Calcutta High Court released murder convict considering variance in dying declaration

The Division Bench of Calcutta High Court comprising Hon’ble Mr. Justice Joymalya Bagchi and Hon’ble Mr. Justice Ajay Kumar Gupta recently released the Murder accused/appellant who was convicted on the basis of dying declaration and held that “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”

BRIEF FACTS OF THE CASE

It was alleged in the complaint / F.I.R. that the deceased was murdered by one Bhondulal and appellants in a broad day light by inflicting a serious blow behind his ear with a sharp edged weapon. The Victim was rushed to Hospital where he died. In conclusion of investigation, charge-sheet was filed. Charges were framed against the appellant and Bhondul @ Subhash Ghosh under sections 302/34 IPC. To prove its case prosecution examined 22 witnesses and exhibited a number of documents. During trial, the said Bhondul @ Subhash Ghosh expired. Trial was concluded and appellants were convicted and sentenced by learned Trial Court.

Some of the Prosecution Witness became hostile during the course of Trial. Father, Uncle, Wife and Co-villager all of them deposed hearing the news they came to the spot. Victim told them Parimal had restrained him while Bhondul assaulted. Victim was taken to Pratapnagar Hospital and thereafter to Shaktinagar Hospital where he was declared dead. P.W. 18, Dr. Prasanta Sarkar is the doctor who treated the victim at Nabadwip Hospital. He deposed according to patient party one Bhondul and three others had injured him with a Da at 3 PM near Lakshmipur Post Office.

CONTENTION OF APPELLANTS

Learned Counsel for the appellant referring to the aforesaid evidence submitted there is no eye-witness to the incident. Role of the appellant in the dying declaration as narrated by various witnesses are at variance to one another. His name did not transpire in the injury report prepared by Nabadwip Hospital. Accordingly, he prayed for acquittal.

CONTENTION OF THE STATE

Learned Counsel for the State submitted that the appellant was assaulted at Lakshmipur. Soon after the incident he rushed to the police outpost and made dying declaration before certain Prosecution witnesses. Victim made dying declaration to them implicating the appellant in the crime. FIR was promptly recorded which also disclosed the role of the appellant. Hence, prosecution is proved.

HON’BLE COURT’s OBSERVATIONS

The Hon’ble Court after perusing the records, evidence and statements observed that there is variance/inconsistency in statements of the prosecution witnesses regarding dying declaration and held that :-

“23. As discussed earlier, P.W. 7 stated the victim only named Bhondul as the assailant. Role of the appellant as per P.Ws. 6 and 8 is also not consistent. While P.W. 6 deposed victim stated both Bhondul and appellant assaulted, P.W. 8 claimed victim told them appellant restrained him while Bhondul assaulted. 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.”

Case Title :- Parimal Sarkar Vs. State of West Bengal

Case no. :- C.R.A. 349 of 2019

Order date :- 25.04.2023