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Friday, March 14, 2014

“14 Year Rule” = The Government Resolution No.RLP1006/CR621/PRS-3 dated 11.04.2008 issued by the Government of Maharashtra - the apex court confirmed the conviction and further the Apex court held that Since the appellant has already suffered 16 years of sentence without remission, the State Government is directed to consider as to whether he has 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.= Bhagwan Tukaram Dange …. Appellant Versus State of Maharashtra …. Respondent= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41317

  “14 Year Rule” =  The  Government  Resolution  No.RLP1006/CR621/PRS-3  dated
11.04.2008 issued by the Government of Maharashtra - the apex court confirmed the conviction and  further the Apex court held that Since the appellant has already suffered 16  years  of  sentence without remission, the State  Government  is  directed  to  consider  as  to
whether he has 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.=

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. =
Apex court also confirmed the Lower court conviction..................

“14 Year Rule” =  The  Government  Resolution  No.RLP1006/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.

14.   Annexure 1  to  the  said  Government  Resolution  refers  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:
                                 Annexure I
|Categ|   |Categorization of crime           |Period of          |
|ory  |   |                                  |imprisonment to be |
|No.  |   |                                  |undergone including|
|     |   |                                  |remission subject  |
|     |   |                                  |to a minimum of 14 |
|     |   |                                  |years of actual    |
|     |   |                                  |imprisonment       |
|     |   |                                  |including set off  |
|     |   |                                  |period             |
|2    |   |Offences relating to crimes       |                   |
|     |   |against women and minors          |                   |
|     |a  |Where the convict has no previous |20                 |
|     |   |criminal history and committed the|                   |
|     |   |murder in an individual capacity  |                   |
|     |   |in a moment of anger and without  |                   |
|     |   |premeditation.                    |                   |
|     |b  |Where the crime as above committed|22                 |
|     |   |with premeditation                |                   |

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  consider  as  to
whether he has 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.

2014 (March. Part ) judis.nic.in/supremecourt/filename=41317
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                                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 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 appreciated the oral and  documentary  evidence  adduced  in  this
case, especially, the dying declarations.  Learned counsel pointed out  that
both the dying declarations have been properly recorded and the  doctor  had
certified that the deceased was in  a  sound  state  of  mind  to  give  her
version and the statements of the deceased were correctly  recorded  in  the
dying declarations. Learned counsel submitted  that  the  dying  declaration
made  before  the  Executive  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 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  PW5  that
the deceased was fully  conscious  and  was  in  a  condition  to  give  her
statement.  Ext.P26 was recorded by PW5, 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
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.
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.

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 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  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  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 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 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 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 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 already  stated,
was recorded by PW5, the Head Constable, in the presence of PW1, the  doctor
who treated the deceased at 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  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 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 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  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 of the  deceased-wife.   Learned  counsel  for  the
Appellant made reference to Sandesh alias Sainath  Kailash  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.)  No.D8875  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.”


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 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 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 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 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  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
on her body.  In our 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 further  submitted
that the appellant has already served the 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/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.

14.   Annexure 1  to  the  said  Government  Resolution  refers  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:
                                 Annexure I
|Categ|   |Categorization of crime           |Period of          |
|ory  |   |                                  |imprisonment to be |
|No.  |   |                                  |undergone including|
|     |   |                                  |remission subject  |
|     |   |                                  |to a minimum of 14 |
|     |   |                                  |years of actual    |
|     |   |                                  |imprisonment       |
|     |   |                                  |including set off  |
|     |   |                                  |period             |
|2    |   |Offences relating to crimes       |                   |
|     |   |against women and minors          |                   |
|     |a  |Where the convict has no previous |20                 |
|     |   |criminal history and committed the|                   |
|     |   |murder in an individual capacity  |                   |
|     |   |in a moment of anger and without  |                   |
|     |   |premeditation.                    |                   |
|     |b  |Where the crime as above committed|22                 |
|     |   |with premeditation                |                   |

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  consider  as  to
whether he has 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.




                                                               ………………………….J.
                            (K.S. Radhakrishnan)






                                                               ………………………….J.
                              (Vikramajit Sen)


New Delhi,
March 13, 2014

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