# BAKHSHJSH SINGH v. THE STATE OF PUNJAB

- **Citation:** [1958] 1 S.C.R. 409
- **Court:** Supreme Court of India
- **Decided:** 1955-02-15
- **Case number:** Criminal Appeal No. 205 of 1956
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bakhshjsh-singh-v-the-state-of-punjab-1470
- **Pages:** 10

## Headnote

S.C.R.
SUPREME COURT REPORTS
BAKHSHJSH SINGH
v.
THE STATE OF PUNJAB
(B. P. SINl{A, P. GOVINDA MENON and
J. L: KAPUR JJ).
409
Criminal lair-Dying declaration-Scope of-Recording statement in Urdu. while deceased spoke in Punjahi-ReliabilityDiscretion of .the prosecutor in calling witnesses-Tndian
Ei•idence
Act, 1872 (/of 1872). s. 22 (I).
The appellant was convicted for murder on the basis inter
alia of the dying declaration of the deceased. The Sessions Court
rejected it on the ground that though the deceased gave the
narrative of events in Punjabi the statement was taken down in
Urdu.
Held, that in view of the fact that in the Punjab the language
used in the subordinate courts and by the Police for recording
statements has always been Urdu, the recording of dying
declarations in Urdu cannot be a ground for saying that the
statement does not correctly reproduce what was stated by the
declarant. Accordingly, the dying declaration should not have
been rejected.
The dying declaration in the instant case was a long document containing a narrative of a large number of incidents which
happened before the actual assault, which was more in the nature
of the First Information Report :-
Held, that the object of a dying declaration being to get from
the person making the statement the cause of his death or the
circumstances of the transaction which resulted in
his death,
persons who record such declaration should not include in that
statement details which are not relevant under s. 32(1) of the
Indian Evidence Act, 1872, unless .they are necessary to make
the statement coherent or complete.
It is desirable that rules should be framed for the
guidance
of persons recording dying declarations, and included in the Rules
and Orders made by the High Court.
Where a person who was stated in the dying declaration to
have witnessed the occurrence was not examined by the
prosecution at the trial on the ground that he had been won over
and it was contended that this was a serious omission and an
adverse inference should be drawn :-
Held, that there was no obligation on the part of
the
prosecution to examine this witness and that the court would not
.interfe1'e with the discretion of the prosecutor.
1957
September 17;
410
SUPREME COURT REPORTS
[1958]
1957
Abdul Mohammad v. Attorney General of Palestine, A.I.R. 1945
Bokshish Singh
P. C. 42, Stephen Senaratne v. The King, A. I. R. 1936 P. C. 298,
v.
and Habeeb Mohammed v. The State of lf.l'derabad, 1954 S.C.R.
The State of Punjab 475, referred to.
KapurJ.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 205 of 1956.
Appeal by special leave from the judgment and
order dated the 30th ~ovember, 1955, of the Punjab
High Court in Criminal Appeal No. 282 of 1955,
arising out of the judgment and order dated the 15th
February, 1955, of the Court of the Additional Sessions
Judge at Amritsar in Sessions Case No. 64 of Trial
No. 6 of 1955.
R. L. Anand, and S. N. Anand, for the appellant.
Kartar Singh Chawla, Assistant Advocate-General, for
the State of Punjab and T. M. Sen, for the respondent.
1957. September 17. The following Judgment of the
Court was delivered by
KAPUR J.-This is an appeal against the judgment
and order of the Punjab High Court reversing an order
of acquittal by
the
Additional Sessions
Judge,
Amritsar.
The appellant Bakshish Singh and his
brother Gurbakshi Singh were tried for an offence
under ss. 302/34 of the Indian Penal Code but were
acquitted. Against this judgment the State took an
appeal to the High Coart. As Gurbaksh Singh was
s~.id to be absconding the appeal against the appellant
alone was heard and decided by the High Court.
On August 1, 1954, sometime between 7 and 8 p.m.
Bachhinder Singh son of Bhagwan Singh of village
Kairon was shot in the lane in front of their house and
as a result of bullet injuries he died the next day in
the hospital at Amritsar.
He was
at the time of
shooting accompanied by his younger brother Narvel
Singh, a boy of 13, and after getting injured Bachhind

## Text

S.C.R.
SUPREME COURT REPORTS
BAKHSHJSH SINGH
v.
THE STATE OF PUNJAB
(B. P. SINl{A, P. GOVINDA MENON and
J. L: KAPUR JJ).
409
Criminal lair-Dying declaration-Scope of-Recording statement in Urdu. while deceased spoke in Punjahi-ReliabilityDiscretion of .the prosecutor in calling witnesses-Tndian
Ei•idence
Act, 1872 (/of 1872). s. 22 (I).
The appellant was convicted for murder on the basis inter
alia of the dying declaration of the deceased. The Sessions Court
rejected it on the ground that though the deceased gave the
narrative of events in Punjabi the statement was taken down in
Urdu.
Held, that in view of the fact that in the Punjab the language
used in the subordinate courts and by the Police for recording
statements has always been Urdu, the recording of dying
declarations in Urdu cannot be a ground for saying that the
statement does not correctly reproduce what was stated by the
declarant. Accordingly, the dying declaration should not have
been rejected.
The dying declaration in the instant case was a long document containing a narrative of a large number of incidents which
happened before the actual assault, which was more in the nature
of the First Information Report :-
Held, that the object of a dying declaration being to get from
the person making the statement the cause of his death or the
circumstances of the transaction which resulted in
his death,
persons who record such declaration should not include in that
statement details which are not relevant under s. 32(1) of the
Indian Evidence Act, 1872, unless .they are necessary to make
the statement coherent or complete.
It is desirable that rules should be framed for the
guidance
of persons recording dying declarations, and included in the Rules
and Orders made by the High Court.
Where a person who was stated in the dying declaration to
have witnessed the occurrence was not examined by the
prosecution at the trial on the ground that he had been won over
and it was contended that this was a serious omission and an
adverse inference should be drawn :-
Held, that there was no obligation on the part of
the
prosecution to examine this witness and that the court would not
.interfe1'e with the discretion of the prosecutor.
1957
September 17;
410
SUPREME COURT REPORTS
[1958]
1957
Abdul Mohammad v. Attorney General of Palestine, A.I.R. 1945
Bokshish Singh
P. C. 42, Stephen Senaratne v. The King, A. I. R. 1936 P. C. 298,
v.
and Habeeb Mohammed v. The State of lf.l'derabad, 1954 S.C.R.
The State of Punjab 475, referred to.
KapurJ.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 205 of 1956.
Appeal by special leave from the judgment and
order dated the 30th ~ovember, 1955, of the Punjab
High Court in Criminal Appeal No. 282 of 1955,
arising out of the judgment and order dated the 15th
February, 1955, of the Court of the Additional Sessions
Judge at Amritsar in Sessions Case No. 64 of Trial
No. 6 of 1955.
R. L. Anand, and S. N. Anand, for the appellant.
Kartar Singh Chawla, Assistant Advocate-General, for
the State of Punjab and T. M. Sen, for the respondent.
1957. September 17. The following Judgment of the
Court was delivered by
KAPUR J.-This is an appeal against the judgment
and order of the Punjab High Court reversing an order
of acquittal by
the
Additional Sessions
Judge,
Amritsar.
The appellant Bakshish Singh and his
brother Gurbakshi Singh were tried for an offence
under ss. 302/34 of the Indian Penal Code but were
acquitted. Against this judgment the State took an
appeal to the High Coart. As Gurbaksh Singh was
s~.id to be absconding the appeal against the appellant
alone was heard and decided by the High Court.
On August 1, 1954, sometime between 7 and 8 p.m.
Bachhinder Singh son of Bhagwan Singh of village
Kairon was shot in the lane in front of their house and
as a result of bullet injuries he died the next day in
the hospital at Amritsar.
He was
at the time of
shooting accompanied by his younger brother Narvel
Singh, a boy of 13, and after getting injured Bachhinder
Singh and his brother r~turned to the house. Bhagwan
Singh
states
that
he was
informed of the
identity of the assailants
by
Bachhinder Singh
who was, at his own request, carried from the house to
the hospital at Kairon but as the injuries were serious
S.C.R.
SUPREME COURT REPORTS
411
the doctor at Kairon rendered "first aid" and advised
1957
the father to take his son to V.J. Hospital at Amritsar.
Bakshish Singh
Bhagwan Singh then took Bachhinder Singh to the Th St t v.i/ p
. b
Railway Station but before the arrival of the train he e a~°_ ""10
.went to the Police Post at Kairon which is at a distance
Kapur/.
of about 100 yds. from the Railway Station in order to
make a report. As the Assistant Sub Inspector was
away at Sarhali, he returned to the Railway Station
and took his son to the Amritsar hospital by the train
leaving
Kairon at 9-47 p.m.
Bhagwan Singh was
accompanied at thattime by his younger son, Narvel
Singh, P.W. 12, and by Shamir Singh, lnder Singh and
Naringan Singh. Soon after their arrival at the
Amritsar hospital Bachhinder Singh was examined by
Dr. Kanwal Kishore, P.W. 2, at 11-45 p.m. and finding
the injury to be of a serious nature the doctor sent
information to the Police as a result of which Head
Constable Maya Ram Sharma, P.W. 4, arrived at the
hospital sometime after midnight and, in the presence
of Dr. Mahavir Sud, P.W. 17, recorded the dying
declaration of Bachhindet Singh, Exhibit P-H, after
getting a certificate from the doctor that the injured
person was in a fit state to make a statement. This
statement is the basis of the First Information Report,
Exhibit P-H. 1, which is a copy of Exhibit P-H. This
report was recorded on August 2, 1954, at 7-50 a.m.
at Police Station Sarhali which, we were told, is about
20 miles or so away from Amritsar. In the early hours
of the morning Dr. K.C. Saronwala P.W. 1 performed
an operation on Bachhinder Singh and extracted a
bullet from the left abdominal wall which was handed
over to the Police.
But Bachhinder Singh died at
1-35 p.m. oh August 2, 1954.
An inquest report
Exhibit P-K was
prepared at 2-30 p.m. by Head
Constable Maya Ram, P. W. 4.
The case for the prosecution rests on the dying
declaration of Bachhinder Singh, Ex. P-H, and on the
statement of.Narvel Singh, P.W. 12, who was an eye
witness to the occurrence and on the statement made
by the deceased to his father as to his assailant as
soon as he (Bachhinder Singh) was brought to the
house after receiving the injuries. The prosecution
412
SUPREME COURT REPORTS [l958J
1957
also relied on an extra-judicial
confession made to
Bakshish s;,1gh Teja Singh, P.W. 13, but both the courts below have
~' 51 1 v.f P
. / rejected this piece of evidence and it is unnecessary to
11te
aeo
un1a1
.
.
f
-·
consider 1t any
urther.
Kapur!.
The learned Additional Sessions Judge rejected the
dying declaration made by Bachhinder Singh on two
grounds; that
at the time of recording the dying
declaration not only Bhagwan Singh, the father, and
Narvel Singh, the brother of Bachhinder Singh, were
"present but the police officer had actually made
enquiries from them about the occurrence before he
proceeded to record the dying declaration of Bachhinder
Singh deceased.
Head Constable Maya Ram, P.W. 4,
has admitted in cross-examination that Bachhinder
Singh gave his statement in Punjabi but the form and
the detailed account given in the statement, Exhibit
P-H, would show that it was not the product of
Bachhinder Singh's creation alone but it was a 'touched
up' declaration of the deceased. It is laid down in
1954 Lahore 805 that a dying declaration which .
records the very words of t11e dying man UQ.as~isted by
interested persons is most valuable evidence but the
value of a dying declaration altogether disappears
when parts of it had obviously been supplied to the
dead
man by other persons whether interested or
Police Officer. As the dying declaration, Exhibit P-H,
in this case cannot be regarded as the creation of
Bachhinder Singh deceased, no reliance whatsoever
can "be placed on it and it could not form the basis for
the conviction of any of the accused."
The learned Judges of the High Court .did not agree
with this criticism.
Bishan Narain J., who delivered
the main judgment, said:
"This criticism appears to me to be without any
substance. The statement was recorded by Head
Constable Maya Ram who was posted in Amritsar and
was not posted in village Kairon and therefore had no
knowledge of the parties nor had any interest in them.
Thus there was no reason why he should record the
statement falsely or irregularly. Throughout the time
that the statement was recorded Dr. Mahavir Sud of
the Amritsar hospital was present. He has appeared
S.C.R.
SUPREME COURT
REPORTS
413
as P.W. 17 in the present case. He is a respectable
1957
and disinterested person and he is positive
in his
Bakshish Singh
testimony before the court that the statement was Th s
v.f P
. b
made by the deceased voluntarily and that there was
e t~~ unja
nobody present to prompt him. He has further stated
Kapoor J.
that he did not allow any person to be present at that
time. There is absolutely no reason for doubting the
correctness of this statement ..................... .
• •• •
•
•
•
•
o
•
o • •
o
•
o
•
•
•
•
•
o
o
o
0
o
0
o
o
o
o
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I
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0
Coming to the other objection
of the Additional
Sessions Judge, it is difficult to
understand the
significance attached by him to the ·fact that the
deceased spoke in Punjabi while the statement was
recorded by Maya Ram in Urdu.
The court
language is Urdu and the Police generally records
statements in Urdu even if they are made in the
Punjabi language. I have no doubt in my mind that
the dying declaration recorded in the present case is a
voluntary one and was made without any prompting
from anybody."
The High Court in our opinion correctly appreciated
the evidence and was right in accepting the authenticity of the dying
declaration.
The
statement of
Maya Ram, P.W. 4, does not support the criticism of
the learned trial judge. And he had read more in the
statement of Narvel Singh, P.W. 12, made before the
Committing Magistrate, than it really contains.
It is
unfortunate that the criticism has proceeded on the
English record of the Magistrate's Court which does
not appear to have been correctly recorded as the
Urdu record is in many parts materially different. The
fact that the statement contained in Exhibit P-H was
made without any prompting is also supported by the
testimony
of
a
wholly
disinterested
witness,
Dr. Mahavir Sud, whose statement made before the
Committing Magistrate was transferred at the trial
stage under s. 33 of the Evidence Act. He stated:
"The statement of Bachhinder Singh was voluntary
and there was none to prompt it. I did not allow any
attendant on Bachhinder Singh then."
.
In cross-examination he made it clearer that there
was no relation or friend of the deceased person when
414
SUPREME COURT REPORTS
(1958J
1957
the statement was recorded.
Some
criticism was
Bakshi•h Singh levelled
against the dying declaration based on a
The Stat:~! Punjab sentence in the statement of Dr. Mah<;tvir Sud. P. W. 17
-
that the Head Constable
put certam questions
to
KapurJ.
clarify the ambiguities and these questions and answers
do not find place in Exhibit P-H, the record of the
dying declaration. No such question was put to the
Head Constable who recorded the statement.
The
Head Constable stated that the dying declaration was
written at the declarant's own dictation without any
addition or omission.
Jn cross-examination nothing
was asked as to any questions having been put to the
deceased by this witness. Therein the witness also
stated:
"It is not correct that .I first made the inquiry from
the"father of the deceased and other persons before I
proceeded to record his statement".
He also made it clear that before he allowed the statement to be made he satisfied himself that Bachhinder
Singh was in a fit state to make the statement.
We
are of the opinion that the High Court rightly held the
dying declaration to be a statement
made by the
deceased unaided by any outside agency and without
prompting by anybody. The declarant was free from
any outside influence in making his statement.
Another reason given by the Additional Sessions
Judge for rejecting the dying declaration was that the
deceased gave the narrative of events in Punjabi and
the statement was taken down in Urdu. In the Punjab
that is how the dying declarations are taken down and
that has been so ever since the courts were established
and judicial authority has never held that to be an
infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjab the language
used in the subordinate courts and that employed by
the Police for recording of statements has always been
Urdu and the recording of the dying declaration in
Urdu cannot be a ground for saying that the statement
does not correctly reproduce what was stated by the
declarant.
This, in our opinion, was a wholly inadequate reason for rejecting the dying declaration.
S.C.R.
SUPREME COURT REPORTS
415
Exhibit P-H, the dying declaration, is a long docu1957
ment and is a narrative of a large number. of incidents
Bak8hi$h Singh
which happened before the actual assault. Such long Th St 1 v.·'P
b
statements which are more in the nature· of First In-
'
a.!.!:.. un a
formation Reports than recital of the cause of death or
KapurJ.
circumstances resulting in it are likely to give the impression of their being not genuine or not having been
made unaided and without prompting. The dying·
declaration is the statement made by a person as to
the cause of his death or as to any of the circumstances
' of the transaction which resulted in his death and
such details which fall outside the ambit of this are
not strictly within the permissible limits laid down by
s. 32(1) of the Evidence Act· and unless absolutely
necessary to make a statement coherent or complete
should not be included in the statement.
We are
informed that, in the Punjab, no rules have been made
in regard to the recording of dying declarations which,
we are told, has been done in several other States.
We think it would be desirable if some such rules were
framed and included in the Rules and Orders made
by the High Court for the guidance of persons recording dying declarations. Of course the authenticity of
the dying declaration has to be judged in accordance
with the circumstances of each case depending upon
many factors which would vary with each case but
those recording such statements would be well advised
to keep in view the fact that the object of a dying
declaration is to get from the person making the statement the cause of death or the circumstances of the
transaction which resulted in death.
The admissibility of the statement of Dr. Mahavir
Sud was assailed by counsel for the appellant on the
ground that the conditions laid down for the admi~si
bility of statements under s. 33 has not been complied
with and several decided cases were relied upon. This
question does not seem to have been .raised at any
previous stage of the proceedings, neither before the
Additional Sessions Judge not before the High Court,
and this criticism seems to be without much substance.
At the trial the prosecution produced Foot Constable
Kartar Singh, P.W .. 14, who deposed that he took the
416
SUPREME COURT REPORTS
1957
summons for this witness to the hospital where he. was
Bak,·hish Si11gh previously employed and the Superintendent of the
Th St, v. if P ,,. bhospital made a report that he was no longer in service
e
a~~
11
~a and it was not known where he was. This witness also
Kap11r J.
stated that "from the inquiries made by me, I learnt
that his whereabouts are
not known."
In crossexamination he again stated that he made inquiries but
he could not discover the whereabouts of this witness.
After the statement of Kartar Singh, P.W. 14, the
Public Prosecutor made a statement that Dr. Mahavir
Sud's whereabouts were not known and prayed that •
his statement be transferred under s. 33 of the Evidence Act on the ground that there was no likelihood
of the witness being available without unreasonable
<lelay and expense and no objection is shown to have
been taken by the defence at that stage. Thereupon
the learned trial judge ordered the statement to be
transferred under s. 33 of the Evidence Act. He might
have been well advised to give fuller reasons for making the order transferring the statement. It appears
to us that the learned judge transferred it on the
,ground of unreasonable delay and exspense and we do
not find any infirmity in this order of transfer.
Counsel then contended that for the efficacy of the
dying declaration, corroboration was essential. In the
present case there is the statement of Narvel Singh,
P.W. 12, who
is an eye witness to the occurrence
which is relied upon "by the prosecution as corrobora~
tion of the dying declaration. The learned Additional
'Sessions Judge rajected the testimony of this witness
on the ground that there were discrepancies between
his statement made in the commitment proceedings
and at the trial. We have already pointed out that
the cross-examination of this witness was based on
"Somewhat inaccurate English record of his statement
in the Committing.Court, the st!ltement in Urdu record·
puts a different complexion on it. But even if this
were not so the High Court, in our opinion, has taken
a correct view of the testimony of this witness and
has accepted it for cogent reasons. Besides Narvel
Singh there is the statement of Bhagwan Singh; the
father, who stated that as soon as Bachhinder Singh
S.C.R.
SUPREME COURT REPORTS
417
came into the house he mentioned the names of his
1957
assailants to him. The incident took place just outBakshish Singh
side the house of Bhagwan Singh and it· was neverTh st ,v .. ,. .. J.b
d.
d
h
h
.
h h
h
h
e a e o, .cun a
1spute
t at e was present m t e ouse w en t e
-
incident took place. It is only natural that as soon
Kapur J.
as the injured son came into the house he would be
asked as to who had injured him or would himself state
who had caused him the injury. He was in his senses
at that time and no reason ha~ been suggested why
the son would not disclose to his f l).ther the names of
his assailants. There is no adequate reason for rejecting this portion of the testimony of Bhagwan Singh
and merely because the dying
declaration does not
mention it, is hardly a reason for not accepting it.
The non-production of Sucha Singh who is stated in
the dying declaration and in the statement of Narvel
Singh, P.W. 12, to have witnessed the occurrence was
commented upon by counsel as a very serious omission. The public Prosecutor stated at the trial that
he was giving up Sucha Singh as he had been won
over. Therefore, if produced, Sucha Singh would have
been' no better than a suborned witness. He was not
a witness "essential to the unfolding of the narrative
on which the prosecution was based" and if examined
the result would have been confusion, because the
prosecution would have automatically proceeded to
discredit him by cross-examination. No oblique reason
for his non-production was alleged, least of all proved.
There was, therefore, no obligation on the part of the
prosecution to examine this witness: See Abdul Mohammad v. Attorney General of Palestine (1) Stephen Servaratne v. The King (2); Habeeb Mohammad v. The State
of Hyderabad (3). In the circumstances the court would
not interfere with the discretion of the prosecutor as
to what witnesses should be called for the prosecution
and no adverse inference under s. 114 of the Evidence
Act can be drawn against the State.
-
The High Court, in our opinion, have kept in view
correct principles governing appeals against acquittals
and have rightly applied them to the circumstances
(t) A.l.R. 1945 P.C 42.
(2) A.I.R. 1936 P.C. 289.
M2SC/61-8
(3) [1954) S.C.R. 475.
418
SUPREME COURT REPORTS
1958
1957
of this case.
The erroneous view that the learned
Bakshish Singh Sessions Judge took of the dying declaration and of
Tile s101;·01 Punjab the oral evidence were compelling enough reasons for
-
the reversal of that judgment.
KapurJ.
•
We therefore dismiss this appeal.
1957
Sep/ember 17.
Appeal dismissed.
MANGOO SINGH
v.
THE ELECTION TRIBUNAL, BAREILL Y
AND OTHERS
(BHAGWATI, S.K. DAS and GAJENDRAGADKAR; JJ.)
Election
dispute-Municipal election-Disqualification
for
membership-Arrears of tax-Payment after nomination but before
poll-"For being chosen as", "DBVUlnd", meaning of-U. P. Municipalities Act, 1916 (U. P. ll of 1916), ss. 13-D, cl. (g), 166, 168U. P. Municipalities (Condcuct of Election of Members) Order, 1953,
para. 22(2).
The appellant was elected to the Municipal Board under the
U. P. Municipalities Act, 1916. He was in arrears in the payment
of Municipal tax in excess of one yeat"s demand, to which s. 166
of the Act applied, at the time of the filing of nominations, but
made the payment before the date of the poll. Under section 130,
cl. (g) of the Act "a person shall be disqualified for being chosen
as, and for being a member of a board if he is in arrears in the
payment of Municipal tax or other dues in excess of one year's
demand to which s. 166 applies, provided that the disqualification
shall cease as soon as the arrears are paid." On an election ·petition filed by a defeated candidate, the election was set aside by
the Election Tribunal on the ground that the appellant was not
entitled to the benefit of the proviso to s. 13-D, cl. (g) of the Act.
It was contended for the appellant that the relevant date for the
operation of the disqualification was the date of the poll and that
in any case, he did not come within the mischief of the disqualification clause in that section, as a bill for payment of the tax was
not presented to him, nor a notice of demand served on him under
s. 168.
.
Held : (I) that if a person is disqualified on the date of nomination, he cannot be chosen as a candidate within the meaning of
s. 13-D of the U.P. Municipalities Act, 1916, because the disqualification attaches to him on that date and the process of choosing
consist of a series of steps starting with nomination and ending
with the announcement of the election. The wiping off of the