Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Cal) 390

IN THE HIGH COURT AT CALCUTTA
DEBANGSU BASAK, PRASENJIT BISWAS, JJ.
Madan Mallick & Ors. - Appellant
Versus
The State of West Bengal - Respondent
C.R.A. 661 of 2019
Decided On : 11-07-2025

Advocates:
Advocate Appeared:
For the Appellants : Mr. Moinak Bakshi, Mr. Niketa Bhattacharjee
For the State : Mr. Rana Mukherjee, Ld. APP, Mr. Pravas Bhattacharya

Dying declarations can serve as the sole basis for conviction if they are proven to be reliable, but lack of corroboration or inconsistencies can lead to acquittal.

Headnote:(A) Indian Penal Code, 1860 - Section 302 - Dying declaration - Accused convicted on basis of dying declaration - Conviction appealed based on alleged inconsistencies in evidence and reliability of the dying declaration - Concern raised over absence of a magistrate during declaration - Court finds the prosecution failed to establish the charges beyond reasonable doubt. (Paras 1, 26, 27)

(B) Criminal Procedure Code, 1973 - Section 437A - Provisions regarding bail bonds - Acquittal includes refund of fine and immediate release if not wanted in other cases. (Paras 28, 29)

Facts of the case:
The appellants were convicted for murder after the victim, a married woman, succumbed to injuries sustained from self-immolation amidst ongoing torture by her in-laws and husband, following a history of domestic abuse. (Paras 2-4)

Findings of Court:
The dying declaration was deemed unreliable, and the evidences did not inspire confidence. Conviction was not substantiated by credible evidence, and appellants are to be acquitted. (Paras 25-26)

Issues: The core issues revolved around the validity and reliability of the dying declaration, the presence of inconsistencies in witness statements and the evidential burden on prosecution to prove guilt. (Paras 6, 11)

Ratio Decidendi: The court emphasized that a dying declaration can be the sole basis for conviction if proven to be true and voluntary; however, in this instance, credibility was lacking, resulting in a failure to meet the standards of proof required for conviction. (Paras 22-24)

Result: Appeal allowed; conviction and sentence set aside, appellants acquitted of charges. (Paras 27-29)

JUDGMENT :

Prasenjit Biswas, J.

1. The judgment and order of conviction dated 26th September, 2019 and 27th September, 2019 passed by the learned Additional Sessions Judge, Bishnupur, in connection with Sessions Case No. 5(11)2010, [Sessions Trial No. 1(11)2010] is assailed in this appeal.

2. By passing the impugned judgment, these appellants were found guilty for commission of offence punishable under Section 302 of the Indian Penal Code and they were sentenced to suffer life imprisonment along with a fine of Rs. 5000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months each.

3. Being aggrieved and dissatisfied with the said impugned judgment and order of conviction the present appeal is filed at the behest of the appellants.

4. The instant case was started on the basis of a complaint lodged by the de-facto complainant stating, interalia, that the marriage of his daughter Tumpa Mallick with Ganesh Mallick was solemnized according to Hindu Rites and Customs on 02.03.2005. After marriage his daughter’s father in law namely, Madan Mallick and brother-in-law namely, Tapan Mallick started torturing upon the victim and a ‘salish’ was held on 14.08.2013. The torture upon the victim was increased after the marriage of her brother-in-law. On 05.07.2009 the wife of Tapan Mallick namely, Ranu Mallick gave false blame upon the victim for theft and uttered abusive languages upon her and as per their instructions the father-in-law of the victim stopped providing meal to her. On 06.07.2009 at about 6 A.M. in the absence of Ganesh Mallick (husband of the victim), the father-in-law and brother-in-law and his wife caught hold of the victim and assaulted her mercilessly. At around 8 A.M. the victim tried to commit suicide by pouring kerosene oil and set fire on her person. The de-facto complainant got information at about 10 A.M. over phone from the neighbour of parent-in-laws of her daughter and he reached at the spot at 11 A.M. The victim was shifted to Bankura Medical Hospital. Thereafter, this de-facto complainant lodged complaint before the police station and over the complaint of the de-facto complainant, a case being Patrasayer P.S. Case No. 09 dated 10.07.2009 was started under Section 498A of the Indian Penal Code. Thus, the criminal law was set in motion. Police investigated the case and submitted charge-sheet against the accused persons under Section 498A/302/34 of the Indian Penal Code.

5. Charge was framed by the Trial Court under Section 498A/302/34 of the Indian Penal Code. In this case, 17 (seventeen) witnesses were examined by the side of the prosecution and documents and seized articles were marked as exhibits.

6. Mr. Moinak Bakshi, learned Advocate appearing on behalf of the appellants said that there are apparent contradictions and omissions in the statements of the witnesses and as such, the evidences brought on record by the side of the prosecution cannot be relied upon. It is said by the learned Advocate that the conviction was made by the learned Trial Court solely relying upon the dying declaration of the victim dated 10.07.2009. It is said by the learned Advocate that after making the dying declaration the victim was discharged from the hospital on 27.08.2009 and started to reside at her parental house. When the burnt injuries got infected due to lack proper care and post release treatment the victim was once again admitted in the hospital on 14.09.2009 and ultimately she died on 24.09.2009. It is said by the learned Advocate that due to unknown reason no statement was recorded by the investigating agency between 14.09.2009 and 24.09.2009 as to how the injuries got infected and whether the victim wanted to give any declaration. As per submission of the learned Advocate that in view of discharge of the victim from the hospital after making dying declaration on 27.08.2009 the statement made by her cannot and could not be taken and/or treated as dying declaration in the facts and circums