The admissibility and reliability of a dying declaration, the significance of eyewitness testimony, and the sufficiency of evidence to establish a charge beyond a reasonable doubt.

JUDGMENT :

Bivas Pattanayak, J.

1. The instant appeal is directed against the judgment and order dated 23.05.2008 and 26.05.2008 respectively passed by Additional Sessions Judge, Special Court, Dakshin Dinajpur at Balurghat in Sessions Case No.309 of 2004 (Sessions Trial No. 39 of 2004) convicting the appellant for commission of the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.3,000/-, in default, to suffer imprisonment for one year more. By the self-same judgment the other accused persons namely Pratima Kundu and Mahadev Kundu were found not guilty for offence punishable under Sections 498A/302/34 of the Indian Penal Code and were acquitted from the charges levelled against them.

2. The prosecution case as alleged against the appellant is to the effect that he was married to the deceased Rupa Kundu daughter of PW1 as per Hindu rites and customs about 3/4 years ago (from the date of occurrence). After one year of marriage she was subjected to mental and physical torture by the appellant-husband and other in-laws in relation to demand of money. On 03.03.1998, in the evening the appellant along with other in-laws inflicted torture upon her and the appellant poured kerosene oil on the victim and set her on fire. PW1 was informed of the incident by his grandson Chanchal and thereafter he along with his wife and other family members went to Balurghat Hospital where the victim was admitted with burn injuries and on query she stated that the appellant poured kerosene oil and set her on fire. Upon such fact FIR was registered being Hili PS case no.32 of 1998 dated 05.03.1998 under Section 498A/326/307/34 of the Indian Penal Code and was put into investigation. On expiry of the victim on 13.03.1998, Section 302 of the Indian Penal Code was added.

3. Upon conclusion of investigation police submitted charge sheet against the appellant and two others under Section 498A/326/307/302/34 of the Indian Penal Code.

4. After completion of legal formalities the case was committed to court of learned District & Sessions Judge, Dakshin Dinajpur at Balurghat, which was transferred to the court of Additional Sessions Judge, Special Court, Dakshin Dinajpur at Balurghat for trial and disposal.

5. Charge was framed under Section 498A/302/34 of the Indian Penal Code against the appellant and two other accused persons namely Mahadev Kundu and Pratima Kundu. The appellant pleaded not guilty and claimed to be tried.

6. The prosecution in order to bring home the charge has examined as many as 14 witnesses and exhibited number of documents. The defence did not adduce any evidence in its support. The defence case appearing from the tenor of cross-examination and answers given during examination under Section 313 of the Criminal Procedure Code is one of innocence and false implication.

7. On conclusion of trial and upon consideration of the materials and evidence on record the learned trial judge by its impugned judgment and order dated 23.05.2008 and 26.05.2008 convicted and sentenced the appellant as aforesaid. Hence the present appeal.

8. Mr. Partha Sarathi Bhattacharyya, learned advocate appearing for the appellant submitted at the outset that the formal FIR does not specify the date and time of receipt of information at the PS which altogether makes the prosecution case doubtful. Though as per the prosecution the victim, who survived for 10/11 days of the incident, made a dying declaration but the manner and the circumstances relating to recording of such dying declaration are riddled with suspicion and improbability. PW11, Dr. Gautam Mukherjee, the attending doctor has categorically deposed that the general condition of the patient was too low to make the dying declaration and in cross-examination he has stated that the victim sustained100% burn injuries and the balance of a victim/patient is lost in such a case. From such deposition it is quite evident that the victim was