IMPORTANT POINT
Balance of aggravating and mitigating circumstances decide the sentence of death penalty or life imprisonment.

JUDGMENT

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 obta