advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 28, 2014

Quashing of complaint - Medical Negligence - Judicial Negligence - Private complaint against accused after two years of discharge of patient as the Hospital issued a cheque bounce notice against the cheque issued towards fee by patient - Accused filed a petition to quash the complaint - High court wrongly framed an issue that the patient was died and under the same impression dismissed the petition of accused - correction petition filed by accused was also allowed in review pending appeal with out notice to accused - Apex court held that it is nothing but a Judicial Negligence , other wise with out pleadings , how the high court come to a conclusion that the patient is dead and after judgment how the high court correct the mistake as typographical when the order itself based on that finding and as such set aside the order of the High court and allowed the petition = Daljit Singh Gujral & Ors. .. Appellants Versus Jagjit Singh Arora & Ors. .. Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41269

Quashing of complaint - Medical Negligence - Judicial Negligence - Private complaint against accused after two years of discharge of patient as the Hospital issued a cheque bounce notice against the cheque issued towards fee by patient - Accused filed a petition to quash the complaint - High court wrongly framed an issue that the patient was died and under the same impression dismissed the petition of accused - correction petition filed by accused was also allowed in review pending appeal with out notice to accused - Apex court held that it is nothing but a Judicial Negligence , other wise with out pleadings , how the high court come to a conclusion that the patient is dead and after judgment how the high court correct the mistake as typographical when the order itself based on that finding and as such set aside the order of the High court and allowed the petition = 

the  judgment  is
vitiated by an error apparent on the face of the record, which goes  to  the
very root of the matter in a case relating to medical negligence.=

 We are dealing with the case of  medical  negligence  and  we  wonder
whether this case borders on judicial negligence or the  negligence  of  the
parties to point out that the issue was wrongly  framed.  
Pleadings  of  the
parties nowhere state that the patient is dead.  
Learned  Single  Judge,  it
is seen, has framed  two  issues,  after  perusing  the  records  and  after
hearing the arguments of the learned  counsel  for  the  parties.   
When  we
peruse the records, as already stated, we do not  find  any  statement  that
the wife of Respondent No. 1 is no more.  
The entire thought process of  the
Judge centered round  on  an  incorrect  premise  that,  due  to  the  gross
negligence on the part of the appellants,  the  wife  of  Respondent  No.  1
died.

14.   We may also  further  indicate  that  the  learned  Single  Judge  has
expressed the opinion so expressively  in  the  judgment  which  practically
forecloses all the defences available to the parties, who  are  supposed  to
face the trial.  The learned Single Judge, though ultimately indicated  that
the view is only a prima facie view, but a reading of the  entire  judgment,
it would show otherwise.   Judgment  cannot  be  sustained  on  any  ground.
Consequently, the judgment dated 16.11.2012 as well as the subsequent  order
11.2.2013 passed in the review petition, would stand set aside.    The  High
Court is directed to rehear Crl. Misc. Petition No.M-25733 of  2011  afresh.


15.   The Appeals are, accordingly, allowed.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41269
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NOS. 506-508 OF 2014
              [Arising out of SLP (Crl) Nos.2421-2423 of 2013]


Daljit Singh Gujral & Ors.              .. Appellants

      Versus

Jagjit Singh Arora & Ors.                    .. Respondents



                               J U D G M E N T



K. S. RADHAKRISHNAN, J.


1.    Leave granted.


2.    We are of the  considered  view,  after  hearing  the  senior  counsel
appearing for the Appellant and the party-in-person, that  the  judgment  is
vitiated by an error apparent on the face of the record, which goes  to  the
very root of the matter in a case relating to medical negligence.

3.    The Appellants herein approached the High Court of  Punjab  &  Haryana
under Section 482 of the Criminal Procedure Code (for short  “Cr.P.C.”)  for
quashing complaint Case  No.7506/09/11  dated  9.6.2008  and  the  summoning
order 26.7.2011 passed by the Court of Judicial  Magistrate  (First  Class),
Chandigarh.

4.    The Appellants herein are in  the  management  of  a  hospital  named,
INSCOL Multispecialty  Hospital,  Chandigarh.   On  1.8.2005,  the  wife  of
Respondent No.1, by name, Inderjeet Arora, approached  Dr.  Jayant  Banerjee
and, on his advice, she was referred to the above-mentioned  hospital.   She
was admitted in the ICU by Dr. Jayant Banerjee and was attended  by  doctors
of the hospital.  Later, she was discharged from the  hospital  on  2.8.2005
on the request of son of Respondent  No.1.  On  a  total  hospital  bill  of
Rs.1,01,858/- a sum of Rs.30,000/- was paid and, for rest of the  amount,  a
cheque was issued by Respondent No.1, husband of the patient.  On  9.8.2005,
the cheque was presented by the bankers of the hospital, but  the  same  was
dishonoured, which fact was brought to the notice of Respondent No.1 by  the
hospital  authorities.   Thereafter,  the  cheque  was  presented  twice  on
12.11.2005 as well as on 16.11.2005 but, on both occasions, the  cheque  was
dishonoured.   Later, a legal notice under Section  138  of  the  Negotiable
Instruments Act, 1881, was issued to Respondent  No.1  claiming  the  cheque
amount.  According to the Appellants, this annoyed  Respondent  No.1  and  a
complaint was filed against the doctors of the hospital  before  the  Punjab
Medical Council.   The Medical Board met on 3.10.2006 and,  after  examining
the complaint as well as the comments of the doctors,  passed  an  order  on
the same date exonerating Dr. Jayant Banerjee holding that proper  procedure
was followed and there was no gross negligence on the part of  the  hospital
authorities or the Doctors.   Respondent No.1, after a lapse of  two  years,
on 9.6.2008, filed a complaint  under  Section  156(3)  Cr.P.C.  before  the
Chief Judicial Magistrate, UT Chandigarh for  registration  of  FIR  against
the Appellants  for  the  commission  of  offence  under  various  sections,
including Section 15(2)(3) of the Indian Medical  Council  Act,  1956.   The
learned Judicial Magistrate, First Class, Chandigarh, on 13.6.2008 sent  the
complaint for registration as it was  under  Section  156(3)  Cr.P.C.    The
said order was challenged by the Appellants by filing  Crl.  Misc.  Petition
No.17013 of 2008 before the Punjab & Haryana High  Court.   The  High  Court
vide its order dated 19.2.2009  quashed  the  FIR  by  granting  liberty  to
Respondent  No.1  to  approach  the  Judicial   Magistrate,   First   Class,
Chandigarh.   Before  the  Judicial  Magistrate,  First  Class,  Chandigarh,
Respondent No.1 submitted that he did not want to press the complaint  under
Section 156(3) Cr.P.C., but requested  that  the  complaint  be  treated  as
under Section 202 Cr.P.C.  The learned  Magistrate,  entertaining  the  said
request, passed the order dated 26.7.2011 and  summoned  the  Appellants  to
face the trial for the offences punishable  under  Section  420/467/468/471/
326/120-B IPC and under Section 15 of the Indian Medical Council Act.

5.    Aggrieved by the summoning order, as already  stated,  the  Appellants
preferred Crl. Misc. No.M-25733 of 2011 before the High Court  for  quashing
the complaint Case No.7506/09/11.   The  High  Court  vide  impugned  order,
dismissed  the  Crl.  Misc.  Petition.   Later,  Respondent  No.1  filed  an
application being Crl. Misc. No.7776 of 2013 in  Crl.  Misc.  No.M-25733  of
2011, requesting the Court to carry  out  the  correction  of  the  judgment
praying that the word “death” or “died” be stated to be read  as  “brink  of
death”.   Review Petition was allowed by  the  High  Court  vide  its  order
dated 11.2.2013,  without  notice  to  the  appellants.   Those  orders,  as
already indicated, are under challenge in these appeals.

6.     We  heard  Shri  P.S.  Patwalia,  learned  senior  counsel  for   the
Appellants, as well as Shri Jagjit Singh  Arora,  who  appeared  in  person.
Shri Patwalia submitted that the judgment  as  well  as  the  order  in  the
review petition is vitiated by serious error on the face of the  record  and
liable to be set aside and the High Court be directed to rehear  the  matter
in accordance with law. Respondent No.1, the party-in-person, on  the  other
hand, submitted, on facts as well as on  law,  that  the  judgment  and  the
order in the review petition are unassailable  and,  therefore,  the  matter
could be examined by this Court on merits.

7.    We have gone through the main judgment and the  order  passed  in  the
review petition in their entirety.  The learned Single  Judge  of  the  High
Court while deciding the case formulated  two  questions  ,  which  read  as
follows :-
      “1.    Whether  the  Managing  Director  and   the   Director,   being
           administrators of the Hospital can be made criminally liable and
           prosecuted under the provisions of the Indian Penal Code and for
           having appointed unqualified doctor which  resulted  into  wrong
           treatment and consequential death of  a  patient  and  can  they
           claim immunity from prosecution for the offences in  which  they
           have been summoned in the present complaint?
                                                         (emphasis supplied)


      2.    Whether the offences of cheating, tampering with  the  documents
           and causing grievous hurt are made out in conspiracy  with  each
           other?

8.    On the first point, after going through the facts in detail and  after
hearing the parties, the learned Single Judge concluded as follows :
      “In the present case, Petitioner Nos.1 and 2 being  Managing  Director
      and Director are directly criminally liable and their liability  stems
      from failure to use reasonable care in the  maintenance  of  safe  and
      adequate facilities  and  equipment  i.e.  ventilator  which  was  not
      available at the time when the patient was in need.   Needless to say,
      it is the duty of the petitioner No.1 and 2 to select and retain  only
      competent physician/doctor and medical supporting staff.  But in  this
      case, they had retained petitioner no.3 who is an unqualified  doctor.
      It is the duty of the petitioner nos.1 and 2 to  oversee  all  persons
      who practice medicine within its faculty and also owe duty  to  ensure
      quality of health care services.   Here  in  this  case,  there  is  a
      glaring failure on the part  of  petitioner  nos.1  and  2  to  retain
      competent and qualified doctors and equipping  the  facility.  In  the
      present case, the standard of negligence, breach  of  duty,  causation
      and damage  is  no  different  than  in  any  other  case  of  forming
      negligence.  Hence, for that reason, petitioners are  directly  liable
      for the injury caused to the patient because the  doctor  in  question
      was not having State Medical Council licence to practice  medicine  as
      per the Medical Council of India Act,  1961  and  Medical  Council  of
      India Rules  under  which  Medical  Council  of  India  certifies  the
      doctors/physicians and regulate competency and professional standards.
      There is a clear failure on the part of  petitioner  nos.1  and  2  to
      evaluate the qualification of petitioner no.3 who has been inefficient
      to adequately determine his competency.  Since there has  been  breach
      of duty by petitioner nos.1 and 2, they are  prima  facie  responsible
      for injury resulting from  that  breach/incompetence  as  well  as  in
      forging the  documents.   There  is  a  clear  failure  to  check  the
      credentials and employment history of petitioner no.3.”


On the second question, after referring to the various  statements  made  by
Dr. Sudhir Saxena and the evidence of complainant (CW9) and  also  referring
to the invoices CW-9/2 and CW-9/12, the learned Single  Judge  concluded  as
follows:


      “This prima facie proves forgery and  cheating  on  the  part  of  the
      petitioners.   The documentary evidence prima facie  proves  that  Dr.
      N.P. Singh never visited the hospital and the record of  the  hospital
      has been manipulated to save themselves.   There is a clear conspiracy
      between the petitioners and Dr. Jayant Banerjee  for  fleecing  money.
      The principles of law laid down in  Jacob  Mathew  (supra)  and  Kusum
      Sharma (supra) are not applicable in the present case.


      In view of  the  above  discussion,  this  Court  does  not  find  any
      illegality or perversity in the impugned summoning order.  It is  well
      settled law that while summoning an accused, the trial  Court  is  not
      required to give detailed reasons, only  prima  facie  application  of
      mind is a necessity.   In the present case, the  learned  trial  Court
      has passed a reasoned order for summoning the petitioners.”


9.    We notice that on reaching those conclusions,  as  already  indicated,
the very first issue framed  by  the  learned  Single  Judge  was  that  the
patient died due to wrong treatment and medical negligence.  Learned  Single
Judge was examining prima  facie  the  issue  of  medical  negligence  which
resulted in the death of the patient.  The entire approach  of  the  learned
Single Judge while entering a finding on the two questions framed  was  that
due to medical negligence, the patient died.  The said fact is reflected  in
the whole gamut of the judgment.   In  one  portion  of  the  judgment,  the
learned Single Judge has stated as follows :
      “The condition of Mrs. Arora extremely deteriorated  and  she  had  to
      remain hospitalized in ICU of Fortis Hospital for about 2  months  and
      thereafter, she was shifted to PGI,  Chandigarh,  where  she  remained
      admitted for one month. Ultimately, she died.”


Later, the learned Single Judge also opined as follows :-

      “The hospital authorities had  employed  unqualified  doctors  in  ICU
      which resulted into death of Mrs. Arora in spite of best  efforts  for
      shifting to other  hospital,  like  Fortis  and  PGI.   Initial  wrong
      treatment in the INSCOL Hospital where the  unqualified  doctors  were
      employed resulted into death of respondent no.1’s wife which certainly
      amounts to an offence under the provisions of the Indian Penal Code.”

10.   We, therefore, notice that the entire reasoning of the learned  Single
Judge was centered round the  fact  that  he  was  dealing  with  a  medical
negligence case in which the patient died.    In  fact,  the  very  question
framed by the Court itself  refers  to  the  death  of  the  patient.    The
learned Single Judge, as already indicated, finally dismissed  the  petition
filed by the Appellants on 16.11.2012.

11.   The Respondents herein then preferred Crl. Misc.  Application  No.7776
of 2013 praying for correcting  some  omission/typographical  error  in  the
judgment.   The  learned  Single  Judge  entertained  that  application  and
expressed  the  view  that  no   notice   need   be   sent   to   the   non-
applicants/appellants since the application is only for  the  correction  of
accidental  omission/typographical  errors  crept  in  the  judgment   dated
16.11.2012.  The  learned  Single  Judge  opined  that  the  Court  has  the
inherent power to correct the typographical/clerical mistake brought to  the
notice of the Court.   The  learned  Single  Judge,  therefore,  passed  the
following order on 11.2.2013 :
      “Registry is directed to make following corrections and put up a  note
      at the end of the judgment in the shape of  corrigendum  so  that  the
      same may be read as part of the judgment dated 16.11.2012:


      “1.   The word “died” at page No.3 be read as “was brought to brink of
           death.”


      2.    The word “death” be read as “condition to  brink  of  death”  at
           page nos.3, 7 and 16  and  where  the  word  “dead”  or  “death”
           appears in the judgment, it should be as “the brink of death”.


      3.    “Grewal” be read as “Gujral” at page no.5.


      4.    “rectified” be read as “ratified” at page no.6.


      5.    “Medical Council” be read as “Chandigarh Police” at page No.10.


      6.    “Section 14(2)” be read as “Section 15(2a)” at page no.11.


      7.    “and mind of” be read as “behind” at page no.12 and 22.


      8.    “nervous centre” be read as “nerve centre” at page no.13.


      9.    “Faculty” be read as “Facility” on Page No.19,


      10.   “Dr. N.P. Singh” be read as “Dr. Sudhir Saxena” at page 24.”


12.   We do not agree that the learned Single Judge  was  merely  correcting
an accidental omission or typographical error.  By correcting the  judgment,
the very foundation and the issue formulated, broken down and  fell  on  the
ground and the issue framed by the learned Single Judge, lost its  sanctity.
  The learned Single Judge cannot correct an issue  which  has  been  framed
and answered.  As already indicated, the first issue framed is  with  regard
to the “wrong treatment and consequential death of a  patient”  and  it  was
that issue which was answered, then we  fail  to  see  how  the  application
preferred by the Respondents for review can be  treated  as  an  application
for correcting accidental omission or typographical error, that too  without
notice to the appellants herein.

13.    We are dealing with the case of  medical  negligence  and  we  wonder
whether this case borders on judicial negligence or the  negligence  of  the
parties to point out that the issue was wrongly  framed.  Pleadings  of  the
parties nowhere state that the patient is dead.  Learned  Single  Judge,  it
is seen, has framed  two  issues,  after  perusing  the  records  and  after
hearing the arguments of the learned  counsel  for  the  parties.   When  we
peruse the records, as already stated, we do not  find  any  statement  that
the wife of Respondent No. 1 is no more.  The entire thought process of  the
Judge centered round  on  an  incorrect  premise  that,  due  to  the  gross
negligence on the part of the appellants,  the  wife  of  Respondent  No.  1
died.

14.   We may also  further  indicate  that  the  learned  Single  Judge  has
expressed the opinion so expressively  in  the  judgment  which  practically
forecloses all the defences available to the parties, who  are  supposed  to
face the trial.  The learned Single Judge, though ultimately indicated  that
the view is only a prima facie view, but a reading of the  entire  judgment,
it would show otherwise.   Judgment  cannot  be  sustained  on  any  ground.
Consequently, the judgment dated 16.11.2012 as well as the subsequent  order
11.2.2013 passed in the review petition, would stand set aside.    The  High
Court is directed to rehear Crl. Misc. Petition No.M-25733 of  2011  afresh.


15.   The Appeals are, accordingly, allowed.


                                                    eard Hear……………………………..J.
                                             (K. S. Radhakrishnan)



                                                    eard Hear……………………………..J.
                                            (Vikramajit Sen)
New Delhi,
February 27, 2014.

Sec. 302 / 201 and 376 of I.P.C. - Accused filed a certificate that he is a Juvenile - Trial court send him for Medical examination - Board opined that he is 17 years, giving margin 2 years, the trail court rejected his plea - High court allowed the plea as the certificate not held as forged one by trial court - Apex court allowed the additional evidence filed by appellant one is a certificate stating that the certificate filed by accused is a forged one and another certificate was about the date of birth of the accused - Apex court summoned both the principals and examined the records and find that accused is not juvenile and held that accused was 21 years by the date of offence and as such allowed the appeal = Sikander Mahto . ... APPELLANT (S) VERSUS Tunna @ Tunnu Mian @ Tunna Mian @ ... RESPONDENT(S) @ Mobin Ansari & Anr. = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41268

Sec. 302 / 201 and 376 of I.P.C. - Accused filed a certificate that he is a Juvenile - Trial court send him for Medical examination - Board opined that he is 17 years, giving margin 2 years, the trail court rejected his plea - High court allowed the plea as the certificate not held as forged one by trial court - Apex court allowed  the additional evidence filed by appellant one is a certificate stating that the certificate filed by accused is a forged one and another certificate was about the date of birth of  the accused  - Apex court summoned both the principals and examined the records and find that accused is not juvenile and held that accused was 21 years by the date of offence and as such allowed the appeal = 
The first respondent Tunna @ Tunnu Mian @ Tunna Mian @   Mobin  Ansari
was committed to the Court of Sessions to  face  trial  for  offences  under
Sections 302/201 and 376 of the Indian Penal  Code.   The  first  respondent
filed an application claiming to be a juvenile and  in  support  thereof  he
had enclosed a certificate issued by the  Government  Primary  Urdu  School,
Shekhawa,  Basantpur,  Block  Mainatand  wherein  his  date  of  birth   was
mentioned as 15.01.1991.  The date of occurrence of the offences alleged  in
the present case is 16.11.2006.
3.    The  learned  Trial  Court,  for  reasons  not  very  clearly  stated,
recorded the finding that the certificate produced by the  first  respondent
was a forged one.  Accordingly, the first respondent was  sent  for  medical
examination by a Board.  Though the report of the Board was  to  the  effect
that the first respondent was 17 years of age, the learned Trial Court  took
the view that the said opinion would admit the possibility  of  a  variation
of  2  years.   Consequently,  the  learned  Trial  Court  by  order   dated
24.12.2007 refused to accept the claim of juvenility  raised  on  behalf  of
the first respondent.
4.    Aggrieved, the first respondent moved the Patna High Court.  By  order
dated 14.11.2008 the High Court interfered with the  order  of  the  learned
Trial Court and allowed the  application  of  the  first  respondent  herein
declaring him to be a juvenile and to be of sixteen and a half years of  age
on the date of alleged occurrence.  Challenging  the  aforesaid  finding  of
the High Court, the complainant, who is the father  of  the  victim  of  the
crime, has approached this Court. =
Additional evidence

The first document that has been brought on the record of the  present
appeal is a letter/certificate  dated  3.4.2013  issued  by  the  Principal,
Government  Primary  Urdu  School,  Shekhawa,   Basantpur,   Block-Mainatand
wherein it is mentioned that no student having the name and  particulars  of
the first respondent had ever studied in the school  in  question  and  that
the certificate issued in the name of the school is a forged document.   
The
second document is another certificate issued by the  Principal,  Government
Primary School, Purbi  Paukuahwa,  Block-Mainatand,  West  Champaran,  Bihar
which states that the particulars of the first  respondent  are  entered  in
the records of the said school and that his date of birth  as  mentioned  in
the school admission register is 28.11.1985.  
As the controversy arising  in
the present case is capable of being resolved on the basis of the  aforesaid
two documents, reference to any other  document  would  be  superfluous  and
hence is avoided.
8.    The first  respondent  has  not  filed  any  affidavit  or  objections
denying the veracity of the two certificates referred  to  above.  
However,
as the Court had to be satisfied with  the  authenticity  of  the  said  two
documents, on 27.01.2014 the following order was passed.
           “In order to find out the age of Respondent No.1-accused on  the
           date of occurrence, we direct the Principal, Government  Primary
           Urdu  School,   Shekhawa,   Basantpur,   Block-Mainatand,   West
           Champaran, Bihar and Principal, Government Primary School, Purbi
           Paukuahwa, Block-Mainatand,  West  Champaran,  Bihar  to  appear
           alongwith the connected original record  before  this  Court  on
           24th February, 2014.


                 List on 24th February, 2014”

9.    Pursuant thereto the Principal of the two schools  appeared  in  Court
today alongwith the records in original.  The said  records  would  indicate
that there is no record of the first respondent  being  enrolled  or  having
studied in the Government Primary Urdu School, Shekhawa,  Basantpur,  Block-
Mainatand.  From  the  records  of  the  Government  Primary  School,  Purbi
Paukuahwa, Block-Mainatand, West Champaran, Bihar it  is  evident  that  the
first respondent had enrolled himself in the said school on  08.01.1996  and
his date of birth is recorded in the admission register as 28.11.1985.   The
relevant records placed before this Court  by  the  Principals  of  the  two
schools pursuant to the order dated 27.01.2014 therefore indicates that  the
claim of the first respondent to be a juvenile remains unsubstantiated  and,
in fact, the records of the school where  he  was  enrolled  would  indicate
that his date of birth is 28.11.1985.  Properly  calculated  with  reference
to the date of the alleged crime, the first respondent  was  aged  about  21
years on the relevant date and therefore he was not a juvenile.
10.   We, therefore, cannot sustain the order  dated  14.11.2008  passed  by
the High Court. In the result, we allow this appeal and set aside  the  said
order dated 14.11.2008 passed by the High Court and restore the order  dated
24.12.2007 passed by the learned Trial Court.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41268
P SATHASIVAM, RANJAN GOGOI
                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL  NO.511 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 9028 OF 2011)


Sikander Mahto               .           ...    APPELLANT (S)

                                   VERSUS

Tunna @ Tunnu Mian @ Tunna Mian @    ...  RESPONDENT(S)
@ Mobin Ansari & Anr.



                               J U D G M E N T


RANJAN GOGOI, J.
1.    Leave granted.
2.    The first respondent Tunna @ Tunnu Mian @ Tunna Mian @   Mobin  Ansari
was committed to the Court of Sessions to  face  trial  for  offences  under
Sections 302/201 and 376 of the Indian Penal  Code.   The  first  respondent
filed an application claiming to be a juvenile and  in  support  thereof  he
had enclosed a certificate issued by the  Government  Primary  Urdu  School,
Shekhawa,  Basantpur,  Block  Mainatand  wherein  his  date  of  birth   was
mentioned as 15.01.1991.  The date of occurrence of the offences alleged  in
the present case is 16.11.2006.
3.    The  learned  Trial  Court,  for  reasons  not  very  clearly  stated,
recorded the finding that the certificate produced by the  first  respondent
was a forged one.  Accordingly, the first respondent was  sent  for  medical
examination by a Board.  Though the report of the Board was  to  the  effect
that the first respondent was 17 years of age, the learned Trial Court  took
the view that the said opinion would admit the possibility  of  a  variation
of  2  years.   Consequently,  the  learned  Trial  Court  by  order   dated
24.12.2007 refused to accept the claim of juvenility  raised  on  behalf  of
the first respondent.
4.    Aggrieved, the first respondent moved the Patna High Court.  By  order
dated 14.11.2008 the High Court interfered with the  order  of  the  learned
Trial Court and allowed the  application  of  the  first  respondent  herein
declaring him to be a juvenile and to be of sixteen and a half years of  age
on the date of alleged occurrence.  Challenging  the  aforesaid  finding  of
the High Court, the complainant, who is the father  of  the  victim  of  the
crime, has approached this Court.
5.    A reply has been filed on  behalf  of  the  first  respondent  in  the
present appeal wherein reliance has, once again, been placed on  the  school
certificate issued by the Government Urdu School Shekhwa, Basantpur,  Distt.
East Champaran  reference  to  which  has  been  made  earlier.   The  first
respondent in his reply has also contended that the report  of  the  medical
examination clearly indicates that he was a minor on the relevant  date  and
that there is no reason as to why the said  medical  report  should  not  be
accepted.
6.    The appellant has been allowed by this Court leave to bring on  record
certain documents which, according to  the  appellant,  have  a  significant
bearing to the issues arising in the present case.
7.    The first document that has been brought on the record of the  present
appeal is a letter/certificate  dated  3.4.2013  issued  by  the  Principal,
Government  Primary  Urdu  School,  Shekhawa,   Basantpur,   Block-Mainatand
wherein it is mentioned that no student having the name and  particulars  of
the first respondent had ever studied in the school  in  question  and  that
the certificate issued in the name of the school is a forged document.   The
second document is another certificate issued by the  Principal,  Government
Primary School, Purbi  Paukuahwa,  Block-Mainatand,  West  Champaran,  Bihar
which states that the particulars of the first  respondent  are  entered  in
the records of the said school and that his date of birth  as  mentioned  in
the school admission register is 28.11.1985.  As the controversy arising  in
the present case is capable of being resolved on the basis of the  aforesaid
two documents, reference to any other  document  would  be  superfluous  and
hence is avoided.
8.    The first  respondent  has  not  filed  any  affidavit  or  objections
denying the veracity of the two certificates referred  to  above.   However,
as the Court had to be satisfied with  the  authenticity  of  the  said  two
documents, on 27.01.2014 the following order was passed.
           “In order to find out the age of Respondent No.1-accused on  the
           date of occurrence, we direct the Principal, Government  Primary
           Urdu  School,   Shekhawa,   Basantpur,   Block-Mainatand,   West
           Champaran, Bihar and Principal, Government Primary School, Purbi
           Paukuahwa, Block-Mainatand,  West  Champaran,  Bihar  to  appear
           alongwith the connected original record  before  this  Court  on
           24th February, 2014.


                 List on 24th February, 2014”

9.    Pursuant thereto the Principal of the two schools  appeared  in  Court
today alongwith the records in original.  The said  records  would  indicate
that there is no record of the first respondent  being  enrolled  or  having
studied in the Government Primary Urdu School, Shekhawa,  Basantpur,  Block-
Mainatand.  From  the  records  of  the  Government  Primary  School,  Purbi
Paukuahwa, Block-Mainatand, West Champaran, Bihar it  is  evident  that  the
first respondent had enrolled himself in the said school on  08.01.1996  and
his date of birth is recorded in the admission register as 28.11.1985.   The
relevant records placed before this Court  by  the  Principals  of  the  two
schools pursuant to the order dated 27.01.2014 therefore indicates that  the
claim of the first respondent to be a juvenile remains unsubstantiated  and,
in fact, the records of the school where  he  was  enrolled  would  indicate
that his date of birth is 28.11.1985.  Properly  calculated  with  reference
to the date of the alleged crime, the first respondent  was  aged  about  21
years on the relevant date and therefore he was not a juvenile.
10.   We, therefore, cannot sustain the order  dated  14.11.2008  passed  by
the High Court. In the result, we allow this appeal and set aside  the  said
order dated 14.11.2008 passed by the High Court and restore the order  dated
24.12.2007 passed by the learned Trial Court.


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



                                        .........………………………J.
                                        [RANJAN GOGOI]
NEW DELHI,
FEBRUARY  27, 2014.
-----------------------
6


Contempt petition - violating the interim order given in respect of sharing of MBBS AND BDS ETC, between private medical college and State government quota - private colleges made excess admissions - tendered unconditional apology - Apex court held that The excess 107 admissions made by the Medical College for the MBBS during the year 2011-12 and the previous year, be adjusted in the session 2014-15 in full taking note of the full sanctioned strength and the balance seats be adjusted in the year 2015-16. The unconditional and unqualified apology tendered by the contemnors is accepted, but the contemnors are directed to pay a fine of Rs.50 lakhs in two months from today, to the State Government. Ordered accordingly =State of M.P. & Anr. … Petitioners Versus Suresh Narayan Vijayvargiya & Ors. … Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41270

Contempt petition - violating the interim order given in respect of sharing of MBBS AND BDS ETC, between private medical college and State government quota - private colleges made excess admissions - tendered unconditional apology - Apex court held that The  excess  107
admissions made by the Medical College for the MBBS during the year  2011-12 and the previous year, be adjusted in the session  2014-15  in  full  taking note of the full sanctioned strength and the balance seats  be  adjusted  in the year 2015-16.  The unconditional and  unqualified  apology  tendered  by the contemnors is accepted, but the contemnors are directed to  pay  a  fine
of Rs.50 lakhs in two months from today, to the State Government.    Ordered
accordingly =

whether the contemnors have violated  the  interim  orders  passed  by  this
Court on 27.5.2009 and 27.1.2011 in Civil Appeal No. 4060  of  2009  in  the
matter of sharing of MBBS  seats  between  the  respondent  private  medical
college and the State Government. =

 We have already pointed out that the contemnors earlier  took  up  the
stand that, after notifying their institution as a  University  on  4.5.2011
under the Private University Act,  2007,  the  AFRC  Act  ceased  to  apply,
hence, they are not bound by the orders passed by this  Court.    Contemnors
cannot take refuse under a notification issued under  a  Statute  to  defeat
the interim orders passed by this Court which are binding  on  the  parties,
unless varied or modified by this Court.   In  the  instant  case,  all  the
appeals in which interim orders have been passed, are  pending  before  this
Court and if the contemnors had any doubt  on  the  applicability  of  those
orders, they could have sought clarification or modification of  the  order.
 Now, by tendering unconditional and  unqualified  apology,  the  contemnors
are trying to wriggle out of the possible  action  for  Contempt  of  Court,
after  violating  the  orders  causing  considerable  inconvenience  to  the
students and after enjoying the  fruits  for  the  illegality  committed  by
them.   It is trite law that apology is  neither  a  weapon  of  defence  to
purge the guilty of  their  offence;  nor  is  it  intended  to  operate  as
universal panacea, it is intended to be evidence of real contriteness.  (See
M.Y. Shareef & Anr. v. Hon’ble Judges of the High Court  of  Nagpur  &  Ors.
(1955) 1 SCR 757 and M.B.  Sanghi,  Advocate  v.  High  Court  of  Punjab  &
Haryana & Ors. (1991) 3 SCC 600.

16.   Contemnors have now tendered  unconditional  and  unqualified  apology
and volunteered to set right the  illegality  committed  by  them,  but  the
purpose for flouting the orders has been achieved, that  is  the  contemnors
wanted to fill up the entire seats by themselves.   Therefore,  to  maintain
the sanctity of the orders of this Court and to  give  a  message  that  the
parties  cannot  get  away  by  merely  tendering   an   unconditional   and
unqualified apology after enjoying the fruits of their  illegality,  we  are
inclined to impose a fine, which we quantify at Rs.50 lakhs.

We, therefore, order that the admission of students  under  the  State
quota for the academic year 2011-12 in Medical College is  valid  and  legal
and appropriate steps should be  taken  by  the  State  Government  and  the
Medical Council of India to  regularize  the  admission.    The  excess  107
admissions made by the Medical College for the MBBS during the year  2011-12
and the previous year, be adjusted in the session  2014-15  in  full  taking
note of the full sanctioned strength and the balance seats  be  adjusted  in
the year 2015-16.  The unconditional and  unqualified  apology  tendered  by
the contemnors is accepted, but the contemnors are directed to  pay  a  fine
of Rs.50 lakhs in two months from today, to the State Government.    Ordered
accordingly.

21.   The Contempt Petition is disposed of accordingly.


 2014(Feb.Part) judis.nic.in/supremecourt/filename=41270
B.S. CHAUHAN, K.S. RADHAKRISHNAN, S.A. BOBDE

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       ORIGINAL CONTEMPT JURISDICTION
                  CONTEMPT PETITION (CIVIL) NO.390 OF 2011
                                     IN
                        CIVIL APPEAL NO.4060 OF 2009

State of M.P. & Anr.                         … Petitioners
      Versus
Suresh Narayan Vijayvargiya & Ors.           … Respondents

                               J U D G M E N T
K.S. Radhakrishnan

1.    We are,  in  this  contempt  petition,  concerned  with  the  question
whether the contemnors have violated  the  interim  orders  passed  by  this
Court on 27.5.2009 and 27.1.2011 in Civil Appeal No. 4060  of  2009  in  the
matter of sharing of MBBS  seats  between  the  respondent  private  medical
college and the State Government.

2.      Civil   Appeal   No.   4060   of   2009   was   preferred   by   the
respondents/contemnors herein, challenging the judgment of  the  High  Court
of Madhya Pradesh dated 15.5.2009, which upheld the validity of  the  Madhya
Pradesh (Admission and Fee Regulatory Committee) Act, 2007 (for short  “AFRC
Act”), empowering the State Government to fill all the seats (including  the
NRI seats) in  all  the  education  institutions  in  the  State  of  Madhya
Pradesh, including private medical  and  dental  collages.    Since  serious
disputes were raised with regard to seat sharing and fixation  of  quota  of
seats for MBBS/BDS, this Court felt that some interim arrangement should  be
made taking note of the interest of both the parties and also  that  of  the
students.  This Court, therefore, as an interim measure, passed an order  on
27.5.2009 in C.A. No.4060 of 2009 and the connected appeals, which reads  as
follows:

           “We, therefore,  direct  that  the  admissions  in  the  private
      unaided medical/dental colleges in the State of Madhya Pradesh will be
      done by first excluding 15% NRI seats (which can be filled up  by  the
      private institutions as per para 131 of Inamdar case),  and  allotting
      half of the 85% seats for admission to  the  undergraduate  and  post-
      graduate courses to be filled in by an open competitive examination by
      the State Government, and the remaining half by the Association of the
      Private Medical and Dental Colleges. Both the State Government as well
      as the Association of Private Medical and Dental  Colleges  will  hold
      their own separate entrance examination for this purpose.  As  regards
      “the NRI seats”, they will be filled as provided under the Act and the
      Rules, in the manner they were done earlier.


             We make it clear that the aforesaid  directions  will  for  the
      time being only be applicable for this Academic Year  i.e.  2009-2010.
      We also make it clear that if there are an odd number of seats then it
      will be rounded  off  in  favour  of  the  private  institutions.  For
      example, if there are 25 seats, 12 will be  filled  up  by  the  State
      Government and 13 will be filled up  by  the  Association  of  Private
      Medical/Dental Colleges. In specialities in PG courses also  half  the
      seats will be filled in by  the  State  Government  and  half  by  the
      Association of Private Medical/Dental Colleges and any  fraction  will
      be rounded off in favour of the Association. In other words if in  any
      discipline there are, say, 9 seats, then 5 will be filled  in  by  the
      Association  and  the  remaining  4  will  by  the  State  Government.
      Capitation fee is prohibited, both to the State Government as well  as
      the private institutions, vide para 140  of  Inamdar  case.  Both  the
      State  Government  and  the  Association  of  Private   Medical/Dental
      Colleges will separately hold single window examinations for the whole
      State (vide para 136 of Inamdar case).


             We make it clear that the solution we have arrived at  may  not
      be perfect, but we have tried to do our best to find out the best  via
      media. Although this order is only for  Academic  Year  2009-2010,  we
      recommend that it may also be considered for future sessions.


              Six weeks’ time is allowed for  filing  counter-affidavit  and
      four weeks thereafter for filing rejoinder.


             List these appeals for final hearing in September 2009. In  the
      meantime, pleadings may be completed by the parties.”




3.    The interim arrangement made continued  in  the  subsequent  years  as
well and in the year 2011-2012, this Court vide its  order  dated  27.1.2011
in I.A. No. 50 of 2011 passed the following order:
       “The order dated 27th May, 2009 made in Civil  Appeal  No.  4060  of
       2009 etc. shall be applicable for the academic year 2011-2012.

          There shall be an order accordingly.”

4.    This contempt petition has been preferred by the State Government  and
the Director of Medical Education Department alleging  that  the  contemnors
have filled up the entire  150  seats  available  for  the  year  2011-2012,
without sharing it with the State Government, violating the orders  of  this
Court dated 27.5.2009 and 27.1.2011.    Petitioners  pointed  out  that  the
contemnors had sent a letter dated 23.5.2011 stating that  they  would  fill
up the entire seats during the academic year 2011-2012 since their  colleges
would  be  functioning  under  the  Madhya  Pradesh   Niji   Vishwavidyalaya
(Sthapana Avam  Sanchalan) Adhiniyam, 2007  [for  short  “Adhiniyam  2007”],
consequent to the establishment of the Peoples’ University  under  M.P.  Act
No.18 of 2011 and the admission process of  those  constituent  institutions
would be governed by the statutes and ordinances  framed  under  the  above-
mentioned Act.   The State  Government  noticing  the  stand  taken  by  the
contemnors, wrote a letter dated 14.7.2011 to the Managing Director  of  the
Medical College stating that the admissions have to be made  only  following
the arrangement made by this Court vide order dated 27.1.2011  and,  if  any
change has to be made, the same could be done only with  the  permission  of
this Court.

5.    The Directorate of Medical Education  of  the  State  Government  also
wrote a letter dated 14.7.2011 to the Medical Council  of  India,  informing
the Council of the defiant attitude taken by the contemnors  by  not  giving
admission to any of the  students  included  in  the  State  quota  for  the
academic year 2010-11.

6.    The Directorate of Medical Education  then  wrote  a  detailed  letter
dated 8.8.2011 to the Secretary, Association of  Private  Dental  &  Medical
Colleges, in the State, specifically referring to the interim  order  passed
by  this  Court  on  27.1.2011  reminding  them  of  the  necessity  of  the
compliance of the Court’s directions in the matter  of  seat  sharing.   The
contemnors, ignoring those letters, published an advertisement  in  a  local
newspaper “People Samachar” on 9.8.2011 informing the public that 150  seats
would be available  with  them  for  admission  to  MBBS  course  under  the
management quota for the year 2011-12.

7.    The Directorate of Medical Education, in the meanwhile,  sent  a  list
of 66 students under the State quota to the Medical  College  for  admission
to MBBS course.  The contemnors refused to admit those  students  under  the
State quota and the State Government received several  complaints  from  the
students who were included in the State  quota,  but  not  admitted  by  the
contemnors. The State Government then sent a notice dated 17.8.2011, to  the
Dean of the Medical College to show cause why the following  action  be  not
initiated against the college:-
      (a)   withdraw the Desirability and Feasibility Certificates issued in
           favour of the college;


      (b)   report the matter to  the  Medical  Council  of  India  to  take
           suitable action against the college.


      (c)   report the  matter  to  the  concerned  authorities  for  action
           against Madhya Pradesh Niji Vyavsayik Shikshan Sanstha  (Pravesh
           Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007.


8.    The contemnors, in total defiance of the Court’s order as well as  the
various directions issued by the Directorate of  Medical  Education,  filled
up the entire 150 seats in the management quota for the academic year  2011-
12.

9.    The students, who figured in the  State  quota,  then  approached  the
High Court of Madhya Pradesh.   The High Court directed  the  contemnors  to
admit students who were included in  the  State  quota.  Consequently,  they
admitted those students and the number of students admitted in  the  College
went up to 245 as against the sanctioned strength of 150 seats. The  Medical
College does not have the infrastructural facilities to admit 245  students,
which  has  adversely  affected  the  academic  standards  of  the  students
admitted.   The  State  Government,  as  also  the  Directorate  of  Medical
Education, in the above-mentioned circumstances, approached this  Court  and
filed the present Contempt Petition for taking  appropriate  action  against
the contemnors for violating the orders passed by this  Court  on  27.5.2009
and 27.1.2011 and also by not complying with the various  directions  issued
by the State Government as well as the Directorate of Medical Education.

10.   When the matter came up for hearing, this Court issued notice  to  the
contemnors. Learned senior counsel appearing for the  contemnors,  submitted
before  this  Court  on  3.2.2014  that  they  would  be   tendering   their
unconditional and unqualified apology for their actions and made a  proposal
to set right the illegalities committed, which reads as under :-
      (a)   None of the 245 students admitted in the Institution  –  Peoples
           College of Medical Sciences (PCMS) during the academic year 2011-
           12 shall be disturbed and they all will continue to pursue their
           course without any interruption. This would include the students
           allotted by the State who had been given provisional  admissions
           pursuant to the orders of the Hon’ble High Court.


      (b)   In the academic session  2011-12  on  the  basis  of  the  50-50
           admissions between the College and State after 15% NRI quota  is
           deducted as per the orders of  this  Hon’ble  Court,  the  State
           entitlement filled in by the  institution  was  63  seats.   The
           institution shall accordingly surrender 21 seats in each of  the
           following three academic years i.e. 2014-15, 2015-16 and 2016-17
           to the State government to be filled in  through  the  procedure
           laid down in the order dated 27.5.2009.

11.   The contemnors on 13.2.2014, filed  a  written  note  wherein,  after
reiterating the proposals submitted on 3.2.2014, they stated as follows :
      “13.  Though admissions have already been made by  the  State  against
      the said 63 seats for the year 2011-12 in the said year  itself  still
      in deference to the orders of this Hon’ble  Court  the  Respondent  is
      willing to give up the said 63 seats. It is however requested that  if
      these 63 seats are adjusted only in one year, the college would suffer
      adversely.  Therefore, the Respondent again humbly submits that it  be
      permitted to surrender  21  seats  in  each  of  the  following  three
      academic years i.e. 2014-15, 2015-16 and 2016-17 as  submitted  before
      this Hon’ble Court on 3.2.2014 to the State Government to be filled in
      through the procedure laid down in the order dated 27.5.2009.


      14.   It is respectfully submitted  that  in  the  captioned  contempt
      petition of the Petitioner State only relates  to  its  50%  quota  of
      admissions i.e. 63 seats in the academic year 2011-12.


      15.   The respondents reiterate the proposal submitted on 3.2.2014 and
      again tender  an  unconditional  and  unqualified  apology  for  their
      actions.”

12.   In  the  written  note  filed  by  the  State  of  Madhya  Pradesh  on
13.2.2014, in  response  to  the  submissions  made  by  the  contemnors  on
3.2.2014, the State of Madhya Pradesh stated as follows :-
      “20.  For the academic session 2011-12, the  State  Government  had  a
      quota of 107 students :-


               • 63 seats as per the 50:50 order of this Hon’ble Court.


               • 42 seats as per letter dated 19.9.2011 of MCI since Peoples
                 College made excess admissions in 2010-11.


               • 2 seats which were not filled in the NRI quota.


      21.   The aforesaid position of  State  quota  seats  for  2011-12  is
      explained in detail in the  letter  of  MCI  dated  5.3.2012  (annexed
      herewith as Annexure A-1).


      22.   For the academic session 2011-12


           Total sanctioned strength               150


           Total seats filled by College           245


           College authorized to fill                43


           State quota seats filled by College       95


           Excess seats filled by College          107

      23.   The issue of excess admissions made by  the  College  is  to  be
      considered as per the Regulations framed by the MCI under  the  Indian
      Medical Council Act, 1956 and the submissions made by the MCI in  that
      regard.


      24.   However, if the scheme formulated  by  the  Peoples  College  is
      considered by this Hon’ble Court, then the excess 107 admissions  made
      by the College in 2011-12 be adjusted in the  session  of  2014-15  in
      full and remaining seats be adjusted in 2015-16.


      25.     On   account    of    illegal    and    unlawful    acts    of
      Respondents/Contemnors,  not  only  the  State  Government,  but   the
      students of the State quota, who were illegally denied admissions were
      severely harassed and were drawn on a long  drawn  legal  battle  with
      uncertainty of their respective careers.”


13.   We have no hesitation in saying that  the  above  situation  has  been
created by the contemnors themselves by filling up of the entire  150  seats
in total defiance of the interim orders passed by this  Court  on  27.5.2009
and 27.1.2011 making an interim arrangement for  seat  sharing  between  the
State Government and the private  educational  institutions  from  the  year
2009-10 onwards in the State of Madhya Pradesh, which  are  binding  on  the
contemnors.   The contemnors  attempted  to  justify  their  action  on  the
ground that they are regulated by the  Private  Universities  Act  and  that
AFRC Act has ceased to apply and, after  the  notification  dated  4.5.2011,
the State Government has no right even to share seats in their  institution,
de hors the interim orders passed by this Court.   This stand taken  by  the
contemnors  is  also  not  correct,  since  Section  7(m)  of  the   Private
University Act, 2007 provides that admission shall not be started  till  the
concerned statutes and ordinances are approved as  per  Section  35  of  the
Act, which states that the statutes and ordinances  shall  come  into  force
only upon publication in the official Gazette.  Even otherwise,  once  there
is an order in force binding on the parties, they cannot violate  or  ignore
that  order,  taking  shelter  under  a  statutory  provision  and  if   any
modification of the orders is  warranted,  parties  should  have  approached
this Court and sought for clarification or  modification  of  those  orders.
However, without doing so, in total defiance of the orders  passed  by  this
Court, they filled up the entire seats, leaving the students who figured  in
the State list in the lurch.   Later,  though  they  were  admitted  in  the
College having the infrastructure for accommodating only  150  students,  it
has affected the quality and standard of medical  education.   After  having
convinced that they had violated the orders of this Court,  they  have  come
up  with  an  unconditional  and  unqualified  apology   and   making   some
suggestions to undo the illegality committed by them after eating  away  the
seats from the State quota.

14.   We have, on facts, found that there has been  a  willful  disobedience
by the contemnors of the orders passed by this Court, which is  nothing  but
interference with the administration of justice.  Disobedience of  an  order
of a Court, which is willful, shakes the very  foundation  of  the  judicial
system and can erode the faith and confidence reposed by the people  in  the
Judiciary and undermines rule of law.    The  Contemnors  have  shown  scant
respect to the orders passed by the highest Court of the land  and  depicted
undue haste to fill up the entire seats  evidently  not  to  attract  better
students or recognize merit, but possibly to make  unlawful  gain,  adopting
unhealthy practices, as noticed by this Court in TMA Pai Foundation  &  Ors.
v. State of Karnataka & Ors. (2002) 8  SCC  481  and  various  other  cases.
Once the Court passes an order, the parties to the  proceedings  before  the
Court cannot avoid implementation of that order by seeking refuge under  any
statutory rule and it is not open to the parties to  go  behind  the  orders
and truncate the effect of those orders.  This Court in T.R.  Dhananjaya  v.
J. Vasudevan (1995) 5 SCC 619,  held  that  once  the  Court  directed  that
appeal be disposed of after giving  him  opportunity  of  hearing  and  such
direction was not appealed from, it is not open to the  concerned  authority
to deny the hearing on the ground that the Police Manual  does  not  provide
for the same.  This Court in Mohd. Aslam alias Bhure, Acchan Rizvi v.  Union
of India (1994) 6 SCC 442 held that circumvention of  an  order  can  be  by
‘positive  acts  of  violation’  or  ‘surreptitious  and  indirect  aids  to
circumvention and violation of orders.  In the instant case,  the  violation
is a positive act of violation,  which  is  apparent  on  the  face  of  the
record.

15.   We have already pointed out that the contemnors earlier  took  up  the
stand that, after notifying their institution as a  University  on  4.5.2011
under the Private University Act,  2007,  the  AFRC  Act  ceased  to  apply,
hence, they are not bound by the orders passed by this  Court.    Contemnors
cannot take refuse under a notification issued under  a  Statute  to  defeat
the interim orders passed by this Court which are binding  on  the  parties,
unless varied or modified by this Court.   In  the  instant  case,  all  the
appeals in which interim orders have been passed, are  pending  before  this
Court and if the contemnors had any doubt  on  the  applicability  of  those
orders, they could have sought clarification or modification of  the  order.
 Now, by tendering unconditional and  unqualified  apology,  the  contemnors
are trying to wriggle out of the possible  action  for  Contempt  of  Court,
after  violating  the  orders  causing  considerable  inconvenience  to  the
students and after enjoying the  fruits  for  the  illegality  committed  by
them.   It is trite law that apology is  neither  a  weapon  of  defence  to
purge the guilty of  their  offence;  nor  is  it  intended  to  operate  as
universal panacea, it is intended to be evidence of real contriteness.  (See
M.Y. Shareef & Anr. v. Hon’ble Judges of the High Court  of  Nagpur  &  Ors.
(1955) 1 SCR 757 and M.B.  Sanghi,  Advocate  v.  High  Court  of  Punjab  &
Haryana & Ors. (1991) 3 SCC 600.

16.   Contemnors have now tendered  unconditional  and  unqualified  apology
and volunteered to set right the  illegality  committed  by  them,  but  the
purpose for flouting the orders has been achieved, that  is  the  contemnors
wanted to fill up the entire seats by themselves.   Therefore,  to  maintain
the sanctity of the orders of this Court and to  give  a  message  that  the
parties  cannot  get  away  by  merely  tendering   an   unconditional   and
unqualified apology after enjoying the fruits of their  illegality,  we  are
inclined to impose a fine, which we quantify at Rs.50 lakhs.

17.   We may now examine how the illegality committed by the contemnors  can
be rectified.  For the academic year 2011-12, the State  Government’s  quota
was 107 seats, details of which is given below :-
         • 63 seats as per the 50:50 order of this Hon’ble Court.


         • 42 seats as per letter dated  19.9.2011  of  MCI  since  Peoples
           College made excess admissions in 2010-11.


         • 2 seats which were not filled in the NRI quota.


18.   The total sanctioned strength for the academic year  2011-12  was  150
students, but the contemnors had filled up 245  seats,  though  the  college
was authorized to fill up only  43  seats.   The  contemnors  filled  up  95
seats, which would have gone to the State quota.  Consequently,  107  excess
seats were filled up by the college.  The contemnors, however, took  up  the
stand that if 63 seats are to be adjusted  for  the  academic  year  2014-15
that may seriously affect  the  functioning  of  the  College,  hence  their
suggestion is that they will compensate the lost seats in a  phased  manner,
that is 21 seats in the year 2014-15 and the rest  in  equal  proportion  in
the years 2015-16 and 2016-17, which we find difficult to accept.    We  are
of the view that the excess of 107 admissions made in the year 2011-12  have
to be adjusted by adjusting the same for the  academic  session  2014-15  in
full and remaining seats be  adjusted  in  the  year  2015-16,  because  the
illegality committed must be set right  at  the  earliest.   This  Court  in
Mridul Dhar (Minor) & Anr. v. Union of India & Ors. (2005) 2  SCC  65,  held
(Direction No.11) as follows :
      “11. If any private medical college in a given academic year  for  any
      reason grants admission in its  management  quota  in  excess  of  its
      prescribed quota, the management quota  for  the  next  academic  year
      shall stand reduced so as to set off the effect of excess admission in
      the management quota in the previous academic year.”



19.   We may reiterate that the above-mentioned situation has  been  created
by the contemnors themselves and due to their illegal and unlawful acts,  by
admitting students over and above the sanctioned strength, the students  who
were later admitted from the list of State quota, could not get the  quality
medical education, which otherwise they would have got. Further,  they  were
also driven  to  unnecessary  litigation  before  the  High  Court  creating
uncertainty to their future.

20.   We, therefore, order that the admission of students  under  the  State
quota for the academic year 2011-12 in Medical College is  valid  and  legal
and appropriate steps should be  taken  by  the  State  Government  and  the
Medical Council of India to  regularize  the  admission.    The  excess  107
admissions made by the Medical College for the MBBS during the year  2011-12
and the previous year, be adjusted in the session  2014-15  in  full  taking
note of the full sanctioned strength and the balance seats  be  adjusted  in
the year 2015-16.  The unconditional and  unqualified  apology  tendered  by
the contemnors is accepted, but the contemnors are directed to  pay  a  fine
of Rs.50 lakhs in two months from today, to the State Government.    Ordered
accordingly.

21.   The Contempt Petition is disposed of accordingly.

                                                              ……..……………………J.
                                        (Dr. B.S. Chauhan)

                                                              ……..……………………J.
                                        (K.S. Radhakrishnan)




                                                              ……..……………………J.
                                        (S.A. Bobde)
New Delhi,
February 27, 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.
-----------------------
[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

-----------------------
44