BAWA RAM & ANR. versus STATE OF U.T. CHANDIGARH

Citation: [2009] 7 S.C.R. 591 · Decided: 05-05-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

[2009) 7 S.C.R. 591 
., 
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BAWA RAM & ANR. 
-'( 
A 
v. 
STATE OF U.T. CHANDIGARH 
Criminal Appeal No. 988 of 2007 
MAY 5, 2009 
B 
[DR. ARIJIT PASAYAT, ASOK KUMAR GANGULY, JJ.] 
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"1 
Penal Code, 1860: S. 302 r. w. S. 34 - Conviction by courts 
below based on dying declaration - Parents and relatives of 
deceased who were stated to have witnessed the incident, 
resi/ed from statement made during investigation and c 
deposed to the effect that deceased was of unsound mfnd and 
had suicidal tendency - Held : In peculiar facts of the case, 
conviction is set aside. 
Prosecution case was that there was a previou$ D 
enmity between the deceased and accused persons due 
to whi~h accused persons poured kerosene on deceased. 
The incident was witnessed by the father, mother and 
uncle of the deceased. During the _investigation, all of them 
resiled from their statements. Prosecution however relied 
upon the two dying declarations. Trial Court ordered E 
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conviction under Section 302 r.w. Section 34 IPC based 
on the two dying declarations, which was affirmed by 
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High Court. Hence the appeal. 
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Disposing of the appeal, the Court 
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HELD: 1. It is true that the dying declaration can be 
the basis of conviction even when the eye witnesses do 
not support the prosecution case. In the peculiar facts of 
the case where the father, mother and other relatives and 
even a person who claimed to have sustained injuries G 
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resiled from the statements made during investigation 
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and deposed to the effect that the deceased was of 
unsound mind and had a suicidal tendency the effect 
thereof cannot be lost sight of. The statement of a person 
591 
H 
592 
SUPREME COURT REPORTS 
[2009] 7 S.C.R. 
t 
A with unsound mind has to be considered in that 
background. Thus it would not be safe to sustain the 
conviction on the basis of the dying declarations. The 
appellants are therefore, acquitted of the charges. [Para 
7, 8] [593-G-H; 594-A-B] 
B 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 988 of 2007 
From the Judgement and Order dated 08.05.2006 of the 
Hon'ble High Court of Punjab & Haryana at Chandigarh in 
c Criminal Appeal No. 864-DB of 2004 
WITH 
Criminal Appeal No. 924 of 2009 
A.P.S. Deol, (NP), Harikesh Singh, Kamal Gupta, with him 
D for the Appellant. 
... 
Shomila' Bakshi, Rani Mishra (for Ms. Kamini Jaiswal), for 
the Respondent. 
The Judgement of the Court was delivered by 
E 
DR. ARIJIT PASAYAT, J. 
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1. Leave granted in S.L.P.(Crl.) No 4210 of 2006. 
2. Since both these appeals arise out of a common 
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judgment and order of the High Court of Punjab & Haryana at 
Chandigarh, they are being disposed of by a common judgment. 
3. Challenge in these appeals is to the judgment of the 
Division Bench of the Punjab & Haryana High Court upholding 
the conviction of the appellants for offence punishable under 
G section 302 read with Section 34 of the Indian Penal Code (in 
short IPC). 
4. The prosecution version as unfolded during the trial was 
that on 16.7.2000 on account of previous enmity the accused 
persons poured kerosene oil on Nazar Khan (hereinafter 
H referred to as the deceased). He was set on fire by them. The 
BAWA RAM & ANR. V STATE OF U.T CHANDIGARH 
593 
[DR. ARIJIT PASAYAT, J.] 
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incident was witnessed by the father (PW-3), mother (PW-4), 
A 
uncle (PW-5) and other persons, who are stated to be closely 
related to the deceased (P.Ws.2, 3 and 7). After completion of 
the investigation, charge sheet was filed and the accused 
persons faced trial. They pleaded innocence and denied the 
accusations. In order to establish the accusations the B 
prosecution relied upon the testimony of the so called eye 
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witnesses (P.Ws. 2 to 7). Curiously, all of them resiled from the 
statements made during the investigation. The prosecution, 
however, relied upon two dying declarations recorded on 
16.7.2000. The first was recorded by theA.S.I. and the second c 
by the District Magistrate. The first one was recorded at 10.10 
a.m. and the second at 11.40 a.m. on the same day. The Trial 
Court noticed that though the relatives and the injured persons 
h.ad resiled from the statements made during investigation but . 
the dying declarations were sufficient to record the conviction. 
D 
Accordingly, the accused persons were held guilty. In appeal 
th~ High Court concurred with the views of the Trial Court. 
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5. In support of the appeal, it is submitted that the so called 
dying declarations have to be te

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