Res Gestae-Based Oral Dying Declarations Naming Assailants: Admissibility, Reliability, and Compensation Enforcement
1. Introduction
The Calcutta High Court (Criminal Appellate Jurisdiction) in SAJAL KANTI ROY @ SUBRATA ROY @ SUBHO & ANR v. STATE OF WEST BENGAL
(judgment dated 19-01-2026) decided an appeal against conviction arising out of a politically charged shooting that occurred on the eve of Panchayat elections.
The appellants (Subrata and Bhagirath), alleged members of the ruling party in the locality, were convicted for the murder of Sagar Ghosh and allied offences.
The prosecution case rested substantially on (i) the immediate utterances of the victim naming the assailants after being shot, heard by family members present
(PW 14 wife; PW 15 daughter-in-law), (ii) subsequent oral statements to relatives/police while being transported for treatment, and (iii) medical and forensic
corroboration of bullet injuries. The defence attacked visibility, investigative lapses, delayed Section 164 statements, and the alleged coercion surrounding the FIR.
Key issues before the High Court included: (a) admissibility and probative force of the victim’s spontaneous naming of the appellants (Sections 6, 7 and 32 of the
Evidence Act), (b) the effect of alleged coercion in FIR-writing and subsequent inconsistencies, (c) whether investigative irregularities undermined conviction,
and (d) appropriate compensation directions under the sentencing framework.
2. Summary of the Judgment
- Conviction upheld: The High Court dismissed CRA 219 of 2018, affirming life imprisonment under Section 302/34 IPC, along with convictions under Section 448 IPC and Section 27 of the Arms Act; sentences to run concurrently.
- Central evidentiary holding: The victim’s spontaneous naming of “Subho” and “Bhaghi” immediately after receiving the first bullet injury was held admissible as part of the same transaction under Sections 6 and 7 of the Evidence Act, and also treated as a statement relating to cause/circumstances of death under Section 32.
- Reliability assessment: Despite investigative lapses (non-production of an alleged written statement, inconsistencies regarding the grill gate covering, issues about blood/clothes), the Court found “overwhelming evidence” from PW 14–18, corroborated by medical testimony, sufficient to prove guilt.
- Defence arguments rejected: Lack of light/visibility was rejected on the logic that assailants could not have successfully fired at a target without mutual visibility; delay in Section 164 statements was explained by litigation and SIT process.
- Compensation order modified and strengthened: Fine compensation was modified to be equally divided between PW 14 and PW 15; additionally, if fine not paid within 30 days, the State was directed to pay Rs. 5 lakhs (split equally), while still recovering only the fine amount from the appellants per law.
3. Analysis
3.1 Precedents Cited
The High Court relied on this decision for the doctrinal explanation of Section 6 (res gestae) as an exception to hearsay, emphasizing
spontaneity and immediacy as safeguards against concoction. The judgment uses it to justify admitting the victim’s immediate naming of the appellants
through the testimony of PW 14 and PW 15, even though they did not see the actual trigger being pulled.
(b) Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130
Quoted via Dhal Singh Dewangan, this authority was invoked to illustrate how statements made at the first available opportunity “soon after” the incident
can supply missing links and qualify as res gestae. The High Court analogized the victim’s immediate utterance and the contemporaneous environment described by
PW 14 and PW 15 as completing the narrative of the transaction that culminated in death.
This case was cited to reinforce that a dying declaration is admitted on the principle of necessity and that proof depends on
examining the hearer (for oral declarations) or the scribe (for written declarations). It also supports adducing secondary evidence when the original recorded
dying declaration is lost/not available. The High Court used Sudhakar to neutralize the prosecution’s failure to produce the alleged written statement
recorded by police, by treating the oral testimony of PW 14, PW 15, PW 17 and PW 18 as legally competent proof of what the victim said.
Cited for the proposition that a dying declaration made to a non-official (including an “interested” relative) is not per se inadmissible,
though reliability must be tested against surrounding circumstances (including medical feasibility). The High Court employed this authority to accept the dying
declaration to PW 14 and PW 15 as admissible, while separately analysing credibility through medical evidence of consciousness and the timing of utterances.
Relied upon for the well-known principle that witness testimony may contain exaggerations or embellishments, and courts should “sift the chaff from the grain”
rather than reject the entire evidence. The High Court used this to discount later expansions (e.g., additional accused named subsequently) while preserving the
core, spontaneous identification of the appellants.
Cited to clarify the limited role of Section 164 CrPC statements: their purpose is to deter witness retraction and assist corroboration, not to mandate rejection
of in-court testimony. The High Court used R. Shaji to reject the argument that discrepancies between Section 164 statements and trial evidence should
automatically discredit PW 14 and PW 15.
3.2 Legal Reasoning
(i) Converting “hearsay” into “admissible evidence” without making it “direct evidence”
The Court drew a careful distinction: Sections 6 and 7 of the Evidence Act do not transform indirect evidence into direct evidence; they only remove the
admissibility barrier where a statement is so intimately connected with the fact in issue as to form part of the same transaction (Section 6) or to explain the
occasion/cause/effect/state of things (Section 7).
Applying this, the victim’s spontaneous shout naming the appellants immediately after being shot was treated as a natural, contemporaneous reaction—hence
admissible under Section 6. The victim’s plea to not fire further (as narrated by PW 14 and PW 15) was treated as describing the “state of things” and
environment during the transaction, hence admissible under Section 7.
(ii) The same utterance as dying declaration (Section 32) and why spontaneity mattered
The Court layered Section 32 reasoning over res gestae: the immediate naming of the appellants was treated as indicating the cause/circumstances of death.
Crucially, the Court ranked the “first” utterance as more reliable than later statements where more assailants were allegedly added, because the first statement
occurred at the inception of the crime with no time to exaggerate.
(iii) Fitness of the declarant: reconciling “pain”, “restlessness”, “disorientation”
The defence claimed the victim was unfit to identify. The Court relied on medical witnesses to hold the victim was conscious (though in pain). It treated pain as
not erasing memory; and reasoned that the first declaration was made immediately after the first bullet, before the injuries could overwhelm cognition.
The Court acknowledged medical references to “disorientation” but did not treat that as fatal given the timing and corroboration.
(iv) Visibility/light argument rejected by “mutual visibility inference”
The Court reasoned that if the assailants could “zero down” on the victim and successfully fire through the grill gate, the victim could equally see them; thus,
the absence of specific evidence about lighting did not create reasonable doubt. It also relied on the witnesses’ ability to narrate movements and objects
(victim gripping the dining table) as a factual indicator of sufficient visibility.
(v) Investigative lapses treated as non-fatal where core evidence is strong
The judgment repeatedly criticizes investigation (confusion about grill covering; non-production of the written statement; questionable later sample collection;
washing clothes at police instruction). Yet it holds such lapses do not “negate the conviction” given consistent eye/ear-witness narrative (PW 14–18) and medical
corroboration. This reflects an approach that separates (a) deficiencies that merely show poor investigation from (b) deficiencies that create reasonable doubt
about the occurrence/identity.
(vi) Procedural silence by the accused: absence of alibi and explanation
While noting PW 14 and PW 15 as eyewitnesses to the appellants’ presence at/around the scene, the Court observed it was “incumbent” on appellants to explain
presence or prove alibi; they denied presence and offered no alibi. The reasoning is not framed as a legal presumption of guilt, but as reinforcing inference in
the face of credible prosecution evidence.
(vii) Compensation engineering beyond Section 357 fine
The Court modified the trial court’s Section 357(1)(b) CrPC compensation direction by sharing fine proceeds between PW 14 and PW 15. More significantly, it
added an enforcement/relief mechanism: if the appellants fail to pay fine within 30 days, the State must pay Rs. 5 lakhs to PW 14 and PW 15 (equally), while
still empowered to recover only the fine amount from the appellants under applicable rules.
3.3 Impact
-
Strengthening prosecution reliance on “first utterance” identification:
The judgment demonstrates a structured way to rely on the earliest spontaneous naming as both res gestae (Sections 6/7) and dying declaration (Section 32),
while discounting later embellishments. Future trials may cite this approach to salvage core identification even where later versions expand the accused list.
-
Non-production of written dying declaration not necessarily fatal:
By leaning on Sudhakar v. State of Maharashtra, the decision signals that oral proof via hearers can sustain the point even when police fail to
produce an alleged written record—provided the Court is satisfied about making of the statement and surrounding reliability markers.
-
Investigative lapses: critique without acquittal:
The judgment reinforces a trend where courts censure investigative misconduct/ineptitude but do not allow it to automatically defeat an otherwise credible
prosecution case—important in politically sensitive crimes where investigation is often attacked as partisan.
-
Compensation jurisprudence with “State backstop”:
The direction requiring State payment upon default of fine (while limiting recovery from convicts to the fine itself) is likely to influence victim-compensation
practice by ensuring immediate relief to close family witnesses/victims of trauma, not merely conditional fine-based compensation.
4. Complex Concepts Simplified
- Res gestae (Sections 6 and 7, Evidence Act)
-
A narrow exception to the hearsay rule: statements so closely connected to the incident (same transaction) that they are treated as part of the event itself.
The logic is that spontaneous statements made during/just after the event are less likely to be fabricated.
- Hearsay vs admissibility
-
Hearsay is generally excluded because the original speaker is not in court for cross-examination. Sections 6 and 7 do not make hearsay “direct evidence”; they
only allow certain closely connected statements to be heard by the court.
- Dying declaration (Section 32, Evidence Act)
-
A statement by a person about the cause of their death or circumstances leading to it, admitted because the maker cannot testify. It can be oral or written;
recording by a Magistrate improves reliability but is not a legal condition for admissibility.
- Section 164 CrPC statement
-
A statement recorded by a Magistrate during investigation. It is mainly corroborative/contradictory material, not itself substantive proof of guilt. The court
primarily relies on in-court testimony, using Section 164 statements to test consistency.
- Section 313 CrPC examination
-
The stage where the accused is questioned about incriminating circumstances. Failure to raise a plausible defence (like an alibi) is not by itself proof of guilt,
but can strengthen inference when prosecution evidence is otherwise convincing.
- Compensation under Section 357 CrPC
-
Courts can direct that fine amounts be applied as compensation to victims. Here, the High Court modified the recipient allocation and additionally directed a State
payout if fine is not paid within time.
5. Conclusion
The judgment’s core contribution is its methodical treatment of a victim’s immediate naming of assailants as simultaneously (i) admissible res gestae evidence under
Sections 6 and 7 and (ii) a reliable oral dying declaration under Section 32, particularly where the first utterance is spontaneous and medically consistent with
consciousness. The Court’s approach also demonstrates that serious investigative shortcomings do not automatically produce acquittal when the evidentiary core is
otherwise credible and corroborated.
Finally, the decision is notable for its compensation architecture: it not only corrects distribution of fine-based compensation to include the daughter-in-law as a
co-recipient, but also creates a State-funded fallback if the convicts default—aimed at ensuring timely, practical relief in a homicide case involving severe trauma
to close family witnesses.