# ANKUSH MARUTI SHINDE AND OTHERS v. STATE OF MAHARASHTRA

- **Citation:** [2019] 4 S.C.R. 709
- **Court:** Supreme Court of India
- **Decided:** 2019-03-05
- **Case number:** Criminal Appeal Nos. 1008-1009 of 2007
- **Bench:** A. K. Sikri, S. Abdul Nazeer, M.R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ankush-maruti-shinde-and-others-v-state-of-maharashtra-33528
- **Pages:** 56

## Headnote

Penal Code, 1860: ss. 395, 302 read with 34, ss. 376 (2)(g),
307 read with s. 34, ss. 396, 397 and 398 - Dacoity with murder
and rape - Prosecution case that commission of murder of five
persons, robbery as well as rape of one lady - Deposition of two
eye-witnesses PW1 and PW8, and identification of the accused either
in the TI parade and/or before the court - On the basis thereof,
conviction of accused nos. 1 to 6 for the offences punishable u/ ss.
395, 302 read with 34, ss. 376 (2)(g), 307 read with s. 34, ss. 396,
397 and 398 - Over and above the other sentences, all accused
awarded death sentence - High Court, while upholding the
conviction and death sentence of original accused nos. 1, 2 & 4,
altered the death sentence in respect of original accused nos. 3, 5
& 6 to life imprisonment as also acquitted them for offence
u/s. 376(2)(g) - On appeal, held: Murder and rape is indeed a
reprehensive act and every perpetrator should be punished
expeditiously, severely and strictly - However, this is only possible
when guilt has been proved beyond reasonable doubt - On facts,
other than the evidence of PW1 and PW8, no other evidence either
scientific and/or other, corroborating the prosecution case, to link
the accused to the offence - PW1 and PW8 not able to give any
particulars/description of the accused to the I.O. and/or to the
magistrate who conducted the TI parade nor able to ascribe any
roles to the culprit - There are major omissions/contradictions/
improvements which are fatal to the prosecution case, thus, creates
reasonable doubt on the trustworthiness and the reliability of PW8
- Identification of the accused by PW1 in the TI parade also creates
a serious doubt - Thus, not safe to convict the accused solely on
the basis of their identification by PW1 and PW8 in the TI parade
and/or before the Court - Also no explanation as regards the delay
in conducting the TI parade and doubt as to sufficient light at the
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time of incident - Furthermore, there was no fair investigation by
the investigating agency/prosecution - Prosecution suppressed the
material fact from the court - In view thereof, accused acquitted
for the aforesaid offences - Test Identification Parade.
Investigation: Significance of - Held: Impartial and truthful
investigation is imperative - Fair trial includes fair investigation as
envisaged by Arts. 20 and 21 - Aim of investigation is ultimately to
search for truth and to bring the offender to book - It is the duty of
the prosecution to ensure fairness in the proceedings and to ensure
that all relevant facts and circumstances are brought to the notice
of the court - Investigation should be judicious, fair, transparent
and expeditious to ensure compliance with the basic rule of law -
On facts, the investigating officer, the magistrate and even the
injured eye-witness deliberately and willfully suppressed from the
court the material fact of the statement of the eyewitness recorded
immediately after the incident, by the 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 - Said magistrate conducted the TI parade subsequently
- None of the accused in the instant case are out of those four
persons identified by the eyewitness - Nothing is on record whether
those four persons were arrested or not or any further investigation
was carried out - Thus, there was a serious lapse on the part of the
investigating agency - Constitution of India - Arts. 20 and 21.
Code of Criminal Procedure, 1973: s. 178(3) - Further
investigation by police officer - On facts, there was no investigation
at all with respect to those four persons who were identified by the
injured eye witness immediately after the incident and these four
persons were other that the six persons tried and convicted - As a
result, real culprits went scot free -

## Text

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ANKUSH MARUTI SHINDE AND OTHERS
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1008-1009 of 2007)
MARCH 05, 2019
[A. K. SIKRI, S. ABDUL NAZEER AND M.R. SHAH, JJ.]
Penal Code, 1860: ss. 395, 302 read with 34, ss. 376 (2)(g),
307 read with s. 34, ss. 396, 397 and 398 - Dacoity with murder
and rape - Prosecution case that commission of murder of five
persons, robbery as well as rape of one lady - Deposition of two
eye-witnesses PW1 and PW8, and identification of the accused either
in the TI parade and/or before the court - On the basis thereof,
conviction of accused nos. 1 to 6 for the offences punishable u/ ss.
395, 302 read with 34, ss. 376 (2)(g), 307 read with s. 34, ss. 396,
397 and 398 - Over and above the other sentences, all accused
awarded death sentence - High Court, while upholding the
conviction and death sentence of original accused nos. 1, 2 & 4,
altered the death sentence in respect of original accused nos. 3, 5
& 6 to life imprisonment as also acquitted them for offence
u/s. 376(2)(g) - On appeal, held: Murder and rape is indeed a
reprehensive act and every perpetrator should be punished
expeditiously, severely and strictly - However, this is only possible
when guilt has been proved beyond reasonable doubt - On facts,
other than the evidence of PW1 and PW8, no other evidence either
scientific and/or other, corroborating the prosecution case, to link
the accused to the offence - PW1 and PW8 not able to give any
particulars/description of the accused to the I.O. and/or to the
magistrate who conducted the TI parade nor able to ascribe any
roles to the culprit - There are major omissions/contradictions/
improvements which are fatal to the prosecution case, thus, creates
reasonable doubt on the trustworthiness and the reliability of PW8
- Identification of the accused by PW1 in the TI parade also creates
a serious doubt - Thus, not safe to convict the accused solely on
the basis of their identification by PW1 and PW8 in the TI parade
and/or before the Court - Also no explanation as regards the delay
in conducting the TI parade and doubt as to sufficient light at the
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time of incident - Furthermore, there was no fair investigation by
the investigating agency/prosecution - Prosecution suppressed the
material fact from the court - In view thereof, accused acquitted
for the aforesaid offences - Test Identification Parade.
Investigation: Significance of - Held: Impartial and truthful
investigation is imperative - Fair trial includes fair investigation as
envisaged by Arts. 20 and 21 - Aim of investigation is ultimately to
search for truth and to bring the offender to book - It is the duty of
the prosecution to ensure fairness in the proceedings and to ensure
that all relevant facts and circumstances are brought to the notice
of the court - Investigation should be judicious, fair, transparent
and expeditious to ensure compliance with the basic rule of law -
On facts, the investigating officer, the magistrate and even the
injured eye-witness deliberately and willfully suppressed from the
court the material fact of the statement of the eyewitness recorded
immediately after the incident, by the 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 - Said magistrate conducted the TI parade subsequently
- None of the accused in the instant case are out of those four
persons identified by the eyewitness - Nothing is on record whether
those four persons were arrested or not or any further investigation
was carried out - Thus, there was a serious lapse on the part of the
investigating agency - Constitution of India - Arts. 20 and 21.
Code of Criminal Procedure, 1973: s. 178(3) - Further
investigation by police officer - On facts, there was no investigation
at all with respect to those four persons who were identified by the
injured eye witness immediately after the incident and these four
persons were other that the six persons tried and convicted - As a
result, real culprits went scot free - Thus, there was no fair
investigation and fair trial, resulting in infringement of the
fundamental rights of the accused guaranteed u/Arts. 20 and 21 -
Such conduct on the part of the investigating agency and the
prosecution is strongly deprecated - Prosecution to conduct
investigation u/s. 173(8) qua four persons identified by the injured
eye witness.
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Constitution of India: Art. 142 - Compensation - Award of -
No fair investigation and fair trial, qua the four persons identified
by injured eye witness, immediately after the incident - Other six
persons who came to be tried, convicted and sentenced death penalty
for offence of murder and rape, remained under constant stress
and in perpetual fear of death - In view of the lapses, all the six
persons are acquitted - In exercise of powers u/Art. 142, the State
of Maharashtra to pay compensation of Rs. 5 lakh to each of the
accused.
Allowing the appeals by the accused and dismissing the
appeals by the State, the Court
HELD: 1. Murder and rape is indeed a reprehensive act
and every perpetrator should be punished expeditiously, severely
and strictly. However, this is only possible when guilt has been
proved beyond reasonable doubt. [Para 10.5] [758-B-C]
2.1 The TI parade was held after 50 days from the date of
offence and 33 days after the arrest of A1 & A2. The accused
persons were arrested on transfer warrant. Even A6 was arrested
after 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.
[Para 9.3] [749-H; 750-A-B]
2.2 There is very serious doubt whether at the time of
incident, there was sufficient light in the hut. Under the facts and
circumstances, neither PW1 nor PW8 would have been able to
get a proper look at the persons who committed the offence.
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. 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
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the investigation. Even PW8's entire evidence about the incident
and the role played by different accused persons is an omission/
improvement. Whatever is 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. The same was not stated to
the police/special executive magistrate in her statements that
were recorded during the investigation. When in her crossexamination, 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. It is also required to be noted that 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. On scanning
the entire evidence of PW8, the observation of the High Court
that the omissions are minor omissions is not accepted. On
considering the deposition of PW8 about the incident and the
role alleged to have been played by different accused persons, it
is opined 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. [Para 9.4, 9.9] [750-B, E-H; 753-B,
E-F]
2.3 Even the identification of the accused by PW1 in the TI
parade also creates a serious doubt. PW1 has categorically stated
that the culprits spoke with him in Hindi. According to him, they
were also speaking amongst themselves in Hindi. PW8 also
confirmed the same. All the victims 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.
[Para 9.5] [751-D-F]
2.4 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
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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 instant case, the dummy persons were
selected by the police. Considering the said facts and
circumstances, it is not safe to convict the accused solely on the
basis of their identification by PW1 & PW8 in the TI parade and/
or before the Court. Except the deposition of PW1 & PW8 and
they identified the accused in the TI parade and/or before the
Court, 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 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. [Para
9.6, 9.7] [751-G-H; 752-A-E]
2.5 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. [Para 9.8]
[752-F-H; 753-A]
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA
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2.6 Dying declaration/statement of PW 8 was recorded two
days after the incident. She 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 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 said 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 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. 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.
[Para 9.10] [753-H; 754-A-D]
2.7 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.
The High Court unfortunately did not accept the case of the
defence by observing that the statement of PW8 recorded by
PW13 cannot be said to be a dying declaration but a mere
statement which can be used only for corroboration and
contradiction. Therefore, even as per the High Court also, her
statement recorded by PW13 in which she identified altogether
4 other persons with names can be used for the purpose of
contradiction. The contradictions are material contradictions and
she has also suppressed the material fact from the Court.
[Para 9.11] [755-F-H]
3.1 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. The role of the police is to be one
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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. 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.
[Paras 10, 10.1] [756-E-H]
3.2 Nothing is allowed by the law which is contrary to the
truth. In Indian criminal jurisprudence, the accused is placed in a
somewhat 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 the criminal jurisprudence
and they are quite in conformity with the Constitutional mandate
contained in Articles 20 and 21 of the Constitution.
[Para 10.2] [757-A-C]
V. K. Sasikala v. State represented by Superintendent
(2012) 9 SCC 771 : [2012] 10 SCR 641 ; Darya Singh
v. State of Punjab AIR 1965 SC 328 : [1964] 7 SCR
397 - referred to.
3.3 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
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prosecution. Their ultimate aim should not be to get conviction
by hook or crook. Applying the said principles to the facts of the
case on hand, there was no fair and honest investigation and even
prosecution tried to suppress the material fact from the court. In
the instant 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. PW13 is the same Special Executive Magistrate
who conducted the TI parade subsequently. It appears that in
fact the investigating officer and the prosecution deliberately
withheld the said fact from the court. According to PW1 & PW8,
and even according to the prosecution, there were 7-8 persons
who committed the offence. Though, PW12- 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. 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 instant 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 instant case are added in the instant 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 said 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. 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.
When PW8 identified four persons having committed the offence,
her memory was fresh and it ought to have been given more
weightage than her identifying the accused persons after a long
delay. The investigating officer ought to have conducted an
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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 instant 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. 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. Therefore, there is a serious lapse on the part of
the investigating agency, which has affected the fair investigation
and fair trial, and therefore, the same is violative of fundamental
rights of the accused guaranteed under Articles 20 & 21 of the
Constitution. The conduct on the part of the investigating agency
and the prosecution is strongly deprecated. [Para 9.12,11, 11.1,
15] [758-C-H; 759-A-H; 761-E]
3.4 The prosecution has failed to prove the case against
the accused beyond reasonable doubt. Because of such lapses,
and more particularly in not conducting the investigation insofar
as those four persons who were identified by PW8, the real culprits
have gone out of the clutches of the law and got scot free. The
conviction and sentence imposed by the High Court cannot be
sustained. All the accused are acquitted for the offences for which
they were tried and would be released, if not required in other
offences. [Para 12, 15, 16] [760-A; 761-F; 763-G]
3.5 The Court cannot shut its eyes to the said fact that five
persons have been killed/murdered, out of whom even one lady
was raped 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. Unfortunately,
there was no investigation at all with respect to those four persons
who were identified by PW8 in her statement. Therefore, this is
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a fit case for further investigation under Section 173(8) CrPC
qua those four persons and prosecution is directed to do the same.
[Para 13] [760-C-E]
4. It has emerged that there is no investigation at all qua
the four persons who were identified by PW8. On the contrary,
the accused in the instant 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. He has clearly opined that he has lived under
sub-human conditions for several years. 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 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 powers u/Article 142 of the
Constitution, the State of Maharashtra is directed to pay a sum of
Rs.5,00,000/- to each of the accused as compensation.
[Para 14] [760-F-H; 761-A-D]
5. The Chief Secretary, Home Department, State of
Maharashtra is directed to look into the matter and identify and
take departmental action against 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 instant case. [Para 15] [763-D-E]
State of Gujarat v. Kishanbhai (2014) 5 SCC 108:
[2014] 1 SCR 197 - relied on.
Vaikuntam Chandrappa v. State of Andhra Pradesh
AIR 1960 SC 1340; Iqbal v. State of Uttar Pradesh
(2015) 6 SCC 623; Ram Sunder Sen v. Narender
(2016) 15 SCC 440 - referred to.
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Case Law Reference
AIR 1960 SC 1340
 referred to
Para 5.16
(2015) 6 SCC 623
 referred to
Para 5.40
(2016) 15 SCC 440
 referred to
Para 5.43
[2012] 10 SCR 641
 referred to
Para 10.3
[1964] 7 SCR 397
 referred to
Para 10.4
[2014] 1 SCR 197
 relied on
Para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1008-1009 of 2007.
From the Judgment and Order dated 22.03.2007 by the High Court
of Judicature at Bombay in Confirmation Case No. 2 of 2006 with Criminal
Appeal No. 590 of 2006.
WITH
Criminal Appeal Nos.881-882 of 2009 and 268-269 of 2019.
Nishant Ramakantrao Katneshwarkar, Yug Chaudhry, Siddharth,
S. Prabu Ramasubramanian, K. Paari Vendhan, William Vinoth Kumar,
Panpiya Rajan, Rishabh Sancheti, Sabarish Subramanian, Vishnu
Unnikrishnan, Ms. Malar Vendhan (for T. Harish Kumar), Advs. for the
Appellants.
Mrs. Geetha Kovilan, Rahul Kaushik, Advs. for the Respondent.
The Judgment of the Court was delivered by
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 this common judgment.
1.1 By the impugned judgment, a Division Bench of the Bombay
High Court has disposed of the Reference made by the learned 3rd
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.
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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 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. 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
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punishment imposed by the learned Sessions Court so far as accused
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, 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 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 nutshell 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 in
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
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA
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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 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
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.
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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 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. 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:
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PW
ame
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 Ghule
Spot Panch for hut, Panchnama 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 Hagwane
Landlord of Guava Orchard.

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 [CoPanch Kashinath Palande] 9 am -
9.45 am.
7
Ibrahim Shaikh
Panchnama for spot dt. 25.6.2003
Article
A
[Co-Panch
Shabbi
Khatib] 11 am - 12.30 pm.
8
Vimalbai Satote
Eye Witness
9
Dr.Dattatraya Gadakh
Autopsy Surgeon for Post mortems
Notes dt. 6.6.2003 Ex. 81, 86, 89,
91, 93 and Cause of 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 Hagwane
Nephew of PW6. First person to
reach spot.
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FIR
[dt.
nch
m -
dt.
.45
dt.
dt.
nch
for
Ex.
nde]
pers
Com -
003
bbi
ems
89,
eath
85,
n to
13
Ramesh Sonawane
Special
Executive
Magistrate.
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 Budhan
Panch for opening and resealing packet
containing a chain dt. 22.8.03 Ex. 1245 [Co-Panch Deepak Ghodke] 12.15
pm - 12.30 pm.
15
Dr. Nalini Shardul
Medical Officer for PW1 and PW8's
injuries, Certificate Ex. 129-31.
16
Dr. Satish Shimpi
Medical Officer who examined A3, A4,
A5 on 27.6.03, Certificate Ex 133-135
17
PSI Narayan Shinde
Arrested A1 and A2 on 22.6.03,
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 Bhaskarrao
Dhus
Investigating Officer
19
Bhimsing Onkar
In charge of Dog Squad, Panchnama dt.
29.6.2003 Ex. 164
20
PI Kashinath Bharate
First Investigating Officer. Recorded
Dying Declaration of PW1 Ex. 178 dt.
6.6.03
21
PI Ramesh Patil
Searched houses of A1, A3, A4, A5 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 house of A5 dt. 26.6.03 Ex.
183 [Panch Shaikh Ilyas and Bhimrao
Mhaske] 1.30 - 2.30 pm.
22
PI Shafiuddin Sayyad
Recorded FIR
23
PI Sharad Gavane
Recorded statement of PW8 dt 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.

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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 slippers
Exh. 75
5.
Identification of slippers by
Manoj
Exh. 76
6.
P.M. Notes of deceased Savita
Exh. 81
7.
Advance cause of death
certificate of Savita
Exh. 82
8.
Final cause of death certificate
of Savita
Exh. 85
9.
P.M. Notes of Trambak
Exh. 86
10.
Advance cause of death
certificate of Trambak
Exh. 87
11.
Final cause of death certificate
of Trambak
Exh. 88
12.
P.M. Notes of Bhurya
Exh. 89
13.
Final cause of death of Bhurya
Exh. 90
14.
P.M. Notes of Sandip
Exh. 91
15.
Final cause of death certificate
of Sandip
Exh. 92
16.
P.M. Notes of Bharat More
Exh. 93
17.
Final cause of death certificate
of Bharat
Exh. 94
18.
The opinion of medical officer
about Savita
Exh. 107
19.
Medical certificate of Manoj
Exh. 129
20.
Medical certificate of Vimalabai
Exh. 131 and Exh. 132
21.
Medical certificates about the
examinations of the Accused
Exh. 133 to 135 and
Exh. 195 and 196
22.
Proclamation orders
Exh. 158
23.
Panchnama of the identification
by Dog
Exh. 164
24.
Spot map
Exh. 169
25.
C.A. Certificate
Exh. 58 to 72
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3.6 That after the closing pursiswas 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.