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.
2. 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
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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.
3. 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
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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.
4. 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.
5. 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
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versions of the eyewitnesses, relied upon the dying
declaration, Ext. 4.
6. 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.
7. 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
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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.
8. 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
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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.
9. 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
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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.
10. 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
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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.
11. 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.
12. 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.
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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
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the circumstances of a case cannot be said to be
“interested”...”
13. 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…”
14. 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:
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“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.”
15. 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.
16. 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
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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.
17. 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.
18. It cannot be laid down as an absolute rule of law that
a dying declaration cannot form the sole basis of conviction
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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
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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.
19. 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.
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