Shaikh Rafiq & Anr. v. State of Maharashtra

Case Details & Bench

Court: High Court
Hon'ble Judges: P. P. Naolekar
Markandey Katju
Judgment Date: 2008-01-22
Court Decision / Holding: Appeal allowed. The Sessions Court and High Court orders are set aside. The appellants-accused are acquitted and to be released if not required in any other case.
Final Disposition: Appeal allowed; appellants acquitted; lower court orders set aside

Parties to the Case

Appellants / Petitioners

Shaikh Rafiq
Fatimbee
Jaibunisa

Respondents

State of Maharashtra

Legal Representation & Advocates

Counsels for Petitioners

• Bina Madhvan (for M/s. Lawyer's Knit & Co.)

Counsels for Respondents

• Sushil Karanjkar

Case Synopsis & Summary

Shaikh Rafiq and Fatimbee, along with Jaibunisa (accused no. 3), were prosecuted for the murder of Noor Miya Mohd. Hussain under IPC sections 302 read with 34. The Sessions Court convicted accused Nos. 1 and 2, and the Court sentenced them to life imprisonment with a fine; accused No. 3 was acquitted. The High Court upheld the conviction in appeal. The prosecution’s case rested solely on a dying declaration recorded by PW-1, a police officer, which purportedly stated that the accused persons came to the deceased’s house, demanded that the daughter-in-law (accused No. 3) be kept there, and after the deceased refused, No. 2 allegedly poured kerosene and No. 1 set him on fire. The dying declaration bore the signature of the deceased and the Medical Officer, but no fitness certificate or endorsement regarding the deceased’s mental condition, and the officer did not use a Special Executive Magistrate. The Court found the dying declaration unreliable on account of the recording process and, more importantly, no other evidence linked the appellants to the crime. The Supreme Court held that the dying declaration cannot be relied upon, found the prosecution’s story improbable, and acquitted the appellants, setting aside the lower court orders. The appellants are to be released if not required elsewhere.

Provisions of Law Cited

Section 302 read with Section 34, Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the dying declaration, though recorded by a police officer, bore the deceased’s signature and the Medical Officer’s sign, and that the procedure followed, though imperfect, did not automatically negate admissibility. They argued that the prosecution’s case rested on a single dying declaration corroborated by the circumstances and motive; the appellants asserted they had no direct relationship with the deceased’s daughter-in-law and that the factual narrative—taking kerosene to the house to patch up a quarrel and then setting the deceased ablaze—was improbable; they urged that the courts below erred in relying solely on the dying declaration and should have evaluated the full evidentiary picture before acquitting or convicting.

Contentions of Respondents

The State argued that the dying declaration, recorded in the presence of medical personnel and bearing the deceased’s signature, constituted credible direct evidence linking the accused to the crime. It contended that the evidence (even if based on a single declaration) should be sufficient when the narrative is coherent and the surrounding circumstances corroborate it. The respondents urged that the High Court’s affirmation of the Sessions Court’s conviction was proper and should stand, as the dying declaration pointed to the accused’s involvement and motive.

Extracted Judgment Text

Exact text extracted from official judgment records.

[2008] 1S.C.R.1100 A ## SHAIKH RAFIQ & ANR. ## _v_ STATE OF MAHARASHTRA (Criminal Appeal No. 169 of 2006) JANUARY 22, 2008 B **(P.P. NAOLEKAR AND MARKANDEY KAT** JU, 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 daughterin-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 daughterin-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. H 1100 SUPREME COURT REPORTS 1101 [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. Appellantaccused 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 examinationin-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 H ,J SHAIKH RAFIQ & ANR. _v._ STATE OF MAHARASHTRA 1102 .... ·'t _>_ 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 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. > ~ i. 4. Further, the story of the prosecution appears to be improbable. It is the case of the prosecution that the daughterF 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 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 F SUPREME COURT REPORTS [2008] 1 S.C.R. 1103 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.