- (1.) Leave granted in SLP (Crl.) Nos. 8457-58 of 2008 which have been filed by the State of Maharashtra questioning alteration of death sentence to life sentence.
(2.) These appeals are interlinked and are disposed of by this common judgment. By the impugned judgment a Division Bench of the Bombay High Court dispose of the reference made by learned Third Adhoc Additional Sessions Judge, Nasik, under Section 366 of the Criminal Procedure Code, 1973 (in short the Code ) for confirmation of death sentence. While upholding the conviction and the death sentence of accused Nos. 1, 2 & 4, the sentence in respect of the accused Nos. 3, 5 & 6 was altered to life sentence with fine. Accused Nos. 1, 2 & 4 were also convicted for offence punishable under Section 376(2)(g) of the Code and sentenced to suffer rigorous imprisonment for 10 years. The order of conviction and sentence under Section 376(2)(g) in respect of accused Nos. 3, 5 & 6 was set aside. The accused persons were convicted for offence punishable under Section 307 read with Section 34 and sentenced to five years imprisonment each. They were also convicted under Section 397 read with Sections 395 & 396 IPC. The accused persons filed the criminal appeals while the State has filed the appeals for alteration of the life sentence to death and also challenged the acquittal of three of the accused persons for offence punishable under Section 376 IPC.
(3.) Prosecution version in a nutshell is as follows: On 5/6/2003 Trambak and all his family members as well as the guest Bharat More were chitchatting after dinner and at about 10.30 p.m. seven to eight unknown persons entered his hut and all of them were wearing banyan and half pant and they started threatening the family members. They demanded money as well as ornaments and Trambak took out Rs. 3000/-from his pocket and handed over to one of them. Some of the gang members forcibly took away the mangalsutra as well as ear-tops and dorley from the person of Vimalabai, ear-tops from the person of Savita and silver rings which were around her feet. From the person of Manoj, they removed a silver chain and a wrist watch. Thereafter they went out of the hut and consumed liquor. After some time they re-entered the hut with weapons like knife, axe handle, sickle, spade with handle and yokpin etc., to rob the house members and collect more money and ornaments etc. They started beating the family members and Trambak was the first person who received assault. Sandeep and other members of the family told the dacoits to take away whatever they could collect from the house, but no family members should be assaulted. At this stage Sandeep was assaulted and so also Shrikant @ Bhurya, Bharat and Manoj. The dacoits did not spare Vimalabai as well. They tied hands and legs of all the family members except Manoj and Vimalabai. As a result of assault Manoj, Trambak, Sandeep, Shrikant and Bharat became unconscious. Three of the dacoits dragged Savita out of the hut and took her to the guava garden. Two of the dacoits then picked up Vimalabai and dragged her towards the well. One of them raped her near the well and then she was taken to the guava garden where Savita was taken. Vimalabai was assaulted and brought back to the hut. After some time, the three dacoits brought Savita back in naked condition and with injuries on her body. When the dacoits had entered the hut at about 10.30 p.m. the light bulb in the hut was burning and TV was on. The dacoits increased the volume of the tape recorder and after they dropped Savita in the hut, they put on shoes and started walking on the persons lying injured and they thought that all of them were dead. Vimalabai (PW 8) lost her consciousness around 12 O Clock 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, Manoj (PW1) and his mother Vimalabai (PW 8) survived. They are the eye witnesses to the prosecution case. On the basis of information given, investigation was undertaken. The clothes from the dead bodies of five deceased persons as well as the clothes on the person of Manoj and Vimalabai were seized. From the spot some weapons like wooden handle, spade with handle, yokpin and sickle were also seized. The seized articles were sent for chemical analysis and CA reports from Exhibit 58 to Exhibit 72 were received. In view of the gravity of the incidence, the police machinery was obviously under tremendous pressure and it sought assistance from the neighbouring districts like Ahmednagar, Aurangabad, Jalgaon and Dhule etc. The first breakthrough came on 23/6/2003 when accused Nos. 1 and 2 came to be arrested under arrest panchanamas (Exhibits 44 and 45) by the Crime Branch. The police during the course of investigation also got information that some other accused were also involved in a separate crime registered with the police station at Bhokardhan in Jama district on 19/6/2003 and the police, therefore, filed an application before the competent Court seeking transfer of the accused in Crime No. 74 of 2003 registered with the Bhokardhan police station and finally accused Nos. 3 to 5 came to be arrested on 27.6.2003 under arrest panchanamas (Exhibits 53, 54 and 55) after their custody was transferred from the police station at Bhokardhan. On the arrest of accused Nos. 1 to 5 their clothes were seized and they were subjected to medical examination. Dr. Satish Vasant Shimpi (PW 16) examined accused Nos. 3, 4 and 5 on 27/6/2003 and issued medical certificates at Exhibits 133 to 135. Of these three accused, accused No. 4 - Raju Mhasu Shinde was seen to have sustained injuries within three weeks. Accused Nos. 1 and 2 were examined by Dr. Vilas Patil (PW 24) on 23/6/2003. Both the accused were seen to have sustained injuries within three weeks and the medical certificates were issued at Exhibits 195 and 196. During the course of investigation and it is evident that the statement of Sunita wife of Raja Shinde was recorded at Exhibit 77A in the presence of Ibrahim Wazir Shaikh (PW 7) on 25/6/2003. Test identification parade of the accused Nos. 1 to 5 was held on 25/7/2003 in the jail premises and Manoj (PW1) identified the five accused as the unknown persons who had entered their hut and assaulted the family members Vimalabai (PW8) also identified Accused Nos. 1, 3, 4 and 5 as the unknown persons who had entered the hut and assaulted the family members. She however, could not identify accused No. 2 Raja Appa Shind. Accused No. 6 came to be arrested on 7/10/2004 and his TI parade was held on 9/10/2004. Both PW 1 and PW 8 identified the said accused as one of the unknown persons who entered their hut and assaulted the family members. The test identification report at Exhibit 120 was proved through the evidence of the Special Executive Magistrate, Ramesh Sonawane (PW 13). The Trial Court convicted the accused persons as noted above. Because of the award of death sentence, reference was made to the High Court. Accused persons also filed appeals. Basic question related to evidence relating to Test Identification Parade (in short TI Parade ). High Court found the same to be credible.;