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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO(S).  277 OF 2016

MEHBOOB & ANR.                              Appellant(s)

                               VERSUS

THE STATE OF MAHARASHTRA                    Respondent(s)

J U D G M E N T KURIAN, J.

1. The appellants have been convicted under Section

302 IPC.  The deceased was the wife of the first

appellant and the second appellant was his concubine.

The  conviction  is  mainly  based  on  two  dying

declarations  made  by  the  deceased.   The  oral

statement (Exhibit 19) given by the deceased to the

police personnel shows that the first appellant had

poured kerosene on her and the second appellant had

set her on fire.

2. However,  it  is  the  vehement  submission  of

Mr.Chanchal Kumar Ganguly, learned counsel appearing

for  the  appellants,  that  the  deceased  had  clearly

stated in the first dying declaration that the second

appellant had poured water and extinguished the fire.

In the second dying declaration (Exhibit 28), which

is recorded by Naib Tehsildar, it has come out that

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both the appellants had extinguished the fire.  The

learned  counsel,  therefore,  submits  that  the

appellants are liable, in any case, for conviction

only under Section 304 Part II IPC.

3. But, as rightly pointed out by Mr. Nishant R.

Katneshwarkar,  learned  counsel  appearing  for  the

State, extinguishing the fire has just come out of a

spontaneous human instinct and in case the appellants

had  the  real  intention  of  saving  the  life  of  the

deceased, they would have at least taken her to the

hospital; instead she was just left at her paternal

home and both the accused escaped from the place.

4. Having  heard  the  learned  counsel  appearing  on

both sides and having gone through the pleadings and

referring  to the  evidence, we  are not  inclined to

take a different view as far as the conviction made

by the trial court and upheld by the High Court.

5. However,  we  make  it  clear  that  in  case  the

appellants have completed 14 years in jail, including

the remission, subject to their jail conduct being

satisfactory, they shall be released on bail, subject

to such conditions as may be imposed by the trial

court,  pending  a  final  decision  for  premature

release.

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6. Subject to the above, the appeal is disposed of.

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ S. ABDUL NAZEER ]  

New Delhi; October 11, 2018.