TUKARAM RANGRAO WAZE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India also read with section 482 of the Criminal Procedure Code takes exception to the order dated 10th October, 1986 passed by the Assistant Sessions Judge, Kolhapur in Sessions Case No. 61 of 1985. By that order the learned Judge rejected the application of the present petitioner as the accused No. 1 in the Sessions case, praying that pardon be tendered to him, upon his undertaking to make full and complete disclosure of the entire facts of the case and which would be helpful since he was supposed to be a person directly concerned in the offence under trial, for the purpose of obtaining the evidence in that behalf.

(2.) AN application in this behalf was made by the petitioner accused No. 1 on 31st January 1985, after charge against him and the four remaining accused persons came to be framed on 13th December, 1984. It may be mentioned here that out of the remaining four accused persons only the accused Nos. 2, 4 and 5 are present before the Court as respondents and though the accused No. 3 is also impleaded as respondent No. 3, he has still not come to be served with the notice of the present petition. This is for the reason that the notice of this petition has not come to be served on him till this date. As such, learned Counsel Shri Sakhare appearing for the petitioner passed a purshis, with a request that the name of the accused No. 3 as respondent No. 3 be deleted from the petition.

(3.) AFTER this application under section 307 of the Criminal Procedure Code was filed by the petitioner, the learned Assistant Sessions Judge called for a say from the Investigating Officer; it was submitted in fair detail and the learned Public Prosecutor in charge of the conduct of the prosecution in the sessions case also separately filed his say. While the latter supported the tender of pardon as sought by the petitioner, the Investigation Officer, however, produced a plethora of material upon which, it was sought to convince the court that the tender of pardon as sought would not be in order. The learned Assistant Sessions Judge passed order dated 10th October, 1986 rejecting the application of the petitioner. Against the order dated 10th October, 1986 the State came up in a Criminal Revision Application No. 498 of 1986. The said Criminal Revision application however came to be summarily dismissed on 27th January, 1987. The present petition was filed by the accused No. 1 on 21st November, 1986. The learned Assistant Sessions Judge after taking into consideration the objections taken by the Investigating Officer as also the reasons put forth by the learned Public Prosecutor for accepting the plea of tendering of pardon rejected this application and thus refused to tender pardon to the petitioner on grounds and reasons which he summarised in paragraph 14 of his order. The first reason was that the application seeking tender of pardon to him was not filed at the proper stage. Secondly, that the charge had already come to be framed against the accused No. 1 particularly for having himself committed the offence under section 307 of the Indian Penal Code, namely, the attempt to commit the murder of one Maruti Babasaheb Jadhav as also under the Arms Act. Thirdly, the Investigating Officer had submitted before him that the petitioner, upon a consideration of the statements recorded by him, could not be held to have been giving out the whole truth pertaining to the incident in question; Fourthly, that the Investigating Officer had also found and noted that the accused had not made any statements of the type which he made in support of his plea of the tender of pardon when he came to be interrogated during investigation. Fifthly, the Investigating Officer had come to recover revolver as also live catridges from the possession of the petitioner who had come to be arrested on the spot and was thus the prime culprit and main accused person as such. Sixthly, while the charge against the petitioner was framed substantially under section 307 of the Indian Penal Code, against the other four persons it was under section 307 read with section 34 of the Indian Penal Code. Seventhly, in his statement made to the Court in support of his undertaking to make a true and full disclosure of the entire facts, the petitioner had come to implicate five or six other persons whose names had not even transpired during the investigation and who were therefore not accused at all. According to the learned Judge, the petitioner was therefore found to have been trying to make an entirely new story which did not receive any corroboration from the investigation as had been carried out. Lastly, it was not a case where there could be said to be insufficiency of evidence against the accused Nos. 2 to 4 who were charged under section 307 only with the aid of section 34 of the Indian Penal Code.