1. This case is, I think, notable for the brutality -of a crime and the callousness with which the crime was committed. Five members of a family and a servant In the family died of injuries caused to them and the five members included a six month old child. The injuries inflicted upon these persons number 67, some of them being either upon the abdomen or upon the chest. This is a shocking crime and will perhaps remain unsurpassed in its ferocity, but the Court's approach to the evidence in the case must be dispassionate and free from 'prejudice and the examination of the evidence must be fair find just in fixing the guilt upon the accused persons and in this connection, we will bear in mind the observations made by the Supreme Court in the case of Kashmira Singh State of Madhya pradesh, : 1952CriLJ839 (A). There their Lordships observed as follows:
'Where the murder committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime night induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.'
2. The circumstances in which that crime was committed may now be stated. One Ramkrishna Keshav Joshi resides at Chafe, a village in the Ratnagiri Taluka of the Ratnagiri District. Ram krishna was given in adoption his name in thenatural family being Govind and he is known as such. At the material time which is the 22nd February 1958 his family consisted of his wife Radhabai, his two sons Dattatraya and Shankar, Dattatraya's wife Sulochanabai and Dattatraya's three children, a daughter Shalini and two sons, Suryakant and Chandrakant. Shankar lives in Bombay. The family had on the material date two servants Bhagya Manjrekar, a permanent servant, and Balu Veer, a temporary employee. Ram-krishna used to spend his day time in the house of his natural father with the members of his family, but used to sleep at night in the house of his adoptive father. In the evening of the 22nd February 1956 Ramkrishna went to the house of his adoptive father, leaving the members of his family in the house of his natural father.
3. In the village of Chafe there are about 250 houses. Of these, twenty houses are situated in a locality known as Maharwada. There are ten or twelve Knots at Chafe. Ramkrishna Joshi, Shri-krishna Shevde and Bhargave Puranik, being some of the Khots. Ramkrishna owns extensive lands. They measure 150 acres and are assess;d at Rs. 65/- After the abolition of the Khoti, inquiry was commenced in the village about Knot Nisbat lands and a survey was started in Dec. 1955. The persons concerned with the survey were residing in the house of Ramkrishna's adoptive father. Dattatraya was giving instructions to the Survey Officers on behalf of all Khots. Dattatraya was also ma-, naging the family affairs perhaps owing to the old age of his father Ramkrishna who had executed in Dattatraya's favour a Mukhtyarpatra or a Dower of attorney. Dattatraya was also looking to the Court-work of his brother Khots and at the survey measurement Dattatraya represented the Khots, while accused Nos. 1, 2 and 6 pleaded the cause of Mahars.
4. A Gram Panchayat was established in the village of Chafe some two or three months before the date of the offence and Ramkrishna Joshi was the Chairman of the Gram Panchayat.
5. Accused Nos. 1 to 12 and absconding Bhagva are all residents of the village of Chafe, Of these, accused Nos. 1 to 7 stay at Chafe, while accused Nos. 8 to 12 and absconding Bhagya stayed at the material time in Bombay on account of service. Accused No. 8 is an employee in the service of the Bombay Municipal Corporation. Accused No. 9 is a servant in Crompton Parkinson Ltd. Accused No. 10 was a servant in a fuel depot at Vile Parle. Accused No. 11 is an employee in the Western Railway Stores, Mahalaxmi. Accused No. 12 is also in the service of Crompton Parkin-son. Ltd.. while absconding Bhagya was in the service of Khatau Makanji Mills. Some of the accused are related niter se. Accused Nos. 1, 9 and 12 are brothers, being the sons of one Ramchandra. Accused Nos. 5 and 6 are also brothers, being the sons of Bhagya. Accused No. 11 and absconding Ehagya are also brothers being the sons of Rama Nanu a witness in the case, Kalya, accused No. 3, is the father of Gangaram, Accused No. 4. Accused Nos. 1 and 7 appear to be cousins.
6. The houses in Maharwada are situate in Survey Nos. 15 and 16 and these two fields belong to Khots. Fields bearing Survey Nos. 10 to 14 also belong to Khots, while Mahars are entitled to a oortion in Survey Nos. 76 and 121. On two sides of the Maharwada there are Gadagas (stone walls) and they belong to Ramkrishna. The height of the Gadga is said to be 41/2 feet, while its breadth is about 3 feet.
7. In the morning of the 23rd February 1958 at about 6 A.M. Ramkrishna Keshav Joshi left thehouse of his adoptive father in order to go to thehouse of his natural father where his family lived and when he went there, he saw, in a pool of blood, the dead body of Dattatraya in the court yard of the house. Ramkrishna shouted for the inmates to which there was no response. So he went into the house by the rear side and then he saw the dead bodies of his wife Radhabai, his daugter in law Sulochanabai and his grand-daughter Shalini. He also saw at that time the dead body of his servant Balu Veer. Ramkrishna started shouting again, but nobody came up and so he went to the house of Mulye and asked one Narayan Mulye to go with him in order to send a telegram. He returned to his house when he saw his grand-son Suryakant, a boy of about 6 years of age, the only surviving member in the wreckage of the whole family. Suryakant told Ramkrishna that at night he was asleep. Ramkrishna then sent Purshottam Mulye to Malgund, a village situate at a distance of six miles from Chafe, in order to send a telegram. Purushottam Mulye went to Malgund for sending telegrams and he sent two telegrams, of which one was to the District Superintendent of Police and the other was to the Police Sub-Inspector, upon sending the telegrams, Purushottam returned to Chafe. The telegram sent to the Sub-Inspector was received by Sub-Inspector Sarangdher who, in February 1956, was working as a Police Sub-inspector. Ratnagiri, and he received the telegram on 23rd February 1956 at about 10.45 A.M. Sub-Inspector Sarangdhar then went to Chafe, reaching the place at 2.30 P.M. accompanied by' the Civil Surgeon, the sub-charge medical officer of the name of Dr. Hombal and some nurses. Sub-Inspector Sarangdhar commenced investigation and the investigation in this case was conducted partly by Sub-Inspector Sarangdhar, partly by Sub-Inspector Kocharekar, partly by Sub-inspector Biwalkar and party by Detective Inspector Savant. Sub-Inspcctor Sarangdhar made inquest panchanamas concerning the bodies of Radhabai, Dattatraya, Sulochanabai, Shalini, Chandrakant and Balu Veer, and after the inquest panchanamas were over, he gave the dead bodies of these persons to the medical officer for examination. He then examined some of the witnesses. On 24th February 1956 he made a panchanama of the scene of offence. Various other panchanamas were also made to which reference wilt be made in appropriate places. The accused were arrested. Accused Nos. 1 to 7 were arrested on 24th February 1956. Accused Nos. 8 and 9 were arrested on 4th March 1956. Accused No. 10 was arrested on 5th March 1956. Accused No. II was arrested on 20th March 1956 and accused No. 12 was arrested on 25th March 1956. An attempt was made to apprehend Bhagya, but he was not traced and has been absconding. In the course of investigation two confessions were recorded. The onfession of accused No. 10 was recorded on 24th March 1956 and that of accused No. 11 was recorded on 2nd April 1956. Certain articles were sent to the Chemical Analyser and after completing the investigation a charge sheet was presented against the twelve accused persons on 13th April 1956, the charge sheet showing Bhagya as absconding.
8. The charges against the twelve accused persons included a charge of criminal conspiracy and also a charge of the accused being members of an unlawful assembly. The charge of conspiracy was that the twelve accused persons with Bhagya Rama Jadhay, the absconding accused, agreed some time between 29th December 1955 and 22nd February 1956 at Bombay and Chafe ,Taluka Ratnagiri, to do an illegal act, viz., to commit the murders of Dattatraya, Ramkrishna Joshi and themembers of his family, an offence punishable under Section 120-B of the Indian Penal Code. The charge of being members of an unlawful assembly was that in pursuance of the said criminal conspiracy the twelve accused persons and absconding Bhagya formed an unlawful assembly in the house and compound of Dattatraya Joshi, the common object of Which was to commit murders of Dattatraya his wife Sulochanabai, his mother Radhabai his daughter Shalini, his infant son Chandrakant and his servant Balu Veer, and that in prosecution of the common object accused Nos, 1, 2. 9, 10, 11, 12 and absconding Bhagya did commit murders by Intentionally causing the deaths of those persons in the house at Chafe between 8 to 10 P.M.. an offence punishable under Section 302 read with Section 149. Further, the charge was that in pursuance of the said criminal conspiracy and in prosecution of the said common object at the same place and at the same time accused Nos. 10 and 11 attemped to commit murder of servant Bhagya Tulaji Manjrekar by inflicting injuries upon him and that they inflicted injuries with such an intention and under such circumstances that if by that act they had caused the death of Bhagya Manjrekar they would have been guilty of murder, an offence punishable under Section 307 and lastly, the charge was that all the acts of murder and attempt to murder were committed by the aforesaid accused persons in furtherance of the common Intention of all, in furtherance of the said criminal conspiracy and in prosecution of the said common object all the accused persons and absconding Bhagya committed offences punishable under Sections 302 and 307 read with Sections 34, 109 and 149 of the Indian Penal Code.
9. The defence of the accused as summarised by the learned Sessions Judge was one of denial. The accused stated that they were innocent and asserted that they had been falsely implicated in the present crime. Accused No. 10 said further that he was tortured by the police to give a confession and he gave a confession as a result of torture. Accused No. 11 stated that he gave the confession because he was beaten and belaboured by the police and also as a result of inducement offered to him. Accused Nos. 9 and 12 said that what was stated by accused Nos. 10 and 11 in their confessions was untrue.
10. On the evidence adduced by the prosecution, the evidence being both oral as well as documentary, the learned Sessions Judge, Ratnagiri, held that accused Nos. 1, 2, 10 and 11 were guilty Of the offence under Section 120-B and they were also guilty of the offence under Section 302 read with Sections 34, 109 and 149 of the Indian Penal Code. He next held that accused Nos. 10 and 11 were also guilty under section 307 of the Indian Penal Code and that accused Nos. 1 and 2 were guilty under section 307 read with Sections 34, 109 and 149 of the Indian Penal Code. Consistent with these conclusions, he convicted accused Nos. 1 and 2 of the offence under Section 120-B and also of the offence under section 302 read with Sections 34, 109 and 149, and for the offence under Section 302 read with Sections 34, 109 and 149 he sentenced accused Nos. 1 and 2 each to suffer imprisonment for life, no separate sentence being necessary, according to him, for the offence under Section 120-B. He then convicted accused Nos. 1 and 2 of the offence under Section 307 read with Sections 34, 109 and 149 and for that offence he sentenced each of them to suffer rigorous imprisonment for five years, directing that the sentences imposed upon accused Nos. 1 and 2 were to run concurrently, As regards accused Nos. 10 and 11, he convictedthem under Section 120-B and also under Section 302 read with Sections 34, 109 and 149 of the Indian Penal Code. For the offence under Section 302 read with Sections 34, 109 and 149 of the Indian Penal Code He sentenced accused Nos. 10 and 11 each to death subject to the confirmation of the sentence by the High Court. He did not award a separate sentence to these accused persons in respect of the offence under Section 120-B. Further he convicted accused Nos. 10 and 11 under Section 307 and sentenced each Of them to undergo rigorous imprisonment for five years, adding as a rider that in the case of accused Nos. 10 and 11 there would be no need to carry out the sentence of imprisonment if the extreme penalty took effect and also stating that if for some reason the sentence of death was reduced to imprisonment for life, the two sentences were to run concurrently. Finally, he made an order in favour of accused Nos. 3 to 9 and 12, holding that they were not guilty of any offence, acquitted them of the offences charged against them and directed that they be set at liberty.
11. From the convictions and the sentences of death imposed upon accused Nos, 10 and 11, the case has come up for confirmation of the death sentences. Accused Nos. 10 and 11 have also preferred an appeal against their convictions and the sentences and that is Cri. Appeal No. 996 of 1956. Accused Nos. 1 and 2 have questioned the convictions recorded against them and the sentences imposed upon them and they have filed Criminal Appeal No. 997 of 1956. Government have preferred an appeal against the, acquittal of accused Nos. 3. 4, 5, 6. 7, 8, 9 and 12 and the appeal by the State Government is Criminal Appeal No. 1074 of 1956 and the State Government has further preferred a revisional application asking for the enhancement of the sentence passed upon each of accused Nos. 1 and 2 and that is revisional application No. 1158 of 1956. As these proceedings arise from the same sessions case, it will be convenient to dispose of these matters by a common judgment.
12. It would be convenient now to state the effect of this evidence upon the question of Criminal conspiracy, as alleged by the prosecution. The evidence of Ramkrishna Joshi shows that the relations between the Khots on the one hand find the Mahars or Harijans on the Other were strained. To that evidence. I have already referred in detail in an earlier part of this judgment. Dattatraya had given an application complaining of the threatening language, as used by accused No. 1. Dattatraya had made a complaint ia connection with the cutting of Kalaks (bamboos). Bhar-gav Puranik also had filed a complaint and the letters to which I have referred in detail in an earlier part of this judgment seem to reflect in mistakably the kind of relations existing between the Khots on the one hand and the Mahars or Harijans on the other. On that evidence, it seems clear that the Mahars or Harijans were not satisfied with the survey measurement, as it was taking Place. There is reason to think that the Mahars or Harijans also did not like the establishment of a Gram Panchayat of which Ramkrishna was the Chairman. The evidence shows that Dattatraya, besides being the police patil and owning a small shop, represented the Khots before the survey officers and also was representing the Khots in the Court work. Following the measurement done by the survey officers at the survey undertaken By them, accused No 1 appears to have left for Bombay In Poush which corresponds roughly withJanuary 1856, The evidence of Pahdu Sakharam shows that he was present at a meeting called in Bombay by the Mahars of Chafe residing in Bombay and the record shows that the Sangh or union had two meetings, one on the 10th January 1956 and the other on the 10th February 1958. Accused No.1 appears to have returned to Chafe because the evidence of Rama Namu shows that he was present, among others, at a meeting held on the 16th February 1956 at Devli which is the date of the letter and which contains a significant sentence ^^ dVkpk ukjy Fksoyk a **The periodbetween the 16th February 1956 and the 23nd February 1056 is a period of six days and it is probable that the letter of the 16th February J956 was received in Bombay on or about 18th February 1956. Accused No. 7 admits that the letter was written by him and the evidence shows that the letter was addressed to accused No 8, though accused No 8 had stated that the evidence about the tracing of the letter was false. When these facts are taken in the context of the purchase of knives in Bombay shortly before the date of the offence, it is not a difficult step to take that the conspiracy having been laid with the purchase of knives the parties to the conspiracy set their hands to the accomplishment of the object of that conspiracy. To attain that end, leave was applied for by some of the accused and the record shows that accused Nos. 10, 11 and 12 were absent from Bombay on 21st, 22nd and 23rd February 1956. As regards accused No. 9, although the punching machine shows that he was present, we accept the evidence of Rangachari that it is possible to misuse the punching machine and since we accept the evidence both of Babaji Pawar and Dattaram Parkar, there is no difficulty in holding that accused No. 9 too was absent from Bombay on 2lst, 22nd and 23rd February' 1956. It is significant that accused No. 9 is the brother of accused No. 12. When these are the facts, it is, We think, reasonable to hold that there was a criminal conspiracy to commit the murders of Dattatraya and the members of his family. For one reason or another Dattatraya had incurred the displeasure of the Mahars or Harijans and looking to the, manner in which the object of conspiracy was carried out, there can be no doubt that the object of conspiracy was to do bodilv harm to the family of Dattatraya. In considering the question of criminal conspiracy it is not always possible to give affirmative evidence about, the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to lie carried out-- all this is necessarily a matter of inference and ag we peruse the record of this case, we are satisfied that there was a criminal conspiracy to commit the murders of Dattatraya and the members of his family. There are many cases upon the subject. It will, I think, be enough to refer to one of them, to begin with, and that is the case of Emperor v. Shafi Ahmed (1925) 31 Bom LR 515 of the report will be found a number of cases cited by Mr. Justice Crump and it will be enough, wo think to quote a passage from an English case cited in the judgment. That passage runs as follows:
'It does not happen once In a thousand times, when the offence of conspiracy is tried, that anybody comes before the jury to say I was present at the time when these parties did conspire together and when they agreed to carry out their unlawful purposes'; that species of evidence is hard-ly ever to be adduced before a jury, but the unlawful combination and conspiracy is to be inferred from the conduct of the parties, and If you see several men taking several steps, all tending towards one obvious purpose, and you see them through a continued portion of time, taking steps that lead to an end, why it is for you to say whether those persons had not combined together to bring about that end, which their conduct so obviously appears adapted to effectuate.
'Although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same art, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.'
The learned Government Pleader referred to a decision of the Calcutta High Court reported in Binavendra Chandra Pande v. Emperor : AIR1936Cal73 , and at page 962 of the report (at p. 84 of AIR), the learned Judges of the Calcutta High Court observed as follows :
'It is not necessary that there should- be express proof of conspiracy. It is not necessary to prove that two or more persons came together, actually agreed in terms to have the common design and to pursue it by common means and so carry it into execution. There may be no witnesses to say that in their presence the conspirators agreed to carry out unlawful object. From the acts and conduct agreement can be inferred. If it is proved that they pursued by the acts the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view (o the attainment of the object which they were pursuing, you are at liberty to draw the inference that they conspired together to effect that object ..... The evidence must show a common plan so as to exclude a reasonable possibility of the acts of the conspirators having been done separately and connected only by coincidence.'
We think, therefore, that, on the whole, a reasonable inference arises that there was a criminal conspiracy to commit the murder's of Dattatraya Joshi and the members of his family, as alleged by the prosecution.
13. Now, so far as accused Nos. 10 and 11 are concerned, they are the makers of the confessional statements and so far as they are concerned, that is Rood evidence as against them. With regard to the accused other than accused Nos. 10 and 11, the position is slightly different. In the case of the accused other than accused Nos. 10 and 11 the position is that the confessional statements of accused Nos. 10 and 11 cannot be considered as substantive evidence. In their case the law requires us first to consider the evidence in the case and it is only to bring assurance as regards the guilt of the accused that we may look to the confessional statements Of accused Nos. 10 and 11 in the case of the non-confessing accused. There are many cases on this point and it is enough to refer to two of them. The first of these is the case reported in Bhuboni Sahu v. King. A partof the head-note in that case runs as follows :
'The law derived from reading S. 133 and S. 114. Ill. (b), of the Indian Evidence Act, 1872, together is that whilst it is not illegal to act Upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that 16 is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of an accomplice cannot be used to corroborate the evidence of another accomplice.'
Under Section 30 of the Indian Evidence Act the confession of a co-accuted can be used only in support of other evidence and cannot be made the foundation of a conviction. Then the next case is a case reported in Raju v. State of Mysore : AIR1953Bom297 (E). A pare Of the head-note in that case is as follows :
'The confession of an accused is a very strong Piece of evidence against the accused himself, provided it is voluntary and the Court is satisfied that it is true. But it is a weak piece of evidence as against the co-accused, and there must be sufficient evidence independently of the confession which would warrant a conviction of the co-accused. It is only when there is such evidence that the Court may proceed further and look at the confession and consider it as additional evidence that would further weigh the balance against the co-accused. The mental approach of the Court should be to ignore the confession in the first Instance, marshal the evidence led against the co-accused independently of the confession, make up its mind whether that evidence is sufficient in law to warrant a conviction, and after it has made up its mind, then to consider the confession of the accused.'
14. The learned Government Pleader has urged that the statements made by accused Nos, 10 and 11 in their confessional statements are evidence against the other accused under section 10 of tho Indian Evidence Act which provides that:
'Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant face as against each of 'the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.'
If the learned Government Pleader is right' the confessional statements can be used as evidence against the non-confessing accused, which argument, if I may say so with respect, is a perilous one. In this case both the confessional statements have been, retracted. Cases after cases have laid, down that while a confessional statement is good evidence as against the maker, it is no evidence against a co-accused, but it may be taken into consideration along with the other evidence in the case and that. I think, is the principle of section 30 of the Indian Evidence Act; but the weakness Of the argument is sufficiently exposed in view of the decision of the Privy Council in the case of Mirza Akbar v Emperor. .' Anything said, done or written bv one of the co-conspirators must be in reference to the common intention and it is difficult to say. once the object of criminal conspiracy is carried out, that any common intention existedwith reference to the criminal conspiracy. The confessional statements- made by accused Nos. 10 and 11 are made on the 24th March 1956 and 2nd April 1956 i.e., after the object of criminal cons-piracy is carried out. The confessional statements refer to past events and can have no reference to anv common intention animating the co-conspira-tors. In our opinion, therefore, while these two confessional statements may be considered as evidence against the non-confessing accused along with the other evidence in the case only to lend assurance to the guilt. there is no justification for Baying that the statements made by the confess sine accused is evidence against the other accused. Indeed, this Js what the Privy Council said :
'The words 'common intention' in S. 10 signify a common intention existing at the time when the tiling was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. Hence, any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.'
If the argument of the learned Government Pleader is right then taking the confessional statement of accused No. 11 we will have to hold that absconding Ehagya killed Dattatraya Josh! and his small son, to hold that accused No. 12 killed both Dattatraya Joshi's wife and his daughter and to further hold that accused No. 9 killed Baiu Veer and the old woman Radhabai. We must, therefore reject this contention. We can then proceed only upon the footing that the confessional statement of accused No. 10 ig as against the maker good evidence and in the case of accused No. 11, his confessional statement is good evidence as against him. In the case of the accused other than accused Nog. 10 and 11 we may take into consideration these two confessional statements after taking into account the other evidence in the case.
15. That leaves the case of accused Nos. 9, 10, 11 and 12 to he considered. The question of sentence presents, to my mind, some difficulty in this case. Although the facts are unusual and the enormity of the crime is evident, evidence is want-Ing in this case to show as to which particular accused killed either Dattatraya or the inmates of his family. There is no doubt that the murders were cruel, cold-blooded and would shock the conscience of every- fair-minded citizen. It may be urged that there was a dispute with Dattatraya. But the mere existence of a dispute does not invite the commission of an offence of murder. We fail to see as to why a fifty-five year old mother Radhabal, a thirty year old wife Sulochanabai, an eight year old daughter Shalini and a six month old child Chandrakant should be the object of these dastardly attacks. What on earth Radhabai, Sutochanabai, Shalini and Chandrakant had done to the assailants, heaven alone knows. That a six-month old child should receive five injuries, some of which were on a vital part of the body is something which it is hard to understand. It Is difficult to see what Balu veer had done to invite the assault upon him. He was entrusted with the work of the grafting of mango-trees and he was only a temporary servant. Between the attacks on these six persons and the attack on Bhagya Manjrekar the' number of injuries totals ,73. This is a crime which words cannot describeadequately. At the same time, the approach to the consideration of the evidence in the case should be dispassionate, and free from prejudice. It would not be right to inflict death penalties upon a number of persons merely because six persons have been killed. It, certainly, is not a case of mathematical equation. Nobody, would suggest that for one murder there ought to be a penalty of a sentence of death passed on one person. It must depend upon the facts of each case and if, in this case, evidence was forthcoming to show who were the persons who actually assaulted the six persons, it would have been possible to consider the case upon a different footing. As the record stands, there is nothing to distinguish between the cases of accused Nos. 1 and 2 and the cases of ac-used Nos. 10 and 11, save that accused No. 11 was armed! with a weapon and he has admitted that he had assaulted Bhagya Manjrekar, whose evidence was that accused No. 10 also assaulted him. There is, however, a good deal of authority to show that in proper cases the Court should discriminate and that is probably for the reason that although a sentence may be logical, it may not be proper. The discrimination is based upon the ground of the assailants having taken a major part or a minor part and in that process of reasoning, a sense of propriety is involved.
16. The learned Government Pleader has urged, not without justification, that looking to the number of murders and looking, further, to the circumstances in which the murders are committed, the extreme penalty should be imposed in-this case. I do not say that the submission is not correct. But if one were to accept this submission, one will have to disregard a whole series of cases in which the principle of discrimination has been recognised. On the other hand, Mr. Samarth appearing for the accused says that in this case justice should be tempered with mercy. He says that we should take into consideration the circumstances prevailing at the time of the com-mission of the offence. He also says that we should take into consideration the plight and the predicament of the people residing in the Maharwada. In substance, his contention is that the Mahars or Harijans were suffering from social disabilities and We should keep this circumstance in mind. As a pure argument, I must reject it. Persons suffering from social disabilities and living in difficult conditions should not commit the sort of crime, which has been committed in this case. It is true that the survey measurement was unfavourable to the Mahars or Harijans. It is true that some of them thought that the introduction of a Gram Panchayat was not beneficial to them. But, surely, that is hardly a reason for forming a criminal conspiracy and to carry out the object of the conspiracy in the manner as shown in this case. At the same time, we shall have to consider the question dispassionately and we must come to a just decision in this case. As we have come to the conclusion that accused Nos. 1, 2, 9, 10, 11 and 12 were all members of the criminal conspiracy to commit the murders of Datiatraya Joshi and the members of his family and the object of the conspiracy has been carried out, we must not overlook the fact that the evidence as to the actual crime i.e. who assaulted whom is wanting in this case and if that evidence is lacking, we must go by the record as it is and we would not be justified in reconstructing the record. That the Court must discriminate in such a case is established by a series of authorities. The earliest case is Queen Empress v. Basvanla. ILR 25 Bom 168 . That case was decided as long ago as 1900. .It was a case of murder and the trial Court had, it appears, awardeddeath sentences to five persons and in reference to this topic. Mr. Justice Pulton observed as follows:
'The murder was cruel and deliberate. All who took part in it might justly be condemned to die. But as usual in cases where many prisoners are Involved, we hesitate to confirm of many sentences and try to discriminate.'
In the result, this Court dismissed the appeals of accused Nos. 3 and 4 and confirmed the sentences of death passed upon them and in the case of three other prisoners that sentence was reduced to one of transportation for life. The learned Government Pleader relies upon a decision reported in Rishideo v. State of Uttar Pradesh : 1955CriLJ873 . That was a case under S. 302 read with S. 34 and at page 333, it is observed:
'Sri Umrigar somewhat fervently appealed be-fore us to consider the propriety of inflicting the extreme penalty of law on the appellant. It is true that the appellant did not inflict any blow on the deceased but he shared the common intention to kill him and actually participated in the criminal act by being present on the spot armed with his 'lathi'. In the 'eye of the law, therefore, he is as much guilty of the whole criminal act as was his brother Ram Lochan who actually dealt the fatal blow on the sleeping man'.
In the result, the sentence of death was maintained upon the appellant. This certainly supports the contention of the teamed Government Pleader, but there is an earlier decision of the Supreme Court reported in Dalip Singh v. The State of Punjab : 1SCR145 and at page' 539 (of SCJ): (at p. 3G8 of AIR) this is what their Lordships say:
'None of these elements is present here. This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the net of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been If the facts had been more fully known and it had been' possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases.'
This is a dicta of the Supreme Court and we are bound by it. It may be that we would seem to be in an embarrassing position. But we believe that if we are to come to a just decision in this case, we would be right in following the principle laid down in this case. This is not to suggest that we do not want to follow the case repotted in : 1955CriLJ873 (II), but we think we should apply the principle laid down in Dalip Singh's case (I) to the facts of this case. It is obvious that we are as much bound by the first case as by the second. The learned Government Pleader contends that this is a case of criminal conspiracy and there is no scope for making a discrimination in awarding sentences. Perhaps, the learned Government Pleader is right, but we have a case decided by this Court in Emperor v. Shafi Ahmed Natai Ahmed on 23rd May 1025 (B) which is otherwise known as 'Bawla Murder Case' in which there was a charge of criminal conspiracy and Mr. Justice Crump in awarding sentences upon the several accused persons considered the principle of discrimination as being a sound principle, With respect, we wouldfollow this principle. That even in a case of criminal conspiracy a discrimination should be made is also suggested by a decision of the Calcutta High Court in : AIR1936Cal73 CO and if the true principle is that a Court should discriminate when circumstances justify such a discrimination, we fail to see how in the case of a criminal conspiracy, a different principle Should apply from the principle in any other case. If the principle of discrimination is right, it is, and it should be, right in all cases. We, therefore, think that in this case we should discriminate and that takes me to the consideration of the confirmation case.
17. The learned Sessions Judge has given the sentence of death each to accused No. 10 and accused No. 11. The reasons in support of this view are stated in paragraph 155 of his judgment. This is what he says:
'In the present case there are six murders including that of a child of six months and it cannot be gainsaid that the crime is cruel and calculated, repugnant and repulsive, scandalous and scurrilous. It is in evidence that accused Nos. 10 and 11 purchased knives at Bombay sometime before the offence and along with some other offenders they came like friends right from Bombay to Chafe With the deliberate intention of murdering Dattatrava Joshi and his family members,' that in furtherance of that common intention the present outrageously truculent crime was perpetrated and that accused Nos. 10 and 11 participated in the present crime and actually stabbed Bhagya Manjrekar, In such circumstances the ends Of justice peremptorily demand that accused Nos. 10 and 11 should be sentenced to death'.
Even if this is a fair estimate of the evidence against accused Nos. 10 and 11 , it is, we think, less than just to them. On their confessional statements, there can be no doubt that they were present. On the confessional statement of acused No. 11 there can be no doubt that he was armed with a weapon. But need we go further and say, as was suggested by accused No. 11 in his confessional statement, that accused Nos. 9, 12 and Bha. gya committed the murders. For this, there is no independent evidence. The case of accused Nos. 10 and 11 would, therefore, appear to be no better than upon the basis of vicarious liability and the case could not, therefore, be distinguishable from the ease of accused Nos. 1 and 2, with this difference that accused Nos. 1 and 2 were not armed, but were present and accused Nos. 10 and 11 were pre-sent and are shown to have assaulted Bhagya Manjrekar and the learned Government Pleader was right, we think, when he suggested that if accused Nos. 10 and 11 could be sentenced to death, there is no reason why accused Nos. 1 and 2 should not, be sentenced to death. But we think that if the true principle is a principle of discrimination, then we should discriminate and we would not be justified in holding, in the absence of evidence, that accused Nos. 10 and 31 also took part in the assaults made upon Dattatraya, his mother Radhabai his wife Sulochanabai, his daughter Shalini, his son Cliandrakant and his servant Balu Veer. Looking to the number of murders and to the number of injuries, it is probable that they may have taken part and done something more. The question of sentence in a case of murder has almost always presented to Courts a certain amount of difficulty and while Judges ought to administer the law as they find it and not as they wish it to be, one must not hesitate to impose the extreme penalty of law. But if circumstances arise where the principle of discrimination should apply, I think the Courts ought not to hesitate also to apply theprinciple merely because the murders are deliberate, cruel and cold-blooded. We think, therefore, that the principle of discrimination should apply to this case and we would also apply it to the case of, accused Nos. 10 and 11. This means that we must set aside the sentence of death passed upon accused Nos. 10 and 11 and impose upon each Of them the sentence of imprisonment for life. As regard accused Nos. 9 and 12, as we are holding that they were members of the criminal conspiracy and as we are also holding that they were members of the unlawful assembly, the common object of which was to commit the murders, we must, consistently with the above view, impose upon each of them also a sentence of imprisonment for life.
18. Order accordingly.