AI Structured Summary
Not yet generated for this judgment
Judgment
Per: Justice Avanindra Kumar Singh
This appeal has been filed by the appellant accused against the judgment dated 14th June, 2017 in S.T No. 29/2011 passed by the learned Additional Sessions Judge and Special Judge under SC/ST Act, Harda to the Court of I Additional Session Judge, Harda in the case of State of Madhya Pradesh through Police Station, Timarni District-Harda v. Ashok S/o Shivkaran Kanere by which the learned trial Court has convicted the appellant for murdering his wife deceased Sunita Kanere by burning her with kerosene oil and has convicted the accused under Section 302 I.P.C and sentenced to undergo Life Imprisonment with fine of Rs.1000/- and under Section 498-A I.P.C with 2 years R.I. with fine of Rs. 500/- both sentences to run concurrently and in default of non-payment of fine in each Section to undergo additional R.I. for three months each.
Before the trial Court, it was admitted fact that deceased Sunita was married to the appellant in the year 1999. Out of their wedlock they had two children. It was also admitted fact that when the deceased was burnt then accused took her to the Harda Hospital and later to Choithram Hospital, Indore where she died on 21.8.2008 whereas the deceased was burnt on 20.8.2008 in Timarni by kerosene.
In short the prosecution story is that Dr. M.A. Chokhe of Choithram Hospital, Indore informed Police Station, Rajendra Nagar Indore that Sunita wife of Ashok was admitted in hospital on 21.8.2008 at 4 a.m.by her husband Ashok for treatment, she was 100% burnt and she died on 21.8.2008 at 9:45 a.m. therefore information was given to Police Station. Merg No. 077/2008 was registered which is (Ex. P-1) and original merg was registered in Police Station Timarni vide Merg No. 39/2008 on 20.9.2008. Postmortem of the body of deceased was conducted on 21.8.2008. Postmortem report is Ex. P-2. As per Prosecution on 20.8.2008 deceased was admitted at 11.50 p.m. in District Hospital, Harda and was found 100 % burnt there was kerosene oil smell from her body and this fact is mentioned in M.L.C (Ex. P-3), Duty Doctor Umesh Khale (P.W.6) at Harda Hospital gave a written information to Police Station, which is Ex. P-4 dated 21.8.2008 (overwriting in date) at 12:10 a.m (midnight) in which it was mentioned that she was admitted in Harda hospital at 11:50 p.m. in 100% burnt condition.
It is further the case of prosecution that Crime No. 309/2010 (Ex. P-14) for the offence under Section 306 I.P.C was registered on 19.10.2010. Information was received in Timarni Police Station on 20.9.2008, statement of witnesses from the family of the deceased were taken. Letter Ex. P-17 dated 6.10.2010 from Medico Legal Institute Bhopal was received according to which Institute Director Dr. D.S. Badkur opined that death is not accidental because there were kerosene residue in the burnt hair of the deceased and stove was in working condition and no carbon articles were found in the wind pipe of the deceased. As per prosecution the accused used to drink and assault his wife and had illicit relations with other women, therefore, she committed suicide. Accordingly, F.I.R (Ex. P-14) under Section 306 I.P.C was registered on 19/10/2010. It is further the case of the prosecution that during investigation spot map (Ex. P-12) was prepared on 4/10/2009 or 4/10/2008 (there are overwriting in many places). From the spot small size of burnt wicks and stove without a lid and without kerosene Oil were seized vide Ex. P-13. Stove and hairs were sent for examination to Forensic Science Laboratory Sagar from where report Ex. P-15 and Ex.P-16 were received, Stove was found in working condition. After remaining investigation charge-sheet under Section 306 and 498-A of I.P.C was completed on 8/12/2010 and case was committed to Session Court on 19/1/2011.
During trial accused was charged on 8/03/2011 under Section 498-A and 306 I.P.C. Trial was started. After recording evidence of P.W.-1 Poosmal Choudhary, P.W.-2 Shivram Singh, charges were amended by the trial Court on 16.7.2013 besides the charge under Section 498-A I.P.C charge under section 302 I.P.C was added in alternative to charge under Section 306 I.P.C.
When charged under the aforesaid Sections the accused pleaded not guilty. During trial prosecution has examined 12 prosecution witnesses and has exhibited 18 documents. After prosecution evidence beside the admitted facts as mentioned above, accused stated that he is innocent. Defence has exhibited 24 documents.
Against the judgment of conviction and sentence appeal has been filed on the ground that learned trial Court has wrongly convicted the accused. Case is based upon circumstantial evidence. Statement of P.W.-3 Ramadhar and P.W.-4 Vishal Kumar are full of contradictions. Initially these two witnesses in their statement under Section 161 Cr.P.C did not allege any offence against the appellant and matter was closed but after 27 months of incident their statement were recorded again and they stated that appellant is responsible for the incident therefore there is a delay of 27 months in lodging the F.I.R.
P.W.-10 R.P. Kusmakar T.I. of Police Station Timarni stated in para 4 that initially in investigation no offence was found therefore he had closed the matter, Lilabai, (mother of the deceased) also did not allege anything against the appellant as stated by P.W.-10 R.P. Kusumkar in paragraph 11. Statement of P.W-9 Vinay Kumar has not been considered by the trial Court who in paragraph 9 has stated that deceased was happy with the appellant and when the incident occurred parents of the deceased came and they did not allege anything against the appellant. All so called eye-witnesses are tutored witnesses.
F.S.L report is not reliable because stove has been seized after a period of 27 months. After a period of 2 years sister of the deceased made allegations against the appellant therefore prayer is made to set aside the conviction and acquit the appellant.
On the other hand learned Govt. Advocate supports the impugned judgment and submit that as per report dated 23.02.2026 received from the office of Superintendent of Police, Central Jail, Narmadapuram vide letter No. 328/Warrant/2026 the accused has remained in actual custody of 8 years, seven months and 29 days till 23.02.2026.
We have perused the record and considered the arguments.
This case has many peculiarities. It is seen that initially the charges were framed by the learned trial Court under Section 498-A and 306 I.P.C. Subsequently after recording two prosecution witnesses, on 16.7.2013, charges were modified. Beside the above fact in Ex. P-8 indoor case history sheet proved by P.W.-7 Dr. Shobha Chimaniya, it is mentioned in history of incident that while cooking, stove was burst and deceased got fire and she was taken to District Hospital. Spot map dated 4.10.2009 or 4-10-2008 Merg no. 39/2009 is Ex. P-12 whereas incident is of 20.8.2008 making spot map after such a long period would be of no help to prosecution there are overwriting in date at more than one place in spot map. Similarly as per seizure memo (Ex. P-13) procedure no.39/2008 (there is overwriting in month) stove was seized on 4.10.2008 again after a long period of incident. F.I.R (Ex. P-14) has been registered in Timarni Police Station under Section 306 I.P.C on 19.10.2010 and as per FIR Ex.P-14 information regarding the offence was received in Police Station on 20.9.2008 while the incident is of 20.8.2008. Ex. P-17 report of Dr. D.S. Badkur dated 6/10/2010 is also peculiar in the sense that he has considered merg/ 161 Cr.P.C statements of witnesses in which statement of mother of the deceased is that her daughter had told her that Ashok had illicit relation with other woman and under the influence of the liquor he used to assault her. Such type of statement cannot be considered by expert medical witness whose scientific report should be based on Postmortem Report and other scientific evidence and not on statement of prosecution witnesses during investigation or merg enquiry because that is the work of investigating officer, trial court and the appellate Court to draw a conclusion on the basis of statement of witnesses and other material on record. In analysis Section of Ex. P-17 (Dr. Badkur) has opined that kerosene oil was poured on the head as there was smell of kerosene oil confirmed by chemical analysis. Stove did not have a lid suggesting that the stove might not be used at the time of incident. It was in working condition and burns without explosion, therefore, possibility of explosion of stove is ruled out. It is further mentioned in point No. 6 that spot map was not supplied. Statement of Manju Kanere given to Police has also been considered by the expert witness Dr. D.S. Barkur, Director Medico Legal Institute in Ex. P-17. Autopsy surgeon has also reported presence of stamp ink on left thumb but no such declaration was supplied or produced by the Police. Therefore, as per his opinion investigation of the case was not done properly and not done timely. There was long gap between the date and time of incident, examination of scene of incident and forwarding the stove and scalp hair to F.S.L Sagar, the case appears to be highly suspicious. Manner of death, i.e., suicidal or homicidal cannot be ascertained. Now this report Ex.P17 sounds a death knell to the prosecution case in considered view of this Court because every shortcoming in investigation by police or during trial by prosecution cannot be used for the benefit of prosecution to convict the accused but it can be used in favour of the accused to record a finding of acquittal because prosecution case has to be proved beyond reasonable doubt and suspicion however so strong cannot take place of evidence.
In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 166 (3 Judges Bench) Hon'ble Supreme Court has held:
"153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 ]
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency,
(4)they should exclude every possible hypothesis except the one to be proved, and
(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In Raghunatha and another v. The State of Karnataka - Criminal Appeal No. of 2024 (Arising out of SLP (Criminal) No. 6112 of 2022) judgment dated 21.03.2024, Hon'ble Supreme Court in paragraph 9 has held as under:
"9.It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."
Beside the above, P.W.-3 Ramadhar in cross-examination in paragraph 7 has stated that Police recorded his statement after two months. Police recorded first statement at home and later on after 2 or 3 months in S.P. Office. He gave Ex. D-2 and D-3 statement to Police on 7.11.2008 and 20.09.2009 respectively but he does not remeber whether he gave Ex. D-4 statement on 20.10.2010 to Police. In paragraph 16 this witness stated that when her daughter Sunita told about appellant having illicit relations with other women and assaulting her under the influence of liquor, he did not report the matter to the Police to save her daughter's future. In paragraph 17 he stated that his daughter Sunita was married to Ashok and his daughter Manju was married to brother of Ashok, i.e., Vinay. In paragraph 24 he stated that his daughter Sanju is practicing as a Lawyer in High Court Indore Bench
P.W. -4 Vishal has stated in paragraph 6 of his statement that his statements were not recorded by the Police but on Ex. D-5 on A to A part there are his signatures.
P.W.-5 Dr. Bharat Bajpai who has conducted postmortem on the body of the deceased and has given postmortem report Ex. P-2 has stated in cross-examination in paragraph 6 that death of the deceased could be either homicidal or accidental or suicidal.
P.W.-6 Dr. Umesh Khale from Harda District Hospital stated that when Ashok brought Sunita his wife, to Hospital, patient was in a serious condition. There was kerosene oil on the body. She was 100% burnt and half conscious. In history he was told that the deceased got burnt due to accident while cooking by stove, M.L.C report is Ex. P-3. In cross-examination he admitted that Sunita was half conscious but could not talk, therefore, he did not have any conversation with Sunita, 100 % burnt person is first given pain killers so that he/she could sleep.
P.W.-7 Dr. Shobha Chimaniya, Senior Surgeon of Choitram Hospital has stated that deceased was admitted in burnt condition. At the time of admission she was fully conscious and उसने (she) told that while cooking flame of stove suddenly flared up and she sustained burns. In paragraph 2 of examination in chief she further stated that patient was 94 % burnt and her wind pipe was also blocked. Her tongue was burnt. In paragraph 3 she stated that report was prepared by Dr. Jainul Malik whose signature and writing she is well versed with. Postmortem certificate given by Dr. Jainul Malik is Ex. P-5. Case summery is Ex. P-6 which also contains signature of Dr. Malik. Admission and discharge ticket is Ex. P-7 which contains his signature and indoor history-sheet is Ex. P-8 which contains signature of Dr. Jainul Malik. In cross-examination paragraph 5 this witness admitted that in Ex. P-8 the reason for burn given by Sunita Kanere (deceased) was given in her presence and recorded by Dr. Malik who was working under her. The patient told that flame of stove suddenly flared up. She did not state any fact against any other person regarding the incident. Therefore, as per statement of Sunita it was a accident case. In paragraph 6 she stated that along with Sunita her sister Sanju Baghel also came and she also did not say anything to her.
P.W.- 9 Vinay Kumar has turned hostile and not supported the prosecution case in substance and leading questions were asked by the Special Prosecutor but nothing of substance could be obtained in leading questions by the prosecution. In cross-examination by the defence in paragraph 10 he stated that accused did not commit any offence and has been falsely implicated in this case under influence of younger sister of deceased who is a practicing lawyer at Indore Bench of High Court.
2 0 . P.W. 10 R.P. Kusumakar Inspector has stated in paragraph 2 of his cross-examination that merg intimation was recorded twice as a complaint was made to the senior police officers. In paragraph 3 he stated that in Police Headquarter father of the deceased Ramadhar (P.W.3) and his daughter Sanju Baghel Advocate had complained in this case.
P.W. -11 Additional S.P. Alok Kumar Singh has stated in Para 5 that Ex. D-4 statement of Ramadhar was taken after 2 years of the incident.
P.W. -12 - Jaiprakash Mishra, S.D.O.P who in the year 2008 was working as Thana Incharge in Timarni Police Station has stated in cross-examination paragraph 9 that in merg inquiry he did not find any offence. In paragraph 6 he stated that on the basis of statements of Manju (Ex. D-8), Shivkaran (Ex. D-19), Prem Bai (Ex. D-20), Vinay (Ex. D-21) Ankit (Ex. D-22), Lilabai (Ex. D-17), Ramadhar (Ex. D-2), Rakesh (Ex. D-23), Habib(Ex. D-14), Prateet Sakale (Ex. D-24) and Dileep (Ex. D-12) no offence was made out.
Therefore, on the basis of detailed analysis of the prosecution case, case of the defence, evidence of both parties and the law on the point in such type of cases, we find that prosecution has failed to prove the charges beyond reasonable doubt against the appellant under Section 302 I.P.C in alternative Section 306 and 498-A I.P.C because prosecution has failed to prove beyond reasonable doubt that deceased was mentally and physically harassed or was either instigated or abetment was made to commit suicide or she was murdered by appellant Ashok by burning her by Kerosene Oil, in fact possibility of accidental death has not been ruled out by prosecution as Ex. P-17 report of Dr. Badkur can be read in favour of appellant due to inconclusive conclusion regarding mode of death and statement of Dr. Bharat Bajpai (P.W.-5) and statement of Dr. Shobha Chimaniya (P.W.-7) shows that death could have been due to accident also due to sudden flaring up of flames from stove, investigation was highly delayed and conducted in piecemeal after much gap of incident on the Complaint of the father and younger sister of the deceased to higher Police authorities. It is also seen that police/prosecution has not produced and exhibited Letter no. पुिलस अधी क/Harda/Reader/FSL/ 121/09 dated 25/11/2009 and this Letter is not mentioned even in chargesheet. Similarly Letter no. 39/08/23/2010 dated 7/02/2010 of SP, Harda by which communication was made with Forensic Science Laboratory (FSL) Authorities is also not produced and exhibited.
Therefore, we hold that Trial Court has not appreciated the facts and evidence properly in this case therefore appeal has to be allowed and is accordingly allowed and appellant is acquitted of the charges under Section 302 I.P.C. in alternate Section 306 and 498-A of I.P.C. If not wanted in any other case appellant be released from jail.