'Great Caution Needed' : Supreme Court Lists Out Factors To Be Considered While Relying On Dying Declarations

“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.”

This verdict was delivered by a three-judge bench of Justices BR Gavai, JB Pardiwala, and Prashant Kumar Mishra after hearing the convict’s plea against the Allahabad High Court confirming the death sentence handed to him by a Uttar Pradesh sessions court in 2017.

Irfan, who has now been cleared of all charges, was convicted in the murder of his two brothers and own son. The allegation was that he set them on fire while they were sleeping and locked them in the room. This, the prosecution claimed, was fuelled by disagreements over Irfan’s intention to get married a second time.

While the three were rescued by neighbours and other family members and rushed to the hospital, they eventually succumbed to their injuries, one within two days of being admitted to the hospital, and the other two after less than a fortnight. The police, however, managed to record the dying declarations of two of the three victims, which became the central hinge of the prosecution’s case. On the basis of the two dying declarations, the sessions court arrived at a guilty verdict, which was later upheld by the Allahabad High Court in 2018 after finding no discrepancies in the statements.

Despite the concurrent findings of the lower courts, the Supreme Court was not persuaded that a conviction could be sustained based on the dying declarations alone. On dying declarations and their credibility, the court observed –

“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.”

Noting the discrepancies between them and other eyewitness accounts, and the absence of other clinching evidence, the Justice Gavai-led bench ultimately overturned Irfan’s conviction and sentence –

“In the present case, it is difficult to rest the conviction solely based on the two dying declarations. We are not satisfied that the prosecution has proved its case against the appellant-convict beyond reasonable doubt. 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.”

Arguments by Parties

Senior Advocate Gopal Sankaranarayanan, appearing on behalf of Irfan strongly contended that the courts below had made critical errors in holding that his guilt had been established beyond reasonable doubt, stressing the prosecution’s excessive reliance on circumstantial evidence, none of which was sufficiently incriminating according to him.

The senior counsel also questioned the credibility of the two dying declarations, pointing not only to discrepancies between these statements and the accounts of the two eyewitnesses, but also to the manner in which the dying declarations were recorded. In support of the last contention, Sankaranarayanan highlighted that the dying declarations were not recorded in the prescribed ‘question-answer’ format. He also cited the non-involvement of an executive magistrate in the process and the lack of any indication as to the health condition of the two making these statements. One of them had suffered 95 percent burns, while the other had suffered 80-90 percent burns and both their medico-legal case (MLC) reports noted ‘No BP readable’. Were they even in a fit state to speak in order to give their statements, which were treated as dying declarations after their death, Sankaranarayanan asked the bench.

On the other hand, UP Additional Advocate General Ardhendumauli Kumar Prashad contested the appeals, insisting that the lower courts had correctly established the appellant’s guilt. In aid of this contention, he specifically pointed out the significant motive behind the crime, arising out of family conflict over Irfan’s second marriage, and that he had a history of committing serious crimes. He also argued that the eyewitness accounts which put Irfan at the scene of the crime, inspired confidence. On the credibility of the dying declarations, Prashad asserted that the trial court and the Allahabad High Court were right in believing these statements to be true and trustworthy.

Court’s Observation

The appellant’s argument questioning the veracity of the dying declarations and the eyewitness accounts on account of contradictions between them found favour with the Supreme Court bench, which observed –

“On overall assessment of the materials on record, we have reached to the conclusion that neither the two dying declarations inspire any confidence nor does the oral evidence of the [two eyewitnesses] inspire any confidence. Had the dying declarations stood corroborated by the oral evidence, then probably, it would have been altogether a different scenario. However, the two dying declarations are not consistent or rather contradictory to the oral evidence on record.”

On the legal acceptance of dying declarations, the court noted that the underlying theory posited that these declarations emerged when an individual faced imminent death, with worldly concerns extinguished, thus driving them to speak the unadulterated truth. This sanctity of dying declarations holds a dual rationale: ethical and religious trust in truthfulness near death, and public policy addressing situations where the near-death are sole witnesses to a crime. Nevertheless, ‘great caution’ must be exercised in considering the weight to dying declarations –

“…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.”

Even at the inception of this principle, in a 1789 ruling in King v. William Woodcock, the courts were wary of the inherent weakness of dying declarations and cautioned for great care to be adopted. The concept has been statutorily crystallised in Section 32 of the Indian Evidence Act which provides exceptions to the rule of hearsay evidence.

But despite presumptions of their veracity, the court observed, dying declarations are not unconditionally accepted. Courts – here and abroad – have a long tradition of evaluating whether the essentials of a dying declaration are met, their admissibility and truthfulness, and the extent of their credibility before placing any reliance on such statements. While dying declarations are substantial, they need to be voluntary, truthful, and given in a sound mental state. It is just not enough to say that the dying declaration is reliable since an accused is named in the dying declaration as the assailant, the court reiterated.

Where there is any suspicion over their veracity, such statements cannot be the sole basis for conviction. In such cases, like the present, the court would have to seek corroborative evidence before accepting dying declarations as the basis for conviction. There are no ‘hard and fast’ rule for determining when a dying declaration should be accepted, the bench said, before insisting that it was the court’s duty to decide this question in view of the circumstances and after being fully convinced of the truthfulness of the statements. An illustrative list of factors that would help determine the weight of a dying declaration, although not its admissibility, has also been reproduced in the judgment –

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

After making these observations, the Supreme Court proceeded to allow the appeal and set aside the conviction and sentence of the death row prisoner –

“The reason 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. It may be true as said by this Court 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. In the present case, it is difficult to rest the conviction solely based on the two dying declarations.”

Background

Irfan, alias Naka was convicted and sentenced to die by an additional sessions judge in UP’s Bijnore under Section 302 of the Indian Penal Code, which is the maximum punishment prescribed in the said provision. The allegation was that Irfan, driven by a family feud, set his brothers and his son on fire and locked them in a room, trapping the victims inside. Their shrieks for help alerted other family members and neighbours, who managed to open the door, extinguish the fire, and rescue the trio. The victims were rushed to the hospital in critical condition but they eventually succumbed to their injuries.

Relying primarily on the dying declarations of two of the victims, the sessions court pronounced Irfan guilty. His conviction and sentence of death penalty were later upheld by the Allahabad High Court in 2018 after junking his arguments questioning the veracity of the dying declarations.

Then the matter travelled to the Supreme Court in appeal. In May 2022, the top court stayed the execution of the sentence imposed on Irfan. Besides this, the court also noted that an assessment of the convict’s conduct would help final submissions and accordingly, sought reports from the probation officer and the jail administration. In the interest of justice, it also directed a psychological evaluation of the appellant, besides seeking an independent report from an associate of Project 39-A of Delhi’s National Law University who was granted access to the death row convict. The Justice Gavi-led bench reserved its verdict last month after hearing the submissions made by Senior Advocate Gopal Sankaranarayanan, appearing for the convict, and UP Additional Advocate General Ardhendumauli Kumar Prashad for the state government. Yesterday, it acquitted the death row prisoner and ordered his immediate release.

Case Details

Irfan @ Naka v. State of Uttar Pradesh | Criminal Appeal Nos. 825-826 of 2022

Citation : 2023 LiveLaw (SC) 698

Dying Declaration – Weight Assigned in Criminal Proceedings – Indian Evidence Act (Act 1 of 1872) – Section 32 – Great caution must be exercised while placing reliance on dying declarations even as the law attaches a presumption of truthfulness to such statements – 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 declarations – Held, dying declarations not sufficient evidence in present case – Appeal allowed.

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