Bombay High Court
Kashinath S/O Chaudhari Kirange ... vs State Of Maharashtra, Through ... on 19 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.492/2014
Kashinath s/o Chaudhari Kirange
aged about 50 years, occ. Cultivation,
r/o Chandala, Tq. Dist. Gadchiroli. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, P. S.
Gadchiroli, Dist. Gadchiroli ...RESPONDENT
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Mr. R. R. Vyas, Advocate for appellant.
Mr. T. A. Mirza, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JULY 19, 2016
ORAL JUDGMENT (Per : V. M. Deshpande, J.)
1. The appellant is before this Court since he has been
convicted by the learned Sessions Judge, Gadchiroli vide judgment
of conviction and order of sentence dated 26.06.2014 in Sessions
Trial No.28/2012 by which he was convicted for the offence
punishable under Section 302 of the IPC and sentenced to suffer
Rigorous Imprisonment for life and to pay a fine of Rs.1,000/- in
default to undergo simple imprisonment for one month. He was
also convicted for an offence punishable under Section 324 of the
IPC and was sentenced to suffer rigorous imprisonment for three
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years and to pay a fine of Rs.500/- in default to undergo further
simple imprisonment for 15 days. He was also convicted for an
offence punishable under Section 3 (a) of the Explosive Substances
Act and sentenced to suffer rigorous imprisonment for 10 years
and to pay a fine of Rs.1000/- in default to undergo further simple
imprisonment for one month.
2. The prosecution case, as it is unfurled during the course
of trial, is stated hereinbelow:
The deceased is Kalidas Kirange. When Damdeo
Mandalwar (PW11) was functioning as Police Sub Inspector at
Gadchiroli Police Station, on 10.10.2011, Sukhdeo Kirange (PW4)
came to the police station and lodged his report, Exh.-26. The
report was disclosing the commission of cognizable offence.
Hence, the offence was registered against the appellant for the
offence punishable under Section 302, 307, 341, 294 of the IPC,
Section 3 read with section 25 of the Arms Act and Section 3 and 4
of the Explosive Substances Act. 1908 vide Crime No.146/2011.
The printed FIR is at Exh.-27.
As per the oral report, on account of immersion of
Sharda, there was common dinner. To attend the said dinner, the
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first informant Sukhdeo Kirange (PW1), his elder sister Sunita
Gawade (PW8) and his nephew Nitesh Kirange (PW5) had been to
the said function. After having their dinner, when they were
proceeding towards their house, that time Sukhdeo received a
mobile call on his phone. Therefore, he started responding to the
said call. When they were proceeding while talking on the phone,
in front of the house of the present appellant, the appellant used
choicest of the abusive words and asked as to why they are talking
on the phone on road. That time, the first informant replied as to
why he is giving abuses. That time, his father deceased Kalidas
who was going to his agricultural field to irrigate the crops,
intervened in the verbal altercations in between the first informant
and the appellant. That time, the appellant picked up quarrel with
the deceased as to why he is intervening in the matter and then
went inside his house and brought one bag and gave a blow of the
said bag on the head of Kalidas. Due to that, explosion took place
and Kalidas died instantaneously. Due to the explosion, the first
informant and his sister also received injuries. This is the gist of
the FIR.
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3. After registration of the crime, Damdeo Mandalwar
(PW11) took the investigation of the crime himself. Sunita and
Nitesh were also accompanying Sukhdeo, the first informant. The
Investigating Officer noticed injuries also on their person and
therefore, sent all of them to the hospital at Gadchiroli for medical
treatment with Head Constable Yuvraj along with the forwarding
letter Exh.-55.
The Investigating Officer then visited the spot of the
incident which is at village Chanadla. He prepared panchanama of
the spot in presence of the pancha witness (Exh.-15). He noticed
that the dead body of Kalidas was lying on the spot. He sent the
dead body to the District Hospital, Gadchiroli for post mortem.
He, thereafter collected the soil, both simple as well as smeared
with blood in under seizure memo Exh.-17. He made search of the
accused and caused his arrest under arrest panchanama, Exh.68.
The accused was also sent for medical examination.
Thereafter, the Investigating Officer visited the District
Hospital, Gadchiroli and conducted the inquest vide inquest
panchanama Exh.-16. The clothes of the accused were also seized.
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4. When the appellant was in PCR, he made a disclosure
statement. The admissible portion of the said disclosure statement
is at Exh.-63 and agreed to discover one gun from his house. The
same was seized in presence of the panchas under seizure memo
Exh.-64. After completion of the other usual investigation, the
charge-sheet was filed in the court of law.
The learned Magistrate in whose court the charge-sheet
was presented, noticed that the offence is exclusively triable by the
Court of Sessions and, therefore, he committed the case to the
Court of Sessions.
5. The learned Sessions Judge, Gadchiroli framed the
charge against the appellant for the offence punishable under
Sections 302, 327, 341 and 294 of the IPC, Sections 3 read with 25
of the Arms Act and Section 3 and 4 of the Explosive Substances
Act, 1908.
In order to bring home the guilt of the accused, the
prosecution has examined in all 11 witnesses. After full fledge
trial, the learned Sessions Judge found that the prosecution has
only proved the case for the offence punishable under Sections 302
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and 324 of the IPC and Section 3 (a) of the Explosive Substances
Act.
6. We have heard Mr. R. R. Vyas, learned counsel for the
appellant and Mr. T. A. Mirza, learned A.P.P. for the State. Both of
them took us through the record and proceedings and notes of
evidence in extenso. Though, the defence of the appellant is of
false implication before this Court, the learned counsel for the
appellant has stated that in view of the line of cross-examination
and in view of the injury certificate of the appellant Exh.-59, he
has submitted that the appellant can be convicted for the offence
punishable under Section 304 Part I of the IPC and not under
Section 302 of the IPC.
7. In the present case, there are four eye witnesses. They
are Tukaram (PW1), Sukhdeo (PW4), Nitesh (PW5) and Sunita
(PW8). Tukaram Gawade is also panch on the spot, inquest and
seizure panchanama Exh.-17. Somdas Naitam (PW2) is also panch
in whose presence clothes of the accused were seized under
seizure memo Exh.-20.
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The claim of Sukhdeo Kirange (PW1) that he received
telephone call on his mobile while returning to their house after
having their dinner, is duly corroborated by Nitesh (PW5) and
Sunita (PW8). They also corroborate that present appellant
accosted Sukhdeo on account of talking on phone when they
reached in front of his house. That aspect is also corroborated by
Tukaram (PW1). The evidence of Tukaram shows that on the date
and time of the incident he was standing by the side of road and
that time he noticed Sukhdeo, Nitesh and Sunita coming after
taking their meals. That time, the present appellant took objection
in respect of mobile of Sukhdeo and gave abuses to Sukhdeo.
8. All these witnesses corroborate each other that at that
particular point of time, the deceased Kalidas arrived on the spot
and had tried to intervene in between the appellant. Their
unshattered evidence further shows that the appellant went inside
his house and brought a bag and then hit on the head of the
deceased causing explosion due to which Kalidas died on the spot
itself.
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9. The post mortem report of the deceased is at Exh.-54.
The same is proved by Autopsy Surgeon Dr. Amol Yelne (PW7).
He noticed the injury; (i) Fracture on left humorous at middle
side. While internal examination, he noticed that due to the injury,
brain matter was expelled out completely. According to the
Doctor, the cause of death is due to haemorrhagic shock due to
blast injury to vital organs.
Dr. Amol Yelne (PW7) also examined the first
informant Sukhdeo and his medical certificate is at Exh.-28.
Sukhdeo was examined on 10.10.2011 at 10.50 p.m. The Doctor
noticed multiple tiny blast injuries over face, neck, chest, right
hand and left foot. According to the injury certificate, the age of
the injury was within 6 hours and the cause of injury is blast.
Similarly, the injury certificate of Sunita is duly proved and the
same is at Exh.-50. The injury certificate is proved by Dr. Yelne.
According to the injury certificate, the Doctor noticed blast injury
over right arm.
Not only that, Dr. Yelne also examined the present
appellant. He also noticed following injuries on his person.
i) Contused lacerated wound between left
thumb and index finger of size 3 X 0.5 X 0.5 cm.
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ii) contusion over left forearm of size 3 X 3 cm.
iii) abrasion over right shine of tibia of size 2X2 cm.
The injury certificate is at Exh.-58. According to the
doctor the injury was within six hours.
10. The appellant failed to give any explanation in respect
of the injuries noticed on his person when the said was put to him
while examining him under Section 313 Cr. P. C. by the learned
Sessions Judge.
11. The evidence of Sukhdeo and Sunita is absolutely free
from any exaggeration. Nothing could be pointed out to this Court
by the learned counsel for the appellant for disbelieving their
evidence. Further the injuries suffered by these two witnesses
corroborate to their version.
12. The learned counsel for the appellant submitted that
there was a quarrel and in that he made attack and therefore
instead of convicting him for an offence punishable under Section
302 of the IPC, he could be punished for lesser offence.
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We are afraid that the said submission had any merit.
In this case, we cannot forget that these three eye witnesses were
proceeding to their house, they had no concern with the appellant.
When they reached near the house of the appellant that time,
Sukhdeo was talking on his mobile, he was objected by the
appellant for no reason. No only that he then used abusive words
and when Sukhdeo tried to pacify, at that time, the deceased
arrived on the scene and he also tried to intervene in the said
altercation, the appellant went inside and brought the explosive
weapon and death has occurred due to the explosion by that
weapon. The eye witnesses have also suffered injuries due to the
said blast. Therefore, this is not a case wherein any leniency
should be shown to the appellant.
In that view of the matter, we find no merit in the
present appeal. The appeal is, therefore, dismissed.
(V. M. Deshpande) (B. R. Gavai)
kahale
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CERTIFICATE
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Uploaded by: Y. A. Kahale. Uploaded On:22.07.2016
