The main legal point established in the judgment is the reliance on dying declarations and medical evidence to prove guilt for murder under IPC Section 302, 34, and the consideration of legal principles related to multiple dying declarations.

JUDGMENT :

Jay Sengupta, J.:

1. This appeal is directed against a judgment and order dated 9th March 2003 passed by the Learned Additional Sessions Judge, Fast Track Court, Dinhata, Cooch Behar in Sessions Case No. 94/2003, Sessions Trial No. 3/Nov/ 2003, thereby convicting the appellants under Sections 302, 498A read with Section 34 of the Indian Penal Code and sentencing each of them to life imprisonment and to pay fine of Rs. 10,000/- in default to suffer for the rigorous imprisonment for 2 years for the offence under Sections 302, 34 and to rigorous imprisonment for 3 years and to pay fine of Rs. 3000/-, in default to suffer rigorous imprisonment for 6 months for the offence under Sections 498A, 34. The appellant no. 1 was the husband of the victim/deceased and the appellant no. 2 was her mother-in-law.

2. On 3rd October 2002 at about 20:35 hours, PW 19, a Sub-Inspector of Police lodged a suo motu First Information Report against the appellant. It was alleged that one Jyotsna Burman (22 years), who was admitted in hospital on 17th September 2002, succumbed to her injuries a 28th September 2002. It was alleged that the victim was married to the appellant no. 1 about two years ago and since then, she was subjected to mental and physical torture by the appellants. The victim made a dying declaration before an attending medical officer at Sitai BPHC and also as recorded by a Learned Magistrate at M.J.N. S.D. Hospital, Cooch Behar. In her dying declaration at Sitai BPHC, the victim stated that the appellants had poured kerosene on her body and set her on fire on 17th September 2002 at 18:00 hours.

3. Investigation commenced. The post mortem report gave the cause of death as due to shock from the stated burn injury, which was ante-mortem in nature. Witnesses were examined and relevant documents were seized. A charge sheet was submitted and finally on 5th November 2003, charges were framed against the appellants under Sections 498A and 302 read with Section 34 of the Indian Penal Code.

4. The prosecution examined as many as 20 witnesses and relied on three dying declarations, among other things, to prove its case. The defence case appeared to be a denial of the prosecution case.

5. PW 1 was a witness to the first dying declaration (Ext.1) of the victim lady before a doctor (PW 16) at Sitai BPHC. But, in the cross-examination he stated that no deposition was made in his presence. PW 2 was another witness to the first dying declaration recorded by a doctor. She too stated that the statement was recorded in their presence. PW 3 another witness to the first dying declaration deposed that although she was present at the time of examination of the patient, she did not listen to what the victim stated. But, she admitted her signature on the said dying declaration. PW 4 was a doctor who examined the victim lady at about 1:10 a.m. at Mathabhanga S.D. Hospital on 18.09.2002. He found her mentally fit to give a dying declaration. He deposed that she was able to comprehend the question put and was fit to answer. The BDO recorded the second dying declaration (Ext. 2) of the victim lady at Mathabhanga S.D. Hospital in the midnight of 17.09.2002/18.09.2002 and PW 4 (doctor) signed on the same as a witness. His cross-examination was declined. PW 5 was a staff nurse at the MJN Hospital, Cooch Behar. She was a witness to the dying declaration recorded before the Learned Executive Magistrate (PW 18). This was in fact the third dying declaration (Ext. 3) given by the victim lady. PW 6 was the brother of the victim lady and was a witness to the second as well as the third dying declarations. He was declared hostile. He deposed that owing to his disturbed mental condition, he could not follow the statement of the victim at the time of recording of the second dying declaration. Even in respect of his signature on the third dying declaration he deposed that he had failed to listen to what the victim had stated. PW 7 was the mother of the victim lady who was a