1983 Supreme(Bom) 204

BOMBAY HIGH COURT
P. S. Shah and H H. Kantharia, JJ.
The State of Maharashtra - Appellant
versus
Dada Nandram Korde - Respondent
Confirmation Case No. 2 of 1983
Dada Nandram Korde - Appellant
versus
State of Maharashtra - Respondent
Criminal Appeal No. 187 of 1983
Both Decided on 4 and 5-8-1983
Sh. S.R. Chitnis with Sh. S. V. Deshmukh and Sh. Niteen Pradhan, Advocates-For the Accused/ Appellant.
Smt. Ranjana Desai, Advocate - For the State/Respondent.

Headnote:(i) Indian Penal Code 1860, Section 302 and Indian Evidence Act 1872, Section 27 - Accused convicted for murder of his wife under Section 302. Indian Penal Code and sentenced to death by Sessions Court -Accused has appealed to the High Court and the State has sought confirmation of death sentence.

       Question

       Was the blood - stained axe concealed by the accused and has it been discovered at his instance? (Yes)

       Held the evidence of the panch and Dy. S.P. Dhiware coupled with the recitals in the memorandum of the accused read as a whole clearly establish that it was the accused who had concealed the axe and was instrumental in its discovery. (Para 14)

       Further held the absence of any earth or leaves on the blade of axe inspite of heavy rains does not cast doubt on the genuineness of the discovery evidence. The consequence of mud and leaves getting stuck on axe would depend upon where axe is kept the portion in which it is kept, the nature of soil and the manner in which and the place where it is found concealed. (Paras 14 and 15)

       (ii) Indian Evidence Act 1872, Section 24-Extra Judicial Confession of Accused - Delay in recording confession by witness.

       Question

       Does delay in recording extra-judicial confession made to witness make its veracity questionable? (No)

       Held the evidence of the witness regarding his conversation with the accused is clear and unambiguous. The witness had no animus against the accused and no reason to falsely implicate him. The witness being in Government Service, may be disinclined to get involved in the process of investigation of the case. This probably explains his conduct in not disclosing the extra-judicial confession to others till his statement was recorded by the police. The mere delay of one day in recording the statement cannot be a ground for rejecting his testimony. We however reject the defence of the accused that the witness had misunderstood what the accused was murmering. (Para 19)

       (iii) Indian Evidence Act 1872, Section 106 - Alibi of accused for time of occurrence - Burden of proof on accused.

       Question

       Has the accused succeeded in proving his alibi? (No)

       Held there are fatal discrepancies in the testimony of the witness proving the alibi of the accused. The witness testified that the accused was wearing shirt pajama and cap when he reported for work on night of occurrence. There is abundant evidence to prove that the accused was wearing only shirt and under pant the next morning. The accused has not said that he took off his pajama and cap before he proceeded to the monastery after witnessing the ghastly scene. Further in his testimony the witness had said that the cattle shed was urgently required because his she buffaloes were to deliver and in cross-examination he admitted that only one of his cows was pregnant. The so called urgency appears to be clearly a make believe story to buttress the plea of alibi. The accused has failed to prove his plea of alibi. 'In our view the accused has set up a false plea of alibi merely with a view to show that he was not in the house at the time of incident. (Para 18)

       (iv) Indian Penal Code 1860, Section 302 - Conviction based on Circumstantial Evidence-Probity of Evidence required.

       Question

       Do all the circumstances of the case point only to the guilt of the accused? (Yes)

       Held the circumstances proved by the prosecution are of an incriminating character and cannot be explained on any hypothesis except the guilt of the accused. The indicting circumstances are the discovery of the blood stained axe at the instance of the accused, the evidence of last seen together, presence of the accused at the time of incident and a false plea of alibi being set by him. (Paras 26 and 27)

       (v) Indian Penal Code 1860, Section 302 and Criminal Procedure Code 1973, Section 316-Death sentence whether to be confirmed.

       Question

       Should the Session Courts sentence of death be confirmed? (No)

       Held we do not think that the facts of the case justified imposition of extreme penalty of death. The case rests purely on circumstantial evidence. This does not appear to be a case of pre-planned or pre-meditated murder. The record shows that the accused had a sick mind and even during trial he had to be admitted to mental hospital for treatment. Having regard to these extenuating circumstances we think that this case calls for the lesser sentence of life imprisonment. (Para 29)

       Result

       Though the appeal of the accused against conviction is dismissed, but confirmation of death sentence is rejected and death sentence reduced to life imprisonment. (Para 29)