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Synopsis

The Supreme Court has set aside the Allahabad High Court's judgement confirming death penalty awarded to a man for setting ablaze his son and two brothers.

The court found that the dying declarations of the two victims were suspicious and doubts were raised with regard to their truthfulness and trustworthiness if compared with oral evidence of other witnesses.

A bench of Justices B R Gavai, J B Pardiwala and Prashant Kumar Mishra said, "In the present case, it is difficult to rest the conviction solely based on the two dying declarations."

"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 at 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," the bench said.

The court directed for release of the appellant, Irfan alias Naka if not required in any other case.

The appellant was awarded death penalty by the trial court for setting afire two brothers namely Irshad and Naushad and son Islamuddin, while they were asleep in a room on the night of August 5, 2014 at Bijnore, as they were opposed to his second marriage. The HC has confirmed the conviction and sentence.

After going through records, the bench found that the deceased claimed in their dying declarations that they were saved by neighbours. Their sister, Soni who was present in the same house, claimed the room of the deceased was locked from inside while their another brother Shanu claimed it was open.

"The two dying declarations are not consistent or rather contradictory to the oral evidence on record," the bench noted.

The court said a close perusal of the two dying declarations indicated 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 Irshad and Islamuddin in their respective dying declarations do not say a word about the presence of Shanu alias Shahnawaz and 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, it said.

In the judgement authored by Justice Pardiwala, he said 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 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," the bench said.

The court also said 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. 

Case Title: Irfan @ Naka Vs State of Uttar Pradesh

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