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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1823 OF 2008

Bhagwan Tukaram Dange …. Appellant

                            Versus

State of Maharashtra …. Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

1. Appellant herein, accused No.1 (A-1) along with his  

father,  accused  No.2  (A-2)  was  charge-sheeted  for  the  

offences of murder of his wife under Sections 302, 498A  

read with Section 34 of the Indian Penal Code.  A-1 and A-

2 were found guilty and sentenced to suffer imprisonment  

for life, with a default sentence.  Aggrieved by the order of  

conviction and sentence, they filed Criminal Appeal No.11  

of 2000 before the High Court of Bombay and the same  

was dismissed vide judgment dated 09.02.2004.  A-2 later

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died and A-1, aggrieved by the judgment of the High Court  

has filed this appeal.

2. The prosecution story is as under:

A-1 son and A-2 father  returned to their  house on  

18.10.1998 at about 7.00 PM, fully drunk.   On reaching  

home, they demanded Rs.200/- to Rs.300/- from the wife  

of A-1.  On refusal, she was severely beaten up and asked  

to bring it  from her parental house.  A-2 then sprinkled  

kerosene from a plastic can over the body of the deceased  

and A-1 then lit a match-stick and set fire on the saree of  

the deceased.  Deceased shouted for help and rolled down  

on the ground and ultimately succeeded in extinguishing  

the fire, but by the time she had suffered more than 80  

per  cent  burns  over  the  body.   On getting information,  

parents of the deceased came to the spot and took her to  

the nearby Public Health Centre, Mayani.  After first aid,  

the deceased was referred to the Civil Hospital, Satara and  

on 19.10.1998, at about 3.10 AM she was admitted there.  

Dr. Barge, PW1 treated her and informed Head Constable  

Shelar (PW5) regarding the admission of the deceased, in

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an  injured  condition.   PW1  found  that  she  was  fully  

conscious and was in a condition to give statement.  PW5,  

in the presence of  PW1,  recorded the dying declaration  

(Ext.P26).  Later, Special Judicial Magistrate (PW4) reached  

the  Civil  Hospital,  Satara.   Dr.  Suresh  Pawar  (PW3)  

informed PW4 that the deceased was fully conscious and  

was in a condition to give statement.  PW4 recorded the  

second dying declaration (Ext.P23) of the deceased, which  

was sealed in an envelope (Ext.P24) and was deposited in  

the  Court  of  the  CJM,  Satara.   Father  of  the  deceased,  

Rajaram Mahadu Tupe (PW6), also met the deceased, who  

had also narrated the same incident to him, which was  

considered as the third dying declaration.

3. PW7,  the investigating officer,  came to the spot of  

the  incident  and  prepared  the  spot  panchnama.   PW7  

seized the plastic can, match stick and partly burnt cloths  

from the spot where the deceased extinguished the fire by  

rolling on the ground.  The deceased succumbed to the  

burn  injuries  on  21.10.1998  and  accused  were  charge-

sheeted.  

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4. Mr.  Ranjan  Mukherjee,  learned  amicus  curiae,  

submitted  that  the  evidence  recorded  is  insufficient  to  

warrant  a  conviction  in  the  absence  of  any  direct  

evidence.  Learned counsel also pointed out that there are  

a lot of inconsistencies in the dying declarations recorded  

and  a  conviction  solely  on  those  inconsistent  versions  

cannot be sustained. Learned counsel also submitted that  

unless there is corroborative evidence, no reliance could  

be  placed  on  the  inconsistent  versions  given  by  the  

deceased in the dying declarations.  Learned counsel also  

submitted that, in any view, the present case would not  

fall  under  Section  302,  and,  at  best,  it  may  fall  either  

under Section 304 Part I or Section 304 Part II.  Reference  

was made to exception 4 to Section 300 IPC and stated  

that since the accused was under the influence of liquor, it  

has to be perceived that there was no intention to kill the  

deceased.  Reference was made to the Judgments of this  

Court in  Sukhbir Singh v.  State of Haryana (2002) 3  

SCC 327 and  Sandesh alias Sainath Kailash Abhang  

v. State of Maharashtra (2013) 2 SCC 479.  

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5. Mr. Shankar Chillarge, learned counsel appearing for  

the respondent-State, submitted that the trial court as well  

as the High Court has correctly appreciated the oral and  

documentary  evidence adduced in  this  case,  especially,  

the dying declarations.  Learned counsel pointed out that  

both the dying declarations have been properly recorded  

and the doctor had certified that the deceased was in a  

sound  state  of  mind  to  give  her  version  and  the  

statements of the deceased were correctly recorded in the  

dying  declarations.  Learned  counsel  submitted  that  the  

dying declaration made before the Executive Magistrate is  

consistent  with  the  earlier  statement  made  before  the  

police in  the presence of  the doctor,  who had deposed  

that the deceased was in a condition to give her version of  

the incident.   

6. We may indicate that in this case the conviction was  

recorded on the basis of the dying declarations, Ext.P26  

and Ext.P23 corroborated by circumstantial evidence.  The  

first  dying  declaration  was  recorded  by  PW5,  the  Head  

Constable  on  19.10.1998  when  the  deceased  was

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admitted to the Civil Hospital, Satara.  PW1, who treated  

the deceased, informed PW5 that the deceased was fully  

conscious and was in a condition to give her statement.  

Ext.P26 was recorded by PW5,  in the presence of PW1.  

Later, the Special Magistrate (PW4) also reached the Civil  

Hospital.   PW3,  who  examined  the  deceased,  also  

informed PW4 that the deceased was fully conscious, well  

oriented and in a fit condition to give the statement.  PW4,  

therefore,  recorded the second dying declaration in  the  

presence of  PW3.   We have gone through Ext.P26 and  

Ext.P23 and noticed no inconsistency in  the statements  

made  by  the  deceased  to  PW5  as  well  as  to  PW4.  

Statements  therein  were  further  corroborated  by  the  

evidence  of  PW6,  father  of  the  deceased.   PW4,  who  

conducted the post-mortem examination, stated that burn  

injuries  found on  the  body of  the  deceased were  ante-

mortem injuries, which were sufficient to cause death.   

7. Dying  declaration  is  undoubtedly  admissible  under  

Section 32 of the Indian Evidence Act, but due care has to  

be given by the persons who record the statement.  Dying

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declaration is an exception to the hearsay rule when it is  

made by the declarant at the time when it is believed that  

the  declarant’s  death  was  near  or  certain.   Dying  

declaration  is  based  on  the  maxim,  “Nemo  moriturus  

praesumitur mentire” i.e. a man will not meet his maker  

with a lie in his mouth.  Dying declaration is a statement  

made by a dying person as to the injuries culminated in  

his death or the circumstances under which the injuries  

were inflicted.   Hearsay evidence is not accepted by the  

law of evidence because the person giving the evidence is  

not narrating his own experience or story, but rather he is  

presenting whatever he could gather from the statement  

of  another  person.   That  other  person  may  not  be  

available  for  cross-examination  and,  therefore,  hearsay  

evidence  is  not  accepted.   Dying  declaration  is  an  

exception to hearsay because, in many cases, it may be  

sole evidence and hence it becomes necessary to accept  

the same to meet the ends of justice.

8. The  Court  has  to  carefully  scrutinize  the  evidence  

while  evaluating  a  dying  declaration  since  it  is  not  a

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statement  made  on  oath  and  is  not  tested  on  the  

touchstone of cross-examination. In   Harbans Singh &  

another v. State of Punjab AIR 1962 SC 439 this Court  

held that it is neither a rule of law nor of prudence that  

dying  declaration  requires  to  be  corroborated  by  other  

evidence  before  a  conviction  can  be  based  thereon.  

Reference may also be made to the decision of this Court  

in  State of Uttar Pradesh v. Ram Sagar Yadav and  

others (1985) 1 SCC 552.   This Court in State of Uttar  

Pradesh v. Suresh alias Chhavan and others (1981) 3  

SCC 635  held  that  minor  incoherence in  the  statement  

with regard to the facts and circumstances would not be  

sufficient  ground for  not  relying  upon statement,  which  

was otherwise found to be genuine.  Hence, as a rule of  

prudence, there is no requirement as to corroboration of  

dying declaration before it is acted upon.   

9. Ext.P23,  the first  dying declaration in this  case,  as  

already stated, was recorded by PW5, the Head Constable,  

in  the  presence  of  PW1,  the  doctor  who  treated  the  

deceased at the hospital.   PW1 doctor had categorically

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deposed that the deceased was fully conscious and was in  

a condition to give the statement.   Ext.P26,  the second  

dying  declaration  was  recorded  by  the  Special  Judicial  

Magistrate,  PW4.   The  deceased  at  that  time  was  

examined  by  PW3,  who  had  also  deposed  that  the  

deceased was fully conscious, well oriented and was in a  

condition to give the statement.  We have gone through  

Ext.P26  and  Ext.P23  and  find  no  reason  to  discard  the  

statements  recorded  in  both  the  dying  declarations,  

which,  in  our  view,  are  consistent  and minor  variations  

here  and  there  would  not  be  sufficient  to  discard  the  

entire statement considering the fact that the victim was  

suffering from more than 80% burn injuries.   

10. Learned counsel appearing for the accused-appellant  

submitted that since the accused was under the influence  

of liquor, he had no intention to kill the deceased wife and,  

therefore,  at  best,  the  offence  would  fall  either  under  

Section 304 Part I or Section 304 Part II of the Indian Penal  

Code.   We  find  it  difficult  to  accept  this  contention.  

Assuming that the accused was fully drunk, he was fully

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conscious  of  the  fact  that  if  kerosene  is  poured  and  a  

match-stick lit and put on the body, a person might die  

due to burns.    A fully  drunk person is  also sometimes  

aware  of  the  consequences  of  his  action.   It  cannot,  

therefore, be said that since the accused was fully drunk  

and under the influence of liquor, he had no intention to  

cause death of the deceased-wife.   Learned counsel  for  

the Appellant made reference to Sandesh alias Sainath  

Kailash  Abhang (supra),  wherein  even  though  it  was  

stated that committing the offence under the influence of  

liquor is a mitigating circumstance, but was later clarified  

in an order passed in Review Petition (Crl.) No.D8875 of  

2013, filed in that case, stating as follows :

“…  However  our  observations  may  not  be  construed  to  generally  mean  that  drunkenness  of  an  accused  is  a  mitigating  factor in the award of punishment.”

11. Intoxication, as such, is not a defence to a criminal  

charge.  At times, it can be considered to be a mitigating  

circumstance  if  the  accused  is  not  a  habitual  drinker,  

otherwise,  it  has  to  be  considered  as  an  aggravating  

circumstance.   The  question,  as  to  whether  the

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drunkenness  is  a  defence  while  determining  sentence,  

came  up  for  consideration  before  this  Court  in  Bablu  

alias Mubarik Hussain v. State of Rajasthan  (2006)  

13 SCC 116, wherein this Court held that the defence of  

drunkenness  can  be  availed  of  only  when  intoxication  

produces  such  a  condition  as  the  accused  loses  the  

requisite intention for the offence and onus of proof about  

reason  of  intoxication,  due  to  which  the  accused  had  

become  incapable  of  having  particular  knowledge  in  

forming  the  particular  intention,  is  on  the  accused.  

Examining  Section  85  IPC,  this  Court  held  that  the  

evidence  of  drunkenness  which  renders  the  accused  

incapable  of  forming  the  specific  intent  essential  to  

constitute the crime should be taken into account with the  

other facts proved in order to determine whether or not  

he had the intention.  Court held that merely establishing  

that  his  mind  was  affected  by  drink  so  that  he  more  

readily gave way to some violent passion, does not rebut  

the  presumption  that  a  man  intends  the  natural  

consequences  of  his  acts.   This  Court,  in  that  case,

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rejected the plea of drunkenness after noticing that the  

crime committed was a brutal and diabolic act.   

12. We find it  difficult  to  accept  the contention of  the  

counsel that since the accused-Appellant was under the  

influence of liquor, the offence will fall under Section 304  

Part I or Section 304 Part II.  A-1 was presumed to know  

the consequences of his action,  of having lit  the match  

stick  and  set  fire  on  the  saree  of  deceased,  after  A-2  

sprinkled kerosene on her body.  In our view, the accused  

was correctly charge-sheeted under Section 302 IPC and  

we find  no  reason  to  interfere  with  the  conviction  and  

sentence awarded by the trial court and affirmed by the  

High Court.   

13. Learned counsel appearing for the appellant-accused  

further submitted that the appellant has already served  

the sentence for more than 16 years without remission, he  

should  be set  free.   Learned counsel  appearing for  the  

State  brought  to  our  knowledge the  guidelines  for  pre-

mature  release  under  the  “14  Year  Rule”  of  Prisoners  

serving  life  sentence  after  18th December,  1978.   The

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Government  Resolution  No.RLP1006/CR621/PRS-3  dated  

11.04.2008 issued by the Government of Maharashtra has  

made applicable the guidelines to convicts undergoing life  

imprisonment  and  those  having  good  behavior  while  

undergoing the sentence.   

14. Annexure 1 to the said Government Resolution refers  

to  various  categories  of  offences  and  the  period  of  

imprisonment to be undergone including set-off.   In the  

instant  case,  relevant  category  No.2  which  deals  with  

“the offences regarding the crimes against women  

and minors” reads as under:

Annexure I

Cate gory  No.

Categorization  of  

crime

Period  of  imprisonment  to  be  undergone  including  remission  subject  to  a  minimum  of  14  years  of  actual  imprisonment  including set off  period

2 Offences  relating  to  crimes against women and  minors

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a Where  the  convict  has  no  previous criminal  history and  committed  the  murder  in  an  individual  capacity  in  a  moment of anger and without  premeditation.

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b Where  the  crime  as  above  committed with premeditation

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15. Resolution, referred to above read with Annexure I,  

would indicate that the appellant has to serve a period of  

minimum 20 years with remission.   Since the appellant  

has  already  suffered  16  years  of  sentence  without  

remission, the State Government is directed to consider  

as  to  whether  he  has  satisfied  the  requirement  of  

Resolution dated 11.04.2008 read with Annexure I and, if  

that be so, he may be set free if the period undergone by  

him without remission would satisfy the above-mentioned  

requirement.   

16. The appeal is disposed of with the above direction.

………………………….J. (K.S. Radhakrishnan)

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………………………….J. (Vikramajit Sen)

New Delhi, March 13, 2014