BHAGIRATH Vs. STATE OF M.P.

JUDGEMENT

(1.) In this criminal appeal preferred under Section 374 of the Code of Criminal Procedure (In short the Code) three appellants, namely, Bhaglrath, his wife Dulari and his son Komal have called in question the defensibility of the judgment of conviction -and order of sentence passed by the learned Additional Sessions Judge, Khurai, District Sagar in S. T. No. 312/90.

(2.) IT is relevant to mention here that the appellant Nos. 1 and 2 have been convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and the appellant No. 3 has been convicted under Section 302 of I.P.C. and sentenced to undergo rigorous imprisonment for life. Further he has been convicted under Section 436 of I.P.C. and sentenced to suffer R. I. for ten years. 3.Shorn of unnecessary details the prosecution story is that Laxmibai was the wife of Madhav Singh and Raj Baj was her daughter. Komal is the elder brother of Madhav Singh. The other accused persons, namely, Bhagirath and Dulari are the parents of said Madhav Singh. Deceased, Laxmibai was staying with her husband and five year old daughter Rajbai separately from the accused persons for last five years prior to the date of occurrence. On 26 -1 -90 at about 5 p.m. when Laxmibai and Rajbai were in their residence their house was set on fire. Immediately the mother and the chile - were taken to the police station at Barodiya wherefrom they were taken to Government hospital where they were referred to the District Hospital, Sagar. Before Rajbai was admitted in the hospital she breathed her last. Laxmibai was admitted and despite treatment she expired at 7 a.m. on 27 -1 -1990. It has been alleged that on the date of occurrence when Laxmibai was sitting with her daughter Rajbai In her house, Komal, Dulari and Bhagirath came there and cast an aspersion that she was the concubine of one Karari Lodhi. They abused her, accused Komal caught hold up of her face, gagged her mouth and poured kerosene oil on her body and as well as on Rajbai. The other two accused persons instigated him to set Laxmibai ablaze. Komal lit a match stick and set fire on Laxmibai and Rajbai and thereafter put the whole house into fire. Deceased, Laxmibai was able to remove the cloth from her mouth and screamed and sought help so that her husband or some other persons may come and rescue them. As has been stated earlier Laxmibai and Rajbai were carried to the police station at Barodia. Laxmibai lodged the FIR which has been brought on record as Ex. P -11. It is the case of the prosecution that Rajbai was examined at 8:10 p.m. Dr. B. D. Sharma, PW -19 had found, as per Ex. P -29 that she had suffered 95% burn injuries and an effort was made to record her dying declaration but it could not be done as she was in a state of total unconsciousness. Dr. B. D. Sharma recorded the dying declaration of Laxmibai at 8:20 p.m. The said witness found Laxmibai had sustained 96% burn injuries and she was burnt by pouring of kerosene. The report has been brought on record as Ex. P -28. While being treated at the District Hospital at Sagar at about 2:45 a.m. a dying declaration was recorded by the Nalb Tehsildar. G. C. Paliwal, PW -16, The said dying declaration is Ex. P -24. After her death on 27 -1 -1990 post -mortem was done by a team of doctors and the said report has been brought on record as Ex. P -6.

(3.) THE accused persons abjured their . guilt. Plea of Dulari and Komal was that at the time of occurrence they were two k.ms. away In their garden busy in plucking vegetables when Madhav Singh, the husband of Laxmibai informed them about the burn injuries sustained by the wife and the daughter whereafter they reached the spot. Their further plea was that they have been falsely implicated. Accused Bhagirath took the plea that he is lame and unable to walk without assistance of a stick and his written defence was that both the deceased got ablazed when food was being cooked by Laxmibai.