Rafiq & Another Vs. State of Maharashtra  Insc 76 (22 January 2008)
Naolekar & Markandey Katju
O R D
E R 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.
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.
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.
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. 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.
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
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.
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.