New Delhi: The Supreme Court, on Wednesday, August 23, laid down elaborate and clear guidelines on the admissibility of dying declarations while acquitting a death-row convict by giving him the benefit of the doubt. A three-judge bench, comprising Justices B.R. Gavai, J.B. Pardiwala and Prashant Kumar Mishra, in Irfan@Naka vs the State of Uttar Pradesh held that the court should always be on guard to see that the statement of the deceased was not a result of tutoring or prompting or a product of imagination. The judgment, authored by Justice Pardiwala, came in a case in which a resident of Bijnore in Uttar Pradesh was convicted of setting his son and two brothers on fire while they were sleeping – because of personal animosity. Both the Bijnore additional sessions judge and the Allahabad high court had confirmed the conviction and death sentence of the appellant-convict. However, the top court concluded that the prosecution was not able to prove beyond reasonable doubt that it was only and only the appellant-convict who set the room on fire by pouring an inflammable substance. Because the dying declarations of two of the deceased – the convict’s son and one of his brothers – played a crucial role in the conviction, the judgment dives into the admissibility of such declarations.The justification for the sanctity/presumption attached to a dying declaration is two-fold: First, ethically and religiously it is presumed that a person while at the brink of death will not lie, and second, from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.The bench held that dying declarations, 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, it added.The bench clarified that 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 can be considered to determine the same, the bench held, adding that they will only affect the weight of the dying declaration and not its admissibility. These factors, the bench said, are:(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 the 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) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?It is the duty of the prosecution to establish the charge against the accused beyond a reasonable doubt; and the benefit of doubt must always be in favour of the accused, the bench held. It is true that a dying declaration is a substantive piece of evidence to be relied on – provided it is also 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, the bench explained.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, the bench held. 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 bench clarified. “The reason why we say so is that in the case on hand, although the appellant-convict was named in two dying declarations as the person who set the room on fire, yet the surrounding circumstances render the statements of the declarants very doubtful,” the bench concluded.The judgment cites the 1974 Dharam Das Wadhwani vs State of Uttar Pradesh verdict by Justice Krishna Iyer, which held 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,” the order by Justice Pardiwala pointed out. “Prosecution Witness[PW]-2 has been otherwise also not believed by the High Court. It is difficult to rest the conviction solely based on the two dying declarations. The oral evidence of the PW-4 Soni also does not inspire any confidence,” the bench further added. The Supreme Court of India. Credit: Subhashish Panigrahi/Wikimedia Commons. CC by SA 4.0Facts of the caseThe appellant-convict was married twice. The first marriage was with a lady, who was the daughter of his uncle (PW-1). His second marriage was solemnised with another lady. One son by the name of Islamuddin – who was killed in the fire – was born in wedlock with his first wife.The convict had two brothers, namely, Irshad and Naushad – both of whom were also killed – and who lived along with him and his sister Soni (PW-4). Another brother by the name Shanu alias Shahnawaz (PW-2) of the convict lived in the neighbourhood.According to the prosecution, the three deceased persons more – particularly Islamuddin (the convict’s son) – were highly opposed to the second marriage of the appellant-convict. Islamuddin was even once beaten by the appellant-convict as he had offered a lot of opposition to the second marriage of his father. The two deceased brothers had also defended Islamuddin’s opposition to the second marriage of the appellant, the prosecution said. On August 6, 2014, at around 12:30 am, the PW-2 – another brother of the convict – 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. While PW-4 lives in the same house as the convict, PW-2 claimed he was there to have dinner with PW-4 and the deceased persons.The prosecution claimed that the PW-2 and PW-4 opened their doors and saw the appellant-convict running from the roof towards the stairs. According to the case of the prosecution, two other persons – who were not examined – also saw the appellant-convict running away. “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 court said.According to the bench, the conduct of the accused might be “unnatural” but such conduct, which may be a relevant factor under Section 8 of the Indian Evidence Act “by itself may not be sufficient to hold a person guilty of the offence of murder”. Had the dying declarations stood corroborated by the oral evidence of PW-2 and PW-4, then probably, it would have been altogether a different scenario. However, the bench found that the two dying declarations were not consistent or rather contradictory to the oral evidence on record.