{"id":89555,"date":"2008-01-28T00:00:00","date_gmt":"2008-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bijoy-das-vs-state-of-west-bengal-on-28-january-2008"},"modified":"2019-01-13T06:32:21","modified_gmt":"2019-01-13T01:02:21","slug":"bijoy-das-vs-state-of-west-bengal-on-28-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bijoy-das-vs-state-of-west-bengal-on-28-january-2008","title":{"rendered":"Bijoy Das vs State Of West Bengal on 28 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bijoy Das vs State Of West Bengal on 28 January, 2008<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, P. Sathasivam<\/div>\n
           CASE NO.:\nAppeal (crl.)  188 of 2008\n\nPETITIONER:\nBijoy Das\n\nRESPONDENT:\nState of West Bengal\n\nDATE OF JUDGMENT: 28\/01\/2008\n\nBENCH:\nDr. ARIJIT PASAYAT & P. SATHASIVAM\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (Crl.) No.5632 of 2006)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.    Challenge in this appeal is to the order passed by a
\nDivision Bench of Calcutta High Court, upholding the
\nconviction and sentence of the appellant who was found guilty
\nof offence punishable under Sections 302 of the Indian Penal
\nCode, 1860 (in short IPC) and was sentenced to undergo
\nimprisonment for life.\n<\/p>\n
3.\tProsecution case in a nutshell is as follows:\n<\/p>\n
\tOn 28.9.1993, between 6.45 p.m. and 7.00 p.m. Sisir Kr.
\nDas @ Ajoy (hereinafter referred to as the deceased) was shot
\nby the present appellant in front of his house at College Para
\nand immediately thereafter Ajoy was shifted to hospital where
\nafter ten days he succumbed to his injuries. One Satya Ranjan
\nDas (PW 1), cousin brother of Ajoy, getting information from
\none local boy about the occurrence, came to learn from injured
\nAjoy at hospital that he was shot at by his step uncle Bijoy
\nDas. The appellant immediately thereafter lodged the written
\ncomplaint at Raijung P.S.     <\/p>\n
     On the basis of the written complaint of Satya Ranjan
\nDas which was received by the local P.S. at about 19.50 hours
\nof 28.9.1993 S.I. S. Pradhan of Raijung P.S. took up the
\ninvestigation and in course of investigation, he visited the
\nplace of occurrence, made seizure in respect of a bicycle used
\nby the victim Ajoy, visited hospital and recorded statement of
\nAjoy and other witnesses of the occurrence, collected
\ndeclaration given by Ajoy to the attending doctor and S.I.
\nPradhan also collected the post mortem report and finally,
\nsubmitted charge sheet against the present appellant both
\nunder Section 302 IPC as well as under Section 25\/27 of the
\nArms Act, 1959 (in short Arms Act). The learned Sessions
\nJudge after framing charge under Section 302 IPC as well as
\nunder Section 25\/27 of the Arms Act explained the same to
\nthe appellant and the appellant pleaded not guilty to both the
\ncharges and claimed for trial.\n<\/p>\n
     Prosecution, during trial examined 16 witnesses
\nincluding PW.1 the FIR maker, PW.4 wife of the deceased who
\nwas an eyewitness of the occurrence and PW.6, PW.8 and
\nPW.9. who came to learn from deceased Ajoy that he was shot
\nat by the appellant.  Prosecution also examined PW.14 doctor
\nJiban Krishana Bhaduri who conducted operation of Ajoy and
\nwho also recorded a declaration of Ajoy disclosing the name of
\nthe appellant as his assailant, PW.15 Dr. Rash Behari Ghosh,
\nconducted post-mortem examination and PW.16 was the
\ninvestigating officer.  Apart from oral evidence, prosecution
\nalso produced before the Trial Court the written complaint of
\nPW.1, bed head ticket of Ajoy Das consisting declaration of
\nAjoy recorded by PW.14, post-mortem report and several
\nseizure lists.\n<\/p>\n
     The learned Trial Court, on perusal of prosecution
\nevidence both oral and documentary and after considering
\nsubmissions of both the sides, found the present appellant
\nguilty of the offence under Section 302 IPC and he was
\nconvicted accordingly. However, the Trial Court did not find
\nany material to hold the appellant guilty for the offence under
\nSection 25\/27 of the Arms Act.\n<\/p>\n
4.\t The Trial Court placed reliance on the evidence of PW4
\nthe wife of the victim and also relied on the evidence of PWs 6,
\n8 and 9 along with PW1.  It is to be noted that the deceased
\nduring his treatment in the hospital had categorically stated
\nthat the appellant has assaulted him. The Trial Court did not
\nfind any substance in the plea that at the behest of PW1 the
\nfalse case has been foisted.\n<\/p>\n
5.\tIn appeal the High Court, as noted above, dismissed the
\nappeal.\n<\/p>\n
6.\tIn support of the appeal learned counsel for the appellant
\nsubmitted that the evidence of PW4 clearly lacks credence.
\nThe alleged statement before PWs 6, 8, 9 and 14 cannot be
\ntreated as a dying declaration. Learned counsel of the
\nrespondent-State on the other hand supported the judgment <\/p>\n
7.\tWe see no reason to doubt the veracity of the dying
\ndeclarations especially since there is consistency between
\nthem. We see no reason why the doctor or the other witnesses
\nshould make a false statement about the dying declaration.
\nThere is no allegation of enmity between the accused and
\nthese persons.\n<\/p>\n
\tAs observed by this Court in Narain Singh v. State of
\nHaryana   AIR vide para 7: (SCC p.   267, para 7) <\/p>\n
A dying declaration made by a person on the
\nverge of his death has a special sanctity as at
\nthat solemn moment a person is most unlikely
\nto make any untrue statement. The shadow of
\nimpending death is by itself guarantee of the
\ntruth of the statement of the deceased
\nregarding the circumstances leading to his
\ndeath. But at the same time the dying
\ndeclaration like any other evidence has to be
\ntested on the touchstone of credibility to be
\nacceptable. It is more so, as the accused does
\nnot get an opportunity of questioning veracity
\nof the statement by cross-examination. The
\ndying declaration if found reliable can form the
\nbase of conviction. <\/p>\n
8.\tIn Babulal v. State of M.P. (2003 (12) SCC 490) this Court
\nobserved vide in para 7 of the said decision as under: (SCC p.\n<\/p>\n
494)
\nA person who is facing imminent death, with
\neven a shadow of continuing in this world
\npractically non-existent, every motive of
\nfalsehood is obliterated. The mind gets altered
\nby most powerful ethical reasons to speak only
\nthe truth. Great solemnity and sanctity is
\nattached to the words of a dying person
\nbecause a person on the verge of death is not
\nlikely to tell lies or to concoct a case so as to
\nimplicate an innocent person. The maxim is a
\nman will not meet his Maker with a lie in his
\nmouth (nemo moriturus praesumitur mentiri).
\nMathew Arnold said, truth sits on the lips of a
\ndying man. The general principle on which the
\nspecies of evidence is admitted is that they are
\ndeclarations made in extremity, when the
\nparty is at the point of death, and when every
\nhope of this world is gone, when every motive
\nto falsehood is silenced and mind induced by
\nthe most powerful consideration to speak the
\ntruth; situation so solemn that law considers
\nthe same as creating an obligation equal to
\nthat which is imposed by a positive oath
\nadministered in a court of justice. <\/p>\n
9.\tIn Ravi v. State of T.N. ((2004 (10) SCC 776) this Court
\nobserved that: (SCC p.   777, para 3)
\nIf the truthfulness of the dying declaration
\ncannot be doubted, the same alone can form
\nthe basis of conviction of an accused and the
\nsame does not require any corroboration,
\nwhatsoever, in law. <\/p>\n
10.\tIn Muthu Kutty v. State (2005 (9) SCC 113) vide para 15
\nthis Court observed as under: (SCC pp.   120-21)
\n15. Though a dying declaration is entitled to
\ngreat weight, it is worthwhile to note that the
\naccused has no power of cross-examination.
\nSuch a power is essential for eliciting the truth
\nas an obligation of oath could be. This is the
\nreason the court also insists that the dying
\ndeclaration should be of such a nature as to
\ninspire full confidence of the court in its
\ncorrectness. The court has to be on guard that
\nthe statement of the deceased was not as a
\nresult of either tutoring, or prompting or a
\nproduct of imagination. The court must be
\nfurther satisfied that the deceased was in a fit
\nstate of mind after a clear opportunity to
\nobserve and identify the assailant. Once the
\ncourt is satisfied that the declaration was true
\nand voluntary, undoubtedly, it can base its
\nconviction without any further corroboration. It
\ncannot be laid down as an absolute rule of law
\nthat the dying declaration cannot form the sole
\nbasis of conviction unless it is corroborated. The
\nrule requiring corroboration is merely a rule of
\nprudence. This Court has laid down in several
\njudgments the principles governing dying
\ndeclaration, which could be summed up as
\nunder as indicated in Paniben v. State of
\nGujarat<\/a> (1992 (2) SCC 474) : (SCC pp.   480-81,
\nparas 18-19)   (emphasis supplied)
\n(i ) There is neither rule of law nor of prudence
\nthat dying declaration cannot be acted upon
\nwithout corroboration. (See Munnu Raja v.
\nState of M.P. (1976 (3) SCC 104)<\/p>\n
(ii) If the Court is satisfied that the dying
\ndeclaration is true and voluntary it can base
\nconviction on it, without corroboration. (See
\nState of U.P. v. Ram Sagar Yadav and
\nRamawati Devi<\/a> v. State of Bihar (1985 (1) SCC\n<\/p>\n
552)\n<\/p>\n
(iii) The court has to scrutinise the dying
\ndeclaration carefully and must ensure that the
\ndeclaration is not the result of tutoring,
\nprompting or imagination. The deceased had
\nan opportunity to observe and identify the
\nassailants and was in a fit state to make the
\ndeclaration. (See K. Ramachandra Reddy v.
\nPublic Prosecutor<\/a> (1976 (3) SCC 618) <\/p>\n
(iv) Where dying declaration is suspicious, it
\nshould not be acted upon without
\ncorroborative evidence. (See Rasheed Beg v.
\nState of M.P. (1974 (4) SCC 264)\n<\/p>\n
(v) Where the deceased was unconscious and
\ncould never make any dying declaration the
\nevidence with regard to it is to be rejected. (See
\nKake Singh v. State of M.P.(1981Supp. SCC 25)  <\/p>\n
(vi) A dying declaration which suffers from
\ninfirmity cannot form the basis of conviction.
\n(See Ram Manorath v. State of U.P.<\/a>(1981 (2)
\nSCC 654) <\/p>\n
(vii) Merely because a dying declaration does
\nnot contain the details as to the occurrence, it
\nis not to be rejected. (See State of Maharashtra
\nv. Krishnamurti Laxmipati Naidu<\/a> (1980 Supp.
\nSCC 455)<\/p>\n
(viii) Equally, merely because it is a brief
\nstatement, it is not to be discarded. On the
\ncontrary, the shortness of the statement itself
\nguarantees truth. (See Surajdeo Ojha v. State
\nof Bihar<\/a> (1980 Supp. SCC 769))\n<\/p>\n
(ix) Normally the court in order to satisfy
\nwhether deceased was in a fit mental condition
\nto make the dying declaration look up to the
\nmedical opinion. But where the eyewitness
\nsaid that the deceased was in a fit and
\nconscious state to make the dying declaration,
\nthe medical opinion cannot prevail. (See
\nNanhau Ram v. State of M.P. (1988 Supp. SCC\n<\/p>\n
152)<\/p>\n
(x) Where the prosecution version differs from
\nthe version as given in the dying declaration,
\nthe said declaration cannot be acted upon.
\n(See State of U.P. v. Madan Mohan<\/a> (1989 (3)
\nSCC 390 )<\/p>\n
(xi) Where there are more than one statement
\nin the nature of dying declaration, one first in
\npoint of time must be preferred. Of course, if
\nthe plurality of dying declaration could be held
\nto be trustworthy and reliable, it has to be
\naccepted. (See Mohanlal Gangaram Gehani v.
\nState of Maharashtra (1982 (1) SCC 700)<\/p>\n
11.\tA perusal of the various decisions of this Court, some of
\nwhich have been referred to above, shows that if a dying
\ndeclaration is found to be reliable then there is no need for
\ncorroboration by any witness, and conviction can be sustained
\non its basis alone.\n<\/p>\n
12.\tThe evidence of PWs. 6, 8 and 9 clearly shows that the
\ndeceased immediately prior to his death had disclosed to PWs.
\n6, 8 and 9 that he had suffered injuries at the hands of the
\nappellant. Additionally, in the bed-head ticket which was
\nexhibited, PW-14 categorically noted the statement of the
\ndeceased that he had been assaulted by the accused. The
\nevidence of PW4 was to the effect that she was waiting for her
\nhusband standing in front of their house. She stated that the
\ndeceased was coming by a bicycle. She also could note that
\nthe appellant as following the deceased and fired shot at the
\ndeceased.  When the evidence of PWs 4, 6, 8, and 9 is
\nanalyzed, the inevitable conclusion, as was rightly observed by
\nthe Trial Court and the High Court, is that the appellant had
\nfired the shot which resulted in the death of the deceased.\n<\/p>\n
13.\tThat being so, there is no merit in this appeal and the
\nsame is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bijoy Das vs State Of West Bengal on 28 January, 2008 Author: . A Pasayat Bench: Dr. Arijit Pasayat, P. Sathasivam 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-89555","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBijoy Das vs State Of West Bengal on 28 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bijoy-das-vs-state-of-west-bengal-on-28-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bijoy Das vs State Of West Bengal on 28 January, 2008 - 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