MAHADEO NARAYAN MORE & ANR. Vs. STATE OF MAHARASHTRA

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1203 of 2009, Judgment Date: Dec 17, 2014

                                                           Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1203 OF 2009


MAHADEO NARAYAN MORE & ANR.                              .... Appellants

                                   Versus

STATE OF MAHARASHTRA                                    .... Respondent


                               J U D G M E N T

Uday Umesh Lalit, J.


1.    This appeal challenges the judgment and order dated 26.04.2007  passed
by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in  Criminal
Appeal No.403 of 1991 whereby it set aside  the  acquittal  of  the  present
appellants and convicted them under Section 302 read  with  Section  34  IPC
and sentenced them to suffer imprisonment for life and  to  pay  a  fine  of
Rs.1,000/-, in default whereof  to  suffer  rigorous  imprisonment  for  six
months.

2.    PW-1 Sukhdeo and the present appellants are  brothers  and  they  were
residing separately but in adjacent houses.  PW-1  Sukhdeo  had  sold  three
lambs.  The appellants were demanding their share in the proceeds from  PW-1
Sukhdeo and his wife Sushila.  Refusal to give  them  any  share  led  to  a
quarrel and the appellants who had  consumed  liquor,  allegedly  threatened
Sushila that she would be set on  fire.   Sushila  had  therefore  lodged  a
report (Ext.30) on 16.10.1990 with the Police.  On  the  next  day  i.e.  on
17.10.1990 at about 4.30 pm while PW-1 Sukhdeo had gone to a  grocery  shop,
he heard noise that a lady was burning.  When  he  came  rushing,  he  found
Sushila in flames in front of his house.  He poured  water  and  doused  the
fire.  Sushila told PW-1 Sukhdeo that appellant no.2 had poured kerosene  on
her while appellant no.1 was holding her and that she was  thus  set  afire.
The Police reached the spot and  she  was  taken  to  Ural  Police  Station.
Sushila made an oral report to PW-12 PSI Deomurar adverting to  the  dispute
and the quarrel of the previous day  and  stated  that  the  appellants  had
again made a  demand  for  money  obtained  from  the  sale  of  lambs,  had
quarreled with her and later  set  her  afire.   As  per  her  version,  the
incident was witnessed by one Kusum and Motiram.

3.    This oral report was reduced  to  writing  with  thumb  impression  of
Sushila (Ext.41), based  on  which  Crime  No.109  of  1990  was  registered
against the appellants.  Sushila was removed to the  hospital  where,  after
taking opinion of PW-7 Dr. Ravindra Kumar as regards her fitness  to  record
a statement, a dying-declaration Ext.34 was recorded by a Special  Executive
Magistrate in which Sushila reiterated that the appellants had  set  her  on
fire.  Sushila expired in the hospital five days later i.e., on  21.10.1990.
 PW-9 Dr. Siraj Ansari conducted post-mortem and found the  cause  of  death
to be septicemia with shock due to 91% burn injuries.

4.    The appellants were tried for having committed the murder  of  Sushila
in Sessions Trial No.47 of 1991 in the  Court  of  the  Additional  Sessions
Judge, Akola.  The prosecution examined 13 witnesses and principally  relied
on three dying declarations, the first one being oral dying  declaration  to
PW-1 Sukhdeo, the second being Ext.41 as aforesaid while the 3rd  one  being
Ext.34 which was recorded by the Special Executive Magistrate.  Though  PW-1
Sukhdeo supported the case of the prosecution, PW-4 Motiram did not and  was
declared hostile.  Kusum was not examined as witness.  The trial  court  was
of the view that none of the prosecution witnesses who had  accompanied  PSI
Devmurar had stated that the statement of Sushila was recorded on the  spot.
 As regards other dying declaration Ext.34, the trial court found  that  the
Doctor had not ascertained whether Sushila was in a position  to  talk,  nor
had the Executive Magistrate spoken to her before recording  her  statement.
It was observed that while this dying declaration was being  recorded,  PW-1
Sukhdeo was with her since the incident and thus he had ample  opportunities
to tutor her.  The trial court gave benefit of doubt to the  appellants  and
acquitted them of the charge leveled against them by its judgment and  order
dated 10.07.1991.

5.    The State being aggrieved, preferred Appeal  before  the  High  Court.
The  High  Court  on  re-appreciation  of  the  evidence  found   that   the
prosecution had brought home the  case  against  the  appellants,  that  the
trial  court  had  not  considered  the  dying  declarations  vis--vis  the
circumstances appearing on the record in proper  perspective  and  that  its
approach was quite perverse.  The High Court  found  the  appellants  guilty
and sentenced them to undergo imprisonment for life, as  stated  above.   In
this appeal under Article 134 of the Constitution of  India  read  with  the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, we  have
heard Mr. P.R. Kumar, learned advocate appearing for the appellants and  Mr.
Nitin Lonkar, learned  advocate  appearing  for  the  State  and  have  gone
through the entire evidence on record.

6.    The oral reporting made by  deceased  Sushila  which  was  reduced  to
writing, namely, Ext.41 is  quite  consistent  with  her  reporting  of  the
previous day, namely, Ext.30 and the  subsequent  dying  declaration  Ext.34
recorded by the Special  Executive  Magistrate.   In  Ext.41,  the  relevant
assertion was to the following effect:
           "On 16.10.90 in the evening the two persons i.e. Jagdeo  Narayan
           More and Mahadeo Narayan More who are my  real  brothers-in-law,
           after consuming liquor made a demand for money obtained from the
           sale of she  goats  and  then  they  abused  and  quarreled  and
           thereafter they assaulted me  and  my  husband  with  kicks  and
           fists.  In this  connection  I  have  lodged  report  at  Police
           Station Ural on 16.10.90 at 8.30 O'clock in the night.

           Since morning, my above named Dir. And  Jeth  (  i.e.  Husband's
           Younger  brother  and  Husband's  elder  brother)  abused,   and
           quarreled with me and my husband and these two together took out
           kerosene from the tin kept in my house and poured the same on my
           person at about  4  O'clock.   Husband's  Younger  brother  i.e.
           Jagdeo poured  kerosene  on  my  person  while  husband's  elder
           brother i.e. Mahadeo caught hold of me.  Jagdeo set me  on  fire
           by lighting a match stick.  At that time  I  was  alone  in  the
           house.  On account of setting mke  on  fire,  I  have  sustained
           injuries on my both hands, back, backside seat  portion  and  on
           both legs."

The relevant statements in the dying declaration Ext.34 were as under:
           "My brothers-in-law i.e. Jagdeo and Mahadeo  took  the  kerosene
           container from my house and then poured the same  on  my  person
           and by lighting the match stick they set me on fire.   My  saree
           on the person started burning."

7.    PW-1 Sukhdeo in his testimony deposed to the incident of the  previous
day as well as the events on the  fateful  day.   PW-7  Dr.  Ravindra  Kumar
Chaudhary at the  beginning  of  recording  Ext.34  had  certified  "patient
conscious and in a position to give dying declaration" and  at  the  end  of
said Ext.34 had  also  certified  "DD  recorded  in  my  presence.   Patient
conscious during DD".  While in the box,  the  doctor  categorically  stated
that he was present  when  the  dying  declaration  was  recorded  and  that
Sushila was conscious and fit to make a statement.  His deposition  in  that
behalf was as follows:
           "I went to the Burn Ward along with him - i.e. Special Executive
           Magistrate.  I examined the patient by name Sushila Sukhdeo More
           aged 30 years and found her to be conscious and fit  for  giving
           dying declaration.  I certified it accordingly.

           Her dying declaration was recorded by the  Spl.  Magistrate.   I
           was present there when it was recorded.   After  its  recording,
           again I examined her.  I found her  to  be  conscious.   I  made
           endorsement to that effect on the declaration which was  reduced
           into writing the Ex. Magistrate.  It is at Ex.34.   I  admit  my
           signatures on it.  When the statement was recorded,  myself  and
           the Ex. Magistrate were only there."

We have seen the original record and the endorsements of  the  Doctor.   The
dying declaration Ext.34 thus inspires complete confidence  and  we  do  not
see any reason to doubt the veracity thereof.  Additionally the threat  that
Sushila would be set on fire was given the  previous  day,  as  per  Ext.30,
recorded on the previous day.   Having gone through the record  minutely  we
do not find any infirmity in the assessment made by the High Court.

8.    This appeal is, therefore, dismissed.  The appellants shall serve  the
sentence as awarded by the High Court.


                                            .............................J.
                                                     (Dipak Misra)




                                            .............................J.
                                                (Uday Umesh Lalit)

New Delhi,
December 17, 2014