IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Manojit Mandal
CRA 747 of 2014
The State of West Bengal
For the appellant : Mr. Partha Sarathi Bhattacharyya
Ms. Mitali Mukherjee
For the State : Mr. Saibal Bapuli, Ld. A.P.P
Mr. Bibaswan Bhattacharyya
Heard on : 09.07.2019
Judgment on : 22.07.2019
Manojit Mandal J.
This appeal is directed against the judgment and order of
conviction and sentence dated 30.10.2014 and 31.10.2014 passed by the
learned Additional Sessions Judge, Bolpur, Birbhum in Sessions Trial No.
06 (April) 2014 arising out of Sessions Case No. 115 of 2013 convicting the
appellant under Section 302 of the Indian Penal Code and sentencing him
to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five
2. In order to appreciate the rival contentions advanced by the parties
and issues involved, it is necessary to set out the facts of the case which
give rise to the present criminal appeal:-
Marriage was solemnized between deceased Manowara and appellant
as per Muslim Customs about 3 ½ years ago. Deceased Manowara died in
the hospital on 01.06.2012 while under treatment for burn injuries which
she had sustained on 23.05.2012. Appellant is the husband of the said
deceased. Informant Anwar Sk (PW 1) and Saleha Biwi (PW 2) are the
parents of the deceased. PW 3, PW 4, PW 7 and PW 8 are the neighbours
of the appellant. PW 5 is Sk Alenur who scribed the written complaint.
PW 6 is the medical officer of Bolpur Sub-Divisional Hospital who attended
the deceased as indoor patient. PW 9 Maitreyee Ganguli is a member of
West Bengal Executive Service who conducted inquest over the dead body
of deceased Manowara Biwi and proved the inquest report (Exbt.2) into
evidence. PW 10 is the Investigating Officer. PW 11 is the Medical Officer,
Dr.Debasish Sarkar who conducted post mortem examination over the
deadbody of the deceased. Dr. Krishna Kamal De has been examined in
this case as C.W. No. 1.
3. The prosecution case is that appellant and others did not supply
meal to the deceased and used to torture her physically. Appellant
demanded a sum of Rs.5,000/-(Rupees Five Thousand) only for the
purpose of constructing room. Deceased told PW 1 about such demand.
The deceased used to complain regarding torture and cruelty meted out
towards her by the appellant and others before her parents.
4. On 23.05.2012, the parents of the deceased were informed that the
deceased with burn injuries was admitted to Sian Sub-Divisional Hospital.
On receipt of the aforesaid information, the parents went there and found
that the deceased had sustained extensive burn injuries. Deceased was
thereafter shifted to Burdwan Medical College and Hospital for better
treatment. On 23.05.2012, it is alleged that the deceased disclosed before
PW 1 and PW 2 that the appellant has poured kerosene oil on her and set
her on fire with a match stick upon which the informant (PW 1) lodged a
First Information Report (for short the F.I.R.) (Exbt.1) before the Officer-in-
Charge Labpur Police Station who registered the case for commission of
offences under Sections 498A and Section307 of the Indian Penal Code (for short
SectionIPC) against the appellant and others.
5. On receipt of the aforesaid FIR, the case was registered. The
investigation of the case was entrusted to the Inspector of Police (PW 10).
PW 10 sent a message to the Burdwan Medical College and Hospital for
recording dying declaration of the deceased, whereupon Dr. Krishna Kamal
De, Medical Officer of Burdwan Medical College and Hospital (CW 1)
recorded the dying declaration of the deceased on 27.05.2012. The said
dying declaration was proved and exhibited as Exbt. I in the trial.
Thereafter, the deceased while under treatment died on 01.06.2012 in the
hospital. After her death, an inquest was conducted by PW 9 and post
mortem examination was conducted by PW 11. PW 10 completed the
investigation and thereafter, submitted charge-sheet against the appellant
and others for commission of offence punishable under Section 498A and
Section302 of the IPC.
6. Charge under Section 302 of the IPC was framed against the
appellant and others.
7. The present appellant and others denied the charge and claimed to
8. Prosecution examined 11 witnesses and marked several documents
as exhibits. One witness was examined in this case as Court witness. In
conclusion of trial, the learned Trial Judge by judgment and order dated
and 31.10.2014 convicted and sentenced the appellant as
9. The learned Counsel appearing for the appellant submitted that
learned Court below committed an error of fact and also of law in
convicting the appellant. It was submitted that there was no eyewitness to
the occurrence and entire case rests only on circumstantial evidence and
also on the alleged dying declaration stated to have been made by the
deceased. It was submitted that alleged dying declaration was not
recorded in question answer form. It was further submitted that C.W. No.
1 did not record the time when it was recorded or that the deceased was
not in a fit state of mind to make the statement. He very strenuously
urged that the signature and/or the thumb impression of the deceased
was not there in the said dying declaration. He further urged that there is
three days delay in lodging the First Information Report. So, the learned
Lawyer for the appellant urged that the prosecution case cannot be
accepted as true.
10. The learned Counsel for the State, on the other hand, supported the
order of conviction and sentence. He submitted that learned Court below
was correct and justified in relying upon the aforesaid dying declaration
which was recorded by the Doctor (CW 1).
11. Having heard the learned Counsel appearing for the parties, I now
proceed to analyse the entire evidence on record so as to ascertain whether
the conviction and sentence passed against the appellant would and could
12. PW 1, father of the deceased is the de facto complaint. It is his
evidence that marriage between his daughter and the appellant was
solemnized and his daughter, Manowara received the burn injuries. He
was informed of the incident on the same day whereupon he immediately
went to Sian Hospital and found that the deceased was at there with
extensive burn injuries. His daughter was shifted to Burdwan Medical
College and Hospital. PW 1, the informant and father of the deceased,
stated that deceased told him that her husband set her on fire. PW 2 is
the mother of the deceased. PW 2 in her evidence stated that her daughter
was admitted to hospital and she came to see her who told her that her
husband set her ablaze after pouring kerosene oil and her daughter cried
for help. Both the PW 1 and PW 2 were subjected to extensive cross-
examination but the aforesaid part of the evidence pertaining to statement
made by the deceased could not be dislodged in any manner in the course
of cross examination. On scrutiny of the evidence of PW 1 and PW 2, I find
nothing to shake the credence of their evidence.
13. PW 3, PW 4, PW 7 and PW 8 did not support the case of the
prosecution as such they were declared hostile by the prosecution.
14. PW 10 is the Investigating Officer. It is his evidence that on his
prayer, statement of the deceased was recorded by Dr. Krishna Kamal De
of Burdwan Medical College and Hospital on 27.05.2012 and he collected
the dying declaration of the victim. While under treatment in the hospital,
the deceased died on 01.06.2012. The doctor who recorded her dying
declaration was examined in the trial as C.W. No. 1. He had stated in his
deposition that deceased was admitted in CBS female ward of Burdwan
Medical College and Hospital (BMCH) on having suffered 90% burn injuries
in lower face and all other parts of the body. He also stated that he
recorded the statement having found the patient was mentally alert but
under cover of analgesia (pain killer) while making the dying declaration
(Exbt. I) which has been proved in the trial.
15. Post mortem was held by Dr. Debasish Sarkar (PW 11). On
examination, he found the following injuries on the person of the
“Infected ulcers due to burn injuries, over the anterior and
posterior aspect of neck, chest, abdomen, both the upper
limbs and lower limbs. The ulcers showed presence of
puss and slough with evidence of healing from the
periphery and information of granulation tissues. No other
injuries were detected even after careful dissection of the
16. Dr. Debasish Sarkar (PW 11) has opined that death was due to effect
of burn injuries ante-mortem in nature. The said Doctor has proved the
post mortem report (Exbt. 3) into evidence. On consideration of the
evidence of PW 11 and post mortem examination report (Exbt. 3), I hold
that deceased died due to effect of burn injuries which is ante-mortem in
17. PW 6 is the Medical Officer of Bolpur Sub-Divisional Hospital who
has deposed that he attended deceased Manowara Biwi as indoor patient
of the said hospital. He has further deposed that the said patient was
referred to Burdwan Medical College and Hospital and she had 70% burn
injury. Exhibit I is the dying declaration recorded by CW 1 which makes
it clear that the Doctor recording the dying declaration had recorded that
patient was mentally alert under the cover of analgesia at the time of
recording of the dying declaration.
18. I have scrutinized contents of the dying declaration which was
recorded by the doctor of the hospital where the deceased was treated for
her burn injuries. On going through the same, I find no infirmity in the
said dying declaration as the said dying declaration vividly mentions
manner in which the deceased suffered burn injuries on pouring kerosene
oil on her by the appellant and set her on fire. The appellant poured the
kerosene oil on the deceased and lit the fire. The said description given by
the deceased in the dying declaration recorded by the doctor is clear,
unambiguous and there is no reason why I should not accept the said
dying declaration as correct and prove version of the incident.
19. The objections raised by the learned Counsel appearing for the
appellant which are of technical nature with regard to recording and
admissibility of the aforesaid dying declaration. I am, however, of the
considered opinion that the said dying declaration recorded by the doctor
(CW1) is also corroborated by the oral dying declaration made before PW 1
and PW 2 and the said fact also finds corroboration from the statement of
PW 1 and PW 2.
20. SectionIn Kaliya v. State of Madhya Pradesh reported in (2013) 10 SCC
758 the Hon’ble Apex Court observed that:-
“The law on the issue can be summarized to the effect
that law does not provide who can record a dying
declaration nor is there any prescribed form, format or
procedure for the same. The person who record dying
declaration must be satisfied that the maker is in a fit state
of mind and is capable of making such a statement”.
21. The Constitutional Bench of the Hon’ble Apex Court reported in
Laksman Versus State of Maharastra, 2002 AIR SCW 3479 has
“Normally the court in order to satisfy whether the
deceased was in fit mental condition to make dying
declaration, look up to the medical
A dying declaration can be oral or in writing
and in any adequate method of communication whether
by words or by sign or otherwise will suffice provided
the indication is positive and definite. In most cases,
however, such dying statements are made orally before
the death ensures and is reduced to writing by someone
like Magistrate or a Doctor or a police officer……………
There is no requirement of law that a dying
declaration must necessarily be made to a Magistrate
and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the
facts and circumstances of each particular case. What is
essentially required is that the person who records a
dying declaration must be satisfied that the deceased
was in a fit state of mind”. (emphasis supplied)
22. Six decades ago, the Apex Court had settled the issue in 1958 AIR
SCR 552 (SectionKushal Rao v. State of Bombay) that conviction may be
recorded solely on a dying declaration provided it is reliable. It held:-
“special sanctity which the legislature attaches to such
declaration must be respected unless such declaration
can be shown not to have been made in expectation of
death or to be otherwise unreliable and any evidence
adduced for this purpose can only detract from its value
but not affect its admissibility.
Although a dying declaration has to be very closely
scrutinized, and tested as any other piece of evidence,
once the court comes to conclusion in any particular
case, that it is true, no question of corroboration arises.
A dying declaration cannot be placed in the same
category as the evidence of an accomplice or a
23. When I apply the aforesaid principles to the facts of the present case
I am of the considered opinion that the learned Lower Court was totally
justified and also right in relying upon the dying declaration recorded by
the doctor (CW- 1) and statements of the deceased made to PW 1 and PW
2. The technical objections which were raised by the counsel for the
appellant, one regarding the recording of the dying declaration in question
answer form, I thing that this is a rule of prudence and not the ultimate
test as to whether or not the said dying declaration was truthful or
24. The doctor who recorded the dying declaration was examined as a
witness and he had in his deposition categorically stated that the deceased
while making the aforesaid statement was in a fit mental condition to
make such a statement. The aforesaid position makes it therefore clear
that the aforesaid dying declaration could be relied upon as the same was
truthfully recorded and the said statement gave a vivid account of the
manner in which the incident had taken place.
25. There was another objection raised by the counsel appearing for the
appellant regarding the admissibility of the aforesaid recorded dying
declaration contending inter alia that the signature or the thumb
impression of the deceased was not taken on the said dying declaration.
The said objection according to me also is without any basis. The
deceased had suffered about 90 per cent burn injuries. Inquest Report
(Exbt. 2) also makes it clear that the palm of the deceased was in burnt
condition. In such a situation, it may not be possible to take her signature
or LTI on the dying declaration. There is also no reason why a dying
declaration which is otherwise found to be true, voluntary and correct
should be rejected only because the person who recorded the dying
declaration did not or could not take the signature or the Left Thumb
Impression of the deceased on the dying declaration. Once it is found that
the dying declaration is true and made voluntarily and as also trustworthy,
there is no reason why the same should not be believed and relied upon.
In this case, the said dying declaration is corroborated by the oral dying
declaration made by the deceased before PW 1 and PW 2 which is also
corroborated by the medical evidence and the facts contained in the FIR.
26. There is no evidence on record nor any suggestion given on behalf of
the defence in this case that Court Witness No. 1, Medical Officer, acted in
motivated or over-zealous manner to the extent that he would falsely
implicate an innocent person in the murder of his wife. Thus, the
argument of the learned Counsel for the appellant is unacceptable.
27. Learned Counsel appearing for the appellant has further urged that
while the incident is said to have taken place on 23.05.2012, the FIR was
registered on 26.05.2012 and there was thus a delay of three days in
lodging the FIR. He further submitted that the said three days’ delay has
not been explained properly. So, the prosecution case is fatal. I failed to
accept such contention of the learned Advocate appearing for the
appellant. It is in evidence that the deceased was carried to Sian Sub-
Divisional Hospital and from there, she was shifted to Burdwan Medical
College and Hospital for better treatment. The relatives were under shock
sometime and were mainly concerned with the treatment. Anxiety of the
relatives to get the injured examined by the doctor and provide her with
medical aid was first and foremost importance. It could not be expected
from them that they would rush to the Police Station for making first
information report before medical aid to the injured. In such situation, I
think that if then FIR is delayed for a considerable period, such delay is
28. Therefore, taking an overall view of all the facts and circumstances
of the case and the evidence on record, I find no ground to interfere with
the order of conviction and sentence recorded by the learned trial court
holding the appellant guilty of the offence under Section 302 of the IPC.
The present appeal, therefore, deserves to be dismissed which I hereby do.
The order of conviction and sentence recorded against the appellant is
29. The Lower Court Record along with copy of the judgment be sent to
the learned Trial Court below at once for information and taking
30. Urgent Photostat certified copy of the order, if applied for, be given to
the parties on priority basis on their usual undertaking.
(Joymalya Bagchi, J.) (Manojit Mandal, J.)