STATE OF ASSAM versus MUHIM BARKATAKI & ANR

Citation: [1986] 3 S.C.R. 1038 · Decided: 20-10-1986 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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STATE OF ASSAM 
v. 
MUHIM BARKATAKI & ANR. 
OCTOBER 20, 1986 
[A.P. SEN AND B.C. RAY, JJ.] 
Indian Penal Code, 1860: ss. 34, 302 & 436-0ffences .under-
Dying declaration of deceased-Conviction of accused-Validity of. 
Evidence Act, 1872: s. 32-Dying declaration made before 
witnesses while suffering severe pain from grievous burn injuries-
Whether truthful and reliable. 
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Criminal Procedure Code, 1973: s. 311-Police Officer-
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Whether could be examined as court witness-Witness found indepen-
dent, disinterested, trustworthy and reliable. 
The prosecution alleged that the accused-respondents set ftre to 
deceased's body and his shop after sprinkling kerosene oil, that on see-
ing the ftre P. Ws. 4, S and 6 rushed to the place and put off the ftre 
from the body of the deceased who had come out of the shop ablaze, and 
that C. W. I, the Assistant Sub-Inspector of Police, who was on law and 
order duty also came to the place of occurrence simultaneously and 
witnessed the incident. The deceased made a dying declaration before 
these witnesses stating that tbe said two accused had set ftre to his body 
after pouring kerosene. One of the accused was caught hold of by the 
public red handed at the shop whereas the other accused fled away. The 
Officer-in-charge of Police Station was informed of the incident on the 
telephone. The deceased was removed to the hospital where he later 
died. Cases of murder and arson were thereafter registered against the 
accused. P.Ws. 4 and 6 made statements under s. 164 Cr. P.C. before 
the Magistrate aud deposed to the factum of dying declaration made by 
the deceased implicating the accused. 
The Sessions Court after considering the evidences of P .W. 4 and 
C. W. 1 as well as the statements rec11rded under s. 164 Cr. P.C. 
accepted the dying declaration made by the deceased and convicted the 
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accused under s. 302 read with s. 34 I.P.C. and sentenced them to 
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STA TE OF ASSAM v. MU HIM BARKAT AKI 
1039 -
rigorous imprisonment for life. They were further convicted and 
sentenced nnder s. 436 read withs. 34 I.P.C. 
The High Court on appeal, however, found that the prosecution 
had failed to prove beyond doubt the offences for which the appellants 
were charged, that the entire evidence in the case was circumstantial as 
there was no eye witness to the occurrence, that the evidence of P.W. 4 
as to the dying declaration was wholly unreliable, and therefore, set 
aside the conviction and sentence passed against the accused. 
The appeal by the State to this Court was opposed by the accused-
respondents contending that there was no evidence to show that the 
deceased made the dying declaration and even if such a declaration has 
been made the same having not been corroborated cannot be taken into 
consideration in convicting them. 
Allowing the Appeal, the Court, 
HELD: The accused were rightly convicted by the Sessions 
Court. The prosecution has proved beyond reasonable doubt the 
charges framed agaiust them. The order of acquittal passed by the High 
Court is, therefore, liable to be set aside. [ 1048G I 
The dying declaration made by the deceased while he was suffer-
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ing severe pain from grievous in.iuries clearly implicating the two 
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accused persons as his assailants is truthful and reliable. [ 1048E] 
The eye witnesses, P. Ws. 4, 5 and 6 and C. W. I had undoubtedly 
arrived at the place of occurrence immediately on seeing the fire. They 
had seen that the shop was ablaze and there was fire on the person of the 
deceas_ed. Then there is the specific evidence of P. W. 4 and C. W. I that 
the deceased was crying a lot in,pain due to burn injuries and that he 
stated clearly that the accused persons poured kerosene on him and set 
fire to his body. There are also the statements of P. W. 4 and 6 made 
under s. 164 Cr. P.C. to the effect that the deceased made 'a dying 
declaration. P.W. 2, who held post mortem on the body of the deceased 
has stated in his evidence that a person sustaining burn injuries of such 
nature may have been conscious for some time before his death. It can-
not, therefore, be ruled out that the deceased was conscious in spite of 
the burn injuries on his person and he could speak and make dying 
declaration as testified to by P. W. 4 and C. W. I. [1046A-D; 1045E) 
There is no infirmity in the action of th~ Sessions Court treating 
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SUPREME COURT REPORTS 
[1986] 3 S.C.R. 
C. W. 1 as a court 

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