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On 25th August, 1994 at about 11 a.m. to 12 Noon, the accused persons went towards the house of Rathis to observe the situation. They stayed and surveyed the said area and found that the area remained isolated during 2.00 p.m. to 4.00 p.m. They decided to commit the act of theft after killing all the persons, whosoever were found at the house of Rathis during the aforesaid period only.

On 26th august, 1994 at about 8.45 a.m. the complainant Sanjay Rathi is stated to have left his house for his shop.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Thereafter Hemlata, deceased with her husband and son@@ JJJJJJJJJJ arrived at the house of Rathis in connection with tying Rakhi to her brother PW1 as she had not come for the said purpose on the day of Rakhi, Poornima Festival on 21st August, 1994. Sanjay Rathi, PW1 came to his house at about 1 p.m. to 1.30 p.m. on his motorcycle. Sanjay and his brother-in-law Shri Shrikant Navandhar, PW15 took their meals and went to the complainant's shop. Accused persons left their room at about 12 Noon for going to the house of Rathis. Accused No.1 was armed with the new knife and Accused No.2 with the old one. They had taken with them chilly powder regarding which decision had already been taken, as according to them its throwing in the eyes of victims would have facilitated the commission of the crime. They reached near the house of Rathis at about 2 p.m. They saw one motorcycle kept near the said building which was identified by Raju PW2 as belonging to Sanjay Rathi, PW1. Realising that Sanjay Rathi, PW 1 was at his house, they returned to the main road and watched. After about one hour they again returned near the building of Rathis. After noticing that the motorcycle of Sanjay Rathi was not there, they decided to execute their plan. Accused No.1 told Accused No.3 (PW2) to go-ahead into the house of Rathis and start talking with the family members in respect of his service and by that time they would reach there after chaining the doors of other flats in the said building from outside. After the doors of all other flats were chained from outside, Raju (PW2) went to the flat of Rathis. He found that the door of the flat was half open and when he peeped into the said flat he saw the maid-servant, deceased Satyabhamabai Sutar cleaning the floor with the water. He entered the flat and the appellants followed him. Appellant Jeetu closed the door from inside. Accused No.2 Jeetu threw chilly powder on the inmates of the flat who had collected into the hall on hearing the call made by the maid- servant. All the inmates were made to keep quite and surrender to the orders of the accused persons lest they may be deprived of their lives with the knives which the appellants had in their hands. The family members of Rathis were taken to different rooms in the flat. Realising that the middle aged woman Meerabai, who had raised her voice, was the lady of the house, Accused No.1 promptly asked her about valuables. Seeing a knife in his hand and realising the danger to her life as also the lives of the rest of the members of the family she immediately pointed out a finger towards an almirah inside the room. Accused Nos.1 and 2 took her to the said room. Accused No.2 handed over the packet containing remaining chilly powder to Raju, PW2 and directed him to sprinkle it on the victims if they started shouting or making any other effort. Smt.Meerabai was done to death with the knife blows inflicted by Accused No.1 and was left to lie on bed where she died. Thereafter Babita @ Nita was taken to another room, apparently for getting the valuables and was killed by Accused No.1 by inflicting knife injuries on her person. Her son Chirag was also likewise killed by the aforesaid accused. Raju PW2 took Preeti into the bath room at the instance of Accused No.1 who cut a length of wire of washing machine and used it to choke her to death, who however, survived. When they came out of the bathroom, they heard some noise from the bathroom which prompted accused No.1 to go again inside. In the bathroom he found Preeti alive and told his other colleagues that 'she was still alive and had not died'. To accomplish the conspiracy hatched he gave knife blows to her which resulted in her death. Raju PW2 took Satyabhamabai Sutar in the kitchen where the accused No.1 had already reached and was washing the blood stained knife. Raju held Satyabhamabai Sutar and accused No.1 gave knife blows resulting in her death. Thereafter Raju and accused No.1 went towards a room where the married daughter of Rathis was held up by Accused No.2. Pratik, her son was tried to be taken from her, which she resisted. Accused No.2 assured her that he will not kill the child but will give him to his grandmother and threatened that if the child was not given to him, he will kill the child. Hemlata was also killed by inflicting knife injuries. Accused No.2 and Raju PW2 took the child into the room where Meerabai was lying dead in the pool of blood. The child was suffocated by gagging and when his movements stopped, the Accused No.2 put down the child on the floor saying he had died. Accused No.2 and Raju PW2 then came out and joined Accused No.1 who was standing before Hemlata. Upon enquiry about the child she was told by Accused No.2 that the child had been given to her grandmother. Accused No.1 then caught hold of Hemlata who put some resistence and in the process fell down. Accused No.2 gave her blows by putting his knees on her stomach and when she was immobilised this way, the Accused No.1 gave her knife blows on her neck with the result she also died. Almirahs found in the flat were emptied to the extent the accused could put articles and other cash and valuables in the air-bag obtained from the said flat. Before leaving the scene of occurrence Accused No.1 changed his pant which was blood stained and also put on him khaki jerkin clothes which were available in the house. Accused No.2 helped himself to a black shirt. Blood stained clothes of Accused No.2 were put in the air-bag along with stolen articles. At the time when they were about to leave the flat, the phone installed therein started ringing. Accused No.1 cut the telphone wires with his knife. At this stage they heard the cries of child from the room where Meerabai was lying dead. All of them went inside and found that the child, Pratik had not died. Despite the death spree caused, they did not think even to leave that child alive. Accused No.2 took the knife from Accused No.1 and gave blows to the child and killed him. After completing the crime of theft/robbery and murders, the accused persons came out of the house with the air-bag in which they had kept the blood stained clothes, knives and stolen property. Vishwajit Joshi, PW9 saw accused persons coming out of the compound wall of the concerned Himanshu Apartments where the flat of the Rathis was located. On the road they boarded a Rickshaw and came back to their room in Nagpur Chawl. As noticed earlier, Sanjay Rathi, PW1, his brother-in-law Shrikant Navandhar (PW15) had left the flat before the accused attacked the victims. Both of them went back to the house of Rathis by 6.45 p.m. Sanjay Rathi PW1 rang the door-bell and as nobody opened the door, he made inquiries from Smt.Khara and Smt.Dhade as to whether the key of the door of his flat was kept at their houses. On getting reply in the negative, Sanjay Rathi made inquiries from his relatives and family members by making phone calls from the house of Mrs.Khara as to whether his family members had gone there and on receiving the information in the negative he telephoned his father at the shop. His father told him that nobody from the family members had come to the shop nor did he receive any message from them. Sanjay Rathi went to the shop and brought the duplicate key. Meanwhile Damu Sutar, the husband of the maid-servant had also come there. Sanjay Rathi PW1 opened the door with the duplicate key in the presence of Shrikant Navandhar PW15, Damu Sutar and Smt.Sharmila Dhade. Upon entering in the flat they saw the maid- servant Satyabhamabai Sutar lying dead in a pool of blood. They rushed out crying and saying that the police be called. On hearing the cries of complainant Sanjay Rathi, the neighbourers and by-passers got collected in front of the building. Two of the neighbours went to Kothrud Police Station and informed the police that several persons had gathered in front of the Apartment in which the flat of Rathis was situated. Entry about the information was recorded in the Station Diary whereafter PI Vikram Pawar along with his staff rushed to the Apartment building. The said Sh.Vikram Pawar along with Sanjay Rathi PW1 and Shrikant Navandhar, PW15 entered the flat and saw the maid-servant Satyabhamabai Sutar, Preeti, Meerabai, Pratik, Babita, Hemlata and Chirag lying dead in pools of blood in the kitchen, bathroom, bed-room and the store of the flat of Rathis. The almirahs were found open. Sanjay Rathi was asked to verify the purportedly stolen articles. Sanjay Rathi was not in a condition to check the articles on account of the shock received after having seen the dead bodies all around in his flat. However, after the passage of some time and consolation by Vikram Pawar, Sanjay Rathi told the police that a cash of Rs.85,000/- besides gold and silver ornaments was missing. Meanwhile, after reaching Nagpur Chawl, where the accused persons were residing,@@ JJJJJJJJJJJJJJJ Accused No.2 asked PW 2 Raju to bring liquor and some@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ edibles for which he was given Rs.200/-. The air-bag was opened in which they had kept their blood stained clothes, mouth-organ, knives, camera, one bundle of Rs.500 currency notes denomination, one bundle of Rs.100 currency notes denomination, one bundle of Rs.50 currency notes denominations and bundles of Rs.10/- denominations, besides gold and silver ornaments. Raju kept for himself a mouth-organ, camera and a lady wrist watch of Rico make as also some coins of Nepal origin. Mangalsutra and one HMT watch was taken away by Accused No.1. Golden chain, three golden bangles and one golden ring, having S.R. written on it, were taken away by Accused No.2. Raju PW2 was asked by Accused No.1 to wash the blood stained clothes. While washing Pant of Accused No.1 Raju found one gold ring in the pocket which he took out and kept with him. As he could not wash the blood stained clothes of Accused No.1 he put back the ring in the pocket of the pant which was later on concealed in the tin roof. The accused thereafter went to the jewellery shop where the silver anklet was pledged. After making the payment they got the silver anklet released. On reaching back in the room in the Nagpur Chawl, they consumed the liquor brought by PW2 and moved around the area for about an hour or so. Again coming back to the said room, Accused No.1 declared that he will go and hide the knives. He went away and on his return, upon inquiry, he told that the knives were hidden near the latrine. On the next day at the instance of Accused No.1 Raju brought Newspaper "Prabhat" and "Aaj Ka Anand" wherein the incident of murders and dacoity was reported without indicating the identity of the accused persons. In the afternoon they purchased the Evening Newspaper "Sandayanad" which carried further details of the incident and mentioned the name of Accused No.2 being probably responsible for the crime. After reading such news item they agreed to part company and to meet at Ahmedabad on 29th August, 1994. They met at Ahmedabad and again dispersed. Accused No.1 was arrested on 5th September, 1994, Accused No.2 on 21st November, 1994 and Raju PW2 on 15th October, 1994 from different places in Rajasthan. They made disclosure statements consequent to which various articles were recovered vide panchanamas prepared in accordance with law. In the identification parades they were identified by various witnesses. All the three accused persons were committed to the Court of Sessions for standing trial of various offences under the Indian Penal Code as noticed earlier. After the commitment but before the commencement of the trial Accused No.3 Raju Rajpurohit sent a letter to the Commissioner of Police repenting and expressing his wish to make a confessional statement. PI Shinde (PW 63) filed an application in the Trial Court along with letter of accused Raju dated 22nd November, 1995 praying the permission of the Court for getting the confessional statement of the accused Raju Rajpurohit recorded. The Trial Court accepted the application and directed the Superintendent of Prisons to allow to get the confessional statement of Raju recorded. Shri Khomane, Special Judicial Magistrate was also directed to record the confessional statement of Raju. The confessional statement, as recorded by Special Judicial Magistrate (PW41) was received by the Trial Court in a closed envelope. On 3rd January, 1996 an application under Section 307 of the Cr.P.C. was filed on behalf of the prosecution with a prayer to tender pardon to accused Raju Rajpurohit, on making necessary inquiries and on the condition of his making true and full disclosure of all the facts within his knowledge. On receipt of the said application, the Trial Court directed the Superintendent of the concerned jail to produce the aforesaid accused in the Court on 4.1.1996 at 11 a.m. The arguments on the application of the prosecution were heard after affording the advocates of the appellants an opportunity of addressing the court. The Trial Court, after hearing accused Raju observed: "On query by this Court he stated before me that he is prepared to make a full and true disclosure of the whole of the circumstances within his knowledge regarding these offences and the entire incident involved and that he is ready to accept the pardon. I have carefully perused the entire record of this case and also the confessional statement of this accused Rajendrasingh alias Rajusingh Ramlal Purohit which has been recorded by Special Judicial Magistrate, Pune. The said confessional statement was received in this Court in a closed envelope on 21.12.1995 from Shri G.H. Komne, Special Judicial Magistrate and since the said envelope was not bearing lac seals on the packet I kept the said envelope in another envelope, closed the said envelope and got the lac seals put on it. Today I opened the said sealed envelope of this Court and also the inner envelope and took out the said confessional statements in open court and then perused the same. I am satisfied from the said confessional statements made by this accused Rajendrasingh alias Rajusingh Ramlal Purohit and other material on the record of this sessions case that this accused Rajusingh alias Raendra Singh Ramlal Purhoit has participated into the entire incident involved and thus his privy with all the happenings at the time of incident.

A perusal of both the Sections clearly indicates that Section 306 is applicable in a case where the order of commitment has not been passed and Section 307 would be applicable after commitment of the case but before the judgment is pronounced. The provisions of sub-section (4)(a) of Section 306 would be attracted only at a stage when the case is not committed to the court of Sessions. After the commitment, the pardon is to be granted by the Trial Court subject to the conditions specified in sub-section (1) of Section 306, i.e. approver making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It may be noticed that under the old Code, only the District Magistrate had the power to tender pardon, at any stage of the investigation, enquiry or trial even though he himself might not be holding such enquiry or trial. Pardon could be granted by the District Magistrate even during the pendency of the trial in the Sessions Court. By Criminal Law Amendment Act, 1952, old sections 337 to 339 were substituted by sections 306 to 308 of the Code of Criminal Procedure conferring the power to tender pardon only to Judicial Magistrates and the Trial Court. Section 307 - in its present form - does not contemplate the recording of the statement of the approver twice as argued. Accepting the submissions made on behalf of the appellant would amount to legislate something in Section 307 which the Legislature appears to have intentionally omitted. In Suresh Chandra Bahri v. State of Bihar [1995 Supp. (1) SCC 80] this Court while dealing with the case where the Approver was granted pardon by the committal court observed that every person accepting the tender of pardon made under sub-section (1) of Section 306 has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. The examination of the accomplice in such a situation was held to be mandatory which could not be dispensed with. Referring to a Full Bench Judgment of the Gujarat High Court in Kalu Khoda v. State [AIR 1962 Guj. 283] this Court observed that: "If the said defect of not examining the approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an accused person and therefore the trial cannot be said to be vitiated on that account." There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306(4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in Sub-Section (1) of Section 306. The law mandates the satisfaction of the court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW2. It has been further argued by the learned counsel for the appellants that as the statement of the Approver was recorded after an unexplained prolonged delay, the same could not be made the basis for conviction of the accused. In support of his submissions he has relied upon a judgment of this Court in Lal Chand & Ors.v. State of Haryana [1984 (1) SCC 686. In Lal Chand's case this Court while dealing with the peculiar facts and circumstances of the case found that the prosecution version of the fradulent transaction was extremely doubtful. In that context it was observed that the evidence of the Approver could not improve the prosecution case. The testimony of the Approver is required to be viewed with great caution inasmuch as he was self- confessed traitor and his earlier statements have been kept back by the prosecution which gave rise to the adverse inference that the earlier statements did not support the prosecution. Keeping in view the fact of the Approver's statements made after 20 months, while exercising due care and caution the court found that his evidence was not reliable to be made the basis for returning the finding of guilt against the accused persons. Such is not the position in the instant case. Otherwise the words of the section "at any time after commitment of the case but before judgment is passed" are clearly indicative of the legal position which the Legislature intended. No time limit is provided for recording such a statement and delay by itself is no ground to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice. Human mind cannot be expected to be reacting in a similar manner under different situations. Any person accused of an offence, may, at any time before the judgment is pronounced, repent for his action and volunteer to disclose the truth in the court. Repentance is a condition of mind differing from person to person and from situation to situation. In the instant case PW2 appears to be repenting upon his action from the very beginning as is evident from the two notes (Exhs.84 and 85) recovered from his pocket at the time of his arrest. It appears that the apprehension of his colleagues being convicted and sentenced prevented him from taking a final decision at an early stage to make a truthful statement. The defence has not put any question to the aforesaid witness which could suggest that the delay in PW2 becoming the Approver by itself was fatal to the prosecution case. In one of the notes Exhibit 84 dated 11.10.1994 addressed to his parents and brother he is shown to have stated: "I am not worth calling your son. I have committed gruesome crime for which I could not be pardoned by God also. I was instigated by my friend Jeetu and Narayan and due to which I help them in the murder and robbery which took place in the Rathi family in Pune. I have no guts to face after this incidents. I have tremendous repentance over it for which I have decided to commit suicide. Please do not be sad after my death."