Ambadas Laxman Shinde vs The State Of Maharashtra

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRL) NOS. 18­19 OF 2011

IN

CRIMINAL APPEAL NOS. 881­882 OF 2009

AMBADAS LAXMAN SHINDE AND ORS .....PETITIONERS

Versus

THE STATE OF MAHARASHTRA .....RESPONDENT

WITH

REVIEW PETITION (CRL) NOS. 34­35 OF 2010

in

CRIMINAL APPEAL NOS. 1008­1009 OF 2007

AND WITH

CRL. MP. NOS. 7008­09 OF 2016 in

REVIEW PETITION (CRL) NOS. 34­35 OF 2010

in

CRIMINAL APPEAL NOS. 1008­1009 OF 2007 Signature Not Verified

Digitally signed by SHASHI SAREEN O R D E R Date: 2018.11.02 16:40:44 IST Reason: 2

1 On 22 March 2007, a Division Bench of the Bombay High Court

disposed of a reference which was made under Section 366 of the

Code of Criminal Procedure 1973 by the 3 rd Ad­hoc Additional

Sessions Judge, Nasik.

2 The High Court upheld the conviction of and the sentence of

death imposed on Accused Nos. 1, 2 and 4. While upholding the

conviction of Accused Nos. 3, 5 and 6, the High Court sentenced

them to imprisonment for life. All the six accused were convicted

of the offence punishable under Section 302 read with Section 34 of

the Penal Code. In addition, Accused Nos. 1, 2 and 4 were convicted

of the offence punishable under Section 376 (2)(g) for which they

were sentenced to suffer rigorous imprisonment for a period of ten

years. The conviction of Accused Nos. 3, 5 and 6 under Section 376

(2)(g) was set aside by the High Court. All the Accused were

convicted of offences under:

(i) Section 307 read with Section 34 for which they have been

sentenced to suffer five years imprisonment;

(ii) Section 397 read with Section 395 for which they have been

sentenced to suffer rigorous imprisonment for seven years; and

(iii) Section 396 for which they were sentenced to suffer rigorous

imprisonment for ten years.

3 Criminal Appeals Nos. 1008­09 of 2007 were filed before this

Court by Accused No. 1(Ankush Maruti Shinde), Accused No. 2 (Rajya

Appa Shinde) and Accused No. 4 (Raju Mhasu Shinde). 3

4 The State of Maharashtra filed Criminal Appeal Nos. 881­882 of

2009 for seeking enhancement of the sentence of life imprisonment

imposed by the High Court on Accused Nos. 3, 5 and 6.

5 By a judgment dated 30 April 2009, a two judge Bench of this

Court dismissed the appeals filed by Accused Nos. 1, 2 and 4. While

allowing the appeals filed by the State, this Court sentenced

Accused Nos. 3, 5 and 6 to suffer the sentence of death.

6 Review Petitions were filed by the accused. Review Petition

Nos.34­35 of 2010 were filed by Accused Nos. 1, 2 and 4. Review

Petition Nos. 18­19 of 2011 were filed by Accused Nos. 3, 5 and 6.

The petitions seeking review were dismissed.

7 Following the decision of the Constitution Bench in Mohd. Arif

v Registrar, Supreme Court of India1, criminal miscellaneous

petitions have been filed for reopening the review petitions. In

terms of the judgment of the Constitution Bench, we permit the

reopening of the review petitions. They have been listed for

hearing before this Bench in open court.

8 Certain salient features about the proceedings which took

place before this Court in the course of the hearing need to be set

out:

(i) On 3 August 2007, leave was granted in the Special Leave

1 2014 (9) SCC 737 4

Petitions filed by Accused Nos. 1, 2 and 4. Execution of the

sentence of death was stayed during the pendency of the appeals;

(ii) On 21 November 2008, notice was issued in the appeals filed by

the State of Maharashtra. The appeals by the State were tagged

with the criminal appeals filed by the accused;

(iii)The notice issued by this Court on 21 November 2008 was served

on the accused in jail on 6 December 2008;

(iv)The hearing of the appeals had commenced on 4 December 2008

even before service of notice was effected;

(v) The order sheet dated 4 December 2008 indicates that all the

appeals were heard in part and were directed to be listed on 10

December 2008 “for continuation of arguments”;

(vi) On 10 December 2008, the following order was passed :

"Since the respondents have not appeared inspite of service of notice, Mr Sushil Karanjakar, learned counsel, who is appearing in the connected appeals is appointed as Amicus­Curiae to assist in this case to represent the respondents because he is ascertained with the facts of the case.

Mr. Sushil Karanjakar, learned counsel resumed arguments at 11.20AM and concluded at 2.45PM. Thereafter, Mr. Ravindra Keshavrao Adsure, learned counsel started his arguments and addressed the Court till 3.20PM.

Hearing concluded. Judgment reserved".

(vii) The appeals filed by Accused Nos. 1, 2 and 4 were 5

dismissed. The appeals filed by the State were allowed. The

sentence of death was imposed on Accused Nos. 3, 5 and 6;

(viii)The three accused – Accused Nos. 3, 5 and 6 were not

represented by Counsel;

(ix)The Court appointed Amicus Curiae on 10 December 2008. Counsel

was heard on the same day and judgment was reserved; and

(x) Eventually, by the judgment of this Court, Accused Nos. 3, 5

and 6 were sentenced to death and the appeals of the State of

Maharashtra were allowed. The appeals filed by Accused Nos. 1, 2

and 4 were dismissed.

9 From the above narration of facts, it is evident that Accused

Nos. 3, 5 and 6 had no opportunity to be heard by the Bench, before

the appeals filed by the State of Maharashtra for enhancement of

sentence were decided. They have been deprived of an opportunity of

engaging counsel and of urging such submissions as they may have

been advised to urge in defence to the appeals filed by the State

for enhancement.

10 In the circumstances, we are clearly of the view that the

judgment and order of this Court dated 30 April 2009 awarding the

death sentence to Accused Nos. 3, 5 and 6 must be recalled. We

order accordingly.

11 We are then left with the issue of Accused Nos. 1, 2 and 4.

The judgment of this Court dated 30 April 2009 dismissed their 6

appeals, while confirming the sentence of death imposed by the High

Court. In view of our conclusion that the judgment imposing the

sentence of death on Accused Nos. 3, 5 and 6 must be recalled, both

fairness and propriety require that the judgment should similarly

be recalled as regards Accused Nos. 1, 2 and 4. In coming to this

conclusion, we take note of the fact that the judgment of this

Court dated 30 April 2009 records that :

“these appeals are interlinked and are disposed of by this common judgment” (Emphasis supplied)

The evidence is common and the offences relate to the same

incident. Hence, it is both appropriate and proper that the

judgment dated 30 April 2009 should be recalled in its entirety, in

relation to all the six accused.

12 We accordingly order and direct that :

(i) The orders passed by this Court dismissing the Review

Petitions are recalled. The Review Petitions are, in

consequence, allowed; (ii) The judgment dated 30 April 2009 in Criminal Appeal Nos. 1008­

09 of 2007 and Criminal Appeal Nos. 881­882 of 2009 is

recalled. The criminal appeals are restored to the file of

this Court and shall be placed before the appropriate Bench

for hearing afresh; (iii) Permission is granted to Accused Nos. 3, 5 and 6 to file

appeals against the judgment of the High Court convicting

them, if so advised; and (iv) Execution of the sentence of death imposed by the High Court 7

on Accused Nos. 1, 2 and 4 shall stand suspended pending the

disposal of the appeals. (v) The Registry shall call for the records, if not already

called. (vi) Crl.MP Nos 7008­7009/2016 are disposed of accordingly.

...............................J [KURIAN JOSEPH]

.................................J [A M KHANWILKAR]

.................................J [Dr DHANANJAYA Y CHANDRACHUD] New Delhi; October 31, 2018. 8

ITEM NO.101 COURT NO.3 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

R.P.(Crl.) No. 18-19/2011 In Crl.A. No. 881-882/2009

(Arising out of impugned final judgment and order dated 30-04-2009 in Crl.A. No. No. 882/2009 30-04-2009 in Crl.A. No. No. 881/2009 passed by the Supreme Court Of India)

AMBADAS LAXMAN SHINDE & ORS. Petitioner(s)

VERSUS

THE STATE OF MAHARASHTRA Respondent(s)

(TO GO BEFORE THREE HONBLE JUDGES [ DEATH CASE ])

WITH

R.P.(Crl.) No. 34-35/2010 In Crl.A. No. 1008-1009/2007 (II-A) (FOR [Re-opening of the Review Petition] ON IA 7008-7009/2016)

Date : 31-10-2018 These petitions were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD

For Petitioner(s) Mr. T. Harish Kumar, AOR

Mr. Rahul Kaushik, AOR

Mrs. Geetha Kovilan, AOR

For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar, AOR Ms. Suverna, Adv. Mr. Anoop Kandraj, Adv. Ms. Deepa Kulkarni, Adv.

UPON hearing the counsel the Court made the following O R D E R

The orders passed by this Court dismissing the Review Petitions are recalled. The Review Petitions are, in consequence, 9

allowed;

i) The judgment dated 30 April 2009 in Criminal Appeal Nos. 1008­09 of 2007 and Criminal Appeal Nos. 881­882 of 2009 is recalled. The criminal appeals are restored to the file of this Court and shall be placed before the appropriate Bench for hearing afresh;

ii) Permission is granted to Accused Nos. 3, 5 and 6 to file appeals against the judgment of the High Court convicting them, if so advised; and

iii) Execution of the sentence of death imposed by the High Court on Accused Nos. 1, 2 and 4 shall stand suspended pending the disposal of the appeals.

iv) The Registry shall call for the records, if not already called.

v) Crl.MP Nos 7008­7009/2016 are disposed of accordingly.

(SHASHI SAREEN) (RENU DIWAN) AR CUM PS ASSISTANT REGISTRAR

(Signed reportable order is placed on the file)