RAMESHWAR DINAJI DHAWDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant challenges the judgment and order passed by the learned Sessions Judge, Gondia in Sessions Trial No.41/2012, dated 6.4.2013, vide which the learned Trial Judge has convicted and sentenced the appellant for the offences punishable under Sections 302 and 309 of the Indian Penal Code. The accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/, in default to undergo rigorous imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code, whereas the accused is sentenced to suffer simple imprisonment for six months for the offence punishable under Section 309 of the Indian Penal Code.

(2.) The prosecution case, in brief, is thus :

(3.) Shri R.M. Daga, the learned counsel appearing on behalf of the appellant, submits that the conviction is based solely on the circumstances of extrajudicial confession. Learned counsel further submits that extrajudicial confession is a very weak piece of evidence. Learned counsel submits that unless there is some corroboration by proving incriminating circumstances, a conviction on the basis of an extrajudicial confession would not be sustainable. Learned counsel submits that for accepting the extrajudicial confession to be valid, it is necessary that it should be truthful, voluntary and the one which would inspire confidence in the mind of the Court. Learned counsel submits that the perusal of the evidence of PW2 and PW3 itself would reveal that the so called extrajudicial confession is after a question was put to the accused. Learned counsel, therefore, submits that in view of the law laid down by the Hon'ble Apex Court in the case of Sahadevan and another .vs. State of Tamil Nadu, 2012 3 SCC(Cri) 146 and the Division Bench of this Court in the case of Ishwar s/o Pandurang Masram Vs. The State of Maharashtra, 2013 AllMR(Cri) 2750, to which one of us (B.R. Gavai, J) was a Party, the said extrajudicial confession cannot be treated as a voluntary and the conviction cannot be based on the basis of the said dying declaration without there being corroboration. Learned counsel further submits that the present case being based on circumstantial evidence, it is necessary for the prosecution to prove that no other hypothesis than the guilt of the accused is possible. It is, therefore, submitted that conviction cannot be based on such evidence. Learned counsel, therefore, prays for allowing the appeal and setting aside the order of conviction and sentence. Learned counsel further submits that even accepting the prosecution case as it is, the death has occurred due to heavy blood loss and not as a direct result of injuries sustained by the deceased. Learned counsel submits that, as a matter of fact, the conduct of the appellant in immediately showing repentance by causing grievous injuries, which then resulted into the death, offence would rather fall under Section 304 of the Indian Penal Code. Therefore, in the alternative, learned counsel submits that if this Court is not inclined to set aside the order of conviction, then from the material placed on record, this Court may come to a conclusion that the offence would not fall under Section 302 of the Indian Penal Code.