-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.46 OF 1994. CRIMINAL APPEAL NO.46 OF 1994. CRIMINAL APPEAL NO.46 OF 1994. Vitthal Jalindhar Kamble, resident of Degaon, Tal : Mohol, District :Solapur .. Appellant (Original Accused) vs. The State of Maharashtra .. Respondent. (Original Complainant) M.A.Choudhari, Advocate for the Appellant. Smt.V.R.Bhosale, P.P. for the State. CORAM : S.S.PARKAR & CORAM : S.S.PARKAR & CORAM : S.S.PARKAR & S.R.SATHE, JJ. S.R.SATHE, JJ. S.R.SATHE, JJ. DATED : 15TH OCTOBER,2004. DATED : 15TH OCTOBER,2004. DATED : 15TH OCTOBER,2004. JUDGMENT (Per S.R.Sathe, J) : JUDGMENT (Per S.R.Sathe, J) : JUDGMENT (Per S.R.Sathe, J) : 1. Appellant, the Original Accused has preferred this appeal against the judgment and order passed by IInd Additional Judge, Solapur in Sessions Case No. 333 of 1992 whereby the accused was convicted for the offence punishable under -2- section 302 of I.P.C. and sentenced to suffer imprisonment for life, and for offence punishable under section 170 of I.P.C. to suffer R.I. for two years. 2. The brief facts giving rise to this appeal are as under : . Deceased Dynaneshwar was a barber. His father Mahadeo was having hair cutting saloon at Patwardhan Kuroli. Accused represented to the deceased and P.W. Shahaji Patil that he is working as a conductor at Shivaji Nagar S.T. Depot, Pune. He told them that he has been transferred to Baramati and taken a room on lease at Indapur. Sometime in the month of July or August, accused told the deceased that he would secure a job for him, but the deceased will have to pay atleast Rs.10,000/- for the same. Accordingly, the father of the deceased obtained some money from different persons and paid amount to the tune of Rs.8000/- or so to the accused. Deceased Dynaneshwar and Shahaji Patil went to the room of the accused on 3.9.1992 and enquired about -3- the employment of the deceased. The accused told them that papers given by the deceased have been handed over in the office and that he would get the result by 15th September and in any case the work will be over by 16th September. However, on 7.9.1992 the accused met Shahaji as well as deceased and told the deceased that he should come to him on 14th at Mohol. Accordingly on 14.9.92 deceased Dynaneshwar went to Mohol. At that time he left a message for his friend Shahaji that he should come there alongwith tiffin and Rs.1000/- at about 10.00 a.m. Accordingly Shahaji Patil went to the room of accused on 14.9.1992. Accused and deceased both were present there. At that time accused told them that deceased would get the employment from 18.09.1992. Shahaji Patil therefore returned to Patwardhan Kuroli, while the deceased remained with the accused. At that time deceased told Shahaji Patil that he should again come with tiffin on 17.9.1992. Accordingly, Shahaji Patil went to Indapur at the house of the accused at about 10.00 p.m. The room was locked. However, witness Shahaji patil was knowing as to how the said room could be opened. He, therefore, -4- opened the door accordingly and slept in the room. At about 1.30 p.m. accused returned to his room. Naturally, Shahaji Patil asked him about the deceased. On that accused told him that deceased has gone to Baramati in the car of Mhaske Saheb and that deceased would join the duty on 18.9.1992. Hence both went to bed. On the next day morning i.e. on 18.9.1992 when Shahaji awoke he found that the accused had already left the room. He therefore went to S.T.Stand. There he met one Dattatraya Jadhav i.e. P.W.13. As he was also knowing accused, Shahaji Patil asked him whether he had seen the accused. On that Dattu Jadhav told him that he had seen him and he was saying that deceased has been sent to Baramati by the accused. By that time the accused went there. When these witnesses made query with him he again told them that the deceased has gone to Baramati for doing duty on Baramati Pandharpur S.T.Bus. Shahaji Patil and Dattu Jadhav therefore went to Baramati. After reaching there at about 12.30 noon they made enquiry in the S.T.Depot as to whether any fresh appointment has been made. When they were told that no fresh appointments have -5- been made, they showed the photograph of the accused in the said office, but the concerned person told them that no such person is working in the S.T.Department. Both of them therefore went to the house of the accused at Indapur. Accused also returned to the said room within short time. Naturally both of them again asked the accused about the whereabouts of deceased Dynaneshwar. At that time also the accused told them that the deceased is doing his duty at Baramati. They also asked to show the appointment order of deceased Dynaneshwar. Both the witnesses again therefore went to Baramati and made query as to whether Dynaneshwar has joined his duty. They came to know that Dynaneshwar has not joined the duty and they also received information that Dynaneshwar is infact not employed in the S.T.Department. Both the witnesses therefore got suspicion about the accused. They insisted the accused that he should show deceased Dynaneshwar to them. On that accused said that Dynaneshwar has gone to complete some work. At that time P.W.Shahaji Patil held the neck of accused and he noticed that there were blood stains on the banian of accused and some -6- scratches on his hand. Naturally, both of them made query with accused about the same. Accused told them that when he had been to Tembhurni he had a scuffle with one person. They also told accused that now they would not allow him to leave the place unless he would show Dynaneshwar to them. The said two witnesses therefore decided to take accused to their place and for that purpose all the three boarded Baramati Tuljapur S.T. bus which was to go via Valchandnagar. The accused was sitting in the driver’s cabin in the S.T.Bus, while these two witnesses were sitting in the rear portion of the bus. When the bus reached near the junction the accused got down from the driver’s door and ran away. Both the witnesses also got down and tried to search the accused, but they could not get the accused. They, therefore, went to the room of the accused. They found that the room was open. When they made query with the neighbours, they told them that the accused came from the backside and took away his luggage. They therefore again searched for the accused and they came to know that the accused is a resident of Village Degaon. They therefore went to Degaon and -7- made query about the accused with four to five persons who were passing by the road. Theytold them that the accused is a conductor and is resident of Degaon. Shahaji Patil and Jadhav told them that their friend is missing since last few days. The persons who had met them informed them that two to three days back one dead body was found in their village by the side of the road and it has been taken away by the police. Both the witnesses therefore went to the police station and then they identified the dead body as that of Dyaneshwar. In the meantime, on receipt of information about the dead body A.D.no 36/92 was registered by police. When police received the advance certificate, ASI Sitaram Yadav from Vairag Police Station filed complaint on behalf of the State for the offence punishable under section 302 of I.P.C. and accordingly crime was registered at number 97/92. The police then recorded the statements of the witnesses and collected the post mortem notes. They arrested the accused on 20.9.1992 and attached the clothes which were on his person. During the period when the accused was in the police custody he made a statement -8- before the police that he would produce the weapon thrown by him near the place of offence. Accordingly, the police called the panchas, drew the memorandum and then the accused led the police and panchas near the place of offence and from there they went to one field and accused produced one knife taking it away from the buses. The police attached the same under panchanama. All attached articles were sent to C.A. After completion of investigation, police submitted chargesheet against the accused for the offences punishable under section 170 and 302 of I.P.C. in the Court of Chief Judicial Magistrate, Barsi. 3. Finding that the accused is chargesheeted for the offence which is exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the case to Sessions Court, Solapur. The IInd Additional Sessions Judge, Solapur framed charge, exhibit 3 against the accused for the offences mentioned above. The charge was read over and explained to the accused. He pleaded not guilty and claimed to be tried. -9- 4. In order to bring home the guilt of the accused, prosecution examined as many as 20 witnesses, consisting of four panch witnesses namely P.W.1 Kashinath Langote-exhibit 19, P.W.2 Kishore Sonawane-exhibit 21, P.W.3 Adinath Ahire-exhibit 23, P.W.4 Vilas Sherkhane-exhibit 26. Besides, prosecution also examined P.W.5 ASI Sitaram Yadav-exhibit 28, P.W.6 Prabhakar Thombare-exhibit 30, P.W.7 Ramchandra Bhandage, owner of the cycle shop Bhandage Cycle Mart-exhibit 31, P.W.8 Bhima Atkare-exhibit 32, P.W.9. Nanasaheb Bhange-exhibit 33 from whom father of the deceased had obtained Rs.2000/- for giving to accused, P.W.10 Bhaskar Gurav-exhibit 34, P.W.11 Shahaji Patil -exhibit 35 who had seen accused and deceased together till 15.9.1992, P.W.12 Haridas Patil who had given Rs.5000/- to the father of the deceased for giving to the accused -exhibit 39, P.W.13 Datatraya Jadhav-exhibit 40 who had accompanied witness Shahaji Patil when they were searching for the deceased, P.W.14 Pandit Tawate-exhibit 41, P.W.15 Vilas Salunkhe, owner of Anant Cycle Mart-exhibit 42, P.W.16 Police Constable Namdeo Katakdound -10- exhibit 43 who carried the attached articles to C.A., P.W.17 Rajkumar Tavate-exhibit 46, P.W.18 Gurunath Kapse-exhibit 47 in whose presence police attached one shirt from the field, P.W.19 API Bharatkumar Rane-exhibit 48 who initially investigated the case and P.W.20 API Eknath Sakore-exhibit 50 who completed the investigation and submitted the chargesheet in the Court of J.M.F.C.Barsi. The prosecution also produced panchanama of place of offence exhibit 9, inquest panchanama exhibit 10, panchanama of attachment of clothes and articles exhibit 11, panchanama of house search of accused exhibit 12, post mortem notes exhibit 13, C.A. report exhibit 18, panchamama of the leather bag attached from the room of the accused exhibit 20, panchanama under which cycle register was attached exhibit 22, panchamama of banian of the accused exhibit 25, memorandum drawn by the police regarding statement made by the accused exhibit 27, complaint exhibit 29. From the suggestions put to the prosecution witnesses and from the statement of the accused recorded under section 313 of Cr.P.C. it appears that the defence of the accused was of total -11- denial. According to him he has been falsely implicated in the case due to political pressure. The accused did not adduce any evidence. After considering the evidence adduced by the prosecution, the trial court came to the conclusion that the accused has committed offences punishable under section 170 and 302 of I.P.C. Accused was therefore convicted and sentenced as mentioned above. 5. Being aggrieved by the said order of conviction and sentence the accused has preferred this appeal. In this appeal before us, Shri Choudhary, learned Advocate for the accused has urged only two points. Firstly, he submitted that there is no eye witness to the incident. The case rests on circumstantial evidence. The prosecution has not adduced cogent and convincing evidence to establish each and every circumstance so as to connect the complete chain and as such the lower court has erred in accepting the prosecution evidence and holding that the charges levelled against the accused are proved. He also canvassed before us that the evidence with regard to "last -12- seen" together is also not cogent and there is no witness who has said that the accused and deceased were seen together on the day of the incident. He, therefore, submitted that the appeal be allowed and the accused be acquitted. As against this, the learned APP Smt. Bhosale supported the judgment and order passed by the trial court. 6. It is the prosecution case that the accused was representing to others that he was serving as a S.T. Bus conductor at Shivaji Nagar S.T.Depot. He used to move in S.T.Bus conductor’s uniform. Not only that, but the accused told the deceased and some other persons that he would give them employment as bus conductor in the S.T.Department and on that ground he collected money from those persons. The prosecution has therefore filed chargesheet against the accused for the offence punishable under section 170 of I.P.C. The said section runs as follows : Personating a Public Servant : Personating a Public Servant : Personating a Public Servant : " Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, in such assumed character does or attempts to do any act under colour of such office, shall -13- be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 7. In order to prove the charge under section 170 the prosecution has mainly relied on the evidence of witness Bhaskar Gurav exhibit 34, P.W.11 Shahaji Patil exhibit 35, P.W.13 Dattatraya Jadhav exhibit 40, P.W.15 Vilas Salunkhe exhibit 42 as well as P.W.6 Prabhakar Thombare exhibit 30. P.W.11 Shahaji Patil exhibit 35 has stated in his deposition that deceased and accused had been to his shop about two and half months prior to the incident and at that time accused himself had told him that he was serving as a bus conductor at Shivaji Nagar S.T.Depot. Not only that but deceased had told him that accused promised to give employment to the deceased as a bus conductor in the S.T.Department and for that purpose the deceased has given money to the accused. Not only that but even the accused had also admitted that he had received such money from the deceased and as such he would be giving employment to deceased. The said witness has also stated that time and again accused was informing to this witness the progress in securing the employment. The said -14- witness has also stated that he had seen the accused in S.T.Bus conductor’s uniform. He was even putting the badge of the S.T.Department. The evidence of this witness is not at all shaken or material contradictions and omissions in his material contradictions and omissions in his evidence. There is also nothing on record to indicate that the said witness was having any special interest in the deceased and animus against the accused. So the evidence of this witness is rightly accepted by the trial court. 8. The prosecution witness no.13 Dattatraya Jadhav exhibit 40 has also stated that one and half months prior to the incident accused had met him in the canteen. At that time he was in S.T.Bus conductors uniform. He told them that he got the job about 9 months back and that he may help the said witness if he had intention to seek employment as bus conductor. He has also stated that he has paid in all about Rs.7,700/- to the accused and the accused had told him that it would be necessary to spend about Rs.10,000/- for securing job in the S.T.Department. It has also -15- come on record that through the intervention of this witness the accused infact took the room on rental basis at Indapur, as accused was transferred to Baramati. Similarly prosecution witness Rajkumar Tavate, exhibit 46 has also stated that on 1.9.1992 he had been to the hair cutting saloon of the deceased and at that time the accused was present there. He was in bus conductor’s uniform. Accused told him that if he would give Rs.10,000/- he would secure job for him. As the said witness was not in a position to pay the said amount he expressed his inability, on that the accused told the said witness that he may pay the said amount by instalments and first he should pay Rs.2000/- and obtain the badge. The said witness therefore paid Rs.2000/- to the accused and accused handed over to him one badge bearing no.65593. However, on badge. The prosecution has also examined witness badge. The prosecution has also examined witness Haridas Patil exhibit 39, who has stated that he had given amount of Rs.5000/- to the father of the deceased as deceased wanted to secure employment as conductor as in S.T.Department. P.W.6 Prabhakar -16- Thombre exhibit 30 has also sated that the accused had come to him alongwith Dattu Jadhav and the accused took the room on rental basis from him. At that time accused had told him that he was serving in the S.t.department as conductor. The rent was fixed at Rs.200/- per month. Accused paid the said rent, but did not obtain any receipt in his name. The evidence of all these witnesses is not at all shaken or shattered in the cross examination. It is not even suggested to these P.W’s that they are having any dispute with the accused and as a result of the same they are deposing falsely against the accused. The learned advocate for the accused argued before us that in the instant case prosecution has not produced any documentary evidence to show that the accused had actually taken money from the deceased or from any other person by giving assurance that he would secure the job for them. It is true that the prosecution has not produced such documentary evidence, but we cannot ignore the fact that in such type of transactions which are infact illegal, no one can expect to prepare any document or receipt. As all these prosecution witnesses -17- had seen the accused in conductor’s uniform with badge, they believed the words of the accused and carried the impression that the accused was serving as S.T.Conductor. These witnesses have not specifically stated as to what was the badge number of the accused. But that would not make any difference, particularly when we find that all these witnesses have categorically stated that they have seen the accused moving in S.T. Conductors uniform with S.T.Badge and all along he was representing to everyone that he was serving in the S.T.Department. The prosecution witness Shahaji patil exhibit 35 and Dattu Jadhav exhibit 40 have clearly stated that they had collected one photo of the accused from his room and showed the same to the Oficer in control room of S.T.Bus depot, Baramati as well as Indapur and at both places they were informed that the accused was not in the employment of the S.T.Department. Merely because the police did not record the statement of the concerned persons from the control room we can’t jump to the conclusion that the evidence of Shahaji Patil and Dattatraya Jadhav in this behalf is not true and correct. It is not even the case -18- of the accused that he was actually serving in the S.T.Department at any time. So, from all this evidence it is crystal clear that the accused was moving in S.T.Conductor’s uniform and was pretending himself to be a bus conductor and had given false assurance to different persons including deceased that he would give them employment in the S.T.Department and on that ground had taken money from them but actually did not give any employment to them and thus he clearly cheated them. 9. The question arises, whether in view of this evidence it can be said that the accused has committed the offence punishable under section 170 of I.P.C. From perusal of section 170 it is very clear that for application of the said section it must be shown that the accused assuming the character of public servant and pretending himself to be a bus conductor, did or admitted to do something under colour of such office. In the instant case, it must be noted that though the accused was all along moving in conductor’s uniform and pretending himself to be a conductor, -19- he has not actually done any act which normally a bus conductor is supposed to do. It means he has not collected any money by issuing tickets to passengers or has not done any other act which is the usual duty or act of a conductor. So, it appears that the offence committed by the accused infact does not fall under section 170 of I.P.C. but it falls under section 171 of I.P.C. The said section runs as follows : public servant with fraudulent intent public servant with fraudulent intent public servant with fraudulent intent :- Whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling and garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both. This offence is obviously of less gravity then the offence under section 171 of I.P.C. but of similar nature. So it is necessary to hold that the prosecution has proved the offence punishable under section 171 and not under section 170 of I.P.C. Infact it appears that the accused has -20- cheated the deceased and others and has thereby committed an offence punishable under section 420 of I.P.C. However, it seems that no charge was framed against the accused for the said offence under section 420 I.P.C. 9. The prosecution story with regard to above mentioned charge under section 170 assumes more importance in connection with the main offence i.e. of murder. It appears from the prosecution case that the accused and the deceased had come in contact with each other only because the accused gave assurance to deceased for securing employment for him in S.T.Department. The prosecution has established that the accused had given false promises to the deceased for securing the employment and on that ground had also taken substantial amount from the deceased. However, the accused was not able to secure the employment for him. When Shahaji Patil and Dattu Jadhav realised that accused has cheated the deceased and accused was likely to be exposed by them the accused must have decided to finish deceased. Thus there was motive for the alleged crime. -21- 10. It is not in dspute that on 18.9.1992 police had received information that dead body of one person is lying by the side of the road i.e. at Vairag Mohol road and accordingly initially A.D. was registered and then police went to the said place, drew the inquest panchanama and sent the dead body for post mortem. The prosecution has produced at exhibit 13 the post mortem report. The said report is infact not disputed by the defence. From the perusal of the same it appears that the dead body was received in the hospital at Vairag on 18.9.1992 at about 5 p.m. and thereafter post mortem was carried out by Dr.M.K.Patil and at that time he found following injuries : 1. Incised wound- near right frontal eminence of scalp 7cm x 2cm x 1 cm 2. Incised wound- Near left temporal eminence of scalp 9cm x 2cm x 1cm 3. Incised wound-near right mastoid process 9cm x -22- 2