Ankush Maruti Shinde . vs State Of Maharashtra

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

2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the Bombay High Court, original accused nos. 1, 2 & 4 have preferred Criminal Appeal Nos. 1008-1009 of 2007. The State of Maharashtra has also filed Criminal Appeal Nos. 881-882 of 2009 challenging the alteration of death sentence to life imprisonment in respect of original accused nos. 3,5, & 6 are concerned. The State has also challenged the acquittal of original accused nos. 3, 5 & 6 for the offence punishable under Section 376(2)(g) of the IPC.

2.1 That by judgment and order dated 30.04.2009, this Court dismissed the appeals preferred by original accused Nos. 1, 2 & 4 and allowed the appeals preferred by the State and restored the capital punishment imposed by the learned Sessions Court so far as accused 4 Nos. 3, 5 & 6 are concerned. That the judgment and order dated 30.04.2009 passed by this Court was sought to be reviewed at the instance of the original accused nos. 3, 5 & 6 on the ground that accused nos.3, 5 & 6 had no opportunity to be heard by the Bench, before the appeals filed by the State of Maharashtra for enhancement of sentence were decided.

2.2 That a three Judge Bench of this Court by its order dated 31.10.2018 allowed the review applications, and recalled the judgment and order dated 30.04.2009 rendered by this Court not only qua accused nos. 3, 5 & 6, but qua other accused also by observing that the evidence is common and the offences relate to the same incident, and therefore, it is appropriate and proper that the judgment dated 30.04.2009 should be recalled in its entirety, in relating to all the six accused. While allowing the review applications, this Court recalled the judgment dated 30.04.2009 and directed the criminal appeals to be restored to the file of this Court and directed that the appeals be placed before the appropriate Bench for hearing afresh. It is to be noted that this Court while restoring the appeals which have been preferred by the original accused nos. 1, 2 & 4 and State of Maharashtra, also granted permission to accused nos. 3, 5 & 6 to file appeals against the judgment of the High Court convicting them, if so advised, and that is how accused nos.3, 5 & 6 have preferred Criminal 5 Appeal Nos. 268-269 of 2019 against the judgment of the High Court convicting them. Hence, all these appeals are now before the Court for a fresh hearing.

The clothes from the five deceased persons, as well as, on the person of Manoj and Vimalabai were seized. From the spot some weapons like wooden handle, spade with handle, yokpin and sickle were also seized. The seized articles were sent for chemical analysis and CA reports from Exhibit 58 to Exhibit 72 were received. That original accused nos. 1 & 2 came to be arrested under arrest panchanamas (Exhibits 44 and 45) on 23.6.2003 by the Crime Branch. According to the prosecution, the police during the course of investigation also got information that some other accused were also involved in a separate crime registered with the police station at Bhokardhan in Jalna district on 19.06.2003 and the police, therefore, filed an application before the competent Court seeking transfer of the accused in Crime No. 74 of 2003 registered with the Bhokardhan police station and finally accused nos. 3 to 5 came to be arrested on 27.06.2003 under 8 arrest panchanamas (Exhibits 53, 54 and 55) after their custody was transferred from the police station at Bhokardhan. That on the arrest of accused nos. 1 to 5 their clothes were seized and they were subjected to medical examination. On medical examination, some injuries were found on accused nos. 1, 2 & 4. The aforesaid accused nos. 1, 2 & 4 were seen to have sustained some injuries within three weeks. Medical certificates were issued by the concerned doctor (Exhibits 133 to 135 and Exhibits 195 & 196). That during the course of the investigation, test identification parade of accused nos. 1 to 5 was held on 25.07.2003 by the Executive Magistrate. In the test identification parade, PW1 – Manoj Satote identified the five accused. PW8 – Vimalabai also identified accused nos. 1, 3, 4 and 5 as the unknown persons who had entered the hut and assaulted the family members. However, she could not identify accused no.2. It appears that thereafter accused no.6 came to be arrested on 07.10.2004 and his test identification parade was held on 9.10.2004. Both PW1 and PW8 identified the said accused also.

3.3 On completion of the investigation and finding prima facie case against the accused, the Investigating officer filed a charge sheet against all the accused for the offences punishable under Sections 395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. 9 That the learned Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 43/2004. 3.4 To prove the case against the accused, the prosecution led oral as well as documentary evidence. The prosecution examined as many as 25 witnesses as under:

4. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the learned Sessions Court, all the accused preferred Criminal Appeal No. 590/2006 before the High Court. The learned Sessions Court made a reference to the High Court as all the accused were imposed the death sentence. It appears that during the pendency of the aforesaid appeal and the confirmation case, 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 the High Court. By the common order dated 14.11.2006 in both these applications, the High Court issued the following directions:

9.1 As observed hereinabove, and even as per the case of the prosecution, the incident occurred after 10:30 p.m. at night. The victims were living in a hut made by gunny bags in guava orchard. As per the case of the prosecution, the accused committed the murder, robbery as well as the rape of one lady, named Savita and PW8 – Vimalabai. As per the case of the prosecution, the accused 50 stripped the ornaments from the wife and daughter of Trambak, and also took Rs.3,000/- from him. As per the case of the prosecution, A2 raped Savita and took her outside the hut and thereafter she was killed. As per the case of the prosecution, one Trambak was living in the hut in the guava orchard with his family (wife, three sons and one daughter). In the unfortunate incident, Trambak, his daughter Savita, his nephew Bharat, his sons Sandeep and Bhurya died. PW1 & PW8 – son Manoj and Trambak’s wife Vimalabai survived. Therefore, according to the prosecution case, PW1 & PW8 were 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 the Court. Considering the entire material on record, it appears that the prosecution in support of its case has solely relied on the evidence of identification. At this stage, it is required to be noted that though the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case. Though, as per the case of the prosecution, the accused stripped the ornaments from the wife and daughter of Trambak and took Rs.3,000/- from Trambak, there is no recovery except one broken white metal chain, which was allegedly seized during the house search of Bhojubai Appa Shinde, the mother of A5 on 26.06.2003. The aforesaid in detail shall be discussed 51 hereinbelow.

5.48 Making the above submissions, it is prayed to allow the appeals 44 preferred by the accused and acquit them for the offences for which they are convicted.

12. In view of the above and for the reasons stated above, the conviction and sentence imposed by the High Court cannot be sustained. The prosecution has failed to prove the case against the accused beyond reasonable doubt. Therefore, we have no other alternative, but to acquit the accused for the offences for which they are convicted.

16. With the above observations and directions, and in view of the above and for the reasons stated above, the criminal appeals preferred 75 by the accused are hereby allowed, and all the accused are hereby acquitted for the offences for which they were tried. They shall be released forthwith, if not required in any other case. Consequently, the appeals filed by the State of Maharashtra for enhancement of sentence qua A3, A5 and A6 stand dismissed.

17. The prosecution is directed to conduct further investigation under Section 173(8) of the Code of Criminal Procedure qua those four persons who were identified by PW8 – an injured eye witness on 7.6.2003 from the album of photographs of notorious criminals with their names, i.e., immediately after the incident, whose particulars and names are 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 five persons were killed brutally and one lady was even subjected to rape.