A conviction based solely on dying declarations requires corroborating evidence; if reasonable doubt exists, acquittal is necessary.

JUDGEMENT

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 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 (for short, ‘the IPC ’) respectively.

Digitally signed by POOJA SHARMA Date: 2023.08.23 17:36:33 IST Reason:

Signature Not Verified

2. The convict was awarded death penalty with fine of Rs. 20,000/- by the trial court for the offence punishable under Section 302 IPC . For the offence punishable under Section 436 IPC , the convict was awarded life imprisonment with fine of Rs. 10,000/- and for the offence punishable under Section 326-A IPC , the appellant came to be sentenced for life imprisonment with fine of Rs. 10,000/- and in default of payment of fines, 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 confirmation 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 filed by the appellant-convict thereby confirming the death reference under Section 366 of the CrPC.

CASE OF THE PROSECUTION

4. FAMILY CHART

5. The appellant-convict was married twice. The first 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 offered 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 for dinner. The appellant-convict lived in the same house as PW-4 and Naushad, but on a different floor.

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