A dying declaration can be the sole basis of conviction if it is found to be true and voluntary, and if the court is satisfied that the statement is reliable and not the result of tutoring, prompting, or imagination.

JUDGMENT :

(Joymalya Bagchi, J.) :

1. Appellant has assailed judgment and order dated 12.12.2018 and 13.12.2018 passed by the learned Additional Sessions Judge, Bolpur in Sessions Trial no. 4 (November) of 2017 arising out of Sessions Case no. 81 of 2017 convicting the appellant for commission of offence punishable under section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-in default to suffer further imprisonment of one year.

Genesis of the case:-

2. Profile of the prosecution case discloses the unfortunate death of the homemaker Hena Bibi at her matrimonial home. On 20.5.2017 appellant poured kerosene oil on Hena and set her on fire. She suffered severe burn injuries. Local people rushed her to Bolpur SD Hospital in the ambulance of PW14. A telephonic message was received at the local police station that one Hena Khatoon had been admitted with severe burn injuries and her dying declaration was to be recorded. PW10 ASI Anukul Mal who was on mobile duty, on instructions from I/C, Bolpur Police Station reached the hospital. Dalim Sarkar (PW2), another police officer also went to the hospital. Dr. Atreyi Chatterjee (PW8) recorded her dying declaration in presence of the staff nurse Monimala Das (PW9) and the aforesaid police personnel. Thereafter, the victim was shifted to Burdwan Medical College and Hospital where she breathed her last.

3. An unnatural death case being Burdwan PS UD case no. 681 of 2017 dated 21.5.2017 was registered.

4. On 23.5.2017 a written complaint was received from her father, Sk. Montu (PW1). It was alleged in the complaint that Hena Bibi had been married to the appellant. Marriage was registered by a ‘Kazi’. At the time of marriage Rs. 1 lakh, gold ornaments and other arcticles were given to the appellant. Three months after marriage appellant and other in-laws subjected Hena to torture. They pressurised Hena to bring a TVS Apache motor cycle. Sk. Montu gave Rs. 60,000/-in cash and promised to pay Rs. 34,000/-after two months. After lapse of two months torture increased. On 19.5.2017 about 5 a.m the accused persons had tied the hands and legs of Hena and set her on fire. Local people took her to Bolpur Hospital. Thereafter, she was shifted to Burdwan Medical College and Hospital where she expired on 21.5.2017. As he was busy for treatment of his daughter, there was delay in lodging FIR. Written complaint was treated as FIR and Bolpur P.S case no. 149 of 2017 dated 23.5.2017 under sections 498A/304B/34 IPC was registered for investigation against the appellant and the in-laws. During investigation the dying declaration was seized and charge sheet was filed. Charges were framed against the appellant and other accused namely Somir Sk., Tuslima Bibi, Sk Kalo @ Siraj and Fensi Bibi under sections 498A/304B/302/34 IPC. The accused persons pleaded not guilty and claimed to be tried.

5. In the course of trial, prosecution examined 17 witnesses to establish its case and exhibited a number of documents.

6. The defence of the appellant was one of innocence and false implication.

7. In conclusion of trial, the trial court by the impugned judgment and order convicted and sentenced the appellant as aforesaid. Co-accused were acquitted of the charges levelled against them.

Arguments at the Bar:-

8. Mr. Ghosh, learned counsel for the appellant argues witnesses have not supported the case. PW 1 claimed his daughter had suffered burn injuries while she was preparing tea. When he met her daughter at the hospital, she was not in a position to talk. PWs 4 and 6, neighbours of the appellant also claimed that the victim lady had suffered burn injuries while cooking. Medical officer PW8 who recorded the dying declaration did not certify that the victim was in a fit state to make statement. Bed head ticket had not been produced. Capacity of the victim to make dying declaration is doubtful. Hence, conviction ought not to be recorded on the strength of the dying declaration alon