IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present : The Hon’ble Justice Nadira Patherya
And
The Hon’ble Justice Asim Kumar Ray

C.R.A. No. 572 of 2006

SMT. USHA BOSE ANR.
VERSUS
THE STATE OF WEST BENGAL

For the Appellant No.1 :Mr. Sudipto Moitra, Adv.,Mr. Sourav Chatterjee, Adv.
For the Appellant No.2 :Mr. Partha Sarathi Bhattacharya, Adv.
For the State :Mr. Manjit Singh, PP,Mr. Partha Pratim Das, Adv.

Heard on : 4.4.13, 5.4.13, 8.4.13, 9.4.13 10.4.13.

Judgment on : 26th February, 2014.

Patherya J. :

This appeal has been filed against the judgment and order dated

2nd August, 2006 passed by the Additional Sessions Judge, Fast Track

Court-I, Barrackpore in Sessions Trial Case No. 7(5)/03 arising out of

Sessions Case No. 20(4)/03 under Sections 498A and 302 IPC whereby
the appellant has been directed to suffer imprisonment for life and to pay

a fine of Rs. 2,000/- i.d. to suffer R.I. for six months under Section 302

IPC and to suffer rigorous imprisonment for three years and to pay a fine

of Rs. 1,000/- i.d. to suffer R.I. for three months under Section 498A

IPC.

The case of the prosecution is that the victim married Soumen

Bose (husband) out of love on 16th August, 2002 through registered

marriage. Thereafter the couple lived together as husband and wife at 36,

Swadhin Pally, Calcutta. After the marriage the husband and the

appellants both physically and mentally tortured the victim. On 18th

August, 2002 at about 8 p.m. the appellant Nos. 1 and 2 called PW 3,

mother of the victim to their house. PW 3 (mother) accompanied by her

sister Smt. Purnima Pal Chowdhury (PW 22) and Pradipta Pal

Chowdhury (PW 20) went to the matrimonial home of the victim when

the appellant No. 1 demanded Rs. 2,00,000/- for construction of

residential building. On the said occasion the victim informed her mother

(PW 3), aunt (PW 22) and uncle (PW 20) that she was tortured by the

appellants both mentally and physically over demand for dowry. The

mother (PW 3) of the victim expressed her inability to meet such demand

and the victim girl was abused in their presence. On 23rd August, 2002

at about 7 p.m. Smt. Ila Das (PW 18) aunt of the victim was informed

that the victim girl had been taken to Baranagore State General Hospital
with severe burn injury and from there she was taken to R.G. Kar

Medical College and Hospital for treatment.

On getting such information, the defacto complainant (PW 1), her

mother (PW 3), elder brother (PW 6), uncle (PW 20) and other para people

went to the hospital where they found the victim girl lying in the

emergency ward with severe burn injury. The husband of the victim girl

and the appellant No. 1 were also present there. A complaint was lodged

by PW 1 (sister) under Section 498A IPC against the husband and the

appellants with Baranagore Police Station and Baranagore P.S. Case No.

123 of 2002 was started on 26th August, 2002. After investigation charge

sheet under Sections 498A/302/120B IPC was submitted as in the

meantime the victim expired. The case was committed to the ld. Court of

Sessions and it was transferred to the Court of ld. Additional Sessions

Judge for trial. Charge was framed under Sections 498A, 302 and 120B

IPC. The same was read over and explained to the appellants to which

they pleaded “not guilty” and claimed to be tried.

The prosecution examined 24 witnesses. No witness was

examined by the defence. On consideration of the evidence of the

witnesses and documents the Additional Sessions Judge, Fast Track

Court-I, Barrackpore convicted the husband, appellant Nos. 1 and 2

under Section 498A IPC and sentenced to suffer rigorous imprisonment
for three years and to pay a fine of Rs. 1,000/- each in default to suffer

rigorous imprisonment for three months. The appellant Nos. 1 and 2

were also found guilty under Section 302 IPC and sentenced to suffer

rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each in

default to suffer rigorous imprisonment for six months. Both the

sentences were to run concurrently. The husband has served the

sentence of three years rigorous imprisonment and has been released on

2nd August, 2006. Hence the said appeal by the appellants.

Counsel for the appellants submits that the mother-in-law and

the uncle-in-law appellant Nos. 1 and 2 have been convicted and

sentenced under Section 302 IPC. In the FIR lodged by the sister, the

defacto complainant it has been stated that there was lip movement by

the victim but the victim could not utter words. The money demanded

was for constructing a residential house and as held in (2007) 9 SCC 721

the said cannot be construed as a dowry demand therefore no case

under Section 498A IPC was established. The victim girl died on

28.8.2002

and the dying declaration also has not improved the prosecution case. It has not been stated who poured the kerosene oil on the victim girl. Therefore the conviction under Section 302IPC cannot be sustained. The condition of the patient was to be certified by the doctor before recording the dying declaration but this was not done, in fact the condition of the patient has been certified later. The dying declaration was recorded by the S.I. (PW 19) and not by an executive Magistrate although two Executive Magistrates were available at R.G. Kar Medical College and Hospital. The dying declaration should be recorded by an Executive Magistrate if available and in this case as the S.I. (PW 19) has recorded it no reliance can be placed on it. The inquest was held by the Executive Magistrate, this also renders the recording of the dying declaration by the S.I. (PW 19) bad and although recorded in the presence of the doctor the same will not make it reliable. The S.I. (PW 19) has also in his evidence admitted that the dying declaration was not recorded by the Executive Magistrate or doctor but by him and in view of (2004) 11 SCC 231 the said dying declaration cannot be relied on. The only explanation given for no requisition being made was that there was no time to seek it. No signature or LTI of the victim was taken and the reason for not doing so has not been recorded. There is also no recording of inability to take the LTI or signature in the dying declaration. The dying declaration of the victim girl cannot be relied on as it is not a legal document and admittedly the victim could not speak at the time the dying declaration was recorded. Articles were seized by PW 24 (I.O) as stated in his evidence. As there is no dying declaration then the evidence must be looked into. The charge framed is under Sections 498A, 302 and 120B IPC. There has been no conviction under Section 120B IPC. PW 1 (defacto complainant) has spoken of torture in the form of no food being given to the victim girl but the food was taken from the hotel. Abuse and demand for money are two other instances of torture. The evidence of PW 1 (sister) is contrary to the FIR and is based on hearsay. Therefore it is an improvement and cannot be relied on. On 16th August, 2002 it has been stated by PW 1 (sister) that the family members came to know of the marriage and the question of giving gold ornaments did not arise. No information was received from the victim girl who was in a senseless condition on 23rd August, 2002. There is no mention of kerosene or matchstick in the FIR therefore the evidence of PW 1 is nothing but an improvement. The evidence of PW 1 (sister) is full of contradiction and cannot be relied on. She came to know of the demand from her mother PW 3 who has not corroborated the same and therefore the evidence of PW 1 (sister) is not helpful to the prosecution.

PW 2 is the brother’s friend. He also came to know from the mother (PW 3) regarding torture. At the time of registration of the marriage he was present and it is an admitted fact that no ornaments was given. On the date of the incident he found the elder brother, masi and maternal uncle standing outside the hospital as visiting time was over. There is no corroboration of narration by the victim of the incident to PW 1 (sister). The demand must be accompanied by torture and in the instant case there is no evidence of torture or cruelty. Mere demand will not attract Section 498A IPC.

PW 3 is the mother of the victim girl. PW 2 has stated that the mother was present. PW 3 met the victim in para masi’s house on 18th August, 2002 at 6.10 p.m. but no complaint of torture was filed. The reason for the demand according to PW 3 (mother) is repayment of debt and to build a room for the victim and her husband. This was not told to PW 1 (sister) therefore the evidence of PW 1 (sister) is full of contradiction. PW 3 (mother) in her examination in chief has stated that Ila Das informed her that the victim girl has been burnt by the Kaka Sasur and her mother-in-law. In cross-examination PW 3 (mother) has stated that she cannot say the name of the person who informed her of the incident, except for the information that the victim girl was in flames no other information was given to her at that time. There is no mention of the presence of the mother-in-law or Kaka Sasur at the time of incident. On 25th August, 2002 i.e. 2 days after the incident PW 3 (mother) found the victim girl totally conscious. PW 3 (mother) also did not find one leg of the husband of the victim girl broken.

PW 6’s (brother) evidence is nothing but hearsay and varies from the evidence of PW 3 (mother). PW 6 (brother) did not tell the I.O. of the incident. He has no personal knowledge of the incident that took place on 23rd August, 2002 and his evidence therefore is hearsay. The I.O. has also stated that PW 6 did not tell him of the incident.

As regards Section 302 IPC no evidence can be found in respect thereof from the evidence of PW 1 (sister), PW 2 (brother’s friend) and PW 3 (mother). The evidence of PW 3 (mother) is nothing but hearsay and although PW 3 (mother) states about the dying declaration, the said has not been stated in the FIR which was lodged on 26th August, 2002. That the burn was suffered due to overturning of the kadhai matches with the dying declaration made on 27th August, 2002. This is an attempt to improve the case of the prosecution. The I.O’s (PW 24) evidence in the light of the evidence of PW 3 (mother) vis-a-vis the dying declaration is an improvement and ought not to be considered. PW 4 is a formal witness and PW 5 is a seizure list witness. PW 7 is the doctor who conducted the autopsy but the degree of burn sustained by the victim has not been stated, therefore the charge under Section 302 IPC could not have been framed. If at all a charge under Section 304B IPC ought to have been framed but the said has not been done. PW 11 is a seizure list witness. No kerosene oil container was seized nor any evidence to prove that the victim was engaged in the process of cooking.

PW 16 is the friend. The demand of Rs. 2,00,000/- stands as she was not subjected to cross-examination. This was also told to the I.O. by PW 16. PW 17 has stated that the victim told her that her mother-in-law would not allow her to lead a conjugal life unless Rs. 2,00,000/- was paid but this has not been told to PW 24 (I.O) and is nothing but an improvement.

PW 18 (masi) has made out a new story which was not told to PW 24 (I.O) and therefore it is partly improved. Therefore no reliance can be placed on the evidence of Ila Das.

PW 20 is the uncle of the victim girl and his evidence is full of contradictions. While PW 3 (mother) has said that the appellant No.2 (kaka sasur) poured kerosene oil and the appellant No. 1 set her on fire. PW 20 (uncle) stated that appellant no. 1 poured the kerosene oil and the husband and the appellant No. 2 (kaka sasur) threw the lighted match on the victim girl.

PW 22 is the aunt (maasi) and her evidence is also full of contradictions and is in conflict with the evidence of PW 3 (mother) so also the I.O’s evidence. It has been alleged that on 25th August, 2002 the leg of the appellant No. 2 was broken. On 26th August, 2002 he was arrested. In the FIR it is stated that the kaka sasur appellant No. 2 resided at Dankuni temporarily and had a share in the ancestral house. PW 11 has not been declared hostile. PW 12 is the seizure list witness. PW 13 has been declared hostile but has stated that the victim girl and her husband broke open the lock of the room allotted to the kaka sasur. He has also stated that the appellant Nos. 1 and 2 came to the spot after the flames were put out from the body of the victim girl. Therefore at the material point of time the kaka sasur was not at the P.O. Although mention has been made by PW 16 (friend) about hearing voices but the voices have not been identified. Multiple dying declarations have been made by the victim girl and the dying declaration recorded by PW 19 (S.I) mentions that the victim girl was conscious and oriented. The doctor PW 14 has not stated that the victim girl was mentally and physically fit and as she cannot speak any more signifies her inability to speak and being unfit. No person has been nailed although appellant Nos. 1 and 2 have been accused of the crime but no acts of crime have been attributed to either.

PW 24 (I.O) has stated that the demand of Rs. 2,00,000/- on account of dowry was not told to him by PW 3 (mother). That Rs. 2,00,000/- was needed for accommodation was all that was stated by PW 3 (mother) to the I.O. PW 3 also has not stated anything about the dying declaration made in her presence and the evidence of PW 3 (mother) is nothing but an improvement and is of no value.

The principles underlying acceptance of a dying declaration will be found in 1993 (1) SCC 1. As held in (2007) 1 SCC (Cri) 1 it is the quality which is to be looked into not the quantity of the dying declaration. In (2012) 3 Cal.CrLR (SC) 250 so also in (2012) 7 SCC 569 the doctor had certified but in the instant case there is no certificate issued. The evidence of PW 14 and PW 10 ought to be looked into. Therefore if the dying declaration is not looked into the prosecution will have no basis for its case.

Reliance is placed on AIR (2004) SC 26 for the proposition of scrutiny of evidence at the appellant stage. Statements made under Section 162 CrPC can be used for contradiction purpose alone as held in (2005) 5 SCC 272. PW 11 has categorically stated in his evidence that the appellants were not present at the P.O. The topography will show that the appellant No. 1 was not present. PW 11 also did not see the appellant No. 2. PW 11 has not been declared hostile therefore his evidence is binding. PW 12 is also a seizure list witness. PW 14 is the doctor before whom dying declaration was made on 27.8.2002. PW 15 is the Executive Magistrate who conducted the inquest. PW 21 is the officer who received the information that the victim wanted to make a statement from the ward master at R.G. Kar Medical College and Hospital but has not been examined. The S.I. (PW 19) ought to have entered his exit and return in the register/G.D. book. The time of the telephone call also ought to have been recorded. PW 22’s (masi) statement about a dying declaration made to her is in conflict. There are two dying declarations according to PW 24 (I.O). Exhibit 8 is not in the C.D although Exhibit 8 is the original dying declaration. In view of such contradiction Exhibit 8 is a suspect document. The original inquest report is also not in the C.D. The evidence of PW 24 (I.O) can be relied on wherefrom it appears that there has been no demand of dowry or torture as to constitute an ingredient of Section 498A IPC. The constable who took the dead body was not examined and therefore it is not known on whose body the inquest was conducted. The doctor noted the dying declaration. There is no FSL report and one is not aware who is the scribe of the dying declaration. PW 19 (S.I) recorded the dying declaration. In the absence of the viscera and FSL report the appellants could not have been sentenced. The dying declaration should be fool proof, devoid of any iota of doubt. PW 24 (I.O) states that the date in the dying declaration was over written while on examining Exhibit-8 no over writing can be found. Exhibit 8 has been marked on the laminate cover and not on the original dying declaration. PW 14 (Dr.) also admits that Exhibit 8 is the carbon impression of the dying declaration. The evidence of PW 16 and PW 17 (friends) cannot be relied in view of the evidence of PW 24 (I.O) who has stated that both PW 16 and PW 17 (friends) did not tell him about the demand of Rs. 20,000/-. It is admitted that the victim talked to PW 3 (mother) on 21.8.2002. The evidence of PW 18 (masi) and PW 20 (uncle) is of no help. In G.D. No. 229 dated 27th August, 2002 the time at which the G.D. entry was made has been mentioned as 1.45 p.m. PW 21 (Officer-in- Charge) has stated that between 7-7.30 p.m. on 27.8.2002 he was informed by the ward master of R.G. Kar Medical College and Hospital and thereafter he left and returned at 23.05 p.m. He is not the I.O. A suggestion was also put to PW 19 (S.I) with regard to dying declaration. The prosecution has been able to prove that the victim was married to Soumen Bose. She died an unnatural death and was found burnt at her matrimonial home. She was hospitalized by her in-laws and later she died. The prosecution case is that the in-laws poured kerosene and set her on fire therefore punishment under Section 302 IPC has been given. All three accused have been acquitted of the offence under Section 120B IPC. The husband has been acquitted under Section 302 IPC. He was convicted under Section 498A IPC i.e. torture for not meeting demand to construct room. PW 3 (mother)’s evidence is of no value as it has not been stated to the I.O. and in view of (2003) 3 SCC 175 a statement not made to I.O. but given only in evidence is not significant. Reliance is placed on (2011) 12 SCC 408 and (2011) 2 SCC 715.

Cruelty has been espoused in (2010) 9 SCC 73 and (2008) 1 SCC

202. Demand for money to meet domestic expense is not dowry as held in (2007) 9 SCC 721. Infirmities in dying declaration will cause its rejection as held in AIR 2009 SC 2703. As the dying declaration is clouded with suspicion the same be rejected. There is no charge under the Dowry Prohibition Act. Executive Magistrate though available was not called to record the victim’s statement, therefore the dying declaration is doubtful as held in (2010) 5 SCC 645. The evidence of PW 3 (mother), PW 6 (brother), PW 18 (masi), PW 20 (uncle) and PW 22 (masi) is at variance with the dying declaration made to them by the victim and the written declaration, therefore no credibility can be attached and the dying declaration does not pass the test of genuinity. In case of doubt credibility is shaken and need not be considered. The ward master informed at 7-7.30 and PW 19 (S.I) left much earlier before the message reached or was received. It has not been recorded in the dying declaration that the victim was physically fit and mentally alert to make the dying declaration. PW 14 (Dr.) proved the carbon copy of the dying declaration which has been marked as Exhibit-8, which marking is on the plastic flap and not on the document itself. The carbon copy was exhibited as the original was missing. No credence can be given to the dying declaration and the said document cannot be called a dying declaration. A dying declaration is an exception to hearsay and its evidentiary value is great provided the same is without doubt.

As regards charge under Section 302 IPC no charge could have been framed as held in (2001) 2 SCC 577. To constitute charge under Section 302 IPC mens rea and its ingredient must be present to the act committed. No charge under Section 306 IPC has been framed.

Kaka Sasur is the appellant No. 2. In the FIR case of torture has been made out against him. In the complaint lodged it has been stated that on 23rd August, 2002 the victim could not utter anything. Therefore the victim was not in a position to talk on the day of incident. The dying declaration has been recorded by the police officer. There was injury on the face of the victim and therefore she could not have spoken. In the FIR lodged it has not been stated that the Kaka Sasur was present on the day of incident at the P.O. PW 1 i.e. the defacto complainant has stated that the victim girl was burnt in her husband’s room namely, the bed room that the victim shared with the husband. There are numerous dying declarations and each one varies from the other. Exhibit-8 is a dying declaration which has been recorded by PW 19 (S.I) before PW 14 (Dr.). Kaka Sasur was not present in the hospital. The victim was not conscious as she was in pain. Conscious which has been recorded in the statement recorded on 27th August, 2002 signifies that the patient was conscious and can not be construed as mentally fit to make statement as she was in pain. Out of the 24 witnesses examined by the prosecution some are either closely related, others are formal witnesses or friends.

In opposing the said appeal counsel for the State respondents submits that it is not a case of tutoring as the victim girl does not know who threw kerosene oil on her. The statements made by her are voluntary, true and not tutored therefore trustworthy. Three persons were seen by her, two persons were not visible. Question six of the dying declaration cannot be considered and only question 3 can be looked into. If tutored would have assigned role to the appellants, it is true that the dying declaration was recorded by the S.I. and not by the Executive Magistrate, therefore the dying declaration according to the appellants ought not to be relied on. Anyone can record a dying declaration and non-recording by Executive Magistrate cannot amount to discard of dying declaration as held in AIR 1983 SC 164.

At the commencement of dying declaration, the doctor did not certify. Reliance is placed on (2002) 6 JT 313. The doctor (PW 23) has stated that the patient remains conscious even if the whole body is burnt. There are two independent facts which facts have been proved, namely the demand of Rs. 2 lacs and the visibility of the appellants. If the dying declaration is trustworthy then the burden shifts to the accused to prove there was someone else under Section 106 of the Evidence Act. In the dying declaration, the presence of the accused has been stated therefore the burden shifts to the accused to prove that they were not there. This has not been done therefore it is hit by Section 106 of the Evidence Act. This is an additional link to the prosecution case. Kaka sasur has taken the plea of alibi that he had a broken leg and was at Dankuni but this was not independently proved. Alternatively, the dying declaration needs to be corroborated. PW 16 has corroborated the demand for Rs. 2 lacs. It has not been shaken in cross-examination. The presence of the appellants in the P.O. has been stated by PW 13 and though PW 13 has been declared hostile aids the case of the prosecution. The appellants were in the vicinity of the P.O. and therefore the kaka sasur cannot be said to be in Dankuni. For all the said reasons the dying declaration cannot be discarded.

In reply it has been submitted by counsel for the appellant that AIR (1983) SC 164 is distinguishable on facts as in the reported decision thumb impression was taken. The dying declaration does not inspire confidence. The G.D. entry is at 13.45 p.m. whereas the information was received by the I.C. at 7-7.30 pm. PW 16’s (friend) evidence regarding going to the house of the victim girl cannot be believed as she has stated that the victim never took her to her matrimonial house and therefore she did not know its location. The prosecution has failed to prove its case and there is no missing link to be filled. The presence of the accused has been belied by PW 11 and PW 12 who have not been declared hostile. Therefore AIR 2007 SC 2702 is distinguishable on facts.

Having considered the submissions of the parties the appellants have been convicted and sentenced under Sections 498A and 302 IPC. To constitute a case under Section 498A IPC the victim must be subjected to cruelty and cruelty means –

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

The demand for Rs. 2 lacs was for repayment of a debt and to build a room on the upper floor as will be evident from the evidence of PW 3 (mother). PW 16 (friend) has stated of the demand for Rs. 2 lacs for building a house which she heard when she visited the victim in her matrimonial home. But this evidence cannot be relied on as in cross- examination she has stated that she did not know the location of the victim’s house nor the way to the house. The evidence of PW 16 (friend) is useless. Demand simpliciter will not constitute cruelty as to constitute cruelty demand must be coupled with torture and harassment as held in 2007 (9) SCC 721 and 2010 (9) SCC 73. PW 1, the defacto complainant has stated that no food was given to the victim in her matrimonial home and she and her husband took food from hotel. This also will not amount to torture. In fact as regards the incident too, the evidence of PW 1, cannot be relied on as it is nothing but hearsay and is not corroborated by PW 3 (mother) who has categorically stated that she did not narrate the incident to either PW 1 or any other member of the family.

PW 3 (mother) met the victim in the para masi’s house on 18.8.2002 but no complaint of torture was made.

PW 17’s (friend) evidence does not advance the case of cruelty as it only highlights demand for Rs. 2 lacs the reason for which was to repay the debt and build a room as per the evidence of PW 3 (mother) and PW 18 (maasi).

The evidence of PW 20 (uncle) as regards demand of Rs. 2 lacs is nothing but hearsay as he has stated that he heard all this from PW 3 (mother) while PW 3 (mother) has said that PW 20 accompanied her and the rest to the matrimonial house of the victim. PW 3 (mother) has also stated of the presence of PW 17 (friend) who in her evidence has stated that the victim spoke about demand to her in para maasi’s house. She has not stated that the victim also informed PW 20 in her presence or otherwise. This renders the evidence of PW 20 as regards torture unbelievable.

Therefore no case of cruelty or torture under Section 498A IPC has been proved by the prosecution and the conviction and sentence under the aforesaid section cannot be sustained and is set-aside.

As the case under Section 498A IPC has not been substantiated the question of the same likely to drive the victim to commit suicide also cannot arise.

It is true that –

       i)       the victim was married to Soumen Bose

ii) she died an unnatural death

iii) was found burnt in her matrimonial home

iv) was hospitalized by her in-laws

v) and died

Admittedly a demand simpliciter was made which cannot be construed as harassment or torture therefore will not constitute cruelty under Section 498A IPC but die she did in her matrimonial home and it is necessary to examine the aspect of murder under Section 302IPC. Numerous dying declarations have been made. Those made to PW 3, 6, 18, 20 and 22 are oral and only one has been recorded by PW 19 (S.I) in the presence of PW 14 (Dr.). This written dying declaration is marked as Exhibit-8. The victim girl has stated that kerosene oil came sprinkling on her and 2 matchsticks also fell on her body. Although she saw the appellants but she has not stated where she saw them. For instance as regards her husband the victim girl has specifically stated that she saw him in the room but not so in respect of the appellants. She has also stated that the appellants were responsible for the occurrence but to be convicted the presence of the appellants in the room or close thereto would be necessary. This information is lacking in the dying declaration.

In the list of documents exhibited and described, Exhibit 8 has been described as a carbon impression of the dying declaration whereas the document marked as Exhibit 8 is a dying declaration in ink and therefore an original document. Exhibit 8/1 is the signature of PW 19 (S.I) and 8/2 is the endorsement by him. The said markings are on the plastic folder in which the original dying declaration has been kept. Even assuming that the markings are made by mistake, the document exhibited was a carbon impression and it raises a doubt regarding the dying declaration exhibited. If Exhibit 8 is a suspect document, its contents cannot also be accepted.

The statement was made in the presence of PW 19 (S.I) and PW 14 (Dr.). PW 19 (S.I) has proved the endorsement and signature both of which were marked as Exhibit 8/2 and 8/1. The dying declaration proved by PW 14 (Dr.) is the carbon impression marked as Exhibit 8. Although PW 14 (Dr.) has stated that Exhibit 9 is the original statement, this has not been proved by PW 19 (S.I). In the list of Exhibits, Exhibit 9 is the carbon copy of Inquest Report. Therefore the evidence of PW 14 (Dr.) cannot be accepted as regards Exhibit 9. PW 19 (S.I) has proved his signature and statement marked 8/1 and 8/2. There is no mention of Exhibit 9/1 or 9/2 in the evidence while in the document exhibited the signature is marked as 9/1 and endorsement or statement as 9/2. Exhibit 8 is marked on the folder and there is no marking of Exhibit 8/1 or 8/2 on the folder. This therefore renders the dying declaration a suspect document. The signature of PW 14 (Dr.), his designation, place and time has been marked as Exhibit 8.

PW 14 (Dr.) has nowhere recorded that the victim girl was physically fit and mentally alert to make the statement. This is important as the victim girl though conscious and aware of her surroundings but may not be mentally alert to answer the questions. As there is a doubt with regard to the dying declaration original or carbon impression exhibited and both have been mentioned by PW 14 (Dr.), in view of the discrepancies in both these documents, order of conviction and sentence under Section 302 IPC could not have been passed against the appellants.

Besides the aforesaid no other evidence exists to implicate the appellants in the said case. Accordingly the order of conviction and sentence dated 2.8.2006 for the aforesaid reasons is set-aside. The appellants be set free if not required in any other case.

Let the order passed be communicated to the concerned correctional home. Let photostat copy of the order be issued to the appellants on the usual undertakings.

(Patherya, J.) I agree (Asim Kumar Ray, J.)