A dying declaration, though admissible in evidence, must be trustworthy, free from every blemish, and inspire confidence. The absence of a medical certificate regarding the deceased's mental fitness, the absence of the deceased's signature or LTI, the absence of an endorsement that the statement was read over and explained to the deceased, and the fact that the statement was not recorded in question-answer form are all factors that can affect the reliability of a dying declaration.

Shib Sadhan Sadhu, J.

The Instant Criminal Appeal is directed against the judgment and order of conviction passed in Sessions Trial No. 1(3) of 2009 arising out of Sessions Case No. 18/2009 by the Ld. Additional Sessions Judge, Fast Track Court No.4, Barrackpore, North 24-Parganas on 05.05.2011/06.05.2011 holding the appellants guilty of the offence u/s 302 of the Indian Penal Code read with Section 34 I.P.C. and sentencing them to suffer imprisonment for life

2. The relevant fact of the prosecution case, sans unnecessary details, is as follows: On 01.01.2008 at about 07.15 hours the de facto complainant Prasanta Dey lodged a written complaint before the I.C. Naihati P.S. to the effect that on 31.12.2007 at about 6 P.M. his father, mother and sister abused him and drove him out. After proceeding to a bit distance from their house, he heard cry raised by his wife Rani Dey and he returned home and saw his wife was in flame and his father, mother and sister were trying to douse by pouring water. He then took his wife to Naihati hospital by a van rickshaw. On the way to hospital his wife stated to him that his father, mother and sister poured oil on her person and set her on fire. It has been further stated in the complaint that his victim wife Rani was lying admitted in Gandhi Memorial Hospital, Kalyani and she was struggling for life.

3. On the basis of such complaint Naihati P.S. Case No.01/08 dated 01.01.2008 u/s 498A/325/326/307/34 I.P.C. was registered. That case was investigated into and on completion of investigation charge sheet was submitted u/s 498A/325/326/307/34 IPC and also u/s 302 I.P.C. Thereafter, the case was placed for trial before the Ld. Additional Sessions Judge, Fast Track Court No.4, Barrackpore, North-24-Pareganas who framed charge u/s 498A/302 of the I.P.C. read with Section 34 of I.P.C. against the present appellants and after conclusion of the trial he held the appellants guilty and convicted them as aforesaid.

4. Prosecution examined 11 witnesses in all in this case. Out of those witnesses P.W.1 Prasanta Dey is the husband of the deceased and the defacto complainant, P.W.2 Gora Dey is the scribe of the said complaint, P.W.3 Kalo Pal; P.W.4 Ujjala Biswas and P.W.5 Arati Barma are the neighbours; P.W.6 is Dr. Utpal Kumar Nandy who held the post mortem, P.W.7 Supriya Dutta is the staff nurse of J.N.M. Hospital, Kalyani in whose presence the I.O. recorded the dying declaration of the deceased, P.W.8 Ganesh Saha and P.W.9 Biswajit Debnath are the witnesses to the seizure; P.W.10 is A.S.I. of Police Rajesh Kumar Tiwari who registered the case on receipt of the complaint and P.W.11 S.I. of Police Rabindra Chandra Bhoumik is the Investigating Officer of this case.

5. We have heard Mr. Siladitya Sanyal appearing on behalf of the appellants while the respondent State has been represented by the Ld. Prosecutor Mr. Manjit Singh.

6. Ld. Advocate Mr. Sanyal appearing for the appellants has taken us through the oral testimonies of all the P.W.s. He has submitted that in the instant case the conviction is solely based on the Dying Declaration allegedly made by the deceased which is vulnerable and has no sanctity in the eye of law. He pointed that there is no signature or L.T.I. of the victim in the Dying Declaration nor it bears any endorsement to the effect that it was read over and explained to her after recording the same and she admitted its correctness. Further, it is devoid of medical certificate regarding mental fitness of the deceased to make such statement when the same was recorded although the Doctor had put his signature on it. The statement was not recorded in question-answer form and there is nothing to show how the I.O. was satisfied that the deceased was in a fit state of mind to make such statement. So when admittedly the deceased sustained 90% burn injuries she could not be expected to make statement at stretch. Therefore, according to him the alleged Dying Declaration suffers from basic infirmit