# CASE DETAILS IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH

- **Citation:** 2023 INSC 758
- **Court:** Supreme Court of India
- **Decided:** 2023-08-23
- **Case number:** Criminal Appeal Nos. 825-826 of 2022
- **Bench:** B.R. Gavai, J.B. Pardiwala, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-irfan-naka-v-the-state-of-uttar-pradesh-36299
- **Pages:** 33

## Headnote

Issue for consideration: Whether the prosecution could be said to
have proved its case beyond reasonable doubt against the appellant who
was convicted for off ence punishable u/ss.302, 436 and 326-A, IPC and
sentenced to death, for allegedly setting his son and his real brothers on
fi re, solely on the basis of dying declarations.
Evidence - Dying declarations - Sole basis of conviction - When
not justifi ed - Appellant had strained relationship with his son (victimdeceased) from his first marriage and his two brothers (victimsdeceased), all of whom, as per the prosecution, were opposed to his
second marriage - He is said to have locked the door of the room from
outside in which the victims were sleeping, poured kerosene in the room
and set it on fi re - Dying declarations of two of the deceased persons
relied upon - Legality:
Held: Courts are fi rst required to satisfy themselves that the dying
declaration in question is reliable and truthful before placing any reliance
upon it - Dying declaration while carrying a presumption of being true must
be wholly reliable and inspire confi dence - 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 - In the instant case, neither the
two dying declarations nor the oral evidence of PW-2 and PW-4 inspire any
confi dence - Both these witnesses do not fi gure in the two dying declarations
[2023] 11 S.C.R. 789 : 2023 INSC 758
789
790
SUPREME COURT REPORTS
[2023] 11 S.C.R.
- The two dying declarations are not consistent or rather contradictory to
the oral evidence on record - Although, the appellant was named in the two
dying declarations as a person who set the room on fi re yet the surrounding
circumstances render such statement very doubtful - Diffi cult to rest the
conviction solely based on the two dying declarations - Prosecution has not
proved its case against the appellant beyond reasonable doubt - Appellant
acquitted. [Paras 47, 61, 64, 67-69]
Criminal Law - Charge against accused - Duty of prosecution to
establish beyond reasonable doubt:
Held: It is the duty of the prosecution to establish the charge against the
accused beyond reasonable doubt - The benefi t of doubt must always go in
favour of the accused - Dying declaration is a substantive piece of evidence
to be relied on provided it is proved that it was voluntary and truthful and
the victim was in a fi t 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 - Evidence - Dying declaration. [Para 63]
Evidence - Dying declaration - Acceptability - Theory:
Held: The juristic theory regarding the acceptability of a dying
declaration is that such declaration is made in extremity, when the party
is at the point of death and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth - Notwithstanding the same,
great caution must be exercised in considering the weight to be given to it
on account of the existence of many circumstances which may aff ect 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
confi dence of the court in its truthfulness and correctness - However, the
court 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.
[Para 43]
791
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
Evidence - Dying declaration - Relian

## Text

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CASE DETAILS
IRFAN @ NAKA
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 825-826 of 2022)
AUGUST 23, 2023
[B.R. GAVAI, J.B. PARDIWALA AND
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Whether the prosecution could be said to
have proved its case beyond reasonable doubt against the appellant who
was convicted for off ence punishable u/ss.302, 436 and 326-A, IPC and
sentenced to death, for allegedly setting his son and his real brothers on
fi re, solely on the basis of dying declarations.
Evidence - Dying declarations - Sole basis of conviction - When
not justifi ed - Appellant had strained relationship with his son (victimdeceased) from his first marriage and his two brothers (victimsdeceased), all of whom, as per the prosecution, were opposed to his
second marriage - He is said to have locked the door of the room from
outside in which the victims were sleeping, poured kerosene in the room
and set it on fi re - Dying declarations of two of the deceased persons
relied upon - Legality:
Held: Courts are fi rst required to satisfy themselves that the dying
declaration in question is reliable and truthful before placing any reliance
upon it - Dying declaration while carrying a presumption of being true must
be wholly reliable and inspire confi dence - 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 - In the instant case, neither the
two dying declarations nor the oral evidence of PW-2 and PW-4 inspire any
confi dence - Both these witnesses do not fi gure in the two dying declarations
[2023] 11 S.C.R. 789 : 2023 INSC 758
789
790
SUPREME COURT REPORTS
[2023] 11 S.C.R.
- The two dying declarations are not consistent or rather contradictory to
the oral evidence on record - Although, the appellant was named in the two
dying declarations as a person who set the room on fi re yet the surrounding
circumstances render such statement very doubtful - Diffi cult to rest the
conviction solely based on the two dying declarations - Prosecution has not
proved its case against the appellant beyond reasonable doubt - Appellant
acquitted. [Paras 47, 61, 64, 67-69]
Criminal Law - Charge against accused - Duty of prosecution to
establish beyond reasonable doubt:
Held: It is the duty of the prosecution to establish the charge against the
accused beyond reasonable doubt - The benefi t of doubt must always go in
favour of the accused - Dying declaration is a substantive piece of evidence
to be relied on provided it is proved that it was voluntary and truthful and
the victim was in a fi t 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 - Evidence - Dying declaration. [Para 63]
Evidence - Dying declaration - Acceptability - Theory:
Held: The juristic theory regarding the acceptability of a dying
declaration is that such declaration is made in extremity, when the party
is at the point of death and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth - Notwithstanding the same,
great caution must be exercised in considering the weight to be given to it
on account of the existence of many circumstances which may aff ect 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
confi dence of the court in its truthfulness and correctness - However, the
court 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.
[Para 43]
791
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
Evidence - Dying declaration - Reliance upon - Factors to be
considered - Duty of the Court:
Held: 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 - Thus, there is 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 same - Factors to be considered,
enumerated. [Paras 60 and 62]
Evidence Act, 1872 - s.8 - Conduct:
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
u/s.8, by itself may not be suffi cient to hold a person guilty of the off ence
of murder - Penal Code, 1860 - s.302. [Para 46]
Evidence - Dying declaration - Sanctity/presumption attached
to - Justifi cation for:
The justifi cation for the sanctity/presumption attached to a dying
declaration is two fold- (i) ethically and religiously it is presumed that a
person while at the brink of death will not lie, whereas (ii) from a public
policy perspective it is to tackle a situation where the only witness to the
crime is not available. [Para 64]
Evidence - Dying declaration - Suspicion as regards correctness
of - Duty of Court:
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.
[Para 48]
792
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Practice and Procedure - Criminal appeals fi led against concurrent
fi ndings - Jurisdiction of Supreme Court - Discussed.
LIST OF CITATIONS AND OTHER REFERENCES
Mst. Dalbir Kaur and Others v. State of Punjab (1976) 4 SCC 158
: [1977] 1 SCR 280; Laxman v. State of Maharashtra (2002) 6 SCC 710;
Muthu Kutty & Anr. v. State by Inspector of Police, T.N. (2005) 9 SCC 113
: [2004] 6 Suppl. SCR 222; Nallapati Sivaiah v. Sub-Divisional Offi cer,
Guntur, Andhra Pradesh (2007) 15 SCC 465 : [2007] 10 SCR 347; Bhajju
alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327 : [2012]
5 SCR 37; Sujit Biswas v. State of Assam (2013) 12 SCC 406 : [2013] 3
SCR 830; Dharm Das Wadhwani v. State of Uttar Pradesh (1974) 4 SCC
267: [1974] 3 SCR 607 - relied on.
King v. William Woodcock (1789) 1 Leach 500 : 168 ER 352; Neville
Nembhard v. The Queen (1982) 1 AII ER 183 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
825-826 of 2022.
From the Judgment and Order dated 25.04.2018 of the High Court of
Judicature at Allahabad in CCN No.4669 of 2017 in RN No.11 of 2017.
Appearances:
Gopal Sankaranarayanan, Sr. Adv., Ms. Adeeba Mujahid, Adv. for
the Appellant.
Ardhendumauli Kumar Prashad, AAG, Adarsh Upadhyay, Ms.
Pallavi Kumari, Ms. Ananya Sahu, Advs. for the Respondent.
793
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.
1. These 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 in Capital Case No.
4669 of 2017 connected with Reference No. 11 of 2017 by which, the High
Court dismissed the appeal fi led by the convict-accused and thereby affi rmed
the judgment and order of conviction and sentence of death passed by the
Additional Sessions Judge Court No. 6, Bijnore for the off ence punishable
under Sections 302, 436 and 326-A of the Indian Penal Code, 1860 (for
short, 'the IPC') respectively.
2. The convict was awarded death penalty with fi ne of Rs. 20,000/- by
the trial court for the off ence punishable under Section 302 IPC. For the
off ence punishable under Section 436 IPC, the convict was awarded life
imprisonment with fi ne of Rs. 10,000/- and for the off ence punishable under
Section 326-A IPC, the appellant came to be sentenced for life imprisonment
with fi ne of Rs. 10,000/- and in default of payment of fi nes, further six
months of rigorous imprisonment.
3. While the criminal reference was submitted by the trial court under
Section 366 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC')
for confi rmation of capital punishment awarded to the appellant- convict,
the appellant-convict preferred an appeal by way of Capital Case No. 4669
of 2017, putting in issue his conviction and sentence. The High Court
dismissed the case fi led by the appellant-convict thereby confi rming the
death reference under Section 366 of the CrPC.
CASE OF THE PROSECUTION
4. FAMILY CHART
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
794
SUPREME COURT REPORTS
[2023] 11 S.C.R.
5. The appellant-convict was married twice. The fi rst marriage was
with a lady by name Ishrat, who was the daughter of his uncle Mohammad
Yunus (PW-1). His second marriage was solemnised with a lady named
Afsana. One son by name Islamuddin (deceased) was born in wedlock with
Ishrat. The convict had two brothers, namely, Irshad (deceased) and Naushad
(deceased), who lived along with him and his sister Soni (PW-4). Another
brother by name Shanu alias Shahnawaz (PW-2) of the convict lived in the
neighbourhood.
6. It is the case of the prosecution that the three deceased persons more
particularly Islamuddin (convict's son) was highly opposed to the second
marriage of his father, i.e., the appellant-convict. Islamuddin (deceased) was
even once beaten by the appellant-convict as he had off ered lot of opposition
to the second marriage of his father. Islamuddin was also threatened by
the appellant-convict that he would be thrown out of the house. Deceased
Naushad (appellant-convict's brother) was in Saudi Arabia. He had just
returned to Bijnore from Saudi Arabia on 04.08.2014.
7. Few days before the date of the incident, the appellant-convict had
beaten his son (deceased Islamuddin) and at that point of time, Naushad
and Irshad (deceased persons) had intervened to save Islamuddin. On
05.08.2014, at around 05.30 pm, PW-2 Shanu (convict's brother) went
to see deceased Naushad and had dinner with PW-4 (convict's sister),
Islamuddin and Irshad. The PW-2 also invited the appellant-convict
795
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
for dinner. The appellant-convict lived in the same house as PW-4 and
Naushad, but on a diff erent fl oor.
8. On 05.08.2014, at around 10.00 pm, after the dinner was over,
PW- 4 asked the PW-2 to stay overnight as it was too late. Naushad and
Islamuddin slept in one room. As Irshad wanted to sleep on the roof, the
appellant-convict advised him to sleep inside the room, as the weather was
bad. Thus, all the three deceased persons ended up sleeping in one room.
9. PW-2 claims that the door of the room in which, the three deceased
were sleeping, was open. However, according to the PW-4, it was locked
from inside. The PW-2 lived at a distance of 200 metres from the place of the
incident. It is pertinent to note that the High Court disbelieved the presence
of the PW-2 at the place of occurrence, i.e., the house.
10. On 06.08.2014, at around 12.30 am, the PW-2 is said to have woken
up to see fl ames 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 fi re and thereafter, fastening
the door latch from outside and running away.
11. It is the case of the prosecution that the PW-2 and PW-4 opened
the door and at that point of time, saw the appellant-convict running from
the roof towards the stairs. According to the case of the prosecution, Amzad
and one another person by name Shafi q (both not examined) also saw the
appellant-convict running away.
12. The PW-1 (Original fi rst informant- uncle of the appellant-convict)
was sleeping in his room in his own house at the time of the incident. The
uncle's house is at the distance of about 200 metres from the place of the
occurrence.
13. The relatives fi rst took Islamuddin, Irshad and Naushad to one
Pooja Hospital situated at Najibabad in a vehicle. The Hospital declined
to admit them. All the three injured were thereafter, taken to the hospitals
at Bijnore and Meerut and fi nally were admitted to the Dr. Ram Manohar
Lohiya Hospital, Delhi (RML Hospital).
14. On 06.08.2014, early in the morning at around 6.10 am all the
three injured were brought to the casualty ward of the RML Hospital by
796
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Shafi q Ahmad (not examined). At 9.00 am, PW-1 (fi rst informant) lodged
a First Information Report with the Najibabad Police Station. In the FIR,
the fi rst informant alleged that it was the appellant-convict, who set his own
son and two real brothers on fi re, while they were sleeping on account of
personal animosity.
15. The dying declaration of deceased Irshad was recorded on
07.08.2014 by the A.S.I. at the RML Hospital. Irshad passed away on
09.08.2014. In the same way, the dying declaration of Islamuddin was
recorded on 07.08.2014. Islamuddin passed away on 18.08.2014. It appears
that the dying declaration of Naushad could not be recorded. Naushad also
passed away on 18.08.2014. The two dying declarations were video- graphed
in the mobile of the A.S.I.
16. On the strength of the FIR, the investigation was undertaken
and on conclusion, the chargesheet came to be fi led in the Court of Chief
Judicial Magistrate, Bijnore, for the off ences enumerated above, who in
turn committed the case to the Court of Sessions.
17. On 06.01.2015, the Additional District and Sessions Judge framed
charge against the accused for the off ences punishable under Sections 436,
302 and 326-A respectively of the IPC. The accused did not admit the charge
and claimed to be tried.
18. In the course of the trial, the prosecution adduced the following
oral evidence in support of its case:
S. No.
Oral Evidences
Witnesses
1.
Mohd. Yunus, Uncle and Fatherin-Law
PW-1
2.
Shanu @ Shahnawaz, Younger
Brother
PW-2
3.
Mohd. Imran, Downstairs
Neighbour, (examined to prove
recovery memo)
PW-3
4.
Soni, Sister
PW-4
5.
ASI, Narender Singh Rawat,
Police Post, RML Hospital
PW-5
797
6.
Dr Saurav, RML Hospital
PW-6
7.
Dr Rahul Band, Lady Hardinge
Medical College, New Delhi
PW-7
8.
D r K u l d e e p P a n c h a l ,
Lady Hardinge Medical
C o l l e g e , N e w D e l h i
PW-8
9.
Vishnu Gopal Upadhyaya, SI
PW-9
10.
R.P. Yadav, Inspector (Retd)
PW-10
11.
Dr Arvind Kumar, Associate
Prof., Forensic Medicine,
Lady Hardinge Medical
C o l l e g e , N e w D e l h i
PW-11
12.
Dr Charanjeet Kaur, RML Hospital
PW-12
13.
R i y a z - u d - d i n K h a n ,
C o n s t a b l e C l e r k 11 8 4
PW-13
19. The prosecution also adduced the following documentary evidence:
S.No.
Particulars
Number and Name of
with witness
Exhibit Nos.
1.
Original complaint
dated 06.08.14
PW-1, M o h a m m a d
Yunus
Exhibit Ka-1
2.
Fore nsi c S ci en ce
Laboratory Report,
Agra dated 08.12.14
Exhibited by Court vide
order dated 19.03.15
Exhibit Ka-2
3.
St at em ent of the
deceased Irshad dated
07.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-2
4.
Request form of autopsy
of the deceased Irshad
dated 10.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-3
5.
Re qu e s t f o r m of
autopsy of the deceased
Naushad dated 18.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-4
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
798
SUPREME COURT REPORTS
[2023] 11 S.C.R.
6.
Copy of the statement
of deceased Islamuddin
dated 07.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-5
7.
St at em ent of the
deceased Islamuddin
dated 07.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-5A
8.
Re qu e s t f o r m of
autopsy of the deceased
Islamud din d ated
19.08.14
PW-5, A.S.I. Narender
Singh Rawat
Exhibit Ka-6
9.
Receipt of dead body
of Islamuddin 19.08.14
PW-5 A.S.I. Narender
Singh Rawat
Exhibit Ka-7
10.
S t a t e m e n t
f o r
identifi cation of dead
PW-5 A.S.I. Narender
Singh Rawat
Exhibit Ka-8
11.
Receipt of dead body of
Irshad dated 10.08.14
PW-5 A.S.I. Narender
Singh Rawat
Exhibit Ka-9
12.
Medico Legal Case
Sheet of the deceased
Irshad dated 06.08.14
PW-6 Dr. Sourav
Exhibit Ka-10
13.
Medico Legal C a s e
Sheet of the deceased
Naushad dated 06.08.14
PW-6 Dr. Sourav
Exhibit Ka-11
14.
Medico Legal Case
Sheet of the deceased
Islamud din d ated
6.08.14
PW-6 Dr. Sourav
Exhibit Ka-12
15.
Medico Legal Post
Mortem report of the
deceased Islamuddin
dated 19.08.14
PW-7 Dr. Rahul Band
Exhibit Ka-10
A
16.
Medico Legal Post
Mortem report of the
deceased Irshad dated
10.08.14
PW-7 Dr. Rahul Band
Exhibit Ka-11
A
799
17.
Medico Legal Post
Mortem Report of the
deceased Naushad
dated 18.08.14
PW-8 Dr. K u ld ee p
Panchal
Exhibit Ka-12
A
18.
Site Plan dated 06.08.14 PW-9 S.I. Vishnu Gopal
Upadhyay
Exhibit Ka-13
19.
Recovery Memo dated
06.08.14
PW-9 S.I. Vishnu Gopal
Upadhyay
Exhibit Ka-14
20.
Charge Sheet
da te d
28.09.14
PW-10 Inspector R.P.
Yadav (Retd.)
E x h i b i t
Ka14-A
21.
Death report of the
deceased Islamuddin
dated 18.08.14
PW-12 Dr. Charanjeet
Kaur
Exhibit Ka-15
22.
PW-9 S.I. Vishnu Gopal
Upadhyay
PW-9 S.I. Vishnu Gopal
Upadhyay
Exhibit Ka-16
23.
Chick FIR
d a te d
06.08.14
PW-13 Constable Clerk
Riyazudeen Khan
Exhibit Ka-17
24.
Carbon copy G.D.
PW-13 Riy az ude e n
Khan
Exhibit Ka-18
20. Upon completion of the oral as well as documentary evidence,
the statement of the accused was recorded under Section 313 of the CrPC
in which, the accused stated that he was innocent and had been falsely
implicated in the alleged crime.
21. The trial court upon appreciation of the oral as well as the
documentary evidence on record, arrived at the fi nding that the prosecution
had been successful in establishing its case against the appellant-convict
beyond reasonable doubt. Accordingly, the trial court held the appellant-
convict guilty of the off ence enumerated above and sentenced him to death.
22. The appellant-convict being dissatisfi ed with the judgment and
order passed by the trial court, challenged the same before the High Court.
The High Court dismissed the appeal of the appellant-convict and confi rmed
the death sentence imposed by the trial court.
23. In such circumstances referred to above, the appellant-convict is
here before this Court with the present appeals.
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
800
SUPREME COURT REPORTS
[2023] 11 S.C.R.
SUBMISSIONS ON BEHALF OF THE APPELLANT
24. Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing
for the appellant-convict vehemently submitted that:
a. The courts below committed a serious error in recording a fi nding
that the prosecution has been able to establish its case against the convict
beyond reasonable doubt.
b. The entire case hinges on circumstantial evidence and none of the
circumstances, relied upon by the courts below to hold the appellant- convict
guilty of the charges, could be termed as incriminating circumstances.
c. The two dying declarations; one of Irshad and the other of Islamuddin
could not have been relied upon, as they do not inspire any confi dence and
are in confl ict with the ocular version of the two eye- witnesses.
d. 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 Offi cer
did not even deem fi t to call the Executive Magistrate to record the dying
declarations. It was also argued that there is nothing to indicate as regards
the condition of the injured persons, while they are said to have made the
dying declarations before the Investigating Offi cer. To put it in other words,
whether Irshad and Islamuddin were in a fi t condition to speak so as to give
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 suff ered 95 % burns, whereas,
Islamuddin had suff ered 80-90 % burns.
e. 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.
SUBMISSIONS ON BEHALF OF THE STATE
25. On the other hand, these appeals were vehemently opposed by Mr.
Ardhendumauli Kumar Prashad, the learned AAG, appearing for the State.
He submitted thus:
801
a. 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 off ences with which he was charged.
b. 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.
c. There is no good reason to discard the oral evidence of the PW-2
Shanu alias Shahnawaz and PW-4 Soni.
d. The courts below rightly believed the two dying declarations to be
true and trustworthy.
e. To conclude, the learned counsel pointed out that the appellant-
convict is a history-sheeter and has tendency to repeatedly indulge in serious
crimes.
f. 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.
ORAL EVIDENCE ON RECORD
26. Mohammad Yunus (PW-1) is the fi rst informant. He has deposed
that the appellant-convict is his real nephew and also happens to be his
son- in-law. In the intervening night of 05/06.08.2014 at about 12.30 am
in the night, the appellant set his real brothers, Naushad and Irshad on fi re
including his son Islamuddin by pouring highly infl ammable substance
on them, while they were sleeping in the room. He has deposed that after
setting the deceased persons on fi re, the appellant shut the door from outside.
On hearing the cries and shouts of Islamuddin, Naushad and Irshad, his
brother Amzad and others including Shafi q and Shanu came running from
the neighbourhood and broke upon the door. The injured were thereafter,
taken to the Hospital at Najibabad.
27. Shanu alias Shahnawaz was examined as PW-2. Shanu is the
younger brother of the appellant-convict. He has deposed that on 05.08.2014,
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
802
SUPREME COURT REPORTS
[2023] 11 S.C.R.
late in the evening, he had gone to his old house to meet his brother Naushad.
Naushad had returned from Saudi Arabia after a long time. His younger sister
Soni (PW-4) had cooked food for them and they all had dinner together.
His elder brother (convict) had also come down from his place of living to
the ground fl oor. The convict had hatred towards Naushad and Irshad. The
convict had solemnised his second marriage at Jaspura town, after his release
from jail. After arrival of his second wife, the convict wanted to separate his
son Islamuddin. The convict had also assaulted Islamuddin two days before
the incident, which was settled by Irshad and Naushad. On 05.08.2014, the
second wife of the convict had gone to her parents' house at Jaspura. Being
the elder brother, he asked the convict to take meal along with them. It was
around 11.00 in the night. His sister Soni asked the PW-2 to stay back as
it was late in the night. Naushad slept in one room. Islamuddin slept in the
room on the fl oor on a mattress. When Irshad went to sleep outside the room
on the roof, the convict asked Irshad to sleep inside the room as the weather
outside was bad. Irshad also slept by the side of Islamuddin in the room.
Islamuddin, Irshad and Naushad slept together in one room. The door of
that room was open. PW- 2 and his sister Soni slept in the adjoining room.
At about 12.30 in the night, they saw smoke and fl ames coming out from
the room, in which all the three deceased were sleeping. Then, he saw that
the convict had poured some highly infl ammable substance in the room in
which Islamuddin, Irshad and Naushad were sleeping and set it on fi re. The
convict ran away after closing the door of the room from outside. All the
three were severely burnt. All the three injured died at the RML Hospital.
When the convict had solemnised second marriage, the same was opposed
by Islamuddin. The convict at that point of time had beaten Islamuddin and
had threatened that he would expel him from the house.
28. Soni (PW-4) was examined as an eye-witness to the incident.
She deposed that the convict was her real brother. She was present at her
house on 05.08.2014. She herself had prepared the meal in the evening on
that day. Her brothers, the convict, Naushad and Irshad and her nephew
Islamuddin were present on the second fl oor of her house. All of them had
meal together. After taking meal, Naushad and Islamuddin went to sleep in
the adjoining room and Irshad was sleeping on a cot outside the room. The
convict asked Irshad to sleep inside the room, as the weather outside was
bad. Irshad also slept by the side of Islamuddin in the room. They shut the
803
door of the room from inside. The convict shut the door of the room from
outside. Then cries "bachao-bachao" came from the room and fl ames of fi re
were seen inside the room. When she opened the room, she saw that the
convict was running towards the stairs. Amzad and Shafi q saw the convict
while he was running away. They all saw the burning room. After opening
the door, they evacuated Naushad, Irshad and Islamuddin. All three were
severely burnt. The skin of their legs got stuck on the fl oor. They took all
the three injured to Pooja hospital in a vehicle. On refusal to admit, they
were taken to Bijnore, thereafter to Meerut and from Meerut to the RML
Hospital. During travel, her brothers and nephew were talking. Her brothers
and nephew said that the convict set fi re in the room after pouring petrol
on account of which, all of them got burnt. All the three died at the RML
Hospital, Delhi. The convict had solemnised second marriage after coming
out from jail. Her brothers Irshad, Naushad and nephew Islamuddin had
objected to it. The convict wanted to oust Islamuddin from their house. Her
brothers Irshad, Naushad took the side of Islamuddin. For this reason, the
convict burnt all of them by pouring petrol, setting them on fi re and shutting
the room from outside in order to kill them.
29. In her cross-examination, she stated that to the best of her
knowledge, Islamuddin and Naushad had bolted the room from inside. The
room in which, she was sleeping, was not bolted from outside. No other
room was bolted from outside, except the room in which Islamuddin and
Naushad were sleeping.
30. A.S.I. Narender Singh Rawat was examined as PW-5. He was
examined to prove the dying declarations of Irshad (Ex. Ka.2) and Islamuddin
(Ex. Ka.5A) recorded by him. He has deposed that on 19.08.2014, he was
posted at the Police Out-post of RML Hospital, New Delhi. Irshad, Naushad
and Islamuddin were admitted on 06.08.2014, in the RML Hospital. He
recorded statement of Irshad on 07.08.2014, who told that they lived with
the entire family. He ran a mobile phone shop. On 05/06.08.2014, while he
and his elder brother Naushad and nephew Islamuddin were sleeping in his
house, at about 12.30 in the night, his brother Irfan/convict closed the door
from outside and set the room on fi re from inside with some infl ammable
substance. Due to which, they suff ered severe burn injuries. The neighbours
evacuated them from the room after a long time, and admitted them in
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
804
SUPREME COURT REPORTS
[2023] 11 S.C.R.
the Pooja Hospital, Najibabad. They were referred to the RML Hospital
from there for treatment. This statement was given by the deceased Irshad.
Paper No. 13, fi led in the case, was in his handwriting and signature. He
had obtained thumb marks of Irshad, which was identifi ed by him. It was
marked as Ex. Ka-2. Irshad died on 09.08.2014 at 07.30 pm. The dead body
was sent to the Lady Hardinge Hospital for postmortem on 10.08.2014.
After the postmortem, the body was handed over to his relatives Sadaqat
and Shahnawaz after proper identifi cation. The deceased Naushad died on
18.08.2014 at 08.40 am. His postmortem was conducted on the same day
and dead body was handed over to his relative. He had also recorded the
statement of the deceased Islamuddin. He had stated that the convict had
closed the door from outside and set the room on fi re from inside with some
infl ammable substance, due to which, he, his uncles Irshad and Naushad got
burnt. The neighbours saved them on hearing their cries. PW-5 recorded the
statement of the deceased on 07.08.2014, which was fi led in case fi le and
under his handwriting and signature. The same was marked as Ex. Ka-5.
Islamuddin died on 18.08.2014 at 09.15 pm. His postmortem was conducted
on 19.08.2014. Dead bodies of all the three were handed over to Shahnawaz
and Sadaqat, after postmortem.
31. In his cross-examination he stated that he had not investigated
this case. Neither any offi cer of Delhi Police nor U.P. Police deputed him
to investigate this case. He had recorded the statements of the deceased
Irshad and Islamuddin on 07.08.2014. He had recorded the statements of
both in the emergency ward of the hospital. No one else was present at the
time of recording the statement except him and the deceased persons. Both
of them were in a fi t condition when he recorded their statements. Exhibit
Ka-2 and Exhibit Ka-5, the statement of Islamuddin does not bear the thumb
impression or signature of anybody else except his own and the deceased.
Exhibit Ka-2 and Ex. Ka-5 do not bear any certifi cate from the doctor with
regard to fi tness of both the deceased. Ex. Ka-2 and Ex. Ka-5 do not bear his
endorsement with regard to fi tness of the deceased at the time of recording
the statements. There was a time gap of 15 - 20 minutes in recording of the
two dying declarations. Both were written on the same day and at the same
place. PW-5 had written only two statements. Diff erent pens were used in
recording the statements, but to obtain thumb impressions of the deceased,
one ink pad was used.
805
32. A.S.I. Narender Singh Rawat PW-5 was recalled for the purpose of
re-examination on 28.04.2017 in compliance of the order dated 15.04.2017.
That on 07.08.2014, he was posted at the RML Hospital. On that day he
had recorded the statement of Islamuddin aged about 16 years, son of the
convict, resident of mohalla Muglooshah, Najibabad, District Bijnore.
Islamuddin was in a fi t condition to give a statement. He had recorded his
statement word by word as stated by him. His thumb impression was taken
on the statement. The thumb impression was identifi ed by him. He had also
put his signature on the statement. His statement has been recorded earlier
in the court.
33. The appellant-convict examined himself as a defence witness. He
deposed that his parents had fi ve children. He was the eldest, his brothers
were, namely, Shanu, Irshad and Naushad and one sister Soni. Islamuddin
was born from his fi rst wife Ishrat. His fi rst wife had left his house as his
brothers used to quarrel with her in respect of property. At the time, when his
fi rst wife left the house, Islamuddin was aged about 10 years. His brothers
and sister were taking undue advantage of the tender age of Islamuddin
and his mother deserting them. Taking advantage, they sent him to jail, in
a false case. He came out from jail three years before the incident. During
these three years, he did not quarrel with any neighbours or any person
from the mohalla. He married another woman, one and half years prior to
this incident. His sister also used to quarrel with his second wife frequently
for the property due to which she left her house. He has deposed that his
brothers, deceased Irshad and Naushad and his son Islamuddin used to
consider him to be a weak person and with a view to grab the property, they
all colluded to get my brothers and son killed. It was not known through
whom, they got them killed. They falsely implicated him in the case. He
ran away from the place of occurrence due to fear as he was released from
jail in the recent past.
DYING DECLARATIONS:
34. We shall now look into the two dying declarations.
35. The deceased Irshad in his dying declaration recorded on
07.08.2014 stated thus:
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
806
SUPREME COURT REPORTS
[2023] 11 S.C.R.
"Statement of Irshad, s/o-Mo. Ayub, r/o Mohalla- Muglushah, P.S.
Nazivabad, Distrinct-Bijnor, U.P., age- 20 years.
Stated that I am residing at the place mentioned above. I am running
a mobile phone shop at Nazivabad. I was sleeping with my brother
Naushad and nephew Islamuddin in the house. We were sleeping
in the same room. Then at around 12.30 at night my brother Irfan
locked the door from outside and set fi re in the room with some
infl ammable substance. As the room was on fi re, we raised alarm.
We all seriously got burnt and after a long time neighbours took
us out of the room and they got us admitted at the Pooja Hospital,
Nazivabad. After fi rst aid they got admitted us at Dr. R.M.L. Hospital
New Delhi and my treatment is continuing here. Heard the statement,
it is correct."
36. The deceased Islamuddin, in his dying declaration recorded on
07.08.2014, stated thus:
"Statement of Islamuddin, s/o-Irfan, r/o- Mohalla- Muglushah, P.S.
Nazivabad, Distrinct-Bijnor, U.P., age- 16 years.
Stated that I am residing at the place mentioned above. I am running a
mobile phone shop at Nazivabad. I was sleeping with my uncle Irshad
and Naushad in the house. We were sleeping in the same room. Then
at around 12.30 at night my father Irfan locked the door from outside
and set fi re in the room with some infl ammable substance. After the
room was on fi re, we raised alarm. We all seriously got burnt and
after a long time neighbours took us out of the room and they got us
admitted at the Pooja Hospital, Nazivabad. After fi rst aid they got
admitted us at Dr. R.M.L. Hospital New Delhi and my treatment is
continuing here. Heard the statement, it is correct. "
ANALYSIS
37. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for
our consideration is whether the prosecution could be said to have proved
its case against the appellant-convict beyond reasonable doubt.
807
38. The jurisdiction of this Court in criminal appeals fi led against
concurrent fi ndings is circumscribed by principles summarised by this Court
in Mst. Dalbir Kaur and Others v. State of Punjab reported in (1976) 4
SCC 158, para 8, as follows:
"8. Thus the principles governing interference by this Court in a
criminal appeal by special leave may be summarised as follows:
(1) that this Court would not interfere with the concurrent fi nding
of fact based on pure appreciation of evidence even if it were to
take a diff erent view on the evidence;
(2) that the Court will not normally enter into a reappraisement
or review of the evidence, unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on
error of record, misreading of evidence or is inconsistent with
the evidence, for instance, where the ocular evidence is totally
inconsistent with the medical evidence and so on;
(3) that the Court would not enter into credibility of the evidence
with a view to substitute its own opinion for that of the High
Court;
(4) that the Court would interfere where the High Court has
arrived at a fi nding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in
violation of a mandatory provision of law or procedure resulting
in serious prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of the
High Court are manifestly perverse and based on no evidence."
(Emphasis supplied)
DYING DECLARATIONS VIS-A-VIS ORAL EVIDENCE OF
THE EYE-WITNESSES ON RECORD
39. The picture that emerges on cumulative assessment of the materials
on record is that the appellant-convict had strained relationship with his
son Islamuddin (deceased) born in the wedlock of his fi rst marriage with
IRFAN @ NAKA v. THE STATE OF UTTAR PRADESH
[J. B. PARDIWALA, J.]
808
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Ishrat. His relations with his two brothers (deceased persons) were also
strained. The defence put forward by the appellant-convict is that with
a view to grab the property, PW-2 Shanu alias Shahnawaz, PW-4 Soni
and others conspired to eliminate the deceased persons and thereafter, to
throw the entire blame on the appellant-convict of having committed the
crime. The incident occurred in the night hours. The three deceased were
sleeping in one room. The PW-2 and PW-4 are said to have been sleeping
in an adjoining room in the house. The appellant-convict is said to have
locked the door of the room from outside in which, the deceased persons
were sleeping. He poured infl ammable substance in the room and set the
room on fi re. The three deceased persons suff ered severe burn injuries and
ultimately succumbed to death. Islamuddin and Irshad are said to have
given their dying declarations before the A.S.I. as referred to above. Why
the dying declaration of Naushad could not be recorded is not clear. A close
perusal of the two dying declarations indicates that Irshad and Islamuddin
raised alarm on getting severely burnt and they were taken out of the room
by the neighbour. Who is this neighbour, they are referring to in their dying
declarations is also not clear? At the same time, it is pertinent to note that
the Irshad and Islamuddin in their respective dying declarations do not say
a word about the presence of the PW-2 Shanu alias Shahnawaz and PW-4
Soni. Both these witnesses do not fi gure in the two dying declarations. It
is also pertinent to note that in both the dying declarations it has been very
clearly stated that after a long time a neighbour came to their rescue and
took them out of the burning room.
40. Keeping the aforesaid in mind, if we look into the oral evidence
of the PW-2 Shanu alias Shahnawaz then according to him, he along with
his sister Soni (PW-4) noticed fi re in the room in which the deceased
persons were sleeping. According to the PW-4, she also witnessed the
appellant- convict pouring kerosene and setting the room on fi re in which,
the deceased persons were sleeping. PW-2 also claims to have witnessed,
the appellant-convict fastening the door latch from outside and thereafter,
running away from that place. In the same manner, if we closely look into
the oral evidence of the PW-4 Soni, then according to her on seeing the
fl ames of fi re in the room, in which the deceased persons were sleeping, she
immediately opened the door and saw that the appellant-convict was running
from the roof towards the stairs.