DIWANSINGH KUSHALSINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present criminal appeal has been preferred by the appellant/accused against the judgment and order of conviction dated 18-4-1994, passed by the Sessions Judge, Ahmednagar in Sessions Case No. 10 of 1994, whereby the appellant/accused was convicted for the offence punishable under section 302 of the Indian Penal Code, and sentenced to suffer imprisonment for life. The appellant/accused was also convicted for the offence punishable under section 201 of the Indian Penal Code. However, no separate sentence was awarded in respect of the same.

(2.) IN order to consider the complicity of the accused in the crime in question and the circumstances, which have resulted in prosecution of the appellant/accused for the offence punishable under section 302 of the Indian Penal Code, it is necessary to consider few relevant facts of the prosecution case. The appellant was residing in M. I. R. C. quarters No. P-15/6 at Ahmednagar along with his wife Hansadevi, aged about 28 years, his daughter Bhartidevi aged about 7 years, another daughter Rajanidevi aged about 5 years and son Mukesh aged about 1? years. The residential quarters of the accused was on the first floor of the building. The accused was serving in army as a Havaldar and was posted at Ahmednagar.

(3.) IT is the case of the prosecution that in the night of 29th September, 1993, at about 11. 00 or 11. 30 P. M. there was some fire seen in the residential quarter of the accused. The occupants of the adjoining quarters in the said building as well as other persons rushed to the spot and tried to extinguish the fire with the help of water and sand. It was noticed that the wife of the accused Hansadevi and her son Mukesh had sustained 100% burns and died on the spot. Two daughters of the accused i. e. Bharatidevi and Rajanidevi also sustained burn injuries and were admitted in the Military Hospital at Ahmednagar. Mr. Bhalerao (Police Head Constable) at the relevant time was attached to the Cantonment Police Station, Ahmednagar. On 30th September, 1993, at about 2 A. M. , he received a message on phone from Col. Mr. Raut that at about 11-11. 30 P. M. the fire was noticed in the residential quarters No. 15/6 which was occupied by the appellant/accused and the same was extinguished. The wife and son of the appellant had expired and their dead bodies were lying in the room. Two girls had sustained burns and were admitted to Military Hospital for treatment. The said phone message is exhibited as Exh. 19 and Accidental Death entry was taken in the register bearing entry No. 43/1993. The message was also entered in the station diary, the extract of which is at Exh. 20. Police Sub Inspector Apune who was informed by Police Station Officer Bhalerao about the incident. Police Sub Inspector Apune along with police staff had gone to the spot i. e. residential quarter No. P 15/6 of the appellant. The Military Guards were posted at the quarter. Two dead bodies were found lying in the room. On 30th September, 1993, at about 8 A. M. , P. S. I. Apune had conducted inquest panchanamas Exhs, 21 and 22 on the dead bodies of Mukesh and Hansadevi. The bodies were sent for the post mortem examination. The panchanama of the place of offence (Ex. 23) was also drawn. P. S. I. Apune, at about 12 noon, had gone to the Military Hospital to find out whether the two daughters of the appellant, who were admitted in the hospital, were in a position to give the statement. The Medical Officer who was on duty in the Military Hospital, however, informed him that both the girls were not in a position to make any statement. The opinion of Dr. Ghule was obtained regarding the cause of death of Hansadevi and Mukesh. Dr. Ghule opined that Hansadevi and Mukesh did not die due to burn injuries. On 30th September, 1993, at about 8 p. m. , he lodged the complaint Exh. 35. C. R. No. 120 of 1993 came to be registered. Col. Ravat was requested to hand over the custody of the appellant/accused. However, the same was not granted.