IRFAN @ NAKA (APPELLANT) Vs. THE STATE OF UTTAR PRADESH (RESPONDENT)

CRIMINAL APPEAL NOS. 825-826 of 2022
(3JB, B.R. GAVAI, J.B. PARDIWALA and PRASHANT KUMAR MISHRA JJ., delivered by J. B. Pardiwala, J.)

Facts: The present 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 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 respectively under section 366 Cr.P.C.

Issue: Whether the prosecution could be said to have proved its case against the appellant-convict beyond reasonable doubt?

Arguments on behalf of counsel for appellant: Mr. Gopal Sankaranarayanan

It is submitted that 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. 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. 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. 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 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. 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.

Arguments on behalf of counsel for respondent: Mr. Ardhendumauli Kumar Prashad

It is submitted that 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. 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. There is no good reason to discard the oral evidence of the PW-2 Shanu alias Shahnawaz and PW-4 Soni. The courts below rightly believed the two dying declarations to be true and trustworthy. To conclude, the learned counsel pointed out that the appellantconvict is a history-sheeter and has tendency to repeatedly indulge in serious crimes. 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.

Held: The court allowed the present appeal and acquitted the appellant-convict of all the charges levelled against him, thereby directing the appellant-convict to be released forthwith. It was held that, “it is difficult to rest the conviction solely based on the two dying declarations and the oral evidence also does not inspire any confidence and the court is not satisfied that the prosecution has proved its case against the appellant-convict beyond reasonable doubt.”

The court gave the following directions for determining when a dying declaration should be accepted, and ennumerated the following factors to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: –

• Whether the person making the statement was in expectation of death?
• Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”
• Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
• Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
• Whether the statement was not recorded properly?
• Whether, the dying declarant had opportunity to clearly observe the incident?
• Whether, the dying declaration has been consistent throughout?
• Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?
• Whether, the dying declaration was itself voluntary?
• In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
• Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

Lastly, it was observed that, “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.”