Brief Facts
- The Appellant-accused was alleged for causing death of his two brothers and son by torching the room in which the three deceased persons were sleeping. It was alleged that the deceased son and brothers were unhappy with the second marriage of the Appellant. On 05.08.2014 midnight the deceased were sleeping in a room and at around 12:30 AM, PW-2 woke up to see the flames and smoke coming from the room.
- PW-2 and PW-4 claimed to have seen the Appellant setting the room on fire, fastening the door latch and running away. All the three injured were taken to the hospital and they passed away after surviving for a few days from the date of the incident. Prior to their death, the dying declaration of Irshad and Islamuddin were video graphed by the ASI on his mobile phone. In their dying declaration the deceased had not mentioned about the presence of PW-2 and PW-4, rather they had stated that after some time the neighbours took them out from the room and they were admitted to the Hospital. The Trial Court convicted the Appellant relying on the dying declaration and the oral evidence of PW-2 and PW-4.
Issues
- Principles governing the admissibility of the dying declaration as evidence for convicting the accused.
- Whether dying declaration can be relied upon when it is in contradiction with the statements of the witnesses?
- Whether the accused can be convicted solely on the basis of his unnatural conduct?
Held
- The Apex Court acquitted the Appellant by concluding that the dying declarations are not reliable and so are the statements of the PW-2 and PW-4 considering the contradiction in the versions narrated in these statements.
Relevant factors for determining the relevancy of dying declaration - 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 below reproduced can be considered 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? (iv) 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? - 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 conduct of the accused may be unnatural because he was residing in the very same house, however, the conduct which may be a relevant fact under Section 8 of the Indian Evidence Act by itself may not be sufficient to hold a person guilty of the offence of murder.
- On overall assessment of the materials on record, we have reached to the conclusion that neither the two dying declarations inspire any confidence nor the oral evidence of the PW-2 and PW-4 respectively inspire any confidence. Had the dying declarations stood corroborated by the oral evidence of the PW-2 and PW-4, then probably, it would have been altogether a different scenario. However, as noted above, the two dying declarations are not consistent or rather contradictory to the oral evidence on record.
- 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.
Relevant Para No.
- 46,47, 62, 64