Supreme Court of India
MAHESH DHANAJI SHINDEversusSTATE OF MAHARASHTRA
- Citation
- 2014 INSC 146
- Decided
- 27 February 2014
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The Court upheld the convictions under sections 302 and 120‑B IPC and commuted the death sentences to life imprisonment, holding that life imprisonment was not unquestionably foreclosed.
Summary
The appellants were convicted for the murders of nine persons in a scheme that promised to "multiply" cash money, known as the "money shower" scam. The prosecution proved the deaths were homicidal and identified the victims through forensic, DNA, super‑imposition and material evidence, establishing the accused’s participation beyond reasonable doubt. The Supreme Court affirmed the convictions under sections 302 and 120‑B IPC, but examined whether the death penalty was warranted under the "rarest of rare" doctrine. Considering the accused’s young age, poverty, lack of prior criminal record, and evidence of reform while in custody, the Court held that life imprisonment was not "unquestionably foreclosed". Consequently, the death sentences were commuted to life imprisonment, with the sentences for other offences affirmed.
Issues considered
- The adequacy of circumstantial evidence to sustain convictions under sections 302 and 120‑B IPC.
- The applicability of the "rarest of rare" doctrine and whether the death penalty should be imposed.
- Whether mitigating factors such as age, poverty, lack of prior record and prospects of reformation justify commutation of death sentences.
- The reliability of forensic identification (DNA, super‑imposition) of the deceased.
- Whether the option of life imprisonment is "unquestionably foreclosed" in the present case.
Legislation cited
- Code of Criminal Procedure, 1973s. 354(3), s. 432, s. 433-A
- Indian Penal Code, 1860s. 120-B, s. 302
Subjects
murdercircumstantial evidencedeath penaltycommutationrarest of rare doctrinelife imprisonmentreformationpovertymoney shower scamIPC 302IPC 120-Bsentencing
Judgment
[2014] 3 S.C.R. 406
A MAHESH DHANAJI SHINDE
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1210-1213 of 2012)
FEBRUARY 27, 2014
B
[P. SATHASIVAM, CJI, RANJAN GOGOi,
SHIVA KIRTI SINGH, JJ.]
PENAL CODE, 1860:
c
ss. 302 rlw1208 - 9 murders - Circumstantial evidence -
"Money shower" case - Accused meticulously planned
murders by inducing innocent persons in the name of "money
showers" (multiplying cash money), took money from them,
killed them and looted their cash and jewellery - Conviction
0
and death sentence to all four accused - Confirmed by High
Court - Held: On the basis of the evidence brought by the
prosecution it has been conclusively established that the
death of all the deceased persons was homicidal in nature
and that dead bodies recovered were of the deceased, as
E claimed by the prosecution - Therefore, conviction of all four
accused u/ss 302 and 120-8 is affirmed - Evidence -
Circumstantial evidence.
Sentence - Held: Criminal acts of accused were the result
F of a carefully planned scheme - Crimes were committed over
a period of nearly two months in three different episodes -
Assaults on some of the victims were merciless and gruesome
- Some of the victims were young and hapless children - At
the same time, all the four accused were young in age at the
G time of commission of offence - They belong to economically,
socially and educationally deprived section of population -
They were living in acute poverty - Materials show that while
in custody all the accused had enhanced their educational
qualifications -- There is no material or information to show
H 406
MAHESH DHANAJI SHINDE v. STATE OF 407
MAHARASHTRA
any condemnable or reprehensible conduct on the part of any A
of appellants during their· period of custody - All the
circumstances point to possibility of accused-appellants
being reformed and living a meaningful and constructive life
if they are to be given a second chance - Balancing two sets
of circumstances i.e. one favouring commutation and the B
other favouring upholding death penalty, option of life
sentence is not "unquestionably foreclosed" - Therefore,
sentence of death awarded to accused-appellants is
commuted to life imprisonment - Their custody for rest of their
lives will be subject to remissions, if any, which will be strictly c
subject to the provisions of ss. 432 and 433-A, Cr.PC.
The appellants (A-1, A-2, A-3 and A-6) were
prosecuted for committing murders of 9 persons for
money. The prosecution case was that A-1 claimed to
have been gifted with supernatural powers of "money D
showers" i.e. to multiplying cash money, and A-2, A-3 and
A-6 used to spread and circulate amongst innocent
people the magical powers of "money showers" of A-1;
that these accused conspired to induce the people,
collect money from tbem on the assurance of multiplying E
it, take such people to a certain place (place of
occurrence) and kill them there, take away their cash and
jewellery and other belongings and dispose of their
bodies. The relatives of some of the deceased lodged
' complaints of missing of the deceased. The investigation F
led to recovery from the place of occurrence of 10 dead
bodies in highly decomposed condition, unable to be
identified, out of which 081 to 089 were identified by the
relatives on the basis of their belongings, DNA tests and
super-imposition test. The accused were tried in three G
Sessions cases. In tw.o of them A-1, A-2, A-3 and A-6 were
convicted u/ss 302 and 1208 IPC and were sentenced to
death. The High Court confirmed the conviction and the
sentence. In the third Sessions case in which only A-1,
A-2 and A-3 were the accused, they were acquitted of the H
408 SUPREME COURT REPORTS [2014] 3 S.C.R.
A offence punishable u/ss 302 and 1208 IPC, but the High
Court reversed their acquittal and sentenced them to life
imprisonment.
Disposing of the appeals, the Court
8 HELD: 1.1 On the basis of the evidence brought by
the prosecution it has been conclusively established that
the death of all the deceased persons, except DB-10,
which could not be identified, was homicidal in nature
and that DB-1 to 9 were of the deceased, as claimed by
C the prosecution. [para 13] [422-F-G]
1.2 In so far as the involvement of the accused in the
crimes alleged against them is concerned, the evidence
and other materials on record make it clear that A-1, A-2,
0 A-3 and A-6 were known to each other and they were
residing in Mumbai. It was deliberately circulated and
spread by the accused that A-1 was gifted with super-
natu ra I powers of causing money showers i.e.
multiplying cash money. The evidence on record also
E establishes that the accused had been persuading
people, including the victims, to arrange for cash money
and bring the same to them at the named places so that
the same can be multiplied. Accordingly, the victims,
including the deceased persons, after obtaining cash
money from different sources, had gone to the stated
F places and they were put up in different lodges/hotels by
the accused. The prosecution had also established that
while staying in the hotels/lodges the victims and the
accused did not use their real names. Specifically, the
prosecution evidence shows that A-2 arranged for
G conveyance and stay of the victims whereas A-3 had
assisted A-2 in shifting the victims from the lodges to the
place where the crimes were committed. The evidence
adduced also shows that the victims had left in the
mornings of the days of incident for the place of
H occurrence alongwith some of the accused. A-1 was the
MAHESH DHANAJI SHINDE v. STATE OF 409
MAHARASHTRA
money spinner and A-6 was in the company of the other A
accused with full knowledge of what was going on and
with active participation therein. [para 17]
1.3 The victims were missing for days and their
relatives had lodged complaints in different police B
stations. From the place of occurrence articles like
wearing apparels, brief case, diaries etc. were recovered
which have been proved to be belonging to some of the
deceased persons whereas articles like wrist watch,
jewellery items etc. also belonging to the deceased had C
been recovered from persons who were in such
possession through the accused. All such articles have
been identified by the close relatives of the deceased to
be belonging to the respective deceased persons.
Around the time of the incidents, the accused persons
had made unaccounted cash deposits in their Bank D
accounts or in the accounts of their close relatives and
A-1, A-2 and A-3 had purchased automobiles/motorcycles
on cash payment. The sources of such receipts have not
been explained. These conclusions which this Court has
thought proper to draw on a con,sideration of the E
evidence of the prosecution appears to be more or less
in conformity with what has been found by the High Court
to have been proved by the prosecution. Therefore, there
is no doubt, whatsoever, that in the instant case the
prosecution has succeeded in proving a series of highly F
incriminating circumstances involving the accused all of
which, if pieced together, can point only to one direction,
namely, that it is the accused-appellants and nobody else
who had committed the crimes in question. [para 17]
[432-H; 433-A-E] G
1.4 Therefore, this Court affirms the impugned
common judgment and order of the High Court holding
accused A-1, A-2, A-3 and A-6 in Sessions Case Nos. 3/
2005 and 5/2005 guilty of commission of the offences
H
410 SUPREME COURT REPORTS [2014) 3 S.C.R.
A alleged including the offence u/s 302 IPC read withs. 120-
B IPC. This Court also affirms the finding of the High
Court that accused A-1, A-2 and A-3 in Sessions Case No.
4/2005 are guilty of commission of the offence u/s 302 IPC
read with s. 120-B IPC, insofar as the death of deceased
B (DB-1) is concerned. [para 17] [433-E-G]
Santosh Kumar Satishbhushan Bariyar Vs. State of
Maharashtra (2009) 6 SCC 498; Mui/a & Anr. Vs. State of
Uttar Pradesh 2010 (2) SCR 633 = (2010) 3 SCC 508;
Ramesh & Ors. Vs. State of Rajasthan 2011 (4) SCR 585 =
C (2011) 3 SCC 685; and Shankar Kisanrao Khade Vs. State
of Maharashtra (2013) 5 SCC 546 - cited.
2.1 As regards the sentence, the essential principles
in death penalty jurisprudence has been laid down by
D two Constitution Benches of this Court in Jagmohan
Singh and Bachan Singh. The expanse of the death
penalty jurisprudence clearly and firmly laid down in
Bachan Singh is called out as following:
(1) Life imprisonment is the rule and death penalty
E
is the exception. (para 209)
(2) Death sentence must be imposed only in the
gravest cases of extreme culpability, namely,
in the "rarest of rare" where the alternative
F option of life imprisonment is "unquestionably
foreclosed". (para 209)
(3) The sentence is a matter of judicial discretion
to be exercised by giving due consideration to
G the circumstances of the crime as well as the
offender. (para 197) [para 21 and 23] [436-B-C;
437-B-E]
Jagmohan Singh Vs. The State of U.P. 1973 (2) SCR 541
=(1973) 1 SCC 20; Bachan Singh Vs. State of Punjab (1980)
H 2 sec 684 - relied on.
MAHESH DHANAJI SHINDE v. STATE OF 411
MAHARASHTRA
Mithu Vs. State of Punjab 1983 (2) SCR 690 =AIR 1983 A
SC 473; Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi)
2013 (12) SCALE 473; and Sushi/ Sharma Vs. The State of
NCT of Delhi 2013 (12) SCALE 622 • referred to.
2.2 The Constitution Bench in Bachan Singh 8
sounded a note of caution against treating the
aggravating and mitigating circumstances in separate
water-tight compartments, as in many situations it may
be impossible to isolate them and both sets of
circumstances will have to be considered to cull out the C
cumulative effect thereof. [para 24] [437 -F·G]
2.3 In the instant case; there is no manner of doubt
that the accused appellants have committed the murder
of as many as 9 innocent and unsuspecting victims who
were led to believe that A-1 had magical powers to D
multiply money. The deceased, after being killed, were
robbed of the cash amounts that they had brought with
them for the purpose of "money shower". The criminal
acts of the accused were actuated by greed for money
and such acts were the result of a carefully planned E
scheme. The crimes were committed over a period of
nearly two months in three different episodes. The
assaults on some of the victims wer'! merciless and
gruesome. Some of the victims were young and hapless
children. [para 28] [441-G-H; 442-A·B] F
2.4 At the same time, all the four accused were young
in age i.e. 23-29 years at the time of commission of the
offence. They belong to the economically, socially and
educationally deprived section of the population. They
,'G
were living in acute poverty. It is possible that, being
young, they had a yearning for quick money and it is
these circumstances that had led to the commission of
the crimes in question. Materials have been laid before
this Court to show that while in custody all the accused
had enrolled themselves in Open· University and had H
412 SUPREME COURT REPORTS [2014] 3 S.C.R.
A either completed the B.A. Examination or are on the
verge of acquiring the degree. A-2, A-3 and A-6 have, at
different points of time, participated in different
programmes of Gandhian thoughts and have been
awarded certificates of such participation. In prison, A-2
B has written a book and A-3 has been associated with the
said work. There is no material or information to show
any condemnable or reprehensible conduct on the part
of any of the appellants during their period of custody.
All the circumstances point to the possibility of the
c accused-appellants being reformed and living a
meaningful and constructive life if they are to be given a
second chance. In any case, it is not the stand of the
State that the accused-appellants are beyond reformation
or are not capable of living a changed life if they are to
be rehabilitated in society. Each of the accused have
0
spent over 10 years in incarceration. [para 29] [442-C-H]
2.5 Balancing the two sets of circumstances i.e. one
favouring commutation and the other favouring
upholding the death penalty, this Court is of the view that
E in the instant case the option of life sentence is not
"unquestionably foreclosed". Therefore, the sentence of
death awarded to the accused is commuted to life
imprisonment. Each of the accused-appellants, shall
undergo imprisonment for life for commission of the
F offence u/s 302/1208 IPC. The custody of the appellants
for the rest of their lives will be subject to remissions, if
any, which will be strictly subject to the provisions of
ss.432 and 433-A of the Cr.PC. [para 30] (443-A-D]
Case Law Reference:
G
(1980) 2 sec 684 relied on para 18
(2009) 6 sec 498 cited para 18
2010 (2) SCR 633 cited para 18
H
MAHESH DHANAJI SHINDE v. STATE OF 413
MAHARASHTRA ~
2011 (4) SCR 585 cited para 18 A
(2013) 5 sec 546 cited para 18
1973 (2) SCR 541 relied on para 21
1983 (2) SCR 690 referred to para 24
B
2013 (12) SCALE 473 referred to para 24
2013 (12) SCALE 622 referred to para 24
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1210-1213 of 2012 c
From the Judgment & Order dated 17.10.2011 of the High
Court of Judicature at Bombay in Confirmation Cases Nos. 3
and 6 of 2009 alongwith Criminal Appeal Nos. 731 and 732 of
2010. D
WITH
Criminal Appeal No. 2089-2091, 1238-1239, 1240-1241 of
2012
Colin Gonsalves, Aparna Jha, Braj Kishore Mishra, E
Kamlesh Mishra, Jyoti Mendiratta Shivaji M. Jadhav, Sushi!
Karanjkar, S.N. Bhanage, P.R. Narvekar, A.P. Mayee, Asha
Gopalan Nair, Amal B. Karande for the appearing parties.
The Judgment of the Court was delivered by F
RANJAN GOGOi, J. 1. The appellants, Santosh Manohar
Chavan, Amit Ashok Shinde, Yogesh Madhukar Chavan and
Mahesh Dhanaji Shinde who were tried as accused Nos. 1, 2,
3 and 6 (hereinafter referred to as A-1, A-2, A-3 and A-6) in
Sessions Case Nos. 3/2005, 4/2005 and 5/2005 have assailed G
the impugned'c9mmon judgment and order of the High Court
of Bombay dated 17 .10.2011 whereby their conviction in
Sessions Case Nos, 3/2005 and 5/2005, inter alia, under
Section 302/120B of the IPC and for offences under the Arms
Act have been upheld by the High Court. The death penalty H
414 SUPREME COURT REPORTS [2014] 3 S.C.R.
A imposed on the appellants by the learned Trial Judge has been
confirmed by the High Court by the order under appeal apart
from the punishment imposed under different Sections of the
Penal Code as well as the Arms Act. Insofar as Sessions Case
No. 4/2005 is concerned, the learned Trial Judge had acquitted
B accused 1, 2 and 3 of the offence under Section 302/1208 IPC.
In the appeal by the State, the High Court has reversed the
acquittal and convicted the aforesaid three accused of the
aforesaid offence and has sentenced them to undergo RI for
life. The accused No. 6, i.e., appellant Mahesh Dhanaji Shinde
c is not an accused in Sessions Case No. 4/2005. It" is the
common order of the High Court rendered in the aforesaid
cases convicting and sentencing the accused-appellants, as
aforementioned, which has been challenged in the present
appeals. It may also be mentioned at the outset that in all the
cases the accused-appellants have been exonerated of the
0
charge under Section 364A of the IPC by the order under
appeal.
2. The case of the prosecution in short is that on
20.12.2003 the Superintendent of Police, Sindhudurg received
E anonymous letters and phone calls to the effect that some
unidentified dead bodies were lying dumped on the hillocks of
village Nandos, Taluk Malvan, District Sindh~durg. A search
operation was organised on the very day i.e. 20.12.2003 in the
course of which 7 dead bodies were recovered. Two more
F dead bodies were recovered on the next day i.e. 21.12.2003
and one dead body was recovered on 29.12.2003. Alongwith
the dead bodies, articles like clothes, trouser hooks, broken
brief case etc. alongwith two blood stained diaries were also
recovered. Though all the dead bodies were sent for post-
G mortem examination the high level of decomposition rendered
any post-autopsy opinion impossible. The dead bodies were
therefore sent to Medical College, Miraj and a team of doctors
was constituted who performed forensic chemical tests on the
dead bodies. Some of the organs from the dead bodies were
H sent to the Centre for DNA Fingerprinting and Diagnostics,
MAHESH DHANAJI SHINDE v. STATE OF 415
MAHARASHTRA [RANJAN GOGOi, J.]
Hyderabad (CDFD) for DNA test and the skulls sent to the A
Forensic Laboratory, Kalina, Bombay for super-imposition tests.
3. In the two diaries recovered by the police from the spot
some names and addresses were found. It is from these
persons that the names and particulars of the persons to whom B
the diaries belonged could be ascertained. Having traced the
initial identity of some of the deceased in the above manner,
enquiries from such friends and relatives revealed the names ·
and identities of other persons who were in the company of the
deceased persons. Information lodged in different police
stations with regard to missing persons around the relevant time C
were collected and co-related. The opinion of handwriting
experts were obtained which showed that the diaries belonged
to one Dada Saheb Chavan and Kerubhai Mali. Blood samples
of the relatives were sent to the CDFD, Hyderabad for DNA
test. Some of the dead bodies were also identified by the D
relatives and friends of the deceased on the basis of articles
recovered from the spot which were seized in the course of the
investigation. The investigation which proceeded on the
aforesaid lines, prima facie indicated the involvement of the
accused-appellants. Accordingly, accused Santosh Manohar E
Chavan (A-1) was arrested on 22.12.2003 and from the
information obtained during the course of his interrogation,
accused Nos. 2 to 7 were arrested. The disclosures made by
the accused led to recovery of gold articles, bank passbooks
etc. from the house of A-7 as well as incriminating weapons F
like iron rods, cut bars of guns, one muzzle loader gun etc. Test
Identification Parade was held where A-1, A-2 and A-3 were
identified by witnesses. The assets acquired by the aforesaid
persons around that time including motor bikes, a Tata Sumo
jeep etc. were seized alongwith bank statements of the G
accused, their wives and relatives. The bank statements
revealed that cash deposits well beyond the income of the
accused were made around the time of the incidents. The
accounts also showed purchase of Tata Sumo by A-1 at a cost
of Rs. 2.6 lakhs on 24.08.2003 and purchase of motorcycles H
416 SUPREME COURT REPORTS [2014] 3 S.C.R.
A by A-2 and A-3 on 20.11.2003 and 25.11 2003 respectively.
4. According to the prosecution, investigation further
disclosed that A-1 Santosh Manohar Chavan who plied an auto
rickshaw in Mumbai claimed super natural powers to bring
about "money showers" i.e. to multiply cash money. According
8
to the prosecution while A-2 was a LIC agent, A-3 was
employed in a private institution and A-6 was running a ration
shop. All the aforesaid accused used to spread and circulate
amongst innocent and unsuspecting persons the magical
powers claimed by A 1 to multiply money by creating "money
C showers". They would ask the victims to come to Malvan with
currency notes of higher denominations alongwith empty gunny
sacks (ostensibly to collect the proceeds of the money shower).
In Malvan they were put up in lodges and hotels. From those
lodges and hotels the victims would be ferried to the Nandos
D plateau by auto rickshaw. The vehicle will halt near the village
Panchayat Office from where the victims were asked to travel
by foot to the plateau. The prosecution alleged that the accused
ensured that the victims did not bring their own vehicles to
Malvan and that they did not leave any personal effects in the
E hotel or lodge. All this was done to avoid any trace of the
victims. The registers of lodges and hotels where the deceased
persons and some of the accused had, according to the
prosecution, stayed on different dates during the relevant period
were also seized in the course of investigation.
F
5. According to the prosecution, the investigations carried
out had also revealed that one Shankar Sarage and one
Hemant Thakre were done to death by the accused persons
on 24.9.2003. Dead bodies number 1 and 10 (DB-1 and DB-
G 10) were claimed to be of the aforesaid two persons who,
according to the prosecution, were killed on 24.9.2003. The
accused were charged of the offence of kidnapping and murder
of the aforesaid two persons and were put to trial in the
proceeding registered as Sessions Case No. 4/2005. On the
H basis of the report of the forensic team of the Miraj Medical
MAHESH DHANAJI SHINDE v. STATE OF 417
MAHARASHTRA [RANJAN GOGOi, J.]
College the prosecution alleged that the aforesaid two persons A
were killed by gun shots, swords, rods and revolver and that
they have been robped of a sum of Rs. 1,55,000/-. While the
Trial Court acquitted the accused A-1, A-2 and A-3 on the
ground that the dead bodies DB-1 and DB-10 could not be
identified to be that of deceased Shankar Sarage and Hemant B
Thakre, the High Court reversed the said finding insofar as
deceased Shankar Sarage is concerned and held accused 1,
2 and 3 to be guilty of murder of Shankar Sarage. They have
been accordingly sentenced to undergo RI for life.
6. The prosecution had further alleged that the second
c
incident involved four persons i.e. Vijaysinha Dude, Dadasaheb
Chavan, Sanjay Garware and Vinayak Pisa! and that the same
had occurred on 30.10.2003. It is the further case of the
prosecution that Dead Bodies i.e. DB-2, DB-3, DB-4 and DB-
5 were that of the four deceased persons mentioned above who D
were killed and robbed of Rs. 3, 10,000/-. Such identification
was claimed on the basis of super-imposition tests carried out
at the Forensic Laboratory, Kalina, Bombay. Sessions Case
No. 5/2005 was registered in respect of the said incident
wherein the accused A-1, A-2, A-3 and A-6 were tried and E
convicted under Section 302/1208 IPC and other provisions
of the Code as well as under different provisions of the Arms
Act. They have been awarded the death sentence by the
learned Trial Court which has been confirmed by the High Court
by the order under challenge in the present appeals. F
7. The prosecution has further alleged that the third incident
occurred on 14.11.2003 and involved four persons of a family
who were identified to be Kerubhai Mali, Anita Mali, Sanjay Mali
and Rajesh Mali. On the basis of the report of DNA analysis, G
the prosecution alleged that dead bodies DB-8, DB-7, DB-6
and DB-9, respectively, belonged to the aforesaid persons in
seriatim and that they had been killed and robbed of Rs.
3, 10,000/-. Sessions Case No. 3/2005 was registered against
accused A-1, A-2, A-3 and A-6 in respect of the incident in H
418 SUPREME COURT REPORTS [2014] 3 S.C.R.
A question. All the four accused persons have been convicted by
the learned Trial Court inter a/ia under Section 302/1208 IPC
and other provisions of the Code as well as different provisions
of the Arms Act and have been sentenced, inter alia, to death.
The conviction and sentence has been maintained by the High
B Court.
8. Though separate chargesheets in respect of the three
incidents of alleged murder on the three different dates were
filed in Court and separate sessions cases were registered
wherein separate charges had been framed against the
C accused persons, evidence in all the cases was led in the trial
of Sessions Case No. 3/2005.
9. 128 witnesses including 38 pan ch witnesses; 22
persons acquainted with the accused and the victims; 9
D relatives of the victims; 13 medical officers; 5 witnesses
connected with the mobile phone calls made by the accused;
29 police witnesses; two executive magistrates; 5 bank officers
and 5 DNA experts, super-imposition experts, handwriting
experts and ballistic experts were examined by the prosecution.
E The accused persons denied their involvement in any of the
offences alleged against them but did not adduce any evidence.
10. A broad overview of the core evidence brought by the
prosecution to bring home the charges against the accused
F may now be made.
On the basis of the report of the Forensic Expert
Committee (Exhibit 419) proved by PW-76, Dr. Anil Jinturkar,
the prosecution has tried to prove that the death of all the 10
deceased (DB-1 to DB-10) was homicidal in nature. The
G findings of the forensic tests, as deposed to by PW-76, may
be set out below:-
DB 1 was of a· human male aged between 25 to
45 years. Time of death was 6 months prior to
examination. Probable cause of death was opined
H
MAHESH DHANAJI SHINDE v. STATE OF 419
MAHARASHTRA [RANJAN GOGOi, J.]
as single hole firearm injury to the thorosic region, A
although the exit wound was not found. Other
injuries to the mandible and verterbrae were caused
by a hard, blunt object. Although the appearance of
these injuries were similar to those caused by iron
bars, PW-76 could not affirm that iron bars alone B
~aused the injuries due to the non-availability of
brain matter. Analysis of brain and brain matter
would reflect the impact of blows from an iron bar,
in the absence of which, PW-76 could not rule out
the possibility of the injuries due to fall. c
DB 2 was of human male aged between 25 to 45
years and the person died 6 months before the
examination. He stated that all injuries expect the
gnawing marks were ante mortem & the probable
cause of death was the head injuries resulting into D
the fracture of the skull & these injuries could have
been caused by a sharp cutting object.
DB 3 was of human male aged between 25 to 45
years and the person died 6 months before the E
examination. He stated that all injuries were found
ante mortem & the probable cause of death was
fire arm injury to chest & fracture of skull leading to
head injury. Two injuries of circular holes on
posterior parts were caused by fire arm & rest of F
the injuries by hard & blunt object.
DB 4 was of human male aged between 25 to 45
years and the person died 6 months before the
examination. He stated that all injuries expect the
gnawing marks were found ante mortem & the G
probable cause of death was the head injury due
to fracture of the skull bone with blunt thorosic
trauma associated with multiple ante mortem
fracture. It was stated that all ante mortem injuries
could be caused by hard & blunt object. H
420 SUPREME COURT REPORTS [2014] 3 S.C.R.
A DB 5 was of human male aged between 25 to 45
years and the person died 6 months before the
examination. He stated that all injuries could have
been caused by hard & blunt object & the cause of
death was head injury due to fracture of skull bone
B with blunt thorosic trauma associated with multiple
ante mortem fracture.
DB 6 was of human male aged between 12 to 18
years and the person died 6 months before the
examination. An ante mortem injury of linear
c fracture over the left aspect of frontal bone was
found & two post mortem injuries of broken styloid
processes (points of attachment for muscles) &
gnawing marks at left & right hands were found. The
cause of death was stated to be head injury as a
D result of linear fracture of bone of left side.
DB 7 was of human female aged between 25 to
45 years & could have died 6 months before the
examination. All the injuries found were ante
E mortem & the probable cause of death was fire arm
injuries to abdomen and pelvis with evidence of
multiple fracture of skull leading to head injury.
DB 8 was of human male aged between 25 to 45
years & could have died 6 months before the
F examination. All injuries of fracture of right frontal
bone were found arte mortem caused probably by
a hard & blunt object & some gnawing injuries were
found post-mortem. The probable cause of death
was stated to be head injury resulting into fracture
G of vault & anterior cranial fossa at the base of the
skull.
DB 9 was of human male aged between 18 to 20
years & could have died 6 months before the
H examination. All injuries were found ante mortem &
MAHESH DHANAJI SHINDE v. STATE OF 421
MAHARASHTRA [RANJAN GOGOi, J.]
were caused by hard & blunt object. The cat1se of A
injury was stated to be head injury resulting into
depressed communicated fracture of skull bone.
DB 10 was of human male aged between 25 to 45
years & could have died 6 months before the B
examination. He opined that like DB 1 and 3, DB
10 had also suffered fire arm injuries, but he could
not opine as to what type of fire arm was used in
as much as it was a shot gun or rifle, but at the
same time it was noticed that no exit wound was C
found on the skeleton.
'11. The prosecution has laid evidence to show that blood
samples of the relatives of some of the deceased persons
were collected as per prescribed guidelines and alongwith
some parts of the organs of the deceased were sent to the D
CDFD at Hyderabad for DNA analysis. The report of Dr. S.
Pandurang Prasad, Senior Technical Examiner in the laboratory
(PW-107) to the effect that dead bodies 1, 2, 6, 7, 8 and 9 were
found to be that of deceased Shankar Sarage, Vijaysinha
Dudhe, Sanjay Mali, Anita Mali, Kerubha Mali and Rajesh Mali E
was brought on record by the prosecution. In so far as DB-2 to
5 are concerned, the identity thereof could not be established
by DNA analysis as the specimens sent were found not to be
fit for a conclusive determination of the question. However, the
skulls of the DB-2 to 5 were sent for superimposition tests which F
were carried out by PW-108, Ratna Prabha Gujarati. The
aforesaid witness had testified that the probability of her finding
being correct is almost 99% and the reliability of the
superimposition test technique is 91%. PW-108 had testified,
on the basis of superimposition tests, that DB-2 to 5 were of G
deceased, Vijaysinha Dudhe, Dadasaheb Chavan, Sanjay
Gavare, and Bala Pisal respectively.
12. The prosecution has sought to establish the identity of
the dead bodies, additionally, on the basis of oral evidence. In
this regard, PW-66, Mohan Doke, brother of deceased Anita H
422 SUPREME COURT REPORTS [2014] 3 S.C.R.
Mali, (DB-7) had identified the mobile phones, pieces of saree,
.A..
hair clips, brief case, wrist watch, gold rings, earrings along with
mangal sutra belonging to members of the Mali family which
were either recovered from the spot/place of occurrence or from
other persons who had come into possession of the same
B through the accused. In respect of DB-2 to 5, the identification
of the personal effects of the deceased were made by close
relations. Specifically, PW-97, Pradip Pisa!, brother of
deceased Vinayak Pisal (DB-5) had identified the clothes worn
by the deceased whereas PW-98, Vinayak Dinkar Chavan,
c brother of deceased Dadasaheb Chavan (DB-3) had identified
the clothes and chappals worn by the deceased as well as the
diary belonging to him. Similarly, PW-80, Smt. Jyoti Gavare,
wife of deceased Sanjay Gavare (DB-4) identified the clothes
recovered from the dead body as well as the rubber ring of the
D deceased worn by him around the waist. Similarly, DB-2 was
identified by PW-63-Fatehsingh Dudhe to be the dead body
of Vijaysinha Dud he ori the basis of the gaps in the central teeth
of the dead body and the personal effects of the deceased like
clothes, shoes, wrist watch etc. Similarly, the DB-1 was-
identified to be the dead body of Shankar Sarage by PW-119
E Parvati Shankar, the widow of the deceased. Such identification
was made on the basis of the clothes that the deceased was
wearing at the time he had left his home.
13. On the basis of the above evidence brought by the
F prosecution there can be no manner of doubt, whatsoever, that
the death of all the deceased persons except Hemant Thakre
(DB-10 - whose dead body could not be identified) was
homicidal and that DB-1 to 9 were of the deceased, (excluding
Hemant Thakre) as claimed by the prosecution.
G
14. The evidence of the relevant witnesses examined by
the prosecution in all the three cases to establish a possible
link and show a live nexus between the crime(s) committed and
the persons responsible therefor may now be taken note of.
·H (a) PW- 1, Ashok Nemalekar used to ply his auto-
MAHESH DHANAJI SHINDE v. STATE OF 423
MAHARASHTRA [RANJAN GOGOi, J.]
rickshaw in Malvan. He has deposed that on A
14.11.2003 he ferried five passengers from Mayur
Lodge to the Village Panchayat Office at about
11.00-11.30 am. On the basis of the photographs
shown to him by the investigating team he had
identified four members of the Mali family i.e. B
Sanjay Mali (DB-6), Anita Mali (DB-7), Kerubhai
Mali (DB-8), Rajesh Mali (DB-9) and the accused
No.2 Amit Ashok Shinde as his passengers.
(b) PW-4 Smita is the wife of A-7. She had testified
that A-1 had lived in her house since his childhood C
until he moved to Mumbai to ply auto-rickshaw.
Though he would visit her only once in a year during
Ganpati Festival (usually held in the calendar month
of August). A-1 had visited her in May, 2003 and
stayed with her for 15 days. Thereafter, again in D
September, 2003 A-1, A-2 and A-3 stayed at her
home for 10 days. According to PW-4 during this
visit she could notice that the three accused would
go to the plateau (Nandos) ostensibly for hunting
though they never returned with any prey. This E
witness had further deposed that A-1 and A-3
unexpectedly arrived at her house on 24.9.2003 at
about 1.30 a.m. and when A-7 (husband of PW-4)
had asked them why they had come at such an odd
hour A-1 replied that they had some urgent work. F
According to PW-4 at about 9.30 a.m. in the
morning, A-1's mobile phone started ringing and A-
3 answered the same by saying "Bol Amit" (Amit
speak). Thereafter within half an hour A-1 and A-3
left for Katta in the Tata Sumo jeep by which· they G
had come. According to PW-4, her daughter
Deepika had informed her that she had seen A-3,
lurking around her school, which is near the Nandos
Village Panchayat. A-3, on being asked what he
was doing in the vicinity of the school. had informed H
424 SUPREME COURT REPORTS [2014] 3 S.C.R
A Deepika that she must have seen somebody else
as he had not gone near the school. PW-4 further
deposed that A-3 left her house at about 6.00 p.m.
on 24.9.2003 followed by A-1 (around 7.00-7.15
pm) and they had returned at about 9.00 -9.30 p.m.
B thoroughly drenched though it was not raining PW-
4 had further testified that the accused had asked
her to wash their clothes which she refused to do
at night.
PW-4 in her deposition had further stated that on
c 22.10.2003, A-1, his second wife Sonali, A-3 and a friend
of A-1, one Jeetu, visited her and stayed for two days. On
both the dates A-1 and A-3 had visited Katta. According
to this witness about 5 to 6 days thereafter and two days
after Diwali day of Bhaubeej A-1, Sonali, A-3 and A-6
D came to her house where they were joined by A-2. Next
day, she saw A-1, A-2, A-3 and A-6 bathing near the well
and in the rear side of her house. She has further testified
that A-6 was suffering from a cut injury on his index finger
for which he had to be taken to a doctor who had put a
E bandage on the injured index finger.
PW-4 has further testified that on 12.11.2003 A-1,
A-3, A-6 and Sonali had come to her house. On the next
day the accused persons left her house in the morning for
F Katta and returned in the evening. On 14.11.2003 A-1, A-
3, A-6 left her house at about 10.00-10.30 A.M. and
returned around 3.00 P.M. with A2. Before entering the
house they had bathed near the well. Thereafter the
accused left her house on different dates.
G (c) PW-5 Sachin, who is the younger brother of A-1
had testified that he had transported some of the
victims in his auto-rickshaw at the request of A-1.
His testimony was, however, rejected by the learned
Trial Court on the ground that the same appeared
H to be incredible.
MAHESH DHANAJI SHINDE v. STATE OF 425
MAHARASHTRA [RANJAN GOGOi, J.]
(d) PW-8 Vined Deorukhkar is an employee of Mayur A
Lodge, Malvan. He had testified that· on
14.11.2003, at about 7.00-7.30 am, one man, aged
about 40-45 years, one woman, aged about 30-35
years, two boys, aged between 8 to 10 years, and
one man, aged about 28-30 years, reached Mayur B
Lodge. They were allotted room no.6. When they
were asked their names, the man aged 28-30
years came forward and introduced himself as Anil
Jadhav; thus, the entry "Anil Jadhav and family" was
made in the register. They left their room at 9.00 c
am that day for a walk and returned at 11.00 am.
Shortly thereafter, they informed that they would be
leaving the hotel. At that time, PW-8 noticed that the
man, aged about 45 years, was carrying a medium
sized, grey suitcase/briefcase. He identified
0
Karubhai Mali's briefcase as the one carried by the
man, before the Court. PW-8 also identified A2 as
the man who disclosed his name as Anil Jadhav.
He identified the Mali family from photographs
shown to him in Court.
E
(e) PW-9 Appa is the Manager of Pallavi Lodge at
Kankavli. The lodge register which was exhibited
(Exh.-89) showed that on 29.10.2003 five persons
including one Amit Shenoy occupied room No. 5 of
the lodge. This witness recognized A-2 as the F
person who called himself as Amit Shenoy. This
witness identified the other four persons from the
photographs shown to him and deposed that they
had left the room on the next day i.e. 30.10.2003
at about 9.00 a.m. The persons identified by him G
from the photographs are the deceased Vijaysinh
Dudhe (DB-2), Dadasaheb Chavan (DB-3), Sanjay
Gavare (DB-4) and Bala Pisal (DB-5).
(f) PW-10 Yogesh Dhake had testified that deceased H
426 SUPREME COURT REPORTS [2014] 3 S.C.R
Dadasaheb Chavan, whose diary was found by the
police, and Vijaysinh Dudhe (DB-3 and DB-2) had
insisted on their being given a sum of Rs. 3,00,000/
- promising that they would return Rs. 6,00,000/-.
According to this witness on 28.10.2003 he gave
B a sum of Rs. 3,10,000/- (which he had collected
from another customer for investment purpose) to
the aforesaid two persons and one Sanjay Gavare
(DB-4) who was also known to him. This witness
has also testified that he was introduced to Vinayak
c Pisal (DB-5) and Accused No. 2. All the aforesaid
persons told him that they would leave for Kankavli
at 11.30 p.m. According to this witness on the next
day deceased Dadasaheb Chavan called to inform
him that they had reached Pallavi Lodge and that
he could be reached on a different mobile number
D
which turned out to be that of A-2.
(g) PW-12 - Dipak Kumar who was working as a
Booking Clerk of Sarvottam Tours and Travels had
deposed that A-2 whom he knew by name had
E booked 5 tickets for the journey on 13.11.2003 from
Borovili to Malwan and that at Varshi one male
person, one female and two children along with A-
2 had boarded the bus.
F (h) PW-14- Jagan Patil, was a friend of Bala @
Vinayak Pisal (DB-5). PW-14's evidence shows
how, under the guise of "money shower" he was
duped Rs 3 lakhs. He had gone with another sum
of Rs.3 lakhs for 'money shower' for the second
time but he was sent back by the accused. This was
G
due to the fact that he had gone to Nandos in a
private vehicle instead of using public transport as
advised by the accused.
(i) PW-15 Amit Patel is the son of the owner of the
H Konkan Plaza Hotel at Kankavli. He testified that he
MAHESH DHANAJI SHINDE v. STATE OF 421
MAHARASHTRA [RANJAN GOGOi, J.]
used to maintain the hot~I register. The hotel A
register which was exhibited (Exh-120) indicated
that deceased Shankar Sarage (DB-1) and Hemant
Thakre (DB-10) and one Samir Sonavane had
arrived at the lodge on 25.09.2003 (1.00 A.M.) and
stayed in room No. 5. The evidence of PW-104 B
Dipak Wagle (handwriting expert) is to the effect
that the handwriting in the register was in the hand
of A-2. (From the above it is evident that A-2 had
used a fake name i.e. Samir Sonavane to sign the
register) c
Q) PW-17 Subhash Chalke testified that he had given
Rs. 1,55,000/- to his friend deceased Shankar
Sarage (DB-1) on 22.09.2003 for the purpose of
money shower. He also testified that he had met A-
1, A-2 and A-3 in the presence of deceased D
Shankar Sarage a couple of days before the money
was handed over to the ~eceased. He further stated
that after he had handed over the money, the
deceased had contacted A-1 from a PCO and
informed him that the money had been arranged. E
Further PW-17 had stated that on 23.09.2003 h~
received a phone call from the deceased that he
along with deceased Hemant Thakre (DB-10) and
A-1 & A-3 were proceeding to Malwan.
F
(k) PW-22 Anil Kisan Garate, a gold smith, testified that
on 21.11.2003 a gold ring was sold to him by A-6
. claiming the same to be of his grandmother. The
said ring has been identified by PW-66, Mohan
Dhoke, brother of deceased Anita Mali, to be
G
belonging to his sister.
(I) PW-18 - Aijaz had deposed as to how he had
been cheated by A-1 of Rs.1,20,000/- on two
different occasions (Rs.60,000/- on each occasion)
by promise of money shower. H
428 SUPREME COURT REPORTS [2014] 3 S.C.R.
A (m) PW-30 Dr. Rajendra Rane haa testified that on
30.10.2003 he treated A-6 for a cut injury on the
right index finger. (knife was recovered at the
instance of A-6)
(n) PW-34 Satish is elder brother of A-7 and another
B
uncle of A-1. He has deposed with regard to
purchase of Tata Sumo vehicle by A-1 in the name
of A-2 and payment of Rs.10,000/- on 24.8.2003
and thereafter payment of Rs.85,000/- in
connection with the aforesaid. This witness has also
c deposed with regard to the nervousness and
apprehension shown by A-1 after the dead bodies
were recovered.
(o) PW-47 Chetan Bhagwan Rawoot, a classmate of
D A-6, testified that on 6.12.2003 A-6 had handed
over a Rado watch to him for safe keeping claiming
that it belonged to one of his customers who had
not paid his dues. PW-66 (brother of deceased
Anita Mali) had identified the said watch as
E belonging to deceased Kerubhai Mali.
(p) PW-49 Hariram Patil had testified that he had
agreed to sell his shop in Eksar, Borivali to the
father of A-6, one Dhanaji Shinde. According to
PW-49 he had received part payments in cash on
F 15.6.2003 and 25.8.2003 and on 1.12.2003 he had
received a cheque for Rs. 50,000/- drawn on
Maratha Cooperative Bank from A-6. On
30.12.2003, the police accompanied by A-6,
arrived at his shop and he handed over Rs.50,000/
G - cash, which A-6 had paid to him earlier.
(q) PW-65 Vimal was engaged in the business of sale
and purchase of second-hand vehicles. He had
deposed regarding the sale of a Tata Sumo vehicle
H to A-1, in the name of A-2 and receipt of
MAHESH DHANAJI SHINDE v. STATE OF 429
MAHARASHTRA [RANJAN GOGOi, J.]
Rs.95,000/- in cash from A-1 in two instalments. A
(r) PW-70 - Harjeet Singh Kochar, used to run a
garage and also used to deal with sal.e and
purchase of second-hand two wheelers. This
witness has deposed that on 20.11.2003, A-2 and B
A-3 (he had identified them) had visited his garage
for purchase of second-hand motor bikes. PW-70
has also deposed that while on 22.11.2003 he sold
one mot0«:ycle to A-2 who paid to him Rs.
17,500/-, on 25.11.2003 A-2 and A-3 visited his
garage again and A-3 purchased another
c
motorcycle for Rs.20,500/-. Both these amounts
were paid to him by the \accused in cash.
(s) PW-75 Santosh Yadav is another relative of A-1.
This witness has corroborated the evidence of PW- D
4-with regard to the visit of A-1 to A-3 to the house
of PW-4 on 5 occasions between October and
December, 2003 and that A-6 had accompanied
the other accused persons on 2 or 3 occasions. He
had also testified that he had seen the accused E
bringing guns and swords to the house of PW-4
who was aware that the accused persons were in
possession of fire arms and other weapons.
(t) PW-76 Dr. Jinturkar was the head of the team of
F
Forensic Experts of Miraj Medical College, Mumbai .
constituted for forensic examination of the remains
of the deceased persons. This witness had testified
that DB-1 to DB-7 were received in the Medical
College, Miraj on 23.12.2003 and DB-8 and DB-9
on 26.12.2003 and DB-10 on 5.1.2004. (The G
findings of the committee proved by this witness
have already been extracted above.)
(u) PW-107 Dr. S. Pandurang Prasad was, at the
relevant time, working as a Senior Technical H
430 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Examiner in the laboratory of DNA and Finger
Printing Services, CDFD, Hyderabad. This witness
has testified that upon the workable bone and blood
samples. he found that DB-1 was the biological
relative of Mr. D.B. Sarge, D-8 was biological father
B of DB-6 & DB-7 was biological mother of DB-6.
DB-6 & DB-9 were also found biologically related.
DB-7 was found biological relative of Ratnakar &
Mohan Tukaram Doke. DB-8 was found biological
son of Mrs. Yamunabhai Nanaji Mali and biological
c father of DB-9. DB-2 was found biological son of
Mr. Vinayak Anandrao Dudhe, aged 80 years and
biological relative of Mr. Ranjitsing Vinayak aged
40 years.
(v) PW-100, Babaji s/o Bhaskarrao Pavade, Branch
D Manager of Mahanagar Cooperative Bank, Turbhe
Branch, New Mumbai, PW-109, Anand Vishnu
Banodkar, Officer attached to Bank of
Maharashtra, Dahisar Branch, PW-110-Vijaykumar
Sangodkar, Branch Manager, State Bank of India,
E Dahisar Branch, PW-111, Krishna Dattaram Parab,
Branch Manager of the Greater Bombay
Cooperative Bank, Borivali Branch and PW-112,
Vidhyadhar Rawool, Branch Manager of Maratha
Sahakari Bank Ltd., Borivali Branch have proved
F the deposit of several cash amounts in the bank
accounts of the accused, their wives or their
immediate relatives. All such deposits were made
in and around the relevant time.
G 15. Ms. Aparna Jha, learned counsel has very elaborately
argued the case of the appellants contending that in the
absence of any direct evidence the prosecution not only has
to prove that circumstances incriminating to the accused had
been laid before the Court but further that the sum total of such
evidence unerringly points to the commission of the alleged
H
MAHESH DHANAJI SHINDE v. STATE OF 431
MAHARASHTRA [RANJAN GOGOi, J.]
offence by the accused leaving no room for any other view. A
Learned counsel has taken us through the relevant parts of the
evidence of the material witnesses to contend that the same
are not free from doubt and ambiguity and are tainted on
account of embellishments and improvements. No
circumstance that implicates the accused-appellants, much B
less a chain of circumstances which admits of no other
possibility except the guilt of the accused, has been established
by the prosecution, in the present case, contends the learned
counsel. In particular, learned counsel has pointed out that the
identity of the dead bodies recovered will always remain in c
doubt in view of the extreme decomposition of the dead bodies
when recovered. It is urged that DNA matching and super-
imposition tests cannot lead to firm and conclusive results,
beyond all reasonable doubt, as regards the identity of dead
bodies. That apart, learned counsel has pointed out that some
0
of the registers of the lodges and hotels where the victims were
allegedly put up by the accused contain over-writings, additions
and deletions which would make the same highly unreliable and
unsafe in order to arrive at any conclusion with regard to the
involvement of the accused.
E
16. Shri Sushi! Karanjakar, learned State counsel, in reply,
has submitted that in a case of the present nature where events
had occurred as a result of a meticulous planning made by the
accused persons, absence of any eye witness or direct
evidence is, but, natural. Learned State counsel has however F
pointed out that the prosecution has systematically laid before
the Court one adverse/incriminating circumstance after the
other, the cumulative effect of which satisfies the test which
circumstantial evidence has to pass through before acceptance
by the Court. According to learned counsel, in the present case, G
not only highly incriminating and material circumstances have
been established beyond doubt by the prosecution, the
cumulative effect of such circumstances points to only one
conclusion i.e. that the accused and no one else who had
committed the crime alleged. In this regard learned State H
432 SUPREME COURT REPORTS [2014] 3 S.C.R.
A counsel has drawn the attention of the Court to paragraph 96
of the judgment of the High Court wherein the circumstances
held to be proved and established by the prosecution has been
set out in seriatim.
17. We may now proceed to analyse the substratum of the
8
evidence adduced by the prosecution as noted above. As
already held, the homicidal nature of death of the concerned
persons and their identities (except 08-10 Hemant Thakre)
has been conclusively established by the prosecution. In so far
C as the alleged involvement of the accused in the crimes alleged
against them is concerned, the evidence and other materials
on record makes it clear that A-1, A-2, A-3 and A-6 were known
fo each other and they were residing in Mumbai. It was
deliberately circulated and spread by the accused that A-1 was
gifted with super-natural powers of causing money showers i.e.
D multiplying money. The evidence on record also establishes that
the accused had been persuading people, including the victims,
to arrange for cash money and bring the same to them at
Malvan or Kankavli so that the same can be multiplied.
Accordingly, the victims, including the deceased persons, after
E obtaining cash money from different sources, had come to
Malvan or Kankavli and they were put up in different lodges/
hotels by the accused. The prosecution had also established
that while staying in the hotels/lodges the victims and the
accused did not use their real names. Specifically, the
F prosecution evidence shows that A-2 arranged for conveyance
and stay of the victims whereas A-3 had assisted A-2 in shifting
the victims from the lodges to the place where the crimes were
committed. The evidence adduced also shows that the victims
had left in the mornings of the days of incident for the Nandos
G plateau alongwith some of the accused. A-1 was the money
spinner and A-6 was in the company of the other accused with
full knowledge of what was going on and with active
participation therein. The victims were missing for days and
their relatives had lodged complaints in different police stations.
H From the place of occurrence articles like wearing apparels,
MAHESH DHANAJI SHINDE v. STATE OF 433
MAHARASHTRA [RANJAN GOGOi, J.]
brief case, diaries etc. were recovered which have been ~roved A
to be belonging to some of the deceased persons whereas
articles like wrist watch, jewellery items etc. also belonging to
the deceased had been recovered from persons who were in
such possession through the accused. All such articles have
been identified by the close relatives of the deceased to be B
belonging to the. respective deceased person(s). Around the
time of the incidents, the accused persons had made
unaccounted cash deposits in their Bank accounts or in the
accounts of their close relatives and A-1, A-2 and A-3 had
purchased automobiles/motorcycles on cash payment. The c
sources of such receipts have not been explained. The above
conclusions which we have thought proper to draw on a
consideration of the evidence of the prosecution appears to be
more or less in conformity with what has been found by the High
Court to have been proved by the prosecution (para 96 of the 0
impugned judgment). In the light of the above facts, we do not
entertain any doubt, whatsoever, that in the present case the
prosecution has succeeded in proving a series of highly
incriminating circumstances involving the accused all of which,
if pieced together, can point only to one direction, namely, that E
it is the accused-appellants and nobody else who had
committed the crimes in question. We, therefore, have no
hesitation in affirming the impugned common judgment and
order of the High Court holding the accused A-1, A-2, A-3 and
A-6 in Sessions Case No. 3/2005 and 5/2005 guilty of
commission of the offences alleged including the offence under F
Section 302 IPC read with Section 120-B IPC. We also agree
with the finding of the High Court that the accused A-1, A-2 and
A-3 in Sessions Case No. 4/2005 are guilty of commission of
the offence under Section 302 IPC read with Section 120-B
IPC, insofar as the death of Shankar Sa rage (DB-1) is G
concerned. ·
18. Having held that the accused-appellants are liable to
be convicted for the offences, inter alia, under Section 302/
1208 IPC, the next question, and perhaps a question of equal H
434 SUPREME COURT REPORTS [2014] 3 S.C.R.
A if not greater significance, that would require consideration is
the measure of punishment that would be just, adequate and
complete. It has already been noted that in two of the cases
the accused-appellants have been awarded death penalty
whereas in the third case the sentence of life imprisonment has
B been imposed in reversal of the verdict of acquittal rendered
by the learned Trial Court.
19. Shri Colin Gonsalves, who has argued the case on
behalf of the appellants in so far as sentence is concerned, has
C submitted that all the accused persons are young and at the
time of commission of the offence they were between 23-29
years of age. None of the accused-appellants have any previous
criminal record; they have spent 10 years in jail custody and
the jail record amply demonstrates that while in custody they
have been educating themselves and have passed or have
D partly completed the graduate course under the Yashahantrao
Chavan Maharashtra Open University. The accused-appellants
have reformed themselves and, if rehabilitated in society, they
can prove to be assets to Society, it is submitted. The
prospects of their committing any further crime, according to
E the learned counsel, is remote. It has also been submitted by
Shri Colin Gonsalves that the accused come from the lowest
strata of society and had committed the crime due to poverty.
All these, according to the learned counsel, are mitigating
circumstances which if balanced against the incriminating
F circumstances of the case would tilt the scales in favour of
commutation of the sentences of death into that of life
imprisonment. Stressing the principle laid down in Bachan
Singh Vs. State of Punjab, 1 Shri Colin Gonsalves has
submitted that the legislative policy under Section 354(3) Cr.PC
G is that life imprisonment is the rule and death sentence is an
exception. It is submitted by Shri Gonsalves that in the present
case the option of life imprisonment does not stand
"unquestionably foreclosed" so as to justify the death penalty
imposed. Reliance has been placed on the decision in Santosh
H 1. (1980) 2 sec 684.
MAHESH DHANAJI SHINDE v. STATE OF 435
MAHARASHTRA [RANJAN GOGOi, J.]
Kumar Satishbhushan Bariyar Vs. State of Maharashtra 2 to A
contend that the circumstances set out above are all mitigating
circumstances that ought to be taken into account at the time
of consideration of the sentence to be imposed. Particular
stress has been laid on the observations in para 159 of the
report that emphasis that must be laid on the possibility of B
reform and rehabilitation of the accused even to the extent of
requiring the State. to prove that the same would not be
possible. Shri Gonsalves has also drawn attention-of this Court
to the decision of this Court in Mui/a & Anr. Vs. State of Uttar
Pradesh 3 (authored by the learned Chief Justice). In particular, c
the observations in para 81 of the report has been placed to
show that the state of poverty of the accused is a mitigating
circumstance that should be taken into account and that the
initial shock of the circumstances in which the crime is
committed needs to be balanced with the possibility of reform
0
of the accused. over a period of time. We were also reminded
that the long period of custody that a death convict has endured
has been held to be a mitigating circumstance in Ramesh &
Ors. Vs. State of Rajasthan4 (Para 76). The decision of this
Court in Shankar Kisanrao Khade Vs. State of Maharashtra 5
(para 52) has been relied upon to contend that "to award the E
death sentence, the "crime test" has to be fully satisfied, that
is, 100% and "criminal test" 0%, that is, no mitigating
circumstance favouring the accused. If there is any
circumstance favouring the accused, like lack of intention to
commit the crime, possibility of reformation, young age of the F
accused, not a menace to the society, no previous track record,
etc. the "criminal test" may favour the accused to avoid the
capital punishment ......... ".
20. On the other hand, learned counsel appearing for the G
State has submitted that the accused-appellants have
2. c2009) s sec 498.
3. c201 O) 3 sec 508.
4. c2011) 3 sec 685.
5. c2013) 5 sec 546. H
436 SUPREME COURT REPORTS [2014] 3 S.C.R
A committed not one but a series of heinous, depraved and
diabolical crimes resulting in the death of innocent and
unsuspecting victims. The crimes have been committed to
satisfy the greed for money. The criminal acts committed by the
accused are the result of a carefully planned and meticulously
s executed conspiracy. Societal needs would justify the upholding
of the sentence of death awarded in the present case to the
accused-appellants. The cry for justice by the families of the
victims cannot fall on deaf ears, it is contended.
C 21. Death penalty jurisprudence in India has been widely
debated and differently perceived. To us, the essential
principles in this sphere of jurisprudence has been laid down
by two Constitution Benches of this Court in Jagmohan Singh
Vs. The State of U.P. 6 which dealt with the law after deletion
of Section 367(5) of the old Code but prior to the enactment of
D Section 354(3) of the present Code and the decision in
Bachan Singh (supra). Subsequent opinions on the subject
indicate attempts to elaborate the principles of law laid down
in the aforesaid two decisions and to discern an objective basis
to guide sentencing decisions so as to ensure that the same
E do not become judge centric.
22. The impossibility of laying down standards to
administer the sentencing law in India was noted in Jagmohan
Singh (supra) in the following terms:
F "The impossibility of laying down standards is at the very
core of the criminal law as administered in India which
invests the judge with a very wide discretion in the manner
of fixing the degree of punishment. ... The exercise of
judicial discretion on well-recognized principles is, in the
G final analysis, the safest possible safeguards for the
accused." (Para 26)
23. Bachan Singh (supra) contained a reiteration of the
aforesaid principle which is to be found in para 197 of the
H s. (1973) 1 sec 20.
MAHESH DHANAJI SHINDE v. STATE OF 437
MAHARASHTRA [RANJAN GOGOi, J.]
report. The same was made in the context of the nbed, A
expressed in the opinion of the Constitution Bench, to balance
the aggravating and mitigating circumstances in any given
case, an illustrative reference of which circumstances are to be
found in the report. Bachan Singh (supra), it may be noted, saw
a shift; from balancing the aggravating and mitigating B
circumstances of the crime as laid down in Jagmohan Singh
(supra) to consideration of all relevant circumstances relating
to the crime as well as the criminal. The expanse of the death
penalty jurisprudence was clearly but firmly laid down in Bachan
Singh (supra) which can be summarized by culling out the c
following which appear to be the core principles emerging
therefrom.
(1) Life imprisonment is the rule and death penalty is
the exception. (para 209)
D
(2) Death sentence must be imposed only in the
gravest cases of extreme culpability, namely, in the
"rarest of rare" where the alternative option of life
imprisonment is "unquestionably foreclosed". (para
209) E
(3) The sentence is a matter of judicial discretion to be
exercised by giving due consideration to the
circumstances of the crime as well as the offender.
(para 197)
F
24. A reference to several other pronouncements made by
this Court at different points of time with regard to what could
be considered as mitigating and aggravating circumstances
and how they are to be reconciled has already been detailed
hereinabove. All that would be necessary to say is that the G
Constitution Bench in Bachan Singh (supra) had sounded a
note of caution against treating the aggravating and mitigating
circumstances in separate water-tight compartments as in many
situations it may be impossible to isolate them and both sets
of circumstances will have to be considered to cull out the H
438 SUPREME COURT REPORTS [2014] 3 S.C.R.
A cumulative effect thereof. Viewed in the aforesaid context the
observations contained in para 52 of Shankar Kisanrao Khade
(supra) noted above, namely, 100% crime test and 0% t.riminal
test may create situations which may well go beyond what was
laid down in Bachan Singh (supra).
B
25. We may also take note of the separate but concurring
judgment in Shankar Kisanrao Khade (sl!pra) enumerating the
circumstances that had weighed in favour of commutation (Para
106) as well as the principal reasons. for confirming the death
C penalty (Para 122).
In para 123 of the aforesaid concurring opinion the cases/
instances where the principles earlier applied to the sentencing
decision have been departed from are also noticed. Though
such departures may appear to. give the sentencing
D jurisprudence in the country a subjective colour it is necessary
to note that standardisation of cases for the purposes of
imposition of sentence was disapproved in Bachan Singh
(supra) holding that "it is neither practicable nor desirable to
imprison the sentencing discretion of a judge or jury in the strait-
E jacket of exhaustive and rigid standards".(Para 195) In this
regard, the observations with regard to the impossibility of
laying down standards to regulate the exercise of the very wide
discretion in matters of sentencing made in Jagmohan Singh
(supra), (Para 22 hereinabove) may also be usefully recalled.
F In fact, the absence of any discretion in the matter of sentencing
has been the prime reason for the indictment of Section 303
IPC in Mithu Vs. State of Punjab 7 • The view of Justice
Chinnappa Reddy in para 25 of the report would be apt for
reproduction hereinbelow:-
G "25. Judged in the light shed by Maneka Gandhi and
Bachan Singh, it is impossible to uphold Section 303 as
valid. Section 303 excludes judicial discretion. The scales
of justice are removed from the hands of the Judge so
soon as he pronounces the accused guilty of the offence.
H 7. AIR 1983 SC 473.
MAHESH DHANAJI SHINDE v. STATE OF 439
MAHARASHTRA [RANJAN GOGOi, J.]
So final, so irrevocable and so irrestitutable is the sentence A
of death that no law which provides for it without
involvement of the judicial mind can be said to be fair, just
and reasonable. Such a law must necessarily be
stigmatised as arbitrary and oppressive. Section 303 is
such a law and it must go the way of all bad laws. I agree B
with my Lord Chief Justice that Section 303, Indian Penal
Code, must be struck down as unconstitutional."
26. In a recent pronouncement in Sunil Dutt Sharma vs.
State (Govt. of NCT of Delhi) 8 it has been observed by this
Court that the principles of sentencing in our country are fairly C
well settled - the difficulty is not in identifying such principles
but lies in the application thereof. Such application, we may
respectfully add, is a matter of judicial expertise and
experience where judicial wisdom must search for an answer
to the vexed question -whether the option of life sentence is D
unquestionably foreclosed? The unbiased and trained judicial
mind free from all prejudices and notions is the only asset which
would guide the judge to reach the 'truth'.
27. Before proceeding to examine the relevant E
. circumstances for adjudging the sentence that would be proper
in the facts of the present case, we may take notice of a recent
pronouncement of this Court in Sushi/ Sharma Vs. The State
of NCT of Delh1"9 wherein in paras 79, 80, and 81 this Court,
once again, had the occasion to take notice of the F
circumstances which had weighed in commutation of the death
sentence as well as those which have formed the basis for
upholding such sentences. Thereafter in para 81 of the report
it has been held that the core of a criminal case lies in its facts
and facts differ from case ·to case. The relevant paragraphs G
mentioned above may now be recalled.
"79. We notice from the above judgments that mere
8. 2013 (12) SCALE 473.
9. 2013 (12) SCALE 622. H
440 SUPREME COURT REPORTS (2014] 3 S.C.R.
A brutality of the murder or the number of persons killed or
the manner in which the body is disposed of has not always
persuaded this Court to impose death penalty. Similarly,
at times, in the peculiar factual matrix, this Court has not
thought it fit to award death penalty in cases, which rested
B on circumstantial evidence or solely on approver's
evidence. Where murder, though brutal, is committed
driven by extreme emotional disturbance and it does not
have enormous proportion, the option of life imprisonment
has been exercised in certain cases. Extreme poverty and
social status has also been taken into account amongst
c
other circumstances for not awarding death sentence. In
few cases, time spent by the accused in death cell has
been taken into consideration along with other
circumstances, to commute death sentence into life
imprisonment. Where the accused had no criminal
D
antecedents; where the State had not led any evidence to
show that the accused is beyond reformation and
rehabilitation or that he would revert to similar crimes in
future, this Court has leaned in favour of life imprisonment.
In such cases, doctrine of proportionality and the theory of
E deterrence have taken a back seat. The theory of
reformation and rehabilitation has prevailed over the idea
of retribution.
80. On the other hand, rape followed by a cold-blooded
F murder of a minor girl and further followed by disrespect
to the body of the victim has been often held to be an
offence attracting death penalty. At times, cases exhibiting
premeditation and meticulous execution of the plan to
murder by leveling a calculated attack on the victim to
G annihilate him, have been held to be fit cases for imposing
death penalty. Where innocent minor children, unarmed
persons, hapless women and old and infirm persons have
been killed in a brutal manner by persons in dominating
position, and where after ghastly murder displaying
H
depraved mentality, the accused have shown no remorse,
MAHESH DHANAJI SHINDE v. STATE OF 441
MAHARASHTRA [RANJAN GOGOi, J.]
.death penalty has been imposed. Where it is established A
that the accused is a confirmed criminal and has
committed murder in a diabolic manner and where it is felt
that reformation and rehabilitation of such a person is
impossible and if let free, he would be a menace to the
society, this Court has not hesitated to confirm .death B
sentence. Many a time, in cases of brutal murder,
exhibiting depravity and sick mind, this Court has
acknowledged the need to send a deterrent message to
those who may embark on such crimes in future. In some
cases involving brutal murders, society's cry for justice has c
been taken note of by this court, amongst other relevant
factors. But, one thing is certain that while deciding whether
death penalty should be awarded or not, this Court has in
each case realizing the irreversible nature of the sentence,
pondered over the issue many times over. This Court has 0
always kept in mind the caution sounded by the
Constitution Bench in Bachan Singh that judges should
never be bloodthirsty but has wherever necessary in the
interest of society located the rarest of rare case and.
exercised the tougher option of death penalty.
E
81. In the nature of things. there can be no hard and fast
rules which the court can follow while considering whether
an accused should be awarded death sentence or not. The
core of a criminal case is its facts and. the facts differ from
case to case. Therefore, the various factors like the age F
of the criminal, his social status, his background, whether
he is a confirmed ctiminal or not, whether he had any
antecedents, whether there is any possibility of his
reformation and rehabilitation or whether it is a case where
the reformation is impossible and the accused is likely to G
revert to such crimes in future and become a threat to the
society are factors which the criminal court will have to
examine independently in each case. Decision whether to
impose death penalty or not must be taken in light of
guiding principles laid down in several authoritative H
442 SUPREME COURT REPORTS (2014] 3 S.C.R
A pronouncements of this Court in the facts and attendant
circumstances of each case."
(Underlining is ours)
28. In the present case, there is no manner of doubt that
B the accused appellants have committed the murder of as many
as 9 innocent and unsuspecting victims who were led to believe
that A-1 had magical powers to multiply money. The deceased,
after being killed, were robbed of the cash amounts that they
had brought with them for the purpose of "money shower". The
C criminal acts of the accused were actuated by greed for money
and such acts were the result of a carefully planned scheme.
The crimes were committed over a period of nearly two months
in three different episodes. The assaults on some of the victims
were merciless and gruesome. Some of the victims were young
D and hapless children i.e. Sanjay Mali and Rajesh Mali.
29. At the same time, all the four accused were young in
age at the time of commission of the offence i.e. 23-29 years.
They belong to the economically, socially and educationally
E deprived section of the population. They were living in acute
poverty. It is possible that, being young, they had a yearning
for quick money and it is these circumstances that had led to
the commission of the crimes in question. Materials have been
laid before this Court to show that while in custody all the
accused had enrolled themselves in Yashahantrao Chavan
F Maharashtra Open University and had either completed the
B.A. Examination or are on the verge of acquiring the degree.
At least three of the appellants (A-2, A-3 and A-6) have, at
different points of time, participated in different programmes
of Gandhian thoughts and have been awarded certificates of
G such participation. In prison, A-2 has written a book' titled
"Resheemganth" and A-3 has been associated with the said
work. There is no material or information to show any
condemnable or reprehensible conduct on the part of any of the
appellants during their period of custody. All the circumstances
H point to the possibility of the accused-appellants being
MAHESH DHANAJI SHINDE v. STATE OF 443
MAHARASHTRA [RANJAN GOGOi, J.].
reformed and living a meaningful and constructive life if they are A
to be given a second chance. In any case, it is not the stand of
the State that the accused-appellants, are beyond reformation
or are not capable of living a changed life if they are to be
rehabilitated in society. Each of the accused have spent over
10 years in incarceration. Though it must not be understood in B
any other manner the entire case against the accused is built
on circumstantial evidence.
30. Balancing the two sets of circumstances i.e. one
favouring commutation and the other favouring upholding the C
death penalty, we are of the view that in the present case the
option of life sentence is not "unquestionably foreclosed".
Therefore, the sentence of death awarded to the accused
should be commuted to life imprisonment. We order,
accordingly, and direct that each of the accused-appellants,
namely, Santosh Manohar Chavan, Amit Ashok Shinde, D
Yogesh Madhukar Chavan and Mahesh Dhanaji Shinde shall
undergo imprisonment for life for commission of the offence
under Section 302/1208 IPC. The sentences awarded to the
accused-appellants by the High Court for commission of all
other offences under the IPC and the Arms Act are affirmed to E
run concurrently. We also make it clear that the custody of the
appellants for the rest oftheir lives will be subject to remissions
if any, which will be strictly subject to the provisions of the
Sections 432 and 433-A of the Cr.PC.
F
31. We accordingly dispose of all the appeals with the
modification of the sentence as above.
R.P. Appeals disposed of.
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