-f-

[2008] 2 S.C.R. 86

BIJOY DAS

STATE OF WEST BENGAL (Criminal Appeal No. 188 of 2008)

JANUARY 28, 2008

~ B ~

(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

I,. r

Penal Code:

s. 302 - Victim suffering fire arm injury - His wife c witnessing the incident - Victim disclosing to witnesses and doctor the name of accused as his assailant - Statement of victim recorded by 1.0. in hospital disclosing accused as the assailant - Conviction uls 302 and sentence of imprisonment awarded by trial court - Affirmed by High Court - HELD: If a D dying declaration is found to be reliable, there is no need for Im corroboration by any witness and conviction can be sustained on its basis alone - There is no reason to doubt veracity of ,.. dying declarations - Trial Court and High Court rightly held ;.. that accused had fired the shot which resulted in death of victim E - Evidence Act, 1872 - Dying declaration. ...

The appellant was prosecuted u/s 302 IPC and ss.25/ ...... 27 of Arms Act. The prosecution case was that the

'II

husband of PW-4 was shot at by the appellant. The victim was taken to hospital. The victim disclosed to the doctor, F PW-14, as also to PWs 6,8 and 9 that it was the appellant "f who had shot at him. The Investigating Officer also recorded the statement of the victim wherein he named the appellant as his assailant. After a few days the victim succumbed to his injuries. The trial court relying upon G the evidence led by the prosecution, convicted the

"" appellant u/s 302 IPC and sentenced him to imprisonment

for life. The High Court affirmed the conviction and the sentence.

It was contended for the appellant that the evidence H 86 • -

I ~-

BIJOY DAS v. STATE OF WEST BENGAL 87

of PW-4 lacked credence and the alleged statements A before PWs 6,8,9 and 14 could not be treated as dying declarations.

f?ismissing the appeal, the Court

HELD: 1.1 If a dying declaration is found to be reliable 8

y then there is no need for corroboration by any witness, and conviction can be sustained on its basis alone. There is no reason to doubt the veracity of the dying declarations especially since there is consistency amongst them. There is also no reason why the doctor or c the other witnesses should make a false statement about the dying declaration. There is no allegation of enmity between the accused and these persons. [para 11 and 7]

(93-G; 90-C]

1111( Muthu Kutty v. State (2005] 9 SCC 113; Narain Singh D vs. State of Haryana 2004(2) SCR 115 ; Babula/ v. State of .... -1 MP [2003] 12 sec 490; Ravi vs. State of T.N. [2004] 10 sec 776 - relied on.

1.2 The evidence of PWs 6,8 and 9 clearly shows that the decased immediately prior to his death had disclosed E to them that he had suffered injuries at the hands of the appellant. Additionally, in the bed-head ticket, PW-14 categorically noted the statement of the deceased that he ..... had been assaulted by the accused. The evidence of PW- .,.. 4 was to the effect that she was waiting for her husband .F standing in front of their house. She stated that the deceased was coming by a cycle. She also could note • the appellant following the deceased and firing shot at him. When the evidence of PWs 4,6,8 and 9 is analyzed,

mi"' >-- the inevitable conclusion, as was rightly observed by the trial court and the High Court, is that the appellant had G

fired the shot which resulted in the death of the deceased. [para 12] [93-H; 94-A-C]

t CRIMINALAPPELLATE JURISDICTION Criminal Appeal No. 188 of 2008.

~ t--

A From the final Order and Judgment dated 7.7.2006 of the High Court of Calcutta at Calcutta in C.R.A. No. 230/2001.

Rana Mukherjee, D. Bharat Kumar, Anand, lndrani and ~

Abhijit Sengupta for the Appellant.

B Avijit Bhattacharjee for the Respondent.

The Judgment of the Court was delivered by -.

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 'IPC') 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 'deceased') was shot by the present appellant in front of his house at College Para E and immediately thereafter Ajay was shifted to hospital where after ten days he succumbed to his injuries. One Satya Ranjan Das (PW 1 ), cousin brother of Ajay, getting information from one local boy about the occurrence, came to learn from injured Ajay at hospital that he was shot at by his step uncle Bijoy Das.

F 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 < G investigation and in course of investigation, he visited the place ~ of occurrence, made seizure in respect of a bicycle used by the victim Ajay, visited hospital and recorded statement of Ajay and

) \ other witnesses of the occurrence, collected declaration given by Ajay to the attending doctor and S.I. Pradhan also collected ) H the post mortem report and finally, submitted charge sheet '.

~ --

against the present appellant both under Section 302 IPC as A well as under Section 25/27 of the Arms Act, 1959 (in short 'Arms Act'). 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.

Y' 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 c appellant. Prosecution also examined PW.14 doctor Jiban Krishana Bhaduri who conducted operation of Ajoy and who also recorded a declaration of Ajay 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 D 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 E

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 -I appellant guilty for the offence under Section 25/27 of the Arms F 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 G 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 H

A 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

8 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 c 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)

"A 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 crossexamination. The dying declaration if found reliable can form the base of conviction."

8 .. In Babula/ v. State of M.P (2003 (12) SCC 490) this Court observed vide in para 7 of the said decision as under: 1 (SCC p. 494) ~

"A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of 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 A . an innocent person. The maxim is 'a man will not meet his Maker with a lie in his mouth' (nemo moriturus praesumitur mentin). Mathew Arnold said, 'truth sits on the lips of a dying man'. The general principle on which the species of evidence is admitted is that they are declarations made B 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 c obligation equal to that which is imposed by a positive oath administered in a court of justice."

9. In Raviv. State of TN. ((2004 (10) SCC 776) this Court observed that: (SCC p. 777, para 3)

0 "If 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."

10. In Muthu Kuttyv. State (2005 (9) SCC 113) vide para E 15 this Court observed as under: (SCC pp. 120-21)

"15. 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 F 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. G 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.

A 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 B 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)

c (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)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without

D corroboration. (See State of UP 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 E 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) sec 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

G is to be rejected. (See Kake Singh v. State of M.P.(1981Supp. sec 25) -"'

(v1) A dying declaration which suffers from infirmity cannot .form the basis of conviction. (See Ram Manorath v. State

of U.P.(1981 (2) sec 654) H

(vii) Merely because a dying declaration does not contain A the details as to the, occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu (1980 Supp. sec 455)

(viii) Equally, merely because it is a brief statement, it is B 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 c

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. sec 152; D

(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 UP v. Madan Mohan (1989 (3J sec 390 )

(x1) Where there are more than one statement in the nature E

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 Mohan/al Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)" F

11. A perusal of the various decisions of this Court, some of 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 G 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 H

A 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 B 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.

C .

13. That being so, there is no merit in this appeal and the same Is dismissed.

R.P.

Appeal dismissed.