Shankar Vs. State of T.N [1994] INSC 213 (4 April 1994)
1994 Latest Caselaw 210 SC

Shankar Vs. State of T.N [1994] INSC 213 (4 April 1994)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 SCC (4) 478 JT 1994 (3) 54 1994 SCALE (2)435

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- Shankar @ Gauri Shankar (original accused 1), Eldin @ Albert (original accused 2), Shivaji (original accused 3), Jayavelu (original accused 4), Raman @ Raja Raman (original accused 5) and Ravi (original accused 6) are the appellants here. They along with four others; Palani (original accused 7), Paramasivam (original accused 8) and two absconding accused Mohan and Selvam @ Selvaraj were arrayed as accused. The case against the two absconding accused was separated. The gravamen of the charge against the accused was that all of them entered into a conspiracy and committed the murders of six deceased persons in the case namely Lalita (deceased 1), Sudalai (deceased 2), Ravi (deceased 3), Sampath (deceased 4), Mohan (deceased 5) and Govindaraj (deceased 6). The trial court found A-1 to A-8 guilty under Section 120-B read with Sections 302, 201, 147, 302/34 and 404 IPC . In respect of the murder charges the trial court sentenced A-] to A-3 to death and A-4 to A-8 to imprisonment for life under each count and various other terms of imprisonment for the other minor offenses. The High Court acquitted A-7 and A-8 of all the charges and confirmed the convictions and sentences of the appellants. The High Court, however, acquitted them of the conspiracy charge punishable under Section 120-B read with Section 302 IPC . So far as A-1 to A-3 are concerned, both the courts have concurrently held that this is one of the rarest of rare cases where the sentence of death alone will meet the ends of justice.

484

2. A-1 is said to be the leader of the gang consisting of other accused. He was originally driving an auto and subsequently he started business in illicit arrack. A-2 to A-6 were assisting him. Then he entrusted the illicit arrack business to his younger brother Mohan, one of the absconding accused and started brothel business and was running the same profitably by employing a number of prostitutes. A-1 is said to be a cruel and ruthless person and he would not hesitate to eliminate anybody who interfered and obstructed his criminal activities.

According to the prosecution, six deceased persons incurred his wrath and were done away to death by A-1 and his associates and their dead bodies were either buried or were caused to disappear.

3. The prosecution sought to prove its case by the evidence of Babu, PW 1, the approver in the case and the corroborating evidence as well as by retracted judicial confessions made by A-1 and A-2 and the necessary corroborating evidence to the same. The prosecution case in general as unfolded by evidence adduced may be stated thus.

4. A-1 Shankar who originally was running an auto and thus earning livelihood, took to business in illicit arrack by transporting the same from Andhra, Thiruneermalai and other places. A-1 entrusted this business to Mohan, his young brother and started brothel business. A-2 Eldin married the younger sister of A- 1. The first wife of A- 1 is one Jagadeeswari. A-2 to A-6, the absconding accused Selvaraj, deceased 2 and 3, PW 32 Sasi and PW 1, the approver were also assisting A-1 and Mohan in their illegal business activities.

5. PW 1, the approver was doing masonry work in the house of one Guraibabu at Thiruvanmiyur previously and at that time he developed association with A-1. PW 1 was prosecuted for the murder of one Natesa Nadar on 31-12-1985. However, he came out on bail. A-1 asked PW 1 to assist his brother Mohan in his illicit arrack business and PW 1 was accordingly assisting him. PW 2 was running a firewood depot at L.B. Road, Thiruvanmiyur. PW 3 was residing at Gandhi Road, Periyar Nagar, Thiruvanmiyur. PW 4 was employed as the driver of the car of A- 1. PW 5 was an auto driver. PW 7 was a dhobi and he used to do ironing at 29th Cross Street, Indira Nagar, Thiruvanmiyur. All these witnesses knew that A-1 was doing brothel business and D-2, D-3, PW 32, A-2, A-3 and others were assisting him. They also knew that PW 1 was assisting Mohan. PW 1, A- 1 and PW 56 encroached upon the poramboke land (Government wasteland) at Periyar Nagar and there was a dispute in respect of that land and when it came for settlement, A-1 purchased the same from PW 56 for Rs 10,000 in the name of his brother Mohan.

A- 1 gave Rs 6000 to PW 56 and agreed to pay Rs 4000 to PW 1 towards the expenses in the murder case against PW 1. Thus PW 1 became closer to him. In that poramboke land, A-1 put up a shed and was running the brothel house. PWs 21, 51, 71 and 121, one Banu, Kundu Vijaya, Asthina, Begum, Viji and other ladies were prostitutes in the said brothel house. It is also stated that whenever good looking and beautiful women came to the brothel house, A-1 used to set up a 485 separate house for them and to keep them as his mistresses.

In or about 1986, A- 1 developed intimacy with PW 25, Sumathi and he married her. A- 1 used to maintain a diary M.O. 20 and in that he made an entry about the factum of this marriage. Jagadeeswari, the first wife quarreled with A- 1 in respect of the second marriage and A- 1 set up a separate residence for PW 25 at Marutheeswarar Nagar. D-2 was a close associate of A- 1 and he celebrated the marriage of D-2 with one Durga on 9-7-1986. Thereupon D-2 and Durga were staying in the house of PW 25. PWs 1 and 32 also knew about it. Two months later, A- 1 brought a girl by name Vijaya to the house of PW 25 and also married her but Vijaya left him stealthily as she was tortured by him. PW 7 1, Madhu alias Gowri came to join the brothel and A- 1 took her to the house of PW 25 and married her also on 14-3-1987 in the presence of PW 25 and he also tattooed her name on his hand. Similarly PW 71 tattooed the name of A- 1 as "Gauri Shankar" in her right hand. Since A- 1 used to bum PW 71 with cigarette butts and she was unable to bear the ill- treatment, she ran away. Thereupon A- 1 shifted the residence of PW 25 to the house of PW 34 in June 1987 and he also accommodated D-2 along with his wife Durga in another portion of the said house. A-2 and his wife Sandhi were also residing in the third portion of the said house. A-1 who had made good money from the brothel business, constructed a house at 142, Gandhi Road, Periyar Nagar and celebrated the house warming ceremony and M.O. 35 series and M.O. 36 series are the photo albums taken at the time of the house warming ceremony. In the photos, D-2, D-3, PW 32, PW 4 and some of the prostitutes who were the inmates of the brothel are found. PW 20 was the neighbour of A-1 at Gandhi Road, Periyar Nagar and she noticed that there were frequent quarrels between Jagadeeswari and one Sundari, who was brought by A- 1 after marrying her into that house. It is stated that A- 1 used to torture Sundari by burning her with cigarette butts and as she could not bear the same she committed suicide by setting fire to herself. PW 20 also purchased one of the autos from A- 1 for the amount due to her. She further stated that A-1 brought 10 more prostitutes and was running another brothel. D- 1 Lalita, a prostitute who came along with other prostitutes, developed intimacy with A- 1 and Jagadeeswari used to complain to PW 20 that A- 1 was giving away all his earnings to D- 1. It appears at that stage D- 1 who was not happy, eloped with D- 2. A- 1 was very unhappy and searched for D- 1 and D-2 and ultimately D-1 was brought by Pallawaram police.

Jagadeeswari told PW 20 that A- 1 to A-3 and Mohan brought Lalita and murdered her and buried her somewhere. D-2 started brothel business separately and it is said that he used to take the customers of A-1 to his brothel house and he thus incurred the wrath of A-1. According to the prosecution, D-2 was brought into the house of A- 1 and there he was killed and the body was burnt and the remnants of the burnt body were thrown away in the sea. Likewise it is alleged that Ravi, D-3, who was making enquiries about D- 2 was also done to death and his body was buried in a pit dug in the house of A- 1.

6. PW 32, Sasi who was assisting A-1 in running the brothel business was in charge of the collections. Deceased 4, 5 and 6 who belonged to 486 Mandhaveli area were the friends of PW 24. D-3 was the brother of PW 15 and D-5 was his relation. D-6 was also a friend of D-4. It is alleged that these people used to go to Taj Mahal Hotel where the prostitutes from A- 1's brothel used to entertain the customers and make galata and the information was given to A- 1 and he wanted to do something about that.

7.On 29-5-1988, PW 38 and his brother-in-law took a prostitute from the brothel of A-1 to V.G.P. Golden Beach.

Again they approached PW 32, the Cashier for another prostitute who sent PW 12 1, Anita and told them that she should be returned at about 3 p.m. At that time D-4, D-5 and D-6 were going in an auto fully drunk and they saw PW 121 getting down from another auto and they caught hold of her and pulled her and created galata. PW 7 was ironing the clothes at the street. At that time PW 32 and A-2 were standing and talking. PW 21 also was there. PW 121 raised a hue and cry when the three deceased caught hold of her.

A-2 questioned them but they threatened him. This was also witnessed by PWs 7, 9, 11 and 32. At about 3.30 p.m., PW 1, A-1 and A-3 were playing cards at the house of PW 25. A-7 and A-8 came there. A-6 who also came there informed A-] about the incident and also told him that A-2 was beaten by three persons of Mandhaveli and that they also misbehaved with PW 121. Thereupon PW 1, A-1, A-3 and A-6 rushed to the 29th Cross Street along with A-7 and A-8 taking Casuarina poles from the shed of the arrack shop of Mohan. Mohan, A- 4, A-5 and Selvaraj also joined them carrying Casuarina sticks. In the meantime, A-3 beat the auto driver PW 11 who brought the three deceased. He, however, escaped with the auto. Thereupon A-1 and his associates encircled the three deceased and attacked them. D-5, however, escaped and started running. He was chased but he got into the firewood shop of PW 2 at L.B. Road. PW 1 and Mohan went into the shop and brought D-5 out and the same was witnessed by PWs 2 and 3. Meanwhile A-1 and others dragged D-4 and D-6 and brought them to the cement floor behind the illicit arrack shop and D-5 was also brought there and all of the three were beaten on the cement floor which is in front of PW 8's house. This was witnessed by PWs 3, 8, 89, 32 and 37.

Meanwhile PW 4 was asked to go to Mandhaveli to find out whether the three deceased persons were from Mandhaveli. PW 6 was brought from Mandhaveli to identify the three injured persons and on enquiring they told him that A- 1 and his men have beaten them. PW 6 was sent back. He, however, informed PW 13 as to what happened. PW 24 coming to know about the occurrence went to 29th Cross Street and learnt from PW 32 that all of the three were beaten. In the meantime A- 1 decided to remove the three injured persons to his house as he felt that the matter would become serious.

They were taken in an auto to the house of A- 1 who went in advance. He also threatened the residents in the locality not to reveal to the outsiders. PW 3, a neighbour, standing in front of his house also noticed A-] going away with bloodstains all over his shirt and he also saw the auto carrying the three injured persons. The three injured persons were put inside the storeroom and it was locked. At about 10 p.m., PW 1, A-1 to A-3 and the absconding accused Mohan opened the storeroom and found 487 D-4 and D-5 already dead and D-6 groaning. A-1 felt that it was dangerous to leave D-6 alive. He was dragged from the storeroom and was throttled to death. PW 1 gave the idea to bury the dead bodies in the basement of the building under construction belonging to PW 14 and the said house was being built by PW 1 as contractor. PW 9, a watchman, and another person were lying there. A- 1 and others asked them to go away on the pretext that they wanted to play cards. PW 9 expressed his inability to go to his house at that time and A-3 took him to his house where he slept. Thereupon the accused procured a spade and removed the sand in the trenches of the foundation at two places and buried two dead bodies at one place and the third one at another place. The accused came back and washed bloodstains in the storeroom.

In the meantime since the three deceased did not return home, PWs 15 and 17 and Puratchi Mani came to Periyar Nagar and enquired of PW 32 and they also later enquired of A-1 who told them that the three deceased came and made galata and they were beaten and sent away. PW 15 went to Thiruvanmiyur Police Station on 31-5-1988 and orally reported about the missing persons. The Circle Inspector, PW 133 sent them away saying that the constable told him that no such incident has taken place. thereupon PW 15 went to Abiramapuram Police Station and gave the complaint Ex. P- 14. PW 129, the Sub-Inspector registered the case under the heading "Man missing" and took up the investigation.

Inspector of Police, thiruvanmiyur arrested PW 32 but he told him that the three deceased persons were sent back. On 7-6-1988 PWs II and 15 reported about the missing of the three persons to the DSP, Parangimalai and on his instructions next day they went and made a complaint Ex. P- 11 to PW 98 Sub-Inspector of Police, Thiruvanmiyur who registered the crime. On 27-6-1988 A-1 was arrested by PW 98 but he was released on bail. PW 132 Inspector of Police took up both the cases for investigation. On 6-7-1988 he arrested PW 1 at Tambaram bus-stand and questioned him in the presence of PW 126. PW 1 gave a confessional statement and it was reduced to writing. The admissible portions were marked as Ex. P-182 to P-186. On this information further investigation commenced and on being questioned A-1 also made a confessional statement and the admissible portion is marked as Ex. P-187. PW 132 seized several articles and searched the house of A-1 at Gandhi Road. In pursuance of the information given by PW 1 and A-1 and on being pointed out by them the dead bodies of D-4 to D-6 were exhumed as per the orders of PW 108, the Tehsildar, and the same were identified by PWs 15, 17, 18 and 19. The inquest was held over the three dead bodies and the same were sent for postmortem. On the basis of the information given by PW 1 and A-1 further investigation into the deaths of D-1 to D-3 took an active turn. However, the dead body of D-2 was not traced. The panchnama was made and several incriminating articles from the room of A-1 where the body of D-2 was burnt, were seized. The Inspector arrested Mohan and recorded his confession and under the orders of the Tehsildar they went to the place where the dead body of Lalita, D-1 was said to have been buried and the earth was dug out and the photo of the place was taken and the 488 remnants of the body that were found and other articles like hair, broken bangles, blouse etc. were seized. The Inspector also recovered the dead body of D-3 from the backside of the house of A- 1 and it was found decomposed and skeletonised. Likewise dead bodies of D-4 to D-6 were recovered. Postmortem was conducted by PW 122 on the dead bodies of D-3 to D-6. On the dead bodies of D-4 to D-6, PW 122 found several injuries and opined that, they died due to injuries caused by violence. PW 122, who also conducted Postmortem on the dead body of D-3, Ravi opined that he died because of asphyxia due to strangulation.

8.On 15-7-1988 PW 122 went to the shed as per the requisition issued by the Tehsildar from which place the remnants of the dead body of Lalita, D-1 were dug out and she conducted Postmortem on the spot. She noted various details in the Postmortem report including the fracture of the bones. PW 122 sent the skull and jaw bones to the Chemical Examiner and after receipt of the report PW 122 gave her final report Ex. P- 170. PW 134, Inspector, CB, CID took up the investigation on 15-7-1988 and made a thorough search of all the places and examined several witnesses. He also sent the skulls and bones of the deceased persons to the Forensic Science Department for superimposition test. As PW 1, A- 1 and A-2 were in a mood to confess he gave the requisitions for recording their confessional statements. PW 106, Judicial Magistrate, Thiruvanmiyur recorded the confessional statement of A-] after the necessary warnings and after complying with the necessary formalities. Ex. P-100 is the confessional statement of A-1. On 15-8-1988, PW 134 arrested A-2 and recorded his confessional statement and its admissible portion under Section 27 of the Evidence Act is marked as Ex. P-68. Later A-2 was produced before PW 107, Judicial Magistrate, Ponneri who recorded his confessional statement and it is marked as Ex. P- 106.

9.The confessional statement of PW 1 was recorded by another Magistrate under Section 164. Inspector PW 134 issued a requisition Ex. P-94 and PW 105, Chief Judicial Magistrate, directed PW 1 to be produced before him on 21-12-1988 and on that date PW 105 read over Ex. P-5, the confessional statement of PW 1, who admitted it to be correct and also stated that he made the statement voluntarily and that he would depose in detail in court and also prayed for pardon.

PW 105 accepted his statement and granted pardon.

10.PW 118, the Assistant Director of the Forensic Science Department conducted the superimposition test and sent his report. PW 120, the Director of Forensic Science Department sent his reports regarding the handwritings of A-1, A-2 and PW 25 and after completion of the investigation, the charge- sheet was laid. However, meanwhile Mohan who was arrested escaped and another accused Selvaraj was found to be still absconding. The charge-sheet was laid against A-1 to A-8 as well as the two absconding accused. When examined under Section 313 CrPC the accused denied the prosecution case.

A-1, however, gave a lengthy statement and we will refer to the relevant 489 portions of the same at an appropriate stage while considering further details and the evidence.

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

12.As mentioned above the prosecution sought to prove its case against these accused both by the evidence of PW 1 along with corroborating evidence as well as the retracted judicial confessions of A-1 and A-2 and the necessary corroborating evidence to the same. Learned counsel for the appellants submitted that the evidence of PW 1, the approver is full of contradictions and discrepancies and the version given by him does not appear to be true and in any event his evidence is not corroborated in material particulars by independent evidence. His further submission is that the other item of evidence namely the retracted confessions cannot be relied upon since they do not appear to be true and voluntary and that in any event they are also not corroborated by independent evidence.

13.It may not be necessary to refer to the various decisions of the courts laying down principles and guidelines regarding the appreciation of evidence of an approver.

14.Section 133 and Illustration (b) to Section 114 of the Evidence Act deal with the law relating to evidence of an accomplice. An accomplice namely a guilty associate in crime is a competent witness. Section 133 lays down that the conviction based on the uncorroborated testimony of an accomplice is not illegal, but the rule of guidance indicated in Illustration (b) to Section 114 has resulted in the settled practice to require corroboration of evidence of an accomplice and which has now virtually assumed the force of a rule of law. The word 'accomplice' has not been defined by the Evidence Act and it is generally understood that an accomplice means a guilty associate or partner in crime. An accomplice by becoming an approver becomes a prosecution witness. In interpretation of Section 133 and Illustration (b) to Section 114, the courts have laid down that an approver's evidence has to satisfy a double test:

(1) his evidence must be reliable and

(2) his evidence should be sufficiently corroborated. It is enough if we refer to some of those decisions.

(See Sarwan Singh Rattan Singh v. State of Punjab', Lachhi Ram v. State of Punjab2 and Mohd. Husain Umar Kochra v. K.S. Dalipsinghji3.

15.Coming to the extent and nature of corroboration, the courts have held that ordinarily the approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal and furnishing the need and assurance for acceptance of his testimony. The corroboration need not be of a kind which proves the offence against an accused and it would be sufficient if it connects the accused with 1 1957 SCR 953 : AIR 1957 SC 637 : 1957 Cri LJ 1014 2 (1967) 1 SCR 243 AIR 1967 SC 792: 1967 Cri LJ 671 3 (1969) 3 SCC 429 1970 SCC (Cri) 99: (1970) 1 SCR 130 490 the crime. What is required is that there should be sufficient corroborative evidence to show that the approver is speaking the truth with regard to the accused whom he seeks to implicate. Such corroboration should be on material particulars and qua each accused. But it is not necessary that there should be independent corroboration of every material circumstance and it need not consist of evidence which standing alone would be sufficient to justify the conviction. In other words, there should be additional evidence by way of corroboration rendering the story of an accomplice probably true and that it is reasonably safe to act upon such evidence. The independent corroboration need not also cover the whole of the prosecution story or even whole of the material particulars, for that would amount to render the story of the accomplice itself superfluous. What is required is that the evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime. It is sufficient if there is corroboration as to the material circumstances and the crime and of the identity of the accused in relation to the crime. The corroborative evidence can be direct or circumstantial. Ultimately the question whether there is such sufficient corroboration or not again depends upon the facts and circumstances of each case. (See Ravinder Singh v. State of Haryana4, Rameshwar v. State of Rajasthan5, Tribhuvan Nath v. State of Maharashtra6 and Vemireddy Satyanarayan Reddy v. State of Hyderabad7.

16.It will be interesting to note an ideal instruction by a Judge to the Jury in a passage which occurs in Wigmore on Evidence (3rd Edn., Vol. 7 at p. 328) which reads as under:

"It may not be unfit to observe to you here that the confirmation to be derived to an accomplice is not a repetition by others of the whole story of the accomplice and a confirmation of every part of it; that would be either impossible or unnecessary and absurd;... and therefore you are to look to the circumstances to see whether there are such a number of important facts confirmed as to give you reason to be persuaded that the main body of the story is correct.... You are, each of you, to ask yourselves this question.

Now that I have heard the accomplice and have heard other circumstances which are said to confirm the story he has told, does he appear to me to be so confirmed by unimpeachable evidence, as to some of the persons affected by his story or with respect to some of the facts stated by him, as to afford me good ground to believe that he also speaks the truth with regard to other prisoners or other facts, with regard to which there may be no confirmation? Do 1, upon the whole, feel convinced in my conscience that his evidence is true and such as I may safely act upon?" 4 (1975) 3 SCC 742: 1975 SCC (Cri) 202: AIR 1975 SC 856 5 1952 SCR 377 : AIR 1952 SC 54: 1952 Cri LJ 547 6 (1972) 3 SCC 511 : 1972 SCC (Cri) 604: AIR 1973 SC 450 7 1956 SCR 247 : AIR 1956 SC 379: 1956 Cri LJ 777 491 Bearing these principles in mind we shall now proceed to consider the important aspects in the evidence of PW 1 and also see whether his evidence satisfies the necessary requirements of law and whether the same is corroborated in material particulars? 17.Before PW 1 was arrested in this case, he was residing at Kottivakkam and became a mason by profession. As he could not get masonry job properly, he took to driving of auto which was given to him by his father. The same met with an accident. Thereafter he hired another auto bearing Registration No. TNZ 7502 from his friends and later on purchased the same. But even that he sold and again he was unemployed for some time. At that time his father was constructing a house in Palavakkam Village where he worked as a mason. It is during that time that he became a friend of A- 1 and also came into contact with Mohan, the absconding accused as well as Ravi, A-6. PW 1 deposed that all the three of them were selling illicit arrack. After completing the construction work again PW 1 became unemployed and he also started selling illicit arrack and a conflict arose between his men and A-1's men and both sides complained to the police. However, the matter was compromised. PW 1 got married in 1984. On 31-12-1985 he was prosecuted for the alleged murder of one Natesa Nadar and he was released on bail. As he was unemployed at that time A- 1 asked PW 1 to assist his younger brother Mohan and to help Mohan in selling illicit arrack. PW 1 also deposed that along with Mohan, Ravi, A-6, Rajaram, A-5 and Jayavelu, A-4 were there helping him. PW 1 further deposed that Shankar, A-1 was actively carrying on brothel business and Eldin, A- 2, Shivaji, A-3, Selvaraj, the absconding accused, PW 32 and Sudalai, D-2 were there helping A-1 in his brothel business.

A-1 was doing brothel business in Periyar Nagar in poramboke land on which they encroached and ultimately purchased the same and A-1 raised a shed. PW 1 further deposed mentioning the names of several girls who were kept by A- 1 for doing brothel business. Among them, he named particularly, PWs 16, 21, 51, 71 and 121. It is also in his evidence that A-1 used to keep beautiful girls for himself among those coming for the brothel business. PW 1 gave further Particulars about A- l's extramarital relations with Lalita, D-1 and Sunita, PW 51 who joined his business. Since Lalita, D- 1 was a beautiful girl, A- 1 got a separate residence for her in the house of Bommiammal, PW 34 at Kalashetra Road. PW 1 also gave details of A-l's marriage with Jagadeeswari and where Jagadeeswari was residing etc. He also identified several photographs M.O. 1 to 4. He next proceeded to state that Sudalai, D-2 used to send women to the customers and after getting the money from them he used to give it to A-1. D-2 got married to one Lata who was with A- 1 but she ran away.

D-2 was living very close to D-l's house and they came into contact with each other. According to PW 1 they ran away takina Rs 7300 and a camera belonging to A- 1 who gave a complaint to the police and thereafter he made a hectic search for them. The car in which he, A- 1 to A-3 and Mohan travelled in search of D- 1 and D-2 was driven by Raghu, PW 4. A-1 went to Bangalore. However, A-1 ultimately managed to secure 492 D-1. PW 1 gave details about the hunt for D- 1 and D-2 by A- 1 and his associates. In this context PW 1 also deposed that PW 85, brother-in-law of PW 133 Inspector of Thiruvanmiyur, was working as a Manager of Santhi Theatre at Padi and both of them were trying to screen the offenders involved in such offences. PW 1 proceeded to state about the enmity between Rajendran who was carrying a brothel and D-2. Sudalai, D-2 was made to vacate the house. Thereafter D-2 with the help of D-3 used to pick up A-l's customers from Taj Mahal Hotel and take them in the auto with D-3 to Anna Nagar where prostitution was being carried on by commission. Because of this also A-1 became angry with D-2.

PW 1 further stated that one film actress Bhuvaneshwari, PW 127 was residing at Valmiki Nagar in Thiruvanmiyur and one Sathyaraj introduced her to PW 1, A- 1, A-2, A-3 and Mohan.

These people used to go to Bhuvaneswari's house to play carom board now and then and she had a car M.O. 7. Whenever she needed the car, she used to take it from A-1. Likewise A-1 also used to take the car from her.

18.PW 1 proceeded to depose that in the last week of February 1988, himself, A- 1 and PW 4 went to Bhuvaneswari's house, took the car and roamed for sometime and then they came to Taj Mahal Hotel and there they saw D-2 and D-3 talking. PW 1 and A- 1 stopped the car and A- 1 asked PW 1 to call D-2 saying that he should be finished. According to PW 1, A- 1 further told him that he would finish off anybody who comes in his way and that he would have peace of mind only after killing D-2. As directed by A- 1, PW 1 took D-2 alone and he was taken in the car and they went to Mohan's liquor shop at Periyar Nagar and from there they picked up Mohan, Eldin, A-2 and Shivaji, A-3 and all of them came to A-l's house at Periyar Nagar and entered the house and sat on the first floor and started drinking brandy along with D- 2. They gave large quantities to D-2 to make him get drunk and they also gave him some food. After taking meals D-2 lit a cigar and was sitting in a slanting position at about 8.30 or 9 p.m. At that time A- 1 questioned D-2 about all the places where D-2 had taken D-1. A-1 became angry and saying that D-2 has become a hindrance to his brothel business also beat him severely on his cheek and he also signalled PW 1 to throttle the neck of D-2 with a towel. A- 2 pulled the legs of D-2 who fell down and PW 1 pulled the towel and throttled the neck of D-2 while Mohan pressed the nose and mouth of D-2 and A-3 caught hold of his hands.

Then A-1 kicked on the vital parts of the body of D-2 who after sometime died. (PW 1 also identified the photograph of D-2, M.O. 8), A-1 suggested that they should burn the body of D-2 there itself and sent A-2 and Mohan to bring six litres of petrol. A-2 took TVS 50 belonging to Mohan and brought the petrol. The body of D-2 was placed on the first floor in a room facing east. A-1 removed a gold ring and a gold chain from the body of D-2 which was given by A-1 to D- 2 at the time of housing warming ceremony. After petrol was brought, it was poured on the body of D-2 and A-1 after lighting a cigarette with a match stick, threw the burning stick on the body of D-2 which started burning. They closed all the windows and came out. After sometime they 493 heard some sounds indicating the burst of the stomach and the liver etc. of the burning body. After the fire started extinguishing A-2 asked Mohan to go down and bring kerosene and some planks. The kerosene was poured on the burning body and the body was lifted and placed on the planks. Then A- 1 suggested that unburnt portions could be dropped at the Muttukadu Boat Yard. At about 2 or 2.30 a.m. the unburnt portion of the body and the planks were packed in a bedsheet and when the car was brought by A-2 and Mohan, the body was kept in the dickey. The car was driven by A-1. On the way he saw PW 32 Sasi and PW 4, Raghu. A- 1 also asked them to get into the car saying that they had to bring arrack and gave the driving to PW 4. Before reaching the Boat Yard they dropped PWs 4 and 32 since they should not know that they were dropping the body of D-2. A-2 also was dropped Just to avoid any suspicion by them. Thereafter they went to Muttukadu Boat Yard and threw away the remnants of the dead body which were not traced. They came back at about 5 or 5.30 in the morning to the house. A- 1 asked Mohan to bring Thoppai Mistry and Painter Munusamy, PW 68. Those two people came and they were told that the bed caught fire in the night and that the paint has become black. As asked by A-1, PW 68 and Thoppai Mistry painted the room and also did the other repairs. PW 1 was there throughout. After two days when A- 1 and Mohan were talking, D-3 came and said that D-2 is not to be seen and that A- 1 took him and asked A- 1 why D-2 was not found for nearly two days and it appears D-3 also asked A-1 for some money. A- 1 suspected that D-3 was often enquiring about D-2 and ultimately planned to put an end to him. A-1 told PW 1 that Ravi, D-3 should be finished off. In the month of March 1988, A- 1, Mohan, A-2, A-3 and PW 1 were drinking in the house of Mohan at Ranganathapuram where he also used to keep girls involved in the prostitution and it was called a godown. At about 9 or 9.30 p.m. D-3 came and A- 1 asked him to take drink. A- 1 gave Rs 100 to buy whisky. While D-3 went to bring whisky A- 1 told PW 1 and others that if after coming back D-3 asks anything about D-2, he should be finished. Meanwhile D-3 brought whisky and all of them started drinking. After a little while D-3 in the effect of the drink started saying that A- 1 has finished Lalita, D-1 and also has finished Sudalai, D-2 and he also threatened A-1 that if he informs the same to the Inspector of Thiruvanmiyur, what would be his fate. So saying he asked A-1 to buy an auto for him.

Then Shivaji, A-3 questioned D-3 as to why he was demanding an auto for which D-3 retorted him to keep quiet. Then A-3 slapped D-3 and all of them planned to finish him off. A-2 was at the door and he caught hold of D-3's hair and dragged him and made him sit near the wall of the bathroom. A-3 picked up a towel with which he strangulated D-3's neck. A- 1 closed his mouth and nose and pressed. PW 1 sat on his chest. Mohan caught hold of Ravi's hands and A-3 caught hold of Ravi's legs. After his death they decided to bury the body there itself. A-1 asked A-2 to bring PW 68 and Thoppai Mistry and when they came A- 1 told them that some arrack barrels l have come and they have to be buried and a pit has to be dug. Accordingly the pit was dug by PW 68 and Thoppai Mistry and the accused gave a false 494 alarm that police are coming so that PW 68 and Thoppai Mistry could leave the place immediately. After that PW 1, Mohan and A- 1 to A-3 put the body in the pit and closed it.

They also placed the clothes which were worn by D-3 in the pit. A-1 warned all the accused who participated in the murders not to tell anybody and also threatened them with dire consequences if they would reveal the same to anybody.

19. PW 1 proceeded to depose about D-3's mother coming and asking A-1 regarding the whereabouts of D-3 quite often.

Then Mohan wrote a letter Ex. P- 1 purported to have been written by D-3 stating that he had gone to Bombay and the same was given to his mother.

20.Then PW 1 deposed about the murders of D-4 to D-6 for which there is direct evidence of other witnesses also. He deposed that on 29-5-1988 in the noon when he himself, A- 1 and A-3 were playing cards in the house of PW 25, A-l's concubine, A-7 and A-8 came there. A-6 and Mohan also came there. Mohan told A-] that three persons from Mandhaveli were beating A-2. Then PW 1 has given all the details about the attack on the three persons and how they were buried in the trenches of the foundation of a building which was under construction. These details have already been set out while stating the prosecution case.

21.From the above resume of the prosecution case as well as the evidence of PW 1, it can be seen that murders of D- 1 to D-3 form one transaction in the sense that A- 1 did not tolerate the betrayal by D- 1 and D-2 and finished them off and since D-3 was trying to blackmail him in respect of murders of D- 1 and D-2, he was also finished off. The murders of D-4 to D-6 also in a way are connected with the brothel business which was being run by A-1 and others. PW 1 was also associated actively in all the activities of A- 1 to A-3 and Mohan. Therefore the prosecution first sought to prove the background and the motive behind the commission of these murders namely the illicit arrack business and the brothel business and how D-1 to D-3 happened to come into picture and got thus eliminated. PW 1, as stated above, has deposed about the murders of D-2 to D-6. So far the murder of D-1 is concerned, PW 1 only spoke about the association and the relationship between A-] and D-1 and about the elopement of D-1 and D-2. As to the actual murder of D- 1, we have the retracted confessions of A- 1 and A-2 and we shall examine at a later stage whether the retracted confessions as corroborated by other evidence sufficiently establish the prosecution case regarding the murder of D- 1.

22.Now we shall consider the important aspects in the evidence of PW 1 and see whether there is enough of coffoboration? So far as the murder of D-1 is concerned, PW 1 did not participate in the actual occurrence of causing the death. He, however, deposed about the association of A- 1 and D-2 with D-1 and about the illicit business activities of A- 1 and Mohan and about the motive. His evidence shows that he was a close friend and associate of A- 1 and the same is beyond dispute. As a matter of fact, A- 1 in his written statement under Section 313 CRPC admitted that he was a close 495 friend of PW 1. PW 1 has also given the details as to how he became an associate of A-1 and Mohan and also as to how A-2 to A-6 and he himself were helping A-1 and Mohan in carrying on the said business activities. PW 1 also has spoken about the brothel business. He further deposed that D- 1 and Sunita, PW 51 who were in the brothel tent of PW 50 were brought to the brothel den of A-1 by PW 52. It is stated that several girls including PWs 21 and 71 were prostitutes in A- 1's brothel den. He has also stated that D- 1 was beautiful and that A- 1 kept her at Kalashetra Road in PW 34's house while he was living with his legally wedded wife Jagadeeswari in Periyar Nagar. It is also in his evidence that D-2 used to collect money from the customers and give it to A- 1 and that D-2 married one Lata who was kept in the next room of D- 1 who fell in love with D-2 and both of them eloped with cash of Rs 7300 and a camera belonging to A-1. He has also stated about the arrest of D- 2 at Thiruvanmiyur Police Station. So far as D-l's murder is concerned, the evidence of PW 1 is relevant to this extent regarding motive. This part of his evidence is amply corroborated by the evidence of other witnesses. That A-1 was carrying on brothel business, is clearly established by the evidence of the prostitutes PWs 21, 51, 71 and 121 besides the evidence of PW22, a neighbour, PW31, PW32, his own employee and PW 25, his mistress and also by the evidence of PWs 50, 51 and PW 4, his own driver. Here we may briefly refer to the evidence of PW 25. It is her evidence that while she was staying in a shed at Kalashetra Road, she became friendly with A- 1 who was indulging in brothel business. He expressed his desire to marry her on 20-2-1986 and took her to his stepmother and married her by tying a thali. PW 25 also deposed that A-1 used to write a diary M.O. 20 wherein there is an entry about his marriage with PW 25. Because of this marriage there was a quarrel between him and his first wife Jagadeeswari and he took her and kept her separately in Marutheeswarar Nagar. PW 25 also deposed about the cruel acts of A- 1 namely that he used to burn the girls with lighted cigarette butts and because of that Vijaya, one of the girls brought by him, ran away. PW 52 corroborated the evidence of PW 25 in respect of the marriage of A- 1 and herself. PW 34 corroborated her evidence and stated that A-1 kept her and one Lata, who married D-2 at Kalashetra Road in PW 34's house. PW 25 also stated about elopement of D- 1 and D-2. According to PW 25, A- 1 used to ask her to write in the diary M.O. 20 and that he also confessed to her about the murder of D- 1. PW 1's evidence also affirms that PW 25 was the kept mistress of A- 1. PW 31 corroborates the evidence of PW 1 regarding the Grah Pravesam of A-l's newly built house. PW 32 is yet another important witness who corroborates the evidence of PW 1 as well as that of PW 25 regarding the running of the brothel house. PW 37's evidence also corroborates namely that he and A- 1 went to Pallavaram and brought D- 1. Then PW 35, who is the mother of D- 1, deposed about A- 1 approaching her and enquiring about D-1. PW 35 also identified A- 1 and A-3 as the persons who came to enquire.

Then we have the evidence of PW 43, the Inspector attached to Thiruvanmiyur Police Station who informed A- 1 that he brought 496 D-2 from Meenabakkam and kept him in the Police Station. PW 98, SubInspector of Thiruvanmiyur deposed about A-l's preferring a complaint in September 1987 against D-2 alleging that he abducted his wife and took away cash and camera. PW 133, is the Circle Inspector of Thiruvanmiyur who directed to book a case against D-2 under Section 75 of the City Police Act. So the evidence of the above witnesses amply corroborates the evidence of PW 1 on the above aspects and the same establishes that A- 1 had strong ill-feelings towards D-1 and D-2. Apart from this evidence there is the evidence of PW 4 who was originally a driver in Mohan Raj Travels and who later joined the service of A- 1. He deposed that he along with A- 1 went in search of D-1 to Kottupuram and other places. He has given details about going to Bangalore etc.

23.So far as the murders of D-2 to D-6 are concerned, PW 1 was a direct participant. First we shall consider the evidence of PW 1 in respect of the murder of D-2 and the corroborating evidence. The persons involved in this murder are A- 1 to A-3, absconding accused Mohan and PW 1, the approver. to death and how they set fire to the dead body in the room of the house of A- 1 and how the remnants of the dead body were thrown in Muttukadu Boat Yard. As regards the motive for this murder, we have already pointed out that PW 1's evidence is corroborated fully. Tile prosecution further relied on the evidence of PWs 4, 5, 20, 25, 32, 34, 35, 37, 39 to 43, 46, 51, 55, 58, 64, 67, 68, 69, 121, 126, 131 and 134. We do not propose to give the details of evidence of each of these witnesses. Learned counsel appearing for the appellants, however, contended that A-1 had no motive to kill D-2 inasmuch as D-2 was helping him in all respects and A-1 also got him married and presented a gold ring and a gold chain. But the evidence of PW 1, which is supported by other evidence, would show that A-1 was very much aggrieved and infuriated because of the betrayal of D-2 by eloping with his beloved wife D-1. He had also grievance against D-2 as he was weaning away the customers of A-1. There is nothing to show that A-1 condoned the acts of D-2. To some extent the evidence of PW 25 also supports the prosecution case that A-1 had strong ill-feelings towards D-2. Both the courts below have accepted the above-mentioned evidence after discussing in great detail and held that the prosecution established the motive for the murder of D-2.

24.So far as the actual occurrence is concerned, we have got the evidence of PW 1 which is corroborated by other evidence independently apart from the retracted confessions of A-1 and A-2. While extracting PW 1's evidence we have already given the details spoken to by him regarding the murder of D-2. PW 1's evidence is corroborated by the evidence of PW 4 to the extent namely that on that day at about 4.30 p.m., D-2 and D-3 were seen conversing in the tea stall near Taj Mahal Hotel and PW 4 and A- 1 stopped the car and A- 1 asked PW 1 to bring D-2 and how D-2 was brought. Then PW 1 has given the details of various acts committed by A- 1 to A-3, Mohan and himself as well as bringing the petrol and pouring the same on the dead body of D-2 and setting fire to the same. PW 1 has also 497 given the details of the remnants of the burnt body being kept in the car and taken to Muttukadu Boat Yard. PWs 4 and 32 deposed that they were also asked to get into the car and A- 1 asked PW 4 to drive the car and on the way just before reaching the Boat Yard, A-2 and PWs 4 and 32 were asked to get down so that PWs 4 and 32 may not suspect and the rest proceeded in the car. The evidence of PW 68 Painter Munusamy and PW 69 Thoppai Mistry is very important. PW 68 was sent for by A-1. He deposed that he went to the house and having seen the room noticed that the wall was black and on being asked A-1 replied that he had dropped a lighted cigarette on the bed and it got burnt and PW 68 was asked to paint the room and that PW 1 was there throughout the day when the painting was going on. He also noticed a crack in the wall and he was asked to bring a mason. PW 68 asked PW 69 Thoppai Mistry to do the work and PW 69 put new cement flooring and he also noticed fresh whitewashing and painting inside the room. PWs 65 and 67 are the persons who supplied the materials for painting. PW 65 deposed that he was having a hardware shop and used to supply materials and on that day A-2 came and asked for supply of lime and brown colour paint. He further deposed that A-1 already instructed him to supply the materials and accordingly he supplied. He produced the bill also. PW 67 is another witness running hardware shop. He deposed that on 1-3-1988 PW 68 came to his shop and purchased colour and paint. The evidence of PWs 68 and 69 coupled with the evidence of PWs 65 and 67 lends ample corroboration to the evidence of PW 1 namely that the burning took place in the room. Learned counsel, in this context, however submitted that there is no corroborating evidence regarding the actual burning of the dead body of D-2 in the room. What we are seeking by way of corroboration is whether the version of PW 1 stands fortified and whether such corroborating evidence lends assurance to his version. The evidence of these witnesses particularly that of PW 68 establishes that only in that particular room there were dark particles and smoke and bad smell were emanating. Therefore the evidence of PW 1 that D-2 was done to death in that room and that his body was burnt, is amply corroborated. Apart from this, the prosecution also relied on the evidence of PWs 88, 113, 128 and 134. PW 128 is the Assistant Director of Forensic Science Department and he scraped the wall and after examining the contents stated that there was black deposit.

Learned counsel, however, submitted that it is not conclusively established that the presence of carbon particles in the room were due to the burning of the body.

But, as mentioned above, there is overwhelming evidence which corroborates the version of PW 1.

25.The prosecution also relied on the recovery of jewels namely ring and gold chain worn by D-2 at the time of occurrence. At the instance of A-1, the gold chain M.O. 13 was recovered from the possession of PW 25 along with some other articles. The panchnama was attested by PW 31 as well as by PW 25. There is also recovery of M.O. 12, gold ring at the instance of A-2 from his mother-in-law. PW 1 identified both these jewels 498 and stated that they were presented to D-2 at the time of Grah Pravesam of his house and that they were removed from the body of D-2.

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

27.Now coming to the murder of D-3, Ravi, PW 1 has given details as to how he was done to death and how the body was buried near the bathroom at 120-A, Ranganathpuram, Thiruvanmiyur. As far as the motive aspect is concerned, PW 1 has given details as to how D-3 used to come to A-1 and demand money. He also deposed that A-1 told him that D-3 is making frequent enquiries about D-2 and that he may tell something to the Inspector of Thiruvanmiyur who has been using D-3's auto often. Here again we have the evidence of PW 68, Painter Munusamy who deposed that as directed by the accused, he dug a pit and thereafter A- 1 gave him Rs 100 and asked them to go away saying that police was coming.

Then PW 1 deposed that he and absconding accused Mohan and A-1 to A-3 brought the dead body of D-3 from the room and buried it in the pit. For the purpose of corroboration of the version of PW 1 the prosecution relied on the evidence of PWs 25, 3 1, 32, 33, 45, 56, 59, 60 to 63, 68 and other witnesses apart from the evidence regarding the recovery etc. It is in evidence that D-3 was a close friend of D-2 and when he found that D-2 was missing, he suspected that he might have been murdered. The motive part, as far as the murder of D-3 is concerned is that A-1 suspected that D-3 was trying to blackmail him. The mother of D-3, PW 59, deposed that she went and questioned A- 1 about the whereabouts of D-3 and A-1 told her that D-3 has gone to Bombay and ultimately she gave a complaint. She further deposed that she got an inland letter Ex. P-1 purported to have been written by D-3 and she stated that the same was not in his handwriting. As already mentioned this letter is written by Mohan who tried to mislead PW 59. PW 59 also identified the clothes which were worn by D-3 i.e. M.0s. 16 to 18 and M.O. 111 and which were recovered from the pit at the time of exhumation of the body. PW 60, the wife of D-3, also supported the evidence of PW 59. Learned counsel contended that the evidence of PW 120, Handwriting Expert on the question of handwriting in Ex. P- 1 is not conclusive.

We think we need not go into the details of the evidence of PW 120 because there is other ample evidence. PW 25 also supported the evidence of PW 1 on some material aspects.

The evidence of PW 68, who dug the pit, is very important and PW 69 deposed that at the instance of absconding accused Mohan, he did the plastering near the bathroom where there were cracks in the cement floor. Next we have got the evidence regarding the recovery of the body. According to the prosecution, pursuant to the confession made by A- 1, the body was recovered. Learned counsel submitted that this recovery cannot be treated under Section 27 of the Evidence Act since it is not clear whether the recovery was effected at the instance of PW 1 or A- 1 or at the instance of 499 both, Even assuming that it cannot be brought within the ambit of Section 27, yet it is a circumstance which shows that body was buried there and the same was exhumed.

Regarding the exhumation, we have the evidence of PW 108, Tehsildar and PW 109, Photographer. Then there is evidence of PWs 59, 60, 62 and 63 who also attested the inquest report. The dead body was identified by the relatives of D- 2 with reference to M.0s. 16 to 18 and III, the clothes worn by D-3. The recovery of the same from the pit is spoken to by PW 108 and other witnesses. Apart from that there is evidence of PW 118, Assistant Director of Forensic Science Department who did the superimposition test in respect of skull and jaw recovered and gave the opinion that the skull and jaw belonged to D-3 with reference to M.O. 19, a photograph. Therefore there is no doubt about the identity of the deceased. There is also the evidence of PW 122, a Doctor, who conducted the autopsy and she gave the opinion that D-3 appeared to have died of sudden violent unnatural cause of death namely asphyxia and strangulation. She has also noted that there was a fracture of hyoid bone.

Therefore the cause of death also is clear and the same corroborates the evidence of PW 1.

28.Both the courts below also relied on the evidence of PW 25. She deposed that on 14-3-1988 D-3 came to her house and enquired about A-1 and on 15-3-1988 at about 8 a.m. A-1 came to her house and consumed brandy and on being questioned as to why he was taking brandy in the morning, he told him that he was very happy on that day. He also confessed as to how D-3 was done away with. Her evidence was challenged on the ground that she was the wife of A-1 and such evidence in view of Section 122 of the Evidence Act cannot be used against A- 1 namely the husband and on a consideration of the entire evidence, both the courts, as a question of fact, held that PW 25 was not the legally wedded wife of A- 1 and that his marriage with Jagadeeswari was subsisting and that PW 25 was a Christian and she was living only as his mistress and therefore Section 122 of the Evidence Act is not attracted and on the facts this appears to be a correct view. Thus PW 1's evidence in respect of murder of D-3 is amply corroborated by the evidence of the above-mentioned witnesses.

29.Regarding the murders of D-4 to D-6, apart from the evidence of PW 1, there is evidence of some more eyewitnesses and other corroborating evidence and the recoveries. We have already given the details of the conduct of these three deceased persons, as deposed by PW 1.

By way of corroboration the prosecution relied on the evidence of PWs 2 to 30, 32, 33, 37, 38, 45, 47, 53, 54, 72 to 76, 89, 91, 98, 112, 114, 117, 118, 119, 121 to 123, 130, 132, 133 and 134. The case of the prosecution is that D-4 to D-6 (Mandhaveli people) were creating trouble and also threatened the Managers of the place not to allow prostitution in the lodges. The prostitutes who were in the business of A- 1 complained to him and it was the beating of A-2 that aggravated the whole situation. PW 121 deposed that she joined the brothel of A-1 in 1987. PWs 4, 9 and 32 and D-2 were assisting A-1. A-3, A-5 and A-6 and Selvaraj, the absconding accused were assisting Mohan in the illicit arrack business. Her further evidence is that on 23-5-1988 the three deceased 500 and others created galata and she informed A-1. On 27-5- 1988 also there was some such trouble. PW 121 further deposed that when she was returning from the Golden Beach after spending time with the customers, she was accosted and she was pulled by the three deceased from the auto and when A-2 intervened he was also assaulted and coming to know of this, A-] came with other associates including PW 1 and attacked the three deceased. The auto driver, PW 11 also corroborates the evidence of PW 1 as well as that of PW 121.

The prosecution thus has established that there was sufficient motive. Regarding the actual beating, apart from the evidence of PW 1, there is the evidence of PW 2 firewood shop owner. He deposed that D-5, Mohan entered his shop being chased and he requested PW 1 and Mohan, the absconding accused not to attack the deceased in the shop but to take him out and accordingly they took him out. Then we have the evidence of PW 4 who deposed that he brought PW 6 from Mandhaveli who affirmed that all the three deceased persons belonged to Mandhaveli and thus they were identified. Then there is evidence of PW 32 who also informed A- 1 about the earlier attack by the three deceased persons. PW 3 is a member of Vanniar Sangam and on that day at about 3.45 p.m.

he came in front of PW 2's shop. He noticed a person entering into the shop being chased by PW 1 and Mohan and also saw PW 1 beating him. While going he also saw A-1 standing armed with a Casuarina stick. By then all the accused had assembled and he noticed PW 1 and Mohan and other accused beating the three deceased persons. PW 3 was threatened by A-1 that if anybody interferes with his affairs, he would meet the same fate. Thereafter PW 3 went to his house. PW 3's house is quite nearby and a little later he saw A- 1 with bloodstained clothes entering into his own house and followed by PW 1, Mohan and A-3 who were bringing the three deceased in the auto to the house of A- 1. PW 3 is a person living very close to the place of occurrence and there is no dispute that he knew the identity of these accused. Both the courts have discussed his evidence and found to be trustworthy which corroborates the evidence of PW 1 in respect of actual occurrence also. Next we have the evidence of PWs 7, 8, 9 and 89 besides that of PWs 4, 32 and 37. PW 7 is a dhobi. He knew the accused as well as PW 1. He deposed that on the date of occurrence he was in front of the house of one Ramalingam on 29th Cross Street attending to his work and he saw an auto coming from which PW 121 got down. He further deposed that the three deceased persons, obviously referring to D-4 to D-6, pulled her and quarrelled with her and when A-2 came he was also beaten by the three deceased. Then PW 32 came and took the girl. He further deposed that the accused came from the side of the arrack shop of Mohan armed with sticks and started beating the three deceased. PW 1 1, the auto driver was driven away. PW 7 has been cross-examined at length.

We find that he is a local witness who knew all the accused and his evidence regarding beating of the three deceased persons on 29th Cross Street by the accused is trustworthy and the same corroborates the evidence of PW 1 amply. PW 32 also corroborates the evidence of PW 7 to the extent namely that he came and took away PW 121 who was being ill-treated by the 501 three deceased on the road. Next important witness is PW 8 who also resides in the same street namely 212, Gandhi Road, Periyar Nagar where A- 1 is residing. He knew the accused though he did not know their names. He fairly stated that he did not know the names of A-2 and A-8. It is his evidence that on the day of occurrence at about 4 p.m. he heard a voice from the cement floor opposite to his house.

He came out and saw the three young persons being beaten indiscriminately all over the body with Casuarina sticks and he identified A-1 to A-4, Mohan and PW 1 beating with Casuarina sticks and A-6 with a wooden reaper. PW 8 further deposed that he was called by A-1 and threatened not to disclose the incident to anybody and also asked him to wash the cement floor. Accordingly he washed the same. He further deposed about the recovery of dead bodies on being pointed by A- 1 and PW 1 from the basement of the building under construction belonging to PW 14. PW 8 is a competent witness. We have also seen his cross-examination and the discrepancies pointed out are of minor nature. His evidence amply corroborates the evidence of PW 1 in respect of attack from the beginning up to the beating on the cement floor.

Next comes the evidence of PW 9 who is a resident of Thiruvanmiyur. He deposed that on the day of occurrence at about 4.45 p.m. he was talking with A-2 and PW 32 on 29th Cross Street. He deposed about the three deceased persons pulling PW 121 from the auto etc. He also deposed that he was sleeping on the basement of PW 14's building and that at about 1 or 1.30 a.m., PW 1, Mohan, and A- 1 to A-3 came and asked him to vacate the place as they were going to play cards and when he expressed that he cannot go to his house at that time, A-3 took him to his house and asked him to lie there. However, he once again came to the basement and he saw A-3 along with A- 1 and PW 1 digging the pits in the basement. PW 9 also is cross-examined at length. As a matter of fact he did not even mention the names of A-7 and A-8. However, his evidence corroborates the evidence of PW 1 to that extent namely that pits were dug on the basement of the building of PW 14. PW 11 also corroborates the evidence of PW 1 as well as that of PW 32 to the extent of three persons coming in the auto and manhandling PW 121. He also deposed that A-2 came there and he was also beaten and therefore he left the place. PW 121 also corroborates the same. PW 37 is another witness who is a resident of Periyar Nagar and he also deposed about the accused beating the three deceased persons with Casuarina sticks on the cement floor opposite to the house of PW 8. He did not attribute any overt act to A-7 and A-8. Then regarding the later part of the occurrence, we have the evidence of PW 89 who is running a shop. He knew all the accused and PW 1. His shop is located opposite to the arrack shop of Mohan and while he was in his shop, he saw the three deceased persons in an auto and A-2, A-3 and others beating them. He also deposed that at about 5 or 6 p.m. the victims were taken in an auto towards Gandhi Road. Both the courts have found his evidence to be natural and probable. His evidence also corroborates the evidence of PW 1 on this aspect namely the three deceased persons were beaten on the cement floor and were taken towards Gandhi Road i.e. to the house of A-1.

Then 502 there is evidence of PWs 4, 5, 6 and 17. We have already referred to the evidence of PW 4 on other aspects. He corroborates the evidence of PW 1 on the earlier aspects namely identification of the three deceased and PW 6 coming and identifying them. He did not see the actual beating but deposed that he saw that the three deceased persons were detained with injuries. Then we have the evidence of PW 12, who deposed that on that night A-3 came to his house and asked him to give his spade saying that it was needed for burying the arrack barrels. The prosecution also relied on the evidence of PWs 10, 25 and 32 to whom A-1 is said to have confessed about the occurrence. We have already referred to the evidence of PW 25 on certain aspects. With regard to this occurrence, she deposed that when A-] was in her house A-6 came and told him that the three deceased persons from Mandhaveli have waylaid PW 121 and were quarrelling with her and when A-2 intervened he was beaten.

She further stated that a little later PW 37 came and told that all the three deceased were on the cement floor and were being beaten by A- 1 and others. A little later A- 1 came to her house and she found that his clothes were bloodstained and the other accused brought the three deceased persons in an auto. A-1 also asked her not to remain in the house and he took her to the nearby house of PW 3 1. Sometime later when she asked A-1, he told her that they have beaten all the three deceased and locked them inside the room and that later they found that D-4 and D-5 dead and D-6 alone murmuring and thereafter they also strangled him to death. Thus, so far as the murders of D-4 to D-6 are concerned, PW 1's evidence is amply corroborated by other evidence and apart from this evidence, there is other evidence namely that of PWs 7, 8 and others which also establishes that the accused persons along with PW 1 committed the murders. The High Court, however, acquitted A-7 and A-8 since their names were not specifically mentioned and for other reasons. Anyway we are not concerned with them.

30. From the above discussion it emerges that PW1's evidence which is sufficiently corroborated by the other evidence establishes beyond all reasonable doubt that A- 1 had the motive to do away with D- 1 and that A- 1 to A-3 and PW 1 along with the absconding accused committed the murders of D-2 to D-3 and all of these appellants also committed the murders of D-4 to D-6.

31.At this juncture, we would like to advert to a submission of the learned counsel for the appellants. He pointed out that the High Court has used the retracted confessions for the purpose of corroborating the evidence of PW 1 which is not permissible. We have gone through the judgment of the High Court carefully. No doubt, here and there it is mentioned that the retracted confessions also corrobo