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Non-Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1203 OF 2009

MAHADEO NARAYAN MORE & ANR. …. Appellants

Versus

STATE OF MAHARASHTRA …. Respondent

J U D G M E N T  

Uday Umesh Lalit, J.

1. This  appeal  challenges  the  judgment  and  order  dated  26.04.2007  

passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur  

in Criminal Appeal No.403 of 1991 whereby it set aside the acquittal of the  

present appellants and convicted them under Section 302 read with Section  

34 IPC and sentenced them to suffer imprisonment for life and to pay a fine  

of  Rs.1,000/-,  in  default  whereof to  suffer  rigorous imprisonment  for  six  

months.

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2. PW-1 Sukhdeo and the present appellants are brothers and they were  

residing separately but in adjacent houses.  PW-1 Sukhdeo had sold three  

lambs.   The appellants were demanding their share in the proceeds from  

PW-1 Sukhdeo and his wife Sushila.  Refusal to give them any share led to a  

quarrel and the appellants who had consumed liquor, allegedly threatened  

Sushila that she would be set on fire.  Sushila had therefore lodged a report  

(Ext.30) on 16.10.1990 with the Police.  On the next day i.e. on 17.10.1990  

at about 4.30 pm while PW-1 Sukhdeo had gone to a grocery shop, he heard  

noise that a lady was burning.  When he came rushing, he found Sushila in  

flames in front of his house.  He poured water and doused the fire.  Sushila  

told PW-1 Sukhdeo that appellant no.2 had poured kerosene on her while  

appellant no.1 was holding her and that she was thus set afire.  The Police  

reached the spot and she was taken to Ural Police Station.  Sushila made an  

oral report to PW-12 PSI Deomurar adverting to the dispute and the quarrel  

of the previous day and stated that the appellants had again made a demand  

for money obtained from the sale of lambs, had quarreled with her and later  

set her afire.  As per her version, the incident was witnessed by one Kusum  

and Motiram.

3. This  oral  report  was  reduced to  writing  with thumb impression  of  

Sushila  (Ext.41),  based  on  which  Crime  No.109  of  1990  was  registered  

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against  the appellants.   Sushila was removed to the hospital  where,  after  

taking opinion of PW-7 Dr. Ravindra Kumar as regards her fitness to record  

a statement, a dying-declaration Ext.34 was recorded by a Special Executive  

Magistrate in which Sushila reiterated that the appellants had set her on fire.  

Sushila expired in the hospital five days later i.e., on 21.10.1990.  PW-9 Dr.  

Siraj  Ansari  conducted  post-mortem and found the  cause  of  death  to  be  

septicemia with shock due to 91% burn injuries.   

4. The appellants were tried for having committed the murder of Sushila  

in  Sessions  Trial  No.47 of  1991 in the Court  of  the Additional  Sessions  

Judge, Akola.  The prosecution examined 13 witnesses and principally relied  

on three dying declarations, the first one being oral dying declaration to PW-

1 Sukhdeo, the second being Ext.41 as aforesaid while the 3rd one being  

Ext.34 which was recorded by the Special Executive Magistrate.  Though  

PW-1 Sukhdeo supported the case of the prosecution, PW-4 Motiram did not  

and was declared hostile.  Kusum was not examined as witness.  The trial  

court  was  of  the  view  that  none  of  the  prosecution  witnesses  who  had  

accompanied PSI Devmurar had stated that  the statement  of  Sushila  was  

recorded on the spot.  As regards other dying declaration Ext.34, the trial  

court found that the Doctor had not ascertained whether Sushila was in a  

position  to  talk,  nor  had  the  Executive  Magistrate  spoken  to  her  before  

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recording her statement.  It was observed that while this dying declaration  

was being recorded, PW-1 Sukhdeo was with her since the incident and thus  

he had ample opportunities to tutor her.  The trial court gave benefit of doubt  

to the appellants and acquitted them of the charge leveled against them by its  

judgment and order dated 10.07.1991.

5. The State being aggrieved, preferred Appeal before the High Court.  

The  High  Court  on  re-appreciation  of  the  evidence  found  that  the  

prosecution had brought home the case against the appellants, that the trial  

court had not considered the dying declarations vis-à-vis the circumstances  

appearing on the record in proper perspective and that its approach was quite  

perverse.  The High Court found the appellants guilty and sentenced them to  

undergo imprisonment for life, as stated above.  In this appeal under Article  

134 of the Constitution of India read with the Supreme Court (Enlargement  

of  Criminal  Appellate Jurisdiction) Act,  we have heard Mr.  P.R.  Kumar,  

learned advocate appearing for the appellants and Mr. Nitin Lonkar, learned  

advocate appearing for the State and have gone through the entire evidence  

on record.    

6. The oral reporting made by deceased Sushila which was reduced to  

writing, namely, Ext.41 is quite consistent with her reporting of the previous  

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day, namely, Ext.30 and the subsequent dying declaration Ext.34 recorded  

by the Special Executive Magistrate.  In Ext.41, the relevant assertion was to  

the following effect:

“On 16.10.90 in the evening the two persons i.e. Jagdeo  Narayan More and Mahadeo Narayan More who are my  real  brothers-in-law,  after  consuming  liquor  made  a  demand for money obtained from the sale of she goats  and then they abused and quarreled and thereafter they  assaulted me and my husband with kicks and fists.   In  this  connection  I  have  lodged  report  at  Police  Station  Ural on 16.10.90 at 8.30 O’clock in the night.

Since  morning,  my  above  named  Dir.  And  Jeth  (  i.e.  Husband’s Younger brother and Husband’s elder brother)  abused, and quarreled with me and my husband and these  two together took out kerosene from the tin kept in my  house  and  poured  the  same  on  my person  at  about  4  O’clock.  Husband’s Younger brother i.e. Jagdeo poured  kerosene on my person while husband’s elder brother i.e.  Mahadeo caught hold of me.  Jagdeo set me on fire by  lighting a match stick.  At that time I was alone in the  house.   On  account  of  setting  mke  on  fire,  I  have  sustained injuries on my both hands, back, backside seat  portion and on both legs.”

The relevant statements in the dying declaration Ext.34 were as under:

“My brothers-in-law i.e.  Jagdeo and Mahadeo took the  kerosene container from my house and then poured the  same on my person and by lighting the match stick they  set me on fire.  My saree on the person started burning.”

7. PW-1  Sukhdeo  in  his  testimony  deposed  to  the  incident  of  the  

previous day as well as the events on the fateful day.  PW-7 Dr. Ravindra  

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Kumar Chaudhary at the beginning of recording Ext.34 had certified “patient  

conscious and in a position to give dying declaration” and at the end of said  

Ext.34 had also certified “DD recorded in my presence.  Patient conscious  

during DD”.  While in the box, the doctor categorically stated that he was  

present  when  the  dying  declaration  was  recorded  and  that  Sushila  was  

conscious and fit to make a statement.  His deposition in that behalf was as  

follows:

“I went to the Burn Ward along with him – i.e. Special  Executive Magistrate.  I examined the patient by name  Sushila Sukhdeo More aged 30 years and found her to be  conscious and fit for giving dying declaration.  I certified  it accordingly.

Her  dying  declaration  was  recorded  by  the  Spl.  Magistrate.   I  was present  there when it  was recorded.  After its recording, again I examined her.  I found her to  be conscious.  I made endorsement to that effect on the  declaration  which  was  reduced  into  writing  the  Ex.  Magistrate.  It is at Ex.34.  I admit my signatures on it.  When the statement  was  recorded,  myself  and the  Ex.  Magistrate were only there.”

We have seen the original record and the endorsements of the Doctor.  The  

dying declaration Ext.34 thus inspires complete confidence and we do not  

see any reason to doubt the veracity thereof.  Additionally the threat that  

Sushila  would be set  on fire  was given the previous day,  as  per  Ext.30,  

recorded on the previous day.   Having gone through the record minutely we  

do not find any infirmity in the assessment made by the High Court.

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8. This appeal is, therefore, dismissed.   The appellants shall  serve the  

sentence as awarded by the High Court.

………………………..J. (Dipak Misra)

………………………..J. (Uday Umesh Lalit)

New Delhi, December 17, 2014

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