Dying declaration unreliable, HC acquits 3 in 2009 ‘murder’
Kolkata: Observing that a dying declaration which does not inspire confidence cannot be the sole basis for conviction, the Calcutta High Court has acquitted three persons who were serving life imprisonment for the alleged murder of a woman by setting her on fire in 2009. The court found the dying declaration of the victim unreliable and unfit to be the sole basis for conviction.
A division bench comprising Justice Debangsu Basak and Justice Prasenjit Biswas held that a dying declaration can be the sole basis of conviction only if it is “voluntary, truthful and made when the declarant was in a fit physical and mental condition.” The case stemmed from an FIR lodged at Patrasayer Police Station in Bankura district on July 10, 2009, by the victim’s father. He alleged that his daughter, Tumpa Mallick, who had married Ganesh Mallick in 2005, was harassed by her in-laws.
On July 6, 2009, in the absence of her husband, her father-in-law Madan Mallick, brother-in-law Tapan Mallick and sister-in-law Ranu Mallick allegedly assaulted her, poured kerosene on her and set her on fire. She was hospitalised and gave a statement to doctors on July 10, which was treated as a dying declaration.
Tumpa was discharged on August 27, 2009, but was readmitted on September 14 due to infection and died on September 24. The Additional Sessions Judge, Bishnupur, convicted the three accused under Section 302 of the IPC on September 26, 2019, and sentenced them to life imprisonment. The High Court noted several infirmities: the victim’s statement was not recorded by a magistrate, no medical certification of her fitness was produced and her mother admitted to discussing the content of the statement with her afterward—raising the possibility of tutoring. Moreover, multiple prosecution witnesses, including the victim’s husband, stated the fire was accidental, caused by an oil lamp while she was changing clothes.
The court held that the defence—presented under Section 313 of the CrPC—was plausible and was not properly considered by the trial court. The bench concluded that once the dying declaration is excluded, no reliable evidence remained to sustain the conviction. The accused were directed to be released forthwith unless wanted in any other case.
