Crl.A. 8/2009 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.P. KATAKEY [Katakey, J.] This appeal is directed against the judgment of conviction dated 06.12.2 008 passed by the learned Sessions Judge at Dhubri, in Sessions Case No.117/2005 , convicting the appellants under Section 302/34 IPC and sentencing them to suff er rigorous imprisonment for life and to pay a fine of Rs.10,000/- each, in defa ult to undergo simple imprisonment for 6(six) months each. 2. A first information report (FIR), (Ext.-11) was lodged by Md. Abdul Khal eque (PW-3), the brother of the deceased, on 09.01.2005, in Gouripur Police Stat ion, alleging that at around 7 A.M. on 08.01.2005, on receiving information that his sister Mustt. Sabeda Bibi, married to Md. Abdul Kalam (Appellant No.3), was hospitalized at Dhubri Civil Hospital for grievous burn injuries, he went to th e hospital, where she informed him that her husband’s elder brother Md. Azim Ali (Appellant No.1) and the younger brother Md. Baten Ali alias Md. Abdul Baten (A ppellant No.2) on 08.01.2005 at about 3 A.M. entered her room and set her on fir e by pouring kerosene over her body and when she raised a commotion, they ran aw ay from the room and then immediately her husband Md. Abdul Kalam (Appellant No. 3) came running from another room and tried to extinguish the fire and made arra ngement for her hospitalization, and further alleging that as her condition was serious, she was referred for better medical treatment and accordingly was taken to Cooch Bihar Govt. Medical Hospital, where she died in the afternoon of 09.01 .2005 due to the burn injuries. Initially G.D. Entry No.386, dated 09.01.2005 an d thereafter Gouripur P.S. Case No.10/2005 under Section 448/307/326/302/34 IPC was registered, on the basis of the said FIR. The investigating agency during in vestigation recorded the statements of the persons claimed to be acquainted with the facts, under Section 161 Cr.P.C., prepared the inquest report, send the de ad body for post mortem examination, prepared the sketch map (Ext.-13), seized c ertain articles vide seizure list (Ext.-9) and got the statements of Md. Baktar Ali Bepari (PW-1), Md. Abdul Kader (PW-2), Md. Abdul Khaleque (PW-3), Md. Kader Ali (PW-6) and Md. Abdul Kuddus (PW-7), recorded under Section 164 Cr.P.C. by th e learned Magistrate. On completion of the investigation the appellants were cha rge-sheeted (Ext.-12) under Section 302/34 IPC. Since the offence was exclusivel y triable by the Court of Sessions, the learned Chief Judicial Magistrate, Dhubr i on 03.08.2005 committed all the three accused appellants for trial to the Sess ions Court. The charge under Section 302/34 IPC was thereafter framed by the lea rned Sessions Judge vide order dated 15.12.2005 against all the appellants, whic h when read over and explained, the appellants pleaded not guilty and claimed to be tried. Hence the trial commenced in the Court of the learned Sessions Judge at Dhubri. 3. During the course of the trial, the prosecution in order to bring home t he charges leveled against the appellants examined 11(eleven) witnesses, namely, Md. Baktar Ali Bepari (PW-1); Md. Abdul Kader (PW-2); Md. Abdul Khaleque (PW-3) , who lodged the first information report, Md. Kader Ali (PW-6); Md. Abdul Kuddu s (PW-7); who are brothers and testified about the dying declaration made by the deceased; Dr. Ajit Kr. Phukan (PW-4), who was posted at Dhubri Civil Hospital a nd initially treated the deceased for the burn injuries; Sri Amalesh Sarkar (PW- 5), the Asstt. Sub-Inspector of Police of Katowali Police Station in Cooch Bihar district, West Bengal, on 10.01.2005, who conducted the inquest over the dead b ody of Sabeda Bibi in M.G.N. Hospital, Coochbihar and collected the post mortem examination report; Md. Amzad Ali (PW-8), a neighbourer of the deceased, who alo ng with others arranged for hospitalization of the deceased in Dhubri Civil Hosp ital; Mustt. Manowara Begam (PW-9), daughter of the deceased; Sri Santosh Kr. Mi tra (PW-10), who was the Medical Officer posted at M.G.N. Hospital, Cooch Bihar on 10.01.2005 and conducted the post mortem examination on the body of the decea sed and submitted the report and Sri Biswajit Bose (PW-11), the investigating of ficer. The witnesses were duly cross-examined by the appellants, whose statement s were also recorded under Section 313 Cr.P.C. The defence, however, did not exa mine any witness. 4. The learned Sessions Judge upon appreciation of the evidences on record convicted the appellants under Section 302/34 IPC, on the basis of the oral dyin g declaration allegedly made by the deceased before PWs-1, 2, 3, 6 and 7, the br others of the deceased and rejecting the opinion of the doctor, namely, Dr. Ajit Kr. Phukan (PW-4) about the inability of a person to speak because of 80% burn injuries received by her and sentenced them as aforesaid. Hence the present appe al. 5. We have heard Mr. M.H. Rajbarbhuiyan, the learned counsel for the appell ants and Mr. Dhanesh Das, the learned Public Prosecutor, Assam. 6. Referring to the deposition of the prosecution witnesses, more particula rly of PWs-1, 2, 3, 6 and 7, it has been submitted by Mr. Rajbarbhuiyan, the lea rned counsel for the appellants, that the witnesses are not consistent on what w as said by the deceased before them, as, while PW-3, who lodged the first inform ation report and PW-2 had stated that the appellant Nos.1 and 2, namely, Md. Azi m Ali and Md. Abdul Baten set the deceased on fire without implicating the appel lant No.3, the husband of the deceased, the PW-1, another brother of the decease d had deposed that the deceased made the dying declaration implicating all the t hree appellants including her husband. On the other hand, according to PW-7, the deceased had told them that while the appellant Nos.1 and 2 caught hold of her, one person from behind, who was the appellant No.3, husband of the deceased, to ld them to set her on fire, whom she could recognize by his voice. It has furthe r been submitted that the version of these witnesses recorded under Section 164 Cr.P.C. are also not consistent and as such it would not be safe to convict the appellants on the basis of such inconsistent version of the prosecution witnesse s, without there being any corroboration about the dying declaration made by the deceased. The learned counsel further submits that it is evident from the depos ition of PW-4, Dr. Ajit Kr. Phukan, who initially treated the deceased, as well as of Dr. Santosh Kr. Mitra (PW-10), who conducted the post mortem examination, that the deceased having received more than 80% burn injuries was not in a posit ion to speak and, therefore, the version of the prosecution witnesses that the d eceased made a dying declaration is not at all believable and hence the learned Trial Court ought not to have accepted such version of the prosecution witnesses relating to making of a dying declaration. Mr. Rajbarbhuiyan further submits th at PW-9, the daughter of the deceased also stated in her evidence that the decea sed was not in the state to speak. Referring to the contents of the FIR (Ext.-11 ) as well as the deposition of PWs-2 and 3, the brothers of the deceased, and al so of PW-9, the daughter of the deceased, it has further been submitted by the l earned counsel that those witnesses have not implicated the appellant No.3, Md. Abdul Kalam, the husband of the deceased, in any manner and as such he ought not to have been convicted on the basis of the testimony of PW-1, when his version is not consistent and has not been corroborated by the other witnesses. The lear ned counsel, therefore, submits that the conviction recorded against the appella nts needs to be set aside. 7. Mr. Das, the learned Public Prosecutor, on the other hand has submitted that it is evident from the deposition of PWs-1, 2, 3, 6 and 7, the brothers of the deceased, that an oral dying declaration was made by the deceased in their p resence implicating all the appellants and their testimony cannot be discarded o nly on the ground that the PWs-2 and 3 did not implicate the husband of the dece ased, namely, the appellant No.3, when PWs-1, 6 and 7 have categorically stated about making such dying declaration by the deceased implicating the appellant No .3 also. According to Mr. Das, making of a dying declaration and its contents, i n fact, have been corroborated by the FIR, which has been proved as Ext.-11. The learned Public Prosecutor, therefore, submits that the prosecution could bring home the charge against the appellants by adducing cogent and reliable evidence relating to making of an oral dying declaration by the deceased. It has further been submitted that the general opinion of the doctor, namely, Dr. Ajit Kr. Phuk an (PW-4) and Dr. Santosh Kr. Mitra (PW-10) about a person’s inability to speak, is not at all acceptable, in view of the clear evidence on record that the dece ased was in a position to speak and made the oral dying declaration, even though she received 80% burn injuries. Such opinion of the doctor, in view of such pos itive evidence on record, cannot be accepted, submits the learned counsel. The l earned Public Prosecutor further submits that making of the oral dying declarati on by the deceased coupled with the conduct of the accused appellants in not inf orming the family members of the victim, amply proves the culpability of the acc used appellants and hence the learned Trial Court has rightly convicted them und er Section 302/34 IPC, they having a common intention to kill the deceased. 8. We have considered the submissions of the learned counsel for the partie s and also perused the evidences on record, both oral and documentary, as well a s the judgment of conviction passed by the learned Trial Court. 9. The learned Sessions Judge, as noticed above, has convicted the accused appellants on the basis of the dying declaration allegedly made by the deceased before the PWs-1, 2, 3, 6 and 7, who are the brothers of the deceased. The learn ed Sessions Judge has also rejected the opinion of the PW-4 and PW-10, the docto rs, who treated the deceased initially at Dhubri Civil Hospital and conducted th e autopsy, respectively, in view of the positive evidence available on record ab out the capability of the deceased to speak even after receipt of the burn injur ies. To appreciate as to whether the learned Sessions Judge has rightly convicte d the appellants under Section 302/34 IPC, we shall now discuss the evidences of the witnesses in details. 10. Md. Baktar Ali Bepari (PW-1) in his evidence has stated that on receivin g the information relating to the hospitalization of his sister (deceased) in Dh ubri Civil Hospital, he went there and found her capable of speaking. He has fur ther deposed that his sister had told Md. Abdul Khaleque (PW-3), who arrived the hospital one hour before him, that her husband Md. Abdul Kalam (appellant No.3) , Md. Azim Ali (appellant No.1) and Md. Abdul Baten (appellant No.2) inflicted b urn injuries on her body and accordingly Md. Abdul Khaleque (PW-3) lodged the FI R with Gouripur Police Station. According to this witness when he asked the dece ased how she received the burn injuries, she told him that Md. Abdul Kalam (appe llant No.3) and Md. Baten Ali alias Md. Abdul Baten alias Balin (appellant No.2) inflicted the burn injuries on her person. This witness during cross-examinatio n has stated that his sister (deceased) was taken to hospital by her husband and his relatives including the appellant Nos.1 and 2. According to this witness bo th the appellant No.3 i.e. the husband and the deceased maintained a good relati onship, though they did not have the normal relationship with other family membe rs. In his statement recorded under Section 164 Cr.P.C., which has been proved a s Ext.-1, he had, however, stated that on being asked, his sister (deceased Sabe da alias Jabeda Bibi) informed him that accused Azim Ali alias Md. Abdul Azim an d Md. Baten Ali alias Md. Abdul Baten, the appellant Nos.1 and 2 respectively, h old her while one person from behind asked them to set her on fire and according ly the said two persons, namely, appellant Nos.1 and 2 set her on fire. In his s tatement recorded under Section 164 Cr.P.C. this witness, had not implicated the appellant No.3, namely, Abdul Kalam, the husband of the deceased. 11. PW-2 Md. Abdul Kader, another brother of the deceased has deposed that o n getting the information about the hospitalization of the deceased, he went to Dhubri Civil Hospital and saw his sister (deceased) with burn injuries all over her body. This witness has further deposed that on being asked, his sister told him that Md. Abdul Azim alias Azim Ali (appellant No.1) and Balin alias Md. Abdu l Baten (appellant No.2) had caused burn injuries on her person by pouring keros ene and setting her on fire. She was also found to be capable of speaking. This witness has further stated that the deceased also told him that her husband was present at home. During cross-examination this witness has further deposed that the deceased had a peaceful life with her husband and lived together and on the day of occurrence her husband was sleeping in a separate room. In his statement recorded under Section 164 Cr.P.C. this witness, however, had stated that, he wa s told by the deceased that while the appellant Nos.1 and 2 had pressed her down , someone ordered from behind to set her on fire, where upon she was set on fire by the appellant Nos.1 and 2. The person who allegedly ordered to set the decea sed on fire was, however, not named. 12. PW-3, Md. Abdul Khaleque, the first informant, another brother of the de ceased, in his evidence has also stated that he went to Dhubri Civil Hospital on receiving the information relating to the hospitalization of his sister (deceas ed) and when asked, she told him that Md. Azim Ali and Balin alias Md. Abdul Bat en, (appellant Nos.1 and 2), caused the burn injuries by setting her on fire whi le her husband (appellant No.3) was in another room and accordingly he lodged th e FIR. This witness also during cross-examination has stated that the deceased a nd her husband (appellant No.3) lived together peacefully and separately from ot her brothers. This witness in his statement under Section 164 Cr.P.C. had, also stated that the deceased told him that while the appellant Nos.1 and 2 pressed h er down, she heard someone asking them to set her on fire, without, however, nam ing the said person. 13. PW-6 Md. Kader Ali, the step brother of the deceased, also in his eviden ce has stated that he went to Dhubri Civil Hospital on receiving the information about his sister’s hospitalization, where on being asked the deceased told that while she was sleeping, cold liquid was sprinkled over her body and found Md. A bdul Azim and Balin alias Md. Abdul Baten (appellant Nos.1 and 2 respectively) i n her room and while one of them caught hold of her hand, the other person set h er on fire and when she raised alarm, they disappeared therefrom. This witness h as further stated that in the hospital Dr. Tapan Mazumder was present when the d eceased made her statement before him. This witness however, in his statement re corded under Section 164 Cr.P.C. had stated that the deceased told him that whil e the appellant Nos.1 and 2 were holding her, another person from behind asked t hem to set her on fire, which they accordingly did. In his said statement the th ird person had not been named. 14. PW-7 Md. Abdul Kuddus, another brother of the deceased, who was also in the hospital, has stated that the deceased told that while Md. Azim Ali (appella nt No.1) and Balin alias Md. Abdul Baten (appellant No.2) was holding her, one p erson from behind, whom she could recognize by the voice as her husband Md. Abdu l Kalam, appellant No.3, asked them to set her on fire and accordingly they set her on fire. This witness during cross-examination, however, has stated that he did not inform either the doctor or the police personnel present about making su ch oral dying declaration and both his sister and her husband lived together pea cefully. There is, however, not much contradiction with the version of this witn ess recorded under Section 164 Cr.P.C. except, in such statement while he did no t name the third person who told the appellant Nos.1 and 2 to set the deceased o n fire, in his evidence before the Court he named the third person as the appell ant No.3, the husband of the deceased. 15. PW-9 Mustt. Manowara Begam is the daughter of the deceased, who deposed that on the day of incident, she was present in the house and her father was sle eping in another room. This witness has further stated that her uncles, namely, the appellant Nos.1 and 2 were also in the house, when the occurrence took place . During cross-examination this witness has stated that all her brothers and sis ters were sleeping with their mother in the room and while her mother tried to e xtinguish the fire, her father also tried to extinguish the fire on the person o f her mother. She has further deposed that her father and the uncles took her mo ther to the hospital and she was unable to talk at that time. She has further st ated that her mother had good relation with her father and they were living sepa rately from other accused persons. 16. PW-8 Md. Amzad Ali was a neighbourer, whose evidence is not of much impo rtance, as he did not speak anything about any dying declaration made by the dec eased. This witness has only stated that he along with others removed the deceas ed to the hospital and subsequently he came to know that she died in Cooch Bihar . PW-8 is a witness to the seizure memo being Ext.-9, by which some ashes and re mnants of paddy straw and small pieces of the burnt saree were seized by the pol ice on 10.01.2005. 17. PW-11 Sri Biswajit Bose was the Investigating Officer, who investigated Gouripur P.S. Case No.10/2005 and also proved the seizure memo (Ext.-9), the fir st information report (Ext.-11), the charge-sheet (Ext.-12) and the sketch map ( Ext.-13). 18. PW-5 Sri Amalesh Sarkar was the ASI of Police attached to Katowali Polic e Station in Cooch Bihar District, West Bengal, who conducted the inquest over t he dead body of Jabeda @ Sabeda Bibi and send the body for post mortem examinati on. This witness has proved the supplementary case diary maintained by him as Ex ts.-4 and 5 as well as the carbon copy of the inquest report (Ext.-6). 19. Dr. Ajit Kr. Phukan (PW-4), who initially treated the deceased in Dhubri Civil Hospital, in his evidence has stated that on 08.01.2005 he treated the de ceased and found 80% burn injuries on her person. According to this witness, con sidering her condition, though she was referred to Guwahati Medical College and Hospital, her relatives took her to Cooch Bihar. During cross-examination this w itness has stated that the person receiving more than 40% burn injuries cannot s peak and the person with 80% burn injuries suffers septisemia forthwith and in s uch cases there is no question of recording any statement of such person by any Magistrate, police or doctor. According to this witness, the deceased did not te ll anything before him. 20. PW-10, Dr. P.K. Choudhury, who conducted the autopsy over the dead body of Jabeda alias Sabeda Bibi on 10.01.2005, while proving such report as Ext.-10, has deposed that the deceased received 100% burn injuries and in his opinion de ath was due to complications arising out of burn injuries, which are ante mortem in nature. This witness has further stated that with 100% burn injuries a patie nt becomes unable to speak. PW-10 found the following burn injuries on the body of the deceased:- Partial & full thickness burn all over the body from head to upper part of foot (mostly anterior surface) with typical smell of similar burn & chars & also red ness of the floor of the burn. Few blisters also noted. Skin of some portion of burnt area peeled off. 21. Section 32 of the Indian Evidence Act provides that the statements, writ ten or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance canno t be procured without an amount of delay or expense which, under the circumstanc es of the case, appears to the Court unreasonable, are themselves relevant facts , when it relates to cause of death, or is made in course of business, or agains t interest of maker, or gives opinion as to public right or custom, or matters o f general interest, or relates to existence of relationship, or is made in will or deed relating to family affairs, or in document relating to transaction menti oned in section 13(a), or is made by several persons, and expresses feelings rel evant to matter in question. Section 32 is an exception to the general rule agai nst admissibility of hearsay, as it is the general rule that all oral evidence m ust be direct. Clause (1) of Section 32, therefore, makes relevant what is gener ally called as dying declaration. A dying declaration, if found reliable, can fo rm the basis of conviction. It is a piece of evidence, stands on the same footin g as any other piece of evidence adduced in a proceeding. The acceptability of t he dying declaration has to be judged and appreciated in the light of the circum stances of each case and it has to be weighed by reference to the principles gov erning the weighing of other evidence. Since a dying declaration is not made on oath and the maker of the dying declaration cannot be subjected to cross-examina tion, the courts are to be on guard while testing its reliability. The court has also the obligation to closely scrutinize all the relevant attendant circumstan ces while testing its reliability, truthfulness as well as the voluntariness. It is not always necessary that the Court for the purpose of recording conviction on the basis of the dying declaration has to look for corroboration. Looking for corroboration is a rule of prudence only and if there is some doubt in the mind of the Court, it may look for corroboration before recording the conviction. Ho wever, if the Court finds certain infirmities in such dying declaration, which r enders the dying declaration so infirm as to prick the conscience of the Court, it may refuse to accept the same as the basis for conviction. 22. Since the maker of the dying declaration cannot be subjected to cross-ex amination by the accused, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court relating to its trut hfulness as well as correctness. The Court has always to be on guard to see that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. Before accepting the dying declaration and based c onviction on that the Court must come to a finding that the deceased was in