Bhalu vs State Of M.P.
2021 Latest Caselaw 5742 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
   & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA

                    CRIMINAL APPEAL No.1047/2009

Appellant:                  Bhalu s/o Nano Bhil Vasuniya
(Accused in jail)           Age 35 years, occupation-Agriculture &
                            Labourer, R/o Gram Moripada,
                            District Jhabua (MP)

                                    Vs.

Respondent:                 State of M.P through police station
                            Kalyanpura, district Jhabua (MP)


                Shri Akhilesh Kumar Saxena, learned counsel
                for the appellant.
                Smt.Mamta Shandilya, learned Government
                Advocate for the State.


                             JUDGMENT

(Delivered on 20.09.2021) Per Vivek Rusia, J:

This appeal has been filed against the judgment dated 03.08.2009 passed by IInd Additional Sessions Judge (Fast Track), Jhabua in Sessions Trial No.76/2009 whereby the appellant has been convicted and sentenced as under:

       Conviction                              Sentence
      Section         Act     Imprisonment     Fine, if Imprisonment,
                                              deposited in lieu of fine
       302            IPC         Life             -              -
                              Imprisonment
 323A & 323           IPC      6 months RI         -              -
       436            IPC       3 years RI         -              -


       Prosecution story is as under:

2. On 09.10.2001 at 03.30 hours in the early morning complainant Smt.Gaurabai (PW/3) went to police station Kalyanpura along with her husband Amar Singh (Amariya) who was in burnt condition

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(deceased), Titariya (Jeth), Sakariya, Hatara, Deeta & Naru and lodged a report that in the night when she was sleeping in her house along with her husband, near about at 12.30 hrs. in the night appellant Bhalu came inside and poured kerosene oil on her husband Amar Singh and set him into fire. He was shouting that Amar Singh has kept his wife (complainant Smt.Gauribai) with him. Upon raising voice, neighbour and her Nanad Punibai and her daughter Meerabai came there but the appellant assaulted them by means of torch. Thereafter complainant's Jeth Titariya, Devar Kaliya and Dubaliya came on the spot and extinguished the fire. When Titariya extinguishing the fire of his house, the appellant went towards his hut and set into fire as well and fled away from the spot. According to the complainant, in the preceding evening the appellant and her husband Amar Singh had consumed liquor together and thereafter Amar Singh went to sleep in the house. Thereafter, the incident happened in the night. On the basis of the report, the police registered an FIR vide crime no.172/2001 and sent Amar Singh to Jhabua for treatment, however, on the way he died. The Block Medical Officer, Primary Health Centre, Kalyanpura, district Jhabua examined the injuries of Amariya, Meera & Puniya vide Ex.P/9, P/10 & P/11. The police reached to the spot and prepared the spot map Ex.P/5. From the spot the police found kerosene oil spread on the sleeping area of the deceased, empty kerosene can and burnt clothes of the deceased. The house of Punibai, sister of the deceased was also found burnt. The police recovered the aforesaid articles vide seizure memo Ex.P/6. The police assessed the loss at Rs.36,000/- because of the burning vide Panchnama Ex.P/7 & P/8.

3. The dead body was sent for postmortem. Dr. Shakil Ahmad (PW/13) conducted the postmortem and submitted the report vide Ex.P/12. As per the postmortem report, the front portion of chest and abdomen were found 18% burnt, back 18%, both hands and arms 18%, front of leg 18%, face 5% and in total 77% on whole body. The cause of death was shown to be due to shock as a result of cardio respiratory failure.

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4. The Police recorded the statement of the witnesses. Since the accused/appellant could not be arrested at that time, therefore, the charge sheet was filed before the learned JMFC on 10.10.2002 showing him absconding. The appellant was arrested on 09.02.2009 i.e. after a period of 8 years of the incident. Vide order dated 18.2.2009 the trial was committed to the Sessions Court.

5. The Sessions Court framed the charges under sections 302, 323 (two counts) & 436 IPC against the appellant. He denied the charges and pleaded for trial. In trial the prosecution examined 14 witnesses and got exhibited 15 documents. In defence, the appellant did not examine any witnesses but got exhibited the statement of Gaura Basuniya, Punnibai & Dubaliya as Ex.D/1, D/2 & D/3.

6. After evaluating the evidence came on record vide judgment dated 03.08.2009 learned ASJ, Jhabua has convicted and sentenced the appellant as stated above, hence the present appeal before this Court.

7. Learned counsel for the appellant submits that the appellant and deceased both had consumed liquor up to evening and thereafter the deceased went to sleep in his hut. Had there been any intention to kill Amar Singh the appellant would have killed him in daytime. At the most the appellant has burnt the hut of the deceased and as per the evidence of Gaurabai PW/3, after catching fire on her hut, the deceased could not come out from the hut because he was heavily drunken at that time otherwise, he would have saved his life. The appellant is not a habitual offender. He is in custody since last 12 years and 8 months. He has committed the offence out of anger and heat of passion because the deceased has kept his wife with him, therefore, the offence falls under the category of culpable homicide not amounting to murder for which he has already undergone ten years of rigorous imprisonment, hence he may be released.

8. Learned Government Advocate appearing on behalf of the State opposes the aforesaid prayer by submitting that after putting the deceased and his hut under fire the accused appellant bolted the door

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of the house from outside, hence the deceased could not come out from the hut to save his life. Dr.Shakil Ahmad, who conducted the autopsy of the dead body of the deceased, found 77% burn injuries on his whole body, as a result of which he died. Apart from that, the accused/appellant did cause injuries to three others who came to save the deceased; hence he has rightly been convicted and sentenced by the trial court and no forbearance is liable to be shown to him.

We have heard learned counsel for the parties at length and perused the record.

9. The prosecution has examined the wife of the deceased Smt.Gaurabai PW/3 who has specifically deposed before the court that in the night of fateful day her husband was sleeping inside the house, the accused/ appellant came there and started abusing him that he has kept his wife with him. Thereafter, he poured kerosene oil over him and put him into fire by igniting match stick. After the incident she went to the police station along with her husband who was in burnt condition and from where to the hospital and on the way he died. She was cross examined by the defence counsel in which she has denied that she ever married with the appellant Bhalu. She has also stated that after catching the fire she came out from the hut but her husband could not come out because the appellant has closed the door from outside. In order to corroborate the aforesaid evidence, the prosecution has examined Titariya PW/1, Munnibai PW/4, Sakariya PW/5, Ratan PW/6, Meerabai PW/7, Dubaliya PW/8 & Kaliya PW/9. All of them have fully supported the case of the prosecution by stating that the appellant came to the house of the deceased, set him into fire and also assaulted Punibai, Meera and Amariya by means of torch. All the three were examined by Dr.Ashwin Bhagwat PW/11 and found the injuries by hard and blunt object. The postmortem of the dead body was conducted by the Medical Officer Dr.Shakil Ahmad PW/13 and according to him the deceased was burnt 77% and he died as a result of the burn injuries. We have no reason to disbelieve the statement of Dr.Shakil Ahmad PW/13 and the autopsy report Ex.P/12, therefore, the

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death of Amar Singh due to burn injuries was homicidal in nature and as per the evidence of PW/1, PW/3 to PW/9 the prosecution has established the guilt of the accused appellant beyond reasonable doubt that he committed the murder of Amar Singh by burning him and also assaulted three others who came to save him.

10. So far as the argument of learned counsel for the appellant that the appellant committed the crime in intoxicated condition, therefore, he is entitled for the benefit of section 81 of the IPC is concerned, we do not find any force in the above submissions because Gaurabai PW/3 has only stated that the deceased and the appellant consumed liquor together, but the appellant committed the offence in full sense and after committing the offence he fled away from the spot. There is no medical report on record showing that the appellant was in intoxicated condition while committing the offence. After putting the Amar Singh in to fire, he assaulted two others and burnt another house. He was in his senses amid committing crime. He could be arrested only after eight years of the incident, therefore, there is no evidence to that effect that he committed the offence in intoxicated condition. The eyewitness of the incident Smt.Gaurabai PW/3, the wife of the deceased to the effect that the appellant poured kerosene oil over the deceased and set him into fire and after putting the fire he bolted the door from outside, therefore, he was burnt on all over the body up to the extent of 77%. The deposition of the eye witness is fully corroborated by Titariya PW/1, Munnibai PW/4, Sakariya PW/5, Ratan PW/6, Meerabai PW/7, Dubaliya PW/8 & Kaliya PW/9, hence the guilt of the accused appellant is proved beyond reasonable doubt that he committed the murder of Amarsingh by putting him into fire. It was a murder, hence rightly been convicted under section 302 of I.P.C.

11. We are also unimpressed by the alternate and last submission of the learned counsel of the appellant that the sentence may be converted into one under section 304 Part II IPC as a period of 12 years has already been served by the appellant because the manner of the crime and the nature of injuries do not permit us to take a compassionate

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view in this case, therefore, the appellant is liable to undergo life imprisonment.

12. In view of the foregoing discussion, the appeal is dismissed and the conviction and sentence passed by the trial court is hereby affirmed.

   (VIVEK RUSIA)                        (SHAILENDRA SHUKLA)
      JUDGE                                    JUDGE

            Digitally signed by HARI
            KUMAR C G NAIR
            Date: 2021.09.24 15:28:57
hk/         +05'30'