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CASE NO.: Appeal (crl.)  169 of 2006

PETITIONER: SHAIKH RAFIQ & ANOTHER

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 22/01/2008

BENCH: P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT: JUDGMENT O R D E R    

CRIMINAL APPEAL NO. 169 OF 2006

       Appellants-accused No.1  Shaikh Rafiq, No. 2 Fatimbee along with accused No. 3   Jaibunisa were prosecuted for 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.  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.

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 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 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 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 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 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 that he was  accompanied by the Medical Officer to the Burn Ward to identify Noor Miya Mohd.

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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. 3.      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. 4.         Further, the story of the prosecution appears to be improbable. It is the case of   the prosecution that the daughter-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  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).  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 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.