SHAIKH RAFIQ & ANR.versusSTATE OF MAHARASHTRA

                    [2008] 1S.C.R.1100


                 SHAIKH RAFIQ & ANR.                          A
                            v
               STATE OF MAHARASHTRA
            (Criminal Appeal No. 169 of 2006)

                   JANUARY 22, 2008
                                                              B
   (P.P. NAOLEKAR AND MARKANDEY KATJU, JJ.)

     Penal Code, 1860:
      ss. 302134 - Death of a man caused by burn injuries -
Dying declaration implicating two of the accused C
accompanying his daughter-in-law, the third accused to his
house, having poured kerosene on him and setting him ablaze
- Motive stated to be refusal by deceased to keep the said
daughter-in-law in his house - Dying declaration recorded by
police officer containing no fitness certificate from Medical D
Officer - Conviction of two accused and acquittal of daughter-
in-law by trial court - Affirmed by High Court - HELD:
Considering the dying declaration and the manner in which' it
was recorded, the same cannot be relied upon - Besides, the
prosecution case does not seem to be believable - The Two E
convicted accused had no direct relationship with daughter-
in-law of deceased -Accused-appellants acquitted - Evidence
Act, 1872 - Dying declaration.
     CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 169 of 2006.                                              F
      From the final Judgment and Order dated 19.09.2005 of
the High Court of Judicature.of Bombay, Bench atAurangabad
in Criminal Appeal No. 509 of 2004.
    Bina Madhvan (for M/s. Lawyer's Knit & Co.) for the G
Appellants.
    Sushil Karanjkar (for Ravindra K. Adsure) for the
Respondent.
                           1100                               H
    1101       SUPREME COURT REPORTS                 [2008] 1 S.C.R.


A          The following Order of the Court was delivered :
                                ORDER
       Appellants-accused No.1 Shaikh Rafiq, No. 2 Fatimbee
  along with accused No. 3 Jaibunisa were prosecuted for
B committing the murder of Noor Miya Mohd. Hussain. Appellant-
  accused Nos. 1 and 2 were convicted by the Sessions Court
  under Section 302 read with Section 34 of the Indian Penal Code
  and sentenced to suffer imprisonment for life and to pay a fine
  of Rs. 5000/- each; in default, to suffer R.I. for six months.
c Accused No. 3 Jaibunisa was acquitted by the Sessions Court.
  The order of the Sessions Court was affirmed by the High Court
  in appeal. Aggrieved by the judgment passed by the High Court,
  the present appeal by way of special leave petition, has been
  preferred by the appellants.
D       2. As per the prosecution case, on 3.11.2002 at about 12
  noon, on receipt of intimation from the Medical Officer of Civil
  Hospital, P.W. 1 ASI Maroti proceeded to Burn Ward of hospital
  where he found that Noor Miya Mohd. Hussain had suffered burn
  injuries. PW.1 enquired from Noor Miya Mohd. Hussain (since
E deceased) about the incident to which he narrated that the
  appellant-accused Nos. 1 and 2 along with accused No. 3
  Jaibunisa (daughter-in-law of deceased) had come to his house
  where appellant Nos. 1 and 2 insisted upon him to keep accused
  no.3 with him which was refused by him. Some altercations took
F place between Noor Miya Mohd. Hussain and the appellants
  and, thereafter, appellant No. 2 poured kerosene on the person
  of Noor Miya Mohd. Hussain and the appellant No. 1 set Noor
  Miya Mohd. Hussain on fire by igniting a match stick. The
  conviction of the appellants was solely based on the dying
G declaration recorded by P.W. 1 who deposed in his examination-
   in-chief that he recorded the dying declaration of Noor Miya
  Mohd. Hussain (since deceased) wherein the deceased told             ,J   ->;

   him that appellant Nos. 1 & 2 had come to his house along with
   his daughter-in-law accused No. 3 Jaibunisa and insisted upon
   him to keep accused No. 3 in his house. Upon his refusal, some
H
           SHAIKH RAFIQ & ANR. v. STATE OF MAHARASHTRA               1102

    ....   altercations took place between the appellants and deceased A
           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 B
           signature of Medical Officer. In his cross-examination, he stated
    ·'t    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   c
           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
                                                                             D

-   >      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.
                3. Considering the dying declaration and the manner in E
           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.
                 4. Further, the story of the prosecution appears to be
           improbable. It is the case of the prosecution that the daughter- F
           in-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 G
~
    i.     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). H
   1103      SUPREME COURT REPORTS                 [2008] 1 S.C.R.


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.
        5. For the aforesaid reasons, we are of the view that no
  case is made out by the prosecution and the appellants-accused
8 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.