SHAIKAH BAKSHU AND ORS. versus STATE OF MAHARASHTRA

Citation: [2007] 7 S.C.R. 1130 · Decided: 21-06-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SHAIKAH BAKSHU AND ORS. 
v. 
ST A TE OF MAHARASHTRA 
JUNE 21, 2007 
B 
[DR. ARIJIT PASA YAT AND D.K. JAIN, JJ.] 
Evidence Act,1872: 
s.32-Dying declaration- In a case under s. 302134 !PC two dying 
C declaration were recorded within a span of less than one and half an hour-
The time of recording first one is even before intimation of the crime had 
reached the Police Station- Facts regarding place of occurrence and as to 
who took the victim to hospital stated in dying declaration being contrary 
to record-Copy of letter stated to have been written to Naib Tehsildar for 
D recording second dying declaration not produced-No mention in dying 
declaration that it was read over to victim-Held: Jn view of the infirmities, 
accusations of prosecution have not been established-Conviction recorded 
by trial court and High Court set aside-Pena/ Code, 1860-s.302134. 
E 
F 
Penal Code, I 860: 
s. 302134-Death of married woman by burn injuries-Husband, sister-
in-law and mother-in-law of victim convicted by trial court and High Court 
on basis of two dying declaration-Held: In view of various infirmities in 
dying declarations, conviction set aside-Evidence Act, 1872-Dying 
declaration. 
Appellants, namely, the husband, the sister-in-law and the mother-in-
law of the deceased were prosecuted for offences punishable u/ss. 302/34 and 
498-A/34 IPC. The prosecution case against them was that they set the victim 
ablaze by pouring kerosene on her. The trial court, placing reliance on the 
G two dying declarations, convicted them of the offences charged. On appeal, It 
was contended for the accused-appellants that the dying declarations were 
totally unreliable and the place of occurrence was differently stated. High 
Court confirmed the view of the trial court that the two clying declarations 
were credible and cogent and maintained the conviction u/ss. 302134 IPC, but 
recorded acquittal as regards charge u/s. 498-A IPC. Aggrieved, the accused 
H 
1130 
SHAIKAH BAKSHU v. ST ATE OF MAHRASHTRA 
1131 
field the instant appeal. 
A 
-...,., 
Allowing the appea~ the Court 
HELD: I.I. The dying declaration Exht.26 was claimed to ha\'e been 
recorded by the Naib Tehsildar between 7.15 and 7.30 p.m, while the other 
dying declaration, Exht. 31 was purported to have been recorded by PW 3, the B 
Police Officer, at 6.00 p.m. PW 3 stated that intimation regarding occurrence 
was received at 6.30 p.m as per Exht. 30. If the information of the incident 
was received at 6.30 p.m., the question of recording dying declaration before 
that time does not arise. Besides, from a perusal of Exht. 26 it appears that 
place·of occurrence stated therein was different than that mentioned in the c 
'Panchnama'. With reference to the 'Panchnama' it appears that no burn 
marks were found in the bed room; on the other hand, burn marks were found 
in the kitchen. It has not been established as to what was the necessity of a 
second dying declaration if there was already a dying declaration in existence 
recorded by PW 3. It is also to be seen that the letter requiring the Naib 
Tehsildar to record the dying declaration was not produced by him nor the D 
copy thereof was produced by the prosecution. The trial court and the High 
- ... 
Court noted that the condition of the deceased was very poor, as was stated by 
..... 
the Medical Officer, and it was during deteriorating since 6.10 p.m. There is 
no mention in the dying declaration that it was read over and explained to the 
deceased. [Para 8) [1134-F-H; 1135-B-G) 
E 
1.2. So far as the presence of the relatives and the tutoring aspect is 
concerned, the High Court held that there cannot be a possibility of tutoring 
the deceased for falsely implicating appellants in the offence because of the 
promptness in recording the declaration by PW 1 and PW 3. The conclusion 
is clearly based on surmises and conjectures. (Para 8) (1135-H; 1136-A-BJ F 
I. 
1.3. Another fallacy in the conclusions of the High Court and the trial 
Court was that mere change of the place of occurrence as borne out in the 
dying declaration, as projected by the prosecution with reference to the spot 
panchnama was not material. According to the deceased, the occurrence took 
place in the bed room. It is to be noted that no mark of bum injury was noticed G 
in the bed room and they were noticed in the kitchen. High Court noted even 
if spot of occurrence has not been correctly stated by the deceased same is of 
no consequence. That certainl

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