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CASE NO.: Appeal (crl.)  188 of 2008

PETITIONER: Bijoy Das

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 28/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.5632 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the order passed by a  Division Bench of Calcutta High Court, upholding the  conviction and sentence of the appellant who was found guilty  of offence punishable under Sections 302 of the Indian Penal  Code, 1860 (in short \021IPC\022) and was sentenced to undergo  imprisonment for life.  3.      Prosecution case in a nutshell is as follows:

       On 28.9.1993, between 6.45 p.m. and 7.00 p.m. Sisir Kr.  Das @ Ajoy (hereinafter referred to as the \021deceased\022) was shot  by the present appellant in front of his house at College Para  and immediately thereafter Ajoy was shifted to hospital where  after ten days he succumbed to his injuries. One Satya Ranjan  Das (PW 1), cousin brother of Ajoy, getting information from  one local boy about the occurrence, came to learn from injured  Ajoy at hospital that he was shot at by his step uncle Bijoy  Das. The appellant immediately thereafter lodged the written  complaint at Raijung P.S.                 On the basis of the written complaint of Satya Ranjan  Das which was received by the local P.S. at about 19.50 hours  of 28.9.1993 S.I. S. Pradhan of Raijung P.S. took up the  investigation and in course of investigation, he visited the  place of occurrence, made seizure in respect of a bicycle used  by the victim Ajoy, visited hospital and recorded statement of  Ajoy and other witnesses of the occurrence, collected  declaration given by Ajoy to the attending doctor and S.I.  Pradhan also collected the post mortem report and finally,  submitted charge sheet against the present appellant both  under Section 302 IPC as well as under Section 25/27 of the  Arms Act, 1959 (in short \021Arms Act\022). The learned Sessions  Judge after framing charge under Section 302 IPC as well as  under Section 25/27 of the Arms Act explained the same to  the appellant and the appellant pleaded not guilty to both the  charges and claimed for trial.             Prosecution, during trial examined 16 witnesses  including PW.1 the FIR maker, PW.4 wife of the deceased who  was an eyewitness of the occurrence and PW.6, PW.8 and  PW.9. who came to learn from deceased Ajoy that he was shot  at by the appellant.  Prosecution also examined PW.14 doctor  Jiban Krishana Bhaduri who conducted operation of Ajoy and

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who also recorded a declaration of Ajoy disclosing the name of  the appellant as his assailant, PW.15 Dr. Rash Behari Ghosh,  conducted post-mortem examination and PW.16 was the  investigating officer.  Apart from oral evidence, prosecution  also produced before the Trial Court the written complaint of  PW.1, bed head ticket of Ajoy Das consisting declaration of  Ajoy recorded by PW.14, post-mortem report and several  seizure lists.            The learned Trial Court, on perusal of prosecution  evidence both oral and documentary and after considering  submissions of both the sides, found the present appellant  guilty of the offence under Section 302 IPC and he was  convicted accordingly. However, the Trial Court did not find  any material to hold the appellant guilty for the offence under  Section 25/27 of the Arms Act.                   4.       The Trial Court placed reliance on the evidence of PW4  the wife of the victim and also relied on the evidence of PWs 6,  8 and 9 along with PW1.  It is to be noted that the deceased  during his treatment in the hospital had categorically stated  that the appellant has assaulted him. The Trial Court did not  find any substance in the plea that at the behest of PW1 the  false case has been foisted.  5.      In appeal the High Court, as noted above, dismissed the  appeal.

6.      In support of the appeal learned counsel for the appellant  submitted that the evidence of PW4 clearly lacks credence.   The alleged statement before PWs 6, 8, 9 and 14 cannot be  treated as a dying declaration. Learned counsel of the  respondent-State on the other hand supported the judgment           7.      We see no reason to doubt the veracity of the dying  declarations especially since there is consistency between  them. We see no reason why the doctor or the other witnesses  should make a false statement about the dying declaration.  There is no allegation of enmity between the accused and  these persons.            As observed by this Court in Narain Singh v. State of  Haryana   AIR vide para 7: (SCC p.   267, para 7)  

\023A dying declaration made by a person on the  verge of his death has a special sanctity as at  that solemn moment a person is most unlikely  to make any untrue statement. The shadow of  impending death is by itself guarantee of the  truth of the statement of the deceased  regarding the circumstances leading to his  death. But at the same time the dying  declaration like any other evidence has to be  tested on the touchstone of credibility to be  acceptable. It is more so, as the accused does  not get an opportunity of questioning veracity  of the statement by cross-examination. The  dying declaration if found reliable can form the  base of conviction.\024  

8.      In Babulal v. State of M.P. (2003 (12) SCC 490) this Court  observed vide in para 7 of the said decision as under: (SCC p.    494)  \023A person who is facing imminent death, with  even a shadow of continuing in this world  practically non-existent, every motive of

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falsehood is obliterated. The mind gets altered  by most powerful ethical reasons to speak only  the truth. Great solemnity and sanctity is  attached to the words of a dying person  because a person on the verge of death is not  likely to tell lies or to concoct a case so as to  implicate an innocent person. The maxim is \021a  man will not meet his Maker with a lie in his  mouth\022 (nemo moriturus praesumitur mentiri).  Mathew Arnold said, \021truth sits on the lips of a  dying man\022. The general principle on which the  species of evidence is admitted is that they are  declarations made in extremity, when the  party is at the point of death, and when every  hope of this world is gone, when every motive  to falsehood is silenced and mind induced by  the most powerful consideration to speak the  truth; situation so solemn that law considers  the same as creating an obligation equal to  that which is imposed by a positive oath  administered in a court of justice.\024  

9.      In Ravi v. State of T.N. ((2004 (10) SCC 776) this Court  observed that: (SCC p.   777, para 3)  \023If the truthfulness of the dying declaration  cannot be doubted, the same alone can form  the basis of conviction of an accused and the  same does not require any corroboration,  whatsoever, in law.\024  

10.     In Muthu Kutty v. State (2005 (9) SCC 113) vide para 15  this Court observed as under: (SCC pp.   120-21)  \02315. Though a dying declaration is entitled to  great weight, it is worthwhile to note that the  accused has no power of cross-examination.  Such a power is essential for eliciting the truth  as an obligation of oath could be. This is the  reason the court also insists that the dying  declaration should be of such a nature as to  inspire full confidence of the court in its  correctness. The court has to be on guard that  the statement of the deceased was not as a  result of either tutoring, or prompting or a  product of imagination. The court must be  further satisfied that the deceased was in a fit  state of mind after a clear opportunity to  observe and identify the assailant. Once the  court is satisfied that the declaration was true  and voluntary, undoubtedly, it can base its  conviction without any further corroboration. It  cannot be laid down as an absolute rule of law  that the dying declaration cannot form the sole  basis of conviction unless it is corroborated. The  rule requiring corroboration is merely a rule of  prudence. This Court has laid down in several  judgments the principles governing dying  declaration, which could be summed up as  under as indicated in Paniben v. State of  Gujarat (1992 (2) SCC 474) : (SCC pp.   480-81,  paras 18-19)   (emphasis supplied)  (i ) There is neither rule of law nor of prudence  that dying declaration cannot be acted upon  without corroboration. (See Munnu Raja v.  State of M.P. (1976 (3) SCC 104)   

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(ii) If the Court is satisfied that the dying  declaration is true and voluntary it can base  conviction on it, without corroboration. (See  State of U.P. v. Ram Sagar Yadav and  Ramawati Devi v. State of Bihar (1985 (1) SCC  552)  (iii) The court has to scrutinise the dying  declaration carefully and must ensure that the  declaration is not the result of tutoring,  prompting or imagination. The deceased had  an opportunity to observe and identify the  assailants and was in a fit state to make the  declaration. (See K. Ramachandra Reddy v.  Public Prosecutor (1976 (3) SCC 618)    (iv) Where dying declaration is suspicious, it  should not be acted upon without  corroborative evidence. (See Rasheed Beg v.  State of M.P. (1974 (4) SCC 264) (v) Where the deceased was unconscious and  could never make any dying declaration the  evidence with regard to it is to be rejected. (See  Kake Singh v. State of M.P.(1981Supp. SCC 25)     (vi) A dying declaration which suffers from  infirmity cannot form the basis of conviction.  (See Ram Manorath v. State of U.P.(1981 (2)  SCC 654)    (vii) Merely because a dying declaration does  not contain the details as to the occurrence, it  is not to be rejected. (See State of Maharashtra  v. Krishnamurti Laxmipati Naidu (1980 Supp.  SCC 455)    (viii) Equally, merely because it is a brief  statement, it is not to be discarded. On the  contrary, the shortness of the statement itself  guarantees truth. (See Surajdeo Ojha v. State  of Bihar (1980 Supp. SCC 769))  (ix) Normally the court in order to satisfy  whether deceased was in a fit mental condition  to make the dying declaration look up to the  medical opinion. But where the eyewitness  said that the deceased was in a fit and  conscious state to make the dying declaration,  the medical opinion cannot prevail. (See  Nanhau Ram v. State of M.P. (1988 Supp. SCC  152)    (x) Where the prosecution version differs from  the version as given in the dying declaration,  the said declaration cannot be acted upon.  (See State of U.P. v. Madan Mohan (1989 (3)  SCC 390 )    (xi) Where there are more than one statement  in the nature of dying declaration, one first in  point of time must be preferred. Of course, if  the plurality of dying declaration could be held  to be trustworthy and reliable, it has to be  accepted. (See Mohanlal Gangaram Gehani v.  State of Maharashtra (1982 (1) SCC 700)\024   11.     A perusal of the various decisions of this Court, some of

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which have been referred to above, shows that if a dying  declaration is found to be reliable then there is no need for  corroboration by any witness, and conviction can be sustained  on its basis alone.  12.     The evidence of PWs. 6, 8 and 9 clearly shows that the  deceased immediately prior to his death had disclosed to PWs.  6, 8 and 9 that he had suffered injuries at the hands of the  appellant. Additionally, in the bed-head ticket which was  exhibited, PW-14 categorically noted the statement of the  deceased that he had been assaulted by the accused. The  evidence of PW4 was to the effect that she was waiting for her  husband standing in front of their house. She stated that the  deceased was coming by a bicycle. She also could note that  the appellant as following the deceased and fired shot at the  deceased.  When the evidence of PWs 4, 6, 8, and 9 is  analyzed, the inevitable conclusion, as was rightly observed by  the Trial Court and the High Court, is that the appellant had  fired the shot which resulted in the death of the deceased.                   13.     That being so, there is no merit in this appeal and the  same is dismissed.