ANKUSH MARUTI SHINDE AND OTHERS versus STATE OF MAHARASHTRA on 5 March 2019

[2019] 4 S.C.R. 709

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 murderand rape – Prosecution case that commission of murder of fivepersons, robbery as well as rape of one lady – Deposition of twoeye-witnesses PW1 and PW8, and identification of the accused eitherin 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 accusedawarded death sentence – High Court, while upholding theconviction 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 offenceu/s. 376(2)(g) – On appeal, held: Murder and rape is indeed areprehensive act and every perpetrator should be punishedexpeditiously, severely and strictly – However, this is only possiblewhen guilt has been proved beyond reasonable doubt – On facts,other than the evidence of PW1 and PW8, no other evidence eitherscientific and/or other, corroborating the prosecution case, to linkthe accused to the offence – PW1 and PW8 not able to give anyparticulars/description of the accused to the I.O. and/or to themagistrate who conducted the TI parade nor able to ascribe anyroles to the culprit – There are major omissions/contradictions/improvements which are fatal to the prosecution case, thus, createsreasonable doubt on the trustworthiness and the reliability of PW8– Identification of the accused by PW1 in the TI parade also createsa serious doubt – Thus, not safe to convict the accused solely onthe basis of their identification by PW1 and PW8 in the TI paradeand/or before the Court – Also no explanation as regards the delayin conducting the TI parade and doubt as to sufficient light at the

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Atime of incident – Furthermore, there was no fair investigation bythe investigating agency/prosecution – Prosecution suppressed thematerial fact from the court – In view thereof, accused acquittedfor the aforesaid offences – Test Identification Parade.

Investigation: Significance of – Held: Impartial and truthfulBinvestigation is imperative – Fair trial includes fair investigation asenvisaged by Arts. 20 and 21 – Aim of investigation is ultimately tosearch for truth and to bring the offender to book – It is the duty ofthe prosecution to ensure fairness in the proceedings and to ensurethat all relevant facts and circumstances are brought to the noticeof the court – Investigation should be judicious, fair, transparentCand expeditious to ensure compliance with the basic rule of law –On facts, the investigating officer, the magistrate and even theinjured eye-witness deliberately and willfully suppressed from thecourt the material fact of the statement of the eyewitness recordedimmediately after the incident, by the special executive magistrateDin which she specifically identified four persons who have committedthe offence from the album of the photographs of the notoriouscriminals – Said magistrate conducted the TI parade subsequently– None of the accused in the instant case are out of those fourpersons identified by the eyewitness – Nothing is on record whether those four persons were arrested or not or any further investigationEwas carried out – Thus, there was a serious lapse on the part of theinvestigating agency – Constitution of India – Arts. 20 and 21.

Conclusion

Code of Criminal Procedure, 1973: s. 178(3) – Furtherinvestigation by police officer – On facts, there was no investigationat all with respect to those four persons who were identified by theFinjured eye witness immediately after the incident and these fourpersons were other that the six persons tried and convicted – As aresult, real culprits went scot free – Thus, there was no fairinvestigation and fair trial, resulting in infringement of thefundamental rights of the accused guaranteed u/Arts. 20 and 21 –GSuch conduct on the part of the investigating agency and theprosecution is strongly deprecated – Prosecution to conductinvestigation u/s. 173(8) qua four persons identified by the injuredeye witness.

Constitution of India: Art. 142 – Compensation – Award of –No fair investigation and fair trial, qua the four persons identifiedby injured eye witness, immediately after the incident – Other sixpersons who came to be tried, convicted and sentenced death penaltyfor offence of murder and rape, remained under constant stressand in perpetual fear of death – In view of the lapses, all the sixpersons are acquitted – In exercise of powers u/Art. 142, the Stateof Maharashtra to pay compensation of Rs. 5 lakh to each of theaccused.

Allowing the appeals by the accused and dismissing theappeals by the State, the Court HELD: 1. Murder and rape is indeed a reprehensive actand every perpetrator should be punished expeditiously, severelyand strictly. However, this is only possible when guilt has beenproved beyond reasonable doubt. [Para 10.5] [758-B-C]

2.1 The TI parade was held after 50 days from the date ofoffence and 33 days after the arrest of A1 & A2. The accusedpersons were arrested on transfer warrant. Even A6 was arrestedafter more than one year, and the TI parade for A6 was conductedmore than one year later. There is no explanation forthcomingfrom 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 ofincident, there was sufficient light in the hut. Under the facts andcircumstances, neither PW1 nor PW8 would have been able toget a proper look at the persons who committed the offence.Neither PW1 nor PW8 were able to describe the accused to thepolice or the clothes worn by them. No identifying features weregiven. In the trial, the clothes seized from the accused were notidentified by either PW1 or PW8. Neither PW1 nor PW8 wereable to ascribe the specific roles to the culprits. Even, accordingto the prosecution, PW1 & PW8 had fallen unconscious duringthe incident. Therefore, the said witnesses were not in a fitcondition to see and remember and that is why neither PW1 norPW8 gave details about the description of the culprits-heights,hair, facial features, complexion, beard, etc. to the police during A

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Athe investigation. Even PW8’s entire evidence about the incidentand the role played by different accused persons is an omission/improvement. Whatever is stated by PW8 in her deposition, thesame is stated for the first time in her deposition, which wasrecorded two and a half years later. The same was not stated tothe police/special executive magistrate in her statements thatBwere recorded during the investigation. When in her cross-examination, she was confronted with such omissions/improvements, she has taken only one thing that she told this tothe police but she does not know why the police did not recordthe same. However, the same is not corroborated by any otherCevidence, more particularly the deposition of the IO and/or themagistrates. It is also required to be noted that even accordingto PW8, she was subjected to rape, however, the prosecutionhas miserably failed to prove the rape on her by leading cogentevidence, more particularly the forensic evidence. On scanning

the entire evidence of PW8, the observation of the High CourtDthat the omissions are minor omissions is not accepted. Onconsidering the deposition of PW8 about the incident and therole alleged to have been played by different accused persons, itis opined that the omissions are major omissions andimprovements which are fatal to the case of the prosecution andEin any case, it creates reasonable doubt on the trustworthinessand 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 TIparade also creates a serious doubt. PW1 has categorically statedFthat the culprits spoke with him in Hindi. According to him, theywere also speaking amongst themselves in Hindi. PW8 alsoconfirmed the same. All the victims are Marathi speakers.Therefore, if the accused were to speak with the victims, theywould have spoken in Marathi and not in Hindi. Therefore, thereis a possibility that the culprits who were speaking in Hindi wereGnot 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 TIparade. Therefore, on what basis the other dummy persons wereH

brought and were present in TI parade is not forthcoming fromthe prosecution. There is also no statement that the dummiesresembled the accused persons. Though, the special executivemagistrate who had conducted the TI parade is required to selectthe dummy persons, in the instant case, the dummy persons wereselected by the police. Considering the said facts andcircumstances, it is not safe to convict the accused solely on thebasis of their identification by PW1 & PW8 in the TI parade and/or before the Court. Except the deposition of PW1 & PW8 andthey identified the accused in the TI parade and/or before theCourt, there is no other evidence, either scientific and/or other,corroborating the prosecution case. There is no forensic evidencecorroborating the prosecution case. In fact, the DNA, finger printsevidence and CA evidence do not support the case of theprosecution, and/or link the accused to the crime. The DNAsamples were collected during the investigation and in fact weresent for DNA analysis, but the prosecution never presented thereport to the Court. No pubic hair, DNA, semen or blood of theaccused were found on any of the victims. It appears that thesamples were collected from the accused and were sent foranalysis, but the result did not incriminate the accused. [Para9.6, 9.7] [751-G-H; 752-A-E]

2.5 No stolen property has been found or recovered fromany of the accused except a broken white metal chain which wasseized during the house search of the mother of A5 on 26.06.2003.However, her signature is not there on the panchnama. Thepanchnama 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 thesame was stated to be zero”. The chain had no special markingson it and the same is freely available. Though the prosecutionclaimed that the said chain belongs to PW1, PW1 had admittedthat he has not given any description of the chain to the police.Barring this chain, nothing was seized or recovered from any ofthe accused. Therefore, the seizure of a commonly available whitemetal silver chain without any distinctive markings would be aweak piece of evidence to hold the accused guilty. [Para 9.8][752-F-H; 753-A]

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A2.6 Dying declaration/statement of PW 8 was recorded twodays after the incident. She identified photographs of four peoplefrom album of notorious criminals as those who committed theoffence. Admittedly, the present accused are not amongst thosefour persons identified by PW8 from the photo album. It isrequired to be noted that in her deposition she had not statedBanything about her statement recorded by PW13 and she identifiedthe photographs of four people from album of notorious criminalsshown to her. Therefore, to that extent, there is also a suppressionof material fact by PW8. In fact, the said was withheld by theprosecution during the trial. Only during hearing of the appealCbefore the High Court, it came to the light and therefore pursuantto the order passed by the High Court she was recalled and whenshe was confronted with the above, very surprisingly, she statedthat four persons who were identified by her were the samepersons out of the present accused. However, such a stand isjust contrary to the deposition of PW13. What is stated by her inDher deposition when she was recalled pursuant to the order passedby 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 correctEfacts. Therefore, she is not a reliable witness who can be believed.The High Court unfortunately did not accept the case of thedefence by observing that the statement of PW8 recorded byPW13 cannot be said to be a dying declaration but a merestatement which can be used only for corroboration andFcontradiction. Therefore, even as per the High Court also, herstatement recorded by PW13 in which she identified altogether4 other persons with names can be used for the purpose ofcontradiction. The contradictions are material contradictions andshe has also suppressed the material fact from the Court.[Para 9.11] [755-F-H]G

3.1 It has to be uppermost kept in mind that impartial andtruthful investigation is imperative. It is judiciously acknowledgedthat fair trial includes fair investigation as envisaged by Articles20 & 21 of the Constitution. The role of the police is to be one H

for protection of life, liberty and property of citizens, thatinvestigation of offences being one of its foremost duties. Thatthe aim of investigation is ultimately to search for truth and tobring the offender to book. Apart from ensuring that the offencesdo not go unpunished, it is the duty of the prosecution to ensurefairness in the proceedings and also to ensure that all relevantfacts and circumstances are brought to the notice of the court forjust determination of the truth so that due justice prevails. It isthe responsibility of the investigating agency to ensure that everyinvestigation is fair and does not erode the freedom of anindividual, except in accordance with law. One of the establishedfacets of a just, fair and transparent investigation is the right ofan accused to ask for all such documents that he may be entitledto 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 thetruth. In Indian criminal jurisprudence, the accused is placed in asomewhat advantageous position than under differentjurisprudences of some of the countries in the world. The criminaljustice administration system in India places human rights anddignity for human rights at a much higher pedestal and the accusedis presumed to be innocent till proven guilty. The alleged accusedis entitled to fair and true investigation and fair trial and theprosecution is expected to play a balanced role in the trial of acrime. The investigation should be judicious, fair, transparentand expeditious to ensure compliance with the basic rule of law.These are the fundamental canons of the criminal jurisprudenceand they are quite in conformity with the Constitutional mandatecontained 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 Singhv. State of PunjabAIR 1965 SC 328 : [1964] 7 SCR397 – referred to.

3.3 The prosecution/investigating agency is expected toact in an honest and fair manner without hiding anything from theaccused as well as the Courts, which may go against the A

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716SUPREME COURT REPORTS

Aprosecution. Their ultimate aim should not be to get convictionby hook or crook. Applying the said principles to the facts of thecase on hand, there was no fair and honest investigation and evenprosecution tried to suppress the material fact from the court. Inthe instant case, the investigating officer, PW13-special executivemagistrate and even PW8-injured eye witness suppressed fromBthe court the material fact of the statement of PW8 recorded on7.6.2003, recorded by PW13-special executive magistrate in whichshe specifically identified four persons who have committed theoffence from the album of the photographs of the notoriouscriminals. Thus, special executive magistrate being anCindependent witness was supposed to state the correct factsbefore the court. PW13 is the same Special Executive Magistratewho conducted the TI parade subsequently. It appears that infact the investigating officer and the prosecution deliberatelywithheld the said fact from the court. According to PW1 & PW8,and even according to the prosecution, there were 7-8 personsDwho committed the offence. Though, PW12- nephew of thelandlord-first person to reach the spot clearly stated in hisdeposition that PW1 told him that four persons were the assailantsand committed the offence. PW8 identified four persons on7.6.2003 from the album of the photographs of notorious criminalsEwhose names were specifically noted as per the statement of PW8.None of the accused in the instant case are out of those fourpersons identified by PW8 on 7.6.2003. Therefore, if those fourpersons who were identified by PW8 as other than the accused inthe instant case are added in the instant case, it can be said thatthere were 12 persons/assailants who committed the offence andFtherefore the prosecution case that there were 7-8 persons wouldfail and that is why the said fact seems not to have been stated bythe investigating officer and the same was suppressed by himdeliberately and wilfully. Even the investigation also does notseem to be fair and honest investigation. Nothing is on recordGwhether those four persons were arrested or not or any furtherinvestigation 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 moreweightage than her identifying the accused persons after a longdelay. The investigating officer ought to have conducted anH

investigation on that line and ought to have arrested those fourpersons and ought to have conducted the investigation qua thosefour persons. On the contrary, the accused in the instant casewere arrested after a period of one and a half months and that tooon transfer warrants, though there was no description of theaccused given by either PW1 or PW8. A6 was arrested after aperiod of one and a half year. All the accused persons are nomadictribes coming from the lower strata of the society and are verypoor labourers. Therefore, in the facts and circumstances of thecase, false implication cannot be ruled out since it is commonoccurrence that in serious offences sometime innocent personsare roped in. Therefore, there is a serious lapse on the part ofthe investigating agency, which has affected the fair investigationand fair trial, and therefore, the same is violative of fundamentalrights of the accused guaranteed under Articles 20 & 21 of theConstitution. The conduct on the part of the investigating agencyand 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 againstthe accused beyond reasonable doubt. Because of such lapses,and more particularly in not conducting the investigation insofaras those four persons who were identified by PW8, the real culpritshave gone out of the clutches of the law and got scot free. Theconviction and sentence imposed by the High Court cannot besustained. All the accused are acquitted for the offences for whichthey were tried and would be released, if not required in otheroffences. [Para 12, 15, 16] [760-A; 761-F; 763-G]

3.5 The Court cannot shut its eyes to the said fact that fivepersons have been killed/murdered, out of whom even one ladywas raped and that there is no fair investigation and because ofthe lapse on the part of the prosecution/investigating agency innot conducting any investigation qua those four persons who wereidentified by PW8 on 7.6.2003 before the special executivemagistrate. The benefit of the lapse in investigation and/or unfairinvestigation cannot be permitted to go to the persons who arereal culprits and in fact who committed the offence. Unfortunately,there was no investigation at all with respect to those four personswho were identified by PW8 in her statement. Therefore, this is A

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Aa fit case for further investigation under Section 173(8) CrPCqua 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 quathe four persons who were identified by PW8. On the contrary,Bthe accused in the instant case were nomadic tribes and falselyimplicated and are roped in. Except one, all of them are in jailsince last 16 years. All were facing the hanging sword of deathpenalty. Out of six accused persons, one was subsequently foundto be a juvenile. He has clearly opined that he has lived undersub-human conditions for several years. Therefore, all the accusedCremained under constant stress and in the perpetual fear of death.As they were facing the death penalty, they might not have availedany other facilities of parole, furlon etc. All of them who werebetween the age of 25-30 years (and one was a juvenile) havelost their valuable years of their life in jail. Their family members Dhave also suffered. Therefore, in the facts and circumstances ofthe case, and in exercise of powers u/Article 142 of theConstitution, the State of Maharashtra is directed to pay a sum ofRs.5,00,000/- to each of the accused as compensation.[Para 14] [760-F-H; 761-A-D]

E5. The Chief Secretary, Home Department, State ofMaharashtra is directed to look into the matter and identify andtake departmental action against such erring officers/officialsresponsible for failure of a prosecution case, on account of sheernegligence or because of culpable lapses, real culprits are out ofthe clutches of law and because of whose lapses the case hasFresulted 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 PradeshGAIR 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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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1008-1009 of 2007.

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From the Judgment and Order dated 22.03.2007 by the High Courtof Judicature at Bombay in Confirmation Case No. 2 of 2006 with CriminalAppeal No. 590 of 2006.

WITH

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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, VishnuUnnikrishnan, Ms. Malar Vendhan (for T. Harish Kumar), Advs. for theAppellants.

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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 BombayHigh Court dated 22.03.2007 passed in Confirmation Case No.2 of 2006along with Criminal Appeal No. 590 of 2006, and are being disposed ofby this common judgment.

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1.1 By the impugned judgment, a Division Bench of the BombayHigh Court has disposed of the Reference made by the learned 3[rd]Ad-hoc Additional Sessions Judge, Nashik (hereinafter referred to asthe ‘Sessions Court’) under Section 366 of the Code of CriminalProcedure, 1973 (hereinafter referred to as the ‘Code’) forconfirmation of the death sentence.

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A1.2 The Sessions Court by judgment and order dated 12.06.2006in Sessions Case No. 43/2004 convicted in all six accused – originalaccused nos. 1 to 6 for the offences punishable under Sections 395, 302read with 34 of the IPC, Section 376 (2)(g), Section 307 read withSection 34 of the IPC, Sections 396, 397 and 398 of the IPC.B1.3 The learned Sessions Court sentenced all the accused to death A

B1.3 The learned Sessions Court sentenced all the accused to deathfor the offences punishable under Section 302 read with 34 of the IPC.The learned Sessions Court also imposed separate punishments for otheroffences for which they were convicted. All the convicted accusedfiled Criminal Appeal No. 590/2006 before the High Court of Bombayagainst the order of conviction and sentence imposed by the learnedCSessions Court. As observed hereinabove, the learned Sessions Courtmade a reference to the High Court for confirmation of the deathsentence, which was registered as Confirmation Case No. 2 of 2006.

1.4 That the High Court, while upholding the conviction and deathsentence of original accused nos. 1, 2 & 4, altered the death sentence inDrespect of original accused nos. 3, 5 & 6 to life imprisonment along withfine. Accused nos. 1, 2 & 4 were also convicted for the offences pun-ishable under Section 376(2)(g) of the IPC and they were sentenced tosuffer 10 years rigorous imprisonment. The High Court set aside theconviction and sentence under section 376(2)(g) in respect of accusedEnos. 3, 5 & 6. The High Court confirmed the conviction of the accusedfor the offences punishable under Section 307 read with Section 34 ofthe IPC, Section 397 read with Section 395 of the IPC and Section 396of the IPC.

2. Feeling aggrieved and dissatisfied with the impugned judgmentFand 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 CriminalAppeal Nos. 881-882 of 2009 challenging the alteration of deathsentence to life imprisonment in respect of original accused nos. 3,5, &6. The State has also challenged the acquittal of original accused nos. 3,G5 & 6 for the offence punishable under Section 376(2)(g) ofthe IPC.

2.1 That by judgment and order dated 30.04.2009, this Courtdismissed the appeals preferred by original accused Nos. 1, 2 & 4 andallowed the appeals preferred by the State and restored the capitalH

punishment imposed by the learned Sessions Court so far as accusedNos. 3, 5 & 6 are concerned. That the judgment and order dated30.04.2009 passed by this Court was sought to be reviewed at theinstance of the original accused nos. 3, 5 & 6 on the ground that accusednos.3, 5 & 6 had no opportunity to be heard by the Bench, before theappeals filed by the State of Maharashtra for enhancement of sentencewere decided.

2.2 That a three Judge Bench of this Court by its order dated31.10.2018 allowed the review applications, and recalled the judgmentand order dated 30.04.2009 rendered by this Court not only qua accusednos. 3, 5 & 6, but qua other accused also by observing that the evidenceis common and the offences relate to the same incident, and therefore, itis appropriate and proper that the judgment dated 30.04.2009 should berecalled in its entirety, relating to all the six accused. While allowing thereview applications, this Court recalled the judgment dated 30.04.2009and directed the criminal appeals to be restored to the file of this Courtand directed that the appeals be placed before the appropriate Benchfor hearing afresh. It is to be noted that this Court while restoring theappeals 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 convictingthem, if so advised, and that is how accused nos.3, 5 & 6 havepreferred Criminal Appeal Nos. 268-269 of 2019 against the judgmentof the High Court convicting them. Hence, all these appeals are nowbefore 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 theguest 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 inbanyan and half pant and they started threatening the family members.They demanded money as well as ornaments and Trambak took outRs. 3000/-from his pocket and handed over to one of them. Some of thegang members forcibly took away the mangalsutra as well as ear-topsand dorley from the person of Vimalabai, ear-tops from the person ofSavita and silver rings which were around her feet. From the person ofManoj they removed a silver chain and a wrist watch. Thereafter theywent out of the hut and consumed liquor. After some time they A

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Are-entered the hut with weapons like knife, axe handle, sickle, spadewith handle and yokpin etc., so as to rob the house members and collectmore money and ornaments etc. They started beating the familymembers and Trambak was the first person who received assault.Sandeep and other members of the family told the dacoits to take awaywhatever they could collect from the house but no family members shouldBbe assaulted. At this stage Sandeep was assaulted and so also Shrikant@ Bhurya, Bharat and Manoj. The dacoits did not spare Vimalabai aswell. They tied hands and legs of all the family members except Manojand Vimalabai. As a result of assault Manoj, Trambak, Sandeep, Shrikantand Bharat had fallen unconscious. Three of the dacoits dragged SavitaCout of the hut and took her to the guava garden. Two of the dacoits thenpicked up Vimalabai and dragged her towards the well. One of themraped her near the well and then she was taken to the guava gardenwhere Savita was taken. Vimalabai was assaulted and brought back tothe hut. After some time the three dacoits brought Savita back but innaked condition and with injuries on her body. When the dacoits hadDentered the hut at about 10.30 p.m. the light bulb in the hut was burningand TV was on. The dacoits increased the volume of the tape recorderand after they dropped Savita in the hut, they put on shoes and startedwalking on the persons lying injured and they thought that all of themwere dead. Vimalabai (PW 8) lost her consciousness around 12 O’ ClockEin the night and till then the dacoits were present in the hut and they leftthe 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 about6:30 a.m. on 6.6.2013, one Vishnu Hagwane (PW12), nephew of theFlandlord reached the spot and had seen the dead bodies. By that time,PW1 – Manoj Satote became conscious. PW1 – Manoj Satote lodgedthe first information report against unknown persons. The investigatingofficer started investigation. It appears that at different times, theinvestigation was carried out by four different officers. Theinvestigating officer recorded the statement of the concerned witnessesGincluding 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 ofManoj and Vimalabai were seized. From the spot some weapons likewooden handle, spade with handle, yokpin and sickle were also seized.H

The seized articles were sent for chemical analysis and CA reports fromExhibit 58 to Exhibit 72 were received. That original accused nos. 1 & 2came to be arrested under arrest panchanamas (Exhibits 44 and 45) on23.6.2003 by the Crime Branch. According to the prosecution, thepolice during the course of investigation also got information that someother accused were also involved in a separate crime registered withthe police station at Bhokardhan in Jalna district on 19.06.2003 and thepolice, therefore, filed an application before the competent Courtseeking transfer of the accused in Crime No. 74 of 2003 registered withthe Bhokardhan police station and finally accused nos. 3 to 5 came to bearrested on 27.06.2003 under arrest panchanamas (Exhibits 53, 54 and55) after their custody was transferred from the police station atBhokardhan. That on the arrest of accused nos. 1 to 5 their clotheswere seized and they were subjected to medical examination. Onmedical examination, some injuries were found on accused nos. 1, 2 &4. The aforesaid accused nos. 1, 2 & 4 were seen to have sustainedsome injuries within three weeks. Medical certificates were issued bythe concerned doctor (Exhibits 133 to 135 and Exhibits 195 & 196).That during the course of the investigation, test identification parade ofaccused nos. 1 to 5 was held on 25.07.2003 by the ExecutiveMagistrate. In the test identification parade, PW1 – Manoj Satoteidentified the five accused. PW8 – Vimalabai also identified accusednos. 1, 3, 4 and 5 as the unknown persons who had entered the hut andassaulted the family members. However, she could not identifyaccused no.2. It appears that thereafter accused no.6 came to bearrested on 07.10.2004 and his test identification parade was held on9.10.2004. Both PW1 and PW8 identified the said accused also.

3.3 On completion of the investigation and finding prima faciecase against the accused, the Investigating officer filed a charge sheetagainst all the accused for the offences punishable under Sections 395,302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read withSection 34 of the IPC, Sections 396, 397 and 398 of the IPC. That thelearned Magistrate committed the case to the Court of Sessions, whichwas numbered as Sessions Case No. 43/2004.

3.4 To prove the case against the accused, the prosecution ledoral as well as documentary evidence. The prosecution examined asmany as 25 witnesses as under:

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[2019] 4 S.C.R.

13Ramesh SonawaneSpecial 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. 14Sayyad BudhanPanch for opening and resealing packet containing a chain dt. 22.8.03 Ex. 124-5 [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 Investigating Officer Dhus 19 Bhimsing Onkar In charge of Dog Squad, Panchnama dt. 29.6.2003 Ex. 16420 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 24Dr. Vilas PatilMedical 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 broughton record and relied upon the following documentary evidence:

3.6 That after the closing pursiswas submitted by the prosecution,further statement of the accused under Section 313 of the Code wasrecorded, 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 theaccused nos. 1 to 6 guilty for the offences punishable under Sections395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 readwith Section 34 of the IPC, Sections 396, 397 and 398 of the IPC, andsentenced the accused as under:

“1. The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya AppaShinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde,(5) BapuAppa Shinde & (6) Surya alias Suresh s/o Nagu aliasGangaramSinde are convicted for the offences punishable undersections 395, 302 r.w. 34 of Indian Penal Code, Section376(2)(g), 307 r.w. 34 of Indian Penal Code, Sections 396, 397r.w. 395 and Sec. 398 of Indian Penal Code.

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

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

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

4. The accused Nos. 1 to 6 are convicted for the offence punishableunder section 376(2)(g) of Indian Penal Code and they aresentenced to suffer R.I. for a period of 10 years each with fineof Rs.200/- each. In default of payment of fine, to suffer furtherR.I. for a period of 1 month each.

5. The Accused Nos. 1 to 6 are convicted for the offence punishableunder section 307 r.w. 34 of Indian Penal Code. They aresentenced 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 aperiod of 1 month each.

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A6. The Accused Nos. 1 to 6 are convicted for the offencepunishable under section 397 r.w. section 395 of Indian PenalCode. They are sentenced to suffer R.I. for a period of 7years each with fine of Rs.200/- each. In default of paymentof fine to suffer further R.I. for 1 month each.

B7. The Accused Nos. 1 to 6 are convicted for the offencepunishable under section 396 of Indian Penal Code. And theyare sentenced to suffer R.I. for 10 years each with fine ofRs.200/- each. In default of payment of fine to suffer furtherR.I. for 1 month each.

C8. The Accused Nos. 1 to 6 are acquitted of the offence punishableunder section 135 of Bombay Police Act.

9. All the sentences to run concurrently.”

4. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence imposed by the learned Sessions Court, allDthe accused preferred Criminal Appeal No. 590/2006 before the HighCourt. The learned Sessions Court made a reference to the High Courtas all the accused were imposed the death sentence. It appears thatduring the pendency of the aforesaid appeal and the confirmation case,Criminal Application No. 1 of 2006 was filed by the State of MaharashtraEand Criminal Application No. 2 of 2006 was filed by the accusedpersons before the High Court. By the common order dated 14.11.2006in both these applications, the High Court issued the following directions:

“(i) The prosecution be allowed to lead additional evidence of theSub-Divisional Magistrate who conducted the test identificationFparade in relation to accused Nos.1 to 5 and all relevantdocuments pertaining thereto.

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

(iii) In the event contradictions are established on record in theGcross-examination of PW-8, the learned Trial Judge should alsorecall PW-13 for directions of those contradictions, if any.

(iv) Since the matter of confirmation is pending, it is desired thatthe necessary recording of additional evidence be completedbefore 7th of January, 2007. List the matter for further ordersH

ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA[M. R. SHAH, J.]

in relation to hearing on 9th January, 2007. The record may betransmitted to the Trial Court for this purpose.”

4.1 Consequently, PW8 and PW13 were further cross-examinedby the defence and the prosecution examined one additional witness i.e.Shri Govind Alhate, City Magistrate at Nashik as PW25. He hadconducted the TI parade of accused nos. 1 to 5 on 25.07.2003. Throughhis evidence the additional documents at Exhibits 217 to 229 were broughton record. Exhibits 224 to 228 are the memorandum of TI parade ofeach of the accused nos. 1 to 5 and Exhibit 229 is the explanationsubmitted by the Sub-Divisional Magistrate. At this stage, it is requiredto be noted that before the Sessions Court, the Sub-Divisional Magistrate,who conducted the TI parade on 25.7.2003 was not examined, andtherefore the High Court passed the aforesaid order and directed theprosecution to lead additional evidence of Sub-Divisional Magistrate,who conducted the TI parade in relation to accused nos. 1 to 5, conductedon 25.7.2003. That from the cross-examination of PW8 and PW13 andtheir additional depositions recorded, consequent to the order passed bythe High Court in Criminal Application Nos. 1 and 2 of 2006, it wasfound that PW13 received the requisition for recording the dyingdeclaration of PW8 after she had regained consciousness on 7.6.2003and she had identified the four accused from the photographs shown toher 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, infact, identified four persons from the photographs with name, who areother than accused nos. 1 to 6. That it was found that the prosecutionwithheld the aforesaid material evidence and suppressed the materialfact. Therefore, it was also the case on behalf of the accused beforethe High Court that the prosecution was not fair and they have suppressed/withheld the material evidence from the Court and, in fact, there was noinvestigation whatsoever with respect to those four persons, who wereidentified by PW8. The High Court did not agree with the submission onbehalf of the accused and ignored the Exhibit 122 as dying declarationof PW8 – Vimalabai, recorded by the Executive Magistrate, Sonawaneon the ground that PW8 subsequently survived, Exhibit 122 cannot besaid to be a dying declaration, and that it could at the most be termed asher previous statement during the course of investigation, and that itcannot be treated as a substantive evidence and at the most it could beused for the limited purpose of corroboration or contradiction of the A

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Atestimony of its maker and in any case it cannot be admissible underSection 6 or Section 32 of the Evidence Act. That thereafter, consideringthe material on record and appreciating of evidence, the High Court bythe impugned judgment and order confirmed the conviction and sentenceimposed upon accused nos. 1, 2 & 4. However, altered the deathsentence to life imprisonment in respect of accused nos. 3, 5 & 6. TheBHigh Court also acquitted accused nos. 3, 5 & 6 for the offence underSection 376(2)(g) of the IPC. Hence, the present appeals by the originalaccused as well as the State of Maharashtra, as observed hereinabove.

5. Shri (Dr.) Yug Mohit Chaudhary, learned counsel has appearedon behalf of the original accused and Shri Nishant Katneshwarkar,Clearned counsel has appeared on behalf of the State of Maharashtra.

5.1 Learned counsel appearing on behalf of the original accusedhas vehemently submitted that in the facts and circumstances of thecase, the courts below have materially erred in convicting the accused.

D5.2 It is vehemently submitted by the learned counsel appearingon behalf of the original accused that the incident occurred after 10:30p.m. at night. The victims were living in a hut made of gunny bags in theGuava Orchard. There was no light facility in the hut. Even as per thecase of the prosecution, the accused put off the light and thereafterwhatever has happened, the same was in the torchlight. It is submittedEtherefore that it was very difficult for the witnesses, more particularlyPW1 and PW8 to identify the assailants/accused.

5.3 It is further submitted by the learned counsel appearing onbehalf of the accused that in the present case the prosecution in supportof its case has only relied upon the evidence of identification, and it is onFthis evidence alone that 6 people have been sentenced to death. It issubmitted that though the charge was for rape and murder, there is noforensic evidence corroborating the prosecution case. It is submitted bythe learned counsel appearing on behalf of the accused that, in fact, theDNA, finger print evidence and the initial identification made by theGvictim contradict the prosecution case. It is submitted that there are norecoveries, finger print evidence, CA evidence or DNA evidence linkingthe accused to the crime.

5.4 It is vehemently submitted by the learned counsel appearingon behalf of the accused that in the present case, the prosecution hasrelied upon the deposition of two eye witnesses, PW1 and PW8. It isH

vehemently submitted that as such both the witnesses - PW1 & PW8are not reliable and their deposition is not trustworthy. It is submittedtherefore both the courts below have materially erred in relying upon orconsidering the deposition of PW1 & PW8, while holding the accusedguilty.

5.5 It is further submitted by the learned counsel appearing onbehalf of the accused that according to the two eye witnesses, PW1 &PW8, the offence was committed by 7-8 persons. It is submitted howeverthat PW1, as per the deposition of PW12 - nephew of the landlord ofGuava Orchard who was the first person to reach the spot, told him thatoffence was committed by four persons.

5.6 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8’s entire evidence about the incident andthe role played by the different accused persons is an omission and/or itcan be said to be an improvement. It is submitted that none of what wasstated in the deposition before the Court was stated to the police in thevarious statements of the said witness that were recorded duringinvestigation and the first time the allegations are made after two and ahalf years later during the deposition in Court. It is submitted that whenthe aforesaid was specifically pointed out by the defence before thelearned Sessions Court as well as before the High Court, both the courtsbelow have ignored the same by observing that the omissions/improvements/contradictions are not major which would fatal the caseof the prosecution.It is submitted that as such the omissions/improvements/contradictions in the deposition of PW8 are majorcontradictions/omissions/improvements which would destroy the caseof the prosecution and which are fatal to the case of the prosecution.

5.7 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8 identified A2 in the court as the personwho had taken Savita outside the hut and impliedly raped her. It isfurther submitted that PW8 was not able to identify him in the TIP. It issubmitted that her failure to identify him in the TIP soon after the offencerenders her identification in court many years later nugatory. It issubmitted that it is on the basis of PW8’s statement about A2 being therapist that he has been given the death penalty by the High Court.

5.8 It is further submitted by the learned counsel appearing onbehalf of the accused that there was no light in the hut and the culprits A

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Ahad used torches. It is submitted that it would be highly unlikely that thewitnesses could have either been able to get a good look at their faces oreven remember them two months later. It is submitted that it is requiredto be noted that neither PW1 nor PW8 gave details about the descriptionof the culprits – heights, hair, facial features, complexion, beard etc. tothe police during the investigation, yet they claim to be able to recognise/Bidentify the accused in the TIP. It is submitted that A1 to A5 were putup in a TIP almost 2 months after the incident and 1 month after thearrest. It is submitted that A6 was put up in a TIP more than one yearlater and he too is purported to be identified by PW1 & PW8. It issubmitted that therefore the accused could not have been convicted onCthe basis of their being identified by PW1 & PW8 in the TIP, whichwere conducted after a long time and that too when no specificdescription was given either by PW1 or PW8 in the FIR and/or in theirearlier statements before the police recorded during the investigation.

5.9 It is further submitted by the learned counsel appearing onDbehalf of the accused that before evidence of identification can be reliedupon, the court has to be convinced that there was sufficient light toenable the witness to observe the features of the culprit, and that thewitness was in a fit condition to see and remember. It is submitted thatin the present case, PW1 & PW8 had fallen unconscious during theincident; PW1 very early when the incident took place, and PW8 a littleElater. They both had been severely injured and their capacity to observeand notice the features of the assailants would have been severelycompromised.

5.10 It is further submitted by the learned counsel on behalf of theaccused that the incident occurred at night at 10:30 p.m. The hut wasFmade 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, hadadmitted in his evidence that “there is no mention in the panchnama asto whether there was light or not in the shed (hut)”.G

5.11 It is further submitted by the learned counsel appearing onbehalf of the accused that though PW1 insists that the electric light wason, he also states that the culprits were using battery torches and weresearching in torchlight. He admits that he had told the police that theculprits had switched off the lights when they had started assaulting the H

victims. It is submitted that even if it is assumed that there was somelight, the prosecution case at its highest would show that during the incidentthe 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 theculprits. It is submitted that in these circumstances, neither PW1 norPW8 would have been able to get a proper look at the persons whocommitted the offence. According to the learned counsel appearing onbehalf of the accused, the following facts would prove that PW1 &PW8 were not able to get a proper look at the persons who committedthe offence:

(i) neither PW1 nor PW8 were able to describe the accused tothe police or the clothes worn by them;

(ii) no identifying features were given;

(iii) during the trial, the clothes seized from the accused were notidentified by either PW1 or PW8;

(iv) though the weapons of assault were seized from the spot ofthe offence, these were not shown to PW1 probably because hewould not have been able to identify them;

(v) even though the age of one of the appellants was 17, and 2were around 20, PW1 and PW8 told the police that the culpritswere aged 25-30 years;

(vi) neither PW1 nor PW8 were able to ascribe specific roles tothe culprits. The allegations about the commission of the assaultwere in omnibus terms. PW1 especially does not assign any roleto A2, A4, A5 and A6;

(vii) most importantly, PW8 has identified an entirely different setof people from the photo albums shown to her soon after theoffence. Her evidence during the trial shows that even at thepoint of time she was convinced that the persons she had identifiedin the photographs shown to her by the magistrate, whichadmittedly were of some other persons, were photographs of theaccused’ and

(viii) the aforesaid deficiencies in the testimonies of PW1 & PW8can only be explained by the insufficiency of light at the time ofthe incident.

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A5.12 In so far as the identification of the accused by PW1 &PW8 is concerned, it is vehemently submitted by the learned counselappearing on behalf of the accused that such an identification is notbelievable on number of grounds. It is submitted that as such it can besaid to be a mistaken identity. It is submitted that PW8 had earlieridentified some other persons. It is submitted that on 7.6.2003m i.e. 2Bdays after the offence, PW8 – Vimalabai identified the photographs of 4people from a file of notorious criminals shown to her by PW13 – RameshSonawane, Special Executive Magistrate in the hospital as those whocommitted the offence. The present accused were not among thosefour persons identified by PW8 from the photo album.

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5.13 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8’s statement identifying 4 other peopleon 7.6.2003 is the first identification made less than 2 days after theincident and is closest to the date of incident. This identification wasmade by PW8 when the images were still fresh in her mind and memoryDhad not faded. The subsequent identification by PW1 and PW8 identifyingthe present accused occurred on 25.7.2003 which is more than 1 ½months after the date of incident wherein PW8 failed to identify A2, andattributed an entirely contrary role to A6. It is submitted that the photoidentification being first in point of time and close to the date of offenceis of great significance.E

5.14 It is further submitted by the learned counsel appearing onbehalf of the accused that the results of photo identification completelycontradict PW8’s identification of the accused in TIP and the court. It issubmitted that in the light of this contradiction, her TIP identification andcourt identification are liable to be set aside. It is further submitted, thatFthe identification in the court is a substantive evidence which is materiallycontradicted by the photo identification and therefore identification incourt cannot be relied upon.

5.15 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8’s identification of 4 other people evenGcontradicts the identification made by PW1 in the TIP and court andtherefore renders the same unreliable. It is further submitted that as perPW1’s own testimony, he lost consciousness soon after the assailantsentered the hut. It is also submitted that PW1 lost consciousness muchbefore PW8.

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5.16 It is further submitted by the learned counsel appearing onbehalf of the accused that accounting for PW8’s earlier identification of4 persons and subsequent identification of the present 6 accused, PW8has in all identified 10 people as accused whereas it is the case of theprosecution that only 7 persons have committed the said offence. It issubmitted that due to this mistaken identification by PW8, no reliancecan be placed on PW8’s evidence of identification of the accused. Insupport of his submission, he has relied upon the decisions of this Courtin 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 onbehalf of the accused that PW1 in his evidence in court had said that theoffence was committed by 7-8 persons. He had said the same thing inhis 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, beforebeing taken to hospital, he had told PW12 (the person who discoveredthe crime) that the offence was committed by 4-5 persons. It is submittedthat this huge discrepancy in the number of assailants casts a seriousdoubt over the reliability of the evidence of PW1 and PW8 that thisoffence was committed by 7-8 persons. Their subsequent evidence incourt about the number of assailants and role played by each of theaccused is clearly an improvement and contradicts what they had saidearlier.

5.18 It is further submitted by the learned counsel appearing onbehalf of the accused that similarly in her testimony in Court, PW8 hadsaid that the offence was committed by 7 persons. In her first statementto 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 andPW8 of the accused is strengthened by the following facts:

(i) PW1 has repeatedly stated that the culprits spoke with them inHindi. According to him, they were also speaking amongst themselvesin Hindi. PW8 has confirmed this. The victims are all Marathi speakers.According to the police investigation, the accused-appellants too hailfrom Maharashtra and are Marathi speakers. If the accused-appellantswere to speak with the victims they would have spoken in Marathi not inHindi. The fact that the culprits spoke in Hindi clearly indicates thatthey were not Marathi speakers. This also points to the false implicationof the accused-appellants in this offence.

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A5.19 It is further submitted by the learned counsel appearing onbehalf of the accused that as such PW8’s entire testimony in the courthas the omission and/or improvement. It is submitted that prior to herdeposition in court, two statements dated 6.6.2003 and 7.6.2003 wererecorded by the police and the magistrate respectively. It is submittedthat what is stated by PW8 in the court was not stated by her in herBearlier statements, more particularly with respect to how the incidenthad taken place. It is submitted that this evidence has come for the firsttime through her deposition in court by way of an improvement amountingto a contradiction. It is submitted that PW8 in her earlier statements,recorded during the investigation, has neither given any details of theCassault or of the roles played by different persons. It is submitted thateven in the TIP, she did not attribute any role to the persons she identified,and neither did she do so after the TIP in any statement recorded by thepolice. It is submitted that for the first time PW8 gave any details aboutthe incident for ascribed role to the accused persons, two and a half years later in the court and never before that. It is submitted thereforeDthat her failure to give any information or statement to the police and thetwo magistrates either about the events occurring during the incident orthe role played by the different persons renders her evidence on thispoint unreliable.

5.20 It is further submitted by the learned counsel appearing onEbehalf of the accused that in fact PW8 suppressed the material factfrom the court when her first deposition was recorded by the learnedSessions Court. It is submitted that PW8 suppressed the material factfrom the Court that in fact on 7.6.2003 she was shown the photographsbefore the executive magistrate and that she identified four persons whoFare other than the accused who came to be tried. It is submitted thatwhen she was further confronted with the same, in her further cross-examination, which was recorded pursuant to order dated 14.06.2006passed by the High Court while hearing the Confirmation Case, sheturned around and stated that she identified four persons having committedthe offence, who were out of the six persons she identified in TIP andGbefore the Court. It is submitted that the same is a material contradictionand it was a case of material suppression and therefore PW8’s testimonyis not reliable and trustworthy and therefore it would be unsafe to relyupon the deposition of such witness as PW8 and to convict the accusedrelying upon the deposition of such a witness.H

5.21 In so far as A2 is concerned, it is further submitted by thelearned counsel appearing on behalf of the accused that though PW8claimed that A2 had taken Savita out of the hut and raped her and broughther back in a naked condition, she was unable to identify A2 in TIP. It issubmitted that her identification in court of A2, unsupported by a previousidentification in the TIP cannot be accepted, especially given the lightconditions at that time and the fact that she herself became unconsciousduring the proceedings. It is submitted that there is no recovery fromA2. PW8 is the only one who said that A2 was involved in Savita’srape. It is submitted that it is on the basis of this statement,uncorroborated by a previous TIP, that A2 has been singled out andgiven the death sentence. It is submitted that as such the learned SessionsCourt erred in holding that PW8 identified all the accused in the TIP andidentified A6 in the second TIP. It is submitted that it is a clear error asPW8 did not identify A2 in the first TIP.

5.22 In so far as the identification of and role attributed to A6 isconcerned, Itis further submitted by the learned counsel appearing onbehalf of the accused that A6 was put up for identification in the secondTIP conducted by PW13 on 7.10.2004. It is submitted that only PW1deposes to having identified A6 in the second TIP. PW8 does not speakof attending any TIP where she identified A6. It is submitted that PW13’sstatement that PW8 identified A6 in the second TIP is hearsay andinadmissible as such because PW8 does not mention anything about thesecond TIP. She says that she was called for a TIP where she identifiedfour persons and that these four persons were present in court out of thesix accused persons.

5.23 It is further submitted by the learned counsel appearing onbehalf of the accused that PW13, the Special Executive Magistrateconducted the TI parade for A6. It is submitted that he is the samemagistrate who earlier recorded PW8’s statement on 7.6.2003 whereshe identified 4 other persons. It is submitted therefore that he hadtherefore already participated in the investigation prior to this parade. Itis submitted that PW13, the executive magistrate, does not mention anyprecautions taken by him to prevent the witnesses seeing the accusedprior to the parade. It is submitted that on the contrary he admits thatthe parade was held in an open space. It is submitted that TI paradeshould have been held in a closed room to prevent the witnesses whoare outside from seeing the accused being brought to the parade or his A

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Aplace in the lineup. It is submitted that there is also no statement that thedummies resembled the accused persons. It is submitted that as suchneither PW1 nor PW8 who claimed to be the eye witnesses gave anydescription with respect to the accused or the persons who committedthe offence, and therefore, on what basis dummies were selected isquestionable. It is submitted that as such the executive magistrate wasBrequired to be selected the dummies himself but he admits that dummieswere selected by the police.

5.24 It is further submitted by the learned counsel appearing onbehalf of the accused that as per PW13’s evidence, PW8 identified A6as the person who had assaulted her, dragged her daughter out of theChut and raped her. However, in the absence of PW8 having deposedanything 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 onbehalf of the accused that PW13’s statement attributed to PW8 that A6Dhad dragged Savita outside the hut is contradicted by her oral evidencein court where she says that A1, A2 and A4 dragged Savita outside thehut. The persons who had dragged Savita outside the hut were obviouslythe same ones who had raped her. In her evidence in court PW8 wasquite clear that it was three persons who done this, and she named A1,EA2 and A4 as those three. In court, she does not attribute this role toA6. It was on this basis that the High Court upheld their death sentenceand distinguished their case from the others whose sentences werecommuted. Her statement during the TIP contradicts her statement incourt and gives an inconsistent account of the events.

F5.26 It is further submitted by the learned counsel appearing onbehalf of the accused that if the ‘her’ refers to PW8 herself, then thisrole attributed by PW8 to A6 is inconsistent with the role of PW1 attributesto A6 when he identifies him in the parade, which is that A6 had draggedSavita outside the hut. As mentioned earlier, the persons who draggedSavita outside the hut were the ones who raped her.G

5.27 It is further submitted by the learned counsel appearing onbehalf of the accused that in court PW1 does not mention Savita beingtaken outside the hut at all. In fact, his deposition makes it clear that hehad fainted and did not witness any assault on Savita.

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5.28 It is further submitted by the learned counsel appearing onbehalf of the accused that even in the present case the delay in testidentification parade is fatal to the case of the prosecution. It is submittedthat in the present case, the offence occurred on 5.6.2003, the date ofarrest of the accused is 23[rd] and 27[th] June, 2003, and the TIP was heldon 25.7.2003, i.e., 50 days from the date of the offence and 33 daysafter the arrest of A1 and A2. It is submitted that there is no explanationforthcoming from the prosecution for the delay in conducting TIP.According to the learned counsel, the most likely explanation is that thisperiod was used by the police to show photographs to PW1 and PW8 soas to make them memorize the feature of the accused.

5.29 It is further submitted by the learned counsel appearing onbehalf of the accused that in so far as the TIP in respect of A6 isconcerned, the TIP is vitiated on account of delay as A6 was arrestedmore than one year later and the TIP for A6 was conducted more thanone year later.

5.30 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8 has admitted that she had come twiceor thrice to court prior to her deposition. It is submitted that during thesevisits, she would have definitely seen the accused persons in the dockand therefore her deposition in court does not have much significance.

5.31 It is further submitted by the learned counsel appearing onbehalf of the accused that even otherwise no reliance can be placedupon the deposition of PW8. It is submitted that first of all PW8 doesnot say anything in her first deposition with respect to her statementrecorded by the executive magistrate on 7.6.2003, and that she wasshown the photographs from the album and she having identified fourpersons having committed the offence were other than six accusedpersons who were tried. It is submitted that it is important to note thatPW8 denied in her first deposition that the photographs of the accusedwere shown to her by the police. It is clear from the evidence that whenPW8 denied the suggestion that she was not shown the photographs,she was not telling the truth. It is submitted that when she was calledfor further cross-examination, pursuant to the order passed by the HighCourt, she then admitted that , (i) police had shown 4 photographs of theaccused persons, and that she herself told that those were the sameaccused persons of the incident; and (ii) that when my statement was A

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Arecorded by the magistrate, the persons who I had identified as accusedpersons were some other persons other than the present accused. It istherefore submitted that the aforesaid is just contrary to what the executivemagistrate has recorded in the first statement of PW8 on 7.6.2003.

5.32 It is further submitted by the learned counsel appearing onBbehalf of the accused that DNA or Forensic evidence will not supportthe case of the prosecution and/or linked the accused to the crime. It issubmitted that though the charge is of rape and murder, there is no forensicevidence corroborating the prosecution case.

5.33 It is further submitted by the learned counsel appearing onCbehalf of the accused that the case of the prosecution is that the accused-appellants were consuming liquor at the spot from liquor bottles andfrom a handi. Empty liquor bottles, a handi and some glasses wereseized from the scene of crime. It is submitted that there is no DNA orfinger prints on the glass and liquor bottles to connect the appellants withthe crime. The IO, PW20 admitted that the finger print report did notDimplicate the accused. It is important to note that the appellants’ DNAsamples were collected during the investigation, as admitted by the IO,PW18 and were sent for DNA analysis, but the prosecution neverpresented the report to the court for the obvious reason that it wouldhave exonerated the appellants.

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5.34 It is further submitted that no public hair, DNA, semen orblood of the appellants was found on any of the victims. Samples werecollected from the appellants and sent for analysis but the results did notincriminate the appellants. It is submitted that the police seized 14 slippersfrom the scene of the crime, but the same could not be linked to theFappellants by either matching them or making the accused were them.No one identified those slippers as being worn by the appellants orbelonging to the appellants.

5.35 It is further submitted by the learned counsel appearing onbehalf of the accused - appellants that clothes were seized from theGappellants when they were arrested, as well as from the homes duringthe house searches, but nothing was found to connect the accused withthe said crime. It is submitted that footprints were found around thehouse the next morning when the bodies were discovered, but thosefinger prints were not matched to the appellants. It is submitted thateven the blood found in the nail clippings of Savita, was not connected toHthe appellants.

5.36 It is further submitted by the learned counsel appearing onbehalf 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 theplace. It is submitted that as per the prosecution case, Rs.3,000/- in cashwere taken from Trambak; a mangalsutra, dorley and ear tops weretaken from PW8; anklets and ear tops were taken from Savita; and awatch and chain were taken from PW1 by the culprits. It is submittedthat no stolen property was found or recovered from any of the accused.

5.37 It is further submitted by the learned counsel appearing onbehalf of the accused that a white metal chain was allegedly seizedduring the house search of Bhojubai Appa Shinde, the mother of A5 on26.6.2003. Her signature is also not there on the panchnama. Moreover,the panchnama does not state that the seized property was sealed. It issubmitted that the chain is described as “one white metal chain with 30links, middle link is broken and tied with a string. Value 0”. It is submittedthat the chain had no special markings on it and was of a mass-producedtype that is freely available. The prosecution claimed that this belongedto PW1. PW1 himself admitted that he had not given any description ofthe chain to the police. A white metal chain is not such an item that couldonly 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. Itis vehemently submitted that had this crime been committed by theaccused, surely all the stolen property would have been recovered. Theseizure of a commonly available silver chain without any distinctivemarkings is too feeble a link to be held against the accused.

5.38 It is further submitted by the learned counsel appearing onbehalf of the accused that no Magistrate/Special Executive Magistrate/Tehsilder has been examined regarding conducting of the TIP for thesilver chain. No witness has been examined who was present when thechain was identified by PW1. PW14 is the panch before whom thepacket containing the chain was opened and then resealed on the veryday that PW1 claims he identified it, but PW14 is not a witness to theidentification and he does not depose about it.

5.39 It is further submitted by the learned counsel appearing onbehalf of the accused that PW8 does not identify the chain. It is notshown to her during her evidence. In Court, PW8 stated “Muddemalarticle nos. 72 and 40 are the ornaments of Savita”. In inquest panchnamadated 6.6.2003 (Exhibit 27) conducted over Savita’s dead body, the corpse A

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Ais described as “on her neck there is a white pearl necklace, and on eachof her hands there are 2-2 white metal bangles”. These articles, amongothers, have been seized vide panchnama (Exhibit 42 dated 6.6.2003).It is submitted that it is possible that some of these ornaments seizedfrom Savita’s person have been shown to and identified by PW8 duringher testimony.B

5.40 It is further submitted by the learned counsel appearing onbehalf of the accused that in the absence of any recovery or seizure ofany kind that connects the appellants to the crime and the prosecutionhas not been able to adduce any evidence corroborating the identificationby PW1 and PW8, the conviction of the accused cannot be sustainedCbased on identification alone. In support of his submission, learned counselhas 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 onbehalf of the accused that insofar as conviction of the accused underDSection 376(2)(g) of the IPC is concerned, the same is based on noevidence. It is submitted that prosecution case is that according to theevidence of PW8, the A1, A2 and A4 dragged the deceased Savita outof the hut and brought her back naked and bleeding by which time shewas dead. It is submitted that as per the CA report dated 27.11.2003, noEsemen was found in the pubic hair, vaginal or uterus swab of deceasedSavita. It is submitted that the blood found in the nail clippings of thedeceased Savita matched with her own blood group and it could not beproven that the blood group belonged to the accused.

5.42 It is further submitted by the learned counsel appearing onFbehalf of the accused that PW8 on whose testimony the prosecution isrelying upon to convict the accused under Section 376(2)(g) of the IPCfailed to identify A2 in the TIP conducted on 25.7.2003 and identified A2for the first time in court. It is submitted that in the absence of anyprevious identification of A2, it is extremely dangerous to convict A2under section 376(2)(g) of the IPC, solely on the basis of identification inGcourt by PW8.

5.43 It is further submitted by the learned counsel appearing onbehalf of the accused that while convicting the accused under Section376(2)(g) of the IPC, the High Court considered the failure of the accusedto explain their injuries as an incriminating circumstance against them.H

It is submitted that mere failure of the accused to explain injuries cannotbe held against them if the nature of the injuries are such that they canbe caused due to other events. In support of his submission, learnedcounsel for the accused has heavily relied upon the decision of this Courtin the case of Ram Sunder Sen vs. Narender, (2016) 15 SCC 440.

5.44 It is further submitted by the learned counsel appearing onbehalf of the accused that one of the reasons the High Court has convictedthe accused under Section 376(2)(g) of the IPC is the presence of injurymarks on the accused. The High Court has held that deceased Savitacaused these injuries on the accused as a result of resistance. It issubmitted that it has come in the evidence of PW16-Dr. Shimpi, whoexamined A4 that the injuries sustained by A4 could have been causedby labour or agricultural work and the said injuries could be older thanthree weeks, i.e., before the date of the offence. It is further submittedby the learned counsel appearing on behalf of the accused that evenfrom the arrest memo, it can be seen that and even otherwise the accusedare agriculturist labourer and therefore such minor injuries were possiblewhile doing the labour work or agricultural work. It is submitted thattherefore non-explanation of the said injuries by the accused in their 313statement could not have been held to be an incriminating circumstanceagainst the accused. It is submitted therefore that the High Court hascommitted a grave error in considering the above circumstance againstthe accused and/or drawing an adverse inference.

5.45 It is further submitted by the learned counsel appearing onbehalf of the accused that PW24-Dr. Vilas Appasaheb Patil examinedA1 & A2 and stated that the injuries found on them were possible if aperson tried to resist another person. It is submitted that merely becausethe injuries are possible on account of resistance does not mean that theinjuries can be considered as conclusively to have been caused duringcommission of rape. It is submitted that such injuries do not link thepresent accused with the rape of Savita.

5.46 It is further submitted by the learned counsel appearing onbehalf of the accused that even the investigation was not fair and theprosecution suppressed the material facts before the Court. It is submittedby the learned counsel that firstly the prosecution suppressed that on7.6.2003 the statement/dying declaration of PW8 was recorded by theexecutive magistrate and that PW8 was shown the photographs from A

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Athe 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 thelearned counsel that despite PW8 identified the 4 persons havingcommitted the offence, neither they were arrested nor there was anyfurther investigation with respect to those four persons, who wereidentified by PW8. It is further submitted, that even the executiveBmagistrate, who even subsequently conducted the TI parade on 25.7.2003did not say anything in his deposition. It is submitted by the learnedcounsel that therefore the prosecution has failed to perform its dutyinsofar as the fair investigation is concerned. It is submitted that theduty of the prosecution is not to get the conviction of some persons, butCit is the duty of the prosecution to see that the real culprits are not scotfree and the innocent persons are not held guilty. It is submitted that theprosecution owes an obligation to be fair and just. It is submitted by thelearned counsel appearing on behalf of the accused that it is the duty ofthe prosecution to ensure that all material facts are brought on record so

that there might not be any miscarriage of justice. It is submitted thatDthe prosecution is not expected to show a thirst to reach the case in theconviction of the accused somehow or the other irrespective of the truefacts involved in the case. It is submitted that the expected attitude ofthe prosecution must be couched in fairness not only to the court, but tothe accused as well. It is submitted that even it was the duty of theEprosecution to winch it to the fore and make it available to the accusedany material which may even help the accused. It is submitted that inthe present case, it appears that the prosecution/investigating officer/theexecutive magistrate deliberately withheld/suppressed the aforesaidmaterial facts from the court. It is submitted that if the investigationwould have been conducted even with respect to those four personsFwho were identified by PW8, in that case the result would have beendifferent. It is submitted that if the fact that PW8 in her statementbefore the executive magistrate recorded on 7.6.2003 identified fourpersons who committed the offence with names and they were otherthan the present accused, would have come on record, in that case, itGwould have gone against the prosecution case and more particularly thecase on behalf of PW1 & PW8 that there were 7-8 persons whocommitted the offence. It is submitted that if the aforesaid four personswould have been added, in that case, the accused would have beenmore than 12 and therefore it would have been fatal to the case of theprosecution, and therefore the prosecution/investigating officer hadHdeliberately and wilfully suppressed the aforesaid material fact.

5.47 It is further submitted by the learned counsel that in fact allthe accused persons were belonging to nomadic tribes, and in fact, theywere arrested by transfer warrant and were forcefully involved in thecase, that too after a period one month and only with a view to show thatthe police has solved the case. It is submitted that otherwise there wasno reason to arrest the accused persons by way of transfer warrant,when neither PW1 nor PW8 gave any description of the persons, whocommitted the offence.

5.48 Making the above submissions, it is prayed to allow theappeals preferred by the accused and acquit them for the offences forwhich they are convicted.

5.49 Shri (Dr.) Yug Mohit Chaudhary, learned counsel appearingfor the accused has further submitted that in view of the above factsand 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 forno fault of them they are languishing in the jail since last 16 years andtheir valuable years have gone in the jail, all of them are entitled to areasonable compensation. It is submitted that in fact out of the six accusedwho were convicted, one of the accused was a juvenile. Till the year2012 and till he was declared a juvenile and thereafter released, he wasunder a constant trauma which affected his health, physical as well asmental. In support of the above, he has relied upon a certificate of onePsychiatrist Doctor, Dr.Ashit Sheth. It is further submitted that evenother accused who are in jail since last 16 years were also under traumaand under the hanging sword on them and the threat of the death sentenceand therefore they remained under constant stress which are affectingtheir health and life. It is submitted therefore that this is a fit case toexercise the powers under Article 142 of the Constitution of India toaward a reasonable compensation.

6. All these appeals preferred by the accused are vehementlyopposed by Shri Nishant Katneshwarkar, learned standing counsel forthe State of Maharashtra.

6.1 It is submitted by the learned counsel appearing on behalf ofthe State of Maharashtra that in the present case there are concurrentfindings recorded by the learned Sessions Court as well as the HighCourt holding them guilty for the offences punishable under Sections395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read A

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Awith Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. It issubmitted that findings recorded by the learned Sessions Court, affirmedby the High Court, are on appreciation of evidence and therefore thesame are not required to be interfered with by this Court.

6.2 It is further submitted by the learned counsel for the State ofBMaharashtra that in the present case the prosecution has been successfulin proving the case against all the accused persons by leading cogentevidence, both oral as well as documentary. It is submitted that in thepresent case both PW1 & PW8 who are the eye witnesses and whowere present at the time of the incident have fully supported the case ofthe prosecution.C

6.3 It is further submitted by the learned counsel for the State ofMaharashtra that as such all the accused persons have been identifiedby PW1 & PW8 in the TIP/before the Court. It is submitted that thereforeboth the learned Sessions Court as well as the High Court have rightlyheld the accused guilty, relying upon the deposition of PW1 & PW8 –Dinjured eye witnesses.

6.4 Now insofar as the submission on behalf of the accused withrespect to omissions/improvements/contradictions are concerned, it issubmitted that as rightly observed by the High Court such omissions/improvements/contradictions are minor and are not fatal to the case ofEthe prosecution as a whole. It is submitted therefore that the High Courthas 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 onbehalf of the State that so far as non-disclosure of the factum of recordingFthe statement of PW8 on 7.6.2003 by the executive magistrate and shehaving identified four persons from the photographs is concerned, it issubmitted that as such the said omission will not be fatal to the case ofthe prosecution as PW1 & PW8 have specifically identified all the accusedpersons either in the TIP and/or before the Court. It is submitted thatGmerely because some other four persons who might have been identifiedby PW8 might not have been arrested and/or there was no furtherinvestigation qua them, the said benefit cannot be given to the accusedin the present case as all the accused persons were identified by PW1& PW8.

6.6 It is further submitted by the learned counsel appearing onbehalf of the State that in the present case one of the articles stolenfrom the place of the incident was found from the house of the one ofthe accused and therefore to that extent recovery was made and thereforemerely because other articles looted were not found, the recovery ofone of the articles cannot be ignored.

6.7 It is further submitted that even some of the accused failed toexplain the injuries found on their bodies in their statement under Section313 of the Code and therefore an adverse inference has rightly beendrawn against them and they are rightly convicted.

6.8 It is further submitted by the learned counsel appearing forthe State that even the prosecution has been successful in proving thatSavita was subjected to rape and it is established and proved by leavingthe medical evidence. It is submitted therefore that factum of the rapeon the deceased Savita has been established and proved. It is submittedthat even the prosecution has been successful in proving the rape onPW8 also.

6.9 It is submitted by the learned counsel that all the six accusedhave committed a very serious offence and have committed the murderof 5 persons and two ladies were raped and the entire family was finished,their conviction is required to be upheld and all the accused are requiredto be sentenced to death penalty. Therefore, it is prayed to dismiss theappeals preferred by the accused and to allow the appeals preferred bythe 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 therespective parties at great length.

7.1 At the outset, it is required to be noted that in the presentappeals, respective accused were charged for the offences punishableunder 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 398of the IPC. The learned Sessions Court convicted the accused underSections 395, 302 read with Section 34, Section 376(2)(g), Section 307read with Section 34, Sections 396, 397 read with Section 395 and Section398 of the IPC. Over and above the other sentences, all the accused A

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Awere awarded the death penalty by the learned Sessions Court. TheHigh Court confirmed and conviction and sentence imposed by the learnedSessions Court so far as A1, A2 and A4 are concerned, and evenconfirmed the death penalty. While maintaining the conviction for theoffences 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, A5Band A6 for the offences punishable under Section 376(2)(g) of the IPCand commuted the death sentence to life imprisonment.

8. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, both the accused as wellas the State of Maharashtra have preferred the present appeals. TheCaccused are before this Court challenging their conviction and sentenceimposed by the High Court, and the State of Maharashtra is aggrievedby the impugned judgment and order passed by the High Court insofaras acquitting the original accused nos. A3, A5 and A6 for the offencesunder Section 376(2)(g) of the IPC and commuting the death sentenceDto life imprisonment.

9. We have perused and gone through in depth the impugnedjudgment and order passed by the High Court as well as the judgmentand order passed by the learned Sessions Court. We have gone throughand considered in detail the evidence on record, both oral as well asEdocumentary.

9.1 As observed hereinabove, and even as per the case of theprosecution, the incident occurred after 10:30 p.m. at night. The victimswere living in a hut made by gunny bags in guava orchard. As per thecase of the prosecution, the accused committed the murder, robbery asFwell as the rape of one lady, named Savita and PW8 – Vimalabai. Asper the case of the prosecution, the accused stripped the ornamentsfrom the wife and daughter of Trambak, and also took Rs.3,000/- fromhim. As per the case of the prosecution, A2 raped Savita and took heroutside the hut and thereafter she was killed. As per the case of theprosecution, one Trambak was living in the hut in the guava orchard withGhis family (wife, three sons and one daughter). In the unfortunate incident,Trambak, his daughter Savita, his nephew Bharat, his sons Sandeep andBhurya died. PW1 & PW8 – son Manoj and Trambak’s wife Vimalabaisurvived. Therefore, according to the prosecution case, PW1 & PW8were 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 theCourt. Considering the entire material on record, it appears that theprosecution in support of its case has solely relied on the evidence ofidentification. At this stage, it is required to be noted that though thecharge is of rape and murder, there is no forensic evidence corroboratingthe prosecution case. Though, as per the case of the prosecution, theaccused stripped the ornaments from the wife and daughter of Trambakand took Rs.3,000/- from Trambak, there is no recovery except onebroken white metal chain, which was allegedly seized during the housesearch of BhojubaiAppa Shinde, the mother of A5 on 26.06.2003. Theaforesaid in detail shall be discussed hereinbelow.

9.2 As observed hereinabove, the case rests on the deposition ofPW1 & PW8 and they identified the accused in the TI parade as well asbefore the Court. Other than the evidence of PW1 & PW8, there is noother evidence to link the accused to the offence. Looking to the natureof the crime committed in which five persons were killed brutally andone was also raped, and the serious consequence it may have for thoseconvicted, it is necessary that the evidence should be of a very highquality and satisfy the higher burden of proof. Therefore, we haveminutely 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 theinvestigating officer, PW18 – ACP Bhaskarrao Dhus.

9.3 As per the case of the prosecution, which has been believedby the learned Sessions Court as well as the High Court, PW1 & PW8identified the accused persons in the TI parade as well as before theCourt. At this stage, it is required to be noted that PW8 identified A2 inthe Court as the person who had taken Savita outside the hut, and rapedher. However, she was not able to identify him in the TI parade. Thefirst TI parade was conducted on 25.07.2003. The offence occurred on5.6.2003; accused nos. 1 to 5 were arrested on 23[rd] and 27[th] June, 2003and the TI parade was held on 25.07.2003, i.e., 50 days from the date ofoffence and 33 days after the arrest of A1 & A2. It is required to benoted that the accused persons were arrested on transfer warrant. None AB

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Aof the eye witnesses, i.e., PW1 & PW8 were able to give any particulars/description of the accused. Even A6 was arrested after more than oneyear, and the TI parade for A6 was conducted more than one year later.There is no explanation forthcoming from the prosecution for the delayin conducting the TI parade. Therefore, the identification of the accusedby PW1 & PW8, which is the sole basis for convicting the accused andBawarding 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 stemsCand plants. There was no door to the hut. There is no mention in thepanchnama 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 theculprits were using battery torches and were searching in torchlight.According to him, he told the police that the culprits had switched off theDlights when they had started assaulting the victims. Even if it is assumedthat there was some light initially, and the case of the prosecution isbelieved that during the incident the light bulb was burning for a fewminutes before it was turned off, the rest of the incident took placeunder torchlights carried by the culprits. Under the circumstances, neitherPW1 nor PW8 would have been able to get a proper look at the personsEwho committed the offence. It is required to be considered coupledwith the fact that neither PW1 nor PW8 were able to describe the accusedto the police or the clothes worn by them. No identifying features weregiven. In the trial, the clothes seized from the accused were not identifiedby either PW1 or PW8. Even the age of one of the accused was 17 andFtwo other accused were around 20 years, PW1 & PW8 told the policethat the culprits were aged 25-30 years. Neither PW1 nor PW8 wereable to ascribe the specific roles to the culprits. Even, according to theprosecution, PW1 & PW8 had fallen unconscious during the incident.Therefore, the said witnesses were not in a fit condition to see andremember and that is why neither PW1 nor PW8 gave details about theGdescription of the culprits – heights, hair, facial features, complexion,beard, etc. to the police during the investigation. Even PW8’s entireevidence about the incident and the role played by different accusedpersons is an omission/improvement. Whatever is stated by PW8 in herdeposition, the same is stated for the first time in her deposition, whichH

was recorded two and a half years later. Whatever is alleged in herdeposition in the Court, which was recorded two and a half years later,was not stated to the police/special executive magistrate in her statementsthat were recorded during the investigation. When the same was pointedout to the courts below, the courts below, more particularly the HighCourt has not accepted the case of the defence by observing that theomissions are minor omissions. On scanning the entire evidence of PW8,we do not accept the observation of the High Court that the omissionsare minor omissions. On considering the deposition of PW8 about theincident and the role alleged to have been played by different accusedpersons, we are of the opinion that the omissions are major omissionsand improvements which are fatal to the case of the prosecution and inany case, it creates reasonable doubt on the trustworthiness and thereliability of PW8.

9.5 Even the identification of the accused by PW1 in the TI paradealso creates a serious doubt, apart from the fact that there was a delayin conducting the TI parade, and that there is no explanation by theprosecution in conducting the TI parade belatedly. As observedhereinabove, and for the reasons stated above, it is very doubtful whetherPW1 & PW8 could have properly seen the accused. As observedhereinabove, there was no specific description of the accused given bythe said two witnesses. There are contradictions with respect to theage of some of the accused. PW1 has categorically stated that theculprits spoke with him in Hindi. According to him, they were alsospeaking amongst themselves in Hindi. PW8 has also confirmed thesame.All the victims are Marathi speakers. The accused also hail fromMaharashtra and are Marathi speakers. Therefore, if the accused wereto speak with the victims, they would have spoken in Marathi and not inHindi. Therefore, there is a possibility that the culprits who were speakingin Hindi were not Marathi speakers and they might be outsiders – non-Marathis.

9.6 As observed hereinabove, neither PW1 nor PW8 gave anydescription to the I.O. and/or to the Sub-Divisional Magistrate whoconducted the TI parade. Therefore, on what basis the other dummypersons were brought and were present in TI parade is not forthcomingfrom the prosecution. There is also no statement that the dummiesresembled the accused persons. Though, the special executive magistratewho had conducted the TI parade is required to select the dummy persons, A

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Ain the present case and even admitted by PW13 – special executivemagistrate that dummy persons were selected by the police. Consideringthe aforesaid facts and circumstances, we are of the opinion that it is notsafe to convict the accused solely on the basis of their identification byPW1 & PW8 in the TI parade and/or before the Court.

B9.7 As observed hereinabove, except the deposition of PW1 &PW8 and they identified the accused in the TI parade and/or before theCourt (which for the reasons stated hereinabove, the conviction cannotrest on such identification), there is no other evidence, either scientificand/or other, corroborating the prosecution case. There is no forensicevidence corroborating the prosecution case. In fact, the DNA, fingerCprints evidence and CA evidence do not support the case of theprosecution, and/or link the accused to the crime. The case of theprosecution is that the accused had some liquor at the spot from liquorbottles and from a handi. Empty liquor bottles, a handi and some glasseswere seized from the scene of crime. There is no DNA or finger prints Don the glass and liquor bottles to connect the accused with the crime. Infact, PW20 – IO has admitted that the finger print report did not implicatethe accused. At this stage, it is required to be noted that the accused’DNA samples were collected during the investigation and in fact weresent for DNA analysis, but the prosecution never presented the report to the Court. No pubic hair, DNA, semen or blood of the accused wereEfound on any of the victims. It appears that the samples were collectedfrom the accused and were sent for analysis, but the result did notincriminate the accused.

9.8 As per the case of the prosecution, Rs.3,000/- in cash weretaken from Trambak, a mangalsutra, dorley and ear tops were takenFfrom PW8; anklets and ear tops were taken from Savita; and a watchand chain were taken from PW1 by the culprits. However, no stolenproperty has been found or recovered from any of the accused except abroken white metal chain which was seized during the house search ofthe mother of A5 on 26.06.2003. However, her signature is not there onGthe panchnama. The panchnama also does not state that the seizedproperty was sealed. The chain was described as “one white metalchain with 30 links, middle link is broken and tied with a string. The valueof the same was stated to be zero”. The chain had no special markingson it and the same is freely available. Though the prosecution claimedthat the said chain belongs to PW1, PW1 had admitted that he has notH

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 anydistinctive markings would be a weak piece of evidence to hold theaccused guilty.

9.9 Apart from the above, on considering the entire deposition ofPW8, 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 inCourt is full of material omissions/contradictions/improvements. Priorto her deposition in Court, her two statements dated 6.6.2003 and7.6.2003 were recorded by the police and the magistrate respectively.The entire description of incident given by PW8 in the Court has notbeen stated by her in her earlier statements. This evidence has comefor 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 assaultor the roles played by different persons during the incident. Even in theTI parade, she did not attribute any role to the persons she identified.The first time PW8 gave any details about the incident or ascribed theroles to the accused persons was two and a half years later in the Courtand never before that. Her failure to give any statement to the policeand the two magistrates either about the events occurring during theincident or the roles played by different persons render her evidenceunreliable. When in her cross-examination, she was confronted withsuch omissions/improvements, she has taken only one thing that she toldthis to the police but she does not know why the police did not record thesame. 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 convictthe accused. It is also required to be noted that even according to PW8,she was subjected to rape, however, the prosecution has miserably failedto prove the rape on her by leading cogent evidence, more particularlythe forensic evidence. Therefore, to that extent also she is not reliable.

9.10 There is one another reason why PW8 is not to be believedon the ground that she is unreliable and not trustworthy. It is required tobe noted that on 7.6.2003, i.e, two days after the incident, her statementwas recorded by PW13 – Ramesh Sonawane – Special ExecutiveMagistrate in the hospital. PW13 was called by the investigating officerto record her dying declaration. It has come on record that her dying A

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Adeclaration/statement was recorded on 7.6.2003, i.e., two days after theincident, PW8 identified photographs of four people from album ofnotorious criminals as those who committed the offence. Admittedly,the present accused are not amongst those four persons identified byPW8 from the photo album. It is required to be noted that in her depositionshe had not stated anything about her statement recorded by PW13 onB7.6.2003 and she identified the photographs of four people from albumof notorious criminals shown to her. Therefore, to that extent, there isalso a suppression of material fact by PW8. In fact, the aforesaid waswithheld by the prosecution during the trial. Only during hearing of theappeal before the High Court, it came to the light and therefore pursuantCto the order passed by the High Court she was recalled and when shewas confronted with the above, very surprisingly, she stated that fourpersons who were identified by her were the same persons out of thepresent accused. However, such a stand is just contrary to the depositionof PW13 – special executive magistrate. What is stated by her in herdeposition when she was recalled pursuant to the order passed by theDHigh Court is not corroborated by other evidence. On the contrary, PW13– special executive magistrate in his further evidence has categoricallystated as under:

“It is true that I was called on 7.6.03 by P.I of Crime Branch tocivil hospital Nashik to record the dying declaration ofEVimalbaiTrambakSatote. Accordinglhy, I have gone to civil hospitalNashik. After reaching to civil hospital, I had taken the letter ofPI 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 identifyFthe accused from that file. I was given those files by the sameperson who had given me the letter. I had asked that lady whethershe could identify the accused, if photographs shown to her andshe told that she could identify. Therefore, I had shown her thephotographs from all the three files. She had identified the 4persons as the accused present. Witness volunteers that at thatGtime, it came to my notice that the lady was much frightened. Allthe four photographs were from file No.80. The names werewritten below all those four photographs. They are 1. GautamHari Kale, R/o Zapwadi Shiv, TQ Nawasa, Dist. Ahmednagar, 2.

Shivaji @ Shivlya Bhosale R/o Tarwand Muktapur Shiwar, TQNevasa, Dist – Ahmednagar 3. Khandya Rama Chavan R/oBhendala Shiwar, TQ Gangapur, Dist. Aurangabad, 4. SureshSitaram Kale, R/o Kasarakada, Karkhana Shiwar, TQ Ashti, Dist.Beed. These persons had entered her house and had committedtheft of Rs.3,000/- is told by the lady. That lady had not statedthat she could identify the accused persons. Prior to recordingthe statement of that lady, said lady was got examined fromDr. 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 statementwas as per her narration. She had replied in affirmative. I hadobtained her thumb impression on the said statement. I myselfhad obtained her thumb impression. After completion of recordingof the statement of that lady, she had got again examined fromthe 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 hadmade the statement that the lady was frightened; therefore, suchquestion cannot be asked in cross examination). I had not writtenso in my notes. It is not true to say that I was directed to statethat said lady was frightened, before coming to court for givingevidence.”

9.11 Thus, the deposition of PW8 is full of contradictions/omissionsand improvements and that she has not stated true and correct facts.Therefore, she is not a reliable witness who can be believed. When theaforesaid was pointed out to the High Court by the defence, the HighCourt unfortunately has not accepted the case of the defence by observingthat the statement of PW8 recorded by PW13 – special executivemagistrate recorded on 7.6.2003 cannot be said to be a dying declarationand it can be said to be a mere statement which can be used only forcorroboration and contradiction. Therefore, even as per the High Courtalso, her statement dated 7.6.2003 recorded by PW13 in which sheidentified altogether 4 other persons with names can be used for thepurpose of contradiction. As observed hereinabove, the contradictionsare material contradictions and that as such she has also suppressed thematerial fact from the Court.

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A9.12 Even otherwise, for the reasons stated hereinafter, it appearsthat there was no fair investigation by the investigating agency/prosecution. Prosecution has suppressed the material fact from theCourt. Neither the investigating officer nor even the PW13 – specialexecutive magistrate initially stated anything about recording of thestatement of PW8 on 7.6.2003 and she having identified four personsBfrom the album of the photographs of the notorious criminals. In fact, itcame to the light during the course of hearing of the appeal before theHigh Court, and PW8 and PW13 were recalled as per the directions ofthe High Court. Nothing is on record whether those four persons, whowere identified by PW8 on 7.6.2003, were ever arrested and/or anyCinvestigation was carried out qua them. It is required to be noted thatPW8 identified those four persons immediately after the incident. Noneof the accused in the present case are those who were identified byPW8 before the Special Executive Magistrate on 7.6.2003. Therefore,when PW8 identified four persons having committed the offence on7.6.2003, her memory was fresh and it ought to have been given moreDweightage than her identifying the accused persons after a long delay.Thus, it appears that the investigation was not fair and in fact there wassuppression of material fact from the court by the prosecution.

10. It has to be uppermost kept in mind that impartial and truthfulinvestigation is imperative. It is judiciously acknowledged that fair trialEincludes fair investigation as envisaged by Articles 20 & 21 of theConstitution of India. The role of the police is to be one for protection oflife, liberty and property of citizens, that investigation of offences beingone of its foremost duties. That the aim of investigation is ultimately tosearch for truth and to bring the offender to book.F

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 andalso to ensure that all relevant facts and circumstances are brought tothe notice of the court for just determination of the truth so that duejustice prevails. It is the responsibility of the investigating agency toGensure that every investigation is fair and does not erode the freedom ofan individual, except in accordance with law. One of the establishedfacets of a just, fair and transparent investigation is the right of an accusedto ask for all such documents that he may be entitled to under the schemecontemplated by the Cr.PC.

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10.2 Nothing is allowed by the law which is contrary to the truth.In Indian criminal jurisprudence, the accused is placed in a somewhatadvantageous position than under different jurisprudences of some ofthe countries in the world. The criminal justice administration system inIndia places human rights and dignity for human rights at a much higherpedestal and the accused is presumed to be innocent tillproven guilty.The alleged accused is entitled to fair and true investigation and fair trialand the prosecution is expected to play a balanced role in the trial of acrime. The investigation should be judicious, fair, transparent andexpeditious to ensure compliance with the basic rule of law. These arethe fundamental canons of our criminal jurisprudence and they are quitein conformity with the Constitutional mandate contained in Articles 20and 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 isonly such reports which support the prosecution case that are requiredto be forwarded to the Court under Section 173(5), in every situationwhere some of the seized papers and the documents do not support theprosecution case and, on the contrary, support the accused, a duty iscast on the investigating officer to evaluate the two sets of documentsand materials collected and, if required, to exonerate the accused at thatstage itself.

10.4 Even in a case where the public prosecutor did not examinethe witnesses who might have supported the accused, this Court in thecase of Darya Singh v. State of Punjab AIR 1965 SC 328 has observedthat the prosecution must act fairly and honestly and must never adoptthe device of keeping back from the Court only because the evidence islikely to go against the prosecution case. It is further observed that it isthe duty of the prosecution to assist the court in reaching to a properconclusion in regard the case which is brought before it for trial. It isfurther observed that it is no doubt open to the prosecutor not to examinewitnesses who, in his opinion, have not witnessed the incident, but, normallyhe 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 personshave witnessed the incident, it would be open to the prosecutor to makea selection of those witnesses, but the selection must be made fairly andhonestly and not with a view to suppress inconvenient witnesses from ABC

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Athe witness box. It is further observed that if at the trial it is shown thatthe persons who had witnessed the incident have been deliberately keptback, the Court may draw an inference against the accused and may, ina proper case, record the failure of the prosecution to examine the saidwitnesses as constituting a serious infirmity in the proof of the prosecutioncase.B

10.5 Murder and rape is indeed a reprehensive act and everyperpetrator should be punished expeditiously, severely and strictly.However, this is only possible when guilt has been proved beyondreasonable doubt.C10.6 The prosecution/investigating agency is expected to act inan honest and fair manner without hiding anything from the accused aswell as the Courts, which may go against the prosecution. Their ultimateaim should not be to get conviction by hook or crook.

11. Applying the aforesaid principles to the facts of the case onDhand, we are of the opinion that there was no fair and honest investigationand even prosecution tried to suppress the material fact from the court.In the present case, the investigating officer, PW13 – special executivemagistrate and even PW8 – injured eye witness suppressed from thecourt the material fact of the statement of PW8 recorded on 7.6.2003,recorded by PW13 -special executive magistrate in which she specificallyEidentified four persons who have committed the offence from the albumof the photographs of the notorious criminals. Thus, special executivemagistrate being an independent witness was supposed to state the correctfacts before the court. At this stage, it is required to be noted that PW13– Ramesh Sonawane – Special Executive Magistrate is the same SpecialFExecutive Magistrate who conducted the TI parade subsequently.

11.1 Even the conduct on the part of the investigating officer insuppressing the aforesaid fact from the court is required to becondemned.It appears that in fact the investigating officer and theprosecution deliberately withheld the aforesaid fact from the court.GAccording to PW1 & PW8, there were 7-8 persons who committed theoffence. Though, PW12 – Vishnu Hagwane, nephew of the landlord –first person to reach the spot clearly stated in his deposition that PW1told 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 H

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prosecution, there were 7-8 persons who committed the offence. PW8identified four persons on 7.6.2003 from the album of the photographsof notorious criminals whose names were specifically noted as per thestatement of PW8. None of the accused in the present case are out ofthose four persons identified by PW8 on 7.6.2003. Therefore, if thosefour persons who were identified by PW8 as other than the accused inthe present case are added in the present case, it can be said that therewere 12 persons/assailants who committed the offence and thereforethe prosecution case that there were 7-8 persons would fail and that iswhy the aforesaid fact seems not to have been stated by the investigatingofficer and the same was suppressed by him deliberately and wilfully.Even the investigation also does not seem to be fair and honestinvestigation. From the statement of PW8 recorded by the specialexecutive magistrate recorded on 7.6.2003 in which she identified fournamed persons from the album of the photographs of notorious criminals,nothing is on record whether those four persons were arrested or not orany further investigation was carried out with respect to those fourpersons. It is to be noted that none of the accused in the present caseare 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 haveconducted an investigation on that line and ought to have arrested thosefour persons and ought to have conducted the investigation qua thosefour persons. On the contrary, the accused in the present case werearrested after a period of one and a half months and that too on transferwarrants, though there was no description of the accused given by eitherPW1 or PW8. A6 was arrested after a period of one and a half year. Itis to be noted that all the accused persons are nomadic tribes comingfrom the lower strata of the society and are very poor labourers.Therefore, in the facts and circumstances of the case, false implicationcannot be ruled out since it is common occurrence that in serious offencessometime innocent persons are roped in. At the cost of the repetition, itis to be noted that there is no explanation whatsoever why those fourpersons who were identified by PW8 on 7.6.2003 were neither arrestednor there was any investigation qua them. Therefore, there is a seriouslapse on the part of the investigating agency, which has affected the fairinvestigation and fair trial, and therefore, we are of the opinion that thesame is violative of fundamental rights of the accused guaranteed underArticles 20 & 21 of the Constitution of India.

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A12. In view of the above and for the reasons stated above, theconviction and sentence imposed by the High Court cannot be sustained.The prosecution has failed to prove the case against the accused beyondreasonable doubt. Therefore, we have no other alternative, but to acquitthe accused for the offences for which they are convicted.B13. At the same time, we cannot loose sight of the fact that five A

B13. At the same time, we cannot loose sight of the fact that fivepersons have been killed/murdered, out of whom even one lady wasraped. Therefore, it is the duty of the Court to see that the real culpritsare booked and are punished. The Court cannot shut its eyes to theaforesaid fact that five persons have been killed/murdered and that thereis no fair investigation and because of the lapse on the part of theCprosecution/investigating agency in not conducting any investigation quathose four persons who were identified by PW8 on 7.6.2003 before thespecial executive magistrate. The benefit of the lapse in investigationand/or unfair investigation cannot be permitted to go to the persons whoare real culprits and in fact who committed the offence. As observedDhereinabove, unfortunately, there was no investigation at all with respectto those four persons who were identified by PW8 in her statement on7.6.2003. It has come on record and as observed hereinabove, thosefour persons who were identified by PW8 on 7.6.2003, which was justafter two days’ of the incident, were other than the appellants – sixpersons who came to be tried. Therefore, we are of the opinion that thisEis a fit case for further investigation under Section 173(8) of the Code ofCriminal Procedure qua those four persons, who were identified by PW8on 7.6.2003, the reference of whom is in the statement recorded byPW13.

14. Now so far as the submission and prayer on behalf of theFaccused, not only to acquit them, but to award an adequate compensationis concerned, it deserves consideration. From the above facts andcircumstances of the case, it has emerged that there was no fairinvestigation and fair trial and the fundamental rights of the accusedguaranteed under Articles 20 & 21 of the Constitution of India haveGbeen infringed. The investigation is not fair and honest. There is noinvestigation at all qua the four persons who were identified by PW8 on7.6.2003. On the contrary, the accused in the present case were nomadictribes and falsely implicated and are roped in. Except one, all of themare in jail since last 16 years. All were facing the hanging sword ofdeath penalty. Out of six accused persons, one was subsequently foundH

to be a juvenile. As per the report of Dr.Ashit Sheth, a Psychiatrist, whoexamined one of the accused – Ankush Maruti Shinde, who wassubsequently found to be a juvenile, he has clearly opined that he haslived under sub-human conditions for several years. He was kept inisolation in solitary confinement with very restricted human contact andunder perpetual fear of death. He was only allowed to meet his mother,and that too only infrequently. He was not even allowed to mix withother prisoners. Therefore, all the accused remained under constantstress and in the perpetual fear of death. As they were facing the deathpenalty, they might not have availed any other facilities of parole, furlonetc. All of them who were between the age of 25-30 years (and one ofthe accused was a juvenile) have lost their valuable years of their life injail. Their family members have also suffered. Therefore, in the factsand circumstances of the case, and in exercise of our powers underArticle 142 of the Constitution of India, we direct the State ofMaharashtra to pay a sum of Rs.5,00,000/- to each of the accused byway of compensation, to be deposited by the State with the learnedSessions Court within a period of four weeks from today and on suchdeposit, the same be paid to the concerned accused on properidentification. The learned Sessions Court is directed to see that thesaid amount shall be used for their rehabilitation. At the cost of therepetition, it is observed that the aforesaid compensation is awarded tothe accused and in the peculiar facts and circumstances of the case andin exercise of powers under Article 142 of the Constitution of India.

15. Before parting with the present order, we strongly deprecatethe conduct on the part of the investigating agency and the prosecution.Because of such lapses, and more particularly in not conducting theinvestigation insofar as those four persons who were identified by PW8on 7.6.2003, the real culprits have gone out of the clutches of the lawand got scot free. At this stage, the decision of this Court in the case ofState of Gujarat v. Kishanbhai (2014) 5 SCC 108 is required to bereferred to, in which this Court has directed in paragraphs 22 and 23 asunder:

“22. Every acquittal should be understood as a failure of the justicedelivery system, in serving the cause of justice. Likewise, everyacquittal should ordinarily lead to the inference, that an innocentperson was wrongfully prosecuted. It is therefore essential thatevery State should put in place a procedural mechanism which ABCDE

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would ensure that the cause of justice is served, which wouldsimultaneously ensure the safeguard of interest of those who areinnocent. In furtherance of the above purpose, it is consideredessential to direct the Home Department of every State to examineall orders of acquittal and to record reasons for the failure of eachprosecution case. A standing committee of senior officers of thepolice and prosecution departments should be vested with aforesaidresponsibility. The consideration at the hands of the abovecommittee, should be utilised for crystallising mistakes committedduring investigation, and/or prosecution, or both. The HomeDepartment of every State Government will incorporate in itsexisting training programmes for junior investigation/prosecutionofficials course- content drawn from the above consideration. Thesame should also constitute course-content of refresher trainingprogrammes for senior investigating/prosecuting officials. Theabove responsibility for preparing training programmes for officialsshould be vested in the same Committee of senior officers referredto above. Judgments like the one in hand (depicting more than tenglaring lapses in the investigation/prosecution of the case), andsimilar other judgments, may also be added to the trainingprogrammes. The course-content will be reviewed by the aboveCommittee annually, on the basis of fresh inputs, including emergingscientific tools of investigation, judgments of Courts, and on thebasis of experiences gained by the Standing Committee whileexamining failures, in unsuccessful prosecution of cases. Wefurther direct, that the above training programme be put in placewithin 6 months. This would ensure that those persons who handlesensitive matters concerning investigation/prosecution are fullytrained to handle the same. Thereupon, if any lapses are committedby them, they would not be able to feign innocence when they aremade liable to suffer departmental action for their lapses.

23. On the culmination of a criminal case in acquittal, the concernedinvestigating/prosecuting official(s) responsible for such acquittalmust necessarily be identified. A finding needs to be recorded ineach case, whether the lapse was innocent or blameworthy. Eacherring officer must suffer the consequences of his lapse, byappropriate departmental action, whenever called for. Taking intoconsideration the seriousness of the matter, the official concernedmay be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feelcompelled to require the adoption of some indispensable measures,which may reduce the malady suffered by parties on both sidesof criminal litigation. Accordingly, we direct the Home Departmentof every State Government, to formulate a procedure for takingaction against all erring investigating/prosecuting officials/officers.All such erring officials/officers identified, as responsible for failureof a prosecution case, on account of sheer negligence or becauseof culpable lapses, must suffer departmental action. The abovemechanism formulated would infuse seriousness in theperformance of investigating and prosecuting duties, and wouldensure that investigation and prosecution are purposeful anddecisive. The instant direction shall also be given effect to within6 months.”

15.1 Murder and rape is indeed a reprehensive act and everyperpetrator should be punished. Therefore, considering the observationsmade by this Court in the case of Kishanbhai (supra), referred tohereinabove, we direct the Chief Secretary, Home Department, State ofMaharashtra to look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account ofsheer negligence or because of culpable lapses, real culprits are out ofthe clutches of law and because of whose lapses the case has resultedinto acquittal in a case where five persons were killed brutally and onelady was subjected to even rape. Therefore, we direct the ChiefSecretary, Home Department, State of Maharashtra to enquire into thematter and take departmental action against those erring officers/officials,if those officers/officials are still in service. The instant direction shallbe given effect to within a period three months from today.

16. With the above observations and directions, and in view of theabove and for the reasons stated above, the criminal appeals preferredby the accused are hereby allowed, and all the accused are herebyacquitted for the offences for which they were tried. They shall bereleased forthwith, if not required in any other case. Consequently, theappeals filed by the State of Maharashtra for enhancement of sentencequa A3, A5 and A6 stand dismissed.

17. The prosecution is directed to conduct further investigationunder Section 173(8) of the Code of Criminal Procedure qua those fourpersons who were identified by PW8 – an injured eye witness on A

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764SUPREME COURT REPORTS

A7.6.2003 from the album of photographs of notorious criminals with theirnames, i.e., immediately after the incident, whose particulars and namesare 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 fivepersons were killed brutally and one lady was even subjected to rape.

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Appeals disposed of.

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