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SUPREME COURT OF INDIA
K.S. Radhakrishnan & Vikramajit Sen, JJ.
Bhagwan Tukaram Dange – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL APPEAL NO.1823 OF 2008
Decided On : 13-03-2014
AIR 1962 SC 439; (1985) 1 SCC 552; (1981) 3 SCC 635 – Relied upon
(b) Indian Penal Code, 1860 – Section 302 – Intoxication – Whether mitigating circumstance – May be, if the accused is not a habitual drinker – Otherwise, it has to be considered as an aggravating circumstance – More so when the crime is a brutal and diabolic act. (Para 11)
(2006) 13 SCC 116 – Relied upon
(c) Indian Penal Code, 1860 – Section 304 Part I or II – Plea of intoxication – Even a fully drunk man knows that if kerosene is poured and a match-stick lit and put on the body, a person might die due to burns – Being fully drunk does not mean that even pouring kerosene and then lighting it with match stick the accused had no intention to cause death of the deceased-wife – Accused rightly convicted u/s 302 IPC – No reason to interfere. (Para 10, 12)
(2002) 3 SCC 327; (2006) 13 SCC 116 – Relied upon
(2013) 2 SCC 479 – Distinguished impliedly
Facts of the case:
Appellant, 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.
Both were found guilty and sentenced to suffer imprisonment for life, with a default sentence.
Their Criminal Appeal was dismissed by the High Court.
Finding of the Court:
There is no reason to interfere with the impugned conviction.
Result: Appeal disposed of.
JUDGMENT
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 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 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.
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.
5. Mr. Shankar Chillarge, learned counsel appearing for the respondent- State, submitted that the trial court as well as the High Court has correctly a
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