“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
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
