TaxTMI 
TaxTMI 
2019 (3) TMI 1970
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....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 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....
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....t 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, 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 ....
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....s 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 & 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 informati....
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.... 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 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....
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.... of Trambak Exh. 88 12. P.M. Notes of Bhurya Exh. 89 13. Final cause of death of Bhurya Exh. 90 14. P.M. Notes of Sandip Exh. 91 15. Final cause of death certificate of Sandip Exh. 92 16. P.M. Notes of Bharat More Exh. 93 17. Final cause of death certificate of Bharat Exh. 94 18. The opinion of medical 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 th....
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.... 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. 4. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the learned Sessions Court, all the Accused preferred Criminal Appeal No. 590/2006 before the High Court. The learned Sessions Court made a reference to the High Court as all 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....
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....idence from the Court and, in fact, there was no investigation whatsoever with respect to those four persons, who were identified by PW8. The High Court did not agree with the submission on behalf of the Accused and ignored the Exhibit 122 as dying declaration of PW8 - Vimalabai, recorded by the Executive Magistrate, Sonawane on the ground that PW8 subsequently survived, Exhibit 122 cannot be said to be a dying declaration, and that it could at the most be termed as her previous statement during the course of investigation, 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 Ind....
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....the Accused that according to the two eye witnesses, PW1 & PW8, the offence was committed by 7-8 persons. It is submitted however that PW1, as per the deposition of PW12 - nephew of the landlord of Guava Orchard who was the first person to reach the spot, told him that offence was committed by four persons. 5.6 It is further submitted by the learned Counsel appearing on behalf of the Accused that PW8's entire evidence about the incident and the role played by the different Accused persons is an omission and/or it can 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....
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.... unconscious during the incident; PW1 very early when the incident took place, and PW8 a little later. They both had been severely injured and their capacity to observe and notice the features of the assailants would have been severely compromised. 5.10 It is further submitted by the learned Counsel on behalf of the Accused that the incident occurred at night 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 was no electricity meter in the hut. It is submitted 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 ....
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....phs of 4 people from a file of notorious criminals shown to her by PW13 - Ramesh Sonawane, Special Executive Magistrate in the hospital as those who committed the offence. The present Accused were not among those four persons identified by PW8 from the photo album. 5.13 It is further submitted by the learned Counsel appearing on behalf of the Accused that PW8's statement identifying 4 other people on 7.6.2003 is the first identification made less than 2 days after the incident and is closest to the date of incident. This identification was made by PW8 when the images were still fresh in 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....
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.... the Accused that similarly in her testimony in Court, PW8 had said that the offence was committed by 7 persons. In her first statement to the police, she had said that the offence was committed by 7-8 persons. It is submitted that the likelihood of mistaken identification by PW1 and PW8 of the Accused is strengthened by the following facts: (i) PW1 has repeatedly stated that the culprits spoke with them in Hindi. According to him, they were also speaking amongst themselves in Hindi. PW8 has confirmed this. The victims are all Marathi speakers. According to the police investigation, the Accused-Appellants 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 ....
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....ness. 5.21 In so far as A2 is concerned, it is further submitted by the learned Counsel appearing on behalf of the Accused that though PW8 claimed that A2 had taken Savita out of the hut and raped her and brought her back in a naked condition, she was unable to identify A2 in TIP. It is submitted that her identification in court of A2, unsupported by a previous identification in the TIP cannot be accepted, especially given the light conditions at that time and the fact that she herself became unconscious during the proceedings. It is submitted that there is no recovery from A2. PW8 is the only one who said that A2 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 be....
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....appearing on behalf of the Accused that PW13's statement attributed to PW8 that A6 had dragged Savita outside the hut is contradicted by her oral evidence in court where she says that A1, A2 and A4 dragged Savita outside the hut. The persons who had dragged Savita outside the hut were obviously the same ones who had raped her. In her evidence in court PW8 was quite clear that it was three persons who done this, and she named A1, A2 and A4 as those three. In court, she does not attribute this role to A6. It was on this basis that the High Court upheld their death sentence and distinguished their case from the others whose 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 ....
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....at she was not shown the photographs, she was not telling the truth. It is submitted that when she was called for further cross-examination, pursuant to the order passed by the High Court, she then admitted that, (i) police had shown 4 photographs of the Accused persons, and that she herself told that those were the same Accused persons of the incident; and (ii) that when my statement was recorded by the magistrate, the persons who I had identified as Accused persons were some other persons other than the present Accused. It is therefore submitted that the aforesaid is just contrary to what the executive magistrate has recorded in the 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 ....
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....as allegedly seized during the house search of Bhojubai Appa Shinde, the mother of A5 on 26.6.2003. Her signature is also not there on the panchnama. Moreover, the panchnama does not state that the seized property was sealed. It is submitted that the chain is described as "one white metal chain with 30 links, middle link is broken and tied with a string. Value 0". It is submitted that the chain had no special markings on it and was of a mass-produced type that is freely available. The prosecution claimed that this belonged to PW1. PW1 himself admitted that he had not given any description of the chain to the police. A white metal chain is not such 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/Speci....
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....oven that the blood group belonged to the Accused. 5.42 It is further submitted by the learned Counsel appearing on behalf of the Accused that PW8 on whose testimony the prosecution is relying upon to convict the Accused Under Section 376(2)(g) of the Indian Penal Code failed to identify A2 in the TIP conducted on 25.7.2003 and identified A2 for the first time in court. It is submitted that in the absence of any previous identification of A2, it is extremely dangerous to convict A2 Under Section 376(2)(g) of the Indian Penal Code, solely on the basis of identification in court by PW8. 5.43 It is further submitted by the learned Counsel appearing on behalf 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....
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.... It is submitted by the learned Counsel that despite PW8 identified the 4 persons having committed the offence, neither they were arrested nor there was any further investigation with respect to those four persons, who were identified by PW8. It is further submitted, that even the executive magistrate, who even subsequently conducted the TI parade on 25.7.2003 did not say anything in his deposition. It is submitted by the learned Counsel that therefore the prosecution has failed to perform its duty insofar as the fair investigation is concerned. It is submitted that the duty of the prosecution is not to get the conviction of some persons, but it is the duty of the 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....
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....as they suffered a lot and they are in jail since last 16 years and for no fault of them they are languishing in the jail since last 16 years and their valuable years have gone in the jail, all of them are entitled to a reasonable compensation. It is submitted that in fact out of the six Accused who were convicted, one of the Accused was a juvenile. Till the year 2012 and till he was declared a juvenile and thereafter released, he was under a constant trauma which affected his health, physical as well as mental. In support of the above, he has relied upon a certificate of one Psychiatrist Doctor, Dr. Ashit Sheth. It is further submitted that even other Accused who are in 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 Mahar....
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....r in the TIP and/or before the Court. It is submitted that merely because some other four persons who might have been identified by PW8 might not have been arrested and/or there was no further investigation qua them, the said benefit cannot be given to the Accused in the present case as all the Accused persons were identified by PW1 & PW8. 6.6 It is further submitted by the learned Counsel appearing on behalf of the State that in the present case one of the articles stolen from the place of the incident was found from the house of the one of the Accused and therefore to that extent recovery was made and therefore merely because other articles looted were not found, the recovery of 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 ....
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....udgment and order passed by the High Court insofar as acquitting the original Accused Nos. A3, A5 and A6 for the offences Under Section 376(2)(g) of the Indian Penal Code and commuting the death sentence to life imprisonment. 9. We have perused and gone through in depth the impugned judgment and order passed by the High Court as well as the judgment and order passed by the learned Sessions Court. We have gone through and considered in detail the evidence on record, both oral as well as documentary. 9.1 As observed hereinabove, and even as per the case of the prosecution, the incident occurred after 10:30 p.m. at night. The victims were living in a hut made by gunny bags in guava orchard. As per 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 wit....
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.... A2 in the Court as the person who had taken Savita outside the hut, and raped her. However, she was not able to identify him in the TI parade. The first TI parade was conducted on 25.07.2003. The offence occurred on 5.6.2003; Accused Nos. 1 to 5 were arrested on 23rd and 27th June, 2003 and the TI parade was held on 25.07.2003, i.e., 50 days from the date of offence and 33 days after the arrest of A1 & A2. It is required to be noted that the Accused persons were arrested on transfer warrant. None of the eye witnesses, i.e., PW1 & PW8 were able to give any particulars/description of the Accused. Even A6 was arrested after more than one year, and the TI parade for A6 was conducted more than one year later. 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....
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.... by observing that the omissions are minor omissions. On scanning the entire evidence of PW8, we do not accept the observation of the High Court that the omissions are minor omissions. On considering the deposition of PW8 about the incident and the role alleged to have been played by different Accused persons, we are of the opinion that the omissions are major omissions and improvements which are fatal to the case of the prosecution and in any case, it creates reasonable doubt on the trustworthiness and the reliability of PW8. 9.5 Even the identification of the Accused by PW1 in the TI parade also creates a serious doubt, apart from the fact that there was a delay in conducting the TI parade, and that there 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,....
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.... the Court. No pubic hair, DNA, semen or blood of the Accused were found on any of the victims. It appears that the samples were collected from the Accused and were sent for analysis, but the result did not incriminate the Accused. 9.8 As per the case of the prosecution, Rs. 3,000/- in cash were taken from Trambak, a mangalsutra, dorley and ear tops were taken from PW8; anklets and ear tops were taken from Savita; and a watch and chain were taken from PW1 by the culprits. However, no stolen property has been found or recovered from any of the Accused except a broken white metal chain which was seized during the house search of the mother of A5 on 26.06.2003. However, her signature is not there on the panchnama. 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, noth....
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....- Special Executive Magistrate in the hospital. PW13 was called by the investigating officer to record her dying declaration. It has come on record that her dying declaration/statement was recorded on 7.6.2003, i.e., two days after the incident, PW8 identified photographs of four people from album of notorious criminals as those who committed the offence. Admittedly, the present Accused are not amongst those four persons identified by PW8 from the photo album. It is required to be noted that in her deposition she had not stated anything about her statement recorded by PW13 on 7.6.2003 and she identified the photographs of four people from album of notorious criminals shown to her. Therefore, to that extent, there is also 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 co....
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....o give the statement. Medical officer had signed on both certificate in my presence. I had not taken any noting that said lady was frightened (The ld. A.P.P. has taken the objection that the witness voluntarily had made the statement that the lady was frightened; therefore, such question cannot be asked in cross examination). I had not written so in my notes. It is not true to say that I was directed to state that said lady was frightened, before coming to court for giving evidence. 9.11 Thus, the deposition of PW8 is full of contradictions/omissions and improvements and that she has not stated true and correct facts. Therefore, she is not a reliable witness who can be believed. When the aforesaid was pointed out to the High 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 altog....
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....revails. It is the responsibility of the investigating agency to ensure that every investigation is fair and does not erode the freedom of an individual, except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an Accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. 10.2 Nothing is allowed by the law which is contrary to the truth. In Indian criminal jurisprudence, the Accused is placed in a somewhat advantageous position than under different jurisprudences of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human rights 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 ....
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....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. 11. Applying the aforesaid principles to the facts of the case on hand, we are of the opinion that there was no fair and honest investigation and even prosecution tried to suppress the material fact from the court. In the present case, the investigating officer, PW13 - special executive magistrate and even PW8 - injured eye witness suppressed from the court the material fact of the statement of PW8 recorded on 7.6.2003, recorded by PW13 -special executive magistrate in which she specifically identified four persons who have committed 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 ....
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....oted 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 persons are roped in. At the cost of the repetition, it is to be noted that there is no explanation whatsoever why those four persons who were identified by PW8 on 7.6.2003 were neither arrested nor there was any investigation qua them. Therefore, there is a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, we are of the opinion that the same is violative of fundamental rights of the 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 ca....
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....as clearly opined that he has lived Under Sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the Accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the Accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Therefore, in the facts and circumstances of 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....
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....vestigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course-content will be reviewed by the above Committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the Standing Committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are made liable to suffer departmental 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. T....