The judgment establishes the importance of scrutinizing the quality of dying declarations, including the fit state of mind of the deceased and the intrinsic truthfulness and reliability of the statements, in determining their admissibility and reliability as evidence.

JUDGMENT :

Joymalya Bagchi, J.

The appeal is directed against the judgment and order dated 18/20.08.2014 passed by the learned Additional Sessions Judge cum Judge, Special Court (E.C Act), Hooghly in Sessions case no. 111/2002 (Sessions Trial No. 17 of 2002) convicting the appellants for commission of offence punishable under Sections 498A/304B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for one month for the offence punishable under section 498A IPC and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/- each, in default to suffer rigorous imprisonment for six months for the offence punishable under section 304B IPC. Both the sentences shall run concurrently.

2. The prosecution case, as alleged, against the appellants and one Annapurna Nandi (since deceased) is to the effect that the victim Sipra Ash (nei Sar) was married to Pannalal Ash on 5th February 1999 according to Hindu rites and customs. At the time of marriage dowry to the tune of Rs. 30,000/- in cash, gold ornaments weighing about 11 bhori, almirah etc. were given to the appellants. After few days the appellants subjected Sipra to mental and physical torture on further demands of money. Tarini Charan Sar, P.W. 1, father of the victim and others tried to settle the matter but failed. Victim was subjected to continuous torture at the matrimonial home but she continued to stay there on the expectation that things would improve in future. On 24.10.1999 at around 8 am P.W. 1 received information that his daughter had been admitted with Bijoy Chand Hospital in serious condition. Thereupon he and others went to the hospital and found his daughter was admitted with burn injuries all over her body. His daughter told him that the appellants along with Annapurna had poured kerosene oil on her body and set her on fire. Local people had admitted his daughter to the hospital. Over such issue, Tarini Charan lodged written complaint with Dhaniakhali P.S resulting in registration of Dhaniakhali P.S Case no.165 dated 24.10.99 under sections 498A/326/307 IPC against the appellants and one Annapurna Nandi. On the next day the victim died. In conclusion of investigation, charge sheet was filed under sections 498A/304B/34 IPC. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Hooghly for trial and disposal. In the meantime, Annapurna died and charges were framed against the appellants under sections 498A/34 IPC and under sections 304B/34 IPC. The appellants pleaded not guilty and claimed to be tried.

3. In the course of trial, prosecution examined as many as ten witnesses and exhibited a number of documents.

4. Subsequently, charge was altered and sections 302/34 IPC was also added to the array of charges. Upon alteration of charge, the prosecution witnesses were cross-examined. In course of trial prosecution made a prayer for examination of one Dr. Robert Gregry Lakra and Sri Nazimuddin Mallick, executive magistrate who had recorded the dying declaration of the victim. Such prayer was allowed by the trial court on 26.11.2005. Thereafter repeated summons were issued upon the said witnesses to appear and depose before the court. However, both the witnesses could not be traced. Under such circumstances, the summons were sought to be served through the Principal Secretary, P & AR Government of West Bengal, Director of Health Services and even through the Chief Secretary, Government of West Bengal. Such herculean efforts were taken by the trial judge to ensure attendance of the aforesaid public servants whose examination were necessary for a just decision of the case (as they were involved in recording the dying declaration of the victim) bore some fruit. Presence of N.M. Majumder, executive magistrate could be ensured and the dying declaration was proved from t