Judgment N. V. DABHOLKAR, J. ( 1 ) BOTH these proceedings, i. e. Reference submitted by IInd adhoc Additional Sessions Judge, Ahmednagar, under Section 366 of the Code of Criminal procedure, 1973 for confirmation of death sentence, and the appeal against conviction under Section 374 (2) of the Code of Criminal procedure, by original accused No. 1, arise out of the judgment and order dated 14-2-2005, delivered in Sessions Case No. 34 of 2003. At the conclusion of the said Sessions Trial, appellant-accused No. 1-Goraksha is held guilty for offences punishable under Sections 302 and 201 of Indian Penal Code. He is sentenced to death (to be hanged by neck till he is dead), fine of Rs. 10,000/-, in default, simple imprisonment for one month on account of finding of guilty, so far as charge of murder is concerned. He is also sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 10,000/-, in default simple imprisonment for one month on the second count, i. e. for offence punishable under Section 201 of I. P. C. Accused No. 2 - Mininath (younger brother of present appellant) and accused No. 3 Sunita (wife of present appellant), who were charged together with present appellant Goraksha as co-accused; are acquitted by the Trial Court of all the charges levelled against them. ( 2 ) PECULIARITY of the case is that, the investigation was set into motion, not by any first Information Report, but by the dead bodies of the three victims, recovered in two different trains at two different locations, namely, Daund (District Pune, Maharashtra) and Bhopal (Madhya Pradesh ). On reference to the depositions of PW-8 B. B. Joshi, then working as Deputy Station Manager (Commercial) at Bhopal Railway Station, PW-9 premchand Jatav, Deputy Station superintendent of Bhopal Railway Station, and pw-11 Someshwar Mishra, ASI attached to bhopal Railway Police Station, it appears that one black coloured unclaimed trunk (metallic box) was noticed in Bogie No. S-6 of Train no. 2779 (Goa-Nizamoddin Express), which arrived at Bhopal Railway Station on 25-10- 2002 at about 7. 10 p. m. (19. 10 hours ). Existence of such trunk was informed to PW- 8 on telephone at about 19. 05 hours, by commercial Controller, Abhijaganj Railway station. Shri. Joshi gave this intimation in writing to Railway Policerbhopal. 2779 (Goa-Nizamoddin Express), which arrived at Bhopal Railway Station on 25-10- 2002 at about 7. 10 p. m. (19. 10 hours ). Existence of such trunk was informed to PW- 8 on telephone at about 19. 05 hours, by commercial Controller, Abhijaganj Railway station. Shri. Joshi gave this intimation in writing to Railway Policerbhopal. PW-9 Shri. Jatav had learnt this by a written memo sent to him, by Shri. R. K. Arora, Train Ticket examiner (TTE), who had informed that, blood was flowing out from the said black coloured trunk. ASI Someshwar Mishra (PW-11), had swung into action on receipt of communication (Exhibit 62) from PW-8 Balkrushna Joshi. It appears that, PW-11 drew the panchanama of the trunk in the presence of PW-9 Premchand and one Rajiv Chavan (Exhibit 66) and also seized sample of blood flowing from the trunk (Exhibit 67 ). ASI Mishra appears to have drawn the sketch of the location of the trunk in the train (Exhibit 70 ). The trunk was brought to railway Station, which had two locks, one of white colour and another of blue colour. Upon opening the trunk, the same was found to contain the dead body of a male. Upon opening the trunk in presence of Dr. Harsh Sharma, photographs of the dead body were taken. There was a lace around the neck, covering the throat. Blood was flowing from mouth and nostrils. There was a sari placed on the dead body. Dr. Harsh Sharma advised ASI Mishra to get DNA done, vide communication (Exhibit 71 ). After sending the dead body in the trunk to the mortuary, vide Exhibit 72. ASI Mishra registered A. D. No. 02 of 2002 under Section 174 of the Code of Criminal Procedure, 1973 (Exhibit 73 ). ASI Mishra has also drawn inquest of dead body in presence of panchas (Exhibit 75 ). Of course, here the dead body is said to be of unknown male. The dead body was sent for post-mortem with forwarding letter (Exhibit-77 ). Exhibit-80 is the report by PW-19 medical Officer Dr. Smt. Rajani Armit arora, after performance of autopsy and she has opined that, "death was due to strangulation and is homicidal in nature". The death is said to have ensued 2-3 days preceding the postmortem. The dead body was sent for post-mortem with forwarding letter (Exhibit-77 ). Exhibit-80 is the report by PW-19 medical Officer Dr. Smt. Rajani Armit arora, after performance of autopsy and she has opined that, "death was due to strangulation and is homicidal in nature". The death is said to have ensued 2-3 days preceding the postmortem. It is the claim of ASI Mishra that, he also recorded the statements of certain passengers from the same bogie, from which the dead body was recovered and it was revealed that, the trunk was loaded in the bogie at Ahmednagar Railway Station, by two boys about 25 years old. Shri. Mishra entered the entire episode in station diary, vide entry no. 3073 and true copy of this station diary entry is produced at Exhibit 74. From Exhibit-79, receipt of payment of cremation charges, it appears that Bhopal Railway Police performed last rites on the dead body. Another panchanama (Exhibit-81) is drawn by ASI Shri. Mishra, by which he has seized empty trunk, two teeth of the deceased, the ligature lace, clothes of the deceased, sari by which the body was covered, two coins of Rs. 5/- and Rupee 1/- denomination found in the pocket. When asi Shri. Mishra submitted all these seized articles and occurrence report to Station House officer (SHO), The SHO Shri. R. N. Braru (PW-20) lodged the First Information Report (Exhibit-82 ). All the seized articles, as also the documents prepared by ASI Shri. Mishra, under section 174 of Criminal Procedure, 1973, including the photographs of the dead body (and also negatives), were brought to ahmednagar Railway Police Station, by PW-18 shri. Ramesh Tandale, Police Head constable, as per order dated 8-11-2002. This dead body recovered at Bhopal was ultimately identified to be of Ambaji Adsul (real father of accused Nos. 1 and 2 ). In fact, two more dead bodies (of female) were earlier recovered at Daund railway Station, on the same day i. e. 25-10- 2002, from Pune bound Nanded-Pune Express. The details of recovery are available in the evidence of PW-21 Pramod Jagtap, the then psi attached to Daund Police Station, and PW-22 sanjay Bhujadi, who was on duty in Nanded- pune Express 7602 Up, on 25-10-2002. The train left Manmad Railway Station at 3. 50 a. m. Sanjay was TTE for Bogie Nos. 1 to 9. The details of recovery are available in the evidence of PW-21 Pramod Jagtap, the then psi attached to Daund Police Station, and PW-22 sanjay Bhujadi, who was on duty in Nanded- pune Express 7602 Up, on 25-10-2002. The train left Manmad Railway Station at 3. 50 a. m. Sanjay was TTE for Bogie Nos. 1 to 9. Nothing abnormal took place at Kopargaon halt and till the train reached Ahmednagar Railway Station at about 6 to 6. 15 a. m. The train left ahmednagar at 6. 30 a. m. and stopped at next railway Station Akolner for crossing of the train coming from opposite directions. This was at about 6. 50 a. m. During the checking at Ahmednagar Railway Station of all the bogies, Sanjay noticed a big trunk in Bogie no. S-4 placed between the two toilets. There were no passengers in S-5 and the enquiry with passengers in S-4 led to the conclusion that nobody was claiming ownership of the said trunk. On train reaching Kesthi Railway Station after Akolner, Sanjay apprised the Station master about the big unclaimed trunk in Bogie no. S-4 and on reaching Daund (junction) at 8. 45 a. m. , Sanjay gave written intimation to grp, Daund Railway Police Station (Exhibit-132 ). White tin trunk was brought down to platform, when PSI Pramod Jagtap was already present, because of information given to him by Station Master, Mr. Kashyap. Shri. Jagtap got the trunk photographed. It was emanating dirty smell and blood like liquid was flowing from the trunk. The trunk was opened by breaking the lock, in presence of panchas, when it was found containing two female dead bodies, one of a woman aged 30 years and another of girl aged about 14 years. Both the dead bodies were tied with nylon rope. Those were placed on separate stretchers and inquests were drawn (Exhibits-31 and 32 ). After despatching the dead bodies for post-mortem, shri. Jagtap lodged FIR, which was registered as C. R. No. 43 of 2002 (Exhibit-125 ). White trunk, 7 photographs, clothes on the dead bodies were seized and deposited with the police Station. These dead bodies were subsequently identified as of Janabai w/o. Ambaji Adsul (step mother of accused Nos. 1 and 2) and Reshma Ambaji Adsul (step sister of accused Nos. 1 and 2 ). White trunk, 7 photographs, clothes on the dead bodies were seized and deposited with the police Station. These dead bodies were subsequently identified as of Janabai w/o. Ambaji Adsul (step mother of accused Nos. 1 and 2) and Reshma Ambaji Adsul (step sister of accused Nos. 1 and 2 ). ( 3 ) IT is not disputed that, Ambaji adsul was real father of accused Nos. 1 and 2 and accused No. 3 is wife of accused No. 1. Deceased Janabai was second wife of Ambaji and, therefore, step mother of accused Nos. 1 and 2. Deceased Reshma and PW-13 Sunil are the children born to Janabai, from Ambaji. Thus, they are step sister and step brother of accused Nos. 1 and 2. Admittedly, accused no. 1 was serving at the time of incident, while accused No. 2 Mininath was employed as driver with one Arun Kale at Ahmednagar. Sunil was studying in 5th standard and the entire family was joint family, residing together at Tekade vasti within territory of Hivare-Korda village, which is near to village Maikop. It is the prosecution case that, there used to be quarrels, in connection with the agricultural land and accused Goraksha used to demand partition of the land and other property. He is said to have also assaulted the father during these quarrels. At the material time, accused No. 1 Goraksha had returned home for Diwali. He had brought with him sweets (Pedhas ). He is said to have offered these to all i. e. Ambaji, Janabai, Reshma and Sunil, on the night of 23-10-2002 and it is alleged that these Pedhas contained some sedative. After the supper, entire family went to bed. It is alleged that, accused Goraksha killed father, step-mother and step-sister, by strangulation and packed the dead bodies in two big metallic boxes, one was black and another white, which he loaded in the trains i. e. Goa-Nizamoddin express 2779-Up and Nanded-Pune express 7602-Up, which were recovered at Bhopal and Daund Railway Station respectively, as described hereinabove. It is said that, Sunil and accused Sunita required medical assistance on the next day, as they suffered vomiting and dysentery, presumably, as a result of food poisoning, because of Pedhas containing unknown sedative/poisonous substance. It is said that, Sunil and accused Sunita required medical assistance on the next day, as they suffered vomiting and dysentery, presumably, as a result of food poisoning, because of Pedhas containing unknown sedative/poisonous substance. It is also claimed by the prosecution that, on enquiry about whereabouts of Ambaji, Janabai and Reshma, accused initially informed that they had gone to Ahmednagar for medical treatment and subsequently, he claimed to have received telephone call from the father, giving him a message that they were proceeding to holy place Pandharpur. According to narration attributed to accused No. 1-Goraksha, by PW-17 pandurang (brother of deceased Janabai), goraksha had informed that such a telephonic message was received on the telephone owned by Balasaheb Sinare. It is said that, accused no. 1 hired Maruti van owned by PW-14 bapusaheb Shinde, for the purpose of carrying the chests containing dead bodies from the village Maikop to Railway Station, ahmednagar. It is also the case of the prosecution that prior to loading in the hired maruti van, the accused had kept one trunk at the residence of PW-7 Sakharam Nabge, a friend of accused, and another trunk near the electricity board D. P. of village Maikop. When and how the trunks were transferred from the residence of accused to the residence of Nabge and the electricity D. P. , has not come on record, by suitable evidence. ( 4 ) THERE being no direct evidence regarding killing of real father, step-mother and step-sister, by either of the three accused persons, the prosecution has tried to establish its case by relying upon circumstantial evidence. While narrating the prosecution story hereinabove, we have aleady described some pieces of evidence on record. It will be useful to describe the other circumstantial evidence on record in the form of oral evidence of the witnesses and the documents here itself, although by mixing with the prosecution story, before proceeding to consider the judgment of the trial court and its correctness or otherwise, in the light of submissions by the two Counsel. In the order of importance, it is felt that, following witnesses should take quite a high position. PW-14 Bapusaheb Shinde is the owner of Maruti Van No. BLD-3780, which was hired by accused Goraksha for carrying two trunks containing three dead bodies for carrying from village Maikop to the Railway Station, ahmednagar. In the order of importance, it is felt that, following witnesses should take quite a high position. PW-14 Bapusaheb Shinde is the owner of Maruti Van No. BLD-3780, which was hired by accused Goraksha for carrying two trunks containing three dead bodies for carrying from village Maikop to the Railway Station, ahmednagar. PW-12 Baban Vishnu Thorat is a friend of Bapusaheb Shinde. Both of them were together, when accused No. 1 contacted them and contracted for hiring of the Maruti Van, on 24-10-2002, while the two were at Bhalvani market with six seater owned by Baban. They were also together, when the two trunks were lifted in the early dawn hours of 25-10-2002, one from residence of PW-7 Nabge and another from D. P. of MSEB. Thus, these two are the witnesses on the point of accused Goraksha carrying the trunks containing dead bodies to ahmednagar Railway Station. PW-15 Aradhana Mathur was a passenger in Goa Nizamoddin Express train, who has identified accused No. 1 as a person loading black trunk in the bogie. PW-7 Sakharam Nabge is a personal friend of accused No. 1 and naturally, he has not rendered support to the prosecution story that, one tin trunk was kept by accused No. 1, at his residence before loading it in the Maruti van at early dawn hours of 25-10-2002. PW-17 Pandurang Devbhat is the brother of deceased Janabai. His evidence is important for identification of the dead bodies and subsequent conduct of accused, informing that the parents and Reshma have proceeded to pandharpur. PW-13 Sunil is step-brother and his evidence is relied upon for the purpose of establishing that, accused had administered some sedative to the victim, by offering them pedhas on the fateful night. PW-10 Dr. Sanjay Pande was attached to Dr. Mate's Hospital at Bhalvani at the material time and he claims to have treated PW-13 sunil and accused No. 3 Sunita on 24-10- 2002, when they had approached him with complaints of diarrhea. According to him, at that time, they were also accompanied by accused Goraksha. PW-10 Dr. Sanjay Pande was attached to Dr. Mate's Hospital at Bhalvani at the material time and he claims to have treated PW-13 sunil and accused No. 3 Sunita on 24-10- 2002, when they had approached him with complaints of diarrhea. According to him, at that time, they were also accompanied by accused Goraksha. PW-23 Ezaj Ahmed was Judicial magistrate, First Class at Parner, and he had recorded statements of four witnesses, namely, meerabai Devbhat (sister of deceased Janabai), bapusaheb Shinde (PW-14), Baban Thorat (PW-12) and Pandurang Devbhat (PW-17 and brother of Janabai), under Section 164 of the code of Criminal Procedure, 1973, in the month of February, 2003, at the request of investigating agency. Remaining nine witnesses are those individuals, who have participated in the process of investigation. PW-16 Deep Narayan Sharma is the police photographer at Bhopal and he had taken the photographs of the trunk and the dead body, when recovered at Bhopal Railway Station. PWs.-1 to 6 are panch witnesses of different panchanamas. PW-1 Shivaji and PW-2 baban were panchas, when house of accused was searched and M-80 motorcycle, as also one diary bearing handwriting of accused goraksha, were seized. Both of them have turned hostile. Bicycle was seized from the house of accused in presence of panch-witness pramod Gole (PW-6 ). Some clothes of accused nos. 1 and 3 were also seized in his presence. Sarjerao (PW-5) attended the seizure proceedings when Maruti Van BLD-3780 was seized from PW-14 Bapu Shinde. PW-6 sukhdeo Jadhav is also a panch. Although it appears that panchanamas of seizure of articles brought by PHC Ramesh Tandale (PW-18) were drawn at Ahmednagar Railway Police station in his presence, he has turned hostile. He has also not supported the prosecution story that any inland letter or chit was seized from accused No. 2 Mininath. PW-3 Bhausaheb is also a panch-witness to the search of the house of accused, who also failed to support the prosecution. PW-24 K. C. Lawange and PW-25 C. M. Joshi, are the Investigating Officers. Shri. Lawange was then attached to Parner Police station, within whose territorial limits the parties were residing and incident is said to have occurred. PW-3 Bhausaheb is also a panch-witness to the search of the house of accused, who also failed to support the prosecution. PW-24 K. C. Lawange and PW-25 C. M. Joshi, are the Investigating Officers. Shri. Lawange was then attached to Parner Police station, within whose territorial limits the parties were residing and incident is said to have occurred. Shri. Joshi was in-charge of ahmednagar Railway Police Station and earlier part of investigation is carried out by him as the investigation started with discovery of dead bodies in the compartments of the train, which were believed to have been loaded in the trains from Ahmednagar Railway Station. There are more than 50 documents on record, which included various panchanamas of seizure, of arrests and of locations. The documents also include communications by government or Police Officials and the reports. In fact, in the peculiar facts and circumstances, there are more than one First Information reports, on record. There are statements of witnesses recorded by PW-23 Shri Ejaz Ahmed (Judicial Magistrate, First Class), photographs, negatives, portions contradicted by hostile witnesses, so on and so forth. Not that all those are referred in the judgment of the trial court, nor all those are likely to be referred by us, during discussion of reasons. This is because, there are very few, which have significant evidentiary value in establishing circumstances relied upon by the prosecution. There is larger strength of formal documents and hence, we propose to refer only few of them, at this stage. Exhibits-31 and 32 are inquest panchanamas of the dead bodies of janabai and Reshma drawn at Daund Railway station platform No. 3, on 25-10-2002 between 9. 40 a. m. to 11. 50 a. m. Exhibits-42 and 46 are panchanamas of seizure of M-80 motorcycle and bicycle respectively from the house of accused. Maruti Van was seized under panchanama Exhibit-50. Exhibits-51, 52 and 53 are panchanamas under which, accused nos. 1 to 3 were arrested. Exhibit-74 is station diary entry taken by ASI Someshwar Mishra (PW-11) of all the occurrences at Bhopal railway Station. Exhibit-75 is inquest of dead body recovered at Bhopal and Exhibit-82 is the fir lodged by R. N. Braru (PW-20), Incharge police Inspector of Bhopal Railway Station, although against unknown accused persons. Photographs of dead body of Ambaji are at exhibits-96 to 98 with negative at Exhibits-99 to 101. Exhibit-75 is inquest of dead body recovered at Bhopal and Exhibit-82 is the fir lodged by R. N. Braru (PW-20), Incharge police Inspector of Bhopal Railway Station, although against unknown accused persons. Photographs of dead body of Ambaji are at exhibits-96 to 98 with negative at Exhibits-99 to 101. Photographs of the dead bodies of janabai and Reshma were taken. at Daund Police station and altnough available, could not be exhibited for want of negatives, which were in the custo by of the photographer, who had expired by the time the matter had come up for hearing, as deposed to by PSI Jagtap (PW-21 ). Exhibit-80 is a certificate regarding result of post-mortem on the dead body of Ambaji, and Exhibits-113 and 114 are the reports regarding post-mortem on the dead bodies of reshma and Janabai, respectively. Exhibit-125 is the FIR lodged by PSI Jagtap (PW-21), upon discovery of two female dead bodies in a trunk at Daund Railway Station. Third complaint in the matter, is at Exhibit-140, which was lodged by PSI C. M. Joshi of Ahmednagar Railway police Station and which was registered as FIR by Parner Police Station, within whose territorial limits, the murders are alleged to have taken place. At Exhibits-150 and 151, are the letters received from Headquarters to which, accused No. 1 was attached and which provide details regarding leave enjoyed by him during relevant period. ( 5 ) SINCE accused Nos. 2 and 3 are acquitted by the Trial Court, we are not much concerned with what was their defence. However, on going through the replies to the questions during the course of statements under Section 313 of the Code of Criminal procedure, 1973, it can be seen that, no conflicting defences are raised. On the contrary, the defence of all three accused is. identical and they have claimed that a false crime has been registered against them and investigated. We intend to specifically refer to answers to some of the questions and we have ascertained that answers to these questions, where accused persons have spoken something, apart from usual "it is false", or "i do not know", by all three accused, are identical. In response to question No. 41 and question nos. 53 and 54, it is contended that, Baban (PW-12) and Bapusaheb (PW-14) have given statements before the Magistrate under pressure from police and brother of the deceased. In response to question No. 41 and question nos. 53 and 54, it is contended that, Baban (PW-12) and Bapusaheb (PW-14) have given statements before the Magistrate under pressure from police and brother of the deceased. While replying question No. 63, they have refused to identify the deceased Ambaji, on the basis of photographs at Exhibits-96 to 98. Even PW-17 Pandurang is said to have made false statement before the Magistrate, at the instance of Police (question No. 72 ). While replying question No. 74, accused have gone to the extent of saying that, the certificates endorsed by the Magistrate, below the statements of four witnesses recorded by him, are false. In the concluding part, while replying question No. 145, it is said that, some of the witnesses have rendered false evidence under police pressure; PW-17 Pandurang is alleged to be optimistic to get the lands of Ambaji, who believes that, if accused are placed behind the bar, he will easily get the lands. In response to question No. 42, all accused have admitted that at the time of incident, Ambaji, Janabai, three accused, PW-13 Sunil and deceased Reshma, were residing together at Tekade Vasti, within hivare-Korda shivar. Question to this effect is answered by appellant-accused No. 1, after the same was repeated to him, because initially, he claimed that he had not understood the question. On reference to answer to question No. 69, it appears that, accused continued with the story that, parents and Reshma had gone to pandharpur, or at least that, such a telephonic message was received by one Balasaheb Sinare. However, Balasaheb Sinare does not seem to have been examined as defence witness. Thus, it can be seen that, apart from denial and ignorance, accused have raised no other defence. ( 6 ) IN his lengthy judgment, running from paragraphs 6 to 43, learned Judge has considered all three points together i. e. regarding deaths of Ambaji, Janabai and reshma being homicidal, as to who must have subjected them to death, and also causing disappearance of the evidence for the purpose of offenders screening themselves from punishment. ( 6 ) IN his lengthy judgment, running from paragraphs 6 to 43, learned Judge has considered all three points together i. e. regarding deaths of Ambaji, Janabai and reshma being homicidal, as to who must have subjected them to death, and also causing disappearance of the evidence for the purpose of offenders screening themselves from punishment. Learned Judge has arrived at a conclusion that the deaths are homicidal, the offence of murder is proved only in respect of accused No. 1 (thereby impliedly, it is held that accused No. 1 alone has committed all three murders) and consequently, accused No. 1 alone is held guilty for causing disappearance of the evidence i. e. the dead bodies. This is obviously because evidence regarding despatch of the dead bodies by different trains and in separate boxes, is only against accused No. 1. After taking into consideration settled legal position in the matters based upon circumstantial evidence, the learned Judge has cautioned himself that, even letting a guilty escape, is not justice. As can be seen from discussion in paragraphs 8, 9 and 10 to 14 of the judgment, the defence had laid emphasis on the issue of identification of the dead bodies as being of ambaji, Janabai and Reshma, rather than challenging the medical opinion, while trying to persuade the court to record a negative finding on the issue of homicidal deaths of real father, step-mother and step-sister of accused nos. 1 and 2. Although post-mortem reports at exhibits-113 and 114, purportedly of Reshma and Janabai, do not record any opinion regarding cause of the death, learned Judge was of the view that the manner in which the dead bodies were transported was sufficient to indicate that the deaths were homicidal (in fact, this logic can also be applied to single male dead body recovered at Bhopal ). It was by relying upon evidence of PW-17 Pandurang Devbhat, who claimed that, Ahmednagar Railway Police had shown them (himself, Ananda and sister meerabai) not only the photographs but also clothes, on the basis of which, he identified the deceased as Ambaji, Janabai and Reshma, learned Sessions Judge held that, the dead bodies found in Bogie No. S-4 of Nanded-Pune express train at Daund Railway Station, were of Janabai and Reshma. In spite of hostility of panch-witnesses, by relying upon evidence of phq Ramesh Tandale (PW-18) and PSI C. M. Joshi (PW-25), learned Sessions Judge held that Ahmednagar Railway Police Station had received all the articles (except dead body seized by Bhopal Railway Police at Bhopal Railway station ). Death of Ambaji is held to be homicidal, by accepting opinion of Dr. Rajani armit Arora (PW-19) and sofar as identification of the dead body as being of Ambaji Adsul is concerned, learned Judge has also relied upon the endorsement at the top of post-mortem notes (Exhibit-119) by said Dr. Arora, which is based upon certain communication, probably, from Ahmednagar Railway Police. Expression at the conclusion of paragraph 15 of the judgment :- "in the light of this evidence, and particularly evidence of near relative of deceased Ambaji, identifying the photographs of corpse of ambaji, are full-proof of the fact that unknown person, on whom PW-19 Dr. Rajani performed autopsy, is none else than ambaji Ahilaji Adsul. "indicates that, learned Judge has accepted the evidence of PW-17 as sufficient to identify the dead body at Bhopal to be that of Ambaji. This is because, PW-17, Pandurang in his chief-examination has claimed to have identified the clothes shown by police, to be belonging to three victims and his having identified the three victims on the basis of photographs. In paragraph 16 of the judgment, learned judge discussed evidence of PW-7 Sakharam nabge (a friend of accused No. 1, from whose residence one trunk was allegedly loaded in the maruti Van) and expressed his belief that, sakharam Nabge is a witness won-over by the defence. For the reasons discussed in paragraphs 17 and 18, regarding evidence of pw-12 Baban Thorat, the learned Judge has shown inclination to accept his evidence as proof beyond reasonable doubts, connecting accused No. 1 with the charge against him, as expressed at the conclusion of paragraph 18. This is in spite of infirmities pointed out by the defence, which learned Judge has discussed and explained in paragraphs 17 and 18 of the impugned judgment. This is in spite of infirmities pointed out by the defence, which learned Judge has discussed and explained in paragraphs 17 and 18 of the impugned judgment. Evidence of PW-14 bapusaheb Shinde, owner of Maruti Van, in which dead bodies were carried to Ahmednagar railway Station, is dealt with at length in paragraph 19 and in spite of hostility of the witness, the learned Trial Judge found part of the testimony worthy of acceptance, although the Judge found that, there are certain things about which the witness has given false evidence. By relying upon evidence of these two witnesses, learned Judge held : "on minute consideration of evidence of p. W. 12 and P. W. 14 and on serious application of mind, it is beyond doubt, the circumstances of accused No. 1 hiring maruti-Van and carrying muddemal trunks, wherein the dead bodies of the victims were placed and nothing more is to infer plausibly that it is the accused No. 1 Goraksha who placed the trunks in two trains. Nothing further is required to infer that it is the accused who after killing the victims, placed their dead bodies in those trunks so as to disappear evidence of the fact of triple murders. "child witness Sunil (PW-13) is assessed by discussion in paragraph 21 of the impugned judgment and his evidence appears to be useful for arriving at a conclusion that there were disputes between father and accused No. 1 about agricultural land which, according to the prosecution; is the motive. Evidence of Dr. Pande (PW-10) was found acceptable and corroborated by evidence of Sunil, about Sunil and Sunita having approached Dr. Mate's hospital on 24-10-2002 for treatment, as patients suffering from diarrhea, due to food-poisoning. PW-15 Aradhana has identified accused no. 1 as the person, who loaded trunk in Goa-Nizamoddin express train, on 25-10-2002. Learned Judge is of the view that, in spite of absence of test identification parade and certain improvements on her part, over and above her police statement, identification evidence of aradhana was reliable. While discussing evidence of PW-17, together with evidence of PW-13 Sunil, in paragraph 27 of the judgment, learned Judge held that, the evidence is sufficient to establish the motive i. e. the dispute about the agricultural land. The learned Judge has also observed that, there has been an attempt to offer false explanation, by trying to suggest that, accused no. While discussing evidence of PW-17, together with evidence of PW-13 Sunil, in paragraph 27 of the judgment, learned Judge held that, the evidence is sufficient to establish the motive i. e. the dispute about the agricultural land. The learned Judge has also observed that, there has been an attempt to offer false explanation, by trying to suggest that, accused no. 1 was on duty at Patiala, or that, there was a telephonic message of victims having proceeded to Pandharpur. For the purpose, learned Judge has also relied upon the details of leave record of accused No. 1. For the reasons discussed in paragraphs 41 and 42 of the judgment, the learned Judge has arrived at a conclusion that, there is absence of any evidence regarding participation of accused Nos. 2 and 3 (Mininath and Sunita) or common intention on their part and, therefore, learned Judge has arrived at a conclusion that, accused No. l alone is guilty of the offences punishable under Sections 302 and 201 of IPC. After hearing arguments of both the sides on the quantum of sentence and discussing cross contentions at length in paragraphs 44 to 61, the learned Judge arrived at a conclusion that, the case to be rarest of the rare and observed that, ". . . . it is but difficult to resist from concluding that the only sentence that will suit the accused and the proportionality of the crime committed is but death penalty". ( 7 ) WE have heard learned APP Shri. Kaldate and learned Advocate Shri. Jadhvar for appellant-convict, respectively. We have heard them at length, by devoting second half every day, from 16-8-2005 to 2-9-2005. In view of the fact that confirmation reference and the appeal against conviction, were being considered simultaneously, we have allowed advocate Shri. Jadhvar to open his arguments, take us through the evidence and offer his criticism and we have allowed him to reply without any restrictions, such as, replying only on law points, after learned APP concluded his arguments. This is because, he had a right to begin as a lawyer of the appellant, and at the same time, he had a right to reply in the reference for confirmation. This is because, he had a right to begin as a lawyer of the appellant, and at the same time, he had a right to reply in the reference for confirmation. ( 8 ) HAVING gone through the entire judgment, we felt that, in spite of realizing that the case is one based upon circumstantial evidence, learned Judge has failed to give appropriate treatment to the same. He has not crystalized the circumstances on which the prosecution relied and claimed that those circumstances establish a continuous chain between the crime (triple murder and causing disappearance of evidence of the same) and the culprit (accused No. 1) and as to how those circumstances eliminate every other hypothesis, except guilt of the accused i. e. accused No. 1 alone and none else, either to the exclusion of accused No. 1, or together with accused No. 1, has committed the offences. He has discussed the evidence, witness by witness. He has accepted the evidence of PW-12 Baban, PW- 14 Bapusaheb and PW-15 Aradhana, and arrived at a conclusion that accused No. 1 loaded two trunks in two different trains, which were subsequently recovered at Daund and bhopal Railway Station found to be containing dead bodies of two females and one male victims, respectively. He has accepted the evidence of PW-13 Sunil and PW-17 pandurang, as proof of motive and subsequent false explanations on the part of appellant-accused no. 1. He has accepted the evidence of Dr. Pande, to believe that Sunil and accused no. 3 had approached him for treatment as patients of food-poisoning. Though not discussed in very specific terms, learned Judge has impliedly accepted theory of prosecution that the victims were administered sedatives through Pedhas, by accused No. 1. Evidence of Sunil is also accepted for togetherness of the family on the fateful night. With these circumstances, and in the light of absence of any specific evidence pointing finger towards accused Nos. 2 and 3, learned Judge arrived at a conclusion that, accused No. 1 and accused no. 1 alone, must have committed all three murders and despatched all the dead bodies, by placing those in two different trains, in order to cause disappearance of the evidence and thus screen himself from legal punishment. 2 and 3, learned Judge arrived at a conclusion that, accused No. 1 and accused no. 1 alone, must have committed all three murders and despatched all the dead bodies, by placing those in two different trains, in order to cause disappearance of the evidence and thus screen himself from legal punishment. In view of the fact that, capital sentence is imposed, even this aspect, whether accused No. 1 alone must have committed all the murders, in the absence of any direct evidence, was and is required to be considered seriously. This is not for the purpose of finding out whether accused Nos. 2 and 3 are rightly acquitted, or not, because there is no appeal preferred by the State against their acquittal, but this would be necessary to confirm that accused No. 1 alone committed three murders. This is a crucial part of the prosecution case, which has persuaded learned Judge to impose ultimate sentence, upon appellant-accused No. 1. ( 9 ) LEARNED APP and learned Counsel for the appellant together have crystallized and enlisted the circumstances, upon which the prosecution relies to claim that, it has proved the case beyond reasonable doubt, as against accused No. 1. They have helped us consider the evidence, witness by witness, advanced submissions regarding acceptability and reliability of each witness and then to assess as to which of the circumstances are firmly established, by the acceptable and reliable part of the evidence. The circumstances relied upon by the learned A. P. P. for the State, and which are tried to be challenged as not established, by the learned defence Counsel, can be enlisted as follows :- (I) Motive - dispute over agricultural lands/ partition. (Evidence of PW-13 Sunil and pw-17 Pandurang ). (ii) Last seen together - (Togetherness by virtue of joint family ). (iii) Administration of sedative through sweets. (Evidence of PW-13 Sunil and pw-10 Dr. Pande ). (iv) The disposal of dead bodies by accused no. 1 (Evidence of PW-12 Baban, PW- 14 Bapusaheb ). (v) Identification of accused No. 1 as person loading one truck in Goa-Nizamoddm express train (PW-15 Aradhana ). (vi) Homicidal death. (vii) False theory/explanation propounded by accused for absence of the victim. (Evidence of PW-13 Sunil and PW-17 pandurang ). Pande ). (iv) The disposal of dead bodies by accused no. 1 (Evidence of PW-12 Baban, PW- 14 Bapusaheb ). (v) Identification of accused No. 1 as person loading one truck in Goa-Nizamoddm express train (PW-15 Aradhana ). (vi) Homicidal death. (vii) False theory/explanation propounded by accused for absence of the victim. (Evidence of PW-13 Sunil and PW-17 pandurang ). Due to peculiarity of facts and circumstances of the case, two out of seven circumstances, stand established by themselves and do not require much evidence to prove the same. These are the circumstances at Serial No. (ii) last seen together and (vi) Homicidal death. We may demonstrate in brief as to how these circumstances stand established by the material on record, in the light of facts and circumstances of the case. ( 10 ) HOMICIDAL death. Learned sessions Judge has observed that, the manner in which all the dead bodies were transported, by packing those in big trunks and by different trains, itself is indicator of homicidal death. We find no reason to differ with this opinion, although the finding of homicidal death is based upon such opinion. The defence has not raised any challenge about one male dead body being found in a trunk and two female dead bodies in another trunk detected at Bhopal and Daund railway stations, on the same day i. e. 25-10- 2002, at about 6. 30 p. m. or 7. 00 p. m at Bhopal in Goa-Nizamoddm Express and at about 9. 00 a m. in Nanded-Pune Express at Daund. Without reference to particular witnesses on the point of such detection, it can be said that these witnesses have no concern whatsoever with either of the accused, in the past and they have no reason to make out a false case against either of the accused. Otherwise also, hypothetically, it can be considered that, it is not possible to make out a false case wherein, dead body is involved/required. In brief, we may state that, evidence of PW-8 Balkrushna joshi, PW-9 Premchand Jatav and PW-11 someshwarprasad ASI (Railway and Police officials at Bhopal Railway Police Station) and similarly, evidence of PW-21 Pramod Jagtap, psi and PW-22 Sanjay Bhujadi, TTE (the Police and Railway Officials at Daund), is more than enough to establish the detection of dead bodies from unclaimed trunks in the respective trains, on that day. The prosecution has examined Dr. The prosecution has examined Dr. Smt. Rajani Armit Arora at Exhibit-118, who had performed autopsy on the dead body detected at Bhopal Railway Station. Post-mortem notes are at Exhibit-119 and brief opinion given by her immediately after post-mortem, is also on record at Exhibit-80. Dr. Smt. Arora has opined that, death was due to strangulation and is homicidal in nature. Her opinion is fully supported by the fact that, when the dead body was detected, a ligature in the form of khaki colour lace was also found around the neck of the victim. There were ligature marks on the neck located 9 cms. below chin and of the circumference of 32 cms with width 1. 5 cms. Opinion recorded by Dr. Smt. Arora cannot be faulted with and death of male victim stands proved to be homicidal. Post-mortem notes pertaining to two female victims, are at Exhibits 113 and 114. The first one is of a female child aged 14 years, and the second one of adult female victim, aged 30 years. The contents of both the postmortem notes are identical. The Medical officer has observed no external injuries, but eyes were open and protruding, even tongue was swollen and protruding Although the medical Officer has opined that cause of death cannot be given, time of death is said to be more than 24 hours prior to the time of postmortem. On reference to evidence of PSI pramod Jagtap (Exhibit-21), it is evident that the hands of both the dead bodies were tied with nylon rope. Even if it is presumed for the sake of argument that, the two female victims were packed in the big trunk, while they were alive and then the trunk was despatched by train, there cannot be any other inference regarding the intention of the assailant and the nature of the death. The intention was killing and the death must be said to be homicidal. It cannot be imagined that in cases of accidental, suicidal or natural death, the dead bodies can be packed in a trunk and despatched by the train. The position in which the dead bodies were detected and the inference of despatch can be drawn from it, suffice to establish that the deaths were homicidal. We find no reason to differ from the conclusions drawn by the learned Trial Judge that the deaths were homicidal. The position in which the dead bodies were detected and the inference of despatch can be drawn from it, suffice to establish that the deaths were homicidal. We find no reason to differ from the conclusions drawn by the learned Trial Judge that the deaths were homicidal. ( 11 ) IN fact, as expressed earlier, what we find is that, the defence has tried to challenge the prosecution, by disputing the identity of the victims, rather than disputing the opinion of the Medical Officer, or the contention that the deaths were homicidal. On this count, the manner in which the dead bodies were identified to be that of Ambaji Adsul, janabai and Reshma, is required to be considered. On reference to complaint lodged by psi Shri C. M. Joshi of Railway Police Station, ahmednagar with Parner Police Station on 17- 11-2002 (Exhibit-140), he has narrated that on 12-11-2002, he received information on telephone from unknown caller that Ambaji, janabai and their daughter aged 15 years, were missing from Village Hivare-Korda, Taluka parner, since about 15 days. Consequently, he had approached Mininath and confronted him with the photographs of the dead bodies received from Bhopal, as well as Daund and mininath had identified them as his father, step-mother and step-sister. Shri. Joshi has also deposed to this effect. Although Mininath was tried together with present appellant and therefore, was an accused in this case, his statement to police, or his action of identifying the victims, as his father, step-mother and stepsister, without reference to guilt, is certainly not a confessional statement. The evidence of psi Joshi, to the effect that he had got the victims identified, by confronting photographs to Mininath, need not be eliminated as confessional statement to police officer. The photographs of Ambaji are available on record at Exhibits-96 to 98. As already stated, photographs of Janabai and Reshma, although taken upon recovery of the dead bodies as narrated by PSI Jagtap (PW-21), could not be exhibited, because negatives became unavailable due to death of the photographer Shri. Attar. In this context, a reference to evidence of PW-17 Pandurang is necessary. He is real brother of Janabai and thus closely related to all the three victims. On 12-11-2002, pandurang learnt through Rohidas Adsul (cousin of accused Nos. 1 and 2) that, Mininath was taken by Ahmednagar Railway Police station for identification of trunks recovered in a train. In this context, a reference to evidence of PW-17 Pandurang is necessary. He is real brother of Janabai and thus closely related to all the three victims. On 12-11-2002, pandurang learnt through Rohidas Adsul (cousin of accused Nos. 1 and 2) that, Mininath was taken by Ahmednagar Railway Police station for identification of trunks recovered in a train. Rohidas also informed that, Railway police had desired his (Pandurang's) presence. Thereafter, Pandurang his brother Ananda and his sister Meerabai, went to Railway Police station, Ahmednagar. Police had shown them clothes recovered from the dead bodies, as also the photographs and according to Pandurang, he had identified these to be of Ambaji, Janabai and Reshma. Even in the court, he has identified Ambaji, on the basis of photographs at Exhibits-96 to 98. There is no reason to disbelieve version of Pandurang to this extent. It must be remembered that, in identifying the dead bodies, there cannot be imagined any ill-intention to frame anybody by false prosecution. Evidence of Pandurang alone is thus sufficient to hold that the dead bodies were identified to be that of Ambaji, Janabai and reshma. The challenge raised by the defence to the identification of the dead bodies was rightly replied by the learned Sessions Judge. ( 12 ) LAST seen together (togetherness ). On going through the cross-examination of important witnesses i. e. PW-7 Sakharam, PW-10 dr. Pande, PW-13 Sunil and PW-17 pandurang, the defence nowhere suggested that the deceased were seen in or around the village hivare-Korda on 24th or 25th October, 2002, or thereafter. On the contrary, the defence has come with a theory that the telephonic message was received by one Sinare of Village padali for being conveyed to accused Goraksha that, three deceased had proceeded to pandharpur. The defence has not suggested the precise date as to when Mr. Sinare received this telephonic message and when it was communicated to accused No. 1. The defence has not examined the said Sinare as witness. Consequently, night between 23rd and 24th october, 2002, was the penod when the victims were last seen together. On reference to evidence of PW-13 Sunil (Exhibit-90), he was studying in 5th standard at the material time, and he can be said to be a witness of sufficient understanding. The defence has not examined the said Sinare as witness. Consequently, night between 23rd and 24th october, 2002, was the penod when the victims were last seen together. On reference to evidence of PW-13 Sunil (Exhibit-90), he was studying in 5th standard at the material time, and he can be said to be a witness of sufficient understanding. He has deposed that, at the material time, (on day of incident), himself, his mother Janabai, father Ambaji, accused goraksha and his deceased sister Reshma and sunita (wife of accused No. 1) were residing together at Tekade Vasti within the precinct or village Hivare-Korda. Although accused goraksha was serving with Armed Forces, at that time, he had come for Diwali festival. He has further narrated that after the meals, all family members went to bed, he and sister reshma slept by the side of the table, father ambaji slept on the cot. Although he has not given specific location as to where the mother janabai and three accused slept on that night, he confirms togetherness of three accused, three victims and himself on the fateful night. In fact, this togetherness is not disputed by the defence. All three accused were confronted with the deposition of PW-13 Suml regarding this togetherness on the day of incident, by question No. 42 during the course of statement under Section 313 of the Code of criminal Procedure, 1973, and all three accused have accepted the same to be true. Although, accused No. 1 initially claimed that, he has not understood the question, he has admitted the version of Suml to that effect, to be true, after the question was repeated to him. Consequently, it must be said that the prosecution has established togetherness of all seven family members on the night of 23-10- 2002. ( 13 ) IN order to restrict the length of the judgment, we refrain from reproducing the arguments advanced by both the Advocates. To say in brief, it can be said that, without disputing that the case is based on circumstantial evidence, learned APP claimed the prosecution to have established a firm chain of circumstantial evidence, linking the appellant to the guilt, whereas the learned Counsel Shri. Jadhvar urged otherwise. To say in brief, it can be said that, without disputing that the case is based on circumstantial evidence, learned APP claimed the prosecution to have established a firm chain of circumstantial evidence, linking the appellant to the guilt, whereas the learned Counsel Shri. Jadhvar urged otherwise. Some of the major points urged by Advocate Shri. Jadhvar can be summarized as under :- (I) Motive of land dispute, when total land of joint family is admittedly about 3 acres and some gunthas, is too inadequate for triple murder. (ii) Witnesses Suml and Pandurang are assailed as unreliable witnesses. (iii) PW-7 Sakharam has turned hostile and pw-14 Bapusaheb has shown a tendency, to be on the side of the party, whose Advocate is questioning him. Demonstrating this, it was urged that the two witnesses are unworthy of credit, (iv) PW-10 Dr. Sanjay Pande, for want of any document regarding treatment to suml and Sunita, similarly PW-15 aradhana, in the absence of test identification parade immediately after registration of offence, are required to be disbelieved, in the opinion of learned counsel. Thus, for various reasons, argued by learned Counsel for the appellant, which we wish to deal with as and when we assess evidence of respective witnesses, it was submitted that they are got up witnesses and unworthy of credibility. Some minor points were also relied upon by Advocate Shri. Jadhvar. It was pointed out that, Meerabai, who took away Suml from Dr. Mate's Hospital, is not examined. The report of the analysis of Ambaji's viscera is not on record, the prosecution has not explained as to how it could reach three witnesses, namely, pw-7 Sakharam, PW-12 Baban and PW-14 bapusaheb, maruti van at the material time was registered in the name of one Rahul Ahuja and not in the name of PW-14 Bapusaheb. How, when and where the Magistrate recorded statements of four witnesses under Section 164 of the Code of Criminal Procedure, is also under cloud, according to learned Counsel for the appellant, because of discrepant version by these witnesses, with the narration by the magistrate, on that count. Because he prosecution has claimed that one trunk was loaded in the Maruti van at a location near electricity board D. P. and second at the residence of PW-7 Nabge (hostile) on 25-10- 2002 at early dawn hours, the learned Advocate has criticized this story, as unnatural and improbable. Because he prosecution has claimed that one trunk was loaded in the Maruti van at a location near electricity board D. P. and second at the residence of PW-7 Nabge (hostile) on 25-10- 2002 at early dawn hours, the learned Advocate has criticized this story, as unnatural and improbable. He posed a question to the prosecution that, would the accused not feel the trunks to be safe in his own residence, instead of one being shifted to residence of nabge and one being placed by the side of D. P. in a public place. The argument, to some extent, is based on the assumption that the trunks were shifted at those locations on the night between 23rd and 24th October, 2002 and that those were at shifted location during entire day of 24-10-2002 and night between 24th/25th october, 2002. It is needless to say that, learned APP tried to repel these arguments. The two lawyers have also placed before us the reported cases on the point of the case being/not being rarest of the rate. Here on, we intend to consider the evidence of vital and important witnesses, one by one and find out as to how much evidence of each of them precipitates as credible, trustworthy and acceptable and then to consider the same for finding out as to which of the remaining circumstances relied upon by the prosecution, are established with requisite firmness. We have already indicated that the prosecution case for establishing a complete chain of circumstances, mainly relies upon the evidence of PW-7 Sakharam, PW-10 Dr. Sanjay, PW-12 Baban Thorat, PW-13 Sunil, pw-14 Bapusaheb, PW-15 Aradhana and PW- 17 Pandurang and hence, evidence of these witnesses is required to be subjected to close scrutiny. ( 14 ) PW-7 Sakharam has deposed at exhibit-58. Immediately after recording few sentences, the learned Sessions Judge has endorsed a small note or demeanor that the witness was taking unnecessarily long time to reply. After taking cognizance of this, on 29- 7-2004 the matter seems to have been adjourned for a day. ( 14 ) PW-7 Sakharam has deposed at exhibit-58. Immediately after recording few sentences, the learned Sessions Judge has endorsed a small note or demeanor that the witness was taking unnecessarily long time to reply. After taking cognizance of this, on 29- 7-2004 the matter seems to have been adjourned for a day. On that day, after recording his evidence to the extent of hardly 8 or 10 sentences, which contained elementary and introductory details, such as, neighbourhood of the lands owned by the witness and the accused, witness and accused goraksha having taken education in the same school, village of the witness being on the way to the village of Goraksha and Goraksha being on visiting terms with the witness, the learned app had sought permission of the court to put questions in the form of cross-examination to the witness. In other words, the witness was declared hostile, without any indications at this stage, of witness not supporting the prosecution case. Learned Counsel for the appellant has taken an exception to this approach of the learned APP before the Trial court. According to him, the prosecution has taken an opportunity to wriggle out of the restriction of Evidence Act that, no leading questions can be put during the course of examination of a witness, by a party which had summoned him. Although the submission of the learned Counsel for the appellant may be true, subsequent progress of the examination of Sakharam has proved the impressions of the learned APP about the attitude of the witness, to be correct. His cross-examination by learned app running into five typed pages is full of replies, beginning with, "it is not true to say that" and "i do not know whether. . . . . ". It can safely be said that, he has not rendered any support to the prosecution. As admitted, he has studied upto 8th standard and is not totally an illiterate person. When confronted with the statement recorded by police on 13-11-2002, he has denied to have made statements marked as A, B, C and D, without being able to offer any explanation as to why police have recorded those, although not narrated by him. These contradictions were subsequently proved during the examination of P. I. Lawange and marked as Exhibits-152 to 155. These contradictions were subsequently proved during the examination of P. I. Lawange and marked as Exhibits-152 to 155. From these contradictions and suggestions given by learned app, it can be said that PW-7 Sakharam was a star witness of the prosecution. It is the claim of the prosecution that the appellant-Goraksha had kept his baggage at the residence of sakharam, when he arrived on leave and he had also kept one white trunk at the residence of this witness on 24-10-2002 at about 11. 00 a. m. For the purpose, he had used M-80 motor cycle and also taken help of this witness sakharam Nabge and the trunk was collected by appellant-Goraksha on 25-10-2002 at about 4. 00 a. m. by Maruti Van. Presumably, this trunk, in which the dead bodies of Janabai and reshma were subsequently recovered at Daund railway Station. We are referring to these contents from Exhibits 152 to 155 only for a limited purpose to point out that, PW-7 sakharam Nabge is a hostile witness and has refused to support the prosecution to any extent. By virtue of proviso to Section 162 (1) of the Code of Criminal Procedure read with section 145 of the Indian Evidence Act, such previous statements denied by the maker and proved by the recording officer, can be used only for the purpose of contradicting the witness and thereby impeaching his character. It is settled position that even if proved by recording officer, those cannot be used as substantive piece of evidence. Consequently, we are not in a position to read Exhibits 152 to 155 in evidence, nor we shall be in a position to say that, anything is proved by the prosecution on the basis of those portions from the earlier statement, contradicted by PW-7 sakharam. Those serve a limited purpose of prosecution. By indicating that Sakharam had stated before the Police in a particular manner and supporting the prosecution case and that now he is not supporting his earlier statement, enables the prosecution to demonstrate that sakharam is not a trustworthy witness and other evidence on record, or witness examined on the same point, or regarding the material which overlaps in the evidence of other witness and Sakharam, cannot be disbelieved because such material or witness has provided evidence in conflict with denials by Sakharam. Eventually, in the lengthy cross-examination of learned APP Sakharam has admitted one suggestion which reads :- "i have stated before police that on 23-10- 2002 at night, Goraksha, Mininath and sunita gave poisonous Pedhas to Ambaji, janabai and Reshma and when they started giddiness, they were throttled and after they were killed, the dead bodies of Janabai and reshma were kept in white trunk and dead body of Ambaji was kept in black trunk, the black trunk was left in Goa-Nizamoddin express and white trunk was left in nanded-Pune train. "he has admitted that, he has not complained about the police forcing him to make a statement and supplementary statement. The portion quoted hereinabove, if available as proof of fact incorporated within the statement, would establish the facts contained in the same. Eventually, the statement begins with, "i have stated before police. . . . . ". There is nothing within the statement to indicate that Sakharam was present and has perceived the details narrated in the extract above. The admission, therefore, is capable of establishing Sakharam having made such a statement to police and nothing more. In any case, Sakharam could not have been at the place of accused and deceased, all the while and much less at the dinner hours when Pedhas containing sedative or poisonous material were administered, as claimed by PW-13 Sunil. Suffice it to say that, evidence of PW-7 sakharam is of no use to the prosecution. ( 15 ) PW-12 Baban Thorat and PW-14 bapusaheb Shinde are the witnesses, who stand on the same footing for the prosecution purpose. They are friends between themselves. They are of the same village Hivare-Korda and they know the accused. They were also partners in the business of pigs. PW-14 bapusaheb is the owner of Maruti Van no. 3780. which is alleged to have been used for picking up the trunks from electricity board d. P. ard residence of PW-7 Sakharam and reaching those to Ahmednagar Railway Station. It is the prosecution case that, Goraksha had contracted this trip, by meeting them on 24-10-2002, while they were at Bhalvani market place. PW-12 Baban owns six-seater rickshaw, which was parked there and Goraksha had approached them saying that, next day he wr to travel for resuming his duties and, therefore, heavy baggage was to be transported to ahmednagar Railway Station. Accordingly, he had paid Rs. PW-12 Baban owns six-seater rickshaw, which was parked there and Goraksha had approached them saying that, next day he wr to travel for resuming his duties and, therefore, heavy baggage was to be transported to ahmednagar Railway Station. Accordingly, he had paid Rs. 100/- advance and he paid balance rs. 100 towards agreed hire charges of Rs. 200/-, after the boxes were reached to Ahmednagar railway Station on 25-10-2002 in the early dawn hours, by collecting these from the electricity board D. P. near village Maikop and from the residence of PW-7 Sakharam. Both the witnesses stand in the same shoes, sofaras perception of the facts useful for establishing the prosecution story,is concerned. However, as witnesses, they have not stood on the same pedestal. PW-12, Baban thorat has supported the prosecution, and was not required to be declared hostile. As against this, PW-14 Bapusaheb was not in a mood to support the prosecution, even while under cross-examination by learned APP, on 1-9- 2004. He turned around and supported the prosecution while under cross-examination by app, on 2-9-2004. During the course of cross-examination by defence, he again spoiled curry of the prosecution, by admitting that, wl en his statement was recorded by the Judicial magistrate, First Class, Parner, under Section 164 of the Code of Criminal Procedure, 1973, he replied to the Magistrate as was instructed by police and because police were waiting outside the residence of the Magistrate while the statement was recorded. He has claimed that, he was instructed to narrate before the magistrate as per the statement prepared by psi Joshi. He must be said to be a person, who was shaky in the witness box, not sure whether he should support the prosecution or otherwise he should withdraw his support to the prosecution. Bapusaheb is graduate of Arts faculty. Admittedly, he had approached Railway Station, ahmednagar, on 14-11-2002, together with pw-12 Baban, he and Baban did own six-seater auto rickshaw at the relevant time, and they used to park the same at Bhalvani market place, by the side of S. T. stand, they were jointly dealing in the business of pigs. He was knowing all the victims and accused persons as residents of his village. He had purchased Maruti van from one Ahuja of Ahmednagar for a consideration of Rs. 50,000/-, without obtaining a receipt. He was knowing all the victims and accused persons as residents of his village. He had purchased Maruti van from one Ahuja of Ahmednagar for a consideration of Rs. 50,000/-, without obtaining a receipt. During initial cross-examination by learned APP, he admitted that the Railway police had called them (self and Baban Thorat) because the trunks were carried by his Maruti van, the said trunks were of army personnel and the Railway Police had called them to enquire about accused Goraksha, carrying those trunk by his Maruti van. Till this time, witness was with the prosecution, and then he denied the suggestion by learned APP that, he had carried two trunks, one of black and another of white colour. In further cross-examination on 2-9-2004, he admitted accused no. 1 having made advance of Rs. 100/- at bhalvani market place on earlier day and balance rs. 100/- at Ahmednagar Railway Station, towards hiring charges of Maruti van. He also admitted PW-12 Baban and accused Goraksha having travelled with him in the Maruti van, when the trunks were transported to Railway station. In fact, after slight indication of hostility on 1-9-2004, during his chief-examination on 2-9-2004, he has fully supported the prosecution. He has also admitted recording of his statement by Judicial magistrate, First Class, Parner, on 7-2-2003 and correct recording of his answers. Thus, taking into consideration the entire examination of the witness by learned APP, it must be said that, except one denial on 1-9-2004, he has fully supported the prosecution. In the cross-examination, he made certain admissions, which are relied upon by the learned Counsel for the appellant-accused to support that those indicate Bapusaheb to be a got-up witness and a person pressurized by the police under the threat that, he may be impleaded as an accused person, unless he supports the prosecution. Bapusaheb created suspicion, by saying that, on 6-2-2003, police had taken them before the Magistrate at his residence at about 9. 30 p. m. Such an admission needs to be referred and ignored, because the magistrate is examined as PW-23 and he has stated that the statements were recorded in the court hall. In fact, the fact that the statements were recorded in the court hall, has occurred in the suggestion by the defence in the cross-examination. He has denied the suggestion that, four witnesses were produced at his residence at night time. In fact, the fact that the statements were recorded in the court hall, has occurred in the suggestion by the defence in the cross-examination. He has denied the suggestion that, four witnesses were produced at his residence at night time. Bapusaheb has made a fatal admission, by saying that, the police were insisting them that they would be arrayed as accused persons, if they do not make statements as per the instructions by police; that he replied the questions by Magistrate as instructed by police and as per their statements, as recorded by PSI joshi. When he narrated : "at both times, the police gave us our statement recorded by Mr. Joshi for reading, while instructing to state before the magistrate in accordance with the contents of 2 statements recorded by Mr. Joshi. "bapusaheb committed a blunder. His statements recorded on 6-2-2003 and 7-2-2003 are on record at Exhibits 92 and 93. He was produced before the Magistrate at 3. 00 p. m. and 3. 30 p. m. in the court hall, as recorded in the initial part of the statement. In fact, on the first day, the Magistrate has not recorded his statement, but he has only assessed willingness of the witness to make a statement. On the first day, police could not have prepared the statement, which the witness was expected to make before the Magistrate. These details available in Exhibits-92 and 93 falsify admission of Bapusaheb that, he was produced at the residence of the Magistrate and at night hours, and to some extent, also that, they were provided with their statements as recorded (prepared 7) by PSI Joshi, with instructions to depose accordingly. Learned Sessions Judge has indulged into questioning the witness at length, in paragraph 9, presumably for the purpose of ascertaining his truthfulness and hostility. This was not necessary, if above details are taken into consideration. That his admissions are wrong, is evident from his statements recorded by the Magistrate (Exhibits-92 and 93) and the details therein, which are in conflict with his admissions. Although, he narrated that, PSI Joshi prepared his statement, thereby suggesting that he has not made any voluntary statement before PSI joshi on 14-11-2002, he denied the defence suggestion, that on the day of evidence, before entering the court hall, he was instructed to compulsorily depose in a particular manner. Although, he narrated that, PSI Joshi prepared his statement, thereby suggesting that he has not made any voluntary statement before PSI joshi on 14-11-2002, he denied the defence suggestion, that on the day of evidence, before entering the court hall, he was instructed to compulsorily depose in a particular manner. On reference to section 164 of the Code of Criminal Procedure, 1973, it is evident that sub-section (1) speaks that the Metropolitan magistrate and Judicial Magistrate, First Class, are empowered to record confessions, as also statements made to him in the course of an investigation under this Chapter-XII of the code. Sub-sections (2), (3) and (4), lay down the manner in which confessions are to be recorded. Sub-section (5) states that, any statement, other than a confession, can be recorded in such a manner hereinafter provided for recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case. The Magistrate is empowered to administer oath to the person, whose statement is to be so recorded. On going through the entire provision, it can be seen that distinct modes are provided for recording confession of accused and the statement of a witness. Together with sub-sections (2) to (4), we are required to read section 281, when it comes to recording of a confession of an accused, and sections 274 to 276 about recording of the evidence of witnesses in different types of trials. It ean be seen that, for recording a statement of a witness, it is not obligatory on the Magistrate to explain the person making such a statement, that, he is not bound to make a statement, or that the same may be used as evidence against him, if he makes a statement, which is the requirement while recording a confession of an accused. On reference to Exhibits-92 and 93, or even the statements of Pandurang (Exhibits-103/ 104) and Baban (Exhibits-87/88), the magistrate has followed the procedure that is required to be followed for recording a confession He has given time for reflection to the witnesses He has satisfied himself that the witness is willing to make a statement i. e. he is voluntarily making the statement and not under any pressure. Sub-section (5) keeps a margin for the Magistrate to adopt the procedure best fitted to the circumstances of the case. Sub-section (5) keeps a margin for the Magistrate to adopt the procedure best fitted to the circumstances of the case. The Judicial Magistrate, First Class, Parner, therefore, did not commit any illegality in adopting the procedure for recording confession, while recording statements of these witnesses. If the proceedings, as followed by the learned Magistrate, are taken into consideration, it must be said that the witnesses voluntarily made statements before the magistrate. Eventually, the threat admitted by bapusaheb is quite a serious. According to him, police had threatened them to be arrayed as accused persons. Presuming it for the sake of argument that the witnesses were under such threat, the same could have arisen, not before recording of their statements by PSI Joshi. Unless these two witnesses had admitted to have earned the trunks from Maikop to Railway station, Ahmednagar, such a threat could not have been accorded, even by the police. As is evident from the details available, the police were groping in dark, even for establishing identity of the victims. It was only on 12-11- 2002, investigation got some direction, because of telephonic information by unidentified caller to PSI Joshi, that Ambaji, Janabai and their daughter were missing from the village Mauje hivare-Korda since 15 days (complaint Exhibit-140) the statements of these two witnesses were recorded by Mr. Joshi on 14-11-2002. Till then, there was no likelihood of Mr. Joshi knowing as to what role is played by these two witnesses, and there was no likelihood of according threats, when those statements were recorded. It is, therefore, false to say that, their statements were prepared by PSI Joshi and thereafter, they were threatened to be arrayed as accused persons, so that they should make statements as desired by police, before the Magistrate. Such a threat could have been accorded till the time charge-sheet was not filed. In any case, such a threat could not have been available as a weapon to the prosecution, when these witnesses stepped into the box. These witnesses cannot be presumed to have so much legal acumen that they are aware of provisions under Section 173 (8) of the Code of Criminal procedure that there can be collection of additional evidence, even after filing of charge-sheet. Ordinarily, these witnesses could not have believed the threats of police that they can be arrayed as 4th accused person, when they stepped into witness box. Ordinarily, these witnesses could not have believed the threats of police that they can be arrayed as 4th accused person, when they stepped into witness box. If these possibilities are taken into consideration, even accepting admissions of Bapusaheb in favour of the defence, it can be said that his statement to psi Joshi on 14-11-2002 must be his own and at the most, he is pressurized to make a similar statement before the Magistrate, when exhibits-92 and 93 were recorded. The depositions before the Sessions Court, in any case, cannot be said to be under the threat of being arrayed as accused persons. However, because Bapusaheb has shown tendency to swing on either side, his evidence favourable to the prosecution cannot be relied upon without corroboration. Learned Counsel for the defence was critical about the fact that Bapusaheb did not possess any receipt towards payment of rs. 50,000/- price for Maruti van, to Mr. Ahuja. Claim of Bapusaheb that, he purchased van from one Ahuja of Ahmednagar, is not an accident or co-incident. When we refer to cross-examination of PI Lawange, he states : "i do not know whether the said vehicle was registered in the name of one Mr. Ahuja till 19-12-2002. "reference to purchase of vehicle from ahuja by Bapusaheb was much prior to examination of PI Lawange. To take a judicial notice of practical life, a common man does not generally follow requirements of law in quite a number of transactions. This was a transaction of movable property and property within the article stands transferred to the purchaser with the delivery of movable. If bapusaheb claimed that he had purchased van, by payment of Rs. 50,000/-, evidence need not be looked with suspicion, merely because he did not possess acknowledgment of payment, or even because he did not possess registration in his favour, of the vehicle in question. On this aspect, we may usefully refer to observations by learned Judge in paragraph 19 of the impugned judgment. Record of the case showed that, Bapusaheb had applied for possession of Maruti van and after considering his claim, the Committing Magistrate had returned the Maruti van to Bapusaheb, on bond the circumstances relied upon by learned sessions Judge, certainly confirm the inference drawn by us on the basis of natural course of human conduct. Mr. Record of the case showed that, Bapusaheb had applied for possession of Maruti van and after considering his claim, the Committing Magistrate had returned the Maruti van to Bapusaheb, on bond the circumstances relied upon by learned sessions Judge, certainly confirm the inference drawn by us on the basis of natural course of human conduct. Mr. Ahuja did not claim attached Maruti van, during pendency of the trial, confirms that the movable was transferred in favour of proposed purchaser. ( 16 ) PW-22 Baban Thorat was not declared hostile by the prosecution and, therefore, it will suffice to say that in his chief-examination, he has fully supported the prosecution story that, on 24th evening, goraksha contracted Bapusaheb Shinde, while baban and Bapusaheb were together and hired maruti van of Bapusaheb for carrying his (Goraksha's) two trunks from Maikop electricity board D. P. and residence of PW-7 sakharam, to Railway Station, Ahmednagar he is resident of village Padah and PW-17 pandurang (brother of Janabai) also belongs to village Padah. His credibility was tried to be attacked by the defence, because he has no documents regarding joint business in pigs by bapusaheb and himself and because he does not know other details of the family and property of Bapusaheb. Both of them were plying a six-seater rickshaw at the material time the admission that many family details are not known, is innocent and bonafide admission we are unable to agree with learned Counsel for the appellant that the same leads to an inference that the claim of close acquaintance with Bapusaheb by Baban, is false. Baban was also assailed, because initially, he said that he has not brought papers i. e the permit registration etc. Baban was also assailed, because initially, he said that he has not brought papers i. e the permit registration etc. of his six-seater auto rickshaw, but during re-examination by learned APP, he took out some document regarding six-seater owned by him This, he produced from his pocket, without retiring from the witness box and he was honest to explain that during cross-examination, he was confused and, therefore, he said that he would produce the documents, if directed He was unable to state registration number of Bajaj M-80 motor-cycle used by accused Goraksha, on 25-10-2002 and which, accused No. 1 is alleged to have returned to PW-7 sakharam, after collecting second trunk from the residence of Sakharam The events were taking place in the early dawn hours and the fact that Baban did not know registration number of M-80, lends support to his statement that he was not knowing that the trunks earned dead bodies. In the ordinary course, there is no special reason why Baban should make a special note of registration number of the vehicle of the customer of his friend. This also explains as to why he did not make any disclosure, regarding carrying of two trunks to Ahmednagar Railway Station, till his statement was recorded on 14-11-2002. Admittedly, Goraksha was known as a soldier in the village and he himself had informed, on the former evening that he was to start his journey for resumption of his duties. Big size trunks with the soldiers was not prima facie a suspicious circumstance, for a carrier. Considerable length of his cross-examination has been devoted to persuade him to admit that he has made a statement before the Magistrate and Sessions Court, as desired by the Police under the threat of possibility of being arrayed as 4th accused person. He has admitted that, before recording statement of himself and Baban, on 6th and 7th February, 2003, by Judicial Magistrate, First Class, parner, police were frequently calling them for interrogations for 2-3 days, prior to the same. The police were also expressing that, one more unknown person was yet to be arrested and added as 4th accused and he had feared that the police may add him as 4th accused. The police were also expressing that, one more unknown person was yet to be arrested and added as 4th accused and he had feared that the police may add him as 4th accused. However, he has denied night detention by police He has answered all the suggestions by defence, regarding police instructing him to narrate in a particular manner before the magistrate, by saying that, the police only told him that, they may add him as 4th accused, if he tells falsehood. He also admits that his statement dated 14-11-2002 was read over to him by the police and he was instructed to narrate the same things before the Magistrate. He has denied that he was re-heased for the statement, or that he was handcuffed while being taken to the court. In spite of all these admissions, he denies to have made any false statement 14-11-2002. He has not indulged into claiming that PSI had prepared his statement dated 14-11-2002. Witnesses could not have been threatened by the police, before recording the statements dated 14-11-2002, as already discussed by us while dealing with the evidence of Bapusaheb. Because of his denials in paragraph 7 of all the defence suggestions, the doubts which arise because of his admissions regarding possible psychological pressure due to police expressing regarding addition of 4th accused, stand nullified. When it was suggested to him that, he was instructed by police to deny being under pressure, when questioned by the Magistrate on that aspect, he volunteered to explain that he himself told the Magistrate on 7-2-2003 that he was not underpressure and this was done after denying the defence suggestion. It must be said that, the witness has been fair to both, prosecution as well as defence. Although he admitted that police tried to put him under pressure, he was firm to say that, what he narrated, was not due to such pressure. The defence has not been able to suggest any animus towards accused, on the part of this witness. In the concluding part, it was suggested that, he was deposing false at the assurance of Pandurang and Meerabai that he would be made permanent within a month in the job with TELCO (Pune), which he had resumed in the recent past. He has denied the suggestion. In the concluding part, it was suggested that, he was deposing false at the assurance of Pandurang and Meerabai that he would be made permanent within a month in the job with TELCO (Pune), which he had resumed in the recent past. He has denied the suggestion. At the outset, the suggestion is not palatable that, illiterate or partly literate persons like Meerabai and pandurang would be able to exert influence on the management of a reputed firm like TELCO, a sister company of TATA group of industries. We are convinced that the evidence of Baban thorat can be accepted as trustworthy. Consequently, evidence of Bapusaheb Shinde, to the extent corroborated by Baban Thorat, also becomes acceptable and reliable. ( 17 ) FOR the reasons discussed in paragraph 22 of his judgment, the learned Judge found evidence of PW-10 Dr. Pande, to be not unreliable. Dr. Pande deposed at Exhibit-68 and his testimony is relied upon by the prosecution to establish a circumstance that on the night of 23-10-2002, accused Goraksha administered sedative, or poisonous substance to the victim by sweets (Pedhas ). We feel, evidence of PW-10 Dr. Pande, not worthy of credit for the same reasons, for which learned judge felt that he cannot be looked with disbelief due to that. Admittedly, Dr. Pande was not armed with any case-papers in respect of treatment given by him to Sunil and Sunita. He claims to have treated them on 24-10-2002. He was deposing on 3-8-2004 i. e. nearly after 1 year, 10 months, and yet, he narrates all the details, including as to what the patients had instructed and what treatment was given to them and how long they were admitted as indoor patients and, who had accompanied them (accused No. 1 ). Doctor is a person, who treats number of patients, every day. Version of Dr. Pande could have been acceptable, had he claimed that Sunil and Sunita were his regular patients or regular visitors to Dr. Mate's hospital, to which he was attached. Such is not his claim, Dr. Sanjay Pande can be believed only if he is a person with extra ordinary memory and there is no evidence of his possessing such extra ordinary memory. Evidence of Dr. Pande ought to be accepted with a pinch of salt. ( 18 ) EVIDENCE of PW-15 Aradhana also suffers from the same infirmity. Such is not his claim, Dr. Sanjay Pande can be believed only if he is a person with extra ordinary memory and there is no evidence of his possessing such extra ordinary memory. Evidence of Dr. Pande ought to be accepted with a pinch of salt. ( 18 ) EVIDENCE of PW-15 Aradhana also suffers from the same infirmity. True it is that, she is not a got-up witness. This is evident from the deposition of ASI Mishra from Bhopal and entries taken by him in the station diary, which indicate that he had recorded her statement, when trunk containing dead body of Ambaji, was recovered. She was deposing on 2-9-2004 about the events dated 25-10-2002. She can be trustworthy to the extent that she marked somebody loading trunk, like trunk possessed by a army personnel, in the bogie of the train in which she was travelling. Her evidence regarding identification of accused No. 1 cannot be accepted without demonstration of her extra ordinary memory. She must have had a very little opportunity to watch the individual. In terms of time. She had watched the individual loading the trunk. In the crowd on the platform. We feel that, the test identification parade was a must, before we could place implicit reliance on the evidence of Aradhana, sofar as identification of accused No. 1 is concerned. Her evidence is dealt at length by learned Sessions Judge in paragraph 23 to 26 of the judgment. Admittedly, no test identification parade was held immediately after arrest of accused persons on 14-11-2002 (Nos. 2 and 3) and 30-11-2002 (No. 1) respectively. On the contrary, Investigating officer PI Lawange had audacity to say that he felt that test identification parade to be not necessary evidence of Aradhana was challenged, by pointing out that she had not given description of the person loading the trunks in goa-Nizaamoddin express and no test identification parade was held. In order to believe her, learned Judge has indulged into surmise as follows :- "it several times happens that when abnormal conduct of a person is noticed by one, one remembers such person, irrespective of time lapsed. In the instant case, this absolutely cannot be ignored. Merely because identification parade is not held, is also not a ground to disbelieve evidence of PW 15 Aradhana. In the instant case, this absolutely cannot be ignored. Merely because identification parade is not held, is also not a ground to disbelieve evidence of PW 15 Aradhana. "although learned Judge was attracted by the reply of Aradhana that things having special significance are normally remembered and not forgotten, he lost sight of the fact that special significance was noticed only at Bhopal railway Station and not at the time when the trunk was loaded at Ahmednagar. Aradhana has said that her father-in-law was serving with armed forces. Her permanent address is at pune and she must be aware of regular movement of people from Armed forces at ahmednagar. A trunk appearing to be that of a army person, being loaded in the train, was certainly not a matter of special significance. Deposition of Aradhana is full of details, which she narrated for the first time and when confronted with the improvements, every time she has answered that she did not state so during statement recorded at Bhopal by police, because she was not asked a question on that aspect. The investigating officer, or officer recording the statement, may help the witness in order to extract details, but the witness cannot be pardoned for not narrating significant details during the statement, which he deposes for the first time in the court. An educated witness should also be equally aware that the police recording his statement is for obtaining all possible details regarding the crime. When a dead body was recovered from the trunk at bhopal, Aradhana must have been aware that now the matter is of significant importance. If she had noted the person, who loaded the trunk, it was her duty to disclose all possible details. Such as, description of the person, which would help police identify him, how she happened to mark the person e. g. that the person was looking here and there even after departure of one of the two, is the reason why aradhana minutely observed that person. Her police statement ought to have revealed that, her attention was attracted and she happened to specially observe the person loading the trunk, because of his unnatural or suspicious behaviour. Merely because there is no reason why a witness should tell lies, is not ground to presume that the witness is telling the truth. Her police statement ought to have revealed that, her attention was attracted and she happened to specially observe the person loading the trunk, because of his unnatural or suspicious behaviour. Merely because there is no reason why a witness should tell lies, is not ground to presume that the witness is telling the truth. Mortals are capable of deposing wrong impressions as facts, or even innocently coming out with an explanation to support the statement made before the court. It appears from paragraph 25 of the judgment that the case of Dilip Thapa Vs. State of Maharashtra, 2003 ALL MR (Cri) 1360, was relied upon by the defence, wherein it was held that the evidence of witness identifying the accused in court after nearly four years, cannot be made basis for conviction. Learned Judge rejected the application of this case, because Aradhana's evidence was not the only evidence but there were other witnesses. Approach of learned Judge is partly correct and partly wrong. He may justify in saying that, the prosecution has proved accused No. 1 to have lodged the trunk in the train because he had brought those upto Ahmednagar Railway station with the help of PW 12 Baban and PW 14 Bapusaheb, but this cannot help the Judge to hold that the evidence regarding identification of accused No. 1 by Aradhana, is convincing and reliable. Identification of accused No. 1 by Aradhana is required to be looked into as an independent event and circumstance. In the matter of Anwar alias Sikandar vs. State of Maharashtra, 2003 ALL MR (Cri) 1458, which was relied upon by the defence before the trial court and which is discussed in paragraph 26 of the impugned judgment, this High Court has laid down : "when a witness is identifying the accused for the first time in the court and after a time gap of three years and when accused was a stranger to the witness (not acquainted earlier to the incident), such evidence of identification cannot be accepted and is required to be discarded. "the learned Judge dismissed the applicability of this authority, by following observations : "every observations are made on facts and are of no unverser (universal ?) application. There is no law, which prohibits the identification of the accused in court by witness. "the learned Judge dismissed the applicability of this authority, by following observations : "every observations are made on facts and are of no unverser (universal ?) application. There is no law, which prohibits the identification of the accused in court by witness. In fact, in the instant case, on minute consideration of the evidence of PW 15 Aradhana, produce compels to accept the fact of PW 15 Aradhana identifying accused No. 1, Goraksha. "unfortunately, it must be said that, the learned judge has dealt with the case relied upon, with erroneous approach. It is settled law that, identification from the witness box is a substantive piece of evidence and not the identification of test identification parade The fact that the stranger accused was identified by witness at the test identification parade, lands assurance to the identification evidence rendered from the box. The case relied upon, has indicated that when accused to be identified is a stranger to the witness and if there was no identification by witness during the test identification parade, held immediately after the arrest, and when features of the stranger accused were still fresh in the memory of the witness, identification of such accused by the witness, for the first time from the witness box after considerable time gap, which causes erasion of the memory, cannot be accepted. The observations of this High Court lay down guidelines regarding appreciation of evidence on the aspect of identification of stranger accused by the witness, after time lapse. It was incorrect observation on the part of the learned Judge that the observations of the High court are based only on facts and have no universal application. The observations of the high Court do provide guidance regarding appreciation of identification evidence, in the absence of test identification parade. We are of considered view that, period of 1 year and 10 months (25-10-2002 to 2-9- 2004) was sufficient to erase from memory of witness, the feature of a stranger accused. The evidence of Aradhana on the point of identification, therefore, cannot be accepted without risk and hence, is required to be discarded. We may hasten to add that we are not disbelieving Aradhana that she noticed couple of young men loading big chaste, like a trunk possessed by army personnel, in the train at Ahmednagar Railway station. The evidence of Aradhana on the point of identification, therefore, cannot be accepted without risk and hence, is required to be discarded. We may hasten to add that we are not disbelieving Aradhana that she noticed couple of young men loading big chaste, like a trunk possessed by army personnel, in the train at Ahmednagar Railway station. We are inclined to reject her evidence only on the point of identification of accused No. 1, from the witness box. As already stated above, the learned Judge is partly right in saying that there is other evidence on record, which can establish that the trunks were loaded in the trains at ahmednagar Railway station, by accused No. 1. Viewed from this angle, even rejection of identification of evidence by Aradhana does not inflict damage on the prosecution case. If we believe evidence of PW 12 Baban Thorat, PW 14 Bapu Shinde and we have already shown our inclination to believe deposition of Baban thorat, it must be said that, by rejection of identification evidence of Aradhana, the prosecution does not suffer much loss. From discussion in paragraph 40 of the judgment, it appears that, reliance was also placed on the observations of the Hon'ble the supreme Court in the matter of Kannan and others Vs. State of Kerala, AIR 1979 SC 1127 . The Hon'ble the Supreme Court has held that: "where a witness identifies an accused, who is not known to him in the court for the first time, his evidence is absolutely valueless, unless there has been a previous ti parade to test his powers of observation. That, the idea of holding TI parade is to test to veracity of the witness on the question of capability to identify an unknown person, who the witness may have seen only once and if no TI parade is held, it will be wholly unsafe to rely on his bare testimony regarding identification of accused for the first time in court. "at least these observations ought to have put the learned Judge on guard against acceptance of identification evidence of PW 15 Aradhana. Instead, learned Judge has placed reliance upon observations of the Hon'ble the Supreme Court in another reported case, George Vs. State of kerala, 1998 Cri. "at least these observations ought to have put the learned Judge on guard against acceptance of identification evidence of PW 15 Aradhana. Instead, learned Judge has placed reliance upon observations of the Hon'ble the Supreme Court in another reported case, George Vs. State of kerala, 1998 Cri. L. J. 2034, wherein it was held: "'law is well settled that identification of accused in court is substantive evidence of the person identifying and want of evidence of earlier identification in TI held, does not affect admissibility of evidence of identification in court. "eventually, ratio from the two cases reproduced by the learned Judge in paragraph 40 of his judgment, covers different regions. Kannan's case lays down the ratio on the aspect of appreciation of identification evidence, in the absence of TI parade and its reliability. The matter of George speaks about admissibihty of the identification evidence in the absence of TI parade and not about the acceptability of the evidence. Admissibihty of the evidence is different than acceptability (reliability ). No sooner evidence is relevant in accordance with any of the provisions of sections 6 to 55 of indian Evidence Act, the same would be admissible. It is not compulsory that every piece of evidence admittedly on record, should be swallowed as gospel truth. It is for the judge to decide whether admitted piece of evidence is reliable and should be given credit, or not. ( 19 ) PW 17 Pandurang is real brother of deceased Janabai. His evidence is relied upon by the prosecution for twofold purpose. First, about identification of the victim, which he did on the basis of the photographs and clothes shown to him at Ahmednagar Railway police Station on 12-11-2002, or so. His evidence is also relied upon to establish subsequent conduct of accused No. 1, who had informed Pandurang that, according to telephonic message received by one Balasaheb sinare of village Padah, Ambaji, Janabai and reshma had gone to Pandharpur. Learned defence counsel was critical of this witness, because he stated : "i, at my own, expressed before police my wish and willingness to give statement before the court. "in the court, in subsequent part of the cross-examination, ignorance pleaded by the witness about not understanding 10th moth of the year, was exposed to be untrue, when he claimed that he said that his statement was recorded by Railway police on 17-11-2002. "in the court, in subsequent part of the cross-examination, ignorance pleaded by the witness about not understanding 10th moth of the year, was exposed to be untrue, when he claimed that he said that his statement was recorded by Railway police on 17-11-2002. The first one seems to be the result of tendency to show that, the witness knows everything. Second one is an example of attitude of non-co-operation to lawyer of adversary. Both the incidents from his cross-examination relied upon by the learned defence counsel do not compel us to brand him as unreliable witness, so far as his claim of identification of victims and information given to him by accused No. 1 is concerned In fact, it must be taken a notice that, plea of accused No. 1 having received a telephonic message at the place of Balasaheb sinare, r/of Padah, regarding victims having gone to Pandharpur, was persisted till end of cross-examination of last witness, PW 25 Shri. C. M. Joshi, PSI. This lends credence to the version of Pandurang on the aspect. In identifying the victims as his sister, her husband and daughter, Pandurang cannot be said to have made any attempt to falsely inculpate either of the accused persons. It is nobody's case that the sister, brother-in-law and niece of pandurang have now returned from pandharpur. No doubt, in his chief-examination, pandurang has deposed that whenever accused no. 1 returned for vacation from his service, there used to be quarrels between accused persons and deceased Ambaji and Janabai. Apart form Goraksha demanding partition, pandurang added that illicit relations between mininath (accused No. 2) and Sunita (accused no. 3 and wife of accused No. l), was also the cause for the quarrels. This is not the prosecution story. On the contrary, on reference to complaint (Exh. 140), registered by PSI C. M. Joshi of Ahmednagar Railway police Station with Parner Police Station, while transferring the investigation to Parner Police station, it is evident that, Sunita had complained against father-in-law, by referring to an incident when father-in-law (deceased Ambaji) had entered her bed. Unfortunately, the prosecution has not brought on record any evidence on this aspect, obviously because, it was handicapped in doing so, after putting sunita in the dock, in stead of witness box. The narration by Pandurang that illicit relations between accused Nos. Unfortunately, the prosecution has not brought on record any evidence on this aspect, obviously because, it was handicapped in doing so, after putting sunita in the dock, in stead of witness box. The narration by Pandurang that illicit relations between accused Nos. 2 and 3 used to be the reason for the quarrel is, therefore, required to be held unsustainable. If that was the reason, there could have been quarrel between accused nos. 1 and 2 and not between accused persons on one side and parents on the other. Otherwise also, this narration by Pandurang was for the first time before the court and he had not stated so before the police. Although this witness has filed civil suit in Parner Court on behalf of sunil, after the alleged incident, he explained that, the suit is filed against one Namdeo and dhondiba and not against accused persons. Defence suggestion that this witness is interested in grabbing the land of the accused and, therefore, deposing false is hence, not sustainable. In case, witness desired to protect the land for Sunil, on the fact of probability of step-brothers may suffer life imprisonment, the witness cannot be said to have intention to grab the land. Moreover, he is not facing the trial, in order to consider the intention to grab the lands, as motive. Even after considering some infirmities in his evidence, we are inclined to believe his evidence on two points, i. e. identification of victims and subsequent conduct of accused No. 1. No doubt, he has deposed to have accompanied Sunita, Sunil and Goraksha to hospital of Dr. Mate at Bhalvani. However, evidence of Sunil does not make any reference to presence of Pandurang, at least till reaching the hospital. (Pandurang has narrated that, after reaching at Bhalvani, he went to Pandharpur ). Evidence of Pandurang to the extent that, he accompanied Sunil and Sunita upto Dr. Mate hospital, therefore, may not be acceptable. ( 20 ) TAKING into consideration that, sunil was studying in 6th standard and capable of understanding sanctity of oath, his evidence was receded by the learned Sessions Judge, after administering him oath. Most important aspect of the evidence of Sunil is togetherness of the family i. e. three victims, three accused and himself, their going to bed on the alleged night between 23rd and 24th October, 2002. Most important aspect of the evidence of Sunil is togetherness of the family i. e. three victims, three accused and himself, their going to bed on the alleged night between 23rd and 24th October, 2002. This part of the prosecution story is not disputed by the defence. At the cost of repetition, we may point out that the version of Sunil to this extent is accepted by accused no. 1, by reply, "it is true", in response to question No. 42, during his statement under section 313 of the Code of Criminal Procedure. His evidence is relied upon by the prosecution from another angle. He has deposed that, there used to be quarrel between the family because of demand for partition by accused Goraksha. Sometimes Goraksha assaulted father during such quarrels and after quarrels, Mininath and sunita had cooked food separately. On the point of quarrels on demand of partition, he is supported by PW 17 Pandurang and taking into consideration that Janabai was aged 30 years, when accused Nos. 1 and 2 were aged 27 and 23, probability of accused demanding partition with fear that, step-mother and her children may claim the property, cannot be ruled out, although land is only of 3 acres and some gunthas. Evidence of Sunil carries more importance for the prosecution, because he was one of the persons, who had consumed Pedhas offered by Goraksha, and allegedly containing some sedative or poisonous substance. Sunil has supported the prosecution story, by saying that Goraksha had given Pedhas to himself, father, mother and sister (three victims ). According to Sunil, Pedhas were consumed before meals and on the next day morning they suffered vomiting. At this juncture, Sunil committed a vital error. According to him, on the next day, himself and Reshma were admitted in the hospital at Bhalvani (Dr. Mate hospital ). Eventually, according to the prosecution story, Reshma was not alive on 24th morning for being admitted in the hospital. According to prosecution story, Sunita (accused No. 3) and Sunil were admitted for a day in Mate hospital, (evidence of PW 10 Dr. Pande ). Sunil has claimed that from the hospital, he was taken by his maternal aunt meerabai. Eventually, prosecution has not examined Meerabai as a witness and, therefore, sunil is denied support on this aspect. According to prosecution story, Sunita (accused No. 3) and Sunil were admitted for a day in Mate hospital, (evidence of PW 10 Dr. Pande ). Sunil has claimed that from the hospital, he was taken by his maternal aunt meerabai. Eventually, prosecution has not examined Meerabai as a witness and, therefore, sunil is denied support on this aspect. Although sunil admitted that Pandurang and Meerabai accompanied him whenever he was required to come to police station and court and this creates an opportunity to tutor the child witness, he has denied the suggestion that pandurang and Meerabai had tutored him. His deposition that Goraksha gave Pedhas to parents has turned out to be improvement over police statement. We are baffled by the statement of Sunil in the cross-examination : "it is not true to say that Goraksha has given three Pedhas to myself and Reshma, and pedhas to my father and mother. "if this is to be read as an admission by Sunil against the prosecution case, looking to the form, it can be seen that it was the suggestion on the part of the defence that accused No. 1 offered Pedhas to Sunil and victims, since the answer has begun with opening clause, "it is not true to say. . . . " His admission that he has filed a suit against accused persons with the help of this material uncle, is incorrect because pandurang has clarified that the suit for injunction is filed against Namdeo and dhondiba, and not against accused persons. (Dhondiba seems to be true brother of deceased ambaji ). Taking overall view, evidence of Sunil can safely be relied upon, regarding togetherness of the family, but his evidence on sickness due to food poisoning and admission at Mate hospital, is in conflict with prosecution story, by confusion regarding who was admitted along with him, whether accused No. 3 sunita or his sister Reshma, and hence, in the absence of appropriate support from the case-papers, which Dr. Pande had tailed to produce, the same is unsafe to rely upon. ( 21 ) TO sum-up the assessment of evidence of these seven vital witnesses, we may say that, PW 7 Sakharam Nabge has made himself sufficiently useless for the prosecution. Pande had tailed to produce, the same is unsafe to rely upon. ( 21 ) TO sum-up the assessment of evidence of these seven vital witnesses, we may say that, PW 7 Sakharam Nabge has made himself sufficiently useless for the prosecution. Evidence of PW 12 Baban Thorat is acceptable to establish that, accused No. 1 had contracted with PW 14 Bapusaheb and accordingly two trunks were transported from Maikop D. P. to ahmednagar Railway station at the instance of accused No. l, for which accused No. 1 paid hire charges of Rs. 200/ -. Evidence of PW 14 bapusaheb, although shaky, can be relied upon on the same point, to the extent it is in harmony with the evidence of PW 12. We find PW 10 dr. Pande, in the absence of case-papers to refresh his memory, to be not reliable. PW 15 aradhana also can not be relied upon for the purpose of identification of accused No. 1, although she can be believed to the extent that, the trunk was loaded in Goa-Nizamoddin express, at Ahmednagar Railway station. PW 17 Pandurang can be relied upon for identification of the victim and subsequent conduct of accused No. 1, so also to some extent, possible motive i. e. quarrels on the point of partition. PW 13 Sunil, although a child witness, can certainly be believed regarding togetherness on the fateful night, more so because that is an admitted position. His evidence regarding quarrels on the point of partition can also be accepted, because of support from Pandurang and probability. The story of administration of Pedhas containing some sedative/poisonous substance and subsequent admission to Mate Hospital, has become a story not acceptable without risk, more so when such story is not supported by any case papers. ( 22 ) BEFORE proceeding to assess, on the basis of appreciation of evidence as above, whether the prosecution has established the circumstances with firmness and whether the established circumstances form a complete chain between the crime and culprits, it is desirable to deal with subsidiary arguments by the learned counsel for the appellant and if sustainable to reduce the evidentiary value of the accepted pieces of evidence to the extent of success of defence. It was argued by Shri. Jadhvar, learned counsel for the appellant, that the story of the prosecution that one trunk was collected from maikop D. P. and another from the residence of PW 7 Sakharam, is unnatural and the trunks could have been felt more safe at his won residence by accused, if they were the culprits. He also extended his argument by saying that, if a trunk was kept at D. P. in an open place, smell of flesh would have attracted stray dogs on 24th October, or in the night between 24th and 25th October, 2002. Later part of the argument is based on the assumption that the prosecution claims that the trunks containing the dead bodies could have been shifted to residence of PW 7 Sakharam Nabge and near maikop D. P. , immediately after murders. This is not the case of the prosecution. With evidence available, the prosecution can be said to have established that, the trunks were loaded in Maruti van from the locations, one near D. P. of Maikop and another from the residence of Sakharam Nabge. The prosecution has not been able to establish as to when the trunks were shifted to those locations from the residence of accused. It can be seen from exhibits 152 to 155 that this failure of the prosecution is attributable to hostility of PW 7 sakharam. No doubt, ordinarily, the trunks could have been loaded directly from the residence of accused. But one cannot rule out of possibility that the accused desired the transporter to be kept in the dark about the origin form where the trunks started their journey and that is why those were shifted to other place before loading in the van. This is a surmise and we do not intend to reply upon the same. We also do not wish to rely upon exhibits 152 to 155, contradicted portions from police statement of PW 7 Sakharam. Suffice it to say that, it may not be necessary for the prosecution to explain as to why accused reacted in a particular manner, after the offence and absence of such explanation need not damage the credibility of prosecution story. Learned Counsel for the appellant has also tried to capitalise on the admission by PW 14 Bapusaheb to the effect that they (four witnesses) were produced before the magistrate for recording of statement on 6-2-2003 at 9. Learned Counsel for the appellant has also tried to capitalise on the admission by PW 14 Bapusaheb to the effect that they (four witnesses) were produced before the magistrate for recording of statement on 6-2-2003 at 9. 00 p. m. at the residence of magistrate. We have already dealt with this aspect while assessing the evidence of said bapusaheb. Otherwise also, Bapusaheb had shown tendency to swing towards defence, but his such admission stood falsified by the contents in Exhibits 92 and 93, as also deposition of PW 23 Ezaj Ahmed, Judicial magistrate, First Class Parner. We cannot avoid feeling that, all the assault by the defence on the manner in which the statements under section 164 of the Code of Criminal Procedure were recorded by the Magistrate, to some extent, become blunt when the witness enters the box in the trial court and deposes in favour of the prosecution. Although recorded by the magistrate, the statement under Section 164 is otherwise a statement recorded during the course of investigation. For the purpose of evidence Act, the same is a previous statement of the witness. Police utilise the same for the purpose of ruling out possibility of witness turning hostile at the stage of trial. In the matter at hands, learned Sessions Judge, upon admission by the witnesses that the statement were correctly recorded by the Magistrate and they have signed it, has exhibited the statements as the documents on record. In fact, once the deponent, whose statement is recorded under section 145, has entered the box, even the statement recorded by the Magistrate, cannot be used for any purpose other than as provided by proviso to section 162 (1) of the Code of criminal Procedure read with section 145 of the Indian Evidence Act, for the purpose of contradicting and impeaching the witnesses and at the most, under section 157 of Indian evidence Act, in order to corroborate the testimony of the witness. The statement u/ s. 164 of Cr. P. C. 1973, by itself cannot acquire status of substantive piece of evidence. In the record of trial court, we find at exhibit 138, statement of Meerabai Tukaram devbhat, also recorded by PW 23, Judicial magistrate, First Class, Parner, under section 164 of the Code of Criminal Procedure, 1973. The statement u/ s. 164 of Cr. P. C. 1973, by itself cannot acquire status of substantive piece of evidence. In the record of trial court, we find at exhibit 138, statement of Meerabai Tukaram devbhat, also recorded by PW 23, Judicial magistrate, First Class, Parner, under section 164 of the Code of Criminal Procedure, 1973. We are unable to appreciate as to how this could come on record as proved document, when Meerabai is not examined. On reference to evidence of PW 23, we also do not find the learned APP in the trial court, to have got the statement fully proved through the Magistrate. Had it been so proved by the Magistrate, still the same could not have been admitted in evidence. In the absence of any reports about viscera of the three victims, learned defence counsel urged that the prosecution cannot claim administration of any sedative or poisonous substance to the victims, by the accused. He claimed that, examination of viscera could have detected sedative substance also, if the same was administered Since the reports of the analysis of viscera are not produced on record, he alleged that the court should draw adverse inference that, no sedative was administered learned Counsel was justified in making such a submission Otherwise also, upon appreciation of evidence of individual witnesses we have shown inclination to disbelieve Dr. Pande and evidence ot Sunil to some extent i. e. regarding his admission to hospital of Dr. Mate. This has also caused a set back to the prosecution story that, accused had administered some sedative to the victims and Sunil. Absence of reports from Chemical analyser regarding viscera enhances damage further on that count and the prosecution would be required to proceed with the position that theory of administration of sedative or poisonous substance is not established our attention was drawn to application (Exh. 181) filed before the Trial Court, on 5-10-2004 under signatures of three accused persons (not signed by the Advocate), more particularly paragraph 8 of the same. In fact, by this application accused persons have prayed for transfer of the matter to some other court, expressing that they are not confident of getting justice from the trial court. 181) filed before the Trial Court, on 5-10-2004 under signatures of three accused persons (not signed by the Advocate), more particularly paragraph 8 of the same. In fact, by this application accused persons have prayed for transfer of the matter to some other court, expressing that they are not confident of getting justice from the trial court. The learned Counsel for the appellant before us did not rely upon other details, but in paragraph 8, it is alleged that PSI Shri. Joshi (PW 25), while under cross-examination, had admitted that it was revealed during the course of investigation that the deceased had been to Pandharpur, whereupon the court had repeated the question and, as PSI Joshi again answered in the affirmative, the court had questioned "mr Joshi. are you a sleep whereafter Mr Joshi changed his reply to negative. Let us presume that Mr. Joshi had answered the question in the affirmative. First of all, what is revealed in the investigation, cannot be a piece of evidence through the mouth of the Investigating Officer it becomes admissible piece of evidence only when the witness from whom such thing is revealed, is examined from the witness box. It would be wrong assumption on the part of the defence that different rules of admissibility are applicable to the defence, although burden of proof of defence may not be as stringent as on prosecution Otheiwise also, it is the prosecution story that, initially, it was projected that three victims had gone to Pandharpur, by giving such message on the telephone of balasaheb Sinare. If the defence desured the court to believe that the victims had been to pandharpur, such an admission about revelation during investigation by Mr. Joshi, which can be said to be partly wrong admission, would not have probabalised such a story. (Sofar as transfer application is concerned, both the advocates have informed us that the accused had failed in getting the mater transferred, in spite of approaching this court and the Hon'ble apex Court ). Learned Counsel for the appellant has posed a big question mark, by submitting that the prosecution has nowhere explained as to how did police lay hands on witnesses Baban thorat and Bapusaheb Shinde. Both of them admitted recording of their statements on 14- 11-2002. Learned Counsel for the appellant has posed a big question mark, by submitting that the prosecution has nowhere explained as to how did police lay hands on witnesses Baban thorat and Bapusaheb Shinde. Both of them admitted recording of their statements on 14- 11-2002. Certainly, in the evidence of PSI C. M. Joshi, railway Police Station, Ahmednagar, or PI K. C. Lawange of Parner Police Station, there is no clue as to how police could trace out these two witnesses, who provided crucial evidence about transport of the trunks, at the instance of accused Goraksha, to Railway station, Ahmednagar. In a case based on circumstantial evidence, court is always at some disadvantage. The entire picture can rarely be before the Court. Both the police officers have not indulged into routine stock statements that they had received information from secret informer. As already pointed out police really got a clue and proper direction to the investigation, only when Ahmednagar Railway police station received anonymous telephone call that, Ambaji, Janabai and their daughter were missing since 15 days. PSI Joshi claims to have visited Mininath on 12-11-2002. This was the first source of information available to the investigation agency. The statement of nabge is recorded on 13-11-2002 and this was also another authentic source of information to the police. Confessional statements even by co-accused, although not admissible in evidence, when made to police officer, police officer using those as clue for collecting piece of evidence is not uncommon. Sakharam nabge, although otherwise hostile, has not denied acquaintance with Goraksha to the level of visiting terms, even during his deposition. Once it was learnt by police that the victims were father, step-mother and step sister of accused persons, the family members were the first suspects, as the family was together on the former night. Police tapping the individuals, who have close relations with surviving family members and collecting information from them, cannot be said to be any unprecedented or surprise move. If these details are taken into consideration, how police might have approached Bapusaheb Shinde and Baban thorat, no more remains a mystery. Merely because the police officers have not explained during their deposition as to how they could get clue or Bapusaheb Shinde and Baban Thorat, being the persons capable of providing useful information, that will not be sufficient to brand these two witnesses as got-up and tailor- made witnesses. Merely because the police officers have not explained during their deposition as to how they could get clue or Bapusaheb Shinde and Baban Thorat, being the persons capable of providing useful information, that will not be sufficient to brand these two witnesses as got-up and tailor- made witnesses. Manner of recording statements under section 313 of the Code of Criminal Procedure, 1973, by the learned Sessions Judge, as is evident from the statements at Exhibits 16, 17 and 18, requires reference for the purpose of correction in future. It is evident that, the statements, to the extent of question Nos. 1 to 30, of all three accused persons, are recorded on 5-10-2004. Answers to question Nos. 31 to 36, of all three accused persons are recorded on 6-10-2000, whereafter trial got slightly deferred due to pendency of proceedings by accused persons for transfer, before this Court and the Hon'ble Supreme Court. After dismissal of SLP filed by accused persons, the statements were again commenced and the answers to question Nos. 47 to 76, of all three accused are recorded on 13-1-2005. Last segment of question Nos. 77 to 148 was completed on 14-1-2005, in case of all accused persons. It requires no prophet to predict that the statements of all three accused persons were simultaneously recorded i. e. by putting the same question to all three accused, may be simultaneously, or one after another and their answers are recorded. Otherwise, there was no reason why identical segment of the statements of all three accused were recorded on the same day. Having taken a defence of total denial, the defence has not claimed any prejudice due to such method, but by such recording, a possibility cannot be ruled out that the prosecution would stand prejudiced, because subsequent accused may be tempted to reply question in the same manner as replied by the earlier accused. On reference to section 313 (4) of the Cr. P. C. , it can be seen that the answers given by the accused can be taken into consideration in such enquiry, or trial and put in evidence for or against the accused in any other enquiry into, or trial for any other offence, which such answers may tend to show the accused to have committed. Hypothetically to illustrate, version of Sunil is put to accused persons in question Nos. 42 to 46. Hypothetically to illustrate, version of Sunil is put to accused persons in question Nos. 42 to 46. All accused have replied, "it is false" to the evidence of sunil that himself and Reshma were admitted in the hospital of Dr. Mate at Bhalvani. A possibility cannot be ruled out that if statements were recorded one after another, Sunita might have replied that question in a different manner, by correcting Sunil that, not Reshma and Sunil, but herself and Sunil were ill and therefore, taken to the hospital. It is desirable that temptation to save time and efforts, by adopting to irregular methods of recording statements of accused under Section 313 of the Code, at the cost of interest of justice, should be avoided. ( 23 ) THIS brings us to consider some case law on the appreciation of evidence, relied upon the lawyers representing the two sides. Since PSI Joshi admitted during the course of his cross-examination that he had obtained signatures of Baban (PW 12) and Bapu (PW 14), on the statements recorded by him, so that they should not change their versions subsequently. Advocate Shri. Jadhvar has prayed that the witnesses deserve to be disbelieved, since they were pinned down by the Investigating Officer to their statements by obtaining such signature in contravention of section 162 (1) of the Code of Criminal procedure, 1973. Learned A. P. P. has repelled this argument by relying upon reported judicial pronouncements. In the matter of State of Uttar Pradesh vs. M. K. Anthony, A. I. R. 1985 SC 48, it was observed :- "the fact that the Investigating Officer obtains the signatures of the witness on his statement speaking about confession made to him by the accused, does not render his evidence inadmissible. It merely puts the court on caution and may necessitate in depth scrutiny of the evidence. "similar view was taken by Privy Council, as back as in the year 1947 in the case of zahiruddin Vs. Emperor, A. I. R. 1947 P. C. 75, while observing as follows :- "the effect of contravention of section 162 (1) depends upon prohibition which has been contravened. If the contravention consists of signing of a statement made to police and reduced into writing, the evidence of the witness who signed it, does not become inadmissible. "other two rulings relied upon by learned a. P. P. , Leela Ram Vs. If the contravention consists of signing of a statement made to police and reduced into writing, the evidence of the witness who signed it, does not become inadmissible. "other two rulings relied upon by learned a. P. P. , Leela Ram Vs. State of Haryana, a. I. R. 1999 S. C. 3717 and State of Rajasthan vs. Kishor, A. I. R. 1996 S. C. 3035, although not directly touching the contravention of section 162 (1) of Cr. P. C. , lay down that any irregularity or even an illegality during the course of investigation should not be treated as the ground to reject the prosecution case and such irregularity or illegality does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that count. We have subjected the evidence to close scrutiny and only thereafter arrived at our conclusion as to whether witnesses are to be believed and if yes, to what extent. By relying upon Anthony D'souza Vs. State of Kerala, A. I. R. 2003 S. C. 258 and darshansing Vs. State of Punjab, 1995 s. C. C. (Cri.) 702, learned A. P. P. has propounded that, in case accused makes a statement under section 313 of Cr. P. C. completely denying the prosecution case and established facts and offers false answers or explanation, that can be counted as providing missing link from complete chain of the prosecution evidence and circumstances, in a case based on circumstantial evidence. Relying on these cases, an argument that false explanation can be utilised as one of the links in the chain of circumstantial evidence was advanced, in order to persuade this Court that story narrated by accused Goraksha to PW 17 pandurang about the victims having gone to pandharpur should be taken into consideration as false explanation, although not to the Court, to the relatives and others. In fact, as already pointed out earlier, accused have persisted in sticking to this explanation even during the course of their statement under section 313 cr. P. C. 1973, without demonstrating to the court that either of the two trains i. e. Goa-Nizamuddin express and Nanded-Pune Experts travel via Pandharpur. In fact, as already pointed out earlier, accused have persisted in sticking to this explanation even during the course of their statement under section 313 cr. P. C. 1973, without demonstrating to the court that either of the two trains i. e. Goa-Nizamuddin express and Nanded-Pune Experts travel via Pandharpur. We may state it here itself, that explanation offered by the accused about his having received a message from balasaheb Sinare of village Padali, who received telephone of deceased Ambaji, of the three victims having gone to Pandharpur cannot be said to have been probablished in the absence of evidence of said Babasaheb Sinare. The two trains not having been demonstrated as passing through Pandharpur gives another set back to the said defence. ( 24 ) IN the light of acquittal of accused nos. 2 and 3 by the trial Court, learned Advocate for the appellant has placed reliance upon observations of the Supreme Court in the matter of Suraj Mal Vs. State (Delhi administration), A. I. R. 1979 S. C. 1408, and more particularly, observation to the following effect in para 2 :- "where witnesses make two inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence, and in absence of special circumstances, no conviction can be based on the evidence of such witness. "this was a case under Prevention of corruption Act. There police officers were tried for allegedly having accepted bribe. PW nos. 6, 8 and 9, Shiv Narayan, Prem Nath and sham Sundar resiled from their statements which they made in their chief-examination and all of them stated that Ram Narayan (one of the three accused) refused to accept the bribe. Ram Narayan was, therefore, acquitted by the trial Court. Another accused Devender Singh was acquitted by the High Court on the ground that the sanction was not valid. We are unable to appreciate the applicability of the ratio to the matter at hands. As can be seen from the impugned judgment, in the present matter, accused nos. 2 and 3 are acquitted by the trial Court because there is no evidence referring to them. The prosecution has brought on record all the evidence showing the animus that accused no. 1 Goraksha carried about his parents, Goraksha having transported and dispatched the dead bodies, Accused Nos. 2 and 3 are acquitted by the trial Court because there is no evidence referring to them. The prosecution has brought on record all the evidence showing the animus that accused no. 1 Goraksha carried about his parents, Goraksha having transported and dispatched the dead bodies, Accused Nos. 2 and 3, except being member of the joint family, it is held by the trial Court : are impleaded on the sole situation that they are also surviving members of the joint family. This is not a case wherein witnesses had rendered identical statement against all the accused before the police and in their chief-examination and during the cross-examination, they had resiled from the statements as against one accused and maintained the same against the other. The reliance placed upon the case of Suraj Mal, therefore, does not help the learned counsel to persuade us that accused no. 1 is entitled to acquittal because accused nos. 2 and 3 are acquitted on the basis of same set of evidence. In fact, accused nos. 2 and 3 are acquitted in this case for want of evidence and not because the same set of witness resiled so far as allegations against accused nos. 2 and 3 while maintaining the allegations against accused no. 1. In 2001 ALL MR (Cri) 2354, although learned Counsel has placed reliance upon both the head notes, head note "a" does not come into play in the matter at hands. Same is pertaining to delay in lodging F. I. R. . In the matter at hands, there is no eye-witness to the killing. Consequently, defence does not offer any individual to blame for delay in Lodging f. I. R. As soon as, the dead body was recovered from the Railway bogie at Bhopal, asi Mishra (PW 11) had lodged F. I. R. at exh. 82. Upon recovery of two female dead bodies at Daund Railway Station, PSI Pramod jagtap had lodged F. I. R. at exh. 125. First information Report exh. 140 by PSI Joshi tendered with Parner Police Station while transferring the investigation to the police station, is not the first F. I. R. Respective police officers had taken cognizance of the matter as a cognizable offence of the murder since dead bodies were recovered. Head Note A, therefore, is of no help to the defence. First information Report exh. 140 by PSI Joshi tendered with Parner Police Station while transferring the investigation to the police station, is not the first F. I. R. Respective police officers had taken cognizance of the matter as a cognizable offence of the murder since dead bodies were recovered. Head Note A, therefore, is of no help to the defence. On the contrary, we may say that respective police officers immediately lodged F. I. R. supports our observation that no assistance of medical evidence is required to arrive at a conclusion about the deaths being homicidal, in the light of circumstances in which dead bodies were recovered, gains strength, in the light of definition of "proved" as contained in Section 3 of Indian Evidence Act. Head Note "b" reads that if the eye-witness of murder does not disclose the incident to anyone for about 10-12 days, it would be unsafe to accept the testimony of such witness as his conduct is very unnatural. The ratio is relied upon because of admissions by PW 12 Baban and PW 14 Bapu that they did not disclose the fact of carrying trunks from maikop DP to Ahmednagar Railway Station till 14-11-2002, when their statement were recorded by PSI Joshi. First of all, Baban and bapu are not the eye-witnesses. By profession, they are transporters. Accused no. 1 had informed them that he was to travel for the purpose of resuming his duties somewhere in punjab. Being of the same village, they must be knowing him to be Army man. Prima facie, they had nothing to suspect about the trunks. They did not disclose anything about this transport is compatible with their ignorance about the knowledge of contents. Evidence of baban and Bapu, therefore, cannot be looked with suspicion, merely because they had not spoken to others about this particular trip of transporting two big trunks from Maikop DP to Ahmednagar Railway Station. Shri. Jadhvar argued that when the dead bodies were recovered from the railway compartments, witnesses have deposed of disagreeable smell from the trunks. Presuming it for the sale of arguments that there was some disagreeable smell, same would be stronger with the passage of time. Baban and Bapu may or may not have noticed the same, and even if noticed, the details were too inadequate for them to narrate the same to others. Presuming it for the sale of arguments that there was some disagreeable smell, same would be stronger with the passage of time. Baban and Bapu may or may not have noticed the same, and even if noticed, the details were too inadequate for them to narrate the same to others. AIR 1990 SC 79 , Padala Veera Reddy vs. State of Andhra Pradesh and 2004 ALL mr (Cri) 675, State Vs. Teju, were relied upon by the learned counsel to remind us that mere suspicion, however strong cannot be a good substitute for legal proof. We cannot disagree with the principle. ( 25 ) WE have already summed up the evidence of important witnesses in para 21 and indicated that we are inclined to" accept the evidence of PW 12 Baban Thorat as trustworthy and also that of PW 14 Bapusaheb Thorat, to the extent same is in harmony with that of baban. We have indicated that we are willing to accept the evidence of Aradhana to the extent of her having witnessed the trunk being loaded in her bogie at Ahmednagar, although we are not inclined to believe her evidence regarding identification of accused no. 1 Goraksha as the person lodging the trunk. We are inclined to believe PW 17 Pandurang on two aspects i. e. identification of dead bodies and the fact that goraksha had informed him the three victims having gone to Pandharpur as per telephonic message received by Balasaheb Sinare of padali. We have believed Pandurang together with Sunil, on the point of possible motive i. e. dispute about partition of agricultural land, between accused no. 1 Goraksha and father ambaji. Evidence of Sunil regarding togetherness of family on the fateful night can be safely believed because of admission by accused to that effect. We have thrown away the evidence of PW 7 Sakharam Nabge and pw 10 Dr. Pande as not supporting the prosecution and unworthy of belief respectively. The question that arises now is as to what circumstances are established by these acceptable evidence and whether these circumstances provide a complete chain between the culprit and the crime, eliminating every other hypothesis except the guilt of the accused (Sharad Sarda Vs. State of maharashtra, A. I. R. 1984 S. C. 1622 ). The question that arises now is as to what circumstances are established by these acceptable evidence and whether these circumstances provide a complete chain between the culprit and the crime, eliminating every other hypothesis except the guilt of the accused (Sharad Sarda Vs. State of maharashtra, A. I. R. 1984 S. C. 1622 ). Evidence of PW 12 Baban and PW 14 bapu to the extent the same is reliable, establishes that two huge trunks, one of black and other of white colour, were transported from Maikop DP to Ahmednagar Railway station, at the instance of accused Goraksha on 25-10-2002 in the early dawn hours. Evidence of Aradhana supports that black huge trunk like one used by army men, was loaded in Goa-Nizamuddin Express at Ahmednagar railway Station on 25-10-2002 early morning. Her evidence, together with the evidence of PW 8 Balknshna Joshi (Station Master, Bhopal), pw 9 Premchand (Deputy Station Manager, bhopal) and PW 11 ASI Mishra (Railway police, Bhopal), establishes that male dead body was recovered from the trunk which PW 15 aradhana had seen loaded at Ahmednagar at about 19. 10 hours while train was at Bhopal. Similarly, evidence of PW 21 Pramod Jagtap (PSI, Daund Railway Station) and PW 22 sanjay Bhujadi (T. T. E.) on duty in Nanded-Pune express shows that two female dead bodies aged 30 and 14 years respectively, were recovered in a large white trunk in bogie no. S-4 and this was at about 9. 00 a. m. on 25-10-2002. Evidence of PW 17 Pandurang provides further link in the chain. Although on the basis of photographs and the clothes, he has identified the victims to be Ambaji, Janabai and Reshma. We have already observed that there is no necessity of any medical evidence to believe that deaths were homicidal. Evidence of Sunil confirms that on the 23rd night, three victims, three accused and Sunil were together at their residence at village Hiware Korda. According to the narration of PW 17 Pandurang, he was told by Sunita (A-3) that Ambadas, Janabai and reshma were sent to Ahmednagar for treatment and this establishes that on 24-10-2002, three victims were not seen by Pandurang, although he visited their place. In our considered view the circumstances enlisted which we believe to have been firmly established by the prosecution; establish a complete chain between the killings and accused no. 1. In our considered view the circumstances enlisted which we believe to have been firmly established by the prosecution; establish a complete chain between the killings and accused no. 1. Although, there is no direct evidence as to who killed the three victims and precisely at what time, accused no. 1 cannot escape the responsibility of being a party to the killings and common intention to kill them, if there were more than one assailants. Such an intention is required to be inferred because, as a natural course of human conduct, a person would not allow the killer of his father to go scot-free, by trying to conceal the dead bodies of his near and dear one. Bickering on the point of land dispute also would not provide sufficient ground to protect the killer of the father. The circumstances that amongst deceased Ambaji is real father, that accused no. 1 was at home on the night between 23rd and 24th October, 2002, whereafter the victims were not seen and the accused transported the dead bodies, lead to unescapable inference that accused goraksha had his hand in the killings. No doubt, there is no evidence about identification of the trunks i. e. the trunks carried by Baban and Bapu were the only trunks recovered at Bhopal and Daund railway stations. Prosecution also does not have evidence like that of Aradhana, of an individual having witnessed the loading of other trunk in nanded-Pune Express. Having disbelieved aradhana on the point of identification, we do not have evidence of a person, identifying accused no. 1 as the person loading two trunks in two different trains. But these lacunae stand filled in by circumstances and the presumptions which can validly be drawn from the circumstances. If accused no. 1 has carried the trunks from village to Ahmednagar Railway station, ordinarily it will have to be presumed that he loaded those in the trains. Absence of identification of the person loading the trunk in goa-Nizamuddin Express and absence of witness having seen the loading of trunk in nanded-Pune Express, therefore, does not damage the prosecution case. If accused no. 1 has carried the trunks from village to Ahmednagar Railway station, ordinarily it will have to be presumed that he loaded those in the trains. Absence of identification of the person loading the trunk in goa-Nizamuddin Express and absence of witness having seen the loading of trunk in nanded-Pune Express, therefore, does not damage the prosecution case. The trunks were transported upto Railway station on 25-10- 2002 in the early dawn hours and were found in the trains which had departed from ahmednagar Railway station at early morning hours, are also circumstances which fill this void of identification of the person loading the trunks in the train and to some extent, identification of trunks transported at the instance of accused no. 1. Identification of victims as father, step-mother and step-sister of accused nos. 1 and 2, nullifies the shortcomings, if any, that may be suffered, because no identification marks of the trunks are referred by witnesses (Baban and Bapu) transporting those, and witnesses who saw the trunks at Bhopal and Daund Railway Stations. To the chain of above circumstances, which unerringly point out that Goraksha is a party to the killings, further support is available by conduct of accused persons as influenced by the fact in issue Since it is not established that Babasaheb Sinare had received telephone from Ambaji of his proceeding to Pandharpur with wife and daughter, (due to non-examination of said Balasaheb Smare), it must be said that accused have offered false explanation for the absence of three victims from the residence. It was not the claim of either accused that they had reported the matter to police On referring to almanac, containing details of October and November, 2002, Kartik shudha Ekadashi which is considered as auspicious day for a visit to holy place pandharpur, was on 15-11-2002 and Ambaji could not have proceeded to Pandharpur on 24-10-2002. As per evidence of PW 24 PI lavange of Parner Police Station, accused goraksha was arrested by Nagpada Police station, Bombay and then transferred to the custody of Parner Police Station on 30-11- 2002 Thus Goraksha had not resumed his duties i. e. army unit after Diwali Learned Trial judge, therefore, did not commit any error in arriving at a conclusion that accused no. 1. 1. Goraksha is guilty of offences punishable under sections 302 and 201 of I P. Code and the same calls for no interference ( 26 ) HAVING arrived at a conclusion that finding of guilty is required to be maintained, we are required to consider the quantum of sentence. The learned Trial Judge for his reasons discussed in paragraphs 44 to 61, has held the case to be rarest of rare and has concluded that, the only sentence that will not the accused and the proportionality of the crime committed is but death penalty. In paragraph 44, the learned Judge has enlisted aggravating circumstances, relied upon by learned APP and in paragraph 46, mitigating circumstances urged to be considered by learned defence counsel. In paragraphs 45, 47 to 49, learned Judge has reported guidelines laid down in the case of Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 and machhi Singh and others Vs. State of punjab, (1983)3 SCC 470 The reasons for which the learned Judge believes the present to be a rarest of the rare case, are mainly discussed in paragraphs 50, 51 and summed up in paragraph 61, after dealing with the cases relied upon for both the parties in paragraphs 52 to 62. Learned APP and learned defence counsel have placed before us, cases wherein the death sentence, was held to be proper and wherein, the life imprisonment was felt to be adequate punishment and urged in favour of confirmation and conversion to life imprisonment respectively. The guidelines laid down by a Constitution bench judgment of the hon'ble the Supreme Court in the case of bachan Singh Vs. State of Punjab (supra), can usefully be reproduced for ready reference. We are referring those directly from the recent judgment of the Hon'ble Apex Court in the matter of Ram Pal Vs. State of U. P. , AIR 2003 S. C. 4168 "one thing however stands clear that for making the choice of punishment or for ascertaining the existence of absence of special reasons in that context, the court may pay due regard both to the crime and the criminal What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. " (emphasis added) in paragraph 6 of the judgment in the matter of Ram Pal, the Hon'ble the Supreme Court has reproduced the list of aggravating circumstances as laid down in the matter of bachan Singh and those are :- " (A) if the murder has been committed after previous plan and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed - (i) while such member or public servant was on duty; or (ii) in consequences of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty. . . . . . . . . (d) if the murder is of a person who had acted in the lawful discharge of his duty. . . . "the list of mitigating circumstances in the matter of Bachan Singh is also reproduced in paragraph 7 as follows :- " (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State is expected to prove by evidence that the accused does not satisfy the conditions (3) and (4) above. (5) That, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. "from the portion reproduced hereinabove, and more particularly the portion underlined for the purpose of emphasis, it is evident that, there is not hard and fast rule. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. "from the portion reproduced hereinabove, and more particularly the portion underlined for the purpose of emphasis, it is evident that, there is not hard and fast rule. The Court is required to prepare a balance-sheet of aggravating and mitigating circumstances and consider which of the two, out-weigh the other. It also appears that, the weight to be given to the aggravating and mitigating factors depends upon the facts and circumstances and consider which of the two, out-weight the other. It also appears that, the weight to be given to be aggravating and mitigating factors depends upon the facts and circumstances of particular case, which, in other words, means that each case would provide its own fabric and completion. All the shades of aggravating and mitigating circumstances in the case at hands, are required to be considered by the court and then only arrive at a conclusion, whether sentence of life imprisonment would meet the ends of justice or death penalty is the only option available. In the matter of Machhi Singh (supra), the Hon'ble Supreme Court laid down :- "the following questions may be asked and answered as a test to determine the "rarest of rare" case in which death sentence can be inflicted :- (a) Is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence ? (b) Are the circumstances of the crime such that, there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ? in paragraph 38 of the judgment, the Supreme court also indicated as to what propositions emerge from Bachan Singh's case, in following words :- "38. In this background, the guidelines indicated in Bachan Singh's case will have to culled out and applied to the facts of each individual case where the question of imposing of death sentence arises The following propositions emerge from Bachan singh's case, (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. In this background, the guidelines indicated in Bachan Singh's case will have to culled out and applied to the facts of each individual case where the question of imposing of death sentence arises The following propositions emerge from Bachan singh's case, (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty, the circumstances of offender also require to be taken into consideration along with the circumstances of crime (iii) Life imprisonment is the rule and death sentence is an exception In other words, death sentence must be imposed, only when life imprisonment appears to be an altogether inadequate punishment, having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life, cannot be conscientiously exercised having regard to the nature of circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mtigating circumstances has to be drawn up and in doing so. the mitigating circumstances have to be accorded full weightage and a just balance has to be stuck between the aggravating and the mitigating circumstances before the option is exercised. " (emphasis added.) ( 27 ) TAKING into consideration that capital sentence is the extreme sentence under penal law of the land, it would be just and proper on the part of the court to consider all aggravating and mitigating circumstances on record, whether argued or not, whether relied upon or not. The court need not restrict itself to the submission, while drawing a balance-sheet between aggravating and mitigating circumstances It should consider all the circumstances, nay it will be the duty to so consider. available on record Coming to the reasons recorded by the learned Judge in paragraph 50 of the judgment, we can gather following to be the reasons as to why he felt the case to be a rarest of the rare. The accused has committed offence, by first offering pedhas, containing poison or sedative to the victims and then strangulating the victims while they were in deep slumber. The accused has committed offence, by first offering pedhas, containing poison or sedative to the victims and then strangulating the victims while they were in deep slumber. The manner in which the accused made prearrangement in brining the big metallic boxes and then after commission of horrendous killing of three innocent victims, the accused disposing the dead bodies by keeping two in one metallic box and one in another, and the manner in which the trunks have been placed in different places, speaks of extra ordinary and uncommon mind-work of the accused According to learned judge, this shows repulsive conduct and rules out possibility of reformation in future. The learned Judge also felt that, the murders by the person serving in army was betrayal of mother land, resulting in shocking collective conscience of the community. The accused had come with plans to kill the victims. The victim Ambaji was of advanced age, Janabai was a woman and Reshma was a girl of 14 years. There was absolutely no provocation from the victims. The learned Judge also observes that there was no evidence as to why accused Goraksha could not maintain mental equilibrium. He, therefore, summed up that, the totality of circumstances was indicative of pre-plan, prearrangement, cold blood murders by the accused and this definitely calls for no less sentence that death penalty. In the light of view we have taken by disbelieving PW. 10 Dr. Pande and PW 13 Sunil, to the extent of medical treatment, we have indicated that the story regarding administration of sedative/poisonous substance through pedhas, is required to be held not proved. Consequently, the first ground relied upon by the learned Judge is not available. The judge has observed that, the victims were strangulated The observation is sustainable only sofar as Ambaji is concerned. The learned trial Court has lost sight of the fact that the post mortem reports at Exhibits 113 and 114 pertaining to Janabai and Reshma do not record any opinion regarding probable cause of death. We have justifiably held the deaths to be homicidal on the basis of sole circumstances i. e. the dead bodies were found packed in a trunk and dispatched. The arrangement regarding metallic boxes and dispatch of the dead bodies, although may indicate pre-plan, those are certainly not the circumstances which enhance the barbaric nature of killing. We have justifiably held the deaths to be homicidal on the basis of sole circumstances i. e. the dead bodies were found packed in a trunk and dispatched. The arrangement regarding metallic boxes and dispatch of the dead bodies, although may indicate pre-plan, those are certainly not the circumstances which enhance the barbaric nature of killing. In fact, the prosecution has not brought any evidence on record as to how, when and from where those boxes were procured. According to the version of PW 15 Aradhana, such boxes are used by army personnel. A possibility cannot be ruled out that Goraksha used his boxes, which he otherwise uses as a soldier, for dispatching the dead bodies. The observation of the learned Trial Court that brining the big metallic boxes was pre-plan is, therefore, not borne out by the evidence on record. We are not in a position to agree with the learned Trial judge that, because offence is preplanned and then there is an attempt to cause disappearance of the evidence (dead bodies in this case), it can be presumed that there is not possibility of reformation. Although the learned Judge is justified in holding that the victim Janabai being a woman and Reshma, a girl aged about 14 years, were certainly infirm and weak victims, the observation does not apply to the victim ambaji. As per post mortem report notes, he is said to be aged about 50 years, and we cannot forget that he comes from the family of agriculturist. The learned Judge has observed that there was absolutely no provocation on record, by the victims and it is also not revealed from the evidence that there was any incidence of quarrel, immediately preceding the murders. The case is based on circumstancial evidence. What happened on the night in question, is not known to us. The victims, the culprits and god only know as to what must have happened on the night. We feel that, it is not possible to presume that all the victims were consigned to death while fast asleep, once theory of administration of sedative is held not proved. For the reasons discussed hereinabove, about the grounds relied upon by the learned trial Court, we are of the opinion that by the adjectives used by the learned trial court, such as, barbaric, gruesome, diabolical, extreme cruel, horrendous etc. , may not attract. For the reasons discussed hereinabove, about the grounds relied upon by the learned trial Court, we are of the opinion that by the adjectives used by the learned trial court, such as, barbaric, gruesome, diabolical, extreme cruel, horrendous etc. , may not attract. The adjectives at least cannot be attributed with same acidity as felt by the learned trial court. In fact, no murder can be free from the adjective cruel, inhuman etc. Every killing is cruel and only the rarest of the rare killing invites ultimate penalty. ( 28 ) AS already expressed earlier, we are going to consider all the circumstances on record without confining ourselves to the points pleaded by the parties and reproduced by the learned Judge in paragraphs 44 and 46 respectively of his judgment. The age of the accused did not find favour as mitigating circumstance with the trial court. That, Sunil was spared and accused now has four years' daughter, do not appear to have been specifically dealt with. We intend to refer to totally different circumstances, which are available on record and are not touched by either party. It is a matter of evidence that acquitted accused Nos. 2 and 3 were also members of the joint family on the fateful night (evidence of PW 13 Sunil ). In paragraph 41 of the judgment, learned trial Court has dismissed the argument of learned defence counsel that, accused No. 1 alone may not be in a position to strangulate three victims because accused No. 1 is an army man. Learned Judge has observed that Sunil has not specifically referred to presence of Mininath. However, sunil has also not specifically deposed about absence of Mininath, after saying that, at the time of incident, three victims, three accused and himself were residing together. Because sunil has not specifically referred to Mininath by any of his acts, learned Judge felt the prosecution to have failed to prove Mininath having common object along with accused no. 1. So far as Sunita is concerned, learned judge has observed that the prosecution has failed to adduce any cogent evidence against her. Paragraph 42 of the judgment is concluded thus:- however, the prosecution has failed to prove complicity of accused Nos. 1. So far as Sunita is concerned, learned judge has observed that the prosecution has failed to adduce any cogent evidence against her. Paragraph 42 of the judgment is concluded thus:- however, the prosecution has failed to prove complicity of accused Nos. 2 and 3 in commission of offences punishable under sections 302, 201 of I. P. C. independently of Section 34 of the I. P. C. " by arithmetical substraction, accused No. 1 alone is held guilty of three killings, by drawing an inference, that no guilt on the part of accused nos. 2 and 3 is proved and evidence regarding attempt to cause disappearance of dead bodies has come on record as against accused No. 1 alone. Responsibility of all three murders could have been arithmetically attributed to accused no. 1, only if the allegations against accused nos. 2 and 3 were disproved and not when those are only not proved. While attributing culpability of multiple murders to accused No. 1, learned Trial Court has lost sight of this aspect. If at all possibility of common intention of mininath and Sunita is to be considered (and now what was the prosecution evidence and case as against accused Nos. 2 and 3 may come to rescue of accused No. 1 ). Sunita is wife of accused No. 1. Sunil has deposed that there used to he quarrels on the point of partition of immovable property between his parents on one side and three accused on the other and after such quarrels, accused used to cook their food separately. If the partition of the land was the motive, can we say that Mininath and Sunita did not share the common intention ? If they were at home on the night and at least Mininath was not administered sedative, can it be said with certainly that accused No. 1 alone executed three victims without any hint, be slightest noise to Mininath and Sunita ? Could Sunita and mininath not have prevented accused No. 1 ? the complaint lodged by PSI Joshi with parner Police Station, while transferring the matter to the police station, is at Exhibit 140. In the complaint, he has indicated that the victims were initially identified by Mininath, by narrating that accused No. 1 was having a dispute with them on the point of partition of the land. the complaint lodged by PSI Joshi with parner Police Station, while transferring the matter to the police station, is at Exhibit 140. In the complaint, he has indicated that the victims were initially identified by Mininath, by narrating that accused No. 1 was having a dispute with them on the point of partition of the land. In this complaint, Shri. Joshi has also narrated that, Sunita had narrated him about an incident when deceased Ambaji had entered her bed and tried to misbehave with her, which incident was complained about by her to accused No. 1 Goraksha. Eventually, the prosecution has not relied upon these details, as the motive, which could have been available, only sofar as murder of Ambaji is concerned. But if that be so, would that not be a circumstances providing enough provocation to accused No. 1 as against Ambaji and, therefore, a mitigating circumstances while preparing a balance-sheet of aggravating and mitigating circumstances, although it could have been an aggravating circumstance while considering the proof of guilt ? a letter and a chit are said to have been recovered from the pocket of Mininath, at the time of his arrest under panchanama (Exh. 177 ). In the deposition of PSI Joshi (Exh. 159), the trial court has recorded a note that, the inland letter and a chit shall form part of arrest panchanama (Exhibit 177 ). Unfortunately, learned Judge has not drawn attention of any of the accused, and more particularly of mininath, towards this panchanama at Exhibit 177, much less to the letter and the contents thereof. The inland letter, which is on record below Exhibit 177, is apparently addressed to shri. Arun Kale (Adsul M. A.) in steed of being addressed to Mininath Adsul, c/of Arun Kale. The address is referred to as, The letter is dated 20-9-2002 and begins with the words : i. e. "sunita should be advised that they have their eye upon her and she should be alert. " unfortunately, this piece of evidence available on record is lost sight of. During the trial, it could have been available to the prosecution to establish the motive and now is available to the accused-appellant, who is a solider posted at distant place and feels his wife at home to be unsafe. " unfortunately, this piece of evidence available on record is lost sight of. During the trial, it could have been available to the prosecution to establish the motive and now is available to the accused-appellant, who is a solider posted at distant place and feels his wife at home to be unsafe. The discussion hereinabove is aimed at considering a probability available as mitigating circumstances in favour of accused No. 1 that, there was possibility of his being a man of disturbed state of mind. There is a possibility that Mininath and Sunita were at home and have atleast failed to interfere. We, therefore, cannot rule out the risk of attributing culpability of more than one accused, to the appellant alone, if we confirm the view of learned trial judge reproduced hereinabove that because there is no evidence as against accused Nos. 2 and 3, accused No. 1 alone must have committed triple murder. This letter also includes instructions that the sweets brought by the sender of the letter should be kept in a plastic container and buried underground. This execution was to be carried out by addresses, presumably, mminath. The risk that culpability of more than one is likely to be attnbuted to appellant alone, can be a circumstances, weighing more than all the aggravating circumstances together. For the reasons discussed above, we are unable to concur with the view of the learned judge that this one is a rarest of the rare case, inviting death penalty. Confirmation reference no. 1 of 2005, therefore, will have to be rejected and consequently, Criminal Appeal No. 57 of 2005 shall stand partly allowed, since we are holding the appellant guilty of offence punishable under sections 302, 201 of IPC. In the light of the view we are taking, on the basis of the facts and circumstances of the case, we need not refer to vanous cases relied upon by both the parties, as illustration of confirmation or denial of confirmation. In AIR 2003 S. C. 4168 (Ram Pal Vs. State of U. P.), the incident in question had prematurely terminated life of 21 people. Yet, it was held that the number of death cannot be sole criterion for awarding maximum punishment of death. In AIR 2003 S. C. 4168 (Ram Pal Vs. State of U. P.), the incident in question had prematurely terminated life of 21 people. Yet, it was held that the number of death cannot be sole criterion for awarding maximum punishment of death. It was observed that, while in a given case, the death penalty may be the appropriate sentence even for a single murder, it would not necessary mean that, in every case of multiple murders, death penalty is to be a normal punishment. In the light of mitigating circumstances discussed in paragraph 8, the death sentence was commuted to life imprisonment. ( 29 ) WE have noted couple of observations of the learned trial Court in paragraphs 46 and 52 of the impugned judgment, which, in our view, were not necessary. Both in our view, are remarks on the conduct of the defence Counsel. The judgment of the trial court cannot be the platform for the same. In paragraph 46, learned trial court has observed : "per contra, learned advocate Mr. Sudnk who is kind enough in carrying of prayef of transfer of the case at the stage of recording statement of accused under S. 313 of the Code of Criminal Procedure upto the supreme Court on flimsy grounds (Special leave Petition of the accused is dismissed) and for also taking this Court through the rulings relied on by him. "the portion is underlined by the learned trial court as indicated heremabove. We may only say that, transfer application filed before the learned trial court (Exhibit 181) was under the signatures of the accused persons and was not signed by the Advocate. It is the wish of the parties, which cames the matters to higher courts, if they feel aggrieved by the orders of subordinate court, which is a right conferred by law. In paragraph 52, while dealing with the case of State of Maharashtra Vs. Damu, relied upon by the learned defence counsel, the trial court observed : "if one had read para 48 of the judgment minutely and when one makes submission that he himself has appeared in the reported case, is expected to have read para no. 48, would not have cited this ruling at all. Damu, relied upon by the learned defence counsel, the trial court observed : "if one had read para 48 of the judgment minutely and when one makes submission that he himself has appeared in the reported case, is expected to have read para no. 48, would not have cited this ruling at all. "the learned trial Court, we feel could have recorded its view that the case relied upon is not applicable to the case before it and nothing more was required to be observed. In this context, we may refer to a recent division Bench judgment Sonibai Nathu kuwar Vs. State of Maharashtra, reported at [2005 (4) ALL MR 953] : 2005 (3) Mh. L. J. 1100, to which the Hon'ble the Chief Justice and one of us (N. H. Patil, J.) are the parties. The Court has observed : "the Courts and Tribunal must refrain from any observation and remarks regarding personal character of individuals, particularly of women, unless it is absolutely imperative in deciding the case. "while disposing of confirmation reference and criminal appeal, we are not quashing the judgment in its totality and, therefore, we direct that the above quoted two remarks shall stand expunged from the judgment. ( 30 ) CONFIRMATION Reference No. 1 of 2005 under section 366 of the Code of Criminal procedure, 1973, is rejected. Criminal Appeal No. 157 of 2005 is partly allowed. We uphold the finding of appellant being guilty for offences punishable under sections 302 and 201 of Indian Penal Code. Hence, we modify sentence awarded by court below under Section 302 of Indian Penal code from death to life imprisonment. Registrar (Judicial) shall ensure supply of a certified coy of this judgment, free of cost, to the appellant, through prison authorities. Order accordingly.