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Friday, February 28, 2014

Death sentence commuted in to life imprisonment - No doubt death sentence awarded is unbalanced but All the circumstances point to the possibility of the accused-appellants being reformed and living a meaningful and constructive life if they are to be given a second chance as they are going to get a distance education degree while in custody and already completed 10 years in jail - Balancing the two sets of circumstances i.e. one favouring commutation and the other favouring upholding the death penalty, we are of the view that in the present case the option of life sentence is not “unquestionably foreclosed”. Therefore, the sentence of death awarded to the accused should be commuted to life imprisonment. and as such Apex court modified the High court order = MAHESH DHANAJI SHINDE ... APPELLANT (S) VERSUS STATE OF MAHARASHTRA ... RESPONDENT (S)2014(Feb.Part) judis.nic.in/supremecourt/filename=41267

  Death sentence commuted in to life imprisonment - No doubt death sentence awarded is unbalanced but All the circumstances  point  to the possibility of  the  accused-appellants  being  reformed  and  living  a meaningful and constructive life if they are to be given  a  second  chance as they are going to get a distance education degree while in custody and already completed 10 years in jail - Balancing  the  two  sets  of  circumstances   i.e.   one   favouring commutation and the other favouring upholding the death penalty, we  are  of the view that in the present  case  the  option  of  life  sentence  is  not “unquestionably foreclosed”.  Therefore, the sentence of  death  awarded  to the  accused  should  be  commuted  to   life   imprisonment.  and as such Apex court modified the High court order =
   The death penalty imposed on  the  appellants  by
the learned Trial Judge has been confirmed by the High Court  by  the  order
under appeal apart from the punishment imposed under different  Sections  of
the Penal Code as well as the  Arms  Act.   Insofar  as  Sessions  Case  No.
4/2005 is concerned, the learned Trial Judge had acquitted accused 1, 2  and
3 of the offence under Section 302/120B IPC.  In the appeal  by  the  State,
the High Court has reversed the acquittal and convicted the aforesaid  three
accused of the aforesaid offence and has sentenced them to  undergo  RI  for
life.  The accused No. 6, i.e., appellant Mahesh Dhanaji Shinde  is  not  an
accused in Sessions Case No. 4/2005.  It is the common  order  of  the  High
Court rendered in the aforesaid cases convicting and sentencing the accused-
appellants, as aforementioned, which has  been  challenged  in  the  present
appeals. It may also be mentioned at the outset that in all  the  cases  the
accused-appellants have been exonerated of the charge under Section 364A  of
the IPC by the order under appeal. =

  In the present case, there is no manner  of  doubt  that  the  accused
appellants  have  committed  the  murder  of  as  many  as  9  innocent  and
unsuspecting victims who were led to believe that A-1 had magical powers  to
multiply money.  The deceased, after being killed, were robbed of  the  cash
amounts that they had brought with them for the purpose of  “money  shower”.
The criminal acts of the accused were actuated by greed for money  and  such
acts were the result  of  a  carefully  planned  scheme.   The  crimes  were
committed over a period of nearly two months in  three  different  episodes.
The assaults on some of the victims were merciless and  gruesome.   Some  of
the victims were young and hapless children  i.e.  Sanjay  Mali  and  Rajesh
Mali.

29.   At the same time, all the four accused were young in age at  the  time
of commission of  the  offence  i.e.  23-29  years.    They  belong  to  the
economically,  socially  and   educationally   deprived   section   of   the
population.  They were living in acute poverty.  It is possible that,  being
young, they had a yearning for quick money and  it  is  these  circumstances
that had led to the commission of the crimes in  question.   Materials  have
been laid before this Court to show that while in custody  all  the  accused
had enrolled themselves in Yashahantrao Chavan Maharashtra  Open  University
and had either completed the  B.A.  Examination  or  are  on  the  verge  of
acquiring the degree.  At least three of the appellants (A-2, A-3  and  A-6)
have, at different points of time, participated in different  programmes  of
Gandhian thoughts and have been awarded certificates of such  participation.
 In prison, A-2 has written a book titled “Resheemganth” and  A-3  has  been
associated with the said work.  There is no material or information to  show
any condemnable  or  reprehensible  conduct  on  the  part  of  any  of  the
appellants during their period of custody.  All the circumstances  point  to
the possibility of  the  accused-appellants  being  reformed  and  living  a
meaningful and constructive life if they are to be given  a  second  chance.
In any case, it is not the stand of the State that  the  accused-appellants,
are beyond reformation or are not capable of living a changed life  if  they
are to be rehabilitated in society.  Each of the accused have spent over  10
years in incarceration.  Though it must  not  be  understood  in  any  other
manner the entire case  against  the  accused  is  built  on  circumstantial
evidence.

30.    Balancing  the  two  sets  of  circumstances   i.e.   one   favouring
commutation and the other favouring upholding the death penalty, we  are  of
the view that in the present  case  the  option  of  life  sentence  is  not
“unquestionably foreclosed”.  Therefore, the sentence of  death  awarded  to
the  accused  should  be  commuted  to   life   imprisonment.    We   order,
accordingly,  and  direct  that  each  of  the  accused-appellants,  namely,
Santosh Manohar Chavan,  Amit  Ashok  Shinde,  Yogesh  Madhukar  Chavan  and
Mahesh Dhanaji Shinde shall undergo imprisonment for life for commission  of
the offence under Section  302/120B  IPC.   The  sentences  awarded  to  the
accused-appellants by the High Court for commission of  all  other  offences
under the IPC and the Arms Act are affirmed to run  concurrently.   We  also
make it clear that the custody of the  appellants  for  the  rest  of  their
lives will be subject to remissions if any, which will be  strictly  subject
to the provisions of the Sections 432 and 433-A of the Cr.PC.

31.   We accordingly dispose of all the appeals  with  the  modification  of
the sentence as above.

    2014(Feb.Part) judis.nic.in/supremecourt/filename=41267
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
                       REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL  NOs. 1210-1213 OF 2012


MAHESH DHANAJI SHINDE               ...    APPELLANT (S)

                                   VERSUS

STATE OF MAHARASHTRA                           ...  RESPONDENT (S)

                                    With
                   CRIMINAL APPEAL  NOs. 2089-2091 OF 2012
                   CRIMINAL APPEAL  NOs. 1238-1239 OF 2012
                   CRIMINAL APPEAL  NOs. 1240-1241 OF 2012


                               J U D G M E N T


RANJAN GOGOI, J.

1.    The appellants, Santosh Manohar  Chavan,  Amit  Ashok  Shinde,  Yogesh
Madhukar Chavan and Mahesh Dhanaji Shinde who were tried as accused Nos.  1,
2, 3 and 6 (hereinafter referred to as A-1, A-2, A-3 and  A-6)  in  Sessions
Case Nos. 3/2005, 4/2005  and  5/2005  have  assailed  the  impugned  common
judgment and order of the High Court  of  Bombay  dated  17.10.2011  whereby
their conviction in Sessions Case Nos. 3/2005 and 5/2005, inter alia,  under
Section 302/120B of the IPC and for offences under the Arms  Act  have  been
upheld by the High Court.  The death penalty imposed on  the  appellants  by
the learned Trial Judge has been confirmed by the High Court  by  the  order
under appeal apart from the punishment imposed under different  Sections  of
the Penal Code as well as the  Arms  Act.   Insofar  as  Sessions  Case  No.
4/2005 is concerned, the learned Trial Judge had acquitted accused 1, 2  and
3 of the offence under Section 302/120B IPC.  In the appeal  by  the  State,
the High Court has reversed the acquittal and convicted the aforesaid  three
accused of the aforesaid offence and has sentenced them to  undergo  RI  for
life.  The accused No. 6, i.e., appellant Mahesh Dhanaji Shinde  is  not  an
accused in Sessions Case No. 4/2005.  It is the common  order  of  the  High
Court rendered in the aforesaid cases convicting and sentencing the accused-
appellants, as aforementioned, which has  been  challenged  in  the  present
appeals. It may also be mentioned at the outset that in all  the  cases  the
accused-appellants have been exonerated of the charge under Section 364A  of
the IPC by the order under appeal.

2.    The case of the  prosecution  in  short  is  that  on  20.12.2003  the
Superintendent of Police, Sindhudurg received anonymous  letters  and  phone
calls to the effect that some unidentified dead bodies were lying dumped  on
the hillocks of  village  Nandos,  Taluk  Malvan,  District  Sindhudurg.   A
search operation was organised on  the  very  day  i.e.  20.12.2003  in  the
course of which 7 dead bodies were recovered.  Two  more  dead  bodies  were
recovered on the next day i.e. 21.12.2003 and one dead  body  was  recovered
on 29.12.2003.  Alongwith the dead bodies, articles  like  clothes,  trouser
hooks, broken brief case etc. alongwith two blood stained diaries were  also
recovered.   Though  all  the  dead  bodies  were   sent   for   post-mortem
examination the  high  level  of  decomposition  rendered  any  post-autopsy
opinion  impossible.   The  dead  bodies  were  therefore  sent  to  Medical
College, Miraj and a team of doctors was constituted who performed  forensic
chemical tests on the dead bodies.  Some of the organs from the dead  bodies
were sent to the Centre for DNA Fingerprinting  and  Diagnostics,  Hyderabad
(CDFD) for DNA test and the skulls sent to the Forensic Laboratory,  Kalina,
Bombay for super-imposition tests.

3.    In the two diaries recovered by the police from the  spot  some  names
and addresses were found.  It is from  these  persons  that  the  names  and
particulars  of  the  persons  to  whom  the  diaries  belonged   could   be
ascertained.  Having traced the initial identity of some of the deceased  in
the above manner, enquiries from such friends  and  relatives  revealed  the
names and identities of other  persons  who  were  in  the  company  of  the
deceased persons.  Information lodged  in  different  police  stations  with
regard to missing persons around the relevant time were  collected  and  co-
related.  The opinion of handwriting  experts  were  obtained  which  showed
that the diaries belonged to  one  Dada  Saheb  Chavan  and  Kerubhai  Mali.
Blood samples of the relatives were sent to  the  CDFD,  Hyderabad  for  DNA
test.  Some of the dead bodies were also identified  by  the  relatives  and
friends of the deceased on the basis of articles  recovered  from  the  spot
which were seized in the course  of  the  investigation.  The  investigation
which  proceeded  on  the  aforesaid  lines,  prima  facie   indicated   the
involvement  of  the  accused-appellants.   Accordingly,   accused   Santosh
Manohar Chavan (A-1) was arrested on 22.12.2003  and  from  the  information
obtained during the course of his interrogation, accused Nos. 2  to  7  were
arrested.  The disclosures made by the  accused  led  to  recovery  of  gold
articles,  bank  passbooks  etc.   from  the  house  of  A-7  as   well   as
incriminating weapons like iron rods, cut bars of guns,  one  muzzle  loader
gun etc. Test Identification Parade was held where A-1,  A-2  and  A-3  were
identified by witnesses.  The  assets  acquired  by  the  aforesaid  persons
around that time including motor bikes, a Tata Sumo jeep  etc.  were  seized
alongwith bank statements of the accused, their  wives  and  relatives.  The
bank statements revealed that cash deposits well beyond the  income  of  the
accused were made around the time  of  the  incidents.   The  accounts  also
showed purchase of Tata  Sumo  by  A-1  at  a  cost  of  Rs.  2.6  lakhs  on
24.08.2003 and purchase of motorcycles by A-2  and  A-3  on  20.11.2003  and
25.11.2003 respectively.

4.    According to the prosecution, investigation further disclosed that  A-
1 Santosh Manohar Chavan who plied an auto rickshaw in Mumbai claimed  super
natural powers to bring about “money showers” i.e. to multiply  cash  money.
According to the prosecution while A-2 was a LIC agent, A-3 was employed  in
a private institution and A-6 was running a ration shop.  All the  aforesaid
accused used to spread  and  circulate  amongst  innocent  and  unsuspecting
persons the magical powers claimed by  A1  to  multiply  money  by  creating
“money showers”. They would ask the victims to come to Malvan with  currency
notes of higher denominations alongwith empty  gunny  sacks  (ostensibly  to
collect the proceeds of the money shower).  In Malvan they were  put  up  in
lodges and hotels.  From those  lodges  and  hotels  the  victims  would  be
ferried to the Nandos plateau by auto rickshaw.  The vehicle will halt  near
the village Panchayat Office from where the victims were asked to travel  by
foot to the plateau.  The prosecution alleged that the accused ensured  that
the victims did not bring their own vehicles to Malvan  and  that  they  did
not leave any personal effects in the hotel or lodge.  All this was done  to
avoid any trace of the victims.  The registers of lodges  and  hotels  where
the deceased  persons  and  some  of  the  accused  had,  according  to  the
prosecution, stayed on different dates during the relevant period were  also
seized in the course of investigation.

5.    According to the prosecution, the investigations carried out had  also
revealed that one Shankar Sarage and one Hemant Thakre were  done  to  death
by the accused persons on 24.9.2003.   Dead bodies number  1  and  10  (DB-1
and DB-10) were claimed to be of the aforesaid two  persons  who,  according
to the prosecution, were killed on 24.9.2003.  The accused were  charged  of
the offence of kidnapping and murder of the aforesaid two persons  and  were
put to trial in the proceeding registered as Sessions Case No.  4/2005.   On
the basis of the report of the forensic team of the  Miraj  Medical  College
the prosecution alleged that the aforesaid two persons were  killed  by  gun
shots, swords, rods and revolver and that they have been robbed of a sum  of
Rs. 1,55,000/-.  While the Trial Court acquitted the accused A-1, A-2 and A-
3 on the ground that the dead bodies DB-1 and DB-10 could not be  identified
to be that of deceased Shankar Sarage and  Hemant  Thakre,  the  High  Court
reversed the said finding insofar as deceased Shankar  Sarage  is  concerned
and held accused 1, 2 and 3 to be guilty of murder of Shankar Sarage.   They
have been accordingly sentenced to undergo RI for life.

6.    The prosecution had further alleged that the second incident  involved
four persons i.e. Vijaysinha Dude, Dadasaheb  Chavan,  Sanjay  Garware   and
Vinayak Pisal and that the same had  occurred  on  30.10.2003.   It  is  the
further case of the prosecution that Dead Bodies i.e. DB-2, DB-3,  DB-4  and
DB-5 were that of the four deceased persons mentioned above who were  killed
and robbed of Rs. 3,10,000/-.  Such identification was claimed on the  basis
of super-imposition tests carried out at the  Forensic  Laboratory,  Kalina,
Bombay. Sessions Case No. 5/2005 was  registered  in  respect  of  the  said
incident wherein the accused A-1, A-2, A-3 and A-6 were tried and  convicted
under Section 302/120B IPC and other provisions  of  the  Code  as  well  as
under different provisions of the Arms Act.   They  have  been  awarded  the
death sentence by the learned Trial Court which has been  confirmed  by  the
High Court by the order under challenge in the present appeals.

7.    The prosecution has further alleged that the third  incident  occurred
on 14.11.2003 and involved four persons of a family who were  identified  to
be Kerubhai Mali, Anita Mali, Sanjay Mali and Rajesh Mali.  On the basis  of
the report of DNA analysis, the prosecution alleged that dead  bodies  DB-8,
DB-7, DB-6 and DB-9, respectively, belonged  to  the  aforesaid  persons  in
seriatim and that they  had  been  killed  and  robbed  of  Rs.  3,10,000/-.
Sessions Case No. 3/2005 was registered against accused A-1, A-2, A-3 and A-
6 in respect of the incident in question.   All  the  four  accused  persons
have been convicted by the learned Trial  Court  inter  alia  under  Section
302/120B IPC  and  other  provisions  of  the  Code  as  well  as  different
provisions of the Arms Act and have been sentenced, inter  alia,  to  death.
The conviction and sentence has been maintained by the High Court.

8.    Though separate chargesheets in respect  of  the  three  incidents  of
alleged murder on  the  three  different  dates  were  filed  in  Court  and
separate sessions cases were registered wherein separate  charges  had  been
framed against the accused persons, evidence in all the  cases  was  led  in
the trial of Sessions Case No. 3/2005.

9.    128 witnesses including 38  panch  witnesses;  22  persons  acquainted
with the accused and the victims;  9 relatives of the  victims;  13  medical
officers; 5 witnesses connected with the mobile  phone  calls  made  by  the
accused; 29 police witnesses; two executive  magistrates;  5  bank  officers
and  5  DNA  experts,  super-imposition  experts,  handwriting  experts  and
ballistic experts were examined by the  prosecution.   The  accused  persons
denied their involvement in any of the offences  alleged  against  them  but
did not adduce any evidence.

10.   A broad overview of the core evidence brought by  the  prosecution  to
bring home the charges against the accused may now be made.

      On the basis of the report of the Forensic Expert  Committee  (Exhibit
419) proved by PW-76, Dr. Anil  Jinturkar,  the  prosecution  has  tried  to
prove that the death of all the 10 deceased (DB-1 to  DB-10)  was  homicidal
in nature.  The findings of the forensic tests, as deposed to by PW-76,  may
be set out below:-

 • DB 1 was of a human male aged between 25 to 45 years. Time of death was 6
   months prior to examination. Probable cause of death was opined as single
   hole firearm injury to the thorosic region, although the exit  wound  was
   not found. Other injuries to the mandible and verterbrae were caused by a
   hard, blunt object.  Although  the  appearance  of  these  injuries  were
   similar to those caused by iron bars, PW-76 could not  affirm  that  iron
   bars alone caused the injuries  due  to  the  non-availability  of  brain
   matter. Analysis of brain and brain matter would reflect  the  impact  of
   blows from an iron bar, in the absence of which, PW-76 could not rule out
   the possibility of the injuries due to fall.

 • DB 2 was of human male aged between 25 to 45 years and the person died  6
   months before the examination. He stated that  all  injuries  expect  the
   gnawing marks were ante mortem & the probable cause of death was the head
   injuries resulting into the fracture of the skull & these injuries  could
   have been caused by a sharp cutting object.

 • DB 3 was of human male aged between 25 to 45 years and the person died  6
   months before the examination. He stated that  all  injuries  were  found
   ante mortem & the probable cause of death was fire arm injury to chest  &
   fracture of skull leading to head injury. Two injuries of circular  holes
   on posterior parts were caused by fire arm & rest of the injuries by hard
   & blunt object.

 • DB 4 was of human male aged between 25 to 45 years and the person died  6
   months before the examination. He stated that  all  injuries  expect  the
   gnawing marks were found ante mortem & the probable cause  of  death  was
   the head injury due to fracture of the skull  bone  with  blunt  thorosic
   trauma associated with multiple ante mortem fracture. It was stated  that
   all ante mortem injuries could be caused by hard & blunt object.

 • DB 5 was of human male aged between 25 to 45 years and the person died  6
   months before the examination. He stated that  all  injuries  could  have
   been caused by hard & blunt object & the cause of death was  head  injury
   due to fracture of skull bone with blunt thorosic trauma associated  with
   multiple ante mortem fracture.

 • DB 6 was of human male aged between 12 to 18 years and the person died  6
   months before the examination. An ante mortem injury of  linear  fracture
   over the left aspect of frontal bone was found & two post mortem injuries
   of broken styloid processes (points of attachment for muscles) &  gnawing
   marks at left & right hands were found. The cause of death was stated  to
   be head injury as a result of linear fracture of bone of left side.

 • DB 7 was of human female aged between 25 to 45 years & could have died  6
   months before the examination. All the injuries found were ante mortem  &
   the probable cause of death was fire arm injuries to abdomen  and  pelvis
   with evidence of multiple fracture of skull leading to head injury.

 • DB 8 was of human male aged between 25 to 45 years & could  have  died  6
   months before the examination. All injuries of fracture of right  frontal
   bone were found ante mortem caused probably by a hard &  blunt  object  &
   some gnawing injuries were found post-mortem. The probable cause of death
   was stated to be head injury resulting into fracture of vault &  anterior
   cranial fossa at the base of the skull.

 • DB 9 was of human male aged between 18 to 20 years & could  have  died  6
   months before the examination. All injuries were found ante mortem & were
   caused by hard & blunt object. The cause of injury was stated to be  head
   injury resulting into depressed communicated fracture of skull bone.

 • DB 10 was of human male aged between 25 to 45 years & could have  died  6
   months before the examination. He opined that like DB 1 and 3, DB 10  had
   also suffered fire arm injuries, but he could not opine as to  what  type
   of fire arm was used in as much as it was a shot gun or rifle, but at the
   same time it was noticed that no exit wound was found on the skeleton.




11.   The prosecution has laid evidence to show that blood  samples  of  the
relatives of some of the deceased persons were collected as  per  prescribed
guidelines and alongwith some parts of the organs of the deceased were  sent
to the CDFD at Hyderabad for DNA analysis.  The report of Dr.  S.  Pandurang
Prasad, Senior Technical Examiner in the laboratory (PW-107) to  the  effect
that dead bodies 1, 2, 6, 7, 8 and 9 were  found  to  be  that  of  deceased
Shankar Sarage, Vijaysinha Dudhe,  Sanjay Mali,  Anita  Mali,  Kerubha  Mali
and Rajesh Mali was brought on record by the prosecution.  In so far as  DB-
2 to 5 are concerned, the identity thereof could not be established  by  DNA
analysis as the specimens sent were found not to be  fit  for  a  conclusive
determination of the question.  However, the skulls of the DB-2  to  5  were
sent for superimposition tests which  were  carried  out  by  PW-108,  Ratna
Prabha Gujarati.  The aforesaid witness had testified that  the  probability
of her finding being correct is  almost  99%  and  the  reliability  of  the
superimposition test technique is 91%.  PW-108 had testified, on  the  basis
of superimposition tests, that  DB-2  to  5  were  of  deceased,  Vijaysinha
Dudhe, Dadasaheb Chavan, Sanjay Gavare, and Bala Pisal respectively.

12.   The prosecution has sought to  establish  the  identity  of  the  dead
bodies, additionally, on the basis of oral evidence.  In  this  regard,  PW-
66, Mohan Doke, brother of deceased Anita Mali, (DB-7)  had  identified  the
mobile phones, pieces of saree, hair clips, brief case,  wrist  watch,  gold
rings, earrings along with mangal sutra belonging to  members  of  the  Mali
family which were either recovered from  the  spot/place  of  occurrence  or
from other persons who had come into possession  of  the  same  through  the
accused.  In respect of DB-2  to  5,  the  identification  of  the  personal
effects of the deceased were made by close relations.  Specifically,  PW-97,
Pradip Pisal, brother of deceased Vinayak Pisal (DB-5)  had  identified  the
clothes worn by the deceased whereas PW-98, Vinayak Dinkar  Chavan,  brother
of deceased Dadasaheb Chavan (DB-3) had identified the clothes and  chappals
worn by the deceased as well as the diary belonging to him.  Similarly,  PW-
80, Smt. Jyoti Gavare, wife of deceased Sanjay Gavare (DB-4) identified  the
clothes recovered from the dead body as well  as  the  rubber  ring  of  the
deceased worn by him around the waist. Similarly, DB-2 was identified by PW-
63-Fatehsingh Dudhe to be the dead body of Vijaysinha Dudhe on the basis  of
the gaps in the central teeth of the dead body and the personal  effects  of
the deceased like clothes, shoes, wrist watch etc.  Similarly, the DB-1  was
identified to be the dead body of Shankar Sarage by PW-119 Parvati  Shankar,
the widow of the deceased. Such identification was made on the basis of  the
clothes that the deceased was wearing at the time he had left his home.

13.   On the basis of the above evidence brought by  the  prosecution  there
can be no manner of doubt, whatsoever, that the death of  all  the  deceased
persons except  Hemant  Thakre  (DB-10  -  whose  dead  body  could  not  be
identified) was  homicidal  and  that  DB-1  to  9  were  of  the  deceased,
(excluding Hemant Thakre) as claimed by the prosecution.

14.   The evidence of the relevant witnesses examined by the prosecution  in
all the three cases to establish a possible link   and  show  a  live  nexus
between the crime(s) committed and the persons responsible therefor may  now
be taken note of.

(a)   PW- 1, Ashok Nemalekar used to ply his auto-rickshaw  in  Malvan.   He
      has deposed that on 14.11.2003 he ferried five passengers  from  Mayur
      Lodge to the Village Panchayat Office at about 11.00-11.30 am. On  the
      basis of the photographs shown to him by the investigating team he had
      identified four members of the Mali family i.e.  Sanjay  Mali  (DB-6),
      Anita Mali (DB-7), Kerubhai Mali (DB-8), Rajesh Mali  (DB-9)  and  the
      accused No.2 Amit Ashok Shinde as his passengers.

(b)   PW-4 Smita is the wife of A-7.  She had testified that A-1  had  lived
      in her house since his childhood until he moved to Mumbai to ply auto-
      rickshaw.  Though he would visit  her  only  once  in  a  year  during
      Ganpati Festival (usually held in the calendar month of August).   A-1
      had visited her in  May,  2003  and  stayed  with  her  for  15  days.
      Thereafter, again in September, 2003 A-1, A-2 and A-3  stayed  at  her
      home for 10 days.  According to  PW-4  during  this  visit  she  could
      notice that the  three  accused  would  go  to  the  plateau  (Nandos)
      ostensibly for hunting though they never returned with any prey.  This
      witness had further deposed that A-1 and A-3 unexpectedly  arrived  at
      her house on 24.9.2003 at about 1.30 a.m. and when A-7 (husband of PW-
      4) had asked them why they had come at such an odd  hour  A-1  replied
      that they had some urgent work.  According to PW-4 at about 9.30  a.m.
      in the morning, A-1’s mobile phone started ringing  and  A-3  answered
      the same by saying “Bol Amit” (Amit speak).  Thereafter within half an
      hour A-1 and A-3 left for Katta in the Tata Sumo jeep  by  which  they
      had come.  According to PW-4, her daughter Deepika  had  informed  her
      that she had seen A-3, lurking around her school, which  is  near  the
      Nandos Village Panchayat. A-3, on being asked what he was doing in the
      vicinity of the school had informed Deepika that she  must  have  seen
      somebody else as he had  not  gone  near  the  school.   PW-4  further
      deposed that A-3 left  her house  at  about  6.00  p.m.  on  24.9.2003
      followed by A-1  (around 7.00-7.15  pm)  and  they  had  returned   at
      about 9.00 -9.30 p.m.   thoroughly   drenched   though   it   was  not
      raining.    PW-4   had  further   testified    that       the  accused
      had asked her to wash their clothes which she refused to do at  night.



           PW-4 in her deposition had further stated that on 22.10.2003, A-
      1, his second wife Sonali, A-3 and a friend of A-1, one Jeetu, visited
      her and stayed for two days.  On  both  the  dates  A-1  and  A-3  had
      visited Katta.  According to this witness about 5 to 6 days thereafter
      and two days after Diwali day of Bhaubeej A-1,  Sonali,  A-3  and  A-6
      came to her house where they were joined by A-2.  Next day, she saw A-
      1, A-2, A-3 and A-6 bathing near the well and in the rear side of  her
      house.  She has further testified that A-6 was suffering  from  a  cut
      injury on his index finger for which he had to be taken  to  a  doctor
      who had put a bandage on the injured index finger.

           PW-4 has  further testified that  on  12.11.2003  A-1, A-3,  A-6
       and    Sonali   had  come   to   her house.   On the  next  day   the
      accused  persons   left   her    house in the  morning   for     Katta
      and  returned  in   the

      evening.  On 14.11.2003 A-1, A-3, A-6 left her house at  about  10.00-
      10.30 A.M. and returned around 3.00 P.M. with A2.  Before entering the
      house they had bathed near the well. Thereafter the accused  left  her
      house on different dates.

(c)   PW-5 Sachin, who is the younger brother of A-1 had testified  that  he
      had transported some of  the  victims  in  his  auto-rickshaw  at  the
      request of A-1.  His testimony was, however, rejected by  the  learned
      Trial Court on the ground that the same appeared to be incredible.

(d)   PW-8 Vinod Deorukhkar is an employee of Mayur Lodge, Malvan.   He  had
      testified that on 14.11.2003, at about 7.00-7.30  am,  one  man,  aged
      about 40-45 years, one woman, aged about 30-35 years, two  boys,  aged
      between 8 to 10 years, and one man, aged about  28-30  years,  reached
      Mayur Lodge.  They were allotted room  no.6.   When  they  were  asked
      their names, the man aged 28-30 years came  forward  and    introduced
      himself   as  Anil Jadhav; thus, the entry “Anil  Jadhav  and  family”
      was made in the register.  They left their room at 9.00  am  that  day
      for a walk  and  returned  at  11.00  am.   Shortly  thereafter,  they
      informed that they would be leaving the hotel.   At  that  time,  PW-8
      noticed that the man, aged about  45  years,  was  carrying  a  medium
      sized,  grey  suitcase/briefcase.  He   identified   Karubhai   Mali’s
      briefcase as the one carried by the man, before the Court.  PW-8  also
      identified A2 as the man who disclosed his name as  Anil  Jadhav.   He
      identified the Mali family from photographs shown to him in Court.

(e)   PW-9 Appa  is  the  Manager  of  Pallavi   Lodge   at  Kankavli.   The
      lodge  register   which  was   exhibited   (Exh.-89)  showed  that  on
      29.10.2003  five  persons including one Amit Shenoy occupied room  No.
      5 of the  lodge.        This witness recognized A-2 as the person  who
      called himself  as  Amit   Shenoy.   This   witness   identified   the
      other four persons  from   the   photographs   shown   to   him    and
      deposed  that  they had left the room on the next day i.e.  30.10.2003
      at about 9.00 a.m.  The persons identified by him from the photographs
      are the deceased Vijaysinh  Dudhe  (DB-2),  Dadasaheb  Chavan  (DB-3),
      Sanjay Gavare (DB-4) and Bala Pisal (DB-5).

(f)   PW-10 Yogesh Dhake  had  testified  that  deceased  Dadasaheb  Chavan,
      whose diary was found by the police, and Vijaysinh Dudhe (DB-3 and DB-
      2) had insisted on their being given a sum of Rs. 3,00,000/- promising
      that they would return Rs. 6,00,000/-. According to  this  witness  on
      28.10.2003 he gave a  sum of  Rs. 3,10,000/- (which he  had  collected
      from another customer for investment purpose)  to  the  aforesaid  two
      persons and one Sanjay Gavare (DB-4)  who  was also  known   to   him.
      This witness has also testified that he was  introduced   to   Vinayak
      Pisal  (DB-5) and  Accused No. 2.  All the aforesaid persons told  him
      that  they would   leave for  Kankavli  at   11.30  p.m.     According
      to    this     witness     on       the     next     day      deceased
      Dadasaheb Chavan called to inform him that they  had  reached  Pallavi
      Lodge and that he could be reached on a different mobile number  which
      turned out to be that of A-2.

(g)   PW-12 – Dipak Kumar who was working as a Booking  Clerk  of  Sarvottam
      Tours and Travels had deposed that A-2 whom he knew by name had booked
      5 tickets for the journey on 13.11.2003 from Borovili  to  Malwan  and
      that at Varshi one male person, one female   and  two  children  along
      with A-2 had boarded the bus.


(h)   PW-14- Jagan  Patil,  was a  friend of Bala  @  Vinayak Pisal  (DB-5).
      PW-14’s evidence shows how, under the guise of “money shower”  he  was
      duped Rs 3 lakhs.   He  had  gone  with  another  sum  of  Rs.3  lakhs
      for ‘money shower’  for  the  second  time  but  he  was sent back  by
      the accused.  This  was due to  the  fact   that  he   had   gone   to
      Nandos   in   a   private    vehicle instead of using public transport
      as advised by the accused.


(i)   PW-15 Amit Patel is the son of the owner of the Konkan Plaza Hotel  at
      Kankavli.  He testified that he used to maintain the  hotel  register.
      The hotel  register  which  was  exhibited  (Exh-120)  indicated  that
      deceased Shankar Sarage (DB-1) and Hemant Thakre (DB-10) and one Samir
      Sonavane had arrived at the lodge on 25.09.2003 (1.00 A.M.) and stayed
      in room No. 5.   The  evidence  of  PW-104  Dipak  Wagle  (handwriting
      expert) is to the effect that the handwriting in the register  was  in
      the hand of A-2.  (From the above it is evident that A-2  had  used  a
      fake name i.e. Samir Sonavane to sign the register)

(j)   PW-17  Subhash  Chalke   testified  that  he    had      given     Rs.
      1,55,000/-  to  his  friend  deceased  Shankar   Sarage    (DB-1)   on
      22.09.2003   for  the   purpose  of   money  shower.       He     also
      testified  that   he   had  met   A-1, A-2 and A-3 in the presence  of
      deceased Shankar Sarage a couple of days before the money  was  handed
      over to the deceased.  He further stated that after he had handed over
      the money, the deceased had contacted A-1 from a PCO and informed  him
      that the money had been arranged.  Further PW-17 had  stated  that  on
      23.09.2003 he received a phone call from the deceased  that  he  along
      with deceased Hemant Thakre (DB-10) and  A-1 & A-3 were proceeding  to
      Malwan.

(k)   PW-22 Anil Kisan Garate, a gold smith, testified that on 21.11.2003  a
      gold ring was sold to him by A-6  claiming  the  same  to  be  of  his
      grandmother.  The said ring has been identified by PW-66, Mohan Dhoke,
      brother of deceased Anita Mali, to be belonging to his sister.

(l)   PW-18 – Aijaz had deposed as to how he had  been  cheated  by  A-1  of
      Rs.1,20,000/-  on  two  different  occasions  (Rs.60,000/-   on   each
      occasion) by promise of money shower.

(m)   PW-30 Dr. Rajendra Rane had testified that on 30.10.2003 he treated A-
      6 for a cut injury on the right index finger.  (knife was recovered at
      the instance of A-6)

(n)   PW-34 Satish is elder brother of A-7 and another  uncle  of  A-1.   He
      has deposed with regard to purchase of Tata Sumo vehicle by A-1 in the
      name of A-2 and payment of Rs.10,000/-  on  24.8.2003  and  thereafter
      payment of Rs.85,000/- in connection with the aforesaid.  This witness
      has also deposed with regard to the nervousness and apprehension shown
      by A-1 after the dead bodies were recovered.

(o)   PW-47 Chetan Bhagwan Rawoot, a classmate of  A-6,  testified  that  on
      6.12.2003 A-6 had handed over a Rado watch to  him  for  safe  keeping
      claiming that it belonged to one of his customers who had not paid his
      dues.  PW-66 (brother of deceased Anita Mali) had identified the  said
      watch as belonging to deceased Kerubhai Mali.




(p)   PW-49 Hariram Patil had testified that he had agreed to sell his  shop
      in  Eksar,  Borivali  to  the  father  of  A-6,  one  Dhanaji  Shinde.
      According to PW-49 he had received part payments in cash on  15.6.2003
      and 25.8.2003 and on 1.12.2003  he  had  received  a  cheque  for  Rs.
      50,000/- drawn on Maratha Cooperative Bank from A-6.   On  30.12.2003,
      the police accompanied by A-6, arrived at his shop and he handed  over
      Rs.50,000/- cash, which A-6 had paid to him earlier.

(q)   PW-65 Vimal was engaged in  the  business  of  sale  and  purchase  of
      second-hand vehicles.  He had deposed regarding the  sale  of  a  Tata
      Sumo vehicle to A-1, in the name of A-2 and receipt of Rs.95,000/-  in
      cash from A-1 in two instalments.

(r)   PW-70 – Harjeet Singh Kochar,  used to  run a  garage  and  also  used
      to deal with sale   and   purchase  of   second-hand   two   wheelers.
      This witness  has  deposed  that  on   20.11.2003,     A-2    and  A-3
      (he   had     identified   them)    had   visited   his   garage   for
      purchase of second-hand motor bikes.   PW-70  has  also  deposed  that
      while on 22.11.2003 he sold one motorcycle to  A-2  who  paid  to  him
      Rs.17,500/-, on 25.11.2003 A-2 and A-3 visited his garage again and A-
      3 purchased another motorcycle for  Rs.20,500/-.  Both  these  amounts
      were paid to him by the accused in cash.

(s)   PW-75 Santosh Yadav is another  relative  of  A-1.  This  witness  has
      corroborated the evidence of PW-4 with regard to the visit of A-1 to A-
      3 to the house of PW-4 on 5 occasions between  October  and  December,
      2003 and that A-6 had accompanied the other accused persons on 2 or  3
      occasions.  He had  also  testified  that  he  had  seen  the  accused
      bringing guns and swords to the house of PW-4 who was aware  that  the
      accused persons were in possession of fire arms and other weapons.

(t)   PW-76 Dr. Jinturkar was the head of the team of Forensic  Experts   of
      Miraj   Medical   College,   Mumbai    constituted     for    forensic
      examination  of   the     remains   of  the  deceased  persons.   This
      witness had testified that DB-1 to DB-7 were received in  the  Medical
      College, Miraj on 23.12.2003  and DB-8 and DB-9 on 26.12.2003 and  DB-
      10 on 5.1.2004.  (The findings of the committee proved by this witness
      have already been extracted above.)

(u)   PW-107 Dr. S. Pandurang Prasad was, at the relevant time,  working  as
      a Senior Technical Examiner  in  the  laboratory  of  DNA  and  Finger
      Printing Services, CDFD, Hyderabad.  This witness has  testified  that
      upon the workable bone and blood samples, he found that DB-1  was  the
      biological relative of Mr. D.B. Sarge, D-8 was biological father of DB-
      6 & DB-7 was biological mother of DB-6. DB-6 & DB-9  were  also  found
      biologically related.  DB-7 was found biological relative of  Ratnakar
      & Mohan Tukaram Doke.    DB-8  was  found  biological  son  of    Mrs.
      Yamunabhai  Nanaji   Mali  and  biological father   of    DB-9.   DB-2
      was   found   biological   son  of    Mr. Vinayak Anandrao Dudhe, aged
      80 years and                                  biological  relative  of
      Mr. Ranjitsing Vinayak aged 40 years.
(v)   PW-100, Babaji s/o Bhaskarrao  Pavade,  Branch  Manager  of  Mahanagar
      Cooperative Bank, Turbhe Branch, New  Mumbai,   PW-109,  Anand  Vishnu
      Banodkar, Officer attached to Bank of Maharashtra, Dahisar Branch, PW-
      110-Vijaykumar Sangodkar, Branch Manager, State Bank of India, Dahisar
      Branch,  PW-111, Krishna Dattaram Parab, Branch Manager of the Greater
      Bombay  Cooperative  Bank,  Borivali  Branch  and  PW-112,  Vidhyadhar
      Rawool, Branch Manager of Maratha Sahakari Bank Ltd., Borivali  Branch
      have proved the deposit of several cash amounts in the  bank  accounts
      of the accused, their wives or their immediate  relatives.   All  such
      deposits were made in and around the relevant time.

15.   Ms. Aparna Jha, learned counsel has very elaborately argued  the  case
of the appellants contending that in the absence of any direct evidence  the
prosecution not only has to prove that circumstances  incriminating  to  the
accused had been laid before the Court but further that  the  sum  total  of
such evidence unerringly points to the commission of the alleged offence  by
the accused leaving no room for any other view.  Learned counsel  has  taken
us through the relevant parts of the evidence of the material  witnesses  to
contend that the same are not free from doubt and ambiguity and are  tainted
on  account  of  embellishments  and  improvements.   No  circumstance  that
implicates the accused-appellants, much less a chain of circumstances  which
admits of no other possibility except the guilt of  the  accused,  has  been
established by the prosecution, in the present case,  contends  the  learned
counsel.  In particular, learned counsel has pointed out that  the  identity
of the dead bodies recovered will always remain in  doubt  in  view  of  the
extreme decomposition of the dead bodies when recovered.  It is  urged  that
DNA matching and super-imposition tests cannot lead to firm  and  conclusive
results, beyond all reasonable  doubt,  as  regards  the  identity  of  dead
bodies.  That apart, learned counsel  has  pointed  out  that  some  of  the
registers of the lodges and hotels where the victims were allegedly  put  up
by the accused contain over-writings, additions and  deletions  which  would
make the same highly unreliable  and  unsafe  in  order  to  arrive  at  any
conclusion with regard to the involvement of the accused.

16.    Shri  Sushil  Karanjakar,  learned  State  counsel,  in  reply,   has
submitted that in a case of the present nature where events had occurred  as
a result of a meticulous planning made by the accused  persons,  absence  of
any eye witness or direct evidence is, but, natural.  Learned State  counsel
has however pointed out that the prosecution has systematically laid  before
the Court  one  adverse/incriminating  circumstance  after  the  other,  the
cumulative effect of which satisfies the test which circumstantial  evidence
has to pass through before acceptance by the Court.   According  to  learned
counsel, in the present case, not only  highly  incriminating  and  material
circumstances have been established beyond doubt  by  the  prosecution,  the
cumulative effect of such circumstances points to only one  conclusion  i.e.
that the accused and no one else who had committed the  crime  alleged.   In
this regard learned State counsel has drawn the attention of  the  Court  to
paragraph 96 of the judgment of the High  Court  wherein  the  circumstances
held to be proved and established by the prosecution has  been  set  out  in
seriatim.

17.   We may now proceed to analyse the substratum of the  evidence  adduced
by the prosecution as noted above.  As already held,  the  homicidal  nature
of death of the concerned persons and their identities (except DB-10  Hemant
Thakre) has been conclusively established by the prosecution.  In so far  as
the alleged involvement of the accused in the crimes  alleged  against  them
is concerned, the evidence and other materials  on  record  makes  it  clear
that A-1, A-2, A-3 and A-6 were known to each other and they  were  residing
in Mumbai.  It was deliberately circulated and spread by the accused that A-
1 was gifted  with  super-natural  powers  of  causing  money  showers  i.e.
multiplying money. The evidence on record also establishes that the  accused
had been persuading people, including  the  victims,  to  arrange  for  cash
money and bring the same to them at Malvan or Kankavli so that the same  can
be multiplied.  Accordingly, the victims, including  the  deceased  persons,
after obtaining cash money from different sources, had  come  to  Malvan  or
Kankavli and they were put up in different  lodges/hotels  by  the  accused.
The  prosecution  had  also  established   that   while   staying   in   the
hotels/lodges the victims and the accused did  not  use  their  real  names.
Specifically,  the  prosecution  evidence  shows  that  A-2   arranged   for
conveyance and stay of the victims whereas A-3 had assisted A-2 in  shifting
the victims from the lodges to the place where the  crimes  were  committed.
The evidence adduced also shows that the victims had left  in  the  mornings
of the days of incident  for  the  Nandos  plateau  alongwith  some  of  the
accused.    A-1 was the money spinner and A-6 was  in  the  company  of  the
other accused with full knowledge of what  was  going  on  and  with  active
participation  therein.  The  victims  were  missing  for  days  and   their
relatives had lodged complaints in  different  police  stations.   From  the
place of occurrence articles like  wearing  apparels,  brief  case,  diaries
etc. were recovered which have been proved to be belonging to  some  of  the
deceased persons whereas articles like wrist  watch,  jewellery  items  etc.
also belonging to the deceased had been recovered from persons who  were  in
such  possession  through  the  accused.   All  such  articles   have   been
identified by the close relatives of the deceased to  be  belonging  to  the
respective deceased person(s).   Around  the  time  of  the  incidents,  the
accused persons had made unaccounted cash deposits in  their  Bank  accounts
or in the accounts of their  close  relatives  and  A-1,  A-2  and  A-3  had
purchased automobiles/motorcycles on cash  payment.   The  sources  of  such
receipts have not been explained.   The  above  conclusions  which  we  have
thought  proper  to  draw  on  a  consideration  of  the  evidence  of   the
prosecution appears to be more or less in  conformity  with  what  has  been
found by the High Court to have been proved by the prosecution (para  96  of
the impugned judgment).  In the light  of  the  above  facts,  we   do   not
entertain any doubt, whatsoever, that in the present  case  the  prosecution
has succeeded in proving a  series  of  highly  incriminating  circumstances
involving the accused all of which, if pieced together, can  point  only  to
one direction, namely, that it is the  accused-appellants  and  nobody  else
who  had  committed  the  crimes  in  question.    We,  therefore,  have  no
hesitation in affirming the impugned common judgment and order of  the  High
Court holding the accused A-1, A-2, A-3 and A-6 in Sessions Case No.  3/2005
and 5/2005 guilty of  commission  of  the  offences  alleged  including  the
offence under Section 302 IPC read with Section 120-B IPC.   We  also  agree
with the finding of the High Court that the accused  A-1,  A-2  and  A-3  in
Sessions Case No. 4/2005 are guilty  of  commission  of  the  offence  under
Section 302 IPC read with  Section  120-B  IPC,  insofar  as  the  death  of
Shankar Sarage (DB-1) is concerned.

18.   Having held that the accused-appellants are  liable  to  be  convicted
for the  offences,  inter  alia,   under  Section  302/120B  IPC,  the  next
question, and perhaps a question of equal if not greater significance,  that
would require consideration is the  measure  of  punishment  that  would  be
just, adequate and complete.  It has already been noted that in two  of  the
cases the accused-appellants have been awarded death penalty whereas in  the
third case the sentence of life imprisonment has been  imposed  in  reversal
of the verdict of acquittal rendered by the learned Trial Court.

19.   Shri Colin Gonsalves, who  has  argued  the  case  on  behalf  of  the
appellants in so far as sentence is concerned, has submitted  that  all  the
accused persons are young and at the time of commission of the offence  they
were between 23-29 years of age.  None of the  accused-appellants  have  any
previous criminal record; they have spent 10 years in jail custody  and  the
jail record  amply  demonstrates  that  while  in  custody  they  have  been
educating themselves and have passed or have partly completed  the  graduate
course under  the  Yashahantrao  Chavan  Maharashtra  Open  University.  The
accused-appellants  have  reformed  themselves  and,  if  rehabilitated   in
society, they can prove to be assets  to  Society,  it  is  submitted.   The
prospects of their committing any further crime, according  to  the  learned
counsel, is remote.  It has also been  submitted  by  Shri  Colin  Gonsalves
that the accused come from the lowest strata of society  and  had  committed
the crime due to poverty.  All these, according to the learned counsel,  are
mitigating  circumstances  which  if  balanced  against  the   incriminating
circumstances of the case would tilt the scales in favour of commutation  of
the sentences of death  into  that  of  life  imprisonment.   Stressing  the
principle laid down in Bachan Singh  Vs.  State  of  Punjab[1],  Shri  Colin
Gonsalves has submitted that the legislative  policy  under  Section  354(3)
Cr.PC is that life imprisonment  is  the  rule  and  death  sentence  is  an
exception.  It is submitted by Shri Gonsalves that in the present  case  the
option of life imprisonment does not stand  “unquestionably  foreclosed”  so
as to justify the death penalty imposed.  Reliance has been  placed  on  the
decision in Santosh Kumar Satishbhushan Bariyar Vs. State of  Maharashtra[2]
to  contend  that  the  circumstances  set  out  above  are  all  mitigating
circumstances  that  ought  to  be  taken  into  account  at  the  time   of
consideration of the sentence to be imposed.   Particular  stress  has  been
laid on the observations in para 159 of the report that emphasis  that  must
be laid on the possibility of reform and rehabilitation of the accused  even
to the extent of requiring the State to prove that the  same  would  not  be
possible.  Shri Gonsalves has also drawn attention  of  this  Court  to  the
decision of this Court in  Mulla  &  Anr.  Vs.  State  of  Uttar  Pradesh[3]
(authored by the learned Chief Justice).  In  particular,  the  observations
in para 81 of the report has been placed to show that the state  of  poverty
of the accused is a  mitigating  circumstance  that  should  be  taken  into
account and that the initial shock of the circumstances in which  the  crime
is committed needs to be balanced with the  possibility  of  reform  of  the
accused over a period of time.  We were also reminded that the  long  period
of custody that  a  death  convict  has  endured  has  been  held  to  be  a
mitigating circumstance in Ramesh & Ors. Vs.  State  of  Rajasthan[4]  (Para
76). The decision of this Court in  Shankar  Kisanrao  Khade  Vs.  State  of
Maharashtra[5] (para 52) has been relied upon to contend that “to award  the
death sentence, the “crime test” has to be fully satisfied,  that  is,  100%
and “criminal test” 0%, that is, no mitigating  circumstance  favouring  the
accused.  If there is any circumstance favouring the accused, like  lack  of
intention to commit the crime, possibility of reformation, young age of  the
accused, not a menace to the society, no previous  track  record,  etc.  the
“criminal test” may favour the  accused  to  avoid  the  capital  punishment
………”.

20.   On the other  hand,  learned  counsel  appearing  for  the  State  has
submitted that the accused-appellants have committed not one  but  a  series
of heinous, depraved  and  diabolical  crimes  resulting  in  the  death  of
innocent and unsuspecting  victims.   The  crimes  have  been  committed  to
satisfy the greed for money.  The criminal acts  committed  by  the  accused
are the result of a carefully planned and meticulously executed  conspiracy.
 Societal needs would  justify  the  upholding  of  the  sentence  of  death
awarded in the present case to the accused-appellants.  The cry for  justice
by the families of the victims cannot fall on deaf ears, it is contended.

21.   Death penalty jurisprudence in  India  has  been  widely  debated  and
differently perceived.  To us, the essential principles in  this  sphere  of
jurisprudence has been laid down by two Constitution Benches of  this  Court
in Jagmohan Singh Vs. The State of U.P.[6] which dealt with  the  law  after
deletion of Section 367(5) of the old Code but prior  to  the  enactment  of
Section 354(3) of  the  present  Code  and  the  decision  in  Bachan  Singh
(supra).  Subsequent opinions on the subject indicate attempts to  elaborate
the principles of law laid down  in  the  aforesaid  two  decisions  and  to
discern an objective basis to guide sentencing decisions  so  as  to  ensure
that the same do not become judge centric.

22.    The  impossibility  of  laying  down  standards  to  administer   the
sentencing law  in  India  was  noted  in  Jagmohan  Singh  (supra)  in  the
following terms:

      “The impossibility of laying down standards is at the very core of the
      criminal law as administered in India which invests the judge  with  a
      very wide discretion in the manner of fixing the degree of punishment.
      … The exercise of judicial discretion  on  well-recognized  principles
      is, in the final analysis, the  safest  possible  safeguards  for  the
      accused.”  (Para 26)


23.    Bachan  Singh  (supra)  contained  a  reiteration  of  the  aforesaid
principle which is to be found in para 197 of  the  report.   The  same  was
made  in  the  context  of  the  need,  expressed  in  the  opinion  of  the
Constitution Bench, to balance the aggravating and mitigating  circumstances
in any given case, an illustrative reference of which circumstances  are  to
be found in the report.  Bachan Singh  (supra),  it  may  be  noted,  saw  a
shift; from balancing the aggravating and mitigating  circumstances  of  the
crime as laid down  in  Jagmohan  Singh  (supra)  to  consideration  of  all
relevant circumstances relating to the crime as well as  the  criminal.  The
expanse of the death penalty jurisprudence was clearly but firmly laid  down
in Bachan  Singh  (supra)  which  can  be  summarized  by  culling  out  the
following which appear to be the core principles emerging therefrom.

      (1)    Life  imprisonment  is  the  rule  and  death  penalty  is  the
           exception. (para 209)

      (2)   Death sentence must be imposed only  in  the  gravest  cases  of
           extreme culpability, namely, in the “rarest of rare”  where  the
           alternative  option  of  life  imprisonment  is  “unquestionably
           foreclosed”. (para 209)

      (3)   The sentence is a matter of judicial discretion to be  exercised
           by giving due consideration to the circumstances of the crime as
           well as the offender.  (para 197)

24.   A reference to several other pronouncements  made  by  this  Court  at
different points of  time  with  regard  to  what  could  be  considered  as
mitigating and aggravating circumstances and how they are to  be  reconciled
has already been detailed hereinabove.  All that would be necessary  to  say
is that the Constitution Bench in Bachan Singh (supra) had  sounded  a  note
of caution against treating the aggravating and mitigating circumstances  in
separate  water-tight  compartments  as  in  many  situations  it   may   be
impossible to isolate them and both sets of circumstances will  have  to  be
considered to cull  out  the  cumulative  effect  thereof.   Viewed  in  the
aforesaid context the observations contained in para 52 of Shankar  Kisanrao
Khade (supra) noted above, namely, 100% crime test and 0% criminal test  may
create situations which may well go beyond what  was  laid  down  in  Bachan
Singh (supra).

25.   We may also take note of  the  separate  but  concurring  judgment  in
Shankar Kisanrao  Khade  (supra)  enumerating  the  circumstances  that  had
weighed in favour of  commutation  (Para  106)  as  well  as  the  principal
reasons for confirming the death penalty (Para 122).

      In para 123 of the aforesaid concurring  opinion  the  cases/instances
where the principles earlier applied to the sentencing  decision  have  been
departed from are also noticed.  Though such departures may appear  to  give
the sentencing jurisprudence in  the  country  a  subjective  colour  it  is
necessary to  note  that  standardisation  of  cases  for  the  purposes  of
imposition of sentence was disapproved in Bachan Singh (supra) holding  that
“it  is  neither  practicable  nor  desirable  to  imprison  the  sentencing
discretion of a judge or jury in the strait-jacket of exhaustive  and  rigid
standards”.(Para 195)  In this regard, the observations with regard  to  the
impossibility of laying down standards to regulate the exercise of the  very
wide discretion in matters of sentencing made  in  Jagmohan  Singh  (supra),
(Para 22 hereinabove) may also be usefully recalled.  In fact,  the  absence
of any discretion in the matter of sentencing has been the prime reason  for
the indictment of Section 303 IPC in Mithu Vs. State of Punjab[7]. The  view
of Justice Chinnappa Reddy in para  25  of  the  report  would  be  apt  for
reproduction hereinbelow:-

      “25.  Judged in the light shed by Maneka Gandhi and Bachan  Singh,  it
      is impossible to uphold Section 303 as  valid.  Section  303  excludes
      judicial discretion. The scales of justice are removed from the  hands
      of the Judge so soon as  he  pronounces  the  accused  guilty  of  the
      offence. So  final,  so  irrevocable  and  so  irrestitutable  is  the
      sentence  of  death  that  no  law  which  provides  for  it   without
      involvement of the judicial mind can be said  to  be  fair,  just  and
      reasonable. Such a law must necessarily be  stigmatised  as  arbitrary
      and oppressive. Section 303 is such a law and it must go  the  way  of
      all bad laws. I agree with my Lord Chief  Justice  that  Section  303,
      Indian Penal Code, must be struck down as unconstitutional.”



26.    In a recent pronouncement in Sunil Dutt Sharma vs.  State  (Govt.  of
NCT of Delhi)[8]  it has been observed by this Court that the principles  of
sentencing in our country are fairly well settled – the  difficulty  is  not
in identifying such principles but lies in the  application  thereof.   Such
application, we may respectfully add, is a matter of judicial expertise  and
experience where judicial wisdom must search for  an  answer  to  the  vexed
question —whether the option of life sentence is unquestionably  foreclosed?
 The unbiased and  trained  judicial  mind  free  from  all  prejudices  and
notions is the only asset which would guide the judge to reach the ‘truth’.

27.   Before proceeding to examine the relevant circumstances for  adjudging
the sentence that would be proper in the facts of the present case,  we  may
take notice of a recent pronouncement of this Court  in  Sushil  Sharma  Vs.
The State of NCT of Delhi[9]  wherein in paras 79, 80, and  81  this  Court,
once again, had the occasion to take notice of the circumstances  which  had
weighed in commutation of the death sentence as well  as  those  which  have
formed the basis for upholding such sentences.  Thereafter  in  para  81  of
the report it has been held that the core of a criminal  case  lies  in  its
facts  and  facts  differ  from  case  to  case.   The  relevant  paragraphs
mentioned above may now be recalled.

      “79.  We notice from the above judgments that mere  brutality  of  the
      murder or the number of persons killed or the manner in which the body
      is disposed of has not always persuaded this  Court  to  impose  death
      penalty.  Similarly, at times, in the peculiar  factual  matrix,  this
      Court has not thought it fit to award death penalty  in  cases,  which
      rested on circumstantial evidence or solely  on  approver’s  evidence.
      Where murder, though brutal, is committed driven by extreme  emotional
      disturbance and it does not have enormous proportion,  the  option  of
      life imprisonment  has  been  exercised  in  certain  cases.   Extreme
      poverty and social status has also been  taken  into  account  amongst
      other circumstances for not awarding death sentence.   In  few  cases,
      time  spent  by  the  accused  in  death  cell  has  been  taken  into
      consideration  along  with  other  circumstances,  to  commute   death
      sentence into life imprisonment.  Where the accused  had  no  criminal
      antecedents; where the State had not led any evidence to show that the
      accused is beyond reformation and  rehabilitation  or  that  he  would
      revert to similar crimes in future, this Court has leaned in favour of
      life imprisonment.  In such cases, doctrine of proportionality and the
      theory  of  deterrence  have  taken  a  back  seat.   The  theory   of
      reformation  and  rehabilitation  has  prevailed  over  the  idea   of
      retribution.

      80.   On the other hand, rape followed by a cold-blooded murder  of  a
      minor girl and further followed by  disrespect  to  the  body  of  the
      victim has been often held to be an offence attracting death  penalty.
      At times, cases exhibiting premeditation and meticulous  execution  of
      the plan to murder by leveling a calculated attack on  the  victim  to
      annihilate him, have been held to be  fit  cases  for  imposing  death
      penalty.  Where innocent  minor  children,  unarmed  persons,  hapless
      women and old and infirm persons have been killed in a  brutal  manner
      by persons in dominating position,  and  where  after  ghastly  murder
      displaying depraved mentality, the  accused  have  shown  no  remorse,
      death penalty has been imposed.  Where  it  is  established  that  the
      accused is a confirmed criminal and has committed murder in a diabolic
      manner and where it is felt that  reformation  and  rehabilitation  of
      such a person is impossible and if let free, he would be a  menace  to
      the society, this Court has not hesitated to confirm  death  sentence.
      Many a time, in cases of brutal murder, exhibiting depravity and  sick
      mind, this Court has acknowledged the need to send a deterrent message
      to those who may embark on such  crimes  in  future.   In  some  cases
      involving brutal murders, society’s cry for  justice  has  been  taken
      note of by this court, amongst other relevant factors.  But, one thing
      is certain that while deciding whether death penalty should be awarded
      or not, this Court has in each case realizing the irreversible  nature
      of the sentence, pondered over the issue many times over.  This  Court
      has always kept in mind the caution sounded by the Constitution  Bench
      in Bachan Singh that judges  should  never  be  bloodthirsty  but  has
      wherever necessary in the interest of society located  the  rarest  of
      rare case and exercised the tougher option of death penalty.



      81.   In the nature of things, there can be no  hard  and  fast  rules
      which the court can follow while considering whether an accused should
      be awarded death sentence or not.  The core of a criminal case is  its
      facts and, the facts differ from case to case.  Therefore, the various
      factors  like  the  age  of  the  criminal,  his  social  status,  his
      background, whether he is a confirmed criminal or not, whether he  had
      any antecedents, whether there is any possibility of  his  reformation
      and rehabilitation or whether it is a case where  the  reformation  is
      impossible and the accused is likely  to  revert  to  such  crimes  in
      future and become a threat  to  the  society  are  factors  which  the
      criminal court will  have  to  examine  independently  in  each  case.
      Decision whether to impose death penalty or not must be taken in light
      of   guiding   principles   laid   down   in   several   authoritative
      pronouncements of this Court in the facts and attendant  circumstances
      of each case.”
                                                       (Underlining is ours)




28.   In the present case, there is no manner  of  doubt  that  the  accused
appellants  have  committed  the  murder  of  as  many  as  9  innocent  and
unsuspecting victims who were led to believe that A-1 had magical powers  to
multiply money.  The deceased, after being killed, were robbed of  the  cash
amounts that they had brought with them for the purpose of  “money  shower”.
The criminal acts of the accused were actuated by greed for money  and  such
acts were the result  of  a  carefully  planned  scheme.   The  crimes  were
committed over a period of nearly two months in  three  different  episodes.
The assaults on some of the victims were merciless and  gruesome.   Some  of
the victims were young and hapless children  i.e.  Sanjay  Mali  and  Rajesh
Mali.

29.   At the same time, all the four accused were young in age at  the  time
of commission of  the  offence  i.e.  23-29  years.    They  belong  to  the
economically,  socially  and   educationally   deprived   section   of   the
population.  They were living in acute poverty.  It is possible that,  being
young, they had a yearning for quick money and  it  is  these  circumstances
that had led to the commission of the crimes in  question.   Materials  have
been laid before this Court to show that while in custody  all  the  accused
had enrolled themselves in Yashahantrao Chavan Maharashtra  Open  University
and had either completed the  B.A.  Examination  or  are  on  the  verge  of
acquiring the degree.  At least three of the appellants (A-2, A-3  and  A-6)
have, at different points of time, participated in different  programmes  of
Gandhian thoughts and have been awarded certificates of such  participation.
 In prison, A-2 has written a book titled “Resheemganth” and  A-3  has  been
associated with the said work.  There is no material or information to  show
any condemnable  or  reprehensible  conduct  on  the  part  of  any  of  the
appellants during their period of custody.  All the circumstances  point  to
the possibility of  the  accused-appellants  being  reformed  and  living  a
meaningful and constructive life if they are to be given  a  second  chance.
In any case, it is not the stand of the State that  the  accused-appellants,
are beyond reformation or are not capable of living a changed life  if  they
are to be rehabilitated in society.  Each of the accused have spent over  10
years in incarceration.  Though it must  not  be  understood  in  any  other
manner the entire case  against  the  accused  is  built  on  circumstantial
evidence.

30.    Balancing  the  two  sets  of  circumstances   i.e.   one   favouring
commutation and the other favouring upholding the death penalty, we  are  of
the view that in the present  case  the  option  of  life  sentence  is  not
“unquestionably foreclosed”.  Therefore, the sentence of  death  awarded  to
the  accused  should  be  commuted  to   life   imprisonment.    We   order,
accordingly,  and  direct  that  each  of  the  accused-appellants,  namely,
Santosh Manohar Chavan,  Amit  Ashok  Shinde,  Yogesh  Madhukar  Chavan  and
Mahesh Dhanaji Shinde shall undergo imprisonment for life for commission  of
the offence under Section  302/120B  IPC.   The  sentences  awarded  to  the
accused-appellants by the High Court for commission of  all  other  offences
under the IPC and the Arms Act are affirmed to run  concurrently.   We  also
make it clear that the custody of the  appellants  for  the  rest  of  their
lives will be subject to remissions if any, which will be  strictly  subject
to the provisions of the Sections 432 and 433-A of the Cr.PC.

31.   We accordingly dispose of all the appeals  with  the  modification  of
the sentence as above.




                                       .…………………………CJI.
                                        [P. SATHASIVAM]



                                        .......………………………J.
                                        [RANJAN GOGOI]




                                        ..........……………………J.
                                        [SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY    27, 2014.
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[1]    (1980) 2 SCC 684
[2]    (2009) 6 SCC 498
[3]    (2010) 3 SCC 508
[4]    (2011) 3 SCC 685
[5]    (2013) 5 SCC 546
[6]    (1973) 1 SCC 20
[7]    AIR 1983 SC 473
[8]    2013 (12) SCALE 473
[9]    2013 (12) SCALE 622

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