(Referecne made by 3rd Ad-hoc. Addl.Sessions Judge, Nashik.) v. Ankush Maruti Shinde

Judgment

1. This Confirmation Case submitted under Section 366 Cr.P.C. arises judgment 2004 12th June 2006 deciding Sessions Case No.43 learned 3rd Ad-hoc Addl. Sessions Judge Nashik, convicting sentencing 2 accused offences punishable Sections 395, 302 Section 34, 376(2)(g), Section 307 Section 34 Sections 396, 397 398 IPC. All accused awarded penalty offence punishable Section 302 Section 34 IPC. The operative part of the order of conviction and sentence reads as under: ". The Accused Nos. (1) Ankush Maruti Shinde, (2) Rajya Appa Shinde, (3) Ambadas Laxman Shinde, (4) Raju Mhasu Shinde, (5) Bapu Appa Shinde (6) Surya Suresh s/o. Nagu Gangaram Shinde convicted offences punishable Sections 395, 302 Section 34 Indian Penal Code, Sections 376(2)(g), 307 r.w. 34 Indian Penal Code, Sections 396, 397 r.w. 395 and Sec. 398 of Indian Penal Code.

2. The offence punishable under Section 397 r.w. 395 Indian Penal Code proved. It includes offences punishable Sections 395 398 Indian Penal Code, so no separate punishments are given for the same. 3

3. The Accused Nos.1 to 6 are convicted for the offence punishable under Section 302 r.w. 34 of Indian Penal Code. . They are sentenced to death for the offence punishable Section 302 r.w. 34 Indian Penal Code. It directed hanged necks till they are dead. The sentence is subject to the confirmation by the Hon’ble High Court.

4. The Accused Nos.1 to 6 are convicted for the offence punishable section 376(2)(g) Indian Penal Code sentenced suffer R.I. a period 10 Rs.200/- each. In default of payment of fine, to suffer further R.I. for a period of 1 month each.

5. The Accused Nos.1 to 6 are convicted for the offence punishable Section 307 r.w. 34 Indian Penal Code. They sentenced suffer R.I. 5 each with of Rs.200/- each. In default of payment of fine to suffer further R.I. for a period of 1 month each.

6. The Accused Nos.1 to 6 are convicted for the 4 offence punishable Section 397 r.w. section 395 Indian Penal Code. They sentenced suffer R.I. a period 7 of Rs.200/- each. In default of payment of fine to suffer further R.I. for 1 month each.

7. The Accused Nos.1 to 6 are convicted for the offence punishable Section 396 Indian Penal Code. And sentenced suffer R.I. 10 Rs.200/- each. In default payment of fine to suffer further R.I. for 1 month each.

8. The Accused Nos.1 to 6 are acquitted of the offence punishable under section 135 of Bombay Police Act.

9. All the sentences to run concurrently". All convicted accused Criminal Appeal No.590 of 2006 against the said order of conviction and sentence.

2. Shri Raghunath Devram Hagwane (PW 6) is an 5 agriculturalist businessman having agricultural Survey No.15/3 Belatgavan Shivar agricultural having orchard, contract Shri Trambak Eknath Satote who was staying a a hut/shed erected agricultural family members (wife, daughter). On 6/6/2003 received a telephonic a.m. nephew Vishnu Hagwane (PW 12)

6.30 stating Trambak daughter bleeding condition perhaps dead. Raghunath who was having Survey No.19 immediately rushed noticed Trambak’s Manoj (PW 1) Vimalabai (PW 8) murmuring unconscious and, therefore, immediately shifted Municipal Hospital called Bytco hospital Nashik. Vishnu (PW 12) intimated police simultaneously and, therefore, arrived noticed Trambak, viz. Sandeep Bhurya @ Shrikant, daughter Savita sister-in-law’s Bharat More dead. The police noticed bleeding injuries bodies. Inquest panchanamas Exhibits 26 30 carried 6 Suresh Jaware (PW 2) panchas same. Spot panchanama Exhibit 31 Shankar Ghule (PW 3) witnesses. Near / a a distance 400 500 ft. plantation existing. Well panchanama 5) Exhibit 34 Dada Kashinath Palde (PW a witness. The bodies Municipal Hospital Sinnar Dr. D.M.Gadakh (PW 9) along with Dr. P.M. Wagh conducted mortem bodies (Exhibits 81, 86, 89, 91 93). Death certificates issued doctor addition separate certificates regarding case. The certificate Exhibit 83 stated Savita, 15 before dead. PW 1 Manoj regained consciousness 7 a.m. 6/6/2003 PW 8 Vimalabai regained consciousness

9.30 p.m. Bytco hospital. PW 1 Manoj complaint registered (Exhibit 23). His statement recorded Special Judicial Magistrate

12.00 hrs. FIR 6/6/2003 (Exhibit 178) statement mother Vimalabai (PW 8) recorded Exhibit 189 7 Gavane (PW 23) relevant Police Inspector Chandvad police station

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 family members as well Bharat More chitchatting dinner

10.30 p.m. unknown persons entered them were banyan started threatening family members. They demanded money ornaments Trambak Rs.3000/- pocket handed them. Some gang members forcibly mangalsutra ear-tops dorley person Vimalabai, ear-tops person Savita silver around feet. From person of Manoj removed a silver a watch. Thereafter consumed liquor. After re-entered weapons knife, handle, sickle, handle yokpin etc., members collect more money ornaments etc. They started beating family members Trambak 8 person received assault. Sandeep members family dacoits whatever collect family members should assaulted. At Sandeep assaulted Shrikant @ Bhurya, Bharat and Manoj. The dacoits Vimalabai well. They family members except Manoj Vimalabai. As a result assault Manoj, Trambak, Sandeep, Shrikant Bharat fallen unconscious. Three dacoits dragged Savita garden. Two dacoits picked Vimalabai dragged towards well. One garden Savita taken. Vimalabai assaulted brought hut. After dacoits brought Savita condition injuries body. When dacoits entered

10.30 p.m. hut was burning TV on. The dacoits increased volume recorder dropped Savita hut, dead. started walking persons injured thought Vimalabai (PW 8) consciousness around 9 12 O’Clock dacoits present belief victims dead. However, PW 1 Manoj his mother PW 8 Vimalabai survived. They are the eye witnesses to the prosecution case.

4. The clothes from the dead bodies of five deceased persons clothes person Manoj Vimalabai seized. From weapons wooden handle, handle, yokpin sickle seized. The seized articles chemical analysis CA reports Exhibit 58 Exhibit 72 received. In gravity incidence police machinery obviously tremendous pressure sought assistance neighbouring districts Ahmednagar, Aurangabad, Jalgaon Dhule etc. The

breakthrough 23/6/2003 accused nos.1 2 arrested arrest panchanamas (Exhibits 44 45) Crime Branch. The police during course investigation information accused involved a separate registered police station Bhokardhan Jalna district 10 19/6/2003 police, therefore, application before competent Court seeking transfer accused in Crime No.74 2003 registered Bhokardhan police station finally accused nos.3 5 arrested 27/6/2003 arrest panchanamas (Exhibits 53, 54 55) custody transferred police station Bhokardhan. On arrest accused nos.1 5 clothes seized subjected medical examination. Dr. Satish Vasant Shimpi (PW 16) examined accused nos.3, 5 27/6/2003 issued medical certificates 4 Exhibits 133

135. Of accused, accused No.4 - Raju Mhasu Shinde sustained injuries within weeks. Accused nos.1 2 examined Dr.Vilas Patil (PW 24) 23/6/2003. Both accused sustained injuries medical certificates issued Exhibits 195

196. We diary maintained I.O. during course statements investigation evident Sunita Raja Shinde recorded at Exhibit 77A in the presence of Ibrahim Wazir Shaikh (PW 7) on 25/6/2003. 11 . Test identification parade of the accused nos.1 5 25/7/2003 premises PW 1 Manoj identified accused unknown persons entered assaulted family members. PW 8 Vimalabai identified Accused Nos.1, 3, 4 5 unknown persons entered assaulted family members. She however, identify accused no.2 - Raja Appa Shinde. Whereas accused no.6 arrested 7/10/2004 TI parade was 9/10/2004. Both PW 1 PW 8 identified accused who was unknown persons entered assaulted family members. The identification report Exhibit 120 proved through evidence Special Executive Magistrate, Ramesh Sonawane (PW 13).

5. On completion of investigation charge-sheet committed Sessions Court. The learned Ad-hoc Addl. Sessions Judge Nashik framed 5th charge Sessions Case No.43 2004 13/6/2005. The prosecution initially examined 24 witnesses including doctors i.e. PW 9 Dr. 12 Gadakh, PW 15 - Nalini Shardul, PW 16 - Dr. Satish Shimpi PW 24 - Dr. Vilas Patil. The police personnel examined prosecution PW 10 - Vitthal Chaudhari, PW 11 - Bapu Sonawane, Police Naik, PW 13 - Ramesh Sonawane, Special Executive Magistrate, PW 17 Narayan Shinde, PSI, PW 18 Bhaskarrao Dhas, Asst. Commissioner Police investigated case, PW 19 Bhimsing Thakur, In-charge Dog Squad at Dhule, PW 20 - Kashinath Bharate, Police Inspector investigated crime. PW 21 - Ramesh Patil, Senior P.I., Ambad Police Station, Nashik conducted investigation days, PW 22 - Shafiuddin Sayyed, P.I. Traffic Branch recorded complaint (FIR Exhibit 23) of Manoj PW 1 PW 23 - Sharad Gavane, P.I. Chandwad Police Station investigated stage. others witnesses i.e. PW 2 Mohan, PW 3 - Shankar Tukaram Ghule, PW 4 - - The Suresh Bharat Narayan, PW 5 - Dada Kashinath Palde, Police Patil, PW 7 - Ibrahim Shaikh.

6. Criminal Application No.1 of 2006 was filed by State Maharashtra Criminal Application No.2 2006 accused persons before 13 Court. By common 14th November 2006 in both these applications the following directions were issued: (i) The prosecution be allowed to lead additional evidence of the Sub-Divisional Magistrate who conducted the test identification parade in relation to accused Nos.1 to 5 and all relevant documents pertaining thereto. (ii) The defence be permitted to recall and cross-examine PW-8 in relation to Exh. 122 which is already on record. (iii) In the event contradictions are established on record in the cross-examination of PW-8, the learned Trial Judge should also recall PW-13 for directions of those contradictions, if any. (iv) Since the matter of confirmation is pending, it is desired that the necessary recording of additional evidence be completed before 7th of January, 2007. List the matter 14 for further orders in relation to hearing on 9th January, 2007. The record may be transmitted to the Trial Court for this purpose." . Consequently PW 8 and PW 13 were further cross-examined defence prosecution examined additional witness i.e. Shri Govind Alhate, City Magistrate Nashik PW

25. He conducted TI parade accused nos.1 5 25/7/2003. Through evidence additional documents Exhibits 217 229 were brought record. Exhibits 224 228 memorandum TI parade accused nos.1 5 Exhibit 229 explanation submitted Sub-Divisional Magistrate. The explanation states TI parade 25/7/2003 present, TI police personnel parade conducted Magistrate himself, before TI parade commenced witnesses opportunity accused, accused allowed number wanted witness accused concerned permitted change clothes. In addition 15 accused dummies line and finally the witness had identified the accused.

7. It has come in the evidence of PW 9 Dr. Gadakh persons received multiple injuries externally internally. At appropriate injuries so noticed and recorded in the P.M. reports. I.I.I. MissMissMiss Savita Trambak Satote (age - 15 yrs.) Savita Trambak Satote (age - 15 yrs.) Savita Trambak Satote (age - 15 yrs.) External injuries: injuries: External External injuries: (1) CLW above right eye brow with dimensions as 5 cm. x 3 cm. x 5 cm. (2) cm. (3) CLW above right eye brow medially 1 cm. x 1 Contusion below right eye brow of 3 cm. x 3 cm. in dimensions. 16 CLW above left eye brow of 3 cm. x 1 cm. x 5 CLW on lateral angle of right eye 1 cm. x 1 CLW on right upper lip of 1 cm. x 1 cm. Abrasion on right nape of neck of 2 cm. x 2 Abrasion on left side of back 10 cm. x 3 cm. Abrasion on left shoulder posteriorly 3 cm. x (4) cm. (5) cm. (6) (7) cm. (8) (9) 2 cm. (10) Abrasion on right shoulder 3 cm. x 3 cm. Contusion on left side of chest wall 3 cm. x Abrasion on right side of chest wall 1 cm. x (11) 3 cm. (12) 1 cm. (13) Valval oedema present, bluish discolouration 17 of vaginal mucosa, hymen ruptured, bleeding through vagina present. injuries : Internal injuries : Internal injuries : Internal Head : (1) (2) subcutanery haematoma on frontal region. Skull normal except harding fracture at frontal bone horizontal 4 cm. in length. Subdural haematoma on right frontal, 6 cm. x (3) 5 cm. Cause of death : of death : CauseCause of death : Intracarnial haemorrhage due to fracture of skull. II.II.II. Eknath Satote (age - 50 yrs.) Trambak Eknath Satote (age - 50 yrs.) Trambak Eknath Satote (age - 50 yrs.) Trambak 18 injuries: External injuries: External injuries: External (1) cm. (2) (3) (4) Abrasion on left clavicle region of 2 cm x 1 Abrasion on right clavicle region 3 cm x 1 cm. Abrasion on supra sternal knotch 3 cm x 2 cm. Abrasion below left ear 2 cm x 1 cm. Internal injuries : injuries : Internal Internal injuries : (1) Fracture of rib of left side and left haemo-thorax of about 1 & 1/2 Lt. Cause of death : of death : CauseCause of death : Acute cardio respiratory arrest due to haemorrhagic shock. III. III.III. @ Shrikant Trambak Satote (age-8 yrs.) Bhurya @ Shrikant Trambak Satote (age-8 yrs.) Bhurya @ Shrikant Trambak Satote (age-8 yrs.) Bhurya 19 injuries: External injuries: External injuries: External (1) (2) CLW on lateral to left eye 1 x cm. skin deep. Contusion on left cheek from left ear to angle of moth. 3 cm. in breadth and brownish discoloured. CLW over occipital region 3 cm. x 1 cm. bone (3) deep. Internal injuries: injuries: Internal Internal injuries: (1) subcutaneous haematoma over left frontal parietal region and over occipital region 3 cm x 1 cm in size. (2) Skull fracture horizontal on frontal bone 3 cm. in length. (3) Intracerebral haemorrage present in brain. Big haematoma fronto over left parieta and occipital region. Big clot at the base of skull. of Death: Cause of Death CauseCause of Death 20 Intracravical haemorrhage due to head injury. IV. IV. IV. Trambak Satote (age - 17 yrs.) Sandeep Trambak Satote (age - 17 yrs.) Sandeep Trambak Satote (age - 17 yrs.) Sandeep injuries : External injuries : External injuries : External (1) (2) 1/2 x 1/2 cm. Internal injuries : injuries : Internal Internal injuries : (1) scalp. Contusion on right cheek about 4 x 3 cm. Incised wound on right side of chest wall 1 x Haematoma of left temporo-parietal region of (2) Brain showed left temporal parietal haematoma about 7 cm. x 5 cm. and intra ventricular bleeding present. of Death : cause of Death : of Death : Shock due to head injury. 21 V.V.V. Ashok More (age 14 yrs.) Bharat Ashok More (age 14 yrs.) Bharat Ashok More (age 14 yrs.) Bharat External injuries: (1) Incised wound on left chest near nipple of 2 x 1 cm. and skin deep. (2) Contusion on left side of chest laterally to the nipple of size 5 x 3 cm. (3) Abrasion on abdomen of 2 x 2 cm. over left hypochondria. Internal injuries: injuries: Internal Internal injuries: (1) Thorax showed fracture of ribs No.4 and 5 at anterior axillary line of left side. Cause of death: of death: CauseCause of death: Cardio respiratory arrest due to haemorrhagic shock due to blunt injury to chest. . From the above medical evidence it is very 22 persons Savita, Trambak, Bhurya @ Shrikant, Sandeep Bharat a homicidal death. The P.M. indicated 4 6 meals. It evidence PW 1 - Manoj PW 8 - Vimalabai family members taken meals around 9 p.m. 5/6/2003 and, therefore, Trambak, Sandeep, Savita, Shrikant Bharat between 1 a.m. 3 a.m. 6/6/2003 account assault received dacoits. In addition, earlier, medical certificate Exhibit 83 issued by PW 9 Dr.Gadakh sated that Savita was raped before she died.

8. Mr.Mundargi, the learned Senior Counsel for accused submitted accused implicated of mistaken identity PW 13 Ramesh Sonawane recorded declaration (Exh.122) PW 8 admitted recorded clearly stated PW 8 identified accused File No.80 p.284 (1) Gautam Hirama Kale, 22 resident Zopwadi Dhiv, Taluka Nevasa, Dist. Ahmednagar, (2) Babakhan Shivaji @ Shvlya Bhosle, 23 19 years, resident Gadhavladan, Muktapur Shivar, Tal. Nevasa, Dist. Ahmednagar (3) Khandya Ramu Chavan, 20 years, resident Bhedlashivar, Tal. Gangapur, Dist. Aurangabad (4) Suresh @ Navlya Sitaram Kale, 35 years, resident Kasarwada Karkhana Shivar, Taluka Dist. Beed. In statement PW 8 further declared accused identified photographs entered fateful assaulted husband children committed dacoity. The prosecution failed explain present accused implicated PW 8, claimed a witness already identified persons accused prosecution 7+4 = 11 dacoits entered complainant committed offences. As Shri Mundargi police backtracked course investigation particularly document recorded D.D. Exhibit 122 and which proved evidence PW

13. He referred additional depositions cross-examination PW 8 as well PW 13 consequent passed Court Criminal Application Nos.1 2 24

2006. In additional evidence PW reiterated received 13 requisition recording declaration PW 8 regained consciousness 7/6/2003 identified accused photographs File No.80 handed police i.e. File Nos.70, 76

80. Whereas PW 8 cross-examination second admitted File No.80 to her by PW 13 statement recorded Exhibit 122 identify accused photographs names. It defence evidence No.80 containing photographs extent history sheeters PW 8 PW 13 authorisation received I.O. photographs identified witness persons entered 5/6/2003, assaulted inmates committed dacoity. The learned counsel raised a grievance against passed learned Judge Court declining exhibit requisition 7/6/2003 received PW 13 I.O. though original document already placed File 25 before Court during original proceedings additional cross-examination PW 13 clearly admitted to have received the said document and identified it. . The defence has also strenuously criticised TI parades 25/7/2003 9/10/2004. It submitted TI parade 25/7/2003 breach guidelines contained TI Criminal Manual framed Court. When parade conducted accused nos.1 25/7/2003 premises PW 25 5 - Mr.Alhate, police personnel present parade hall, witnesses a accused persons brought hall, selection respectable persons the Magistrate contrary police, the Magistrate examine persons selected respectable reliable witnesses, dummies numbering accused selected the Magistrate instead police selected choice. While selecting dummies necessary ensure 26 similar features age, height, complexion general appearance. It further alleged witnesses i.e. PW 1 PW 8 were called another, present identity police personnel accused and, therefore, parade vitiated. In addition, respectable persons disclosed identity accused witnesses brought adjacent room. Thus identity accused TI parade utterly faulty, discarded TI parade proved examining PW 25 Mr.Alhate original if that be so, there was no basis for the prosecution to file the charge-sheet against them. . The deceased Trambak was sitting with his family members a located Survey No.15/3 though there was a TV system, obscure located surroundings a orchard believed target dacoits. The dacoits normal course target a rich man’s a sufficient information believe sufficient wealth grabbing. It 27 unbelievable dacoits target a Trambak commit dacoity offence murder, attempt The testimonies PW 1 PW 8 attended etc. serious infirmities fraught inconsistencies, improvements, omissions contradictions thereby rendering depositions unreliable, fragile feeble a conviction leading imprisonment a capital punishment. As defence testimony PW 1 inconsistent, contradictory untrustworthy and, therefore, unreliable. The witness stated before police accused entered started assaulting inmates increased volume tape-recorder switched lights. omission brought during cross-examination PW

1. PW 1 stated This consciousness accused entered started assaulting inmates including himself. This would mean PW 1 accused, accused switched lights during incident having consciousness PW 1 witnessed accused. In contended evidence PW 1 28 Manoj did not inspire confidence and, therefore, ought to be discarded per se. . The learned Senior Counsel for the defence further submitted PW 8 Vimalabai subjected depositions criticism improvements omissions. The depositions before Court variance statement recorded police. At stated Savita whereas stated dragged before Savita. In document recorded declaration (Exhibit 122) accused statement recorded Exhibit 189 claimed dragged towards brought condition hut. The inconsistencies contradictions statement and, therefore, Vimalabai PW 8 a totally unreliable witness of the prosecution, urged the learned Senior Counsel for the accused. . He further contended that the evidence of PW 9 Dr.Gadakh indicated deceased Trambak 29 Sandeep consumed alcohol PW 1 Manoj cross-examination suggested, flatly denied same. This behaviour PW 1 Manoj unreliable untruthful witness. It submitted weapons were recovered instance accused whatever weapons produced before Court seized incident i.e. Trambak brought before Court. To conclude submitted Mr.Mundargi prosecution failed anything record connect accused crime. The accused were identified before Court purported identification parade 25/7/2003 proved before Court and, therefore, adverse inference required accused nos.1 5 concerned. The silver discovered instance accused no.5 established belonging PW Manoj. The learned Addl. Sessions Judge failed appreciate defence succeeded demonstrating glaring inconsistencies evidence adduced testimonies 1 prosecution witnesses material contradictions, improvements, alterations 30 variances. However, learned Judge appreciating evidence discard same. The prosecution failed beyond reasonable complicity accused incident resulted dastardly massacre persons family without any provocation from the victims, claimed the learned Senior Counsel for the defence.

9. Mrs. Kejriwal, the learned APP on the other supported reasoning support conviction submitted suffer infirmities. conviction evidence adduced prosecution impeccable. The testimony As witnesses PW 1 Manoj PW 8 Vimalabai weakened ground identification individual accused witnesses before Court a substantive evidence identification parade 25/7/2003 suffered procedural requirements, TI parade suffer defects. She referred depositions PW 25 Alhate additional evidence recorded 31 submitted T.I. Parade reports (Exh.224 228) vitiated grounds. PW 1 Manoj PW 8 Vimalabai were consistent depositions improvements, variations contradictions, any, insignificant any way make testimony material aspects offences vulnerable doubtful. Both natural witnesses, injured assault, become unconscious PW 8 Vimalabai accused observed and, therefore, identification accused either TI parade before Court doubted. PW 1 Manoj unconscious immediately persons accused. He unconscious amount Rs.3000/- deceased Trambak accused threats, ornaments person Vimalabai Savita silver wrist watch was robbed person. The assault prosecution started members family second accused consumed liquor sitting outside and when a meagre amount Rs.3000/- sufficient 32 amount jewellery recovered necessary inflict a physical assault members family create a terror making before jewellery money. It was, therefore, claimed learned APP PW 1 Manoj sufficient identify accused identified accused TI parade 25/7/2003. On charge submitted learned APP evidence prosecutrix viz. PW 8 Vimalabai discarded accused dragging daughter Savita taking towards orchard. Subsequently dragged hut, initially subsequently orchard Savita taken. During process PW 8 sufficient opportunity observe accused involved dragging Savita herself. She pointed medical evidence Savita suffered injuries genital ruptured thereby clearly indicating subjected before she was injured inflicting assaults head. It further pointed surviving members family 33 viz. PW 1 PW 8 suffered serious injuries but for the medical treatment, PW 8 perhaps would not have survived.

10. nos.1 To begin with we shall consider the TI parade 25/7/2003 identification accused

5. It record dummies accused persons different accused a parade hall. We perused guide-lines relied defence holding TI parade. PW 25 Mr.Alhate the Magistrate conducted TI parade clearly stated dummies acceptable respectable persons selected police assessed reliable. In explanation report Exhibit 229 clearly stated police personnel employee jail was allowed parade witnesses brought identification accused, accused change clothes accused witnesses witnesses called identifying accused. In cross-examination PW 25 34 defence failed material defects vitiate TI parade 25/7/2003 doubtful. Merely saying report submitted PW 25 height person mentioned and, therefore, Magistrate failed conduct parade required, cannot vitiate TI parade. Even otherwise PW 8 identify accused no.2 Rajya Appa Shinde depositions - PW 25 identified remaining accused persons whereas PW 1 Manoj identified accused. This additional factor support the TI parade being genuine and not a casual exercise undertaken by PW 25. . In this regard we rely upon the following observations made by the Supreme Court in the case of reality a futile exercise. The social impact e.g. relates offences against women, dacoity, kidnapping, misappropriation public money, treason turpitude offences involving delinquency impact social order, public interest, cannot require exemplary treatment. Any liberal attitude imposing meagre sentences taking sympathetic a merely account respect 67 offences resultwise counterproductive against societal interest strengthened a string deterrence inbuilt sentencing system."

22. The learned Judge of the trial court in support sentence penalty imposed, out the following reasons in para 53 of the judgment:- "......In present case, the Accused extent committing dacoity caused murders 5 persons. Out 4 tender 50 years. All deceased person resisted Accused way. Even probably a position resist Accused. Accused committed 15 mother. Not this, jumped bodies persons wearing 68 feet. All Accused committed brutal murder inhuman. They indifferent huminity. Moreover, incident create collective conscious society. In circumstances though Accused between 25 30 age, enormity gravity situation offence committed weights. The consideration offenders. And circumstances, I constrained rarest case." . It is well settled in law that in operating sentencing system, should corrective machinery deterrence factual matrix. By modulation, sentencing process should be, tempered warrants be. The circumstances case, nature crime, manner planned committed, motive commission crime, conduct accused, nature weapons 69 attending circumstances relevant consideration. Undue sympathy impose inadequate sentence justice system undermine public confidence efficacy law, society endure serious threats. It is, therefore, proper sentence having regard nature offence manner executed committed, [Sevaka Perumal v. State of T.N. (1991) 3 SCC etc. [Sevaka Perumal v. State of T.N. (1991) 3 SCC [Sevaka Perumal v. State of T.N. (1991) 3 SCC 471]. 471]471] . a The proportion between crime and punishment is respected principle, errant notions, remains a strong influence determination sentences. The practice punishing serious crimes severity unknown civilised societies, radical departure principle proportionality disappeared a recent times. Even a single infraction, drastic sentences imposed. Anything a penalty greatest severity serious thought a measure toleration unwarranted unwise. But 70 fact, considerations punishment unjustifiable proportion crime, uniformly disproportionate punishment undesirable practical consequences. Jasvantbhai v. State of Gujarat (2006) 2 [Shailesh Jasvantbhai v. State of Gujarat (2006) 2 [Shailesh Jasvantbhai v. State of Gujarat (2006) 2 [Shailesh 359]. SCCSCCSCC 359]. 359]. . The imposition of appropriate punishment is manner responds society’s justice against criminal. Justice demands courts should impose punishment befitting courts reflect public abhorrence crime. The court must rights criminal rights victim society considering imposition appropriate punishment. [Dhananjoy Chatterjee v. State of W.B. [Dhananjoy Chatterjee v. State of W.B. [Dhananjoy Chatterjee v. State of W.B. Criminal Appeal No.590 of 2006 is partly allowed in terms of the above order.

26. Mr.Mundargi, the learned Senior Counsel appearing accused submitted application behalf accused nos.1, 2 4 praying suspension sentence so as to enable the said accused to approach the Apex Court under Article 136 of the Constitution. . In view of the scheme of Section 415 of Cr.P.C., application allowed directed execution sentence of accused nos.1, 2 and 4 shall stand suspended for a period of three months from today. (R.S.MOHITE,J.) (B.H.MARLAPALLE,J.)