Supreme Court of India
IRFAN @ NAKAversusTHE STATE OF UTTAR PRADESH
- Citation
- 2023 INSC 758
- Decided
- 23 August 2023
- Disposal
- Appeal(s) allowed
Holding
The conviction cannot be sustained where dying declarations are unreliable and uncorroborated; the prosecution failed to prove guilt beyond reasonable doubt, leading to the appellant's acquittal.
Summary
The appellant, Irfan, was convicted and sentenced to death for allegedly setting fire to a room that killed his son and two brothers, based primarily on two dying declarations. The prosecution argued that the appellant had motive and that eye‑witnesses saw him pour inflammable substance and lock the door. The defence contended that the dying declarations were unreliable, not corroborated, and contradicted the oral testimony of the eye‑witnesses. The Supreme Court examined the reliability of dying declarations, the need for corroboration, and the duty of the prosecution to prove guilt beyond reasonable doubt. Finding the dying declarations untrustworthy and lacking corroborative evidence, the Court held that the prosecution failed to meet the burden of proof. Consequently, the appeals were allowed and the appellant was acquitted of all charges.
Issues considered
- Whether the prosecution proved the appellant's guilt beyond reasonable doubt when the conviction rested solely on dying declarations.
- Whether dying declarations can form the sole basis of a conviction without corroboration.
- Whether the two dying declarations in this case were reliable and trustworthy.
- Whether the evidentiary requirements under Sections 32 and 8 of the Evidence Act were satisfied.
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 366
- Indian Evidence Act, 1872s. 32, s. 8
- Indian Penal Code, 1860s. 302, s. 326-A, s. 436
Subjects
dying declarationevidencereasonable doubtburden of proofcapital punishmentacquittalSection 302 IPCSection 436 IPCSection 326-A IPCSection 8 Evidence ActSection 32 Evidence Actcorroborationcriminal appealSupreme Court
Judgment
[2023] 11 S.C.R. 789 : 2023 INSC 758
CASE DETAILS
IRFAN @ NAKA
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 825-826 of 2022)
AUGUST 23, 2023
[B.R. GAVAI, J.B. PARDIWALA AND
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Whether the prosecution could be said to
have proved its case beyond reasonable doubt against the appellant who
was convicted for offence punishable u/ss.302, 436 and 326-A, IPC and
sentenced to death, for allegedly setting his son and his real brothers on
fire, solely on the basis of dying declarations.
Evidence – Dying declarations – Sole basis of conviction – When
not justified – Appellant had strained relationship with his son (victim-
deceased) from his first marriage and his two brothers (victims-
deceased), all of whom, as per the prosecution, were opposed to his
second marriage – He is said to have locked the door of the room from
outside in which the victims were sleeping, poured kerosene in the room
and set it on fire – Dying declarations of two of the deceased persons
relied upon – Legality:
Held: Courts are first required to satisfy themselves that the dying
declaration in question is reliable and truthful before placing any reliance
upon it – 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 – In the instant case, neither the
two dying declarations nor the oral evidence of PW-2 and PW-4 inspire any
confidence – Both these witnesses do not figure in the two dying declarations
789
790 SUPREME COURT REPORTS [2023] 11 S.C.R.
– The two dying declarations are not consistent or rather contradictory to
the oral evidence on record – Although, the appellant was named in the two
dying declarations as a person who set the room on fire yet the surrounding
circumstances render such statement very doubtful – Difficult to rest the
conviction solely based on the two dying declarations – Prosecution has not
proved its case against the appellant beyond reasonable doubt – Appellant
acquitted. [Paras 47, 61, 64, 67-69]
Criminal Law – Charge against accused – Duty of prosecution to
establish beyond reasonable doubt:
Held: It is the duty of the prosecution to establish the charge against the
accused beyond reasonable doubt – The benefit of doubt must always go in
favour of the accused – Dying declaration is a substantive piece of evidence
to be relied on provided it is proved that it 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 – Evidence – Dying declaration. [Para 63]
Evidence – Dying declaration – Acceptability – Theory:
Held: 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 it
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 cross-examination are dispensed
with – Since, the accused has no power of cross-examination, 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 – However, the
court 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.
[Para 43]
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 791
Evidence – Dying declaration – Reliance upon – Factors to be
considered – Duty of the Court:
Held: 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 – Thus, there is no hard and fast rule for determining
when a dying declaration should be accepted – 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 – Factors to be considered,
enumerated. [Paras 60 and 62]
Evidence Act, 1872 – s.8 – Conduct:
The conduct of the accused may be unnatural because he was residing
in the very same house, however, the conduct which may be a relevant fact
u/s.8, by itself may not be sufficient to hold a person guilty of the offence
of murder – Penal Code, 1860 – s.302. [Para 46]
Evidence – Dying declaration – Sanctity/presumption attached
to – Justification for:
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. [Para 64]
Evidence – Dying declaration – Suspicion as regards correctness
of – Duty of Court:
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.
[Para 48]
792 SUPREME COURT REPORTS [2023] 11 S.C.R.
Practice and Procedure – Criminal appeals filed against concurrent
findings – Jurisdiction of Supreme Court – Discussed.
LIST OF CITATIONS AND OTHER REFERENCES
Mst. Dalbir Kaur and Others v. State of Punjab (1976) 4 SCC 158
: [1977] 1 SCR 280; Laxman v. State of Maharashtra (2002) 6 SCC 710;
Muthu Kutty & Anr. v. State by Inspector of Police, T.N. (2005) 9 SCC 113
: [2004] 6 Suppl. SCR 222; Nallapati Sivaiah v. Sub-Divisional Officer,
Guntur, Andhra Pradesh (2007) 15 SCC 465 : [2007] 10 SCR 347; Bhajju
alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327 : [2012]
5 SCR 37; Sujit Biswas v. State of Assam (2013) 12 SCC 406 : [2013] 3
SCR 830; Dharm Das Wadhwani v. State of Uttar Pradesh (1974) 4 SCC
267: [1974] 3 SCR 607 – relied on.
King v. William Woodcock (1789) 1 Leach 500 : 168 ER 352; Neville
Nembhard v. The Queen (1982) 1 AII ER 183 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
825-826 of 2022.
From the Judgment and Order dated 25.04.2018 of the High Court of
Judicature at Allahabad in CCN No.4669 of 2017 in RN No.11 of 2017.
Appearances:
Gopal Sankaranarayanan, Sr. Adv., Ms. Adeeba Mujahid, Adv. for
the Appellant.
Ardhendumauli Kumar Prashad, AAG, Adarsh Upadhyay, Ms.
Pallavi Kumari, Ms. Ananya Sahu, Advs. for the Respondent.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 793
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.
1. These appeals by special leave are at the instance of a convict-
accused 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.
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 appellant- convict,
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
794 SUPREME COURT REPORTS [2023] 11 S.C.R.
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
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 795
[J. B. PARDIWALA, J.]
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
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 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
796 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 video- graphed
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.
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- PW-1
in-Law
2. Shanu @ Shahnawaz, Younger PW-2
Brother
3. Mohd. Imran, D ownstairs PW-3
Neighbour, (examined to prove
recovery memo)
4. Soni, Sister PW-4
5. ASI, Narender Singh Rawat, PW-5
Police Post, RML Hospital
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 797
[J. B. PARDIWALA, J.]
6. Dr Saurav, RML H ospital PW-6
7. Dr Rahul Band, Lady Hardinge PW-7
Medical College, New Delhi
8. Dr Kuldeep Panchal, PW-8
Lady Hardinge Medical
College, New Delhi
9. Vishnu Gopal Upadhyaya, SI PW-9
10. R.P. Yadav, Inspector (Retd) PW-10
11. Dr Arvind Kumar, Associate PW-11
Pr of ., Forens ic Medicine,
Lady Hardinge Medical
College, New Delhi
12. Dr Charanjeet Kaur, RMLHospital PW-12
13. Riyaz-ud-din Khan, PW-13
C on s t a b le Cl e rk 118 4
19. The prosecution also adduced the following documentary evidence:
S.No. Particulars Number and Name of Exhibit Nos.
with witness
1. Original complaint PW-1, M o h a m m a d Exhibit Ka-1
dated 06.08.14 Yunus
2. Forensic Science Exhibited by Court vide Exhibit Ka-2
Labor atory Report, order dated 19.03.15
Agra dated 08.12.14
3. Statement of the PW-5, A.S.I. Narender Exhibit Ka-2
deceased Irshad dated Singh Rawat
07.08.14
4. Request form of autopsy PW-5, A.S.I. Narender Exhibit Ka-3
of the deceased Irshad Singh Rawat
dated 10.08.14
5. Request form of PW-5, A.S.I. Narender Exhibit Ka-4
autopsy of the deceased Singh Rawat
Naushad dated 18.08.14
798 SUPREME COURT REPORTS [2023] 11 S.C.R.
6. Copy of the statement PW-5, A.S.I. Narender Exhibit Ka-5
of deceased Islamuddin Singh Rawat
dated 07.08.14
7. Statement of the PW-5, A.S.I. Narender Exhibit Ka-5A
deceased Islamuddin Singh Rawat
dated 07.08.14
8. Request form of PW-5, A.S.I. Narender Exhibit Ka-6
autopsy of the deceased Singh Rawat
Islamuddin dated
19.08.14
9. Receipt of dead body PW-5 A.S.I. Narender Exhibit Ka-7
of Islamuddin 19.08.14 Singh Rawat
10. Statement for PW-5 A.S.I. Narender Exhibit Ka-8
identification of dead Singh Rawat
11. Receipt of dead body of PW-5 A.S.I. Narender Exhibit Ka-9
Irshad dated 10.08.14 Singh Rawat
12. Medico Legal Case PW-6 Dr. Sourav Exhibit Ka-10
Sheet of the deceased
Irshad dated 06.08.14
13. Medico Legal C a s e PW-6 Dr. Sourav Exhibit Ka-11
Sheet of the deceased
Naushad dated 06.08.14
14. Medico Legal Case PW-6 Dr. Sourav Exhibit Ka-12
Sheet of the deceased
Islamuddin dated
6.08.14
15. Medico Legal Post PW-7 Dr. Rahul Band Exhibit Ka-10
Mortem report of the A
deceased Islamuddin
dated 19.08.14
16. Medico Legal Post PW-7 Dr. Rahul Band Exhibit Ka-11
Mortem report of the A
deceased Irshad dated
10.08.14
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 799
[J. B. PARDIWALA, J.]
17. Medico Legal Post PW-8 D r . K u l d e e p Exhibit Ka-12
Mortem Report of the Panchal A
d e c ea s ed N a u s h a d
dated 18.08.14
18. Site Plan dated 06.08.14 PW-9 S.I. Vishnu Gopal Exhibit Ka-13
Upadhyay
19. Recovery Memo dated PW-9 S.I. Vishnu Gopal Exhibit Ka-14
06.08.14 Upadhyay
20. Charge Sheet d a t e d PW-10 Inspector R.P. E x h i b i t
28.09.14 Yadav (Retd.) Ka14-A
21. Death report of the PW-12 Dr. Charanjeet Exhibit Ka-15
deceased Islamuddin Kaur
dated 18.08.14
22. PW-9 S.I. Vishnu Gopal PW-9 S.I. Vishnu Gopal Exhibit Ka-16
Upadhyay Upadhyay
23. Chick FIR d a t e d PW-13 Constable Clerk Exhibit Ka-17
06.08.14 Riyazudeen Khan
24. Carbon copy G.D. PW-13 R i y a z u d e e n Exhibit Ka-18
Khan
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 appellant-
convict 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.
800 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 appellant- convict
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 eye- witnesses.
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.
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:
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 801
[J. B. PARDIWALA, J.]
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 appellant-
convict 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.
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
son- in-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,
802 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 803
[J. B. PARDIWALA, J.]
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 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 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
804 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 805
[J. B. PARDIWALA, J.]
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
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:
806 SUPREME COURT REPORTS [2023] 11 S.C.R.
“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 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.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 807
[J. B. PARDIWALA, J.]
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)
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
808 SUPREME COURT REPORTS [2023] 11 S.C.R.
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
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
appellant- convict 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
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 809
[J. B. PARDIWALA, J.]
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 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
eye- witnesses 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 cross- examination are
dispensed with. Since the accused has no power of cross- examination,
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
810 SUPREME COURT REPORTS [2023] 11 S.C.R.
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]
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
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.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 811
[J. B. PARDIWALA, J.]
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 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)
812 SUPREME COURT REPORTS [2023] 11 S.C.R.
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]
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 cross- examine 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,
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 813
[J. B. PARDIWALA, J.]
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
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:
814 SUPREME COURT REPORTS [2023] 11 S.C.R.
“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.” (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
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 815
[J. B. PARDIWALA, J.]
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 cross- examination.
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
816 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 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 exception to the general
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 817
[J. B. PARDIWALA, J.]
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 cross- examination 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
818 SUPREME COURT REPORTS [2023] 11 S.C.R.
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?
(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?
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 819
[J. B. PARDIWALA, J.]
(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 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:
820 SUPREME COURT REPORTS [2023] 11 S.C.R.
“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 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.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH 821
[J. B. PARDIWALA, J.]
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.
Headnotes prepared by: Appeals allowed.
Divya Pandey
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