1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CONFIRMATION CASE NO.2 OF 2006 (Referecne made by 3rd Ad-hoc. Addl.Sessions Judge, Nashik.) With Criminal Appeal No.590 of 2006 The State of Maharashtra Complainant (Respondent) Vs. 1. Ankush Maruti Shinde 2. Rajya Appa Shinde 3. Ambadas Laxman Shinde 4. Raju Mhasu Shinde 5. Bapu Appa Shinde 6. Surya @ Suresh S/o. Nagu @ Gangaram Shinde Accused (Appellants) Mrs.Usha Kejriwal, APP for State. Mr.A.P.Mundargi, Senior Counsel with Mr. Subodh Desai for accused-appelants. CORAM: B.H.MARLAPALLE & R.S. MOHITE, JJ. Reserved on : March 08, 2007. Pronounced on : March 22, 2007. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This Confirmation Case submitted under Section 366 of Cr.P.C. arises from the judgment and order dated 12th June 2006 deciding Sessions Case No.43 of 2004 by the learned 3rd Ad-hoc Addl. Sessions Judge at Nashik, convicting and sentencing six out of the 2 seven accused for the offences punishable under Sections 395, 302 read with Section 34, 376(2)(g), Section 307 read with Section 34 and Sections 396, 397 and 398 of IPC. All the accused have been awarded the death penalty for the offence punishable under Section 302 read with Section 34 of IPC. The operative part of the order of conviction and sentence reads as under: ". The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya Appa Shinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde, (5) Bapu Appa Shinde and (6) Surya alias Suresh s/o. Nagu alias Gangaram Shinde are convicted for the offences punishable under Sections 395, 302 read with Section 34 of Indian Penal Code, Sections 376(2)(g), 307 r.w. 34 of Indian Penal Code, Sections 396, 397 r.w. 395 and Sec. 398 of Indian Penal Code. 2. The offence punishable under Section 397 r.w. 395 of Indian Penal Code is proved. It includes offences punishable under Sections 395 and 398 of Indian Penal Code, so no separate punishments are given for the same. 3 3. The Accused Nos.1 to 6 are convicted for the offence punishable under Section 302 r.w. 34 of Indian Penal Code. . They are sentenced to death for the offence punishable under Section 302 r.w. 34 of Indian Penal Code. It is directed that they be hanged by their necks till they are dead. The sentence is subject to the confirmation by the Hon’ble High Court. 4. The Accused Nos.1 to 6 are convicted for the offence punishable under section 376(2)(g) of Indian Penal Code and they are sentenced to suffer R.I. for a period of 10 years with fine of Rs.200/- each. In default of payment of fine, to suffer further R.I. for a period of 1 month each. 5. The Accused Nos.1 to 6 are convicted for the offence punishable under Section 307 r.w. 34 of Indian Penal Code. They are sentenced to suffer R.I. for 5 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for a period of 1 month each. 6. The Accused Nos.1 to 6 are convicted for the 4 offence punishable under Section 397 r.w. section 395 of Indian Penal Code. They are sentenced to suffer R.I. for a period of 7 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for 1 month each. 7. The Accused Nos.1 to 6 are convicted for the offence punishable under Section 396 of Indian Penal Code. And they are sentenced to suffer R.I. for 10 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for 1 month each. 8. The Accused Nos.1 to 6 are acquitted of the offence punishable under section 135 of Bombay Police Act. 9. All the sentences to run concurrently". All the convicted accused have filed Criminal Appeal No.590 of 2006 against the said order of conviction and sentence. 2. Shri Raghunath Devram Hagwane (PW 6) is an 5 agriculturalist and businessman having his agricultural land in Survey No.15/3 on Belatgavan Shivar and part of the agricultural land was having a guava orchard, he had given the same on contract to Shri Trambak Eknath Satote who was staying in a hut/shed erected on the said agricultural land along with his family members (wife, three sons and one daughter). On 6/6/2003 he received a telephonic call from his nephew Vishnu Hagwane (PW 12) at about 6.30 a.m. stating that Trambak and his sons and daughter were lying in bleeding condition in the hut and they were perhaps dead. Raghunath who was having his house in Survey No.19 immediately rushed to the spot in his jeep and noticed that Trambak’s elder son Manoj (PW 1) and wife Vimalabai (PW 8) were murmuring but unconscious and, therefore, he immediately shifted both of them to the Municipal Hospital called Bytco hospital at Nashik. Vishnu (PW 12) had also intimated to the police simultaneously and, therefore, they arrived at the spot and noticed that Trambak, his two sons viz. Sandeep and Bhurya @ Shrikant, daughter Savita and his sister-in-law’s son Bharat More were found dead. The police also noticed bleeding injuries on the dead bodies. Inquest panchanamas at Exhibits 26 to 30 were carried out 6 with Suresh Jaware (PW 2) being one of the panchas for the same. Spot panchanama at Exhibit 31 was drawn with Shankar Ghule (PW 3) as one of the panch witnesses. Near the hut / shed there was a well at a distance of about 400 to 500 ft. and from its three sides guava plantation was existing. Well panchanama at Exhibit 34 was drawn with Dada Kashinath Palde (PW 5) as a panch witness. The dead bodies were sent to the Municipal Hospital at Sinnar and Dr. D.M.Gadakh (PW 9) along with Dr. P.M. Wagh conducted the post mortem of all the five dead bodies (Exhibits 81, 86, 89, 91 and 93). Death certificates were also issued by the said doctor in addition to separate certificates regarding cause of death in each case. The certificate at Exhibit 83 stated that Savita, aged about 15 years was raped before she was dead. PW 1 Manoj regained his consciousness at about 7 a.m. on 6/6/2003 and PW 8 Vimalabai regained her consciousness at about 9.30 p.m. on the same day while at the Bytco hospital. PW 1 Manoj filed his complaint which came to be registered as an FIR (Exhibit 23). His statement was recorded by the Special Judicial Magistrate at about 12.00 hrs. on 6/6/2003 (Exhibit 178) and the statement of mother Vimalabai (PW 8) was recorded at Exhibit 189 by 7 Gavane (PW 23) and at the relevant time Police Inspector at Chandvad police station at about 9.45 p.m. Both the injured were shifted to the Government hospital at Nashik on 7/6/2003. 3. As per the prosecution case on 5/6/2003 Trambak and all his family members as well as the guest Bharat More were chitchatting after dinner and at about 10.30 p.m. seven to eight unknown persons entered his hut and all of them were on banyan and half pant and they started threatening the family members. They demanded money as well as ornaments and Trambak took out Rs.3000/- from his pocket and handed over to one of them. Some of the gang members forcibly took away the mangalsutra as well as ear-tops and dorley from the person of Vimalabai, ear-tops from the person of Savita and silver rings which were around her feet. From the person of Manoj they removed a silver chain and a wrist watch. Thereafter they went out of the hut and consumed liquor. After some time they re-entered the hut with weapons like knife, axe handle, sickle, spade with handle and yokpin etc., so as to rob the house members and collect more money and ornaments etc. They started beating the family members and Trambak 8 was the first person who received assault. Sandeep and other members of the family told the dacoits to take away whatever they could collect from the house but no family members should be assaulted. At this stage Sandeep was assaulted and so also Shrikant @ Bhurya, Bharat and Manoj. The dacoits did not spare Vimalabai as well. They tied hands and legs of all the family members except Manoj and Vimalabai. As a result of assault Manoj, Trambak, Sandeep, Shrikant and Bharat had fallen unconscious. Three of the dacoits dragged Savita out of the hut and took her to the guava garden. Two of the dacoits then picked up Vimalabai and dragged her towards the well. One of them raped her near the well and then she was taken to the guava garden where Savita was taken. Vimalabai was assaulted and brought back to the hut. After some time the three dacoits brought Savita back but in naked condition and with injuries on her body. When the dacoits had entered the hut at about 10.30 p.m. the light bulb in the hut was burning and TV was on. The dacoits increased the volume of the tape recorder and after they dropped Savita in the hut, they put on shoes and started walking on the persons lying injured and they thought that all of them were dead. Vimalabai (PW 8) lost her consciousness around 9 12 O’Clock in the night and till then the dacoits were present in the hut and they left the hut under the belief that all of the victims were dead. However, PW 1 Manoj and his mother PW 8 Vimalabai survived. They are the eye witnesses to the prosecution case. 4. The clothes from the dead bodies of five deceased persons as well as the clothes on the person of Manoj and Vimalabai were seized. From the spot some weapons like wooden handle, spade with handle, yokpin and sickle were also seized. The seized articles were sent for chemical analysis and CA reports from Exhibit 58 to Exhibit 72 were received. In view of the gravity of the incidence the police machinery was obviously under tremendous pressure and it sought assistance from the neighbouring districts like Ahmednagar, Aurangabad, Jalgaon and Dhule etc. The first breakthrough came on 23/6/2003 when accused nos.1 and 2 came to be arrested under arrest panchanamas (Exhibits 44 and 45) by the Crime Branch. The police during the course of investigation also got information that some other accused were also involved in a separate crime registered with the police station at Bhokardhan in Jalna district on 10 19/6/2003 and the police, therefore, filed an application before the competent Court seeking transfer of the accused in Crime No.74 of 2003 registered with the Bhokardhan police station and finally accused nos.3 to 5 came to be arrested on 27/6/2003 under arrest panchanamas (Exhibits 53, 54 and 55) after their custody was transferred from the police station at Bhokardhan. On the arrest of accused nos.1 to 5 their clothes were seized and they were subjected to medical examination. Dr. Satish Vasant Shimpi (PW 16) had examined accused nos.3, 4 and 5 on 27/6/2003 and issued medical certificates at Exhibits 133 to 135. Of these three accused, accused No.4 - Raju Mhasu Shinde was seen to have sustained injuries within three weeks. Accused nos.1 and 2 were examined by Dr.Vilas Patil (PW 24) on 23/6/2003. Both the accused were seen to have sustained injuries about three weeks back and the medical certificates were issued at Exhibits 195 and 196. We have seen the case diary maintained by the I.O. during the course of investigation and it is evident that the statements of Sunita wife of Raja Shinde was recorded at Exhibit 77A in the presence of Ibrahim Wazir Shaikh (PW 7) on 25/6/2003. 11 . Test identification parade of the accused nos.1 to 5 was held on 25/7/2003 in the jail premises and PW 1 Manoj identified the five accused as the unknown persons who had entered their hut and assaulted the family members. PW 8 Vimalabai also identified Accused Nos.1, 3, 4 and 5 as the unknown persons who had entered the hut and assaulted the family members. She however, could not identify accused no.2 - Raja Appa Shinde. Whereas accused no.6 came to be arrested on 7/10/2004 and his TI parade was held on 9/10/2004. Both PW 1 and PW 8 had identified the said accused who was one of the unknown persons who entered their hut and assaulted the family members. The test identification report at Exhibit 120 was proved through the evidence of the Special Executive Magistrate, Ramesh Sonawane (PW 13). 5. On completion of the investigation charge-sheet came to be filed and the case was committed to the Sessions Court. The learned 5th Ad-hoc Addl. Sessions Judge at Nashik framed the charge in Sessions Case No.43 of 2004 vide her order dated 13/6/2005. The prosecution initially examined 24 witnesses including four doctors i.e. PW 9 Dr. 12 Gadakh, PW 15 - Nalini Shardul, PW 16 - Dr. Satish Shimpi and PW 24 - Dr. Vilas Patil. The police personnel examined by the prosecution were PW 10 - Vitthal Chaudhari, PW 11 - Bapu Sonawane, Police Naik, PW 13 - Ramesh Sonawane, Special Executive Magistrate, PW 17 Narayan Shinde, PSI, PW 18 Bhaskarrao Dhas, Asst. Commissioner of Police who had investigated the case, PW 19 Bhimsing Thakur, In-charge of Dog Squad at Dhule, PW 20 - Kashinath Bharate, Police Inspector who had also investigated the crime. PW 21 - Ramesh Patil, Senior P.I., Ambad Police Station, Nashik who had conducted the investigation for two days, PW 22 - Shafiuddin Sayyed, P.I. Traffic Branch and who had recorded the complaint (FIR at Exhibit 23) of Manoj PW 1 and PW 23 - Sharad Gavane, P.I. Chandwad Police Station who had also investigated the crime at some stage. The others were panch witnesses i.e. PW 2 - Suresh Mohan, PW 3 - Shankar Tukaram Ghule, PW 4 - Bharat Narayan, PW 5 - Dada Kashinath Palde, Police Patil, PW 7 - Ibrahim Shaikh. 6. Criminal Application No.1 of 2006 was filed by the State of Maharashtra and Criminal Application No.2 of 2006 was filed by the accused persons before 13 this Court. By the common order dated 14th November 2006 in both these applications the following directions were issued: (i) The prosecution be allowed to lead additional evidence of the Sub-Divisional Magistrate who conducted the test identification parade in relation to accused Nos.1 to 5 and all relevant documents pertaining thereto. (ii) The defence be permitted to recall and cross-examine PW-8 in relation to Exh. 122 which is already on record. (iii) In the event contradictions are established on record in the cross-examination of PW-8, the learned Trial Judge should also recall PW-13 for directions of those contradictions, if any. (iv) Since the matter of confirmation is pending, it is desired that the necessary recording of additional evidence be completed before 7th of January, 2007. List the matter 14 for further orders in relation to hearing on 9th January, 2007. The record may be transmitted to the Trial Court for this purpose." . Consequently PW 8 and PW 13 were further cross-examined by the defence and the prosecution examined one additional witness i.e. Shri Govind Alhate, City Magistrate at Nashik as PW 25. He had conducted the TI parade of accused nos.1 to 5 on 25/7/2003. Through his evidence the additional documents at Exhibits 217 to 229 were brought on record. Exhibits 224 to 228 are the memorandum of TI parade of each of the accused nos.1 to 5 and Exhibit 229 is the explanation submitted by the Sub-Divisional Magistrate. The said explanation states that at the time of TI parade held on 25/7/2003 the police personnel staff were not present, TI parade was conducted by the Magistrate himself, before the TI parade commenced the witnesses were not given any opportunity to see the accused, the accused were allowed to stand at any number they wanted and for every witness the accused concerned was permitted to change his clothes. In addition the 15 accused and the six dummies were made to stand in one line and finally the witness had identified the accused. 7. It has come in the evidence of PW 9 Dr. Gadakh that the dead persons had received multiple injuries externally as well as internally. At this stage it would be appropriate to note down the injuries so noticed and recorded in the P.M. reports. I.I.I. Miss Miss Miss Savita Trambak Satote (age - 15 yrs.) Savita Trambak Satote (age - 15 yrs.) Savita Trambak Satote (age - 15 yrs.) External External External injuries: injuries: injuries: (1) CLW above right eye brow with dimensions as 5 cm. x 3 cm. x 5 cm. (2) CLW above right eye brow medially 1 cm. x 1 cm. (3) Contusion below right eye brow of 3 cm. x 3 cm. in dimensions. 16 (4) CLW above left eye brow of 3 cm. x 1 cm. x 5 cm. (5) CLW on lateral angle of right eye 1 cm. x 1 cm. (6) CLW on right upper lip of 1 cm. x 1 cm. (7) Abrasion on right nape of neck of 2 cm. x 2 cm. (8) Abrasion on left side of back 10 cm. x 3 cm. (9) Abrasion on left shoulder posteriorly 3 cm. x 2 cm. (10) Abrasion on right shoulder 3 cm. x 3 cm. (11) Contusion on left side of chest wall 3 cm. x 3 cm. (12) Abrasion on right side of chest wall 1 cm. x 1 cm. (13) Valval oedema present, bluish discolouration 17 of vaginal mucosa, hymen ruptured, bleeding through vagina present. Internal Internal Internal injuries : injuries : injuries : Head : (1) subcutanery haematoma on frontal region. (2) Skull normal except harding fracture at frontal bone horizontal 4 cm. in length. (3) Subdural haematoma on right frontal, 6 cm. x 5 cm. Cause Cause Cause of death : of death : of death : Intracarnial haemorrhage due to fracture of skull. II. II. II. Trambak Trambak Trambak Eknath Satote (age - 50 yrs.) Eknath Satote (age - 50 yrs.) Eknath Satote (age - 50 yrs.) 18 External External External injuries: injuries: injuries: (1) Abrasion on left clavicle region of 2 cm x 1 cm. (2) Abrasion on right clavicle region 3 cm x 1 cm. (3) Abrasion on supra sternal knotch 3 cm x 2 cm. (4) Abrasion below left ear 2 cm x 1 cm. Internal Internal Internal injuries : injuries : injuries : (1) Fracture of rib of left side and left haemo-thorax of about 1 & 1/2 Lt. Cause Cause Cause of death : of death : of death : Acute cardio respiratory arrest due to haemorrhagic shock. III. III. III. Bhurya Bhurya Bhurya @ Shrikant Trambak Satote (age-8 yrs.) @ Shrikant Trambak Satote (age-8 yrs.) @ Shrikant Trambak Satote (age-8 yrs.) 19 External External External injuries: injuries: injuries: (1) CLW on lateral to left eye 1 x cm. skin deep. (2) Contusion on left cheek from left ear to angle of moth. 3 cm. in breadth and brownish discoloured. (3) CLW over occipital region 3 cm. x 1 cm. bone deep. Internal Internal Internal injuries: injuries: injuries: (1) subcutaneous haematoma over left frontal parietal region and over occipital region 3 cm x 1 cm in size. (2) Skull fracture horizontal on frontal bone 3 cm. in length. (3) Intracerebral haemorrage present in brain. Big haematoma fronto over left parieta and occipital region. Big clot at the base of skull. Cause Cause Cause of Death of Death of Death: 20 Intracravical haemorrhage due to head injury. IV. IV. IV. Sandeep Sandeep Sandeep Trambak Satote (age - 17 yrs.) Trambak Satote (age - 17 yrs.) Trambak Satote (age - 17 yrs.) External External External injuries : injuries : injuries : (1) Contusion on right cheek about 4 x 3 cm. (2) Incised wound on right side of chest wall 1 x 1/2 x 1/2 cm. Internal Internal Internal injuries : injuries : injuries : (1) Haematoma of left temporo-parietal region of scalp. (2) Brain showed left temporal parietal haematoma about 7 cm. x 5 cm. and intra ventricular bleeding present. cause cause cause of Death : of Death : of Death : Shock due to head injury. 21 V. V. V. Bharat Bharat Bharat Ashok More (age 14 yrs.) Ashok More (age 14 yrs.) Ashok More (age 14 yrs.) External injuries: (1) Incised wound on left chest near nipple of 2 x 1 cm. and skin deep. (2) Contusion on left side of chest laterally to the nipple of size 5 x 3 cm. (3) Abrasion on abdomen of 2 x 2 cm. over left hypochondria. Internal Internal Internal injuries: injuries: injuries: (1) Thorax showed fracture of ribs No.4 and 5 at anterior axillary line of left side. Cause Cause Cause of death: of death: of death: Cardio respiratory arrest due to haemorrhagic shock due to blunt injury to chest. . From the above medical evidence it is very 22 clear that all the five persons Savita, Trambak, Bhurya @ Shrikant, Sandeep and Bharat died a homicidal death. The P.M. notes also indicated that the death could have taken place about 4 to 6 hours after the last meals. It has come in the evidence of PW 1 - Manoj and PW 8 - Vimalabai that the family members had taken meals around 9 p.m. on 5/6/2003 and, therefore, Trambak, Sandeep, Savita, Shrikant and Bharat could be said to have died between 1 a.m. to 3 a.m. on 6/6/2003 on account of the assault they had received from the dacoits. In addition, as noted earlier, the medical certificate at Exhibit 83 issued by PW 9 Dr.Gadakh sated that Savita was raped before she died. 8. Mr.Mundargi, the learned Senior Counsel for the accused submitted that the accused have been implicated by way of mistaken identity and PW 13 Ramesh Sonawane who recorded the dying declaration (Exh.122) of PW 8 had admitted that it was recorded by him and in the same it is clearly stated that PW 8 had identified the four accused from File No.80 and their names were p.284 (1) Gautam Hirama Kale, age 22 resident of Zopwadi Dhiv, Taluka Nevasa, Dist. Ahmednagar, (2) Babakhan Shivaji @ Shvlya Bhosle, 23 aged 19 years, resident of Gadhavladan, Muktapur Shivar, Tal. Nevasa, Dist. Ahmednagar (3) Khandya Ramu Chavan, aged about 20 years, resident of Bhedlashivar, Tal. Gangapur, Dist. Aurangabad and (4) Suresh @ Navlya Sitaram Kale, aged about 35 years, resident of Kasarwada Karkhana Shivar, Taluka and Dist. Beed. In the said statement the PW 8 had further declared that all these accused identified by her from their photographs had entered her house on the fateful day and assaulted the husband and wife and the children and had also committed dacoity. The prosecution failed to explain as to how the present accused were implicated when PW 8, who is claimed to be a star eye witness had already identified four other persons as the accused and it was never the case of the prosecution that in all 7+4 = 11 dacoits had entered the house of the complainant and committed the offences. As per Shri Mundargi the police backtracked in the course of investigation and more particularly the document recorded as the D.D. at Exhibit 122 and which has been proved in the evidence of PW 13. He also referred to the additional depositions by way of cross-examination of PW 8 as well as PW 13 consequent to the order passed by this Court in Criminal Application Nos.1 and 2 of 24 2006. In the said additional evidence PW 13 reiterated the fact that he had received the requisition for recording the dying declaration of PW 8 after she had regained consciousness on 7/6/2003 and she had identified the four accused from the photographs shown to her in File No.80 out of the three files handed over to him by the police i.e. File Nos.70, 76 and 80. Whereas PW 8 in her