I.D. Dua, J.
1. The following 19 accused persons were tried jointly in the court of the Sessions Judge, Sholapur on 16 charges:
1. Ranga Bapu Dhere age 46, occupation labourer, residing at Ropale, Taluka Madha.
2. Shankar Kalyan Kale, age 27-28, Occupation agriculture, residing at Ropale, Taluka Madha.
3. Govardhan Rangnath Surve, age 27, occupation agriculture, residing at Bevi, Taluka Madha.
4. Mohan Kalyan Kale, age 19, occupation agriculture, residing at Ropale, Taluka Madha.
5. Keshinath Ranga Kale, age 20, occupation agriculture, residing at Ropale, Taluka Madha.
6. Kalyan' Baji Kale, age 55, occupation agriculture, residing at Ropale, Taluka Madha.
7. Baburao Bajirao Patil, age 46, occupation agriculture, residing at Angar, taluka Mohol.
8. Bhagwant alias Rajabhau Manohar Nimbalkar, age, 28, occupation Agriculture, residing at Angar, Taluka Mohol.
9. Allauddin Ismail Shaikh, age 28, occupation agriculture, residing at Angar, Taluka Mohol.
10. Papa Abdul Mujawar, age 22, occupation Taxi driver residing at Sholapur.
11. Shankar Pandurang Patil, age 28, Probationary Police Sub-Inspector, Akalkot.
12. Achyut Madhav Shinde, age 36 Railway Police Sub-Inspector, Palghar.
13. Shankar Harischandra Thorat, age 47, Deputy Superintendent of Police, Mahad, residing at Sholapur.
14. Ajit Shankar Thorat, age 18, College Student, residing at Sholapur.
15. Makbul Bulabbhai Bagwan, age 43, Criminal Investigation Department Inspector, Poona.
16. Karim Sultan Bagwan, age 63, occupation agriculture and Motor Business residing at Karad, District Satara.
17. Krishna Shripad Josh, age 35, Police Sub-Inspector, Tembhurai, Taluka Madha.
18. Ambadas Sadashiy Mote, age 48, Police Jamadar, Jail Road Police Station, Sholapur.
19. Kashinath Nivritti Bhise, age 45, occupation agriculture, residing at Kurduwadi, Taluka Madha.
Accused Nos. 1 to 5 were charged with house breaking by night at Modlimb on the night between 3rd and 4th December, 1961 punishable under Sections 447/34, I.P.C. They were further charged with theft of cash ornaments, clothes etc.. worth Rs. 1,99,495/- at the same time and place punishable under Sections 380 - 34, I.P.C. Accused no, 6 was charged with abetment of these two offences punishable under Sections 109, 457 and 380 I P.C. Accused Nos. 1 to 8, 11 to 13, 17 and 18 were charged with conspiracy to dishonestly receive and retain stolen property knowing or having reason to believe the same to be stolen and to assist each' other in concealing, disposing of distributing and making away with stolen property between 4th and 7th December, 1961 at Modlimb and Angar punishable under Section 120B and Section 109, read with Sections 411 and 414, I.P.C. Accused Nos. 9, 10 and 15' were charged with joining the above conspiracy and agreeing and engaging with each other as also with accused Nos. 1 to 8, 11 to 13, 17 and 18 to dishonestly received and retain stolen property and to assist each other in concealing, disposing of distributing and making away with the stolen property at Telangwadi and Angar on or about 7th December, 1961 punishable under Sections 120B and 109 I.P.C. Accused Nos. 1 to 13, 16, 17 and 18 were further charged with dishonestly receiving stolen property and assisting each other in concealing, disposing of, distributing and making away with stolen property in pursuance of common intention of abetment and conspiracy at Angar, Modlimb and Mohol in December, 1961 punishable under Sections 411 and 414 read with Section 34 I.P.C. Accused Nos. 1 to 3 were also charged with receiving stolen property comprising Rs. 20,000- currency notes knowing or having reason to believe the same to be stolen on the night between 7th and 8th December, 1961 at Angar. Accused Nos. 7 and 8 were also charged with receiving Rs. 20,000 - in currency noties on the night between 7th and 8th December, 1961 in furtherance of their common intention and of accused Nos. 1 to 6, 9 to 13, 15, 17 and 18 and in pursuance of the aforesaid abetment and conspiracy. Accused No. 8 was also alleged to have received two gold bangles and some currency notes knowing or having reason to believe the same to be stolen property and accused No. 7 was alleged to have assisted him in disposing of a part of the stolen property by converting it into sold. They were both charged under Sections 411, 34, I.P.C. and accused No. 7 was further charged under Section 414, I.P.C. Accused No. 10 was also separately charged under Sections 411, 34, I.P.C. with having dishonestly Rs. 1.000/- in December, 1961, at Angar knowing or having reason to believe the same to be stolen property in furtherance of the common intention shared by him and accused Nos. 1 to 9, 11 to 13, 15, 17 and 18 and in pursuance of the above-mentioned, abetment and conspiracy. Accused No. 11 was also separately charged under Sections 411/34, IPC, with having dishonestly received stolen property, comprising Rs. 20,000/- knowing or having reason to believe the same to be stolen, on or about the night between 7th and 8th December, 1961 at Angar in furtherance of the common intention shared by him and accused Nos. 1 to 10, 12, 13, 15, 17 and 18 and in pursuance of the above mentioned abetment and conspiracy. Accused No. 12 was also separately charged under Sections 411/34, I.P.C. with having dishonestly received stolen property comprising Rs. 10,000/- knowing or having reason to believe the same to be stolen in December, 1961 at Mohol in furtherance of common intention hared by him with accused Nos. 1, to 11, 13, 15, 17 and 18 in pursuance of the above mentioned abetment and conspiracy. Accused No. 13 was also separately charged under Sections 411/34, IPC, with having dishonestly received stolen property on or about 8th December, 1961 at Mohol in furtherance of the common intention shared by him with accused Nos. 1 to 12, 15, 17 and 18 and in pursuance of the aforementioned abetment and conspiracy. Accused No. 15 was also separately charged under Sections 411/34, I.P.C. with having dishonestly received in December, 1961 at Angar of Mohol stolen property comprising Rs. 10,000- knowing or having reason to believe the same to be stolen in furtherance of the common intention shared by him with accused Nos. 1 to 13, 17 and 18 and in pursuance of the aforesaid abotment and conspiracy. Accused No. 10 was also separately charged under Sections 411/414/34, I.P.C. with having dishoneatly received in or about May, 1962 at Karad stolen property comprising Rs. 10,000/- from accused No. 15 knowing or having reason to believe the same to be stolen in furtherance of the common intention shared by them both and also with having assisted in the disposal of a party of the said stolen property by converting it into gold and sold ornament. Accused No. 17 and 18 were separately charged under Sections 411/34/34 I.P.C. with having dishonestly received in December, 1961 at Mohol or Tembhurni stolen property comprising Rs. 10,000/- knowing or having reason to believe the same to be stolen in furtherance of the common intention shared by them with a accused No. 1 to 13, and 15 in pursuance of the aforementioned abetment and conspiary. Lastly accused No. 19 was separately charged under Sections 411/34, I. P. C. with having pishonestly received in or about April, 1962 at Khurdwadi stolen property comprising Section 10,000/- knowing or having reason to believe the same to be stolen.
2. The learned Session Judge grying the case acquitted accused Nos. 4, 5, 9, 14 & 16 to 19 to all the charges. Accused Nos. 1 to 3 were convicted under Sections 380 and 457, I.P.C. read with Section 34 and each one sentenced to suffer rigorous imprisonment for five year under each count. Accused Nos. 1 to 3, 6 to 8, 10 to 13 and 15 each convicted under Section 120B, I.P.C. and sentence upto six months' rigorous imprisonment. Accused Nos. 6, 7, 10, 12, 13 and 15 were each convicted under Section 414, read with Section 120B, I.P.C. and sentenced to three years' rigorous imprisonment & a fine of Rs. 2,000/- each in default to further rigorous imprisonment for three months. Accused Nos. 8 to 11 were each convicted under Sections 411, 120B, I.P.C. and sentenced to three years' rigorous imprisonment and a fine of Rs. 2,000/- each, in default to further rigorous imprisonment for three months. The substantive sentences were to run concurrently.
3. All the convicted accused appealed to the High Court against their conviction. The State also appealed against the accquittal of accused Nos. 4 and 5, Notices for enhancement of sentences imposed on accused Nos. 7, 11, 12, 13 and 15 were also issued by the High Court. That Court, after considering at length all the aspects pressed before it, accquittal accused Nos. 12 and 15. In regard to accused Nos. 7, 11, and 13 the prayer for enhancement related to the amount of fine only because the sentences of imprisonment already imposed was the maximum prescribed. The High Court did not consider it proper to enhance the amount of fine in the case of accused No. 11 because a sum of Rs. 19,500/- had already been recovered at his instance and he was supposed to have received as his share of the stolen property only a sum of Rs. 17,000/-. As against accused Nos. 7 and 13, however, the High Court felt that there were sufficient grounds for raising the amount to fine. The fine in their case was accordingly enhanced from Rs. 2 000/- to Rs. 10,000/- each. In case of default they were ordered to undergo rigorous imprisonment for 9 months each. In the case of accused No. 10 who was only a taxi driver, while upholding his conviction his sentence to rigorous imprisonment for one year and a fine of Rs. 1,000/-. In default of payment of fine he was to undergo further rigorous imprisonment for three months. The appeals of accused Nos. 1 to 3, 6, 7, 8, 10, 11 and 13 were dismissed. The conviction and sentences of accused Nos. 1 to 3, 6, 8 and 11 were confirmed but the sentence of accused No. 7 and 13 were enhanced by increasing the amount of fine from Rs. 2,000/- to Rs. 10,000/- each. In default they were ordered to undergo further rigorous imprisonment for a 9 months each.
4. We have now before us four appeals by special leave from the judgment of the Bombay High Court. Criminal Appeal No. 29 of 1967 is by the State and is directed against the order of acquittal in favour of accused Nos. 12 and 15. The other three appeals are by Baburao Bajirao Patil (accused No. 7, Crl. A. 201/60) Shankar Harischandra Therat (accused No. 13, Crl. 211/68) and Shankar Pandurang Patil (accused No. 11, Crl. A. 28/67).
5. The prosecution story may now be briefly stated. On the night between 3rd and 4th December, 1961 there was house breaking and theft in the house of Kantilal Hiralal Shah, a businessman of Modlimb. A report was lodged with the police and the investigation began on the afternoon of 4th December. Soma of the property discarded by the alleged thieves was recovered on 4th December and its value was estimated to be about Rs. 10,290/-. Along with this property the police also found a brown canvas shoe lying in the field. Accused No. 11 and 12 arrived at Modlimb round about noon on 4th December and accused No. 13 under a direction of the District Superintendent of police, Sholapur arrived there on 6th December for supervising the investigation. The D.S.P. Sholapur himself visted Modlimb on the 5th and had a discussion with the Dy. S.P. (accused No. 13) and with Nimonkar, another Dy. S.P. and the line of investigation was chacked out, During the Course of investigation accused No. 11 (P. S. I Patil) was advised by accused No. 12 (P.S.I. Shinde) to take the assistance of accused No. 8 (Rajbhau Nimbalkar). The houses of accused No. 3 (Govardhan), accused No. 6 (Kalyah) and accused No. 2 (Shankar) were searched on suspicion and accused No. 1 (Rangya) was apprehended. When Goverdhan, accused No. 3 was being interrogated in the Modlimb police outpost accused Nos. 1 and 6 who were sitting on the steps of the adjacent temple heard accused No. 3 mention the names of accused Nos. 1 and 2. On hearing this they both ran away to their village Repale and contacted No. 2. All three then decided to contact Baburao at Angar for help and protection. On the morning of December 7, 1961 accused Nos. 1, 2 and 6 met Baburao patil (accused No. 7) and requested him to take the property and the accused in his charge and help and protect them, Baburao patil agreed to do so by securing the assistance of the investigating officers. As a first step he sent his sister's son Rajbhau (accused No. 8) to Modlimb to contact the investigating officers there. Dy. S.P. Thorat (accused No. 13) was found agreeable to enter into this conspiracy and so was P.S.I. Patil, accused No. 11 Buburao then went to Mohol and from there sent for the taxi of accused No. 10 from Sholapur. That taxi arrived at Mohel at about 2.30 p.m, Baburao taking Vishwash Patil with him went to Telangwadi, to the sugar cane field of Dattatraya Thorat. It was here that Rajbhau was expected to meet Baburao after ascertaining the attitude of the police officers at Modlimb. In a short time the police van carrying P.S.I. Patil and Rajphau Nimbalkar arrived there and stopped near the taxi of accused No. 10. Patil and Rajbhau went and joined Baburao in Dattatraya's filed. All three then returned to the police van, Just then Inspector Bagwan accused No. 15, arrived there in a police van He wan on his way from Sholapur to Modlimb to help the investigation under the directions from his superior officers. At that place Baburao bad a talk with Bagwan for a short while the suggestion being that Bhagwan also became agreeable to join the conspiracy. Bagwan then went to Modlimb whereas Babnrao and P.S I. Patil went in the tax to Mohol the rest also going to Mohol in the police van. At Mohol, after a talk with Patil at his house Baburao, Rajbhau and Patil returned to Angar in the taxi of accused No. 10 reaching there at about 7.80 p.m. On reaching the house of Baburao at Angar accused Nos. 1 and 2 who were hiding themselves in the jowar field were called and both Baburao and Patil assured them that the needful had been done and there was nothing to worry about. All four then went in the taxi to the place where the thieves had buried the stolen property and brought the same to Baburao's house. It was then decided that some property should be returned to the complainant showing it to have been recovered at the instance of accused, a sum of Rs. 20,000/- should be given to the thieves and the rest be distributed among the conspirators including the police officers. The share of Bdburao, including that of Rajbhn and Rs. 20,000 to be given to the theyes was retained by Baburao and the rest was taken by P.S.I. Patil which included the amount to be distributed to the police officers and the amount to be shown as recovered for being returned to the complainant. The property to be returned to the complainant consisted of some current notes, cash coints and some ornaments. This was put into three different boxes and the remaining property was taken by Patil in a separate bag. Thereafter Patil Rajbhau and accused Nos. 1 and 2 set out in the taxi from Angar on their way to Mohol. At Mohol they went to Patil's house where they stopped and Patil went in for a short while Thereafter the part went to Modlimb, reaching there at about 10 in the monring. They first stopped at the petrol pump at Modlimb where they took petrol and then went to the gram panchayat office where Dy. S.P. Thorat was supposed to be camping The taxi was stopped at some distance from that office and Rajbhau and accused Nos. 1 and 2 got down. P.S.I. Patil alone proceeded to the office in the taxi and there he met Dy. S. P. Thorat, He reported to Dy. S. P. as to what had happened till then and prestmably either enquired as to what was to be done with his share of the booty or handed over that share to him. Patil and Rajbhau then proceeded in the taxi to the place where the stolen property had originally been hidden by the thieves. There they buried the property which was to be shown recovered at this instance of the thieves the next day. After completing these operations Rajbhau, P.S.I. Patil and the two accused Nos. 1 and 2 returned to Mohal at 4 a.m. on December 8, 1061. P.S.I. Patil entrusted the two accused to the constable guard at the Sub-Jail at Mohol telling him to keep a watch on the accused persons and to see that they were not put to any trouble. Patil than went to his house and returned to the Sub-Jail at 7 O'clock when he made arrangements for giving refreshments to the two accused persons. Patil also asked his orderly Bhagwan Kulkarni to go to the Sub-Jail and keep a watch on the accused persons. At about 8 O'clock Patil again went to the Sub-Jail and told his orderly that he was going to Sholapur from where he would return by 10 O'clock and that Rajbhau Nimbalkar on his arrival should wait for Patil's return. Before going to Sholapur Patil also instructed the driver of the police van provided for the investigation to be ready for going to Modlimb at about 11 Patil then went to Sholapur and from there brought with him to Mohal accused No. 14, the son of Dy. S P. Thorat, accused No. 13, presumably with the object of arranging for taking to Sholapur the share of the booty belonging to accused No. 13. After returning from Sholapur Patil went to Modlimb. On his way he took up Rajbhau who was waiting at the Mohol Police Station under instructions from Patil's orderly. The police van carrying Patil, Rajbhau Kulkarni and the two accused on the way diverted towards Angar and stopped there for a short while. It reached Modlimb at about noon or a little there after. Instead of proceeding straight to the police outpost the van was taken to the gram panchayat office. At a short distance from that office the two accused and Patil and Rajbhau had some talk in a lane. Kulkarni was then directed by Patil to bring accused Nos. 3 and 4 from Modlimb outpost. On their arrival accused No. 3 was asked to sit with accused No. 1 and 2 and he was apprised of the developments. The three accused were then produced for interrogation. In the meantime on the morning of December 8, Dy. S.P. Thorat had attempted to contact the D.S.P. on telephone in order to tell him to come to Modlimb as stolen property had been traced and was to be recovered The D.S.P. having already left for Modlimb could not be contacted on telephone. The D.S P. arrived at Modlimb a title after the arrival of accused Nos. 1 and 2. Their interrogation was in the circumstances carried on by the DSP himself as he was informed that they had not been interrogated by the D.S.P. earlier. During this investigation the threw accused admitted that they had kept concealed the stolen property and that they were willing to produce the same. Bagwan, accused No. 15, was also present during this interrogation and he displayed his anxiety for expeditions interrogation. After interrogation arrangements were made for the discovery of the property. The accused were formally arrested and a Punchayat was called to witness what the accused said and did. The three accused then admitted having concealed the stolen property and that property was got discovered in the presence of D.S.P. Sahani, Dy. S.P. Thorat, P. S. I, Inspector Bagwan, Rajbhau, P. S. I. Joshi and some other police officers. The three accused are stated to have gone to the spot from where they produced the property buried under a heap of stones. The property produced included cash and ornaments only to the extent of about Rs. 64,000/-. The complainant expressed his dissatisfaction saying that only a part of the property was being recovered and a major portion was still untraced. After discovering this property the same was attached under a Panchayatnama and the police party returned to Modlimb, D. S. P. Sahani going back to Sholapur after urging the investigating officers to make all efforts to trace the remaining property. From this stage the attitude of the investigating police officers showed a remarkable change and they became indifferent and lukewarm in the matter of further investigation. Their conduct indicated that the three accused were the only persons involved in the case and the property so far recovered was the only property stolen. This lack of enthusiasm on the part of the police and slackness shown by them in attempting to trace the remaining property made the complaint and his relatives apprehensive about the further progress of the investigation. According to them Rajbhau was meddling with the course of the investigation. On December 10, 1961 the complainant's son-in-law Subhash Walchand and his father Walchand who were resident s of Sholapur saw the D. S. P. and conveyed to him their apprehensions and ventilated their grievances. The D. S. P. referred them to the Dy. S.P. Thorat who was in charge of the supervision of the crime. The investigating officers who were probably also watching the movements of the complainant and his relatives came to know about this complaint. They there upon approached the complainant and tried to persuade him to withdraw his complaint against Rajbhau. While P.S. 1 Patil and Shinde were at the complainant's house they received a message from Dy. S. P. Thorat calling them to the gram panchayat office with the result that their meeting with the complainant was interrupted and they immediately went to the gram panchayat office to see Dy. S. P. Thorat. The complainant's son-in-law was then sent for by Dy. S. P. Thorat and when he arrived at the latter's place accused Nos. 4 and 6 were still with the police for the purpose of interrogation and according to the prosecution case they were interrogated in his presence. During this interrogation these two accused are said to have expressed their willingness to produce some more property alleged to have been hidden by them.
They were also then put under arrest and along with Subhash Walchand and the panchas they were taken to the place from where they said they would recover stolen property. Nothing was, however, found at that place and the two accused started blaming each other for having removed the stolen property from the place where it had been concealed. This, according to the prosecution version, was a farce stage-managed by Dy. S.P. Thorat and their co conspirators for the purpose of satisfying Subhas Walchand and the complainant that the investigating agency was doing its best. On December 12, 1961 although a substantial portion of the stolen properly still remained untraced Dy. S P. Thorat broke up the Modlimb camp and returned to Sholapur. There he told the D. S. P. that the rest of the property remaining untraced was probably with Kalyan, accused No. 6 who was absconding and unless he was traced no further progress in the investigation was likely. Kalyan accused No. 6 was, according to the Dy. S. P. being sheltered by Baburao. accused No. 7, although no definite and reliable information was available on that point. The D.S.P. asked Dy. S. P. Thorat to continue supervision of the investigation but according to the prosecution version Dy. S. P. Thorat did not make any serious attempt at further investigation and indeed was cold towards the suggestion. The complainant who was feeling very much worried at the want of zeal and efficiency on the part of the investigating agency again sent his son-in-law Subhash Walchand to the D.S.P. Subhash's father Wilchand was also there and they both expressed their suspicion about the honesty of the investigating agency itself. They also referred to the information received by them and within two or three days after the commission of the theft there was a meeting between Baburao, Rajbhau. P.S.I. Patil and Shinde in the sugarcane field of Dattatrcya Thorat at Telangwadi. The D.S.P. wanted the complaint he put it in writing. This was done. On receipt of this complaint the D.S.P. asked the Dy. S. P. Nimonkar, Sub-Divisional Officer for Pandharpur Division to take up the investigation in the matter. It was this Dy. S. P. who should have been put in charge of the investigation of this case from the very beginning because the crime had been committed in his division. It, however, appears that at the material time this officer was busy with another investigation and it is for this reason that Dy. S P. Thorat, Sub-Divisional Officer for Sholapur Division was asked to investigate the crime. By December 11, 1961 Nimonkar was free from his proseccupation and he went to Modlimb to enquire about the progress of the present case. Under directions from the D S P. Dy. S.P. Nimonkar went to Modlimb on December 19 and enquired into the complaint made by Subhash Walchand and his father. According to his report there was no justification for or truth in the complaints made by Subhash and his father. Inspector Bagwan also repotted that the only remaining part of the investigation was the tracing of Kalyan which could be done by the local police with the result that he was also recalled to Sholapur to see the D.S.P. for obtaining his permission to return to Poona. The D.S.P. felt some what surprised at the recall orders of Bagwan and after contacting the Poona authorities he obtained permission for Bagwan to continue the investigation. Bigwan accordingly went to Modlimb to continue his participation in the investigation. On December 23, 1961 the investigation officer of Tembhurni police station (P S I Joshi accused) filed a charges sheet against accused Nos. 1 to 5, and showed accused No. 6 as absconding. DSP had suggested through Nimonkar that further police custody of the five accused persons should be obtained for the purpose of facilitating further investigation. But the investigating police officers and Inspector Bhagwan explained that further custody was not possible. By this time P. S. I Desai of the I. C. B. at Sholapur bad finished with his previous assignment and was asked by D.S.P. Sahani to take up investigation of the present crime. On December 23, 1961 Desai took up this investigation from the previous investigating P.S I. (Joshi) accused No. 17 P.S.I Desai during his investigation came across an informant who disclosed some relevant information about the previous investigation. That informant was produced berore the DSP on January 1, 1962. After this interview the DSP with the permission of the Magistrate went to interrogate accused No. 1 who was in the judicial lock-up. About the same time P.S.I. Hirmath in charge of the Jail Road Police Station at Sholopur received information that Ranga Babu Dhere, accused No. 1 was also involved in the Jail Road crime No. 102 of 1961 which he was investigating. This information was conveyed to P.S.I. Desai who passed it on to the D.S.P. On January 2, 1962 an order of remand to police custody in respect of accused No. 1 was obtained from the Judicial Magistrate, Madha till January 15, 1962 for investigating the Jail Road crime. During this period accused No. 1 expressed his willingness to confess. This accused was accordingly forwarded to the Judicial Magistrate, who remanded him to magisterial custody allowing him time for reflection. On June 20, however, this accused refused to confess. In the meantime on June 13, 1962 Kalyan, accused No. 6, was arrested and in the course of his interrogation it was discovered that accused Nos. 2 to 5 had also some concern with Jail Road crime Nos. 102/61. The police custody of these accused persons was accordingly obtained. During this period accused Nos. 2, 3 and 6 expressed their willingness to confess. On June 17, 1962 accused No. 2 having expressed his willingness to confess he was sent to the A.D.M. Sholapur on June 18, for recording his confession which was recorded on the following day. Accused No. 3 expressed his willingness to confess on June 21, and his confession was recorded on June 23. Kalyan, accused No. 6, expressed his desire to confess on June 24, and his confession was recorded on June 25. But these three confessions were later retracted. The complainant's brother Subhas Hiralal being dissatisfied with progress of investigation had in the meantime on January 3, 1962, sent an application to the Chief Minister drawing his attention to his grievance, in connection with this investigation. On January 20, 1962 the D I. G. C. I. D. advised the D. S. P. to associate the Dy. S. P. D.S.P. Hes main with the investigation. The D. S. P. and Hasmain accordingly met and discussed the course to be adopted in the investigation and on January 25, Hasmain started guiding the investigating officers. During this period as a result of some disclosures accused Nos. 7 and 8 were arrested on March 13, accused No. 10 on March 31, accused No. 11 on April 2 and accused Nos. 13, 15, 17 and 18 on July 5. Accused No. 7 (P.S.I. Patil) is alleged to have volunteered to produce the stolen property concealed in a field belonging to his uncle at a place called Mangeshi Wadi. Accused No. 12 (P.S.I. Shinde) himself appeared before the Judicial Magistrate, Madha on July 4, 1982 and he was formally arrested in connection with this case on July 19. Accused No. 9 was arrested on July 25, and accused No. 19 on July 26. This in brief is the broad out line of the prosecution story. We are, however, Only concerned with the guilt of the appellants who have appealed in this Court and of the respondents against who appeal against acquittal has been presented.
6. Dealing first with the appeal against acquittal of accused Nos. 12 and 15 we may turn to the conclusions of the High Court in regard to them. In so far as the offence of house-breaking and theft in the complainant's house on the night between 3rd and 4th December, 1981, is concerned the High Court found ample evidence in its support and indeed this fact was not disputed in either of the courts below. Before us also it was not seriously disputed. According to the complainant, the stolen property was of the value of about Rs. 2,00,000/-. Cash alone consisted of the about Rs. 1,75,000/-. Ornaments and clothes etc, which were stolen were valued at about Rs. 25,000/-. There is no reason to doubt the valuation as given by the complainant & indeed that is not questioned on behalf of the appellants.
7. As regards accused No. 12 Shinde (a senior P.S.I.) the High Court, after a fairly exhaustive and detailed discussion of the evidence and the circumstances, relied upon by the trial court arrived at the conclusion that the material on the record was not sufficient to lead to the inference that this accused was a member of the conspiracy. His frequent visits to Baburao at Angar who was an influential and important residents of that place and his association with co-accused police were not considered by themselves to be incriminating circumstances and in view of the fact that this accused was not available for participation for most of the time during which the conspiracy was substantially carried out the High Court acquitted him. Similarly with regard to the case against accused No. 15 Bagwan, a C.I.D. Inspector, who was directed by the D. I. G., G. I. D. to help the investigation, the High Court, after carefully considering all the circumstances relied upon by the prosecution against the accused, did not find any of them singly or collectively sufficiently cogent to establish his guilt beyond reasonable doubt. On going through the record and after considering the evidence to which our attention was drawn we arc unable to hold that the order of the High Court acquitting them calls for reversal by this Court under Article 136 of the Constitution. The view taken by the High Court is not only a possible view to take but seems to us to be also more reasonable than that of the trial court. The concert and connection between these two accused persons and the others charged with conspiracy which may reasonably give rise to the assumption of guilt suggested by the State must be founded on the identity of interest created for effectuating the object of the alleged conspiracy. There is no evidence to this effect. These two accused persons who were connected with the investigation had to associate with their colleagues who were also investigating this offence and this association alone cannot be considered to be by itself to be incriminating. Our attention has not been drawn to any other evidence which would make out any reasonable ground for holding them to be members of the conspiracy. We are, therefore, unable to find any cogent ground for interference with the judgment of the High Court acquitting these two respondents.
8. This takes us to the case of the appellant, Dy. S. P. Thorat accused No. 13. According to the prosecution, under directions from D. S. P. Sahani, this accused was to take charge of the supervision of the case and for this purpose he went to Modlimb on the morning of December 6, 1961. He set up his camp in the gram panchayat office there Rai bhau Nimbalkar, accused No. 8 was required by liaburao accused No. 7, to contact the police officers at Modlimb for ascertaining their attitude towards the plan conceived by accused No. 7. Rajbhau is alleged to have met accused No. 13 at the gram panchayat office on the morning of 7th December & found him as also the other police officers at Modlimb agreeable to be parties & to work out the above plan. We have to see if there is material on the record to support the conclusion for accepting this part of the prosecution case. This meeting is sought to be supported inter alia by the evidence of police head constable Sartape, P. W. 10 and police constable Bhagwan Kulkarni, P.W. 22. According to these two witnesses Rajbhau and P.S.I. Patil met Dy. S.P. Thorat in gram panchayat office at about 11.30 a. m. on the 7th on their return from Bavi where they along with some others had gone in the morning at about 9.30 a.m. P.W. 19 had met Rajbhau for the first time on the 7th. According to P.W. 22 Rajbhau had met this witness in front of gram panchayat office on the morning of December 7, 1961 at about 8.20 or 9 a.m. when Rajbhau enquired from him about the progress of the investigation. The witness replied that Goverdhan accused was disclosing some facts. There after Rajbhau went to the gram panchayat office to see accused No. 13. About 15/20 minutes there after P. S. I. Patil came out of the gram panchayat office saying that there was an order to go to Bavi. P.W.22 and Patil, along with P. W. 19, left; Modlimb at about 10 a. m. and returned a labout 11.30 a. m. At one stage in cross-examination P. W. 10 stated that it was on 6th December that under the instructions of accused No. 13 he along with Patil had gone to Bavi and added that he did not know in the morning of the 6th if any suspects had come to Modlimb police outpost. Earlier in his examination in chief he had stated that on the 6th he had in remained at Modlimb for the whole day and he, constable Bagwan and P.S.I Patil had interrogated Govardhan in the Modlimb outpost at about 4/5 pm. on that day adding that they had also secured some information from Govardhan regarding the offence, in the cross examination, however, he had to admit that he could not depend on his memory for giving the correct time of the various events deposed by him. He was once reduced from the post of H. C. to that of constable on the ground that be used to pelt stones at public meetings. In his cross-examination he also falsely denied having asked for retiring from service for contesting assembly election on Congress ticket. When he was confronted with his application Ex. 124 he was constrained to admit it. His statement is unimpressive and does not inspire acceptance. In any case evidence of these two witnesses in regard to the meeting does not provide any basis for upholding the prosecution suggestion of a conspiracy as alleged: these meetings could legitimately be, and professedly were connected with the investigation which had assumed great importance. According to the High Court the circumstances strongly relied upon against this accused were P.S.I. Patil's visit to accused No. 13 on the night between 7th and 8th December, 1961 and the telephone call put in by this accused to the D.S.P. at Sholapur on the morning of 8th. According to the High Court there was no explanation of this midnight meeting between P. S I. Patil and accused No. 13 and of the telephone call by the accused to D.S.P. on the following morning. The High Court felt that the only inference permissible was that Patil who had been moving about for the purpose of carrying out the purposes of the conspiracy contacted this accused to inform him of the progress of the conspiracy and perhaps also to give him his share of the booty. In support of these circumstances reliance was placed on the evidence of Mahitab Husein (P.W. 61), Machindra Shinde (P. W. 62) and Ramchsndra Chougule (P.W. 65). Mahitab Husein (P.W. 61) is a police constable and according to him on December 7, after taking his meals at about 11 or 11.30 p.m. he went to Bhagwat and acquaintance of his and slept in his angan. At about 1.30 a.m. he bad pain in the stomach and went out for answering the call of nature. Bhagwat's house was about 25 paces from the gram panchayat Office, Modlimb. When going out for answering the call of nature near the gram panchayat office he saw one taxi coming from the side of the disponsary and going towards the panchayat office. While answering the call of nature he saw P.S.I. Patil getting down from the taxi and then going into the Panchayat office. His statement was recorded by the police on 28th March, 1862. He had been approached by the complainant on the 4th December in Tembhurni police station at about 5 a.m. when he has informed about the house-breaking at the complainant's residence. This witness was also produced before a Prant Officer (Magistrate) for recording his statement under Section 164, Cr. P.C. The statement was made before the Magistrate on 8th May 1962. A suggestion was put to him in cross-examination that in the beginning he was rot willing to give a statement which, of course, was denied. In that statement admittedly he had not mentioned that he had gone to sleep at the house of Bhagwat but had merely stated that during the night in question he was sleeping at the place of a person known to him. It is some what surprising that his statement to the police should have been recorded more than three and half months after the incident. P.W. 62 was a Kotwal at Modlimb at the ralevant time whose duty was to take rounds in the village along with policemen. On December 4, 1961 when he and his companions were taking around there was a theft in Kantilal Shah's house at Modlimb. Ramchandra, Police constable, on being told by this witness went to that house. On the following Thursday after this theft, when police constable Rambhau and Damu Kotwal were taking rounds in the village they reached a well behind the Gram panchayat office at about 2 am. They saw a taxi coming from the side of the Railway station from which three persons got down. The taxi then proceeded towards panchayat office. P. S. I. Patil got down from the taxi and went into the gram panchayat office. On going towards the dispensary the kotwal and the policemen saw a man easing himself, who on enquiry replied that he was Mahitab, policeman. He was in uniform. In this connection it is worth noting that according to Mahitab (P.W. 61) while sleeping at Bhagwat's place where he had gone after meals at about 11.30 p.m. (having already deposited his gun at the police out-post) he felt pain in his stomach at about 1.30 a.m. and, therefore, he went out to answer the call of nature which he did at place about 500 paces away from the gram panchayat office. Quite clearly there was no point of his being in uniform at that time. At about 3,30 a. m. they returned to the panchayat office but by that time the taxi and the persons whom they had seen earlier had all left. On the following day this witness learnt that two of the persons sitting near the neem tree were suspects in this case and on further enquiry he learnt that these suspects had produced the stolen property. His statement was recorded by the police as late as April 4, 1962, though even on the night of the theft he admits to have gone in search of the alleged thieves. Ramchandra police H. C P. W. 65, has supported P. W. 62 in regard to the round in village Modlimb between 12 midnight and 4 a. m. on the night of the 7th December. According to him the three persons getting down from the taxi were accused Rambhau, Ranga and Shankar Pawdhi. On December 8, according to him, Govardhan, Shankar Pawdhi and Ranga produced property worth Rs. 63,000/- in his presence. His statement was also recorded by the police on 4th April, 1902 though he had been disclosing all the information known to him ever since 8th December, 1961, The evidence of these three witnesses does not show that the accused did anything reasonably indicating or showing his complicity in the conspiracy. Everything stated by these witnesses seems to us to be consistent with the performance of official duty by accused No. 13, as an officer supervising the investigation.
9. We may now turn to the circumstances which, according to the High Court, support the prosecution case. This accused is stated to have attempted to contact the D S P, at Sholapur on the morning of December 8 at about 11 o'clock. In support of this circumstance reliance is placed by the High Court on the testimony of Gokul Khasode, P.W. 84. He was telephone Sub-Inspector at Modlimb and his duty was to look after the telegraph and telephone wires. According to him on December 8, 1961 at about 11 a.m. Dy. S. P. Thorat with Inspector Bagwan and P.S.I. Joshi went to the tent where the telephone was installed. This was the only telephone at Modlimb, The witness did not initially allow accused No. 13 to use the telephone but after taking permission from Krishan on telephone this accused was allowed to contact the D S.P. at Sholapur. This witness does not know English. But in cross-examination he said that the accused Dy. S. P. Thorat had uttered the words 'theft property was recovered'. These words were repealed by this witness from memory. This does raise an element of suspicion about his straightforwardness because in his examination in-chief he had merely said that when accused Dy. S.P. Thorat was connected on telephone to the D.S.P. Sholapur, the accused spoke something in English without stating as to what it was. Though the testimony of this witness is wholly unimpressive nevertheless assuming that accused No. 13 had booked a telephone call to D.S.P. Sholapur does not by any means indicate or show that this accused was a party to the conspiracy. The other circumstance referred to by the High Court is that the attitude of this accused with regard to the investigation changed since 8th December, 1961 and he became indifferent in the matter of further investigation. So much to that on December 12, he broke up the camp and went back to Sholapur and represented to the D.S.P. that no progress in the investigation was likely unless Kalyan was traced. Till the 19th December, 1961, according to the High Court, this accused hardly, did any serious investigation. The further incriminating circumstance suggested is that Baburao Patil had contacts and association with this accused and that on December 11, 1961 Patil and P.S.I Shinde, to withdraw their complaint against Rajbhau and also that a force of an attempt was made to recover some property through accused Nos. 4 and 5. What in the opinion of the High Court clinched the case against this accused were there two circumstances. In our opinion, even assuming that these circumstances are established on the record, they do not in our view constitute a reasonable ground for believing that this accused was a member of the conspiracy. Under Section 10 of the Indian Evidence Act 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 is first entertained by anyone of them, is relevant as against each person believed to be so conspiring for the purpose both proving the existence of the conspiracy and for showing that such person was a party, to it. On the evidence and the material on the record to which cur attention has been drawn we do not find it possible to hold that there is a reasonable ground to believe that accused No. 13 had conspired to commit the offence charged. There is really no evidence on which it is possible reasonably to bring his case with Section 10. At this stage we may also point cut that rejected confessions of some of the other accused persons are equally unhelpful to the prosecution in showing reasonable ground for believing that accused No. 13 was a co-conspirator. A retracted confession of a co-accused does not constitute substantive evidence within the meaning of Section 3 of the Indian Evidence Act. It can only be taken into account by the court in arriving at its conclusions. Its value, however, depends on the facts and circumstances of each case. It has also to be borne in mind that a retracted confession is a weak link even against the maker. It must necessarily be more so against a co-accused. In the present case as against accused No. 13 the retracted confession of his co-accused has not been seriously relied upon even by the State. It is, therefore, not possible to rely on the conduct of other persons for the purpose of proving the guilt of this accused, there being no witness to connect him with the conspiracy. We are, therefore, constrained to allow his appeal and to acquit him.
10. We may now turn to the case against accused No. 7. According to the prosecution this accused was the real brain behind the conspiracy. He was approached by accused Nos. 1, 2 and 6 for help and he thought of winning over the investigating officers by offering them a share of the stolen property. There is undoubtedly no direct evidence in support of the approach by the three accused as indeed from the very nature of things there could not be any likelihood of any direct evidence being available. Conspiracies of this type are conceived and hatched in secrecy. The prosecution has, therefore, to rely on circumstantial evidence, as is done in this case. PW 51, Vishwanath Bargava, who was P.S.I. at Sholapur from Feb. 1961 onwards, had been posted at Tembhurni from Jan. to September, 1060. In June, 1960 he was going to start externment proceedings against Kalyan Kale, accused No. 6, when Baburao Patil assured the witness that kalyan would behave in future. This evidence shows that accused No. 7 was highly interested in accused No. 6 and the latter might well have reasonably and in all probability approached the former for help in the present difficulty. The testimony of P.W. 23 (Vishwas Rao Phatke) shows, that accused No. 7 which at Mohel on December 7, 1961, had sent for Papa's taxi from Sholapur through Manek Cote, P. W. 24. It is true that P.W. 24 was declared hostile as contrary to his earlier statement he had omitted to state that it was Papa's taxi which was required by accused No. 7 though according to this witness accused No. 7 had asked for ''his taxi'. The fact, however, remains that actually the car driver by Papa, accused No. 10, came from Sholapur for accused No. 7. The fact that Rs. 30 given as advance by accused No. 7, to P.W. 24 for being paid to the taxi were not taken by the taxi people also suggests that the taxi driver was no stranger to accused No. 7 but was perhaps his own man and could safely depend on accused No. 7 for payment later. The cross-examination of P.W. 24 also suggests that there was a plausible cause for him to shield accused No. 7 Nana Sahib Deshpande the brother-in-law of this accused was the member of Sales Purchase Union, the concern of which this witness was a salesman. Deshpande was actually present in court when P.W. 24 was being cross-examined. Exhibit 156 shows that on the order placed by Manek Gote on behalf of accused No. 7, Papa's taxi was sent for him (Baburao Patil accused No. 7). The meeting at Telangwadi, in the Mala of P.W. 25, Dattatreya Yashwant Thorat (also described as Thorat Malewala) on December 7 between P.S.I. Patil who was brought thereby Rajbhau and Baburao Patil accused No. 7 and further, departure from there of P.S.I. Patil in Papa's taxi with accused No. 7, which version has been accepted by the High Court, seems to us to be sufficiently cogent to establish reasonable grounds for believing that there was a conspiracy as contemplated by Section 10, Indian Evidence Act to which accused No. 7 was a party. The evidence as to what transpired at this meeting quite clearly falsifies the exploration given by accused No. 7 that this trip on December 7, was connected with some election and indeed it has been so held by the High Court. The criticism that the statement of this witness was got recorded by a Magistrate which would show that it was considered necessary by the prosecution to pin him down to a statement which was not voluntary and free is not acceptable on the facts and circumstances pf this case. As observed by the High Court this procedure was considered necessary because of the influence of accused No. 7 and his friendship with P.W. 25. We do not consider this view of the High Court to be unreasonable. It has also not been shown to suffer from any error rendering it open to re-examination by this Court on special leave appeal and indeed we are inclined to agree with the High Court in this approach and in its conclusion. Once Section 10 of the Indian Evidence Act is applied then whatever is said or done by the parties to the conspiracy becomes relevant evidence as against all the co-conspirators even for the purpose of proving the conspiracy itself. The conclusions of the two courts below holding accused No. 7 guilty on appraisal of the material on the record seems to us to be fully justified and nothing urged on this behalf has persuaded us to disagree with those conclusions. His appeal must, therefore, fail and is dismissed.
11. We would now turn to the appeal by accused No. 11 Though a probationary Sub-Inspector of Police he has played an exceedingly important part in this episode which is sad reflection on the honesty and integrity of the police officers. Not only was he, like accused No. 7; a party to the meeting in Bagayat land of P.W. 25 but a sum of Rs. 19,500 was actually discovered at his instance. This discovery has not been shown to suffer from any illegality or even suspicion. Indeed the evidence against him, which is relevant under Section 10 of the Evidence Act is so overwhelming that it seems to us futile even to suggest that he is innocent. We entirely agree with the High Court in holding him guilty.
12. In the final result the State appeal against the acquittal of accused Nos. 12 and 15 and the appeals of accused Nos. 7 and 11 against their conviction are dismissed. The appeal of accused No. 13 is allowed and he is acquitted. His bail bond will be deemed to be cancelled. Accused Nos. 7 and 11 will surrender to their bail bonds to serve out the remaining sentences