Sunday 27 August 2023

Supreme Court lays down principles for appreciation of Dying declaration evidence

There is no hard and fast rule for determining when a dying

declaration should be accepted; the duty of the Court is to decide this

question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation

of death?

(ii) Whether the dying declaration was made at the earliest

opportunity? “Rule of First Opportunity”

(iii) Whether there is any reasonable suspicion to believe the dying

declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting,

tutoring or leading at the instance of police or any interested

party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly

observe the incident?

(vii) Whether, the dying declaration has been consistent

throughout?

(viii) Whether, the dying declaration in itself is a manifestation /

fiction of the dying person’s imagination of what he thinks

transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one

inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for

the deceased to make a dying declaration? {Para 62}

63. It is the duty of the prosecution to establish the charge against theaccused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.

64. It is unsafe to record the conviction on the basis of a dying

declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.

 2023INSC758

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 825-826 of 2022

IRFAN @ NAKA  Vs  THE STATE OF UTTAR PRADESH 

Author: J. B. Pardiwala, J.:

Dated: AUGUST 23, 2023.

1. These appeals by special leave are at the instance of a convictaccused

and is directed against the judgment and order dated 25.04.2018,

passed by the High Court of Judicature at Allahabad in Capital Case No.

4669 of 2017 connected with Reference No. 11 of 2017 by which, the High

Court dismissed the appeal filed by the convict-accused and thereby

affirmed the judgment and order of conviction and sentence of death passed

by the Additional Sessions Judge Court No. 6, Bijnore for the offence

punishable under Sections 302, 436 and 326-A of the Indian Penal Code,

1860 (for short, ‘the IPC’) respectively.

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2. The convict was awarded death penalty with fine of Rs. 20,000/- by

the trial court for the offence punishable under Section 302 IPC. For the

offence punishable under Section 436 IPC, the convict was awarded life

imprisonment with fine of Rs. 10,000/- and for the offence punishable

under Section 326-A IPC, the appellant came to be sentenced for life

imprisonment with fine of Rs. 10,000/- and in default of payment of fines,

further six months of rigorous imprisonment.

3. While the criminal reference was submitted by the trial court under

Section 366 of the Code of Criminal Procedure, 1973 (for short, ‘the

CrPC’) for confirmation of capital punishment awarded to the appellantconvict,

the appellant-convict preferred an appeal by way of Capital Case

No. 4669 of 2017, putting in issue his conviction and sentence. The High

Court dismissed the case filed by the appellant-convict thereby confirming

the death reference under Section 366 of the CrPC.

CASE OF THE PROSECUTION

4. FAMILY CHART

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5. The appellant-convict was married twice. The first marriage was

with a lady by name Ishrat, who was the daughter of his uncle Mohammad

Yunus (PW-1). His second marriage was solemnised with a lady named

Afsana. One son by name Islamuddin (deceased) was born in wedlock with

Ishrat. The convict had two brothers, namely, Irshad (deceased) and

Naushad (deceased), who lived along with him and his sister Soni (PW-4).

Another brother by name Shanu alias Shahnawaz (PW-2) of the convict

lived in the neighbourhood.

6. It is the case of the prosecution that the three deceased persons more

particularly Islamuddin (convict’s son) was highly opposed to the second

marriage of his father, i.e., the appellant-convict. Islamuddin (deceased)

was even once beaten by the appellant-convict as he had offered lot of

opposition to the second marriage of his father. Islamuddin was also

threatened by the appellant-convict that he would be thrown out of the

house. Deceased Naushad (appellant-convict’s brother) was in Saudi

Arabia. He had just returned to Bijnore from Saudi Arabia on 04.08.2014.

7. Few days before the date of the incident, the appellant-convict had

beaten his son (deceased Islamuddin) and at that point of time, Naushad

and Irshad (deceased persons) had intervened to save Islamuddin. On

05.08.2014, at around 05.30 pm, PW-2 Shanu (convict’s brother) went to

see deceased Naushad and had dinner with PW-4 (convict’s sister),

Islamuddin and Irshad. The PW-2 also invited the appellant-convict for

dinner. The appellant-convict lived in the same house as PW-4 and

Naushad, but on a different floor.

8. On 05.08.2014, at around 10.00 pm, after the dinner was over, PW-

4 asked the PW-2 to stay overnight as it was too late. Naushad and

Islamuddin slept in one room. As Irshad wanted to sleep on the roof, the

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appellant-convict advised him to sleep inside the room, as the weather was

bad. Thus, all the three deceased persons ended up sleeping in one room.

9. PW-2 claims that the door of the room in which, the three deceased

were sleeping, was open. However, according to the PW-4, it was locked

from inside. The PW-2 lived at a distance of 200 metres from the place of

the incident. It is pertinent to note that the High Court disbelieved the

presence of the PW-2 at the place of occurrence, i.e., the house.

10. On 06.08.2014, at around 12.30 am, the PW-2 is said to have woken

up to see flames and smoke coming from the room, where the deceased

persons were sleeping. The PW-2 and his sister Soni (PW-4) claim to have

seen the appellant-convict setting the room on fire and thereafter, fastening

the door latch from outside and running away.

11. It is the case of the prosecution that the PW-2 and PW-4 opened the

door and at that point of time, saw the appellant-convict running from the

roof towards the stairs. According to the case of the prosecution, Amzad

and one another person by name Shafiq (both not examined) also saw the

appellant-convict running away.

12. The PW-1 (Original first informant- uncle of the appellant-convict)

was sleeping in his room in his own house at the time of the incident. The

uncle’s house is at the distance of about 200 metres from the place of the

occurrence.

13. The relatives first took Islamuddin, Irshad and Naushad to one Pooja

Hospital situated at Najibabad in a vehicle. The Hospital declined to admit

them. All the three injured were thereafter, taken to the hospitals at Bijnore

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and Meerut and finally were admitted to the Dr. Ram Manohar Lohiya

Hospital, Delhi (RML Hospital).

14. On 06.08.2014, early in the morning at around 6.10 am all the three

injured were brought to the casualty ward of the RML Hospital by Shafiq

Ahmad (not examined). At 9.00 am, PW-1 (first informant) lodged a First

Information Report with the Najibabad Police Station. In the FIR, the first

informant alleged that it was the appellant-convict, who set his own son

and two real brothers on fire, while they were sleeping on account of

personal animosity.

15. The dying declaration of deceased Irshad was recorded on

07.08.2014 by the A.S.I. at the RML Hospital. Irshad passed away on

09.08.2014. In the same way, the dying declaration of Islamuddin was

recorded on 07.08.2014. Islamuddin passed away on 18.08.2014. It appears

that the dying declaration of Naushad could not be recorded. Naushad also

passed away on 18.08.2014. The two dying declarations were videographed

in the mobile of the A.S.I.

16. On the strength of the FIR, the investigation was undertaken and on

conclusion, the chargesheet came to be filed in the Court of Chief Judicial

Magistrate, Bijnore, for the offences enumerated above, who in turn

committed the case to the Court of Sessions.

17. On 06.01.2015, the Additional District and Sessions Judge framed

charge against the accused for the offences punishable under Sections 436,

302 and 326-A respectively of the IPC. The accused did not admit the

charge and claimed to be tried.

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18. In the course of the trial, the prosecution adduced the following oral

evidence in support of its case:

S. No. Oral Evidences

Witnesses

1. Mohd. Yunus, Uncle and Father-in-Law

PW-1

2. Shanu @ Shahnawaz, Younger Brother

PW-2

3. Mohd. Imran, Downstairs Neighbour, (examined

to prove recovery memo)

PW-3

4. Soni, Sister

PW-4

5. ASI, Narender Singh Rawat, Police Post, RML

Hospital

PW-5

6. Dr Saurav, RML Hospital

PW-6

7. Dr Rahul Band, Lady Hardinge Medical College,

New Delhi

PW-7

8. Dr Kuldeep Panchal, Lady Hardinge Medical

College, New Delhi

PW-8

9. Vishnu Gopal Upadhyaya, SI

PW-9

10. R.P. Yadav, Inspector (Retd)

PW-10

11. Dr Arvind Kumar, Associate Prof., Forensic

Medicine, Lady Hardinge Medical College, New

Delhi

PW-11

12. Dr Charanjeet Kaur, RML Hospital

PW-12

13. Riyaz-ud-din Khan, Constable Clerk 1184

PW-13

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19. The prosecution also adduced the following documentary evidence:

S.No. Particulars Number and Name of

with witness

Exhibit

Nos.

1. Original complaint dated

06.08.14

PW-1, Mohammad

Yunus

Exhibit

Ka-1

2. Forensic Science

Laboratory Report, Agra

dated 08.12.14

Exhibited by Court vide

order dated 19.03.15

Exhibit

Ka-2

3. Statement of the

deceased Irshad dated

07.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-2

4. Request form of autopsy

of the deceased Irshad

dated 10.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-3

5. Request form of autopsy

of the deceased Naushad

dated 18.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-4

6. Copy of the statement of

deceased Islamuddin

dated 07.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-5

7. Statement of the

deceased Islamuddin

dated 07.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-5A

8. Request form of autopsy

of the deceased

Islamuddin dated

19.08.14

PW-5, A.S.I. Narender

Singh Rawat

Exhibit

Ka-6

9. Receipt of dead body of

Islamuddin 19.08.14

PW-5 A.S.I. Narender

Singh Rawat

Exhibit

Ka-7

10. Statement for

identification of dead

PW-5 A.S.I. Narender

Singh Rawat

Exhibit

Ka-8

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body of deceased Irshad

dated 10.08.14

11. Receipt of dead body of

Irshad dated 10.08.14

PW-5 A.S.I. Narender

Singh Rawat

Exhibit

Ka-9

12. Medico Legal Case

Sheet of the deceased

Irshad dated 06.08.14

PW-6 Dr. Sourav Exhibit

Ka-10

13. Medico Legal Case

Sheet of the deceased

Naushad dated 06.08.14

PW-6 Dr. Sourav Exhibit

Ka-11

14. Medico Legal Case

Sheet of the deceased

Islamuddin dated

06.08.14

PW-6 Dr. Sourav Exhibit

Ka-12

15. Medico Legal Post

Mortem report of the

deceased Islamuddin

dated 19.08.14

PW-7 Dr. Rahul Band Exhibit

Ka-10

A

16. Medico Legal Post

Mortem report of the

deceased Irshad dated

10.08.14

PW-7 Dr. Rahul Band Exhibit

Ka-11

A

17. Medico Legal Post

Mortem Report of the

deceased Naushad dated

18.08.14

PW-8 Dr. Kuldeep

Panchal

Exhibit

Ka-12

A

18. Site Plan dated 06.08.14 PW-9 S.I. Vishnu Gopal

Upadhyay

Exhibit

Ka-13

19. Recovery Memo dated

06.08.14

PW-9 S.I. Vishnu Gopal

Upadhyay

Exhibit

Ka-14

20. Charge Sheet dated

28.09.14

PW-10 Inspector R.P.

Yadav (Retd.)

Exhibit

Ka14-A

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21. Death report of the

deceased Islamuddin

dated 18.08.14

PW-12 Dr. Charanjeet

Kaur

Exhibit

Ka-15

22. Place of occurrence

investigation report

dated 06.08.14

PW-9 S.I. Vishnu Gopal

Upadhyay

Exhibit

Ka-16

23. Chick FIR dated

06.08.14

PW-13 Constable Clerk

Riyazudeen Khan

Exhibit

Ka-17

24. Carbon copy G.D. PW-13 Riyazudeen

Khan

Exhibit

Ka-18

20. Upon completion of the oral as well as documentary evidence, the

statement of the accused was recorded under Section 313 of the CrPC in

which, the accused stated that he was innocent and had been falsely

implicated in the alleged crime.

21. The trial court upon appreciation of the oral as well as the

documentary evidence on record, arrived at the finding that the prosecution

had been successful in establishing its case against the appellant-convict

beyond reasonable doubt. Accordingly, the trial court held the appellantconvict

guilty of the offence enumerated above and sentenced him to death.

22. The appellant-convict being dissatisfied with the judgment and order

passed by the trial court, challenged the same before the High Court. The

High Court dismissed the appeal of the appellant-convict and confirmed

the death sentence imposed by the trial court.

23. In such circumstances referred to above, the appellant-convict is here

before this Court with the present appeals.

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SUBMISSIONS ON BEHALF OF THE APPELLANT

24. Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing

for the appellant-convict vehemently submitted that:

a. The courts below committed a serious error in recording a finding

that the prosecution has been able to establish its case against the convict

beyond reasonable doubt.

b. The entire case hinges on circumstantial evidence and none of the

circumstances, relied upon by the courts below to hold the appellantconvict

guilty of the charges, could be termed as incriminating

circumstances.

c. The two dying declarations; one of Irshad and the other of

Islamuddin could not have been relied upon, as they do not inspire any

confidence and are in conflict with the ocular version of the two eyewitnesses.

d. The manner in which, the dying declarations came to be recorded,

speaks for itself. He would submit that the dying declaration should

ordinarily be recorded in a question-answer form. The Investigating Officer

did not even deem fit to call the Executive Magistrate to record the dying

declarations. It was also argued that there is nothing to indicate as regards

the condition of the injured persons, while they are said to have made the

dying declarations before the Investigating Officer. To put it in other words,

whether Irshad and Islamuddin were in a fit condition to speak so as to give

dying declarations? It was pointed out by the learned Senior counsel that

all the three Medico Legal Case (MLC) reports, which were prepared noted

“No BP readable”. Irshad and Naushad had suffered 95 % burns, whereas,

Islamuddin had suffered 80-90 % burns.

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e. In such circumstances referred to above, the learned Senior Counsel

prayed that there being merit in his appeals, the same may be allowed and

the judgment of the High Court and that of the trial court be set aside and

the appellant-convict be acquitted of all the charges.

SUBMISSIONS ON BEHALF OF THE STATE

25. On the other hand, these appeals were vehemently opposed by Mr.

Ardhendumauli Kumar Prashad, the learned AAG, appearing for the State.

He submitted thus:

a. No error much less an error of law could be said to have been

committed by the courts below in holding the appellant-convict guilty of

the offences with which he was charged.

b. There was a strong motive for the appellant-convict to commit the

crime. The second marriage of the appellant-convict was opposed by his

son Islamuddin. As the appellant- convict wanted to disown his son, the

same was opposed by his two brothers Naushad and Irshad. That is the

reason why the appellant-convict was at inimical terms with his own son

Islamuddin and his two real brothers Naushad and Irshad.

c. There is no good reason to discard the oral evidence of the PW-2

Shanu alias Shahnawaz and PW-4 Soni.

d. The courts below rightly believed the two dying declarations to be

true and trustworthy.

e. To conclude, the learned counsel pointed out that the appellantconvict

is a history-sheeter and has tendency to repeatedly indulge in

serious crimes.

f. In such circumstances referred to above, the learned counsel prayed

that there being no merit in the present appeals, the same may be dismissed

and the death sentence awarded may be upheld.

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ORAL EVIDENCE ON RECORD

26. Mohammad Yunus (PW-1) is the first informant. He has deposed

that the appellant-convict is his real nephew and also happens to be his sonin-

law. In the intervening night of 05/06.08.2014 at about 12.30 am in the

night, the appellant set his real brothers, Naushad and Irshad on fire

including his son Islamuddin by pouring highly inflammable substance on

them, while they were sleeping in the room. He has deposed that after

setting the deceased persons on fire, the appellant shut the door from

outside. On hearing the cries and shouts of Islamuddin, Naushad and

Irshad, his brother Amzad and others including Shafiq and Shanu came

running from the neighbourhood and broke upon the door. The injured were

thereafter, taken to the Hospital at Najibabad.

27. Shanu alias Shahnawaz was examined as PW-2. Shanu is the

younger brother of the appellant-convict. He has deposed that on

05.08.2014, late in the evening, he had gone to his old house to meet his

brother Naushad. Naushad had returned from Saudi Arabia after a long

time. His younger sister Soni (PW-4) had cooked food for them and they

all had dinner together. His elder brother (convict) had also come down

from his place of living to the ground floor. The convict had hatred towards

Naushad and Irshad. The convict had solemnised his second marriage at

Jaspura town, after his release from jail. After arrival of his second wife,

the convict wanted to separate his son Islamuddin. The convict had also

assaulted Islamuddin two days before the incident, which was settled by

Irshad and Naushad. On 05.08.2014, the second wife of the convict had

gone to her parents’ house at Jaspura. Being the elder brother, he asked the

convict to take meal along with them. It was around 11.00 in the night. His

sister Soni asked the PW-2 to stay back as it was late in the night. Naushad

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slept in one room. Islamuddin slept in the room on the floor on a mattress.

When Irshad went to sleep outside the room on the roof, the convict asked

Irshad to sleep inside the room as the weather outside was bad. Irshad also

slept by the side of Islamuddin in the room. Islamuddin, Irshad and

Naushad slept together in one room. The door of that room was open. PW-

2 and his sister Soni slept in the adjoining room. At about 12.30 in the night,

they saw smoke and flames coming out from the room, in which all the

three deceased were sleeping. Then, he saw that the convict had poured

some highly inflammable substance in the room in which Islamuddin,

Irshad and Naushad were sleeping and set it on fire. The convict ran away

after closing the door of the room from outside. All the three were severely

burnt. All the three injured died at the RML Hospital. When the convict

had solemnised second marriage, the same was opposed by Islamuddin.

The convict at that point of time had beaten Islamuddin and had threatened

that he would expel him from the house.

28. Soni (PW-4) was examined as an eye-witness to the incident. She

deposed that the convict was her real brother. She was present at her house

on 05.08.2014. She herself had prepared the meal in the evening on that

day. Her brothers, the convict, Naushad and Irshad and her nephew

Islamuddin were present on the second floor of her house. All of them had

meal together. After taking meal, Naushad and Islamuddin went to sleep in

the adjoining room and Irshad was sleeping on a cot outside the room. The

convict asked Irshad to sleep inside the room, as the weather outside was

bad. Irshad also slept by the side of Islamuddin in the room. They shut the

door of the room from inside. The convict shut the door of the room from

outside. Then cries “bachao-bachao” came from the room and flames of

fire were seen inside the room. When she opened the room, she saw that

the convict was running towards the stairs. Amzad and Shafiq saw the

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convict while he was running away. They all saw the burning room. After

opening the door, they evacuated Naushad, Irshad and Islamuddin. All

three were severely burnt. The skin of their legs got stuck on the floor. They

took all the three injured to Pooja hospital in a vehicle. On refusal to admit,

they were taken to Bijnore, thereafter to Meerut and from Meerut to the

RML Hospital. During travel, her brothers and nephew were talking. Her

brothers and nephew said that the convict set fire in the room after pouring

petrol on account of which, all of them got burnt. All the three died at the

RML Hospital, Delhi. The convict had solemnised second marriage after

coming out from jail. Her brothers Irshad, Naushad and nephew Islamuddin

had objected to it. The convict wanted to oust Islamuddin from their house.

Her brothers Irshad, Naushad took the side of Islamuddin. For this reason,

the convict burnt all of them by pouring petrol, setting them on fire and

shutting the room from outside in order to kill them.

29. In her cross-examination, she stated that to the best of her

knowledge, Islamuddin and Naushad had bolted the room from inside. The

room in which, she was sleeping, was not bolted from outside. No other

room was bolted from outside, except the room in which Islamuddin and

Naushad were sleeping.

30. A.S.I. Narender Singh Rawat was examined as PW-5. He was

examined to prove the dying declarations of Irshad (Ex. Ka.2) and

Islamuddin (Ex. Ka.5A) recorded by him. He has deposed that on

19.08.2014, he was posted at the Police Out-post of RML Hospital, New

Delhi. Irshad, Naushad and Islamuddin were admitted on 06.08.2014, in

the RML Hospital. He recorded statement of Irshad on 07.08.2014, who

told that they lived with the entire family. He ran a mobile phone shop. On

05/06.08.2014, while he and his elder brother Naushad and nephew

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Islamuddin were sleeping in his house, at about 12.30 in the night, his

brother Irfan/convict closed the door from outside and set the room on fire

from inside with some inflammable substance. Due to which, they suffered

severe burn injuries. The neighbours evacuated them from the room after a

long time, and admitted them in the Pooja Hospital, Najibabad. They were

referred to the RML Hospital from there for treatment. This statement was

given by the deceased Irshad. Paper No. 13, filed in the case, was in his

handwriting and signature. He had obtained thumb marks of Irshad, which

was identified by him. It was marked as Ex. Ka-2. Irshad died on

09.08.2014 at 07.30 pm. The dead body was sent to the Lady Hardinge

Hospital for postmortem on 10.08.2014. After the postmortem, the body

was handed over to his relatives Sadaqat and Shahnawaz after proper

identification. The deceased Naushad died on 18.08.2014 at 08.40 am. His

postmortem was conducted on the same day and dead body was handed

over to his relative. He had also recorded the statement of the deceased

Islamuddin. He had stated that the convict had closed the door from outside

and set the room on fire from inside with some inflammable substance, due

to which, he, his uncles Irshad and Naushad got burnt. The neighbours

saved them on hearing their cries. PW-5 recorded the statement of the

deceased on 07.08.2014, which was filed in case file and under his

handwriting and signature. The same was marked as Ex. Ka-5. Islamuddin

died on 18.08.2014 at 09.15 pm. His postmortem was conducted on

19.08.2014. Dead bodies of all the three were handed over to Shahnawaz

and Sadaqat, after postmortem.

31. In his cross-examination he stated that he had not investigated this

case. Neither any officer of Delhi Police nor U.P. Police deputed him to

investigate this case. He had recorded the statements of the deceased Irshad

and Islamuddin on 07.08.2014. He had recorded the statements of both in

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the emergency ward of the hospital. No one else was present at the time of

recording the statement except him and the deceased persons. Both of them

were in a fit condition when he recorded their statements. Exhibit Ka-2 and

Exhibit Ka-5, the statement of Islamuddin does not bear the thumb

impression or signature of anybody else except his own and the deceased.

Exhibit Ka-2 and Ex. Ka-5 do not bear any certificate from the doctor with

regard to fitness of both the deceased. Ex. Ka-2 and Ex. Ka-5 do not bear

his endorsement with regard to fitness of the deceased at the time of

recording the statements. There was a time gap of 15 – 20 minutes in

recording of the two dying declarations. Both were written on the same day

and at the same place. PW-5 had written only two statements. Different

pens were used in recording the statements, but to obtain thumb

impressions of the deceased, one ink pad was used.

32. A.S.I. Narender Singh Rawat PW-5 was recalled for the purpose of

re-examination on 28.04.2017 in compliance of the order dated 15.04.2017.

That on 07.08.2014, he was posted at the RML Hospital. On that day he

had recorded the statement of Islamuddin aged about 16 years, son of the

convict, resident of mohalla Muglooshah, Najibabad, District Bijnore.

Islamuddin was in a fit condition to give a statement. He had recorded his

statement word by word as stated by him. His thumb impression was taken

on the statement. The thumb impression was identified by him. He had also

put his signature on the statement. His statement has been recorded earlier

in the court.

33. The appellant-convict examined himself as a defence witness. He

deposed that his parents had five children. He was the eldest, his brothers

were, namely, Shanu, Irshad and Naushad and one sister Soni. Islamuddin

was born from his first wife Ishrat. His first wife had left his house as his

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brothers used to quarrel with her in respect of property. At the time, when

his first wife left the house, Islamuddin was aged about 10 years. His

brothers and sister were taking undue advantage of the tender age of

Islamuddin and his mother deserting them. Taking advantage, they sent him

to jail, in a false case. He came out from jail three years before the incident.

During these three years, he did not quarrel with any neighbours or any

person from the mohalla. He married another woman, one and half years

prior to this incident. His sister also used to quarrel with his second wife

frequently for the property due to which she left her house. He has deposed

that his brothers, deceased Irshad and Naushad and his son Islamuddin used

to consider him to be a weak person and with a view to grab the property,

they all colluded to get my brothers and son killed. It was not known

through whom, they got them killed. They falsely implicated him in the

case. He ran away from the place of occurrence due to fear as he was

released from jail in the recent past.

DYING DECLARATIONS:

34. We shall now look into the two dying declarations.

35. The deceased Irshad in his dying declaration recorded on 07.08.2014

stated thus:

“Statement of Irshad, s/o-Mo. Ayub, r/o Mohalla-

Muglushah, P.S. Nazivabad, Distrinct-Bijnor, U.P., age-

20 years.

Stated that I am residing at the place mentioned above. I

am running a mobile phone shop at Nazivabad. I was

sleeping with my brother Naushad and nephew Islamuddin

in the house. We were sleeping in the same room. Then at

18

around 12.30 at night my brother Irfan locked the door

from outside and set fire in the room with some

inflammable substance. As the room was on fire, we raised

alarm. We all seriously got burnt and after a long time

neighbours took us out of the room and they got us

admitted at the Pooja Hospital, Nazivabad. After first aid

they got admitted us at Dr. R.M.L. Hospital New Delhi and

my treatment is continuing here. Heard the statement, it is

correct.”

36. The deceased Islamuddin, in his dying declaration recorded on

07.08.2014, stated thus:

“Statement of Islamuddin, s/o-Irfan, r/o- Mohalla-

Muglushah, P.S. Nazivabad, Distrinct-Bijnor, U.P., age-

16 years.

Stated that I am residing at the place mentioned above. I am

running a mobile phone shop at Nazivabad. I was sleeping

with my uncle Irshad and Naushad in the house. We were

sleeping in the same room. Then at around 12.30 at night

my father Irfan locked the door from outside and set fire in

the room with some inflammable substance. After the room

was on fire, we raised alarm. We all seriously got burnt and

after a long time neighbours took us out of the room and

they got us admitted at the Pooja Hospital, Nazivabad. After

first aid they got admitted us at Dr. R.M.L. Hospital New

Delhi and my treatment is continuing here. Heard the

statement, it is correct. ”

ANALYSIS

37. Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the only question that falls for

our consideration is whether the prosecution could be said to have proved

its case against the appellant-convict beyond reasonable doubt.

19

38. The jurisdiction of this Court in criminal appeals filed against

concurrent findings is circumscribed by principles summarised by this

Court in Mst. Dalbir Kaur and Others v. State of Punjab reported in

(1976) 4 SCC 158, para 8, as follows:

“8. Thus the principles governing interference by this Court in

a criminal appeal by special leave may be summarised as

follows:

(1) that this Court would not interfere with the concurrent

finding of fact based on pure appreciation of evidence even

if it were to take a different view on the evidence;

(2) that the Court will not normally enter into a

reappraisement or review of the evidence, unless the

assessment of the High Court is vitiated by an error of law

or procedure or is based on error of record, misreading of

evidence or is inconsistent with the evidence, for instance,

where the ocular evidence is totally inconsistent with the

medical evidence and so on;

(3) that the Court would not enter into credibility of the

evidence with a view to substitute its own opinion for that of

the High Court;

(4) that the Court would interfere where the High Court has

arrived at a finding of fact in disregard of a judicial process,

principles of natural justice or a fair hearing or has acted

in violation of a mandatory provision of law or procedure

resulting in serious prejudice or injustice to the accused;

(5) this Court might also interfere where on the proved facts

wrong inferences of law have been drawn or where the

conclusions of the High Court are manifestly perverse and

based on no evidence.”

(Emphasis supplied)

20

DYING DECLARATIONS VIS-A-VIS ORAL EVIDENCE OF THE

EYE-WITNESSES ON RECORD

39. The picture that emerges on cumulative assessment of the materials

on record is that the appellant-convict had strained relationship with his son

Islamuddin (deceased) born in the wedlock of his first marriage with Ishrat.

His relations with his two brothers (deceased persons) were also strained.

The defence put forward by the appellant-convict is that with a view to grab

the property, PW-2 Shanu alias Shahnawaz, PW-4 Soni and others

conspired to eliminate the deceased persons and thereafter, to throw the

entire blame on the appellant-convict of having committed the crime. The

incident occurred in the night hours. The three deceased were sleeping in

one room. The PW-2 and PW-4 are said to have been sleeping in an

adjoining room in the house. The appellant-convict is said to have locked

the door of the room from outside in which, the deceased persons were

sleeping. He poured inflammable substance in the room and set the room

on fire. The three deceased persons suffered severe burn injuries and

ultimately succumbed to death. Islamuddin and Irshad are said to have

given their dying declarations before the A.S.I. as referred to above. Why

the dying declaration of Naushad could not be recorded is not clear. A close

perusal of the two dying declarations indicates that Irshad and Islamuddin

raised alarm on getting severely burnt and they were taken out of the room

by the neighbour. Who is this neighbour, they are referring to in their dying

declarations is also not clear? At the same time, it is pertinent to note that

the Irshad and Islamuddin in their respective dying declarations do not say

a word about the presence of the PW-2 Shanu alias Shahnawaz and PW-4

Soni. Both these witnesses do not figure in the two dying declarations. It is

also pertinent to note that in both the dying declarations it has been very

21

clearly stated that after a long time a neighbour came to their rescue and

took them out of the burning room.

40. Keeping the aforesaid in mind, if we look into the oral evidence of

the PW-2 Shanu alias Shahnawaz then according to him, he along with his

sister Soni (PW-4) noticed fire in the room in which the deceased persons

were sleeping. According to the PW-4, she also witnessed the appellantconvict

pouring kerosene and setting the room on fire in which, the

deceased persons were sleeping. PW-2 also claims to have witnessed, the

appellant-convict fastening the door latch from outside and thereafter,

running away from that place. In the same manner, if we closely look into

the oral evidence of the PW-4 Soni, then according to her on seeing the

flames of fire in the room, in which the deceased persons were sleeping,

she immediately opened the door and saw that the appellant-convict was

running from the roof towards the stairs. The PW-4 claims that Amzad and

Shafiq also saw the appellant-convict running away. Amzad and Shafiq

have not been examined as the prosecution witnesses. It is not clear whether

police even recorded the statements of Amzad and Shafiq under Section

161 of the CrPC?

41. If PW-2 and PW-4 were present at the time when the room was on

fire and it is they who opened the door and took out the three deceased

persons, then why the PW-2 and PW-4 do not figure in the dying

declarations of Irshad and Islamuddin? Why Islamuddin and Irshad said in

their dying declarations that after a long time, the neighbour came to their

rescue and took them out of the room? If a neighbour came to their rescue,

then where were PW-2 and PW-4 at the time of the incident? PW-2 and

PW-4 have deposed that they both were sleeping in the room adjacent to

the room in which the deceased persons were sleeping. This is one very

22

crucial aspect of the matter which, the prosecution has not been able to

explain or clarify.

42. In such circumstances referred to above, we are left with either to

believe the dying declarations or the oral evidence of the two so called eyewitnesses

to the incident. It is also important to note that the PW-4 Soni, in

her cross-examination has stated that to the best of her knowledge,

Islamuddin and Naushad had fastened the latch from inside. If the door of

the room, in which the deceased persons were sleeping was closed from

inside, then how did the appellant-convict manage to open the door and

enter the room so as to set the room on fire as alleged?

43. The juristic theory regarding the acceptability of a dying declaration

is that such declaration is made in extremity, when the party is at the point

of death and when every hope of this world is gone, when every motive to

falsehood is silenced, and the man is induced by the most powerful

consideration to speak only the truth. Notwithstanding the same, great

caution must be exercised in considering the weight to be given to this

species of evidence on account of the existence of many circumstances

which may affect their truth. The situation in which a man is on the

deathbed is so solemn and serene, is the reason in law to accept the veracity

of his statement. It is for this reason, the requirements of oath and crossexamination

are dispensed with. Since the accused has no power of crossexamination,

the courts insist that the dying declaration should be of such

a nature as to inspire full confidence of the court in its truthfulness and

correctness. The court, however, should always be on guard to see that the

statement of the deceased was not as a result of either tutoring or prompting

or a product of imagination. [See: Laxman v. State of Maharashtra, (2002)

6 SCC 710]

23

44. The mode and manner, in which the dying declarations came to be

recorded, is also something which creates a doubt, as regards its

truthfulness and trustworthiness. Although, the Investigating Officer says

that the recording of the dying declarations was video-graphed and the CD

has been exhibited in evidence yet it is very important to determine the

evidentiary value of the same.

45. We should also look into the genesis of the occurrence from a

different angle. It is not in dispute that the three deceased died on account

of severe burn injuries. It is also not in dispute that the room in which they

were sleeping caught fire on account of which they suffered severe burn

injuries. It is also not in dispute that inflammable substance like kerosene

was found from the room which ignited the fire. However, the moot

question is who set the room on fire? Could it be said that the prosecution

has been able to prove beyond reasonable doubt that it was only and only

the appellant-convict who set the room on fire by pouring the inflammable

substance?

46. It appears to us that whoever did the act, the inflammable substance

was not directly poured or sprinkled on the three deceased persons. Had it

been so, they would have immediately woken up and by the time, the room

is sat on fire, they would make good their escape or catch hold of the culprit.

It appears that the inflammable substance might have been poured on the

floor of the room and thereafter, the fire must have been ignited. Once, the

room is on fire, the person responsible for setting the room on fire would

immediately leave that place. We find it very difficult to believe that the

appellant-convict was still inside the room or even outside the room to be

witnessed by the deceased persons as well as by the PW-2 and PW-4,

locking the room from outside after setting the room on fire. The conduct

24

of the accused may be unnatural because he was residing in the very same

house, however, the conduct which may be a relevant fact under Section 8

of the Indian Evidence Act, 1872 (for short, ‘the Act 1872’), by itself may

not be sufficient to hold a person guilty of the offence of murder.

47. On overall assessment of the materials on record, we have reached to

the conclusion that neither the two dying declarations inspire any

confidence nor the oral evidence of the PW-2 and PW-4 respectively inspire

any confidence. Had the dying declarations stood corroborated by the oral

evidence of the PW-2 and PW-4, then probably, it would have been

altogether a different scenario. However, as noted above, the two dying

declarations are not consistent or rather contradictory to the oral evidence

on record.

48. The justification for the sanctity/presumption attached to a dying

declaration, is two fold; (i) ethically and religiously it is presumed that a

person while at the brink of death will not lie, whereas (ii) from a public

policy perspective it is to tackle a situation where the only witness to the

crime is not available.

49. One of the earliest judicial pronouncements where the rule as above

can be traced is the King’s Bench decision of the King v. William

Woodcock reported in (1789) 1 Leach 500 : 168 ER 352, where a dying

woman blamed her husband for her mortal injuries, wherein Judge Eyre

held this declaration to be admissible by observing: -

"…the general principle on which this species of evidence is

admitted is, that they are declarations made in extremity, when

the party is at the point of death and when every hope of this

world is gone: when every motive to falsehood is silent, and

25

the mind is induced by the most powerful consideration to

speak the truth; a situation so solemn, and so awful, is

considered by the law as creating obligation equal to that

which is imposed by a positive oath administered in a Court of

Justice. (b) But a difficulty also arises with respect to these

declarations; for it has not appeared and it seems impossible

to find out, whether the deceased herself apprehended that she

was in such a state of morality as would inevitably oblige her

soon to answer before her Maker for the truth or falsehood of

her assertions. …. Declarations so made are certainly entitled

to credit; they ought therefore to be received in evidence: but

the degree of credit to which they are entitled must always be

a matter for the sober consideration of the Jury, under all the

circumstances of the case."

(Emphasis supplied)

50. Interestingly, the last observation of Judge Eyre showcases, even at

the inception of this principle, that the Courts were wary of the inherent

weakness of dying declarations and cautioned for great care to be adopted.

51. It is significant to note the observations made by Taylor that "Though

these declarations, when deliberately made under a solemn sense of

impending death, and concerning circumstances wherein the deceased is

not likely to be mistaken, are entitled to great weight, if precisely identified,

it should always be recollected that the accused has not the power of cross

examination, a power quite as essential to the eliciting of the truth as the

obligation of an oath can be, and that, where a witness has not a deep

sense of accountability to his Maker, feelings of anger or revenge, or, in

the case of mutual conflict, the natural desire of screening his own

misconduct, may effect the accuracy of his statements and give a false

colouring to the whole transaction. …". [See: Taylor on “Treatise on the

Law of Evidence”, 1931, 12th Edition Pg. 462]

26

52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that:

"In weighing dying declarations, the jury may consider the

circumstances under which they were made, as, whether they

were due to outside influence or were made in a spirit of

revenge, or when declarant was unable or unwilling to state

the facts, the inconsistent or contradictory character of the

declarations, and the fact that deceased has not appeared

and accused has been deprived of the opportunity to crossexamine

him, and may give to them the credit and weight to

which they believe, under all the circumstances, they are

fairly and reasonably entitled."

53. In India in the relevant provision of Section 32 of the Act 1872, the

first exception to the rule against admissibility of hearsay evidence, is as

under:

“32(1). When it relates to cause of death.— When the

statement is made by a person as to the cause of his death, or

as to any of the circumstances of the transaction which

resulted in his death, in cases in which the cause of that

person’s death comes into question. Such statements are

relevant whether the person who made them was or was not,

at the time when they were made, under expectation of death,

and whatever may be the nature of the proceeding in which

the cause of his death comes into question.”

54. Jon R. Waltz, American Jurist observed that, "It has been thought,

rightly or wrongly, that Dying Declarations have intrinsic assurances of

trustworthiness, making cross examination unnecessary. The notion is that

a person who is in the process of dying, and knows it, will be truthful

immediately before departing to meet his Maker. (Of course, the validity of

this hearsay exceptions is open to some debate. What about the person who

is not deeply religious? What of the person who, as his last act, seeks

revenge by falsely naming a life-long enemy as his killer? How reliable is

27

the perception and memory of a person who is dying?)” [See: Waltz, J.R.

(1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]

55. The Privy Council in Neville Nembhard v. The Queen reported in

(1982) 1 AII ER 183, on Section 32(1) of the Act 1872 opined that the

evidence of dying declaration under the Indian law lacks the special quality

as in Common Law and hence, the weight to be attached to a dying

declaration admitted under Section 32 of the Act 1872 would necessarily

be less than that attached to a dying declaration admitted under the common

law rules.

56. The below cited observations from the decision of Nembhard

(supra) are of significant importance:

" final observation should be made concerning the cases al

ready mentioned that have been decided in the Court of

Appeal for Eastern Africa. It appears that rule of practice

has been developed that when a dying declaration has been

the only evidence implicating an accused person a

conviction usually cannot be allowed to stand where there

had been a failure to give a warning on the necessity for

corroboration: see for example Pius Jasunga s/o Akumu v.

The Queen (1954) 21 E.A.C.A. 331 and Terikabi v.

Uganda [1975] E.A. 60. But it is important to notice that in

the countries concerned, the admissibility of a dying

declaration does not depend upon the common law test:

upon the deceased having at the time a settled hopeless

expectation of impending death. Instead there is the very

different statutory provision contained in section 32 (1) of

the Indian Evidence Act 1872. That section provides that

statements of relevant facts made by a person who is dead

are themselves relevant facts:

“When the statement is made by a person as to the

cause of his death, or as to any of the circumstances of

the transaction which resulted in his death, in cases in

28

which the cause of that person's death comes into

question. Such statements are relevant whether the

person who made them was or was not, at the time

when they were made, under expectation of death, and

whatever may be the nature of the proceeding in which

the cause of his death comes into question.” (emphasis

added).

In Pius Jasunga s/o Akumu v. The Queen it was pointed out

(for the reason associated with the italicised words in the

subsection) that the weight to be attached to a dying

declaration admitted by reference to section 32 of the Indian

Evidence Act 1872 would necessarily be less than that

attached to a dying declaration admitted under the common

law rules. The first kind of statement would lack that special

quality that is thought to surround a declaration made by a

dying man who was conscious of his condition and who had

given up all hope of survival. Accordingly it may not seem

surprising that the courts dealing with such statements have

felt the need to exercise even more caution in the use to be

made of them than is the case where the common law test is

applied."”

57. This Court in Muthu Kutty & Anr. v. State by Inspector of Police,

T.N. reported in (2005) 9 SCC 113, while discussing the decision in

Woodcock (supra) referred to above had cautioned the courts to ensure that

a dying declaration is reliable before relying on it, with the following

observations: -

“13. … The general principle on which this species of evidence

is admitted is that they are declarations made in extremity,

when the party is at the point of death and when every hope of

this world is gone, when every motive to falsehood is silenced,

and the mind is induced by the most powerful considerations

to speak the truth; a situation so solemn and so lawful is

considered by the law as creating an obligation equal to that

which is imposed by a positive oath administered in a court of

justice. These aspects have been eloquently stated by Eyre,

L.C.B. in R. v. Woodcock ((1789) 1 Leah 500 : 168 ER 352).

Shakespeare makes the wounded Melun, finding himself

29

disbelieved while announcing the intended treachery of the

Dauphin Lewis explain:

“Have I met hideous death within my view,

Retaining but a quantity of life,

Which bleeds away even as a form of wax,

Resolveth from his figure 'gainst the fire?

What is the world should make me now deceive,

Since I must lose the use of all deceit?

Why should I then be false since it is true

That I must die here and live hence by truth?”

(See King John, Act V, Scene IV)

The principle on which dying declaration is admitted in

evidence is indicated in the legal maxim “nemo moriturus

praesumitur mentire — a man will not meet his Maker with a

lie in his mouth”.

14. … The situation in which a person is on the deathbed is so

solemn and serene when he is dying that the grave position in

which he is placed, is the reason in law to accept veracity of

his statement. It is for this reason that the requirements of oath

and cross-examination are dispensed with. Besides, should the

dying declaration be excluded it will result in miscarriage of

justice because the victim being generally the only eyewitness

in a serious crime, the exclusion of the statement would leave

the court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is

worthwhile to note that the accused has no power of crossexamination.

Such a power is essential for eliciting the truth

as an obligation of oath could be. This is the reason the court

also insists that the dying declaration should be of such a

nature as to inspire full confidence of the court in its

correctness. The court has to be on guard that the statement

of the deceased was not as a result of either tutoring, or

prompting or a product of imagination. The court must be

further satisfied that the deceased was in a fit state of mind

after a clear opportunity to observe and identify the assailant.

Once the court is satisfied that the declaration was true and

voluntary, undoubtedly, it can base its conviction without any

further corroboration. It cannot be laid down as an absolute

rule of law that the dying declaration cannot form the sole

30

basis of conviction unless it is corroborated. The rule

requiring corroboration is merely a rule of prudence. …”

(Emphasis supplied)

58. This Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,

Andhra Pradesh reported in (2007) 15 SCC 465 and Bhajju alias Karan

Singh v. State of Madhya Pradesh reported in (2012) 4 SCC 327 had

explained the meaning and principles of dying declarations upon which its

admissibility is founded, with the following observations: -

“20. There is a historical and a literary basis for recognition

of dying declaration as an exception to the hearsay rule. Some

authorities suggest the rule is of Shakespearian origin. In The

Life and Death of King John, Shakespeare had made Lord

Melun utter “Have I met hideous death within my view,

retaining but a quantity of life, which bleeds away, … lose the

use of all deceit” and asked, “Why should I then be false, since

it is true that I must die here and live hence by truth?” William

Shakespeare, The Life and Death of King John, Act 5, Scene 4,

lines 22-29.

Xxx xxx xxx

22. It is equally well settled and needs no restatement at our

hands that dying declaration can form the sole basis for

conviction. But at the same time due care and caution must be

exercised in considering weight to be given to dying

declaration inasmuch as there could be any number of

circumstances which may affect the truth. This Court in more

than one decision has cautioned that the courts have always to

be on guard to see that the dying declaration was not the result

of either tutoring or prompting or a product of imagination. It

is the duty of the courts to find that the deceased was in a fit

state of mind to make the dying declaration. In order to satisfy

itself that the deceased was in a fit mental condition to make

the dying declaration, the courts have to look for the medical

opinion.

23. It is not difficult to appreciate why dying declarations are

admitted in evidence at a trial for murder, as a striking

31

exception to the general rule against hearsay. For example,

any sanction of the oath in the case of a living witness is

thought to be balanced at least by the final conscience of the

dying man. Nobody, it has been said, would wish to die with a

lie on his lips. A dying declaration has got sanctity and a

person giving the dying declaration will be the last to give

untruth as he stands before his creator.

24. There is a legal maxim “nemo moriturus praesumitur

mentire” meaning, that a man will not meet his Maker with a

lie in his mouth. Woodroffe and Amir Ali, in their Treatise on

Evidence Act state:

“when a man is dying, the grave position in which he is

placed is held by law to be a sufficient ground for his

veracity and therefore the tests of oath and crossexamination

are dispensed with”.

25. The court has to consider each case in the circumstances

of the case. What value should be given to a dying declaration

is left to court, which on assessment of the circumstances and

the evidence and materials on record, will come to a

conclusion about the truth or otherwise of the version, be it

written, oral, verbal or by sign or by gestures.”

(Emphasis supplied)

59. This Court in Bhajju (supra) has observed as under:

“23. The “dying declaration” essentially means the statement

made by a person as to the cause of his death or as to the

circumstances of the transaction resulting into his death. The

admissibility of the dying declaration is based on the principle

that the sense of impending death produces in a man's mind,

the same feeling as that of a conscientious and virtuous man

under oath. The dying declaration is admissible upon the

consideration that the declaration was made in extremity,

when the maker is at the point of death and when every hope

of this world is gone, when every motive to file a false suit is

silenced in the mind and the person deposing is induced by the

most powerful considerations to speak the truth.

Xxx xxx xxx

32

26. The law is well settled that a dying declaration is

admissible in evidence and the admissibility is founded on the

principle of necessity. ...”

60. Since time immemorial, despite a general consensus of presuming

that the dying declaration is true, they have not been stricto-sensu accepted,

rather the general course of action has been that judge decides whether the

essentials of a dying declaration are met and if it can be admissible, once

done, it is upon the duty of the court to see the extent to which the dying

declaration is entitled to credit.

61. In India too, a similar pattern is followed, where the Courts are first

required to satisfy themselves that the dying declaration in question is

reliable and truthful before placing any reliance upon it. Thus, dying

declaration while carrying a presumption of being true must be wholly

reliable and inspire confidence. Where there is any suspicion over the

veracity of the same or the evidence on record shows that the dying

declaration is not true it will only be considered as a piece of evidence but

cannot be the basis for conviction alone.

62. There is no hard and fast rule for determining when a dying

declaration should be accepted; the duty of the Court is to decide this

question in the facts and surrounding circumstances of the case and be fully

convinced of the truthfulness of the same. Certain factors below reproduced

can be considered to determine the same, however, they will only affect the

weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation

of death?

33

(ii) Whether the dying declaration was made at the earliest

opportunity? “Rule of First Opportunity”

(iii) Whether there is any reasonable suspicion to believe the dying

declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting,

tutoring or leading at the instance of police or any interested

party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly

observe the incident?

(vii) Whether, the dying declaration has been consistent

throughout?

(viii) Whether, the dying declaration in itself is a manifestation /

fiction of the dying person’s imagination of what he thinks

transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one

inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for

the deceased to make a dying declaration?

63. It is the duty of the prosecution to establish the charge against the

accused beyond the reasonable doubt. The benefit of doubt must always go

in favour of the accused. It is true that dying declaration is a substantive

piece of evidence to be relied on provided it is proved that the same was

voluntary and truthful and the victim was in a fit state of mind. It is just not

enough for the court to say that the dying declaration is reliable as the

accused is named in the dying declaration as the assailant.

64. It is unsafe to record the conviction on the basis of a dying

declaration alone in the cases where suspicion, like the case on hand is

raised, as regards the correctness of the dying declaration. In such cases,

the Court may have to look for some corroborative evidence by treating the

dying declaration only as a piece of evidence. The evidence and material

available on record must be properly weighed in each case to arrive at an

appropriate conclusion. The reason why we say so is that in the case on

34

hand, although the appellant-convict has been named in the two dying

declarations as a person who set the room on fire yet the surrounding

circumstances render such statement of the declarants very doubtful.

65. In Sujit Biswas v. State of Assam reported in (2013) 12 SCC 406,

this Court, while examining the distinction between “proof beyond

reasonable doubt” and “suspicion” in para 13 has held as under:

“13. Suspicion, however grave it may be, cannot take the

place of proof, and there is a large difference between

something that “may be” proved, and something that “will

be proved”. In a criminal trial, suspicion no matter how

strong, cannot and must not be permitted to take place of

proof. This is for the reason that the mental distance

between “may be” and “must be” is quite large, and divides

vague conjectures from sure conclusions. In a criminal

case, the court has a duty to ensure that mere conjectures

or suspicion do not take the place of legal proof. The large

distance between “may be” true and “must be” true, must

be covered by way of clear, cogent and unimpeachable

evidence produced by the prosecution, before an accused is

condemned as a convict, and the basic and golden rule must

be applied. In such cases, while keeping in mind the distance

between “may be” true and “must be” true, the court must

maintain the vital distance between mere conjectures and

sure conclusions to be arrived at, on the touchstone of

dispassionate judicial scrutiny, based upon a complete and

comprehensive appreciation of all features of the case, as

well as the quality and credibility of the evidence brought

on record. The court must ensure, that miscarriage of justice

is avoided, and if the facts and circumstances of a case so

demand, then the benefit of doubt must be given to the

accused, keeping in mind that a reasonable doubt is not an

imaginary, trivial or a merely probable doubt, but a fair

doubt that is based upon reason and common sense.”

66. It may be true as said by this Court, speaking through Justice Krishna

Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh reported in (1974)

4 SCC 267, that the rule of benefit of reasonable doubt does not imply a

35

frail willow bending to every whiff of hesitancy. Judges are made of sterner

stuff and must take a practical view of the legitimate inferences flowing

from the evidence, circumstantial or direct. Even applying this principle,

we have a doubt as regards the complicity of the appellant-convict in the

crime.

67. In the present case, it is difficult to rest the conviction solely based

on the two dying declarations. At the cost of repetition, the PW-2 has been

otherwise also not believed by the High Court.

68. As discussed above, the oral evidence of the PW-4 Soni, also does

not inspire any confidence. We are not satisfied that the prosecution has

proved its case against the appellant-convict beyond reasonable doubt.

69. We, therefore, allow these appeals and acquit the appellant-convict

of all the charges levelled against him. The appellant-convict is, therefore,

directed to be released forthwith provided he is not required in connection

with any other case or cases.

……......………………………...J.

(B.R. GAVAI)

…….….…………………………..J.

(J.B. PARDIWALA)

…….………..……………………..J.

(PRASHANT KUMAR MISHRA)

NEW DELHI;

AUGUST 23, 2023.

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