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 3 rdAd-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 IPC, Section 376 (2)(g), Section 307 read with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. 1.3 The learned Sessions Court sentenced all the accused to death for the offences punishable under Section 302 read with 34 of the IPC. The learned Sessions Court also imposed separate punishments for other offences for which they were convicted. All the convicted accused filed Criminal Appeal No. 590/2006 before the High Court of Bombay against the order of conviction and sentence imposed by the learned Sessions Court. As observed hereinabove, the learned Sessions Court made a reference to the High Court for confirmation of the death sentence, which was registered as Confirmation Case No. 2 of 2006. 1.4 That the High Court, while upholding the conviction and death sentence of original accused nos. 1, 2 8s 4, altered the death sentence in respect of original accused nos. 3, 5 8s 6 to life imprisonment along with fine. Accused nos. 1, 2 8& 4 were also convicted for the offences punishable under Section 376(2) (g) of the IPC and they were sentenced to suffer 10 years rigorous imprisonment. The High Court set aside the conviction and sentence under section 376(2)(g) in respect of accused nos. 3, 5 8& 6. The High Court confirmed the conviction of the accused for the offences punishable under Section 307 read with Section 34 of the IPC, Section 397 read with Section 395 of the IPC and Section 396 of the IPC.
(2.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the Bombay High Court, original accused nos. 1, 2 8s 4 have preferred Criminal Appeal Nos. 1008-1009 of 2007. The State of Maharashtra has also filed Criminal Appeal Nos. 881-882 of 2009 challenging the alteration of death sentence to life imprisonment in respect of original accused nos. 3,5, 8s 6 are concerned. The State has also challenged the acquittal of original accused nos. 3, 5 8s 6 for the offence punishable under Section 376(2)(g) of the IPC. 2.1 That by judgment and order dated 30.04.2009, this Court dismissed the appeals preferred by original accused Nos. 1, 2 8s 4 and allowed the appeals preferred by the State and restored the capital punishment imposed by the learned Sessions Court so far as accused Nos. 3, 5 8s 6 are concerned. That the judgment and order dated 30.04.2009 passed by this Court was sought to be reviewed at the instance of the original accused nos. 3, 5 8s 6 on the ground that accused nos. 3, 5 8s 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 8s 6, but qua other accused also by observing that the evidence is common and the offences relate to the same incident, and therefore, it is appropriate and proper that the judgment dated 30.04.2009 should be recalled in its entirety, in relating to all the six accused. While allowing the review applications, this Court recalled the judgment dated 30.04.2009 and directed the criminal appeals to be restored to the file of this Court and directed that the appeals be placed before the appropriate Bench for hearing afresh. It is to be noted that this Court while restoring the appeals which have been preferred by the original accused nos. 1, 2 8s 4 and State of Maharashtra, also granted permission to accused nos. 3, 5 8s 6 to file appeals against the judgment of the High Court convicting them, if so advised, and that is how accused nos. 3, 5 8s 6 have preferred Criminal Appeal Nos. 268-269 of 2019 against the judgment of the High Court convicting them. Hence, all these appeals are now before the Court for a fresh hearing.
(3.) The prosecution version in nut and shell 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 on 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., so as to rob the house members and collect more money and ornaments etc. They started beating the family members and Trambak was the first person who received assault. Sandeep and other members of the family told the dacoits to take away whatever they could collect from the house but no family members should be assaulted. At this stage Sandeep was assaulted and so also Shrikant @ Bhurya, Bharat and Manoj. The dacoits did not spare Vimalabai as well. They tied hands and legs of all the family members except Manoj and Vimalabai. As a result of assault Manoj, Trambak, Sandeep, Shrikant and Bharat had fallen unconscious. Three of the dacoits dragged Savita out of the hut and took her to the guava garden. Two of the dacoits then picked up Vimalabai and dragged her towards the well. One of them raped her near the well and then she was taken to the guava garden where Savita was taken. Vimalabai was assaulted and brought back to the hut. After some time the three dacoits brought Savita back but in naked condition and with injuries on her body. When the dacoits had 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, 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 well as, on the person of Manoj and Vimalabai were seized. From the spot some weapons like wooden handle, spade with handle, yokpin and sickle were also seized. The seized articles were sent for chemical analysis and CA reports from Exhibit 58 to Exhibit 72 were received. That original accused nos. 1 and 2 came to be arrested under arrest panchanamas (Exhibits 44 and 45) on 23.6.2003 by the Crime Branch. According to the prosecution, the police during the course of investigation also got information that some other accused were also involved in a separate crime registered with the police station at Bhokardhan in Jalna district on 19.06.2003 and the police, therefore, filed an application before the competent Court seeking transfer of the accused in Crime No. 74 of 2003 registered with the Bhokardhan police station and finally accused nos. 3 to 5 came to be arrested on 27.06.2003 under arrest panchanamas (Exhibits 53, 54 and 55) after their custody was transferred from the police station at Bhokardhan. That on the arrest of accused nos. 1 to 5 their clothes were seized and they were subjected to medical examination. On medical examination, some injuries were found on accused nos. 1, 2 8& 4. The aforesaid accused nos. 1, 2 8& 4 were seen to have sustained some injuries within three weeks. Medical certificates were issued by the concerned doctor (Exhibits 133 to 135 and Exhibits 195 8& 196). That during the course of the investigation, test identification parade of accused nos. 1 to 5 was held on 25.07.2003 by the Executive Magistrate. In the test identification parade, PW1 - Manoj Satote identified the five accused. PW8 - Vimalabai also identified accused nos. 1, 3, 4 and 5 as the unknown persons who had entered the hut and assaulted the family members. However, she could not identify accused no.2. It appears that thereafter accused no.6 came to be arrested on 07.10.2004 and his test identification parade was held on 9.10.2004. Both PW1 and PW8 identified the said accused also. 3.3 On completion of the investigation and finding prima facie case against the accused, the Investigating officer filed a charge sheet against all the accused for the offences punishable under Sections 395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. That the learned Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 43/2004. 3.4 To prove the case against the accused, the prosecution led oral as well as documentary evidence. The prosecution examined as many as 25 witnesses as under: JUDGEMENT_19_LAWS(SC)3_2019_1.html 3.5 Apart from the aforesaid oral evidence, the prosecution brought on record and relied upon the following documentary evidence: JUDGEMENT_19_LAWS(SC)3_2019_2.html 3.6 That after the closing pursis was submitted by the prosecution, further statement of the accused under Section 313 of the Code was recorded, where they denied having committed any offence, as alleged. 3.7 That thereafter, on appreciation of the evidence on record, both oral as well as documentary, the learned Sessions Court held all the accused nos. 1 to 6 guilty for the offences punishable under Sections 395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC, and sentenced the accused as under: "1. The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya Appa Shinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde, (5) Bapu Appa Shinde and (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 Sec. 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 convicted for the offence punishable under section 302 r.w. 34 of Indian Penal Code. They are sentenced to death for the offence punishable under section 302 r.w. 34 of Indian Penal Code. It is directed that they be hanged by their necks till they are dead. The sentence is subject to the confirmation by the Hon'ble High Court. 4. The accused Nos. 1 to 6 are convicted for the offence punishable under section 376(2) (g) of Indian Penal Code and they are sentenced to suffer R.I. for a period of 10 years each with fine of Rs. 200/- each. In default of payment of fine, to suffer further R.I. for a period of 1 month each. 5. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 307 r.w. 34 of Indian Penal Code. They are sentenced to suffer R.I. for 5 years each with fine of Rs.200/- each. In default of payment of fine to suffer further R.I. for a period of 1 month each. 6. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 397 r.w. section 395 of Indian Penal Code. They are sentenced to suffer R.I. for a period of 7 years each with fine of Rs. 200/- each. In default of payment of fine to suffer further R.I. for 1 month each. 7. The Accused Nos. 1 to 6 are convicted for the offence punishable under section 396 of Indian Penal Code. And they are sentenced to suffer R.I.for 10 years each with fine of Rs. 200/- each. In default of payment of fine to suffer further R.I. for 1 month each. 8. The Accused Nos. 1 to 6 are acquitted of the offence punishable under section 135 of Bombay Police Act. 9. All the sentences to run concurrently." ;