Nandu S/O. Maniram Mandrawale vs State Of Maharashtra

T. V. Nalawade, J

The Application Is Filed For Condonation Of Delay Of 11611 Days Caused In Filing Criminal Appeal Against The Judgment And Order Of

Sessions Case No.48 Of 1986, Which Was Pending Before The Learned Sessions Judge, Nanded. The Sessions Judge Has Convicted The Present

Applicant For The Offence Punishable Under Section 302 Of The Indian Penal Code And He Is Sentenced To Suffer Imprisonment For Life. On The

Day Of Decision I.E. On 14th July, 1986, He Was Taken In Custody And He Was Sent To Jail For Undergoing Sentence. It Is The Contention Of

The Present Applicant That There Was Nobody To Take Care Of Him And He Was Not Aware Of Statutory Right To File Appeal And So He

Did Not File Appeal In Time. It Is His Contention That When He Learnt About The Right, He Sent Letter To This Court And Then As Per The

Court's Direction, The Proceeding Is Filed.

 2 The State Has Filed Reply And The Application Is Strongly Opposed. It Is The Contention Of The State That When The Applicant Was

Undergoing Aforesaid Sentence, He Was Granted Death Parole Leave Vide Order Dated 18th November, 1989 For 15 Days. It Is Contended That

He Was Expected To Surrender On 4th December, 1989, But He Did Not Surrender And Then He Was Absconding. It Is Contended That He Came

To Be Arrested On 10th July, 2015 And From That Day, He Is Kept In Jail For Undergoing The Sentence. It Is Contended That Separate Action

Was Taken Against Him As He Was Absconding And Crime No.1483 Of 2004 Was Also Registered In Respect Of That Incident. It Is Contended

That The Delay Of Around 31 Years Is Caused In Filing The Proceeding And No Proper Or Acceptable Explanation Is Given By The Applicant And

So, The Application Cannot Be Allowed.

 3 Both The Sides Are Heard By This Court.

4Â This Court Has Gone Through The Reasoning Given By The Trial Court Also For Convicting The Applicant And Also To Find Out As To

Whether There Are Other Circumstances Against The Applicant. From The Facts Mentioned In The Decision, It Can Be Said That When The

Incident Took Place On 15th September, 1985 On The Say Day, On The Basis Of Dying Declaration Of The Deceased Crime Was Registered, The

Applicant Could Not Be Arrested Till 9th May, 1986. Only When He Was Declared As Absconding And Order Of Attachment Was Made Of His

Property, He Became Available And He Was Arrested.

 5 The Power Given To The Court To Condone The Delay By Section 5 Of The Limitation Act, Is Discretionary Power. There Is No Separate,

Inherent Power With The Court In Such Case And So, The Discretionary Power Needs To Be Exercised As Per The Provisions Of The Limitation

Act. Thus, For Condoning The Delay Or For Refusing To Condone The Delay, Considerations Like Diligent Of The Applicant And Hisbonafides

Need To Be Considered And On That Basis, The Court Can Ascertain As To Whether There Was Sufficient Cause To The Applicant For Not Filing

The Proceeding In Time Prescribed By Law. The Provision Of Section 5 Of The Limitation Act Shows That The Burden Is On The Applicant To

Make Out Sufficient Cause To The Satisfaction Of The Court.

 6 It Is True That There Is No Presumption That The Delay Is Caused Deliberately, But If The Circumstances Show That The Court Can Draw

Inference Against The Applicant That The Delay Was Caused Deliberately, On The Basis Culpable Negligence Or Malafides, Then The Court Is

Expected To Draw Such Inference. The Circumstance Whether The Applicant Is Really Benefited Due To Filing The Proceeding Late Is Relevant

Circumstance In Such A Case.

 7 The Burden To Show That There Was Sufficient Case Is On The Applicant And He Should Come To The Court With ""Bonafide"" Reasons. If

He Has Not Given Such Reasons, The Court Can Hold That He Is Not Entitled To Be Shown Indulgence. The Case Of The Applicant Is Already

Mentioned And It Does Not Show That Any Such Reasons Are There. If The Party Lacks Bonafides, It Must Suffer For Inaction. The Ground

Given In The Application That He Did Not Know That He Has Statutory Right To File Appeal, Cannot Be Accepted As Ignorance Of Law Cannot

Be Considered By The Court. In The Present Matter, On The Contrary, There Are Circumstances As Mentioned Above Against The Accused

Showing That He Was Not Ready To Face The Trial And After The Incident He Was Absconding For Few Months. When He Was Granted Parole,

He Again Absconded And For About 30 Years He Was Not Available. In Such Cases, The Court Cannot Take Liberal View. If Liberal View Is

Taken In Such Case, It Will Be Against The Public Policy On Which Law Of Limitation Is Founded. In Such A Case, Liberal View Will Defeat The

Very Purpose Of Limitation.

 8 The Procedure Prepared By This Court For Preservation Of Record Of Subordinate Courts, Which Can Be Seen In Criminal Manual Shows

That Time Limit Is Fixed For Which Record Of Evidence Needs To Be Preserved. As Per The Provisions Of Criminal Manual, The Record Of

Evidence Of Sessions Case Needs To Be Preserved Only For Five Years. If The Appeal Is Preferred Then, The Record Is Preserved For Further

Period, Till The Final Decision Of The Matter. In The Present Matter, Due To Aforesaid Circumstances, The Record Is Destroyed. For This Reason

Also, The Court Is Expected To Approach The Matter Cautiously. Inordinate Delay In Such Case Plays Important Role And Due To That The Court

Is Not Expected To Use The Discretionary Power.

 9 Though There Are Aforesaid Circumstances Showing That No Case Of Sufficient Cause Is Made Out By The Applicant, This Court Has

Gone Through The Judgment, Only Record Available To Ascertain Whether Any Serious Question Of Law Is Involved In The Matter And Whether

There Is Some Arguable Case To The Applicant.

10Â The Reasoning Given By The Trial Court Contains The Evidence, Which Is Of Following Nature:

( A)Â Disclosure Made By The Deceased On The Spot Of Offence After Sustaining Injuries Caused By Applicant That The Applicant Had

Inflicted Those Injuries. The Person To Whom The Disclosure Was Made, Shifted The Injured, Deceased To The Hospital And He Has Given

Evidence On The First Disclosure Made By The Deceased;

( B)Â In Government Hospital, Statement Of The Injured Was Recorded By The Police And On That Basis, Crime Came To Be Registered. That

Record Is Proved;

 (C) In The Hospital Through The Special Judicial Magistrate, The Dying Declaration Was Recorded And That Record Is Also Duly Proved.

There Is Medical Evidence To Show That The Declarant Was Fit To Make The Statement;

(D)Â The Evidence Is Given On Motive By Examining The Witnesses On The Transaction Between The Family Of Applicant And The Family Of

Deceased;

( E)Â The Applicant Was Absconding For Few Months After The Incident And He Became Available Only When Orders Were Made To Attach

His Property; And

( F)Â The Medical Evidence Shows That Three Blows Were Given On The Abdomen Of Deceased By Using Dangerous Weapon And Those

Blows Had Caused Perforation To Internal Organs. Thus, There Is Material To Infer Intention Of Murder.

11Â In View Of The Aforesaid Circumstances, This Court Holds That The Application Filed For Condonation Of Delay Cannot Be Allowed. In The

Result, The Application Stands Rejected.

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