Supreme Court of India
ANKUSH MARUTI SHINDE AND OTHERSversusSTATE OF MAHARASHTRA
- Citation
- 2019 INSC 305
- Decided
- 5 March 2019
- Disposal
- Disposed off
- Bench
- A K SIKRI
Holding
The Supreme Court acquitted all accused, holding that the prosecution failed to prove guilt beyond reasonable doubt due to unreliable witness identification and a fundamentally unfair investigation.
Summary
The case involved six accused who were convicted of murder, robbery and rape of a woman in a hut robbery in 2003, based primarily on the identification of two eye‑witnesses (PW1 and PW8) in a test identification parade (TIP) and in court. The Supreme Court examined whether the prosecution had proved guilt beyond reasonable doubt, focusing on the delayed TIP, lack of forensic corroboration, contradictions and omissions in the witnesses' statements, and the failure to investigate four other persons identified by PW8 shortly after the incident. It held that the investigation was unfair and the witnesses were unreliable, creating reasonable doubt about the accused's participation. Consequently, the Court acquitted all six accused, dismissed the State's appeal for enhanced sentences, ordered compensation of Rs.5 lakh to each accused under Article 142, and directed further investigation under Section 173(8) CrPC into the four persons identified by PW8. The judgment emphasized the constitutional mandate for fair investigation and trial under Articles 20 and 21.
Issues considered
- The prosecution's case rested solely on identification by PW1 and PW8; was this sufficient to sustain conviction and death sentences?
- Did the delay in conducting the test identification parade and lack of forensic evidence render the identification unreliable?
- Was the investigation conducted in a fair, impartial manner as required by Articles 20 and 21 of the Constitution?
- Should the death sentences be upheld or commuted in view of the evidentiary deficiencies?
- Is the State liable to pay compensation to the acquitted accused under Article 142?
Legislation cited
- Code of Criminal Procedure, 1973s. 173(5), s. 173(8), s. 178(3)
- Constitution of Indias. Article 142, s. Article 20, s. Article 21
- Indian Penal Code, 1860s. 302, s. 307, s. 34, s. 376(2)(g), s. 395, s. 396, s. 397, s. 398
Subjects
murderrapedeath penaltyidentification paradewitness reliabilityfair trialinvestigationreasonable doubtcompensationArticle 142CrPC Section 173(8)forensic evidence
Judgment
[2019] 4 S.C.R. 709 709
ANKUSH MARUTI SHINDE AND OTHERS A
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1008-1009 of 2007)
MARCH 05, 2019 B
[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 murder
and rape – Prosecution case that commission of murder of five
C
persons, robbery as well as rape of one lady – Deposition of two
eye-witnesses PW1 and PW8, and identification of the accused either
in 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 accused D
awarded death sentence – High Court, while upholding the
conviction 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 offence
u/s. 376(2)(g) – On appeal, held: Murder and rape is indeed a
E
reprehensive act and every perpetrator should be punished
expeditiously, severely and strictly – However, this is only possible
when guilt has been proved beyond reasonable doubt – On facts,
other than the evidence of PW1 and PW8, no other evidence either
scientific and/or other, corroborating the prosecution case, to link
the accused to the offence – PW1 and PW8 not able to give any F
particulars/description of the accused to the I.O. and/or to the
magistrate who conducted the TI parade nor able to ascribe any
roles to the culprit – There are major omissions/contradictions/
improvements which are fatal to the prosecution case, thus, creates
reasonable doubt on the trustworthiness and the reliability of PW8
G
– Identification of the accused by PW1 in the TI parade also creates
a serious doubt – Thus, not safe to convict the accused solely on
the basis of their identification by PW1 and PW8 in the TI parade
and/or before the Court – Also no explanation as regards the delay
in conducting the TI parade and doubt as to sufficient light at the
H
709
710 SUPREME COURT REPORTS [2019] 4 S.C.R.
A time of incident – Furthermore, there was no fair investigation by
the investigating agency/prosecution – Prosecution suppressed the
material fact from the court – In view thereof, accused acquitted
for the aforesaid offences – Test Identification Parade.
Investigation: Significance of – Held: Impartial and truthful
B investigation is imperative – Fair trial includes fair investigation as
envisaged by Arts. 20 and 21 – Aim of investigation is ultimately to
search for truth and to bring the offender to book – It is the duty of
the prosecution to ensure fairness in the proceedings and to ensure
that all relevant facts and circumstances are brought to the notice
of the court – Investigation should be judicious, fair, transparent
C and expeditious to ensure compliance with the basic rule of law –
On facts, the investigating officer, the magistrate and even the
injured eye-witness deliberately and willfully suppressed from the
court the material fact of the statement of the eyewitness recorded
immediately after the incident, by the special executive magistrate
D in which she specifically identified four persons who have committed
the offence from the album of the photographs of the notorious
criminals – Said magistrate conducted the TI parade subsequently
– None of the accused in the instant case are out of those four
persons identified by the eyewitness – Nothing is on record whether
those four persons were arrested or not or any further investigation
E was carried out – Thus, there was a serious lapse on the part of the
investigating agency – Constitution of India – Arts. 20 and 21.
Code of Criminal Procedure, 1973: s. 178(3) – Further
investigation by police officer – On facts, there was no investigation
at all with respect to those four persons who were identified by the
F injured eye witness immediately after the incident and these four
persons were other that the six persons tried and convicted – As a
result, real culprits went scot free – Thus, there was no fair
investigation and fair trial, resulting in infringement of the
fundamental rights of the accused guaranteed u/Arts. 20 and 21 –
G Such conduct on the part of the investigating agency and the
prosecution is strongly deprecated – Prosecution to conduct
investigation u/s. 173(8) qua four persons identified by the injured
eye witness.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 711
Constitution of India: Art. 142 – Compensation – Award of – A
No fair investigation and fair trial, qua the four persons identified
by injured eye witness, immediately after the incident – Other six
persons who came to be tried, convicted and sentenced death penalty
for offence of murder and rape, remained under constant stress
and in perpetual fear of death – In view of the lapses, all the six
B
persons are acquitted – In exercise of powers u/Art. 142, the State
of Maharashtra to pay compensation of Rs. 5 lakh to each of the
accused.
Allowing the appeals by the accused and dismissing the
appeals by the State, the Court
C
HELD: 1. Murder and rape is indeed a reprehensive act
and every perpetrator should be punished expeditiously, severely
and strictly. However, this is only possible when guilt has been
proved beyond reasonable doubt. [Para 10.5] [758-B-C]
2.1 The TI parade was held after 50 days from the date of D
offence and 33 days after the arrest of A1 & A2. The accused
persons were arrested on transfer warrant. Even A6 was arrested
after more than one year, and the TI parade for A6 was conducted
more than one year later. There is no explanation forthcoming
from the prosecution for the delay in conducting the TI parade.
[Para 9.3] [749-H; 750-A-B] E
2.2 There is very serious doubt whether at the time of
incident, there was sufficient light in the hut. Under the facts and
circumstances, neither PW1 nor PW8 would have been able to
get a proper look at the persons who committed the offence.
Neither PW1 nor PW8 were able to describe the accused to the F
police or the clothes worn by them. No identifying features were
given. In the trial, the clothes seized from the accused were not
identified by either PW1 or PW8. Neither PW1 nor PW8 were
able to ascribe the specific roles to the culprits. Even, according
to the prosecution, PW1 & PW8 had fallen unconscious during G
the incident. Therefore, the said witnesses were not in a fit
condition to see and remember and that is why neither PW1 nor
PW8 gave details about the description of the culprits-heights,
hair, facial features, complexion, beard, etc. to the police during
H
712 SUPREME COURT REPORTS [2019] 4 S.C.R.
A the investigation. Even PW8’s entire evidence about the incident
and the role played by different accused persons is an omission/
improvement. Whatever is stated by PW8 in her deposition, the
same is stated for the first time in her deposition, which was
recorded two and a half years later. The same was not stated to
the police/special executive magistrate in her statements that
B
were 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 to
the police but she does not know why the police did not record
the same. However, the same is not corroborated by any other
C evidence, more particularly the deposition of the IO and/or the
magistrates. It is also required to be noted that even according
to PW8, she was subjected to rape, however, the prosecution
has miserably failed to prove the rape on her by leading cogent
evidence, more particularly the forensic evidence. On scanning
the entire evidence of PW8, the observation of the High Court
D
that the omissions are minor omissions is not accepted. On
considering the deposition of PW8 about the incident and the
role alleged to have been played by different accused persons, it
is opined that the omissions are major omissions and
improvements which are fatal to the case of the prosecution and
E in any case, it creates reasonable doubt on the trustworthiness
and 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 TI
parade also creates a serious doubt. PW1 has categorically stated
F that the culprits spoke with him in Hindi. According to him, they
were also speaking amongst themselves in Hindi. PW8 also
confirmed the same. All the victims are Marathi speakers.
Therefore, if the accused were to speak with the victims, they
would have spoken in Marathi and not in Hindi. Therefore, there
is a possibility that the culprits who were speaking in Hindi were
G not 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 TI
parade. Therefore, on what basis the other dummy persons were
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 713
brought and were present in TI parade is not forthcoming from A
the prosecution. There is also no statement that the dummies
resembled the accused persons. Though, the special executive
magistrate who had conducted the TI parade is required to select
the dummy persons, in the instant case, the dummy persons were
selected by the police. Considering the said facts and
B
circumstances, it is not safe to convict the accused solely on the
basis of their identification by PW1 & PW8 in the TI parade and/
or before the Court. Except the deposition of PW1 & PW8 and
they identified the accused in the TI parade and/or before the
Court, there is no other evidence, either scientific and/or other,
corroborating the prosecution case. There is no forensic evidence C
corroborating the prosecution case. In fact, the DNA, finger prints
evidence and CA evidence do not support the case of the
prosecution, and/or link the accused to the crime. The DNA
samples were collected during the investigation and in fact were
sent for DNA analysis, but the prosecution never presented the
D
report to the Court. No pubic hair, DNA, semen or blood of the
accused were found on any of the victims. It appears that the
samples were collected from the accused and were sent for
analysis, but the result did not incriminate the accused. [Para
9.6, 9.7] [751-G-H; 752-A-E]
2.5 No stolen property has been found or recovered from E
any of the accused except a broken white metal chain which was
seized during the house search of the mother of A5 on 26.06.2003.
However, her signature is not there on the panchnama. The
panchnama also does not state that the seized property was sealed.
The chain was described as “one white metal chain with 30 links, F
middle link is broken and tied with a string. The value of the
same was stated to be zero”. The chain had no special markings
on it and the same is freely available. Though the prosecution
claimed that the said chain belongs to PW1, PW1 had admitted
that he has not given any description of the chain to the police.
Barring this chain, nothing was seized or recovered from any of G
the accused. Therefore, the seizure of a commonly available white
metal silver chain without any distinctive markings would be a
weak piece of evidence to hold the accused guilty. [Para 9.8]
[752-F-H; 753-A]
H
714 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 2.6 Dying declaration/statement of PW 8 was recorded two
days after the incident. She identified photographs of four people
from album of notorious criminals as those who committed the
offence. Admittedly, the present accused are not amongst those
four persons identified by PW8 from the photo album. It is
required to be noted that in her deposition she had not stated
B
anything about her statement recorded by PW13 and she identified
the photographs of four people from album of notorious criminals
shown to her. Therefore, to that extent, there is also a suppression
of material fact by PW8. In fact, the said was withheld by the
prosecution during the trial. Only during hearing of the appeal
C before the High Court, it came to the light and therefore pursuant
to the order passed by the High Court she was recalled and when
she was confronted with the above, very surprisingly, she stated
that four persons who were identified by her were the same
persons out of the present accused. However, such a stand is
just contrary to the deposition of PW13. What is stated by her in
D
her deposition when she was recalled pursuant to the order passed
by 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 correct
E facts. Therefore, she is not a reliable witness who can be believed.
The High Court unfortunately did not accept the case of the
defence by observing that the statement of PW8 recorded by
PW13 cannot be said to be a dying declaration but a mere
statement which can be used only for corroboration and
F contradiction. Therefore, even as per the High Court also, her
statement recorded by PW13 in which she identified altogether
4 other persons with names can be used for the purpose of
contradiction. The contradictions are material contradictions and
she 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 and
truthful investigation is imperative. It is judiciously acknowledged
that fair trial includes fair investigation as envisaged by Articles
20 & 21 of the Constitution. The role of the police is to be one
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 715
for protection of life, liberty and property of citizens, that A
investigation of offences being one of its foremost duties. That
the aim of investigation is ultimately to search for truth and to
bring the offender to book. Apart from ensuring that the offences
do not go unpunished, it is the duty of the prosecution to ensure
fairness in the proceedings and also to ensure that all relevant
B
facts and circumstances are brought to the notice of the court for
just determination of the truth so that due justice prevails. It is
the responsibility of the investigating agency to ensure that every
investigation is fair and does not erode the freedom of an
individual, except in accordance with law. One of the established
facets of a just, fair and transparent investigation is the right of C
an accused to ask for all such documents that he may be entitled
to 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 the
truth. In Indian criminal jurisprudence, the accused is placed in a D
somewhat advantageous position than under different
jurisprudences of some of the countries in the world. The criminal
justice administration system in India places human rights and
dignity for human rights at a much higher pedestal and the accused
is presumed to be innocent till proven guilty. The alleged accused
is entitled to fair and true investigation and fair trial and the E
prosecution is expected to play a balanced role in the trial of a
crime. The investigation should be judicious, fair, transparent
and expeditious to ensure compliance with the basic rule of law.
These are the fundamental canons of the criminal jurisprudence
and they are quite in conformity with the Constitutional mandate F
contained 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 Singh
v. State of Punjab AIR 1965 SC 328 : [1964] 7 SCR G
397 – referred to.
3.3 The prosecution/investigating agency is expected to
act in an honest and fair manner without hiding anything from the
accused as well as the Courts, which may go against the
H
716 SUPREME COURT REPORTS [2019] 4 S.C.R.
A prosecution. Their ultimate aim should not be to get conviction
by hook or crook. Applying the said principles to the facts of the
case on hand, there was no fair and honest investigation and even
prosecution tried to suppress the material fact from the court. In
the instant case, the investigating officer, PW13-special executive
magistrate and even PW8-injured eye witness suppressed from
B
the court the material fact of the statement of PW8 recorded on
7.6.2003, recorded by PW13-special executive magistrate in which
she specifically identified four persons who have committed the
offence from the album of the photographs of the notorious
criminals. Thus, special executive magistrate being an
C independent witness was supposed to state the correct facts
before the court. PW13 is the same Special Executive Magistrate
who conducted the TI parade subsequently. It appears that in
fact the investigating officer and the prosecution deliberately
withheld the said fact from the court. According to PW1 & PW8,
and even according to the prosecution, there were 7-8 persons
D
who committed the offence. Though, PW12- nephew of the
landlord-first person to reach the spot clearly stated in his
deposition that PW1 told him that four persons were the assailants
and committed the offence. PW8 identified four persons on
7.6.2003 from the album of the photographs of notorious criminals
E whose names were specifically noted as per the statement of PW8.
None of the accused in the instant case are out of those four
persons identified by PW8 on 7.6.2003. Therefore, if those four
persons who were identified by PW8 as other than the accused in
the instant case are added in the instant case, it can be said that
there were 12 persons/assailants who committed the offence and
F
therefore the prosecution case that there were 7-8 persons would
fail and that is why the said fact seems not to have been stated by
the investigating officer and the same was suppressed by him
deliberately and wilfully. Even the investigation also does not
seem to be fair and honest investigation. Nothing is on record
G whether those four persons were arrested or not or any further
investigation 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 more
weightage than her identifying the accused persons after a long
delay. The investigating officer ought to have conducted an
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 717
investigation on that line and ought to have arrested those four A
persons and ought to have conducted the investigation qua those
four persons. On the contrary, the accused in the instant case
were arrested after a period of one and a half months and that too
on transfer warrants, though there was no description of the
accused given by either PW1 or PW8. A6 was arrested after a
B
period of one and a half year. All the accused persons are nomadic
tribes coming from the lower strata of the society and are very
poor labourers. Therefore, in the facts and circumstances of the
case, false implication cannot be ruled out since it is common
occurrence that in serious offences sometime innocent persons
are roped in. Therefore, there is a serious lapse on the part of C
the investigating agency, which has affected the fair investigation
and fair trial, and therefore, the same is violative of fundamental
rights of the accused guaranteed under Articles 20 & 21 of the
Constitution. The conduct on the part of the investigating agency
and the prosecution is strongly deprecated. [Para 9.12,11, 11.1,
D
15] [758-C-H; 759-A-H; 761-E]
3.4 The prosecution has failed to prove the case against
the accused beyond reasonable doubt. Because of such lapses,
and more particularly in not conducting the investigation insofar
as those four persons who were identified by PW8, the real culprits
have gone out of the clutches of the law and got scot free. The E
conviction and sentence imposed by the High Court cannot be
sustained. All the accused are acquitted for the offences for which
they were tried and would be released, if not required in other
offences. [Para 12, 15, 16] [760-A; 761-F; 763-G]
3.5 The Court cannot shut its eyes to the said fact that five F
persons have been killed/murdered, out of whom even one lady
was raped and that there is no fair investigation and because of
the lapse on the part of the prosecution/investigating agency in
not conducting any investigation qua those four persons who were
identified by PW8 on 7.6.2003 before the special executive G
magistrate. The benefit of the lapse in investigation and/or unfair
investigation cannot be permitted to go to the persons who are
real culprits and in fact who committed the offence. Unfortunately,
there was no investigation at all with respect to those four persons
who were identified by PW8 in her statement. Therefore, this is
H
718 SUPREME COURT REPORTS [2019] 4 S.C.R.
A a fit case for further investigation under Section 173(8) CrPC
qua 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 qua
the four persons who were identified by PW8. On the contrary,
B the accused in the instant case were nomadic tribes and falsely
implicated and are roped in. Except one, all of them are in jail
since last 16 years. All were facing the hanging sword of death
penalty. Out of six accused persons, one was subsequently found
to be a juvenile. He has clearly opined that he has lived under
sub-human conditions for several years. Therefore, all the accused
C remained under constant stress and in the perpetual fear of death.
As they were facing the death penalty, they might not have availed
any other facilities of parole, furlon etc. All of them who were
between the age of 25-30 years (and one was a juvenile) have
lost their valuable years of their life in jail. Their family members
D have also suffered. Therefore, in the facts and circumstances of
the case, and in exercise of powers u/Article 142 of the
Constitution, the State of Maharashtra is directed to pay a sum of
Rs.5,00,000/- to each of the accused as compensation.
[Para 14] [760-F-H; 761-A-D]
E 5. The Chief Secretary, Home Department, State of
Maharashtra is directed to look into the matter and identify and
take departmental action against such erring officers/officials
responsible for failure of a prosecution case, on account of sheer
negligence or because of culpable lapses, real culprits are out of
the clutches of law and because of whose lapses the case has
F resulted 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 Pradesh
G AIR 1960 SC 1340; Iqbal v. State of Uttar Pradesh
(2015) 6 SCC 623; Ram Sunder Sen v. Narender
(2016) 15 SCC 440 - referred to.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 719
Case Law Reference A
AIR 1960 SC 1340 referred to Para 5.16
(2015) 6 SCC 623 referred to Para 5.40
(2016) 15 SCC 440 referred to Para 5.43
[2012] 10 SCR 641 referred to Para 10.3 B
[1964] 7 SCR 397 referred to Para 10.4
[2014] 1 SCR 197 relied on Para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1008-1009 of 2007. C
From the Judgment and Order dated 22.03.2007 by the High Court
of Judicature at Bombay in Confirmation Case No. 2 of 2006 with Criminal
Appeal No. 590 of 2006.
WITH
D
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, Vishnu
Unnikrishnan, Ms. Malar Vendhan (for T. Harish Kumar), Advs. for the E
Appellants.
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,
F
arise out of the impugned judgment of the Division Bench of the Bombay
High Court dated 22.03.2007 passed in Confirmation Case No.2 of 2006
along with Criminal Appeal No. 590 of 2006, and are being disposed of
by this common judgment.
1.1 By the impugned judgment, a Division Bench of the Bombay
High Court has disposed of the Reference made by the learned 3rd G
Ad-hoc Additional Sessions Judge, Nashik (hereinafter referred to as
the ‘Sessions Court’) under Section 366 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the ‘Code’) for
confirmation of the death sentence.
H
720 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 1.2 The Sessions Court by judgment and order dated 12.06.2006
in Sessions Case No. 43/2004 convicted in all six accused – original
accused nos. 1 to 6 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.
B 1.3 The learned Sessions Court sentenced all the accused to death
for the offences punishable under Section 302 read with 34 of the IPC.
The learned Sessions Court also imposed separate punishments for other
offences for which they were convicted. All the convicted accused
filed Criminal Appeal No. 590/2006 before the High Court of Bombay
against the order of conviction and sentence imposed by the learned
C Sessions Court. As observed hereinabove, the learned Sessions Court
made a reference to the High Court for confirmation of the death
sentence, which was registered as Confirmation Case No. 2 of 2006.
1.4 That the High Court, while upholding the conviction and death
sentence of original accused nos. 1, 2 & 4, altered the death sentence in
D 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 pun-
ishable 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
E 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
F 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. The State has also challenged the acquittal of original accused nos. 3,
G 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
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 721
[M. R. SHAH, J.]
punishment imposed by the learned Sessions Court so far as accused A
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
B
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 C
is appropriate and proper that the judgment dated 30.04.2009 should be
recalled in its entirety, 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 D
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 Appeal Nos. 268-269 of 2019 against the judgment E
of the High Court convicting them. Hence, all these appeals are now
before 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 the F
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 in
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 G
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
H
722 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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 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
B
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
C 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
D
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 12 O’ Clock
E 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.
3.1 As per the case of the prosecution, in the morning at about
6:30 a.m. on 6.6.2013, one Vishnu Hagwane (PW12), nephew of the
F landlord reached the spot and had seen the dead bodies. By that time,
PW1 – Manoj Satote became conscious. PW1 – Manoj Satote lodged
the first information report against unknown persons. The investigating
officer started investigation. It appears that at different times, the
investigation was carried out by four different officers. The
investigating officer recorded the statement of the concerned witnesses
G including 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 of
Manoj and Vimalabai were seized. From the spot some weapons like
wooden handle, spade with handle, yokpin and sickle were also seized.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 723
[M. R. SHAH, J.]
The seized articles were sent for chemical analysis and CA reports from A
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
B
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 arrest panchanamas (Exhibits 53, 54 and
55) after their custody was transferred from the police station at C
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
D
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 E
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 F
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. That the
learned Magistrate committed the case to the Court of Sessions, which
was numbered as Sessions Case No. 43/2004. G
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:
H
724 SUPREME COURT REPORTS [2019] 4 S.C.R.
A
PW ame Role
1 Manoj Satote Complainant and Eye Witness, FIR
dt. 6.6.2003 Ex. 23
2 Suresh Javare Inquest Panch, Panchnamas [dt.
6.6.2003 Ex. 25-29 [Co-Panch
B Raman Ratan Boie] 8.30 am –
11.30 am.
3 Shankar Ghule Spot Panch for hut, Panchnama dt.
6.6.2003 Ex. 31 11.45 am-12.45
pm.
4 Bharat Bhoir Spot Panch for hut, Panchnama dt.
C 6.6.2003 Ex.31
5 Dada Palde Spot Panch for well, Panchnama dt.
7.6.2003 Ex. 34 [Co-Panch
Sandeep Dhule] 8 am-9 am.
6 Raghunath Hagwane Landlord of Guava Orchard.
D Panch for Seizure Panchnama for
slippers from spot dt. 6.6.2013 Ex.
75 (Co-Panch Kashinath Palande]
12.50 pm – 1.20 pm.
Panch for identification of slippers
E by PW1 dt. 8.6.2003 Ex. 76 [Co-
Panch Kashinath Palande] 9 am –
9.45 am.
7 Ibrahim Shaikh Panchnama for spot dt. 25.6.2003
Article A [Co-Panch Shabbi
Khatib] 11 am – 12.30 pm.
F 8 Vimalbai Satote Eye Witness
9 Dr.Dattatraya Gadakh Autopsy Surgeon for Post mortems
Notes dt. 6.6.2003 Ex. 81, 86, 89,
91, 93 and Cause of Death
Certificates dt. 6.6.2003 Ex. 82, 85,
87, 88, 90, 92, 94, 96, 99, 101.
G 10 PC Vithal Carried articles to CA.
11 PN Sonawane Carried articles to CA.
12 Vishnu Hagwane Nephew of PW6. First person to
reach spot.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 725
[M. R. SHAH, J.]
A
FIR 13 Ramesh Sonawane Special Executive Magistrate.
Conducted TIP of A6 on 9.10.2004 Ex.
120 [Panchas Chaggan Mag Chavan,
[dt.
Rajendra Murlidhar Sarode] 11.30 am –
nch 12 noon. Letters Ex. 118-9, 121.
m – Recorded Dying Declaration of PW8 B
Ex. 122, 5.20 pm to 6 pm.
dt. 14 Sayyad Budhan Panch for opening and resealing packet
2.45 containing a chain dt. 22.8.03 Ex. 124-
5 [Co-Panch Deepak Ghodke] 12.15
dt. pm – 12.30 pm.
15 Dr. Nalini Shardul Medical Officer for PW1 and PW8’s C
dt. injuries, Certificate Ex. 129-31.
nch 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].
for Arrested A6 on 1.10.04. D
Ex. 18 ACP Bhaskarrao Investigating Officer
nde] Dhus
19 Bhimsing Onkar In charge of Dog Squad, Panchnama dt.
29.6.2003 Ex. 164
pers 20 PI Kashinath Bharate First Investigating Officer. Recorded
Co- Dying Declaration of PW1 Ex. 178 dt. E
m– 6.6.03
21 PI Ramesh Patil Searched houses of A1, A3, A4, A5 on
003 26.6.03 Panchnamas Ex. 48-52, 183.
bbi 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
F
ems Mhaske] 1.30 – 2.30 pm.
89, 22 PI Shafiuddin Sayyad Recorded FIR
eath 23 PI Sharad Gavane Recorded statement of PW8 dt 6.6.03
85, 24 Dr. Vilas Patil Medical Officer for examination of A1
and A2 dt. 23.6.03 Ex. 195-6
25. Govind Alhate Magistrate who had conducted the TIP G
dt. 25.7.03 for A1-A5 Ex. 224-228,
n to explanation Ex. 229.
H
726 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 3.5 Apart from the aforesaid oral evidence, the prosecution brought
on record and relied upon the following documentary evidence:
Sl. No. Particulars Exh. No.
1. Complaint Exh. 23
2. Inquest Panchnamas Exhs. 25 to 29
B 3. Spot Panchnamas Exh. 31 and Exh. 34
4. Seizure panchnama of slippers Exh. 75
5. Identification of slippers by Exh. 76
Manoj
6. P.M. Notes of deceased Savita Exh. 81
7. Advance cause of death Exh. 82
C
certificate of Savita
8. Final cause of death certificate Exh. 85
of Savita
9. P.M. Notes of Trambak Exh. 86
10. Advance cause of death Exh. 87
certificate of Trambak
D
11. Final cause of death certificate Exh. 88
of Trambak
12. P.M. Notes of Bhurya Exh. 89
13. Final cause of death of Bhurya Exh. 90
14. P.M. Notes of Sandip Exh. 91
E 15. Final cause of death certificate Exh. 92
of Sandip
16. P.M. Notes of Bharat More Exh. 93
17. Final cause of death certificate Exh. 94
of Bharat
18. The opinion of medical officer Exh. 107
F about Savita
19. Medical certificate of Manoj Exh. 129
20. Medical certificate of Vimalabai Exh. 131 and Exh. 132
21. Medical certificates about the Exh. 133 to 135 and
examinations of the Accused Exh. 195 and 196
22. Proclamation orders Exh. 158
G 23. Panchnama of the identification Exh. 164
by Dog
24. Spot map Exh. 169
25. C.A. Certificate Exh. 58 to 72
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 727
[M. R. SHAH, J.]
3.6 That after the closing pursiswas submitted by the prosecution, A
further statement of the accused under Section 313 of the Code was
recorded, 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 the
accused nos. 1 to 6 guilty for the offences punishable under Sections B
4
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, and
sentenced the accused as under:
“1. The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya Appa
Shinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde, C
(5) BapuAppa Shinde & (6) Surya alias Suresh s/o Nagu alias
GangaramSinde are convicted for the offences punishable under
sections 395, 302 r.w. 34 of Indian Penal Code, Section
376(2)(g), 307 r.w. 34 of Indian Penal Code, Sections 396, 397
r.w. 395 and Sec. 398 of Indian Penal Code.
D
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. The Accused Nos. 1 to 6 are convicted for the offence punishable E
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. F
4. The accused Nos. 1 to 6 are convicted for the offence punishable
132
under section 376(2)(g) of Indian Penal Code and they are
d
sentenced to suffer R.I. for a period of 10 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.
G
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.
H
728 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 6. The Accused Nos. 1 to 6 are convicted for the 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.
B 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.
C 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.”
4. Feeling aggrieved and dissatisfied with the judgment and order
of conviction and sentence imposed by the learned Sessions Court, all
D 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
E 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:
“(i) The prosecution be allowed to lead additional evidence of the
Sub-Divisional Magistrate who conducted the test identification
F 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
G 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 for further orders
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 729
[M. R. SHAH, J.]
in relation to hearing on 9th January, 2007. The record may be A
transmitted to the Trial Court for this purpose.”
4.1 Consequently, PW8 and PW13 were further cross-examined
by the defence and the prosecution examined one additional witness i.e.
Shri Govind Alhate, City Magistrate at Nashik as PW25. He had
conducted the TI parade of accused nos. 1 to 5 on 25.07.2003. Through B
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. At this stage, it is required
to be noted that before the Sessions Court, the Sub-Divisional Magistrate,
who conducted the TI parade on 25.7.2003 was not examined, and C
therefore the High Court passed the aforesaid order and directed the
prosecution to lead additional evidence of Sub-Divisional Magistrate,
who conducted the TI parade in relation to accused nos. 1 to 5, conducted
on 25.7.2003. That from the cross-examination of PW8 and PW13 and
their additional depositions recorded, consequent to the order passed by D
the High Court in Criminal Application Nos. 1 and 2 of 2006, it was
found that PW13 received the requisition for recording the dying
declaration of PW8 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. It also came on record that PW8 had, in E
fact, identified four persons from the photographs with name, who are
other than accused nos. 1 to 6. That it was found that the prosecution
withheld the aforesaid material evidence and suppressed the material
fact. Therefore, it was also the case on behalf of the accused before
the High Court that the prosecution was not fair and they have suppressed/ F
withheld the material evidence from the Court and, in fact, there was no
investigation whatsoever with respect to those four persons, who were
identified by PW8. The High Court did not agree with the submission on
behalf of the accused and ignored the Exhibit 122 as dying declaration
of PW8 – Vimalabai, recorded by the Executive Magistrate, Sonawane
on the ground that PW8 subsequently survived, Exhibit 122 cannot be G
said to be a dying declaration, and that it could at the most be termed as
her previous statement during the course of investigation, and that it
cannot be treated as a substantive evidence and at the most it could be
used for the limited purpose of corroboration or contradiction of the
H
730 SUPREME COURT REPORTS [2019] 4 S.C.R.
A testimony of its maker and in any case it cannot be admissible under
Section 6 or Section 32 of the Evidence Act. That thereafter, considering
the material on record and appreciating of evidence, the High Court by
the impugned judgment and order confirmed the conviction and sentence
imposed upon accused nos. 1, 2 & 4. However, altered the death
sentence to life imprisonment in respect of accused nos. 3, 5 & 6. The
B
High Court also acquitted accused nos. 3, 5 & 6 for the offence under
Section 376(2)(g) of the IPC. Hence, the present appeals by the original
accused as well as the State of Maharashtra, as observed hereinabove.
5. Shri (Dr.) Yug Mohit Chaudhary, learned counsel has appeared
on behalf of the original accused and Shri Nishant Katneshwarkar,
C learned counsel has appeared on behalf of the State of Maharashtra.
5.1 Learned counsel appearing on behalf of the original accused
has vehemently submitted that in the facts and circumstances of the
case, the courts below have materially erred in convicting the accused.
D 5.2 It is vehemently submitted by the learned counsel appearing
on behalf of the original accused that the incident occurred after 10:30
p.m. at night. The victims were living in a hut made of gunny bags in the
Guava Orchard. There was no light facility in the hut. Even as per the
case of the prosecution, the accused put off the light and thereafter
whatever has happened, the same was in the torchlight. It is submitted
E therefore that it was very difficult for the witnesses, more particularly
PW1 and PW8 to identify the assailants/accused.
5.3 It is further submitted by the learned counsel appearing on
behalf of the accused that in the present case the prosecution in support
of its case has only relied upon the evidence of identification, and it is on
F this evidence alone that 6 people have been sentenced to death. It is
submitted that though the charge was for rape and murder, there is no
forensic evidence corroborating the prosecution case. It is submitted by
the learned counsel appearing on behalf of the accused that, in fact, the
DNA, finger print evidence and the initial identification made by the
G victim contradict the prosecution case. It is submitted that there are no
recoveries, finger print evidence, CA evidence or DNA evidence linking
the accused to the crime.
5.4 It is vehemently submitted by the learned counsel appearing
on behalf of the accused that in the present case, the prosecution has
relied upon the deposition of two eye witnesses, PW1 and PW8. It is
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 731
[M. R. SHAH, J.]
vehemently submitted that as such both the witnesses - PW1 & PW8 A
are not reliable and their deposition is not trustworthy. It is submitted
therefore both the courts below have materially erred in relying upon or
considering the deposition of PW1 & PW8, while holding the accused
guilty.
5.5 It is further submitted by the learned counsel appearing on B
behalf of the accused that according to the two eye witnesses, PW1 &
PW8, the offence was committed by 7-8 persons. It is submitted however
that PW1, as per the deposition of PW12 - nephew of the landlord of
Guava Orchard who was the first person to reach the spot, told him that
offence was committed by four persons.
C
5.6 It is further submitted by the learned counsel appearing on
behalf of the accused that PW8’s entire evidence about the incident and
the role played by the different accused persons is an omission and/or it
can be said to be an improvement. It is submitted that none of what was
stated in the deposition before the Court was stated to the police in the
various statements of the said witness that were recorded during D
investigation and the first time the allegations are made after two and a
half years later during the deposition in Court. It is submitted that when
the aforesaid was specifically pointed out by the defence before the
learned Sessions Court as well as before the High Court, both the courts
below have ignored the same by observing that the omissions/ E
improvements/contradictions are not major which would fatal the case
of the prosecution.It is submitted that as such the omissions/
improvements/contradictions in the deposition of PW8 are major
contradictions/omissions/improvements which would destroy the case
of the prosecution and which are fatal to the case of the prosecution.
F
5.7 It is further submitted by the learned counsel appearing on
behalf of the accused that PW8 identified A2 in the court as the person
who had taken Savita outside the hut and impliedly raped her. It is
further submitted that PW8 was not able to identify him in the TIP. It is
submitted that her failure to identify him in the TIP soon after the offence
renders her identification in court many years later nugatory. It is G
submitted that it is on the basis of PW8’s statement about A2 being the
rapist that he has been given the death penalty by the High Court.
5.8 It is further submitted by the learned counsel appearing on
behalf of the accused that there was no light in the hut and the culprits
H
732 SUPREME COURT REPORTS [2019] 4 S.C.R.
A had used torches. It is submitted that it would be highly unlikely that the
witnesses could have either been able to get a good look at their faces or
even remember them two months later. It is submitted that it is required
to be noted that neither PW1 nor PW8 gave details about the description
of the culprits – heights, hair, facial features, complexion, beard etc. to
the police during the investigation, yet they claim to be able to recognise/
B
identify the accused in the TIP. It is submitted that A1 to A5 were put
up in a TIP almost 2 months after the incident and 1 month after the
arrest. It is submitted that A6 was put up in a TIP more than one year
later and he too is purported to be identified by PW1 & PW8. It is
submitted that therefore the accused could not have been convicted on
C the basis of their being identified by PW1 & PW8 in the TIP, which
were conducted after a long time and that too when no specific
description was given either by PW1 or PW8 in the FIR and/or in their
earlier statements before the police recorded during the investigation.
5.9 It is further submitted by the learned counsel appearing on
D behalf of the accused that before evidence of identification can be relied
upon, the court has to be convinced that there was sufficient light to
enable the witness to observe the features of the culprit, and that the
witness was in a fit condition to see and remember. It is submitted that
in the present case, PW1 & PW8 had fallen unconscious during the
incident; PW1 very early when the incident took place, and PW8 a little
E later. They both had been severely injured and their capacity to observe
and notice the features of the assailants would have been severely
compromised.
5.10 It is further submitted by the learned counsel on behalf of the
accused that the incident occurred at night at 10:30 p.m. The hut was
F made 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, had
admitted in his evidence that “there is no mention in the panchnama as
to whether there was light or not in the shed (hut)”.
G 5.11 It is further submitted by the learned counsel appearing on
behalf of the accused that though PW1 insists that the electric light was
on, he also states that the culprits were using battery torches and were
searching in torchlight. He admits that he had told the police that the
culprits had switched off the lights when they had started assaulting the
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 733
[M. R. SHAH, J.]
victims. It is submitted that even if it is assumed that there was some A
light, the prosecution case at its highest would show that during the incident
the 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 the
culprits. It is submitted that in these circumstances, neither PW1 nor
PW8 would have been able to get a proper look at the persons who
B
committed the offence. According to the learned counsel appearing on
behalf of the accused, the following facts would prove that PW1 &
PW8 were not able to get a proper look at the persons who committed
the offence:
(i) neither PW1 nor PW8 were able to describe the accused to
the police or the clothes worn by them; C
(ii) no identifying features were given;
(iii) during the trial, the clothes seized from the accused were not
identified by either PW1 or PW8;
(iv) though the weapons of assault were seized from the spot of D
the offence, these were not shown to PW1 probably because he
would not have been able to identify them;
(v) even though the age of one of the appellants was 17, and 2
were around 20, PW1 and PW8 told the police that the culprits
were aged 25-30 years; E
(vi) neither PW1 nor PW8 were able to ascribe specific roles to
the culprits. The allegations about the commission of the assault
were in omnibus terms. PW1 especially does not assign any role
to A2, A4, A5 and A6;
F
(vii) most importantly, PW8 has identified an entirely different set
of people from the photo albums shown to her soon after the
offence. Her evidence during the trial shows that even at the
point of time she was convinced that the persons she had identified
in the photographs shown to her by the magistrate, which
admittedly were of some other persons, were photographs of the G
accused’ and
(viii) the aforesaid deficiencies in the testimonies of PW1 & PW8
can only be explained by the insufficiency of light at the time of
the incident.
H
734 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 5.12 In so far as the identification of the accused by PW1 &
PW8 is concerned, it is vehemently submitted by the learned counsel
appearing on behalf of the accused that such an identification is not
believable on number of grounds. It is submitted that as such it can be
said to be a mistaken identity. It is submitted that PW8 had earlier
identified some other persons. It is submitted that on 7.6.2003m i.e. 2
B
days after the offence, PW8 – Vimalabai identified the photographs of 4
people from a file of notorious criminals shown to her by PW13 – Ramesh
Sonawane, Special Executive Magistrate in the hospital as those who
committed the offence. The present accused were not among those
four persons identified by PW8 from the photo album.
C 5.13 It is further submitted by the learned counsel appearing on
behalf of the accused that PW8’s statement identifying 4 other people
on 7.6.2003 is the first identification made less than 2 days after the
incident and is closest to the date of incident. This identification was
made by PW8 when the images were still fresh in her mind and memory
D had not faded. The subsequent identification by PW1 and PW8 identifying
the present accused occurred on 25.7.2003 which is more than 1 ½
months after the date of incident wherein PW8 failed to identify A2, and
attributed an entirely contrary role to A6. It is submitted that the photo
identification being first in point of time and close to the date of offence
is of great significance.
E
5.14 It is further submitted by the learned counsel appearing on
behalf of the accused that the results of photo identification completely
contradict PW8’s identification of the accused in TIP and the court. It is
submitted that in the light of this contradiction, her TIP identification and
court identification are liable to be set aside. It is further submitted, that
F the identification in the court is a substantive evidence which is materially
contradicted by the photo identification and therefore identification in
court cannot be relied upon.
5.15 It is further submitted by the learned counsel appearing on
behalf of the accused that PW8’s identification of 4 other people even
G contradicts the identification made by PW1 in the TIP and court and
therefore renders the same unreliable. It is further submitted that as per
PW1’s own testimony, he lost consciousness soon after the assailants
entered the hut. It is also submitted that PW1 lost consciousness much
before PW8.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 735
[M. R. SHAH, J.]
5.16 It is further submitted by the learned counsel appearing on A
behalf of the accused that accounting for PW8’s earlier identification of
4 persons and subsequent identification of the present 6 accused, PW8
has in all identified 10 people as accused whereas it is the case of the
prosecution that only 7 persons have committed the said offence. It is
submitted that due to this mistaken identification by PW8, no reliance
B
can be placed on PW8’s evidence of identification of the accused. In
support of his submission, he has relied upon the decisions of this Court
in 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 on
behalf of the accused that PW1 in his evidence in court had said that the C
offence was committed by 7-8 persons. He had said the same thing in
his 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, before
being taken to hospital, he had told PW12 (the person who discovered
the crime) that the offence was committed by 4-5 persons. It is submitted D
that this huge discrepancy in the number of assailants casts a serious
doubt over the reliability of the evidence of PW1 and PW8 that this
offence was committed by 7-8 persons. Their subsequent evidence in
court about the number of assailants and role played by each of the
accused is clearly an improvement and contradicts what they had said
earlier. E
5.18 It is further submitted by the learned counsel appearing on
behalf of the accused that similarly in her testimony in Court, PW8 had
said that the offence was committed by 7 persons. In her first statement
to 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 and F
PW8 of the accused is strengthened by the following facts:
(i) PW1 has repeatedly stated that the culprits spoke with them in
Hindi. According to him, they were also speaking amongst themselves
in Hindi. PW8 has confirmed this. The victims are all Marathi speakers.
According to the police investigation, the accused-appellants too hail G
from Maharashtra and are Marathi speakers. If the accused-appellants
were to speak with the victims they would have spoken in Marathi not in
Hindi. The fact that the culprits spoke in Hindi clearly indicates that
they were not Marathi speakers. This also points to the false implication
of the accused-appellants in this offence. H
736 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 5.19 It is further submitted by the learned counsel appearing on
behalf of the accused that as such PW8’s entire testimony in the court
has the omission and/or improvement. It is submitted that prior to her
deposition in court, two statements dated 6.6.2003 and 7.6.2003 were
recorded by the police and the magistrate respectively. It is submitted
that what is stated by PW8 in the court was not stated by her in her
B
earlier statements, more particularly with respect to how the incident
had taken place. It is submitted that this evidence has come for the first
time through her deposition in court by way of an improvement amounting
to a contradiction. It is submitted that PW8 in her earlier statements,
recorded during the investigation, has neither given any details of the
C assault or of the roles played by different persons. It is submitted that
even 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 the
police. It is submitted that for the first time PW8 gave any details about
the incident for ascribed role to the accused persons, two and a half
years later in the court and never before that. It is submitted therefore
D
that her failure to give any information or statement to the police and the
two magistrates either about the events occurring during the incident or
the role played by the different persons renders her evidence on this
point unreliable.
5.20 It is further submitted by the learned counsel appearing on
E behalf of the accused that in fact PW8 suppressed the material fact
from the court when her first deposition was recorded by the learned
Sessions Court. It is submitted that PW8 suppressed the material fact
from the Court that in fact on 7.6.2003 she was shown the photographs
before the executive magistrate and that she identified four persons who
F are other than the accused who came to be tried. It is submitted that
when she was further confronted with the same, in her further cross-
examination, which was recorded pursuant to order dated 14.06.2006
passed by the High Court while hearing the Confirmation Case, she
turned around and stated that she identified four persons having committed
the offence, who were out of the six persons she identified in TIP and
G before the Court. It is submitted that the same is a material contradiction
and it was a case of material suppression and therefore PW8’s testimony
is not reliable and trustworthy and therefore it would be unsafe to rely
upon the deposition of such witness as PW8 and to convict the accused
relying upon the deposition of such a witness.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 737
[M. R. SHAH, J.]
5.21 In so far as A2 is concerned, it is further submitted by the A
learned counsel appearing on behalf of the accused that though PW8
claimed that A2 had taken Savita out of the hut and raped her and brought
her back in a naked condition, she was unable to identify A2 in TIP. It is
submitted that her identification in court of A2, unsupported by a previous
identification in the TIP cannot be accepted, especially given the light
B
conditions at that time and the fact that she herself became unconscious
during the proceedings. It is submitted that there is no recovery from
A2. PW8 is the only one who said that A2 was involved in Savita’s
rape. It is submitted that it is on the basis of this statement,
uncorroborated by a previous TIP, that A2 has been singled out and
given the death sentence. It is submitted that as such the learned Sessions C
Court erred in holding that PW8 identified all the accused in the TIP and
identified A6 in the second TIP. It is submitted that it is a clear error as
PW8 did not identify A2 in the first TIP.
5.22 In so far as the identification of and role attributed to A6 is
concerned, Itis further submitted by the learned counsel appearing on D
behalf of the accused that A6 was put up for identification in the second
TIP conducted by PW13 on 7.10.2004. It is submitted that only PW1
deposes to having identified A6 in the second TIP. PW8 does not speak
of attending any TIP where she identified A6. It is submitted that PW13’s
statement that PW8 identified A6 in the second TIP is hearsay and
inadmissible as such because PW8 does not mention anything about the E
second TIP. She says that she was called for a TIP where she identified
four persons and that these four persons were present in court out of the
six accused persons.
5.23 It is further submitted by the learned counsel appearing on
behalf of the accused that PW13, the Special Executive Magistrate F
conducted the TI parade for A6. It is submitted that he is the same
magistrate who earlier recorded PW8’s statement on 7.6.2003 where
she identified 4 other persons. It is submitted therefore that he had
therefore already participated in the investigation prior to this parade. It
is submitted that PW13, the executive magistrate, does not mention any G
precautions taken by him to prevent the witnesses seeing the accused
prior to the parade. It is submitted that on the contrary he admits that
the parade was held in an open space. It is submitted that TI parade
should have been held in a closed room to prevent the witnesses who
are outside from seeing the accused being brought to the parade or his
H
738 SUPREME COURT REPORTS [2019] 4 S.C.R.
A place in the lineup. It is submitted that there is also no statement that the
dummies resembled the accused persons. It is submitted that as such
neither PW1 nor PW8 who claimed to be the eye witnesses gave any
description with respect to the accused or the persons who committed
the offence, and therefore, on what basis dummies were selected is
questionable. It is submitted that as such the executive magistrate was
B
required to be selected the dummies himself but he admits that dummies
were selected by the police.
5.24 It is further submitted by the learned counsel appearing on
behalf of the accused that as per PW13’s evidence, PW8 identified A6
as the person who had assaulted her, dragged her daughter out of the
C hut and raped her. However, in the absence of PW8 having deposed
anything 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 on
behalf of the accused that PW13’s statement attributed to PW8 that A6
D had dragged Savita outside the hut is contradicted by her oral evidence
in court where she says that A1, A2 and A4 dragged Savita outside the
hut. The persons who had dragged Savita outside the hut were obviously
the same ones who had raped her. In her evidence in court PW8 was
quite clear that it was three persons who done this, and she named A1,
E A2 and A4 as those three. In court, she does not attribute this role to
A6. It was on this basis that the High Court upheld their death sentence
and distinguished their case from the others whose sentences were
commuted. Her statement during the TIP contradicts her statement in
court and gives an inconsistent account of the events.
F 5.26 It is further submitted by the learned counsel appearing on
behalf of the accused that if the ‘her’ refers to PW8 herself, then this
role attributed by PW8 to A6 is inconsistent with the role of PW1 attributes
to A6 when he identifies him in the parade, which is that A6 had dragged
Savita outside the hut. As mentioned earlier, the persons who dragged
Savita outside the hut were the ones who raped her.
G
5.27 It is further submitted by the learned counsel appearing on
behalf of the accused that in court PW1 does not mention Savita being
taken outside the hut at all. In fact, his deposition makes it clear that he
had fainted and did not witness any assault on Savita.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 739
[M. R. SHAH, J.]
5.28 It is further submitted by the learned counsel appearing on A
behalf of the accused that even in the present case the delay in test
identification parade is fatal to the case of the prosecution. It is submitted
that in the present case, the offence occurred on 5.6.2003, the date of
arrest of the accused is 23rd and 27th June, 2003, and the TIP was held
on 25.7.2003, i.e., 50 days from the date of the offence and 33 days
B
after the arrest of A1 and A2. It is submitted that there is no explanation
forthcoming from the prosecution for the delay in conducting TIP.
According to the learned counsel, the most likely explanation is that this
period was used by the police to show photographs to PW1 and PW8 so
as to make them memorize the feature of the accused.
5.29 It is further submitted by the learned counsel appearing on C
behalf of the accused that in so far as the TIP in respect of A6 is
concerned, the TIP is vitiated on account of delay as A6 was arrested
more than one year later and the TIP for A6 was conducted more than
one year later.
5.30 It is further submitted by the learned counsel appearing on D
behalf of the accused that PW8 has admitted that she had come twice
or thrice to court prior to her deposition. It is submitted that during these
visits, she would have definitely seen the accused persons in the dock
and therefore her deposition in court does not have much significance.
5.31 It is further submitted by the learned counsel appearing on E
behalf of the accused that even otherwise no reliance can be placed
upon the deposition of PW8. It is submitted that first of all PW8 does
not say anything in her first deposition with respect to her statement
recorded by the executive magistrate on 7.6.2003, and that she was
shown the photographs from the album and she having identified four F
persons having committed the offence were other than six accused
persons who were tried. It is submitted that it is important to note that
PW8 denied in her first deposition that the photographs of the accused
were shown to her by the police. It is clear from the evidence that when
PW8 denied the suggestion that she was not shown the photographs,
she was not telling the truth. It is submitted that when she was called G
for further cross-examination, pursuant to the order passed by the High
Court, she then admitted that , (i) police had shown 4 photographs of the
accused persons, and that she herself told that those were the same
accused persons of the incident; and (ii) that when my statement was
H
740 SUPREME COURT REPORTS [2019] 4 S.C.R.
A recorded by the magistrate, the persons who I had identified as accused
persons were some other persons other than the present accused. It is
therefore submitted that the aforesaid is just contrary to what the executive
magistrate has recorded in the first statement of PW8 on 7.6.2003.
5.32 It is further submitted by the learned counsel appearing on
B behalf of the accused that DNA or Forensic evidence will not support
the case of the prosecution and/or linked the accused to the crime. It is
submitted that though the charge is of rape and murder, there is no forensic
evidence corroborating the prosecution case.
5.33 It is further submitted by the learned counsel appearing on
C behalf of the accused that the case of the prosecution is that the accused-
appellants were consuming liquor at the spot from liquor bottles and
from a handi. Empty liquor bottles, a handi and some glasses were
seized from the scene of crime. It is submitted that there is no DNA or
finger prints on the glass and liquor bottles to connect the appellants with
the crime. The IO, PW20 admitted that the finger print report did not
D implicate the accused. It is important to note that the appellants’ DNA
samples were collected during the investigation, as admitted by the IO,
PW18 and were sent for DNA analysis, but the prosecution never
presented the report to the court for the obvious reason that it would
have exonerated the appellants.
E 5.34 It is further submitted that no public hair, DNA, semen or
blood of the appellants was found on any of the victims. Samples were
collected from the appellants and sent for analysis but the results did not
incriminate the appellants. It is submitted that the police seized 14 slippers
from the scene of the crime, but the same could not be linked to the
F appellants by either matching them or making the accused were them.
No one identified those slippers as being worn by the appellants or
belonging to the appellants.
5.35 It is further submitted by the learned counsel appearing on
behalf of the accused - appellants that clothes were seized from the
G appellants when they were arrested, as well as from the homes during
the house searches, but nothing was found to connect the accused with
the said crime. It is submitted that footprints were found around the
house the next morning when the bodies were discovered, but those
finger prints were not matched to the appellants. It is submitted that
even the blood found in the nail clippings of Savita, was not connected to
H the appellants.
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 741
[M. R. SHAH, J.]
5.36 It is further submitted by the learned counsel appearing on A
behalf 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 the
place. It is submitted that as per the prosecution case, Rs.3,000/- in cash
were taken from Trambak; a mangalsutra, dorley and ear tops were
taken from PW8; anklets and ear tops were taken from Savita; and a
B
watch and chain were taken from PW1 by the culprits. It is submitted
that no stolen property was found or recovered from any of the accused.
5.37 It is further submitted by the learned counsel appearing on
behalf of the accused that a white metal chain was allegedly seized
during the house search of Bhojubai Appa Shinde, the mother of A5 on
26.6.2003. Her signature is also not there on the panchnama. Moreover, C
the panchnama does not state that the seized property was sealed. It is
submitted that the chain is described as “one white metal chain with 30
links, middle link is broken and tied with a string. Value 0”. It is submitted
that the chain had no special markings on it and was of a mass-produced
type that is freely available. The prosecution claimed that this belonged D
to PW1. PW1 himself admitted that he had not given any description of
the chain to the police. A white metal chain is not such an item that could
only 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. It
is vehemently submitted that had this crime been committed by the
accused, surely all the stolen property would have been recovered. The E
seizure of a commonly available silver chain without any distinctive
markings is too feeble a link to be held against the accused.
5.38 It is further submitted by the learned counsel appearing on
behalf of the accused that no Magistrate/Special Executive Magistrate/
Tehsilder has been examined regarding conducting of the TIP for the F
silver chain. No witness has been examined who was present when the
chain was identified by PW1. PW14 is the panch before whom the
packet containing the chain was opened and then resealed on the very
day that PW1 claims he identified it, but PW14 is not a witness to the
identification and he does not depose about it. G
5.39 It is further submitted by the learned counsel appearing on
behalf of the accused that PW8 does not identify the chain. It is not
shown to her during her evidence. In Court, PW8 stated “Muddemal
article nos. 72 and 40 are the ornaments of Savita”. In inquest panchnama
dated 6.6.2003 (Exhibit 27) conducted over Savita’s dead body, the corpse H
742 SUPREME COURT REPORTS [2019] 4 S.C.R.
A is described as “on her neck there is a white pearl necklace, and on each
of her hands there are 2-2 white metal bangles”. These articles, among
others, have been seized vide panchnama (Exhibit 42 dated 6.6.2003).
It is submitted that it is possible that some of these ornaments seized
from Savita’s person have been shown to and identified by PW8 during
her testimony.
B
5.40 It is further submitted by the learned counsel appearing on
behalf of the accused that in the absence of any recovery or seizure of
any kind that connects the appellants to the crime and the prosecution
has not been able to adduce any evidence corroborating the identification
by PW1 and PW8, the conviction of the accused cannot be sustained
C based on identification alone. In support of his submission, learned counsel
has 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 on
behalf of the accused that insofar as conviction of the accused under
D Section 376(2)(g) of the IPC is concerned, the same is based on no
evidence. It is submitted that prosecution case is that according to the
evidence of PW8, the A1, A2 and A4 dragged the deceased Savita out
of the hut and brought her back naked and bleeding by which time she
was dead. It is submitted that as per the CA report dated 27.11.2003, no
E semen was found in the pubic hair, vaginal or uterus swab of deceased
Savita. It is submitted that the blood found in the nail clippings of the
deceased Savita matched with her own blood group and it could not be
proven that the blood group belonged to the accused.
5.42 It is further submitted by the learned counsel appearing on
F behalf of the accused that PW8 on whose testimony the prosecution is
relying upon to convict the accused under Section 376(2)(g) of the IPC
failed to identify A2 in the TIP conducted on 25.7.2003 and identified A2
for the first time in court. It is submitted that in the absence of any
previous identification of A2, it is extremely dangerous to convict A2
under section 376(2)(g) of the IPC, solely on the basis of identification in
G court by PW8.
5.43 It is further submitted by the learned counsel appearing on
behalf of the accused that while convicting the accused under Section
376(2)(g) of the IPC, the High Court considered the failure of the accused
to explain their injuries as an incriminating circumstance against them.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 743
[M. R. SHAH, J.]
It is submitted that mere failure of the accused to explain injuries cannot A
be held against them if the nature of the injuries are such that they can
be caused due to other events. In support of his submission, learned
counsel for the accused has heavily relied upon the decision of this Court
in the case of Ram Sunder Sen vs. Narender, (2016) 15 SCC 440.
5.44 It is further submitted by the learned counsel appearing on B
behalf of the accused that one of the reasons the High Court has convicted
the accused under Section 376(2)(g) of the IPC is the presence of injury
marks on the accused. The High Court has held that deceased Savita
caused these injuries on the accused as a result of resistance. It is
submitted that it has come in the evidence of PW16-Dr. Shimpi, who
examined A4 that the injuries sustained by A4 could have been caused C
by labour or agricultural work and the said injuries could be older than
three weeks, i.e., before the date of the offence. It is further submitted
by the learned counsel appearing on behalf of the accused that even
from the arrest memo, it can be seen that and even otherwise the accused
are agriculturist labourer and therefore such minor injuries were possible D
while doing the labour work or agricultural work. It is submitted that
therefore non-explanation of the said injuries by the accused in their 313
statement could not have been held to be an incriminating circumstance
against the accused. It is submitted therefore that the High Court has
committed a grave error in considering the above circumstance against
the accused and/or drawing an adverse inference. E
5.45 It is further submitted by the learned counsel appearing on
behalf of the accused that PW24-Dr. Vilas Appasaheb Patil examined
A1 & A2 and stated that the injuries found on them were possible if a
person tried to resist another person. It is submitted that merely because
the injuries are possible on account of resistance does not mean that the F
injuries can be considered as conclusively to have been caused during
commission of rape. It is submitted that such injuries do not link the
present accused with the rape of Savita.
5.46 It is further submitted by the learned counsel appearing on
behalf of the accused that even the investigation was not fair and the G
prosecution suppressed the material facts before the Court. It is submitted
by the learned counsel that firstly the prosecution suppressed that on
7.6.2003 the statement/dying declaration of PW8 was recorded by the
executive magistrate and that PW8 was shown the photographs from
H
744 SUPREME COURT REPORTS [2019] 4 S.C.R.
A the 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 the
learned counsel that despite PW8 identified the 4 persons having
committed the offence, neither they were arrested nor there was any
further investigation with respect to those four persons, who were
identified by PW8. It is further submitted, that even the executive
B
magistrate, who even subsequently conducted the TI parade on 25.7.2003
did not say anything in his deposition. It is submitted by the learned
counsel that therefore the prosecution has failed to perform its duty
insofar as the fair investigation is concerned. It is submitted that the
duty of the prosecution is not to get the conviction of some persons, but
C it is the duty of the prosecution to see that the real culprits are not scot
free and the innocent persons are not held guilty. It is submitted that the
prosecution owes an obligation to be fair and just. It is submitted by the
learned counsel appearing on behalf of the accused that it is the duty of
the prosecution to ensure that all material facts are brought on record so
that there might not be any miscarriage of justice. It is submitted that
D
the prosecution is not expected to show a thirst to reach the case in the
conviction of the accused somehow or the other irrespective of the true
facts involved in the case. It is submitted that the expected attitude of
the prosecution must be couched in fairness not only to the court, but to
the accused as well. It is submitted that even it was the duty of the
E prosecution to winch it to the fore and make it available to the accused
any material which may even help the accused. It is submitted that in
the present case, it appears that the prosecution/investigating officer/the
executive magistrate deliberately withheld/suppressed the aforesaid
material facts from the court. It is submitted that if the investigation
would have been conducted even with respect to those four persons
F
who were identified by PW8, in that case the result would have been
different. It is submitted that if the fact that PW8 in her statement
before the executive magistrate recorded on 7.6.2003 identified four
persons who committed the offence with names and they were other
than the present accused, would have come on record, in that case, it
G would have gone against the prosecution case and more particularly the
case on behalf of PW1 & PW8 that there were 7-8 persons who
committed the offence. It is submitted that if the aforesaid four persons
would have been added, in that case, the accused would have been
more than 12 and therefore it would have been fatal to the case of the
prosecution, and therefore the prosecution/investigating officer had
H deliberately and wilfully suppressed the aforesaid material fact.
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 745
[M. R. SHAH, J.]
5.47 It is further submitted by the learned counsel that in fact all A
the accused persons were belonging to nomadic tribes, and in fact, they
were arrested by transfer warrant and were forcefully involved in the
case, that too after a period one month and only with a view to show that
the police has solved the case. It is submitted that otherwise there was
no reason to arrest the accused persons by way of transfer warrant,
B
when neither PW1 nor PW8 gave any description of the persons, who
committed the offence.
5.48 Making the above submissions, it is prayed to allow the
appeals preferred by the accused and acquit them for the offences for
which they are convicted.
C
5.49 Shri (Dr.) Yug Mohit Chaudhary, learned counsel appearing
for the accused has further submitted that in view of the above facts
and 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 for
no fault of them they are languishing in the jail since last 16 years and
their valuable years have gone in the jail, all of them are entitled to a D
reasonable compensation. It is submitted that in fact out of the six accused
who were convicted, one of the accused was a juvenile. Till the year
2012 and till he was declared a juvenile and thereafter released, he was
under a constant trauma which affected his health, physical as well as
mental. In support of the above, he has relied upon a certificate of one E
Psychiatrist Doctor, Dr.Ashit Sheth. It is further submitted that even
other accused who are in jail since last 16 years were also under trauma
and under the hanging sword on them and the threat of the death sentence
and therefore they remained under constant stress which are affecting
their health and life. It is submitted therefore that this is a fit case to
exercise the powers under Article 142 of the Constitution of India to F
award a reasonable compensation.
6. All these appeals preferred by the accused are vehemently
opposed by Shri Nishant Katneshwarkar, learned standing counsel for
the State of Maharashtra.
G
6.1 It is submitted by the learned counsel appearing on behalf of
the State of Maharashtra that in the present case there are concurrent
findings recorded by the learned Sessions Court as well as the High
Court holding them guilty for the offences punishable under Sections
395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read
H
746 SUPREME COURT REPORTS [2019] 4 S.C.R.
A with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. It is
submitted that findings recorded by the learned Sessions Court, affirmed
by the High Court, are on appreciation of evidence and therefore the
same are not required to be interfered with by this Court.
6.2 It is further submitted by the learned counsel for the State of
B Maharashtra that in the present case the prosecution has been successful
in proving the case against all the accused persons by leading cogent
evidence, both oral as well as documentary. It is submitted that in the
present case both PW1 & PW8 who are the eye witnesses and who
were present at the time of the incident have fully supported the case of
the prosecution.
C
6.3 It is further submitted by the learned counsel for the State of
Maharashtra that as such all the accused persons have been identified
by PW1 & PW8 in the TIP/before the Court. It is submitted that therefore
both the learned Sessions Court as well as the High Court have rightly
held the accused guilty, relying upon the deposition of PW1 & PW8 –
D injured eye witnesses.
6.4 Now insofar as the submission on behalf of the accused with
respect to omissions/improvements/contradictions are concerned, it is
submitted that as rightly observed by the High Court such omissions/
improvements/contradictions are minor and are not fatal to the case of
E the prosecution as a whole. It is submitted therefore that the High Court
has 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 on
behalf of the State that so far as non-disclosure of the factum of recording
F the statement of PW8 on 7.6.2003 by the executive magistrate and she
having identified four persons from the photographs is concerned, it is
submitted that as such the said omission will not be fatal to the case of
the prosecution as PW1 & PW8 have specifically identified all the accused
persons either in the TIP and/or before the Court. It is submitted that
G merely because some other four persons who might have been identified
by PW8 might not have been arrested and/or there was no further
investigation qua them, the said benefit cannot be given to the accused
in the present case as all the accused persons were identified by PW1
& PW8.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 747
[M. R. SHAH, J.]
6.6 It is further submitted by the learned counsel appearing on A
behalf of the State that in the present case one of the articles stolen
from the place of the incident was found from the house of the one of
the accused and therefore to that extent recovery was made and therefore
merely because other articles looted were not found, the recovery of
one of the articles cannot be ignored.
B
6.7 It is further submitted that even some of the accused failed to
explain the injuries found on their bodies in their statement under Section
313 of the Code and therefore an adverse inference has rightly been
drawn against them and they are rightly convicted.
6.8 It is further submitted by the learned counsel appearing for C
the State that even the prosecution has been successful in proving that
Savita was subjected to rape and it is established and proved by leaving
the medical evidence. It is submitted therefore that factum of the rape
on the deceased Savita has been established and proved. It is submitted
that even the prosecution has been successful in proving the rape on
PW8 also. D
6.9 It is submitted by the learned counsel that all the six accused
have committed a very serious offence and have committed the murder
of 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 required
to be sentenced to death penalty. Therefore, it is prayed to dismiss the E
appeals preferred by the accused and to allow the appeals preferred by
the 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 the
respective parties at great length. F
7.1 At the outset, it is required to be noted that in the present
appeals, respective accused were charged 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. The learned Sessions Court convicted the accused under G
Sections 395, 302 read with Section 34, Section 376(2)(g), Section 307
read with Section 34, Sections 396, 397 read with Section 395 and Section
398 of the IPC. Over and above the other sentences, all the accused
H
748 SUPREME COURT REPORTS [2019] 4 S.C.R.
A were awarded the death penalty by the learned Sessions Court. The
High Court confirmed and conviction and sentence imposed by the learned
Sessions Court so far as A1, A2 and A4 are concerned, and even
confirmed the death penalty. While maintaining the conviction for the
offences 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, A5
B
and A6 for the offences punishable under Section 376(2)(g) of the IPC
and commuted the death sentence to life imprisonment.
8. Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, both the accused as well
as the State of Maharashtra have preferred the present appeals. The
C accused are before this Court challenging their conviction and sentence
imposed by the High Court, and the State of Maharashtra is aggrieved
by the impugned judgment and order passed by the High Court insofar
as acquitting the original accused nos. A3, A5 and A6 for the offences
under Section 376(2)(g) of the IPC and commuting the death sentence
D to life imprisonment.
9. We have perused and gone through in depth the impugned
judgment and order passed by the High Court as well as the judgment
and order passed by the learned Sessions Court. We have gone through
and considered in detail the evidence on record, both oral as well as
E documentary.
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
F well as the rape of one lady, named Savita and PW8 – Vimalabai. As
per the case of the prosecution, the accused 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
G 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
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 749
[M. R. SHAH, J.]
case rests on the deposition of these two eye witnesses PW1 & PW8, A
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
B
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 BhojubaiAppa Shinde, the mother of A5 on 26.06.2003. The
aforesaid in detail shall be discussed hereinbelow. C
9.2 As observed hereinabove, the case rests on the deposition of
PW1 & PW8 and they identified the accused in the TI parade as well as
before the Court. Other than the evidence of PW1 & PW8, there is no
other evidence to link the accused to the offence. Looking to the nature
of the crime committed in which five persons were killed brutally and D
one was also raped, and the serious consequence it may have for those
convicted, it is necessary that the evidence should be of a very high
quality and satisfy the higher burden of proof. Therefore, we have
minutely 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 E
– Ramesh Sonawane, PW12 – Vishnu Hagwane, nephew of the landlord,
who was the first person to reach the spot and the deposition of the
investigating officer, PW18 – ACP Bhaskarrao Dhus.
9.3 As per the case of the prosecution, which has been believed
by the learned Sessions Court as well as the High Court, PW1 & PW8 F
identified the accused persons in the TI parade as well as before the
Court. At this stage, it is required to be noted that PW8 identified A2 in
the Court as the person who had taken Savita outside the hut, and raped
her. However, she was not able to identify him in the TI parade. The
first TI parade was conducted on 25.07.2003. The offence occurred on G
5.6.2003; accused nos. 1 to 5 were arrested on 23rd and 27th June, 2003
and the TI parade was held on 25.07.2003, i.e., 50 days from the date of
offence and 33 days after the arrest of A1 & A2. It is required to be
noted that the accused persons were arrested on transfer warrant. None
H
750 SUPREME COURT REPORTS [2019] 4 S.C.R.
A of the eye witnesses, i.e., PW1 & PW8 were able to give any particulars/
description of the accused. Even A6 was arrested after more than one
year, and the TI parade for A6 was conducted more than one year later.
There is no explanation forthcoming from the prosecution for the delay
in conducting the TI parade. Therefore, the identification of the accused
by PW1 & PW8, which is the sole basis for convicting the accused and
B
awarding 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 stems
C and plants. There was no door to the hut. There is no mention in the
panchnama 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 the
culprits were using battery torches and were searching in torchlight.
According to him, he told the police that the culprits had switched off the
D lights when they had started assaulting the victims. Even if it is assumed
that there was some light initially, and the case of the prosecution is
believed that during the incident the light bulb was burning for a few
minutes before it was turned off, the rest of the incident took place
under torchlights carried by the culprits. Under the circumstances, neither
PW1 nor PW8 would have been able to get a proper look at the persons
E who committed the offence. It is required to be considered coupled
with the fact that neither PW1 nor PW8 were able to describe the accused
to the police or the clothes worn by them. No identifying features were
given. In the trial, the clothes seized from the accused were not identified
by either PW1 or PW8. Even the age of one of the accused was 17 and
F two other accused were around 20 years, PW1 & PW8 told the police
that the culprits were aged 25-30 years. Neither PW1 nor PW8 were
able to ascribe the specific roles to the culprits. Even, according to the
prosecution, PW1 & PW8 had fallen unconscious during the incident.
Therefore, the said witnesses were not in a fit condition to see and
remember and that is why neither PW1 nor PW8 gave details about the
G description of the culprits – heights, hair, facial features, complexion,
beard, etc. to the police during the investigation. Even PW8’s entire
evidence about the incident and the role played by different accused
persons is an omission/improvement. Whatever is stated by PW8 in her
deposition, the same is stated for the first time in her deposition, which
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 751
[M. R. SHAH, J.]
was recorded two and a half years later. Whatever is alleged in her A
deposition in the Court, which was recorded two and a half years later,
was not stated to the police/special executive magistrate in her statements
that were recorded during the investigation. When the same was pointed
out to the courts below, the courts below, more particularly the High
Court has not accepted the case of the defence by observing that the
B
omissions are minor omissions. On scanning the entire evidence of PW8,
we do not accept the observation of the High Court that the omissions
are minor omissions. On considering the deposition of PW8 about the
incident and the role alleged to have been played by different accused
persons, we are of the opinion that the omissions are major omissions
and improvements which are fatal to the case of the prosecution and in C
any case, it creates reasonable doubt on the trustworthiness and the
reliability of PW8.
9.5 Even the identification of the accused by PW1 in the TI parade
also creates a serious doubt, apart from the fact that there was a delay
in conducting the TI parade, and that there is no explanation by the D
prosecution in conducting the TI parade belatedly. As observed
hereinabove, and for the reasons stated above, it is very doubtful whether
PW1 & PW8 could have properly seen the accused. As observed
hereinabove, there was no specific description of the accused given by
the said two witnesses. There are contradictions with respect to the
age of some of the accused. PW1 has categorically stated that the E
culprits spoke with him in Hindi. According to him, they were also
speaking amongst themselves in Hindi. PW8 has also confirmed the
same.All the victims are Marathi speakers. The accused also hail from
Maharashtra and are Marathi speakers. Therefore, if the accused were
to speak with the victims, they would have spoken in Marathi and not in F
Hindi. Therefore, there is a possibility that the culprits who were speaking
in Hindi were not Marathi speakers and they might be outsiders – non-
Marathis.
9.6 As observed hereinabove, neither PW1 nor PW8 gave any
description to the I.O. and/or to the Sub-Divisional Magistrate who G
conducted the TI parade. Therefore, on what basis the other dummy
persons were brought and were present in TI parade is not forthcoming
from the prosecution. There is also no statement that the dummies
resembled the accused persons. Though, the special executive magistrate
who had conducted the TI parade is required to select the dummy persons,
H
752 SUPREME COURT REPORTS [2019] 4 S.C.R.
A in the present case and even admitted by PW13 – special executive
magistrate that dummy persons were selected by the police. Considering
the aforesaid facts and circumstances, we are of the opinion that it is not
safe to convict the accused solely on the basis of their identification by
PW1 & PW8 in the TI parade and/or before the Court.
B 9.7 As observed hereinabove, except the deposition of PW1 &
PW8 and they identified the accused in the TI parade and/or before the
Court (which for the reasons stated hereinabove, the conviction cannot
rest on such identification), there is no other evidence, either scientific
and/or other, corroborating the prosecution case. There is no forensic
evidence corroborating the prosecution case. In fact, the DNA, finger
C prints evidence and CA evidence do not support the case of the
prosecution, and/or link the accused to the crime. The case of the
prosecution is that the accused had some liquor at the spot from liquor
bottles and from a handi. Empty liquor bottles, a handi and some glasses
were seized from the scene of crime. There is no DNA or finger prints
D on the glass and liquor bottles to connect the accused with the crime. In
fact, PW20 – IO has admitted that the finger print report did not implicate
the accused. At this stage, it is required to be noted that the accused’
DNA samples were collected during the investigation and in fact were
sent for DNA analysis, but the prosecution never presented the report to
the Court. No pubic hair, DNA, semen or blood of the accused were
E found on any of the victims. It appears that the samples were collected
from the accused and were sent for analysis, but the result did not
incriminate the accused.
9.8 As per the case of the prosecution, Rs.3,000/- in cash were
taken from Trambak, a mangalsutra, dorley and ear tops were taken
F from PW8; anklets and ear tops were taken from Savita; and a watch
and chain were taken from PW1 by the culprits. However, no stolen
property has been found or recovered from any of the accused except a
broken white metal chain which was seized during the house search of
the mother of A5 on 26.06.2003. However, her signature is not there on
G the panchnama. The panchnama 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 the same was stated to be zero”. The chain had no special markings
on it and the same is freely available. Though the prosecution claimed
that the said chain belongs to PW1, PW1 had admitted that he has not
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 753
[M. R. SHAH, J.]
given any description of the chain to the police. Barring this chain, A
nothing was seized or recovered from any of the accused. Therefore,
the seizure of a commonly available white metal silver chain without any
distinctive markings would be a weak piece of evidence to hold the
accused guilty.
9.9 Apart from the above, on considering the entire deposition of B
PW8, 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 in
Court is full of material omissions/contradictions/improvements. Prior
to her deposition in Court, her two statements dated 6.6.2003 and
7.6.2003 were recorded by the police and the magistrate respectively.
The entire description of incident given by PW8 in the Court has not C
been stated by her in her earlier statements. This evidence has come
for 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 assault
or the roles played by different persons during the incident. Even in the
TI parade, she did not attribute any role to the persons she identified. D
The first time PW8 gave any details about the incident or ascribed the
roles to the accused persons was two and a half years later in the Court
and never before that. Her failure to give any statement to the police
and the two magistrates either about the events occurring during the
incident or the roles played by different persons render her evidence
unreliable. When in her cross-examination, she was confronted with E
such omissions/improvements, she has taken only one thing that she told
this to the police but she does not know why the police did not record the
same. 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 convict F
the accused. It is also required to be noted that even according to PW8,
she was subjected to rape, however, the prosecution has miserably failed
to prove the rape on her by leading cogent evidence, more particularly
the forensic evidence. Therefore, to that extent also she is not reliable.
9.10 There is one another reason why PW8 is not to be believed G
on the ground that she is unreliable and not trustworthy. It is required to
be noted that on 7.6.2003, i.e, two days after the incident, her statement
was recorded by PW13 – Ramesh Sonawane – Special Executive
Magistrate in the hospital. PW13 was called by the investigating officer
to record her dying declaration. It has come on record that her dying
H
754 SUPREME COURT REPORTS [2019] 4 S.C.R.
A declaration/statement was recorded on 7.6.2003, i.e., two days after the
incident, PW8 identified photographs of four people from album of
notorious criminals as those who committed the offence. Admittedly,
the present accused are not amongst those four persons identified by
PW8 from the photo album. It is required to be noted that in her deposition
she had not stated anything about her statement recorded by PW13 on
B
7.6.2003 and she identified the photographs of four people from album
of notorious criminals shown to her. Therefore, to that extent, there is
also a suppression of material fact by PW8. In fact, the aforesaid was
withheld by the prosecution during the trial. Only during hearing of the
appeal before the High Court, it came to the light and therefore pursuant
C to the order passed by the High Court she was recalled and when she
was confronted with the above, very surprisingly, she stated that four
persons who were identified by her were the same persons out of the
present accused. However, such a stand is just contrary to the deposition
of PW13 – special executive magistrate. What is stated by her in her
deposition when she was recalled pursuant to the order passed by the
D
High Court is not corroborated by other evidence. On the contrary, PW13
– special executive magistrate in his further evidence has categorically
stated as under:
“It is true that I was called on 7.6.03 by P.I of Crime Branch to
civil hospital Nashik to record the dying declaration of
E VimalbaiTrambakSatote. Accordinglhy, I have gone to civil hospital
Nashik. After reaching to civil hospital, I had taken the letter of
PI 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 identify
F the accused from that file. I was given those files by the same
person who had given me the letter. I had asked that lady whether
she could identify the accused, if photographs shown to her and
she told that she could identify. Therefore, I had shown her the
photographs from all the three files. She had identified the 4
persons as the accused present. Witness volunteers that at that
G time, it came to my notice that the lady was much frightened. All
the four photographs were from file No.80. The names were
written below all those four photographs. They are 1. Gautam
Hari Kale, R/o Zapwadi Shiv, TQ Nawasa, Dist. Ahmednagar, 2.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 755
[M. R. SHAH, J.]
Shivaji @ Shivlya Bhosale R/o Tarwand Muktapur Shiwar, TQ A
Nevasa, Dist – Ahmednagar 3. Khandya Rama Chavan R/o
Bhendala Shiwar, TQ Gangapur, Dist. Aurangabad, 4. Suresh
Sitaram Kale, R/o Kasarakada, Karkhana Shiwar, TQ Ashti, Dist.
Beed. These persons had entered her house and had committed
theft of Rs.3,000/- is told by the lady. That lady had not stated
B
that she could identify the accused persons. Prior to recording
the statement of that lady, said lady was got examined from
Dr. 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 statement
was as per her narration. She had replied in affirmative. I had C
obtained her thumb impression on the said statement. I myself
had obtained her thumb impression. After completion of recording
of the statement of that lady, she had got again examined from
the medical officer, that she was in a condition to give the statement.
Medical officer had signed on both certificate in my presence.
D
I had not taken any noting that said lady was frightened (The ld.
A.P.P. has taken the objection that the witness voluntarily had
made the statement that the lady was frightened; therefore, such
question cannot be asked in cross examination). I had not written
so in my notes. It is not true to say that I was directed to state
that said lady was frightened, before coming to court for giving E
evidence.”
9.11 Thus, the deposition of PW8 is full of contradictions/omissions
and improvements and that she has not stated true and correct facts.
Therefore, she is not a reliable witness who can be believed. When the
aforesaid was pointed out to the High Court by the defence, the High F
Court unfortunately has not accepted the case of the defence by observing
that the statement of PW8 recorded by PW13 – special executive
magistrate recorded on 7.6.2003 cannot be said to be a dying declaration
and it can be said to be a mere statement which can be used only for
corroboration and contradiction. Therefore, even as per the High Court
also, her statement dated 7.6.2003 recorded by PW13 in which she G
identified altogether 4 other persons with names can be used for the
purpose of contradiction. As observed hereinabove, the contradictions
are material contradictions and that as such she has also suppressed the
material fact from the Court.
H
756 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 9.12 Even otherwise, for the reasons stated hereinafter, it appears
that there was no fair investigation by the investigating agency/
prosecution. Prosecution has suppressed the material fact from the
Court. Neither the investigating officer nor even the PW13 – special
executive magistrate initially stated anything about recording of the
statement of PW8 on 7.6.2003 and she having identified four persons
B
from the album of the photographs of the notorious criminals. In fact, it
came to the light during the course of hearing of the appeal before the
High Court, and PW8 and PW13 were recalled as per the directions of
the High Court. Nothing is on record whether those four persons, who
were identified by PW8 on 7.6.2003, were ever arrested and/or any
C investigation was carried out qua them. It is required to be noted that
PW8 identified those four persons immediately after the incident. None
of the accused in the present case are those who were identified by
PW8 before the Special Executive Magistrate on 7.6.2003. Therefore,
when PW8 identified four persons having committed the offence on
7.6.2003, her memory was fresh and it ought to have been given more
D
weightage than her identifying the accused persons after a long delay.
Thus, it appears that the investigation was not fair and in fact there was
suppression of material fact from the court by the prosecution.
10. It has to be uppermost kept in mind that impartial and truthful
investigation is imperative. It is judiciously acknowledged that fair trial
E includes fair investigation as envisaged by Articles 20 & 21 of the
Constitution of India. The role of the police is to be one for protection of
life, liberty and property of citizens, that investigation of offences being
one of its foremost duties. That the aim of investigation is ultimately to
search 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 and
also to ensure that all relevant facts and circumstances are brought to
the notice of the court for just determination of the truth so that due
justice prevails. It is the responsibility of the investigating agency to
G ensure that every investigation is fair and does not erode the freedom of
an individual, except in accordance with law. One of the established
facets of a just, fair and transparent investigation is the right of an accused
to ask for all such documents that he may be entitled to under the scheme
contemplated by the Cr.PC.
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 757
[M. R. SHAH, J.]
10.2 Nothing is allowed by the law which is contrary to the truth. A
In Indian criminal jurisprudence, the accused is placed in a somewhat
advantageous position than under different jurisprudences of some of
the countries in the world. The criminal justice administration system in
India places human rights and dignity for human rights at a much higher
pedestal and the accused is presumed to be innocent tillproven guilty.
B
The alleged accused is entitled to fair and true investigation and fair trial
and the prosecution is expected to play a balanced role in the trial of a
crime. The investigation should be judicious, fair, transparent and
expeditious to ensure compliance with the basic rule of law. These are
the fundamental canons of our criminal jurisprudence and they are quite
in conformity with the Constitutional mandate contained in Articles 20 C
and 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 is
only such reports which support the prosecution case that are required
to be forwarded to the Court under Section 173(5), in every situation D
where some of the seized papers and the documents do not support the
prosecution case and, on the contrary, support the accused, a duty is
cast on the investigating officer to evaluate the two sets of documents
and materials collected and, if required, to exonerate the accused at that
stage itself.
E
10.4 Even in a case where the public prosecutor did not examine
the witnesses who might have supported the accused, this Court in the
case of Darya Singh v. State of Punjab AIR 1965 SC 328 has observed
that the prosecution must act fairly and honestly and must never adopt
the device of keeping back from the Court only because the evidence is
likely to go against the prosecution case. It is further observed that it is F
the duty of the prosecution to assist the court in reaching to a proper
conclusion in regard the case which is brought before it for trial. It is
further observed that it is no doubt open to the prosecutor not to examine
witnesses who, in his opinion, have not witnessed the incident, but, normally
he ought to have examined all the eye-witnesses in support of his case. G
It is further observed that it may be that if a large number of persons
have witnessed the incident, it would be open to the prosecutor to make
a selection of those witnesses, but the selection must be made fairly and
honestly and not with a view to suppress inconvenient witnesses from
H
758 SUPREME COURT REPORTS [2019] 4 S.C.R.
A the witness box. It is further observed that if at the trial it is shown that
the persons who had witnessed the incident have been deliberately kept
back, the Court may draw an inference against the accused and may, in
a proper case, record the failure of the prosecution to examine the said
witnesses as constituting a serious infirmity in the proof of the prosecution
case.
B
10.5 Murder and rape is indeed a reprehensive act and every
perpetrator should be punished expeditiously, severely and strictly.
However, this is only possible when guilt has been proved beyond
reasonable doubt.
C 10.6 The prosecution/investigating agency is expected to act in
an honest and fair manner without hiding anything from the accused as
well as the Courts, which may go against the prosecution. Their ultimate
aim should not be to get conviction by hook or crook.
11. Applying the aforesaid principles to the facts of the case on
D hand, we are of the opinion that there was no fair and honest investigation
and even prosecution tried to suppress the material fact from the court.
In the present case, the investigating officer, PW13 – special executive
magistrate and even PW8 – injured eye witness suppressed from the
court the material fact of the statement of PW8 recorded on 7.6.2003,
recorded by PW13 -special executive magistrate in which she specifically
E identified four persons who have committed the offence from the album
of the photographs of the notorious criminals. Thus, special executive
magistrate being an independent witness was supposed to state the correct
facts before the court. At this stage, it is required to be noted that PW13
– Ramesh Sonawane – Special Executive Magistrate is the same Special
F Executive Magistrate who conducted the TI parade subsequently.
11.1 Even the conduct on the part of the investigating officer in
suppressing the aforesaid fact from the court is required to be
condemned.It appears that in fact the investigating officer and the
prosecution deliberately withheld the aforesaid fact from the court.
G According to PW1 & PW8, there were 7-8 persons who committed the
offence. Though, PW12 – Vishnu Hagwane, nephew of the landlord –
first person to reach the spot clearly stated in his deposition that PW1
told 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
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 759
[M. R. SHAH, J.]
prosecution, there were 7-8 persons who committed the offence. PW8 A
identified four persons on 7.6.2003 from the album of the photographs
of notorious criminals whose names were specifically noted as per the
statement of PW8. None of the accused in the present case are out of
those four persons identified by PW8 on 7.6.2003. Therefore, if those
four persons who were identified by PW8 as other than the accused in
B
the present case are added in the present case, it can be said that there
were 12 persons/assailants who committed the offence and therefore
the prosecution case that there were 7-8 persons would fail and that is
why the aforesaid fact seems not to have been stated by the investigating
officer and the same was suppressed by him deliberately and wilfully.
Even the investigation also does not seem to be fair and honest C
investigation. From the statement of PW8 recorded by the special
executive magistrate recorded on 7.6.2003 in which she identified four
named persons from the album of the photographs of notorious criminals,
nothing is on record whether those four persons were arrested or not or
any further investigation was carried out with respect to those four
D
persons. It is to be noted that none of the accused in the present case
are 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 have
conducted an investigation on that line and ought to have arrested those
four persons and ought to have conducted the investigation qua those
four persons. On the contrary, the accused in the present case were E
arrested after a period of one and a half months and that too on transfer
warrants, though there was no description of the accused given by either
PW1 or PW8. A6 was arrested after a period of one and a half year. It
is to be noted that all the accused persons are nomadic tribes coming
from the lower strata of the society and are very poor labourers.
F
Therefore, in the facts and circumstances of the case, false implication
cannot be ruled out since it is common occurrence that in serious offences
sometime innocent persons are roped in. At the cost of the repetition, it
is to be noted that there is no explanation whatsoever why those four
persons who were identified by PW8 on 7.6.2003 were neither arrested
nor there was any investigation qua them. Therefore, there is a serious G
lapse on the part of the investigating agency, which has affected the fair
investigation and fair trial, and therefore, we are of the opinion that the
same is violative of fundamental rights of the accused guaranteed under
Articles 20 & 21 of the Constitution of India.
H
760 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B 13. At the same time, we cannot loose sight of the fact that five
persons have been killed/murdered, out of whom even one lady was
raped. Therefore, it is the duty of the Court to see that the real culprits
are booked and are punished. The Court cannot shut its eyes to the
aforesaid fact that five persons have been killed/murdered and that there
is no fair investigation and because of the lapse on the part of the
C prosecution/investigating agency in not conducting any investigation qua
those four persons who were identified by PW8 on 7.6.2003 before the
special executive magistrate. The benefit of the lapse in investigation
and/or unfair investigation cannot be permitted to go to the persons who
are real culprits and in fact who committed the offence. As observed
D hereinabove, unfortunately, there was no investigation at all with respect
to those four persons who were identified by PW8 in her statement on
7.6.2003. It has come on record and as observed hereinabove, those
four persons who were identified by PW8 on 7.6.2003, which was just
after two days’ of the incident, were other than the appellants – six
persons who came to be tried. Therefore, we are of the opinion that this
E is a fit case for further investigation under Section 173(8) of the Code of
Criminal Procedure qua those four persons, who were identified by PW8
on 7.6.2003, the reference of whom is in the statement recorded by
PW13.
14. Now so far as the submission and prayer on behalf of the
F accused, not only to acquit them, but to award an adequate compensation
is concerned, it deserves consideration. From the above facts and
circumstances of the case, it has emerged that there was no fair
investigation and fair trial and the fundamental rights of the accused
guaranteed under Articles 20 & 21 of the Constitution of India have
G been infringed. The investigation is not fair and honest. There is no
investigation at all qua the four persons who were identified by PW8 on
7.6.2003. On the contrary, the accused in the present case were nomadic
tribes and falsely implicated and are roped in. Except one, all of them
are in jail since last 16 years. All were facing the hanging sword of
death penalty. Out of six accused persons, one was subsequently found
H
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 761
[M. R. SHAH, J.]
to be a juvenile. As per the report of Dr.Ashit Sheth, a Psychiatrist, who A
examined one of the accused – Ankush Maruti Shinde, who was
subsequently found to be a juvenile, he has clearly opined that he has
lived under sub-human conditions for several years. He was kept in
isolation in solitary confinement with very restricted human contact and
under perpetual fear of death. He was only allowed to meet his mother,
B
and that too only infrequently. He was not even allowed to mix with
other prisoners. Therefore, all the accused remained under constant
stress and in the perpetual fear of death. As they were facing the death
penalty, they might not have availed any other facilities of parole, furlon
etc. All of them who were between the age of 25-30 years (and one of
the accused was a juvenile) have lost their valuable years of their life in C
jail. Their family members have also suffered. Therefore, in the facts
and circumstances of the case, and in exercise of our powers under
Article 142 of the Constitution of India, we direct the State of
Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by
way of compensation, to be deposited by the State with the learned
D
Sessions Court within a period of four weeks from today and on such
deposit, the same be paid to the concerned accused on proper
identification. The learned Sessions Court is directed to see that the
said amount shall be used for their rehabilitation. At the cost of the
repetition, it is observed that the aforesaid compensation is awarded to
the accused and in the peculiar facts and circumstances of the case and E
in exercise of powers under Article 142 of the Constitution of India.
15. Before parting with the present order, we strongly deprecate
the conduct on the part of the investigating agency and the prosecution.
Because of such lapses, and more particularly in not conducting the
investigation insofar as those four persons who were identified by PW8 F
on 7.6.2003, the real culprits have gone out of the clutches of the law
and got scot free. At this stage, the decision of this Court in the case of
State of Gujarat v. Kishanbhai (2014) 5 SCC 108 is required to be
referred to, in which this Court has directed in paragraphs 22 and 23 as
under:
G
“22. Every acquittal should be understood as a failure of the justice
delivery system, in serving the cause of justice. Likewise, every
acquittal should ordinarily lead to the inference, that an innocent
person was wrongfully prosecuted. It is therefore essential that
every State should put in place a procedural mechanism which
H
762 SUPREME COURT REPORTS [2019] 4 S.C.R.
A would ensure that the cause of justice is served, which would
simultaneously ensure the safeguard of interest of those who are
innocent. In furtherance of the above purpose, it is considered
essential to direct the Home Department of every State to examine
all orders of acquittal and to record reasons for the failure of each
prosecution case. A standing committee of senior officers of the
B
police and prosecution departments should be vested with aforesaid
responsibility. The consideration at the hands of the above
committee, should be utilised for crystallising mistakes committed
during investigation, and/or prosecution, or both. The Home
Department of every State Government will incorporate in its
C existing training programmes for junior investigation/prosecution
officials course- content drawn from the above consideration. The
same should also constitute course-content of refresher training
programmes for senior investigating/prosecuting officials. The
above responsibility for preparing training programmes for officials
should be vested in the same Committee of senior officers referred
D
to above. Judgments like the one in hand (depicting more than ten
glaring lapses in the investigation/prosecution of the case), and
similar other judgments, may also be added to the training
programmes. The course-content will be reviewed by the above
Committee annually, on the basis of fresh inputs, including emerging
E scientific tools of investigation, judgments of Courts, and on the
basis of experiences gained by the Standing Committee while
examining failures, in unsuccessful prosecution of cases. We
further direct, that the above training programme be put in place
within 6 months. This would ensure that those persons who handle
sensitive matters concerning investigation/prosecution are fully
F
trained to handle the same. Thereupon, if any lapses are committed
by them, they would not be able to feign innocence when they are
made liable to suffer departmental action for their lapses.
23. On the culmination of a criminal case in acquittal, the concerned
investigating/prosecuting official(s) responsible for such acquittal
G must necessarily be identified. A finding needs to be recorded in
each case, whether the lapse was innocent or blameworthy. Each
erring officer must suffer the consequences of his lapse, by
appropriate departmental action, whenever called for. Taking into
consideration the seriousness of the matter, the official concerned
H may be withdrawn from investigative responsibilities, permanently
ANKUSH MARUTI SHINDE v. STATE OF MAHARASHTRA 763
[M. R. SHAH, J.]
or temporarily, depending purely on his culpability. We also feel A
compelled to require the adoption of some indispensable measures,
which may reduce the malady suffered by parties on both sides
of criminal litigation. Accordingly, we direct the Home Department
of every State Government, to formulate a procedure for taking
action against all erring investigating/prosecuting officials/officers.
B
All such erring officials/officers identified, as responsible for failure
of a prosecution case, on account of sheer negligence or because
of culpable lapses, must suffer departmental action. The above
mechanism formulated would infuse seriousness in the
performance of investigating and prosecuting duties, and would
ensure that investigation and prosecution are purposeful and C
decisive. The instant direction shall also be given effect to within
6 months.”
15.1 Murder and rape is indeed a reprehensive act and every
perpetrator should be punished. Therefore, considering the observations
made by this Court in the case of Kishanbhai (supra), referred to D
hereinabove, we direct the Chief Secretary, Home Department, State of
Maharashtra to look into the matter and identify such erring officers/
officials responsible for failure of a prosecution case, on account of
sheer negligence or because of culpable lapses, real culprits are out of
the clutches of law and because of whose lapses the case has resulted
into acquittal in a case where five persons were killed brutally and one E
lady was subjected to even rape. Therefore, we direct the Chief
Secretary, Home Department, State of Maharashtra to enquire into the
matter and take departmental action against those erring officers/officials,
if those officers/officials are still in service. The instant direction shall
be given effect to within a period three months from today. F
16. With the above observations and directions, and in view of the
above and for the reasons stated above, the criminal appeals preferred
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 G
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 H
764 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B
Nidhi Jain Appeals disposed of.
C
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "murder"Sign in to search