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2006 DIGILAW 459 (MP)

BHAGWANDAS v. STATE OF M P

2006-03-28

DEEPAK VERMA, R.K.GUPTA

body2006
Judgment ( 1. ) APPELLANT Bhagwandas having been found guilty for commission of offence under Section 302 of IPC and having been awarded life imprisonment in s. T. No. 97/95, decided on 4-12-95 by Sessions Judge, Khandwa has preferred this appeal on various grounds. ( 2. ) PROSECUTION story, in short, is as under :-Appellant was married to Radha Bai. Out of the wedlock, in all four children were born to them. Khusboo was one of the daughters who was aged about two years at the time of the incident. On 7-6-95 in the night, this appellant, according to the prosecution, had poured kerosene on Radha Bai and his daughter Khusboo and ignited them. On account of the burn injuries having been sustained by Radha Bai and daughter Khusboo, both succumbed to the same in the Hospital. According to appellant, the said burn injuries were sustained by both accidentally and not on account of pouring of kerosene by this appellant on their body and then igniting them. He, therefore, abjured his guilt and submitted that he has falsely been implicated in the matter. ( 3. ) APPELLANT was said to be working as Khallasi in Railways and on the relevant date was posted at Itarsi but for convenience he used to live at harsood with his wife and children. He used to travel up and down daily to perform his duties. On 7-6-95, after the duty he had reached his house at about 10 p. m. Accused was served with dinner, however, he was not satisfied with the menu and went to nearby hotel of Manzoor and brought mutton curry and chapattis with him. Deceased and appellant both took their dinner. Thereafter, due to some petty matter an altercation took place between the two. It is also stated that at the time of commission of offence this appellant was in a drunken state and had consumed excessive quantity of liquor which also stands proved from the evidence of Dr. D. P. Agrawal (P. W. 2), where deceased Radha Bai and daughter Khusboo were taken by this appellant. Radha Bai was admitted in the hospital alongwith her daughter Khusboo. ( 4. ) AS per evidence of Dr. D. P. Agrawal (P. W. 2), where deceased Radha Bai and daughter Khusboo were taken by this appellant. Radha Bai was admitted in the hospital alongwith her daughter Khusboo. ( 4. ) AS per evidence of Dr. D. P. Agrawal (P. W. 2), it has been proved that Radha Bai sustained burn injuries to the extent of 75% whereas daughter khusboo had sustained burn injuries to the extent of 30% and both of them had died due to burn injuries which stands proved from the post-mortem reports exhibit P/7-A and Exhibit P/14-A. Exhibit P/7-A is proved by Dr. D. P. Agarwal (P. W. 2) and Exhibit P/14-A is proved by Dr. Mahesh Jain (P. W. 6 ). Thus, from these post-mortem reports, it has been well established that both of them had met with homicidal death. Thus, this fact has not been disputed before us. ( 5. ) EXHIBIT P-16 is the First Information Report lodged by deceased radha Bai herself on 7-6-95 at 2. 10 a. m. This has been recorded on the strength of Dehati Nalishi recorded at the instance of Radha Bai. In his FIR, categorical statement has been made by deceased Radha Bai that appellant had poured kerosene on her and then ignited her with the match box. She has also mentioned that before doing all this, accused had bolted the room from inside so that she may not be able to escape. On getting the burn injuries, she picked her daughter Khusboo and tried to run outside, after unbolting it. She raised an alarm and several persons gathered there. Her police statement was also recorded on 7-6-95 which is Exhibit P-19 recorded by R. R. Patidar (P. W. 8), investigating Officer. In this also, she stated that it was her husband who had poured kerosene on her and then ignited which ultimately resulted into her death. Since Radha Bai died subsequently thus these two exhibits would be treated as dying declarations as contemplated under Section 32 of the Evidence act. While in hospital, Exhibit P-11 her dying declaration was also recorded by dr. D. P. Agrawal (P. W. 2 ). In this dying declaration she has once again declared that it was her husband Bhagwandas who had poured kerosene on her and then put her to fire, on account of which she sustained burn injuries. While in hospital, Exhibit P-11 her dying declaration was also recorded by dr. D. P. Agrawal (P. W. 2 ). In this dying declaration she has once again declared that it was her husband Bhagwandas who had poured kerosene on her and then put her to fire, on account of which she sustained burn injuries. She has further informed that this incident had taken place some time at 12 in the night. She further disclosed that she raised an alarm for help whereby several persons had gathered there who tried to extinguish the fire and brought her to hospital. From the contents of this dying declaration it appears that she was conscious and in mentally fit condition to get her dying declaration recorded. An endorsement has also been made by Dr. D. P. Agrawal (P. W. 2) that such a dying declaration was made by deceased on her free will and accord and without any undue pressure on her, in his presence. Of course, he has not made it clear that deceased at that time was in mentally and physically fit condition to get her dying declaration recorded. As has been mentioned hereinabove, the contents of exhibit P-11 dying declaration would reflect that at that time she appeared to be in a mentally and physically fit condition. ( 6. ) EVEN if we ignore Exhibit P-11, then Exhibits P-16 and P-19, FIR and her statement under Section 161 of Cr. PC would be treated as dying declarations after her death in which she has narrated the same story that it was her husband who had poured kerosene and then ignited her, which ultimately resulted in her and her daughter Khusboos death. ( 7. ) IN the light of the aforesaid discussion, now we proceed to see the evidence available against this appellant so as to examine whether his conviction and sentence have been awarded properly by learned Trial Court or not ? ( 8. ) SUNDERLAL (P. W. 1) is father of deceased and grand-father of khusboo. According to him, accused was in the habit of drinking alcohol heavily. He therefore used to spend all his earnings for this. Appellant and Radha Bai were blessed with four children; two sons and two daughters. All of them used to stay in Harsood. House of Sunderlal was close to the house of deceased. According to him, accused was in the habit of drinking alcohol heavily. He therefore used to spend all his earnings for this. Appellant and Radha Bai were blessed with four children; two sons and two daughters. All of them used to stay in Harsood. House of Sunderlal was close to the house of deceased. On the relevant date, according to him Radha Bai after having sustained burn injuries was coming running towards his house alongwith her daughter khusboo. She thereafter made an oral dying declaration to him that it was appellant Bhagwandas who had poured kerosene oil on her and then ignited. He had thereafter taken Radha Bai and Khusboo on a trolley to Hospital where ultimately both of them succumbed to burn injuries. ( 9. ) ANOTHER witness to the incident is Ravi (P. W. 3) aged about nine years- one of the sons of appellant and deceased Radha Bai. He has deposed that soon before the incident an altercation had taken place between his parents. Thereafter his father had poured kerosene oil on his mother and then with the aid of match box had put her ablaze. He has further deposed that while escaping, his mother also took Khusboo and in the process Khusboo also sustained burn injuries. ( 10. ) PRAMOD Tripathi (P. W. 5) was the Head Constable in Police station, Harsood, who had recorded the FIR on 28-4-95 (Ex. P-13) with regard to some previous incident between husband and wife. ( 11. ) R. R. Patidar (P. W. 8) was the Investigating Officer of the case. He has also deposed with regard to report lodged by deceased Radha Bai on 7-6-95. In his evidence, he has categorically deposed with regard to manner in which deceased Radha Bai had disclosed that accused Bhagwandas had poured kerosene and thereafter ignited her which resulted in death of Radha Bai and her daughter Khusboo. ( 12. ) APPELLANT did not examine any defence witness. ( 13. ) ON appreciation of aforesaid evidence available on record, the learned Trial Court found the appellant guilty for commission of offence under section 302 of IPC and has awarded R. I. for life. ( 14. ( 12. ) APPELLANT did not examine any defence witness. ( 13. ) ON appreciation of aforesaid evidence available on record, the learned Trial Court found the appellant guilty for commission of offence under section 302 of IPC and has awarded R. I. for life. ( 14. ) IN the present appeal, we are of the opinion that there is voluminous evidence against the present appellant which only proves it beyond any shadow of doubt that it was this appellant who had caused murder of his wife radha Bai. From the evidence, it could not be established that he had also poured kerosene on his minor daughter Khusboo. Learned Trial Court has dealt with this aspect of the matter and found that either some oil may have been sprinkled on her at the time kerosene was being poured on Radha Bai or Radha bai in an attempt to save Khusboo must have carried her while escaping and in the process Khusboo also sustained burn injuries. ( 15. ) THE defence of the appellant that she had sustained burn injuries by accident has not been accepted by learned Trial Court. According to appellant, he had also sustained burn injuries, which no doubt stands proved from the evidence of Dr. D. P. Agrawal (P. W. 2), who had deposed that his burn injuries were to the extent of 15%. Learned Trial Court has dealt with this aspect of the matter and has recorded a finding that this is nothing but an after-thought. Admittedly, appellant at the time of commission of offence was in a drunken condition and was not able to control himself. Either as a matter of repentance after commission of offence, he tried to save Radha Bai thus sustained burn injuries or with an intention to save himself from a prospective prosecution got some burn injuries deliberately and intentionally. We are in agreement with the finding recorded by the Trial Court in this regard and there is no reason to take a different view. ( 16. ) RADHA Bai has consistently said and stated that it was this appellant who had poured kerosene on her and then ignited. She has not deposed that appellant had also poured kerosene on her daughter Khusboo. ( 17. ( 16. ) RADHA Bai has consistently said and stated that it was this appellant who had poured kerosene on her and then ignited. She has not deposed that appellant had also poured kerosene on her daughter Khusboo. ( 17. ) IN view of the consistency found in Exhibits P-11, P-16 and P-19,it is proved beyond any shadow of doubt that it was this appellant who had committed murder of his wife by causing burn injuries to her. Even otherwise, there is no reason to disbelieve the version of deceased Radha Bai who was married to appellant for 12 to 13 years and were having as many as four children. There was no reason for false implication of the appellant. ( 18. ) APART from the above, even the son of the appellant Ravi has categorically deposed the manner, in which this appellant had caused burn injuries to his mother Radha Bai. There is no reason why son should have falsely tried to implicate his father, knowing fully well that his mother is already dead. ( 19. ) IN the light of the aforesaid discussion, we are of the opinion that there is no merit and substance in this appeal and the same is hereby dismissed. Criminal Appeal dismissed.