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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 t