Ankush Maruti Shinde . vs State Of Maharashtra

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1008-1009 OF 2007

ANKUSH MARUTI SHINDE AND OTHERS ..APPELLANTS VERSUS

STATE OF MAHARASHTRA ..RESPONDENT WITH CRIMINAL APPEAL NOS. 881-882 OF 2009

STATE OF MAHARASHTRA ..APPELLANT

VERSUS

AMBADAS LAXMAN SHINDE AND OTHERS ..RESPONDENTS WITH CRIMINAL APPEAL NOS. 268-269 OF 2019

AMBADAS LAXMAN SHINDE AND OTHERS ..APPELLANTS

VERSUS

STATE OF MAHARASHTRA ..RESPONDENT

JUDGMENT

M.R. SHAH, J.

All these appeals are interlinked, and as such, arise out of the

impugned judgment of the Division Bench of the Bombay High Court

dated 22.03.2007 passed in Confirmation Case No.2 of 2006 along

with Criminal Appeal No. 590 of 2006, and are being disposed of by Signature Not Verified

this common judgment.

Digitally signed by ASHWANI KUMAR Date: 2019.03.05 17:51:56 IST Reason:

1.1 By the impugned judgment, a Division Bench of the Bombay

High Court has disposed of the Reference made by the learned 3 rd 2

Ad-hoc Additional Sessions Judge, Nashik (hereinafter referred to

as the ‘Sessions Court’) under Section 366 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’)

for confirmation of the death sentence.

1.2 The Sessions Court by judgment and order dated 12.06.2006 in

Sessions Case No. 43/2004 convicted in all six accused – original

accused nos. 1 to 6 for the offences punishable under Sections

395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307

read with Section 34 of the IPC, Sections 396, 397 and 398 of the

IPC.

1.3 The learned Sessions Court sentenced all the accused to death

for the offences punishable under Section 302 read with 34 of the

IPC. The learned Sessions Court also imposed separate

punishments for other offences for which they were convicted.

All the convicted accused filed Criminal Appeal No. 590/2006

before the High Court of Bombay against the order of conviction

and sentence imposed by the learned Sessions Court. As

observed hereinabove, the learned Sessions Court made a

reference to the High Court for confirmation of the death

sentence, which was registered as Confirmation Case No. 2 of

2006.

1.4 That the High Court, while upholding the conviction and death

sentence of original accused nos. 1, 2 & 4, altered the death 3

sentence in respect of original accused nos. 3, 5 & 6 to life

imprisonment along with fine. Accused nos. 1, 2 & 4 were also

convicted for the offences punishable under Section 376(2)(g) of

the IPC and they were sentenced to suffer 10 years rigorous

imprisonment. The High Court set aside the conviction and

sentence under section 376(2)(g) in respect of accused nos. 3, 5

& 6. The High Court confirmed the conviction of the accused for

the offences punishable under Section 307 read with Section 34

of the IPC, Section 397 read with Section 395 of the IPC and

Section 396 of the IPC.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the Bombay High

Court, original accused nos. 1, 2 & 4 have preferred Criminal Appeal

Nos. 1008-1009 of 2007. The State of Maharashtra has also filed

Criminal Appeal Nos. 881-882 of 2009 challenging the alteration of

death sentence to life imprisonment in respect of original accused nos.

3,5, & 6 are concerned. The State has also challenged the acquittal of

original accused nos. 3, 5 & 6 for the offence punishable under

Section 376(2)(g) of the IPC.

2.1 That by judgment and order dated 30.04.2009, this Court

dismissed the appeals preferred by original accused Nos. 1, 2 & 4 and

allowed the appeals preferred by the State and restored the capital

punishment imposed by the learned Sessions Court so far as accused 4

Nos. 3, 5 & 6 are concerned. That the judgment and order dated

30.04.2009 passed by this Court was sought to be reviewed at the

instance of the original accused nos. 3, 5 & 6 on the ground that

accused nos.3, 5 & 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.

2.2 That a three Judge Bench of this Court by its order dated

31.10.2018 allowed the review applications, and recalled the judgment

and order dated 30.04.2009 rendered by this Court not only qua

accused nos. 3, 5 & 6, but qua other accused also by observing that

the evidence is common and the offences relate to the same incident,

and therefore, it is appropriate and proper that the judgment dated

30.04.2009 should be recalled in its entirety, in relating to all the six

accused. While allowing the review applications, this Court recalled

the judgment dated 30.04.2009 and directed the criminal appeals to

be restored to the file of this Court and directed that the appeals be

placed before the appropriate Bench for hearing afresh. It is to be

noted that this Court while restoring the appeals which have been

preferred by the original accused nos. 1, 2 & 4 and State of

Maharashtra, also granted permission to accused nos. 3, 5 & 6 to file

appeals against the judgment of the High Court convicting them, if so

advised, and that is how accused nos.3, 5 & 6 have preferred Criminal 5

Appeal Nos. 268-269 of 2019 against the judgment of the High Court

convicting them. Hence, all these appeals are now before the Court for

a fresh hearing.

3. The prosecution version in nut and shell is as follows:

On 5/6/2003 Trambak and all his family members as well as the

guest Bharat More were chitchatting after dinner and at about 10.30

p.m. seven to eight unknown persons entered his hut and all of them

were on banyan and half pant and they started threatening the family

members. They demanded money as well as ornaments and Trambak

took out Rs. 3000/-from his pocket and handed over to one of them.

Some of the gang members forcibly took away the mangalsutra as well

as ear-tops and dorley from the person of Vimalabai, ear-tops from the

person of Savita and silver rings which were around her feet. From the

person of Manoj they removed a silver chain and a wrist watch.

Thereafter they went out of the hut and consumed liquor. After some

time they re-entered the hut with weapons like knife, axe handle,

sickle, spade with handle and yokpin etc., so as to rob the house

members and collect more money and ornaments etc. They started

beating the family members and Trambak was the first person who

received assault. Sandeep and other members of the family told the

dacoits to take away whatever they could collect from the house but

no family members should be assaulted. At this stage Sandeep was 6

assaulted and so also Shrikant @ Bhurya, Bharat and Manoj. The

dacoits did not spare Vimalabai as well. They tied hands and legs of all

the family members except Manoj and Vimalabai. As a result of

assault Manoj, Trambak, Sandeep, Shrikant and Bharat had fallen

unconscious. Three of the dacoits dragged Savita out of the hut and

took her to the guava garden. Two of the dacoits then picked up

Vimalabai and dragged her towards the well. One of them raped her

near the well and then she was taken to the guava garden where

Savita was taken. Vimalabai was assaulted and brought back to the

hut. After some time the three dacoits brought Savita back but in

naked condition and with injuries on her body. When the dacoits had

entered the hut at about 10.30 p.m. the light bulb in the hut was

burning and TV was on. The dacoits increased the volume of the tape

recorder and after they dropped Savita in the hut, they put on shoes

and started walking on the persons lying injured and they thought

that all of them were dead. Vimalabai (PW 8) lost her consciousness

around 12 O’ Clock in the night and till then the dacoits were present

in the hut and they left the hut under the belief that all of the victims

were dead. However, PW 1 Manoj and his mother PW 8 Vimalabai

survived.

3.1 As per the case of the prosecution, in the morning at about 6:30

a.m. on 6.6.2013, one Vishnu Hagwane (PW12), nephew of the 7

landlord reached the spot and had seen the dead bodies. By that

time, PW1 – Manoj Satote became conscious. PW1 – Manoj Satote

lodged the first information report against unknown persons. The

investigating officer started investigation. It appears that at different

times, the investigation was carried out by four different officers. The

investigating officer recorded the statement of the concerned witnesses

including PW1 – Manoj Satote and PW8 – Vimalabai. 3.2 The investigating officer also collected the medical evidence.

The clothes from the five deceased persons, as well as, on the person

of Manoj and Vimalabai were seized. From the spot some weapons

like wooden handle, spade with handle, yokpin and sickle were also

seized. The seized articles were sent for chemical analysis and CA

reports from Exhibit 58 to Exhibit 72 were received. That original

accused nos. 1 & 2 came to be arrested under arrest panchanamas

(Exhibits 44 and 45) on 23.6.2003 by the Crime Branch. According to

the prosecution, the police during the course of investigation also got

information that some other accused were also involved in a separate

crime registered with the police station at Bhokardhan in Jalna

district on 19.06.2003 and the police, therefore, filed an application

before the competent Court seeking transfer of the accused in Crime

No. 74 of 2003 registered with the Bhokardhan police station and

finally accused nos. 3 to 5 came to be arrested on 27.06.2003 under 8

arrest panchanamas (Exhibits 53, 54 and 55) after their custody was

transferred from the police station at Bhokardhan. That on the arrest

of accused nos. 1 to 5 their clothes were seized and they were

subjected to medical examination. On medical examination, some

injuries were found on accused nos. 1, 2 & 4. The aforesaid accused

nos. 1, 2 & 4 were seen to have sustained some injuries within three

weeks. Medical certificates were issued by the concerned doctor

(Exhibits 133 to 135 and Exhibits 195 & 196). That during the course

of the investigation, test identification parade of accused nos. 1 to 5

was held on 25.07.2003 by the Executive Magistrate. In the test

identification parade, PW1 – Manoj Satote identified the five accused.

PW8 – Vimalabai also identified accused nos. 1, 3, 4 and 5 as the

unknown persons who had entered the hut and assaulted the family

members. However, she could not identify accused no.2. It appears

that thereafter accused no.6 came to be arrested on 07.10.2004 and

his test identification parade was held on 9.10.2004. Both PW1 and

PW8 identified the said accused also.

3.3 On completion of the investigation and finding prima facie case

against the accused, the Investigating officer filed a charge sheet

against all the accused for the offences punishable under Sections

395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read

with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. 9

That the learned Magistrate committed the case to the Court of

Sessions, which was numbered as Sessions Case No. 43/2004. 3.4 To prove the case against the accused, the prosecution led oral

as well as documentary evidence. The prosecution examined as many

as 25 witnesses as under:

PW Name Role 1 Manoj Satote Complainant and Eye Witness, FIR dt. 6.6.2003 Ex. 23 2 Suresh Javare Inquest Panch, Panchnamas [dt. 6.6.2003 Ex. 25-29 [Co-Panch Raman Ratan Boie] 8.30 am – 11.30 am. 3 Shankar Spot Panch for hut, Panchnama Ghule dt. 6.6.2003 Ex. 31 11.45 am-12.45 pm. 4 Bharat Bhoir Spot Panch for hut, Panchnama dt. 6.6.2003 Ex.31 5 Dada Palde Spot Panch for well, Panchnama dt. 7.6.2003 Ex. 34 [Co-Panch Sandeep Dhule] 8 am-9 am. 6 Raghunath Landlord of Guava Orchard. Hagwane Panch for Seizure Panchnama for slippers from spot dt. 6.6.2013 Ex. 75 (Co-Panch Kashinath Palande] 12.50 pm – 1.20 pm.

Panch for identification of slippers by PW1 dt. 8.6.2003 Ex. 76 [Co-Panch Kashinath Palande] 9 am – 9.45 am. 7 Ibrahim Panchnama for spot dt. 25.6.2003 Shaikh Article A [Co-Panch Shabbi Khatib] 11 am – 12.30 pm. 8 Vimalbai Eye Witness Satote 9 Dr. Dattatraya Autopsy Surgeon for Post Gadakh mortems Notes dt. 6.6.2003 Ex. 81, 86, 89, 91, 93 and Cause of 10

Death Certificates dt. 6.6.2003 Ex. 82, 85, 87, 88, 90, 92, 94, 96, 99, 101. 10 PC Vithal Carried articles to CA. 11 PN Sonawane Carried articles to CA. 12 Vishnu Nephew of PW6. First person to Hagwane reach spot. 13 Ramesh Special Executive Magistrate. Sonawane Conducted TIP of A6 on 9.10.2004 Ex. 120 [Panchas Chaggan Mag Chavan, Rajendra Murlidhar Sarode] 11.30 am – 12 noon. Letters Ex. 118-9, 121. Recorded Dying Declaration of PW8 Ex. 122, 5.20 pm to 6 pm. 14 Sayyad Panch for opening and resealing Budhan packet containing a chain dt. 22.8.03 Ex. 124-5 [Co-Panch Deepak Ghodke] 12.15 pm – 12.30 pm. 15 Dr. Nalini Medical Officer for PW1 and PW8’s Shardul injuries, Certificate Ex. 129-31. 16 Dr. Satish Medical Officer who examined A3, Shimpi A4, A5 on 27.6.03, Certificate Ex 133-135 17 PSI Narayan Arrested A1 and A2 on 22.6.03, Shinde Panchnama for seizure of underwear dt. 24.6.03 Ex. 46-47 [8 am – 8.45 am]. Arrested A6 on 1.10.04. 18 ACP Investigating Officer Bhaskarrao Dhus 19 Bhimsing In charge of Dog Squad, Onkar Panchnama dt. 29.6.2003 Ex. 164 20 PI Kashinath First Investigating Officer. Bharate Recorded Dying Declaration of PW1 Ex. 178 dt. 6.6.03 21 PI Ramesh Searched houses of A1, A3, A4, A5 Patil on 26.6.03 Panchnamas Ex. 48-52, 183. Arrested A3, A4, A5 dt. 27.6.03 Ex. 53-55, 5.05 am – 5.45 am. Seized chain from 11

house of A5 dt. 26.6.03 Ex. 183 [Panch Shaikh Ilyas and Bhimrao Mhaske] 1.30 – 2.30 pm. 22 PI Shafiuddin Recorded FIR Sayyad 23 PI Sharad Recorded statement of PW8 dt Gavane 6.6.03 24 Dr. Vilas Patil Medical Officer for examination of A1 and A2 dt. 23.6.03 Ex. 195-6 25. Govind Alhate Magistrate who had conducted the TIP dt. 25.7.03 for A1-A5 Ex. 224-228, explanation Ex. 229.

3.5 Apart from the aforesaid oral evidence, the prosecution brought

on record and relied upon the following documentary evidence:

Sl. No. Particulars Exh. No. 1. Complaint Exh. 23 2. Inquest Panchnamas Exhs. 25 to 29 3. Spot Panchnamas Exh. 31 and Exh. 34 4. Seizure panchnama of Exh. 75 slippers 5. Identification of slippers by Exh. 76 Manoj 6. P.M. Notes of deceased Savita Exh. 81 7. Advance cause of death Exh. 82 certificate of Savita 8. Final cause of death Exh. 85 certificate of Savita 9. P.M. Notes of Trambak Exh. 86 10. Advance cause of death Exh. 87 certificate of Trambak 11. Final cause of death Exh. 88 certificate of Trambak 12. P.M. Notes of Bhurya Exh. 89 13. Final cause of death of Exh. 90 Bhurya 14. P.M. Notes of Sandip Exh. 91 15. Final cause of death Exh. 92 12

certificate of Sandip 16. P.M. Notes of Bharat More Exh. 93 17. Final cause of death Exh. 94 certificate of Bharat 18. The opinion of medical officer Exh. 107 about Savita 19. Medical certificate of Manoj Exh. 129 20. Medical certificate of Exh. 131 and Vimalabai Exh. 132 21. Medical certificates about the Exh. 133 to examinations of the Accused 135 and Exh. 195 and 196 22. Proclamation orders Exh. 158 23. Panchnama of the Exh. 164 identification by Dog 24. Spot map Exh. 169 25. C.A. Certificate Exh. 58 to 72

3.6 That after the closing pursis was submitted by the prosecution,

further statement of the accused under Section 313 of the Code was

recorded, where they denied having committed any offence, as alleged. 3.7 That thereafter, on appreciation of the evidence on record, both

oral as well as documentary, the learned Sessions Court held all the

accused nos. 1 to 6 guilty for the offences punishable under Sections

395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read

with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC, and

sentenced the accused as under:

“1. The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya Appa Shinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde, (5) Bapu Appa Shinde & (6) Surya alias Suresh s/o Nagu alias Gangaram Sinde are convicted for the offences punishable under sections 395, 302 r.w. 34 of Indian Penal Code, Section 376(2)(g), 307 r.w. 34 of Indian Penal Code, 13 Sections 396, 397 r.w. 395 and Sec. 398 of Indian Penal Code.

2. The offence punishable under section 397 r.w. 395 of Indian Penal Code is proved. It includes offences punishable under sections 395 and 398 of Indian Penal Code, so no separate punishments are given for the same.

3. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 302 r.w. 34 of Indian Penal Code.

They are sentenced to death for the offence punishable under section 302 r.w. 34 of Indian Penal Code. It is directed that they be hanged by their necks till they are dead. The sentence is subject to the confirmation by the Hon’ble High Court.

4. The accused Nos. 1 to 6 are convicted for the offence punishable under section 376(2)(g) of Indian Penal Code and they are sentenced to suffer R.I. for a period of 10 years each with fine of Rs.200/- each.

In default of payment of fine, to suffer further R.I. for a period of 1 month each.

5. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 307 r.w. 34 of Indian Penal Code. They are sentenced to suffer R.I. for 5 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for a period of 1 month each.

6. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 397 r.w. section 395 of Indian Penal Code. They are sentenced to suffer R.I. for a period of 7 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for 1 month each.

7. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 396 of Indian Penal Code. And they are sentenced to suffer R.I. 14

for 10 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for 1 month each.

8. The Accused Nos. 1 to 6 are acquitted of the offence punishable under section 135 of Bombay Police Act.

9. All the sentences to run concurrently.”

4. Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence imposed by the learned Sessions Court, all

the accused preferred Criminal Appeal No. 590/2006 before the High

Court. The learned Sessions Court made a reference to the High

Court as all the accused were imposed the death sentence. It appears

that during the pendency of the aforesaid appeal and the confirmation

case, Criminal Application No. 1 of 2006 was filed by the State of

Maharashtra and Criminal Application No. 2 of 2006 was filed by the

accused persons before the High Court. By the common order dated

14.11.2006 in both these applications, the High Court issued the

following directions:

“(i) The prosecution be allowed to lead additional evidence of the Sub-Divisional Magistrate who conducted the test identification parade in relation to accused Nos.1 to 5 and all relevant documents pertaining thereto.

(ii) The defence be permitted to recall and cross-examine PW-8 in relation to Exh. 122 which is already on record.

(iii) In the event contradictions are established on record in the cross-examination of PW-8, the learned Trial 15

Judge should also recall PW-13 for directions of those contradictions, if any.

(iv) Since the matter of confirmation is pending, it is desired that the necessary recording of additional evidence be completed before 7th of January, 2007.

List the matter for further orders in relation to hearing on 9th January, 2007. The record may be transmitted to the Trial Court for this purpose.”

4.1 Consequently, PW8 and PW13 were further cross-examined by

the defence and the prosecution examined one additional witness i.e.

Shri Govind Alhate, City Magistrate at Nashik as PW25. He had

conducted the TI parade of accused nos. 1 to 5 on 25.07.2003.

Through his evidence the additional documents at Exhibits 217 to 229

were brought on record. Exhibits 224 to 228 are the memorandum of

TI parade of each of the accused nos. 1 to 5 and Exhibit 229 is the

explanation submitted by the Sub-Divisional Magistrate. At this

stage, it is required to be noted that before the Sessions Court, the

Sub-Divisional Magistrate, who conducted the TI parade on 25.7.2003

was not examined, and therefore the High Court passed the aforesaid

order and directed the prosecution to lead additional evidence of

Sub-Divisional Magistrate, who conducted the TI parade in relation to

accused nos. 1 to 5, conducted on 25.7.2003. That from the

cross-examination of PW8 and PW13 and their additional depositions

recorded, consequent to the order passed by the High Court in

Criminal Application Nos. 1 and 2 of 2006, it was found that PW13 16

received the requisition for recording the dying declaration of PW8

after she had regained consciousness on 7.6.2003 and she had

identified the four accused from the photographs shown to her in File

No. 80 out of the three files handed over to him by the police, i.e., File

Nos. 70, 76 and 80. It also came on record that PW8 had, in fact,

identified four persons from the photographs with name, who are

other than accused nos. 1 to 6. That it was found that the

prosecution withheld the aforesaid material evidence and suppressed

the material fact. Therefore, it was also the case on behalf of the

accused before the High Court that the prosecution was not fair and

they have suppressed/withheld the material evidence from the Court

and, in fact, there was no investigation whatsoever with respect to

those four persons, who were identified by PW8. The High Court did

not agree with the submission on behalf of the accused and ignored

the Exhibit 122 as dying declaration of PW8 – Vimalabai, recorded by

the Executive Magistrate, Sonawane on the ground that PW8

subsequently survived, Exhibit 122 cannot be said to be a dying

declaration, and that it could at the most be termed as her previous

statement during the course of investigation, and that it cannot be

treated as a substantive evidence and at the most it could be used for

the limited purpose of corroboration or contradiction of the testimony

of its maker and in any case it cannot be admissible under Section 6 17

or Section 32 of the Evidence Act. That thereafter, considering the

material on record and appreciating of evidence, the High Court by the

impugned judgment and order confirmed the conviction and sentence

imposed upon accused nos. 1, 2 & 4. However, altered the death

sentence to life imprisonment in respect of accused nos. 3, 5 & 6. The

High Court also acquitted accused nos. 3, 5 & 6 for the offence under

Section 376(2)(g) of the IPC. Hence, the present appeals by the

original accused as well as the State of Maharashtra, as observed

hereinabove.

5. Shri (Dr.) Yug Mohit Chaudhary, learned counsel has appeared

on behalf of the original accused and Shri Nishant Katneshwarkar,

learned counsel has appeared on behalf of the State of Maharashtra.

5.1 Learned counsel appearing on behalf of the original accused has

vehemently submitted that in the facts and circumstances of the case,

the courts below have materially erred in convicting the accused.

5.2 It is vehemently submitted by the learned counsel appearing on

behalf of the original accused that the incident occurred after 10:30

p.m. at night. The victims were living in a hut made of gunny bags in

the Guava Orchard. There was no light facility in the hut. Even as

per the case of the prosecution, the accused put off the light and

thereafter whatever has happened, the same was in the torchlight. It

is submitted therefore that it was very difficult for the witnesses, more 18

particularly PW1 and PW8 to identify the assailants/accused.

5.3 It is further submitted by the learned counsel appearing on

behalf of the accused that in the present case the prosecution in

support of its case has only relied upon the evidence of identification,

and it is on this evidence alone that 6 people have been sentenced to

death. It is submitted that though the charge was for rape and

murder, there is no forensic evidence corroborating the prosecution

case. It is submitted by the learned counsel appearing on behalf of

the accused that, in fact, the DNA, finger print evidence and the initial

identification made by the victim contradict the prosecution case. It is

submitted that there are no recoveries, finger print evidence, CA

evidence or DNA evidence linking the accused to the crime.

5.4 It is vehemently submitted by the learned counsel appearing on

behalf of the accused that in the present case, the prosecution has

relied upon the deposition of two eye witnesses, PW1 and PW8. It is

vehemently submitted that as such both the witnesses - PW1 & PW8

are not reliable and their deposition is not trustworthy. It is

submitted therefore both the courts below have materially erred in

relying upon or considering the deposition of PW1 & PW8, while

holding the accused guilty.

5.5 It is further submitted by the learned counsel appearing on

behalf of the accused that according to the two eye witnesses, PW1 & 19

PW8, the offence was committed by 7-8 persons. It is submitted

however that PW1, as per the deposition of PW12 - nephew of the

landlord of Guava Orchard who was the first person to reach the spot,

told him that offence was committed by four persons.

5.6 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8’s entire evidence about the incident

and the role played by the different accused persons is an omission

and/or it can be said to be an improvement. It is submitted that none

of what was stated in the deposition before the Court was stated to the

police in the various statements of the said witness that were recorded

during investigation and the first time the allegations are made after

two and a half years later during the deposition in Court. It is

submitted that when the aforesaid was specifically pointed out by the

defence before the learned Sessions Court as well as before the High

Court, both the courts below have ignored the same by observing that

the omissions/improvements/contradictions are not major which

would fatal the case of the prosecution. It is submitted that as such

the omissions/improvements/contradictions in the deposition of PW8

are major contradictions/omissions/improvements which would

destroy the case of the prosecution and which are fatal to the case of

the prosecution.

5.7 It is further submitted by the learned counsel appearing on 20

behalf of the accused that PW8 identified A2 in the court as the person

who had taken Savita outside the hut and impliedly raped her. It is

further submitted that PW8 was not able to identify him in the TIP. It

is submitted that her failure to identify him in the TIP soon after the

offence renders her identification in court many years later nugatory.

It is submitted that it is on the basis of PW8’s statement about A2

being the rapist that he has been given the death penalty by the High

Court.

5.8 It is further submitted by the learned counsel appearing on

behalf of the accused that there was no light in the hut and the

culprits had used torches. It is submitted that it would be highly

unlikely that the witnesses could have either been able to get a good

look at their faces or even remember them two months later. It is

submitted that it is required to be noted that neither PW1 nor PW8

gave details about the description of the culprits – heights, hair, facial

features, complexion, beard etc. to the police during the investigation,

yet they claim to be able to recognise/identify the accused in the TIP.

It is submitted that A1 to A5 were put up in a TIP almost 2 months

after the incident and 1 month after the arrest. It is submitted that A6

was put up in a TIP more than one year later and he too is purported

to be identified by PW1 & PW8. It is submitted that therefore the

accused could not have been convicted on the basis of their being 21

identified by PW1 & PW8 in the TIP, which were conducted after a long

time and that too when no specific description was given either by

PW1 or PW8 in the FIR and/or in their earlier statements before the

police recorded during the investigation.

5.9 It is further submitted by the learned counsel appearing on

behalf of the accused that before evidence of identification can be

relied upon, the court has to be convinced that there was sufficient

light to enable the witness to observe the features of the culprit, and

that the witness was in a fit condition to see and remember. It is

submitted that in the present case, PW1 & PW8 had fallen

unconscious during the incident; PW1 very early when the incident

took place, and PW8 a little later. They both had been severely injured

and their capacity to observe and notice the features of the assailants

would have been severely compromised.

5.10 It is further submitted by the learned counsel on behalf of the

accused that the incident occurred at night at 10:30 p.m. The hut

was made of gunny bags and its walls were made from stems and

plants. There was no door to the hut. There was no electricity meter

in the hut. It is submitted that the IO(PW20), who made the spot

panchnama, had admitted in his evidence that “there is no mention in

the panchnama as to whether there was light or not in the shed (hut)”.

5.11 It is further submitted by the learned counsel appearing on 22

behalf of the accused that though PW1 insists that the electric light

was on, he also states that the culprits were using battery torches and

were searching in torchlight. He admits that he had told the police

that the culprits had switched off the lights when they had started

assaulting the victims. It is submitted that even if it is assumed that

there was some light, the prosecution case at its highest would show

that during the incident the light bulb was burning for a few minutes

before it was turned off, and the rest of the incident took place under

torchlights carried by the culprits. It is submitted that in these

circumstances, neither PW1 nor PW8 would have been able to get a

proper look at the persons who committed the offence. According to

the learned counsel appearing on behalf of the accused, the following

facts would prove that PW1 & PW8 were not able to get a proper look

at the persons who committed the offence:

(i) neither PW1 nor PW8 were able to describe the accused to

the police or the clothes worn by them;

(ii) no identifying features were given;

(iii) during the trial, the clothes seized from the accused were

not identified by either PW1 or PW8;

(iv) though the weapons of assault were seized from the spot of

the offence, these were not shown to PW1 probably because he

would not have been able to identify them;

23 (v) even though the age of one of the appellants was 17, and 2

were around 20, PW1 and PW8 told the police that the culprits

were aged 25-30 years;

(vi) neither PW1 nor PW8 were able to ascribe specific roles to

the culprits. The allegations about the commission of the

assault were in omnibus terms. PW1 especially does not assign

any role to A2, A4, A5 and A6;

(vii) most importantly, PW8 has identified an entirely different

set of people from the photo albums shown to her soon after the

offence. Her evidence during the trial shows that even at the

point of time she was convinced that the persons she had

identified in the photographs shown to her by the magistrate,

which admittedly were of some other persons, were photographs

of the accused’ and

(viii) the aforesaid deficiencies in the testimonies of PW1 &

PW8 can only be explained by the insufficiency of light at the

time of the incident.

5.12 In so far as the identification of the accused by PW1 & PW8 is

concerned, it is vehemently submitted by the learned counsel

appearing on behalf of the accused that such an identification is not

believable on number of grounds. It is submitted that as such it can

be said to be a mistaken identity. It is submitted that PW8 had earlier 24

identified some other persons. It is submitted that on 7.6.2003m i.e.

2 days after the offence, PW8 – Vimalabai identified the photographs of

4 people from a file of notorious criminals shown to her by PW13 –

Ramesh Sonawane, Special Executive Magistrate in the hospital as

those who committed the offence. The present accused were not

among those four persons identified by PW8 from the photo album.

5.13 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8’s statement identifying 4 other people

on 7.6.2003 is the first identification made less than 2 days after the

incident and is closest to the date of incident. This identification was

made by PW8 when the images were still fresh in her mind and

memory had not faded. The subsequent identification by PW1 and

PW8 identifying the present accused occurred on 25.7.2003 which is

more than 1 ½ months after the date of incident wherein PW8 failed to

identify A2, and attributed an entirely contrary role to A6. It is

submitted that the photo identification being first in point of time and

close to the date of offence is of great significance.

5.14 It is further submitted by the learned counsel appearing on

behalf of the accused that the results of photo identification

completely contradict PW8’s identification of the accused in TIP and

the court. It is submitted that in the light of this contradiction, her

TIP identification and court identification are liable to be set aside. It 25

is further submitted, that the identification in the court is a

substantive evidence which is materially contradicted by the photo

identification and therefore identification in court cannot be relied

upon.

5.15 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8’s identification of 4 other people even

contradicts the identification made by PW1 in the TIP and court and

therefore renders the same unreliable. It is further submitted that as

per PW1’s own testimony, he lost consciousness soon after the

assailants entered the hut. It is also submitted that PW1 lost

consciousness much before PW8.

5.16 It is further submitted by the learned counsel appearing on

behalf of the accused that accounting for PW8’s earlier identification of

4 persons and subsequent identification of the present 6 accused,

PW8 has in all identified 10 people as accused whereas it is the case of

the prosecution that only 7 persons have committed the said offence.

It is submitted that due to this mistaken identification by PW8, no

reliance can be placed on PW8’s evidence of identification of the

accused. In support of his submission, he has relied upon the

decisions of this Court in the cases of Vaikuntam Chandrappa vs.

State of Andhra Pradesh, AIR 1960 SC 1340.

5.17 It is further submitted by the learned counsel appearing on 26

behalf of the accused that PW1 in his evidence in court had said that

the offence was committed by 7-8 persons. He had said the same

thing in his FIR recorded on the day of the offence i.e. on 6.6.2003.

However, before recording of the FIR, at the spot of the incident itself,

before being taken to hospital, he had told PW12 (the person who

discovered the crime) that the offence was committed by 4-5 persons.

It is submitted that this huge discrepancy in the number of assailants

casts a serious doubt over the reliability of the evidence of PW1 and

PW8 that this offence was committed by 7-8 persons. Their

subsequent evidence in court about the number of assailants and role

played by each of the accused is clearly an improvement and

contradicts what they had said earlier.

5.18 It is further submitted by the learned counsel appearing on

behalf of the accused that similarly in her testimony in Court, PW8

had said that the offence was committed by 7 persons. In her first

statement to the police, she had said that the offence was committed

by 7-8 persons. It is submitted that the likelihood of mistaken

identification by PW1 and PW8 of the accused is strengthened by the

following facts:

(i) PW1 has repeatedly stated that the culprits spoke with

them in Hindi. According to him, they were also speaking

amongst themselves in Hindi. PW8 has confirmed this. The 27

victims are all Marathi speakers. According to the police

investigation, the accused-appellants too hail from

Maharashtra and are Marathi speakers. If the

accused-appellants were to speak with the victims they

would have spoken in Marathi not in Hindi. The fact that

the culprits spoke in Hindi clearly indicates that they were

not Marathi speakers. This also points to the false

implication of the accused-appellants in this offence.

5.19 It is further submitted by the learned counsel appearing on

behalf of the accused that as such PW8’s entire testimony in the court

has the omission and/or improvement. It is submitted that prior to

her deposition in court, two statements dated 6.6.2003 and 7.6.2003

were recorded by the police and the magistrate respectively. It is

submitted that what is stated by PW8 in the court was not stated by

her in her earlier statements, more particularly with respect to how

the incident had taken place. It is submitted that this evidence has

come for the first time through her deposition in court by way of an

improvement amounting to a contradiction. It is submitted that PW8

in her earlier statements, recorded during the investigation, has

neither given any details of the assault or of the roles played by

different persons. It is submitted that even in the TIP, she did not

attribute any role to the persons she identified, and neither did she do 28

so after the TIP in any statement recorded by the police. It is

submitted that for the first time PW8 gave any details about the

incident for ascribed role to the accused persons, two and a half years

later in the court and never before that. It is submitted therefore that

her failure to give any information or statement to the police and the

two magistrates either about the events occurring during the incident

or the role played by the different persons renders her evidence on

this point unreliable.

5.20 It is further submitted by the learned counsel appearing on

behalf of the accused that in fact PW8 suppressed the material fact

from the court when her first deposition was recorded by the learned

Sessions Court. It is submitted that PW8 suppressed the material fact

from the Court that in fact on 7.6.2003 she was shown the

photographs before the executive magistrate and that she identified

four persons who are other than the accused who came to be tried. It

is submitted that when she was further confronted with the same, in

her further cross-examination, which was recorded pursuant to order

dated 14.06.2006 passed by the High Court while hearing the

Confirmation Case, she turned around and stated that she identified

four persons having committed the offence, who were out of the six

persons she identified in TIP and before the Court. It is submitted

that the same is a material contradiction and it was a case of material 29

suppression and therefore PW8’s testimony is not reliable and

trustworthy and therefore it would be unsafe to rely upon the

deposition of such witness as PW8 and to convict the accused relying

upon the deposition of such a witness.

5.21 In so far as A2 is concerned, it is further submitted by the

learned counsel appearing on behalf of the accused that though PW8

claimed that A2 had taken Savita out of the hut and raped her and

brought her back in a naked condition, she was unable to identify A2

in TIP. It is submitted that her identification in court of A2,

unsupported by a previous identification in the TIP cannot be

accepted, especially given the light conditions at that time and the

fact that she herself became unconscious during the proceedings. It

is submitted that there is no recovery from A2. PW8 is the only one

who said that A2 was involved in Savita’s rape. It is submitted that it

is on the basis of this statement, uncorroborated by a previous TIP,

that A2 has been singled out and given the death sentence. It is

submitted that as such the learned Sessions Court erred in holding

that PW8 identified all the accused in the TIP and identified A6 in the

second TIP. It is submitted that it is a clear error as PW8 did not

identify A2 in the first TIP.

5.22 In so far as the identification of and role attributed to A6 is

concerned, It is further submitted by the learned counsel appearing 30

on behalf of the accused that A6 was put up for identification in the

second TIP conducted by PW13 on 7.10.2004. It is submitted that

only PW1 deposes to having identified A6 in the second TIP. PW8

does not speak of attending any TIP where she identified A6. It is

submitted that PW13’s statement that PW8 identified A6 in the

second TIP is hearsay and inadmissible as such because PW8 does

not mention anything about the second TIP. She says that she was

called for a TIP where she identified four persons and that these four

persons were present in court out of the six accused persons.

5.23 It is further submitted by the learned counsel appearing on

behalf of the accused that PW13, the Special Executive Magistrate

conducted the TI parade for A6. It is submitted that he is the same

magistrate who earlier recorded PW8’s statement on 7.6.2003 where

she identified 4 other persons. It is submitted therefore that he had

therefore already participated in the investigation prior to this parade.

It is submitted that PW13, the executive magistrate, does not mention

any precautions taken by him to prevent the witnesses seeing the

accused prior to the parade. It is submitted that on the contrary he

admits that the parade was held in an open space. It is submitted

that TI parade should have been held in a closed room to prevent the

witnesses who are outside from seeing the accused being brought to

the parade or his place in the line up. It is submitted that there is 31

also no statement that the dummies resembled the accused persons.

It is submitted that as such neither PW1 nor PW8 who claimed to be

the eye witnesses gave any description with respect to the accused or

the persons who committed the offence, and therefore, on what basis

dummies were selected is questionable. It is submitted that as such

the executive magistrate was required to be selected the dummies

himself but he admits that dummies were selected by the police.

5.24 It is further submitted by the learned counsel appearing on

behalf of the accused that as per PW13’s evidence, PW8 identified A6

as the person who had assaulted her, dragged her daughter out of the

hut and raped her. However, in the absence of PW8 having deposed

anything about the second TIP or about having identified A6 in any

TIP, this evidence of PW13 is inadmissible as hearsay.

5.25 It is further submitted by the learned counsel appearing on

behalf of the accused that PW13’s statement attributed to PW8 that

A6 had dragged Savita outside the hut is contradicted by her oral

evidence in court where she says that A1, A2 and A4 dragged Savita

outside the hut. The persons who had dragged Savita outside the hut

were obviously the same ones who had raped her. In her evidence in

court PW8 was quite clear that it was three persons who done this,

and she named A1, A2 and A4 as those three. In court, she does not

attribute this role to A6. It was on this basis that the High Court 32

upheld their death sentence and distinguished their case from the

others whose sentences were commuted. Her statement during the

TIP contradicts her statement in court and gives an inconsistent

account of the events.

5.26 It is further submitted by the learned counsel appearing on

behalf of the accused that if the ‘her’ refers to PW8 herself, then this

role attributed by PW8 to A6 is inconsistent with the role of PW1

attributes to A6 when he identifies him in the parade, which is that

A6 had dragged Savita outside the hut. As mentioned earlier, the

persons who dragged Savita outside the hut were the ones who raped

her.

5.27 It is further submitted by the learned counsel appearing on

behalf of the accused that in court PW1 does not mention Savita

being taken outside the hut at all. In fact, his deposition makes it

clear that he had fainted and did not witness any assault on Savita.

5.28 It is further submitted by the learned counsel appearing on

behalf of the accused that even in the present case the delay in test

identification parade is fatal to the case of the prosecution. It is

submitted that in the present case, the offence occurred on 5.6.2003,

the date of arrest of the accused is 23rd and 27th June, 2003, and the

TIP was held on 25.7.2003, i.e., 50 days from the date of the offence

and 33 days after the arrest of A1 and A2. It is submitted that there 33

is no explanation forthcoming from the prosecution for the delay in

conducting TIP. According to the learned counsel, the most likely

explanation is that this period was used by the police to show

photographs to PW1 and PW8 so as to make them memorize the

feature of the accused.

5.29 It is further submitted by the learned counsel appearing on

behalf of the accused that in so far as the TIP in respect of A6 is

concerned, the TIP is vitiated on account of delay as A6 was arrested

more than one year later and the TIP for A6 was conducted more than

one year later.

5.30 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8 has admitted that she had come twice

or thrice to court prior to her deposition. It is submitted that during

these visits, she would have definitely seen the accused persons in

the dock and therefore her deposition in court does not have much

significance.

5.31 It is further submitted by the learned counsel appearing on

behalf of the accused that even otherwise no reliance can be placed

upon the deposition of PW8. It is submitted that first of all PW8 does

not say anything in her first deposition with respect to her statement

recorded by the executive magistrate on 7.6.2003, and that she was

shown the photographs from the album and she having identified four 34

persons having committed the offence were other than six accused

persons who were tried. It is submitted that it is important to note

that PW8 denied in her first deposition that the photographs of the

accused were shown to her by the police. It is clear from the evidence

that when PW8 denied the suggestion that she was not shown the

photographs, she was not telling the truth. It is submitted that when

she was called for further cross-examination, pursuant to the order

passed by the High Court, she then admitted that , (i) police had

shown 4 photographs of the accused persons, and that she herself

told that those were the same accused persons of the incident; and (ii)

that when my statement was recorded by the magistrate, the persons

who I had identified as accused persons were some other persons

other than the present accused. It is therefore submitted that the

aforesaid is just contrary to what the executive magistrate has

recorded in the first statement of PW8 on 7.6.2003.

5.32 It is further submitted by the learned counsel appearing on

behalf of the accused that DNA or Forensic evidence will not support

the case of the prosecution and/or linked the accused to the crime. It

is submitted that though the charge is of rape and murder, there is

no forensic evidence corroborating the prosecution case.

5.33 It is further submitted by the learned counsel appearing on

behalf of the accused that the case of the prosecution is that the 35

accused-appellants were consuming liquor at the spot from liquor

bottles and from a handi. Empty liquor bottles, a handi and some

glasses were seized from the scene of crime. It is submitted that there

is no DNA or finger prints on the glass and liquor bottles to connect

the appellants with the crime. The IO, PW20 admitted that the finger

print report did not implicate the accused. It is important to note

that the appellants’ DNA samples were collected during the

investigation, as admitted by the IO, PW18 and were sent for DNA

analysis, but the prosecution never presented the report to the court

for the obvious reason that it would have exonerated the appellants.

5.34 It is further submitted that no public hair, DNA, semen or blood

of the appellants was found on any of the victims. Samples were

collected from the appellants and sent for analysis but the results did

not incriminate the appellants. It is submitted that the police seized

14 slippers from the scene of the crime, but the same could not be

linked to the appellants by either matching them or making the

accused were them. No one identified those slippers as being worn by

the appellants or belonging to the appellants.

5.35 It is further submitted by the learned counsel appearing on

behalf of the accused - appellants that clothes were seized from the

appellants when they were arrested, as well as from the homes during

the house searches, but nothing was found to connect the accused 36

with the said crime. It is submitted that footprints were found

around the house the next morning when the bodies were discovered,

but those finger prints were not matched to the appellants. It is

submitted that even the blood found in the nail clippings of Savita,

was not connected to the appellants.

5.36 It is further submitted by the learned counsel appearing on

behalf of the accused that as such there is no recovery of the cash

and/or any of the gold ornaments alleged to have been stolen/looted

from the place. It is submitted that as per the prosecution case,

Rs.3,000/- in cash were taken from Trambak; a mangalsutra, dorley

and ear tops were taken from PW8; anklets and ear tops were taken

from Savita; and a watch and chain were taken from PW1 by the

culprits. It is submitted that no stolen property was found or

recovered from any of the accused.

5.37 It is further submitted by the learned counsel appearing on

behalf of the accused that a while metal chain was allegedly seized

during the house search of Bhojubai Appa Shinde, the mother of A5

on 26.6.2003. Her signature is also not there on the panchnama.

Moreover, the panchnama does not state that the seized property was

sealed. It is submitted that the chain is described as “one white

metal chain with 30 links, middle link is broken and tied with a

string. Value 0”. It is submitted that the chain had no special 37

markings on it and was of a mass-produced type that is freely

available. The prosecution claimed that this belonged to PW1. PW1

himself admitted that he had not given any description of the chain to

the police. A white metal chain is not such an item that could only be

possessed by PW1. It is submitted that apart from this chain,

nothing was seized or recovered from any of the accused in this case.

It is vehemently submitted that had this crime been committed by the

accused, surely all the stolen property would have been recovered.

The seizure of a commonly available silver chain without any

distinctive markings is too feeble a link to be held against the

accused.

5.38 It is further submitted by the learned counsel appearing on

behalf of the accused that no Magistrate/Special Executive

Magistrate/Tehsilder has been examined regarding conducting of the

TIP for the silver chain. No witness has been examined who was

present when the chain was identified by PW1. PW14 is the panch

before whom the packet containing the chain was opened and then

resealed on the very day that PW1 claims he identified it, but PW14 is

not a witness to the identification and he does not depose about it.

5.39 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8 does not identify the chain. It is not

shown to her during her evidence. In Court, PW8 stated “Muddemal 38

article nos. 72 and 40 are the ornaments of Savita”. In inquest

panchnama dated 6.6.2003 (Exhibit 27) conducted over Savita’s dead

body, the corpse is described as “on her neck there is a white pearl

necklace, and on each of her hands there are 2-2 white metal

bangles”. These articles, among others, have been seized vide

panchnama (Exhibit 42 dated 6.6.2003). It is submitted that it is

possible that some of these ornaments seized from Savita’s person

have been shown to and identified by PW8 during her testimony.

5.40 It is further submitted by the learned counsel appearing on

behalf of the accused that in the absence of any recovery or seizure of

any kind that connects the appellants to the crime and the

prosecution has not been able to adduce any evidence corroborating

the identification by PW1 and PW8, the conviction of the accused

cannot be sustained based on identification alone. In support of his

submission, learned counsel has heavily relied upon the decision of

this Court in the case of Iqbal vs. State of Uttar Pradesh (2015) 6 SCC

623.

5.41 It is further submitted by the learned counsel appearing on

behalf of the accused that insofar as conviction of the accused under

Section 376(2)(g) of the IPC is concerned, the same is based on no

evidence. It is submitted that prosecution case is that according to

the evidence of PW8, the A1, A2 and A4 dragged the deceased Savita 39

out of the hut and brought her back naked and bleeding by which

time she was dead. It is submitted that as per the CA report dated

27.11.2003, no semen was found in the pubic hair, vaginal or uterus

swab of deceased Savita. It is submitted that the blood found in the

nail clippings of the deceased Savita matched with her own blood

group and it could not be proven that the blood group belonged to the

accused.

5.42 It is further submitted by the learned counsel appearing on

behalf of the accused that PW8 on whose testimony the prosecution is

relying upon to convict the accused under Section 376(2)(g) of the IPC

failed to identify A2 in the TIP conducted on 25.7.2003 and identified

A2 for the first time in court. It is submitted that in the absence of

any previous identification of A2, it is extremely dangerous to convict

A2 under section 376(2)(g) of the IPC, solely on the basis of

identification in court by PW8.

5.43 It is further submitted by the learned counsel appearing on

behalf of the accused that while convicting the accused under Section

376(2)(g) of the IPC, the High Court considered the failure of the

accused to explain their injuries as an incriminating circumstance

against them. It is submitted that mere failure of the accused to

explain injuries cannot be held against them if the nature of the

injuries are such that they can be caused due to other events. In 40

support of his submission, learned counsel for the accused has

heavily relied upon the decision of this Court in the case of Ram

Sunder Sen vs. Narender, (2016) 15 SCC 440.

5.44 It is further submitted by the learned counsel appearing on

behalf of the accused that one of the reasons the High Court has

convicted the accused under Section 376(2)(g) of the IPC is the

presence of injury marks on the accused. The High Court has held

that deceased Savita caused these injuries on the accused as a result

of resistance. It is submitted that it has come in the evidence of

PW16-Dr. Shimpi, who examined A4 that the injuries sustained by A4

could have been caused by labour or agricultural work and the said

injuries could be older than three weeks, i.e., before the date of the

offence. It is further submitted by the learned counsel appearing on

behalf of the accused that even from the arrest memo, it can be seen

that and even otherwise the accused are agriculturist labourer and

therefore such minor injuries were possible while doing the labour

work or agricultural work. It is submitted that therefore

non-explanation of the said injuries by the accused in their 313

statement could not have been held to be an incriminating

circumstance against the accused. It is submitted therefore that the

High Court has committed a grave error in considering the above

circumstance against the accused and/or drawing an adverse 41

inference.

5.45 It is further submitted by the learned counsel appearing on

behalf of the accused that PW24-Dr. Vilas Appasaheb Patil examined

A1 & A2 and stated that the injuries found on them were possible if a

person tried to resist another person. It is submitted that merely

because the injuries are possible on account of resistance does not

mean that the injuries can be considered as conclusively to have been

caused during commission of rape. It is submitted that such injuries

do not link the present accused with the rape of Savita.

5.46 It is further submitted by the learned counsel appearing on

behalf of the accused that even the investigation was not fair and the

prosecution suppressed the material facts before the Court. It is

submitted by the learned counsel that firstly the prosecution

suppressed that on 7.6.2003 the statement/dying declaration of PW8

was recorded aby the executive magistrate and that PW8 was shown

the photographs from the album and that she identified 4 persons

having committed the offence, who were not the accused who came to

be tried. It is submitted by the learned counsel that despite PW8

identified the 4 persons having committed the offence, neither they

were arrested nor there was any further investigation with respect to

those four persons, who were identified by PW8. It is further

submitted, that even the executive magistrate, who even subsequently 42

conducted the TI parade on 25.7.2003 did not say anything in his

deposition. It is submitted by the learned counsel that therefore the

prosecution has failed to perform its duty insofar as the fair

investigation is concerned. It is submitted that the duty of the

prosecution is not to get the conviction of some persons, but it is the

duty of the prosecution to see that the real culprits are not scot free

and the innocent persons are not held guilty. It is submitted that the

prosecution owes an obligation to be fair and just. It is submitted by

the learned counsel appearing on behalf of the accused that it is the

duty of the prosecution to ensure that all material facts are brought

on record so that there might not be any miscarriage of justice. It is

submitted that the prosecution is not expected to show a thirst to

reach the case in the conviction of the accused somehow or the other

irrespective of the true facts involved in the case. It is submitted that

the expected attitude of the prosecution must be couched in fairness

not only to the court, but to the accused as well. It is submitted that

even it was the duty of the prosecution to winch it to the fore and

make it available to the accused any material which may even help

the accused. It is submitted that in the present case, it appears that

the prosecution/investigating officer/the executive magistrate

deliberately withheld/suppressed the aforesaid material facts from

the court. It is submitted that if the investigation would have been 43

conducted even with respect to those four persons who were identified

by PW8, in that case the result would have been different. It is

submitted that if the fact that PW8 in her statement before the

executive magistrate recorded on 7.6.2003 identified four persons

who committed the offence with names and they were other than the

present accused, would have come on record, in that case, it would

have gone against the prosecution case and more particularly the

case on behalf of PW1 & PW8 that there were 7-8 persons who

committed the offence. It is submitted that if the aforesaid four

persons would have been added, in that case, the accused would have

been more than 12 and therefore it would have fatal to the case of the

prosecution, and therefore the prosecution/investigating officer had

deliberately and wilfully suppressed the aforesaid material fact.

5.47 It is further submitted by the learned counsel that in fact all the

accused persons were belonging to nomadic tribes, and in fact, they

were arrested by transfer warrant and were forcefully involved in the

case, that too after a period one month and only with a view to show

that the police has solved the case. It is submitted that otherwise

there was no reason to arrest the accused persons by way of transfer

warrant, when neither PW1 nor PW8 gave any description of the

persons, who committed the offence.

5.48 Making the above submissions, it is prayed to allow the appeals 44

preferred by the accused and acquit them for the offences for which

they are convicted.

5.49 Shri (Dr.) Yug Mohit Chaudhary, learned counsel appearing for

the accused has further submitted that in view of the above facts and

circumstances of the case, the accused are not only to be acquitted,

but as they suffered a lot and they are in jail since last 16 years and

for no fault of them they are languished in the jail since last 16 years

and their valuable years have gone in the jail, all of them are entitled

to a reasonable compensation. It is submitted that in fact out of the

six accused who were convicted, one of the accused was a juvenile.

Till the year 2012 and till he was declared a juvenile and thereafter

released, he was under a constant trauma which affected his health,

physical as well as mental. In support of the above, he has relied

upon a certificate of one Psychiatrist Doctor, Dr. Ashit Sheth. It is

further submitted that even other accused who are in jail since last

16 years were also under trauma and under the hanging sword on

them and the threat of the death sentence and therefore they

remained under constant stress which are affecting their health and

life. It is submitted therefore that this is a fit case to exercise the

powers under Article 142 of the Constitution of India to award a

reasonable compensation.

6. All these appeals preferred by the accused are vehemently 45

opposed by Shri Nishant Katneshwarkar, learned standing counsel

for the State of Maharashtra.

6.1 It is submitted by the learned counsel appearing on behalf of the

State of Maharashtra that in the present case there are concurrent

findings recorded by the learned Sessions Court as well as the High

Court holding them guilty for the offences punishable under Sections

395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read

with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. It

is submitted that findings recorded by the learned Sessions Court,

affirmed by the High Court, are on appreciation of evidence and

therefore the same are not required to be interfered with by this

Court.

6.2 It is further submitted by the learned counsel for the State of

Maharashtra that in the present case the prosecution has been

successful in proving the case against all the accused persons by

leading cogent evidence, both oral as well as documentary. It is

submitted that in the present case both PW1 & PW8 who are the eye

witnesses and who were present at the time of the incident have fully

supported the case of the prosecution.

6.3 It is further submitted by the learned counsel for the State of

Maharashtra that as such all the accused persons have been

identified by PW1 & PW8 in the TIP/before the Court. It is submitted 46

that therefore both the learned Sessions Court as well as the High

Court have rightly held the accused guilty, relying upon the

deposition of PW1 & PW8 – injured eye witnesses.

6.4 Now insofar as the submission on behalf of the accused with

respect to omissions/improvements/contradictions are concerned, it

is submitted that as rightly observed by the High Court such

omissions/improvements/contradictions are minor and are not as a

fatal to the case of the prosecution as a whole. It is submitted

therefore that the High Court has rightly ignored such minor

contradictions/omissions/improvements, while appreciating the

deposition of PW1 & PW8.

6.5 It is further submitted by the learned counsel appearing on

behalf of the State that so far as non-disclosure of the factum of

recording the statement of PW8 on 7.6.2003 by the executive

magistrate and she having identified four persons from the

photographs is concerned, it is submitted that as such the said

omission will not be fatal to the case of the prosecution as PW1 &

PW8 have specifically identified all the accused persons either in the

TIP and/or before the Court. It is submitted that merely because

some other four persons who might have been identified by PW8

might not have been arrested and/or there was no further

investigation qua them, the said benefit cannot be given to the 47

accused in the present case as all the accused persons were identified

by PW1 & PW8.

6.6 It is further submitted by the learned counsel appearing on

behalf of the State that in the present case one of the articles stolen

from the place of the incident was found from the house of the one of

the accused and therefore to that extent recovery was made and

therefore merely because other articles looted were not found, the

recovery of one of the articles cannot be ignored.

6.7 It is further submitted that even some of the accused failed to

explain the injuries found on their bodies in their statement under

Section 313 of the Code and therefore an adverse inference has

rightly been drawn against them and they are rightly convicted.

6.8 It is further submitted by the learned counsel appearing for the

State that even the prosecution has been successful in proving that

Savita was subjected to rape and it is established and proved by

leaving the medical evidence. It is submitted therefore that factum of

the rape on the deceased Savita has been established and proved. It

is submitted that even the prosecution has been successful in proving

the rape on PW8 also.

6.9 It is submitted by the learned counsel that all the six accused

have committed a very serious offence and have committed the

murder of 5 persons and two ladies were raped and the entire family 48

was finished, their conviction is required to be upheld and all the

accused are required to be sentenced to death penalty. Therefore, it

is prayed to dismiss the appeals preferred by the accused and to allow

the appeals preferred by the State and to restore the death penalty so

far as accused nos. 3, 5 & 6 are concerned.

7. We have heard the learned counsel appearing on behalf of the

respective parties at great length.

7.1 At the outset, it is required to be noted that in the present

appeals, respective accused were charged for the offences punishable

under Sections 395, 302 read with 34 of the IPC, Section 376 (2)(g),

Section 307 read with Section 34 of the IPC, Sections 396, 397 and

398 of the IPC. The learned Sessions Court convicted the accused

under Sections 395, 302 read with Section 34, Section 376(2)(g),

Section 307 read with Section 34, Sections 396, 397 read with

Section 395 and Section 398 of the IPC. Over and above the other

sentences, all the accused were awarded the death penalty by the

learned Sessions Court. The High Court confirmed and conviction

and sentence imposed by the learned Sessions Court so far as A1, A2

and A4 are concerned, and even confirmed the death penalty. While

maintaining the conviction for the offences punishable under Sections

302 read with 34, 307 read with 34, 397 read with 395 and 396 of the

IPC, the High Court acquitted A3, A5 and A6 for the offences 49

punishable under Section 376(2)(g) of the IPC and commuted the

death sentence to life imprisonment.

8. Feeling aggrieved and dissatisfied with the impugned common

judgment and order passed by the High Court, both the accused as

well as the State of Maharashtra have preferred the present appeals.

The accused are before this Court challenging their conviction and

sentence imposed by the High Court, and the State of Maharashtra is

aggrieved by the impugned judgment and order passed by the High

Court insofar as acquitting the original accused nos. A3, A5 and A6

for the offences under Section 376(2)(g) of the IPC and commuting the

death sentence to life imprisonment.

9. We have perused and gone through in depth the impugned

judgment and order passed by the High Court as well as the

judgment and order passed by the learned Sessions Court. We have

gone through and considered in detail the evidence on record, both

oral as well as documentary.

9.1 As observed hereinabove, and even as per the case of the

prosecution, the incident occurred after 10:30 p.m. at night. The

victims were living in a hut made by gunny bags in guava orchard.

As per the case of the prosecution, the accused committed the

murder, robbery as well as the rape of one lady, named Savita and

PW8 – Vimalabai. As per the case of the prosecution, the accused 50

stripped the ornaments from the wife and daughter of Trambak, and

also took Rs.3,000/- from him. As per the case of the prosecution, A2

raped Savita and took her outside the hut and thereafter she was

killed. As per the case of the prosecution, one Trambak was living in

the hut in the guava orchard with his family (wife, three sons and one

daughter). In the unfortunate incident, Trambak, his daughter

Savita, his nephew Bharat, his sons Sandeep and Bhurya died. PW1

& PW8 – son Manoj and Trambak’s wife Vimalabai survived.

Therefore, according to the prosecution case, PW1 & PW8 were the

eye witnesses to the whole incident. Therefore, as such, the case

rests on the deposition of these two eye witnesses PW1 & PW8, and

they identified the accused either in the TI parade and/or before the

Court. Considering the entire material on record, it appears that the

prosecution in support of its case has solely relied on the evidence of

identification. At this stage, it is required to be noted that though the

charge is of rape and murder, there is no forensic evidence

corroborating the prosecution case. Though, as per the case of the

prosecution, the accused stripped the ornaments from the wife and

daughter of Trambak and took Rs.3,000/- from Trambak, there is no

recovery except one broken white metal chain, which was allegedly

seized during the house search of Bhojubai Appa Shinde, the mother

of A5 on 26.06.2003. The aforesaid in detail shall be discussed 51

hereinbelow.

9.2 As observed hereinabove, the case rests on the deposition of

PW1 & PW8 and they identified the accused in the TI parade as well

as before the Court. Other than the evidence of PW1 & PW8, there is

no other evidence to link the accused to the offence. Looking to the

nature of the crime committed in which five persons were killed

brutally and one was also raped, and the serious consequence it may

have for those convicted, it is necessary that the evidence should be

of a very high quality and satisfy the higher burden of proof.

Therefore, we have minutely gone through and considered the

deposition of PW1 & PW8. We have also minutely considered the

deposition of other witnesses, more particularly the deposition of

PW13 – special executive magistrate – Ramesh Sonawane, PW12 –

Vishnu Hagwane, nephew of the landlord, who was the first person to

reach the spot and the deposition of the investigating officer, PW18 –

ACP Bhaskarrao Dhus.

9.3 As per the case of the prosecution, which has been believed by

the learned Sessions Court as well as the High Court, PW1 & PW8

identified the accused persons in the TI parade as well as before the

Court. At this stage, it is required to be noted that PW8 identified A2

in the Court as the person who had taken Savita outside the hut, and

raped her. However, she was not able to identify him in the TI 52

parade. The first TI parade was conducted on 25.07.2003. The

offence occurred on 5.6.2003; accused nos. 1 to 5 were arrested on

23rd and 27th June, 2003 and the TI parade was held on 25.07.2003,

i.e., 50 days from the date of offence and 33 days after the arrest of

A1 & A2. It is required to be noted that the accused persons were

arrested on transfer warrant. None of the eye witnesses, i.e., PW1 &

PW8 were able to give any particulars/description of the accused.

Even A6 was arrested more than one year, and the TI parade for A6

was conducted more than one year later. There is no explanation

forthcoming from the prosecution for the delay in conducting the TI

parade. Therefore, the identification of the accused by PW1 & PW8,

which is the sole basis for convicting the accused and awarding the

death penalty, is required to be considered very minutely.

9.4 There is very serious doubt whether at the time of incident, there

was sufficient light in the hut. Even, according to PW1 & PW8, the

culprits had used torches. The incident had occurred at 10:30 p.m.

The hut was made of gunny bags and its walls were made from stems

and plants. There was no door to the hut. There is no mention in the

panchnama as to whether there was light or not in the shed (hut).

Though, PW1 has stated that the electric light was on, he also states

that the culprits were using battery torches and were searching in

torchlight. According to him, he told the police that the culprits had 53

switched off the lights when they had started assaulting the victims.

Even if it is assumed that there was some light initially, and the case

of the prosecution is believed that during the incident the light bulb

was burning for a few minutes before it was turned off, the rest of the

incident took place under torchlights carried by the culprits. Under

the circumstances, neither PW1 nor PW8 would have been able to get

a proper look at the persons who committed the offence. It is

required to be considered coupled with the fact that neither PW1 nor

PW8 were able to describe the accused to the police or the clothes

worn by them. No identifying features were given. In the trial, the

clothes seized from the accused were not identified by either PW1 or

PW8. Even the age of one of the accused was 17 and two other

accused were around 20 years, PW1 & PW8 told the police that the

culprits were aged 25-30 years. Neither PW1 nor PW8 were able to

ascribe the specific roles to the culprits. Even, according to the

prosecution, PW1 & PW8 had fallen unconscious during the incident.

Therefore, the said witnesses were not in a fit condition to see and

remember and that is why neither PW1 nor PW8 gave details about

the description of the culprits – heights, hair, facial features,

complexion, beard, etc. to the police during the investigation. Even

PW8’s entire evidence about the incident and the role played by

different accused persons is an omission/improvement. Whatever is 54

stated by PW8 in her deposition, the same is stated for the first time

in her deposition, which was recorded two and a half years later.

Whatever is alleged in her deposition in the Court, which was

recorded two and a half years later, was not stated to the

police/special executive magistrate in her statements that were

recorded during the investigation. When the same was pointed out to

the courts below, the courts below, more particularly the High Court

has not accepted the case of the defence by observing that the

omissions are minor omissions. On scanning the entire evidence of

PW8, we do not accept the observation of the High Court that the

omissions are minor omissions. On considering the deposition of

PW8 about the incident and the role alleged to have been played by

different accused persons, we are of the opinion that the omissions

are major omissions and improvements which are fatal to the case of

the prosecution and in any case, it creates reasonable doubt on the

trustworthiness and the reliability of PW8.

9.5 Even the identification of the accused by PW1 in the TI parade

also creates a serious doubt, apart from the fact that there was a

delay in conducting the TI parade, and that there is no explanation by

the prosecution in conducting the TI parade belatedly. As observed

hereinabove, and for the reasons stated above, it is very doubtful

whether PW1 & PW8 could have properly seen the accused. As 55

observed hereinabove, there was no specific description of the

accused given by the said two witnesses. There are contradictions

with respect to the age of some of the accused. PW1 has categorically

stated that the culprits spoke with him in Hindi. According to him,

they were also speaking amongst themselves in Hindi. PW8 has also

confirmed the same. All the victims are Marathi speakers. The

accused also hail from Maharashtra and are Marathi speakers.

Therefore, if the accused were to speak with the victims, they would

have spoken in Marathi and not in Hindi. Therefore, there is a

possibility that the culprits who were speaking in Hindi were not

Marathi speakers and they might be outsiders – non-Marathis.

9.6 As observed hereinabove, neither PW1 nor PW8 gave any

description to the I.O. and/or to the Sub-Divisional Magistrate who

conducted the TI parade. Therefore, on what basis the other dummy

persons were brought and were present in TI parade is not

forthcoming from the prosecution. There is also no statement that

the dummies resembled the accused persons. Though, the special

executive magistrate who had conducted the TI parade is required to

select the dummy persons, in the present case and even admitted by

PW13 – special executive magistrate that dummy persons were

selected by the police. Considering the aforesaid facts and

circumstances, we are of the opinion that it is not safe to convict the 56

accused solely on the basis of their identification by PW1 & PW8 in

the TI parade and/or before the Court.

9.7 As observed hereinabove, except the deposition of PW1 & PW8

and they identified the accused in the TI parade and/or before the

Court (which for the reasons stated hereinabove, the conviction

cannot rest on such identification), there is no other evidence, either

scientific and/or other, corroborating the prosecution case. There is

no forensic evidence corroborating the prosecution case. In fact, the

DNA, finger prints evidence and CA evidence do not support the case

of the prosecution, and/or link the accused to the crime. The case of

the prosecution is that the accused had some liquor at the spot from

liquor bottles and from a handi. Empty liquor bottles, a handi and

some glasses were seized from the scene of crime. There is no DNA or

finger prints on the glass and liquor bottles to connect the accused

with the crime. In fact, PW20 – IO has admitted that the finger print

report did not implicate the accused. At this stage, it is required to be

noted that the accused’ DNA samples were collected during the

investigation and in fact were sent for DNA analysis, but the

prosecution never presented the report to the Court. No pubic hair,

DNA, semen or blood of the accused were found on any of the victims.

It appears that the samples were collected from the accused and were

sent for analysis, but the result did not incriminate the accused. 57

9.8 As per the case of the prosecution, Rs.3,000/- in cash were

taken from Trambak, a mangalsutra, dorley and ear tops were taken

from PW8; anklets and ear tops were taken from Savita; and a watch

and chain were taken from PW1 by the culprits. However, no stolen

property has been found or recovered from any of the accused except

a broken white metal chain which was seized during the house search

of the mother of A5 on 26.06.2003. However, her signature is not

there on the panchnama. The panchnama also does not state that

the seized property was sealed. The chain was described as “one

white metal chain with 30 links, middle link is broken and tied with a

string. The value of the same was stated to be zero”. The chain had

no special markings on it and the same is freely available. Though

the prosecution claimed that the said chain belongs to PW1, PW1 had

admitted that he has not given any description of the chain to the

police. Barring this chain, nothing was seized or recovered from any

of the accused. Therefore, the seizure of a commonly available white

metal silver chain without any distinctive markings would be a weak

piece of evidence to hold the accused guilty.

9.9 Apart from the above, on considering the entire deposition of

PW8, we are of the opinion that PW8 who claims to be an eye witness,

she is not a reliable and trustworthiness witness. Her entire

testimony in Court is full of material 58

omissions/contradictions/improvements. Prior to her deposition in

Court, her two statements dated 6.6.2003 and 7.6.2003 were

recorded by the police and the magistrate respectively. The entire

description of incident given by PW8 in the Court has not been stated

by her in her earlier statements. This evidence has come for the first

time during the deposition in Court by way of an improvement. In

her earlier statements, PW8 has never given any details of the assault

or the roles played by different persons during the incident. Even in

the TI parade, she did not attribute any role to the persons she

identified. The first time PW8 gave any details about the incident or

ascribed the roles to the accused persons was two and a half years

later in the Court and never before that. Her failure to give any

statement to the police and the two magistrates either about the

events occurring during the incident or the roles played by different

persons render her evidence unreliable. When in her

cross-examination, she was confronted with such

omissions/improvements, she has taken only one thing that she told

this to the police but she does not know why the police did not record

the same. However, the same is not corroborated by any other

evidence, more particularly the deposition of the IO and/or the

magistrates. Therefore, it is unsafe to rely upon the deposition of

PW8 and to convict the accused. It is also required to be noted that 59

even according to PW8, she was subjected to rape, however, the

prosecution has miserably failed to prove the rape on her by leading

cogent evidence, more particularly the forensic evidence. Therefore,

to that extent also she is not reliable.

9.10 There is one another reason why PW8 is not to be believed on

the ground that she is unreliable and not trustworthy. It is required

to be noted that on 7.6.2003, i.e, two days after the incident, her

statement was recorded by PW13 – Ramesh Sonawane – Special

Executive Magistrate in the hospital. PW13 was called by the

investigating officer to record her dying declaration. It has come on

record that her dying declaration/statement was recorded on

7.6.2003, i.e., two days after the incident, PW8 identified photographs

of four people from album of notorious criminals as those who

committed the offence. Admittedly, the present accused are not

amongst those four persons identified by PW8 from the photo album.

It is required to be noted that in her deposition she had not stated

anything about her statement recorded by PW13 on 7.6.2003 and she

identified the photographs of four people from album of notorious

criminals shown to her. Therefore, to that extent, there is also a

suppression of material fact by PW8. In fact, the aforesaid was

withheld by the prosecution during the trial. Only during hearing of

the appeal before the High Court, it came to the light and therefore 60

pursuant to the order passed by the High Court she was recalled and

when she was confronted with the above, very surprisingly, she stated

that four persons who were identified by her were the same persons

out of the present accused. However, such a stand is just contrary to

the deposition of PW13 – special executive magistrate. What is stated

by her in her deposition when she was recalled pursuant to the order

passed by the High Court is not corroborated by other evidence. On

the contrary, PW13 – special executive magistrate in his further

evidence has categorically stated as under:

“It is true that I was called on 7.6.03 by P.I of Crime Branch to civil hospital Nashik to record the dying declaration of Vimalbai Trambak Satote. Accordinglhy, I have gone to civil hospital Nashik. After reaching to civil hospital, I had taken the letter of PI Crime Branch. I am having the Xerox copy of that letter. Today I am producing the same. Police had given me the file nos. 70, 76, 80 and I was requested to see whether that lady can identify the accused from that file. I was given those files by the same person who had given me the letter. I had asked that lady whether she could identify the accused, if photographs shown to her and she told that she could identify. Therefore, I had shown her the photographs from all the three files. She had identified the 4 persons as the accused present. Witness volunteers that at that time, it came to my notice that the lady was much frightened. All the four photographs were from file No.80. The names were written below all those four photographs. They are 1. Gautam Hari Kale, R/o Zapwadi Shiv, TQ Nawasa, Dist. Ahmednagar, 2. Shivaji @ Shivlya Bhosale R/o Tarwand Muktapur Shiwar, TQ Nevasa, Dist – Ahmednagar 3. Khandya Rama Chavan R/o Bhendala Shiwar, TQ Gangapur, Dist. Aurangabad, 4. Suresh Sitaram Kale, R/o Kasarakada, Karkhana Shiwar, TQ Ashti, Dist. Beed. These persons had entered her house and had committed 61

theft of Rs.3,000/- is told by the lady. That lady had not stated that she could identify the accused persons. Prior to recording the statement of that lady, said lady was got examined from Dr. Yuvraj Pawar, that she was conscious to give the statement. The statement was read over to that lady after it was recorded. It was understood by her. I had asked whether the said statement was as per her narration. She had replied in affirmative. I had obtained her thumb impression on the said statement. I myself had obtained her thumb impression. After completion of recording of the statement of that lady, she had got again examined from the medical officer, that she was in a condition to give the statement. Medical officer had signed on both certificate in my presence. I had not taken any noting that said lady was frightened (The ld. A.P.P. has taken the objection that the witness voluntarily had made the statement that the lady was frightened; therefore, such question cannot be asked in cross examination). I had not written so in my notes. It is not true to say that I was directed to state that said lady was frightened, before coming to court for giving evidence.”

9.11 Thus, the deposition of PW8 is full of contradictions/omissions

and improvements and that she has not stated true and correct facts.

Therefore, she is not a reliable witness who can be believed. When

the aforesaid was pointed out to the High Court by the defence, the

High Court unfortunately has not accepted the case of the defence by

observing that the statement of PW8 recorded by PW13 – special

executive magistrate recorded on 7.6.2003 cannot be said to be a

dying declaration and it can be said to be a mere statement which can

be used only for corroboration and contradiction. Therefore, even as

per the High Court also, her statement dated 7.6.2003 recorded by

PW13 in which she identified altogether 4 other persons with names 62

can be used for the purpose of contradiction. As observed

hereinabove, the contradictions are material contradictions and that

as such she has also suppressed the material fact from the Court.

9.12 Even otherwise, for the reasons stated hereinafter, it appears

that there was no fair investigation by the investigating

agency/prosecution. Prosecution has suppressed the material fact

from the Court. Neither the investigating officer nor even the PW13 –

special executive magistrate initially stated anything about recording

of the statement of PW8 on 7.6.2003 and she having identified four

persons from the album of the photographs of the notorious

criminals. In fact, it came to the light during the course of hearing of

the appeal before the High Court, and PW8 and PW13 were recalled

as per the directions of the High Court. Nothing is on record whether

those four persons, who were identified by PW8 on 7.6.2003, were

ever arrested and/or any investigation was carried out qua them. It

is required to be noted that PW8 identified those four persons

immediately after the incident. None of the accused in the present

case are those who were identified by PW8 before the Special

Executive Magistrate on 7.6.2003. Therefore, when PW8 identified

four persons having committed the offence on 7.6.2003, her memory

was fresh and it ought to have been given more weightage than her

identifying the accused persons after a long delay. Thus, it appears 63

that the investigation was not fair and in fact there was suppression

of material fact from the court by the prosecution.

10. It has to be uppermost kept in mind that impartial and truthful

investigation is imperative. It is judiciously acknowledged that fair

trial includes fair investigation as envisaged by Articles 20 & 21 of the

Constitution of India. The role of the police is to be one for protection

of life, liberty and property of citizens, that investigation of offences

being one of its foremost duties. That the aim of investigation is

ultimately to search for truth and to bring the offender to book.

10.1 Apart from ensuring that the offences do not go unpunished, it

is the duty of the prosecution to ensure fairness in the proceedings

and also to ensure that all relevant facts and circumstances are

brought to the notice of the court for just determination of the truth

so that due justice prevails. It is the responsibility of the

investigating agency to ensure that every investigation is fair and does

not erode the freedom of an individual, except in accordance with law.

One of the established facets of a just, fair and transparent

investigation is the right of an accused to ask for all such documents

that he may be entitled to under the scheme contemplated by the

Cr.PC.

10.2 Nothing is allowed by the law which is contrary to the truth. In

Indian criminal jurisprudence, the accused is placed in a somewhat 64

advantageous position than under different jurisprudences of some of

the countries in the world. The criminal justice administration system

in India places human rights and dignity for human rights at a much

higher pedestal and the accused is presumed to be innocent till proven

guilty. The alleged accused is entitled to fair and true investigation

and fair trial and the prosecution is expected to play a balanced role in

the trial of a crime. The investigation should be judicious, fair,

transparent and expeditious to ensure compliance with the basic rule

of law. These are the fundamental canons of our criminal

jurisprudence and they are quite in conformity with the Constitutional

mandate contained in Articles 20 and 21 of the Constitution of India.

10.3 As observed by this Court in the case of V.K. Sasikala v. State

represented by Superintendent (2012) 9 SCC 771, though it is only

such reports which support the prosecution case that are required to

be forwarded to the Court under Section 173(5), in every situation

where some of the seized papers and the documents do not support

the prosecution case and, on the contrary, support the accused, a

duty is cast on the investigating officer to evaluate the two sets of

documents and materials collected and, if required, to exonerate the

accused at that stage itself.

10.4 Even in a case where the public prosecutor did not examine the

witnesses who might have supported the accused, this Court in the 65

case of Darya Singh v. State of Punjab AIR 1965 SC 328 has

observed that the prosecution must act fairly and honestly and must

never adopt the device of keeping back from the Court only because

the evidence is likely to go against the prosecution case. It is further

observed that it is the duty of the prosecution to assist the court in

reaching to a proper conclusion in regard the case which is brought

before it for trial. It is further observed that it is no doubt open to the

prosecutor not to examine witnesses who, in his opinion, have not

witnessed the incident, but, normally he ought to have examined all

the eye-witnesses in support of his case. It is further observed that it

may be that if a large number of persons have witnessed the incident,

it would be open to the prosecutor to make a selection of those

witnesses, but the selection must be made fairly and honestly and not

with a view to suppress inconvenient witnesses from the witness box.

It is further observed that if at the trial it is shown that the persons

who had witnessed the incident have been deliberately kept back, the

Court may draw an inference against the accused and may, in a

proper case, record the failure of the prosecution to examine the said

witnesses as constituting a serious infirmity in the proof of the

prosecution case.

10.5 Murder and rape is indeed a reprehensive act and every

perpetrator should be punished expeditiously, severely and strictly. 66

However, this is only possible when guilt has been proved beyond

reasonable doubt.

10.6 The prosecution/investigating agency is expected to act in an

honest and fair manner without hiding anything from the accused as

well as the Courts, which may go against the prosecution. Their

ultimate aim should not be to get conviction by hook or crook.

11. Applying the aforesaid principles to the facts of the case on hand,

we are of the opinion that there was no fair and honest investigation

and even prosecution tried to suppress the material fact from the

court. In the present case, the investigating officer, PW13 – special

executive magistrate and even PW8 – injured eye witness suppressed

from the court the material fact of the statement of PW8 recorded on

7.6.2003, recorded by PW13 -special executive magistrate in which

she specifically identified four persons who have committed the offence

from the album of the photographs of the notorious criminals. Thus,

special executive magistrate being an independent witness was

supposed to state the correct facts before the court. At this stage, it is

required to be noted that PW13 – Ramesh Sonawane – Special

Executive Magistrate is the same Special Executive Magistrate who

conducted the TI parade subsequently.

11.1 Even the conduct on the part of the investigating officer in

suppressing the aforesaid fact from the court is required to be 67

condemned. It appears that in fact the investigating officer and the

prosecution deliberately withheld the aforesaid fact from the court.

According to PW1 & PW8, there were 7-8 persons who committed the

offence. Though, PW12 – Vishnu Hagwane, nephew of the landlord –

first person to reach the spot clearly stated in his deposition that PW1

told him that four persons were the assailants and committed the

offence. Be that as it may, according to PW1 & PW8 and even

according to the prosecution, there were 7-8 persons who committed

the offence. PW8 identified four persons on 7.6.2003 from the album

of the photographs of notorious criminals whose names were

specifically noted as per the statement of PW8. None of the accused in

the present case are out of those four persons identified by PW8 on

7.6.2003. Therefore, if those four persons who were identified by PW8

as other than the accused in the present case are added in the present

case, it can be said that there were 12 persons/assailants who

committed the offence and therefore the prosecution case that there

were 7-8 persons would fail and that is why the aforesaid fact seems

not to have been stated by the investigating officer and the same was

suppressed by him deliberately and wilfully. Even the investigation

also does not seem to be fair and honest investigation. From the

statement of PW8 recorded by the special executive magistrate

recorded on 7.6.2003 in which she identified four named persons from 68

the album of the photographs of notorious criminals, nothing is on

record whether those four persons were arrested or not or any further

investigation was carried out with respect to those four persons. It is

to be noted that none of the accused in the present case are out of

those four persons who were identified by PW8 on 7.6.2003, i.e.,

immediately after the incident. The investigating officer ought to have

conducted an investigation on that line and ought to have arrested

those four persons and ought to have conducted the investigation qua

those four persons. On the contrary, the accused in the present case

were arrested after a period of one and a half months and that too on

transfer warrants, though there was no description of the accused

given by either PW1 or PW8. A6 was arrested after a period of one and

a half year. It is to be noted that all the accused persons are nomadic

tribes coming from the lower strata of the society and are very poor

labourers. Therefore, in the facts and circumstances of the case, false

implication cannot be ruled out since it is common occurrence that in

serious offences sometime innocent persons are roped in. At the cost

of the repetition, it is to be noted that there is no explanation

whatsoever why those four persons who were identified by PW8 on

7.6.2003 were neither arrested nor there was any investigation qua

them. Therefore, there is a serious lapse on the part of the

investigating agency, which has affected the fair investigation and fair 69

trial, and therefore, we are of the opinion that the same is violative of

fundamental rights of the accused guaranteed under Articles 20 & 21

of the Constitution of India.

12. In view of the above and for the reasons stated above, the

conviction and sentence imposed by the High Court cannot be

sustained. The prosecution has failed to prove the case against the

accused beyond reasonable doubt. Therefore, we have no other

alternative, but to acquit the accused for the offences for which they

are convicted.

13. At the same time, we cannot loose sight of the fact that five

persons have been killed/murdered, out of whom even one lady was

raped. Therefore, it is the duty of the Court to see that the real

culprits are booked and are punished. The Court cannot shut its eyes

to the aforesaid fact that five persons have been killed/murdered and

that there is no fair investigation and because of the lapse on the part

of the prosecution/investigating agency in not conducting any

investigation qua those four persons who were identified by PW8 on

7.6.2003 before the special executive magistrate. The benefit of the

lapse in investigation and/or unfair investigation cannot be permitted

to go to the persons who are real culprits and in fact who committed

the offence. As observed hereinabove, unfortunately, there was no

investigation at all with respect to those four persons who were 70

identified by PW8 in her statement on 7.6.2003. It has come on

record and as observed hereinabove, those four persons who were

identified by PW8 on 7.6.2003, which was just after two days’ of the

incident, were other than the appellants – six persons who came to be

tried. Therefore, we are of the opinion that this is a fit case for further

investigation under Section 173(8) of the Code of Criminal Procedure

qua those four persons, who were identified by PW8 on 7.6.2003, the

reference of whom is in the statement recorded by PW13.

14. Now so far as the submission and prayer on behalf of the

accused, not only to acquit them, but to award an adequate

compensation is concerned, it deserves consideration. From the above

facts and circumstances of the case, it has emerged that there was no

fair investigation and fair trial and the fundamental rights of the

accused guaranteed under Articles 20 & 21 of the Constitution of

India have been infringed. The investigation is not fair and honest.

There is no investigation at all qua the four persons who were

identified by PW8 on 7.6.2003. On the contrary, the accused in the

present case were nomadic tribes and falsely implicated and are roped

in. Except one, all of them are in jail since last 16 years. All were

facing the hanging sword of death penalty. Out of six accused

persons, one was subsequently found to be a juvenile. As per the

report of Dr. Ashit Sheth, a Psychiatrist, who examined one of the 71

accused – Ankush Maruti Shinde, who was subsequently found to be

a juvenile, he has clearly opined that he has lived under sub-human

conditions for several years. He was kept in isolation in solitary

confinement with very restricted human contact and under perpetual

fear of death. He was only allowed to meet his mother, and that too

only infrequently. He was not even allowed to mix with other

prisoners. Therefore, all the accused remained under constant stress

and in the perpetual fear of death. As they were facing the death

penalty, they might not have availed any other facilities of parole,

furlon etc. All of them who were between the age of 25-30 years (and

one of the accused was a juvenile) have lost their valuable years of

their life in jail. Their family members have also suffered. Therefore,

in the facts and circumstances of the case, and in exercise of our

powers under Article 142 of the Constitution of India, we direct the

State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the

accused by way of compensation, to be deposited by the State with the

learned Sessions Court within a period of four weeks from today and

on such deposit, the same be paid to the concerned accused on proper

identification. The learned Sessions Court is directed to see that the

said amount shall be used for their rehabilitation. At the cost of the

repetition, it is observed that the aforesaid compensation is awarded

to the accused and in the peculiar facts and circumstances of the case 72

and in exercise of powers under Article 142 of the Constitution of

India.

15. Before parting with the present order, we strongly deprecate the

conduct on the part of the investigating agency and the prosecution.

Because of such lapses, and more particularly in not conducting the

investigation insofar as those four persons who were identified by PW8

on 7.6.2003, the real culprits have gone out of the clutches of the law

and got scot free. At this stage, the decision of this Court in the case

of State of Gujarat v. Kishanbhai (2014) 5 SCC 108 is required to be

referred to, in which this Court has directed in paragraphs 22 and 23

as under:

“22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilised for crystallising mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course-

73 content drawn from the above consideration. The same should also constitute course-content of refresher training programmes for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials should be vested in the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than ten glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course-content will be reviewed by the above Committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the Standing Committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are made liable to suffer departmental action for their lapses.

23. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy.

Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution 74

case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.”

15.1 Murder and rape is indeed a reprehensive act and every

perpetrator should be punished. Therefore, considering the

observations made by this Court in the case of Kishanbhai (supra),

referred to hereinabove, we direct the Chief Secretary, Home

Department, State of Maharashtra to look into the matter and identify

such erring officers/officials responsible for failure of a prosecution

case, on account of sheer negligence or because of culpable lapses,

real culprits are out of the clutches of law and because of whose

lapses the case has resulted into acquittal in a case where five persons

were killed brutally and one lady was subjected to even rape.

Therefore, we direct the Chief Secretary, Home Department, State of

Maharashtra to enquire into the matter and take departmental action

against those erring officers/officials, if those officers/officials are still

in service. The instant direction shall be given effect to within a period

three months from today.

16. With the above observations and directions, and in view of the

above and for the reasons stated above, the criminal appeals preferred 75

by the accused are hereby allowed, and all the accused are hereby

acquitted for the offences for which they were tried. They shall be

released forthwith, if not required in any other case. Consequently,

the appeals filed by the State of Maharashtra for enhancement of

sentence qua A3, A5 and A6 stand dismissed.

17. The prosecution is directed to conduct further investigation

under Section 173(8) of the Code of Criminal Procedure qua those four

persons who were identified by PW8 – an injured eye witness on

7.6.2003 from the album of photographs of notorious criminals with

their names, i.e., immediately after the incident, whose particulars

and names are mentioned in the statement of PW8 recorded by PW13

on 7.6.2003, so that real culprits should not go unpunished in a crime

in which five persons were killed brutally and one lady was even

subjected to rape.

………………………………..J. [A.K. SIKRI]

………………………………J. [S. ABDUL NAZEER]

NEW DELHI; ……………………………..J. MARCH 05, 2019. [M.R. SHAH]