AMBADAS LAXMAN SHINDE AND ORS. versus THE STATE OF MAHARASHTRA on 31 October 2018

O R D E R

1. On 22 March 2007, a Division Bench of the Bombay HighCourt disposed of a reference which was made under Section 366 ofthe Code of Criminal Procedure 1973 by the 3[rd] Ad-hoc AdditionalSessions Judge, Nasik.

2. The High Court upheld the conviction of and the sentence ofdeath imposed on Accused Nos. 1, 2 and 4. While upholding the convictionof Accused Nos. 3, 5 and 6,the High Court sentenced them toimprisonment for life. All the six accused were convicted of the offencepunishable under Section 302 read with Section 34 of the Penal Code. Inaddition, Accused Nos. 1, 2 and 4 were convicted of the offencepunishable under Section 376 (2)(g) for which they were sentenced tosuffer rigorous imprisonment for a period of ten years. The convictionof Accused Nos. 3, 5 and 6 under Section 376 (2)(g) was set aside bythe High Court. All the Accused were convicted of offences under:

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

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Asentenced to suffer five years imprisonment;

(ii) Section 397 read with Section 395 for which they have beensentenced to suffer rigorous imprisonment for seven years; and

(iii) Section 396 for which they were sentenced to suffer rigorousimprisonment for ten years.

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3. Criminal Appeals Nos. 1008-09 of 2007 were filed before thisCourt by Accused No. 1(Ankush Maruti Shinde), Accused No. 2 (RajyaAppa Shinde) and Accused No. 4 (Raju Mhasu Shinde).

4. The State of Maharashtra filed Criminal Appeal Nos. 881-882of 2009 for seeking enhancement of the sentence of life imprisonmentCimposed by the High Court on Accused Nos. 3, 5 and 6.

5. By a judgment dated 30 April 2009, a two judge Bench of thisCourt dismissed the appeals filed by Accused Nos. 1, 2 and 4. Whileallowing the appeals filed by the State, this Court sentenced AccusedNos. 3, 5 and 6 to suffer the sentence of death.

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6. Review Petitions were filed by the accused. Review PetitionNos.34-35 of 2010 were filed by Accused Nos. 1, 2 and 4. ReviewPetition Nos. 18-19 of 2011 were filed by Accused Nos. 3, 5 and 6. Thepetitions seeking review were dismissed.

7. Following the decision of the Constitution Bench in Mohd.Arif v Registrar, Supreme Court of India[1], criminal miscellaneouspetitions have been filed for reopening the review petitions. In terms ofthe judgment of the Constitution Bench, we permit the reopening of thereview petitions. They have been listed for hearing before this Bench inopen court.

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8. Certain salient features about the proceedings which took placebefore this Court in the course of the hearing need to be set out:

(i) On 3 August 2007, leave was granted in the Special LeavePetitions filed by Accused Nos. 1, 2 and 4. Execution of the sentence ofdeath was stayed during the pendency of the appeals;G

(ii) On 21 November 2008, notice was issued in the appeals filedby the State of Maharashtra. The appeals by the State were tagged withthe criminal appeals filed by the accused;

(iii) The notice issued by this Court on 21 November 2008 wasH1 2014 (9) SCC 737

served on the accused in jail on 6 December 2008;

(iv) The hearing of the appeals had commenced on 4 December2008 even before service of notice was effected;

(v) The order sheet dated 4 December 2008 indicates that all theappeals were heard in part and were directed to be listed on 10 December2008 “for continuation of arguments”;

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

“Since the respondents have not appeared inspite of service ofnotice, Mr Sushil Karanjakar, learned counsel, who is appearingin the connected appeals is appointed as Amicus-Curiae to assistin this case to represent the respondents because he is ascertainedwith the facts of the case.

Mr. Sushil Karanjakar, learned counsel resumed arguments at11.20AM and concluded at 2.45PM. Thereafter, Mr. RavindraKeshavrao Adsure, learned counsel started his arguments andaddressed the Court till 3.20PM.

Hearing concluded. Judgment reserved”.

(vii) The appeals filed by Accused Nos. 1, 2 and 4 were dismissed.The appeals filed by the State were allowed. The sentence of death wasimposed on Accused Nos. 3, 5 and 6;

(viii) The three accused – Accused Nos. 3, 5 and 6 were notrepresented by Counsel;

(ix) The Court appointed Amicus Curiae on 10 December 2008.Counsel was heard on the same day and judgment was reserved; and

(x) Eventually, by the judgment of this Court, Accused Nos. 3, 5 and 6were sentenced to death and the appeals of the State of Maharashtrawere allowed. The appeals filed by Accused Nos. 1, 2 and 4 weredismissed.

9. From the above narration of facts, it is evident that AccusedNos. 3, 5 and 6 had no opportunity to be heard by the Bench, before theappeals filed by the State of Maharashtra for enhancement of sentencewere decided. They have been deprived of an opportunity of engagingcounsel and of urging such submissions as they may have been advisedto urge in defence to the appeals filed by the State for enhancement.

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1192SUPREME COURT REPORTS

A10. In the circumstances, we are clearly of the view that thejudgment and order of this Court dated 30 April 2009 awarding the deathsentence to Accused Nos. 3, 5 and 6 must be recalled. We orderaccordingly.

11. We are then left with the issue of Accused Nos. 1, 2 and 4.BThe judgment of this Court dated 30 April 2009 dismissed their appeals,while confirming the sentence of death imposed by the High Court. Inview of our conclusion that the judgment imposing the sentence of deathon Accused Nos. 3, 5 and 6 must be recalled, both fairness and proprietyrequire that the judgment should similarly be recalled as regards AccusedNos. 1, 2 and 4. In coming to this conclusion, we take note of the factCthat the judgment of this Court dated 30 April 2009 records that :

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

The evidence is common and the offences relate to the same incident.DHence, it is both appropriate and proper that the judgment dated 30 April2009 should be recalled in its entirety, in relation to all the six accused.

12. We accordingly order and direct that :

(i) The orders passed by this Court dismissing the Review Petitionsare recalled. The Review Petitions are, in consequence, allowed; E

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

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

(iv) Execution of the sentence of death imposed by the High Courton Accused Nos. 1, 2 and 4 shall stand suspended pending the disposalof the appeals.G

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

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

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Devika Gujral