Dying Declaration Can Be Sole Basis Of Conviction Only When It Is Consistent: Calcutta High Court Sets Aside Murder Conviction

The Calcutta High Court recently set aside the conviction of a murder accused on the ground that the dying declaration was doubtful. 

The division bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta noted:

“Dying declaration can be the sole basis of conviction provided the same is consistent. When the contents of the dying declaration as per the prosecution witnesses are at variance to one another vis-a-vis the role of the appellant, it would be hazardous to rely on such evidence to come to a finding of guilt against him.”

The appellant-accused was convicted under Section 302 and Section 34 of IPC by the Trial Court and sentenced to imprisonment for life and a fine of Rs. 5,000/- on April 2, 2019 and April 3, 2019 respectively. The appellant approached the High Court assailing the impugned judgment and order of the Trial Court.

The counsel appearing for the appellant submitted that there was no eye-witness to the incident. It was further contended that role of the appellant in the dying declaration as narrated by various witnesses were at variance to one another and therefore, he prayed for acquittal.

The court noted that the prosecution case entirely hinges on the oral dying declaration of the victim.

“P.Ws. 6, 7, 8, 11, 13, 14 and 20 deposed victim made statement to them. P.Ws. 6, 7 and 8 (police officials) who were present at Lakshmipur Camp (place of incident). P.W. 6 stated victim came to the police camp in injured condition. He was shouting. He told them Parimal (appellant-accused) and Bhondul (co-accused) assaulted him. P.W. 8 stated victim told them Parimal had restrained him while Bhondul assaulted. But P.W. 7 stated victim had only named Bhondul,” said the court.

The court noted that the version of the Police Officials (P.Ws. 6, 7 and 8) with regard to the contents of the dying declaration was not consistent.

It was further pointed by the court that P.W. 9 had come to the spot at the time when other witnesses i.e. P.Ws. 11, 13, 14 and 20 had arrived at the spot. As per P.W. 9 victim did not make dying declaration when he arrived at the spot.

The court noted that the evidence of the P.W. 9 contradicted the witnesses who claimed the dying declaration was made in their presence when they came from the village after hearing the incident which raised doubt with regard to the credibility of their version that the dying statement was made in their presence.

It was further noted by the court that the name of the appellant was absent in the injury report submitted by the doctor (P.W. 17) who treated the victim.

“The aforesaid circumstance strikes at the root of the prosecution case that the victim had made a subsequent dying declaration to his relations and co-villagers who rushed to the spot after hearing the incident. Hence, I do not lend credence to their versions. Even if one holds that the evidence of P.Ws. 6, 7 and 8 with regard to the dying declaration are plausible, vis-à-vis the principal assailant Bhondul, deposition of the said witnesses are at variance with regard to the role of the appellant,” said the court.

Thus, the court acquitted the appellant by giving him the benefit of doubt.

Case Title: Parimal Sarkar v. State of West Bengal

Citation: 2023 LiveLaw (Cal) 118

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