SHEIKH MEHEBOOB @ HETAK AND ORS. versus STATE OF MAHARASHTRA

Citation: [2005] 2 S.C.R. 628 · Decided: 10-03-2005 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SHEIKH MEHEBOOB @ HET AK AND ORS. 
-· 
v. 
ST A TE OF MAHARASHTRA 
MARCH l 0, 2005 
B 
[K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.) 
.... 
Penal Code, I860-Section 302 r/w Section 34-Prosecution for 
murder-Incident seen by two eye-witnesses-Evidence of one eye-witness 
c contradictory to his own police statement, evidence of other eye-witness and 
that of Investigating Officer, Dying Declaration and Medical Record-
·Credibility of Dying Declaration doubtful-Deliberate suppression of first 
Written Report made by the eyewitness-Conviction by Courts below-On 
appeal, held: In view of the contradictions and doubts in the prosecution case, 
the guilt of the accused not proved beyond reasonable doubt-Accused acquitted 
D giving benefit of doubt. 
Appellants-accused were charged u/s 302 IPC for having caused 
death of a person by setting him on fire. According to PW-2, father of the 
deceased, his son (PW-9) and he had witnessed the incident According to him, 
If 
E 
he extinguished the fire, took the deceased to hospital on a rickshaw, on getting 
threat at the hospital from the appellants called a police van, thereafter went 
to Police Station and gave a Written Report Dying Declaration of the deceased 
was recorded by Executive Magistrate (PW-4). During Trial, the Written 
Report by PW-2 was suppressed by the prosecution. Despite its production 
was sought, it was not produced. The evidence of PW-2 was in contradiction 
F with his police statement and with the statements of PWs 9 and 10 (the 
Investigating Officer) and the Dying Declaration. According to PW-9 no such 
incident took place in his presence and hence he was declared hostile. In the 
Dying Delcaration, the words "I kerosene on the body" were deleted. PW-4 
explained that those words were spoken by the deceased, but the version was 
changed after shouting heard from outside. Hence, the words were deleted. 
G In the medical case papers, the burns, at one place, were shown as 'self 
inflicted' and at another as 'accidental'. The contention of the accused was 
I 
that failure to produce the Written Report by PW-2 had given rise to an 
adverse inference that, had it been produced, it would have disproved the case 
r
of the prosecution. Trial Court rejected the contention and relying on the 
H 
628 
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SHEIKH MEHEBOOB@ HETAK v. STA TE OF MAHARASHTRA 
629 
Dying Declaration and the evidence of PW-2, convicted the appellants for the A 
offences charged. High Court upheld the conviction. Hence, the appeal. 
Allowing the appeal, the Court 
HELD: I. The reasoning of the High Court for rejecting the contention 
that failure to produce Written Report by PW-2 gives rise to adverse B 
inference, is erroneous. The prosecution has suppressed the document. The 
fact that no suggestion was put to the Investigating Officer is totally irrelevant. 
As to whether the said report was made prior to the Dying Declaration, on a 
fair reading of the evidence of PW 2 the sequence of events given by him 
before the Court suggests that he had no idea as to the recording of the Dying C 
Declaration at all, for he nowhere mentions it. Nor d_oes it appear from his 
evidence that the Dying Declaration was recorded prior to his going to the 
Police Station to lodge his Written Report. (633-D-F] 
2. Evidence of PW-2 as an eye-witness does not appear to be credible. 
A number of inconsistencies between his statement to the police under Section D 
161 Cr.P.C. and his evidence were thrown up in the cross examination. The 
contradictions between his evidence and the evidence of the Investigating 
Officer PW 10 make interesting reading. For every inconsistency between his 
police statement and his evidence in the court, while PW-2 insisted that he 
had made some statement or had not made such statement, the Investigating E 
Officer directly contradicts him on the issue. Apart from the contradictions, 
there is contradiction with evidence of the other cited witness PW 9, who flatly 
contradicts PW 2. (633-G-H; 634-A-B] 
3. Who took the deceased to the hospital and extinguished the fire, is 
also a matter of controversy. The evidence of PW-9 and the Dying Declaration F 
of the deceased in this regard are in contradiction with the evidence of PW-
2. Investigating Officer admitted that he had made no effort to trace the 
rikshaw driver, who took the deceased to the hospital. The rikshaw driver 
would have been a material witness on the issue as to who accompanied the 
deceased to the hospital. It

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