Girish Chandra Gupta, J.@mdashThis appeal is directed against a Judgment dated 24th March, 2009 by which the accused Anowara Bibi and her
son Sk. Gadai were both convicted of an offence punishable u/s 302 of the Indian Penal Code. By an order dated 25th March. 2009 both of them
were sentenced to imprisonment for life as also to pay a fine of Rs. 10,000/-(Rs. Ten thousand only) each in default of such payment they were
directed to undergo further imprisonment for a period of one year each. It is against this Judgment and Order that the present appeal was
preferred. The facts and circumstances of the case briefly stated are that a written complaint dated 2nd November, 2004 was lodged with the Suit
Police Station alleging that Rehana Bibi the daughter of the defacto-complainant Sk. Haradhan was set on fire at her matrimonial home by
Anowara the mother in law and Gadai her husband. On 1st November, 2004, at about 11 a.m. the victim was shifted to the Suri hospital where
she died on the same day at about 11 p.m. in the night. It was also alleged in the written complaint that ever since the marriage the victim was
continuously tortured at the matrimonial home by the accused persons. It is on this basis that the Suri Police Station Case No. 160 of 2004 u/s
498A/304B and 302 of the Indian Penal Code was started.
2. Mr. Ganguly, learned advocate, appearing in support of the appeal submitted that the judgment under challenge is perverse and cannot be
sustained. He took us through the evidence adduced by the prosecution P.W. 1, is Sk. Haradhan, father of the deceased. He was declared hostile.
He deposed that he did not know the contents of the written complaint. He also deposed that his daughter after the incident had no physical or
mental capacity to make any statement to anyone. He also deposed that the relationship between the husband and the wife as also between the
accused Anowara and the deceased was good and cordial. P.W. 2 is the mother of the deceased. She was also declared hostile. She deposed in
the same line as did her husband. P.W. 3 Sadeka Bibi, a sister of the P.W. 1, deposed that the victim had a love affair with a boy of the village
Dholtikuri. But the father of the victim was not agreeable to that match. She was instead given in marriage to the accused against her will. She as a
result, was suffering from depression. P.Ws. 4 and 5 are mere signatories to the inquest report. P.W. 5.
3. The inquest report does not contain any indication as to how did the victim Rehana Bibi contact fire. P.W. 6, is also a signatory to the inquest
report. P.W. 7, Sk. Alkash, and P.W. 8 Sk. Kamrul, were merely tendered. P.W. 9, Nurul Islam, is the scribe of the written complaint. He
admitted that he did not have any personal knowledge about the matter. He also admitted during his cross-examination that he had drafted the
written complaint on the request of the police officer and the villagers. He also admitted that the draft made by him was dictated by the police
officer. P.W. 10, is a co-villager of the accused persons. He was declared hostile. During his cross-examination by the defence, he deposed that
the victim did not want to stay with her husband because the marriage was contracted against her will. P.W. 11, is also a relation of the victim. He,
as a matter of fact, is P.W. 1''s sister''s husband. He was also declared hostile. During his cross-examination he deposed that when he met the
victim in hospital he found her in severe pain. P.W. 12, was merely tendered. P.W. 13, is the Autopsy Surgeon. He opined that the death was due
to shock and sepsis following 90% burn. During his cross-examination he was unable to express any definite opinion as to whether it was a case of
suicide or a case of homicide. P.W. 14, is a constable who identified the dead body at the morgue. P.W. 15, is a near relation of the victim. Her
name is Aspia Bibi. She is the person who had identified the victim to the learned Magistrate who recorded the dying declaration of the deceased.
She did not depose as regards any dying declaration allegedly made by the victim. She on the contrary deposed that she did not meet any learned
Magistrate. She admitted that she was in the hospital. She deposed that she had not identified the victim before the learned Magistrate. P.W. 16, is
an acquaintance of the P.W. 1. He is also a signatory to the dying declaration recorded by the learned Executive Magistrate. He identified his
signature in the dying declaration but added at the same time that he did not know the cause of the death.
4. Mr. Ganguly, submitted with some justification that if the P.W. 16 was present when the alleged dying declaration was made he could not have
been unaware of the cause of death. He was expected at least to disclose the statement or the gist thereof made by the deceased to the learned
Executive Magistrate. P.W. 17, is the Magistrate himself who recorded the dying declaration. He deposed that Aspia Bibi had identified the victim
to him.
5. We already have noticed the deposition of Aspia Bibi. During cross-examination the P.W. 17 deposed that he did not have any recollection as
regards the facts of the case except what appeared from the records. With regard to the presence of the doctor during recording of the statement
of the deceased he deposed that there is no specific mention in the document that the doctor was all along present. According to him the statement
of the deceased was recorded between 6.30 p.m. to 7.30 p.m. The case of the prosecution is that she died at 11 p.m. Rest of the witnesses who
had visited the victim at the hospital deposed that she was in severe pain and was in no condition to make any statement.
6. Mr. Ganguly submitted that in the facts of the case veracity of the so-called dying declaration is highly questionable.
7. Mr. Ganguly, also drew our attention to the medical records which were tendered in evidence. They are Exhibit 7 collectively. Dr. Tathagata
Ghosh was examined in this case as P.W. 19. He deposed during his cross examination that he had attended the victim. He also appears to have
made the following endorsement as regards the case history ""Homicidal burn by mother-in-law (as stated by patient) on 1.11.2004 at 12 noon"".
8. Mr. Ganguly, contended that the so-called dying declaration is inconsistent with the statement made to the doctor by the patient herself. If the
statement contemporaneously made to the doctor by the patient at the time of her admission and also recorded in the treatment sheet is accepted
then what would follow is that the husband was no way connected with the alleged offence.
9. Mr. Sanyal. learned A.P.P. did not dispute this proposition advanced by Mr. Ganguly.
10. Mr. Ganguly added that the mother-in-law Anowara Bibi is no more. He produced before us a death certificate which goes to show that
Anowara Bibi widow of Sk. Jardish died on 27th November, 2010. He therefore submitted that the appeal of the deceased Anowara Bibi has
abated and the appeal of the appellant Sk. Gadal should be allowed.
11. Mr. Sanyal, did not raise any objection nor did he even try to support the judgment in so far as the same affected the accused Sk. Gadai.
12. Accordingly, the appeal in so far as the appellant No. 1, Anowara Bibi, since deceased is concerned stands abated. The appeal in so far as the
appellant No. 2, Sk. Gadai, is concerned stands allowed. He is discharged of the bail bond furnished by him.
13. Let the operative portion of this Judgment and Order be communicated by the Criminal Section of this Court to the concerned learned Trial
Court under Chapter XI Rule 8 of the Appellate Side Rules of this Court forthwith for information and necessary action. Let a copy of the
Judgement along with the Lower Court records be sent down to the learned Trial Court forthwith.
Let a Photostat copy of the death certificate be kept on the record and the original be returned to Mr. Ganguly, learned advocate, appearing for
the appellants.
Raghunath Ray, J.
I agree.