Supreme Court - Daily Orders
Ambadas Laxman Shinde vs The State Of Maharashtra on 31 October, 2018
Bench: Kurian Joseph, A.M. Khanwilkar, D.Y. Chandrachud
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL) NOS. 1819 OF 2011
IN
CRIMINAL APPEAL NOS. 881882 OF 2009
AMBADAS LAXMAN SHINDE AND ORS
.....PETITIONERS
Versus
THE STATE OF MAHARASHTRA
.....RESPONDENT
WITH
REVIEW PETITION (CRL) NOS. 3435 OF 2010
in
CRIMINAL APPEAL NOS. 10081009 OF 2007
AND WITH
CRL. MP. NOS. 700809 OF 2016
in
REVIEW PETITION (CRL) NOS. 3435 OF 2010
in
CRIMINAL APPEAL NOS. 10081009 OF 2007
Signature Not Verified
Digitally signed by
SHASHI SAREEN
O R D E R
Date: 2018.11.02
16:40:44 IST
Reason:
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1 On 22 March 2007, a Division Bench of the Bombay High Court
disposed of a reference which was made under Section 366 of the
Code of Criminal Procedure 1973 by the 3 rd Adhoc Additional
Sessions Judge, Nasik.
2 The High Court upheld the conviction of and the sentence of
death imposed on Accused Nos. 1, 2 and 4. While upholding the
conviction of Accused Nos. 3, 5 and 6, the High Court sentenced
them to imprisonment for life. All the six accused were convicted
of the offence punishable under Section 302 read with Section 34 of
the Penal Code. In addition, Accused Nos. 1, 2 and 4 were convicted
of the offence punishable under Section 376 (2)(g) for which they
were sentenced to suffer rigorous imprisonment for a period of ten
years. The conviction of Accused Nos. 3, 5 and 6 under Section 376
(2)(g) was set aside by the High Court. All the Accused were
convicted of offences under:
(i) Section 307 read with Section 34 for which they have been
sentenced to suffer five years imprisonment;
(ii) Section 397 read with Section 395 for which they have been
sentenced to suffer rigorous imprisonment for seven years; and
(iii) Section 396 for which they were sentenced to suffer rigorous
imprisonment for ten years.
3 Criminal Appeals Nos. 100809 of 2007 were filed before this
Court by Accused No. 1(Ankush Maruti Shinde), Accused No. 2 (Rajya
Appa Shinde) and Accused No. 4 (Raju Mhasu Shinde).
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4 The State of Maharashtra filed Criminal Appeal Nos. 881882 of
2009 for seeking enhancement of the sentence of life imprisonment
imposed by the High Court on Accused Nos. 3, 5 and 6.
5 By a judgment dated 30 April 2009, a two judge Bench of this
Court dismissed the appeals filed by Accused Nos. 1, 2 and 4. While
allowing the appeals filed by the State, this Court sentenced
Accused Nos. 3, 5 and 6 to suffer the sentence of death.
6 Review Petitions were filed by the accused. Review Petition
Nos.3435 of 2010 were filed by Accused Nos. 1, 2 and 4. Review
Petition Nos. 1819 of 2011 were filed by Accused Nos. 3, 5 and 6.
The petitions seeking review were dismissed.
7 Following the decision of the Constitution Bench in Mohd. Arif
v Registrar, Supreme Court of India1, criminal miscellaneous
petitions have been filed for reopening the review petitions. In
terms of the judgment of the Constitution Bench, we permit the
reopening of the review petitions. They have been listed for
hearing before this Bench in open court.
8 Certain salient features about the proceedings which took
place before this Court in the course of the hearing need to be set
out:
(i) On 3 August 2007, leave was granted in the Special Leave
1 2014 (9) SCC 737
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Petitions filed by Accused Nos. 1, 2 and 4. Execution of the
sentence of death was stayed during the pendency of the appeals;
(ii) On 21 November 2008, notice was issued in the appeals filed by
the State of Maharashtra. The appeals by the State were tagged
with the criminal appeals filed by the accused;
(iii)The notice issued by this Court on 21 November 2008 was served
on the accused in jail on 6 December 2008;
(iv)The hearing of the appeals had commenced on 4 December 2008
even before service of notice was effected;
(v) The order sheet dated 4 December 2008 indicates that all the
appeals were heard in part and were directed to be listed on 10
December 2008 “for continuation of arguments”;
(vi) On 10 December 2008, the following order was passed :
"Since the respondents have not appeared
inspite of service of notice, Mr Sushil
Karanjakar, learned counsel, who is
appearing in the connected appeals is
appointed as AmicusCuriae to assist in
this case to represent the respondents
because he is ascertained with the facts
of the case.
Mr. Sushil Karanjakar, learned counsel
resumed arguments at 11.20AM and concluded
at 2.45PM. Thereafter, Mr. Ravindra
Keshavrao Adsure, learned counsel started
his arguments and addressed the Court till
3.20PM.
Hearing concluded. Judgment reserved".
(vii) The appeals filed by Accused Nos. 1, 2 and 4 were
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dismissed. The appeals filed by the State were allowed. The
sentence of death was imposed on Accused Nos. 3, 5 and 6;
(viii)The three accused – Accused Nos. 3, 5 and 6 were not
represented by Counsel;
(ix)The Court appointed Amicus Curiae on 10 December 2008. Counsel
was heard on the same day and judgment was reserved; and
(x) Eventually, by the judgment of this Court, Accused Nos. 3, 5
and 6 were sentenced to death and the appeals of the State of
Maharashtra were allowed. The appeals filed by Accused Nos. 1, 2
and 4 were dismissed.
9 From the above narration of facts, it is evident that Accused
Nos. 3, 5 and 6 had no opportunity to be heard by the Bench, before
the appeals filed by the State of Maharashtra for enhancement of
sentence were decided. They have been deprived of an opportunity of
engaging counsel and of urging such submissions as they may have
been advised to urge in defence to the appeals filed by the State
for enhancement.
10 In the circumstances, we are clearly of the view that the
judgment and order of this Court dated 30 April 2009 awarding the
death sentence to Accused Nos. 3, 5 and 6 must be recalled. We
order accordingly.
11 We are then left with the issue of Accused Nos. 1, 2 and 4.
The judgment of this Court dated 30 April 2009 dismissed their
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appeals, while confirming the sentence of death imposed by the High
Court. In view of our conclusion that the judgment imposing the
sentence of death on Accused Nos. 3, 5 and 6 must be recalled, both
fairness and propriety require that the judgment should similarly
be recalled as regards Accused Nos. 1, 2 and 4. In coming to this
conclusion, we take note of the fact that the judgment of this
Court dated 30 April 2009 records that :
“these appeals are interlinked and are
disposed of by this common judgment”
(Emphasis supplied)
The evidence is common and the offences relate to the same
incident. Hence, it is both appropriate and proper that the
judgment dated 30 April 2009 should be recalled in its entirety, in
relation to all the six accused.
12 We accordingly order and direct that :
(i) The orders passed by this Court dismissing the Review
Petitions are recalled. The Review Petitions are, in
consequence, allowed;
(ii) The judgment dated 30 April 2009 in Criminal Appeal Nos. 1008
09 of 2007 and Criminal Appeal Nos. 881882 of 2009 is
recalled. The criminal appeals are restored to the file of
this Court and shall be placed before the appropriate Bench
for hearing afresh;
(iii) Permission is granted to Accused Nos. 3, 5 and 6 to file
appeals against the judgment of the High Court convicting
them, if so advised; and
(iv) Execution of the sentence of death imposed by the High Court
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on Accused Nos. 1, 2 and 4 shall stand suspended pending the
disposal of the appeals.
(v) The Registry shall call for the records, if not already
called.
(vi) Crl.MP Nos 70087009/2016 are disposed of accordingly.
...............................J
[KURIAN JOSEPH]
.................................J
[A M KHANWILKAR]
.................................J
[Dr DHANANJAYA Y CHANDRACHUD]
New Delhi;
October 31, 2018.
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ITEM NO.101 COURT NO.3 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
R.P.(Crl.) No. 18-19/2011 In Crl.A. No. 881-882/2009
(Arising out of impugned final judgment and order dated 30-04-2009
in Crl.A. No. No. 882/2009 30-04-2009 in Crl.A. No. No. 881/2009
passed by the Supreme Court Of India)
AMBADAS LAXMAN SHINDE & ORS. Petitioner(s)
VERSUS
THE STATE OF MAHARASHTRA Respondent(s)
(TO GO BEFORE THREE HONBLE JUDGES [ DEATH CASE ])
WITH
R.P.(Crl.) No. 34-35/2010 In Crl.A. No. 1008-1009/2007 (II-A)
(FOR [Re-opening of the Review Petition] ON IA 7008-7009/2016)
Date : 31-10-2018 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE A.M. KHANWILKAR
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
For Petitioner(s) Mr. T. Harish Kumar, AOR
Mr. Rahul Kaushik, AOR
Mrs. Geetha Kovilan, AOR
For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar, AOR
Ms. Suverna, Adv.
Mr. Anoop Kandraj, Adv.
Ms. Deepa Kulkarni, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The orders passed by this Court dismissing the Review Petitions are recalled. The Review Petitions are, in consequence, 9 allowed;
i) The judgment dated 30 April 2009 in Criminal Appeal Nos. 100809 of 2007 and Criminal Appeal Nos. 881882 of 2009 is recalled. The criminal appeals are restored to the file of this Court and shall be placed before the appropriate Bench for hearing afresh;
ii) Permission is granted to Accused Nos. 3, 5 and 6 to file appeals against the judgment of the High Court convicting them, if so advised; and
iii) Execution of the sentence of death imposed by the High Court on Accused Nos. 1, 2 and 4 shall stand suspended pending the disposal of the appeals.
iv) The Registry shall call for the records, if not already called.
v) Crl.MP Nos 70087009/2016 are disposed of accordingly.
(SHASHI SAREEN) (RENU DIWAN) AR CUM PS ASSISTANT REGISTRAR
(Signed reportable order is placed on the file)