It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence= It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction 12 unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW­18, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the Court. Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the dying declaration in all material particulars. The High Court, on reappreciation of the entire evidence before it, has come to an independent and just conclusion by setting 13 aside the judgment of acquittal passed by the Trial Court.The High Court has found that there are substantial and compelling reasons to differ from the finding of acquittal recorded by the Trial Court. The High Court having found that the view taken by the Trial Court was not plausible in view of the facts and circumstances of the case, has on independent evaluation and by assigning reasons set aside the judgment of acquittal passed by the Trial Court. We concur with the judgment of the High Court, for the reasons mentioned supra.


Hon’ble Mr. Justice Mohan M. Shantanagoudar 

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 312 OF 2010
LALTU GHOSH …APPELLANT
VERSUS
STATE OF WEST BENGAL …RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 15.05.2009 passed by the High
Court of Calcutta in Government Appeal No. 30 of 1987 is
called into question in this appeal by the convicted
accused.

  1. The case of the prosecution in brief is that there was
    a dispute between Ananta Ghosh (accused, since deceased)
    and the victim Keshab, his neighbour, concerning the
    boundary of the landed property in which they had their
    1
    respective houses; about 9.30 am on 30.04.1982, accused
    Ananta Ghosh called the deceased Keshab by standing in
    front of the house of the deceased; the deceased
    accordingly came out of his house and his son PW­1
    followed him; at that point of time, Ananta Ghosh picked a
    quarrel with the deceased and thereafter instigated his sons
    Laltu Ghosh and Paltu Ghosh as well as his friend Sakti @
    Sero Karmakar to assault the deceased; Laltu Ghosh
    punched the deceased on the face and thereafter stabbed
    the accused in the abdomen; though the deceased fell
    down, he got up immediately and thereafter started to run
    away; but Paltu Ghosh stabbed the deceased on his back,
    who fell down near the tea stall of one Tabal; he was taken
    to the Primary Health Centre, Kaliaganj in the rickshaw of
    one Madan where he was treated by Dr. Roychowdhury,
    PW­18, who gave him first aid and recorded the statement
    of the deceased; later, the victim was sent to Krishnanagar
    Hospital for better treatment.
  2. The statement of the victim was recorded by Dr.
    Roychowdhury (PW­18) and the same was treated as a
    dying declaration, since soon after such treatment the
    2
    victim succumbed to his injuries on the way to the hospital.
    His son PW­1 lodged the First Information Report (FIR) at
    10.45 a.m. on the very same day, i.e. 30.04.1982.
  3. The police filed the charge­sheet against four
    accused, viz. Laltu Ghosh, Paltu Ghosh, Ananta Ghosh and
    Sakti @ Sero Karmakar. The Trial Court upon appreciation
    of the material on record acquitted all the accused. The
    State filed an appeal before the High Court, which came to
    be allowed in part by the impugned judgment. The High
    Court convicted Laltu Ghosh, who is the appellant herein.
    The High Court also declared that Paltu Ghosh was a
    juvenile on the date of the incident. The accused Ananta
    Ghosh and Sakti Karmakar expired during the pendency of
    the appeal before the High Court. Hence, this appeal by the
    convicted accused Laltu Ghosh.
  4. There are four eye­witnesses to the incident in
    question, viz. PW­1, PW­2, PW­3 and PW­4. Out of them,
    PW­2 and PW­3 have turned hostile to the case of the
    prosecution. PW­1 is the son of the deceased and PW­4 is
    the wife of the deceased. The prosecution, apart from the
    3
    versions of the eye­witnesses, relied upon the dying
    declaration, Ext. 4.
  5. Learned counsel for the appellant, having taken us
    through the material on record submits that the High Court
    was not justified in allowing the appeal of the State and
    convicting the appellant herein, since the evidence of PW­1
    and PW­4 cannot be believed in view of the material
    contradictions found in their evidence; PW­1 and PW­4 are
    none other than the son and the wife of the deceased and
    therefore the Trial Court on meticulous and careful
    consideration of the evidence of these witnesses concluded
    that their evidence cannot be believed; the dying
    declaration was also found to be shaky by the Trial Court;
    the Trial Court had accorded reasons for rejecting the dying
    declaration; and that the High Court has failed to analyse
    the entire evidence and material on record and has failed to
    meet the reasons given by the Trial Court upon taking the
    evidence and material into consideration.
  6. Per contra, it is argued by the learned counsel
    appearing on behalf of the State that the High Court has
    rightly rejected the findings of the Trial Court that the post
    4
    mortem report was not of the deceased; there is absolutely
    no doubt about the persons who caused injuries to the
    deceased; the High Court was justified in applying the
    principle of common intention; and that the High Court has
    assigned valid reasons as to why the dying declaration
    should not have been discarded by the Trial Court. On the
    basis of these, among other grounds, he prays for
    confirming the judgment of the High Court.
  7. To satisfy our conscience, we have gone through the
    evidence of PW­1 and PW­4. PW­1 had deposed that about
    9­9.30 a.m. on 30.04.1982, he and his father were at home,
    sitting on a platform; the accused Ananta Ghosh called the
    deceased from his house but the deceased initially refused
    to come and told the accused Ananta Ghosh to come to the
    road in front of his house; after saying so, the deceased
    went out of his house and PW­1 followed him; thereafter, a
    verbal quarrel took place between the accused and the
    deceased, and the accused Ananta Ghosh at that point of
    time instigated his sons Laltu Ghosh and Paltu Ghosh as
    well as his friend Sakti @ Sero Karmakar to assault the
    deceased; Laltu Ghosh dealt a blow to the deceased and
    5
    thereafter stabbed him on his abdomen; the deceased made
    an attempt to escape and had proceeded about 10 cubits
    when Paltu Ghosh assaulted the deceased with a bhojali on
    his back; despite the same, the deceased made an attempt
    to escape by running but Laltu Ghosh and Paltu Ghosh
    chased him and ultimately, he fell near the tea stall of one
    Tabal from where he was shifted to the hospital at
    Kaliaganj. The evidence of PW­1 is consistent with the
    version of the prosecution. His evidence could not be
    shaken in the cross­examination in respect of the
    occurrence of the incident in question. Even in the crossexamination, PW­1 has stated that the appellant had
    concealed a sharp­cutting weapon, i.e. kirich, in a napkin
    and had come fully prepared for committing the murder.
  8. The evidence of PW­1 is fully supported by the
    evidence of PW­4. She has also deposed about the exchange
    of words between the deceased and the accused Ananta
    Ghosh; about Ananta Ghosh instigating his sons Laltu
    Ghosh and Paltu Ghosh, and his friend Sakti @ Sero
    Karmakar to assault the deceased; about the assault by
    Laltu Ghosh in the first instance and thereafter by Paltu
    6
    Ghosh at the back of the deceased; about the deceased
    trying to escape and running towards the tea stall, etc. She
    has also deposed about the first aid given to the deceased
    at the Primary Health Centre, Kaliaganj and thereafter
    about shifting him to Krishnanagar Hospital. She has
    further deposed about the victim’s statement being
    recorded at the Primary Health Centre, Kaliaganj, which
    was ultimately treated as his dying declaration. She
    withstood the lengthy cross­examination.
  9. We find that the evidence of PW­1 and PW­4 is
    consistent, cogent, reliable and trustworthy. Their presence
    at the scene of the incident is natural inasmuch as the
    incident took place in front of their house, and that too in
    the morning, at a time when PW­1 and PW­4 could be
    expected to be at home. Though the incident started with a
    verbal quarrel between the deceased and the accused
    Ananta Ghosh, the appellant along with his brother entered
    the scene after being instigated by their father Ananta
    Ghosh; both the brothers, namely, Laltu Ghosh and Paltu
    Ghosh came to the spot fully armed with a kirich and a
    bhojali; the victim was not spared by the accused though he
    7
    tried to escape from the scene of the occurrence; he was
    chased by the appellant and Paltu Ghosh and ultimately,
    the victim fell in front of a tea stall; the victim was able to
    give his statement before the doctor PW­18 who treated him
    at the first instance at the Primary Health Centre,
    Kaliaganj.
  10. We do not find any major contradiction in the
    evidence of these witnesses. Minor variations, if any, will
    not tilt the balance in favour of the defence in the facts and
    circumstances of the present case. The defence could not
    elicit any contradiction in the cross­examination of PW­1
    and PW­4. In our considered opinion, the High Court has
    rightly believed the evidence of these witnesses, particularly
    since minor discrepancies on trivial matters do not in and
    of themselves affect the core of the prosecution case.
    Hence, it is not open for the Court to reject the evidence
    only in light of some minor variations and discrepancies.
  11. As regards the contention that the eye­witnesses are
    close relatives of the deceased, it is by now well­settled that
    a related witness cannot be said to be an ‘interested’
    witness merely by virtue of being a relative of the victim.
    8
    This Court has elucidated the difference between
    ‘interested’ and ‘related’ witnesses in a plethora of cases,
    stating that a witness may be called interested only when
    he or she derives some benefit from the result of a
    litigation, which in the context of a criminal case would
    mean that the witness has a direct or indirect interest in
    seeing the accused punished due to prior enmity or other
    reasons, and thus has a motive to falsely implicate the
    accused (for instance, see State of Rajasthan v. Kalki,
    (1981) 2 SCC 752; Amit v. State of Uttar Pradesh,
    (2012) 4 SCC 107; and Gangabhavani v. Rayapati
    Venkat Reddy, (2013) 15 SCC 298). Recently, this
    difference was reiterated in Ganapathi v. State of Tamil
    Nadu, (2018) 5 SCC 549, in the following terms, by
    referring to the three­Judge bench decision in State of
    Rajasthan v. Kalki (supra):
    “14. “Related” is not equivalent to “interested”. A
    witness may be called “interested” only when he or
    she derives some benefit from the result of a
    litigation; in the decree in a civil case, or in seeing
    an accused person punished. A witness who is a
    natural one and is the only possible eye witness in
    9
    the circumstances of a case cannot be said to be
    “interested”…”
  12. In criminal cases, it is often the case that the offence is
    witnessed by a close relative of the victim, whose presence
    on the scene of the offence would be natural. The evidence
    of such a witness cannot automatically be discarded by
    labelling the witness as interested. Indeed, one of the
    earliest statements with respect to interested witnesses in
    criminal cases was made by this Court in Dalip Singh v.
    State of Punjab, 1954 SCR 145, wherein this Court
    observed:
    “26. A witness is normally to be considered
    independent unless he or she springs from sources
    which are likely to be tainted and that usually
    means unless the witness has cause, such as
    enmity against the accused, to wish to implicate
    him falsely. Ordinarily, a close relative would be the
    last to screen the real culprit and falsely implicate
    an innocent person…”
  13. In case of a related witness, the Court may not treat
    his or her testimony as inherently tainted, and needs to
    ensure only that the evidence is inherently reliable,
    probable, cogent and consistent. We may refer to the
    observations of this Court in Jayabalan v. Union
    Territory of Pondicherry, (2010) 1 SCC 199:
    10
    “23. We are of the considered view that in cases
    where the Court is called upon to deal with the
    evidence of the interested witnesses, the approach
    of the Court while appreciating the evidence of such
    witnesses must not be pedantic. The Court must be
    cautious in appreciating and accepting the evidence
    given by the interested witnesses but the Court
    must not be suspicious of such evidence. The
    primary endeavour of the Court must be to look for
    consistency. The evidence of a witness cannot be
    ignored or thrown out solely because it comes from
    the mouth of a person who is closely related to the
    victim.”
  14. In the instant matter, as already discussed above, we
    find the testimony of the eye­witnesses to be consistent and
    reliable, and therefore reject the contention of the
    appellants that the testimony of the eye­witnesses must be
    disbelieved because they are close relatives of the deceased
    and hence interested witnesses.
  15. The FIR discloses that the doctor PW­18 examined
    the victim at the first instance and recorded his statement,
    in which the victim narrated the occurrence including the
    names of the assailants. The dying declaration Ext. 4
    recorded by the doctor PW­18 shows that the victim was
    first assailed by the accused Ananta Ghosh, and thereafter
    by Paltu Ghosh, who stabbed the victim’s back, and by
    Laltu Ghosh, who served a blow on the victim’s abdomen
    11
    with a kirich. The Trial Court has given more weightage to
    the minor variations found in the evidence of the
    prosecution witnesses as compared to the information
    found in the dying declaration.
  16. The courts cannot expect a victim like the deceased
    herein to state in exact words as to what happened during
    the course of the crime, inasmuch as it would be very
    difficult for such a victim, who has suffered multiple
    grievous injuries, to state all the details of the incident
    meticulously and that too in a parrot­like manner. The
    Trial Court assumed that the Investigation Officer in
    collusion with the doctor wilfully fabricated the dying
    declaration. It is needless to state that the Investigation
    Officer and the doctor are independent public servants and
    are not related either to the accused or the deceased. It is
    not open for the Trial Court to cast aspersions on the said
    public officers in relation to the dying declaration, more
    particularly when there is no supporting evidence to show
    such fabrication.
  17. It cannot be laid down as an absolute rule of law that
    a dying declaration cannot form the sole basis of conviction
    12
    unless it is corroborated by other evidence. A dying
    declaration, if found reliable, and if it is not an attempt by
    the deceased to cover the truth or to falsely implicate the
    accused, can be safely relied upon by the courts and can
    form the basis of conviction. More so, where the version
    given by the deceased as the dying declaration is supported
    and corroborated by other prosecution evidence, there is no
    reason for the courts to doubt the truthfulness of such
    dying declaration. The doctor PW­18, who recorded the
    statement of the deceased which was ultimately treated as
    his dying declaration, has fully supported the case of the
    prosecution by deposing about recording the dying
    declaration. He also deposed that the victim was in a fit
    state of mind while making the said declaration. We also do
    not find any material to show that the victim was tutored or
    prompted by anybody so as to create suspicion in the mind
    of the Court. Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the
    dying declaration in all material particulars. The High
    Court, on reappreciation of the entire evidence before it,
    has come to an independent and just conclusion by setting
    13
    aside the judgment of acquittal passed by the Trial Court.
    The High Court has found that there are substantial and
    compelling reasons to differ from the finding of acquittal
    recorded by the Trial Court. The High Court having found
    that the view taken by the Trial Court was not plausible in
    view of the facts and circumstances of the case, has on
    independent evaluation and by assigning reasons set aside
    the judgment of acquittal passed by the Trial Court. We
    concur with the judgment of the High Court, for the
    reasons mentioned supra.
  18. Thus, we do not find any valid ground to interfere
    with the impugned judgment of conviction passed by the
    High Court. Accordingly, the appeal fails and is hereby
    dismissed. …………………………..……....J. [Mohan M. Shantanagoudar] ...……………………..…..…J. [Dinesh Maheshwari] New Delhi;
    February 19, 2019.
    14