2009(7) SCR 591 BAWA RAM & ANR.

V. STATE OF U.T. CHANDIGARH

Criminal Appeal No. 988 of 2007 MAY 5, 2009

[DR. ARIJIT PASAYAT, ASOK KUMAR GANGULY, JJ.]

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Leave granted in S.L.P.(Crl.) No 4210 of 2006.

2. Since both these appeals arise out of a common 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 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 referred to as the deceased). He was set on fire by them. The  

incident was witnessed by the father (PW-3), mother (PW-4), 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 prosecution relied upon the testimony of the so called  

eye 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 the A.S.I. and the  

second 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  had  resiled  from  the  statements  made  during  

investigation  but  the  dying  declarations  were  sufficient  to  record  the  conviction.  

Accordingly,  the  accused  persons  were  held  guilty.  In  appeal  the  High  Court  

concurred with the views of the Trial Court.

5. In support of the appeal, it is submitted that the so called dying declarations  

have to be tested on the background of what the father, mother and the brother of  

the deceased deposed. They categorically stated that the deceased was mentally  

unsound and was having suicidal tendency and it was natural that he himself tried to  

commit suicide by pouring kerosene oil on himself.

6. Learned counsel for the respondent, on the other hand, submitted that the  

dying declarations were reliable and on the basis of dying declarations the conviction  

as recorded cannot be sustained.

7. It is true that the dying declaration can be the basis of conviction even when  

the eye witnesses do not support the prosecution case.

8. In the peculiar facts of the case where the father, mother and other relatives  

and  even  a  person  who  claimed  to  have  sustained  injuries  resiled  from  the  

statements made during investigation 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 with unsound mind has to be considered in that  

background. In the peculiar facts of the case we are of the view that it would be safe  

to sustain the conviction on the basis of the dying declarations. The appellants are  

therefore, acquitted of the charges. The appellants shall be released from custody  

forthwith unless required to be detained in connection with any other case.

9. The appeals are accordingly, disposed of.