1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1027 OF 2003 1. Mahesh @ Moha Dattaraya Bagal, ] Age: 29 years,Occupation: Hamal, R/o. Bhosare, ] Taluka Madha, District Solapur ] 2. Maruti @ Pintu Dattatraya Harihar, ] Age: 22 years, Occupation: Hamal, R/o. Warkute, ] Taluka: Karmala, District: Solapur ] 3. Vishnu Ramchandra Adlinge, ] Age; 20 years, Occupation: Education, ] R/o. Kurduwadi, Taluka: Madha, ] District:Solapur ] ...Appellants Versus The State of Maharashtra, ] through Police Inspector, ] Police Station “Pandharpur Taluka”, ] District: Solapur ] (Copy to be served on Public Prosecutor of ] High Court of Judicature at Bombay) ] ...Respondent. WITH CRIMINAL APPEAL NO. 875 OF 2003 Ranjeet @ Ranjya Vishwanath Deshmukh, ] age 19 years, Occ. Hamal, Occu. Agriculturist, ] R/o. Bhose, Tal. Madha, Dist. Solapur. ] At present in Yeroda Central Prison, Yeroda, Pune ] ...Appellant Versus 2 The State of Maharashtra ] ...Respondent WITH CRIMINAL APPEAL NO. 910 OF 2003 Subhash Shrimant Dhayagude, ] Age 21 years, Indian inhabitant, residing ] at Kurduwadi, Taluka Madha, District: Solapur ] (Presently lodged at Kalamb Jail, ] District Kolhapur) ] ...Appellant Versus The State of Maharashtra ] through P.I., P.S. Pandharpur Taluka, ] District: Solapur ] ...Respondent. Mr. G.R. Agarwal for Appellant No. 2 in Criminal Appeal No.1027 of 2003 Mr. Shirish Gupte, Senior Advocate, with Mr. S.S Jadhavar for Appellants No. 1 and 3 in Criminal Appeal No. 1027 of 2003 Mr. Shirish Gupte, Senior Advocate, with Mr. S.V. Kotwal for the Appellant in Criminal Appeal No. 875 of 2003 Mr. D.G. Khamkar for the Appellant in Criminal Appeal No. 910 of 2003 Mr. K.V. Saste, Additional Public Prosecutor, for the State in all appeals. CORAM: B ILAL NAZKI and A.R. JOSHI , JJ. DATE OF RESERVING: 18-3-2009 DATE OF PRONOUNCING: 18-9-2009 3 JUDGMENT (Per Bilal Nazki, J.):- On 6th June, 2000, a truck bearing Registration No. MH-23-1061 left Parali-Vaijinath, District Beed, for Pandharpur in Solapur District for fetching sugar. On reaching Pandharpur, the driver of the truck, viz., one Suresh Chate, contacted one Narayandas Harilal Marda, a commission agent in sugar, handed over to him a draft for Rs.2,72,620/-, which was the price for 200 bags of sugar. He loaded 100 bags of sugar in the truck from Vitthal Co-operative Sugar Factory, and started back to Parali-Vaijinath in the evening of the same day, i.e., 6th June, 2000. The truck was likely to reach its destination by the next day, but it did not reach. The truck had been sent by one Ashok Pannalal Jain, who had purchased the sugar, and had sent the truck for transporting the sugar. As he did not receive the truck, he started making enquiries. He contacted commission agent Narayandas Marda on telephone, and was informed by him that the truck had left Pandharpur on 6th June, 2000 at about 3.15 p.m. with 100 bags of sugar. 4 2. On 8th June, 2000, Ashok Jain started in a car, and searched for the truck through the route from Pandharpur onwards. He could not find the truck. He made enquiries from dhaba, where trucks used to stop on the way, and came to know that the truck had stopped for the night at Mahisgaon, and had left early in the morning. Ashok Jain then contacted Narayandas Marda, and told him to report the matter to the police. On 9th June, 2000, a report was lodged at Police Station Pandharpur by him, being Crime No. 0099 of 2000 under Section 407 of the Indian Penal Code, and investigation got started. The police started search for the driver and cleaner of the truck, and Police Sub Inspector (P.S.I.) visited many places, and came to know, through informants, that the sugar bags were being sold in Wangarwadi in District Solapur. He went to the place, and seized 12 bags of sugar on 24th June, 2000 from two to three persons. On 25th June, 2000, he also seized 8 more sugar bags. On 30th June, 2000, he arrested one Uttam Jarichand Tupe on suspicion. On interrogation, said Tupe gave certain names of persons, who had committed the offence, and on 5th August, 2000, P.S.I. arrested accused Ranjeet Deshmukh, Pintu Harihar, Subhash Dhayagude, Vishnu Adlinge and Maruti Lobhe. On enquiries from them, 5 P.S.I. had learnt that they had sold sugar in the villages of Cinchgaon, Kurduwadi, Shirala, etc. Thereafter, bags of sugar were seized from various persons. P.S.I. came to know that murder of the driver and cleaner of the aforesaid truck had been committed. 3. Thereafter, the investigation was taken up by A.P.I. Ravindra Rasal. On 7th August, 2000, A.P.I. recorded statements of Vijay Bharat Kashid, Deepak Deokate and Subhash Shinde. He went to the house of Maruti Lobhe, and seized the jeep bearing Registration No. MH-12- W-9637. He also arrested Santosh Ashok Shinde, and made seizures. On 8th August, 2000, he arrested another accused Mahesh Bagal at Mangalwedha. Thereafter, statements of some witnesses were recorded, and bags containing sugar were seized from Suresh Mahadev Phadatare, Tanaji Maruti Mali and others. According to the prosecution, accused Mahesh Bagal made statement which led to the disclosure of knives used in the offence. Similarly, at the disclosure made by Santosh Ashok Shinde, 5 bags of sugar were recovered from his house. Ranjeet Deshmukh made disclosure with respect to R.C. Book and other R.T.O. papers of the truck. Certain inquiry reports from other police stations were sent for. 6 4. Another accused made a disclosure statement, which led to the discovery of ropes. Statements of certain witnesses were recorded on 16th August, 2000. Five bags of sugar were seized from Sheetal Ratanchand Shah. On 19th August, 2000, Santosh Ashok Shinde was produced before the Chief Judicial Magistrate, Solapur, for getting his statement recorded under Section 306 of the Criminal Procedure Code and to grant him pardon. The Magistrate recorded his statement on 21st August, 2000, and granted him pardon on the same day. In his statement, this witness gave a detailed account of how the offence was committed, and also stated that after the murder of the driver, his dead body was thrown in the bushes of chilari. He also gave account that the driver and cleaner were killed on two different occasions. Subsequent to throwing the body of the driver in the bushes, the cleaner was killed by strangulation, and his dead body was thrown in a nala at a little distance from Velapur. 5. Thereafter, charges were framed under Section 364 read with Sections 34, 396, 201 and 414 read with Section 34 of the Indian Penal Code. After the charges were framed under different sections, the accused pleaded not guilty and claimed to be tried. 7 6. All the 7 accused were convicted for various offences. Accused Nos. 6 and 7 were convicted under Section 414 read with Section 34 of the Indian Penal Code, and they were sentenced to suffer rigorous imprisonment for two years, and they have undergone the sentence, and have not filed any appeal. Criminal Appeal No. 910 of 2003 is filed by accused No. 3, Criminal Appeal No. 875 of 2003 by accused No. 2 and Criminal Appeal No. 1027 of 2003 by accused No. 1, 4 and 5. 7. There are, in all, 60 witnesses examined by the prosecution. Most of them are the witnesses, from whom recoveries of sugar were made, the material witness being P.W. 1, who was the driver and granted pardon. 8. Learned Senior Advocate Mr. Gupte, appearing for some of the accused, submits that statement of the driver, P.W. 1, should not be the basis for conviction of the accused, as there is no corroboration of his statement. He further submits that his statement should not be given importance, in view of the fact that no reasons have been given by 8 the learned Magistrate to pardon. Learned Senior Advocate also submits that the medical opinion is contrary with regard to the mode of death as given by the approver. These contentions will be taken care of after the evidence is discussed. 9. Before coming to the statement of P.W. 1, it will be pertinent to note that the approver was arrested on 7th August, 2000. He made an application on 19th August, 2000, i.e., after 12 days in custody, and his statement was recorded on 21st August, 2000. The order of the Magistrate reads as under:- “Shri R.S. Rasal, API – Pandharpur Taluka Police Station has produced Santosh Ashok Shinde, the accused in Crime No. 99/2000 for the offence punishable under Sections 407, 363, 396, 397, 201, 120-B of the IPC which are triable exclusively by the Court of Sessions. It appears from the report of the police that accused is not a principal accused but he is abettor in the case. The accused was produced before me on 19-8-2000 at about 5-35 p.m. The accused was asked whether he is ready to tender pardon. He has stated that he is voluntarily tendering the pardon. He has given application contending that he is one of the accused in Crime No.99/2000 for the offences 363, 365, 396, 397, 201, 120-B of the IPC. He is in jail. He is willing to get tender of the pardon. He is ready to state full and true disclosure of the whole of the circumstances and facts of the offence within his knowledge. 9 The police has also contended that there is no other direct evidence of the offence. Therefore, it is necessary to tender the pardon of this accused for the above reasons as stated under Section 306(a) of the Cr.P.C. Therefore, application is allowed, and pardon is granted.” 10. It would be profitable to go through the testimony of P.W. 60, Kamal Shivajirao Vadgaonkar, Chief Judicial Magistrate, who recorded the statement, and granted pardon, before the statement of P.W. 1 is discussed. P.W. 60 stated that he was Chief Judicial Magistrate since June, 2000. On 19th August, 2000, he was present in Court, and some policemen approached him with a letter from API Pandharpur. An accused was in their custody. In the letter of A.P.I. Pandharpur, it was mentioned that the accused in custody was ready to make a statement before him. He asked the accused if he was ready and willing to give a statement voluntarily. The accused expressed his readiness and willingness. He also gave an application, in which he stated that he would make a statement before him. The Magistrate passed necessary orders on the application of A.P.I., as well as on the application of accused, Santosh Shinde. He fixed the matter on 21st August, 2000 for recording the statement of Santosh Shinde. He identified his signature 10 on the application. It was marked Exhibits 192 and 193. He issued a letter to the Jail Superintendent, Solapur, for producing accused Santosh Shinde on 21st August, 2000. This also bears his signature, and it was Exhibit 194. 11. Accordingly, on 21st August, 2000, the accused was produced before him. The accused, again, expressed his willingness to make a statement voluntarily. The witness noted down that the accused had expressed his willingness to make the statement. This writing was marked Exhibit 195. Thereafter, he passed an order under Section 306-A of Cr.P.C. It also bears his signature. The contents are correct. It was marked Exhibit 196. Thereafter, he recorded the statement of Santosh Shinde. His statement is recorded in the hand-writing of the Bench Clerk, and bears the signature of the witness. He obtained the signature of the accused at the end of the statement. The statement was read over to the accused. He admitted it to be true and correct. Copy of the statement was given to Santosh Shinde. Statement of Santosh Shinde was marked Exhibit 197. 11 12. In response to cross-examination of counsel for some of the accused, he stated that it was true that at the end of the statement of Santosh Shinde, it was not written that the statement had been read over to Santosh, and he had admitted it to be true; but he denied that the statement of Santosh Shinde was not read over to him. Santosh Shinde was produced before him for the first time on 19th August, 2000. On that day, he had given the application. In his application, he had referred to various sections, including Section 396 of the Indian Penal Code, which was punishable with death. The application of Santosh was marked Exhibit 193-A. Shinde was produced before him at 5.25 p.m. after the working hours of the Court. It was not true that on 19th August, 2000, API Ravindra Rasal from Pandharpur Police station was also present in the Court with the accused. The witness also denied that Ravindra Rasal had brought Shinde to the Court. However, he admitted that in his order, Exhibit 196, there was a reference that API Rasal had produced Santosh Shinde, which was marked portion ‘A’. However, he explained that this reference was made in the order, Exhibit 196, on the basis of the letter of Ravindra Rasal, Exhibit 192-A. He had given time to Santosh for 12 reflection since 19th August, 2000. He had not thought it necessary to give more time to Santosh Shinde for thinking over the matter, though the offence involved was punishable with death. 19th August, 2000 was a Saturday. Next day was a Sunday, and as such, directing the production on 21st August, 2000 would enable the accused to think over the matter. He recorded the statement of Santosh Shinde in his chamber, and not in court-hall. A.P.I. was not present, however his statement was recorded. 13. The witness further stated in his cross-examination that Santosh Shinde had not stated before him that at the Dhaba, Mahesh Bagal had asked Lobhe to stop the trax in front of the truck at some distance from it. He also stated that he had not stated before him that after about 10 to 15 minutes, Mahesh Bagal and Ranjit Deshmukh had returned and told him and Vishnu Adlinge that the driver and cleaner had taken meals and had gone to sleep in the truck. He also stated that Santosh Shinde had not stated before him that he himself and Vishnu Adlinge had woken up all of them. Santosh Shinde had not given the name of Lobhe that he had taken the trax towards Barshi. 13 Following improvements on the statement of P.W. 1 had also been pointed out to this witness:- “It is not in his (Shinde’s) statement that Lobhe had taken the trax towards Barshi. Santosh Shinde had not stated while giving the statement that Pintu Harihar and Vishnu Adlinge had caught the cleaner. He had scuffled for freeing himself. He had also not stated that he was held by pressing him down. Santosh Shinde had not stated before me that Ranjit Deshmukh and Mahesh Bagal had placed the noose around the neck of the cleaner and tightened the rope. Witness points out that it is there in the statement of Santosh Shinde that the cleaner was strangulated to death by means of a rope. Santosh Shine had not stated while giving the statement that on reaching Kurduwadi members of his family had scolded him and told that he may appear before the Court. He had not stated before me that he was arrested while he was sitting at one dhaba at Pandharpur. All these things are therefore not noted down by me in the statement of Santosh Shinde Exh. No. 197.” He denied the suggestion that he had granted pardon to Santosh Shinde on the say of the police. 14. In response to questions from the counsel for some of the other accused, the witness stated that there was a District Prison at Solapur and it was true that the persons in the jail were jail employees and not the policemen. The distance between District Prison, Solapur, 14 and the Court of C.J.M. would be covered within 10 minutes on foot. He did not know if the guards at Sub-Jail, Pandharpur, were policemen. After the evening of 19th August, 2000 and on 20th August, Santosh Shinde was in the Sub-Jail at Pandharpur. Then, he stated: “It is not correct to suggest that Santosh Shinde ought to have been detained in the jail at Solapur since after the evening of 19/8/2000 till he was produced before me on 21/8/2000.” He further stated: “It is not true to say that Santosh Shinde had given the statement before me by remaining under the influence of the police from police station Pandharpur taluka.” 15. Now, coming to P.W.1, Santosh Ashok Shinde, he stated that the incident had taken place one and a half years before. On 5th June, 2000, he had gone to Kolhapur for bringing the truck of Mahesh Bagal, accused No. 1. He, Pintu @ Maruti Harihar – accused No. 4, Mahesh Bagal – accused No. 1, Ranjit Deshmukh – accused No. 2, Subhash Dhaigude – accused No. 3, Vishnu Adlinge – accused No. 5, and the owner of the trax jeep Maruti Lobhe – accused No. 6, had gone to Kolhapur. On reaching Kolhapur, they had halted there for that night. Next day, the owner had not given the truck. On 6th June, 2000 at 15 about 2.00 to 2.30 pm., they started back towards Kurduwadi. In the evening, they had reached Pandharpur. The time was 7.00 to 7.30 p.m. They took their meals at Hotel Rangoli. They consumed liquor before taking the meals. He took beer. The vehicle was filled with diesel for proceeding towards Kurduwadi. They reached up to Tin Rasta square. Mahesh Bagal, accused No.1, asked to stop the trax. Maruti Lobhe, the truck owner, was driving the vehicle at that time. Lobhe stopped the vehicle. Then, Mahesh Bagal stated that he was tense, as the owner had not given the truck, and, therefore, something had to be done for money. Then, Ranjit Deshmukh said that they would make a ‘game’ on some vehicle. By making ‘game’, it was meant that they will loot some vehicle. After about 15 to 20 minutes, a truck had come that way. It was passing towards Barshi. Sugar bags were loaded in that truck. Mahesh Bagal had said that game of this truck would be done. They started chasing the vehicle in the trax. They passed Kurduwadi, and proceeded through Barshi Road, chasing the truck. They chased the truck for a long distance. On crossing Mahisgaon, the truck had 16 stopped at one Dhaba. Mahesh Bagal asked Lobhe to stop the trax in front of the truck at some distance from it. The trax was stopped at some distance ahead of the truck. Mahesh Bagal and Ranjit Deshmukh got down from the trax and went to the dhaba. Mahesh Bagal and Ranjit Deshmukh returned after about 10 to 15 minutes, and told the witness and Vishnu Adlinge that the driver and cleaner had taken the meals and they had gone to sleep in the truck. He told the witness to wake them up when the truck would proceed further. Accused No. 1 gave threats to the witness and Vishnu Adlinge. He and Vishnu remained awake. Others slept in the trax. At 5.00 to 5.30 a.m., the truck moved towards Barshi. He and Vishnu awakened all of them. Then, they followed the truck in the trax. When Village Khandvi was about two kilometres away, the trax was taken in front of the truck and stopped. They got down from the trax and climbed up in the truck. They asked the driver of the truck whether he was going to dash the trax and climbed over that truck. Mahesh Bagal and Ranjit Deshmukh threatened the driver and cleaner of the truck with a knife. The driver was pushed aside from the driving seat, and the cleaner was also pushed aside. Mahesh Bagal asked Subhash Dhaigude to drive the truck. 17 Mahesh Bagal asked to turn around the truck near one school at Village Khandvi. The truck was turned around and started running towards Village Papnas. He was told to drive the truck through Vadshinge Road. On covering some distance, Mahesh Bagal asked Ranjit Deshmukh to take the rope from the top of the truck. Ranjit Deshmukh took the rope, and cut it into two pieces. One of the pieces was about 5 feet, and the other about 2½ feet. The driver and the cleaner started crying, saying they should not be killed. The driver said that he had children, and the accused could take whatever they wanted from him. Vishnu Adlinge and Pinku Harihar held the hands and legs of the driver. Mahesh Bagal and Ranjit Deshmukh tied his hands and legs with the ropes. He was made to lie on the rear seat in the cabin of the truck. He himself was sitting at the cleaner’s side in the cabin. A noose of the rope was made, and it was fixed around the neck of the driver. Mahesh Bagal and Ranjit Deshmukh kept their legs on the neck of the driver, pulled the rope for tightening of the noose and killed the driver. After ensuring that the driver had died, they spread his shawl on his body. The truck was running while the driver was being murdered, and they were reaching Madha. They passed Madha, thereafter Anjangaon, Angar and came on 18 the highway near Mohol. From near Lokseva Hotel, the truck was turned towards Village Kurul. They started proceeding through Ankoli Road, and a tyre of the truck got punctured at Sayyad Warwade Pati. Subhash Dhaigude and Vishnu Adlinge detached the tyre, placed it in one jeep, and proceeded for repair of the puncture. After about two and a half to three hours, they had returned after repairing that tyre. It was again fitted in the place on the truck. The truck was started and taken through Ankoli Road. They had crossed Begumpur, Mangalwedha and had come on Sangola Highway. The truck was asked to be taken through one way on reaching near Village Gheradi. It had proceeded ahead from near Hunurpati. On covering a distance of about 3 to 4 kilometres from Hunurpati, Mahesh Bagal had asked to stop the truck, looking that nobody was there on the road. There was a bush of chilari-babul. The bush was half round from above, and its branches were touching the ground. On stopping of the truck, Mahesh Bagal, Ranjit Deshmukh, Pintu Harihar and Vishnu Adlinge took the dead body of the driver down. He was himself sitting near the cleaner. Subhash Dhaigude was 19 sitting against the steering of the truck. The dead body of the driver was thrown beneath the bush of Chilari-babul. Thereafter, the said four persons again sat in the truck. The truck was started, and they had proceeded towards Jat. They reached Jat in the evening at 5.00 to 5.30 p.m. They got down from the truck for taking meals in a hotel. The cleaner was also taken down from the truck. Mahesh Bagal and Ranjit Deshmukh told the cleaner that he should not get frightened, new cloths would be purchased for him, and he would be sent to his village in S.T. bus on purchasing tickets. They also took some liquor. The cleaner of the truck was also told that he would be given the money after unloading the truck. Mahesh Bagal, Pintu Harihar and Ranjit Deshmukh consumed some liquor and took the meals. The others took the meals without consuming any liquor. There was too much chilli in the curry served to Ranjit Deshmukh. He, therefore, abused the waiter and beat him. On reaching the truck, it was found that the air pressure in the repaired tyre had reduced. Subhash Dhaigude said that the tyre was not properly repaired. The tyre was again detached, and was taken to 20 the shop nearby for repair of puncture. The tyre was again fitted to the truck. They left Jat and reached Nagaj Phata.