The Supreme Court has acquitted two persons sentenced to life imprisonment for burning a man alive, observing that the victim's 'dying declaration' was unreliable and the prosecution could not produce any evidence against them.
The apex court felt that barring the 'dying declaration' claimed to have been recorded by an assistant sub-inspector, the prosecution could not produce any evidence to prove the guilt of the accused.
According to the prosecution, on November 3 2002 accused Shaik Rafik and Fatim Bee doused Noor Miya Mohd Hussain with kerosene and set him ablaze following an altercation.
The prosecution alleged that Hussain was set ablaze at his house by the duo after he refused to allow his estranged daughter-in-law, Jaibunissa, to return to his house.
Hussain's dying declaration was recorded by ASI Maroti on the basis of which a sessions court in Maharastra convicted the accused to life imprisonment and the Bombay High Court affirmed the conviction and sentence.
The accused appealed in the apex court on the ground that the conviction was unsustainable as there were no other evidence except the dying declaration purportedly recorded by the ASI, which they said was flawed on various counts.
Agreeing with the defence view, the court pointed out that the ASI had recorded the declaration despite the fact that the executive magistrate was available for recording the same. According to rules, a dying declaration has to be recorded by an executive magistrate or a judicial magistrate; and only in their absence by a police or medical officer.
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