D. H. SHUKLA, J. ( 1 ) THREE unfortunate homicidal deaths were committed between 4-00 P. M. and 4-30 P. M. on 29/08/1983 at Ahmedabad and the appellants of the aforesaid appeals are involved as the per- petrators of them. They were charged in Sessions Case No. 141 of 1983 and were convicted by the learned Additional City Sessions Judge (Court No. 2) Ahmedabad principally for the offence punishable under sec. 302 read with sec. 120b of the Indian Penal Code and accused No. 1 and accused No. 6 were also charged for the offence punishable under sec. 302 of the Indian Penal Code substantively and the accused were further convicted under other sections which we shall deal with in details later in our judgment. We shall refer to the appellants herein as the accused as per their serial number given in the aforesaid Sessions Case. ( 2 ) WE shall refer to the prosecution case in outline as a backdrop in order to put the facts in their proper perspective and also in order to appreciate their inter connection the inter-connection of the accused the conception and the progress of the conspiracy the involvement of the accused therein and lastly to assess the legal effect of all these. The three tragic murders occurred in quick succession within a short span of 30 minutes in broad day-light two on public roads and one on a public street. The victims were in chronological order Santoksing Harising and Biharilal. Harising was the father of Santoksing. ( 3 ) THE homicidal death of Santoksing occurred near the AMTS Bus Terminus situated near Dakshini Society. Dakshini Society is near the southern end of Maninagar a suburb of Ahmedabad. The deceased Santoksing was a driver of the municipal bus on Rute No. 42. Kanaiyalal Ambalal Panchal was the conductor in the same bus. Santoksing reached Dakshini Society Bus Terminus at about 4-00 P. M. On the day of the incident i. e. 29/08/1983 He and Kanaiyalal went for a cup of coffee at a nearby tea-stall. After they took coffee Kanaiyalal returned to the bus for issuing tickets to the passengers. The driver Santoksing continued to sit on a bench at the tea-stall. The prosecution case is that at this point of time the accused Nos. 1 to 9 with the absconding accused went there in two auto rickshaws. They rushed towards Santoksing. After they took coffee Kanaiyalal returned to the bus for issuing tickets to the passengers. The driver Santoksing continued to sit on a bench at the tea-stall. The prosecution case is that at this point of time the accused Nos. 1 to 9 with the absconding accused went there in two auto rickshaws. They rushed towards Santoksing. The prosecution case is that the accused No. 1 was armed with a revolver. He fired two bullets at Santoksing which hit him. Santoksing fell down from the bench. It is the further prosecution case that the accused No. 6 also fired from a Tamancha which he was wielding. The accused No. 3 was armed with a Rampuri knife at the time of the occurrence of the incident. Santoksing died on the spot. According to the prosecution this inci- dent was witnessed by the bus conductor Kanaiyalal Ambalal Panchal (P. W. 2 Exh. 31) Mangalbhai Gopalbhai Gadhvi (P. W. 10 Exh. 68) Ghanshamdas Govindram Ahuja (owner of a pan-house situated near the place of occurrence) (P. W. 11 Exh. 71) and Gajanand Pundiba Gardanwal (P. W. 13 Exh. 75 ). After the alleged attack on Santoksing the accused decamped in two auto-rickshaws towards Maninagar Railway Station. ( 4 ) THE prosecution-story further runs to tell us that all the nine accused then proceeded in the two auto-rickshaws having Jasbir Hari- sing brother of Santoksing as their next target. The accused proceeded towards the house of Jasbir situated near Physical Training Institute Khokhra-Mehmedabad situated on the eastern side of the Maninagar Railway Station. On their way to Jasbirs house the accused found Jasbir lying on a cot on a foot-path near the said Physical Training Institute. The rickshaws were halted at a distance of about 10 feet from the place where Jasbir was lying. The accused No. 1 was armed with a revolver and the other accused were equipped with different weapons. It is alleged that the accused No. 1 fired a revolver-shot towards Jasbir but Jasbir started running in the direction of his house situated nearby and the first bullet which was fired at him missed him. All the accused chased him. Jasbir straightaway ran to his house. He found his father Harising in the Osri of the house Harising on seeing his son being chased picked up an iron pipe and stood at the gate of the compound. He resisted the accused. All the accused chased him. Jasbir straightaway ran to his house. He found his father Harising in the Osri of the house Harising on seeing his son being chased picked up an iron pipe and stood at the gate of the compound. He resisted the accused. At that time the prosecution-story runs the accused No. 1 got enraged and fired two revolver shots at him. The accused Nos. 5 and 6 also fired from their respective Tamanchas. Harising fell down. The crowd consisting of the neighbours and others got collected on hearing the gun-shots. After Harising fell down the accused ran away boarded the rickshaws and proceeded for the next target. The eye-witness to the second incident are Jasbir son of Harising (P. W. 3. Exh. 35) Amarsing Gurudayalsing (P. W. 4 Exh. 38) Jashwantsinh Niranjansing (P. W 14 Exh. 76 ). Girish Himatlal Pandya (P. W. 15 Exh. 77) Mahesh Jasubhai Patel (P. W. 9 Exh. 67) and Kuldipsing Harising Ajokar (P. W. 55 Exh. 249 ). In the meantime we may note that Harising was removed to the L. G. Hospital Maninagar where at about 5-15 P. M. he succumbed to his injuries. ( 5 ) ALL the accused then proceeded in the rickshaws towards Rohit Circle situated near Rohit Mills Ltd. Khokhra-Mehmedabad. The accused saw Biharilal Jagdishprasad Sharma coming on his cycle from the opposite direction. Some one out of the accused fired from a pistol with the result that Biharilal fell down from his cycle. All the accused surrounded him and heavily belaboured him. According to the prosecution the accused No. 1 caused stab-injuries with a knife to Biharilal. This incident was witnessed by Ramesh son of Biharilal. He in fact endeavoured to intervene for the rescue of his father Biharilal but the accused Nos. 2 and 4 equipped with razor and knife respectively pursued Ramesh who ran away to his house situated nearby the place of the incident and returned after some time there when all the accused had run away. Ramesh removed his father Biharilal to the L. G. Hospital for immediate treatment but sadly Biharilal also succumbed to his injuries at about 6-20 p. m. on the same day during treatment. The eye-witnesses to this incident of fatal attack on Biharilal apart from Ramesh Biharilal (P. W. 1 Exh. 32) are Dineshchandra Kanaiyalal Bhatt (P. W. 5 Exh. Ramesh removed his father Biharilal to the L. G. Hospital for immediate treatment but sadly Biharilal also succumbed to his injuries at about 6-20 p. m. on the same day during treatment. The eye-witnesses to this incident of fatal attack on Biharilal apart from Ramesh Biharilal (P. W. 1 Exh. 32) are Dineshchandra Kanaiyalal Bhatt (P. W. 5 Exh. 39) Vinod Nikam (P. W. 6 Exh. 40) and Nandlal Khemchand (P. W. 17 Exh. 80) the injured eye-witness. ( 6 ) THUS within a short span of about half an hour or so accor- ding to the prosecution three murders occurred in succession at three different places within the same area at the hands of the accused Nos. 1 to 9 and the absconding accused. According to the prosecution all the three murders were a result of a savage planning which the accused adhered to the last. According to the prosecution the accused No. 1 was the ring leader and all the remaining accused (namely the accused Nos. 2 to 9 and 10 and 11) were his stooges in the conspiracy. The prosecution alleges that there was a conspiracy amongst the accused to commit murders. Accused Nos. 1 and 10 to 12 had acted in furtherance of the conspiracy to create evidence of alibi concerning the accused No. 1. ( 7 ) THE prosecution has further alleged motive on the part of the accused. According to the prosecution Jasbir and the accused No. 1 were at one time close friends and collaborators. In 1980 both of them the present accused No. 11 and others were arraigned for alleged commission of murder of one Sukhdevsing Bhaiya at Maninagar Railway Station but were acquitted by the Sessions Court. Since then the accused No. 1 and Jasbir had fallen out and efforts were made on both the sides to involve each other in criminal cases. It was alleged that in December 1981 the accused No. 1 dashed his car against the motor-cycle of Jasbir but that did not result in a criminal proceeding. It was alleged that about four months prior to 29/08/1983 the accused No. 1 and his men burnt an autorickshaw of one Harshad son of Ansuyaben Bhanushanker and also kidnapped a person namely Kundan. Ansuyaben approached Jasbir for help and he helped her in filing a complaint against the accused No. 1 and others for various offences. It was alleged that about four months prior to 29/08/1983 the accused No. 1 and his men burnt an autorickshaw of one Harshad son of Ansuyaben Bhanushanker and also kidnapped a person namely Kundan. Ansuyaben approached Jasbir for help and he helped her in filing a complaint against the accused No. 1 and others for various offences. Consequently the accused No. 1 got enraged against Jasbir. The prosecution has further alleged that before about one week prior to the incident in question at the instance of the accused No. 1 one Munnasing and the accused No. 5 had gone to the residence of Jasbir and had threatened to kill him and his mother. Jasbir had therefore lodged a complaint before the police. During investigation the accused No. 1 was arrested for being found in possession of a knife in contravention of the provisions of the Bombay Police Act. The Police had therefore lodged a case against him for the said offence. It was further alleged that at the instance of the accused No. 1 one Brahmin had filed a case against Jasbir in the Court of the Metropolitan Magistrate for the alleged offence of threatening to kill and the hearing of that case was fixed on 22/08/1983. As Jasbir apprehended that the accused No. 1 and his associates were going to attack him he procured police protection from the Karanj Police Station. One day prior to the present incident one Harshad son of Ansuyaben had lodged a complaint against two persons wherein also the accused No. 1 was involved and the same was done at the instance of Jasbir. The prosecution also alleged that in the past also deceased Santoksing had injured the accused No. 1 with a knife and that in that connection deceased Santoksing his father Harising and brother Kuldipsing were prosecuted. It was also alleged that the accused No. 1 and his associates frequently went to the house of Jasbir for beating him. So far as the motive in respect of Biharilal is concerned it was alleged that the accused No. 1 had filed a complaint against Jasbir about two months prior to the incident and in that case the deceased Biharilal made arrangement for bail for Jasbirsing and so the accused No. 1 suspected that deceased Biharilal was supporting Jasbir. So far as the motive in respect of Biharilal is concerned it was alleged that the accused No. 1 had filed a complaint against Jasbir about two months prior to the incident and in that case the deceased Biharilal made arrangement for bail for Jasbirsing and so the accused No. 1 suspected that deceased Biharilal was supporting Jasbir. ( 8 ) IN order to pursue the prosecution story we shall take a little retrospect and pick up the thread of the story which ended earlier with the attack on Santoksing at the Dakshini Society. The conductor of the bus Kanaiyalal Ambalal Panchal on seeing the incident went from Dakshini Society to the Maninagar Bus Stand and informed the Controller about the incident. The Controller advised him to lodge the information at the Police Station. Accordingly Kanaiyalal went to the Maninagar Police Station and informed Head Constable Dahyabhai Hemabhai (P. W. 58 Exh. 259 ). Dahyabhai was P. S. O. at the Mani- nagar Police Station. Kanaiyalal informed him at about 4-20 p. m. about the incident. Dahyabhai registered the information given to him by Kanaiyalal in the Station Diary. The same entry in the Station Diary is at Exh. 260. Dahyabhai conveyed the information through one P. S. I. Dave to Police Inspector Khant who was at his residence which is situated on the first floor of the Maninagar Police Station. Mr. Khant accompanied by Kanaiyalal and P. S. I. Dave proceeded to Dakshini Society. He carried out the preliminaries of recording the statement of Kanaiyalal made the inquest of the dead-body of Santoksing prepared a Panchnama of the scene of offence and recovered various muddamal articles. At 12-00 midnight on the same day he was directed to hand over the investigation of the crime to Inspector Shri Chauhan of the Detection Crime Branch. ( 9 ) WE may as well note at this stage that the other witness to the incident Ghanshyam Govindram Ahuja owner of the pan-house telephoned the information to the Police Control Room which in turn telephonically communicated the information to the Maninagar Police Station which was also recorded by the P. S. O. Dahyabhai who registered this information in the Station Diary along with the infor- mation that he had just then received personally from Kanaiyalal. ( 10 ) WE have noted above that the entry in the Station Diary is at Exh. ( 10 ) WE have noted above that the entry in the Station Diary is at Exh. 260 where as the telephone message despatched from the Control Room to Maninagar Police Station is at Exh. 264. The entire station diary wherein the aforesaid entry (Exh. 260) is made is also produced and is at Exh. 326. As we shall see later that Kanaiyalal is the most important witness of the first incident of the murder of Santoksing and in that connection we shall have to refer to the aforesaid three exhibits namely Exhs. 260 264 and 326 as the defence has endeavoured to made use of them to discredit Kanaiyalal. ( 11 ) AS stated above Santoksing had died on the spot and his dead body was removed to the L. G. Hospital. Dr. Dipakkumar Devkaran Patel (P. W. 7 Exh. 53) carried out the post-mortem examination and the post-mortem examination report is at Exh. 54. ( 12 ) WE have seen above that Harising was also removed to the L. G. Hospital after he was injured. At the L. G. Hospital he was treated by Dr. Samir Natwarlal Shah (P. W. 8 Exh. 61) and after Harising expired the post-mortem was carried out by Dr. Dipakkumar Devkaran Patel. The certificate of injuries to Harising issued by Dr. Samir is at Exh. 63 and his inquest is at Exh. 44. The post-mortem notes issued by Dr. Dipakkumar Devkaran Patel are at Exh. 56. ( 13 ) BIHARILAL was also removed to L. G. Hospital after he was injured and he too was treated by Dr. Samir Natwarlal Shah (P. W. 8 Exh. 61 and the medical certificate of injuries caused to Biharilal is at Exh. 62. After Biharilal succumbed to his injuries the post-mortem examination was carried out by Dr. Dipakkumar Devkaran Patel and the post-mortem report is at Exh. 57. ( 14 ) AFTER the death of Harising but prior to the death of Biharilal one Police Constable at the L. G. Hospital acting under the instruc- tions of R. M. O. Dr. Sadmaben sent a report to Amraiwadi Police Station informing the latter about the two incidents-one at Harisings house and the other at Rohit Circle and also intimating of the death of Harising due to injuries with a revolver. Consequently the Police Inspector Mr. Sadmaben sent a report to Amraiwadi Police Station informing the latter about the two incidents-one at Harisings house and the other at Rohit Circle and also intimating of the death of Harising due to injuries with a revolver. Consequently the Police Inspector Mr. Chaudhary of Amraiwadi Police Station proceeded to the L. G. Hospital and recorded the complaint of Ramesh Biharilal. Biharilal is reported to have expired after Inspector Chaudhary reached the hospital. Inspector Chaudhary recorded statement of Ramesh prepared inquest Panchnama and carried out other incidental investi- gation. There is a controversy as to whether the statement of Ramesh was not first in point of time and earlier than the information sent by the Police Constable at the instance of Dr. Sadmaben and therefore whether the statement of Ramesh should not be exhibited as F. I. R. Inspector Chaudhary proceeded at about 10-15 P. M. at the Rohit Circle and prepared the Panchnama of the scene of offence. Thereafter he proceeded to Harisings house and completed the recording of the statements of some of the witnesses and prepared a Panchnama of the scene of offence. He was also directed by the Deputy Police Commissioner to hand over the investigation of the case to Shri Chauhan and on 30/08/1983 he handed over the papers to Inspec- tor Shri Chauhan. ( 15 ) THUS Shri Chauhan came to be in the charge of the investi- gation of the aforesaid three murders. He started investigation of the entire episode. ( 16 ) ACCORDING to the prosecution case the four accused hired a rickshaw at the Rohit Circle and got down at the Kankaria Football ground and went away. The rickshaw driver Dasharathsing Takhiji (P. W. 54 Exh. 247) is examined and he has stated that he carried in his rickshaw four passengers from the Circle at about 4-30 P. M. and left them at the Kankaria Football Ground. He had identified the accused No. 4 Jayantibhai Revabhai as one of those four passengers. ( 17 ) THE further prosecution case so far as the accused No. 1 is concerned is that after committing the aforesaid three murders he proceeded in an autorickshaw from Maninagar towards Victoria Garden and on the way he met one Amritlal R. Makwana who was coming from the opposite direction in his Ambassador car. ( 17 ) THE further prosecution case so far as the accused No. 1 is concerned is that after committing the aforesaid three murders he proceeded in an autorickshaw from Maninagar towards Victoria Garden and on the way he met one Amritlal R. Makwana who was coming from the opposite direction in his Ambassador car. The accused No. 1 stopped Amritlal and asked him to lend his car to him which Amritlal did. After taking that car the accused No. 1 went towards Viramgam where be filled in petrol from Shree Swaminarayan Petrol Pump and then proceeded to Muli. The prosecution case is that in furtherance of the conspiracy hatched with the accused No. 12 P. S. I. Gosai In-charge Police Officer at Muli Police Station the accused No. 1 was put up in the lock-up somewhere around 9-00 P. M. on that day. ( 18 ) IT is at this stage that we shall examine in outline the prose- cution case as regards the conspiracy hatched to create alibi for the accused No. 1. According to the prosecution the accused No. 10 Chandubhai Pitamber and the accused No. 11 Natu Patel are the close allies of the accused No. 1. On 28-8-1983 the accused Nos. 10 and 11 had proceeded to Shivshakti Guest House of Surendranagar in the evening and they had reserved a room for them for staying there overnight. It is the prosecution case that the accused No. 11 furnished information and signed as the accused No. 1 B. S. Rai in the register of Shivshakti Guest House. Both of them stayed there overnight and somewhere in the morning on the next day the accused No. 11 pro- ceeded in a car bearing No. GJF 974 (belonging to the accused No. 1) from Surendranagar. We may intercept the story here to note that between 9-30 to 9-45 A. M. on that day the accused No. 12 Gosai was at the Muli Police Station as an In-charge Officer. A telephone- call was received at the Muli Police Station and allegedly the accused No. 12 had talked on that telephone. Thereafter at about 10-45 P. M. he started from Muli on an ostensible pretext of making an inquiry in a robbery case. He took with him two Police Constables Ratansinh Devji and Udesinh. At a distance of about 8 kms. Thereafter at about 10-45 P. M. he started from Muli on an ostensible pretext of making an inquiry in a robbery case. He took with him two Police Constables Ratansinh Devji and Udesinh. At a distance of about 8 kms. from Muli the accused No. 12 saw a car standing on the road with open bonnet. According to the prosecution it was the car driven by the accused No. 11 who as we have seen above had proceeded from the Shivshakti Guest House Surendranagar. The accused No. 12 stopped his vehicle checked the aforesaid car and recovered therefrom two liquor bottles. The prosecution case is that the accused No. 11 gave his name as B. S. Rai the name of the accused No. 1 and that the accused No. 12 took it down as such even though he very well knew that the real name of the person present at the place was Natubhai Naranbhai Patel. He prepared a Panchnama for the recovery of the bottles and wrote the complaint himself. Thereafter he asked the Police Consta- bles to follow him and he sat with the accused No. 11 in the Ambassador Car and drove it to Muli Police Station. At the Muli Police Station he handed over the complaint and the Panchnama to Head Constable Jagdishchandra who was a P. S. O. at that time. The accused No. 12 took the charge of the Police Station from Jagdishchandra called for the arrest register of the Muli Police Station and in his own hand-writing made an entry concerning the person arrested by him. Then he proceeded again towards Surendranagar under the pretext of carrying out the investigation of the robbery case and also to make further investigation in the liquor case which he had made against the accused No. 11. He returned to Muli Police Station at about 6-00 P. M. with the arrested person namely the accused No. 11. After returning to Muli Police Station from Surendranagar the accused No. 12 again took charge at the Police Station but this time from Head Constable Dilawarsinh and made necessary entry in the register. He called for the Lock-up Register and asked Dilawarsinh to post an entry about putting the accused No. 1 in the lock-up. After returning to Muli Police Station from Surendranagar the accused No. 12 again took charge at the Police Station but this time from Head Constable Dilawarsinh and made necessary entry in the register. He called for the Lock-up Register and asked Dilawarsinh to post an entry about putting the accused No. 1 in the lock-up. Constable Ratansinh has deposed that although the entry of putting the accused in the lock-up is made at 6-00 P. M. in the Lock-up Register he had put the same accused actually in the lock-up later at about 8-00 P. M. After his duty hours were over Dilawarsinh Ratansinh and Udesinh left the Muli Police Station. At about 9-00 or 9-30 P. M. the accused No. 12 called Constable Narendra Daniel for taking the finger-prints of the accused who was put in the lock-up. The prose- cution-case is that at any time between 9-00 and 9-30 P. M. or there- about when there was none at the Police Station and when the accused No. 12 was in charge as P. S. O the accused No. 12 exchanged the accused No. 1 Babu Satyam in the lock-up in place of the accused No. 11 Natu Patel. Thus accused No. 12 prepared false documents and evidence in order to create an alibi in favour of the accused No. 1. ( 19 ) ANOTHER significant aspect of the prosecution-case may also be noted at this stage. One Dr. Gunvantrai Nagardas is residing at Lavanya Society Ellisbridge Ahmedabad. He was formerly residing at Khokhra-Mehmedabad where he and his wife Ansuyaben were doing the medical practice. The accused No. 1 was their patient. The pro- secution-case is that a telephone-call was received at the telephone installed at the residence of Dr. Gunvantrai at about 1-45 P. M. on 28 It was a blank telephone-call. It is the further prosecution- case that a second telephone-call was also received at the residence of Dr. Gunvantrai at about 1-00 P. M. on 29-8-1983 and after the telephone was disconnected immediately there was another telephone- call at Gunvantrais telephone at about 1-15 P. M. on that day. The prosecution has examined Dr. Gunvantrai and his wife Dr. Ansuyaben but the latter has turned hostile to the prosecution. Gunvantrai at about 1-00 P. M. on 29-8-1983 and after the telephone was disconnected immediately there was another telephone- call at Gunvantrais telephone at about 1-15 P. M. on that day. The prosecution has examined Dr. Gunvantrai and his wife Dr. Ansuyaben but the latter has turned hostile to the prosecution. The endeavour on the part of the prosecution is to prove that it was the accused No. 1 who had talked on all the three occasions with either the accused No. 10 or the accused No. 11. The prosecution suggests that on 29-8-1983 the accused No. 12 had a talk in the morning with the accused No. 11 and it was after the accused No. 1 received a green signal on telephone in the afternoon that he proceeded to execute the plan of committing the triple murders. ( 20 ) DURING the course of the investigation Mr. Chauhan recorded the discovery of the weapons made by the accused No. 1 in the presence of a Panch Valjibhai Ranchhodbhai Patel (P. W. 24 Exh. 121) the discovery made by the accused No. 14 at Kansa in the presence of the Panch Ismail Babubhai (P. W. 22 Exh. 115) discovery by the accused No. 5 in the presence of Panch Himatbhai Somabhai Patel (P. W. 40 Exh. 173) and arrested the accused No. 2 on 10-9-1983 the accused No. 3 on 2-9-1983 and made recovery of a weapon from the accused No. 3 in the presence of Munirkhan Ismailkhan arrested the accused No. 6 on 2-9-1983 and recovered from him weapon in the presence of a Panch namely Nathubhai Mahammadbhai Malek (P. W. 41 Exh. 175) arrested the accused No. 10 on 10-9-1983 and the accused No. 11 on 8-9-1983 and also arrested the accused No. 12 on 3-10-1983. During the course of the investigation. Mr. Chauhan got the identification parade arranged with respect to some of the accused on different dates before the Executive Magistrate Metropo- litan Area Shri Pravinbhai Mahida. He also secured the opinions of the ballistics experts Dr. Kodian Yakib Abraham (P. W. 52 Exh. 238) and Mr. Jitendra Umiyashanker Thakar (P. W. 52 Exh. 229) in order to prove that the bullets and the cartridges which were seized during the course of the investigation were fired from the fire-arms wielded by some of the accused. . . . . Kodian Yakib Abraham (P. W. 52 Exh. 238) and Mr. Jitendra Umiyashanker Thakar (P. W. 52 Exh. 229) in order to prove that the bullets and the cartridges which were seized during the course of the investigation were fired from the fire-arms wielded by some of the accused. . . . . ( 21 ) AT this stage we enter upon to discharge our duties of deciding the controversy between the parties. This is obviously a grim case which involves three murders in quick. succession in a broad day-light. The murders were without a shadow of doubt brutal. We therefore became conscious to see that these aspects of the case do not come in the way of our objective appreciation of the whole matter. Vivian Bose J. very pithily put the caution to the effect that where the murder committed is a particularly cruel and revolting one it is necessary to examine the evidence with more than ordinary case lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. (AIR 1952 Supreme Court 159 We also have cautioned ourselves to remain conscious althroughout so as not to lose objectivity and detachment while appreciating the evidence in this case. We have fortified ourselves against the effect of the heinous nature of the crime to overtake our judgment. From the very commencement of the case we were aware that in the above Confirmation Case a human life is at stake. We indeed administered to ourselves all the necessary caution and heard learned Advocates who appeared before us at considerable length. ( 22 ) THIS case presents for consideration two inter-connected major questions. The first question is whether the three homicidal deaths were brought about by the present accused Nos. 1 to 6 and the second question is whether these three homicidal deaths were caused by the accused Nos. 1 to 6 in furtherance of the conspiracy amongst them and accused Nos. 10 to 12 and connected with this question is the second aspect of the matter as to whether the accused Nos. 10 11 and 12 participated in the same conspiracy with the knowledge of the proposed three homicides. The prosecution-case is that there was a conspiracy amongst the accused to cause murders and as a part of the said conspiracy the accused Nos. 10 11 and 12 participated in the same conspiracy with the knowledge of the proposed three homicides. The prosecution-case is that there was a conspiracy amongst the accused to cause murders and as a part of the said conspiracy the accused Nos. 10 to 12 had acted to create evidence of alibi concerning the accused No. 1. According to the defence there was no such conspiracy at all none has been established on evidence and so the learned Judge had clearly erred in holding that the conspiracy was to commit offence of murder. We are called upon to consider and decide about the correctness of this decision of the trial Judge. ( 23 ) AS observed in Shivanarayan Laxminarayan Joshi and others v. State of Maharashtra and others AIR 1980 Supreme Court 439 it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. One has also to remember while dealing with a case such as the present the principle contained in sec. 10 of the Evidence Act to the effect that once a conspiracy to commit an illegal act is proved act of one conspirator becomes the act of the other. The evidence in the case must show a common concerted plan so as to exclude a reasonable possibility of the acts of the conspirators having been done separately and connected only by coincidence. The surrounding circumstances and the conduct of the accused both before and after the alleged commission of the crime are relevant and provide a pointer in the direction of the guilt or otherwise. While dealing with the question of motive above we have in passing shown the background of the relations amongst the accused as well as the victims. We wish to point out if necessary once more the history of their relations in order to understand the occurrence of the incidents the existence and manner of the participation therein by the accused and to decide in the end the credibility of the prosecution case. We wish to point out if necessary once more the history of their relations in order to understand the occurrence of the incidents the existence and manner of the participation therein by the accused and to decide in the end the credibility of the prosecution case. ( 24 ) IT is borne out from the evidence on record that the enmity between the accused No. 1 and his associates on the one hand and Jasbir and his fathers family on the other hand had started at least from 1979 and the last incident so tar as Jasbir is concerned took place on 20/08/1983 as Jasbir had filed a complaint against Munnasing and the present accused No. 5 Vasudev alleging that they were sent by the accused No. 1 for causing injuries to him with revolver. Not only that. On 22/08/1983 Jasbir gave an appli- cation to Karanj Police Station for police protection as the accused No. 1 and his men had gone to but him. In Jasbir the accused No. 1 and his collaborators found a person who was raising his head against them challenging their uncrowned underworld kingdom and helping persons in filing complaints against them. To them therefore Jasbir and his family members were an eye-sore. ( 25 ) THE accused No. 1 has admitted in his statement under sec. 313 of the Cr. P. C. that he had enmity against deceased Harising Santoksing and family of Harising; that in 1976 Santoksing caused injury to him with a knife; that in respect of the same a criminal case was filed against Santoksing deceased Harising and Kuldipsing; that on 30/05/1979 one Sukhdevsing was murdered and so a case was filed against himself Jasbir Kuldip and the present accused No. 11 that Jasbir had helped Ansuyaben Bhanushanker in lodging a criminal case against the accused No. 1; that on 20/08/1983 a complaint was filed within the jurisdiction of Amraiwadi Police Station and he is involved in the same; that from his office he was arrested on the same day and a case was filed under sec. 135 of the Bombay Police Act; that even though it was a bailable offence he was not released on bail but was handcuffed tied with a rope and was paraded and on the next day he was released on bail; that on 28/08/1983 a complaint was filed under sec. 135 of the Bombay Police Act; that even though it was a bailable offence he was not released on bail but was handcuffed tied with a rope and was paraded and on the next day he was released on bail; that on 28/08/1983 a complaint was filed under sec. 506 (2) wherein the allegation was that the accused No. 1 had sent the accused of that case to give threats to the complainant of that case; that he was therefore afraid that he would be treated in a worse manner in comparison with the treatment that was given to him on 20/08/1983 and that there- fore he had left Ahmedabad. ( 26 ) IT is thus evident that it was pursuant to the said complaints of 20/08/1983 that the present accused No. 1 was arrested handcuffed tied with a rope and paraded as admitted by him. A person like the accused No. 1 must have felt immense humiliation and uncontrollable anger on being so paraded and that too within the area of his operation. With the passing of every minute on the occasion of such parading bitterness must have acquired new heights in the recesses of his heart. According to the accused No. 1 Jasbir was the real cause of the said humiliation and indignation. ( 27 ) THE aforesaid three murders-did they. just happen and it was a mere co-incidence or were they a result of pre-planning ? The day and time of the murders- 29/08/1983 between 4-00 p. m. and 4 p. m. were they chosen with ample care or were the said time and day were just as good or bad as any other ? The persons who have been murdered-were they chosen or were they murdered at random ? The three different places of the incident were they selected after forethought or the same were picked up accidentally by the perpetrators ? The order in which the three places of the incident were visited-was the said order a result of pre-planning or it just happened that way ? The group of perpetrators of the said murders- did it collect at the scenes of offence accidentally or as a result of pre-planning ? The day time and places of the incident and the fact that all the three persons had met with homicidal deaths were and are not under challenge. The group of perpetrators of the said murders- did it collect at the scenes of offence accidentally or as a result of pre-planning ? The day time and places of the incident and the fact that all the three persons had met with homicidal deaths were and are not under challenge. In the background that at none of the three places any exchange of words or quarrel had preceded the three incidents-can one say that they just happened or were the said inci- dents a result of pre-planning ? As we proceed with this judgment an unequivocal answer to the aforesaid and one which is also beyond the pale of reasonable doubt is sure to emerge. ( 28 ) THE determination of the question of the existence of cons- piracy is indeed a difficult task since the evidence on all the material aspects may not be direct and its existence may have to be reason- ably inferred from proved facts. We are of the view that a hatching of the conspiracy and its execution can more easily be determined if we follow the events chronologically. ( 29 ) WE bear in mind that the three murders occurred on 29-8- 1983 between 4-00 P. M. and 4-30 P. M. We may also bear in mind the genesis of the ill-will created between accused No. 1 and Jasbirs family which genesis we have traced above and which we need not repeat here. At this Stage we shall only notice the fact that the seeds of the present conspiracy appear to have been sown during this period after the accused No. 1 was paraded in Khokhra-Mehmedabad area his own local area hand-cuffed and roped. We may now pursue the events further. It appears to us that the implementation of the conspiracy commenced on 25-8-1983 a day previous to the actual commission of the offences. ( 30 ) THE prosecution-case is that the accused No. 10 Chandubhai Pitambardas Prajapati and the accused No. 11 Natubhai Naranbhai Patel together went to Chamunda Transport situated at Surendranagar. The prosecution-case is that these two accused i. e. the accused Nos. ( 30 ) THE prosecution-case is that the accused No. 10 Chandubhai Pitambardas Prajapati and the accused No. 11 Natubhai Naranbhai Patel together went to Chamunda Transport situated at Surendranagar. The prosecution-case is that these two accused i. e. the accused Nos. 10 and 11 wanted to communicate With the accused No. 1 telephoni- cally at Ahmedabad and with that end in view they wanted to utilise the telephone bearing No. 1447 installed at Chamunda Transport which is a business firm owned by one Rasikbhai Gogjibhai Prajapati who happens to be a cousin (maternal uncles son) of the accused No. 10. The prosecution has examined Rasikbhai Gogjibhai Prajapati (P. W. 25 Exh. 123) but he has turned hostile. We shall find in this case that a number of witnesses have turned hostile to the prosecution. The settled legal position in this regard is that the evidence of a hostile is not necessarily to be rejected wholly. In regard to the appreciation of the evidence of hostile witnesses Sarkaria J. speaking for the Division Bench consisting of P. N. Bhagwati J and himself observed as under in the case of Sat Paul v. Delhi Administration AIR 1976 Supreme Court 294 :" Even in a criminal prosecution when a witness is cross-examined and contradict- ed with the leave of the court by the party calling him His evidence cannot as a matter of law be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-exami- nation and contraction the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the witness as a whole with due caution and care accept in the light of the other evidence on the record. that part of his testimony which he finds to be creditworthy and act upon it. If in a given case the whole of the testimony of the witness is Impugned and in the process the witness stands squarely and totally discredited the Judge should as a matter of prudence discard his evidence in toto". that part of his testimony which he finds to be creditworthy and act upon it. If in a given case the whole of the testimony of the witness is Impugned and in the process the witness stands squarely and totally discredited the Judge should as a matter of prudence discard his evidence in toto". ( 31 ) THE evidence of Rasikbhai Gogjibhai Prajapati inspires us to believe the certain part of this evidence. May it be noted that the telephone of Rasikbhai was utilised by the accused No. 10 on the strength of the relationship existing between the accused No. 10 and the witness. May it also be noted that Rasikbhai allowed the accused No. 10 to use his telephone as at that time he had no idea whatever as to for what purpose his telephone was being utilised by the accused No. 10. Later on only when the whole episode was over he must have learnt that his telephone was utilised by the accused No. 10 for a criminal purpose. In order to save his cousin brother and his own skin it is probable that he has turned hostile. However certain facts emerge from his deposition which may be accepted safely. It is not gainsaid by the defence that Telephone No. 1447 is installed at Chamunda Transport Surendranagar. Besides there is documentary evidence to wit the record of the Indian Posts and Telegraphs Depart- ment Vide Exh. 138 which also discloses the fact that Telephone No. 1447 is at Surendranagar. ( 32 ) WE may also note that the accused No. 10 is the cousin of this hostile witness as this relationship is admitted by the accused No. 10 in his statement under sec. 313 on the Criminal Procedure Code. ( 33 ) IT is also borne out from the evidence of this witness that the accused No. 10 accompanied by one another had visited Chamunda Transport is the monsoon of the year 1983. It is also stated by the witness that at that time namely when the accused No. 10 in the company of one another had visited this office in the monsoon of 1983 he had telephoned at Ahmedabad. He has also admitted that he had paid the bill of the same telephone calls. It is also stated by the witness that at that time namely when the accused No. 10 in the company of one another had visited this office in the monsoon of 1983 he had telephoned at Ahmedabad. He has also admitted that he had paid the bill of the same telephone calls. The further significant statement of this witness is that he could identify the accused No. 11 as the person who had gene to his Chamunda Transport Office with the accused No. 10. He has in terms stated that he had identified the accused No. 11 as he had gone to his Chamunda Transport in the company of the accused No. 10. In cross-examination of Mr. Thakore he has admitted that he could identify the accused No. 11 in the identification parade because the accused No. 11 was brought hand- cuffed. We do not understand how could the accused No. 11 be identified because he was hand-cuffed. All the persons who are hand-cuffed are not necessarily the accused No. 11. In the cross-examination which the learned Additional Public Prosecutor Mr. R. K. Shah was permitted to do the witness stated that he would not be able to identify the accused No. 11 if he was shown on that day i. e. on the day of his cross-examination. But when the accused No. 11 was actually shown to him he reiterated that it was that person who had gone in the company of the accused No. 10. In the light of the different parts of his evidence we may reasonably accept that the witness though hostile could identify the accused No. 11 as the person who had accompanied the accused No. 10 to his office when the accused No. 10 had utilised his telephone to have a talk at Ahmedabad. ( 34 ) ALL the above stated facts may easily be accepted on the strength of this hostile witness. What is important for us to note at this stage is complicity of the accused No. 10 and 11 in making a telephone-call at Ahmedabad. ( 35 ) THE next significant stage which we may consider is the telephone call itself which was booked from Surendranagar Telephone No. 1447 to Ahmedabad Telephone No. 411940 at 13-45 hours on 28 The telephone talk lasted from 13-46 hours to 13-49 hours i. e. to say for complete three minutes. ( 35 ) THE next significant stage which we may consider is the telephone call itself which was booked from Surendranagar Telephone No. 1447 to Ahmedabad Telephone No. 411940 at 13-45 hours on 28 The telephone talk lasted from 13-46 hours to 13-49 hours i. e. to say for complete three minutes. It was a no-pp call. ( 36 ) TELEPHONE No. 411940 at Ahmedabad is installed at the residence of Dr. Gunvantbhai. The same residence is at Lavanya Society Ahmedabad. In this connection the prosecution has examined Dr. Ansuyaben wife of Dr. Gunvantbhai (P. W. 19 Exh. 109 ). She has also turned hostile. However as we scan her evidence we find certain significant facts coming out even from this hostile witness. She has admitted in her examination-in-chief that Telephone No. 411940 is installed at her residence. She has also stated in her examination- in-chief that they have been residing at Lavanya Society for only 12 months past and that prior to that time she and her husband were residing at Khokhra-Mehmedabad Bombay Housing Block 124 Room No. 974. She has also admitted that they resided at the Housing Board block at Khokhra-Mehmedabad for last about 7 years. It also trans- pires from her evidence that her husband and herself were doing medical practice at Khokhra-Mehmedabad for the last about 8 to 9 years and that they continued to do practice there. She has also stated that she does not go to attend to the dispensary after they shifted their residence to Lavanya Society. The time of the dispensary situated at Khokhra-Mehmedabad is from 8-30 A. M. to 12-00 noon and from 6-0) P. M. to 9-00 P. M. It is important to bear in mind that the part of the deposition above-referred to has not been challe- nged in the cross-examination of Mr. Thakore. On behalf of the rest the accused there is no cross-examination whatever. Now we may further note that the accused No. 1 in his statement under sec. 313 of the Criminal Procedure Code has admitted that Dr. Gunvantlal and Dr. Ansuyaben were residing at Khokhra-Mehmedabad Housing Board Block No. 124 Room No. 974 and that they resided there for 8 years. He has also admitted that their dispensary is also situated at Khokhra-Mehmedabad. He has also admitted that he was taking medicine from the dispensary of Dr. Ansuyaben. Gunvantlal and Dr. Ansuyaben were residing at Khokhra-Mehmedabad Housing Board Block No. 124 Room No. 974 and that they resided there for 8 years. He has also admitted that their dispensary is also situated at Khokhra-Mehmedabad. He has also admitted that he was taking medicine from the dispensary of Dr. Ansuyaben. However he has stated that he does not know whether Dr. Ansuyaben knows him or not. Dr. Ansuyaben in her deposition has pretended that she did not know the person who had gone to her residence on 28-8-1983 between 12 and 1-00 P. M. expecting a telephone-call. She has deposed that one gentleman had gone to her residence between 12-00 P. M. and 1 P. M. on 28-8-1983 and had inquired from her as to whether the doctor was at the house. She replied in the negative. He then told her that he was expecting a telephone. She then asked him to sit in the drawing room. A telephone-call did come within 15 minutes and Ansuyaben has stated that she was at that time in her bed-room. She has further stated that gentleman did talk on the telephone but that she does not know what talks were carried out on the telephone. The telephone-conversation lasted for about 2 to 3 minutes. From her above deposition it does appear that she does not want to identify the accused No. 1. The fact that they resided at the Bombay Housing Board Block at Khokhra-Mehmedabad for 8 years that they have been having their dispensary at Khokhra-Mehmedabad for the last about 8 to 9 years and the fact that the accused No. 1 was taking medicine from their dispensary could clearly lead us to believe that she did know that it was the accused No. 1 who had gone to her residence on 28-8-1983. She has turned hostile. It is easy to understand why she does not make herself bold enough to give a complete account of the incident. She must have come to know that her telephone was utilised by the accused No. 1 for a criminal purpose and she did not want to have any personal involvement in the criminal incident She would like to remain away all the more because it was the principal accused of the grim tragedy who was her patient who had utilised her telephone to further his object. ( 37 ) THE aforestated three pieces of evidence namely the acceptable portion of the evidence of Rasikbhai Gogjibhai Prajapati (P. W. 25 Exh. 123) the documentary evidence (Exh. 138/1) dated 28 and the acceptable portion of the evidence of Dr. Ansuyaben do lead us to believe that on 28-8-1983 at about 1-45 p. m. the accused Nos. 10 and 11 have a telephonic talk from Chamunda Transport Office with the accused No. 1. ( 38 ) WE may at this stage anticipate a little and prove our point. It transpires from the evidence that two further telephone-calls were made from Chamunda Transport to the telephone at Dr. Gunvantbhais residence on 29-8-1983 and that on both these occasions it was the accused No. 1 who had talked on these two telephone-calls. Exh. 138 discloses that the same telephone call was booked for the particular person Shri B. S. Rai and that telephone-call had matured. Now in this regard Dr. Ansuyaben has stated in her evidence that on the second day that gentleman had gone to the residence expecting a who had gone to her residence on the previous day. There- fore from Exh. 13812 it appears that the accused No. 1 was the PP on telephone-call dated 29-8-1983 and if according to Ansuyaben that person was the same who had gone to her residence the previous day it must be accused No. 1 who had gone to the residence of Ansuyaben on 28-8-1983 and had talked on the telephone trunk-call which was booked from Telephone No. 1447 at Surendranagar. ( 39 ) AFTER having considered the incident of telephone-call on 28 we may now proceed to consider what happened at Shiv- shakti Guest House Surendranagar at about 8-00 p. m. on the same day. The prosecution-case is that the accused Nos. 10 and 11 had together gone at about 8-00 P. M. to Shivshakti Guest House Surendra- nagar and both had stayed overnight in the same Guest House. The further prosecution-case is that the accused No. 11 had signed the register at the Shivshakti Guest House and in doing so he had signed the register in the name of the accused No. 1. The prosecution has examined Jivubha Nathubha Sisodia (P. W. 23 Exh. 119 ). Jivubha has stated that he is employed as a Mahetaji for the last 3 to 4 years at Shivshakti Guest House. The prosecution has examined Jivubha Nathubha Sisodia (P. W. 23 Exh. 119 ). Jivubha has stated that he is employed as a Mahetaji for the last 3 to 4 years at Shivshakti Guest House. They maintain a register of the persons who go there for staying there. He has produced the relevant register (Exh. 72 He has stated that entries Nos. 7 and 8 therein are in his own handwriting. On 28-8-1983 two persons had gone there for staying there. Their names were Babubhai Satyamram Rai and Chandubhai Pitambardas. He has specifically stated that the person who had given his name as Babubhai signed the second column of the register in his presence. The other details have been filled in by him at the instance of the same person The entries Nos. 7 and 8 are at Exh. 120. Jivubha has further stated that these persons had gone to the Guest House at about 7-00 P. M. in a motor car which bore green colour. The discu- ssion of the Panchnama which we shall make later would go to show that the car belonging to the accused No. 1 is of green colour and to that extent Jivubha stands corroborated in this regard. He has further deposed that his duty-hours are from 9-00 A. M. to 7-00 P. M. When he came to the Guest House in the morning of 29-8-1983 he found that the person who was with Chandubhai was not there. It appears from this evidence that the accused No. 11 who had posed himself as the accused No. 1 before Jivubha the previous evening had left the Guest House in the morning of 29-8-1983. The accused No. 10 had left the Guest House at about 9-00 P. M. on 29-8-1983. We may add here that in the identification parade he identified the accused Nos. 10 and 11. He has also stated that he identified the accused No. 11 as the person who had signed the Register in his presence on 28-8-1983. . . . . . . . . . . . . . . . ( 40 ) SO far as the episode at Shivshakti Guest House is concerned we have examined the relevant evidence which consists of the evidence of Jivubha (Exh. 119) Shivshakti Guest House Register (Exh. 120) and the evidence of the Handwriting Expert Shri Jagdishbhai Patel (Exh. 143 ). . . . . . . . . . . . . ( 40 ) SO far as the episode at Shivshakti Guest House is concerned we have examined the relevant evidence which consists of the evidence of Jivubha (Exh. 119) Shivshakti Guest House Register (Exh. 120) and the evidence of the Handwriting Expert Shri Jagdishbhai Patel (Exh. 143 ). Collectively this evidence does establish that the accused Nos. 10 and 11 had gone to Shivshakti Guest House on 28-8-1983 at 8-00 p. m. and had stayed there overnight. . ( 41 ) WE will now consider how the implementation of the conspi- racy proceeded on 29-8-1983. It is in evidence that accused No. 12 was in charge of the Police Station at Muli in the morning of 29 The accused No. 12 has admitted in his statement that he was in charge of the Muli Police Station between 9-00 a. m. and 10 a. m. on 29-8-1983. During this time a telephone-call was received at the Muli Police Station (Telephone No. 33-Muli) from Telephone No. 1447-Surendranagar. It was an urgent telephone. It matured at 9-40 A. M. and it was disconnected at 9-42 A. M. The prosecution-case is that this telephone-call was in furtherance of the conspiracy and that the accused No. 12 had attended to that telephone -call. The accused No. 12 has denied having attended to that telephone -call nor has he any knowledge of it. There is no direct evidence which would prove that the accused No. 12 had attended to that telephone-call. Considering the totality of circumstances there is reason to believe that the denial given by accused No. 12 is not true. was indeed he who had attended to the same telephone-call since soon thereafter he left Muli Police Station accompanied by two other Police Constables under the pretext of carrying out an investigation in a robbery case. We are fortified in this inference when the depar- ture of the accused No. 11 in the morning of 29-8-1983 from Shiv- shakti Guest House and the departure of accused No. 12 from Muli Police Station are co-related. It appears that between them it was fixed that on their way they would be able to accost each other. . . . . . . . . . . . . It appears that between them it was fixed that on their way they would be able to accost each other. . . . . . . . . . . . . ( 42 ) WRITER Constable Udesinh Annadubha has stated in his evi- dence that they travelled a distance Or about 8 kms. from Muli Police Station and when they reached near Kukda village they saw one Ambassodar Car of green colour bearing No. GJF 974 parked on the side of the road facing Rajkot. The bonnet was open and there was one person standing by the side of the bonnet. That person made movements which showed that he was trying to conceal himself. The accused No. 12 asked the driver to stop the jeep and got down from the jeep followed by the witness and Ratansinh. The accused No. 12 asked the person standing by the side of the car that he wanted to check the car. The accused No. 12 checked the car. At that time that person muttered something wherein the accused No. 12 gave him a stick-blow which hit on the hand. At that point of time there was one motor cycle which was proceeding from the opposite direction. The accused No. 12 signalled the motor cyclist to stop it. He told the motor cyclist that he wanted to check the car and wanted to utilise his presence as Panch. On checking the car the accused No. 12 brought out two liquor bottles packed in the newspaper. The accused No. 12 drew a Panchnama and wrote the Panchnama himself. He asked the name of the person and that fellow replied that his name was Babu Satyamram. Thereafter a Panchnama was drawn of the seizure of the two liquor bottles. A copy of the said Panchnama is at Exh. 142 and the original is also exhibited and is to be found at Exh. 269. The Panch witness is Mahendrasinh Melabhai (P. W. 31 Exh. 140 ). Mahendra- sinh has turned hostile. However from his evidence also certain facts can easily be taken as established. He has deposed that on 29-8-1983 he was going on his motor cycle at about 10-45 A. M from Muli to Surendranagar. Near Kukda village he found the accused No. 12 signalling him to stop. He did so and the accused No. 12 told him about the checking of the car. He has deposed that on 29-8-1983 he was going on his motor cycle at about 10-45 A. M from Muli to Surendranagar. Near Kukda village he found the accused No. 12 signalling him to stop. He did so and the accused No. 12 told him about the checking of the car. He has deposed about the seizure of the two liquor bottles as well as that when the accused No. 12 asked the person standing by the car his name he disclosed his name as Babu Satyamram Rai. He is also alleged to have identified the accused No. 11 as the person who had given his name as Babu Satyamram Rai at the identification parade. This part of his evidence cannot be accepted because he has stated that the accused No. 11 had accompa- nied them when he was taken at the office where the identification parade was to be held. The Police had shown the accused No. 11 to him prior to the identification parade. However the part of his evi- dence which can be accepted is that the accused No. 12 had carried out the investigation of the car and that when he asked the person standing by the side of the car his name he had given his name as Babu Satyamram Rai (the accused No. 1 ). Now if we find from other evidence which we shall discuss hereunder that the person who was found near the car was not the accused No. 1 but the accused No. 11 an inference can reasonably be made regarding the part played by the accused No. 11 in furtherance of the conspiracy. If that person was the accused No. 11 and he had given out his name as Babu Satyamram Rai there is no manner of doubt that the accused No. 11 actively participated in the conspiracy. . . . . . . . . . . . . ( 43 ) THE accused No. 12 had made all show that he was dischar- ging his duties when he searched the car feeling suspicious about the conduct of the person who was standing by the side of the car. . . . . . . . . . . . . ( 43 ) THE accused No. 12 had made all show that he was dischar- ging his duties when he searched the car feeling suspicious about the conduct of the person who was standing by the side of the car. But when we scan the incident carefully and in its minute details the facts one by one emerge which point in the direction of the partici- pation by the accused No. 12 in a conspiracy to create alibi for the accused No. 1. He maintained an the time an outward appearance that it was a normal prohibition case but in reality we find that it was only a camouflage. ( 44 ) IT also transpires from the evidence of Udesinh that after the two Panchas left the accused No. 12 asked Udesinh and Ratansinh to sit in the jeep and said that he would write a complaint. Udesing has stated that he and Ratansinh went and sat in the jeep. He has further slated that he does not know what accused No. 12 did then. The suggestion is that at that point of time under the pretext that he wanted to draw the complaint in his own handwriting he remained with that person who was standing near the car. Apart from this suspicious circumstance the fact that the complaint was drawn by the accused No. 12 in his own handwriting creates suspicion. That comp- laint is at Exh. 201. The complaint discloses that the case was filed under sec. 66 (b) of the Bombay Prohibition Act. ( 45 ) HAVING completed the work of drawing the Panchnama and complaint. the accused No. 12 accompanied by the same person went to Muli Police Station. It must be noticed that even while going to Muli Police Station the accused No. 12 took his seat in the Amba- ssadar Car with that person all alone and that Udesinh and Ratansinh travelled separately in the Police Jeep. At this stage it may also be noted that the distance between Kukda village and Muli Police Station is of about 8 kms. At this stage it may also be noted that the distance between Kukda village and Muli Police Station is of about 8 kms. and it would require at least 15 to 20 minutes in a car to cover that distance before reaching Muli Police Station The fact that during that time the accused No. 12 remained all alone with that person is a significant fact since it would only be a reaso- nable inference to draw that on the way they must have talked about the details of alibi regarding accused No. 1 and the conspiracy. . . . . . . . . . . . . ( 46 ) JAGDISHCHANDRA Harnamsingh (P. W. 38 Exh. 163) Head Con- stable Muli Police Station at the relevant time has stated in his deposition that the accused No. 12 had made notes in the arrest register. The context suggests that this was done after the accused No. 12 had returned to the Muli Police Station from Kukda and before he again went out for investigation at Surendranagar. In this regard we may further examine the deposition of Kantilal Hiralal (P. W. 44 Exh. 202) He was a Writer Head Constable at Muli Police Station. He has deposed that he knows the hand writings of the accused No. 12. When he was shown Entry No. 18 at page 31 (Exh. 203) of the arrest register he identified the signature of the accused No. 12 in the last column of Exh. 203. Perusal of Exh. 203 discloses that the accused No. 1 for the offence under sec. 66 (b) of the Bombay Prohi- bition Act. He has recorded in his own handwriting the description of the accused No. 1 and the marks on his body. It is significant that he has noted the marks of operation on the stomach portion of the accused No. 1. The noting of these marks would prima facie surely suggest that the accused No. 12 could not have noted such marks in the register unless he had seen such marks which would again go to show that the accused No 1 must be present at the Muli Police Station by his side at that time. It would indeed be a clinching cir- cumstance in favour of the accused No. 1. It would indeed be a clinching cir- cumstance in favour of the accused No. 1. If we believe the presence of the accused No. 1 at this point of time we will have to remember that then after he was always in the company of the accused No. 12 till he was put up in the lock-up. That would certainly go to prove his alibi in regard to the offences of three murders at Ahmedabad. But the matter is not so simple as that. As we shall see later in this judgment the three murders have been witnessed by different eye- witnesses. Some of the witnesses to the murders are indeed dependa- ble for the reasons that we shall state later. If we believe the contents of the arrest register we will have to disbelieve all these dependable witnesses and we will have to reject their evidence totally. Apart from that there is evidence to suggest that the accused No. 12 had the information about the marks on the body of the accused No. 1 since an earlier point of time. Reference may be made to the statement of the accused No. 1. He has made reference to the complaints filed against him. In that light with the list (Exh. 307) he has produced certain documents. A further reference may be made to Exh. 308 which is a certified copy of the charge-sheet dated 9-3-1984 which is in regard to the F. I. R. bearing No. 583 dated 11-3-1983. A further reference may be made to the note therein to the effect that the Chahera Nisan Patrak of all the accused in that charge-sheet which included the accused No. 1 was produced along with the charge-sheet. Therefore the present one was not the first occasion on which Chahera Nisan of accused No. 1 were recorded. It may further be seen that there is evidence which we shall discuss later to show that the accused No. 1 and accused No. 12 were inter-connected and were knowing each other since a long time prior to the occurrence of the incidents in question. An inference can therefore be drawn that accused No. 12 had the know- ledge of marks even covered marks on the body of accused No. 1. An inference can therefore be drawn that accused No. 12 had the know- ledge of marks even covered marks on the body of accused No. 1. On the one hand this Chahera Nisan marks in the arrest register would go to rescue accused No. 1 from the charges levelled against him in the present case but on the other hand the totality of evi- dence goes to show that accused No. 12 has cleverly made use of his knowledge of the marks on the body of accused No. 1 in order to create an alibi for accused No. 1 This inference inevitably shows the participation of accused No. 12 in the conspiracy. Now when we remember that the evidence proves that it was accused No. 11 who was the person arrested at Kukda the contents of the arrest register expose the clever device of accused No. 12. Evidence conclusively establishes that accused No. 1 is not the person who was arrested at Kukda and it was accused No. 11 who was in fact arrested. In that context noting of the marks on the body of the accused No. 1 in the arrest register leaves no room for doubt that the accused No. 12 wanted to create foolproof documentary evidence to create alibi for the accused No. 1. ( 47 ) WE have referred to Dr. Ansuyaben in the earlier part of our judgment in regard to a telephone-call which was received at her Telephone No. 411940 at about 1-45 P. M. on 28-8-1983. We have given our reasons to come to the conclusion that that telephone call was attended to by the accused No. 1 and at the other end at Chamunda Transport Office Surendranagar were the accused Nos. 10 and 11. ( 48 ) ON 29-8-1983 another telephone-call was received at 13-05 hours from Telephone No. 1447-Surendranagar. A reference may be made to Exh. 138/2. We have noted earlier that Ansuyaben has stated in her deposition that on 29-8-1983 there came the same person expecting a telephone-call who had gone to her place for the same purpose the previous day. Exh. 13812 is a part of the record of the Indian Posts and Telegraphs Department. This evidence is nowhere challenged and has been exhibited by consent. Exh. 138/2 is an extre- mely important piece of evidence which connects the accused No. 1 and the accused No 10. Exh. 13812 is a part of the record of the Indian Posts and Telegraphs Department. This evidence is nowhere challenged and has been exhibited by consent. Exh. 138/2 is an extre- mely important piece of evidence which connects the accused No. 1 and the accused No 10. The name of the accused No. 1 is shown as PP B. S. Rai. The telephone is booked by Chandubhai. The telephone had matured and the telephone-call had lasted from 13-05 to 13-08 hours. . Even Ansuyaben a hostile witness has stated that the same person who had gone to her house on an earlier day came again between 12-00 P. M. and 1-00 P. M. on the next day and told her that he was expecting a telephone. The telephone did come within 15 minutes. That person did talk on the telephone but she does not know what the talks were about. After the telephone was disconnected there was soon thereafter a second telephone-call at Vr. Ansuyabens residence and this was again from Telephone No. 1447 Surendranagar. It was of course a blank telephone but the parties talked on it from 13 to 13-18 hours. Since the telephone-call was at the same number from the same number an inference would be easy to make that the person who had booked the second telephone-call did not find it necessary to specifically name the particular person. It is pertinent to observe that the same Exh. 135 to be precise Exh. 138/5 further discloses that from the samc telephone No. 1447-Surendranagar a telephone-call was made at Muli Police Station Telephone No. 33 the booking time being 13-21. the particular person was shown as Shri Gosai. This telephone of course did not mature. These three telephone calls two at Ahmedabad in quick succession and one at Muli soon after the second telephone at Ahmedabad are nice indi- cators of the probable progress of the design hatched by the accused in conspiracy. As we have seen the person who had booked the first telephone at Ahmedabad on 29-8-1983 is Chandubhai. After the disconnection of the first telephone the next was connected very soon and after that was over Muli was contacted from the same telephone-number presumably by Chandubhai. As we have seen the person who had booked the first telephone at Ahmedabad on 29-8-1983 is Chandubhai. After the disconnection of the first telephone the next was connected very soon and after that was over Muli was contacted from the same telephone-number presumably by Chandubhai. The probability of telephone-calls is that Chandubhai gave a green signal to the accused No. 1 to proceed for the commission of the crimes in ques- tion and on the other hand he intimated to the accused No. 12 at Muli Police Station that he had already given a green signal to the accused No. 1. In other words it is a probable inference to make from this data that he emboldened himself to proceed for the commi- ssion of the crimes after he was assured on these telephones that the necessary arrangements were completed for creating his alibi. The two telephone-calls at Ahmedabad on 29-8-1983 in the context that they were expected at Ahmedabad end and were between the same numbers establish beyond doubt that it could not have been anyone- else but accused No. 1 at the Ahmedabad-end who was anxiously awaiting the final news regarding the fixing of alibi at Muli. ( 49 ) WE shall now consider whether the sa id three murders were or were not the result of conspiracy. We shall also examine the time was also chosen or not and whether the persons who were killed were also chosen or not and whether the accused who had collected at the scenes of the incident had collected accidentally or in pursu- ance of the conspiracy. All the aforesaid will need to be examined in the background that at none of the three places any exchange of words or quarrel had preceded. ( 50 ) THE discussion made so far clearly points in the direction that a green signal was given at about 1-30 P. M. on 29-8-1983 to the accused No. 1 on telephone to perpetratet he crimes in contemplation and consequently the commission of crime at 4-00 P. M. as a chosen time fits in leaving ample scope between 1-30 P. M. and 4-00 P. M. to inform the accused Nos. 2 to 6 and others. ( 51 ) THE further prosecution-case is that the accused Nos. 1 to 6 and others had proceeded in two auto-rickshaws to accomplish their object. 2 to 6 and others. ( 51 ) THE further prosecution-case is that the accused Nos. 1 to 6 and others had proceeded in two auto-rickshaws to accomplish their object. The prosecution endeavoured to bring home this point by exa- mining one of the two rickshaw drivers namely Amrutlal Gagaldas Jain (P. W. 34 Exh. 153) but this witness has completely turned hostile. We cannot get anything from his deposition which would further the prosecution case. Mr. R. K. Shah has endeavoured to elicit a support from this witness by putting to him relevant contradictions with his police statement. We do not consider it safe to put any reliance on these contradictions and therefore we shall not refer to them. ( 52 ) THE three murders were committed within a short span of half an hour i. e. to say between 4-00 and 4-30 P. M. on 29-8-1983. This time-factor can be established from the documentary evidence on record. Exh. 260 is the First Information Report registered at the Maninagar Police Station. The time shown is 4-20 P. M. The eye-witness Kanaiyalal had gone to give this information to Maninagar Police Sta- tion from Dakshini Society. The distance between the two is about 2 to 3 kms. Again Kanaiyalal had first gone to the Controller of the AMTS at the Maninagar Bus Terminus and under his directions he had gone to the Maninagar Police Station. Therefore the occurrence of the murder of Santoksing can be placed near about 4-00 P. M. on that day. ( 53 ) NOW so far as the terminus time is concerned we may make a reference to Exh. 283 which is the First Information Report conveyed Constable Arjunsinh under the instructions of Dr. Sadmaben C. M. O. L. G. Hospital to the Amraiwadi Police Station. This information from Constable Arjunsinh was received at 5-15 P. M. which was subsequent to the entry of injured Harising and Biharilal. Biharilal was last to be attacked. Some time must have been taken to remove Biharilal to L. G. Hospital after the actual onslaught on him. Therefore if the prosecution case is that the incidents of three murders occurred within a short span of half an hour or so i. e. to say from 4-00 P. M. to 4 P. M. it would quite be an acceptable story. We may note here that in Exh. Therefore if the prosecution case is that the incidents of three murders occurred within a short span of half an hour or so i. e. to say from 4-00 P. M. to 4 P. M. it would quite be an acceptable story. We may note here that in Exh. 283 the name of the injure is shown as Pyarelal Jagdish bhai but there is no dispute before us that Pyarelal was Biharilal. Coupled with this data if we see a complete map of the scenes of occurrence at three different places we may also note that these three different places are situated at a short distance from one another. A notice of the topography would show that the first incident occurred at Dakshini Society Maninagar the second near the Physical Training Institute (Khokhra-Mehmedabad behind Maninagar Railway Station) and the thied near Rohit Circle near Rohit Mills. The comprehensive map is to be found at Exh. 211. The fact that all the three incidents were covered within the time-span of about half an hour is also indi- cative of the fact that all the three places of the incidents were so situated that they could be visited within that short span of time. ( 54 ) THERE is no prelude on 29-8-1983 to any of the three inci- dents. There was no provocation to the accused and on the contrary the concerned accused rushed on the victims like tigers on their prey. ( 55 ) WE have reasoned out above grounds for the inference that the accused No. 1 started on his revenge spree only after he was assured about his alibi. He would not have dared to commit the offe- nce so flagrantly had he not been assured about his alibi. It is also reasonable to infer that those others who joined him in perpetrating the crimes felt that at they would escape the punishment in the light of the creation of the alibi for the accused No. 1. Thus the accused No. 1 and his associates risked the offences in broad day-light in those areas where they were fairly known only because they were sure that the alibi would help the accused No. 1 to escape criminal proceedings and is the accused No. 1 was successful in escaping the criminal proceedings they were safe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 56 ) IN this connection the Investigation Officer Chandansing Hadmatsing Chauhan (Exh. 270) has stated at paragraph 12 of his deposition that on 13/09/1983 be had received the bullets which were recovered from the body of Harising and Santoksing from the Civil Hospital. He has further deposed that on 14/09/1983 he had forwarded all the muddamal articles that he had seized till then to the Forensic Science Laboratory with a forwarding letter (Exh. 239 ). At item No. 42 of Exh. 239 it is stated that it consisted of 5 bullets which were found from the dead bodies of Santoksing Harising and Biharilal. There appears to be some error or misunder- standing to the part of Chauhan. He has stated at paragraph 12 and at Sr. No. 42 of Exh. 239 also that there were five bullets recovered from the dead bodies of Santoksing Harising and Biharilal. The error has crept in probably because he has not opened the packets sent by the Civil Hospital as admitted by him and had merely felt the packet from outside. Bat it is positively found in Dr. Patels evidence that he had recovered three bullets from the body of Santoksing and that there was no bullet recovered from the bodies of Harising and Biharilal. Dr. Patel has stated precisely as to from which parts of the body of Santoksing the bullets were found. Now this becomes all the more clear when we read the evidence of Dr. Abraham (Exh. 238 ). At para- graph 2 of his deposition he has stated that he described the last serial No. 42 as Sr. No. 43 and in that regard at paragraph 9 he has stated that Parcel No. 43 which was the last serial number shown as parcel No. 42 in Exh. 239 contained three bullets which have been referred at Exh. 239 as GG. He had re-numbered GG which was a collective mark given by the Police for the three bullets as GG-1 GG-2 and GG-3. Thus GG-1 and GG-3 were the bullets reco- vered from the body of Santoksing. Dr. Abraham has opined as regards marks GG-1 GG-2 and GG-3 as under :-"exhibits GG-1 GG-2 and GG-3 are three fired 32 bullets. No standard rifling marks were present on these bullets. Thus GG-1 and GG-3 were the bullets reco- vered from the body of Santoksing. Dr. Abraham has opined as regards marks GG-1 GG-2 and GG-3 as under :-"exhibits GG-1 GG-2 and GG-3 are three fired 32 bullets. No standard rifling marks were present on these bullets. There was one deep characteristic scratch mark on these bullets in addition to other faint scratch marks. These bullets were examined and were compared under a comparison microscope with the test fired bullets test fired from exhibits Y-1 and FF-3. The characteristics of the scratch marks on exhibits GG-1 GG-2 and GG-3 were similar to that on the test fired bullet test fired from Exhibit Y-1 thereby showing that these exhibits have been fired from Exhibit Y-1". ( 57 ) WE may recapitulate that Dr. Abraham had given Exh.-Y-1 to the revolver which was sent by the Police to him and which was discovered by accused No. 1. His reasons are to be found at paragraph 18 of his cross-examination for coming to the conclusion that GG-1 GG-2 and GG-3 were fired from revolver bearing Experts No. Y-1. If we peruse the letter produced with Exh. 245 we find that there is a description of the muddamal given therein. As regards the bullets recovered from Parcel No. 43 GG-2 was a partially deformed bullet having scratch marks on it. This description corroborates Dr. Patels that one of the bullets which was recovered from Santoksings body was a deformed one. ( 58 ) IN order to complete the picture we will consider the evidence regarding discovery made by the accused No. 1. The Panch witness Valjibhai Ranchhodbhai (P W. 24 Exh. 121) was called as a Panch witness on 2/09/1983 at about 9-00 P. M. at Crime Branch Police Station. Another Panch Amritji Bhikhaji was also present. The accused No. 1 was present and the investigating Officer asked him his name and the accused No. 1 replied that his name was Babu Satyaram Bhayya. He was further asked as to what he wanted to say and be replied that he wanted to show the weapons which were concealed by him. Thereafter the party proceeded on the Sarkhej Road near the bus stand known as Lalbhaino Kuvo on Sarkhej Road the accused No. 1 stopped the car. All came out of the car. The accused No. 1 was heading the party. Thereafter the party proceeded on the Sarkhej Road near the bus stand known as Lalbhaino Kuvo on Sarkhej Road the accused No. 1 stopped the car. All came out of the car. The accused No. 1 was heading the party. On the left-hand side of the road facing Sarkhej they went about 15 to 20 paces where there had grown grass. The accused No. 1 put his hand inside the grass and brought out one plastic bag and gave it to the Inspector - Investigating Officer. The Investigating Officer took out from the same plastic bag one revolver and one knife. The revolver was opened and the Inspector took out four live cartridges and two empty cartridges. On the point of the knife and at the head of it near the handle there were blood-spots The revolver and the four live cartridges were given muddamal Article No. 63. The Panchnama was drawn at 9-00 P. M. at the spot which is Exh. 122. ( 59 ) THE witness was cross-examined at length. But the cross- examination has not created any dent on his evidence. The trial Judge has discussed this part of the evidence at paragraph 74 of his judgment. In the course of his discussion he has discussed the objections raised by the defence in believing this witness. Meeting with them all in the result he has held that there was no reason why this witness should be disbelieved. He has laid emphasis on the evidence of the Ballistics Expert Dr. Abraham in this behalf. The revolver is Mudda- mal Article No. 63 Dr. Dipakkumar D. Patel had extracted three bullets from the body of Santoksing which he had handed over to the Police and which were in turn sent to Dr. Abraham. Dr. Abraham has opined as we have seen above after carrying out experiment that the three bullets that were recovered from the body of Santoksing were fired from the revolver Muddamal Article No. 63. This opinion of Dr. Abraham clinches the point. It is pertinent to note at this stage that Dr. Abraham has noticed that there was one deep characte- ristic scratch mark on the bullets Exhs. GG-1 GG-2 and GG-3 and that those bullets were examined and were compared under a comparison microscope with the test fired bullet test fired from Ex. Y-1 and Ex. Abraham clinches the point. It is pertinent to note at this stage that Dr. Abraham has noticed that there was one deep characte- ristic scratch mark on the bullets Exhs. GG-1 GG-2 and GG-3 and that those bullets were examined and were compared under a comparison microscope with the test fired bullet test fired from Ex. Y-1 and Ex. FF-3 and further that the characteristics of the scratch marks on Exs. GG-1 GG-2 and GG-3 were found to be similar to that on the test-fired bullets test fired from Ex. Y-1 thereby showing that the said exhibits had been fired from Ex. Y-1. It is therefore clear that if the accused No. 1 had not discovered the revolver Ex. Y-1 it was not possible for the prosecution to plant any revolver and put it up as one from which the bullets Exs. GG-1 GG-2 and GG-3 were fired. It is therefore evident that the disco- very made by the accused No. 1 is absolutely reliable. ( 60 ) IN this connection it is also to be noted that the accused No. 5 had made certain discoveries. We have accepted the said disco- veries for the reasons stated hereinbelow. Exh. FF-18 and FF-19 which are marks given by the Expert are revolver cartridge cases. These empty cartridge cases were examined by Dr. Abraham. The firing pin marks on these empties were compared with the firing pin marks on the test cartridges test fired from the revolver Exh. Y-1. and both the barrels of Et. FF-3. The characteristic features of the firing pin marks on E%h. FF-18 and FF-19 were similar to those on the test empties test fired from the revolver Ex. Y-1 thereby showing that Exh. FF-18 and FF-19 have been fired from the revolver Ex. Y-1. This is one more circumstance to show that the revolver disco- vered by the accused No. 1 had been used for firing the bullets Exs. GG-1 GG-2 and GG-3 for which the empty cartridge cases in respect of two were Exs. FF-18 and FF-19. Incidentally this aspect of the matter also proves the inter-connection between the accused No. 1 and the accused No. 5. The trial Judge has given reasons to accept the discovery by the accused No. 1 with which we agree. No further arguments were advanced before us than those which were advanced before the trial Judge. . . . . Incidentally this aspect of the matter also proves the inter-connection between the accused No. 1 and the accused No. 5. The trial Judge has given reasons to accept the discovery by the accused No. 1 with which we agree. No further arguments were advanced before us than those which were advanced before the trial Judge. . . . . . . . . . . . . . ( 61 ) THE result of the aforesaid total discussion of the incident of murder of Santoksing is that we find the accused No. 1 guilty of committing murder of Santoksing for which he is regally convicted by the trial Judge under section 302 of the Indian Penal Code. We confirm that finding of the trial Judge. Since we have not believed Mangalbhai Gopalbhai and Gajanand Pundiba Gardanwal the accused No. 6 stands exonerated from the substantive charge of murder of Santoksing under section 302 of the Indian Penal Code. . . . . . . . . . . . ( 62 ) WE have examined each of the eye-witnesses to the second incident of murder of Harising as well as the corroborative medical evidence. We have shown above that we can safely rely on the evid- ence of Amarsing Kuldipsing and Jasbirsing and in our opinion the medical evidence substantially corroborates their deposition so far as the causing of bullet injures to Harising is concerned. ( 63 ) IN the result we do hold accused No. 1 liable for the murder of Harising and he must stand convicted for the offence punishable under section 302 of the Indian Penal Code. We further hold accused Nos. 1 2 3 4 5 6 and 10 11 and 12 liable for the offence punish- able under section 302 read with section 120b of the Indian Penal Code for the murder of Harising. It is true that Harising may not have been the main target of the conspiracy as were Santoksing and Biharilal. Nevertheless Harising came to be assailed as lie intercepted the-execution of the conspiracy. Assailing Harising as not such an act which can be considered as far removed from the aim of conspi- racy. In other words it was incidental to the implementation of the conspiracy that Harising was attacked and it is for this reason that we hold accused Nos. Nevertheless Harising came to be assailed as lie intercepted the-execution of the conspiracy. Assailing Harising as not such an act which can be considered as far removed from the aim of conspi- racy. In other words it was incidental to the implementation of the conspiracy that Harising was attacked and it is for this reason that we hold accused Nos. 1 2 3 4 5 6 and 10 11 and 12 liable under section 302 read with section 120b of the Indian Penal Code. We are supported in our view by the case of Yashpal Mittal v. The State of Punjab AIR 1977 Supreme Court 2433 Head-note (A) therein runs as under :"the offence of criminal conspiracy under sec. 120-A is a distinct offence. The very agreement concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the cons- piracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of then must be interest. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to others. The only relevant fact is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspi- rators. Even. if some steps are resorted to by one or two of the conspirators without the knowledge of the others it Will not affect the culpability of those others when they are associated with the object of the conspiracy. " ( 64 ) THE accused Nos. 1 to 6 with a breakneck speed proceeded in rickshaws for the third murder which appears to have been inclu- ded in their plan. The third murder is that of Biharilal Jagdishbhai Sharma near Rohit Circle Khokhra-Mehmedabad. It was committed at about 4-30 P. M. on 29-8-1983. " ( 64 ) THE accused Nos. 1 to 6 with a breakneck speed proceeded in rickshaws for the third murder which appears to have been inclu- ded in their plan. The third murder is that of Biharilal Jagdishbhai Sharma near Rohit Circle Khokhra-Mehmedabad. It was committed at about 4-30 P. M. on 29-8-1983. ( 65 ) HAVING examined the medical reports we may further examine the discovery of muddamal Article No. 81 discovered by accused No. 1 We have noted about the discovery of revolver by the accused No. 1 earlier. Accused No. 1 had discovered a knife in the same discove- ry. For this matter we may once more consider the testimony of panch witness Valjibhai Ranchhodbhai (P. W. 24 Exh. 121 ). We have referred to his evidence above and we shall not repeat it here. But suffice it to say that according to him the accused No. 1 some- where on the Sarkhej Road discovered a bag and from that bag was found a revolver and a knife. We have dealt with the points raised by the defence as regards this discovery. We do not find that these points prove that the discovery was not a bona fide one. Considering the fact that the accused No. 1 took a panch and the party to about 15 to 20 paces on the left side of the road leading to Sarkhej and the further fact that there were grown one-foot high grass we do not accept the suggestion that this was a place easily accessible to others and that anybody else could hate planted the weapons there. On the other hand as we shall see later the accused No. 1 ran away to Muli from the last scene of occurrence and that if he was to go to Muli it was by this road that he must have travelled. The conceal- ing of the weapons therefore on left-hand side of the road is thus quite probable. We further found by examining the evidence in derail that the Ballistics Expert connected the revolver discovered by the accused No. 1 with a specific bullet found from the body of Santoksing. The planting of weapons therefore becomes rationally unacceptable on account of the opinion of the Ballistics Expert. We further found by examining the evidence in derail that the Ballistics Expert connected the revolver discovered by the accused No. 1 with a specific bullet found from the body of Santoksing. The planting of weapons therefore becomes rationally unacceptable on account of the opinion of the Ballistics Expert. If the discovery of revolver thus becomes an established fact the same should be so of the knife as well since both were discovered in the same discovery. Mr. Chauhan the Investigating Officer has referred to discovery by accused No. 1 in paragraph 8 of his deposition. He has stated that to the knife he had given Muddamal Article No. 81. At the time of discovery it was sealed in the presence of Panchas. We do not find any serious challenge to this discovery in the cross- examination of Mr. Chauhan. ( 66 ) VALJIBHAI has stated that the knife which was discovered by accused No. 1 had blood-stains and a rust stain on it. This knife (Exh. 81) was sent for serological report by the Investigating Officer. So also vide deposition or Dr. Dipakkumar Patel the blood sample of Biharilal was taken by him and he had sealed it in a bottle. It was given muddamal Article No. 91. It bore a label written by him and signed by him. This bottle was handed over by him to Police Constable. Similarly blood-stained clothes of Biharilal were seized by. Police under a Panchnama prepared in presence of Bhupendra which Panchnama is Exh. 132. Now these blood-stained clothes of Biharilal and blood of Biharilal were sent for serological report and it is found that the blond on those articles was human and of group `ab. Now the knife which was discovered by the accused No. 1 in presence of Valjibhai i. e. Muddamal Article No. 81 bearing Police Mark J was also sent for serological report and the blood was disco- vered to be human blood of group AB. Thus this discovery connects the accused No. 1 with the knife with which he had given blows to Biharilal which led to his death. Thus there is clinching corroboration to the evidence of eye-witnesses Nandlal and Ramesh. ( 67 ) THERE is discovery made by accused No. 4 also. In this connection we may first consider the evidence of Kantilal Manilal Patel (P. W. 20 Exh. Thus there is clinching corroboration to the evidence of eye-witnesses Nandlal and Ramesh. ( 67 ) THERE is discovery made by accused No. 4 also. In this connection we may first consider the evidence of Kantilal Manilal Patel (P. W. 20 Exh. 111) This witness is running a hotel by name `rajkamal at Visnagar. On 29-8-1983 accused No. 4 and two other persons with him had gone for supper to this hotel at about 9. 30 P. M. The witness has stated that he knows accused No. 4 for the last about It years since accused No. 4 belongs to Kansa. The witness has further stated that on 1-9-1983 at about 7-00 P. M. Bachu Soma with some other persons had gone to his hotel. The other person who was with Bachu Soma had gone with accused No. 4 to his hotel on 29 Bachu Soma borrowed Rs. 100. 00 from this witness on 1 and told him that he would repay that amount to him through the accused No. 4. The police-statement of this witness was recorded on 6-9-1983. This witness has identified Bachu Soma in the identification parade. He had identified accused No. 4 Jayanti in the Court. From this witness one thing has been taken out in the examination in-chief that accused No. 4 belonged to Kansa. This fact is not challenged we also believe this witness since there is no cogent reason shown to us by the defence as to why he should be disbelieved. Another fact which comes out from the deposition of this witness is that on the very night of the incident accused No. 4 had gone to Visnagar which is situated not far from Kansa. In the background of this evidence of Kantilal Manilal we shall now examine the discovery made by accused No. 4 at Kansa. The panch witness is Ismail Babubhai (P. W. 22 Exh. 115 ). He has stated that on 6-9-1983 at about 6-00 in the morning he was called at the Crime Branch office. Accused No. 4 was present there. He should his willingness to show the weapons. The police party accused No 4 and the panch witnesses namely himself and the other Panch Parsho- ttambhai Bhanjibhai Gohil had started in a Police Van to go to Kansa near Visnagar. Accused No. 4 was present there. He should his willingness to show the weapons. The police party accused No 4 and the panch witnesses namely himself and the other Panch Parsho- ttambhai Bhanjibhai Gohil had started in a Police Van to go to Kansa near Visnagar. When the Police Van reached Kansa accused No. 4 took the party on a Kuchha road and after proceeding about 20 to 25 paces he took out a cotton bag from a cactus plant. The cotton bag contained one country-made pistol and one knife. There were three cartridges. All of them were separately sealed and the signatures of the Panchas were taken on them. The country made pistol alias Tamancha was given muddamal Article No. 7t The cartridges were given muddamal Article No. 80 and knife was given muddamal Article No. 64 Muddamal Article No. 79 was given Mark AA By Police and Ballistics Expert had also given the same mark AA. ( 68 ) NOW we may refer to the evidence of Bhupendrakumar Hargovinddas (P. W. 28 Exh. 131) Panch of the recovery and scene of offence Panchnama of the murder of Harising. He has stated in his evidence that one empty cartridge was recovered from the scene of occurrence of Harisings murder. Similarly he has stated regarding the recovery of articles from the place where Biharilal was murdered. He has stated that one cracked bullet one wad of red colour and one wad of white colour were found from a distance of about one foot from the scene of occurrence. ( 69 ) THE Tamancha which was discovered by accused No. 4 at Kansa was found by the Ballistics Expert from Parcel No. 37 and it is given Exh. AA. We have seen that according to Bhupendrakumar from the scene of offence of Harisings murder there were found one cartridge and small pieces metal which were described by the Investigating Officer as cushion. These articles recovered from both the scenes of offences were seized by the Police and they were given muddamal Articles Nos. 28 29 3 31 32 16 and 17. Article 16 is the empty cartridge found from the place where Harising was murdered and is given Mark V by the Police and Va by the Ballistics Expert. He has stated that Exh. `va is KF 12 bore cartridge case having indentation mark on the percussion cap. 28 29 3 31 32 16 and 17. Article 16 is the empty cartridge found from the place where Harising was murdered and is given Mark V by the Police and Va by the Ballistics Expert. He has stated that Exh. `va is KF 12 bore cartridge case having indentation mark on the percussion cap. He has given the result of analysis of Exh. Va as under Vide Exh. 245:" Ex. Va is a tired empty K. F. 12 bore shot gun cartridge case. The firing pin mark on the cap of Ex. Va was examined and was compared under a comparison microscope with the firing pin mark on the test fired cartridges test fired from Z1 AA and FF1. The characteristic features of the firing pin mark on Ex. Va and Ex. AA were similar thereby showing that Ex. Va has been fired from Ex. AA". Similarly so far as Exs. Vc and Vb are concerned it is stated that The result of analysis of wads of 12 bore shot gun cartridges. These wads are similar to the wads of K. F. 12 Bore shot gun cartridge. The result of analysis regarding Ex. Va is very specific. In his evidence Dr. Abraham has deposed at paragraph 15 his opinion regarding the connection of Ex. Va with Ex. AA. Thus the conjoint reading of the discovery Panchnama (Exh. 118) read with the evidence of Ismail Babubhai (Exh. 115) and Panchnamas Exhs. 132 and 133 with the opinion of Ballistics Expert Dr. Abraham in unmistakable terms involve the accused No. 4 in the conspiracy and lends unanswerable corroboration to the eye-witnesses. If we disbelieve the discovery made by the accused No. 4 then the question is how could the investigating officer recover a Tamancha which is proved by its conn- ection with the empty cartridges to have been used in the commi- ssion of the offence ? Thus there is no doubt about involvement of accused No. 4 in the commission of the crime ( 70 ) WE may now discuss the discovery made by accused No. 5. The Panch witness for this discovery is Himatbhai Somabhai Patel (P. W. 40 Exh. 173 ). He was called as a Panch witness at about 9-45 A M. on 12-9-1983. The other Panch witness is Vinod Jinabhai Gajjar. The Panch witness for this discovery is Himatbhai Somabhai Patel (P. W. 40 Exh. 173 ). He was called as a Panch witness at about 9-45 A M. on 12-9-1983. The other Panch witness is Vinod Jinabhai Gajjar. Accused No. 5 Vasudev Nathalal Joshi was present At his instance the police party and the Panchas started in a Police Van and went to Jetpur near Gondal. Vasudev asked to stop the Police Van near a culvert situated near Railway Crossing at Jetpur. There under a stone he took out one bag from which he took out two Tamancha (country made pistols) one of which was double barrelled. Further 18 small and 4 big cartridges were produced. In addition to that there were five used cartridges. Besides this there was nothing in the bag. The articles which were discovered were given Muddamal Articles Nos. 84 to 90. The Panchnama is Exh. 174. ( 71 ) THIS witness is cross-examined. His evidence is challenged on the ground that before they started in the Police Van they knew that the discovery was to be made at Jetpur by accused No. 5. They also knew that the discovery was to be made from below the stone. This does not affect the testimony of this witness because this infor- mation appears in the context of the circumstances to have been given by accused No. 5 himself. The discovery is not in any way affected if the accused had given information about the place from which the discovery is made before the actual discovery made at the concerned place If accused No. 5 had not shown this place the Investigating Officer could not have discovered these muddamal articles which are after scientific investigation associated with the muddamals used in the incidents. The trial Judge has discussed the evidence of this witness at paragraph 114 of his judgment. He has believed the witness for the reasons stated by him in his judgment with which we agree. We have read the cross-examination of this witness but are not persuaded on that account to discredit the witness. There is no cogent point made out in the cross-examination. The witness has also identified Vasudev Joshi as the accused who had made the discovery in his presence. Article 85 is a double barrelled Tamancha produced by accused No. 5 from Jetpur as shown above. There is no cogent point made out in the cross-examination. The witness has also identified Vasudev Joshi as the accused who had made the discovery in his presence. Article 85 is a double barrelled Tamancha produced by accused No. 5 from Jetpur as shown above. This article was sent under Parcel No. 44 to the Ballistics Expert who has given his own mark FF3 to this double barrelled Tamancha. ( 72 ) NOW we may refer to a broken (cracked as described by us) bullet which was recovered from the scene of occurrence at Rohit Circle (Vide Panchnama Exh. 132-Panch witness Bhupendrakumar Hargovinddas Exh. 131 ). That broken bullet was given Mark U. Ballistics Expert Dr. Abraham has deposed that he compared the marks on those test-fired bullets test-fired from Mark Y1 and Mark FF3 and found that scratches and characteristics thereof that were found on the disputed bullet Mark U were similar to the characte- ristics that were found on the bullet fired from the left barrel of muddamal Article 85. According to the opinion of the expert mudda- mal Article 3 which is recovered from the Rohit Circle was fired from left barrel of the revolver produced by accused No. 5 Vasudev Joshi from Jetpur Nala. This evidence unquestionably associates accused No. 5 Vasudev Joshi with the incident that occurred at the Rohit Circle and thus he is proved to be one of the conspirators. The result which is arrived at after scientific test corroborates the account of the eye-witnesses particularly Nandlal and Ramesh. ( 73 ) SO far as the recovery from accused No. 6 Juvansinh and accused No. 3 Bhimrao is concerned the relevant Panch witnesses are Nathubhai Mahhamadbhai Malek (P. W. 41 Exh. 175) and Munir- khan Ismailkhan Pathan (P. W. 45 Exh. 205 ). It is alleged that Police recovered a revolver muddamal Article 64 and two cartridges from accused No. 6 Juvansinh. The Police also claimed to have recovered from accused No. 3 Bhimrao a pistol muddamal Article 56 and two cartridges being muddamal Article 57. We may note here that they had arrested Juvansinh and Subhash together and they had arrested accused No. 3 Bhimrao and accused No. 7 Ashokkumar. Police does not claim to have recovered anything from accused Nos. 7 and 8. We may note here that they had arrested Juvansinh and Subhash together and they had arrested accused No. 3 Bhimrao and accused No. 7 Ashokkumar. Police does not claim to have recovered anything from accused Nos. 7 and 8. The articles recovered from accused No. 6 were given Mark `z by Police and were sent under Parcel No. 36 to Ballistics Expert who gave his Mark Z1 to the revolver. Similarly to pistol recovered from accused No. 3. Bhimrao Police had given Mark X and was sent to the Ballistics Expert under Parcel No. 34. He had given his Mark X1 to the Police Mark X. Now as per the result of the analysis of the Ballistics Expert it could only be proved that these articles were used prior to their receipt in the laboratory but that proves nothing so far as we are concerned. Consequently therefore we do not discuss any further the recoveries made from accused Nos. 3 and 6 That would only mean that these recoveries are neutral in the sense that they do not provide any corroboration to the eye-witnesses. But that is all. That does not disprove the evidence of the eye-witnesses whom we have believed. ( 74 ) IN the result we hold accused No. 1 substantively liable for the murder of Biharilal and we convict him for the offence under sec. 302 of the Indian Penal Code. ( 75 ) WE hold accused Nos. 1 to 6 and 10 to 12 liable for the murder of Biharilal under sec. 302 and sec. 120b of the Indian Penal Code read together. . . . . . . . . . . . . . . . . . . . . ( 76 ) AFTER the accused Nos. 1 to 6 completed their design to commit murders they seem to have parted company. ( 77 ) AT about 4-30 P. M. on 29-8-1983 he had parked his rickshaw near Anupam Theatre. By that time four persons came and engaged his rickshaw to go to Kankaria. He took the passengers to Kankaria Football Ground where they alighted and relieved the rickshaw. He was given a five rupee note for the hire charges though the hire charges amounted to Rs. 2-55 ps. only. Those four persons did not wait to take the change. He identified the accused No. 4 at the time of identification parade. He took the passengers to Kankaria Football Ground where they alighted and relieved the rickshaw. He was given a five rupee note for the hire charges though the hire charges amounted to Rs. 2-55 ps. only. Those four persons did not wait to take the change. He identified the accused No. 4 at the time of identification parade. He has stated that he could not identify other persons. In cross-examination he has given the reasons for identifica- tion of accused No 4 by stating that it is that person namely accused No. 4 who had given to him a five rupee note. It is likely that he would remember such a person who had given him a five rupee note and had not waited to take the change back although the hire amo- unted to almost half of that amount. ( 78 ) THE importance of this witness lies in two respects. One is that he has identified accused No. 4 as a person who travelled in his rickshaw and the second is that later on his rickshaw was examined by Jitendra Umiyashankar Thakar (P. W. 52 Exh. 229) a Junior Scientific Assistant at Forensic Science Laboratory. He had examined rickshaw No. GRT 3882. He had carried out the nitrate test on different parts of the rickshaw where passengers normally seat. He found the presence of nitrate on the rod which is fixed in the hood on the left-hand side. The result of nitrate test was positive. Dashara- thsing was cross-examined on this point. It was tried to find out whether the rickshaw was washed on the night of 29-8-1983. The nitrate test was carried out on 30-8-1983. Dasharathsing replied that the work of washing the rickshaw is normally handed over to service boys who are given a rupee per rickshaw. The cross-examiner has not taken the risk of specifically asking the witness whether in the night of 29-8-1983 he had got the rickshaw washed. The question is of usual practice which does not necessarily mean that rickshaw was washed on the night of 29-8-1983. In the light of this evidence it is difficult to disbelieve Mr. Thakar who is an independent witness. In his cross-examination Mr. Thakar has stated that if the nitrate has once struck on the object it would lie intact for five days. of course if the object is thoroughly cleaned with water nitrate would disappear. In the light of this evidence it is difficult to disbelieve Mr. Thakar who is an independent witness. In his cross-examination Mr. Thakar has stated that if the nitrate has once struck on the object it would lie intact for five days. of course if the object is thoroughly cleaned with water nitrate would disappear. If it is cleaned dry with a cloth sometimes nitrate stays. He has further stated in his cross-examination that if a person who has used a fire-arm sits in a vehicle and if his hands or any part of the body smeared with nitrate touch any part of the vehicle the nitrate would be transmitted to such parts. He has further stated that he has exa- mined rickshaw No. GRT 3882 for about 1/2 hours. Thus there is nothing in his cross-examination to discredit the witness. Thus the rickshaw bearing No. GRT 3882 stands identified as one in which some of the accused must have travelled soon after the incident with the result that the evidence of Dasharathsing becomes credible. The association of accused No. 4 in the conspiracy is thus further established. ( 79 ) ACCUSED No. 1 Babu Bhayya also made good his escape from the Rohit Circle after fatally injuring Biharilal. We shall follow his track now. 240 Amrutlal Ratilal Makwana (P. W. 16 Exh. 78) a resident of Maninagar is examined by the prosecution. Amrutlal is employed as an Auditor in the office of the Accountant General The name of his wife is Linaben who is employed in Bank of Baroda. Amrutlal has stated that he has an ambassador car bearing No. GJF 206. It runs in the name of his wife. He owns that car since 1981. ( 80 ) ON 29-8-1983 he left his office at 5-30 p. m. His wife had gone to his office and both were returning together in their car. The car was self-driven. The witness was returning to his house via Victo- ria Garden. He reached near Khamasa Gate and further near Gol Limda Babu Bhayya met him. He was proceeding in a rickshaw from the opposite direction. Babu Bhayya stopped his car and told him to send away his wife because he needed his car. The witness agreed and sent away his wife home. He reached near Khamasa Gate and further near Gol Limda Babu Bhayya met him. He was proceeding in a rickshaw from the opposite direction. Babu Bhayya stopped his car and told him to send away his wife because he needed his car. The witness agreed and sent away his wife home. Thereafter Babu Bhayya entered the car and told him that he had committed two or three murders but he did not name them nor did he indicate the place where he had committed the murders. The witness then got out of the car and entrusted it to Babu Bhayya. The witness then went home by a rick- shaw. Having gone home he did not talk anything to his wife. The car had not reached his house till he had left for office the next day morning. At about 12-00 noon the next day he had received a telephone message from his wife that the car had reached home and that it was taken by the help of one Anand. . ( 81 ) SUFFICE it to say here that the evidence of the witness that he had lent his car is fortified by two facts (1) that the petrol was filled in the car and there is evidence to that effect which we shall soon discuss and (2) Mr. Thakar had examined this car and he bad found positively that there were traces of nitrate at several significant spots in the car. The prosecution story is further fortified by the probability of the sequence of events. As we shall see later the prosecution has succeeded in proving by other evidence that accused No. 12 had substituted accused No. 1 Babu Bhayya for accused No. 11 Natu Patel and that the substitution took place at about 9-00 P. M. on the day of the incident. It is proved by direct evidence that accused No. 1 killed three persons at Ahmedabad between 4-00 P. M. and 4-30 P. M. It is therefore a proved fact by all evidence taken together that Babu Bhayya left Ahmedabad to go to Muli to be substituted for accused No. 11 at Muli Police Station and all this was done in a pre-planned conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . ( 82 ) AS pointed out above the lending of the car gets corrobo- ration from the evidence of Rajnikant Maneklal (P. W. 30 Exh. 136 ). He is working as a clerk on Swaminarayan Petrol Pump situated near Viramgam. His duty hours are from morning 8-00 till 7-00 P. M. He has produced his bill book. The relevant bill is No 29348 (a cash-memo) dated (30-8-1983) which shows that 38 litres of petrol was filled in an ambassador car bearing No. 2016. This is deposed on oath by witness Rajnikant. He has stated that petrol was filled in by his worker. The original bill was given to the customer. The original and the carbon copy bear his signature. The significant part of his evidence is that petrol was filled in between 6-00 P. M. and 7-00 P. M. on 29-8-1983 but the date on it is put as 30-8-1983 because they close the account every day at 6-00 P. M. and since petrol was filled in the ambassador car bearing No. 2016 after the closure of account the date of the next day is put in the bill. The witness is cross-examined and an attack was made to disprove his story for placing the date of the next day on the bill. It appears that the witness has property stood the test of cross-examination. He has denied that the bill was given to the customer on 30-8-1983 and that the petrol was also filled in on 30-8-1983. ( 83 ) RAJNIKANT Maneklal is by all accounts an independent witness. No question is asked to him to suggest that he was interested in the prosecution. No enmity is even suggested. We do not disbelieve this witness when he says that the date of the next day was put in the bill as the account of 29-8-1983 was closed at 6-00 P. M. on that day. This is their usual practice. So the evidence of this witness gives a corroboration to the fact that Amrutlal had lent his car to accused No. 1 to go to Muli. ( 84 ) WE have noted that Amrutlal has categorically stated in his evidence that he owns the car which is an ambassador car bearing No. GJF 2016. On the petrol bill is found No. 2016. ( 84 ) WE have noted that Amrutlal has categorically stated in his evidence that he owns the car which is an ambassador car bearing No. GJF 2016. On the petrol bill is found No. 2016. Thereafter the car was examined by Jitendra Thakar. Junior Scientific Assistant working in the Forensic Science Laboratory on 1-9-1983. He has specifically stated the number of the car as GJF 2016 of blue colour and of Ambassador make which he had examined at the instance of Crime Branch on 1-9-1983 at night. He had examined the car from inside and outside and he had carried out the necessary test. He found the presence of nitrate on the outside handle of the drivers door. The also found nitrate from the horn ring fixed on the steering wheel. He also found nitrate from the inner handle of the drivers door So also the nitrate was found from the triangular glass window fixed in the drivers door. Nitrate was also found from outside the glove compartment and was found also on the ignition switch. He had carried out the test of three other switches also and found ni- trate from all the four switches i. e. to say including the ignition switch. He had submitted his report in this regard which is at Exh. 230 He has given his opinion and his opinion at paragraph 10 (2) is important. If a person enters a car after using fire-arm and uses the car thereafter nitrate would be found from all places which he would touch in the car. This witness has been referred to by us earlier also in respect of the examination of the rickshaw of Dasha- rathsing bearing No. GRT 3882. There is nothing cogent in the cross- examination which would make us distrust this witness and the results that he had recalled Thus the ambassador car bearing No. GJF 2016 is connected here and this leads us to rely on the evidence of Amrutlal when he stated that he had lent his car to the accused No. 1. The evidence of Thakar read with the evidence of Amrutlal lead to the inference that although alphabetical letters are not found in the petrol bill the car referred to therein is the same as belong- ing to Amrutlal. The evidence of Thakar read with the evidence of Amrutlal lead to the inference that although alphabetical letters are not found in the petrol bill the car referred to therein is the same as belong- ing to Amrutlal. ( 85 ) THE fact remains that Amrutlals car returned to him and defence has not given any explanation or an alternative version. We believe Gunvantlal therefore to the extent that be has stated that accused No. 11 had gone to his house and had handed over the key of the car to him between 7-30 and 8-00 in the morning. The return of the key of the car in the morning stands corroborated by the evidence of Anand. A significant fact may be noted. One is that Gunvantlal admits to have known Natu Patel for the last 2 to 3 years. We shall see a little later that Natu Patel left Muli Police Station at about 9-00 P. M. The probability therefore is that he had returned the car to Gunvantlal in the morning. ( 86 ) THE prosecution evidence thus shows that accused No. 1 reached Muli Police Station having fled from the last scene of inci- dent at Rohit Circle Khokhra-Mehmedabad. At this stage we pick up the story of accused No. 12 which we had brought till the point of time when he returned to Muli at 6-00 P. M. from Surendranagar. We have considered the evidence of Udesing Annadubha (P. W. 35 Exh. 155) and Ratansing Jivaji (P. W. 43 Exh. 196) as regards the filing of the prosecution case near Kukda village and what happened thereafter till 6 P. M. on the same day. We shall again refer to these two police constables namely Udesing and Ratansing. Udesing has stated that after they reached Muli Police Station at 6-00 P. M. the accused was put up in the lock up and Ratansing was kept at the lock up as a sentry. Udesing then left Muli Police Station for taking tea and he returned to the police station within half an hour. He was at the Muli Police Station till about 9-00 P. M. and then he went to Surendranagar. He had identified accused No. 11 as the accused in the liquor case in the identification parade. Udesing then left Muli Police Station for taking tea and he returned to the police station within half an hour. He was at the Muli Police Station till about 9-00 P. M. and then he went to Surendranagar. He had identified accused No. 11 as the accused in the liquor case in the identification parade. We may only note for the present the statement of Udesing that at about 9-00 P M. he left Muli Police Station to go Surendranagar. . . . . . . . . . . . . . . . ( 87 ) WE have noted above that Udesing had left Muli Police Station for taking tea and had returned to Police Station within half an hour or so. Similarly Ratansing had left for taking his supper at about 8-15 P. M. on that day and returned to Muli Police Station at 10-00 P. M. We shall see here under that Dilawar was also not present during this period. It was easy therefore for accused No. 12 to substitute accused No. 1 for accused No. 11 in this vacuum. . . . . . . . . . . . . . . . ( 88 ) WE have expressed our opinion in the light of the prose- cution evidence that some time between 8-45 P. M. and 9-00 P. M. on 29 accused No. 12 substituted accused No. 1 for accused No. 11 Natu Patel. If we connect this timing with the other-evidence namely of Dr. Gunvantlal (P. W. 33 Exh. 152) and Anand (P. W. 21 Exh. 112) it becomes clear that accused No. 11 took the car of Amrutlal by which accused No. 1 had reached Muli and reached Ahmedabad in time before 7-00 A. M. We have examined the evidence of Dr. Gunvantlal Nagardas and Anand Tribunal. Anand has stated that Linaben wife of Amrutbhai had gone to him between 7-00 A. M. and 8-00 A M. on 30-8-1983. We have reached a conclusion that accused No. 11 had left Muli with the car of Amrutlal and the car came back to Amrutlal through Anand in the morning (i. e. to say between 8-00 A. M. and 9-00 A. M.) on 30-8 1983. ( 89 ) WE have examined the prosecution case in the chronological sequence. We have reached a conclusion that accused No. 11 had left Muli with the car of Amrutlal and the car came back to Amrutlal through Anand in the morning (i. e. to say between 8-00 A. M. and 9-00 A. M.) on 30-8 1983. ( 89 ) WE have examined the prosecution case in the chronological sequence. To continue that sequence we will examine what happened in the morning of 30-8-1983 at Muli Police Station. Accused No. 1 was taken to Navinbhai Shukla (P. W. 29 Exh. 125 ). Mr. Shukla was Judicial Magistrate First Class at Muli from 15-6-1981 onwards. He has deposed that he knew accused No. 12 who was in charge of Muli Police Station. At about 9-00 A. M. He had gone to the Court where accused No. 12 and two Police Constables brought accused No. 1 as an accused in a prohibition case. He has identified accused No. 1 in the the Court. Accused No. 1 had complained that he was beaten by the Police. Mr. Shukla recorded his statement and sent him for treatment at Primary Health Centre Muli. Since Mr. Shukla had read the newspaper in the morning he expressed his apprehension that the accused of the prohibition case namely accused No. 1 must have been involved in the triple murders at Ahmedabad in the previous evening. Accused No. 12 wrote a note to Mr. Shukla that accused No. 1 may not be released on bail (Vide Exh. 129 ). Mr. Shukla is cross-examined on the point as to how he had reached his court early in the morning. Mr. Shukla explained that first the Police had produced accused No. 1 at his residence but since accused No. 1 made a grievance about beating to him by the Police he asked the Police to bring the accused in the Court. He has clarified that when accused No. 1 was produced at his residence accused No. 12 was not present. Now this part of the cross-examination is to no effect. There is no reason to disbelieve Mr. Shukla. ( 90 ) SINCE the accused No. 1 had made a grievance about having been beaten by Police vide his statement (Exh. 12) he was sent for medical treatment to Government Medical Officer. There is an order made to that effect on Exh. 12. It is also stated on Exh. There is no reason to disbelieve Mr. Shukla. ( 90 ) SINCE the accused No. 1 had made a grievance about having been beaten by Police vide his statement (Exh. 12) he was sent for medical treatment to Government Medical Officer. There is an order made to that effect on Exh. 12. It is also stated on Exh. 126 that accused No. 1 had stated in his written statement (Exh. 127) that he did not want to file complaint against P. S. I. Muli at that stage. The injury certificate of accused No. 1 is at Exh. 128 wherein the injuries are described as under :local Examination :- There is abrasion over the middle of the back of left forearm. Size 3 x 1/2. Super- ficial to the skin. Pure in colour. Blood clotted over the abrasion. Swelling over the above part. Age of injury : Within twenty four hours. Nature of injury : Simple. Cause of injury : By blunt hard substance. Approx. period of recovery : Within a week. Relying on these injuries it is argued by the defence that it was this accused who was arrested at Kukda. It is in prosecution evidence itself that accused No. 12 had given a stick blow to the accused and this is corroborated by Udesing Annadubha (P. W. 35 Exh. 155 ). The further argument is that if the person arrested at Kukda was accused No. 11 how would accused No. 1 suffer a stick mar. Slick mark is of course proved by medical evidence seen above. The trial Judge has tried to explain this situation by making a conjecture that at the scene of Harisings murder. Jasbir had taken up a brickbat and had thrown it towards accused No. 1 and it is possible that accused No. 1 suffered a minor injury on that account. This conjecture does not seem to be sound inasmuch as Jasbir himself has stated that accused No. 1 had dodged this brickbat and that it had not hurt him. It does not appear from the prosecution evidence that accused No. 1 was injured on his left arm in any one of the three incidents. It is not possible to attribute specifically as to who had injured accused No. 1 on his left arm. It does not appear from the prosecution evidence that accused No. 1 was injured on his left arm in any one of the three incidents. It is not possible to attribute specifically as to who had injured accused No. 1 on his left arm. At the same time there is abundant evidence in the prosecution case which by this time we have discussed above in details which goes to show that the person who was arrested at Kukda was not accused No. 1 but accused No. 11. There is ample evidence in the prosecution case in the nature of eye- witnesses who have identified accused No. 1 as a leading participant in all the three murders committed at Dakshini Society and Khokhra- Mehmedabad between 4-00 P. M. on 29-8-1983. It is impossible to discard all this evidence and to accept the absence of accused No. 1 at the time of the incident only on the evidence of an injury on his left arm which according to him was inflicted on hint by accused No. 12 at Kukda in the morning of 29-8-1983. It is a minor and superficial abrasion and it could have been inflicted at any suitable time prior to his production before the Judicial Magistrate Mr. Shukla. It could as well be self-inflicted as a part of a clever design. ( 91 ) THUS we have completed the substantial part of the prose- cution case. . . . . . . . . . . . . . . . ( 92 ) AT this stage we may discuss the general arguments advanced by both the sides before us. . . . . . . . . . . . . . . . ( 93 ) MR. Shethna attacked in general all the prosecution witnesses and particularly the eye-witnesses on the ground that they were highly partisan witnesses. they deposed against the accused as they wanted to befriend Jasbir. All of them had an eye on accused No. 1 and they involved accused Nos. 2 to 6 as it suited them. It is true that some of the important eye-witnesses were known to Jasbir. It is also true that some of the witnesses are auto-rickshaw drivers. We have considered their evidence with necessary caution and remaining conscious all the time that we may not err in relying on them. 2 to 6 as it suited them. It is true that some of the important eye-witnesses were known to Jasbir. It is also true that some of the witnesses are auto-rickshaw drivers. We have considered their evidence with necessary caution and remaining conscious all the time that we may not err in relying on them. Some of the witnesses could not help being known to Jasbir as they happened to reside in the same locality. The witnesses Jasbir and the opposite party consisting of the accused are fairly of an even social level and since they are residing in the vicinity of one another they would inevitably be known to one another. In fact it is for this reason that they have been able to identify the accused On the other hand we must also bear it in mind that the important eye-witnesses are natural witnesses at the place where the incident occurred. They had no personal grievance against accused No. 1 and his associates. There is no suggestion that Jasbir brought any unlawful pressure on them. Their account has been found consistent with the prosecution evidence in general and their depositions have been consistent with one another. Again their evidence has been corroborated in material particulars by medical evidence discovery evidence and evidence of Ballistics Expert Mr. Abraham and Mr. Thakar. It is not in consonance with ultimate justice that even though they have passed through this test their evidence should be discarded totally merely because they happen to know Jasbir. None of them is an interested witness in the sense that he was to gain or lose by the conviction of the accused. They are not in that sense partisan witnesses. The important witnesses like Kuldipsing Amarsing Jasbirsing Ramesh and Nandlal are not chance witnesses. Their presence is natural and explainable. Mr. Shethna has failed to convince us that we should disbelieve these eye-witnesses on the ground that they were known to Jasbir. But for the reasons stated above. Mr. Shethnas argument is not tenable in the present case. The Supreme Court observed in Masalti v. State of Uttar Pradesh AIR 1965 Supreme Court 202 as under:"there is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested it has to be very careful in weighing such evidence. Mr. Shethnas argument is not tenable in the present case. The Supreme Court observed in Masalti v. State of Uttar Pradesh AIR 1965 Supreme Court 202 as under:"there is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence whether or not evidence strikes the Court as genuine or not the story disclosed by the evidence is probable are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. often enough where factions prevail in villagers and murders are committed as a result of enmity between such factions criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected because it is partisan cannot be accepted as corrects"thus in the view which we are taking of these witnesses we stand fortified by the above observations. ( 94 ) MR. Shethna and Mr. D. K. Shah strenuously argued that the prosecution has not produced any evidence to prove that accused No. 12 was connected with accused No. 1 or accused No 11 or accused No. 10 There is no prosecution evidence that there was meetings of minds amongst them prior to the commission of offences. It was submitted that accused No. 12 had never served in Ahmedabad City. For 18 years he was out of Ahmedabad City though he belonged to Ahmedabad. Since he was out of Ahmedabad for a long time the fact that he belongs to Ahmedabad is not a cogent factor. ( 95 ) WE shall have an occasion to discuss this argument again when we shall separately consider the question of conspiracy. For 18 years he was out of Ahmedabad City though he belonged to Ahmedabad. Since he was out of Ahmedabad for a long time the fact that he belongs to Ahmedabad is not a cogent factor. ( 95 ) WE shall have an occasion to discuss this argument again when we shall separately consider the question of conspiracy. Suffice it to observe at this stage that in a case of conspiracy a direct evidence is not always available to prove the prior acquaintance amongst the conspirators or prior meetings of their minds. Conspiracy is hatched in privacy an (i direct evidence to prove it can hardly be expected. The presence of conspiracy is proved by rational inferences from proved facts. What we have to be wary about is that we may not fall a prey to a fallacious or illogical inference from proved facts. But it cannot be insisted upon that for every alleged fact there must be a proof. In fact we are of the view that this group of conspirators namely accused Nos. 1 10 11 and 12 were known to one another and that there is ample evidence to come to the conclusion that the entire conspiracy was well-designed well-knit and efficiently carried out. We shall discuss this topic in greater details while finally disposing of the question of conspiracy in this case. . . . . . . . . . . . . ( 96 ) MR. Shethna contended that when the clothes of accused Nos. 1 3 and 4 were seized no blood-stains were found on them. However serological report discloses blood-stains on the clothes. Mr. Shethna also contends that there are no marks of use of fire arm. In the first place the prosecution has not advanced any argument against the accused Nos. 1 3 and 4 on the basis of serological report and therefore this evidence becomes neutral. Further if Mr. Shethna wanted to impute malpractice to investigation he should have confronted Mr. Chauhan with this discrepancy before castigating any allegations against investigation No such question is asked to Mr. Chauhan. Since we also do not in any way take into account this evidence for bringing home the guilt of the accused it is not necessary to deal with this argument. We do not accept the allegation in the absence of cross- examination of Mr. Chauhan. Since we also do not in any way take into account this evidence for bringing home the guilt of the accused it is not necessary to deal with this argument. We do not accept the allegation in the absence of cross- examination of Mr. Chauhan that the discrepancy suggests a malprac- tice on the part of the investigation. ( 97 ) MR. Shethna cited the observations at paragraph 7 in the case of Magan Bihari v. The State of Punjab AIR 1977 S C 1091. The observations are as under :"but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of 3 handwriting expert. It is not well settled that expert opinion must always be received with great caution and perhaps none so with more caution that the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. . . "we have considered above the evidence of Jagdish Jethalal Patel (P. W. 32 Exh. 143 ). We have given our reasons for accepting his testimony. The observations cited above have no application to the evidence of this witness more so because there is no question whatever of bringing home the guilt to the accused merely on the strength of opinion evidence of a handwriting expert. . . without substantial corro- boration. the importance of the evidence of the handwriting expert in this case lies in the presence of accused No. 11 at Shivshakti Guest House. In this connection Jivubha has given direct testimony regarding the presence of this witness at Shivshakti Guest house and his evidence is found dependable. He has identified accused No. 11 in the identi- fication parade and that identification also we have upheld for believ- ing the presence of accused No. 11 at the Shivshakti Guest House We have not come to a positive finding only on the proof of the hardwritings of accused No. 11 in the Guest Register as proved by the Handwriting Expert. ( 98 ) SHETHNA cited two judgments in connection with the identi- fication parade. ( 98 ) SHETHNA cited two judgments in connection with the identi- fication parade. He relied upon the following headnotes in the case of Wakil Singh and Others v. State of Bihar AIR 1981 Supreme Court 1392 :"dacoity with murder - Appreciation of evidence-None of witnesses gave ally description of dacoits in their statements or in oral evidence nor gave any identification marks such as stature of accused or whether they where fat or thin or of fair colour or black colour-Only one witness identified dacoits after certain days from T. I. Parade - Conviction cannot be based only on identifica- tion by single witness". Here also we must first point out that we are not basing the convic- tion of any of the accused solely on the basis of identification parade. Secondly these observations have no application to the facts of the present case. In Wakil Singhs case (supra) the dacoity was committed at the house of the complainant at about 8-45 P. M. Some unknown persons had entered the house and assaulted the inmates killing one of them. There was no clear evidence to show that the deceased was actually killed by one of the dacoits in the course of dacoity. The above head-notes are required to be read in the light of these facts. We have different facts before us altogether. We have accepted the identification by Jivubha Ramesh Biharilal and Dasharath. Jivubha had ample opportunity to observe accused No. 11. Ramesh Biharilal knew the accused whom he identified before the occurrence of the incident and Dasharath had reason to remember accused No. 4 because he had given a five-rupee note to him when the hire-charges amounted to Rs. 2-55 ps. only and did not take back the remaining amount. So our acceptance of the evidence of the identiying witnesses is based on special grounds. The head-notes quoted above from Wakil Singles case (supra) therefore do not weaken the inferences that have drawn. Mr. Shethna also relied upon the following observations in Mazdoor v. State of Uttar Pradesh A. I. R. S. C. 295 :" It is seen from the evidence of P. W. 12 that the home guard did not give him the description of any of the culprits when he examined them and that he did not even ask them about it though it is stated in the report Ex. Ka. Ka. 1 that the home guards had seen the culprits thoroughly and identified them. If at the earliest opportunity the home guards did not mention any identifying features of the culprits when they were examined by P. W. 12 it is difficult for us to believe now P. W. 2 could have identified both the applicants nearby two months later on 17-11-1978". The facts are different in our case. Jivabha Ramesh Biharilal and Dasharath had good reasons to identify the accused whom they have in fact identified. Therefore the above case also does not help Mr. Shethna. Mr. Shethna challenged the discoveries made by the accused. We state here that we have accepted the discoveries made by accused No. 1 (on the Sarkhej Road) accused No. 1 (at (Kansa) accused No. 5 (at Jetpur ). We have at length discussed that topic and advanced our reasons for accepting these discoveries. Mr. Shethna wanted us to read paragraphs 10 and 11 of the judgment in the case of Prabhoo v. State of Uttar Pradesh AIR 1963 Supreme Court 1113 In paragraph 10 thereof it is observed that from the more production of the blood- stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood-stained articles had been kept in the house. the appellant might produce the blood-stained articles when interrogated by the sub-Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. This observation with respect is absolutely irrelevant in the set of circumstances before us. We are not basing the conviction on the discovery but as expressly stated above the discoveries are first scrutinised thoroughly and when they are accepted they are accepted only for the purpose of lending corroboration to the accounts of the eye-witnesses. ( 99 ) MR. Shethna he cited the observations at paragraph 15 in the case of Pohahya Motya Valvi v. State of Maharashtra AIR 1979 Supreme Court 1949 In that case the discovery was of a blood-stained spear and as the Supreme Court puts it it was a linchpin of the prosecution case. ( 99 ) MR. Shethna he cited the observations at paragraph 15 in the case of Pohahya Motya Valvi v. State of Maharashtra AIR 1979 Supreme Court 1949 In that case the discovery was of a blood-stained spear and as the Supreme Court puts it it was a linchpin of the prosecution case. The Supreme Court observed that if the recovery of a blood- stained spear is the only important circumstance of an incriminating character and if the authorship of concealment is not clearly borne out by a cogent and incontrovertible evidence but was to be inferred by implication it was difficult to place implicit reliance upon such a discovery. The Supreme Court reasoned that a recovery of a blood- stained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of conceal- mental namely that the appellant who gave the information leading to its discovery was the person who concealed it. The Supreme Court hesitated to accept the connection since the authorship of concealment was doubtful. Now such are not the facts of the present case. So far as the present case is concerned if we accept the Panchnama (Exh. 122) and the evidence of Panch witness Valjibhai Ranchhodbhai Gohil (P. W. 24 Exh. 121) the authorship of concealment is not in doubt. The Panchnama (Exh. 22) is admitted by the deposition of Valjibhai. In the Panchnama the word the weapons used in this offence are placed in brackets and if we read the relevant portion omitting the words written in the brackets then also it becomes clear that the accused has stated that he wanted to show the weapons from the place where he had kept them. This set of circumstances are put to accused No. 1 but he has only denied the allegations of discovery as stated by the witness Valjibhai. He has never stated specifically that he has not concealed the weapons or that the authorship of the concealment of the weapons is falsely attributed to him. But a clinching argument which we have considered above and which we reiterate here to answer Mr. Shethnas objections as regards the genuineness of the recovery made by accused No. 1 that the revolver found by him is proved by Ballistic Expert Mr. But a clinching argument which we have considered above and which we reiterate here to answer Mr. Shethnas objections as regards the genuineness of the recovery made by accused No. 1 that the revolver found by him is proved by Ballistic Expert Mr. Abraham to be the same revolver having the special characteristics from which a specific bullet was fired. We have given the details above while discussing the point. Therefore so far as the discover; made be accused No. 1 is concerned it cannot be assai- led. These facts make the observations of the Supreme Court in Pohaya Motya Valvis case (supra) paragraph 15 inapplicable to the present case. ( 100 ) MR. Shethna cited on the same point another case namely Dudh Nath Pandey v. State of Uttar Pradesh AIR 1981 Supreme Court 911 at page 914 paragraph 15. This is also of no use to Mr. Shethna. In a case of circumstantial evidence different considerations would prevail where the balance of evidence after excluding the testimony of the two eye-witnesses is not of the standard required in cases dependent wholly on circumstantial evidence. In this light it is observed that if a pistol was recovered at the instance of the accused but where the statement accompanying the discovery is lawfully vague to identify the authorship of concealment mere pointing out of the weapons cannot be connected to its actual use. Now so far as the present case is concerned in the first place there is dependable ocular account of the incident. Secondly the authorship of concealment by accused No. 1 is not in doubt and therefore the observations of the Supreme Court would have no bearing to the facts of the present case. Now so far as the discovery made by the accused No. 4 is concerned the authorship of concealment is not in doubt and we do not attribute to him the use of that weapon but the conclusion that we have reached in this regard is that the discovery of a weapon concerned by accused No. 1 lends corroboration to the eye-witnesses who speak about his presence at the places where Harising and Biharilal were murdered and the discovery establishes the connection amongst the accused. The same arguments will apply to the discovery made by accused No. 5. . ( 101 ) MR. Shethna emphasised on the omissions in giving first information report. The same arguments will apply to the discovery made by accused No. 5. . ( 101 ) MR. Shethna emphasised on the omissions in giving first information report. The witness Ghanshyam Ahuja omitted to give the namo of the assailant in the message that he had sent to the control room Ramesh Biharilal did not disclose the names of the accused Nos. 5 and 6 in the information that he gave which is Mark A. Mr. Shethna heavily relied upon these omissions and cited the observation from the case reported in AIR 1975 Supreme Court 1026 Vide paragraph 9. It is observed therein that FIR is a previous statement and can be used for corroboration and contradicting the maker of it. But in that case the FIR was given by the father of the murdered boy to whom all the important facts of the occurrence were known and therefore he was bound to have connected them. Now it is true that the omission to state important facts tend to discredit a witness but all depends upon facts and facts. Ghanshyam Ahuja has stated that he did not give the name of the assailant because the predominant idea in his mind was to call the police at once for Bandobast. Ramesh Biharilal has also omitted to state the names of accused Nos. 5 and 6 in the information that he gave to the police but we have discussed this question above and we have observed that it could very well be due to the strees which he was under. He has communicated other names and may be that he missed the names of accused Nos. 5 and 6. But that apart the First Information Report so far as Santoksings murder is concerned is Exh. 260 and not Exh. 264 which is the information given by Ghanshyamdas Ahuja and so far as Rameshs information is concerned it is not exhibited as first information. It is only given Mark A and we have nowhere relied on it in our judgment. The observations in the above said judgment therefore do not have the effect of damaging the pro- secution case. ( 102 ) MR. Shethna heavily attacked omission to state the name of the accused in the inquest report of Santoksings dead body which was prepared at the Dakshini Society. ( 103 ) MR. The observations in the above said judgment therefore do not have the effect of damaging the pro- secution case. ( 102 ) MR. Shethna heavily attacked omission to state the name of the accused in the inquest report of Santoksings dead body which was prepared at the Dakshini Society. ( 103 ) MR. Shethna referred to the case of Baluka Singh and Others v. State of Punjab AIR 1975 Supreme Court 1962 wherein the prosecu- tion party were inimical to accused and FIR was found to have been written after the inquest report was prepared by ASI and the prosecu- tion-case was discarded on that and other grounds. Mr. Shethnas argument is that the prosecution has concocted Exh. 260 as the First Information Report given by Kanaiyalal at 4-20 P. M. Mr. Shethnas argument is that the first information was given by Ahuja to the Control Room and that was Exh. 264. Mr. Shethnas submission was that Exh. 264 is the real FIR where no name of the assailant is given and that Exh. 260 is concocted later at about 8-00 P. M. after all the information was gathered at the Dakshini Society and after inquest report was prepared. If that be true the observations made in the above case would have a bearing. For the reasons which we have given above we have accepted Exh. 250 as the FIR and we have not accepted the argument that it is a concocted document. In the light of that view of ours the observations cited from the above judgment have no relevance. ( 104 ) MR. Shethna cited Baluka Singhs case (supra) also- for the proposition that inquest report must contain the name of the assailant. the above authority does not support him on that proposition. On the contrary Mr. R. M. Vin cited the case of Podda Narayana and Others T. State of Andhra Pradesh AIR 1975 Supreme Court 1292 which is apposite. It is observed in head note (d) therein. that the proceedings under sec. 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person died under suspicious circum- stances or an unnatural death and if so what is the apparent cause of the death. It is observed in head note (d) therein. that the proceedings under sec. 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person died under suspicious circum- stances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under sec. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. . . . . . . . . . . . . . . . ( 105 ) MR. D. K. Shah emphasised the blows given by accused No. 12 to the accused whom he arrested near Kukda He states that if it was accused No. 11 these stick injuries could not have been found on accused No. 1. We have considered this argument above and we have given reasons for rejecting it. We do not repeat the same discussion here. Mr. D. K. Shah laid great emphasis on the manner of introducing accused No. 1 but deceased Santoksinh to Kanaiyalal. He says that it is absolutely improbable that deceased Santoksing called Kanaiyalal in a bus while Kanaiayalal was distributing tickets and introduced accused No. 1 to him. We do not think that it is improbable. Santoksing and Kanaiyalal were colleagues many a time and they have talked about the bad relationships between accused No. 1 and the family of Santok- sing. There is nothing improbable about it. If they had a talk on this subject it is also not improbable that Santoksing may have introduced accused No. 1 when he was passing by the bus. We may also remember that Kanaiyalal has named only accused No 1 as an assailant although he had seen many others participating in the incident. If he had a tendency to implicate innocent persons he would not have stopped after involving accused No. 1. ( 106 ) THE aforestated were the arguments advanced by the learned Advocates before us on behalf of the respective accused whom they represented. ( 107 ) MR. R. Nil. Vin the learned Public Prosecutor submitted the following arguments on behalf Or the State: (1) Mr. ( 106 ) THE aforestated were the arguments advanced by the learned Advocates before us on behalf of the respective accused whom they represented. ( 107 ) MR. R. Nil. Vin the learned Public Prosecutor submitted the following arguments on behalf Or the State: (1) Mr. Vin submitted that the invariable presence of the accused Nos. 1 to 6 on all the three incidents and their moving together in the two rickshaws inevitably go to show planning of murders by them. Mr. Vin cited the case of State of U. P. v. M. K. Anthony 1985 Supreme Court Cases 505 where D. A. Desai J. speaking for the Bench observed as under: "while appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring or truth Once that impression is formed it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the unless and whether the earlier evaluation of the evidence is shaken as to render it unworthy hyper-technical approach by taking sentences torn out of context here or there from the evidence attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness the appellate court which did net have this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation retention and reproduction differ with individuals. (Emphasis supplied)"mr. Vin submitted that the prosecution witnesses in general and the eye-witnesses in particular are required to be tested for their truthful- ness on the aforesaid principles of appreciation of evidence laid down by the Supreme Court. (Emphasis supplied)"mr. Vin submitted that the prosecution witnesses in general and the eye-witnesses in particular are required to be tested for their truthful- ness on the aforesaid principles of appreciation of evidence laid down by the Supreme Court. ( 108 ) MR. Vin also relied on the case of Rana Pratap v. State of Haryana AIR 1983 Supreme Court 680 wherein Chinnappa Reddy J. speaking for the Bench explained who are chance witnesses as under:"the expression chance witnesses is borrowed from countries where every man s home is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are chance witnesses even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence". These observations are apposite in appreciating the evidence of a witness like Nandlal who is in fact a street hawker who permanently parks his Lahri there and who is proved to be an injured witness. The principles would also apply to a rickshaw driver like Dasharath Takhuji who identified accused No. 4 and other witnesses like Dinesh chandra K. Bhatt (P. W. 5 Exh. 39) and Vinod Nikam (P. W. 6 Exh. 40) who claim to be eye-witnesses. . . . . . . . . . . . . . . . . . . ( 109 ) THE term criminal conspiracy has been defined in sec. 120a of the Indian Penal Code as under : conspiracy"120 Definition of criminal conspiracy. When two or more persons agree to to do or cause to be done (1) an illegal act or (2) an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy; provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object". ( 110 ) THE gist of the offence of conspiracy lies in forming the scheme or agreement between the parties. Explanation It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object". ( 110 ) THE gist of the offence of conspiracy lies in forming the scheme or agreement between the parties. There should be a consensus to commit an illegal act or an act which is not illegal by illegal means. The legal concept of conspiracy is thus clear. However the difficulty lies in proving the conspiracy. Direct evidence cannot every- time be available to prove conspiracy. Nevertheless it would be rea- sonable to draw the existence of conspiracy by an inference from the established circumstances. ( 111 ) IN the instant case the conspiracy was to commit murders of Santoksing Jasbir and Biharilal. This was the main object of con- spiracy. It was a part of that conspiracy to create alibi for accused No. 1. We are not quite sure whether accused Nos. 2 to 6 knew all the details about the plan to shield accused No. 1 and to create the alibi for him. But there is no doubt in our minds that accused Nos. 2 to 6 had joined the conspiracy to commit murders as is evident by the fact that they moved together in two rickshaws from place to place. It is true that presence of accused Nos. 2 to 6 at Dakshini Society is not established by the prosecution if we discard the testimony of the witnesses viz. Mangalbhai Gopalbhai and Gajanand Pundiba Gardanwal. However even these witnesses do speak about the presence of the plurality of assailants although they did not know them. They also speak about the accused running away in rickshaw. If we co-relate this evidence with the evidence of Jasbir and Ramesh that the accused reached the Physical Training Ground where he identified them it would be reasonable to infer about their presence at the scene of first murder. The eye-witnesses have identified accused Nos. 1 to 6 for the murder of Harising and other set of eye-witnesses has identified them as the assailants. So the very fact of their moving together in two rickshaws equipped with weapons directly involves them in a conspiracy since such a transaction could not have been implemented without a prior design. It is also proved by different witnesses as pointed out above that accused Nos. So the very fact of their moving together in two rickshaws equipped with weapons directly involves them in a conspiracy since such a transaction could not have been implemented without a prior design. It is also proved by different witnesses as pointed out above that accused Nos. 1 to 6 were closely associated with accused No. 1 Babu Bhayya. We need not repeat that evidence. Accused No. 1 who is the ring leader was simmering under a grievance that Jasbir in collaboration with others was filing complaints against him. Jasbir had also a grievance that accused No. 1 was getting him involved in criminal cases and was administering threats either in person or through others. On 20-8-1983 Jasbir had made a complaint against Munnasing and accused Vasudev Joshi alleging that they were sent by accused. No. 1 Babu Bhayya for causing injuries to him with revolver On 22 Jasbir gave an application to Karnaj Police Station for Police protection because Babu Bhayya and his men had gone to beat him. On 28-8-1983 Harshad had lodged a complaint against accused No. 1. Accused No. 1 was paraded handcuffed in his home area where he was considered as a head-strong person. These incidents made accused No. 1 feel humiliated and he became furious against Jasbir Santoksing and their supporters. A feeling of retribution simmered in his heart. He could not silence Jasbir and his allies all alone. He therefore obtained collaboration from his associates. The fact that all of them were armed with lethal weapons the fact that they had gone together and were physically present when the aforesaid acts were committed by various offenders establish beyond doubt that they bad agreed to commit the offences of murders at those places. In the absence of agreement they would not have gone in two rickshaws at the three places namely Dakshini Society Jasbirs house and Rohit Circle. At each of the places they took the victims unawares. They did not wait for a cause for quarrel. No sooner they alighted from the rickshaw they pounced upon their victims. It was good luck that Jasbir escaped. Otherwise all the three victims were so immediately taken in that such a conduct could be the result only of conspiracy. There is some evidence to inter-connect the accused. They did not wait for a cause for quarrel. No sooner they alighted from the rickshaw they pounced upon their victims. It was good luck that Jasbir escaped. Otherwise all the three victims were so immediately taken in that such a conduct could be the result only of conspiracy. There is some evidence to inter-connect the accused. Jasbir has stated that he his brother Kaldipsing and accused No. 11 Natu Patel were charged along with accused No. 1 for a murder. This evidence stands uncha- llenged. It proves association of accused No. 1 and accused No. 11. The relations between accused No. 1 and accused No. 11 are also proved by the fact that the accused No. 1 had sold one of his shops to accused No. 11. As pointed out above Jasbir has stated that all the accused are known to him since 1975 and that all of them had relations with accused No. 1 Babu Bhayya (they used to sit together ). ( 112 ) AMARSING (P. W. 4 Exh. 38) has stated that he knew accused No. 4 because he sits at the office of Babu Bhayya. In his cross- examination Amarsing has stated at paragraph 11 that accused No. 2 Dilip has no house because he stays at Babu Bhayyas office. It is not surprising at all if help of such a person is taken by person such as accused No. 1. ( 113 ) IN further cross-examination at paragraph 11 Amarsing has stated that it was true that accused Nos. 1 to 6 were all a nuisance in the whole locality. Thus he has inter-linked all of them in an answer in his cross-examination. ( 114 ) KULDIPSING has stated that he knew all the accused because once upon a time accused No. 1 was a friend of his brother Jasbir and as a result the accused Nos. 2 to 6 were also friends of Jasbir. ( 115 ) RAMESH Biharilal has stated in his evidence that he knew accused No. 3 Bhima as he was sitting with Babu Bhayya. He has also stated about accused No. 4 Jayanti that he was serving with him in Rohit mills and he too was also sitting with Babu Bhayya. So also he has stated about accused No. 6 that he knew him since about 2 to 3 months. He was also sitting with Babu Bhayya. He has also stated about accused No. 4 Jayanti that he was serving with him in Rohit mills and he too was also sitting with Babu Bhayya. So also he has stated about accused No. 6 that he knew him since about 2 to 3 months. He was also sitting with Babu Bhayya. He has also stated about accused No. 5 that he knew him because he was found sitting with Babu Bhayya. ( 116 ) WITNESS Girish Himatlal has stated that he knows accused No. 3 Bhima because he has a Pan Galla in his area and knows accused No. 6 because he many a time finds him present at the Pan Galla of accused No. 3. Similarly he knows accused No. 5 as he often visits the office of accused No 1. The witness knows accused No. 1 for the last 5 years. ( 117 ) WE have seen above while considering the discovery made by accused No. 5 that it provided circumstances which showed further complicity of accused No. 5 in the conspiracy. Two empty cartridges of bullet fired from the recover discovered by accused No. 1 were discovered by accused No. 5 Vasudev Joshi from Jetpur. ( 118 ) ALL the circumstances taken together amply establish that there was an agreement amongst the accused Nos. 1 to 6 to commit murders of the aforesaid three persons. Accused Nos. 10 to 12 also had agreed to the commission of the aforesaid crimes. So far as these accused are concerned as early as on 28-8-1983 they had entered into a communication with accused No. 1 as could be proved from the telephone-calls that were sent from Surendranagar and from the evidence of Shivshakti Guest House. We have noted above that accused No. 1 is straightaway proved as one of the conspirators since his name is found as a booking person in the telephone call (Exh. 138/2) which was meant for accused No. 1 Babu Bhayya as PP. We have discussed this aspect of telephone-calls at length. We want to point out here only that the sequence of the telephone-calls clearly suggests a con- spiracy. Babu Bhayya had started on his campaign only after he was assured that his alibi was ready. Accused No. 11 Natu Patel had proceeded to Surendranagar on 28-8-1983 in the car owned by accused No. 1. We want to point out here only that the sequence of the telephone-calls clearly suggests a con- spiracy. Babu Bhayya had started on his campaign only after he was assured that his alibi was ready. Accused No. 11 Natu Patel had proceeded to Surendranagar on 28-8-1983 in the car owned by accused No. 1. It is evident that without the agreement between accused No. 1 and accused No. 12 there could not have been any communication or creation of false evidence about the show of arrest of Babu Bhayya from village Kukda. Accused No. 11 Natu Patel had gone to Shiv- shakti Guest House with accused No. 10 and that fact is proved by documentary evidence as well as the evidence of independent witness Jivubha. Accused No. 10 Chandu Pitambardas Prajapati. accompanied Natu Patel throughout the aforesaid period. He stayed with Natu Patel at the Guest House facilitated the talk between accused No. 1 and accused No. 11 and himself trunk-called from Chamunda Transport Company on 29-8-1983. In fact he had contacted accused No. 1 Babu Bhayya on a lightening call and informed him that the work was done. There is no direct evidence of the presence of accused No. 10 at Chamunda Transport but it appears that this direct evidence is lost to the prosecution only because Rasiklal Gogjibhai a near relation of accused No. 10 turn hostile. Otherwise it is clear that but for his relationship with Rasiklal Gogjibhai the trunk-calls from the said Surendranagar Telephone could not have been effected with accused No. 1 at Ahmedabad. Thus there cannot the any doubt that there was an agreement between accused Nos. 1 to 6 and accused Nos. 10 to 12 to commit offences of murders of deceased Santoksing and Biharilal ( 119 ) SO far as accused No. is in concerned the part played by him is elaborately discussed above He had mad a show of making an arrest of accused No. 1 whereas he arrested accused No. 11. This is proved inter alia by the evidence of Udesing and Ratansing. It is perti- nent to observe that although the off rice was under sec. 66 (b) of the Bombay Prohibition Act which is a bailable offence he kept accused No. 11 althroughout with him. This is proved inter alia by the evidence of Udesing and Ratansing. It is perti- nent to observe that although the off rice was under sec. 66 (b) of the Bombay Prohibition Act which is a bailable offence he kept accused No. 11 althroughout with him. if there was no conspiracy and if accused No. 12 was not a party to it and if accused No. 1 was the real person who was arrested at Kukda accused No. 1 would not have failed to ask for bail. It is not even alleged that the bail was asked for and that accused No. 12 did not grant it. Even on the next day no bail was sought by accused No. 1 before the Judicial Magistrate. Is this evidence in particular not clear to involve accused No. 12 in the conspiracy There is evidence that accused No. 12 and accused No. 21 were alone together in the car when they returned from Kukda to Muli. Does this fact not suggest that accused No 12 was in the Know of the whole object of conspiracy and he participated in it with full knowledge of the object of the controversy ? We do not know for what consideration The pretext of taking accused No. 11 to Surendranagar from Muli and to keep him with him till they refund to Muli Police Station at 6-00 P. M. all speaks volumes to involve accused No. 11 in the conspiracy. We have pointed out above that when they went to Milan Talkies accused No. 12 continued to sit in the Police VAn and accused No. 12 went to make a allow of investigation of a liquor case. If accused was actually arrested in a liquor case he would have handed him over to the P. S. O. when they reached Muli Police Station from Kukda. Although he got the complainant lodged he did not hand ever either the accused or the muddamal. We have examined the whole episode which has led us to believe that between 8-15 P. M. and 9-00 P. M. accused No. 12 substituted accused No. 1 for accused No. 11 in the lock up. What does all this lead to ? Would an experienced police officer like accused No. 19 participate in such a clever way without knowing full facts ? What does all this lead to ? Would an experienced police officer like accused No. 19 participate in such a clever way without knowing full facts ? His association with accused No. 1 appears to be old and close although both have pretended that they did not know each other prior to the incident. Accused No. 2 or with the assistance of accused No. 1 has meticulously endeavoured to prepare alibi for accused No. 1. It is indeed a diabolical design. We have no wordss to condemn accused No. 12 since instead of discharging his duties to protect the members of the society he has played a despicable part in creating an alibi to shield the presence of accused No. 1 at the scene of the heinous murders. The trial Judge has rightly convicted accused No. 12 under sec. 302 read with sec. 120b of the Indian Penal Code. ( 120 ) TO recapitulate we have considered the entire evidence in the matter in a chronological order which makes it clear that the conspiracy to murder was hatched in advance. Pursuant to the said conspiracy and as a part thereof a false alibi for accused No. 1 was fixed and in this part of the conspiracy accused No. 1 accused No. 10 accused No. 11 and accused No. 12 played an active role. As soon as accused No. 1 became assured that his alibi has been satisfactorily fixed in advance he proceeded with his associates to execute their actual design namely to bring about the murders of Santoksing Jasbirsing and Biharilal. It is a different matter that only two out of the said three murders could be accomplished Jasbirsing having escaped. But the said two murders which were accomplished the evidence clearly shows were not coinci- dents but were a result of pre-planning. Deceased Santoksing being a bus driver on Route No. 42 was surely to be near Dakshini Society Bus Terminus at about 4-03 P. M. on that day for a short while till the said bus resumed its journey. That is why it seems Dakshini Society was chosen as the first place of the incident. Jasbirsing as evidence shows was doing no work at the time of the incident. Jasbir- sing was therefore likely to be at or near his residence at the time of the incident. That is why it seems Dakshini Society was chosen as the first place of the incident. Jasbirsing as evidence shows was doing no work at the time of the incident. Jasbir- sing was therefore likely to be at or near his residence at the time of the incident. So Jasbirsings residence was chosen to be the next site of the incident as Jasbirsing was the arch enemy. The plan however misfired and instead of Jasbirsing his father Harising came to be killed as stated above. And then remained only the last target namely Biharilal which target was also fulfilled as the accused succeeded in murdering him. When we recollect that substitution of accused No. 1 was effected near about 9-00 P. M. on 29-8-1983 at Muli Police Station it at once becomes clear that the day and the time of the incident were carefully chosen and it was not mere coincidence. Likewise the three different places of the incidents and the order of visit to these places were carefully selected considering the availability of the three persons at the respective sites at the respective times. The inter-connec- tion between the accused as established in evidence clearly points in the direction that the accused had come at the place of the incident not by accident or coincidence but as planned. Evidence in the case does not show that at any of the three places of incident any exchange of words or quarrel had preceded The totality of the circumstances therefore clearly established that the three incidents were a result of pre-planning. The evidence of eye-witnesses whom we have believed establishes beyond reasonable doubt that accused No. 1 was present at all the three incidents on 29-8-1983 between 4-no P. M. and 4-30 P. M. Apart from the other evidence which we have discussed herein above the aspect of physical presence of accused No. 1 in Ahmedabad between 4-00 P. M. and 4-30 P. M. on 29-8-1983 clinches the issue and establishes beyond reasonable doubt that accused No. 1 could not have been in police custody right from 11-00 A. M. on 29-8-1983. As concluded by us on evidence it was accused No. 1 who was at the receiving end in Ahmedabad when the two trunk-calls were made from Surendranagar on 29-8-1983 i. e. to say on the day of the incident. As concluded by us on evidence it was accused No. 1 who was at the receiving end in Ahmedabad when the two trunk-calls were made from Surendranagar on 29-8-1983 i. e. to say on the day of the incident. Prosecution has thus clearly established beyond reasonable doubt that there was a conspiracy amongst the accused to murder which was also accomplished to the extent mentioned above and as a part of the said conspiracy accused Nos. 10 11 and 12 had acted to create false evi- dence of alibi concerning accused No. 1 with a view to facilitate and achieve the said purpose of conspiracy. This explains why accused No. 1 took a leading part in broad day light in carrying out the purpose of the conspiracy in the area in which he was generally known and in which he was paraded tied and hand-cuffed just a few days before the date of the incident. This also explains as to why the remaining accused agreed to become parties to the conspiracy as they reasonably enter- tained the hope that accused No. 1 was to escape because of his alibi thus proving the eye-witnesses and other evidence to be false and if accused No. 1 could not be brought to book even on the evidence of so many eye-witnesses they could also never be convicted on the basis of the evidence of the very same eye-witnesses. However man proposes God disposes. . ( 121 ) IN view of the conclusions reached by us to what extent the order of conviction passed by the trial judge can be upheld. ( 122 ) IN the first place it is to be borne in mind that there is no acquittal appeal. Secondly accused Nos. 7 8 and 9 have been given benefit of doubt and acquitted by the trial Judge against which order there is no appeal by the State. ( 123 ) WE find that the trial Judge has convicted each of accused Nos. 1 2 3 4 5 and 6 for an offence punishable under sec. 324 read with sec. 120b of the Indian Penal Code. This conviction is concerning the pellet injury to witness Nandlal. On behalf of accused Nos. 1 2 3 4 5 and 6 at the hearing of the appeals before us no challenge was made that this conviction has-been wrongly recorded. 324 read with sec. 120b of the Indian Penal Code. This conviction is concerning the pellet injury to witness Nandlal. On behalf of accused Nos. 1 2 3 4 5 and 6 at the hearing of the appeals before us no challenge was made that this conviction has-been wrongly recorded. No submissions whatsoever have been made before us in these appeals regarding this part of the order of conviction. Apart from the aforesaid we feel that the pellet injury to witness Nandlal was only accidental It is absolutely cleat that it did not form part of any agreement of conspiracy. It cannot also be said that there was any intention on the part of the said accused to cause injury to witness Nandlal. We have also not been able to find on evidence that any of the said accused was substantively liable for the injury to witness Nandlal. In that view of the matter we find it difficult to sustain the order of conviction against each of accused Nos. 1 2 3 4 5 and 6 for an offence punishable under sec. 324 read with sec. 120b of the Indian Penal Code and will need to be set aside. ( 124 ) THE trial Judge has also convicted each of the accused Nos. 10 11 and 12 for an offence punishable under sec. 218 read with sec. 120 of the Indian Penal Code as well as for an offence punishable under sec. 193 read with sec. 120b of the Indian Penal Code. On behalf of accused Nos. 10 11 and 12 no submissions were made at all challenging the aforesaid order of conviction. The State also has not come with a case that since accused Nos. 10 11 and 12 were held liable under secs. 193 and 218 read with sec. 120b of the Indian Penal Code accused Nos. 1 2 3 4 5 and 6 also should have been found liable for the said offences since fabrication of the documents in question was a part of the conspiracy amongst all the accused. In the aforesaid circumstances we do not propose to disturb the result reached by the trial Judge in the above regard ( 125 ) THE sum total of the aforesaid discussion is as follows: We confirm the order of conviction in respect of each of accused Nos. In the aforesaid circumstances we do not propose to disturb the result reached by the trial Judge in the above regard ( 125 ) THE sum total of the aforesaid discussion is as follows: We confirm the order of conviction in respect of each of accused Nos. 1 2 3 4 5 and 6 and 10 11 and 12 for the offence punishable under sec. 302 read with sec. 120b of the Indian Penal Code in respect of the murders of Santoksing Harising and Biharilal. We also confirm the order of conviction in respect of each of accused Nos. 1 2 3 5 and 6 for individual offences under sec. 27 of the India Arms Act. The order of conviction of accused No. 1 for the offence punishable under sec. 302 of the Indian Penal Code for causing the three murders of Santoksing Harising and Biharilal is also confirmed. The order of conviction of accused No. 1 for the offence punishable under sec. 307 of the Indian Penal Code for attempting to commit the murder of Jasbirsing is also confirmed. We are not entering into the question as to whether the remaining accused namely accused Nos. 2 3 4 5 6 and 10 11 and 12 are or are not liable for the offence punish- able under sec. 307 read with sec 120b of the Indian Penal Code with respect to attempt to commit murder of Jasbirsing for the reason that even when the trial Judge had not fastened any liability in this connection on any of the said accused the State his not chosen to come in appeal against that part of the order of the trial Judge. We confirm the order of conviction of accused No. 12 for the offence punishable under sec. 193 of the Indian Penal Code as well as for the offence punishable under sec. 218 of the Indian Penal Code. We confirm the order of conviction in the case of each of accused Nos. 10 11 and 12 for the offence punishable under sec. 193 read with sec. 120b of the Indian Penal Code as well as for the offence punishable under sec. 218 read with sec. 120b of the Indian Penal Code. For the reasons stated above we set aside the order of conviction in the case of each of accused Nos. 10 11 and 12 for the offence punishable under sec. 193 read with sec. 120b of the Indian Penal Code as well as for the offence punishable under sec. 218 read with sec. 120b of the Indian Penal Code. For the reasons stated above we set aside the order of conviction in the case of each of accused Nos. 1 2 3 4 5 and 6 regarding the offence punishable under sec. 324 read with sec. 120b of the Indian Penal Code in respect of the injury to Nandlal. For the seasons above-stated we set aside the order of conviction in the case of accused No. 6 for the offence punishable under see. 302 of the Indian Penal Code for causing the murder of Santoksing Harising. We find that accused No. 11 was charged for the offence of cheating by personation punishable under sec. 419 of the Indian Penal Code. The trial Judge has not convicted accused No. 11 for that offence. There is no appeal by the State in this connection. In these circu- stances the matter has to rest there without any further order. ( 126 ) THIS takes us to the aspect of sentence. On perusal of the order regarding sentence passed by the trial Judge we find that the trial Judge has not passed any separate sente- nces in the case of each of accused Nos. 1 2 3 4 5 6 and 10 11 and 12 in respect of the offences for which he has entered the order of con- viction. We Gad that the State has therefore preferred Criminal Revision Application No. 570/84 in the aforesaid connection praying that under law when an order of conviction has been entered an appropriate order regarding sentence should also be passed. It is. however conceded that the Court has power even after recording such separate orders of sentence to further order that the said sentences may run concurrently. It seems to us that the grievance of the State in this connection is well-founded. As a matter of fact on behalf of the accused no submission has been made whatsoever opposing the said contention of the State. It will therefore be necessary for us to pass appropriate orders of sentence where the trial Judge has omitted to do so after recording conviction with respect to specific offences. As stated above accused Nos. As a matter of fact on behalf of the accused no submission has been made whatsoever opposing the said contention of the State. It will therefore be necessary for us to pass appropriate orders of sentence where the trial Judge has omitted to do so after recording conviction with respect to specific offences. As stated above accused Nos. 1 2 3 5 6 have been convicted by the trial Judge for the offence under sec. 27 of the Indian Arms Act. The trial loge has not passed any separate sentence in connection with the said offence. The said section imposes a sentence of imprisonment and fine. We are therefore required to pass an appropriate sentence in the light of sec. 27. It is pertinent to specifically note that the Legislature has considered the offence under sec. 27 of the Indian Arms Act as a very grave offence so much so that the punishment prescribed for the same is irrespective of the fact whether the unlawful purpose has been carried into effect or not. The Legislative intent to visit the offence under sec. 27 with a grave punishment is manifest from the fact that before the amendment the punishment of imprisonment and fine was in the alternative whereas after the amendment the same punishment is made conjunctive. We have borne in mind these factors while passing an appropriate sentence in this regard. . . . . . . . . . . . . ( 127 ) WE shall now proceed to consider the aspect of sentence concerning accused No. 1. The aspect of sentencing an accused has put on a new look and has acquired a fresh significance in-view of secs. 361 and 354 (3) of the Code of Criminal Procedure 1973 It has become a delicate and sensitive exercise which a Court has to undertake if it reaches a conclusion that he accused is guilty. ( 128 ) AS observed in Bishnu Deo Shaw v. State of West Bengal AIR 1979 Supreme Court 964 by the Supreme Court speaking through Chinnappa Reddy J. the penalty of death differs from all other forms of criminal punishment and not in degree but in kind. It is unique in its total irrevocability. ( 128 ) AS observed in Bishnu Deo Shaw v. State of West Bengal AIR 1979 Supreme Court 964 by the Supreme Court speaking through Chinnappa Reddy J. the penalty of death differs from all other forms of criminal punishment and not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice and it is unique finally in its absolute renunciation of all that is embodied in our con- cept of humanity. It has also been observed in the said case that while sec. 302 IPC prescribes death or life imprisonment as the penalty for murder the Code of Criminal Procedure instructs the Court as to its application. The changes the Code has undergone in last 25 years clearly indicate that Parliament is taking note of contemporary crimi- nological thought and movement. There is some indication in the above connection by the Legislature that reformation and rehabilitation of offenders and not mere deterrence are now among the foremost objects of the administration of criminal justice. The said secs. 361 and 354 (3) Cr. P. C. have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. It will not there- fore be wrong to assume that the personality of the offender as revea- led by his age character antecedents and other circumstances and the tractability of the offender to reform trust necessarily play the most prominent role in determining the sentence to be awarded. It has also been observed that the death penalty is inconsequential as a deterrent. Where the murder is premeditated any thought of possibility of punish- ment is blurred by emotion and the penalty of death can no more deter than any other penalty. Where murder is premeditated the offen- der disregards the risk of punishment because he thinks there is no chance of detections. What weighs with him is the uncertainty of detection and consequent punishment rather than the nature of punish- ment. The Supreme Court has observed that it was impressed by the argument that the greatest deterrent to crime is not the fear of punishment but the certainty of detection. What weighs with him is the uncertainty of detection and consequent punishment rather than the nature of punish- ment. The Supreme Court has observed that it was impressed by the argument that the greatest deterrent to crime is not the fear of punishment but the certainty of detection. ( 129 ) IN Balwant Singh v. State of Punjab AIR 1976 Supreme Court 230 the death had occurred because poison was administered to the deceased by appellant Balwant Singh and the occurrence had taken place on 13/04/1974 that is to say after the coming into force of Criminal Procedure Code 1973 on and from 1/04/1974 ( 130 ) THE Supreme Court has pointed out the development of the law on the subject in paragraphs 3 and 4 of the judgment in the following terms:"3 It is well-known that in many parts of the world an agitation has been going on against the imposition of death penalty even in murder cases. And in many countries or States death penalty has been abolished. In India the Legislature in its wisdom has not thought it fit and proper to abolish the death penalty altogether but there has been a gradual swing against the imposition of such penalty. Under the Code of Criminal Procedure 1898 as it stood before its amendment by Act 26 of 1955; sub-sec. (5) of sec. Be required: "if the accused s convicted of an offence punishable with death and the Court sentences him to any punishment other than death the Court shall in its judgment state the reason why sentence of death was not passed. Under the provision aforesaid if an accused was convicted for an offence punish- able with death then imposition of death sentence was the rule and awarding of a lesser sentence was an exception and the Court had to state the reasons for not passing the sentence of death. By the Amending Act 26 of 1955 the said provision was deleted Thereafter it was left to the discretion of the Court on the facts of each case to pass the sentence of death or to award the lesser sentence. In the context of the changed law if in a given case the passing of the death sentence was not called for or there were extenuating circumstances to justify the passing of the lesser sentence then the lesser sentence was awarded and not the death sentence". In the context of the changed law if in a given case the passing of the death sentence was not called for or there were extenuating circumstances to justify the passing of the lesser sentence then the lesser sentence was awarded and not the death sentence". 4 Section 354 (3) of the new Criminal Procedure Code says:"when the conviction is for an offence punishable with held or in the alternative with imprisonment for life or imprisonment for a term of years the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence. Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons that is to say special facts and circumstances in a given case will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a given case. But we may indicate just ust a few such as the crime has been committed by a professional or a hardened criminal or it has been committed in a very brutal manner or on a helpless child or a woman or the like". On the facts of the said case the Supreme Court held that the appe- llant had a motive to commit the murder and he did it with an intention to kill the deceased and that his conviction under sec. 302 of the Indian Penal Code was justified. It further held that the facts found were not such as to enable the Court to say that there were special reasons for passing the sentence of death in that case. It was observed by the Supreme Court that since there were no special reasons the High Court was not justified in confirming death sentence by relying on some decisions of the Supreme Court given under the old Code. The decisions reported in AIR 1975 SC 95 and AIR 1975 SC 76 in that view of the matter were held not applicable. The decisions reported in AIR 1975 SC 95 and AIR 1975 SC 76 in that view of the matter were held not applicable. ( 131 ) IN Rajendra Prasad v. The State of Uttar Pradesh AIR 1979 Supreme Court 916 what special reasons in the context of capital punishment means has been expounded. Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal e. g. a lethal economic offender may be jeopardizing societal existence by his act of murder. Likewise a hardened murderer or dacoit or armed robber who kills and relishes gilling and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psycho- therapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguish- ment of the whole human being. The extreme penalty can be invoked only in extreme situations. It has further been observed that it is illegal to award capital sentence without considering the correctional possibilities inside prison. Anger even judicial anger solves no problem but creates many. A family feud an altercation a sudden passion although attended with extraordinary cruelty young and malleable age reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence-these catena of circumstances bearing on the offender call for the lesser sentence. ( 132 ) IN the leading case on the subject namely Bachan Sins v. State of Punjab AIR 1980 Supreme Court 898 it has been held in this connection that the Courts should not confine its consideration principally or merely to the circumstances connected with the parti- cular crime but also give due consideration to the circumstances of the criminal. It is also not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. It is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. It is also not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. It is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. It has also been observed that 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 construction by the Courts in accord with the sentencing policy writ large in sec. 354 (3) of the Criminal Procedure Code. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete furnished by the Union of India in the said case show that in the past Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is therefore imperative to voice the concern that courts aided by the broad illustrative guidelines indicates will discharge the onerous function with ever more scrupulous care and human concern directed along the highroad of legislative policy outlined in sec. 354 (3) viz. that for persons convicted of murder life imprisonment 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 laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. ( 133 ) IN Machhi Singh and Others v. State of Punjab AIR 1983 Supreme Court 957 the aforesaid Bachan Singhs case was followed and it has been ruled that a balance sheet of aggravating and mitigating circumstances has to be drawn up. ( 134 ) A wise caution which has been given by Benjamin Cardozo has been noted in Joseph Peter v. State of Goa Daman and Diu AIR 1977 Supreme Court 1812. The same is as under;"he is to exercise a discretion informed by tradition methodized by analogy disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains". The same is as under;"he is to exercise a discretion informed by tradition methodized by analogy disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains". It has also been observed in the said case that the guidelines laid down by the Supreme Court in its precedents which are binding tell that if the offence has been perpetrated with attendant aggravating circum- stances if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide accompanied by brutal dealing with the cadaver the court can hardly help in the present state of the law avoiding infliction of the death penalty. ( 135 ) THE question therefore is whether the present case can be regarded as a rarest of rare cases. Simply because it is a triple murder case it does not become a rarest of rare cases. ( 136 ) AJMIR Singh v. Stare of Punjab 1977 Criminal Law Journal 659 was a triple murder case. Yet life imprisonment was awarded. Again Namu Ram Bora v. State of Assam and Nagaland AIR 1975 Supreme Court 762 was a triple murder case. That sentence however was commuted to one for imprisonment for life. Srirangam v. State of Tamil Nadu AIR 1978 Supreme Court 274 was also a triple murder case. Death sentence was reduced to life imprisonment. In Ediga Anamma v. State of Andhra Pradesh AIR 1974 Supreme Court 799 it has been observed that history hopefully reflects the march of civilisa- tion from terrorism to humanism and the geography of death penalty depicts retreat from country after country. The aforesaid makes it clear that it is not the number of murders committed that makes it decisive that a capital sentence has to be awarded. The awarding of capital sentence depends upon the aforesaid principle and the existence or otherwise of special circumstances in a case. ( 137 ) IT is instructive to refer to the following decisions where special circumstances or reasons have been considered. Sarveshwar Prasad Sharma v. The State of Madhya Pradesh AIR 1977 Supreme Court 2423 was a case of gruesome murder where an entire family of 9 persons including 2 infants were wiped out. ( 137 ) IT is instructive to refer to the following decisions where special circumstances or reasons have been considered. Sarveshwar Prasad Sharma v. The State of Madhya Pradesh AIR 1977 Supreme Court 2423 was a case of gruesome murder where an entire family of 9 persons including 2 infants were wiped out. The accused was aged 31 and was a Bachelor of Ayurvedic Medicine and Surgery (B. A. M. S.) The relevant observations are that the recent benign direction of the penal law is towards life sentence as a rule and death as an exception awarding of which must be accompanied by recorded reasons and that the Supreme Court has in several decisions indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive. Each case will depend upon the totality of the facts circumstances and other matters revealed. It has also been observed that a person being of financially in straits with wife and children is not an extenuating circumstance. Capital sentence in this case was confirmed. ( 138 ) ACCORDING to the trial Judge the special reasons to award capital punishment in the present case to accused No. 1 were 12 in number. When properly analysed the special reasons would reduce to the following:1 The three murders were meticulously planned premeditated and diabolically designed by accused No. 1 and the plan was efficiently executed. There was no cause for provocation given by any of the three victims Deceased Santoksing and Biharilal were taken unaw- ares. Accused No. 1 fired the fatal shots at Santok. The trial Judge has further stated as under: The prior incidents of enmity between accused No. 1 and Jasbir had nothing to do with Santoksing Harising and Biharilal. There was no entity between the victims and the accused though it is true that Jasbir was his main target. Despite this he has taken lives of three innocent persons who had not offended him to such an extent that he would be goaded to kill them. 2 Accused No. 1 planned and concocted alibi with the help of accused No. 12 and as soon as he was assured that the plan regarding alibi had proceeded as conspired he proceeded with his associates to put an end to three lives in quick succession. 2 Accused No. 1 planned and concocted alibi with the help of accused No. 12 and as soon as he was assured that the plan regarding alibi had proceeded as conspired he proceeded with his associates to put an end to three lives in quick succession. 3 Biharilal and Harising the unfortunate fathers of his enemies Ramesh and Jasbir respectively came in his way of achieving the main object and he did not hesitate to do away with the lives of these two innocent persons who had not in way infuriated him in any other manner. 4 The method and manner of perpetrating crime speak volumes concerning the depraved mental condition of the accused. Considering the sites of the incidents the accused did not care to consider that other persons would be injured or killed by the act of wanton firing resorted to by him and his companions. In the aforesaid process one innocent clothes vendor Nandlal Khemchand has actu- ally been injured. 5 The ghastly acts committed by accused No. 1 were extremely disproportionate to his grievance against Jasbir. In any events Biharilal and Harising had not done anything that would infuriate the accused to the extent of taking their lives. 6 Even after committing the ghastly murder the conduct of accused did not show any remorse. In fact he was gloating over the successful execution of his design of surfing out three lives from this world. 7 Accused No. 1 himself has produced some documents to show that there have been many criminal proceedings against him. It may be that in some of them he has been convicted and some of them might be pending but it is apparent that the career of this young man is not so clean as he claims it to be. In a way this is not his first brush with the law. The trial Judge was apprehensive that the subsequent release of accused No. 1 after the period of long years of jail-sentence is likely to let loose a menace over the society and at whose bands innocent lives are likely to be jeopardised. 8 The totality of the facts and circumstances of the case revealed that accused No. 1 was devoid of all traces of humanity. 8 The totality of the facts and circumstances of the case revealed that accused No. 1 was devoid of all traces of humanity. This is established from the evidence as to the method and manner in which he has killed three persons in broad day light in a busy frequented locality. It could reasonably be concluded that he is misplaced in the civilised society. The observations of the Supreme Court regarding the accused with whom they were dealing that the accused was misplaced in a civilised society as wolves would be in a populous territory quite justifiably and aptly apply according to the trial Judge to the present accused. 9 The crime of accused No. 1 is not a sporadic display of violence but he adopted it as a way of life. In order that the rest of the society might experience safe peaceful and terror-free existence sniffing out such a life by judicial edict becomes the painful duty according to the trial Judge in the present case. ( 139 ) THE trial Judge has therefore regarded the present case as the rarest of rare cases. ( 140 ) IN the first place the trial judge is in error in observing that three murders were meticulously planned. Out of the three murders in question the murder of Harising cannot be regarded as a planned murder. It was because Harising protested with an iron pipe in his hand with a view to save Jasbir that he was fired at and killed by accused No. 1 and others. The target of accused No. 1 was Jasbir and not Harising. It is again incorrectly stated by the trial judge that there was no cause for provocation given by any of the three victims and that none of the three deceased had infuriated accused No. 1 in any manner. Though there was no grave and sudden provocation each one of the deceased on the one hand and accused No. 1 on the other had grudge either personally or otherwise against each other. Deceased Santoksing and Harising were themselves the accused in a criminal case where the allegation was that present accused No. 1 was given a knife injury. Not only that. It had ended in a conviction and sentence so far as deceased Santoksing was concerned. Deceased Santoksing and Harising were themselves the accused in a criminal case where the allegation was that present accused No. 1 was given a knife injury. Not only that. It had ended in a conviction and sentence so far as deceased Santoksing was concerned. What has been stated hereinabove in this judgment clearly shows that Jasbir and his family members were on inimical terms with accused No. 1 prior to the three incidents. From the point of view of accused No. 1 the three deceased were not totally innocent persons and what is more is that according to accused No. 1 they were firmly behind Jasbir. . ( 141 ) MURDERERS are known and by no means rarely to arrange for their alibis sometimes successfully sometimes not. This aspect however cannot make a case the rarest of rare cases as in many cases murderers want to establish that at the relevant time when the crime was commi- tted they were at a different place altogether. It is also not surprising that when one is assured of his alibi he indulges in such crimes even ins broad day-light. ( 142 ) EVIDENCE does not disclose that this is a case of wanton firing. So far as Santoksing Jasbir and Biharilal are concerned the aforesaid discussion shows that the targets were fixed in advance. The present is not a case where firing has been resorted to in a wanton manner in public places irrespective of any consideration regarding fixed targets and irrespective also of any consideration regarding injuring members of the public. Evidence in the case discloses that firing has been done at close range and at definite targets. Had it really been wanton firing considering the time and place of the incident many more persons would have been injured. The fact that only one solitary member viz. clothes vendor Nandlal Khemchand was injured and that too by pellets of firearms totally disproves that wanton firing had taken place at or any of the places of the incident. So far as the method and manner of perpetrating crimes in question are concerned they do not show that the offences have been perpetrated with the attendant aggravating circumstances. Evidence has not disclosed an extremely depraved state of mind and diabolical trickery in committing the crime accompanied by brutal dealing with the victims. So far as the method and manner of perpetrating crimes in question are concerned they do not show that the offences have been perpetrated with the attendant aggravating circumstances. Evidence has not disclosed an extremely depraved state of mind and diabolical trickery in committing the crime accompanied by brutal dealing with the victims. No such extreme depravity of character nor such gristly and gruesome nature of murders nor such Nironian conduct nor fiendish modus operandi first kill then steal as are noticed in Sankaria v. State of Rajasthan AIR 1968 Supreme Court 1248 are found in the present case. In Shankarias case (supra) the facts were that the victims were taken unawares when they were asleep. Two of them were blind persons. The conduct of the appellant even after the occurrence in languishing in the stricken premises looking for something to eat in the Kitchen drinking water smoking Bidis bringing water and bathing himself mindless of the spectre of the slain and the groans and gasps of the dying betrayed an extreme depravity of character which has been labelled as Nironian conduct by the Supreme Court. The grisly and gruesome nature of the murders the hapless and helpless state of victims and the fiendish modus operandi of the appellant to first kill and then steal all steel the heart of law to call for its extreme penalty. Measured by the said yardstick it can hardly be said that the present is a case where an extremely depraved state of mind and diabolical trickery in committing the crime accompanied by the brutal dealings with the victims are noticed. In view of the aforesaid the facts that deceased Santoksing and Biharilal were taken unawares and carried no weapons at the time when they were attacked do not make this case so unusually hard that accused No. 1 would deserve the capital punishment. ( 143 ) THE trial Judges special reason that the ghastly acts commi- ted by accused No. 1 were extremely disproportionate to his grievance against Jasbir is not well-founded in view of what has already been stated hereinabove regarding the extent of enmity between them which had reached its climax when accused No. 1 was paraded as stated above. The question of disproportionate anger on the part of accused No. 1 requires to be considered at his mental and moral level. The question of disproportionate anger on the part of accused No. 1 requires to be considered at his mental and moral level. All that we stale is that the victims were not all innocent weak helpless persons. Their social conduct criminal antecedents and their persistent inimical attitude towards accused No. 1 cannot be overlooked nay these factors too must be borne in mind when the imposition of capital punishment is deliberated. So far as the subsequent conduct of accused No. 1 is concerned he had attempted to take shelter under a plea of alibi as any murderer would be tempted to do. There is no evidence whatsoever regarding the subsequent conduct of accused No. 1 which points in the direction that he was gloating over the success of his plan Since the murders were committed with a view to take revenge it was not likely that any sign of remorse would be noticed. ( 144 ) THERE is no evidence to show that there have been previous convictions of a grave nature against accused No. 1 though some cri- minal cases have been filed against him. There is scanty evidence to show that accused No. 1 is pursuing a career of crime. The apprehension of the trial Judge that subsequent release of accused No. 1 after a long jail sentence would be like letting loose a menace over the society and innocent lives are likely to be jeopardised does not seem to be well- founded on the evidence in the present case. Apart from the allegations of trading in liquor there is no evidence that accused No. 1 had mole- sted or disturbed any lady against whom he had no grudge. In other words he is not proved to be a danger to society in general. We also fail to understand as to how on the basis of the evidence in the case it can be concluded that accused No. 1 is devoid of all traces of humanity or that he is misplaced in the civilised society as wolves would be in a populous territory. We also find little or no justification in the observation of the trial Judge that accused No. 1 adopted violence as a way of life. We also find little or no justification in the observation of the trial Judge that accused No. 1 adopted violence as a way of life. As stated above the Supreme Court in Machhi Singh v. State of Machhi (supra) has directed that a balance-sheet of aggra- vating and mitigating circumstances has to be drawn before awarding a capital sentence. The picture drawn by the trial Judge does not take into account the mitigating circumstances as disclosed in evidence. The trial Judge has focussed almost his entire attention on the circum- stances connected with the crime. One has to appreciate that it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. In this connection the trial Judge has observed as under:"the behaviour of the accused at the time of commission of the offence trust be branded as one full of fiendish ferocity. His acts of causing number of stab injuries to Biharilal Sharma were indeed spine-chilling and blood-curdling cruelty. There were as Many as 18 knife injuries on the person of Biharilal whose intestine had actually come out. This fatal wounds were stab wounds and it has been proved that they have been indicted by accused No. 1". ( 145 ) IN the first place there is no evidence that all the 18 knife blows were inflicted by accused No. 1. There is evidence that all the accused surrounded deceased Biharilal at the time of the incident and that some of the accused had knives at that time. Even the trial Judge as stated above has observed that the fatal wounds were stab wounds inflicted by accused No. 1. The medical evidence of Dr. Dipakkumar D. Patel (P. W. 7 Exh. 53) shows that the stab wounds were 9 in number and fatal stab wounds were only 4. On facts therefore such behaviour cannot be regarded as one full of fiendish ferocity. As stated in Harshadsinh Thakore v. State of Gujarat AIR 1977 Supreme Court 710 (Paragraph 7) when a murderous assault by many hands with many knives has ended fatally it is legally imperissible to dissect the seri- ous ones from the others and seek to salvage those whose stabs have not proved fatal. As stated in Harshadsinh Thakore v. State of Gujarat AIR 1977 Supreme Court 710 (Paragraph 7) when a murderous assault by many hands with many knives has ended fatally it is legally imperissible to dissect the seri- ous ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives the circum- stances that one mans stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. ( 146 ) AS stated hereinabove and in the words of the Supreme Court it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive liberal and expansive construction by the Court in accord with the sentencing policy writ large in section 354 (3) of the Criminal Procedure Code. A real and abiding concern for the dignity of human life postulates resistance to taking life through laws instrumentality and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. ( 147 ) AS stated by accused No. 1 before the trial Judge he was aged about 28 years at the time of the incident in Amraiwadi area. He has stated that he was a political worker and had the partys ward office in his own office. He is the owner of 13 shops as admitted by him in his statement under section 313 of the Criminal Procedure Code before the trial Judge We had an occasion to record his further statement in order to point out to him certain adverse circumstances which were not put to him by the trial Judge. In his said statement inter alia he had stated that he was badly treated by the investigating agency during the time he was in their custody. As the State had no objection and with our permission accused No. 1 has produced two affidavits before us. One of these affidavits is of his father wherein the father has stated about his own health and has also stated that in the absence of accused No. 1 their lives would become miserable and would almost be a living death for them. One of these affidavits is of his father wherein the father has stated about his own health and has also stated that in the absence of accused No. 1 their lives would become miserable and would almost be a living death for them. This of course cannot be regarded as extenuating circumstance so far as accused No. 1 is concerned. The second affidavit has been made by the wife of accused No. 1. She has married accused No. 1 in the year 1975 and out of the wedlock she has three daughters the eldest of whom is 7 years old. She has stated that her health has become indifferent after the incidents that re-marriage is not permissible in their community and that the expenses of the marriage of each of her daughters comes to about Rs. 30 0 at present in their community. She has then narrated in the said affidavit about the family members of accused So 1. There are no previous convictions of accused No. 1 brought on record. There is no reliable evidence to show that accused No. 1 is pursuing a career of crime. Deceased Harising and Ramesh son of deceased Biharilal were not attacked till Harising protested at the gate with a pipe in his hand and till Ramesh tried to intervene to save his father Biharilal. The victims of the murderers have not been tor- tured before they were murdered nor the body of any of the victims has been mutilated. This is not a case where an attempt is made on the fives of all the members of a family. On the contrary evidence discloses that though it was possible to attack and injure the female and other members of the family of deceased Harising who were standing in the open space in front of the residence where Harising was attacked no attempt was made even to injure any of these mem- bers. It is not altogether improbable that even Harising would not have been attacked and killed had he not protested with the pipe in his hand to save Jasbir who was the main target. In the circumstances it would also seem that an attempt on the life of Ramesh son of deceased Biharilal would not have been made had he not attempted to intervene to save his father. In the circumstances it would also seem that an attempt on the life of Ramesh son of deceased Biharilal would not have been made had he not attempted to intervene to save his father. Such consideration would never be shown by a person who is considered to be a person devoid of all traces of humanity. ( 148 ) AT this stage it has also to be noted that accused No. 1 had brought about his alibi by procuring assistance of a Police Sub- Inspector whose standing was not less than 16 or 17 years at the time of the incident. This circumstance can be regarded as a special circum- stance of a serious nature. Accused No. 1 is certainly to be blamed for his act of procuring the services of a Police Officer for the purpose of committing murders. In the circumstances of the case we also feel and in fact we are stunned to find that a senior and experienced Police Officer permitting himself to be conducted with such crimes knowingly and willingly for reasons best known to himself. It is indeed painful to find that a Police Officer was tempted for reasons best known to himself to participate in such heinous offences. We also feel that despite all temptation if the Police Officer had declined to be a party to the design of accused No. 1 and had also declined to fix an alibi for accused No. 1 then perhaps the heinous crimes would not have been committed at all in such a cavalier fashion. Accused No. 1 had made himself bold to perpetrate the crimes in the fullest confidence that he would escape the consequences of the crimes as according to him he was assured in advance of his alibi. ( 149 ) AS shown above the mere fact that triple murders have been committed is not sufficient to inflict the extreme penalty of death. In Ajmir Singhs ease (supra) there were three appellants Ajmer Singh Chanan Singh and Ujagar Singh had a strong motive and went armed with a gun to the place of occurrence along with his associates. Ajmer Singh was his associate and he also sent (sic went) armed with a gun while appellant Chanan Singh armed himself with a spear. The crimi- nal acts were done by all the three of them in pursuance of a pre arranged plan. Ajmer Singh was his associate and he also sent (sic went) armed with a gun while appellant Chanan Singh armed himself with a spear. The crimi- nal acts were done by all the three of them in pursuance of a pre arranged plan. It was their plan to go and attack and commit the murder of those found on the field of Smt. Siri Kaur and to take forcible possession thereof. Each one of the three appellants inflicted injuries on their victims resulting in the death of Nikka Singh Dev Singh and Gurdev Singh and inflicted penetrating incised wound on the chest of Mehar Singh. All the three appellants therefore committed the offences in concert in pursuance of their pre-arranged plan and in furtherance of the common intention of all of them. Ajmer Singh was found guilty of the offence under section 302 IPC for causing the death of Dev Singh and Chanan Singh and Ujagar Singh were held to have committed the offences under sec. 302 IPC read with sec. 34 IPC for committing the murders of Nikka Singh and Gurdev Singh. On these facts appellant Ajmer Singh was sentenced to death by the Sessions Court and the High Court confirmed the sentence of death. The Supreme Court however held that there were no special reasons as required and so the sentence of death awarded to the appellant Ajmer Singh was altered to imprisonment for life. ( 150 ) IN Sarveshwar Prasad Sharma v. The State of Madya Pradesh AIR 1977 Supreme Court 2423 the accused was a trusted friend of deceased Ram Swaroop. The accused not only killed Ram Swaroop but also exterminated his entire family including his aged parents his wife and five children two of whom were infants aged 5 and 3 years res- pectively for monetary gain and also attempted to destroy the evidence of the crime he had committed As observed by the High Court in that case the accused was neither demented nor mentally sick and the tragedy had few parallels. It was in these circumstances that the sentence of death penalty was confirmed by the Supreme Court. It was in these circumstances that the sentence of death penalty was confirmed by the Supreme Court. The facts of the present case when compared with those in the case of Serveshwar Prasad Sharma (supra) one finds that in the present case not only there is no wiping out of a entire family but also as stated above no attempt was made on the lives of other members of the same family even though full opportunity was there to do so. ( 151 ) FURTHER measured by the yardstick provided by Shankarias case (supra) it can hardly be said that the present is a case where an extremely depraved stale of mind and diabolical trickery in committ- ing the crime accompanied by the brutal dealings with the victims are noticed. There is therefore no such extreme depravity in the present case to merit capital punishment. ( 152 ) IN Srirangans case (supra) a toddy-tapper young in age returning after a day-long toil with his tool the stickle and tense in state was provoked by some trivia and went into tantrums and inflicted triple killings all in one sombre sunset Defence of insanity was not accepted. Yet death sentence was reduced to life imprisonment. ( 153 ) IN Rajendra Prasads case (supra) three appeals in all were considered together. In the appeal filed by Rajendra Parsad against the State of Uttar Pradesh the facts were that a long standing family feud had led to a tragic murder. The families of Ram Bharosey and Pyarelal had fallen out and periodic fuelling of the feud was furnished by the kidnapping of a wife the stabbing of a brother and the like. Pyarelals son had committed a murder. He was sentenced to lire imprisonment He was released after some years on Gandhi Jayanti Day Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times and the latter succumbed. The trial Court imposed death penalty and the High Court confirmed the same. In the appeal filed by Kunjukunju Janardhanan against State of Kerala the facts were that one Janardhanan having a wife and two children developed sex relations with a girl. Appellant Janardhanan murdered the innocent wife and the two children in the secrecy of night. The Sessions Court awarded capital sentence and the High Court confirmed the same. In the appeal filed by Kunjukunju Janardhanan against State of Kerala the facts were that one Janardhanan having a wife and two children developed sex relations with a girl. Appellant Janardhanan murdered the innocent wife and the two children in the secrecy of night. The Sessions Court awarded capital sentence and the High Court confirmed the same. In the third appeal filed by Sheo Shankar the appellant his father and his brother were angrily dissatisfied with a family-partition and on the tragic day flung the vessels over the Division of which the wrangle arose went inside the house emerged armed picked up an altercation eventuating in the young man stabbing to death three members of the other branch of the family. He chased and killed excited by the perverted sense of injustice at the partition Here also capital sentence was awarded by the Sessions Court and was confirmed by the High Court. ( 154 ) THE above circumstances the Supreme Court hold that the case was not of a menace to the social order but was one of a specific factional feud. The facts of the present case also show that it is a case not amounting to menace to the social order hut is only a case which more or less a specific factional feud. ( 155 ) RAU Chima Chougule State of Maharashtra AIR 1977 Supreme Court 2407 also needs a reference in connection with the aspect under consideration In this case the daughter of the accused had eloped with Shivaji Ananda Dalvi. Appellant had fixed the marriage of his daughter Vijaya elsewhere. At the time of betrothal ceremony on 2/04/1975 when several guests had assembled for the occasion Vijaya escaped on the pretext that she wanted to put on new bangles. She did not return and the appellant gave out that she had fallen in and had been hospitalised. The boys party therefore left the place. It was alleged that Vijaya and Shivaji Ananda Dalvi eloped on 2/04/1975 A complaint was filed in that connection and ultimately Vijaya and Shivaji Ananda Dalvi were brought back to the Police Station. She did not return and the appellant gave out that she had fallen in and had been hospitalised. The boys party therefore left the place. It was alleged that Vijaya and Shivaji Ananda Dalvi eloped on 2/04/1975 A complaint was filed in that connection and ultimately Vijaya and Shivaji Ananda Dalvi were brought back to the Police Station. As Shivaji and Vijaya expressed their desire to get married the appellant gave in writing to the police station that Vijaya in fact was 20 wears old and that as she wanted to get married to Shivaji he did not want to proceed further with the matter because he had not in fact lost any ornaments or money. Vijaya and Shivaji thereafter married on the same day in the local temple and after their marriage Vijaya and Shivaji started living with the appellant. The appellant lured his son-in-law Shivaji and his daughter Vijaya into the belief that they were happy and secure under his roof. They were living with him and Shivaji was giving even his daily earnings to him. The subsequent conduct of the appellant left no doubt that he was not reconciled to that state of affairs and he was smarting under the humiliation caused by the conduct of the deceased. Ultimately the appellant had decided to murder them and he killed them with an axe and the intensity of the blows on vital parts of their bodies leave no room for doubt that he had selected those parts for the attack. In the circumstances the High Court had observed that the murders were therefore not only pre-planned and cold blooded but were acts of treachery of the `worst kind. In that state of affairs the Supreme Court endorsed the view of the High Court that there were special reasons which the High Court had recorded for imposing the extreme penalty of death. ( 156 ) IN the present case though the two murders of Santoksing and Biharilal were pre-planned and cold-blooded the same do not amount to acts of treachery of the worst kind in view of several aspects pointed out hereinabove. All murders are inhuman and some more so than others. At the highest the present case reveals the retri- butive instinct to seek an extra-legal remedy to a sense of being wronged. All murders are inhuman and some more so than others. At the highest the present case reveals the retri- butive instinct to seek an extra-legal remedy to a sense of being wronged. Accused No. 1 is not a professional murderer and there is no brutal dealing with the victims in the present case. The present is not a case of menace to the social order but at the chest it is a case of a partisan dispute. ( 157 ) HAVING considered the matter in all its aspects penal juristic and sociological we are unable to conclude that the present is the rarest of rare cases where the alternative option is unquestionably forceclosed. Capital sentence of accused No. 1 therefore will need to be reduced to life imprisonment. ( 158 ) ACCUSED No. 1 Babubhai Satyamram Rai is also found guilty for the offence punishable under sec. 27 of the Indian Arms Act and for this offence he is sentenced to suffer rigorous imprisonment for three years and to ply a fine of Rs. 12 0 (rupees twelve thousand only) in default of payment of fine to suffer further rigorous impri- sonment for a period of one year and six months. ( 159 ) SEC. 357 of the Code of Criminal Procedure 1973 empowers the Court to pass an order regarding payment of compensation. Sub- clause (c) of sub-sec. (1) of sect 357 of the Code of Criminal Procedure 1973 reads as under :"357 (1) When a Court imposes a sentence of fine or a sentences (including a sentence of death) of which fine forms a part the Court may when passing judgment order the whole or any part of the fine recovered to be applied. (a) x x x x (b) x x x x (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to the persons who are under the Fatal Accidents Act 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death". As we have noted above with the use of the firearm accused No. 1 had accomplished his unlawful purpose. We therefore order that the full amount of fine recovered from accused No. 1 in respect of the offence punishable under sec. As we have noted above with the use of the firearm accused No. 1 had accomplished his unlawful purpose. We therefore order that the full amount of fine recovered from accused No. 1 in respect of the offence punishable under sec. 27 of the Indian Arms Act be paid equ- ally to the persons who are under the Fatal Accidents Act 1855 (13 of 1855) entitled. ( 160 ) WE do not order similar payment of compensation from or out of the fine recovered from accused Nos. 2 3 5 and 6 because it appears to us from the perusal of sec. 357 of the Criminal Procedure Code 1973 that such an order would not be permissible under it since as a matter of fact no loss or injury has been caused by reason of any act of accused Nos. 2 3 5 and 6 by using the firearm for their own unlawful purpose. . ( 161 ) ALL the substantive sentences in respect of each of the accu- sed to run concurrently. ( 162 ) IN the result Criminal Appeal No. 1223 of 1984 is dismissed; Criminal Appeal No. 1229 of 1984 is partly allowed to the extent mentioned above; Criminal Appeal No. 1230 of 1984 is dismissed; Criminal Appeal No. 1146 of 1984 is partly allowed to the extent mentioned above and Criminal Revision Application No. 570 of 1984 is allowed and rule is made absolute. ( 163 ) CONFIRMATION Case No. 1 of 1984 fails as the capital sentence of death imposed on the accused No. 1 Babubhai Satyamram Rai by the trial Judge is not confirmed. (ATP) orders modified. .