Ankush Maruti Shinde and Others vs State of Maharashtra

397 and 398 – Over and above the other sentences, all accused awarded death sentence – High Court, while upholding the conviction and death sentence of original accused nos. 1, 2 & 4, altered the death sentence in respect of original accused nos. 3, 5 & 6 to life imprisonment as also acquitted them for offence u/s. 376(2)(g) – On appeal, held: 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 – On facts, other than the evidence of PW1 and PW8, no other evidence either scientific and/or other, corroborating the prosecution case, to link the accused to the offence – PW1 and PW8 not able to give any particulars/description of the accused to the I.O. and/or to the magistrate who conducted the TI parade nor able to ascribe any roles to the culprit – There are major omissions/contradictions/improvements which are fatal to the prosecution case, thus, creates reasonable doubt on the trustworthiness and the reliability of PW8 – Identification of the accused by PW1 in the TI parade also creates a serious doubt – Thus, not safe to convict the accused solely on the basis of their identification by PW1 and PW8 in the TI parade and/or before the Court – Also no explanation as regards the delay in conducting the TI parade and doubt as to sufficient light at the time of incident – Furthermore, there was no fair investigation by the investigating agency/prosecution – Prosecution suppressed the material fact from the court – In view thereof, accused acquitted for the aforesaid offences – Test Identification Parade. Investigation: Significance of – Held: Impartial and truthful investigation is imperative – Fair trial includes fair investigation as envisaged by Arts. 20 and 21 – Aim of investigation is ultimately to search for truth and to bring the offender to book – It is the duty of the prosecution to ensure fairness in the proceedings and to ensure that all relevant facts and circumstances are brought to the notice of the court – Investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law – On facts, the investigating officer, the magistrate and even the injured eye-witness deliberately and willfully suppressed from the court the material fact of the statement of the eyewitness recorded immediately after the incident, by the 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 – Said magistrate conducted the TI parade subsequently – None of the accused in the instant case are out of those four persons identified by the eyewitness – Nothing is on record whether those four persons were arrested or not or any further investigation was carried out – Thus, there was a serious lapse on the part of the investigating agency – Constitution of India – Arts. 20 and 21. Code of Criminal Procedure, 1973: s. 178(3) – Further investigation by police officer – On facts, there was no investigation at all with respect to those four persons who were identified by the injured eye witness immediately after the incident and these four persons were other that the six persons tried and convicted – As a result, real culprits went scot free – Thus, there was no fair investigation and fair trial, resulting in infringement of the fundamental rights of the accused guaranteed u/Arts. 20 and 21 – Such conduct on the part of the investigating agency and the prosecution is strongly deprecated – Prosecution to conduct investigation u/s. 173(8) qua four persons identified by the injured eye witness.

Constitution of India: Art. 142 – Compensation – Award of – No fair investigation and fair trial, qua the four persons identified by injured eye witness, immediately after the incident – Other six persons who came to be tried, convicted and sentenced death penalty for offence of murder and rape, remained under constant stress and in perpetual fear of death – In view of the lapses, all the six persons are acquitted – In exercise of powers u/Art. 142, the State of Maharashtra to pay compensation of Rs. 5 lakh to each of the accused.

Allowing the appeals by the accused and dismissing the appeals by the State, the Court

HELD: 1. 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. [Para 10.5] [758-B-C]

2.1 The TI parade was held after 50 days from the date of offence and 33 days after the arrest of A1 & A2. The accused persons were arrested on transfer warrant. 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. [Para 9.3] [749-H; 750-A-B]

2.2 There is very serious doubt whether at the time of incident, there was sufficient light in the hut. Under the facts and circumstances, neither PW1 nor PW8 would have been able to get a proper look at the persons who committed the offence. Neither PW1 nor PW8 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 PW1 or PW8. Neither PW1 nor PW8 were able to ascribe the specific roles to the culprits. Even, according to the prosecution, PW1 & PW8 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 PW1 nor PW8 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 PW8 in her deposition, the same is stated for the first time in her deposition, which was recorded two and a half years later. The same was not stated to the police/special executive magistrate in her statements that were recorded during the investigation. When in her crossexamination, 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. It is also required to be noted that even according to PW8, 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. On scanning the entire evidence of PW8, the observation of the High Court that the omissions are minor omissions is not accepted. On considering the deposition of PW8 about the incident and the role alleged to have been played by different accused persons, it is opined 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. [Para 9.4, 9.9] [750-B, E-H; 753-B, E-F]

2.3 Even the identification of the accused by PW1 in the TI parade also creates a serious doubt. PW1 has categorically stated that the culprits spoke with him in Hindi. According to him, they were also speaking amongst themselves in Hindi. PW8 also confirmed the same. All the victims 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. [Para 9.5] [751-D-F]

2.4 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 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 instant case, the dummy persons were selected by the police. Considering the said facts and circumstances, it is not safe to convict the accused solely on the basis of their identification by PW1 & PW8 in the TI parade and/or before the Court. Except the deposition of PW1 & PW8 and they identified the accused in the TI parade and/or before the Court, 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 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. [Para 9.6, 9.7] [751-G-H; 752-A-E]

2.5 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, 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. [Para 9.8] [752-F-H; 753-A]

2.6 Dying declaration/statement of PW 8 was recorded two days after the incident. She 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 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 said 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. 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. [Para 9.10] [753-H; 754-A-D]

2.7 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. The High Court unfortunately did not accept the case of the defence by observing that the statement of PW8 recorded by PW13 cannot be said to be a dying declaration but a mere statement which can be used only for corroboration and contradiction. Therefore, even as per the High Court also, her statement recorded by PW13 in which she identified altogether

4 other persons with names can be used for the purpose of contradiction. The contradictions are material contradictions and she has also suppressed the material fact from the Court. [Para 9.11] [755-F-H]

3.1 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. 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. 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. [Paras 10, 10.1] [756-E-H]

3.2 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 the criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution. [Para 10.2] [757-A-C]

V. K. Sasikala v. State represented by Superintendent (2012) 9 SCC 771 : [2012] 10 SCR 641 ; Darya Singh v. State of Punjab AIR 1965 SC 328 : [1964] 7 SCR

397 – referred to.

3.3 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. Applying the said principles to the facts of the case on hand, there was no fair and honest investigation and even prosecution tried to suppress the material fact from the court. In the instant 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. PW13 is the same Special Executive Magistrate who conducted the TI parade subsequently. It appears that in fact the investigating officer and the prosecution deliberately withheld the said fact from the court. According to PW1 & PW8, and even according to the prosecution, there were 7-8 persons who committed the offence. Though, PW12- 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. PW8 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 PW8. None of the accused in the instant case are out of those four persons identified by PW8 on 7.6.2003. Therefore, if those four persons who were identified by PW8 as other than the accused in the instant case are added in the instant 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 said 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. 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. When PW8 identified four persons having committed the offence, her memory was fresh and it ought to have been given more weightage than her identifying the accused persons after a long delay. 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 instant 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 PW1 or PW8. A6 was arrested after a period of one and a half year. 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. Therefore, there is a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, the same is violative of fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution. The conduct on the part of the investigating agency and the prosecution is strongly deprecated. [Para 9.12,11, 11.1, 15] [758-C-H; 759-A-H; 761-E]

3.4 The prosecution has failed to prove the case against the accused beyond reasonable doubt. Because of such lapses, and more particularly in not conducting the investigation insofar as those four persons who were identified by PW8, the real culprits have gone out of the clutches of the law and got scot free. The conviction and sentence imposed by the High Court cannot be sustained. All the accused are acquitted for the offences for which they were tried and would be released, if not required in other offences. [Para 12, 15, 16] [760-A; 761-F; 763-G]

3.5 The Court cannot shut its eyes to the said fact that five persons have been killed/murdered, out of whom even one lady was raped 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. Unfortunately, there was no investigation at all with respect to those four persons who were identified by PW8 in her statement. Therefore, this is a fit case for further investigation under Section 173(8) CrPC qua those four persons and prosecution is directed to do the same. [Para 13] [760-C-E]

4. It has emerged that there is no investigation at all qua the four persons who were identified by PW8. On the contrary, the accused in the instant 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. He has clearly opined that he has lived under sub-human conditions for several years. 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 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 powers u/Article 142 of the Constitution, the State of Maharashtra is directed to pay a sum of Rs.5,00,000/- to each of the accused as compensation. [Para 14] [760-F-H; 761-A-D]

5. The Chief Secretary, Home Department, State of Maharashtra is directed to look into the matter and identify and take departmental action against 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 instant case. [Para 15] [763-D-E] State of Gujarat v. Kishanbhai (2014) 5 SCC 108: [2014] 1 SCR 197 – relied on.

Vaikuntam Chandrappa v. State of Andhra Pradesh AIR 1960 SC 1340; Iqbal v. State of Uttar Pradesh (2015) 6 SCC 623; Ram Sunder Sen v. Narender

(2016) 15 SCC 440 - referred to.