Dying Declaration

 

 

By Adv. R. S. Agrawal 

 

A 3-JUDGE Bench at the Supreme Court, consisting of justices Bhushan R Gavai, J B Pardiwala and Prashant Kumar Mishra, have very emphatically stated in the judgement of the case – Irfan alias Naka v. the State of Uttar Pradesh, delivered on August 23, 2023, that it is difficult to rest the conviction solely based upon the two dying declarations. Otherwise also the PW-2 -Shanu, the convict Irfan’s brother has not been believed by the Allahabad High Court, which has confirmed on April 25, 2018, the death sentence awarded to appellant-Irfan, by the Addl Sessions Judge-6, Bijnore. The SC has quoted Justice Krishna Iyer from its decision of the case – Dharmdas Wadhwani v. State of Uttar Pradesh –(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, circumstancial or direct. The SC opined that even on applying this principle, it has doubts as regards the complicity of the appellant-convict in the crime. The apex court has also pointed out that the oral evidence of PW-4 Soni also does not inspire confidence.

 

The SC has observed that it was not satisfied that the prosecution has proved its case against the appellant-convict beyond reasonable doubt. 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. 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 on 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 be considered as a piece of evidence but cannot be the basis for conviction alone. 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, as under, can be considered to determine the same, however, these 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 that the dying declaration was put in mouth of 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 observe the incident clearly? (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. 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 upon 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. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion like the case in 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 (the SC) 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 statements of the declarants ,very doubtful. The SC has referred to its judgement in the case- Sujit Biswas v. State of Assam - (2013) 12 SCC 406, wherein it has dealt with and examined the distinction between “proof beyond reasonable doubt” and “suspicion” in paragraph 13, holding that “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.” It has been the prosecution’s case that three deceased persons, more particularly Islamuddin (convict’s son) was highly opposed to the second marriage of his father. Even once he was beaten by his father (appellant-convict). On August 5 2014, at around 10 pm, when the dinner was over. It so happened that ‘due to bad weather’ all the three deceased persons slept in one and the same room. The same night in early morning hours, 30 minutes after midnight, PW-2 woken up to see that flames and smoke coming from that room. According to the prosecution case, the appellant-convict was seen setting the room on fire, fastening the door-latch and running away from the spot. The dying declarations by Irshad and Islamuddin were recorded and videographed. Though Naushad also died, his declaration could not be recorded. The Supreme Court allowed the appeals and acquitted the appellant-death convict of all the charges levelled against him.