The dying declaration was upheld as admissible and reliable, and the accused's avoidance of answering questions during the trial was considered in light of the principle underlying the admissibility of dying declaration and the responsibility of the accused to explain the situation known only to him.

Sahidullah Munshi, J.

1. This appeal against the judgment and order of conviction dated 11th September, 2008, passed by the Additional Sessions Judge, 2nd Court, Suri, Birbhum, in Sessions Trial No.1 of 2005, is at the instance of the accused, Sk. Saber Ali @ Sk. Apel, whereby the accused/appellant was found guilty of offence under Sections 498A/302, Indian Penal Code and has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand) only, in default to pay fine, suffer simple imprisonment for six months for the offence under Section 302 of Indian Penal Code and further sentence to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- (Rupees One Thousand) only, in default to suffer simple imprisonment for two months more for the offence under Section 498A of the Indian Penal Code. The aforesaid Sessions case arose from a written complaint by Majed Ali (PW 1) on 6th December, 2005 on the basis of which formal FIR (Ext. 11) was registered by Suri Police being FIR No.41/05 dated 30th March, 2005 under Sections 498A/326/307, Indian Penal Code.

2. In course of investigation Section 302 was added by the Investigating Officer subsequently and the case was committed for trial before the Sessions Judge, Suri, District – Birbhum. After the FIR was registered, investigation proceeded and Police examined available witnesses under Section 161 of the Criminal Procedure Code.

3. The de facto complainant, Majed Ali stated in his written complaint that about nine years ago marriage took place between his daughter Ms. Sajema Bibi with Saber Ali, son of Alauddin Sk. of Dhalla according to Muslim rites and customs. After marriage both lived happily and resulting thereby two children were born. On various demands physical and mental tortures were inflicted upon the victim, Sajema Bibi and complaints were made at different levels. On 29th March, 2005, the accused put fire on the body of the complainant’s daughter with kerosene oil which was informed to him over telephone by some miscreants and came to know the truth when he reached Suri Sadar Hospital where the victim was admitted. Certain dates in this matter are very relevant, that is to say, the alleged incident of burning took place on 29th March, 2005 at 8:00 p.m. On 30th March, 2005 at 12:25 hours FIR was lodged by the de facto complainant under Sections 498A/326/307 of the Indian Penal Code added with Section 302, IPC subsequently. On 30th March, 2005 in between 3:00 and 3:30 p.m. alleged dying declaration of the victim was recorded by the learned Executive Magistrate, Suri Sadar, Birbhum. On 4th April, 2005, victim died at hospital at about 10:20 p.m.

4. Record reveals that the appellant surrendered before the learned Court below on 4th April, 2005 and thereafter, the case was committed to the Court of learned Sessions Judge wherefrom the same was transferred to the Court of Additional Sessions Judge, 2nd Court, Suri, Birbhum. Time to time, his prayer for bail was rejected.

5. As many as 18 witnesses were produced by the Prosecution and in short, their depositions are noted below:

“PW 1, Majed Ali, the de facto complainant deposed that Sajema Bibi, victim, was his daughter and was admitted to hospital after having a burn injury. His daughter died on 22nd Chaitra, 1411 B.S., that is, seven days after her admission at the hospital. He deposed – “My daughter since deceased told me that her husband setting fire by pouring kerosene on her.” He further deposed – “during her life time torture was inflicted on her owing to reason for more dowry which my daughter did convey to me. and as a result of failure to meet their demand she was persecuted. Perhaps four years before of my daughter’s death I lodged a written complaint before Suri P.S. about cruelty of torture which my daughter had to face. I also informed about to that to the member named Fatik Bayan of Alunda Gram Panchayat, who gave me a written document with an advi