Madhya Pradesh High Court
Kunwar Singh Markam vs The State Of M.P. on 11 July, 2018
Equivalent citations: AIRONLINE 2018 MP 609
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH, JABALPUR
CRIMINAL APPEAL NO.2009/2008
Kunwar Singh Markam
-Versus-
State of Madhya Pradesh
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CORAM
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, J.
____________________________________________________
Shri Jitendra Shrivastava, Amicus Curiae for the appellant.
Smt.Namrata Agrawal, Government Advocate, for the State.
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Whether approved for reporting? : Yes/No.
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JUDGMENT
(Jabalpur dt.: 11/07/2018) In the present appeal filed under Section 374(2) of Criminal Procedure Code, challenge has been made to the order of conviction and sentence dated 28-06-2008, passed by Additional Sessions Judge, Balaghat in S.T.No.34/2008, where by the appellant has been convicted under sections 498-A and 302 of IPC and sentenced to imprisonment for life and fine of Rs. 1000/-, in default, to suffer further one year R.I. 2
2. The appellant has been charged for killing his wife in the intervening night of 14-15th Dec. 2007, at about 12 in the night. The allegation is that he used to torture physically and mentally his wife and caused her death by throwing chaff on her and thereafter set fire by the clinder block. A report was lodged at Police Station Baihar and offence under sections 498-A and 323 of IPC was registered. Deceased Sukwanti Bai was sent for medical treatment. On 15-12-2007, dying declaration was registered by the Executive Magistrate vide Ex.P-8. Thereafter she had come to the house and died on 28-12-2007 after 10 days of the incident. Thereafter, offence under section 302 of IPC was registered against him. The dead body was sent for postmortem, which was conducted by PW-10 Dr. R.K.Chaturvedi and PW-12 Dr. N.S. Kumhare. After the investigation, the appellant was tried for murder of his wife and he was convicted as mentioned in the preceding paragraph.
3. The conviction of the appellant is based on the statements of the parents of the deceased, PW-1 Smt. Laxmi Bai, neighbors PW-2 Smt. Sumitra Bai, PW-3 Bajrangi, PW-6 Chetram, PW-7 Rambha Bai and PW-5 Anand Dongre (Kotwar) and also relying on dying declaration recorded 3 vide Ex.P-8 on 15-12-2007 immediately after the incident.
4. The appellant abjured his guilt and submitted that it was winter cold night and they are poor persons and therefore, there is no cot in the house and the deceased was sleeping on the bed of chaff and because of the cold, there was fire near the sleeping place and she received the burn injury because chaff must have got fired, as there was campfire near the bed. Immediately after the incident, she was taken to the hospital and she was examined by Dr. N.S.Kumhare (PW-12) and the MLC report is Ex.P-14. He had found burn injury on the back of the deceased , which was 20% burn injury. He stated in his statement that ordinarily nobody dies because of 20% burn injury on the back and if proper treatment is given, there is no possibility of death in such cases. He also stated that burn injury to the deceased could have been caused on account of flames from a campfire. Clarification report was also sought from him, in which he had clarified in the report Ex.P-15 making it clear that 20% burn injury is not fatal burn injury, if treatment is given to the patient. He also stated before the court that bed head tickets of hospital have not been found and therefore, it cannot be said that for what period, she remained in the hospital. The same opinion has been 4 expressed by another Dr.R.K.Chaturvedi (PW-10), who had conducted the postmortem alongwith Dr.N.S. Kumhare (PW-12).
5. The dying declaration was recorded by PW-13 Kamal Singh Singsar, who is the Executive Magistrate. He stated that he waited for Doctor but since no Doctor turned up for a long period and therefore, he recorded the statement of the deceased and his report is Ex.P-8. Thus, there is certificate obtained from any doctor before recording dying declaration. The other evidence which has been brought by the prosecution is the statement of mother PW-1 Smt. Laxmi Bai, who stated that her daughter was living with the appellant. They are financially poor and there is no cot in the house but stated that the appellant used to quarrel and harass the deceased by demanding money and used to come to the house in drunken condition. The other witness PW-2 Sumitra, who is neighbour stated that the appellant used to quarrel with the deceased and on the next morning of the incident, the deceased had come to her shop to purchase soap but about the incident of last night, there is no narration. PW-3 Bajrangi also stated that when he want to the house of the deceased in the morning, he had seen burn injury on the back side of the deceased. The 5 same has been stated by the other witnesses PW-6 Chetram, PW-7 Rambha Bai. PW-5 Anand Dongre(Kotwar) stated that the incident was informed by the deceased and thereafter he had taken the deceased to the police station to lodge the report and thereafter she was taken to the hospital. All the witnesses have stated that financial condition of the family of the appellant was so poor that even there was no cot in the house. Thus, there is all possibility that because of poverty, the deceased did not stay in hospital for treatment and she could not get proper and adequate treatment.
6. The witnesses have stated that the appellant used to quarrel with the deceased but nothing has been stated in the statement that there was ever any report to the panchayat or to the police station in this regard. The cause of death of the deceased is due to septicemia. She died in the home after more than 10 days. Dr.N.S.Kumhare (PW-12) has clearly stated that 20% burn injury is not sufficient for the death and if treatment is given, the same is curable. He has also stated that there were no marks of any external injury or any marks of tie with the rope on the legs. Further no document has been found by the Doctor to establish that she was hospitalized after the treatment at the time when 6 the alleged dying declaration is said to have been recorded Ex.P-8. The statement recorded in the dying declaration without certification of a Doctor also creates a suspicion in the mind of this court, the manner it has been recorded and the words which have been used clearly show that it was not a version of the deceased belonging to a rural area. Her thumb impression is very close to last line written on the same which is unusual.
7. Though the parents of the deceased and the neighbors have stated that the appellant used to come in drunken condition and to quarrel with the deceased but they had not stated that there was any serious quarrel or beating by the appellant on the intervening night of the incident which led the appellant to murder the deceased when he was living with her for last 8 to 10 years and there are 3 children out of their wedlock. Further on consideration of the medical evidence and the postmortem report that the cause of death is septicemia as the deceased died after about 10 days of the incident in the home. There is no evidence that she was hospitalized and there was proper treatment to the burn injury. On the contrary, PW-12 Dr. N.S. Kumhare has made it clear that it was only 20% burn injury on the back side of the deceased, which is not sufficient ordinarily for 7 death and the same was curable after treatment. He has not found any external injury on the person of the deceased. So far the dying declaration is concerned, the same is said to have been recorded on 15-12-2017. If the deceased was hospitalized and the same was recorded in the hospital, it is unbelievable that no Doctor was available in the entire hospital to certify her state of mind before recording of the statement. The dying declaration is not beyond suspicion under the circumstances as discussed in the preceding paragraphs.
8. The defence seems to be more plausible that it was a winter cold night of December and the deceased was sleeping on bed of chaff and there was camp fire near the place, where she was sleeping and therefore, there was all possibility of getting burn injury because of the flames from the camp fire. It has came from the evidence that there was not even a cot in the family and the deceased was sleeping on a bed of chaff. After the first medical aid there is no evidence that she was hospitalized and had undergone treatment in the hospital. She had died in the home after about more than 10 days of the incident. The cause of death is septicemia.
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9. Taking into consideration the evidence of PW-12 Dr.N.S. Kumhare that ordinarily there cannot be a death because of 20% burn injury on the back side. We find that on the assimilation of the entire facts and evidence, the prosecution could not prove that the appellant has set fire by using chaff and clinder block. Thus, the prosecution could not establish its case beyond any reasonable doubt, hence the appellant is entitled for benefits of doubt.
10. Accordingly the appeal is allowed. The order of conviction and sentence is set aside. The appellant be set at liberty forthwith, if not wanted in any other case.
11. Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Authority shall remit fee of Rs.4000/-(Rs. four thousand) to the amicus curiae who assisted this court.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
hsp.
Digitally signed by HARSAHAI
PATERIYA
Date: 2018.07.16 14:59:13 +05'30'