TaxTMI 
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2019 (3) TMI 1970
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....ent. 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 376 (2)(g), Section 307 read with Section 34 of the Indian Penal Code, Sections 396, 397 and 398 of the Indian Penal Code. 1.3. The learned Sessions Court sentenced all the Accused to death for the offences punishable Under Section 302 read with 34 of the Indian Penal Code. 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 ....
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....he 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, also granted permission to Accused Nos. 3, 5 & 6 to file appeals against the judgment of the High Court convicting them, if so advised, and that is how Accused Nos. 3, 5 & 6 have preferred Criminal Appeal Nos. 268-269 of 2019 against the judgment of the High Court convicting them. Hence, all these appeals are now before the Court for a fresh hearing. 3. The prosecution version in nutshell is as follows: On 5/6/2003 Trambak and all his family members as well as the guest Bharat More were chitchatting after dinner and at about 10.30 p.m. seven to eight unknown persons ent....
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....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 & 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 po....
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.... 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 slippers from spot dt. 6.6.2013 Ex. 75 (Co-Panch Kashinath Palande] 12.50 pm - 1.20 pm. Panch for identification of slippers by PW1 dt. 8.6.2003 Ex. 76 [Co-Panch Kashinath Palande] 9 am - 9.45 am. 7 Ibrahim Shaikh Panchnama for spot dt. 25.6.2003 Article A [Co-Panch Shabbi Khatib] 11 am - 12.30 pm. 8 Vimalbai Satote Eye Witness 9 Dr. Dattatraya Gadakh Autopsy Surgeon for Post mortems Notes dt. 6.6.2003 Ex. 81, 86, 89, 91, 93 and Cause of Death Certificates dt. 6.6.2003 Ex. 82, 85, 87, 88, 90, 92, 94, 96, 99, 101. 10 PC Vithal Carried articles to CA. 11 PN Sonawane Carried articles to CA. 12 Vishnu Hagwane Nephew of PW6. First person to reach spot. 13 Ramesh Sonawane Special Executive Magistrate. Conducted TIP of A6 on 9.10.2004 Ex. 120 [Panchas Chaggan Mag Chavan, Rajendra Murlidhar Sar....
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.... officer about Savita Exh. 107 19. Medical certificate of Manoj Exh. 129 20. Medical certificate of Vimalabai Exh. 131 and Exh. 132 21. Medical certificates about the examinations of the Accused Exh. 133 to 135 and Exh. 195 and 196 22. Proclamation orders Exh. 158 23. Panchnama of the identification by Dog Exh. 164 24. Spot map Exh. 169 25. C.A. Certificate Exh. 58 to 72 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 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 Su....
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....l the Accused were imposed the death sentence. It appears that during the pendency of the aforesaid appeal and the confirmation case, Criminal Application No. 1 of 2006 was filed by the State of Maharashtra and Criminal Application No. 2 of 2006 was filed by the Accused persons before the High Court. By the common order dated 14.11.2006 in both these applications, the High Court issued the following directions: (i) The prosecution be allowed to lead additional evidence of the Sub-Divisional Magistrate who conducted the test identification 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....
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....nvestigation, and that it cannot be treated as a substantive evidence and at the most it could be used for the limited purpose of corroboration or contradiction of the testimony of its maker and in any case it cannot be admissible Under Section 6 or Section 32 of the Evidence Act. That thereafter, considering the material on record and appreciating of evidence, the High Court by the impugned judgment and order confirmed the conviction and sentence imposed upon Accused Nos. 1, 2 & 4. However, altered the death sentence to life imprisonment in respect of Accused Nos. 3, 5 & 6. The 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 convict....
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....be said to be an improvement. It is submitted that none of what was stated in the deposition before the Court was stated to the police in the various statements of the said witness that were recorded during investigation and the first time the allegations are made after two and a half years later during the deposition in Court. It is submitted that when the aforesaid was specifically pointed out by the defence before the learned Sessions Court as well as before the High Court, both the courts below have ignored the same by observing that the omissions/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 ....
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....bmitted that the IO (PW20), who made the spot panchnama, had admitted in his evidence that "there is no mention in the panchnama as to whether there was light or not in the shed (hut)". 5.11 It is further submitted by the learned Counsel appearing on behalf of the Accused that though PW1 insists that the electric light was on, he also states that the culprits were using battery torches and were searching in torchlight. He admits that he had told the police that the culprits had switched off the lights when they had started assaulting the 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) ne....
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.... her mind and memory had not faded. The subsequent identification by PW1 and PW8 identifying the present Accused occurred on 25.7.2003 which is more than 1 ½ months after the date of incident wherein PW8 failed to identify A2, and attributed an entirely contrary role to A6. It is submitted that the photo identification being first in point of time and close to the date of offence is of great significance. 5.14 It is further submitted by the learned Counsel appearing on behalf of the Accused that the results of photo identification completely contradict PW8's identification of the Accused in TIP and the court. It is submitted that in the light of this contradiction, her TIP identification and court identification are liable to be set aside. It is further submitted, that 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 t....
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....ants too hail from Maharashtra and are Marathi speakers. If the Accused-Appellants were to speak with the victims they would have spoken in Marathi not in Hindi. The fact that the culprits spoke in Hindi clearly indicates that they were not Marathi speakers. This also points to the false implication of the Accused-Appellants in this offence. 5.19 It is further submitted by the learned Counsel appearing on behalf of the Accused that as such PW8's entire testimony in the court has the omission and/or improvement. It is submitted that prior to her deposition in court, two statements dated 6.6.2003 and 7.6.2003 were recorded by the police and the magistrate respectively. It is submitted that what is stated by PW8 in the court was not stated by her in her 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 tha....
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....2 was involved in Savita's rape. It is submitted that it is on the basis of this statement, uncorroborated by a previous TIP, that A2 has been singled out and given the death sentence. It is submitted that as such the learned Sessions Court erred in holding that PW8 identified all the Accused in the TIP and identified A6 in the second TIP. It is submitted that it is a clear error as PW8 did not identify A2 in the first TIP. 5.22 In so far as the identification of and role attributed to A6 is concerned, 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 ....
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....e sentences were commuted. Her statement during the TIP contradicts her statement in court and gives an inconsistent account of the events. 5.26 It is further submitted by the learned Counsel appearing on behalf of the Accused that if the 'her' refers to PW8 herself, then this role attributed by PW8 to A6 is inconsistent with the role of PW1 attributes to A6 when he identifies him in the parade, which is that A6 had dragged Savita outside the hut. As mentioned earlier, the persons who dragged Savita outside the hut were the ones who raped her. 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, ....
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....first statement of PW8 on 7.6.2003. 5.32 It is further submitted by the learned Counsel appearing on behalf of the Accused that DNA or Forensic evidence will not support the case of the prosecution and/or linked the Accused to the crime. It is submitted that though the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case. 5.33 It is further submitted by the learned Counsel appearing on 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 subm....
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.... an item that could only be possessed by PW1. It is submitted that apart from this chain, nothing was seized or recovered from any of the Accused in this case. It is vehemently submitted that had this crime been committed by the Accused, surely all the stolen property would have been recovered. The seizure of a commonly available silver chain without any distinctive markings is too feeble a link to be held against the Accused. 5.38 It is further submitted by the learned Counsel appearing on behalf of the Accused that no Magistrate/Special Executive Magistrate/Tehsilder has been examined regarding conducting of the TIP for the 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 S....
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....lf of the Accused that while convicting the Accused Under Section 376(2)(g) of the Indian Penal Code, the High Court considered the failure of the Accused to explain their injuries as an incriminating circumstance against them. It is submitted that mere failure of the Accused to explain injuries cannot be held against them if the nature of the injuries are such that they can be caused due to other events. In support of his submission, learned Counsel for the Accused has heavily relied upon the decision of this Court in the case of Ram Sunder Sen 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 ....
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....prosecution to see that the real culprits are not scot free and the innocent persons are not held guilty. It is submitted that the prosecution owes an obligation to be fair and just. It is submitted by the learned Counsel appearing on behalf of the Accused that it is the duty of the prosecution to ensure that all material facts are brought on record so that there might not be any miscarriage of justice. It is submitted that 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 t....
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.... jail since last 16 years were also under trauma and under the hanging sword on them and the threat of the death sentence and therefore they remained under constant stress which are affecting their health and life. It is submitted therefore that this is a fit case to exercise the powers Under Article 142 of the Constitution of India to award a reasonable compensation. 6. All these appeals preferred by the Accused are vehemently opposed by Shri Nishant Katneshwarkar, learned standing counsel for the State of Maharashtra. 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 f....
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....one of the articles cannot be ignored. 6.7 It is further submitted that even some of the Accused failed to explain the injuries found on their bodies in their statement Under Section 313 of the Code and therefore an adverse inference has rightly been drawn against them and they are rightly convicted. 6.8 It is further submitted by the learned Counsel appearing for 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 dea....
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.... the case of the prosecution, the Accused committed the murder, robbery as well as the rape of one lady, named Savita and PW8 - Vimalabai. As per the case of the prosecution, the Accused stripped the ornaments from the wife and daughter of Trambak, and also took Rs. 3,000/- from him. As per the case of the prosecution, A2 raped Savita and took her outside the hut and thereafter she was killed. As per the case of the prosecution, one Trambak was living in the hut in the guava orchard with 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....
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..... There is no explanation forthcoming from the prosecution for the delay in conducting the TI parade. Therefore, the identification of the Accused by PW1 & PW8, which is the sole basis for convicting the Accused and awarding the death penalty, is required to be considered very minutely. 9.4 There is very serious doubt whether at the time of incident, there was sufficient light in the hut. Even, according to PW1 & PW8, the culprits had used torches. The incident had occurred at 10:30 p.m. The hut was made of gunny bags and its walls were made from stems 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 too....
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....re is no explanation by the prosecution in conducting the TI parade belatedly. As observed hereinabove, and for the reasons stated above, it is very doubtful whether PW1 & PW8 could have properly seen the Accused. As observed hereinabove, there was no specific description of the Accused given by the said two witnesses. There are contradictions with respect to the age of some of the Accused. PW1 has categorically stated that the 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 ....
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.... The panchnama also does not state that the seized property was sealed. The chain was described as "one white metal chain with 30 links, middle link is broken and tied with a string. The value of the same was stated to be zero". The chain had no special markings on it and the same is freely available. Though the prosecution claimed that the said chain belongs to PW1, PW1 had admitted that he has not 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 h....
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....lso a suppression of material fact by PW8. In fact, the aforesaid was withheld by the prosecution during the trial. Only during hearing of the appeal before the High Court, it came to the light and therefore pursuant to the order passed by the High Court she was recalled and when she was confronted with the above, very surprisingly, she stated that four persons who were identified by her were the same persons out of the present Accused. However, such a stand is just contrary to the deposition of PW13 - special executive magistrate. What is stated by her in her deposition when she was recalled pursuant to the order passed by the 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....
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....h Court by the defence, the High Court unfortunately has not accepted the case of the defence by observing that the statement of PW8 recorded by PW13 - special executive magistrate recorded on 7.6.2003 cannot be said to be a dying declaration and it can be said to be a mere statement which can be used only for corroboration and contradiction. Therefore, even as per the High Court also, her statement dated 7.6.2003 recorded by PW13 in which she 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....
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....hts at a much higher pedestal and the Accused is presumed to be innocent till proven guilty. The alleged Accused is entitled to fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic Rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 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....
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....mmitted the offence from the album of the photographs of the notorious criminals. Thus, special executive magistrate being an independent witness was supposed to state the correct facts before the court. At this stage, it is required to be noted that PW13 - Ramesh Sonawane - Special Executive Magistrate is the same Special 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....
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.... Accused guaranteed Under Articles 20 & 21 of the Constitution of India. 12. In view of the above and for the reasons stated above, the conviction and sentence imposed by the High Court cannot be sustained. The prosecution has failed to prove the case against the Accused beyond reasonable doubt. Therefore, we have no other alternative, but to acquit the Accused for the offences for which they are convicted. 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, u....
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.... the case, and in exercise of our powers Under Article 142 of the Constitution of India, we direct the State of Maharashtra to pay a sum of Rs. 5,00,000/- to each of the Accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned Accused on proper identification. The learned Sessions Court is directed to see that the said amount shall be used for their rehabilitation. At the cost of the repetition, it is observed that the aforesaid compensation is awarded to the Accused and in the peculiar facts and circumstances of the case and 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 ....
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....partmental action for their lapses. 23. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned 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 s....