MUMTAZ @ MUNTYAZ versus STATE OF U.P. (NOW UTTARAKHAND)

Citation: [2016] 3 S.C.R. 434 · Decided: 01-07-2016 · Supreme Court of India · Bench: V. GOPALA GOWDA · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
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D 
E 
F 
G 
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[2016] 3 S.C.R. 434 
MUMTAZ @ MUNTYAZ 
v. 
STATE OF U.P. (NOW UTTARAKHAND) 
(Criminal Appeal No. 2084 of2009) 
JULYl,2016 
[V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ] 
Penal Code, 1860 - s. 302 rw. s. 34 - Death of victim-
informant 's nephew on sustaining burn injuries - FIR by informant-
PW 1 that he along with his other nephew-PW 2 ll'itnessed appellant 
and his associates setting his nephew on fire - PW 1 and 2 rushed 
there and put quilt on the victim - Recording of the dying declaration 
of the victim by SDM-PW 5 that the appellants had set him on fire -
Certificate by PW 8-doctor that victim was in a '/it state of mind to 
give declaration - Thereafter, victim succumbed to· burn injuries -
Conviction and sentence u/s. 302134 by the courts below relying 
upon the testimony of PW 1 and 2 as well as the cMng declaration 
- On appeal, held: Even if the eyewitness account is taken to be 
inconsistent with the part of the dying declaration, once the dying 
declaration is found reliable, trustworthy and consistent with 
circumstantial evidence on record, such dying declaration by itself 
is adequate to bring home the· case against the accused - On facts, 
evidence of SDM-PW 5 and doctor-PW 8 found trustworthy and 
dying declaration held to be reliable - Defence of alleged grave 
provocation cannot be accepted since the victims was found with 
his hand tied - Thus, order of conviction and sentence of appellant-
M by the courts below upheld - As regards appellant-D, since ·he 
was juvenile in terms of the 2000 Act on the day of occurrence and 
guilty of offence ivith which he was tried, sentence of life 
imprisonment set aside and matter remitted to the Jurisdictional 
Juvenile Justice Board for determining the appropriate quantum of 
fine- Juvenile Justice (Care and Protection of Children) Act, 2000. 
Disposing of the appeals, the Court 
HELD: 1.1 PW-5-SDM clearly stated that all through the 
recording of his statement, the victim remained in fit condition 
and that the witness had got this fact confirmed from the Doctor 
on duty; The dying declaration bears appropriate endorsement 
434 
MUMTAZ@ MUNTYAZ v. STATE OF U.P, (NOW 
UTTARAKHAND) 
of the Doctor on duty which endorsement was proved by PW-8-
doctor. There is nothing in ·the cross examination of either PW-5 
or PW-8 nor in the dying declaration which could -raise any doubt. 
The evidence in that behalf is trustworthy and· the dying 
declaration is held to be reliable. [Para 14] [442-C~DJ 
1.2 It is true that the victim was found at 3:00 a.m. in the 
house of the brother of appellant-M .. The eye witness account 
shows that his hands were tied and he was set ablaze. The 
memorandum of the seizure of burnt shawl clearly corroborates 
said assertion. Therefore, mere presence of the victim in the 
house of the brother of appellant itself does not support the theory 
of grave provocation specially when the victim was found with 
his hands tied. Not a single witness was examined "on behalf of 
the defence nor is there any material to support such theory. 
What kind of provocation and in what manner was if made are all 
matters of evidence, which are completely absent on ·record. [Para 
15] [442-F-G] 
1.3 It is true that in the dying dedaration the deceased had 
stated that he did not know the person who extinguished the fire 
by pouri'ng water. It could be that while he was. in flame~, the 
deceased could not identify the pers~n who tried to save him. 
The prompt lodging of the FIR arid the fact that one pf the 
eyewitnesses was having burn injuries establishes the presence 
of the eyewitnesses. In any case, even if the eyew.itn~ss account 
is taken to be inconsistent with this part of die dying declaration, 
once the dying declaration is found reliable, trustworthy and 
consistent with circumstantial evidence on record, such dying 
declaration by itself is adequate to bring home. the ca,se against 
the accused. [Para 16] f 443-A-B] 
lA Having gone through the material on record, there is 
no reason to upset the findings recordi;d by the trial court and 
the High Court regarding conviction and sentence of appellant-
M. [Para 17] [443-C] 
2.1 As regards D, the District and Sessions Judge, was 
directed to cause inquiry with regard to juvenility of the appellant. 
The report clearly shows that on considering the entirety of the 
matter the claim was found to be acceptable. On the date of 
occurrence D was more than 16 years of age but less than 18

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