. He
D deposed that he alongwith A-1 went in search of D-1 to Kottupuram and
other Places. He has given details about going to Bangalore etc.

So far as the murders of D-2 to D-6 are concerned, P.W.l was a
direct participant. First we shall consider the evidence of P.W.1 in respect
of the murder of D-2 and the corroborating evidence. The persons involved
E in this murder are A-1 to A-3, absconding accused Mohan and P.W.1, the
approver. P.W.1 has given the details of the occurrence namely as to how
D-2 was done to death and how they set fire to the dead body in the room
of the house of A-1 and how the remnants of the dead body were thrown
in Muttukadu Boat Yard. As regards the motive for this murder, we have
F already pointed out that P.W.l's evidence is corroborated fully. The
prosecution further relied on the evidence of P.Ws. 4, 5, 20, 25, 32, 34, 35,
37, 39 to 43, 46, 51, 55, 58, 64, 67, 68, 69, 121, 126, 131and134. We do not
propose to give the details of evidence of each of these witnesses. Learned
counsel appearing for the appellants, however, contended that A-1 had no
motive to kill D-2 inasmuch as D-2 was helping him in all respects and A-1
G also got him married and presented a gold ring and a gold chain. But the
evidence of P.W.l, which is supported by other evidence, would show that
A-l was very much aggrieved and infuriated because of the betrayal ofD-2
by eloping with his beloved wife D-1. He had also grievance against D-2
as he was weaning away the customers of A-1. There is nothing to show
H that A-1 condoned the acts of D-2. To some extent the evidence of P.W.25
GAURI SHANKAR v. STATE OFTN. [KJ. REDDY, J.] 321

also supports the prosecution case that A-1 had strong ill-feelings towards A
D- 2. Both the courts below have accepted the above mentioned evidence
after discussing in great detail and held that t_he prosecution established
the motive for the murder of D-2.

So far as the actual occurrence is concerned, we have got the B
evidence of P.W.1 which is corroborated by other evidence independently
-J
apart from the retracted confessions of A-1 and A- 2. While extracting
P.W.l's evidence we have already given the details spoken to by him
reg~rding the murder of D-2_ P.W.l's evidence is corroborated by the
evidence of P.W.fl to the extent namely that on that day at about 4.30 P.M.,
D-2 and D-3 were seen conversing in the tea stall near Taj Mahal Hotel C
and P.W.4 and A-1 stopped the car and A-1 asked P.W.1 to bring D-2 and
how D-2 was brought. Then P.W.1 has given the details of various acts
committed by A-1 to A-3, Mohan and himself as well as bringing the petrol
and pouring the same on the dead body of D-2 and setting fire to the same.
P.W.1 has also given the details of the remnants of the burnt body being D
kept in the car and taken to Muttukadu Boat Yard. P.Ws. 4 and 32 deposed
that they were also asked to get into the car and A-1 asked P.W.4 to drive
the car and on the way just before reaching the Boat Yard. A-2 and P.Ws.4
and 32 were asked to get down so that P.Ws. 4 and 32 may not suspect and
the rest proceeded in the car. The evidence of P.W.68_ Painter Munusamy
and P.W. 69 Subbaiah Mistry is very important. P .W.68 was sent for by A-1. E
He deposed that he went to the house and having seen the room noticed
that the wall was black and on being asked A-1 replied that he had dropped
a lighted cigarette on the bed and it got burnt and P.W.68 was asked to
paint the room and that P.W.1 was there throughout the day when the
painting was going on. He also noticed a crack in the wall and he was asked F
to bring a mason. P.W.68 asked P.W.69 Subbaiah Mistry to do the work
and P.W.69 put new cement flooring and he also noticed fresh white-wash-
ing and painting inside the room. P.Ws. 65 and 67 are the persons who
supplied the materials for painting. P.W.65 deposed that he was having a
hardware shop and used to supply materials and on that day A-2 came and
asked for supply of lime and brown colour paint. He further deposed that G
A-1 already instructed him to supply the materials and accordingly he
supplied. He produced the bill also. P.W.67 is another witness running
hardware shop. He deposed that on 1.3.88 P.W.68 came to his shop and
purchased colour and paint. The evidence of P.Ws. 68 and 69 coupled with
the evidence of P.Ws. 65 and 67 lendsample corroboration to the evidence H
322 SUPREME COURT REPORTS [1994] 3 s. c. R.

A of P.W.1 namely that the burning took place in the room. Learned counsel,
in this context, however, submitted that there is no corroborating evidence
regarding the actual burning of the dead body of D-2 in the room. What
we are seeking by way of corroboration is whether the version of P.W.l
stands fortified and whether such corroborating evidence lends assurance
to his version. The evidence of these witnesses particularly that of P.W. 68
B establishes that only in that particular room there were dark particles and
smoke and bad smell were emnating. Therefore the evidence of P.W.1 that
D-2 was done to death in that room and that his body was burnt, is amply
.•.
corroborated. Apart from this, the prosecution also relied on the evidence
of P.Ws. 88, 113, 128 and 134. P.W.128 is the Assistant Director of Forensic
C Science Department and he scrapped the wall and after examining the
contents stated that there was black deposit. Learned counse~ however,
submitted that it is not conclusively established that the presence of carbon
particles in the room were due to the burning of the body. But, as
mentioned above, there is overwhelming evidence which c01rnborates the
D version of P.W.1.

The prosecution also relied on the recovery of jewels namely ring
and gold chain worn by D-2 at the time of occurrence. At the instance of
A-1, the gold chain M.O. 13 was recovered from the possession of P.W.25
alongwith some other articles. The panchnama was attested by P.W.31 as
E well as by P.W.25. There is also recovery of M.O. 12, gold ring, at the
instance of A-2 from his mother-in-law. P.W.1 identified both these jewels
and stated that they were presented to D-2 at the time of Grah Pravasam
of his house and that they were removed from the body of D-2.

F We have also the evidence of P.Ws. 25, 32 and 55 that D-2 was last
seen alive in the company of A-1 to A-3, Mohan and P.W.1. Thus there is
enough of corroboration to the evidence of P.W.1 regarding the murder of
D-2. The same has been accepted by both the courts below and the same
establishes that A-1 to A-3 alongwith P.W.1 committed the murder of D-2.

G Now coming to the murder of D-3, Rav~ P.W.1 has given details as
to how he was done to death and how the body was buried near the
bathroom at 120-A, Ranganathpuram, Thiruvanmiyur. As far as the motive
aspect is concerned, P.W.1 has given the details as to how D-3 used to
come to A-1 and demand money. He also deposed that A-1 told him that
...
H D-3 is making frequent enquiries about D-2 and that he may tell something
GAURISHANKAR v. STATEOFT.N. [KJ.REDDY,l.] 323

to the Inspector of Thiruvanmiyur who has been using D-3's auto often. A
Here again we have the evidence of P.W.68, Painter Munusamy who
deposed that as directed by the accused, he dug a pit and thereafter A-1
gave him Rs. 100 and asked them to go away saying that police was coming.
Then P.W.1 deposed that he and absconding accused Mohan and A-1 to
A3 brought the dead body of D-3 from the room and buried it in the pit. B
For the purpose of corroboration of the version of P.W.1 the prosecution
relied on the evidence of P.Ws. 25, 31, 32, 33, 45, 56, 59, 60 to 63, 68 and
other witnesses apart from the evidence regarding the recovery etc. It is in
evidence that D-3 was a close friend of D-2 and when he found that D-2

- was missing, he suspected that he might have been murdered. The motive
part, as far as the murder of D-3 is concerned is that A-1 suspected that C
D-3 was trying to blackmail him. The mother of D-3, P.W.59, deposed that
she went and questioned A-1 about the whereabouts of D-3 and A-1 told
her that D-3 has gone to Bombay and ultimately she gave a complaint. She
further deposed that she got an inland letter Ex.P.1 purported to have been
written by D-3 and she stated that the same was not in his handwriting. As D
already mentioned this letter is written by Mohan who tried to mislead
P.W.59. P.W.59 also identified the clothes which were worn by D-3 i.e.
M.Os. 16 to 18 and M.O. 111 and which were recovered from the pit at
the time of exhumation of the body. P.W.60, the wife of D-3, also supported
the evidence of P.W.59. Learned counsel contended that the evidence of
P.W.120, Hand-writing Expert on the question· of hand-writing in Ex.P.1 is E
not conclusive. We think we need not go into the details of the evidence
of P.W.120 because there is other ample evidence. P.W.25 also supported
the evidence of P.W.1 on some material aspects. The evidence of P.W.68,
who dug the pit, is very important and P.W.69 deposed that at the instance
of absconding accused Mohan, he did the plastering near the bath room F
where there were cracks in the cement floor. Next we have got the evidence
. regarding the recovery of the body. According to the prosecution, pursuant
to the confession made by A-1, the body was recovered. Learned counsel
submitted that this recovery can not be treated under Section 27 of the
Evidence Act since it is not clear whether the recovery was effected at the
instance of P.W.1 or A-1 or at the instance of both. Even assuming that it G
can not be brought within the ambit of Section 27, yet it is a circumstance
which shows that body was buried there and the same was exhumed.
Regarding the exhumatioq, we have the evidence of P.W.108, Tehsildar and
... ., P.W. 109 Photographer. Then there is evidence of P.Ws. 59, 60, 62 and 63
H

.I
324 SUPREME COURT REPORTS [1994] 3 S.C.R.

A who also attested the inquest report. The dead body was identified by the
relatives of D-2 with reference to M.Os. 16 to 18 and 111, the clothes worn
by D,3. The recovery of the same from the pit is spoken to by P.W.108 and
other witnesses. Apart from that there is evidence of P.W.118, Assistant
Director of Forensic Science Department who did the super-imposition
test in respect of skull and jaw recovered and gave the opinion that the
B skull and jaw belonged to D-3 with reference to M.O. 19, a photograph.
Therefore there is no doubt about the identity of the deceased. There is
also the evidence of P.W.122, a Doctor, who conducted the autopsy and
she gave the opinion that D-3 appeared to have died of sudden violent

C
unnatural cause of death munely asphyxia and strangulation. She has also
noted that. there was a fracture of hyoid bone. Therefore the cause of death
also is clear and the same corroborates the evidence of P.W.l.

Both the courts below also relied on the evidence of P.W.25. She
deposed that on 14:3.88 D-3 came to her honse and enquired about A-1
--
D and on 15.3.88 at about 8 A.M. A-1 came to her house and consumed
brandy and on being questioned as to why he was taking brandy in the
morning, he told him !hf he was very happy on that day. He also confessed
as to how D-3 was doneaway with. Her evidence was challenged on the
ground that she was the wife of A' 1 and such evidence in view of Section
122 of the Evidence Act can not be used against A-1 namely the .husband
E and on a consideration of the entire evidence, both the courts, as a question
of fact, held that P.W. 25 was not the legally wedded wife of A-1 and that "
his marriage with Jagdeeswari was subsisting and that P.W. 25 was a
Christian and she was living only as his mistress and therefore Section 122
of the Evidence Act is not attracted and on the facts this appears to be a
correct view. Thus P.W.l's evidence in respect of murder of D-3 is amply
F
corroborated by the evidence of the abovementioned witnesses.

Regarding the murders of D-4 to D-6, apart from the evidence of
P.W.l, there is ~vidence of some. more eye-witnesses and other corroborat-
ing evidence and the recoveries. We have already given the details of the
G conduct of these three deceased pers0ns, as deposed by P.W.1. 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 case of the prosecution is that D-4 to
D-6 (Mandhaveli people) were creating trouble and also threatened the
H Managers of the place not to allow prostitution in the lodges. The pros-
GAURISHANKAR v.STATEOFT.N.(KJ.REDDY,J.] 325

titutes who were in the business of A-1 complained to him and it was the A
beating of A-2 that aggravated the whole situation. P.W.121 deposed that
she joined the brothel of A-1 in 1987. P.Ws. 4, 9 and 32 and D-2 were
assisting A-1. A-3, A-5 and A-6 and Selvaraj, the absconding accused were
assisting Mohan in the illicit arrack business. Her further evidence is that
on 23.5.88 the three deceased and others created galata and she informed B
A-1. On 27.5.88 also there was some such trouble. P.W.121 further deposed
that when she was returning from the Golden Beach after spending time
with the customers, she was assisted and she was pulled by the three
deceased from the auto and when A-2 intervened he was also assaulted
and coming to know of this, A-1 came with other associates including
P.W.1 and attacked the three deceased. The auto driver, P.W.11 also C
corroborates the evidence of P.W.l as well as that of P.W.121. The
prosecution thus has established that there was sufficient motive. Regard-
ing the actual beating, apart from the evidence of P.W.1, there is the
evidence of P.W.2 fire-wood shop owner. He deposed that D-5, Mohan
entered his shop being chased and he requested P.W.l and Mohan, the D
absconding accused not to attack the deceased in the shop but to take him
out and accordingly they took him out. Then we have the evidence of P.W.4
who deposed that he brought F .W.6 from Mandhaveli who affrrmed that
all the three deceased persons belonged to Mandhaveli and thus they were
identified. Then there is evidence of P.W.32 who also informed A-1 about
the earlier attack by the three deceased person. P.W.3 is a member of E
Vanmar Sangam and on that day at about 3.45 P.M. he came in front of
P.W.2 shop. He noticed a person entering into the shop being chased by
P.W.1 and Mohan and also saw P.W.1 beating him. While going he also
saw A-1 standing armed with a casuarina stick. By then all the accused had
assembled and he noticed P.W.1 and Mohan and other accused beating F
the three deceased persons. P.W.3 was threatened by A-1 that if anybody
interferes with his affairs, he would meet the same fate. Thereafter P.W.3
went to his house. P.W.3's house is quite nearby and a little later he saw
A-1 with blood stains clothes entering into his own house and followed by
P.W.1, Mohan and A-3 who were bringing the three deceased in the auto
to the house of A-1. P.W.3 is a person living very close to the place of G
occurrence and there is no dispute that he knew the identity of these
accused. Both the courts have discussed his evidence and found to be
trustworthy which corroborates the evidence of P.W.1 in respect of actual
occurrence also. Next we have the evidence of P.Ws. 7,8,9 and 89 besides
H
326 SUPREME COURT REPORTS [1994] 3 S.C.R.

A that of P.Ws. 4, 32 and 37. P.W. 7 is a dhobi. He knew the accused as well
as P.W.1. He deposed that on the date of occurrence he was in front of
the house of one Ramalingam on 29th Cross Street attending to his work
and he sa'Y an auto coming from which P.W.121 got down. He further
deposed that the three deceased persons, obviously referring to D-4 to D-
6, pulled her and quarrelled with her and when A-2 came he was also
B beaten by the three deceased. Then P.W.32 came and took the girl. He
further deposed that the accused came from the side of the arrack shop of
Mohan armed with sticks and started beating the three deceased. P.W.11,
the auto-driver was driven away, P.W.7 has been cross-examined at length.
We find that he is a local witness who knew all the accused and his
C evidence regarding beating of the three deceased persons on 29th Cross
Street by the accused is trustworthy and the same corroborates the
evidence of P.W.1 amply. P.W.32 also corroborates the evidence of P.W.7
to the extent namely that he came and took away P.W.121 who was being
ill-treated by the three deceased on the road. Next important witness is
D P.W.8 who also resides in the same street namely 212, Gandhi Road,
Periyar Nagar where A-1 is residing. He knew the accused though he did
not know their names. He fairly stated that he did not know the names of
A-2 and A-8. It is in .his evidence has on the day of occurrence at about 4 '
P.M. he heard a voice from the cement floor opposite to his house. He
came out and saw the three young persons being beaten indiscriminately
, E all over the body with casuarina sticks and he identified A-1 to A"4, Mohan
and P.W.l beating with casuarina sticks and A-6 with a wooden reaper.
P.W.8 further deposed that he was called by A-1 and threatened not to
disclose the incident to anybody and also asked him to wash the cement
floor. Accordingly he washed the same. He further deposed about the
F recovery of dead bodies on being pointed by A-1 and P.W.1 from the
basement of the building under construction belonging to P.W.14. P.W.8 is
a competent witness. We have also seen his cross-examination and the
discrepancies pointed out are of minor nature. His evidence amply cor-
roborates the evidence of P.W.1 in respect of attack from the beginning
upto the beating on the cement floor. Next comes the evidence of P.W.9
G who is a resident of Thiruvanmiyur. He deposed that on the day of
occurrence at about 4.45 P.M. he was talking with A-2 and P.W.32 on 29th
Cross Street. He deposed about the three deceased person pulling P.W.121
from the auto etc. He also deposed that he was sleeping on the basement
of P.W.14's building and that at about 1or1.30 A.M., P.W.1, Mohan, and
H
GAURI SHANKAR v. STATE OF T.N. [K.J. REDDY, J.j" 327

A-1 to A-3 came and asked them to vacate the place as they were going A
to play cards and when he expressed that he can not go to his house at
that time, A-3 took him to his house and asked him to lie there. However,
he once again came to the basement and he saw A-3 alongwith A-1 and
P.W.1 digging the pits in the basement. P.W.9 also is cross-examined at
length. As a matter of fact he did not even mention the names of A-7 and B
A- 8. However, his evidence corroborates the evidence of P.W.1 to that
extent namely that pits were dug on the basement of the building of P.W.14.
P.W.11 also corroborates the evidence of P.W.1 as well as that of P.W.32
to the extent of three persons coming in the auto and manlanding P.W.121.
He also deposed that A-2 came there and he was also beaten and therefore
he left the place. P.W.121 also corroborates the same. P.W.37 is another C
witness who is a resident of Periyar Nagar and he also deposed about the
accused beating the three deceased persons with casuarina sticks on the
cement floor opposite to the house of P.W.8. He did not attribute any overt
act to A-7 and A-8. Then regarding the later part of the occurrence, we
have the evidence of P.W.89 who is running a shop. He knew all the D
accused and P.W.1. His shop is located opposite to the arrack shop of
Mohan and while he was in his shop, he saw the three deceased persons
in an auto and A-2, A-3 and others beating them. He also deposed that at
about 5 or 6 P.M. the victims were taken in an auto towards Gandhi Road.
Both the courts have found his evidence to be natural and probable. His
evidence also corroborates the evidence of P.W.1 on this aspect namely the E
three deceased persons were beaten on the cement floor and were taken
towards Gandhi Road i.e. to the house of A-1. Then. there is evidence of
P.Ws. 4, 5, 6 and 17. We have already referred to the evidence of P.Wf
on other aspects. He corroborates the evidence of P.W.l on the earlih
aspects namely identification of the three deceased and P.W.6 coming and F
identifying them. He did not see the actual beating but deposed that he
saw that the three deceased persons were detained with injuries. Then we
have the evidence of PW.12, who deposed that on that night A-3 came to
his house and asked him to give his spade saying that it was needed fof
burying the arrack barrels. The prosecution also relied on the evidence 6f
P.Ws. 10, 25 and 32 to whom A-1 is said to have confessed about the G
occurrence. We have already referred to the evidence of P.W.25 on certain
aspects. With regard to this occurrence, she deposed that when A-1 was
in her house A-6 came and told him that the three deceased persons from
.. Mandhaveli have waylaid P.W.121 and were quarrelling with her and when
H
328 SUPREME COURT REPORTS [1994] 3 S.C.R.

A A-2 intervened he was beaten. She further stated that a little later P.W.37
came and told that all the three deceased were on the cement floor and
were being beaten by A-1 and others. A little later A-1 came to her house
and she found that his clothes were blood-stained and the other accused
brought the three deceased persons in an auto. A-I also asked her not to
remain in the. house -and he took her to the nearby house of P.W.31.
B Sometime later when she. asked A-1, he told her that they have beaten all
the three deceased and locked them inside the room and that later they
found that D-4 and D-5 dead and D-6 alone murmuring and thereafter
they also strangled him to death. Thus, so far as the murders of D-4 to D-6
are concerned, P.W.l's evidence is amply corroborated by other evidence
c and apart from this evidence, there is other evidence namely that of P.Ws.
7, 8 and others which also establishes that the accused persons alongwith
P.W.1 committed their murders. The High Court, however, acquitted A-7
and A-8 since their names were not specifically mentioned and for other
reasons. Any way we are not concerned with them.
D
From the above discussion it emerges that P.W.l's evidence which is
sufficiently corroborated by the other evidence establishes beyond all
reasonable doubt that A-1 had the motive to do a way D-1 and that A-1
to A-3 and P.W.l alongwith the absconding accused committed the mur-
ders of D-2 to D-3 and all of these appellants also committed the murders
E of D-4 to D-6.

At this juncture, we would like to advert to a submission of the
learned counsel for the appellants. He pointed out that the High Court has
used the retracted confessions for the purpose of corroborating the
p evidence of P.W.1 which is not permissible. We have gone through the
judgment of the High Court carefully. No doubt, here and there it is
mentioned that the retracted confessions also corroborate the evidence of
P.W.l on certain aspects but a careful scrutiny would show that the learned
Judges were pointing out that the version given by P.W.1 and the one found
in the retracted confessions are consistent with each other. However, we
G have considered them independently and have given our own reasons for
acting upon these two items of evidence.

The prosecution also sought to prove its case by the retracted judicial
confessions made by A-1 and A-2 and corroborated by the other evidence.
H We may mention at this stage that the version given in the retracted judicial
GAUR! SHAN KAR "·STATE OFT.N. [K.J. REDDY,J.] 329

confessions is one and the same as the one given by P.W.1 except in respect A
of the murder of D-1 about which P.W.l docs not speak as he was not
present. Therefore most of the corroborating witnesses would be the same
whose evidence was relied upon, as mentioned above, for the purpose of
corroborating the evidence of P.W.1. However, we shall deal with the
murder of Lalita, D-1 in detail and then briefly refer to the other parts of B
the version and the extent of corroboration rendered to the retracted
confessions.

At this stage we may usefully refer to the principles governing the
evidentiary value· of retracted confession. The confession is a form of
admission consisting of direct acknowledgment of guilt in a criminal C
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 a
confession. The confession should be a voluntary one, that means not
caused by inducement, threat or promise. Whether a confession is volun- D
tary or not is essentially a question of fact. The judicial confessions are
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 inde-
pendent evidence. The rule of prudence namely requiring corroboration E
does not mean that each and every circumstance mentioned in the confes-
sion 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 l,ike in the case of an
approver's evidence and it is not necessary that the corroborative etidence
itself should be sufficient for conviction. It may not be necessary to refer F
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 G
the retracted confession and what amount of corroboration would be a
question of fact to be determined in the light of the circumstances of the
case. (See Balbir Singh v. State of Punjab, AIR (1957) SC 216, Swaran Singh
Rattan Singh's case (supra), Ediga Anamma v .. State of Andhra Pradesh,
.. AIR (1974) SC 799 and State of Uttar Pradesh v. Boota Singh and others,
AIR (1978) SC 1770). H
"i'
330 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Bearing these principles in mind, \Ve will first examine the confes- ~·

sions. P.W.106, Judicial Magistrate, Thiruvanmiyur deposed about the
proceedings of recording the confession of A-L His evidence shows that
he has taken all the precautions including sufficient time for reflection.
Both the courts after considering the evidence have held that the confes-
sion was voluntarily made by A-1. The confessional statement of A-1 is
B marked is Ex.P.100. Likewise, P.W.107, Judicial Magistrate, Ponneri
recorded the confessional statement of A-2 which is marked as Ex.P.106.
P.W.107 has deposed about all the details of the proceedings and both the
courts have accepted his evidence and held that the confession was volun-
tary.
c
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 extra-judicial 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
D
the 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 to Taj Mahal
Hotel. He has also mentioned about his association with other accused as
E well as with D-1 to D-3. Regarding D-l's 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 D-2 was caught by the police and was
kept in that lock-up and that he went to Pallavararn 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
F 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 h011se at PeriyarlNagar in the -.
auto. A-1 took D-1 on the first flo.or 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
G 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 t<Ythe
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 and caught hold of her neck ~ .
H and A-2 caught hold of the hands of D-1 from behind and A-1 continued·
GAU RI SHANKAR v. STATE OFT.N. [K.l. REDDY. J.J 331
-~

to crush the neck of D-1 and in the process she died. Then they decided A
to dispose of the body and Mohan 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 "nd Mohan came alongwith A-3. All of 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 godown. He jacket
also was thrown into the pit and they filled it up. He has also given all the B
details regarding the murders of D-2 and D-3. In his confession he has also
mentioned about P.W.l's 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 yard. He
has also mentioned about utilising the services of P.W. 68 and Thoppai
Mistry, both on the earlier occasion namely when D-2's murder was
c
committed and also later when D-3's murder took place and D-3's body
was buried in the pit dug by P.W. 68 and Thoppai Mistry. Now coming to
the death of D-4 to D-6, A-1 has stated that they were trying to interfere
with his business and creating unseemly situations by harassing and teasing
the girls belonging to his brothel. Then he has given all the details as to D
how they beat all the three deceased who attacked 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
in the trenches of the foundation of a building under construction. At the
instance of A-1 some recoveries were effected. Likewise at the instance E
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.106, A-2
has stated that he married the sister of A-1. Then he has given all the F
details about their business activities and about D-l's murder. Then so far
as the murders of D-2 to D-6 are concerned, he_has also stated that P.W.1
participated alongwith 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
G
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, 121and134. A-1 as well as A-2 in
their confessions have given the details about the misbehaviour of D-2 and
H
332 SUPREME COURT REPORTS jl994/ 3 S.C.R.

A his elopment 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-J. is concerned, it is in the confessional statement
of A-1 that since she was beautiful, he was keeping her exclusively 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
B of P.Ws. 21, 51, 71 and 121 besides the evidence of P.W.22, the neigh-
bourer, P.W.l 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 par-
C ticularly that of running brothel business. P.W.25 in her deposition referred
to M.0.20, a diary maintained by A-1 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
D 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 and 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 A-1 behind Puthukoil at Periyar Nagar and her husband
E was working in A-l's 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 alongwith A-3 and D-1 proceeding to the house
F 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
D-1, 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.
G while he was sleeping and he was asked to assist A-2 and A-3 in digging
the pit and he dug a pit of the size 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 P.W.61 that he was taken again at 8 AM. and
he alongwith one Sumathi plastered the portion where the burial was made.
Both the courts after considering the same found it to be reliable and
H
GAURISHANKAR v. STATEOFT.N.[KJ.REDDY,J.] 333

rendering sufficient corroboration on a very important aspect. P.W.25 also A
deposed about the diary and also the confession made by A-1 stating that
he alongwith 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
himself separated permanently. Learned Counsel submitted that these B
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 a 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 C
her evidence, we have no grounds to come to a different conclusion.

Then there is evidence of P.W.32 who had also last seen D-1 in the
company of the accused. Learned counsel submitted that P.W.32 stated
that it was 8 P.M. whereas P.W.48 stated that he saw them at 10 PM.
Therefore their evidence should not be accepted. We do not think there is D
much variation. At any rate if there is some difference as to the actual time
in their versions, that is not a ground to reject their evidence. The next
l
important circumstance relied on by the prosecution is the recovery of the
body of D-1, the jewels and other articles belonging to her in pursuance of
the confession made by A-1. P.W. 132 arrested A-1 and A-4 at 11 P.M .
., and A-1 gave the statement, admissible portion of which is Ex. P.187. After E
giving requisition by the Inspector and in the presence of P.W. 108, the
body of Lalita was exhumed and M.Os. 86 to 88 were recovered from the
pit The Doctor, P.W. 122, who conducted the post-mortem, found the
body to be of a woman. the police also recovered M.O. 100 series of
bangles pieces, M.O. 101 series of blouse pieces and M.O. 134 series of
hair pieces. P.W. 48 has also deposed about the digging of the place where F
ultimately the body of D-1 was said to have been buried and recovered.
Learned counsel, however, submitted that there is no positive proof that
the remnants of the body and recovered articles were that of Lalita, D-1
and the prosecution has not proved cmpus delecti. But that by itself is not
a ground to doubt the murder of D-1 and burial of her body in the manner G
confessed by the accused. However, the prosecution also relied on the
evidence of P.W. 118, Assistant Director of Forensic Science Department

-. who was asked to giv'e his opinion about sex, age and stature of the
deceased and about the identity with reference to the photograph and it is
in his evidence that they examined the skull and the photograph by video
H
334 SUPREME COURT REP ORTS [1994] 3 S.C.R.

A super-imposition technique and in all probablities the same are the skull
and mandible of the individual marked as Item (L) namely the photo M.O.
19 which is that of Lalita. The said report was signed by P.W. 120, the
Director. He has also deposed in his evidence about the super-imposition
device. Added to this P.W.122 also gave opinion that body was that of a
lady and she has also given the cause of death namely that it was homicidal.
B Therefore there is ample corroboration to the retracted confessions of A-1
and A-2 in respect of murder of D-1. One more circumstance relied upon
by the prosecution is the recovery of the jewels belong to D-1 in pursuance ~
of the confession made by A-1. P.W.98 as the panch witness in whose
presence P.W.132, Investigating Officer examined A-1 and the admissible
C portions are marked as Ex. 66 and Ex.P.67. A-1 took P.W.134, Inspector,
C.I.D. to a house in Tirumalai Nagar, Perungudi and there he directed his
wife Jagdeeswari to hand over the articles entrusted to her and M.Os.22,
23 and 73 to 76 were seized. Likewise M.Os. 35 to 37 and 77 to 83 were
recovered after search of the house of Jagdeeswari. A-1 led them to
P.W.25's house and he asked her to produce the articles entrusted to her.
D Accordingly P.W.25 produced M.Os.10, 13, 20 and 83. The attesting wit-
nesses were also examined. They also recovered M.0.99 and 133 at the
instance of Mohan. M.0.99, a gold chain is said to be belonging to D-1.
Then there is evidence of P.W. 35, mother of D-1 and she has identified
all the articles. P.W.42, brother of D-2 deposed that he has seen D-1
wearing M.Os. 73 to 76 and 99. In his retracted confession, A-1 has also
E mentioned about the recoveries. This is yet another strong circumstance
which amply corroborates the retrated confessions. The prosecution by
these retracted judicial confessions duly corroborated has proved the
participantion of A-1 and A-2 in the murder of D-1.

So far as the murders of D-2 and D-3 are concerned, the prosecution
F case is that A-1 to A-3 and absconding accused Mohan and P.W.1, 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
G same witnesses, whose evidence was relied upon for the purpose of cor-
roboration of the evidence of P.W.l, 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 busi-
H
GAURISHANKAR v. STATE OF TN. [K.J. REDDY,J.] 335

ness and the motive aspect. So far as the actual ocCurrence "is concerned, A
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 aod 32 lends sufficient corroboration. On examination of the
evidence of these witnesses we are also satisfied that the version given by B
A-1 aod A-2 is a true one. The recoveries of M.O. 13 at the instance of
A-1 and M.0.2 from the mother-in-law of A-2 lend further corroboration.
Then there is the evidence of P.Ws. 25, 32 aod 55 who speak to the
circumstance that D-2 was last seen alive in the company of A-1 to A-3,
Mohan and P.W.l and this evidence also has been accepted by both the C
courts below. Likewise regarding the murder ·of D-3, there is evidence of
P.Ws. 25, 31, 32, 33, 45, 56, 59, 60 to 63 aod 68 which lends ample
corroboration to the retracted confessions. That apart there are recoveries
also. P.W. 59, the mother of D-3, has identified the clothes worn by Ravi,
D-3 aod P.W.60, the wife of D-3, also supported the. evidence of P.W.59.
There is discovery of the body at the instance of A-1. Even assuming that D
the same is not admissible under Section 27, yet as a circumstance the same
can be relied upon, which is very important. Then we have the evidence of
P.W.25 about the diary M.O. 20 and its contents which also lends assurance
to the retracted confessions.

Regarding the murders of D-4 to D-6, apart from the retracted E
'I confessions, there is also the evidence of other eye-witnesses as well as
I those who speak to certain iroportant circumstances. By way of corrobora-
tion 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 corrobora- F
lion 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 consider-
ing the evidence of P.W.1 and we have found that the evidence of these G
witnesses is reliable and that both the courts below have rightly relied upon
the same.

Therefore the retracted confessions of A-1 and A-2 have been amply
corroborated on all material aspects by the evidence of these witnesses as H
336 SUPREME COURT REPORTS (1994] 3 S.C.R.

A discussed above and the prosecution has satisfactorily established that the
retracted confessions are true and voluntary and the same are suffiiently
corroborated on all material particulars establishing the guilt of A-1/and
A-2 independently apart from the evidence of P.W.l whose evidence also
has been found to be reliable. Thus cumulatively, as held by both the courts
below, the guilt of ;\-1 to A-6 under Sections 302/34, 201, 404 and 147
B l.P.C. has been satisfactorily proved in respect of the murders of D-1 to
D-6 and the trial court as well as the High Court have sentenced A-1 to
A-3 to death and A-4 to A-6 to imprisonment for life.

Learned counsel on behalf of A-1 to A-3 submitted that they were
C victim of circumstances. According to him, D-1 and D-2 betrayed A-1 and
D-3 tried to blackmail him and their murders by the accused, even if held
to be proved, can not bring the case of A-1 to A-3 in the category of rarest
of rare cases and that the attack and the fatal blows inflicted on D-4 to
D-6 were of the ordinary type of rioting cases and the tests adopted by the
courts below for awarding death sentence do not apply to the facts of this
D case. Learned counsel further submitted that by hanging A-1 to A-3, the
type of crime in which they were said to have indulged can not be wiped
out and if they have taken to that type of business in illicit arrack and
running brothel, the police, who are supposed to maintain law and order
and prevent the crime, have themselves been to a great extent responsible
for A-1 taking to that kind of businesses. Therefore A-1 to A-3 carmot be
E picturised as men of heinous character who would be mena,'.e to the society
if allowed to survive. We shall now consider these submissions. r

From the above discussion the prosecution has satisfactorily proved
that A-1 was the leader of the gang. He was originally driving an auto and
F was earning livelihood. Subsequently he indulged in illicit arrack business
and A-2 to A-6 and his younger brother Mohan were assisting him in the
said business. Subsequently he entrusted the said business to his brother
Mohan and started brothel business and employed a number of prostitutes.
He used to keep any good-looking prostitute exclusively for himself and
G thus spoiled many girls. It is also established that he used to be very cruel
and he did not hesitate to burn young girls with cigarette butts and atleast
one of them could not bear the cruel treatment and comljlitted suicide.
Lalita, D-1 who could not live with him, eloped with D-2 and that was the
motive for A-1 to commit the murders of D-1 and D-2 with the assistance
of the other accused particularly A-2, A-3, Mohan and P.W.l. He
H alongwith them killed D-1 to D-3 in a very brutal and ghastly marmer and
GAURISHANKAR v.STATEOFT.N.[KJ.REDDY.J.] 337

disposed of the bodies. The way dead bodies were disposed of would A
manifest his criminal state of mind which is diabolical and he, as a leader,
could go to any extent to cause the disappearance of the dead bodies with
a view the screen the offences of murders. He was of such a nature that
he was prepared to eliminate anybody who came in his way and caused any
hindrance to the running of the business. The murders of 0,4 to D-6 would
show that he would not tolerate anybody interfering with his brothel B
business and would not hesitate to go to the extent of completely wiping
them out. The public at large were agitated and in all the six murders, the
victims were helpless and undefended. The murders committed in an
organised manner were cold-blooded, gruesome in nature, diabolic in
conception and extremely cruel in execution. C
Learned counsel for the appellants, however, submitted that the
concept of rarest of rare cases in the matter of awarding death s.entence
as held in some of the decisions, requires something more and that the
courts must be satisfied that the accused does not deserve to live as a
member of the society and that society would not be safe if he is allowed D
to live.

At this juncture, we would like to refer to some of the decision of
this Conrt on these aspects. In Jagmohan Singh v. State of U.P., (1973] 1
sec 20, one of the propositions laid down is that the discretion in the E
matter of sentence is to be exercised by the Judiciary after balancing all
the aggravating and mitigating circumstances of the crinie. In Bachan Singh
v. State of Punjab etc. etc., (1980) 2 SCC 684, the Constitution Bench of this
Court after considering this proposition as well as other propositions laid
down therein held that the soundness or the application of the propositions
and the premises on which they rest were not affected in any way by the F
legislative changes since effected. While agreeing with the observations in
Jagmohan Singh's case that "standardisation' of the sentencing process is
well nigh impossible" this Court observed as under:

"In Jagmohan, this Court had held that this sentencing discretion
is to be exercised judicially on well recognised principles, after G
balancing all the aggravating and mitigating circumstances of the
crime. By "well recognised principles" the Court obviously meant
the principles crystallised by judicial decisions illustrating as to
what were regarded as aggravating or mitigating circumstances in
those cases. The legislative changes since Jagmohan - as we have H
338 SUPREME COURT REPORTS [1994] 3 S.C.R.

A discussed already - do n 0t have the effect of abrogating or nullify-
ing those principles. The only effect is that the application of those
principles is now to be guided by the paramount beacons of
iegislative policy discernible from Sections 354(3) and 235(2),
namely; (1) The extreme penalty can be inflicted only in gravest
cases of extreme culpability; (2) In making choice of the sentence,
B in addition to the circumstances of the offence; due regard must
be paid to the circumstances of the offender, also."

In Jagmohan Singh's case it was also reiterated that if a murder is diaboli-
cally conceived and cruelly executed it will justify the imposition of the
c death penalty on the murderer. In Ediga Anamma v. State of A.P., [1974]
4 SCC 443 Justice Krishna Iyer, speaking for the Bench reiterated that "The
weapons used and the manner of their use, the horrendous features of the
crime and hapless, helpless state of the victim, and the like, steel the heart
of the law for a sterner sentence." In Bachan Singh's case, after referring
to these passages, it was further observed as under :
D
"As we read Sections 354(3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for making
the choice of punishment or for ascertaining the existence or
absence of 11 special reasons 11 in that context, the court must pay
due regard both to the crime and the criminal. What is the relative
E weight to be given to the aggravating and mitigating factors;
depends on the facts and circumstances of the particular case.
More often than not, these two aspects are so intertwined that it
is difficult to give a separate treatment to each of them. This is so
because 'style is the man'. In many cases, the extremely cruel or
F beastly manner of the commission of .murder is itself a
demonstrated index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the circumstances of
the crime and the circumstances of the criminal in two separate
watertight compartments: In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty may vary in its
G
degree of culpability. And it is only when the culpability assumes
the proportion of extreme depravity that "special reasons" can
legitimately be said to exist."

In the above case, the Court also agreed that the following constitute the
H aggravating circumstances :
GAURISHANKAR v.STATEOFT.N.(K.J.REDDY.J.] 339

Aggravating circumstances : A court may, however, in the follow-
11
A
ing cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning and
involves extreme brutality; or

(b) if the murder involves exceptional depravity; or B

(c) if the murder is of a member of any of the armed forces of the
Union or of a member of any police force or of any public servant
and was committed-

(i) while such member or public servant was on duty; or
c
(ii) in consequence of anything done or attempted to be done
by such member or public servant in the lawful discharge of his
duty as such member or public servant whether at the time of
murder he was such member or public servant, as the case may D
be, or had ceased to be such member or public servant; or

-· ( d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of Criminal
Procednre, 1973, or who had rendered assistance to a magistrate
or a police officer demanding his aid or requiring his assistance E
under Section 37 and Section 129 of the said Code."

However, it is cautioned that :

"Stated broadly, there can be no objection to the acceptance of
these indicators but as we have indicated already, we would prefer F
not to fetter judicial discretion by attempting to make an exhaustive
enumeration one way or the other."

In the same case (Bachan Singh's case), the Constitution Bench after
examining various decisions of courts in U.S. observed that :
G
"But this much can be said that in order to qualify for inclusion in
the category of 'aggravating circumstances" which may form the
basis of 'special reasons' in Section 354(3), circumstances found
on the facts of a particular case, must evidence aggravation of an
abnormal or special degree." H
340 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Likewise, this Court also noted that the following constitute mitigating ...
circumstances :
..
,•
• Mitigating circumstances :- In the exercise of its discretion in the
11

above cases, the court shall take into account the following cir-
cumstances:-
B
(l)That the offence was committed under the influence of extreme
mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall
not be sentenced to death.
c
(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and
rehabilitated.
D
. The State .shall by evide.nce prove that the accused does not
·satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case, the accused
believed that he was morally justified in committing the offence.
E
(6) That the accused acted under the duress or domination of
another person.

(7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to ap-
F preciate the criminality of his conduct."

Finally, the Constitution Bench held thus :

"There are numerous other circumstances justifying the passing of
the lighter sentence; as·there are countervailing circumstances of
G aggravation. "We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an
imperfect and undulating society". Nonetheless, it cannot be over-
emphasised that the scope and concept of mitigating factors in the
area of death penalty must receive a liberal and expansive con-
H struction by the courts in accord with the sentencing policy writ
GAURI SHANKAR v. STATE OFT.N. [JU. REDDY, J.] 341

large in Section 354(3). Judges should never be bloodthirsty. Hang- A
ing of murderers has never been too good for them. Facts and
figures, albeit incomplete, furnished by the Union of India, show
that in the past, courts have inflicted the extreme penalty with
extreme frequency - a fact which attests to the caution and com-
passion which they have always brought to bear on the exercise of
their sentencing discretion in so grave a matter. It is, therefore, B
imperative to voice the concern that courts, aided by the broad
illustrative guide-lines indicated by us, will discharge the onerous
function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined in Section
354(3), viz. that for persons convicted of murder, life imprison- C
ments is the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates resistance
to taking a life through law's instrumentality. That ought not to be
done save in the rarest of rare cases when the alternative option in
unquestionably foreclosed."
D
/
(emphasis supplied)

In Machhi Singh and others v. State of Punjab, [1983] 3 SCC 470, a Bench
of three Judges this Court having noted that a synthesis emerged in
Bachan's Singh case wherein the 'rarest of rare cases' formula for imposing E
death sentence in a murder case has been evolved by this Court, considered
the guidelines indicated in Bachan Singh's case and observed that the
guidelines indicated therein will have to be culled out and applied to the
facts of each individual case where the question of imposing of death
sentence arises. It was further stated thus :
F
"In order to apply these guidelines inter alia the following questions
may be asked and answered :
•
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and 'calls for a death
sentence? G

(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weight age to the mitigating circumstances which speak
in favour of the offender? H
342 SUPREME COURT REPORTS [1994] 3 S.C.R.

A If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
T
-
'

the answers to the questions posed hereinabove, the circumstances
of the .case ar6 such that death sentence is Warranted, the court
would proceed to do.so."

B In Kehar Singh and others v. State (Delhi Administration), [1988]3 SCC 609
this Court held as under :

''This takes me to the question of sentence. Section 354(3) of the
Code, 1973 marks a significant shift in the legislative policy of
c awarding death sentence. Now the normal sentence for murder is
imprisonment for life and not. sentence of death. The court is
required to give special reasons for awarding death sentence.
Special reasons mean specific facts and circumstances obtained in
the case justifying the extreme penalty. This Court in Bachan Singh
v. State ofPunjab, (1980] 2 SCC 684 has indicated certain gnidelines
D to be applied to the facts of each individual case where the question
of imposing death sentence arises. It was observed that in cases
where there is no proof of extreme culpability the extreme penalty
need not be given. It may be given only in rarest of rare cases,
where there is no extenuating circumstance. In Machhi Singh v.
State of Punjab, [1983] 3 SCR 413, this Court again indicated some
E
principles as to what constitute "the rarest of rare cases" which
warrant the imposition of death sentence. The High Court has
carefully examined these principles and given reasons why in this
case, the death sentence alone should be awarded."

F In Mangal Singh v. State of U.P., AIR (1975) SC 76, the appellant was
convicted and sentenced to death for the murder of one defenceless woman
who was all alone in the house by inflicting as many as seven injuries on
the face and neck with a gandasa. It was noted that the number of injuries
showed the brutal nature of assault and in the absence of mitigating
circumstances death sentence was awarded and the same was upheld by
G
this Court.

At this stage it is also necessary to note some further observations in
Bachan Singh's case where the Constitution Bench observed thus :
~ ~

H The present legislative policy discernible from Section 235(2') read
GAURI SHANKAR v. STATE OFT.N. [JU. REDDY, J.] 343

with Section 354(3) is that in fixing the degree of punishment or A
making the choice of sentence for various offences, including one
under Section 302, Penal Code, the court should not confine its
consideration 11principally'1 or merely to the circumstances con-
nected with the particular crime, but also give due consideration
to the circumstances of the criminal."
B
The Constitution Bench re-affirmed the view taken by this Court in Jag-
mohan Singh's case i.e. "If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous character and con-
stitutes, on account of its design and the manner of its execution, a source
of grave danger to the "society at large, the court may impose the death C
sentence11 •

In a recent decision of this Court in Allauddin Mian and others v.
State of Bihar, AIR (1989) SC 1456, this view has been reiterated thus :

"However, in order that the sentences may be properly graded to D
fit the degree of gravity of each case, it is necessary that the
maximum sentence prescribed by law should, as observed in
Bachan Singh's case (AIR 1980 SC 898 (supra)), be reserved for
the rarest of rare cases which are of an exceptional nature. Sen-
tences of severity are imposed to reflect the serionsness of the E
crime, to promote respect for the law, to provide just punishment
for the offence, to afford adequate deterrent to criminal conduct
and to protect the community from further similar conduct. It
serves a three-fold purpose (i) punitive (ii)deterrent and (iii)
protective. That is why this Court in Bachan Singh's case observed
that when the question of choice of sentence is under consideration F
the Court must not only look to the crime and the victim but also
the circumstanc~s of the criminal and the impact of the crime on
the community. Unless the nature of the crime and the circumstan-
ces of the offender reveal that the criminal is a menace to the
society and the sentence of life imprisonment would be altogether G
inadequate, the Court should ordinarily impose the lesser punish-
ment and not the extreme punishment of death which should be
reserved for exceptional cases only. In the subsequent decision of
Machhi Singh v. State of Punjab, (1983] 3 SCC 470=AIR 1983·SC
957 this Court, after culling out the guidelines laid down in Bachan
Singh 's case, observed that only in those exceptional cases in which H
344 SUPREME COURT REPORTS [1994] 3 S.C.R.

A the crime is so brutal, diabolical and revolting as to shock the
collective conscience of the community, would it be permissible to
award the death sentence."

It can therefore be seen that the choice as to which one of the two
punishments provided, for murder is the proper one in a given case will
B depend upon the particular circumstances of that case and the Court has
to exercise its discretion judicially and on well-recongnised principles after
balancing all the mitigating and aggravating circumstances of the crime.
The Court also should see whether there is something uncommon about
crime which renders sentence of imprisonment of life inadequate and calls
C for death sentence. The nature of the crime and the circumstances of the
offender should be so revealing that the criminal is a menace to the society
and the sentence of imprisonment of life would be inadequate. The sen-
tence of death should be reserved for the rarest of rare cases after a due
consideration of both mitigating and aggravating circumstances. In Ediga
Anamma's cases, Justice Krishna Iyer observed thus :
D
"We cannot obviously feed into a judicial computer all such situa-
tions since they are astrological imponderables in an imperfect and
undulating society. A legal policy on life or death cannot be left
for ad hoc mood or individual predilection and so we have sought
to objectify to the extent possible, abandoning retributive ruthless-
E ness, amending the deterrent creed and accenting the trend against
the extreme and irrevocable penalty of putting out life."

Therefore what circumstances bring a particular case under the category
of rarest of rare cases vary from case to case depending upon the nature
of the crime weapons used and the manner in which it is perpetrated etc.
F
Learned counsel for the appellants, in the instant case, however
submitted that the offences were committed under extreme mental and
emotional distresses and therefore there are mitigating circumstances for
awarding lesser sentence of imprisonment for life. He relied on the
G decisions of this Court in Dudh Nath Pandey v. State of Uttar Pradesh,
[1981] 2 SCC 166, Suresh v. State of U.P., [1981] 2 SCC 569 and Ummilal
v. State of Madhya Pradesh, [1981] 3 SCC 574. We have gone through these
judgments. In Dudh Nath Pandey's case, the accnsed was a motor driver
and he developed fancy for one of the sisters of the deceased and he
murdered him becanse the deceased was trying to wean away his sister
H from the hands of the accused. This Court while considering whether death
GAURI SHANKAR "-STATE OFT.N. [K.J. REDDY,J.j 345

sentence should be awarded, noted that on the previous evening the A
deceased retorted the accused that he was a worthless man and he can not
dare to marry his sister and that he would break the hands and feet of the
accused and the said dispute assumed the proportion of a feud over social
status. This Court noted that· the mental turmoil and the sense of being
wronged through which the accused was passing, can not be overlooked
while awarding the sentence. B

In Suresh 's case, the primary evidence was that of a five years old
son of the deceased, recorded 20 days after the incident. This Court having
noted the same as well as the fact that a sudden impulse of theft could
have made the accused momentarily insensible, held that the death sen-
tence was not warranted. In Ummilal's case there was a quarrel over the c
grazing of the cattle and this Court noted that the appellant seems to have
been incensed by the treatment accorded to him by his brother in commit-
ting the murder and in those circumstances, the death sentence was not
warranted. Thus the Court in these, cases found some mitigating cir-
cumstances.
D
Learned counsel also relied on the judgments of this Court in Dalbir
Singh and others v. State of Uttar Pradesh, [1979] 3 SCC 745 and Rajendra
Prasad v. State of Uttar Pradesh, [1979) 3 SCC 646. It may not be necessary
to refer to these cases in view of the decision of the Constitution Bench in
Bachan Singh's case on the question of courts' discretion in awarding E
proper sentence in a given case.

However, we shall refer to some of the observations made in Dudh
Nath pandey's case and Suresh's case on the question of quality of evidence
for awarding death sentence, while considering the individual case of A-3.
F
The learned counsel also submitted that in awarding the death
sentence case of each of the accused has to be considered by the Court
and examine whether there are special reasons for awarding the death
sentence and for that purpose the Court has to examine the part played by
each one of them and the quality of the incriminating evidence in that
respect. The learned counsel strongly contended that as to the actual G
participation of the individual accused in the murder of D-1, there is no
other evidence except the retracted confessions of A-1 and A-2 and that
regarding the murders of D-2 and D-3 and the individual participation,
< again there is only tainted evidence of P.W.1 and the retracted confessions
of A-1 and A-2 and that on the basis of such evidence they cannot be H
346 SUPREME COURT REPORTS [1994) 3 S.C.R.

A sentenced to death. We have already held that P.W.l's evidence which is T

corroborated by other independent evidence on all important aspects
establishes that A- 1 lo A-3 participated in the murders of D-2 and D-3
and that all, namely A-1 to A-6, participated in the murders of D-4. to D-6.
So far as the murder of D-1 is concerned there is retracted confession of
A-1 which has been found to be true and voluntary and the same has been
B corroborated on material aspects. Likewise, there is retracted confession
of A-2 also which has been corroborated on material particulars. Both
these items of evidence fully establish the common intention to commit
those mmders. Now coming to the individual part played it may assume
some importance in some cases, but in an organised crime that kind of
C enquiry may not be relevant for the purpose of finding out the special
reasons. However, under the facts and circumstances of this case, the part
played by the individual accused i.e. A-1 to A-3 may be relevant in weighing
mitigating and aggravating circumstances in awarding death sentence, par-
ticularly in view of the fact that A-4 to A-6 who were also the associates
D .of A-1 and who also participated in committing the murders of D-4 to D-6
are awarded only imprisonment for life and also in view of the fact that the
case mainly rests on the evidence of approver.

Bearing the principles particularly those in Bachan Singh's case, in
mind, we shall now proceed to consider whether in the instant case the
E imposition of death sentence against A-1 to A-3 is warranted as held by
both the courts below.

It has been established by the evidence discussed above that A-1 was
the leader of the gang indulged in illicit arrack and brothel businesses
F whi.ch are unlawful and most harmful to th.e 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. Latila, D-1 who could not adjust herself to live

G
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-l's house. Thereafter the
H remnants of the body were taken and thrown in the Boat Yard. Then D•3
GAURISHANKAR v. STATEOFT.N. [K.J.REDDY,J.] 347
---'\
who was the supporter of D-2 was also brutally murdered since it was A
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 D-4 to D-6
threatened to his running of brothel business, A- 1 obviously to prove his
supremacy in the illicit business wanted to eliminate them and they were B
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, C
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 WMranting D
the imposition of death sentence.

A-2 throughout had been actively associated with A-1. He par-
ticipated 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 E
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 of A-2 also. Apart from their own
retracted confessions, the evidence of P.W.1 as corroborated by the other
evidence as discussed above, also independently establishes the active
participation of A-1 and A-2 in the murder of D-2 to D-6. F

So far as A-3 is concerned, he is not related to A-1. Learned counsel
for the appellants submitted that his case is in no way different from that
of A-4 to A-6, who have been awarded imprisonment for life. Learned
counsel for the State, on the other hand, submitted that A-3 has also G
participated in the murders of D-1 to D-3 alongwith A-1 and A-2 and his
case also stands on the same footing in awarding death sentence. But one
other aspect which has been highlighted by the learned counsel for the
,.
appellants is that the quality of the evidence relied upon for holding A-3
guilty of murder charge also has to be taken into account in awarding death
sentence and his further submission is that so far as the individual par- H
348 SUPREME COURT REPORTS I1994] 3 S.C.R.
..., .~ '-

A· ticipation of A-3 in the murders of D-2 and D-3 is concerned, there is only
the evidence of P.W.1 and in respect of murders of all the three i.e. D-1
to D-3, the retracted confessions of A-1 and A-2 are there but one can not
be used for corroborating other mutually and therefore the quality of
evidence is not of such high degree in respect of the nature of participation
by him to which the Court can give that high value to impose death
B sentence. We see force in this submission. We may at this juncture refer
to a discrepancy in the evidence of P.W.1 who deposed about the murders
of D-2 and D-3 only. In the chief-examination, P.W. 1 deposed that A-3
tightened the neck of D-3 with a towel and held his legs. But in the
cross-examination, when confronted, he stated that A-3 did not hold the
legs of D-3. We are only pointing out this discrepancy in the evidence of
c P.W.1 who is an accomplice in view of the fact that his evidence alone
qualitatively has to be taken into consideration in respect of the nature of
individual participation of A-3 for awarding death sentence. There is no
other evidence as to the actual nature of participation of A-3 in the
murders of D-2 and D-3 apart from that of P.W.1, though there is enough
D of corroborating evidence in general for the purpose of inferring common
intention in respect of the offences punishable under Section 302/34 I.P.C.
In the case of A-1 and A-2 there are their own individual retracted
confessions which can be acted upon regarding their individual roles. They
no doubt involve A-3 also but attribute actual participation only in the
murders of D-1 to D-3 and in general. alongwith others in the murders of
E A-4 to A-6. However, we are of the view that those retracted confessions
of co-accused can not be taken into consideration for assessing the nature
of participation of A-3 for the the purpose of deciding whether his case is
one of the rarest of rare cases.

This Court in Dudh Nath Pandey's case while reducing the death
F sentence to imprisonment for life observed thus :

"If witnesses on whose evidence the life of an accused hangs in the
balance, do not choose to reveal the whole truth, the Court, while
dealing with the question of sentence, has to step in interstitially
and take into account all reasonable possibilities, having regard to
G the normal and natural course of human affairs.

Likewise in Suresh 's case, taking into account the quality of evidence, this
Court observed thus :

H 11
The extreme sentence cannot seek ~ts main support from evidence
GAURI SHANKAR v. STATE OFT.N. [K.J. REDDY, J.] 349

of this kind which, even if true, is not safe enough to act' upon for A
putting out a life."

From this point of view we think it is not safe to confirm the death sentence
of A-3.

B
Learned counsel for the appellants pointed out that there is evidence
to show that A-1 liberally donated. to the social organisations and con-
tended that he is not a hardened criminal and not a menace to the society
and at any rate by wiping out him the crime cannot be wiped out. This
submission only manifests a state of despondency which can not gain the
place of relevancy in the matter of judicial adjudication of crimes of this c
nature involving "organised criminal activity." In large urban areas this kind
of organised crime has taken deep roots. It has become the way of 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 D
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 11 goods 11 • The buyers are E
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 enterprise not F
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 conc;ept of "mitigat-
ing circumstances." Learned counsel submitted that if the retracted confes-
sion of A-1 is taken as a whole, it would reveal that the cruel treatment G
meted out to him by the police forced him to carry on the illicit arrack
. ..,- business and brothel business and therefore ·fie 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 H
350 SUPREME COURT REPORTS (1994] 3 S.C.R.
y

A can not express any opinion on the conduct of the police in this case on
the basis of the allegations made by him though they d9 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 themselves from police interference. It is usually and implicit-
B ly assumed that such COJruption is always involved in these kind of crimes
and how such corruption should be eradicated is a different and ever-
lasting question. That cannot, however, be a mitigating circumstance 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 mitigat-
c ing effect nor his plea of repentance which inherently is evasive to avoid
sentence can be same as a biblical repentance.

Yet another submission of the learned counsel is that there is no
strict compliance of Section 235(2) Cr.P.C. inasmuch as the accused were
not questioned on sentence. According to the learned counsel, the trial
D court has not made genuine efforts to elicit from the accused all informa-
tion which would have a bearing on the question of sentence and on the
other hand, the questioning was in the form of a mere formality. A perusal
of the judgment of the trial court shows that the learned trial Judge after
recording the convictions, specifically questioned each of the accused
E under Section 235(2) Cr.P.C. regarding the sentences and recorded their
answers. Thereafter the .learned trial Judge proceeded to consider the
answers given by them. The learned trial Judge, as a matter of fact,
thereafter referred to all the decisions on the question of awarding death
sentence and also part played by each of the accused and considered
mitigating and aggravating circumstances and then decided to award death
F sentence to A-1 to A-3 and life imprisonment to others. Therefore we see
no force in the submission that there is no compliance of Section 235(2)
Cr.P.C.

It is, however, pleaded that by imposing death sentence, it may be
G possible to get rid of the criminals but not the crime of this nature which
has become an integral part of the urban life where the modernization
particularly the type of films exhibited and the books published, have their
own impact. Learned counsel drew support for this submission from the .:
records in the case which show that the crimes committed by the appellants '
are somewhat similar as shown and exhibited in some films locally. How-
H ever, to counter the same, it is suggested by the other side that modern-
., GAURI SHANKAR v. STATE OFT.N. [IO. REDDY, J.] 351

ization is a form of development and the violence or sex exhibited in films A
and depicted in the books in our country are very much mild as compared
to the same in the developed countries and therefore modernised urban
way of life can not be treated as the sole reason for prevalence of such
crimes. There cannot be any dispute that modernization is an important
factor and needed very much in a developing country; but this makes us
ponder over whether the voyage we have undertaken on the basis of the B
principles enshrined in the Constitution, is carried on right lines, for it is
not the distance we have travelled that matters, but it is the direction in
which we have travelled that really matters. Are we merely moving or truly
advancing? Are we merely changing or effectively progressing and whether
we are aware of the significant difference between moving and advancing
and between changing and progressing? These are all aspects of great c
importance and wider amplitude involving socio-political issues to be con-
sidered at a different level. We do not propose to deliberate on the same
in this case and say whether we have truly advanced and effectively
progressed by embracing the so-called modernization and whether the
so-called progressive relaxations are true in spirit or self deceptive by and
D
large? It is for those who are really concerned in their wisdom to take a
deep look into these issues and do the needful.

Shri S. Murlidhar, learned counsel for the appellants, who has made
an intensive study of the records in this case, in the end pleaded or rather
lamented that A-1 having seen such films depicting sex, violence and illicit
business etc. got misguided and ended up as a criminal and therefore the
E
makers of such films are also vicariously responsible. The lamentation
appears to be justified. We are at a loss to know whether it is compulsory
that a heroine should invariably appear on the screen with accentuated
angularities, deepened depressions and exaggerated protubrances of the
body? Is it an irrevocable convention that the violence unleashed by the F
wicked or the evil-minded villain or that the hero's valour in punishing
those wicked and the villain must only be shown in such cruel, gruesome
and diabolical manner. When promotion of art and culture is the primary
underlying object, how can obscenity, cruelty and many such wicked things
can be depicted and shown in such blown-up and magnified manner leaving
an impression that the film is meant only to depict such things. It is here G
that the Censor Board should step in firmly and insist that the film being
released has a message meant to improve the values of life and should see
_, ...
that the film contains only such scenes which do not affect the values of
life. By exhibiting scenes of violence, sex-rape, bootlegging and drug traf-
ticking etc. in such a manner of manners which have the propensities of
H
352 SUPREME COURT REPORTS [1994] 3 S.C.R.

A disturbing or corrupting the minds of some viewers like children and
particularly of those who are weak-minded, wayward, indisciplined,
frustrated and likewise, who are very likely to become wicked and evil-
minded and ultimately end up as criminals indulging in organised crime,
the avowed object gets frustrated. The films should be of educative value
and then only they can-play an important role in subserving the interests
B of the society. No doubt, entertainment is one of the important underlying
objects but it is mainly meant to make the viewers mentally rela~ and enjoy
and not to render them heavy-hearted, sensually aroused and mentally
disturbed which may lead them to indulge in frivolities, perversions and
dangerous addictions, which ultimately are likely to pave the way to end
up themselves as criminals.
c
It is interesting to note certain aspects in this regard as highlighted
by the Khosla Committee in the year 1968. The Committee consisted of
several eminent persons from the Parliament as well as from the film field
and the Committee made extensive survey and made an intensive study of
D the film subjects that are likely to be ob.iectionable. The Committee has
listed out as many as 42 such objectionable subjects which in general are
connected with sex, immorality, prostitution, drug habit, drunken scenes
and gruesome murders etc. While dealing with the audience reaction the
Committee observed that children retain 70% of what the adults retain
upon seeing a film and some of the impressions become mature and clearer
E with the passage of time and a scene in a film shapes the attitudes and
social values of children and any kind of medium which employs visual or
aural communication makes a deep and lasting impact upon an impres-
sionable mind. The Committee also pointed out that the mental make up
of the criminals and the part played by them in films make an impression
in the mind of the audience particularly the young. The Committee on this
F aspect summed up by saying that films do make a deep impression upon
young minds and also on the minds of the unsophisticated, un-educated
and simple adults and the continual viewing of such films in which details
of crimes, violence and-Cruelty are vividly shown, makes them insensitive
to cruelty and violence and they become prone to inflict violence on others.

G
In the last decade mass media has grown Worldwide to be more
larger, more influential and more powerful. The TV media is the most
powerful. Quite a few films are shown on TV. The constraints that are ·~ .
applicable lo film media equally apply to TV media also and the concerned
authorities must exercise proper discretion in selecting the films to be
H telecast. Therefore among the available sources movie and TV have key
GAURI SHANKAR "·STATE OFT.N. [KJ. REDDY, J.J 353

roles in modifying human behaviour and one can easily observe the effect A
of movie and TV that day-to-day affects all children, adolescents and
youths in dress, action and expression etc. and e·;en the niodus operandi
adopted by some criminals to commit the crime has been found to be akin
to be that of the hero or villain in a particular movie. This subject because
of its importance has been attracting the attention of the eminent people
including Psychologists, Doctors and Professors who have written several B
books after intensive study and we do not want to have a detailed discus-
sion on this subject in this case. However, we sincerely hope that all those
concerned, in whose wisdom we have faith, would act timely and promptly
to set right this scenario. We may add that we should not be understood
to mean that all films are of that nature but in the context some of that
nature are enough to cause the damage and the Censor Board is. dutifully
c
expected to stop such films from being released in an earnest manner.

Now, confining ourselves to the issues relevant in this context for the
purpose of this case, we cannot hold that the likelihood of the films having
remotely influenced the mind of A-1, can be a mitigating circumstance D
particularly when he had already became a hardened criminal and com-
mitted the murders in such cruel, gruesome and diabolical manner without
any compunction or any regard for the value of human life. However we
are unable to agree that since it may not be possible to eradicate the crime
itself, the criminals cannot be awarded death sentence though warranted
by law.
E

In the result the convictions of A-1 Shankar @ Gauri Shankar and
A-2 Eldin @ Albert and the sentence of death awarded against them for
the offence of murders are confirmed. The other convictions and sentences
awarded against A-1 and A-2 are also confirmed. All the convictions and F
sentences awarded against A-3 Shivaji are confirmed but sentence of death
awarded for the offence of murders i.s reduced to one of imprisonment for
life. All the convictions of A-4 Jayavelu, A-5 Raman @ Raja Raman and
A-6, Ravi and the sentences awarded against them are confirmed. Accord-
ingly the appeal is dismissed so far as A-1 Shankar@ Gauri Shankar, A-2 G
Eldin@ Albert, A-4 Jayavelu, A-5 Raman@ Raja Raman and A-6 Ravi
are concerned and is partly allowed so far as A-3 Shivaji is concerned to
the extent of modification of sentence from death sentence to imprison-
ment for life as indicated above.

B.K.M. Appeal dismissed.