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2002 DIGILAW 672 (CAL)

Lakshman Dalui v. State of West Bengal

2002-10-08

Narayan Chandra Sil, Sujit Barman Roy

body2002
JUDGMENT Narayan Chandra Sil, J. This appeal was directed against the judgment and order of conviction and sentence dated 1.12.1995 passed by Sri D.K. Bhattacharyya, learned Additional District and Sessions Judge, Third Court, Suri, Birbhum in connection with Sessions Case No.42 of 1993. 2. Prosecution case in brief, as it appears from the written complaint filed by Nitya Dalui, father of the victim girl Sita Dalui is that Sita was married to the appellant Laksman Dalui. But since one year after her marriage she was being tortured by the members of her in-laws including her husband. Thus, in the evening of 30.11.1990 Nitya after having received an information went to Hukmapur along with some relatives and found her daughter lying with burn injury at Hukmapur Health Centre. Thereafter Nitya and others took her daughter to Suri Sadar Hospital and got her admitted there. It is stated in the written complaint that the parents-in-law, brother-in-law, sister-in-law and the husband of his daughter are responsible for the incident. Ultimately the victim Sita Dalui succumbed to her injuries after a few days. The police started the Suri P.S. Case No.208 of 1990 dated 8.12.90 under sections 498A/307 I.P.C on the basis of the said written complaint. After completion of the investigation police submitted charge-sheet against the appellant and others. Thereafter the case was committed to the court of the learned Sessions Judge, Suri who in his turn transferred the case to the court of the learned trial Judge. The record goes to show that the charge was framed under sections 302/34 and 49SA I.P.C. against six accused persons including the present appellant, Laksman Dalui. After completion of the trial the learned Judge acquitted all four accused persons from all the charges but he found the appellant Lakshman and his sister-in-law Sumitra Dauli guilty for committing offence under section 302 I.P.C and sentenced them to suffer rigorous imprisonment for life. 3.The record goes to show that as many as 19 witnesses were produced by the prosecution before the learned trial Judge out of whom the informant Nitya Dalui, the father of the deceased and P.W.3 were declared hostile by the prosecution and the PWs.2,4,5,6,7,S and 9 are all tendered by the prosecution. 3.The record goes to show that as many as 19 witnesses were produced by the prosecution before the learned trial Judge out of whom the informant Nitya Dalui, the father of the deceased and P.W.3 were declared hostile by the prosecution and the PWs.2,4,5,6,7,S and 9 are all tendered by the prosecution. It may be noted that although the P.W.S is the mother of the deceased she was tendered by the prosecution and she was cross-examined by the defence while the PWs4,5,6,7 and 9 were declined to be cross-examined by the defence. 4.The P.W.1 Nitya Dalui, stated in his examination-in-chief-that his daughter never made any compliant against her husband or in laws. It is also stated by the P.W.1 that he did not lodge any complaint with the police station. The statement made by the P.W.1 in his written complaint was confronted in his cross-examination by the prosecution which was of course denied by him. In his cross-examination by the defence the P.W.1 stated that he had not seen the appellant Lakshman at the time of the death of his daughter. It is also in his cross-examination that Sita had all along been unconscious when he saw her at the hospital. Nemai Karmakar is the P.W.3.He stated in his examination-in-chief that he knew nothing about the case and thereafter he was declared hostile by the prosecution. But to our utter dismay there appears nothing that the prosecution took any endeavour either to confront his statement made before the I.O. or to confirm the same from the I.O. It is interesting to note that although Anna Dalui is the mother of the victim she was only tendered by the prosecution and in her cross-examination she stated that her daughter was insane. She further stated that she does not know as to how Sita caught fire and Sita was all along unconscious in the hospital. 5. Both the P.Ws.10 and 11 are the brothers of the victim. And both of them expressed their ignorance as to how Sita caught fire. Thus both these two witnesses were declined to be cross-examined by the defence. The evidence of the P.W.12 is nothing better than his predecessors and that is why he was also declined to be cross-examined by the defence. And both of them expressed their ignorance as to how Sita caught fire. Thus both these two witnesses were declined to be cross-examined by the defence. The evidence of the P.W.12 is nothing better than his predecessors and that is why he was also declined to be cross-examined by the defence. Sri Sukumar Nath, the P.W.13 is the Medical Officer who held post-mortem examination over the corpse of Sit a Dalui and found the following injuries: “1). 1st and 2nd degree burn injury present on face, forehead and frontal region of the head including leaf and ears with burning and single of scalp. 2) 1st and 2nd degree burn injury present around the neck and all around the chest including the both the breasts. 3) 1st and 2nd degree burn injury present around the arms including palms and fingers. 4) 1st and 2nd degree burn injury present at places over the ventral aspect of rt. thigh and rt. leg and all over the ventral aspect of lower thigh except both the feet. 5) Fracture of 4th and 5th ribs of rt. side. 6) Rt. lung ruptured." P.W.13 opines that the death was due to "septic absorption from infection resulting from injuries associated with burn, antimortem and homicidal in nature. "In his cross-examination by the defence the P.W.13 stated, "The lady was first assaulted and then the fire was thrown on her." He further stated in his cross-examination that according to the "vital capacity" of a particular person one can live without lungs from 6 hrs. to 10 days. 6. Dr. Ajay Sen is the P.W.14. He stated in his evidence that he attended Sita Dalui at Suri Sadar Hospital on 30.11.1990 and found her whole body burnt with low general condition and the patient was in semi-coma stage. Thus, P.W.14 stated in his examination-in-chief: "The petient herself stated before me at the hospital that her burn injury was caused by her husband and other female relatives and I recorded it in writing." 7. The P.W.14 sent message for recording her dying declaration. The P.W.14 has proved the hospital paper in this regard (Ext.1) wherein it is specifically written in English as to what the patient stated for the cause of her injury. The P.W.14 sent message for recording her dying declaration. The P.W.14 has proved the hospital paper in this regard (Ext.1) wherein it is specifically written in English as to what the patient stated for the cause of her injury. The P.W.14 has also proved his letter (Ext.2) addressed to the O.C. Suri P.S. The P.W.14 also proved the bed-head ticket of Sit a Dalui (Ext.3) in his cross-examination the P.W.14 stated the patient can respond to any question even in semi-coma stage but the patient could say nothing voluntarily. The P.W.14 further stated in his cross-examination, "Nothing can be said from the record if the patient had any injury mark." Here, it may be mentioned that the P. W. 13 found fracture of 4th and 5th ribs of the right side of the patient and also right lung of the patient ruptured.(vide injury Nos.5 and 6).Those injuries were found by the P.W.13 on desection of the body at the time of post-mortem examination and naturally those internal injuries could not be detected outwardly by the P.W.14 and as such the same were not recorded by the P.W.14. 8. The P.W.15 is a police constable and formal witness. P.W.18 is an S.I. of Police who submitted only charge-sheet.P.W.19 is the Inspector of Police who received the written complaint and drew the formal F.I.R.(Ext.8). 9. Ashoke Kr.Patra, the P.W.16 is the Executive Magistrate who recorded the dying declaration of Sita Dalui at Suri Sadar Hospital on 9.12.90 at about 15.00 hrs. The P.W.16 thus stated in his examination-in-chief: "Smt. sita Dalui w/o Shri Laxman Dalui of Vill. Hukmapur P.S. Suri stated in her dying declaration that his elder-sister-in-law(Boudi) in a room of his house, Smt. Sita Dalui forbed him to do so because he had his own children. Then Lakshman started beating her and forcibly put Smt. Sita Dalui into a room and she lost her sense. When she recovered her senses, she found herself set on fire with Laksman around her. She had the idea that Shri Laxman and his Boudi had set fire on her ."(emphasis supplied). 10. The P.W.16 then stated in his examination-in-chief-that he got the dying declaration of the victim typed at his office and then put his signature with date. When she recovered her senses, she found herself set on fire with Laksman around her. She had the idea that Shri Laxman and his Boudi had set fire on her ."(emphasis supplied). 10. The P.W.16 then stated in his examination-in-chief-that he got the dying declaration of the victim typed at his office and then put his signature with date. He proved the said dying declaration recorded by him(Ext.4) and his endorsement made therein(Ext.4).Although the learned trial Judge while recording the evidence of the P.W.16 dictated that the endorsement was marked as Ext.4/1 but to our utter dismay there appears no such endorsement in the sheet used for recording the dying declaration. With all probability the signature of the learned Executive Magistrate was to be exhibited but instead out of sheer callousness the learned trial Judge made such comment in the deposition sheet. In his cross-examination the P.W.16 stated that he could not recollect when the dying declaration was typed in his office. But it appears from the date put by him after his signature that it was signed on 10.12.90 although it appears from his examination-in-chief that he recorded dying declaration at the hospital on the preyious day. In his cross-examination the P.W.16 also stated that the patient was identified by the Medical Officer but he did not obtain any signature of the said Medical Officer on the dying declaration recorded by him. It is admitted by him that the said dying declaration which was subsequently typed at his office does not bear any signature or L.T.I. of the petient. It is also admitted by him that the answers given by the patient were recorded in English and he did not record her verbatim statement. It is also submitted by him that there was no certificate given by the doctor that the patient was fit to make such declaration. 11. The P.W.l7 is the I.O. of this case. He recorded the statement of the witnesses particularly of the informant Nitya Dalui. It is in the evidence of the P.W.17 that Nitya Dalui stated to him that on the date of occurrence at about 11/2 /2 P.M., when Laxman Dalui embraced his sister-in-law Sumitra in her room and enjoying each other Sita protested for which Laxman assaulted Sita mercilessly and Sumitra scolded her. It is in the evidence of the P.W.17 that Nitya Dalui stated to him that on the date of occurrence at about 11/2 /2 P.M., when Laxman Dalui embraced his sister-in-law Sumitra in her room and enjoying each other Sita protested for which Laxman assaulted Sita mercilessly and Sumitra scolded her. It was also stated by the P.W.1 to the I.O. that Laxman thereafter took Sita to his room and poured kerosene oil on her clothes and set her on fire for which Sita lost her sense. The P.W.17 did of course not submit the charge sheet in this case. The P.W.17 also recorded the dying declaration of the victim girl on 9.12.90 at Suri hospital but he did not find the said recorded statement relating to the dying declaration of the victim in the case diary. 12. Thus from the analysis of evidence of the witnesses as discussed above it is very much candid that the porsecution case hinges only on the dying declarations of the deceased made two different persons/authorities. This was what was realised properly by the learned counsel for the appellants for which Mr. Banerjee has referred to a number case laws on the dying declaration. 13. In the case of Jagga Singh vs. State of Punjab, 1995 C.Cr. LRCSC) 18, the prosecution case against the appellant was that the victim girl Nihalo and her brother were left to the care of the accused during the short absence of their father. Taking advantage of this position the accused attempted to commit rape of the deceased Nihalo, a young girl. As the girl protested to this on the next day she was murdered by setting her on fire by pouring kerosene on her and bolting her inside a room. On these allegations he was tried but was acquittal by the Trial Court. In High Court, however, the acquittal order was set aside and the accused was convicted under section 302 I.P.C. and sentenced to imprisonment for life. Against that order of conviction the Hon'ble Apex Court was moved. In deciding that matter the Hon'ble Apex Court found some infirmities in the dying declaration of the deceased inasmuch as the P.W.2, Dr. In High Court, however, the acquittal order was set aside and the accused was convicted under section 302 I.P.C. and sentenced to imprisonment for life. Against that order of conviction the Hon'ble Apex Court was moved. In deciding that matter the Hon'ble Apex Court found some infirmities in the dying declaration of the deceased inasmuch as the P.W.2, Dr. Surinder Sharma, who had testified about the fitness of Nihalo to make the statement in question, had not been asked by P.W.11 ASI Harbans Singh, who recorded the declaration, to make his endorsement in the declaration though the doctor was present at the time the statement was recorded, as admitted by P.W.11 on his being questions by the court. In such circumstances, the Apex Court found sufficient ground to throw doubt on the correctness of the statements which find place in dying declaration. 14. In the case of Maniram vs. State of Madhya Pradesh, 1994 C.Cr.LR (SC) 118, the determination of the point before the Hon'ble Apex Court was as to whether the dying declaration, in the absence of any other evidence and not being attested by the doctor or signed by the declarant, could form basis of a conviction and it was held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In that case there was no other evidence against the appellant except the said dying declaration. 15. In the case of Kishori Das vs.8tate of West Bengal, 1996 C Cr.LR(Cal) 294, the ratio decided in the case of Jagga Singh (supra) was relied upon. However, in the said case it was observed by the Division Bench of this Court that it is the general practice in every hospital that a rostar is maintained for the nurses on duty and the name of the nurses could have been ascertained very easily from there. That has not been done. A doctor was present in the hospital but his service was not requisitioned for ascertaining the physical and mental condition of the deceased and the dying declaration (Ext.18) did not show who were present at the time of making such statement by the victim. That has not been done. A doctor was present in the hospital but his service was not requisitioned for ascertaining the physical and mental condition of the deceased and the dying declaration (Ext.18) did not show who were present at the time of making such statement by the victim. And that being the position it was held by the Division Bench of this Court that there may be a suspicion that the accused had committed the offence but suspicion cannot take place of proof. 16. It was held in the case of State of U.P. vs. Shishupal Singh, 1994 Crl.L.J.617, that the conviction can safely be placed on a dying declaration provided it is free from vice of infirmities and dying declaration commands acceptance at the hands of court. Thus in the said case dying declaration was recorded by Magistrate which was neither signed by the deceased, nor contained date and time of its recording and prosecution failed to give any explanation that the deceased was not in a position to sign it. The said case was purely based on the dying declaration and it was held by the Apex Court that such dying declaration which was impregnat with so many suspicious circumstances which created doubt about its genuineness. It could hardly be sufficient as an unimpeachable document for safely basing the conviction of accused. 17. Mr. Banerjee has also referred to the ratio decided in the case of Dandu Lakshmi Reddy vs. State of A.P., 2000 C Cr.LR (SC) 79. In the said case the deceased Lakshmi Devi was married with the appellant before 8 years of her death. It was alleged that on the date of the incident the appellant caught hold of her hair from behind and her mother-in-law doused kerosene on her and the appellant lighted a match stick by which she caught fire. The neighbours came on hearing her screams and extinguished the fire. She was taken to the Government Hospital where she made dying declaration before the Magistrate as well as the police. The victim ultimately died due to the burn injuries. The appellant and his mother on trial were convicted under sections 302/34 I.P.C and were sentenced to imprisonment for life. The point for consideration before the Apex Court was whether the dying declaration of the victim can be relied upon to sustain conviction of the appellants. The victim ultimately died due to the burn injuries. The appellant and his mother on trial were convicted under sections 302/34 I.P.C and were sentenced to imprisonment for life. The point for consideration before the Apex Court was whether the dying declaration of the victim can be relied upon to sustain conviction of the appellants. It was held by the Apex Court that first amongst such tests to scrutinize whether the dying declarations contain nothing but truth is whether there are inherent improbabilities in that version. The Hon'ble Apex Court did not find any such improbability inherent therein but material contradiction as between the two dying declarations regarding the context in which deceased caught fire came to the notice of the Hon'ble Apex Court from the evidence that all the neighbours stated in one accord that two cousins of the deceased were brainwashing the deceased at the hospital and the defence had persisted with the said line during cross-examination of the witnesses right from beginning. And the own parents of the deceased submitted that those two cousins had scores to settle with the appellant on account of a property dispute and that these two were bound in confabulation with Lakshmi Devi at the hospital. In such circumstances, the Hon'ble Apex Court held that it would be unsafe to convict any persons on the strength of such a fragile and rickety dying declaration. 18. Mr. Banerjee has then referred to the ratio decided in the case of Kajal Sen vs. State of Assam, 2002(2) SCC 551 .In the said case P.W.10 stated in his evidence that the dying declaration of the deceased was recorded at 11 p.m. and the deceased made the same in Bengali language which he translated in English and explained the dying declaration by translating it in Bengali to the deceased. He also admitted that the patient was surrounded by many attendants and they were talking with the deceased but he was not hearing the same. He also admitted that he was knowing Bengali. He heard the entire statement of Piklu in Bengali and keeping the same in memory, he wrote down the dying declaration in English. He admits that he did not mention so in the dying declaration. It was suggested to him that the dying declaration was prepared after the death of Piklu. He also admitted that he was knowing Bengali. He heard the entire statement of Piklu in Bengali and keeping the same in memory, he wrote down the dying declaration in English. He admits that he did not mention so in the dying declaration. It was suggested to him that the dying declaration was prepared after the death of Piklu. He had also not taken a bed head ticket in which the treatment and condition of the patient were recorded. Further, it was difficult to believe, the Hon'ble Apex Court observed, that the deceased would state that the same will be considered as his dying declaration and so it was held that the entire story of recording the dying declaration was doubtful. 19. Mr.Baneljee has then referred to a very recent judgment of the two Hon'ble Judges' Bench of the Apex Court in the case of R.H.Khristi & Anr. vs. State of Gujarat, 2002 SCCL. COM 440. In the said case it was held by the Apex Court that the dying declaration can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration and court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaring can be acted upon without any corroboration. In the said case none of the dying declarations contain any certificate by the doctor about the mental fitness of the deceased to make a statement although the doctor was always available and as such the dying declaration so recorded failed to inspire confidence. 20. Mr. Kazi Safiullah, the learned P.P. appearing for the respondent/State submits before us that in the instant case there were two dying declarations within a gap of 4 days and the said fact supports the case that the deceased survived for 4 days and also thereafter 3 days. It is also pointed out by him that no question was put to the witnesses as regards the mental fitness of the victim to give such dying declarations. It is also pointed out by him that no question was put to the witnesses as regards the mental fitness of the victim to give such dying declarations. It is further argued by him that from the facts and circumstances of this case even without taking the help of section 80 of the Evidence Act conviction can stand supported on the basis of the dying declaration alone. 21. Mr.Kazi Safiullah, the learned Public Prosecutor has referred to the ratio decided in the case of Shambhu vs. State of Madhya Pradesh, 2002 CRI J.1778, in which doctor had certified that the deceased was in a fit state to make statement and thus it came in the evidence particularly in the dying declaration of the deceased that accused had poured kerosene on her and set her on fire. The said dying declaration was corroborated by the fact that deceased was found with burn injuries near the house of the accused and in such circumstances the Hon'ble Apex Court was pleased to hold that the accused was liable to be convicted for the offence of murder. 22. Now after considering the various judicial pronouncements made by the Apex Court and the High Courts it appears that the core thing to be considered from the dying declaration is as to whether the circumstances under which the dying declaration was recorded inspire the confidence of the Court and in doing so the court is also to determine the physical capability of the declarant to make such statement .In view of several conflicting decisions made in various judicial pronouncement the Hon'ble Apex Court in a very recent judgment passed by a 5 Hon'ble Judges' Bench in the case of Laxman vs. State of Maharashtra, 2002 SCCL COM 466, held that a dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It was also observed by the Hon'ble Apex Court that in most cases, however, such statements are made orally before death ensues and is reduced to writing by some one like a Magistrate or a doctor or a police officer. It was also observed by the Hon'ble Apex Court that in most cases, however, such statements are made orally before death ensues and is reduced to writing by some one like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. It was also held by the Hon'ble Apex Court that 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, the Hon'ble Apex Court further observed, what evidential value of 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. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise, the Hon'ble Apex Court further held. In the said case the Hon'ble Apex Court while referring the ratio decided by the said Court in the case of P.Rosamma & Ors. vs. State of Andhra Pradesh, 1999(7) SCC 695 , observe that it is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions who had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. 23. In the instant case the dying declaration of the victim, Sita Dalui was not only recorded by her attending physician Dr. 23. In the instant case the dying declaration of the victim, Sita Dalui was not only recorded by her attending physician Dr. Ajoy Sen, P.W.14 but thereafter the dying declaration of the victim was recorded by Mr. Ashok Kumar Patra, P.W.16,the Executive Magistrate. We have already discussed and quoted the relevant portion of the evidence of those two P.Ws. in the foregoing lines. 24. It is true that the P.W.14 did not make any endorsement in writing as regards the mental fitness of the deceased to make such dying declaration and both the P.Ws.14 and 16 recorded the statement of the victim girl in English. The cross-examination of the P.W.14 will show as we have already discussed, that the victim was in a position to respond to any question in her condition. This speaks of the mental fitness of the patient to give replies to the query of her attending physician. And the evidence of P.W.16 as quoted by us in the foregoing lines, goes to show that the victim narrated the incident as to how her husband set her on fire. The P.W.14 appears to have kept a note of the dying declaration in the hospital paper on 4.12.1990 and P.W.16 recorded the dying declaration on 9.12.1990.This supports the evidence of the P.W.14 that the patient was in a position to give the statement at the material point to time, for, the patient was alive few days more after she gave her dying declaration to the P.W.14. In fact, the patient died ultimately on 11.12.1990 at 3 a.m. i.e. after two days of the P.W.16 recorded her dying declaration. On a close scrutiny of the dying declaration recorded by the P.W.14 and P.W.16 we do not find any clear indictment of the other appellant Sumitra Dalui, sister-in-law of the victim for the offence under section 302 I.P.C. and as such we do not find any basis of her conviction under section 302 I.P.C. given by the learned trial Judge. 25. Now, having followed the ratio decided in the case of Laxman vs. State of Maharashtra (supra) we must hold that the dying declaration as recorded by the P.Ws.14 and 16 inspires our confidence that it was the appellant Laxman Dalui who set Sita Dalui on fire. 25. Now, having followed the ratio decided in the case of Laxman vs. State of Maharashtra (supra) we must hold that the dying declaration as recorded by the P.Ws.14 and 16 inspires our confidence that it was the appellant Laxman Dalui who set Sita Dalui on fire. In this connection, we have also taken it into consideration that the informant Netai Dalui, the father of the deceased turned hostile and so also the P.Ws. 10 and 11 who are the brothers of the deceased practically said nothing against the appellants in their evidence. It is all the more interesting to note that both the P.Ws.10 and 11 stated in their evidence that they did not know as to how their sister Sita caught fire. In this connection, it has also not escaped our sight that the dying declaration recorded by the police officer was missing from the case diary. Was it that the appellants had any under hand behind all this? And whatever might be the answer and the outcome of any nebulous speculation in this regard, the dying declarations made by the victim to her attending physician and thereafter to the Executive Magistrate within a gap of few days left the un-mistakenable stamp to indict the appellant Lakshman Dalui for causing the death of Sit a by seeting her on fire. 26. But although we have placed our reliance and confidence on the dying declarations recorded by the P.Ws.14 and 16 we would like to make it perspicuous and candid that both the attending Physician and the Executive Magistrate had shown their utter callousness by not observing the minimum tenets and norms in this regard. The learned Executive Magistrate did not take the signature of the attending physician though he was present when the dying declaration was recorded by him and what we all the more depricate is that the learned Executive Magistrate gave the dictation of such dying declaration of the deceased on the next day at his office and got it typed in English, which was definitely not the vernacular of the victim. And the attending physician though recorded the dying declaration on the medical paper of the hospital schewed himself from mentioning the name of any other person present there or to put the specific date of recording such statement. And the attending physician though recorded the dying declaration on the medical paper of the hospital schewed himself from mentioning the name of any other person present there or to put the specific date of recording such statement. Dying declaration of a person is a very important piece of evidence as such the same is required to be recorded in the own language of the declarant particularly when the person who records such declaration known the language of the declarant. For all this we feel it necessary to send an extract of this judgment to the Chief Secretary of the Government of West Bengal through the Registrar General of this Court for circulation to the Secretaries of the concerned Departments so that the basic norms in recording the dying declarations are followed by the attending physician and the Magistrate. 27. Before drawing our conclusion we would like to mention here that the controversies in the judicial pronouncements as regards the dying declaration appearing in the case laws cited by the learned Advocate, for the appellants have been set at rest in the ratio decided by the 5 Judges Bench of the Hon'ble Apex Court in the case of Laxman vs. State of Maharashtra (supra). Moreover, the decisions made in those case laws cited by the learned Advocates for the appellants appear to have been qualified by the very facts and circumstances of each of those cases and for all these reasons the decisions made in those cases do not appear to have any application in the instant case. 28. In view of that has been discussed in the foregoing lines the appellant Sumitra Dalui is liable to be acquitted from the charge under section 302 I.P.C, but the judgment of conviction and sentence passed in respect of other appellant Laxman Dalui is liable to be affirmed. 29. The appeal is thus allowed in part. The appellant Sumitra Dalui is acquitted from the charge and conviction for committing offence under section 302 I.P.C, and she be released from the bail bond at once. But the judgment of conviction and sentence for the offence under section 302 I.P.C. passed against the other appellant Laxman Dalui is hereby affirmed. The judgment of conviction and sentence passed by the learned trial Judge is hereby modified accordingly. 30. A copy of this judgment along with L.C.R. be sent down to the learned lower court forthwith. But the judgment of conviction and sentence for the offence under section 302 I.P.C. passed against the other appellant Laxman Dalui is hereby affirmed. The judgment of conviction and sentence passed by the learned trial Judge is hereby modified accordingly. 30. A copy of this judgment along with L.C.R. be sent down to the learned lower court forthwith. Appeal allowed in part.