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TMI Blog2019 (3) TMI 1970X X X X Extracts X X X X X X X X Extracts X X X X ..... nde, the mother of A5 on 26.06.2003. 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 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 - 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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt - 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. 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 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. 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dv., Ms. Payoshi, Adv., Mr. K. Paari Vendhan, AOR For Respondent : Ms. Deepa M. Kulkarni, Adv., Mr. Anoop Kandari, Adv., Mr. Nishant Ramakantrao Katneshwarkar, AOR, Mr. T. Harish Kumar, AOR, Mrs. Geetha Kovilan, AOR, Mr. Rahul Kaushik, AOR JUDGMENT M.R. Shah, J. 1. All these appeals are interlinked, and as such, 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 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. 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 Indian Penal Code, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order dated 30.04.2009 passed by this Court was sought to be reviewed at the instance of the original Accused Nos. 3, 5 6 on the ground that Accused Nos. 3, 5 6 had no opportunity to be heard by the Bench, before the appeals filed by the State of Maharashtra for enhancement of sentence were decided. 2.2 That a three Judge Bench of this Court by its order dated 31.10.2018 allowed the review applications, and recalled the judgment and order dated 30.04.2009 rendered by this Court not only qua Accused Nos. 3, 5 6, but qua other Accused also by observing that the evidence is common and the offences relate to the same incident, and therefore, it is appropriate and proper that the judgment dated 30.04.2009 should be recalled in its entirety, relating to all the six Accused. While allowing the review applications, this Court recalled the judgment dated 30.04.2009 and directed the criminal appeals to be restored to the file of this Court and directed that the appeals be placed before the appropriate Bench for hearing afresh. It is to be noted that this Court while restoring the appeals which have been preferred by the original Accused Nos. 1, 2 4 and State of Maharashtra, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 43/2004. 3.4 To prove the case against the Accused, the prosecution led oral as well as documentary evidence. The prosecution examined as many as 25 witnesses as under: PW Name 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 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. 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. Panch for Seizure Panchnama for slippe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PI Ramesh Patil Searched houses of A1, A3, A4, A5 on 26.6.03 Panchnamas Ex. 48-52, 183. 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 Mhaske] 1.30 2.30 pm. 22 PI Shafiuddin Sayyad Recorded FIR 23 PI Sharad Gavane Recorded statement of PW8 dt 6.6.03 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 dt. 25.7.03 for A1-A5 Ex. 224-228, explanation Ex. 229. 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 395, 302 read with 34 of the Indian Penal Code, Section 376 (2)(g), Section 307 read with Section 34 of the Indian Penal Code, Sections 396, 397 and 398 of the Indian Penal Code, 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, (5) Bapu Appa Shinde (6) Surya alias Suresh s/o Nagu alias Gangaram Sinde 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 Section 398 of Indian Penal Code. 2. The offence punishable Under Section 397 r.w. 395 of Indian Penal Code is proved. It includes offences punishable Under Sections 395 and 398 of Indian Penal Code, so no separate punishments are given for the same. 3. The Accused Nos. 1 to 6 are conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sub-Divisional Magistrate who conducted the test identification parade in relation to Accused Nos. 1 to 5 and all relevant documents pertaining thereto. (ii) The defence be permitted to recall and cross-examine PW-8 in relation to Exh. 122 which is already on record. (iii) In the event contradictions are established on record in the cross-examination of PW-8, the learned Trial Judge should also recall PW-13 for directions of those contradictions, if any. (iv) Since the matter of confirmation is pending, it is desired that the necessary recording of additional evidence be completed before 7th of January, 2007. List the matter for further orders in relation to hearing on 9th January, 2007. The record may be 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 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 Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os. 1, 2 4. However, altered the death sentence to life imprisonment in respect of Accused Nos. 3, 5 6. The High Court also acquitted Accused Nos. 3, 5 6 for the offence Under Section 376(2)(g) of the Indian Penal Code. 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, 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. 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 therefore that it was very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the High Court, both the courts below have ignored the same by observing that the omissions/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. 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 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 had used torches. It is submitted that it would be highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police that the culprits had switched off the lights when they had started assaulting the victims. It is submitted that even if it is assumed that there was some 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 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; (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 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. 5.16 It is further submitted by the learned Counsel appearing on 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 id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 that her failure to give any information or statement to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IP. 5.22 In so far as the identification of and role attributed to A6 is concerned, It is further submitted by the learned Counsel appearing on 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 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 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 magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat A6 had dragged Savita outside the hut. As mentioned earlier, the persons who dragged Savita outside the hut were the ones who raped her. 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. 5.28 It is further submitted by the learned Counsel appearing on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel appearing on 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 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. 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 Appellants by either matching them or making the Accused were them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Narender, (2016) 15 SCC 440. 5.44 It is further submitted by the learned Counsel appearing on behalf of the Accused that one of the reasons the High Court has convicted the Accused Under Section 376(2)(g) of the Indian Penal Code 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 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 while doing the labour work or agricultural work. It is submitted that therefore non-explanation of the said injuries by the Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be any miscarriage of justice. It is submitted that 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 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 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 would have gon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 6. All these appeals preferred by the Accused are vehemently opposed by Shri Nishant Katneshwarkar, learned standing counsel for the State of Maharashtra. 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 Indian Penal Code, Section 376 (2)(g), Section 307 read with Section 34 of the Indian Penal Code, Sections 396, 397 and 398 of the Indian Penal Code. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing for 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. 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 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. 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 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta and took her outside the hut and thereafter she was killed. As per the case of the prosecution, one Trambak was living in the hut in the guava orchard with his family (wife, three sons and one daughter). In the unfortunate incident, Trambak, his daughter Savita, his nephew Bharat, his sons Sandeep and Bhurya died. PW1 PW8 - son Manoj and Trambak's wife Vimalabai survived. Therefore, according to the prosecution case, PW1 PW8 were the eye witnesses to the whole incident. Therefore, as such, the case rests on the deposition of these two eye witnesses PW1 PW8, and they identified the Accused either in the TI parade and/or before the Court. Considering the entire material on record, it appears that the prosecution in support of its case has solely relied on the evidence of identification. At this stage, it is required to be noted that though the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case. Though, as per the case of the prosecution, the Accused stripped the ornaments from the wife and daughter of Trambak and took ₹ 3,000/- from Trambak, there is no recovery except one broken white metal chain, which was allegedly sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 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 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here are contradictions with respect to the age of some of the Accused. PW1 has categorically stated that the 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 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 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, in the present case and even admitted by PW13 - special executive magistrate that dummy persons were selected by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Vimalbai Trambak Satote. Accordingly, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. 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 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 investigation was carried out qua them. It is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, 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 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 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Executive Magistrate is the same Special 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. 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 prosecution, there were 7-8 persons who committed the offence. PW8 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 the present case are added in the present case, it can be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable doubt. Therefore, we have no other alternative, but to acquit the Accused for the offences for which they are convicted. 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 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 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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: 22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apse 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 may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel 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. 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 decisive. The instant direction shall also be given effect to within 6 months. 15.1 Murder and rape is indeed a reprehensi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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