EMPEROR Vs. NARHARI GANPATI BORKAR

JUDGEMENT

(1.) This is a reference under Section 374 of the Criminal Procedure Code, 1898, by the Sessions Judge of Thana who has convicted the accused Narhari Ganpati Borkar under Section 302 of the Indian Penal Code, 1860, and sentenced him to death. The accused has also appealed against the conviction and the sentence. The case against him was as follows.

(2.) The accused was originally working as a wood-cutter at Kalyan where he contracted intimacy with a Maratha woman named Shevanti, and they lived together for some time at Kalyan. Thereafter they went to Pen and lived there for some months. At the time of the Diwali of 1944, i.e. in October, 1944, the accused went to his native place while Shevanti returned to Kalyan on or about October 16, 1944. There she met one Govind Ragho, a former acquaintance of hers and one Shankar Chhagan, a driver of a military lorry. She went, thereafter to live with Shankar as his mistress in a chawl called Khadyachi chawl at Kalyan, Some time in October the accused came back to Pen and not finding his mistress there went to Kalyan on October 27, 1944, He learnt from Govind that Shevanti had been living as Shankar's mistress and he accordingly went to the room of the accused in Khadyachi Chawl. He asked Shevanti to go with him but she did not agree. On the night of October 27, he slept on the verandah of Shankar. The next day he repeated the question with similar result. Thereafter the accused told Shevanti that if she was not willing to go with him, she should return the ornaments which he had given her while she had been living with him, Shevanti at first refused to comply with this request also; but as he persisted in his demand, the three ornaments which the accused had given her were returned to him on October 29, 1944. Shankar had stayed in his room and had not gone out for work for two or three days up to October 29. Oh October 30, being assured by Shevanti that the accused would not come again to give her trouble, he went to his work, leaving Shevanti in the room. At that time certain people had been living in the room of Shankar, viz. one Vithal alias Vithoba, his wife Tulsi, their small child and a labourer Nana. Nana as well as Tulsi both used to work in a military camp near Kalyan. On October 30, Nana and Shankar had both gone out for work while Vithal had stayed in the room with Shevanti. At 5 or 5-30 P.M. the accused came there and suggested that as ha and Shevanti were going to part they should go to the adjoining toddy- booth and have some drinks. The accused, Shevanti and Vithal went to the toddy-booth and consumed six bottles of toddy there. Thereafter Shevanti and the accused left the booth followed by Vithal. In the meanwhile Tulsi, wife of Vithoba, who had gone to a well behind the chawl for washing clothes had returned to the room, and shortly thereafter Nana also came there. Nana suggested to Tulsi that they should go to the military camp to get their wages. Tulsi then locked up the room and the two went out together. As they came on the main road leading to the town, she saw her husband Vithoba coming and therefore asked Nana to shout to Vithoba to come and get the key from her. Nana accordingly called out to Vithoba and as Vithoba was coming towards them, Nana was heard to shout that Shevanti was being murdered. Both Vithoba and Tulsi then saw the accused stabbing Shevanti in the back, after which she fell down and the accused ran away. Vithoba ran after the accused, but he could not catch him. Vithoba then came back to where Shevanti had fallen on the ground, and he then suggested to Nana and his wife that they should go to get their wages but at the same time should inform Shankar about what had taken place. Shankar had left his work at about 6-30 P.M. and was returning home. He met Tulsi on his way and heard from her that Shevanti had been murdered by the accused. Going to the scene of the offence, he found Vithal sitting near the dead body of Shevanti. He made some attempt to find out the accused but was unsuccessful, after which he went to the police-station along with Govind, whom he had also met, and lodged the first information. Thereafter the Police Sub-Inspector came to the scene of the offence and after keeping a constable to watch the body recorded the statements of Vithoba and Tulsi on the spot. He also examined Nana the same night. Next morning the inquest on the dead body of Shevanti was held and a panchanama regarding the scene of the offence was made. Other witnesses were examined on that day and the succeeding day, search was made for the accused at several places and he was ultimately found in the house of his sister at Murti on November 14, 1944, His person was searched on November 17 and his dhoti, shirt and cap, which appeared to bear some blood marks, were attached. One Kharote of Kalyan who stated that the accused had pawned three ornaments with him on October 30, 1944, for Rs. 5 was also examined.

(3.) The accused was put up for trial on the charge of the murder of Shevanti, and the evidence in the case was mainly that of Shankar who had given the first information, Govind, Vithal, Tulsabai, Ramchandra, the owner of the toddy booth, the Medical Officer, who produced the post-mortem notes as well as the opinion of the Imperial Serologist and the Chemical Analyser regarding the clothes of the accused, and the Police Sub-Inspector,