Holding

The conviction under Section 302 read with Section 34 IPC was set aside; the appellants were acquitted.

Summary

The accused were convicted under Section 302 read with Section 34 of the IPC for allegedly pouring kerosene on the deceased, Nazar Khan, based on two dying declarations. The deceased's father, mother and uncle initially gave statements implicating the accused but later retracted, asserting that the deceased was of unsound mind and had a suicidal tendency. The trial court and the High Court upheld the conviction despite the recantation of the eye‑witnesses. On appeal, the Supreme Court held that the background of the relatives' statements indicating possible suicide could not be ignored and that relying solely on the dying declarations was unsafe. Consequently, the conviction was set aside and the appellants were acquitted.

Issues considered

Can a conviction under Section 302 r.w. Section 34 IPC be sustained solely on dying declarations when eye‑witnesses have recanted and claim the deceased was of unsound mind with suicidal tendencies?

Legislation cited

Indian Penal Code, 1860s. 302, s. 34

Subjects

dying declarationrecanted testimonyunsound mindsuicideSection 302 IPCSection 34 IPCevidenceacquittalcriminal law

Judgment

[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.]
"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
conviction under Section 302 r.w. Section 34 IPC based
on the two dying declarations, which was affirmed by
~
High Court. Hence the appeal.
-.:
Disposing of the appeal, the Court
F
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
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
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.
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
F 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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-<f
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
·; 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.
•
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. E
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, F
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 c~m be the basis of
G
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 H

•
594 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
. B 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.

D.G. Appeal disposed of.

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