Ankush Maruti Shinde and Others v. State of Maharashtra; State of Maharashtra v. Ambadas Laxman Shinde and Others; Ambadas Laxman Shinde and Others v. State of Maharashtra

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 IPC, 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 vs. 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 IPC 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 A[4] that the injuries sustained by A[4] could have been caused by labour or agricultural work and the said injuries could be older than three weeks, i.e., before the date of the offence. It is further submitted by the learned counsel appearing on behalf of the accused that even from the arrest memo, it can be seen that and even otherwise the accused are agriculturist labourer and therefore such minor injuries were possible while doing the labour work or agricultural work. It is submitted that therefore non-explanation of the said injuries by the accused in their 313 statement could not have been held to be an incriminating circumstance against the accused. It is submitted therefore that the High Court has committed a grave error in considering the above circumstance against the accused and/or drawing an adverse inference.

5.45 It is further submitted by the learned counsel appearing on behalf of the accused that PW24-Dr. Vilas Appasaheb Patil examined A[1] & A[2] and stated that the injuries found on them were possible if a person tried to resist another person. It is submitted that merely because the injuries are possible on account of resistance does not mean that the injuries can be considered as conclusively to have been caused during commission of rape. It is submitted that such injuries do not link the present accused with the rape of Savita.

5.46 It is further submitted by the learned counsel appearing on behalf of the accused that even the investigation was not fair and the prosecution suppressed the material facts before the Court. It is submitted by the learned counsel that firstly the prosecution suppressed that on 7.6.2003 the statement/dying declaration of PW[8] was recorded by the executive magistrate and that PW[8] was shown the photographs from the album and that she identified 4 persons having committed the offence, who were not the accused who came to be tried. It is submitted by the learned counsel that despite PW[8] 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 PW[8]. 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 somehow or the other irrespective of the true facts involved in the case. It is submitted that the expected attitude of the prosecution must be couched in fairness not only to the court, but to the accused as well. It is submitted that even it was the duty of the prosecution to winch it to the fore and make it available to the accused any material which may even help the accused. It is submitted that in the present case, it appears that the prosecution/investigating officer/the executive magistrate deliberately withheld/suppressed the aforesaid material facts from the court. It is submitted that if the investigation would have been conducted even with respect to those four persons who were identified by PW[8], in that case the result would have been different. It is submitted that if the fact that PW[8] in her statement before the executive magistrate recorded on 7.6.2003 identified four persons who committed the offence with names and they were other than the present accused, would have come on record, in that case, it would have gone against the prosecution case and more particularly the case on behalf of PW[1] & PW[8] that there were 7-8 persons who committed the offence. It is submitted that if the aforesaid four persons would have been added, in that case, the accused would have been more than 12 and therefore it would have been fatal to the case of the prosecution, and therefore the prosecution/investigating officer had deliberately and wilfully suppressed the aforesaid material fact.

5.47 It is further submitted by the learned counsel that in fact all the accused persons were belonging to nomadic tribes, and in fact, they were arrested by transfer warrant and were forcefully involved in the case, that too after a period one month and only with a view to show that the police has solved the case. It is submitted that otherwise there was no reason to arrest the accused persons by way of transfer warrant, when neither PW[1] nor PW[8] gave any description of the persons, who committed the offence.

5.48 Making the above submissions, it is prayed to allow the appeals preferred by the accused and acquit them for the offences for which they are convicted.

5.49 Shri (Dr.) Yug Mohit Chaudhary, learned counsel appearing for the accused has further submitted that in view of the above facts and circumstances of the case, the accused are not only to be acquitted, but 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 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 with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. It is submitted that findings recorded by the learned Sessions Court, affirmed by the High Court, are on appreciation of evidence and therefore the same are not required to be interfered with by this Court. 6.[2] It is further submitted by the learned counsel for the State of Maharashtra that in the present case the prosecution has been successful in proving the case against all the accused persons by leading cogent evidence, both oral as well as documentary. It is submitted that in the present case both PW[1] & PW[8] who are the eye witnesses and who were present at the time of the incident have fully supported the case of the prosecution. 6.[3] It is further submitted by the learned counsel for the State of Maharashtra that as such all the accused persons have been identified by PW[1] & PW[8] in the TIP/before the Court. It is submitted that therefore both the learned Sessions Court as well as the High Court have rightly held the accused guilty, relying upon the deposition of PW[1] & PW[8] – injured eye witnesses. 6.[4] Now insofar as the submission on behalf of the accused with respect to omissions/improvements/contradictions are concerned, it is submitted that as rightly observed by the High Court such omissions/improvements/contradictions are minor and are not fatal to the case of the prosecution as a whole. It is submitted therefore that the High Court has rightly ignored such minor contradictions/omissions/improvements, while appreciating the deposition of PW[1] & PW[8]. 6.[5] It is further submitted by the learned counsel appearing on behalf of the State that so far as non-disclosure of the factum of recording the statement of PW[8] on 7.6.2003 by the executive magistrate and she having identified four persons from the photographs is concerned, it is submitted that as such the said omission will not be fatal to the case of the prosecution as PW[1] & PW[8] have specifically identified all the accused persons either in the TIP and/or before the Court. It is submitted that merely because some other four persons who might have been identified by PW[8] 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 PW[1] & PW[8]. 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 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 PW[8] also. 6.[9] It is submitted by the learned counsel that all the six accused have committed a very serious offence and have committed the murder of 5 persons and two ladies were raped and the entire family was finished, their conviction is required to be upheld and all the accused are required to be sentenced to death penalty. Therefore, it is prayed to dismiss the appeals preferred by the accused and to allow the appeals preferred by the State and to restore the death penalty so far as accused nos. 3, 5 & 6 are concerned.

7. We have heard the learned counsel appearing on behalf of the respective parties at great length. 7.[1] At the outset, it is required to be noted that in the present appeals, respective accused were charged for the offences punishable under Sections 395, 302 read with 34 of the IPC, Section 376 (2)(g), Section 307 read with Section 34 of the IPC, Sections 396, 397 and 398 of the IPC. The learned Sessions Court convicted the accused under Sections 395, 302 read with Section 34, Section 376(2)(g), Section 307 read with Section 34, Sections 396, 397 read with Section 395 and Section 398 of the IPC. Over and above the other sentences, all the accused were awarded the death penalty by the learned Sessions Court. The High Court confirmed and conviction and sentence imposed by the learned Sessions Court so far as A[1], A[2] and A[4] are concerned, and even confirmed the death penalty. While maintaining the conviction for the offences punishable under Sections 302 read with 34, 307 read with 34, 397 read with 395 and 396 of the IPC, the High Court acquitted A[3], A[5] and A[6] for the offences punishable under Section 376(2)(g) of the IPC and commuted the death sentence to life imprisonment.

8. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, both the accused as well as the State of Maharashtra have preferred the present appeals. The accused are before this Court challenging their conviction and sentence imposed by the High Court, and the State of Maharashtra is aggrieved by the impugned judgment and order passed by the High Court insofar as acquitting the original accused nos. A[3], A[5] and A[6] for the offences under Section 376(2)(g) of the IPC 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 PW[8] – 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, A[2] 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. PW[1] & PW[8] – son Manoj and Trambak’s wife Vimalabai survived. Therefore, according to the prosecution case, PW[1] & PW[8] were the eye witnesses to the whole incident. Therefore, as such, the case rests on the deposition of these two eye witnesses PW[1] & PW[8], and they identified the accused either in the TI parade and/or before the Court. Considering the entire material on record, it appears that the prosecution in support of its case has solely relied on the evidence of identification. At this stage, it is required to be noted that though the charge is of rape and murder, there is no forensic evidence corroborating the prosecution case. Though, as per the case of the prosecution, the accused stripped the ornaments from the wife and daughter of Trambak and took Rs.3,000/- from Trambak, there is no recovery except one broken white metal chain, which was allegedly seized during the house search of Bhojubai Appa Shinde, the mother of A[5] on 26.06.2003. The aforesaid in detail shall be discussed hereinbelow. 9.[2] As observed hereinabove, the case rests on the deposition of PW[1] & PW[8] and they identified the accused in the TI parade as well as before the Court. Other than the evidence of PW[1] & PW[8], there is no other evidence to link the accused to the offence. Looking to the nature of the crime committed in which five persons were killed brutally and one was also raped, and the serious consequence it may have for those convicted, it is necessary that the evidence should be of a very high quality and satisfy the higher burden of proof. Therefore, we have minutely gone through and considered the deposition of PW[1] & PW[8]. We have also minutely considered the deposition of other witnesses, more particularly the deposition of PW13 – special executive magistrate – Ramesh Sonawane, PW12 – Vishnu Hagwane, nephew of the landlord, who was the first person to reach the spot and the deposition of the investigating officer, PW18 – ACP Bhaskarrao Dhus. 9.[3] As per the case of the prosecution, which has been believed by the learned Sessions Court as well as the High Court, PW[1] & PW[8] identified the accused persons in the TI parade as well as before the Court. At this stage, it is required to be noted that PW[8] identified A[2] 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 A[1] & A[2]. It is required to be noted that the accused persons were arrested on transfer warrant. None of the eye witnesses, i.e., PW[1] & PW[8] were able to give any particulars/description of the accused. Even A[6] was arrested more than one year, and the TI parade for A[6] was conducted after 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 PW[1] & PW[8], 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 PW[1] & PW[8], 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, PW[1] has stated that the electric light was on, he also states that the culprits were using battery torches and were searching in torchlight. According to him, he told the police that the culprits had switched off the lights when they had started assaulting the victims. Even if it is assumed that there was some light initially, and the case of the prosecution is believed that during the incident the light bulb was burning for a few minutes before it was turned off, the rest of the incident took place under torchlights carried by the culprits. Under the circumstances, neither PW[1] nor PW[8] would have been able to get a proper look at the persons who committed the offence. It is required to be considered coupled with the fact that neither PW[1] nor PW[8] were able to describe the accused to the police or the clothes worn by them. No identifying features were given. In the trial, the clothes seized from the accused were not identified by either PW[1] or PW[8]. Even the age of one of the accused was 17 and two other accused were around 20 years, PW[1] & PW[8] told the police that the culprits were aged 25-30 years. Neither PW[1] nor PW[8] were able to ascribe the specific roles to the culprits. Even, according to the prosecution, PW[1] & PW[8] had fallen unconscious during the incident. Therefore, the said witnesses were not in a fit condition to see and remember and that is why neither PW[1] nor PW[8] gave details about the description of the culprits – heights, hair, facial features, complexion, beard, etc. to the police during the investigation. Even PW8’s entire evidence about the incident and the role played by different accused persons is an omission/improvement. Whatever is stated by PW[8] in her deposition, the same is stated for the first time in her deposition, which was recorded two and a half years later. Whatever is alleged in her deposition in the Court, which was recorded two and a half years later, was not stated to the police/special executive magistrate in her statements that were recorded during the investigation. When the same was pointed out to the courts below, the courts below, more particularly the High Court has not accepted the case of the defence by observing that the omissions are minor omissions. On scanning the entire evidence of PW[8], we do not accept the observation of the High Court that the omissions are minor omissions. On considering the deposition of PW[8] 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 PW[8]. 9.[5] Even the identification of the accused by PW[1] 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 PW[1] & PW[8] 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. PW[1] has categorically stated that the culprits spoke with him in Hindi. According to him, they were also speaking amongst themselves in Hindi. PW[8] 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 PW[1] nor PW[8] gave any description to the I.O. and/or to the Sub-Divisional Magistrate who conducted the TI parade. Therefore, on what basis the other dummy persons were brought and were present in TI parade is not forthcoming from the prosecution. There is also no statement that the dummies resembled the accused persons. Though, the special executive magistrate who had conducted the TI parade is required to select the dummy persons, in the present case and even admitted by PW13 – special executive magistrate that dummy persons were selected by the police. Considering the aforesaid facts and circumstances, we are of the opinion that it is not safe to convict the accused solely on the basis of their identification by PW[1] & PW[8] in the TI parade and/or before the Court. 9.[7] As observed hereinabove, except the deposition of PW[1] & PW[8] and they identified the accused in the TI parade and/or before the Court (which for the reasons stated hereinabove, the conviction cannot rest on such identification), there is no other evidence, either scientific and/or other, corroborating the prosecution case. There is no forensic evidence corroborating the prosecution case. In fact, the DNA, finger prints evidence and CA evidence do not support the case of the prosecution, and/or link the accused to the crime. The case of the prosecution is that the accused had some 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. There is no DNA or finger prints on the glass and liquor bottles to connect the accused with the crime. In fact, PW20 – IO has admitted that the finger print report did not implicate the accused. At this stage, it is required to be noted that the accused’ DNA samples were collected during the investigation and in fact were sent for DNA analysis, but the prosecution never presented the report to 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 PW[8]; anklets and ear tops were taken from Savita; and a watch and chain were taken from PW[1] 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 A[5] 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 PW[1], PW[1] 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 PW[8], we are of the opinion that PW[8] 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 PW[8] in the Court has not been stated by her in her earlier statements. This evidence has come for the first time during the deposition in Court by way of an improvement. In her earlier statements, PW[8] has never given any details of the assault or the roles played by different persons during the incident. Even in the TI parade, she did not attribute any role to the persons she identified. The first time PW[8] gave any details about the incident or ascribed the roles to the accused persons was two and a half years later in the Court and never before that. Her failure to give any statement to the police and the two magistrates either about the events occurring during the incident or the roles played by different persons render her evidence unreliable. When in her cross-examination, she was confronted with such omissions/improvements, she has taken only one thing that she told this to the police but she does not know why the police did not record the same. However, the same is not corroborated by any other evidence, more particularly the deposition of the IO and/or the magistrates. Therefore, it is unsafe to rely upon the deposition of PW[8] and to convict the accused. It is also required to be noted that even according to PW[8], she was subjected to rape, however, the prosecution has miserably failed to prove the rape on her by leading cogent evidence, more particularly the forensic evidence. Therefore, to that extent also she is not reliable.

9.10 There is one another reason why PW[8] is not to be believed on the ground that she is unreliable and not trustworthy. It is required to be noted that on 7.6.2003, i.e, two days after the incident, her statement was recorded by PW13 – Ramesh Sonawane – 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, PW[8] 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 PW[8] 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 PW[8]. 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. Accordinglhy, I have gone to civil hospital Nashik. After reaching to civil hospital, I had taken the letter of PI Crime Branch. I am having the Xerox copy of that letter. Today I am producing the same. Police had given me the file nos. 70, 76, 80 and I was requested to see whether that lady can identify the accused from that file. I was given those files by the same person who had given me the letter. I had asked that lady whether she could identify the accused, if photographs shown to her and she told that she could identify. Therefore, I had shown her the photographs from all the three files. She had identified the 4 persons as the accused present. Witness volunteers that at that time, it came to my notice that the lady was much frightened. All the four photographs were from file No.80. The names were written below all those four photographs. They are 1. Gautam Hari Kale, R/o Zapwadi Shiv, TQ Nawasa, Dist. Ahmednagar, 2. Shivaji @ Shivlya Bhosale R/o Tarwand Muktapur Shiwar, TQ Nevasa, Dist – Ahmednagar 3. Khandya Rama Chavan R/o Bhendala Shiwar, TQ Gangapur, Dist. Aurangabad, 4. Suresh Sitaram Kale, R/o Kasarakada, Karkhana Shiwar, TQ Ashti, Dist. Beed. These persons had entered her house and had committed theft of Rs.3,000/- is told by the lady. That lady had not stated that she could identify the accused persons. Prior to recording the statement of that lady, said lady was got examined from Dr. Yuvraj Pawar, that she was conscious to give the statement. The statement was read over to that lady after it was recorded. It was understood by her. I had asked whether the said statement was as per her narration. She had replied in affirmative. I had obtained her thumb impression on the said statement. I myself had obtained her thumb impression. After completion of recording of the statement of that lady, she had got again examined from the medical officer, that she was in a condition to 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 PW[8] 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 PW[8] 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 PW[8] on 7.6.2003 and she having identified four persons from the album of the photographs of the notorious criminals. In fact, it came to the light during the course of hearing of the appeal before the High Court, and PW[8] and PW13 were recalled as per the directions of the High Court. Nothing is on record whether those four persons, who were identified by PW[8] on 7.6.2003, were ever arrested and/or any investigation was carried out qua them. It is required to be noted that PW[8] identified those four persons immediately after the incident. None of the accused in the present case are those who were identified by PW[8] before the Special Executive Magistrate on 7.6.2003. Therefore, when PW[8] identified four persons having committed the offence on 7.6.2003, her memory was fresh and it ought to have been given more weightage than her identifying the accused persons after a long delay. Thus, it appears that the investigation was not fair and in fact there was suppression of material fact from the court by the prosecution.

10. It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 & 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book. 10.[1] Apart from ensuring that the offences do not go unpunished, it is the duty of the prosecution to ensure fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for just determination of the truth so that due justice prevails. 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 Cr.PC. 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 in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India. 10.[3] As observed by this Court in the case of V.K. Sasikala v. State represented by Superintendent (2012) 9 SCC 771, though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. 10.[4] Even in a case where the public prosecutor did not examine the witnesses who might have supported the accused, this Court in the case of Darya Singh v. State of Punjab AIR 1965 SC 328 has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the Court only because the evidence is likely to go against the prosecution case. It is further observed that it is the duty of the prosecution to assist the court in reaching to a proper conclusion in regard the case which is brought before it for trial. It is further observed that it is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to have examined all the eye-witnesses in support of his case. It is further observed that it may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box. It is further observed that if at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the accused and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. 10.[5] Murder and rape is indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. 10.[6] The prosecution/investigating agency is expected to act in an honest and fair manner without hiding anything from the accused as well as the Courts, which may go against the prosecution. Their ultimate aim should not be to get conviction by hook or crook.

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 PW[8] – injured eye witness suppressed from the court the material fact of the statement of PW[8] 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 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 PW[1] & PW[8], 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 PW[1] told him that four persons were the assailants and committed the offence. Be that as it may, according to PW[1] & PW[8] and even according to the prosecution, there were 7-8 persons who committed the offence. PW[8] identified four persons on 7.6.2003 from the album of the photographs of notorious criminals whose names were specifically noted as per the statement of PW[8]. None of the accused in the present case are out of those four persons identified by PW[8] on 7.6.2003. Therefore, if those four persons who were identified by PW[8] as other than the accused in the present case are added in the present case, it can be said that there were 12 persons/assailants who committed the offence and therefore the prosecution case that there were 7-8 persons would fail and that is why the aforesaid fact seems not to have been stated by the investigating officer and the same was suppressed by him deliberately and wilfully. Even the investigation also does not seem to be fair and honest investigation. From the statement of PW[8] recorded by the special executive magistrate recorded on 7.6.2003 in which she identified four named persons from the album of the photographs of notorious criminals, nothing is on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons. It is to be noted that none of the accused in the present case are out of those four persons who were identified by PW[8] on 7.6.2003, i.e., immediately after the incident. The investigating officer ought to have conducted an investigation on that line and ought to have arrested those four persons and ought to have conducted the investigation qua those four persons. On the contrary, the accused in the present case were arrested after a period of one and a half months and that too on transfer warrants, though there was no description of the accused given by either PW[1] or PW[8]. A[6] was arrested after a period of one and a half year. It is to be noted that all the accused persons are nomadic tribes coming from the lower strata of the society and are very poor labourers. Therefore, in the facts and circumstances of the case, false implication cannot be ruled out since it is common occurrence that in serious offences sometime innocent 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 PW[8] 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 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 PW[8] on 7.6.2003 before the special executive magistrate. The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence. As observed hereinabove, unfortunately, there was no investigation at all with respect to those four persons who were identified by PW[8] in her statement on 7.6.2003. It has come on record and as observed hereinabove, those four persons who were identified by PW[8] on 7.6.2003, which was just after two days’ of the incident, were other than the appellants – six persons who came to be tried. Therefore, we are of the opinion that this is a fit case for further investigation under Section 173(8) of the Code of Criminal Procedure qua those four persons, who were identified by PW[8] on 7.6.2003, the reference of whom is in the statement recorded by PW13.

14. Now so far as the submission and prayer on behalf of the accused, not only to acquit them, but to award an adequate compensation is concerned, it deserves consideration. From the above facts and circumstances of the case, it has emerged that there was no fair investigation and fair trial and the fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution of India have been infringed. The investigation is not fair and honest. There is no investigation at all qua the four persons who were identified by PW[8] on 7.6.2003. On the contrary, the accused in the present case were nomadic tribes and falsely implicated and are roped in. Except one, all of them are in jail since last 16 years. All were facing the hanging sword of death penalty. Out of six accused persons, one was subsequently found to be a juvenile. As per the report of Dr. Ashit Sheth, a Psychiatrist, who examined one of the accused – Ankush Maruti Shinde, who was subsequently found to be a juvenile, he has 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 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 PW[8] on 7.6.2003, the real culprits have gone out of the clutches of the law and got scot free. At this stage, the decision of this Court in the case of State of Gujarat v. Kishanbhai (2014) 5 SCC 108 is required to be referred to, in which this Court has directed in paragraphs 22 and 23 as under: “22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilised for crystallising mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials coursecontent drawn from the above consideration. The same should also constitute course-content of refresher training programmes for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials should be vested in the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than ten glaring lapses in the investigation/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. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.” 15.[1] Murder and rape is indeed a reprehensive act and every perpetrator should be punished. Therefore, considering the observations made by this Court in the case of Kishanbhai (supra), referred to hereinabove, we direct the Chief Secretary, Home Department, State of Maharashtra to look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape. Therefore, we direct the Chief Secretary, Home Department, State of Maharashtra to enquire into the matter and take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from today.

16. With the above observations and directions, and in view of the above and for the reasons stated above, the criminal appeals preferred by the accused are hereby allowed, and all the accused are hereby acquitted for the offences for which they were tried. They shall be released forthwith, if not required in any other case. Consequently, the appeals filed by the State of Maharashtra for enhancement of sentence qua A[3], A[5] and A[6] stand dismissed.

17. The prosecution is directed to conduct further investigation under Section 173(8) of the Code of Criminal Procedure qua those four persons who were identified by PW[8] – an injured eye witness on 7.6.2003 from the album of photographs of notorious criminals with their names, i.e., immediately after the incident, whose particulars and names are mentioned in the statement of PW[8] recorded by PW13 on 7.6.2003, so that real culprits should not go unpunished in a crime in which five persons were killed brutally and one lady was even subjected to rape. ………………………………..J. [A.K. SIKRI] ………………………………J. [S. ABDUL NAZEER] NEW DELHI; ……………………………..J. MARCH 05, 2019. [M.R. SHAH]