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NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.1046 OF 2011  

BHAGWAT                      Appellant(s)  

                               VERSUS  

STATE OF MAHARASHTRA                   Respondent(s)  

J U D G M E N T  

NAVIN SINHA, J.  

1. The appellant stands convicted under Section 302  

IPC and sentenced to life imprisonment for the death of  

his wife at home by burn injuries on 06.04.2003. The  

deceased expired the next day. The High Court acquitted  

him of the charge under Section 498-A IPC regarding  

dowry demand.  

2. Learned counsel for the appellant submitted that

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there is no eye witness to the occurrence. There were  

three dying declarations at variance with each other.  

Conviction has been erroneously based on the third  

dying declaration merely because it was made in  

presence of the Special Judicial Magistrate. Reliance  

in support of the submission was placed on State of  

Rajasthan v. Shravan Ram & Another, AIR 2013 SC 1890.  

In the alternative it was submitted that the deceased  

may have died on account of accidental burns while  

cooking or brewing tea. The appellant may have  

assaulted her under some grave provocation with regard  

to some occurrence inside the house to which no one  

else may have been privy. The appellant had also  

suffered burn injuries on his left hand while  

attempting to save the deceased. The deceased was taken  

to the hospital by the appellant which is further proof  

of his innocence. The conviction under Section 302 IPC  

therefore deserves to be altered to one under Section  

304-II IPC, if not acquittal.  

 3. Learned counsel for the State opposing the appeal

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submitted that the third dying declaration stands  

proved by PW-7 the Special Judicial Magistrate, who had  

recorded the same. PW-8, the Doctor who certified the  

condition of the deceased at the relevant point of time  

had also been examined. There was no evidence in  

support of the submission that the deceased had died  

either in an accidental fire or that the appellant may  

have assaulted her under grave and sudden provocation.   

4. Having heard the learned counsel for the parties,  

we find that the conviction cannot be said to have been  

based exclusively on the dying declaration made before  

PW-7. Though there is no eye witness to the occurrence,  

there is sufficient circumstantial evidence to hold  

that the appellant alone was the assailant of the  

deceased.   

5. PW-1 Vijay and PW-9, both sons of the deceased have  

consistently deposed that the appellant was addicted to  

consuming liquor and in an inebriated condition, he  

would often assault the deceased. On the date of the  

occurrence, the two witnesses were asked by the

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appellant to go out of the room. The appellant closeted  

himself with the deceased. Thereafter, the witnesses  

heard shouts for help and when the door was opened they  

saw their mother with burn injuries. The spot map  

Exh.19 concluded that there was no evidence of any  

firewood or fire in the kitchen for brewing tea or  

cooking food. The High Court has appropriately observed  

that if it was a case of accidental fire in the  

kitchen, the burn injuries would primarily have been on  

front portion of the body. The post-mortem report  

Exh.21 noticed the following burn injuries on the  

deceased:  

Head face neck    9%  

Back       18%  

Back Upper Limbs    18%  

Both Lower Limbs    34%  

Anterior Chest upto  

Umbilicus Deep Burns    11%  

6. There is absolutely no material on record to  

suggest any assault under grave and sudden provocation.

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The conduct of the appellant in absconding for  

approximately three months from the date of the  

occurrence, till he was taken into custody, was  

contrary to normal human behavior and belies his claim  

to innocence. It is not possible to accept the plea of  

any burn injuries on his hands three months later. The  

deceased died a homicidal death inside the matrimonial  

home. In the circumstances noticed hereinbefore,  

undoubtedly the appellant owed an explanation under  

Section 106 of the Evidence Act, 1872 with regard to  

how the deceased had met a homicidal death inside the  

house. He failed to discharge the onus completely. The  

aforesaid, in our opinion, are sufficient to uphold the  

conviction of the appellant.  

7. Since an argument has been made with regard to  

three inconsistent dying declarations, we consider it  

only proper to deal with them also. The first dying  

declaration, Exh.10 was recorded by a police officer at  

the hospital. It speaks of an accidental fire. Though  

it bears a seal of a medical officer below the  

certification of fitness, it is not signed by anyone.

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Except for the policeman who recorded the same no  

doctor has been examined in support of the same. The  

second dying declaration stated to have been made  

orally before her relatives Pw’s- 2,3 and 6 blamed the  

appellant for having set her on fire, with an  

additional statement of a dowry demand. The third dying  

declaration Exh.27 also blamed the appellant for having  

set the deceased on fire. It was recorded by PW-7, a  

Special Judicial Magistrate who proved the same. PW-8,  

the Doctor who certified the fitness and was present  

during the same has also testified. We consider the  

dying declaration, in the facts and circumstances of  

the case, a corroborative material. The dying  

declaration recorded by PW7 and proved by him certainly  

commends to us for acceptance.  

8.  The first dying declaration is not only a  

suspicious document, but it is also considered a self-

serving statement by the appellant, attributed to the  

deceased for saving himself. If the statement had been  

recorded in the hospital there is no reason why the

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doctor in whose presence it may have been recorded, not  

to have initialed it and deposed in support of the  

same.  The 2nd dying declaration is oral in nature made  

before the relatives of the deceased, which may be  

considered self-serving. In any event the appellant has  

been acquitted of the charge under Section 498A. The  

third dying declaration has been duly proved by PW-7  

and PW-8. We see no reason why it cannot be relied upon  

as the truth.   

9. In Harjit Kaur v. State of Punjab (1999) 6 SCC 545,  

the deceased was stated to have made two inconsistent  

dying declarations. The first declaration before the  

police spoke of an accidental fire while the second  

made before the sub-divisional magistrate blamed the  

accused for setting the deceased on fire. Rejecting the  

contention for acceptance of the first dying  

declaration, it was observed as follows :  

“7. It was then contended by the learned  

counsel that this dying declaration  

should not be accepted as true because  

in her first dying declaration made to  

the police officer on 30-4-1992,  

Parminder Kaur had stated that she had

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received burns as a result of an  

accident and that no one else was  

responsible for the same. Both the  

courts below after considering this  

inconsistency have thought it fit to  

rely upon the second dying declaration.  

It has been rightly held as an attempt  

on her part to save her husband and the  

in-laws. The circumstance clearly  

indicates that she was not a free person  

then. The reasons given by the trial  

court and the High Court for not  

considering the first dying declaration  

as voluntary and true are quite  

convincing and we see no reason to  

differ from them. Therefore, the second  

dying declaration cannot be regarded as  

untrue merely because it is contrary to  

her statement made earlier. What she has  

stated in the second dying declaration  

appears to be more probable and  

natural….”   

10. In Shravan Ram (supra) relied upon by the learned  

counsel for the appellant the dying declaration stated  

to have been recorded by the Sub-Divisional Magistrate  

was neither exhibited nor the Sub-Divisional Magistrate  

was examined.   

11. The conviction of the appellant therefore calls for  

no interference. The appeal is dismissed.  

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12. We are informed that the appellant has completed  

approximately 15 years of custody.  If that be so, let  

a copy of this order be forwarded to the Maharashtra  

State Legal Services Authority so that necessary  

assistance is made available to the appellant through  

the concerned District Legal Services Authority with  

regard to the consideration for remission in accordance  

with law, if the appellant, so desires.  

...................................................J.                                                                      (NAVIN SINHA)                 

...................................................J.                                                                        (K.M. JOSEPH)                

New Delhi;  September 19, 2018