IMPORTANT POINTS
Relatives’ evidence cannot be discarded automatically by labeling them interested witness.
Dying declaration if found reliable and not an attempt by deceased to cover truth or to falsely implicate accused, can be safely relied upon and can form basis of conviction.

JUDGMENT

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 the irrespective 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 PW-1 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, PW-18, 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 (PW-18) and the same was treated as a dying declaration, since soon after such treatment the victim succumbed to his injuries on the way to the hospital. His son PW-1 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 charge-sheet 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 eye-witnesses to the incident in question, viz. PW-1, PW-2, PW-3 and PW-4. Out of them, PW-2 and PW-3 have turned hostile to the case of the prosecution. PW-1 is the son of the deceased and PW-4 is the wife of the deceased. The prosecution, apart from the versions of the eye-witnesses, 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 PW-1 and PW-4 cannot be believed in view of the material contradictions found in their evidence; PW-1 and PW-4 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 postmortem 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 tha