Supreme Court of India
SHAIKH RAFIQ & ANR. versus STATE OF MAHARASHTRA
- Decided
- 22 January 2008
- Judges listed
- P.P. NAOLEKAR, MARKANDEY KATJU
- Disposal
- Case Allowed
Citations
- Official
- [2008] 1 S.C.R. 1100 · 2008 INSC 87
- Also cited as
- (2008) 3 SCC 691
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The Court's text
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Appellants-accused No.1 Shaikh Rafiq, No. along with accused No. 3 Jaibunisa were prosecuted for committing the murder of Noor Miya Mohd. Hussain. accused Nos. 1 and 2 were convicted by the Sessions under Section 302 read with Section 34 of the Indian and sentenced to suffer imprisonment for life and of Rs. 5000/- each; in default, to suffer R.I. for Accused No. 3 Jaibunisa was acquitted by the Sessions The order of the Sessions Court was affirmed by the in appeal. Aggrieved by the judgment passed by the the present appeal by way of special leave petition, preferred by the appellants.
p. 1101, margin A
As per the prosecution case, on 3.11.2002 noon, on receipt of intimation from the Medical Officer of Civil Hospital, P.W. 1 ASI Maroti proceeded to Burn Ward where he found that Noor Miya Mohd. Hussain had injuries. PW.1 enquired from Noor Miya Mohd. Hussain deceased) about the incident to which he narrated appellant-accused Nos. 1 and 2 along with accused Jaibunisa (daughter-in-law of deceased) had come where appellant Nos. 1 and 2 insisted upon him to keep no.3 with him which was refused by him. Some altercations place between Noor Miya Mohd. Hussain and the and, thereafter, appellant No. 2 poured kerosene on of Noor Miya Mohd. Hussain and the appellant No. Miya Mohd. Hussain on fire by igniting a match conviction of the appellants was solely based declaration recorded by P.W. 1 who deposed in his in-chief that he recorded the dying declaration of Mohd. Hussain (since deceased) wherein the deceased him that appellant Nos. 1 & 2 had come to his house his daughter-in-law accused No. 3 Jaibunisa and him to keep accused No. 3 in his house. Upon his altercations took place between the appellants and deceased and after that appellant No. 2 poured kerosene on the person of Noor Miya Mohd. Hussain (since deceased) and appellant No. 1 set him ablaze. He obtained the signature of Noor Miya Mohd. Hussain (since deceased) on the dying declaration after reading over the statement to him. The dying declaration also bears the signature of Medical Officer. In his cross-examination, he stated that he was serving in the Department for the last 30 years and was aware about the procedure of recording dying declaration and was aware of the fact that Special Executive Magistrates were also available for recording the dying declaration but he did not call any of them. It was further admitted by him thcit he was accompanied by the Medical Officer to the Burn Ward to identify Noor Miya Mohd. Hussain (since deceased) and he did not take the certificate of fitness from the Doctor whether Noor Miya Mohd. Hussain (since deceased) was in a position to give statement or not. He further admitted that he did not obtain endorsement of the Medical Officer about consciousness of Noor Miya Mohd. Hussain (since deceased) and he did not record the time of the dying declaration being recorded.
pp. 1101–1102, margin D
Considering the dying declaration and the manner in which it was recorded, we cannot rely upon the dying declaration recorded by PW 1. Apart from this fact, there is no other evidence on record to implicate the appellants in the incident.
p. 1102, margin E
Further, the story of the prosecution appears to be improbable. It is the case of the prosecution that the daughterin-law of the deceased accompanied by the appellants came to his house and some altercations took place and thereafter appellant No. 2 poured kerosene on his person and appellant No. 1 set him ablaze by igniting match stick. We fail to understand as to why the appellants will carry kerosene to the house of the deceased when they had gone there to patch up the quarrel. We also fail to understand as to why the extreme step of setting Noor Miya Mohd. Hussain (since deceased) on fire would be taken by the appellants who had no direct relations with the daughter-in-law of Noor Miya Mohd. Hussain (since deceased). A From the story put up by the prosecution, the whole incident, as is being alleged to have happened, is wholly improbable and cannot be relied upon.
pp. 1102–1103, margin E
For the aforesaid reasons, we are of the view that no case is made out by the prosecution and the appellants-accused are entitled for acquittal. The appeal is, accordingly, allowed. The orders of the courts below i.e. High Court and Sessions Court are set-aside. The appellants-accused shall be set at liberty if they are not required in any other case. c R.P. Appeal allowed.
p. 1103