JUDGMENT :

Joymalya Bagchi, J.

1. Appellants have assailed the judgment and order dated 25.06.2008 and 26.06.2008 passed by the learned Additional Sessions Judge, Fast Track Court no. 4, Barrackpore, North 24 Parganas in Sessions Case No.24(3)/2005 convicting them for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life each and to pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year more.

2. Prosecution case, as alleged against the appellants is to the effect that Rita was married to Santosh on 09.02.2003. Subhas was the husband of her sister-in-law. At the time of marriage, gold and silver ornaments, brass utensils and a cash of Rs.50,000/- were given as dowry. After marriage the appellants and other in-laws including her father-in-law Jagadish used to subject the housewife to torture over further demands of dowry. Several times attempts were made to settle the matter peacefully but to no avail. Finally, on 18.05.2004 victim-housewife suffered burn injuries at the matrimonial home. Local people including PWs 3, 5 and 6 shifted her to hospital. At the hospital victim made dying declaration before the treating doctor namely Dr. Bhabaranjan Sikdar (PW2) and in presence of staff nurse (PW 8). Hearing the news her father Shambhu Das (PW 1) came to the hospital where she made another statement to him. On the same day victim was shifted to R G Kar Medical College and Hospital where she breathed her last at 6.10 p.m.

3. In the meantime Shambhu Das (PW1) lodged written complaint at Jagaddal P.S being Jagaddal P.S case no. 188 dated 18.5.2004 under sections 498A/36/307 IPC against the appellants and other in-laws including father-in-law Jagadish Das. After the death of the lady, section 302 IPC was added.

4. In conclusion of investigation charge sheet was filed and charges were framed under sections 302/34 IPC against the appellants and other in laws including father-in-law Jagadish Das. During trial, her father-in-law Jagadish Das and sister in law Anita Das expired. In course of trial, prosecution examined 13 witnesses and exhibited a number of documents including the dying declaration (Ext 5).

5. In conclusion of trial, learned trial Judge convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order co-accused Karan Das i.e. elder brother-in-law was acquitted.

6. Mr. Bhattacharya for the appellants submits the prosecution case is based on the dying declarations of the victim (Ext 5). Victim had suffered 95% burn injuries and was not in a position to make statement before the treating doctor Dr. Bhabaranjan Sikdar (PW2). Rupa Mukherjee, staff nurse (PW8) who is said to be been present when dying declaration was recorded is silent with regard to its contents. Her signature also does not appear on the document. PW 2 admitted before police earlier the lady had only implicated her father-in-law Jagadish Das and not the appellants. Hence, the written dying declaration even if believed, appears to be an embellished attempt to implicate the appellants apart from her father-in-law. In support of his contention he refers to PW 6 Laxmi Das who took the victim to hospital. The said witness stated that the victim had implicated her father in law alone in the incident. He also refers to the FIR lodged by the father of the deceased, PW1. In the said report PW1 stated that he came to know from his daughter that her father-in-law had set her on fire. Hence, he prays for acquittal.

7. Mr. Swapan Banerjee, learned Senior Government Advocate for the State submits PW2 is an disinterested witness. He was the treating doctor and best witness to depose with regard to competence of the victim to make dying statement. Dying statement was exhibited as Ext. 5 and implicated the appellants. PW 5 Jugraj Das who accompanied the victim to the hospital also stated the victim told him that accused persons had set h