2008 Supreme(SC) 95

2008(2) Supreme 66
Supreme Court of india
P.P. Naolekar & Markandey Katju, JJ
Shaikh Rafiq & Another — Petitioner
versus
State Of Maharashtra — Respondent
Appeal (crl.)169 of 2006
Decided on : 22-01-2008

Important Point
Where Certificate of fitness was not taken from Doctor whether deceased was in a position to give statement or not, then dying declaration of deceased could not be relied upon to base conviction.

Headnote:Indian Penal Code, 1860 – Sections 302 r/w 34 – Death by Burn injuries – Dying declaration – Admissibility of - Prosecution of appellant accused persons A1, A2 along with A3 for committing murder of One “N” – Sessions Court while convicting A1 and A2, acquitted A3 for said offence – Appeal – Order of sessions Court was affirmed by High Court – Appeal there against – Conviction of appellants was solely based on dying declaration recorded by Pw1 who disposed in his examination in chief that he recorded dying declaration of deceased wherein deceased told him that appellants 1 & 2 had come to his house along with his daughter in law A3 and insisted upon him to keep A3 in his house which was refused by him - Some altercations took place between Deceased and appellants and, thereafter, A2 poured kerosene on person of deceased and A1 set deceased on fire by igniting a match stick - Conviction of appellants was solely based on dying declaration recorded by PW1 - PW1 obtained signature of deceased on dying declaration after reading over statement to him - Dying declaration also bore signature of Medical Officer - In his cross-examination, PW1 stated that he was serving in Department for last 30 years and was aware about procedure of recording dying declaration and was aware of fact that Special Executive Magistrates were also available for recording dying declaration but he did not call any of them – PW1 admitted that he was accompanied by Medical Officer to the Burn Ward to identify deceased and he did not take certificate of fitness from Doctor whether deceased was in a position to give statement or not - PW1 further admitted that he did not obtain endorsement of Medical Officer about consciousness of deceased and he did not record time of dying declaration being recorded - Considering the dying declaration and the manner in which it was recorded, dying declaration recorded by PW 1 could not be relied upon - Apart from said fact, there was no other evidence on record to implicate appellants in incident - Story of prosecution appeared to be improbable – Held incomprehensible as to why appellants would carry kerosene to house of deceased when they had gone there to patch up quarrel – Incomprehensible as to why extreme step of setting deceased on fire would be taken by appellants who had no direct relations with daughter-in-law of deceased - From the story put up by prosecution, whole incident, as was being alleged to have happened, held wholly improbable and could not be relied upon - No case made out by prosecution having being appellants-accused held entitled for acquittal - Appeal accordingly allowed. (Paras 2 to 5)

       Facts of the case:-

       1.Appellant accused persons A1, A2 along with A3 were prosecuted herein in the instant case for committing murder of One “N”. Sessions Court while convicting A1 and A2, acquitted A3 for said offence. On Appeal, Order of sessions Court was affirmed by High Court.

       2.Present Appeal has been filed against said order of High Court.

       Findings of the Court : –

       The Court held that conviction of appellants was solely based on dying declaration recorded by Pw1 who disposed in his examination in chief that he recorded dying declaration of deceased wherein deceased told him that appellants 1 & 2 had come to his house along with his daughter in law A3 and insisted upon him to keep A3 in his house which was refused by him. Upon his refusal, some altercations took place between appellants and deceased and after that A2 poured kerosene on person of deceased and A1 set him ablaze. PW1 obtained signature of deceased on dying declaration after reading over statement to him. Dying declaration also bore signature of Medical Officer. In his cross-examination, PW1 stated that he was serving in Department for last 30 years and was aware about procedure of recording dying declaration and was aware of fact that Special Executive Magistrates were also available for recording dying declaration but he did not call any of them. PW1 Admitted that he was accompanied by Medical Officer to the Burn Ward to identify deceased and he did not take certificate of fitness from Doctor whether deceased was in a position to give statement or not. PW1 further admitted that he did not obtain endorsement of Medical Officer about consciousness of deceased and he did not record time of dying declaration being recorded. Considering the dying declaration and the manner in which it was recorded, dying declaration recorded by PW 1 could not be relied upon. Apart from said fact, there was no other evidence on record to implicate appellants in incident. Story of prosecution appeared to be improbable. It was held incomprehensible as to why appellants would carry kerosene to house of deceased when they had gone there to patch up quarrel. Incomprehensible as to why the extreme step of setting deceased on fire would be taken by appellants who had no direct relations with daughter-in-law of deceased. From the story put up by prosecution, whole incident, as was being alleged to have happened, held wholly improbable and could not be relied upon. No case was made out by prosecution and appellants-accused were held entitled for acquittal. Appeal was accordingly allowed.

       Result : Appeal allowed.