BHAGWAN TUKARAM DANGEversusSTATE OF MAHARASHTRA

                     [2014] 3 S.C.R. 753


              BHAGWAN TUKARAM DANGE                                A
                               V.
                STATE OF MAHARASHTRA
            (Criminal Appeal No. 1823 of 2008)

                      MARCH 13, 2014
                                                                   B
 [K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]

    PENAL CODE, 1860:

     ss.302 and 498-A rlw s. 34 - Death of wife of appellant       c
with bum injuries - Appellant arid his father, drunk, asking the
victim to bring money from her parental house - On refusal
she was given severe beatings - Kerosene poured on her and
appellant setting her on fire - Dying declarations - Conviction
by courts below and sentence of life imprisonment - Held:          0
Conviction was recorded on the basis of dying declarations
recorded by Head Constable and Judicial Magistrate - Said
statements were further corroborated by father of deceased
and medical evidence - There is no reason to interfere with
the conviction and sentence.
                                                                   E
    s. 85 - Act of a person under influence of intoxication -
Held: Intoxication, as such, is not a defence to a criminal
charge - It cannot be accepted that since accused-appellant
was under influence of liquor, offence will fall u/s 304 (Part I)
or s. 304 (Part II) - He was presumed to know the F
consequences of his action, of having lit the match stick and
set his wife on fire, after his father sprinkled kerosene on her
body - He was correctly charge-sheeted u/s 302 and there is
no reason to interfere - Since appellant has already suffered
16 years of sentence without remission, State Government is G
directed to consider his case in terms of Resolution dated
11. 04. 2008 read with Annexure I - Sentence - Remission of -
Government of Maharashtra Resolution No.RLP1006/CR6211
PRS-3 dated 11.04.2008.
                                753                               H
    754      SUPREME COURT REPORTS             [2014] 3 S.C.R.

A         EVIDENCE ACT, 1872:

          s.32 - Dying declaration - Evidentiary value of -
    Explained.

         The appellant (A-1) and his father (A-2) were
B   prosecuted for offences punishable ulss 302, 498A read
    with s.34 IPC, for the murder of the wife of A-1. The
    prosecution case was that on 18.10.1998 at about 7.00
    PM, A1 and A2, while they were fully drunk, demanded
    money from the wife of A-1. On refusal, she was severely
C   beaten up and asked to bring it from her parental house.
    A-2 then sprinkled kerosene on her and A-1 lit a match-
    stick and set her on fire. On 19.10.1998, at about 3.10 AM
    she was admitted in the Civil Hospital. Two dying
    declarations - one by Head Constable (PW-5) and the
D   other by the Special Judicial Magistrate (PW-4) - were
    recorded. The narration of the incident by the deceased
    to her father (PW-6) was treated as the third dying
    declaration. The deceased succumbed to the burn
    injuries on 21.10.1998. The trial court convicted and
E   sentenced both the accused for the offences charged.
    The High Court declined to interfere. Meanwhile A-2 died.

          Disposing of the appeal, the Court

       HELD: 1.1 The conviction was recorded on the basis
F of the dying declarations recorded by PW-5 and PW-4,
  and corroborated by circumstantial evidence. Both the
  times the deceased was examined by the doctors and
  they deposed that she was fully conscious and in a
  condition to give the statement. There is no
G inconsistency in the statements made by the deceased
  to PW5 as well as to PW4. The statements were further
  corroborated by the evidence of PW6, father of the
  deceased. The doctor, who conducted the post-mortem
  examination, stated that burn injuries found on the body
H of the deceased were ante-mortem injuries, which were
     BHAGWAN TUKARAM DANGE v. STATE OF                     755
               MAHARASHTRA
sufficient to cause death. [para 6] [759-C-D, F-G]                A
    · 1.2 Dying declaration is undoubtedly admissible u/s
32 IPC of the Evidence Act, but due care has to be taken
by the persons who record the statement. Dying
declaration is based on the maxim, "Nemo moriturus
                                                                  8
praesumitur mentire" i.e. a man will not meet his maker
with a lie in his mouth. Dying declaration is an exception
to heresay rule. The court has to carefully scrutinize the
evidence while evaluating a dying declaration since it is
not a statement made on oath and is not tested on the
touchstone of cross-examination. As a rule of prudence,           C
there is no requirement as to corroboration of dying
declaration before it is acted upon. [para 7-8) [759-G-H;
760-A, C, D-E]
      Harbans Singh & another v. State of Punjab 1962 Suppl.      o
  SCR 104 =AIR 1962 SC 439; State of Uttar Pradesh v. Ram
· Scigar Yadav and others 1985 (2) SCR 621 = (1985) 1 SCC
  552; State of Uttar Pradesh v. Suresh alias Chhavan and
  others (1981) 3 sec 635 - referred to.
     2.1 Intoxication, as such, is not a defence to a criminal    E
charge. At times, it can be considered to be a mitigating
circumstance if the accused is not a habitual drinker,
otherwise, it has to be considered as an aggravating
circumstance. [para 11) [762-A-B]
                                                                  F
     .Bablu alias Mubarik Hussain v. State of Rajasthan 2006
(1 O) Suppl. SCR 835 = (2006) 13 sec 116 - relied on.
      2.2 It cannot be accepted that since the accused-
appellant was under the influence of liquor, the offence
will fall u/s 304 (Part I) or s.304 (Part II). A-1 was presumed   G
to know the consequences of his action, of having lit the
match stick and set fire on the saree of the deceased,
after A-2 sprinkled kerosene on her body. The accused
was correctly charge-sheeted u/s 302 IPC and there is no
reason to interfere with the conviction and sentence              H
    756      SUPREME COURT REPORTS               [2014] 3 S.C.R.

A awarded by the trial court and affirmed by the High Court.
  [para 12] [762-F-G]

      2.3 The Government Resolution No.RLP1006/CR621/
  PRS-3 dated 11.04.2008 issued by the Government of
  Maharashtra read with Annexure I, would indicate that the
9
  appellant has to serve a period of minimum 20 years with
  remission. Since the appellant has already suffered 16
  years of sentence without remission, the State
  Government is directed to consider his case in terms of
  Resolution dated 11.04.2008 read with Annexure I. [para
C 13 and 15] [763-B; 764-C-D]

        Sukhbir Singh v. State of Haryana 2002 (1) SCR 1152
    = (2002) 3 SCC 327 and Sandesh alias Sainath Kai/ash
    Abhang v. State of Maharashtra 2012 (13) SCR 1049 = (2013)
o 2 sec 479 - cited.
                          Case Law Reference:
          2002 (1) SCR 1152             cited         Para 4
          2012 (13) SCR 1049            cited         Para 4
E
          1962 Suppl. SCR 104           referred to   Para 8
          1985 (2) SCR 621              referred to   Para 8
          (1981) 3 sec 635              referred to   Para 8
F
          2006 (10) Suppl. SCR 835      relied on     para 11

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1823 of 2008.

G       From the Judgment and Order dated 09.02.2004 of the
    High Court of Bombay in Crl. A. No. 11 of 2000.

          Ranjan Mukherjee for the Appellant.

      Shankar Chillarge (for Asha Gopalan Nair) for the
H Respondent.
    BHAGWAN TUKARAM DANGE v. STATE OF                       757
              MAHARASHTRA
    The Judgment of the Court was delivered by                      A
     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         B
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        C
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             D
18.10.1998 at about 7.00 PM, fully drunk. On reaching home,
they demanded Rs.200/- to Rs.30Q/- 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-        E
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,    F
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        G
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       H
    758     SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A 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,
B 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
C 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
D 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
E 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.
F 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
G Sandesh alias Sainath Kai/ash 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 appreciated the oral and
H documentary evidence adduced in this case, especially, the
     BHAGWAN TUKARAM DANGE v. STATE OF                      759
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
     .                     .
dying· declarations. Learned counsel pointed out that both the     A
dying declarations have been properly recordec;I and the doctor
had certified that the deceased was in a sound state of mind
to give her version arid the· statements of the deceased were
correctly recorded inthe dying declarations. Learned counsel
submitted that the dying declaration made before the Executive     B
Magistrate is consistent with the earlier statement made before
the police in the presence of the doctor, who had deposed that
the deceased was in a condition to give her version of the
incident.

     6. We may indicate that in this case the conviction was
                                                                   c
recorded on the basis of the dying declarations, Ext.P26 and
Ext.P23 corroborated by circumstantial evidence. The first dying
declaration was recorded by PW5, the Head Constable on
19.10.1998 when the deceased was admitted to the Civil
Hospital, Satara. PW1, who treated the· deceased, informed         D
PW5 that the deceased was fully conscious and was in a
condition to give her statement. Ext.P26 was recorded byPW5,
in the presence of PW1. Later, the Special Magistrate (PW4)
also reached the Civil Hospital. PW3, who examined the
deceased, also informed PW4 that the deceased was fully            E
conscious, well oriented and in a fit condition to give the
statement. PW4, therefore, recorded the second dying
declaration in the presence of PW3. We have gone through
Ext.P26 and Ext.P23 and noticed no inconsistency in the
statements made by the deceased to PW5 as well as to PW4.          F
Statements therein were further corroborated by the evidence
of PW6, father of the deceased. PW4, who conducted the post-
mortem examination, stated that burn injuries found on the body
of the deceased were ante-mortem injuries, which were
sufficient to cause death.                                         G

     7. Dying declaration is undoubtedly admissible under
Section 32 of the Indian Evidence Act, but due care has to be
given by the persons who record the statement. Dying
declaration is an exception to the hearsay rule when it is made    H
    760     SUPREME COURT REPORTS                 [2014} 3 S.C.R.


A by the declarant at the time when it is believed that the
  declarant's death was near or certain. Dying declaration is
  based on the maxim, "Nemo moriturus praesumitur mentire"
  i.e. a man will not meet his maker with a lie in his mouth. Dying
  declaration is a statement made by a dying person as to the
s injuries culminated in his death or the circumstances under
  which the injuries were inflicted. Hearsay evidence is not
  accepted by the law of evidence because the person giving the
  evidence is not narrating his own experience or story, but rather
  he is presenting whatever he could gather from the statement
c of another person. That other person may not be available for
  cross-examination and, therefore, hearsay evidence is not
  accepted. Dying declaration is an exception to hearsay
  because, in many cases, it may be sole evidence and hence it
  becomes necessary to accept the same to meet the ends of
D justice.

       8. The Court has to carefully scrutinize the evidence while
  evaluating a dying declaration since it is not a statement made
  on oath and is not tested on the touchstone of cross-
  examination. In Harbans Singh & another v. State of Punjab
E AIR 1962 SC 439 this Court held that it is neither a rule of law
  nor of prudence that dying declaration requires to be
  corroborated by other evidence before a conviction can be
  based thereon. Reference may also be made to the decision
  of this Court in State of Uttar Pradesh v. Ram Sagar Yadav
F and others (1985) 1 SCC 552. This Court in State of Uttar
  Pradesh v. Suresh alias Chhavan and others (1981) 3 SCC
  635 held that minor incoherence in the statement with regard
  to the facts and circumstances would not be sufficient ground
  for not relying upon statement, which was otherwise found to
G be genuine. Hence, as a rule of prudence, there is no
  requirement as to corroboration of dying declaration before it
  is acted upon.

       9. Ext.P23, the first dying declaration in this case, as
H already stated, was recorded by PW5, the Head Constable, in
     BHAGWAN TUKARAM DANGE v. STATE OF                      761
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
the presence of PW1. the doctor who treated the deceased at         A
the hospital. PW1 doctor had categorically deposed that the
deceased was fully conscious and was in a condition to give
the statement. Ext.P26, the second dying declaration was
recorded by the Special Judicial Magistrate, PW4. The
deceased at that time was examined by PW3, who had also             B
deposed that the deceased was fully conscious, well oriented
and was in a condition to give the statement. We have gone
through Ext.P26 and Ext.P23 and find no reason to discard the
statements recorded in both the dying declarations, which, in
our view, are consistent and minor variations here and there        c
would not be sufficient to discard the entire statement
considering the fact that the victim was suffering from more than
80% burn injuries.

      10. Learned counsel appearing for the accused-appellant
submitted that since the accused was under the influence of         D
liquor, he had no intention to kill the deceased wife and,
therefore, at best, the offence would fall either under Section
304 Part I or Section 304 Part II of the Indian Penal Code. We
find it difficult to accept this contention. Assuming that the
accused was fully drunK, he was fully conscious of the fact that    E
if kerosene is poured and a match-stick lit and put on the body,
a person might die due to burns. A fully drunk person iS also
sometimes aware of the consequences of his action. It cannot,
therefore, be said that since the accused was fully drunk and
under the influence of liquor, he had no intention to cause death   F
of the deceased-wife. Learned counsel for the Appellant made
reference to Sandesh alias Sainath Kai/ash Abhang (supra),
wherein even though it was stated that committing the offence
under the influence of liquor is a mitigating circumstance, but
was later clarified in an order passed in Review Petition (Crl.)    G
No.08875 of 2013, filed in that case, stating as follows :

     "... However our observations may not be construed to
     generally mean that drunkenness of an accused is a
     mitigating factor in the award of punishment."
                                                                    H
    762      SUPREME COURT REPORTS                 [2014] 3 S.C.ft

A      11. Intoxication, as such, is not a defence to a criminal
  charge. At times. it can be considered to be a mitigating
  circumstance if the accused is not a habitual drinker, otherwise,
  it has to be considered as an aggravating circumstance. The
  question, as to whether the drunkenness is a defence while
B determining sentence, came up for consideration before this
  Court in Bablu alias Mubarik Hussain v. State of Rajasthan
  (2006) 13 SCC 116, wherein this Court held that the defence
  of drunkenness can be availed of only when intoxication
  produces such a condition as the accused loses the requisite
c intention for the offence and onus of proof about reason of
  intoxication, due to which the accused had become incapable
  of having particular knowledge in forming the particular
  intention, is on the accused. Examining Section 85 IPC, this
  Court held that the evidence of drunkenness which renders the
  accused incapable of forming the specific intent essential to
0
  constitute the crime should be taken into account with the other
  facts proved in order to determine whether or not he had the
  intention. Court held that merely establishing that his mind was
  affected by drink so that he more readily gave way to some
  violent passion, does not rebut the presumption that a man
E intends the natural consequences of his acts. This Court, in that
  case, rejected the plea of drunkenness after noticing that the
  crime committed was a brutal and diabolic act.

        12. We find it difficult to accept the contention of the
F counsel that since the accused-Appellant was under the
  influence of liquor, the offence will fall under Section 304 Part I
  or Section 304 Part II. A-1 was presumed to know the
  consequences of his action, of having lit the match stick and
  set fire on the saree of deceased, after A-2 sprinkled kerosene
G on her body. In -0ur view, the accused was correctly charge-
  sheeted under Section 302 IPC and we find no reason to
  interfere with the conviction and sentence awarded by the trial
  court and affirmed by the High Court.

          13. Learned counsel appearing for the appellant-accused
H
     BHAGWAN TUKARAM DANGE v. STATE OF                     763 ·
     MAHARASHTRA [K.S. RADHAKRISHNAN, J.) .
further submitted that the appellant has already served the.       A
sentence for more than 16 years without remission, he should
be set free Learned counsel appearing for the State brought
to our knowledge the guidelines for pre~mature release under
the "14 Year Rule" of Prisoners serving life sentence after 18th
December. 1978. The Government Resolution No.RLP1006/              B
CR621/PRS-3 dated 11.04.2008 issued by the Government of
Maharashtra has made applicable the guidelines to convicts
undergoing life imprisonment and those having good behavior
while undergoing the sentence.

     ~4. Annexure 1 to the said Government Resolution refers       C
to various categories of offences and the period of
imprisonment to be undergone including set-off. In the instant
case, relevant category No.2 which deals with "the offences
regarding the crimes against women and minors" reads
as under:                                                          D

                            An.nexure I
Category No.         Categoriz(ition of crime Period of
                                                imprisonment . E
                                               to be
                                               undergone
                                               including
                                               remission
                                               subjectto a
                                                                 F
                                               minimum of 14
                                             . years of actual
                                               imprisonment .
                                               including set off
                                               period
                                                                   G
 2                        Offences· relatin·g to ·
                       ·.crimes ag.ai11st .·
                        ' women and minors
                                                      20
                                                                   H
    764      SUPREME COURT REPORTS                 [2014] 3 S.C.R.

A                           has no previous
                            criminal history and
                            committed the murder
                            in an individual capacity
                            in a moment of anger
8                           and without premeditation.
                    b       Where the crime as           22
                            above committed with
                            premeditation
c      15. Resolution, referred to above read with Annexure I,
  would indicate that the appellant has to serve a period of
  minimum 20 years with remission. Since the appellant has
  already suffered 16 years of sentence without remission, the
  State Government is directed to c9nsider as to whether he has
0 satisfied the requirement of Resolution dated 11.04.2008 read
  with Annexure I and, if that be so, he may be set free if the
  period undergone by him without remission would satisfy the
  above-mentioned requirement.

          16. The appeal is disposed of with the above direction.
E
    RP.                                      Appeal disposed of.