STATE OF MAHARASHTRA Vs. SANTOSH MANOHAR CHAVAN

JUDGEMENT

(1.) These references for confirmation under Section 366 of the Criminal Procedure Code (the Code for short) arise from the separate order of conviction and sentence passed on 26/5/2009 by the learned Additional Session Judge, Sindhudurg at Oros in Sessions Case No. 3 of 2005 and Sessions Case No. 5 of 2005. In the said Sessions Case in all seven accused came to be tried for the offences punishable under Sections 302, 201, 364A, 394, 397, 404, 201(I), 201(II), 212, 120B read with Section 34 of IPC and Sections 3, 5, 6 read with Section 25 of the Arms Act, 1959. The learned Additional Sessions Judge, by his order dated 25/5/2009, was pleased to acquit accused nos.4 and 7 on all the charges and on 26/5/2009, he passed an order convicting accused no.1, accused no.2, accused no. 3 and accused no.6 for the offences punishable under Sections 302, 364A read with Section 120B of IPC for having murdered four members of Mali family i.e. Sanjay Kerubhai Mali, Rajesh Kerubhai Mali, Anita Kerubhai Mali and Kerubhai Mali and awarded the sentence of death by hanging. He further convicted accused nos.1 to 3 and 6 under Sections 394 and 397 read with Section 120B of IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5000/- each, in default to undergo RI for six months more. Accused nos.1 to 3 and 6 have also been convicted for the offences punishable under Section 404 read with Section 120B of IPC and sentenced to undergo RI for one year and to pay a fine of Rs.5000/- each, in default to suffer RI for six months more, under Section 201 read with Section 120-B of IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5000/- each in default to under go RI for six months more and under Sections 3, 5, 6 read with Section 25 of the Arms Act and sentenced to undergo SI for three years. Accused No.6 has filed Criminal Appeal No. 732 of 2010 against the said order of conviction and sentence, whereas accused nos.1 to 3 have not challenged the said order. However, under Section 368 of the Code, while deciding a confirmation reference, this court has the powers to confirm the sentence, or pass any other sentence warranted by law, or annul the conviction, and convict the accused of any offence of which the Court of Sessions might have convicted him, or order a new trial on the same or on amended charge, or to acquit the accused persons. Thus, even in the absence of an appeal by accused nos.1 to 3, we have to decide on the culpability of accused nos.1 to 3 as claimed to have been proved by the prosecution and also the legality, validity and justifiability of the order of sentence of death by hanging.

(2.) So far as Criminal Appeal No. 731 of 2010 is concerned, it has been filed by accused no.5 in Sessions Case No. 5 of 2005. In all six accused came to be tried for the offences punishable under Sections 302, 201, 364A, 394, 397, 404, 201(I), 201 (II), 212, 120B read with Section 34 of IPC and Sections 3, 5 and 6 read with Section 25 of the Arms Act for having abducted and murdered in furtherance of their criminal conspiracy four victims from different families i.e. Vijaysinh Dudhe, Dadasaheb Chavan, Sanjay Gavare and Bala Pisal. The learned Additional Sessions Judge, by his order of conviction and sentence dated 26/5/2009 was pleased to convict accused nos.1 to 3 and 5 for the offences punishable under Sections 302 and 364 read with Section 120B of IPC for having murdered the victim Vijaysinh Dudhe and they have been sentenced to death by hanging. The accused nos.1 to 3 and 5 came to be convicted for the offences punishable under Sections 302 and 364A read with Section 120B of IPC for having murdered the victim Dadasaheb Chavan and they have been sentenced to death by hanging. All these 4 accused have also been convicted and sentenced for the very same offences and in the like manner for having murdered the victims Sanjay Gavare and Vinayak Pisal. They have been also convicted under Sections 394, 397, 404, 201 read with Section 120B of IPC and sentenced to suffer RI for six months for each offence. They have been also convicted under Sections 3, 5 and 6 read with Section 25 of the Arms Act and sentenced to undergo SI for three years. The learned Additional Sessions Judge directed to submit the record and proceedings to this court for confirmation under Section 366 of Cr. P.C. However, it appears that the Registry of this court, by inadvertence, failed to register a separate confirmation case arising from the order of conviction and sentence in Sessions Case No. 5 of 2005. We, therefore, direct that confirmation case arising from Sessions Case No. 5 of 2005 be registered separately. Accused No.6 in Sessions Case No. 3 of 2005 Shri Mahesh Shinde is accused no.5 in Sessions Case No. 5 of 2005 and, therefore, he has been referred as accused no.6 uniformly in this common judgment.

(3.) As per the prosecution case, on 20/12/2003, the Superintendent of Police, Sindhudurg-Oros, received anonymous letters and phone calls informing that the dead bodies of some unknown persons were lying on the hillocks of village Nandos, Taluka - Malvan, District Sindhudurg as well as in the adjoining agricultural lands. He, therefore, issued necessary directions to the police officers to take search of the said area and accordingly a search operation was carried out on the very same day, in which seven dead bodies scattered were found. The search operation was continued on 21/12/2003 as well and two more dead bodies were found. Thus, in the search operation jointly carried out by the police officers and villagers, nine dead bodies were recovered i.e. DB-1 to DB-9 and panchanamas were drawn. From the spots, some clothes, trousers' hooks, blood stained diary, broken brief-case and such other articles were also recovered. All the dead bodies were brought to the civil hospital at Oros for post mortem and all the medical officers were assigned to undertake the post mortem as per the directions of the Civil Surgeon. The dead bodies were in decomposed, mummified and in skeleton form. The skulls and other parts of the bodies of some of the skeletons were separated. Hence, though the medical officers of the civil hospital at Oros performed the autopsy, they could not record their opinion and preferred to preserve the viscera of the dead bodies and expressed to refer bodies for Forensic Chemical Test. Hence, the dead bodies were taken to the Medical College at Miraj for forensic examination and the Dean of the Medical College, on considering the gravity of the case, formed a committee of the Medical Officers headed by Dr. Anil Digambarrao Jinturkar (PW 76). After conducting the procedure for maceration to clean the skeletons by keeping them in separate drums, the team of Medical Officers performed the autopsy and recorded its opinion in respect of cause of death. With the help of the Miraj Medical College, some of the organs of the dead bodies were also referred to C.D.F.D., Hyderabad for DNA tests and at the same time the police referred the skulls of some of the victims to the Forensic Laboratory at Kalina, Mumbai for the purpose of superimposition test. Undoubtedly, the recovery of seven dead bodies received wide publicity and sent a wavering shock and scare in the minds of the villagers. With the help of the diary recovered from the spot, some names of the relations and friends of the victims were identified. The information regarding the missing persons received at all the police stations in the State of Maharashtra was also assimilated.