1 conf-case-3-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CONFIRMATION CASE NO. 3 OF 2009 The State of Maharashtra .. Complainant Vs. 1. Santosh Manohar Chavan 2. Amit Ashok Shinde 3. Yogesh Madhukar Chavan 4. Mahesh Dhanaji Shinde .. Respondents (Org.Accd.Nos.1 to 3 & 6 in Sessions Case No.3/05) WITH CONFIRMATION CASE NO. 6 OF 2009 The State of Maharashtra .. Complainant Vs. 1. Santosh Manohar Chavan 2. Amit Ashok Shinde 3. Yogesh Madhukar Chavan 4. Mahesh Dhanaji Shinde .. Respondents (Org.Accd.Nos.1 to 3 & 5 in Sessions Case No.5/05) 2 conf-case-3-09 WITH CRIMINAL APPEAL NO. 617 OF 2010 (Against order of acquittal) The State of Maharshtra .. Appellant Vs. 1. Santosh Manohar Chavan 2. Amit Ashok Shinde 3. Yogesh Madhukar Chavan 4. Tanaji Sitaram Gavade 5. Suryakant Anant Korgaonkar .. Respondents (Org.Accd.Nos.1 to 4 & 6 in Sessions Case No.4/05) WITH CRIMINAL APPEAL NO. 731 OF 2010 Mahesh Dhanaji Shinde .. Appellant (Org.Accd.No.5 in Sessions Case No.5/05) Vs. The State of Maharshtra .. Respondent WITH CRIMINAL APPEAL NO. 732 OF 2010 Mahesh Dhanaji Shinde .. Appellant (Org.Accd.No.6 in Sessions Case No.3/05) Vs. The State of Maharshtra .. Respondent 3 conf-case-3-09 Mr. D. P. Adsule, APP for State in all the matters. Mr. Sangram Desai for respondent no.1 in both the Conf. Cases. Mr. R.V. Raorane for respondent no.2 in both the Conf. Cases. Mr. S.S. Pai for respondent no.3 in both Conf. Cases. Mr. Abhaykumar Apte for respondent no.4 in both the Conf. Cases. & for appellant in Cri.Appeal Nos. 731 & 732 of 2010. CORAM : B. H. MARLAPALLE & A. M. THIPSAY, JJ. RESERVED ON : 6TH MAY, 2011 (Summer Vacation from 9/5/2011 to 5/6/2011). PRONOUNCED ON : 17TH OCTOBER, 2011. JUDGMENT (PER B. H. MARLAPALLE,J.): 1. These references for confirmation under Section 366 of the Criminal Procedure Code (the Code for short) arise from the separate order of conviction and sentence passed on 26/5/2009 by the learned Additional Session Judge, Sindhudurg at Oros in Sessions Case No. 3 of 2005 and Sessions Case No. 5 of 2005. In the said Sessions Case in all seven accused came to be tried for the offences punishable under Sections 302, 201, 364A, 394, 397, 404, 201(I), 201(II), 212, 120B read with Section 34 of IPC and Sections 3, 5, 6 read with Section 25 of the Arms Act, 1959. The learned Additional Sessions Judge, by his order dated 25/5/2009, was pleased to acquit accused nos.4 and 7 on 4 conf-case-3-09 all the charges and on 26/5/2009, he passed an order convicting accused no.1, accused no.2, accused no. 3 and accused no.6 for the offences punishable under Sections 302, 364A read with Section 120B of IPC for having murdered four members of Mali family i.e. Sanjay Kerubhai Mali, Rajesh Kerubhai Mali, Anita Kerubhai Mali and Kerubhai Mali and awarded the sentence of death by hanging. He further convicted accused nos.1 to 3 and 6 under Sections 394 and 397 read with Section 120B of IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5000/- each, in default to undergo RI for six months more. Accused nos.1 to 3 and 6 have also been convicted for the offences punishable under Section 404 read with Section 120B of IPC and sentenced to undergo RI for one year and to pay a fine of Rs.5000/- each, in default to suffer RI for six months more, under Section 201 read with Section 120-B of IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5000/- each in default to under go RI for six months more and under Sections 3, 5, 6 read with Section 25 of the Arms Act and sentenced to undergo SI for three years. Accused No.6 has filed Criminal Appeal No. 732 of 2010 against the said order of conviction and sentence, whereas accused nos.1 to 3 have not challenged the said order. However, under Section 5 conf-case-3-09 368 of the Code, while deciding a confirmation reference, this court has the powers to confirm the sentence, or pass any other sentence warranted by law, or annul the conviction, and convict the accused of any offence of which the Court of Sessions might have convicted him, or order a new trial on the same or on amended charge, or to acquit the accused persons. Thus, even in the absence of an appeal by accused nos.1 to 3, we have to decide on the culpability of accused nos.1 to 3 as claimed to have been proved by the prosecution and also the legality, validity and justifiability of the order of sentence of death by hanging. 2. So far as Criminal Appeal No. 731 of 2010 is concerned, it has been filed by accused no.5 in Sessions Case No. 5 of 2005. In all six accused came to be tried for the offences punishable under Sections 302, 201, 364A, 394, 397, 404, 201(I), 201 (II), 212, 120B read with Section 34 of IPC and Sections 3, 5 and 6 read with Section 25 of the Arms Act for having abducted and murdered in furtherance of their criminal conspiracy four victims from different families i.e. Vijaysinh Dudhe, Dadasaheb Chavan, Sanjay Gavare and Bala Pisal. The learned Additional Sessions Judge, by his order of conviction and 6 conf-case-3-09 sentence dated 26/5/2009 was pleased to convict accused nos.1 to 3 and 5 for the offences punishable under Sections 302 and 364 read with Section 120B of IPC for having murdered the victim Vijaysinh Dudhe and they have been sentenced to death by hanging. The accused nos.1 to 3 and 5 came to be convicted for the offences punishable under Sections 302 and 364A read with Section 120B of IPC for having murdered the victim – Dadasaheb Chavan and they have been sentenced to death by hanging. All these 4 accused have also been convicted and sentenced for the very same offences and in the like manner for having murdered the victims – Sanjay Gavare and Vinayak Pisal. They have been also convicted under Sections 394, 397, 404, 201 read with Section 120B of IPC and sentenced to suffer RI for six months for each offence. They have been also convicted under Sections 3, 5 and 6 read with Section 25 of the Arms Act and sentenced to undergo SI for three years. The learned Additional Sessions Judge directed to submit the record and proceedings to this court for confirmation under Section 366 of Cr. P.C. However, it appears that the Registry of this court, by inadvertence, failed to register a separate confirmation case arising from the order of conviction and sentence in Sessions Case No. 5 of 2005. We, 7 conf-case-3-09 therefore, direct that confirmation case arising from Sessions Case No. 5 of 2005 be registered separately. Accused No.6 in Sessions Case No. 3 of 2005 – Shri Mahesh Shinde is accused no.5 in Sessions Case No. 5 of 2005 and, therefore, he has been referred as accused no.6 uniformly in this common judgment. 3. As per the prosecution case, on 20/12/2003, the Superintendent of Police, Sindhudurg-Oros, received anonymous letters and phone calls informing that the dead bodies of some unknown persons were lying on the hillocks of village Nandos, Taluka - Malvan, District – Sindhudurg as well as in the adjoining agricultural lands. He, therefore, issued necessary directions to the police officers to take search of the said area and accordingly a search operation was carried out on the very same day, in which seven dead bodies scattered were found. The search operation was continued on 21/12/2003 as well and two more dead bodies were found. Thus, in the search operation jointly carried out by the police officers and villagers, nine dead bodies were recovered i.e. DB-1 to DB-9 and panchanamas were drawn. From the spots, some clothes, trousers’ hooks, blood stained 8 conf-case-3-09 diary, broken brief-case and such other articles were also recovered. All the dead bodies were brought to the civil hospital at Oros for post mortem and all the medical officers were assigned to undertake the post mortem as per the directions of the Civil Surgeon. The dead bodies were in decomposed, mummified and in skeleton form. The skulls and other parts of the bodies of some of the skeletons were separated. Hence, though the medical officers of the civil hospital at Oros performed the autopsy, they could not record their opinion and preferred to preserve the viscera of the dead bodies and expressed to refer bodies for Forensic Chemical Test. Hence, the dead bodies were taken to the Medical College at Miraj for forensic examination and the Dean of the Medical College, on considering the gravity of the case, formed a committee of the Medical Officers headed by Dr. Anil Digambarrao Jinturkar (PW 76). After conducting the procedure for maceration to clean the skeletons by keeping them in separate drums, the team of Medical Officers performed the autopsy and recorded its opinion in respect of cause of death. With the help of the Miraj Medical College, some of the organs of the dead bodies were also referred to C.D.F.D., Hyderabad for DNA tests and at the same time the police referred the skulls of some of the victims to the Forensic 9 conf-case-3-09 Laboratory at Kalina, Mumbai for the purpose of superimposition test. Undoubtedly, the recovery of seven dead bodies received wide publicity and sent a wavering shock and scare in the minds of the villagers. With the help of the diary recovered from the spot, some names of the relations and friends of the victims were identified. The information regarding the missing persons received at all the police stations in the State of Maharashtra was also assimilated. During the course of the investigation, relations of some of the deceased were also contacted and their blood samples were taken for DNA test and were sent to C.D.F.D., Hyderabad. Some of the dead bodies were identified by such relations/friends. The seized articles were also referred to the C.A. and some gold ornaments, wrist watch, mobile phone sets were also recovered from the accused on the basis of the disclosure made by them. On the basis of the missing complaints recorded at some of the police stations like Vashi, Badlapur and Wai, the investigating agency received information that accused nos.1 to 3 had contacted the victims or their relations. Accused no.1 had lost his father and, therefore, he visited village Humarmala Domblewadi, in Taluka – Kudal on 18/12/2003. He was 10 conf-case-3-09 taken in custody at the first instance on 22/12/2003 and on the basis of the information provided by him during the interrogation, accused nos.2 to 7 also came to be arrested. On the basis of the voluntary disclosure statement made by them, while under arrest, iron rods, swords, cut bars of guns, one muzzle loader gun and other incriminating material used in the crime was also seized by drawing panchanamas and the seized articles were sent to C.A. The test identification parade was also conducted when accused nos.1 to 3 were identified by the witnesses and the assets acquired by the accused also came to be seized. Such assets were motorbikes, Tata Sumo jeep and their bank accounts were also verified, including the bank accounts in the names of their wives and fiancees etc. The investigating agency also came to know that the victims were brought from Mumbai and were kept at Lodges at Kankavali and/or Malvan and from there they were taken to the hillocks of Nandos by auto- rickshaw and were subsequently done to death. The registers from such hotels/lodges were also seized. As per the information received by the IO, it was accused no.2 who was entrusted with the work to bring the victims upto Kankavali or Malvan and to keep them in the hotels before they were taken to the hillocks of Nandos. The specimen 11 conf-case-3-09 hand writing of accused no.2 was collected and referred to the Hand Writing Expert. 4. During the course of investigation, the Superintendent of Police, Sindhudurg, had formed different investigation teams in view of the seriousness and magnitude of the serial killings and the sever terror had sent throughout the area and in fact all over the State of Maharashtra. Recovery of bank pass books from Mumbai, weapons and other articles in or around the house of accused no.7 were also seized. The family members, relations and friends of the deceased were contacted at difference places based on the information of telephone numbers available in the diary as well as with the police stations where the missing complaints were recorded. One more dead body was recovered (DB No.10) on 29/12/2003, during the course of investigation and it was also sent for autopsy, DNA as well as superimposition test. Though the investigating agency has claimed to have identified the dead body as that of Hemnath Thakre, the trial court rejected the claim of the investigating agency and held that DB No.10 could not be proved to be that of Hemnath Thakre. As per the IO, the serial murders were committed on three different occasions. In 12 conf-case-3-09 the first incident on 25/9/2003 two persons were killed i.e. Shankar Sarage (DB 1), resident of Goregaon, Mumbai and Shri Hemnath Thakre (DB 10), resident of Rajapur, Dist. Ratnagiri. But as noted earlier, the trial court has turned down the claim of the investigating agency that DB 10 was that of Hemnath Thakre. The second incident had taken place on 30/10/2003 i.e. about two days after the Bhaubeez festival and the victims who were killed were (1) Vijaysinh Dudhe (DB 2), resident of Kadegaon, Taluka – Wai, District Satara, (2) Dadasaheb Chavan (DB 3), resident of Pune, (3) Sanjay Gaware (DB 4), resident of Pune and Vinayak Pisal (DB 5), resident of Kulgaon, Badalapur. Where as in the third incident of 14/11/2003 when four members of Kerubhau Mali, resident of Vashi i.e. he himself, his wife – Anita and their two minor sons were brutally killed on the hillocks of Nandos and at the time of Giroba Festival. The victims of the same gruesome killings were (1) Sanjay Kerubhai Mali (DB6), (2) Anita Kerubhai Mali (DB 7), (3) Kerubhai Nanaji Mali (DB 8) and Rajesh Kerubhai Mali (BD 9). 5. On the first incident of 25/9/2003, C.R. No.1 of 2004 came to be registered with the Malvan Police Station and on filing of charge- 13 conf-case-3-09 sheet on 31/3/2004 Sessions Case No.4 of 2005 came to be tried and it resulted in acquittal. In respect of second incident of 30/10/2003, C.R. No.24 of 2004 was registered with same police station and on filing of the charge-sheet on 14/9/2004, Sessions Case No.5 of 2005 came to be tried and decided, resulting into conviction of accused nos.1 to 3 and 5. In respect of the third incident of 14/11/2003, in which four members of the very same family were eliminated, including two innocent children, C.R. No. 89 of 2003 was registered with the very same police station and on filing of the charge-sheet on 20/3/2004, Sessions Case No. 3 of 2005 came to be tried and decided. As noted earlier, this reference arises from Sessions Case No. 3 of 2005. It is also pertinent to note at this stage that the order of acquittal passed in Sessions Case No.4 of 2005 has been challenged by the State Government in Criminal Appeal No. 617 of 2010, whereas Criminal Appeal Nos. 731 and 732 of 2010 have been filed by accused – Mahesh Dhanaji Shinde. However, Criminal Appeal No. 731 of 2010 arises from the order of conviction and sentence passed in Sessions 14 conf-case-3-09 Case No. 5 of 2005, in which the confirmation reference has not been received and, therefore, the said appeal cannot be decided along with this confirmation case as well as Criminal Appeal Nos.617/10 and 732/10. Though in all the three Sessions Cases and as per the order dated 21/7/2005 passed by the trial court on Exhibit – 5, the evidence of all the three cases was recorded in Sessions Case No.3 of 2005, the learned trial judge rendered three different judgments and orders and, therefore, in our view, it was necessary to have a separate confirmation reference in Sessions Case No. 5 of 2005. The following tabular statement would furnish the relevant details:- Dead Body No. Date of murder Identified by Sessions Case No. Cause of death DB No.1 – Shankar Sarage 24/9/03 PW 119 4 of 2005 Fire arm injury DBNo.2 - Vijaysinh Dudhe 30/10/03 PW 63 5 of 2005 Head injury DB No.3- Dadasaheb Chavan 30/10/03 PW 98 5 of 2005 Fire arm injury to chest – fracture of skull 15 conf-case-3-09 DB No.4- Sanjay Gavare 30/10/03 PW 80 5 of 2005 Head injury due to fracture of skull bone DB No.5- Bala Pisal 30/10/03 PW 97 5 of 2005 Head Injury DB No.6- Sanjay Mali 14/11/03 PW 66 3 of 2005 Head injury – fracture of bone DB No.7- Anita Mali 14/11/03 PW 66 3 of 2005 Fire arm injury to abdomen and pelvis, multiple fracture of skull leading to head injury DB No.8- Kerubhai Mali 14/11/03 PW 66 3 of 2005 Head injury DB No.9- Rajesh Mali 14/11/03 PW 66 3 of 2005 Head injury – fracture of skull bone DB No.10- Hemant Thakare 24/9/03 PW 99 4 of 2005 Head Injury It is not in dispute that the respective festivals and their dates are as under:- 31st August 2003 - Ganesh Chaturthi 9th September 2003 - Anant Chaturthi 16 conf-case-3-09 25th September 2003 - Ghatsthapana 4th October 2003 - Dasera 24th October, 2003 - Diwali 26th October, 2003 - Bhaubeej 13th & 14th November 2003 - Lord Giroba festival 6. Accused No.1, whom the prosecution claims to be mastermind, was the nephew (sister’s son) of accused no.7 and PW 34 - Satish Anant Korgaonkar and he was brought up by accused no.7 since the mother of accused no.1 was a lunatic and the father was maintaining himself by doing labour work. He used to assist accused no.7 and his wife in agricultural work as well as grazing of cattle. Few years back, with the help of PW 34 – Satish Korgaonkar, he shifted to Mumbai. He started plying rickshaw in the Borivali area. Accused no.2 was working as LIC agent at Mumbai, whereas accused no.3 was employed in a private institution at Mumbai. Accused No.6 was running a ration shop in Borivali area of Mumbai and was a friend of PW 34 – Satish Korgaonkar. The bank accounts seized by the IOs during the course of investigation of all these accused indicated cash deposits in high amounts and which was beyond the limits of their incomes. These deposits were made around the dates of the incident 17 conf-case-3-09 and accused no.1 purchased a Tata Sumo jeep on 24/8/03 in the sum of Rs.2,60,000/-, whereas accused nos.2 and 3 purchased separate motorbikes in the sum of Rs.17500 and Rs. 20500/- respectively on 20/11/03 and 25/11/03. The victims in Sessions Case No.3 of 2005 were the residents of Navi Mumbai. Mr. Kerubhai Mali was engaged in vegetable wholesale business. He had two shops at the APMC Complex, Vashi, one was in his name and other one was in the name of his wife - Anita Mali. The couple had two minor sons, Rajesh and Sanjay. 7. The victims in Sessions Case No. 5 of 2005 were allegedly done to death on 30/10/2003 after robbing the cash worth Rs.3 lakhs. They were allegedly murdered with deadly weapons like guns, swords, revolvers and rods. Their bodies were disposed off into unaccessible places by destroying the evidence of their identity and by concealing unauthorised guns used in the offence. They were the residents of Mumbai and Pune and were dealing in business or as an Estate Agent. Two of the victims had reached Malwan directly from Mumbai, whereas other two had reached via Pune, one day earlier to the date of the incident. As per the prosecution case, PW 14 – Jagan Patil was 18 conf-case-3-09 running canteen in a factory located in the MIDC area, Dombivali and he was knowing Bala Pisal, Gurunath Gharat as his ex-colleagues. He came to know of accused no.1 through Bala Pisal as a spiritual power holder to multiple money from 3 lacs to 3 crores. Sachin Pawar and Gurunath Gharat were also present when Bala Pisal had stated so Jagan Patil, who, in turn, contacted Balu Gadekar, a grape merchant from Junnar. 8. As per the prosecution, accused no.1 claimed to be practicing magic in which he claimed to bring about money shower in as much as currency notes used to emerge in his magic. He used to entice people to bring one lac rupees and with his money shower, he would make the very same amount in multiples. Mr. Kerubhai Mali was the last victim of this enticement and he was told by accused no.1 that with the help of special science, charms, spells and spiritual power, this amount of Rs.3 lacs would multiply in the shower which the accused no.1, with the help of accused nos.2,3 and 6 used to carry out on the hillocks of Nandos, which spot is few kilometers away from the house of accused no.7, where accused no.1 was brought up till the age of about 18-19 years. It is also the prosecution case that the strategy 19 conf-case-3-09 to entice people adopted by these accused was well orchestrated and they ensured that the victims did not travel by their private vehicles and instead they reached Malvan/Kankavali by public transportation so that after they were eliminated, there would be no trace left behind to unearth the crime. It is also the prosecution case that accused no.1 was practicing such magic for money shower few years before the incident and in one such incident he was exposed. The victims started chasing him and demanded money and this information gathered during the course of investigation, led to believe that the accused were an organized gang involved in killing of innocent persons so as to brought the cash after enticing them to multiple in the so called magic spell of money shower. As per the investigation Kerubhai Mali was asked to bring Rs.3 lacs and he raised the said amount but did not hand over to the accused at Mumbai or Vashi. He came with the said cash along with his wife and two minor sons to Malwan and accused no.2 had made the arrangement of his family to stay in Mayur Lodge on 13/11/2003. On the next day in the morning, he was taken to the Dharvas Dongar Katta, Gaonkarwadi, Nandos and some distance very close to the house of accused no.7 by rickshaw (after the office of Village Panchayat) and thereafter by walk. Kerubhai was told to carry 20 conf-case-3-09 all his baggage with him when he would leave the hotel so as to go to the hillocks to attend magic program of money shower. On 14/11/2003 all the four family members were escorted by accused no.2 and reached at the hillocks and accused nos.1 to 3 and 6 were all present. Kerubhai Mali and his wife Anita were told to travel some distance on the hillocks so that they would be out of sight for their children. The money bag he carried was grabbed after brutally killing him by deadly weapons. His wife Anita was also done to death by firing bullets. Their dead bodies were thrown into jungle on the hillocks so that they would not be visible ordinarily. It appears the hillock was a secluded place, which was not visited by villagers in normal course. The accused then came back to the children of Malis and took them away at some distance and they were brutally murdered. Their dead bodies were cut into pieces and thrown around. Anita Mali was wearing gold ornaments and Kerubhai was wearing Rado watch on his wrist. He also