SHAIKH RAFIQ & ANR. versus STATE OF MAHARASHTRA

Citation: [2008] 1 S.C.R. 1100 · Decided: 22-01-2008 · Supreme Court of India · Bench: P.P. NAOLEKAR, MARKANDEY KATJU · Disposal: Case Allowed

Judgment (excerpt)

[2008] 1S.C.R.1100 
SHAIKH RAFIQ & ANR. 
v 
STATE OF MAHARASHTRA 
(Criminal Appeal No. 169 of 2006) 
JANUARY 22, 2008 
(P.P. NAOLEKAR AND MARKANDEY KAT JU, JJ.) 
Penal Code, 1860: 
A 
B 
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 daughter-
in-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 daughter-
in-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. 
1100 
H 
1101 
SUPREME COURT REPORTS 
[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. 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. 
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 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 
H 
,J 
->; 
SHAIKH RAFIQ & ANR. v. STATE OF MAHARASHTRA 
1102 
.... 
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 
·'t 
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) an

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