Oral Judgment: (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 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 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.
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.
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 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.
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.
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.
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.
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.