ANKUSH MARUTI SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Confirmation Case submitted under Section 366 of Cr. P. C. arises from the judgment and order dated 12th June 2006 deciding Sessions Case No. 43 of 2004 by the learned 3rd Ad-hoc Addl. Sessions Judge at Nashik, convicting and sentencing six out of the seven accused for the offences punishable under sections 395, 302 read with Section 34, 376 (2) (g), section 307 read with Section 34 and Sections 396, 397 and 398 of IPC. All the accused have been awarded the death penalty for the offence punishable under Section 302 read with Section 34 of IPC. The operative part of the order of conviction and sentence reads as under:

(2.) SHRI Raghunath Devram Hagwane (PW 6) is an agriculturalist and businessman having his agricultural land in Survey No. 15/3 on Belatgavan shivar and part of the agricultural land was having a guava orchard, he had given the same on contract to shri Trambak Eknath Satote who was staying in a hut/shed erected on the said agricultural land along with his family members (wife, three sons and one daughter ). On 6/6/2003 he received a telephonic call from his nephew Vishnu Hagwane (PW 12) at about 6. 30 a. m. stating that Trambak and his sons and daughter were lying in bleeding condition in the hut and they were perhaps dead. Raghunath who was having his house in Survey No. 19 immediately rushed to the spot in his jeep and noticed that Trambak's elder son manoj (PW 1) and wife Vimalabai (PW 8) were murmuring but unconscious and, therefore, he immediately shifted both of them to the Municipal Hospital called bytco hospital at Nashik. Vishnu (PW 12) had also intimated to the police simultaneously and, therefore, they arrived at the spot and noticed that trambak, his two sons viz. Sandeep and Bhurya @ shrikant, daughter Savita and his sister-in-law's son bharat More were found dead. The police also noticed bleeding injuries on the dead bodies. Inquest panchanamas at Exhibits 26 to 30 were carried out with Suresh Jaware (PW 2) being one of the panchas for the same. Spot panchanama at Exhibit 31 was drawn with Shankar Ghule (PW 3) as one of the panch witnesses. Near the hut / shed there was a well at a distance of about 400 to 500 ft. and from its three sides guava plantation was existing. Well panchanama at Exhibit 34 was drawn with Dada Kashinath Palde (PW 5) as a panch witness. The dead bodies were sent to the Municipal Hospital at Sinnar and Dr. D. M. Gadakh (PW 9) along with Dr. P. M. Wagh conducted the post mortem of all the five dead bodies (Exhibits 81, 86, 89, 91 and 93 ). Death certificates were also issued by the said doctor in addition to separate certificates regarding cause of death in each case. The certificate at Exhibit 83 stated that Savita, aged about 15 years was raped before she was dead. PW 1 Manoj regained his consciousness at about 7 a. m. on 6/6/2003 and PW 8 Vimalabai regained her consciousness at about 9. 30 p. m. on the same day while at the Bytco hospital. PW 1 Manoj filed his complaint which came to be registered as an FIR (Exhibit 23 ). His statement was recorded by the special Judicial Magistrate at about 12. 00 hrs. on 6/6/2003 (Exhibit 178) and the statement of mother vimalabai (PW 8) was recorded at Exhibit 189 by gavane (PW 23) and at the relevant time Police inspector at Chandvad police station at about 9. 45 p. m. Both the injured were shifted to the Government hospital at Nashik on 7/6/2003.

(3.) AS per the prosecution case on 5/6/2003 trambak and all his family members as well as the guest Bharat More were chitchatting after dinner and at about 10. 30 p. m. seven to eight unknown persons entered his hut and all of them were on banyan and half pant and they started threatening the family members. They demanded money as well as ornaments and Trambak took out Rs. 3000/- from his pocket and handed over to one of them. Some of the gang members forcibly took away the mangalsutra as well as ear-tops and dorley from the person of Vimalabai, ear-tops from the person of Savita and silver rings which were around her feet. From the person of Manoj they removed a silver chain and a wrist watch. Thereafter they went out of the hut and consumed liquor. After some time they re-entered the hut with weapons like knife, axe handle, sickle, spade with handle and yokpin etc. , so as to rob the house members and collect more money and ornaments etc. They started beating the family members and Trambak was the first person who received assault. Sandeep and other members of the family told the dacoits to take away whatever they could collect from the house but no family members should be assaulted. At this stage Sandeep was assaulted and so also Shrikant @ bhurya, Bharat and Manoj. The dacoits did not spare vimalabai as well. They tied hands and legs of all the family members except Manoj and Vimalabai. As a result of assault Manoj, Trambak, Sandeep, Shrikant and Bharat had fallen unconscious. Three of the dacoits dragged Savita out of the hut and took her to the guava garden. Two of the dacoits then picked up vimalabai and dragged her towards the well. One of them raped her near the well and then she was taken to the guava garden where Savita was taken. Vimalabai was assaulted and brought back to the hut. After some time the three dacoits brought Savita back but in naked condition and with injuries on her body. When the dacoits had entered the hut at about 10. 30 p. m. the light bulb in the hut was burning and TV was on. The dacoits increased the volume of the tape recorder and after they dropped Savita in the hut, they put on shoes and started walking on the persons lying injured and they thought that all of them were dead. Vimalabai (PW 8) lost her consciousness around 12 O'clock in the night and till then the dacoits were present in the hut and they left the hut under the belief that all of the victims were dead. However, PW 1 Manoj and his mother PW 8 Vimalabai survived. They are the eye witnesses to the prosecution case.