Full Judgment Text
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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
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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 : 1832009
DATE OF PRONOUNCING: 1892009
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JUDGMENT (Per Bilal Nazki, J.):
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On 6 June, 2000, a truck bearing Registration No.
MH231061 left ParaliVaijinath, 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 Cooperative Sugar Factory,
and started back to ParaliVaijinath in the evening of the same day, i.e.,
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6 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
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Pandharpur on 6 June, 2000 at about 3.15 p.m. with 100 bags of
sugar.
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2. On 8 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
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police. On 9 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
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from two to three persons. On 25 June, 2000, he also seized 8 more
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sugar bags. On 30 June, 2000, he arrested one Uttam Jarichand Tupe
on suspicion. On interrogation, said Tupe gave certain names of
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persons, who had committed the offence, and on 5 August, 2000,
P.S.I. arrested accused Ranjeet Deshmukh, Pintu Harihar, Subhash
Dhayagude, Vishnu Adlinge and Maruti Lobhe. On enquiries from them,
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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
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Rasal. On 7 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. MH12
W9637. He also arrested Santosh Ashok Shinde, and made seizures.
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On 8 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.
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4. Another accused made a disclosure statement, which led to
the discovery of ropes. Statements of certain witnesses were recorded
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on 16 August, 2000. Five bags of sugar were seized from Sheetal
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Ratanchand Shah. On 19 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
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and to grant him pardon. The Magistrate recorded his statement on 21
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.
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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
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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
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to note that the approver was arrested on 7 August, 2000. He made an
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application on 19 August, 2000, i.e., after 12 days in custody, and his
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statement was recorded on 21 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, 120B 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
1982000 at about 535 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,
120B 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.
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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
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June, 2000. On 19 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
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accused, Santosh Shinde. He fixed the matter on 21 August, 2000 for
recording the statement of Santosh Shinde. He identified his signature
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on the application. It was marked Exhibits 192 and 193. He issued a
letter to the Jail Superintendent, Solapur, for producing accused
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Santosh Shinde on 21 August, 2000. This also bears his signature, and
it was Exhibit 194.
st
11. Accordingly, on 21 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
306A 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 handwriting 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.
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12. In response to crossexamination 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.
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Santosh Shinde was produced before him for the first time on 19
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 193A. Shinde was
produced before him at 5.25 p.m. after the working hours of the Court.
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It was not true that on 19 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 192A. He had given time to Santosh for
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reflection since 19 August, 2000. He had not thought it necessary to
give more time to Santosh Shinde for thinking over the matter, though
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the offence involved was punishable with death. 19 August, 2000 was
a Saturday. Next day was a Sunday, and as such, directing the
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production on 21 August, 2000 would enable the accused to think over
the matter. He recorded the statement of Santosh Shinde in his
chamber, and not in courthall. A.P.I. was not present, however his
statement was recorded.
13. The witness further stated in his crossexamination 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.
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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,
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and the Court of C.J.M. would be covered within 10 minutes on foot.
He did not know if the guards at SubJail, Pandharpur, were policemen.
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After the evening of 19 August, 2000 and on 20 August, Santosh
Shinde was in the SubJail 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
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the incident had taken place one and a half years before. On 5 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.
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Next day, the owner had not given the truck. On 6 June, 2000 at
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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
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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.
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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
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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 chilaribabul .
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
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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
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the shop nearby for repair of puncture. The tyre was again fitted to the
truck. They left Jat and reached Nagaj Phata . They reached near
Village Hatid. One petrol pump is there, where they filled the tank of
the truck. Then, they reached Sangola and then Mahud. Mahesh asked
Ranjit Deshmukh to close the door of the truck, as he was feeling cold.
The door of the truck was shut. Pintu Harihar and Vishnu Adlinge
caught the cleaner. He scuffled for freeing himself. He was held by
pressing him down. Ranjit Deshmukh and Mahesh Bagal placed the
noose around the cleaner’s neck and tightened the rope. Blood oozed
from his mouth, and he died. The truck was stopped near a nala near
Village Velapur. The dead body of the cleaner was thrown from the
truck. It fell on the ground, and the head of the dead body struck the
ground. The dead body fell on the road. Mahesh Bagal got down from
the truck, and pushed aside the dead body in the nalla stream.
He came back, and got in the truck. They passed Village Velapur.
On covering a distance of about one and a half kilometre, Mahesh asked
Subhash to stop the truck for passing urine. Mahesh Bagal got down
from the truck with the pieces of rope. When he returned, he was not
having those pieces of the rope. He again occupied the truck.
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The truck proceeded towards Akluj. From Akluj, they came to
Tembhurni. When they reached Tembhurni, it was about 12 midnight.
In Hotel Satkar, they all had meals. They came to Kurduwadi in that
truck. From there, they went to Bhogewadi, where the maternal uncle
of Mahesh Bagal resides. He told his uncle that he obtained the tender
for sugar, and needed accommodation for keeping the sugar. The uncle
of Mahesh Bagal told him that there was no room for storing the sugar
bags.
They proceeded towards Karmala. They reached Village
Khambewadi, where the husband of his cousin aunt Shelke resides.
He and Pintu told Shelke to allow them to keep the sugar bags there for
the night, as something went wrong with the truck. It might rain.
Therefore, they wanted to store the sugar. He was requested to keep
the sugar for the night, as the truck was to be used for carrying Varat of
marriage. The sugar bags from the truck were unloaded and kept in the
cattleshed of Shelke. They lifted the bags from the truck, and Mahesh
Bagal and Ranjit Deshmukh carried them to the cattleshed.
Unloading of the truck was over.
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Mahesh Bagal and Pintu Harihar took the truck from there.
Rest of the accused slept at the house of Shelke. Mahesh Bagal and
Pintu Harihar returned at about 10.00 a.m. They told him that they left
the truck near one dhaba near Mirajgaon. In the noon, he told them
that there was pain in his abdomen, and he would go to some
dispensary. He went to Kurduwadi. Mahesh Bagal and Vishnu Adlinge
also went to Kurduwadi. They obtained the tempo of one Sutar,
collected Hamals from Nehrunagar and went back towards
Khambewadi. Vishnu Adlinge went with the tempo, and Mahesh Bagal
was searching him. He met him at one pan shop near the dairy at
Kurduwadi. Mahesh Bagal called Maruti Lobhe. They proceeded to
Khambewadi in the trax of Maruti Lobhe. Vishnu Adlinge and others
loaded the tempo with the sugar bags with the help of those Hamals.
Ranjit Deshmukh and Pintu Harihar sat in the cabin of the tempo with
the hamals. The witness, Mahesh Bagal, Vishnu Adlinge and Subhash
Dhaigude got in the trax of Maruti Lobhe. From Khambewadi, they
went to Kurduwadi. The tempo was stopped near the railway colony.
Four to five bags containing sugar were loaded in the trax. Those bags
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were taken to Deepak Devkate. They then returned to the place where
the tempo was parked. Three to four bags were again put into the trax
and were taken to the grocery shop of Kashid. The witness, Pintu
Harihar and Maruti Lobhe went in Kurduwadi locality. Mahesh Bagal,
Ranjit Deshmukh, Vishnu Adlinge and Subhash Dhaigude proceeded in
the tempo to Village Wangarwadi. They then returned to their houses.
After two to three days, the witness met Mahesh Bagal.
Mahesh told him that everything was well. Sugar had reached to one
Shah at Madha. Mahesh asked him not to tell as to what happened to
the driver and the cleaner, and threatened him. In the evening of that
day, Mahesh came to his house in the trax of Maruti Lobhe, wherein five
bags of sugar were there. He told him that this sugar was being brought
for giving to one customer. The customer told him that he was not
having money. He, therefore, asked him to keep the sugarbags for two
to three days. He asked the mother of the witness that he allowed to
keep the sugar in their house, and thereafter, he kept 5 bags of sugar in
his house. Mahesh Bagal left the place. Next day early in the morning,
the witness left for Pune. At Pune, the witness stayed with his aunt for a
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couple of days. Mahesh Bagal came there when he was not there.
On his return, his aunt told him that Mahesh Bagal had come.
From Pune, he went to Mumbai, where his cousin sister lives.
He stayed with his cousin for two months. He came to know that the
matter had been detected, and the police had arrested all the persons.
He came to know about it through a phone call made to him by a friend
from Kurduwadi. He returned to Kurduwadi. Members of his family
asked him to appear before the police. He went to Pandharpur, and was
sitting at one Dhaba . Police came and arrested him. He told the
policemen the incidents as they happened. He decided to be an
accomplice. He gave an application before the police, and thereafter,
gave one statement also. Mahesh Bagal, Ranjit Deshmukh, Subhash
Dhaigude, Maruti @ Pintu Harihar, Maruti Lobhe, Vishnu Adlinge and
Uttam Tupe were sitting in the courthall on the bench of the accused.
16. On crossexamination by counsel for some of the accused, the
witness gave his family background, and stated that he had studied
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up to 8 class, and after leaving the education, he started looking after
the shebuffalo and selling the milk etc. He used to go to Sangola, Akluj
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and Tembhurni. He had never visited Jat before these incidents.
He was arrested by Police Inspector Rasal of Pandharpur Taluka
Police Station. He did not know Sainath Abhangrao. He had read his
name in newspaper and had seen his photograph in newspaper. He
was from Pandharpur. He had not told the police that Sainath
Abhangrao was his friend. He did not know that police had informed
Sainath Abhangrao that he was arrested. One case under Section 324 of
the Indian Penal Code was pending against him in the Court at Madha.
He did not know what were the offences of Sections 366, 364, etc., of
the Cr.P.C.
th
17. The witness was in jail from 19 April, 2001. He was not
granted bail. He was in jail with other accused at Pandharpur since the
th
time of his arrest till he was shifted to Solapur Jail with effect from 19
April, 2001. It was true that other accused were taken to Solapur,
Sangola, Vita and such other places, and it was alleged that they had
committed so many other offences, but it was not true that he had
developed an apprehension in his mind that such accusation would be
made against him also. He denied that he had suffered some mental
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26
pain after his arrest. He denied that the pain had increased gradually.
He denied that he had been taken to the Civil Hospital, Solapur, from
the jail for treatment regularly; but he stated that he was taken once a
month to the hospital. He was taken to the Civil Hospital, Solapur, for
treatment 7 to 8 times; but it was not true to say that the doctors were
of the opinion that his mental faculty would be affected. It was true
that he was feeling that the trial of the case be started at an early date.
It was not true that police had brought pressure on him to state before
Court that trial of the case be started soon. It was true that he had
given an application, saying that the trial be started earlier.
nd
The application dated 2 June, 2001 was the application, and the
application bears his signature. This application was marked Exhibit
No.16. Then he stated: “The mention in the application that my mental
disease is increasing, I am required to be taken to Civil Hospital every after
7 days and the doctors had expressed possibility of affecting my mental
faculty marked as ‘A’ is incorrect. The mention in the application that I
was having this suffering since last 10 months marked as portion ‘B’ is also
not correct.” The witness then stated that these things were written in
the application, as the accused were giving him threats.
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27
The handwriting of the application is of his friend Ambadas Chavan,
who is from Akkalkot Taluka. The witness had stated that he felt like
approaching the police and telling them all these details after their
occurrence, but he had not gone to police because of the fear of the
accused.
18. The statement of the witness was recorded in the Court at
Solapur before the deposition. Police Officer Rasal had not taken him to
Solapur for that statement. He was taken to Solapur twice for recording
his statement, and on both occasions, Police Officer Rasal was not with
him. It was true that Police Officer Rasal was the Investigating Officer
of the case. He did not feel that he would face trouble if he did not
depose as per the statement he made before the Court at Solapur. Then,
following improvements were pointed out: “ It is true that I had deposed
in the Court as per my statement which was recorded in the Court at
Solapur. I do not remember if I had stated before the Court at Solapur
while giving the statement that when the truck had stopped at the dhaba
Mahesh Bagal had asked Lobhe to stop the trax in front of the truck at
some distance from it. I cannot give any reason why this is not noted
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28
down in my statement recorded by the Court at Solapur. It is not there in
my statement even before the Court that the trax had stopped in front of
the truck at some distance from it. While giving the statement before the
Court I had told that after about 10 to 15 minutes Mahesh Bagal and
Ranjit Deshmukh had returned and told myself and Vishnu Adlinge that
the driver and cleaner had taken meals and gone to sleep in the truck.
These things are not noted down in my statement in this particular way. It
is not noted down in my statement recorded by the Court at Solapur that
myself and Vishnu remained awake and others had slept in the trax.
Witness states that he had stated these things before the Court as he
remembered the details. While giving the statement before the Court at
Solapur I had stated that myself and Vishnu Adlinge had woken up all of
us. I cannot give any reason how this is not noted down in my statement.
I had told that after we had climbed in the truck Lobhe had taken the trax
towards Barshi. I cannot give any reason why this is not noted down in
my statement. While giving the statement before the Court at Solapur
I had said that Pintu Harihar and Vishnu Adlinge had caught the cleaner.
He had scuffled for freeing himself. He was held by pressing him down.
Ranjit Deshmukh and Mahesh Bagal had placed the noose around the neck
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of cleaner and tightened the rope. I cannot give any reason why these
details are not noted down in my statement recorded by the Court. While
giving the statement before the Court at Solapur I had not stated that the
tempo was stopped near Railway Colony. I do not remember if I had
stated while giving the statement before the Court at Solapur that on
reaching Kurduwadi members of my family scolded me and told that I may
appear before the police. I cannot assign any reason why this is not noted
down in my statement. I do not remember if I had stated while giving the
statement before the Court at Solapur that I was arrested while I was
sitting at one dhaba at Pandharpur. I cannot give any reason why this is
not noted down in my statement.”
19. The father of this witness was working in railway, but it was
not true that police threatened him that if he did not depose, his father
would lose his job. Police did not assure him that they would assist him
in performance of the marriage of his sister. He had not yielded to any
pressure from any police personnel. He had not given a false statement,
and had not been given any assurance by the police. The number of the
case was 2/2001. The number was noted on the jail warrant and the
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30
jail card. He did not know any other number of the case. He did not
know what offences were there under Sections 363 and 365 of I.P.C.
He was arrested for the offences under Sections 363, 365, 396, 397 and
120B of I.P.C. These sections are written on the jail card, which are
given to the prisoners on every Monday at the time of round by the Jail
Superintendent at Solapur. He had come to know of these sections in
jail at Solapur. He was in jail at Pandharpur for about 9 months. Then,
after he was shifted to Solapur, he came to know of these sections.
While he was in jail at Pandharpur, he had sent the application to
C.J.M., Solapur, saying that he was ready to become an accomplice.
There was mention of sections in this application. The crime number is
also mentioned therein. He knew the Judicial Magistrate and the Chief
Judicial Magistrate. The jailor at Pandharpur had told him about this.
Pandharpur Jail is located almost opposite to Pandharpur Taluka Police
Station. He was presented before the C.J.M. twice since the time of his
arrest till the time of recording his statement. He was produced before
the Court of J.M.F.C. Pandharpur on a couple of occasions. He did not
th
remember if he was arrested on 8 August, 2000, but he remembered
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that it was the 8 month of 2000. He did not remember whether he was
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31
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remanded to police custody till 16 August, 2000. He did not know
whether P.C.R. was enhanced by two more days. He had read in
newspaper that Sainath Abhangrao was the President of Shiv Sena for
the district. It was true that he was the District President of Shivshakti
Sanghatana. He had never met him. He knew that he was an
influential man. It was true that after he was arrested, Police Officer
Rasal had asked him as to whom he would like to be informed about his
arrest. He had told him to inform the members of his family. It was not
true to say that he had told Police Officer Rasal to inform about his
arrest to Sainath Abhangrao. He did not know if Rasal had informed
Sainath Abhangrao.
20. The witness was produced before the Magistrate at Solapur by
the police from Pandharpur. On that day, his statement was not
recorded. He was brought back to Pandharpur Jail. He was taken to
Solapur for the second time by the police from Pandharpur. He was not
tortured by the police. He was not under pressure of the police. He was
not told by the police that they were sitting in the courthall, and if he
failed to depose as told, he would be implicated in another case.
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There were two policemen sitting in the courthall who were from Police
Station Pandharpur Taluka. They were sitting in plain clothes, and their
names were Hamid Shaikh and Balu Jadhav. When accused
Mahesh Bagal had said that “ game karaichi aahe” , he had not gone away
from that place. He had not told them not to do such things.
They were in a hotel at Jat for about half an hour to threefourth hour.
The cleaner had not raised any shouts in the hotel at Jat. Five hours
were required for the truck to reach Mahud. Many persons remained
there in the square at Mahud. It was not true to say that no incident as
deposed by him had taken place. He did not remember as to at what
time they had reached the dhaba near Mahisgaon. It might have been
about 11.00 p.m. when Mahesh Bagal and Ranjit Deshmukh had told
him and Vishnu Adlinge at that dhaba that the truck driver and cleaner
had taken the meals and had slept in the truck.
21. P.W. 2, Ashok Pannalal Jain, is the owner of the truck.
He stated that he purchased sugar from sugar factory on wholesale basis
and he was then transporting the sugar in his own trucks. He had two
trucks, one MH231061 and the other MH231188.
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Suresh @ Suryakant Chate was the driver of Truck bearing No.
MH231061. Surykant was working with him for four years. Balu was
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the driver of the other truck bearing No. MH231188. On 5 June,
2000, he had sent his truck, MH231061 for fetching 100 bags of sugar
from Pandharpur. The driver was Suryakant. Bandu was the cleaner on
the truck. Bandu used to work as a Hamal at his shop. Bandu had gone
with the truck, as the cleaner was not available. The witness came to
th th
know that sugar bags were loaded in the truck on 6 June, 2000. On 7
June, 2000, he waited for the arrival of the truck with sugar bags at
Parli Vaijinath between 10.00 to 11.00 a.m. He waited for the arrival of
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the truck throughout the day but it did not arrive till that night. On 8
June, 2000, he started in his car looking for the truck through the road
proceeding to Ambejogai, Kalamb, Karmala, Barshi and Kurduwadi. He
enquired at the dhaba near Mahisgaon about the truck, as it used to halt
there for the night. He was told that during the night, the truck halted
there, and left for Parali Vaijinath in the morning. On getting this
information, he started back towards Parli Vaijinath. Then, he informed
Narayandas Marda that he was told that the truck came up to that
dhaba, and thereafter, it was not traced. Therefore, he told Narayandas
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Marda to pursue the matter with the police. Narayandas told him that it
was late in the night, and, therefore, he would inform the police next
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day. On 15 June, 2000, he received a phone call from police that his
truck had been located near Mirajgaon in District Ahmednagar.
His brother went there, and obtained the custody of the truck. He did
not obtain the possession, as it was lying abandoned. The sugar bags,
which had been loaded in it, were not in the truck. The driver and
cleaner were also not present. The truck was then brought to the Police
Station Pandharpur Taluka. The witness went to Pandharpur and took
the truck in his custody. One bundle of rope of the length of 100 to 110
feet was there in the truck. The papers of the truck were also not there
in it. The waxcoated tarpaulin was also there in the truck. He had
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executed a bond before he got the custody of the truck. On 8 August,
2000, he was informed on phone by the police that the driver and
cleaner of the vehicle had been murdered. He brought the family
members of the driver and the cleaner to Pandharpur. The cloths of the
cleaner, which he was wearing while leaving Parli Vaijinath were shown
to him, but he could not identify them. He received 21 sugar bags from
Police Station Pandharur Taluka. Another 60 bags were received by
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35
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him. On 19 August, 2000, he received a phone call from Police Station
Pandharpur Taluka, asking him to get the rope bundle, which was found
earlier in the truck. He identified this bundle as Article 21.
Then, he was crossexamined, but nothing worthwhile, either
for the prosecution or the defence, could be elicited from him.
22. P.W. 3, Narayandas Harilal Marda, was a commission agent in
sale of sugar. Pannalal Jain & Sons from ParaliVaijinath was his
customer. It was the firm of Ashok Jain. He used to give the phone
calls, and thereafter, he used to send the truck. The witness used to
load the truck and send the sugar bags to their place. The firm,
Pannalal Jain, was having the truck. Its number was MH231061.
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Suresh was the driver of that truck. On 6 June, 2000, a truck had
arrived at Pandharpur for fetching the sugar bags. The draft had been
sent by the customer in the name of the sugar factory. He received the
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draft on 6 June, 2000 for Rs.2,72,620/ for 200 bags of sugar.
100 bags were loaded in the truck on that day from the sugar factory.
th
In the evening of 7 June, 2000, he received a phone call from
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36
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Ashok Jain, informing that the truck had not reached. On 8 June,
2000, he, again, received a phone call that the truck had not reached,
and Ashok Jain had told him that although he went through the route of
the truck, he could not find the truck. The witness told Ashok Jain that
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the matter be reported to the police. On 9 June, 2000, he gave a
report to Police Station Pandharpur Taluka. He had informed the police
that 100 bags of sugar, truck, driver and cleaner were missing. He
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identified his signature on the report as Exhibit 22. On 16 June,
2000, he received a phone call from the police that the truck was
brought to Police Station Pandharpur Taluka, as it was found at
Mirajgaon. He was told that 20 bags of sugar were found. He took the
delivery of 20 bags of sugar from the police, and executed a bond in
favour of the police. He identified the signature on the bond as Exhibit
22.
23. P.W.4, Anantrao Udhav Ubale, was a panch witness when
5 bags of sugar were seized from Boleshankar Hotel of Village
Chinchgaon.
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24. P.W.5, Subhash Ajinath Shinde, runs a hotel styled as
“Bholeshankar Hotel” on Kurduwadi to Barshi road. He sells tea to
customers, and for preparing tea, he needs sugar. He purchases the
required quantity of sugar from Kurduwadi. One year to one and
onefourth years before, Ranjit Deshmukh had come to his hotel in a
Canter. By Canter he meant a tempo. Ranjit gave him 5 bags of sugar.
He sold the sugar at Rs.1250/ per bag. The witness purchased 5 bags
of sugar. One driver was driving the tempo, and, in all, four persons
were there in the tempo. Other persons were Mahesh Bagal and Maruti
Lobhe. After two months of the purchase of sugar, police came to the
hotel, and they enquired from him about the purchase, and he told them
that he had purchased 5 bags of sugar. Police seized 5 bags of sugar
from his hotel. Then, he learnt that the sugar was stolen property. He
was also put to crossexamination, but nothing worthwhile could be
elicited.
25. P.W.6, Suresh Bhanudas Mengade, was a panch witness when
10 bags of sugar were seized from the shop of Balu Maruti Dhavale.
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26. P.W.7, Balu Maruti Dhavale, runs a grocery shop in Village
Sade. He stated that the name of his maternal uncle was Nivrutti Lobhe.
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Maruti Lobhe was the son of his maternal uncle. In the 6 month of
year 2000, there was election in his village. He was contesting
that election. Early on the day of election, Maruti Lobhe had come to
him, and informed that he had obtained an agency for sugar, and if he
needed any sugar, he would supply it. Then the witness asked him
about the rate. Maruti told him that it would be Rs.1300/ per quintal.
Then he asked him to bring the sugar, and he would purchase it. He got
busy with the election. Maruti Lobhe brought 5 bags of sugar each to
his grocery shop by making two trips in his jeep. The number of the
jeep was MH129637. Some stock of sugar was already there in his
shop. After about a month, the police from Police Station Pandharpur
Taluka came to his shop. They made enquiries about Maruti Lobhe. In
that enquiry, the witness told the police that he had purchased 10 bags
of sugar at the grocery shop. Police informed him that the sugar was
sold to him by Maruti after committing robbery. Police seized 10 bags
of sugar, and took them to Pandharpur. Seizure panchnama was made,
and his signature was also obtained.
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27. P.W. 8, Appasaheb Ranganath Kapare, is a panch witness to
the recovery of sugar at the shop of P.W. 7.
28. P.W. 9, Mahindra Hukumchand Shah, is another grocery shop
owner. He sells sugar, rice, oils, etc. In June, 2000, Ranjit Deshmukh
came to his shop in a tempo, and asked him to keep 10 bags of sugar in
his shop, as he was not having any tarpaulin to cover the sugar bags.
The witness kept 10 bags of sugar in his godown. Ranjit Deshmukh did
not come back to get back the sugar. He made enquiries about
Deshmukh, and came to know that Deshmukh was not in his village,
Bhose. In the meantime, he sold three bags of sugar. He kept the
money with him, so that it could be handed over to Ranjit Deshmukh.
In the month of August, 2000, police from Police Station Pandharpur
Taluka came, and he told them that he had received 10 bags of sugar
from Deshmukh and had sold three bags. He had reached 7 bags to the
police. He was also put to crossexamination, but nothing worthwhile
could be elicited.
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29. P.W.10, Shital Ratanchand Shah, submitted that his cousin,
Mahindra Shah, had got a grocery shop. Ranjit Deshmukh and Mahesh
Bagal kept some sugar in the shop of my brother. About a year passed
since that incident. Ranjit told me that he was not having tarpaulin, and
the sugar might get wet. Five sugar bags were kept in the shop. In the
month of August, 2000, police came to the shop. He was informed that
the sugar was stolen property, and the same was seized.
30. P.W. 11, Tanaji Maruti Mali, sells sweetmeat in his shop. It is
admitted that Adlinge is his aunt. She resides in Kurduwadi. Vishnu is
the son of his aunt. In the month of June, 2000, Vishnu came to his
house and asked him whether he could purchase sugar. He said that his
friend had an agency in sugar. He told him that he was ready to
purchase sugar, as the rate quoted was Rs.1300/ per quintal, which was
low. Therefore, he purchased sugar at the rate of Rs.1300/ per bag
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from him. On 9 August, 2000 police from Police Station Pandharpur
Taluka had come to him. They searched his house, and found 5 bags of
sugar. He had utilised four bags, as he had purchased, in all, 9 bags.
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31. P.W. 12, Popat Sitaram Lokare, again, has a shop. In June,
2000, Mahesh Bagal had come to him with Gurudev Patil. They told
him that something wrong had gone with their truck, and they needed
money, so that the truck could be repaired. They demanded Rs.10,000/
to 15,000/. They also told him that if he was interested, he could
purchase sugar for this amount. The rate was fixed at Rs.1300/ per
100 Kg. He purchased 10 bags of sugar at Rs.1300/. After some days,
it was also recovered by the police.
32. P.W. 13, Anandrao Ramdas Aarkile, was witness to the
disclosure statements made by Mahendra Shah, who had produced
7 bags of sugar and three empty bags, and Fadatare, who had produced
two bags of sugar and three empty gunny bags.
33. P.W.14, Kakasaheb Baburao Gurade, was the witness to
recovery of rope.
34. P.W. 15, Suryakant Jagannath Pawar, was, again, witness to a
panchnama regarding 5 bags of sugar.
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35. P.W. 16, Vijay Bharat Kashid, is, again, a shopkeeper. In the
sixth month of 2000, Dhaigude and Lobhe came to his shop, and asked
him if he wanted to purchase sugar, as they had got an agency.
He purchased 8 bags of sugar from them for Rs.1200/ per quintal. He
gave them Rs.9600/. Then, sugar was brought by them in a traxjeep.
Then, police, after two months, recovered the sugar, and informed him
that it was a stolen property.
36. P.W. 17, Nivrutti Jagannath Jagtap, also is a shopkeeper.
Mahesh Bagal brought sugar to his shop, and informed that he was
selling sugar on commission basis. He purchased 5 bags at Rs.1110/.
After about 15 days, police came, and recovered the same, and informed
him that it was a stolen property.
37. P.W. 18, Popat Gajendra Khadul, is also a shopkeeper, but he
is a witness to some panchnama of sugar.
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38. P.W.19, Rajendra Vishwambhar Tupe, is also a witness to the
panchnama of seizure of sugar.
39. P.W. 20, Prashant Hanmnt Sutar, again, is a witness to seizure
of 8 bags of sugar from the shop of one Deokate.
40. P.Ws. 21 and 22, Raju Bira Padvalkar and Raosaheb Udhav
Thore, respectively, are also panch witnesses to the seizure of sugar
from various shopkeepers.
41. P.W. 23, Navnath Machindra Varkute, is another shopkeeper.
He said that Maruti Lobhe came to him and offered sugar at the rate of
Rs.1300/ per quintal. He purchased one bag from him for Rs.1300/.
After a month, police came and recovered it.
42. P.W. 24, Uttareshwar Pralhad Sutar, also purchased sugar at
the rate of Rs.1300/ a bag from Maruti Lobhe and then, it was
recovered after some time by the police.
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43. P.W. 25, Suresh Mahadeo Phadatare, said that Ranjit
Deshmukh came to his shop and offered him sugar at the rate of
Rs.1300/ per bag. He purchased 5 bags from him. After some time,
police came and recovered three bags from his shop. Two bags were
already sold by him.
44. P.W. 26, Dipak Bhanudas Deokate: Sugar was offered to him
by Maruti Lobhe and Kumar Dhaigude. He purchased two bags of sugar
at Rs.1200/ per bag and police recovered these bags also after some
time.
45. P.W. 27, Babaji Narayan Dhotre, has been witness to
disclosure having been made by Pintu Maruti Harihar with respect to
two pieces of tarpaulin, which were then recovered on the disclosure of
the accused by the police.
46. P.W. 28, Prashant Damodhar Sonawane, was a witness to
disclosure having been made by accused Bagal about a knife. This
recovery was made from accused No.1. In his examinationinchief, he
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45
stated that when he reached the police station, one more accused i.e.
P.W.1, Shinde, was present.
47. P.W. 29, Jotiba Pandurang Chandanshive, was witness to
disclosure by Mahesh Bagal with respect to the rope.
47A. P.W. 30, Gulab Bhau Chabukswar, was witness to the visit of
police to the house of Navnath Varkute in Village Shirala. Navnath
Varkute had produced a bag containing sugar. The weight of the bag
was around 50 Kg.
48. P.W. 31, Raosaheb Sopan Shelke, is another important
witness. He stated that his wife’s name was Jayashree Shelke. She was
from Village Varkute. Her cousin brother Santosh Shinde resided at
Kurduwadi. About a year and a half before when he was sleeping in his
house, Santosh Shinde came to his house in the night at about 2.30 a.m.
And asked him that he might be allowed to keep the bags containing
sugar at his place, as it was raining. He told him that he could keep the
sugar bags in the cattle shed. Accordingly, Santosh Shinde kept the
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bags containing sugar in the cattle shed. Santosh Shinde, Pintu Harihar
and five to six others, whose names he did not know, had unloaded the
bags of sugar from the vehicle. The bags containing sugar were about
80 in number. While they were unloading the bags, he returned to his
bed and went to sleep. In the morning, a tempo was brought there and
sugar bags were taken away. The tempo was brought at 5.00 to
5.30 p.m. and it departed from his place after loading sugar at about
7.00 p.m. He was present when the sugar was being loaded in the
tempo. He asked Santosh as to whose sugar it was. He told him that
sugar was of his friend, and they were taking it away. Santosh Shinde,
Pintu, Ranjit and some others were there. He could identify those
persons by looking at their faces. They were sitting in the courthall on
the bench. They had kept one bag of sugar at his house. Police arrived
in the village. His statement was recorded by the police. He did not
know how Santosh Shinde brought those bags of sugar to his house. He
also admitted in crossexamination that his statement had been recorded
by the Magistrate.
49. P.W. 32, Bajirao Sandipan Shinde, submitted that he had
purchased a jeep bearing Registration No. MH12W9637 in 1996. This
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vehicle was financed, and he had to pay monthly instalments of
Rs.7,500/ each. As he could not pay the instalments, after some time,
Rs.60,000/ were due. Therefore, he decided to dispose of the vehicle.
He sold ultimately the vehicle to Maruti and Nagnath Lobhe for
Rs.1,90,000/. Rs.1,00,000/ were received in cash and Rs.30,000/
were to be paid after two months. Outstanding of Rs.60,000/ towards
the finance company had also to be paid by Lobhe. These terms and
conditions were written down on stamp paper of Rs.10/. Maruti and
Nagnath Lobhe had given him cash of Rs.1,00,000/ and he had given
them possession of the vehicle. He identified Marui Lobhe in the court
hall.
50. P.W. 33, Prakash Asaram Kamble, is a Medical Officer. He
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performed the postmortem on 9 June, 1980 on the body of an
unknown male. He found following injuries:
(i) Abrasion on both hands at the wrists inconcurrently, size
of the injury was about 2 cms in width;
(ii) Abrasion over the left leg, just below the ankle joint on
anterior surface, size of the injury was 4 cms x 2 cms, it was
transverse;
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(iii) Blackish mark below the thyroid cartilage, transversely
placed, size of the injury was 8 cms x 2 cms, subcutaneous
haemorrhagic fluid was seen;
(iv) Blackish discolouration over the chest.
He submitted that the injuries caused were within 24 hours before
death.
51. P.W. 34, Shivaji Shankar Deokar, again, is a witness to whom
the sugar was sold by Ranjit Deshmukh at the rate of Rs.1250/ per
quintal. It was later on seized by the police.
52. P.W. 35, Bhimrao Namdev Ubale, was a police head constable
who made enquiries in unnatural death bearing A.D. No. 42 of 2000.
He recorded statements of four witnesses, caused a photo of the dead
body to be taken and sent a report to the Police Inspector Jat.
53. P.W. 36, Dilip Shaharao Phadake, is a tempo driver working
as driver of Chandrakant Hanumant Sutar. On many occasions, he was
engaged by Mahesh Bagal, Ranjit Deshmukh, Maruti Lobhe, Subhash
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Dhaigude and Pintu Harihar to lift jawar from one place to another. On
one occasion, he was told by Mahesh Bagal that jawar was to be brought
from Karmala and carried to Chinchgaon. The hire charges of Rs.900/
were fixed. He obtained an advance of Rs.350/. He was told to wait at
the check post at Kurduwadi. He accordingly reached the check post.
Three coolies were made to get in his tempo. Vishnu Adlinge had come
with me. As per the direction of Mahesh Bagal, he had taken the tempo
on Karmala Road. They reached up to Khambewadi. There was a
locality by the side of the road. He parked the tempo for loading jawar.
Persons from that vasti asked him to come for meals. He went in one
house and took the meals. Mahesh Bagal, Ranjit Deshmukh and some
others were there. He alone had taken the meals. Others were loading
the tempo. After taking the meals, he came out near the tempo. He
found that the bags loaded in the tempo were not jawar bags but were
sugar bags. He asked Mahesh Bagal how he loaded the bags containing
sugar when he was told that he had to transport the bags containing
jawar. He told Mahesh Bagal that he would not carry the bags
containing sugar but Mahesh Bagal threatened. One tyre of tempo got
punctured at that place. He removed that punctured tyre and fitted
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another good tyre there. He had come to Barshi Naka with the tempo.
Mahesh Bagal and a couple of others got in his tempo and they had
gone to the shop of Shrikrishna Tyre at Chinchgaon. Ten bags of sugar
were taken there. He slept in the cabin of the tempo. Next day, he was
told to take the tempo towards Paranda. He took to Paranda and
stopped near a college. Some bags were taken away from the tempo by
loading them in a jeep, and he was told to wait at Vaishali Dhaba. He
accordingly waited there. When we reached Vaishali Dhaba, it was
raining. He slept in the cabin of the tempo. Next day, he brought the
tempo at the shop of Phadatare at Madha. Five bags were unloaded in
the shop of Phadatare. They had gone to the shop of one Shah. Ten
bags were unloaded for Shah and five bags were unloaded for his
brother. They had come to Modnimb. Nine bags were given to one
Mali. They went to Wangarwadi. Twenty bags were unloaded there for
one trader. We came back to Kurduwadi. Five bags each were taken
away through the jeep. He was given the hire charges of Rs.2300/.
Then, he took the vehicle to the house of his master. Whenever the
sugar bags were unloaded from his tempo, some men stayed with him,
so that he would not run away.
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54. P.W. 37, Subhash Baburao Jadhav, was witness to seizure of
traxjeep.
55. P.W. 38, Bajarang Babu Chavan, was a panch when the dead
body was recovered from near a Babul Tree in Village Khairav.
56. P.W. 39, Babasaheb Dattu Borkar, was the cook in Saiprasad
Hotel, where a large number of truck drivers stayed and ate meals. He
said that the truck in question had arrived at about 9.30 p.m. He took
meals and slept in the truck. He did not know the cleaner, because he
was not usually coming with the truck. The driver was wearing a
Shando baniyan and dirty pants. The cleaner was wearing a shirt and
dirty pants. He woke up the driver at about 4.00 a.m. He left the hotel
with the truck. The truck was loaded with sugar. After one day, the
owner of the truck had come to the hotel, and enquired from me about
the truck.
57. P.W. 40, Ramesh Bibhishan Sarvade, is the owner of a pan
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shop, which remains open for 24 hours. On 6 June, 2000, the truck
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driver came and told him that his truck was loaded with sugar and his
truck had got punctured at Kurduwadi, and, therefore, he was late. One
cleaner was with him. He did not know the cleaner, because he was not
the usual cleaner. This pan shop was just near the hotel. He also told
that after finishing the meals, the driver and cleaner slept in the truck
and left in the morning.
58. P.Ws. 41 and 42, Dhanraj Sampati Chate and Rambhau
Sheshrao Badane, respectively, are not important.
59. P.W. 43, Shirish Dattatraya Chavan, is a villager, who said
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that there was Grampanchayat Election on 9 June, 2000. At about
10.00 a.m., he had gone to Maloli for casting his vote. While returning
towards land at about 11.30 a.m., Sayaba Ghorpade and Mahada Magar
were with him. He noticed a dead body in the bushes of Mahananda on
the Western side of Ghumerga Bridge. The bridge is on one nala . The
dead body was of a man of the age of 25 to 30 years. There was an
injury on the head of the dead body. Blood was oozing from the
nostrils. Earlier day he heard that a tempo met with an accident near
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the bridge. The trees and bushes at the place of dead body were quite
thick. He thought that the man was killed in the accident of the tempo
and he accordingly informed the police at Police Station Velapur. They
reduced to writing his information.
60. P.W. 44, Chandrakant Hanmant Sutar, is the owner of vehicle
Tata709. He was driving the vehicle himself. In year 2000, his vehicle
was taken to Kolhapur. It was taken by some persons after fixing the
hire charges with the driver. Some sort of incident occurred and he was
called to the police station. Police obtained his vehicle in their custody.
After about 8 days, the vehicle was given in his possession. At that time,
a writing was obtained from him on a stamp paper.
61. P.W.45, Janardhan Rama Madane, stated that he was working
as a labourer. He had two sons and one daughter. He stated that two
years before when he was taking his son to hospital, he came to Maloli
to Akluj Road at about 7.00 a.m. for catching a bus. One tempo used for
the carriage of milk arrived there from Salmah. He and his son, Vitthal
Magar, got into that vehicle. The tempo proceeded in the direction of
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Akluj. When they reached up to Chumera Nala (Odha), the driver said
that the steering of the tempo got locked. The tempo fell from the
bridge. He sustained injuries on his limbs and his son, Vitthal, also
sustained injuries. He went to Police Station Velapur, and reported the
matter there. Police had written his report and obtained his signature.
62. P.W. 46, Vitthal Bhagwan Magar, was also in the tempo, to
which a reference is given by P.W. 45. The driver told that something
had gone wrong with the steering. The vehicle fell in the nalla. He and
other occupants of the vehicle sustained injuries. However, he came
on the road, and got into another tempo used for carrying milk and
came up to Velapur. The police sent us to the hospital. Nothing more
happened in the accident.
63. P.W.47, Samadhan Ramchandra Sule, also is a witness to the
incident of Tempo bearing Registration No.MH12B805.
64. P.W.48, Chandrakant Bajarang Pokale, also is a witness with
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respect to the accident of the tempo. On 9 June, 2000, one
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Shirish Dattatraya Chavan came to police station, Velapur. He informed
that the dead body of a male was lying in the bushes of Mahanandi by
the side of Ghumera Bridge. He said that the dead body was of a man
involved in the accident. He recorded statement of Shirish Dattatraya
Chavan. The witness went to that place and saw the dead body. He
had effected an inquest thereupon. The inquest bearing his signature
was Exhibit 125.
64A. P.W. 49, Shirish Shankarrao Bhosale, a Clerk in the Accounts
Section of Vitthal Cooperative Sugar Factory, received money from a
person who purchased 200 bags of sugar.
65. P.W. 50, Bhagwat Jalinder Kadam, is also a witness to the
same transaction.
66. P.W. 51, Nagnath Rajaram Gund, is also a witness who
testified that he had issued the Gate Pass to the truck in question for
taking out 200 bags of sugar.
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67. P.W. 52, Mansukh Babu Sayyad, is a security man, who also
testified that the truck in question had carried 200 bags of sugar on the
relevant date.
68. P.W. 53, Balasaheb Sadashiv Mhetre, is a photographer, who
took the photographs of the dead body.
69. P.W. 54, Anil Shripati Khot, took the viscera in a sealed
condition to the C.A.’s Office.
70. P.W. 55, Suresh Sundar Ghodake, was a panch witness to the
seizure of the truck.
71. P.W. 56, Yaqub Shaikur Pimpri, P.S.I., registered Crime No.
99 of 2000, and did some investigation in the case.
72. P.W. 57, Dharmraj Dagadu Ombase, was the A.P.I., who also
conducted the investigation in the matter.
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73. P.W. 58, Ravindra Manikrao Rasal, was also A.P.I., for
sometime, and also conducted the investigation. This witness assumes
some importance, because the prosecution has challenged the testimony
th
of P.W.1 as an approver. This witness said that on 19 August, 2000, he
sent Santosh Shinde before the Chief Judicial Magistrate, Solapur, on
getting permission from J.M.F.C., Pandharpur. He was sent through
police escort from Police Station, Pandharpur Taluka. The defence
th
counsel submitted that according to this witness on 19 August, 2000,
the accused was in judicial custody in a jail. How was the custody of
this person obtained by the policeman, so that he could be produced
before the Magistrate? He stated in his statement that he obtained
permission of J.M.F.C. In crossexamination, he was asked to produce
such permission.
74. P.W. 59, Dr. Ashok Shankar Randive, is another doctor, who
conducted the postmortem of another dead body. He gave his report,
Exhibit 127. According to him, the cause of death was strangulation.
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75. The appellants have relied upon a judgment of the Supreme
Court in Sheshanna Bhumanna Yadav v. State of Maharashtra , reported
in AIR 1970 S.C. 1330. In paragraph 12, the Supreme Court held as
under:
“The law with regard to appreciation of approver’s evidence
is based on the effect of Sections 133 and 114 illustration
(b) of the Evidence Act, namely, that an accomplice is
competent to depose but as a rule of caution it will be unsafe
to convict upon his testimony alone. The warning of the
danger of convicting on uncorroborated evidence is
therefore given when the evidence is that of an accomplice.
The primary meaning of accomplice is any party to the crime
charged and someone who aids and abets the commission of
crime. The nature of corroboration is that it is confirmatory
evidence and it may consist of the evidence of second
witness or of circumstances like the conduct of the person
against whom it is required. Corroboration must connect or
tend to connect the accused with the crime. When it is said
that the corroborative evidence must implicate the accused
in material particulars it means that it is not enough that a
piece of evidence tends to confirm the truth of a part of the
testimony to be corroborated. That evidence must confirm
that part of the testimony which suggests that the crime was
committed by the accused. If a witness says that the accused
and he stole the sheep and he put the skins in a certain
place, the discovery of the skins in that place would not
corroborate the evidence of the witness as against the
accused. But if the skins were found in the accused’s house,
this would corroborate because it would tend to confirm the
statement that the accused had some hand in the theft.”
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The law is clear that even on the evidence of accomplice alone,
conviction can be made, but as rule of prudence, the Courts have to
insist on corroboration.
76. In Bhiva Doulu Patil v. State of Maharashtra , reported in AIR
1963 S.C. 599, while interpreting Section 133 of the Evidence Act,
1872, the Court held:
“It cannot be doubted that under that section a conviction
based merely on the uncorroborated testimony of an
accomplice may not be illegal, the courts nevertheless
cannot lose sight of the rule of prudence and practice which
in the words of Martin B. in R. v. Boyes , (1861) 9 Cox CC 32
‘has become so hallowed as to be deserving of respect’ and
the words of Lord Abinger ‘it deserves to have all the
reverence of the law’. This rule of guidance is to be found in
illustration (b) to S. 114 of the Evidence Act which is as
follows:
‘The court may presume that an accomplice is unworthy of
credit unless he is corroborated in material particulars’.
Both sections are part of one subject and have to be
considered together. The Privy Council in Bhuboni Sahu v.
The King , 76 Ind App 147: (AIR 1949 PC 257) when its
attention was drawn to the judgment of Madras High Court
in In re Rajagopal ILR (1944) Mad 308: (AIR 1944 Mad
117) where conviction was based upon the evidence of an
accomplice supported by the statement of a coaccused said
as follows:
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‘Their Lordships would nevertheless observe that
Courts should be slow to depart from the rule of prudence,
based on long experience, which requires some independent
evidence implicating the particular accused. The danger of
acting upon accomplice evidence is not merely that the
accomplice is on his own admission a man of bad character
who took part in the offence and afterwards to save himself
betrayed his former associates, and who has placed himself
in a position in which he can hardly fail to have a strong bias
in favour of the prosecution; the real danger is that he is
telling a story which in its general outline is true, and it is
easy for him to work into the story matter which is untrue.’
7. The combined effect of Ss. 133 and 114, illustration (b)
may be stated as follows: According to the former, which is
a rule of law, an accomplice is competent to give evidence
and according to the latter which is a rule of practice it is
almost always unsafe to convict upon his testimony alone.
Therefore though the conviction of an accused on the
testimony of an accomplice cannot be said to be illegal yet
the Courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration in material
particulars. The law may be stated in the words of Lord
Reading C.J. in R. v. Baskerville , 19162 KB 658 as follows:
‘There is no doubt that the uncorroborated evidence of an
accomplice is admissible in law (R. v. James Atwood, (1787)
1 Leach 464). But it has been long a rule of practice at
common law for the judge to warn the jury of the danger of
convicting a prisoner on the uncorroborated testimony of an
accomplice, and in the discretion of the Judge, to advise
them not to convict upon such evidence, but the judge
should point out to the jury that it is within their legal
province to convict upon such unconfirmed evidence ( R. v.
Stubbs , (1855) Dears C C 555; in re, Meunier , 18942Q.B.
415)’.”
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77. The testimony of P.W.1 is not challenged by the defence as
wholly unreliable, but it has been pointed out by the defence that there
are certain omissions and there are certain contradictions, and his
testimony is not corroborated in material particulars. The instances
given by the defence are:
“(i) PW1 in his evidence at pages No. 102 and 104 states
that the tyre of truck got punctured and was taken for
repairing in one shop. On page 105 of his evidence he states
that the diesel was filled at one petrol pump. On page 104
he states that the truck halted at hotel for taking meal where
the waiter was abused and beaten. But not any person from
the shop, petrol pump or hotel is examined to corroborate
P.W.1 Santosh Shinde.
(ii) PW1 on page 106 of his evidence states that initially the
accused persons took the truck to Bhogewadi where the
maternal uncle of accused No.1 Mahesh resides for keeping
sugar bags. But said uncle is not examined by prosecution.
(iii) PW1 on page 106 of his evidence states that he went to
his uncle PW 31 Raosaheb Shelke for keeping sugar bags.
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He said to his uncle that it might rain. Hence bags might be
kept there. On the contrary, Raosaheb says that it was
raining. PW1 further says that the truck is required for Varat
which is not corroborated by PW 31 Raosaheb.”
78. To the first point, we do not find that by not getting a witness
from the establishment, petrol pump or hotel, the testimony of P.W.1,
Santosh Shinde, cannot be accepted, as his story has been supported by
almost 30 witnesses and almost each bag of sugar has been recovered at
the disclosures by accused. This testimony is supported by a close
relation of one of P.W. 1. One witness, who is the husband of cousin of
one of the accused, testified categorically that the accused persons had
gone to his house at 2.00 a.m. in the night, and stored the sugar in his
cattle shed. Similarly, the nonproduction of maternal uncle of accused
No.1 would not be vital to the case, as there is ample evidence to
suggest that the sugar was taken from the truck, it was sold to the
person and money was received.
At (iii) above, it is stated that there is contradiction. Similar is
the answer to the objection raised at (iii) above.
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Therefore, we do not find any material contradiction between
the testimony of the witnesses and the accomplice, which would in any
way discredit the case of the prosecution.
79. Another ground to challenge the prosecution story was that
according to the approver, one of the deceased died about 36 hours
prior to conduct of his postmortem , whereas the doctor found that the
death occurred 24 hours prior to the postmortem . The doctor’s view in
this matter cannot be accepted as conclusive proof about the time of the
death of the deceased.
80. In material facts, we find that the approver’s evidence is
sufficiently corroborated by testimony of other witnesses and recovery
made at the disclosure of the accused persons.
81. Another confusion was sought to be created on the basis of
testimony of some of the witnesses. It appears that an accident had
taken place around the same date when this occurrence took place at a
place where the body of one of the deceased was thrown.
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The learned senior counsel appearing for the appellants has submitted
that the body found was, perhaps, the body of a person who suffered the
accident in a tempo, and he relies on the testimony of P.Ws. 45, 46 and
47. P.W.45, as stated earlier, submitted that he suffered an accident,
but he never said that anybody had died in the accident. Similarly, P.W.
46 was also in the tempo, and some of them who were in the tempo
suffered injuries, but he had categorically said that nothing had come on
record, except that this accident had happened there. P.W.47 also does
not say that anybody died in such an accident, although there appears to
be some confusion when the deposition of P.W.47 is taken into
consideration when he submitted that there was an accident, he went to
the police and he made an inquest on the dead body of the person who
died in the accident, because the dead body was found on the basis of a
report given by a person who had seen the dead body. In order to
connect this dead body to the accident of the tempo, the evidence had
to show who was the person in the tempo who died. Persons who
travelled in the tempo were all alive, and persons who travelled in the
tempo deposed that nobody out of them died, although there was an
accident.
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82. The learned counsel for the appellants has also argued that
safeguards under Section 306 of the Criminal Procedure Code were not
adhered to, and, therefore, there has been a miscarriage of justice.
In this connection, he relies on a judgment of the Supreme Court in
Suresh Chandra Bahri v. State of Bihar , etc., etc., reported in 1965 S.C.C.
(Cri) 60. In paragraph 30, the Supreme Court analysed the section and
ultimately held:
“The object and purpose in enacting this mandatory
provision is obviously intended to provide a safeguard to the
accused inasmuch as the approver has to make a statement
disclosing his evidence at the preliminary stage before the
committal order is made and the accused not only becomes
aware of the evidence against him but he is also afforded an
opportunity to meet with the evidence of an approver before
the committing court itself at the very threshold so that he
may take steps to show that the approver’s evidence at the
trial was untrustworthy in case there are any contradictions
or improvements made by him during his evidence at the
trial. It is for this reason that the examination of the
approver at two stages has been provided for and if the said
mandatory provision is not complied with, the accused
would be deprived of the said benefit. This may cause
serious prejudice to him resulting in failure of justice as he
will lose the opportunity of showing the approver’s evidence
as unreliable. Further clause (b) of subsection (4) of
Section 306 of the Code will also go to show that it
mandates that a person who has accepted a tender of pardon
shall, unless he is already on bail be detained in custody
until the termination of the trial.”
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We have not seen in this case anywhere that these safeguards were not
kept in mind.
83. Therefore, we have no doubt in our mind that the conviction
under Section 364 read with Section 34 and Sections 396, 201 and 414
read with Section 34 of the Indian Penal Code was not misplaced.
The prosecution has been able to prove the case beyond shadow of
doubt against the accused persons. Therefore, the conviction and
sentence are upheld. The appeals are dismissed.
BILAL NAZKI, J.
A.R. JOSHI, J.
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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
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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 : 1832009
DATE OF PRONOUNCING: 1892009
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JUDGMENT (Per Bilal Nazki, J.):
th
On 6 June, 2000, a truck bearing Registration No.
MH231061 left ParaliVaijinath, 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 Cooperative Sugar Factory,
and started back to ParaliVaijinath in the evening of the same day, i.e.,
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6 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
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Pandharpur on 6 June, 2000 at about 3.15 p.m. with 100 bags of
sugar.
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2. On 8 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
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police. On 9 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
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from two to three persons. On 25 June, 2000, he also seized 8 more
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sugar bags. On 30 June, 2000, he arrested one Uttam Jarichand Tupe
on suspicion. On interrogation, said Tupe gave certain names of
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persons, who had committed the offence, and on 5 August, 2000,
P.S.I. arrested accused Ranjeet Deshmukh, Pintu Harihar, Subhash
Dhayagude, Vishnu Adlinge and Maruti Lobhe. On enquiries from them,
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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
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Rasal. On 7 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. MH12
W9637. He also arrested Santosh Ashok Shinde, and made seizures.
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On 8 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.
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4. Another accused made a disclosure statement, which led to
the discovery of ropes. Statements of certain witnesses were recorded
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on 16 August, 2000. Five bags of sugar were seized from Sheetal
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Ratanchand Shah. On 19 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
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and to grant him pardon. The Magistrate recorded his statement on 21
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.
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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
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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
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to note that the approver was arrested on 7 August, 2000. He made an
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application on 19 August, 2000, i.e., after 12 days in custody, and his
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statement was recorded on 21 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, 120B 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
1982000 at about 535 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,
120B 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.
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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
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June, 2000. On 19 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
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accused, Santosh Shinde. He fixed the matter on 21 August, 2000 for
recording the statement of Santosh Shinde. He identified his signature
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on the application. It was marked Exhibits 192 and 193. He issued a
letter to the Jail Superintendent, Solapur, for producing accused
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Santosh Shinde on 21 August, 2000. This also bears his signature, and
it was Exhibit 194.
st
11. Accordingly, on 21 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
306A 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 handwriting 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.
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11
12. In response to crossexamination 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.
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Santosh Shinde was produced before him for the first time on 19
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 193A. Shinde was
produced before him at 5.25 p.m. after the working hours of the Court.
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It was not true that on 19 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 192A. He had given time to Santosh for
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12
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reflection since 19 August, 2000. He had not thought it necessary to
give more time to Santosh Shinde for thinking over the matter, though
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the offence involved was punishable with death. 19 August, 2000 was
a Saturday. Next day was a Sunday, and as such, directing the
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production on 21 August, 2000 would enable the accused to think over
the matter. He recorded the statement of Santosh Shinde in his
chamber, and not in courthall. A.P.I. was not present, however his
statement was recorded.
13. The witness further stated in his crossexamination 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.
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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,
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14
and the Court of C.J.M. would be covered within 10 minutes on foot.
He did not know if the guards at SubJail, Pandharpur, were policemen.
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After the evening of 19 August, 2000 and on 20 August, Santosh
Shinde was in the SubJail 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
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the incident had taken place one and a half years before. On 5 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.
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Next day, the owner had not given the truck. On 6 June, 2000 at
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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
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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.
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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
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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 chilaribabul .
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
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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
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20
the shop nearby for repair of puncture. The tyre was again fitted to the
truck. They left Jat and reached Nagaj Phata . They reached near
Village Hatid. One petrol pump is there, where they filled the tank of
the truck. Then, they reached Sangola and then Mahud. Mahesh asked
Ranjit Deshmukh to close the door of the truck, as he was feeling cold.
The door of the truck was shut. Pintu Harihar and Vishnu Adlinge
caught the cleaner. He scuffled for freeing himself. He was held by
pressing him down. Ranjit Deshmukh and Mahesh Bagal placed the
noose around the cleaner’s neck and tightened the rope. Blood oozed
from his mouth, and he died. The truck was stopped near a nala near
Village Velapur. The dead body of the cleaner was thrown from the
truck. It fell on the ground, and the head of the dead body struck the
ground. The dead body fell on the road. Mahesh Bagal got down from
the truck, and pushed aside the dead body in the nalla stream.
He came back, and got in the truck. They passed Village Velapur.
On covering a distance of about one and a half kilometre, Mahesh asked
Subhash to stop the truck for passing urine. Mahesh Bagal got down
from the truck with the pieces of rope. When he returned, he was not
having those pieces of the rope. He again occupied the truck.
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The truck proceeded towards Akluj. From Akluj, they came to
Tembhurni. When they reached Tembhurni, it was about 12 midnight.
In Hotel Satkar, they all had meals. They came to Kurduwadi in that
truck. From there, they went to Bhogewadi, where the maternal uncle
of Mahesh Bagal resides. He told his uncle that he obtained the tender
for sugar, and needed accommodation for keeping the sugar. The uncle
of Mahesh Bagal told him that there was no room for storing the sugar
bags.
They proceeded towards Karmala. They reached Village
Khambewadi, where the husband of his cousin aunt Shelke resides.
He and Pintu told Shelke to allow them to keep the sugar bags there for
the night, as something went wrong with the truck. It might rain.
Therefore, they wanted to store the sugar. He was requested to keep
the sugar for the night, as the truck was to be used for carrying Varat of
marriage. The sugar bags from the truck were unloaded and kept in the
cattleshed of Shelke. They lifted the bags from the truck, and Mahesh
Bagal and Ranjit Deshmukh carried them to the cattleshed.
Unloading of the truck was over.
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22
Mahesh Bagal and Pintu Harihar took the truck from there.
Rest of the accused slept at the house of Shelke. Mahesh Bagal and
Pintu Harihar returned at about 10.00 a.m. They told him that they left
the truck near one dhaba near Mirajgaon. In the noon, he told them
that there was pain in his abdomen, and he would go to some
dispensary. He went to Kurduwadi. Mahesh Bagal and Vishnu Adlinge
also went to Kurduwadi. They obtained the tempo of one Sutar,
collected Hamals from Nehrunagar and went back towards
Khambewadi. Vishnu Adlinge went with the tempo, and Mahesh Bagal
was searching him. He met him at one pan shop near the dairy at
Kurduwadi. Mahesh Bagal called Maruti Lobhe. They proceeded to
Khambewadi in the trax of Maruti Lobhe. Vishnu Adlinge and others
loaded the tempo with the sugar bags with the help of those Hamals.
Ranjit Deshmukh and Pintu Harihar sat in the cabin of the tempo with
the hamals. The witness, Mahesh Bagal, Vishnu Adlinge and Subhash
Dhaigude got in the trax of Maruti Lobhe. From Khambewadi, they
went to Kurduwadi. The tempo was stopped near the railway colony.
Four to five bags containing sugar were loaded in the trax. Those bags
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23
were taken to Deepak Devkate. They then returned to the place where
the tempo was parked. Three to four bags were again put into the trax
and were taken to the grocery shop of Kashid. The witness, Pintu
Harihar and Maruti Lobhe went in Kurduwadi locality. Mahesh Bagal,
Ranjit Deshmukh, Vishnu Adlinge and Subhash Dhaigude proceeded in
the tempo to Village Wangarwadi. They then returned to their houses.
After two to three days, the witness met Mahesh Bagal.
Mahesh told him that everything was well. Sugar had reached to one
Shah at Madha. Mahesh asked him not to tell as to what happened to
the driver and the cleaner, and threatened him. In the evening of that
day, Mahesh came to his house in the trax of Maruti Lobhe, wherein five
bags of sugar were there. He told him that this sugar was being brought
for giving to one customer. The customer told him that he was not
having money. He, therefore, asked him to keep the sugarbags for two
to three days. He asked the mother of the witness that he allowed to
keep the sugar in their house, and thereafter, he kept 5 bags of sugar in
his house. Mahesh Bagal left the place. Next day early in the morning,
the witness left for Pune. At Pune, the witness stayed with his aunt for a
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couple of days. Mahesh Bagal came there when he was not there.
On his return, his aunt told him that Mahesh Bagal had come.
From Pune, he went to Mumbai, where his cousin sister lives.
He stayed with his cousin for two months. He came to know that the
matter had been detected, and the police had arrested all the persons.
He came to know about it through a phone call made to him by a friend
from Kurduwadi. He returned to Kurduwadi. Members of his family
asked him to appear before the police. He went to Pandharpur, and was
sitting at one Dhaba . Police came and arrested him. He told the
policemen the incidents as they happened. He decided to be an
accomplice. He gave an application before the police, and thereafter,
gave one statement also. Mahesh Bagal, Ranjit Deshmukh, Subhash
Dhaigude, Maruti @ Pintu Harihar, Maruti Lobhe, Vishnu Adlinge and
Uttam Tupe were sitting in the courthall on the bench of the accused.
16. On crossexamination by counsel for some of the accused, the
witness gave his family background, and stated that he had studied
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up to 8 class, and after leaving the education, he started looking after
the shebuffalo and selling the milk etc. He used to go to Sangola, Akluj
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and Tembhurni. He had never visited Jat before these incidents.
He was arrested by Police Inspector Rasal of Pandharpur Taluka
Police Station. He did not know Sainath Abhangrao. He had read his
name in newspaper and had seen his photograph in newspaper. He
was from Pandharpur. He had not told the police that Sainath
Abhangrao was his friend. He did not know that police had informed
Sainath Abhangrao that he was arrested. One case under Section 324 of
the Indian Penal Code was pending against him in the Court at Madha.
He did not know what were the offences of Sections 366, 364, etc., of
the Cr.P.C.
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17. The witness was in jail from 19 April, 2001. He was not
granted bail. He was in jail with other accused at Pandharpur since the
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time of his arrest till he was shifted to Solapur Jail with effect from 19
April, 2001. It was true that other accused were taken to Solapur,
Sangola, Vita and such other places, and it was alleged that they had
committed so many other offences, but it was not true that he had
developed an apprehension in his mind that such accusation would be
made against him also. He denied that he had suffered some mental
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26
pain after his arrest. He denied that the pain had increased gradually.
He denied that he had been taken to the Civil Hospital, Solapur, from
the jail for treatment regularly; but he stated that he was taken once a
month to the hospital. He was taken to the Civil Hospital, Solapur, for
treatment 7 to 8 times; but it was not true to say that the doctors were
of the opinion that his mental faculty would be affected. It was true
that he was feeling that the trial of the case be started at an early date.
It was not true that police had brought pressure on him to state before
Court that trial of the case be started soon. It was true that he had
given an application, saying that the trial be started earlier.
nd
The application dated 2 June, 2001 was the application, and the
application bears his signature. This application was marked Exhibit
No.16. Then he stated: “The mention in the application that my mental
disease is increasing, I am required to be taken to Civil Hospital every after
7 days and the doctors had expressed possibility of affecting my mental
faculty marked as ‘A’ is incorrect. The mention in the application that I
was having this suffering since last 10 months marked as portion ‘B’ is also
not correct.” The witness then stated that these things were written in
the application, as the accused were giving him threats.
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27
The handwriting of the application is of his friend Ambadas Chavan,
who is from Akkalkot Taluka. The witness had stated that he felt like
approaching the police and telling them all these details after their
occurrence, but he had not gone to police because of the fear of the
accused.
18. The statement of the witness was recorded in the Court at
Solapur before the deposition. Police Officer Rasal had not taken him to
Solapur for that statement. He was taken to Solapur twice for recording
his statement, and on both occasions, Police Officer Rasal was not with
him. It was true that Police Officer Rasal was the Investigating Officer
of the case. He did not feel that he would face trouble if he did not
depose as per the statement he made before the Court at Solapur. Then,
following improvements were pointed out: “ It is true that I had deposed
in the Court as per my statement which was recorded in the Court at
Solapur. I do not remember if I had stated before the Court at Solapur
while giving the statement that when the truck had stopped at the dhaba
Mahesh Bagal had asked Lobhe to stop the trax in front of the truck at
some distance from it. I cannot give any reason why this is not noted
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28
down in my statement recorded by the Court at Solapur. It is not there in
my statement even before the Court that the trax had stopped in front of
the truck at some distance from it. While giving the statement before the
Court I had told that after about 10 to 15 minutes Mahesh Bagal and
Ranjit Deshmukh had returned and told myself and Vishnu Adlinge that
the driver and cleaner had taken meals and gone to sleep in the truck.
These things are not noted down in my statement in this particular way. It
is not noted down in my statement recorded by the Court at Solapur that
myself and Vishnu remained awake and others had slept in the trax.
Witness states that he had stated these things before the Court as he
remembered the details. While giving the statement before the Court at
Solapur I had stated that myself and Vishnu Adlinge had woken up all of
us. I cannot give any reason how this is not noted down in my statement.
I had told that after we had climbed in the truck Lobhe had taken the trax
towards Barshi. I cannot give any reason why this is not noted down in
my statement. While giving the statement before the Court at Solapur
I had said that Pintu Harihar and Vishnu Adlinge had caught the cleaner.
He had scuffled for freeing himself. He was held by pressing him down.
Ranjit Deshmukh and Mahesh Bagal had placed the noose around the neck
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29
of cleaner and tightened the rope. I cannot give any reason why these
details are not noted down in my statement recorded by the Court. While
giving the statement before the Court at Solapur I had not stated that the
tempo was stopped near Railway Colony. I do not remember if I had
stated while giving the statement before the Court at Solapur that on
reaching Kurduwadi members of my family scolded me and told that I may
appear before the police. I cannot assign any reason why this is not noted
down in my statement. I do not remember if I had stated while giving the
statement before the Court at Solapur that I was arrested while I was
sitting at one dhaba at Pandharpur. I cannot give any reason why this is
not noted down in my statement.”
19. The father of this witness was working in railway, but it was
not true that police threatened him that if he did not depose, his father
would lose his job. Police did not assure him that they would assist him
in performance of the marriage of his sister. He had not yielded to any
pressure from any police personnel. He had not given a false statement,
and had not been given any assurance by the police. The number of the
case was 2/2001. The number was noted on the jail warrant and the
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30
jail card. He did not know any other number of the case. He did not
know what offences were there under Sections 363 and 365 of I.P.C.
He was arrested for the offences under Sections 363, 365, 396, 397 and
120B of I.P.C. These sections are written on the jail card, which are
given to the prisoners on every Monday at the time of round by the Jail
Superintendent at Solapur. He had come to know of these sections in
jail at Solapur. He was in jail at Pandharpur for about 9 months. Then,
after he was shifted to Solapur, he came to know of these sections.
While he was in jail at Pandharpur, he had sent the application to
C.J.M., Solapur, saying that he was ready to become an accomplice.
There was mention of sections in this application. The crime number is
also mentioned therein. He knew the Judicial Magistrate and the Chief
Judicial Magistrate. The jailor at Pandharpur had told him about this.
Pandharpur Jail is located almost opposite to Pandharpur Taluka Police
Station. He was presented before the C.J.M. twice since the time of his
arrest till the time of recording his statement. He was produced before
the Court of J.M.F.C. Pandharpur on a couple of occasions. He did not
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remember if he was arrested on 8 August, 2000, but he remembered
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that it was the 8 month of 2000. He did not remember whether he was
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31
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remanded to police custody till 16 August, 2000. He did not know
whether P.C.R. was enhanced by two more days. He had read in
newspaper that Sainath Abhangrao was the President of Shiv Sena for
the district. It was true that he was the District President of Shivshakti
Sanghatana. He had never met him. He knew that he was an
influential man. It was true that after he was arrested, Police Officer
Rasal had asked him as to whom he would like to be informed about his
arrest. He had told him to inform the members of his family. It was not
true to say that he had told Police Officer Rasal to inform about his
arrest to Sainath Abhangrao. He did not know if Rasal had informed
Sainath Abhangrao.
20. The witness was produced before the Magistrate at Solapur by
the police from Pandharpur. On that day, his statement was not
recorded. He was brought back to Pandharpur Jail. He was taken to
Solapur for the second time by the police from Pandharpur. He was not
tortured by the police. He was not under pressure of the police. He was
not told by the police that they were sitting in the courthall, and if he
failed to depose as told, he would be implicated in another case.
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32
There were two policemen sitting in the courthall who were from Police
Station Pandharpur Taluka. They were sitting in plain clothes, and their
names were Hamid Shaikh and Balu Jadhav. When accused
Mahesh Bagal had said that “ game karaichi aahe” , he had not gone away
from that place. He had not told them not to do such things.
They were in a hotel at Jat for about half an hour to threefourth hour.
The cleaner had not raised any shouts in the hotel at Jat. Five hours
were required for the truck to reach Mahud. Many persons remained
there in the square at Mahud. It was not true to say that no incident as
deposed by him had taken place. He did not remember as to at what
time they had reached the dhaba near Mahisgaon. It might have been
about 11.00 p.m. when Mahesh Bagal and Ranjit Deshmukh had told
him and Vishnu Adlinge at that dhaba that the truck driver and cleaner
had taken the meals and had slept in the truck.
21. P.W. 2, Ashok Pannalal Jain, is the owner of the truck.
He stated that he purchased sugar from sugar factory on wholesale basis
and he was then transporting the sugar in his own trucks. He had two
trucks, one MH231061 and the other MH231188.
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Suresh @ Suryakant Chate was the driver of Truck bearing No.
MH231061. Surykant was working with him for four years. Balu was
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the driver of the other truck bearing No. MH231188. On 5 June,
2000, he had sent his truck, MH231061 for fetching 100 bags of sugar
from Pandharpur. The driver was Suryakant. Bandu was the cleaner on
the truck. Bandu used to work as a Hamal at his shop. Bandu had gone
with the truck, as the cleaner was not available. The witness came to
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know that sugar bags were loaded in the truck on 6 June, 2000. On 7
June, 2000, he waited for the arrival of the truck with sugar bags at
Parli Vaijinath between 10.00 to 11.00 a.m. He waited for the arrival of
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the truck throughout the day but it did not arrive till that night. On 8
June, 2000, he started in his car looking for the truck through the road
proceeding to Ambejogai, Kalamb, Karmala, Barshi and Kurduwadi. He
enquired at the dhaba near Mahisgaon about the truck, as it used to halt
there for the night. He was told that during the night, the truck halted
there, and left for Parali Vaijinath in the morning. On getting this
information, he started back towards Parli Vaijinath. Then, he informed
Narayandas Marda that he was told that the truck came up to that
dhaba, and thereafter, it was not traced. Therefore, he told Narayandas
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34
Marda to pursue the matter with the police. Narayandas told him that it
was late in the night, and, therefore, he would inform the police next
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day. On 15 June, 2000, he received a phone call from police that his
truck had been located near Mirajgaon in District Ahmednagar.
His brother went there, and obtained the custody of the truck. He did
not obtain the possession, as it was lying abandoned. The sugar bags,
which had been loaded in it, were not in the truck. The driver and
cleaner were also not present. The truck was then brought to the Police
Station Pandharpur Taluka. The witness went to Pandharpur and took
the truck in his custody. One bundle of rope of the length of 100 to 110
feet was there in the truck. The papers of the truck were also not there
in it. The waxcoated tarpaulin was also there in the truck. He had
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executed a bond before he got the custody of the truck. On 8 August,
2000, he was informed on phone by the police that the driver and
cleaner of the vehicle had been murdered. He brought the family
members of the driver and the cleaner to Pandharpur. The cloths of the
cleaner, which he was wearing while leaving Parli Vaijinath were shown
to him, but he could not identify them. He received 21 sugar bags from
Police Station Pandharur Taluka. Another 60 bags were received by
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35
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him. On 19 August, 2000, he received a phone call from Police Station
Pandharpur Taluka, asking him to get the rope bundle, which was found
earlier in the truck. He identified this bundle as Article 21.
Then, he was crossexamined, but nothing worthwhile, either
for the prosecution or the defence, could be elicited from him.
22. P.W. 3, Narayandas Harilal Marda, was a commission agent in
sale of sugar. Pannalal Jain & Sons from ParaliVaijinath was his
customer. It was the firm of Ashok Jain. He used to give the phone
calls, and thereafter, he used to send the truck. The witness used to
load the truck and send the sugar bags to their place. The firm,
Pannalal Jain, was having the truck. Its number was MH231061.
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Suresh was the driver of that truck. On 6 June, 2000, a truck had
arrived at Pandharpur for fetching the sugar bags. The draft had been
sent by the customer in the name of the sugar factory. He received the
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draft on 6 June, 2000 for Rs.2,72,620/ for 200 bags of sugar.
100 bags were loaded in the truck on that day from the sugar factory.
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In the evening of 7 June, 2000, he received a phone call from
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36
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Ashok Jain, informing that the truck had not reached. On 8 June,
2000, he, again, received a phone call that the truck had not reached,
and Ashok Jain had told him that although he went through the route of
the truck, he could not find the truck. The witness told Ashok Jain that
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the matter be reported to the police. On 9 June, 2000, he gave a
report to Police Station Pandharpur Taluka. He had informed the police
that 100 bags of sugar, truck, driver and cleaner were missing. He
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identified his signature on the report as Exhibit 22. On 16 June,
2000, he received a phone call from the police that the truck was
brought to Police Station Pandharpur Taluka, as it was found at
Mirajgaon. He was told that 20 bags of sugar were found. He took the
delivery of 20 bags of sugar from the police, and executed a bond in
favour of the police. He identified the signature on the bond as Exhibit
22.
23. P.W.4, Anantrao Udhav Ubale, was a panch witness when
5 bags of sugar were seized from Boleshankar Hotel of Village
Chinchgaon.
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24. P.W.5, Subhash Ajinath Shinde, runs a hotel styled as
“Bholeshankar Hotel” on Kurduwadi to Barshi road. He sells tea to
customers, and for preparing tea, he needs sugar. He purchases the
required quantity of sugar from Kurduwadi. One year to one and
onefourth years before, Ranjit Deshmukh had come to his hotel in a
Canter. By Canter he meant a tempo. Ranjit gave him 5 bags of sugar.
He sold the sugar at Rs.1250/ per bag. The witness purchased 5 bags
of sugar. One driver was driving the tempo, and, in all, four persons
were there in the tempo. Other persons were Mahesh Bagal and Maruti
Lobhe. After two months of the purchase of sugar, police came to the
hotel, and they enquired from him about the purchase, and he told them
that he had purchased 5 bags of sugar. Police seized 5 bags of sugar
from his hotel. Then, he learnt that the sugar was stolen property. He
was also put to crossexamination, but nothing worthwhile could be
elicited.
25. P.W.6, Suresh Bhanudas Mengade, was a panch witness when
10 bags of sugar were seized from the shop of Balu Maruti Dhavale.
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26. P.W.7, Balu Maruti Dhavale, runs a grocery shop in Village
Sade. He stated that the name of his maternal uncle was Nivrutti Lobhe.
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Maruti Lobhe was the son of his maternal uncle. In the 6 month of
year 2000, there was election in his village. He was contesting
that election. Early on the day of election, Maruti Lobhe had come to
him, and informed that he had obtained an agency for sugar, and if he
needed any sugar, he would supply it. Then the witness asked him
about the rate. Maruti told him that it would be Rs.1300/ per quintal.
Then he asked him to bring the sugar, and he would purchase it. He got
busy with the election. Maruti Lobhe brought 5 bags of sugar each to
his grocery shop by making two trips in his jeep. The number of the
jeep was MH129637. Some stock of sugar was already there in his
shop. After about a month, the police from Police Station Pandharpur
Taluka came to his shop. They made enquiries about Maruti Lobhe. In
that enquiry, the witness told the police that he had purchased 10 bags
of sugar at the grocery shop. Police informed him that the sugar was
sold to him by Maruti after committing robbery. Police seized 10 bags
of sugar, and took them to Pandharpur. Seizure panchnama was made,
and his signature was also obtained.
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27. P.W. 8, Appasaheb Ranganath Kapare, is a panch witness to
the recovery of sugar at the shop of P.W. 7.
28. P.W. 9, Mahindra Hukumchand Shah, is another grocery shop
owner. He sells sugar, rice, oils, etc. In June, 2000, Ranjit Deshmukh
came to his shop in a tempo, and asked him to keep 10 bags of sugar in
his shop, as he was not having any tarpaulin to cover the sugar bags.
The witness kept 10 bags of sugar in his godown. Ranjit Deshmukh did
not come back to get back the sugar. He made enquiries about
Deshmukh, and came to know that Deshmukh was not in his village,
Bhose. In the meantime, he sold three bags of sugar. He kept the
money with him, so that it could be handed over to Ranjit Deshmukh.
In the month of August, 2000, police from Police Station Pandharpur
Taluka came, and he told them that he had received 10 bags of sugar
from Deshmukh and had sold three bags. He had reached 7 bags to the
police. He was also put to crossexamination, but nothing worthwhile
could be elicited.
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29. P.W.10, Shital Ratanchand Shah, submitted that his cousin,
Mahindra Shah, had got a grocery shop. Ranjit Deshmukh and Mahesh
Bagal kept some sugar in the shop of my brother. About a year passed
since that incident. Ranjit told me that he was not having tarpaulin, and
the sugar might get wet. Five sugar bags were kept in the shop. In the
month of August, 2000, police came to the shop. He was informed that
the sugar was stolen property, and the same was seized.
30. P.W. 11, Tanaji Maruti Mali, sells sweetmeat in his shop. It is
admitted that Adlinge is his aunt. She resides in Kurduwadi. Vishnu is
the son of his aunt. In the month of June, 2000, Vishnu came to his
house and asked him whether he could purchase sugar. He said that his
friend had an agency in sugar. He told him that he was ready to
purchase sugar, as the rate quoted was Rs.1300/ per quintal, which was
low. Therefore, he purchased sugar at the rate of Rs.1300/ per bag
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from him. On 9 August, 2000 police from Police Station Pandharpur
Taluka had come to him. They searched his house, and found 5 bags of
sugar. He had utilised four bags, as he had purchased, in all, 9 bags.
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31. P.W. 12, Popat Sitaram Lokare, again, has a shop. In June,
2000, Mahesh Bagal had come to him with Gurudev Patil. They told
him that something wrong had gone with their truck, and they needed
money, so that the truck could be repaired. They demanded Rs.10,000/
to 15,000/. They also told him that if he was interested, he could
purchase sugar for this amount. The rate was fixed at Rs.1300/ per
100 Kg. He purchased 10 bags of sugar at Rs.1300/. After some days,
it was also recovered by the police.
32. P.W. 13, Anandrao Ramdas Aarkile, was witness to the
disclosure statements made by Mahendra Shah, who had produced
7 bags of sugar and three empty bags, and Fadatare, who had produced
two bags of sugar and three empty gunny bags.
33. P.W.14, Kakasaheb Baburao Gurade, was the witness to
recovery of rope.
34. P.W. 15, Suryakant Jagannath Pawar, was, again, witness to a
panchnama regarding 5 bags of sugar.
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35. P.W. 16, Vijay Bharat Kashid, is, again, a shopkeeper. In the
sixth month of 2000, Dhaigude and Lobhe came to his shop, and asked
him if he wanted to purchase sugar, as they had got an agency.
He purchased 8 bags of sugar from them for Rs.1200/ per quintal. He
gave them Rs.9600/. Then, sugar was brought by them in a traxjeep.
Then, police, after two months, recovered the sugar, and informed him
that it was a stolen property.
36. P.W. 17, Nivrutti Jagannath Jagtap, also is a shopkeeper.
Mahesh Bagal brought sugar to his shop, and informed that he was
selling sugar on commission basis. He purchased 5 bags at Rs.1110/.
After about 15 days, police came, and recovered the same, and informed
him that it was a stolen property.
37. P.W. 18, Popat Gajendra Khadul, is also a shopkeeper, but he
is a witness to some panchnama of sugar.
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38. P.W.19, Rajendra Vishwambhar Tupe, is also a witness to the
panchnama of seizure of sugar.
39. P.W. 20, Prashant Hanmnt Sutar, again, is a witness to seizure
of 8 bags of sugar from the shop of one Deokate.
40. P.Ws. 21 and 22, Raju Bira Padvalkar and Raosaheb Udhav
Thore, respectively, are also panch witnesses to the seizure of sugar
from various shopkeepers.
41. P.W. 23, Navnath Machindra Varkute, is another shopkeeper.
He said that Maruti Lobhe came to him and offered sugar at the rate of
Rs.1300/ per quintal. He purchased one bag from him for Rs.1300/.
After a month, police came and recovered it.
42. P.W. 24, Uttareshwar Pralhad Sutar, also purchased sugar at
the rate of Rs.1300/ a bag from Maruti Lobhe and then, it was
recovered after some time by the police.
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43. P.W. 25, Suresh Mahadeo Phadatare, said that Ranjit
Deshmukh came to his shop and offered him sugar at the rate of
Rs.1300/ per bag. He purchased 5 bags from him. After some time,
police came and recovered three bags from his shop. Two bags were
already sold by him.
44. P.W. 26, Dipak Bhanudas Deokate: Sugar was offered to him
by Maruti Lobhe and Kumar Dhaigude. He purchased two bags of sugar
at Rs.1200/ per bag and police recovered these bags also after some
time.
45. P.W. 27, Babaji Narayan Dhotre, has been witness to
disclosure having been made by Pintu Maruti Harihar with respect to
two pieces of tarpaulin, which were then recovered on the disclosure of
the accused by the police.
46. P.W. 28, Prashant Damodhar Sonawane, was a witness to
disclosure having been made by accused Bagal about a knife. This
recovery was made from accused No.1. In his examinationinchief, he
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45
stated that when he reached the police station, one more accused i.e.
P.W.1, Shinde, was present.
47. P.W. 29, Jotiba Pandurang Chandanshive, was witness to
disclosure by Mahesh Bagal with respect to the rope.
47A. P.W. 30, Gulab Bhau Chabukswar, was witness to the visit of
police to the house of Navnath Varkute in Village Shirala. Navnath
Varkute had produced a bag containing sugar. The weight of the bag
was around 50 Kg.
48. P.W. 31, Raosaheb Sopan Shelke, is another important
witness. He stated that his wife’s name was Jayashree Shelke. She was
from Village Varkute. Her cousin brother Santosh Shinde resided at
Kurduwadi. About a year and a half before when he was sleeping in his
house, Santosh Shinde came to his house in the night at about 2.30 a.m.
And asked him that he might be allowed to keep the bags containing
sugar at his place, as it was raining. He told him that he could keep the
sugar bags in the cattle shed. Accordingly, Santosh Shinde kept the
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bags containing sugar in the cattle shed. Santosh Shinde, Pintu Harihar
and five to six others, whose names he did not know, had unloaded the
bags of sugar from the vehicle. The bags containing sugar were about
80 in number. While they were unloading the bags, he returned to his
bed and went to sleep. In the morning, a tempo was brought there and
sugar bags were taken away. The tempo was brought at 5.00 to
5.30 p.m. and it departed from his place after loading sugar at about
7.00 p.m. He was present when the sugar was being loaded in the
tempo. He asked Santosh as to whose sugar it was. He told him that
sugar was of his friend, and they were taking it away. Santosh Shinde,
Pintu, Ranjit and some others were there. He could identify those
persons by looking at their faces. They were sitting in the courthall on
the bench. They had kept one bag of sugar at his house. Police arrived
in the village. His statement was recorded by the police. He did not
know how Santosh Shinde brought those bags of sugar to his house. He
also admitted in crossexamination that his statement had been recorded
by the Magistrate.
49. P.W. 32, Bajirao Sandipan Shinde, submitted that he had
purchased a jeep bearing Registration No. MH12W9637 in 1996. This
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vehicle was financed, and he had to pay monthly instalments of
Rs.7,500/ each. As he could not pay the instalments, after some time,
Rs.60,000/ were due. Therefore, he decided to dispose of the vehicle.
He sold ultimately the vehicle to Maruti and Nagnath Lobhe for
Rs.1,90,000/. Rs.1,00,000/ were received in cash and Rs.30,000/
were to be paid after two months. Outstanding of Rs.60,000/ towards
the finance company had also to be paid by Lobhe. These terms and
conditions were written down on stamp paper of Rs.10/. Maruti and
Nagnath Lobhe had given him cash of Rs.1,00,000/ and he had given
them possession of the vehicle. He identified Marui Lobhe in the court
hall.
50. P.W. 33, Prakash Asaram Kamble, is a Medical Officer. He
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performed the postmortem on 9 June, 1980 on the body of an
unknown male. He found following injuries:
(i) Abrasion on both hands at the wrists inconcurrently, size
of the injury was about 2 cms in width;
(ii) Abrasion over the left leg, just below the ankle joint on
anterior surface, size of the injury was 4 cms x 2 cms, it was
transverse;
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(iii) Blackish mark below the thyroid cartilage, transversely
placed, size of the injury was 8 cms x 2 cms, subcutaneous
haemorrhagic fluid was seen;
(iv) Blackish discolouration over the chest.
He submitted that the injuries caused were within 24 hours before
death.
51. P.W. 34, Shivaji Shankar Deokar, again, is a witness to whom
the sugar was sold by Ranjit Deshmukh at the rate of Rs.1250/ per
quintal. It was later on seized by the police.
52. P.W. 35, Bhimrao Namdev Ubale, was a police head constable
who made enquiries in unnatural death bearing A.D. No. 42 of 2000.
He recorded statements of four witnesses, caused a photo of the dead
body to be taken and sent a report to the Police Inspector Jat.
53. P.W. 36, Dilip Shaharao Phadake, is a tempo driver working
as driver of Chandrakant Hanumant Sutar. On many occasions, he was
engaged by Mahesh Bagal, Ranjit Deshmukh, Maruti Lobhe, Subhash
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Dhaigude and Pintu Harihar to lift jawar from one place to another. On
one occasion, he was told by Mahesh Bagal that jawar was to be brought
from Karmala and carried to Chinchgaon. The hire charges of Rs.900/
were fixed. He obtained an advance of Rs.350/. He was told to wait at
the check post at Kurduwadi. He accordingly reached the check post.
Three coolies were made to get in his tempo. Vishnu Adlinge had come
with me. As per the direction of Mahesh Bagal, he had taken the tempo
on Karmala Road. They reached up to Khambewadi. There was a
locality by the side of the road. He parked the tempo for loading jawar.
Persons from that vasti asked him to come for meals. He went in one
house and took the meals. Mahesh Bagal, Ranjit Deshmukh and some
others were there. He alone had taken the meals. Others were loading
the tempo. After taking the meals, he came out near the tempo. He
found that the bags loaded in the tempo were not jawar bags but were
sugar bags. He asked Mahesh Bagal how he loaded the bags containing
sugar when he was told that he had to transport the bags containing
jawar. He told Mahesh Bagal that he would not carry the bags
containing sugar but Mahesh Bagal threatened. One tyre of tempo got
punctured at that place. He removed that punctured tyre and fitted
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another good tyre there. He had come to Barshi Naka with the tempo.
Mahesh Bagal and a couple of others got in his tempo and they had
gone to the shop of Shrikrishna Tyre at Chinchgaon. Ten bags of sugar
were taken there. He slept in the cabin of the tempo. Next day, he was
told to take the tempo towards Paranda. He took to Paranda and
stopped near a college. Some bags were taken away from the tempo by
loading them in a jeep, and he was told to wait at Vaishali Dhaba. He
accordingly waited there. When we reached Vaishali Dhaba, it was
raining. He slept in the cabin of the tempo. Next day, he brought the
tempo at the shop of Phadatare at Madha. Five bags were unloaded in
the shop of Phadatare. They had gone to the shop of one Shah. Ten
bags were unloaded for Shah and five bags were unloaded for his
brother. They had come to Modnimb. Nine bags were given to one
Mali. They went to Wangarwadi. Twenty bags were unloaded there for
one trader. We came back to Kurduwadi. Five bags each were taken
away through the jeep. He was given the hire charges of Rs.2300/.
Then, he took the vehicle to the house of his master. Whenever the
sugar bags were unloaded from his tempo, some men stayed with him,
so that he would not run away.
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54. P.W. 37, Subhash Baburao Jadhav, was witness to seizure of
traxjeep.
55. P.W. 38, Bajarang Babu Chavan, was a panch when the dead
body was recovered from near a Babul Tree in Village Khairav.
56. P.W. 39, Babasaheb Dattu Borkar, was the cook in Saiprasad
Hotel, where a large number of truck drivers stayed and ate meals. He
said that the truck in question had arrived at about 9.30 p.m. He took
meals and slept in the truck. He did not know the cleaner, because he
was not usually coming with the truck. The driver was wearing a
Shando baniyan and dirty pants. The cleaner was wearing a shirt and
dirty pants. He woke up the driver at about 4.00 a.m. He left the hotel
with the truck. The truck was loaded with sugar. After one day, the
owner of the truck had come to the hotel, and enquired from me about
the truck.
57. P.W. 40, Ramesh Bibhishan Sarvade, is the owner of a pan
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shop, which remains open for 24 hours. On 6 June, 2000, the truck
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driver came and told him that his truck was loaded with sugar and his
truck had got punctured at Kurduwadi, and, therefore, he was late. One
cleaner was with him. He did not know the cleaner, because he was not
the usual cleaner. This pan shop was just near the hotel. He also told
that after finishing the meals, the driver and cleaner slept in the truck
and left in the morning.
58. P.Ws. 41 and 42, Dhanraj Sampati Chate and Rambhau
Sheshrao Badane, respectively, are not important.
59. P.W. 43, Shirish Dattatraya Chavan, is a villager, who said
th
that there was Grampanchayat Election on 9 June, 2000. At about
10.00 a.m., he had gone to Maloli for casting his vote. While returning
towards land at about 11.30 a.m., Sayaba Ghorpade and Mahada Magar
were with him. He noticed a dead body in the bushes of Mahananda on
the Western side of Ghumerga Bridge. The bridge is on one nala . The
dead body was of a man of the age of 25 to 30 years. There was an
injury on the head of the dead body. Blood was oozing from the
nostrils. Earlier day he heard that a tempo met with an accident near
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the bridge. The trees and bushes at the place of dead body were quite
thick. He thought that the man was killed in the accident of the tempo
and he accordingly informed the police at Police Station Velapur. They
reduced to writing his information.
60. P.W. 44, Chandrakant Hanmant Sutar, is the owner of vehicle
Tata709. He was driving the vehicle himself. In year 2000, his vehicle
was taken to Kolhapur. It was taken by some persons after fixing the
hire charges with the driver. Some sort of incident occurred and he was
called to the police station. Police obtained his vehicle in their custody.
After about 8 days, the vehicle was given in his possession. At that time,
a writing was obtained from him on a stamp paper.
61. P.W.45, Janardhan Rama Madane, stated that he was working
as a labourer. He had two sons and one daughter. He stated that two
years before when he was taking his son to hospital, he came to Maloli
to Akluj Road at about 7.00 a.m. for catching a bus. One tempo used for
the carriage of milk arrived there from Salmah. He and his son, Vitthal
Magar, got into that vehicle. The tempo proceeded in the direction of
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Akluj. When they reached up to Chumera Nala (Odha), the driver said
that the steering of the tempo got locked. The tempo fell from the
bridge. He sustained injuries on his limbs and his son, Vitthal, also
sustained injuries. He went to Police Station Velapur, and reported the
matter there. Police had written his report and obtained his signature.
62. P.W. 46, Vitthal Bhagwan Magar, was also in the tempo, to
which a reference is given by P.W. 45. The driver told that something
had gone wrong with the steering. The vehicle fell in the nalla. He and
other occupants of the vehicle sustained injuries. However, he came
on the road, and got into another tempo used for carrying milk and
came up to Velapur. The police sent us to the hospital. Nothing more
happened in the accident.
63. P.W.47, Samadhan Ramchandra Sule, also is a witness to the
incident of Tempo bearing Registration No.MH12B805.
64. P.W.48, Chandrakant Bajarang Pokale, also is a witness with
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respect to the accident of the tempo. On 9 June, 2000, one
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Shirish Dattatraya Chavan came to police station, Velapur. He informed
that the dead body of a male was lying in the bushes of Mahanandi by
the side of Ghumera Bridge. He said that the dead body was of a man
involved in the accident. He recorded statement of Shirish Dattatraya
Chavan. The witness went to that place and saw the dead body. He
had effected an inquest thereupon. The inquest bearing his signature
was Exhibit 125.
64A. P.W. 49, Shirish Shankarrao Bhosale, a Clerk in the Accounts
Section of Vitthal Cooperative Sugar Factory, received money from a
person who purchased 200 bags of sugar.
65. P.W. 50, Bhagwat Jalinder Kadam, is also a witness to the
same transaction.
66. P.W. 51, Nagnath Rajaram Gund, is also a witness who
testified that he had issued the Gate Pass to the truck in question for
taking out 200 bags of sugar.
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67. P.W. 52, Mansukh Babu Sayyad, is a security man, who also
testified that the truck in question had carried 200 bags of sugar on the
relevant date.
68. P.W. 53, Balasaheb Sadashiv Mhetre, is a photographer, who
took the photographs of the dead body.
69. P.W. 54, Anil Shripati Khot, took the viscera in a sealed
condition to the C.A.’s Office.
70. P.W. 55, Suresh Sundar Ghodake, was a panch witness to the
seizure of the truck.
71. P.W. 56, Yaqub Shaikur Pimpri, P.S.I., registered Crime No.
99 of 2000, and did some investigation in the case.
72. P.W. 57, Dharmraj Dagadu Ombase, was the A.P.I., who also
conducted the investigation in the matter.
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73. P.W. 58, Ravindra Manikrao Rasal, was also A.P.I., for
sometime, and also conducted the investigation. This witness assumes
some importance, because the prosecution has challenged the testimony
th
of P.W.1 as an approver. This witness said that on 19 August, 2000, he
sent Santosh Shinde before the Chief Judicial Magistrate, Solapur, on
getting permission from J.M.F.C., Pandharpur. He was sent through
police escort from Police Station, Pandharpur Taluka. The defence
th
counsel submitted that according to this witness on 19 August, 2000,
the accused was in judicial custody in a jail. How was the custody of
this person obtained by the policeman, so that he could be produced
before the Magistrate? He stated in his statement that he obtained
permission of J.M.F.C. In crossexamination, he was asked to produce
such permission.
74. P.W. 59, Dr. Ashok Shankar Randive, is another doctor, who
conducted the postmortem of another dead body. He gave his report,
Exhibit 127. According to him, the cause of death was strangulation.
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75. The appellants have relied upon a judgment of the Supreme
Court in Sheshanna Bhumanna Yadav v. State of Maharashtra , reported
in AIR 1970 S.C. 1330. In paragraph 12, the Supreme Court held as
under:
“The law with regard to appreciation of approver’s evidence
is based on the effect of Sections 133 and 114 illustration
(b) of the Evidence Act, namely, that an accomplice is
competent to depose but as a rule of caution it will be unsafe
to convict upon his testimony alone. The warning of the
danger of convicting on uncorroborated evidence is
therefore given when the evidence is that of an accomplice.
The primary meaning of accomplice is any party to the crime
charged and someone who aids and abets the commission of
crime. The nature of corroboration is that it is confirmatory
evidence and it may consist of the evidence of second
witness or of circumstances like the conduct of the person
against whom it is required. Corroboration must connect or
tend to connect the accused with the crime. When it is said
that the corroborative evidence must implicate the accused
in material particulars it means that it is not enough that a
piece of evidence tends to confirm the truth of a part of the
testimony to be corroborated. That evidence must confirm
that part of the testimony which suggests that the crime was
committed by the accused. If a witness says that the accused
and he stole the sheep and he put the skins in a certain
place, the discovery of the skins in that place would not
corroborate the evidence of the witness as against the
accused. But if the skins were found in the accused’s house,
this would corroborate because it would tend to confirm the
statement that the accused had some hand in the theft.”
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The law is clear that even on the evidence of accomplice alone,
conviction can be made, but as rule of prudence, the Courts have to
insist on corroboration.
76. In Bhiva Doulu Patil v. State of Maharashtra , reported in AIR
1963 S.C. 599, while interpreting Section 133 of the Evidence Act,
1872, the Court held:
“It cannot be doubted that under that section a conviction
based merely on the uncorroborated testimony of an
accomplice may not be illegal, the courts nevertheless
cannot lose sight of the rule of prudence and practice which
in the words of Martin B. in R. v. Boyes , (1861) 9 Cox CC 32
‘has become so hallowed as to be deserving of respect’ and
the words of Lord Abinger ‘it deserves to have all the
reverence of the law’. This rule of guidance is to be found in
illustration (b) to S. 114 of the Evidence Act which is as
follows:
‘The court may presume that an accomplice is unworthy of
credit unless he is corroborated in material particulars’.
Both sections are part of one subject and have to be
considered together. The Privy Council in Bhuboni Sahu v.
The King , 76 Ind App 147: (AIR 1949 PC 257) when its
attention was drawn to the judgment of Madras High Court
in In re Rajagopal ILR (1944) Mad 308: (AIR 1944 Mad
117) where conviction was based upon the evidence of an
accomplice supported by the statement of a coaccused said
as follows:
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‘Their Lordships would nevertheless observe that
Courts should be slow to depart from the rule of prudence,
based on long experience, which requires some independent
evidence implicating the particular accused. The danger of
acting upon accomplice evidence is not merely that the
accomplice is on his own admission a man of bad character
who took part in the offence and afterwards to save himself
betrayed his former associates, and who has placed himself
in a position in which he can hardly fail to have a strong bias
in favour of the prosecution; the real danger is that he is
telling a story which in its general outline is true, and it is
easy for him to work into the story matter which is untrue.’
7. The combined effect of Ss. 133 and 114, illustration (b)
may be stated as follows: According to the former, which is
a rule of law, an accomplice is competent to give evidence
and according to the latter which is a rule of practice it is
almost always unsafe to convict upon his testimony alone.
Therefore though the conviction of an accused on the
testimony of an accomplice cannot be said to be illegal yet
the Courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration in material
particulars. The law may be stated in the words of Lord
Reading C.J. in R. v. Baskerville , 19162 KB 658 as follows:
‘There is no doubt that the uncorroborated evidence of an
accomplice is admissible in law (R. v. James Atwood, (1787)
1 Leach 464). But it has been long a rule of practice at
common law for the judge to warn the jury of the danger of
convicting a prisoner on the uncorroborated testimony of an
accomplice, and in the discretion of the Judge, to advise
them not to convict upon such evidence, but the judge
should point out to the jury that it is within their legal
province to convict upon such unconfirmed evidence ( R. v.
Stubbs , (1855) Dears C C 555; in re, Meunier , 18942Q.B.
415)’.”
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77. The testimony of P.W.1 is not challenged by the defence as
wholly unreliable, but it has been pointed out by the defence that there
are certain omissions and there are certain contradictions, and his
testimony is not corroborated in material particulars. The instances
given by the defence are:
“(i) PW1 in his evidence at pages No. 102 and 104 states
that the tyre of truck got punctured and was taken for
repairing in one shop. On page 105 of his evidence he states
that the diesel was filled at one petrol pump. On page 104
he states that the truck halted at hotel for taking meal where
the waiter was abused and beaten. But not any person from
the shop, petrol pump or hotel is examined to corroborate
P.W.1 Santosh Shinde.
(ii) PW1 on page 106 of his evidence states that initially the
accused persons took the truck to Bhogewadi where the
maternal uncle of accused No.1 Mahesh resides for keeping
sugar bags. But said uncle is not examined by prosecution.
(iii) PW1 on page 106 of his evidence states that he went to
his uncle PW 31 Raosaheb Shelke for keeping sugar bags.
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He said to his uncle that it might rain. Hence bags might be
kept there. On the contrary, Raosaheb says that it was
raining. PW1 further says that the truck is required for Varat
which is not corroborated by PW 31 Raosaheb.”
78. To the first point, we do not find that by not getting a witness
from the establishment, petrol pump or hotel, the testimony of P.W.1,
Santosh Shinde, cannot be accepted, as his story has been supported by
almost 30 witnesses and almost each bag of sugar has been recovered at
the disclosures by accused. This testimony is supported by a close
relation of one of P.W. 1. One witness, who is the husband of cousin of
one of the accused, testified categorically that the accused persons had
gone to his house at 2.00 a.m. in the night, and stored the sugar in his
cattle shed. Similarly, the nonproduction of maternal uncle of accused
No.1 would not be vital to the case, as there is ample evidence to
suggest that the sugar was taken from the truck, it was sold to the
person and money was received.
At (iii) above, it is stated that there is contradiction. Similar is
the answer to the objection raised at (iii) above.
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Therefore, we do not find any material contradiction between
the testimony of the witnesses and the accomplice, which would in any
way discredit the case of the prosecution.
79. Another ground to challenge the prosecution story was that
according to the approver, one of the deceased died about 36 hours
prior to conduct of his postmortem , whereas the doctor found that the
death occurred 24 hours prior to the postmortem . The doctor’s view in
this matter cannot be accepted as conclusive proof about the time of the
death of the deceased.
80. In material facts, we find that the approver’s evidence is
sufficiently corroborated by testimony of other witnesses and recovery
made at the disclosure of the accused persons.
81. Another confusion was sought to be created on the basis of
testimony of some of the witnesses. It appears that an accident had
taken place around the same date when this occurrence took place at a
place where the body of one of the deceased was thrown.
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The learned senior counsel appearing for the appellants has submitted
that the body found was, perhaps, the body of a person who suffered the
accident in a tempo, and he relies on the testimony of P.Ws. 45, 46 and
47. P.W.45, as stated earlier, submitted that he suffered an accident,
but he never said that anybody had died in the accident. Similarly, P.W.
46 was also in the tempo, and some of them who were in the tempo
suffered injuries, but he had categorically said that nothing had come on
record, except that this accident had happened there. P.W.47 also does
not say that anybody died in such an accident, although there appears to
be some confusion when the deposition of P.W.47 is taken into
consideration when he submitted that there was an accident, he went to
the police and he made an inquest on the dead body of the person who
died in the accident, because the dead body was found on the basis of a
report given by a person who had seen the dead body. In order to
connect this dead body to the accident of the tempo, the evidence had
to show who was the person in the tempo who died. Persons who
travelled in the tempo were all alive, and persons who travelled in the
tempo deposed that nobody out of them died, although there was an
accident.
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82. The learned counsel for the appellants has also argued that
safeguards under Section 306 of the Criminal Procedure Code were not
adhered to, and, therefore, there has been a miscarriage of justice.
In this connection, he relies on a judgment of the Supreme Court in
Suresh Chandra Bahri v. State of Bihar , etc., etc., reported in 1965 S.C.C.
(Cri) 60. In paragraph 30, the Supreme Court analysed the section and
ultimately held:
“The object and purpose in enacting this mandatory
provision is obviously intended to provide a safeguard to the
accused inasmuch as the approver has to make a statement
disclosing his evidence at the preliminary stage before the
committal order is made and the accused not only becomes
aware of the evidence against him but he is also afforded an
opportunity to meet with the evidence of an approver before
the committing court itself at the very threshold so that he
may take steps to show that the approver’s evidence at the
trial was untrustworthy in case there are any contradictions
or improvements made by him during his evidence at the
trial. It is for this reason that the examination of the
approver at two stages has been provided for and if the said
mandatory provision is not complied with, the accused
would be deprived of the said benefit. This may cause
serious prejudice to him resulting in failure of justice as he
will lose the opportunity of showing the approver’s evidence
as unreliable. Further clause (b) of subsection (4) of
Section 306 of the Code will also go to show that it
mandates that a person who has accepted a tender of pardon
shall, unless he is already on bail be detained in custody
until the termination of the trial.”
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We have not seen in this case anywhere that these safeguards were not
kept in mind.
83. Therefore, we have no doubt in our mind that the conviction
under Section 364 read with Section 34 and Sections 396, 201 and 414
read with Section 34 of the Indian Penal Code was not misplaced.
The prosecution has been able to prove the case beyond shadow of
doubt against the accused persons. Therefore, the conviction and
sentence are upheld. The appeals are dismissed.
BILAL NAZKI, J.
A.R. JOSHI, J.
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