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2012 DIGILAW 355 (GAU)

Bandana Patra v. State of Tripura

2012-03-16

SUBHASIS TALAPATRA, SWAPAN CHANDRA DAS

body2012
JUDGMENT S.C. Das, J. 1. The appellants named above, presented the manorandum of appeal under Section 374 of Cr PC, challenging the judgment & Order of conviction and sentence, dated 14.12.2007 and 15.12.2007 respectively, passed by learned Additional Sessions Judge (Court No. 2), West Tripura, Agartala in Sessions trial No. 47(WT/A) of 2006 whereby and whereunder learned Additional Sessions Judge found the appellants guilty of committing offence, punishable under Section 302 r/w Section 34 of IPC and sentenced them to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- (Rupees five thousand) each, in default of payment to suffer further imprisonment for 7(seven) days and further found them guilty of committing offence punishable under Section 498-A of IPC and sentenced them to suffer imprisonment for one year and directed both the sentences shall run concurrently. The judgment & order of conviction and sentence has been challenged in this appeal. We have heard learned senior counsel, Mr. A.C. Bhowmik, assisted by Learned Counsel, Mr. D.C. Roy & Mr. A. Bhowmik for the appellants and the learned Public Prosecutor, Mr. D. Sarkar, assisted by learned Advocate, Mr. R.C. Debnath, for the State-respondents. 2. In short, prosecution case is that Anjana (Acharjee) Patra, W/O Manohar Patra of Vivek Nagar, died on 09.06.2005 in the morning due to burn injury received by her on 03.06.2005 at about 12.30 hours at Vivek Nagar in her matrimonial home. Manohar Patra, in the year 1991, married Santanu Acharjee, the elder sister of Anjana Patra (Acharjee), (here after mentioned as Anjana) and Santanu & Manohar had 2(two) sons namely, Manoj Patra and Animesh Patra and at the time of birth of Animesh, Santanu had died. Manohar thereafter married Anjana and they started living at Siddhiashram and their third son Manish Patra was born there. In the month of Falgun (English Calendar month of February/March, 2005 A.D) Manohar with his wife shifted to his parent's house, at Viveknagar and started living in the parental home with his parents, Harimohan Patra and Chandika Patra, sisters Bandana Patra, Bebi Patra and brother Dulal Patra, for about one month in the same mess and thereafter, Manohar Patra with his wife and children were separated by his parents and they were in a separate mess but living in the same house. The appellants, sisters of Manohar Patra, could not gladly accept the marriage between Mahohar and Anjana and they subjected Anjana to cruelty in the matrimonial home in different ways and means. Manohar Patra used to leave the house in the morning and return at night. He used to deal with sale of ice cream. The accused persons i.e. the parents and sisters of Manohar used to quarrel with Anjana and they spread scandal that she had illicit relation with her brother-in-law, Dulal, which was totally false and fictitious. Anjana reported it to her husband. The parent's house of Anjana was just near to her matrimonial home where her sister Bandana Acharjee and other members of her matrimonial home were residing. On 03.06.2005, after Manohar left the home, the parents and sisters-in-law of Anjana picked up quarrel with her and abused her. Anjana left for telephone booth with her son, Manoj to report her husband but could not contact. She returned home and was engaged in cooking in the kitchen. It is the definite case of the prosecution that while she was cutting vegetables, at that time, the appellants Bebi Patra and Bandana Patra entered in the kitchen, poured kerosene oil on her body and set her to fire. Her sons, Manoj Patra and Manish Patra, were at home and they witnessed the occurrence and raised cry. Anjana also raised cry, neighbours came and shifted her to GB hospital, Agartala. It is the case of the prosecution that Anjana told witnesses, who came to the spot after occurrence, to her husband and also while examination by I.O. that the accused appellants after pouring kerosene on her, set her to fire. While her condition was deteriorated, I.O. submitted a prayer before the learned CJM and pursuant to that prayer of I.O. a Judicial Magistrate, First Class, Shri Sanjoy Bhattacharjee, was deputed to record the statement of Anjana and, accordingly, on 07.06.2005, the statement (dying declaration) of Anjana was recorded. She died, on 09.06.2005, in the morning as a result of burn injuries. 3. Initially, on the basis of a FIR lodged by Bandana Acharjee, younger sister of Anjana, Amtali PS Case No. 54/2005 was registered under Sections 498(A), 326, 109 r/w Section 34 of IPC and police investigation was taken up. Sub-Inspector, Manindra Ghosh of the Amtali PS was entrusted with the charge of investigation. 3. Initially, on the basis of a FIR lodged by Bandana Acharjee, younger sister of Anjana, Amtali PS Case No. 54/2005 was registered under Sections 498(A), 326, 109 r/w Section 34 of IPC and police investigation was taken up. Sub-Inspector, Manindra Ghosh of the Amtali PS was entrusted with the charge of investigation. The incident occurred at about 12.30 p.m. on, 03.06.2005. FIR was lodged immediately after the occurrence i.e. at about 13.15 hours on the same day. Since it was lodged just immediately after the occurrence it has got lot of importance. In the FIR, the informant, Bandana Acharjee inter alia stated that hearing hue and cry in the house of Anjana, she rushed there and found Anjana tossing about in the courtyard due to pain with burn injuries and on being asked, Anjana told in presence of other villagers that because of torture on her by her father-in-law (Harimohan Patra), mother-in-law (Chandika Patra) and sisters-in-law (Bebi Patra & Bandana Patra) and also some other relatives, she attempted to commit suicide by pouring kerosene and setting herself to fire. Maximum portion of her body was burnt and she was shifted to GB hospital by a Maruti car for treatment. 4. Investigating Officer, S.I. Manindra Ghosh, on 03.06.2005, recorded the statements of material witnesses namely, Bandana Acharjee, Rinku Gope, Halen Das, Puspa Rani Das and Haradhan Gope and also visited GB hospital in the evening but could not record the statement of Anjana, as she was found not able to make any statement and Doctor also advised him to the same effect He than arrested the FIR named accused persons. On his transfer, the investigation was taken up by Officer-in-Charge of the Police Station, SI Manindra Debnath, on 05.06.2005 and he examined witnesses namely, Manoj Patra, Animesh Patra and Manish Patra, all minor sons of Anjana and Manohar Patra (husband of Anjana), Dulal Patra (brother-in-law of Anjana) and another Pilu Sau (neighbour) and some other witnesses and recorded their statements. He made a prayer to the Chief Judicial Magistrate for recording the dying declaration of Anjana and accordingly, PW 13 (Sanjoy Bhattacharjee), recorded the statement in presence of PW 17 (Dr. Sujit Kr. Bhattacharjee) and PW 14 (Smt. Sipra Datta), the attending nurse of the deceased. He made a prayer to the Chief Judicial Magistrate for recording the dying declaration of Anjana and accordingly, PW 13 (Sanjoy Bhattacharjee), recorded the statement in presence of PW 17 (Dr. Sujit Kr. Bhattacharjee) and PW 14 (Smt. Sipra Datta), the attending nurse of the deceased. I.O. submitted charge sheet against the F.I.R. named persons for commission of offence punishable under Section 498-A and 302 of IPC read with Section 34 of IPC Charges were framed accordingly under Section 498-Aand 302 r/w Section 34 of IPC to which the accused persons pleaded not guilty and claimed to be tried. 5. In course of trial, the learned trial Judge recorded deposition of 19 witnesses of prosecution. Prosecution also proved the documents namely, the F.I.R., Inquest Report, Post Mortem Report, dying declaration with certificate of the Doctor and that apart the statements of hostile witnesses i.e. PWs 10 and 16, recorded by I.O. under Section 161 of Cr PC Accused persons were examined under Section 313 of Cr PC after closure of the prosecution evidence and they adduced no defence evidence. The Court below acquitted the accused Harimohan Patra & Chandika Patra and convicted the accused Bandana Patra & Bebi Patra and sentenced them, as aforesaid. 6. The judgment & order of conviction and sentence on the charge, under Section 498(A) read with Section 34 of IPC, has not been challenged. No argument was also advanced challenging the finding on the charge and sentence thereof at the time of argument of the case. 7. Learned senior counsel, Mr. Bhowmik, concentrated 18 his argument seriously challenging the finding on the charge under Section 302 r/w Section 34 of IPC. It was submitted by Mr. Bhowmik that deceased Anjana committed suicide out of sheer frustration, as she found her husband maintaining illicit relation with Bandana Acharjee and the fact of suicide has been reflected in the FIR lodged just immediately after the occurrence. The informant, Bandana Acharjee, made categorical statement in the FIR, lodged within 1 (one) hour of the incident that the deceased Anjana told her in presence of other villagers that she set herself to fire pouring kerosene for the cruelty exercised on her by her sisters-in-law and parents-in-law. The fact narrated in the F.I.R. has also been supported by PWs 10 and 16, who rushed to the spot just immediately after Anjana received the burn injuries. The fact narrated in the F.I.R. has also been supported by PWs 10 and 16, who rushed to the spot just immediately after Anjana received the burn injuries. PW 10 is the brother-in-law of Anjana and is the son of accused Harimohan & Chandika Patra and brother of Bandana & Bebi Patra. There is no point at all to disbelieve the evidence of PW 10. Learned Counsel further argued that PWs 6, 7 and 8 are child witnesses and the possibility of this witnesses being tutored, by their father (PW 9) and aunt (PW 4) to falsely implicate those persons, cannot be brushed aside and ignored and under the facts and circumstances of the case, the Court should not put any reliance on the oral testimony of those witnesses. It was also submitted by learned senior counsel that the physical condition of Anjana, after receipt of 80% burn injuries, was very serious and she was not able to make a statement, mentally and physically. The Bed-Head Tickets of the deceased Anjana (Ext. D series) shows that her condition was very poor and deteriorating day by day and what was the condition of her health on the date of her recording statement by the Magistrate was not at all recorded in the Bed-head Ticket. Ext. 8, the dying declaration, shows that it was recorded by Magistrate (PW 13) on 07.06.2005 at 16.45 hours whereas the Doctor (PW 17), who according to the prosecution was present and certified the condition of the deceased, gave his certificate at 6.30 p.m. Such material contradiction in respect of time of examination by the Doctor and recording of statement by Magistrate is bound to create a serious doubt about authenticity of the dying declaration and under such circumstances, no reliance can be placed on such dying declaration which is shrouded with suspicion and the prosecution case is liable to be disbelieved. 8. On the other hand, the learned Public Prosecutor, Mr. Sarkar, has submitted that each and every points argued by learned defence counsel has been categorically answered by the trial Court, assigning sufficient reasons and referring to the evidence on record. Under such circumstances, there is no scope left for reconsidering those points. 8. On the other hand, the learned Public Prosecutor, Mr. Sarkar, has submitted that each and every points argued by learned defence counsel has been categorically answered by the trial Court, assigning sufficient reasons and referring to the evidence on record. Under such circumstances, there is no scope left for reconsidering those points. It was also submitted that the informant lodged the FIR in a hurry, rushing to the Police Station immediately after seeing the victim with burn injuries, because of the fact that Anjana was all along subjected to torture by the accused persons and therefore, over much importance cannot be attached on the statement made in the FIR. Truth has come out in the statements of PWs 4, 6, 7 and 8 and more particularly, PWs 6 and 8 are the eye-witnesses of the occurrence, who had been in the family of the deceased and the accused persons. Their evidence cannot be ignored simply because they are child witnesses. They have made very natural statement and the trial Court made a fair appreciation of their evidence which is supported by the dying declaration of the deceased. Under such circumstances, it was submitted by learned Public Prosecutor that prosecution case is based on strong foundation of the evidence of eye-witnesses as well as dying declaration and while the trial Court has made a fair appreciation of the evidence, there is little scope to interfere in the finding of the trial Court by this Court in appeal. 9. We have considered the submissions of Learned Counsel of both sides and meticulously gone through the evidence and materials on record, so also the judgment passed by the learned Additional Sessions Judge (Court No. 2), West Tripura, Agartala. We find that the trial Judge carefully scrutinized every item of the evidence on record and arrived at a most reasonable conclusion. We are aware of the settled principle that if two versions emerged in a criminal case about an incident, the story which favours the accused should be accepted. We are also aware of the fact that the appellate Court shall consider the evidence and materials on record and the findings arrived at by the trial Court and if it is found that finding of the trial Court is based on the evidence on record, the appellate Court should not interfere in the appreciation of facts made by the trial Court. 10. 10. It is an undisputed fact that Anjana died due to burn injuries, received by her, in the matrimonial home at Bibek Nagar, on 03.06.2005 at about 12.30 hours. PW 11, the autopsy surgeon submitted the post-mortem Report (Ext. 6) and opined that the death was caused due to 'septicemia' as a result of burn injury. It was a case of 80% burn injury and was sufficient to cause death in ordinary course. 11. It is also an undisputed fact that FIR was lodged by PW 1, the sister of the deceased, within an hour of the occurrence, alleging that the deceased told her that the deceased set herself to fire after pouring kerosene oil, to get rid of the torture on her by her parents-in-law and sisters-in-law. In her deposition before Court she made a different statement that Anjana told her that she was set to fire by Harimohan, Bebi, Bandana and Chandika after pouring kerosene on her body. In her cross examination, she was confronted with the statement made in the FIR and her statement that Anjana told her that she set herself to fire after pouring kerosene, has been marked as Ext. A, which was denied to have made by her, but Ext. A was proved by PW 19, Officer-in-Charge of the PS, who recorded it. 12. PW 10 in his examination-in-Chief stated that on 03.06.2005 at about 11.30 a.m. he was in his uncle's house. At that time his "boudi" (Anjana) went there and he found her pale. He asked her as to what happened to which she did not reply. She then went back to house. Manoj (PW 6) and Manish (PW 8) also went back home. After 5/10 minutes Manish came back and informed him that kerosene was poured on the body of his boudi (Anjana), so he rushed home and went to kitchen and found her in fire and the door was volted from inside. He forcibly entered in the room after breaking the door and tried to extinguish fire. To his assessment, she set herself to fire. He raised alarm and other villagers rushed to the spot including that of PWs 2, 4 and 16. He forcibly entered in the room after breaking the door and tried to extinguish fire. To his assessment, she set herself to fire. He raised alarm and other villagers rushed to the spot including that of PWs 2, 4 and 16. He was declared hostile by the prosecution and his previous statement recorded by I.O. under Section 161 of Cr PC was referred to him to which he denied to have made the statement " that he was informed by his brother's son (Manish) that two of his (Manish) aunts (Bandana & Bebi) set his mother (Anjana) to fire. That portion of statement was marked as Ext. 5 and was proved by I.O. 13. PWs 1 and 10 were disbelieved by the trial Court since they made different statements at different stage. The trial Court assigned reason while disbelieving those witnesses for such categorical different statements in the facts and circumstances of the case where the eye-witnesses and dying declaration were believed. We find no cogent reason to take a different view than that what has been taken by the trial Court. 14. PW 16 in her examination-in-chief stated that on her query, Anjana told her that she set herself to fire. She was declared hostile by the prosecution and in cross-examination the portion of her previous statement, recorded by I.O., was referred to her that she told I.O. that at once she and Sukla Das lifted Anjana in the Maruti vehicle of Dulal (PW 10) and taken her to GB hospital with Puspa Rani Das and that portion of the statement was marked as Ext. 11, which was proved by I.O. In cross by the defense, she reiterated that what she deposed before the Court was the statement made before the I.O. That part of her statement that Anjana set herself to fire has not been rebutted but the trial Court disbelieved the witness while the evidence of other eye-witnesses and the dying declaration was believed because of overwhelming evidence on record. 15. Let us now consider the evidence of other witnesses and the dying declaration of the deceased. Defence, while relying on the FIR and the evidence of PWs 10 and 16 has confidently argued that the deceased made statement after receipt of burn injuries, which means, she was in a position to speak. The contention of defence was that her condition deteriorated gradually. Defence, while relying on the FIR and the evidence of PWs 10 and 16 has confidently argued that the deceased made statement after receipt of burn injuries, which means, she was in a position to speak. The contention of defence was that her condition deteriorated gradually. It was recorded in bed-head ticket, that her condition was very poor and under such circumstances, it should be presumed that she could not speak clearly or that what she stated was an imagination or as tutored by Puspa Rani Das (PW 4). Prosecution case is that the evidence of PWs 6 and 8 has remained unrebutted. Evidence of PW 9, the husband of the deceased, who is full blood brother of the accused appellants, has also remained unrebutted and such evidence while corroborating with the dying declaration, there is no escape from the conclusion that the appellants committed the offence. 16. After meticulously going through the evidence of PWs 2, 3, 4, 6, 8, 10 and 16 we find that Manish (PW 8) first reported to PW 10 that kerosene was poured on his mother and she was burning. Dulal (PW 10) rushed there, in the meantime, alarm was raised by Manoj (PW 6) and the victim Anjana and hearing their cries the other witnesses i.e. PWs 2, 3, 4 and 16 rushed there and they found Anjana with burn injuries and her cloths were almost burnt and some other cloths were put to her and with the vehicle of PW 10, she was immediately taken to hospital by PW 10 and PW 4 accompanied her. If we carefully scrutinize the evidence, we find presence of PWs 8 and 6 at the time of occurrence. It is unrebutted evidence that there was a quarrel between the deceased Anjana and the accused persons, immediately before the occurrence and after the quarrel, Anjana with PW 6 (Manoj) went to telephone booth to inform PW 9 but could not and, thereafter, they returned. This fact has not been denied, even by the defence, which has come out from the mouth of PW 10 also. After a few minutes of return of Anjana to the house, the incident occurred and Dulal (PW 10) was informed by, Manish (PW 8) about the incident of fire. This fact has not been denied, even by the defence, which has come out from the mouth of PW 10 also. After a few minutes of return of Anjana to the house, the incident occurred and Dulal (PW 10) was informed by, Manish (PW 8) about the incident of fire. These bundle of facts, on careful scrutiny, makes it clear that immediately after the occurrence, witnesses rushed there and PW 10 (Dulal) with his Maruti vehicle lifted Anjana to hospital. It might happen that PW 1 (Bandana Acharjee), the younger sister of victim (Anjana) went there some times thereafter and rushed to Police Station and lodged the FIR but no such fact brought on record. It was therefore/rightly-observed by the trial Court that PW 1 made a false statement in the FIR and PW 10 though, is a very important witness of the occurrence, but might be due to natural relation, to protect his parents and younger sisters, went back to the truth and made a statement that to his assessment Anjana set herself to fire. He stated nothing that Anjana was not in a position to speak or that she made statement that she set herself to fire. On the other hand, we find from the depositions of aforesaid witnesses that PW 4 accompanied Anjana and Dulal to hospital. PW 4 stated that Anjana on the way told her that Bandana and Bebi after pouring kerosene set her to fire. Regarding PW 4, defence has advanced an argument that admittedly PW 4 had no talking term with her parents and sisters i.e. the accused persons for 15/16 years and also had no visiting terms. PW 4 also stated that her two sisters (appellants) were very dangerous and for them she was not in a position to visit her parent's house. Admittedly she had very strained relation with the parental home i.e. the accused persons and the defense suggested that her husband, who was the Gram Pradhan implicated the accused persons with false acquisition of murder subsequent to the lodging of F.I.R. but in support thereof there is no iota of evidence on record except suggestions put by defence. Admittedly she had very strained relation with the parental home i.e. the accused persons and the defense suggested that her husband, who was the Gram Pradhan implicated the accused persons with false acquisition of murder subsequent to the lodging of F.I.R. but in support thereof there is no iota of evidence on record except suggestions put by defence. Since PW 4 was having with ill relation with the accessed persons, we may not place an implicit reliance on the evidence which trial Court also did but the trial Court, as we find, has placed a strong reliance on the deposition of PW 9 (Manohar Patra), the husband of the deceased. According to the prosecution, Manohar married Anjana after the death of his first wife, Santanu and it is an undisputed fact that Santanu and Anjana were sisters. After marriage, they were residing at Siddhi Ashram and only in the month of February or March (Falgoon) of 2005 Manohar shifted to his parent's house and started living with his wife and children but it is the definite case of the prosecution that Anjana was not accepted by the accused persons and she was subjected to torture, putting blame on her character, even suggesting illicit relation with Dulal but there is no scrap of evidence in support of such defence suggestions. Dulal (PW 10), however, being the brother though stated the material fact but did not involve the accused persons with the guilt. Manohar (PW 9), on the other hand, made categorical statement that on receipt of the information he rushed to G.B hospital at once and spoke to his wife Anjana and she told him that Bandana and Bebi, the appellants; set her to fire after pouring kerosene on her. We find nothing to disbelieve the evidence of this witness, while there is nothing on record that he had any ill relation with his parents and sisters. There was a suggestion given by defence that Manohar developed illicit relation with Bandana Acharjee, the younger sister of Anjana, for which Anjana committed suicide but such random suggestions put by the defence, once suggesting that Manohar had illicit relation with Bandana Acharjee and again that Anjana had illicit relation with Dulal and that Puspa Rani Das (PW 4) with her husband, hatched a conspiracy to grab the land of accused persons, were not supported by any scrap of evidence on record. No defence evidence also adduced to justify in any manner the defence story put forward by making suggestions. 17. Let us now come to evidence of PWs 6 and 8. They are the eye-witnesses of the occurrence. Learned senior counsel, Mr. Bhowmik, has submitted that they were not examined by I.O. on the date of occurrence. I.O. examined them, on 05.06.2005 and the statement under Section 164 of Cr PC was recorded after more than a month. On perusal of the evidence of PWs 18 and 19 we find that PW 18 the first I.O. investigated the case only on one day i.e. the date of occurrence and thereafter, on his transfer he handed over the Case Diary. He recorded the statement of PWs 1, 2, 3, 4 and 5, on 03.06.2005 itself. The investigation was taken up by PW 19, on 05.06.2005 and on that day itself he recorded the statement of PWs 6, 7, 8, 9 and 10. We find nothing that PWs 6, 7, 8 and 9 had any sort of ulterior interest to involve the accused appellants with false allegation. It was suggested by defence that husband of PW 4 was Pradhan of the Panchayat and at their instance police has manufactured the case. A suggestion put to a witness in course of cross-examination cannot be termed as evidence and therefore, we find no reason at all to put any reliance on the defence argument. PW 6 made categorical statement that his aunts (Bandana Patra and Bebi Patra), the accused persons, poured kerosene on his mother and set her on fire. He with tears deposed before the Court. He also stated that he was nourished and brought up by his aunts. Though PWs 6 and 8 are child witnesses but the trial Court observed that they were sufficiently intelligent and matured to give rationale answer to the questions and their evidence has not been shaken at all in any manner. There was no reason for them to be tutored by their father or their aunts (PWs 9 and 4) to make a false statement against the accused appellants. The trial Court has made a decent appreciation of the evidence of the Child witnesses and we find nothing to take a different view than that what has been concluded by the trial Court. 18. The trial Court has made a decent appreciation of the evidence of the Child witnesses and we find nothing to take a different view than that what has been concluded by the trial Court. 18. A child witness in a given fact and circumstance of a case may be a witness of truth. There is nothing in law that the evidence of a child witness is to be discarded only on the ground that he is of tender age. 19. this Court in the case of Babrubahan Lal v. State of Assam, reported in (1991) 2 GLR 287 has held that the evidence of a child witness corroborated with the evidence of other witnesses cannot be discarded. In the case of Keshab Deka v. State of Assam, reported in 2007 (3) GLT 376 this Court held that it is settled that the evidence of child witness can be the basis of conviction, if the said is found to be reliable, corroborative and trustworthy. In case of Suryanarayan v. State of Karnataka, reported in (2001) 9 SCC 129 the Supreme Court has held that the evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The fact that the witness being a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding testimony. Discrepancies in the deposition, if not on material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutoring. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutoring. In the absence of any allegation regarding tutor or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 20. In the case in hand PWs 6, 7 and 8, the three minor sons of the deceased Anjana made very consistent statement. PW 6 being the eldest one, is an eye witness and his evidence really inspired the confidence of the Court that he narrated nothing but the truth. While deposing before the Court he shaded tears and made a very natural statement that the accused persons i.e. his paternal aunts also used to love him and brought him up. Had he made a false statement he would easily involve his grandparents also. He made consistent and categorical statement and he first found his mother poured with kerosene and set to fire and reported PW 10. We find nothing to disbelieve the evidence of the child witness. The defence argument has no force at all to discard the evidence of the child witnesses and the finding thereof recorded by the trial Court. 21. Let us now come to the evidence of dying declaration : PW 13 a Judicial Magistrate, First Class, recorded the dying declaration in question-answer form. He also attached a certificate after recording the statement. The statement as a whole may be reproduced thus : Recording of statement of Smti Anjana Patra in C/W above case, who is at present admitted in G.B Hospital, Agartala, West Tripura as indoor patient with severe bum injury. CAMP: At "G.B Hospital"; Agartala : West Tripura Time :--16.45 hrs. Question :What is your name? Answer: Anjana Patra Question : Can you understand what I say? Answer : Yes Question : What is the name of your husband? Answer : Shri Manojhar Patra Question : What is the cause of your being in such a condition? Answer : In the afternoon of Friday, my two sisters-in-law namely Bandana and Bebi had poured kerosene on the body and set fire. Question : Were your husband present in the house then? Answer : No. My husband had gone to sell ice cream. Answer : In the afternoon of Friday, my two sisters-in-law namely Bandana and Bebi had poured kerosene on the body and set fire. Question : Were your husband present in the house then? Answer : No. My husband had gone to sell ice cream. Question : Was anyone else present in the house then? Answer : No. At the alarm raised by me (my) brother-in-law Dulal as well as the other neighbours came running. Question : Will you say anything else? Answer : No. The learned Magistrate attached a certificate after recording the statement, which reads as follows : Before recording the statement of Smt. Anjana Patra I make sure myself that she is able to give statement as Dr. Surjit Kr. Bhattacharjee, G.B Hospital in my presence after examination opined that she is full conscious to give her cause of burn injury (Certificate annexed). Thereafter I recorded the statement of maker in question and answer form following the manner which I think best fitted to the circumstances of the case. After recording myself read over the same to the maker to which she admitted the truthness of the same. Maker was not in a position to put her signature as such LTI of maker has taken by Sipra Sen, Staff Nurse; G.B Hospital in my presence. All the process of recording was done in presence of other witnesses, who also put their signature on it. And In this way I recorded the statement of Smti. Anjana Patra (victim) under Section 164 of Cr PC in two (2) sheets of paper and signed below on this 7th day of June 2005. Certificate given by the Doctor (PW 17) reads thus : Certified that Ms. Anjana Patra, 22 years w/o Manohar Patra of Amtoli, who was admitted to GHB, Agartala on 03.06.2005 is now fully conscious to give her cause of burn injuries. Ext. 9/1--S.T. 47 (W.11/H.7/06) Dt. 9.8.07 Sd/- (Illegible) 07.06.2005 at 6.30 p.m. Dr. Sujit Kr. Bhattacharjee, G.B Hospital, Agartala. The dying declaration along with the certificates given by the learned Magistrate and the Doctor shows that Anjana was in a fit state of mind and health to make the statement. 22. Ext. 9/1--S.T. 47 (W.11/H.7/06) Dt. 9.8.07 Sd/- (Illegible) 07.06.2005 at 6.30 p.m. Dr. Sujit Kr. Bhattacharjee, G.B Hospital, Agartala. The dying declaration along with the certificates given by the learned Magistrate and the Doctor shows that Anjana was in a fit state of mind and health to make the statement. 22. Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. It is well settled that there is difference between the Indian Rule of Evidence and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of the dying declaration that the deceased at the time of making it should have been under the expectation of death. 23. The law with regard to the appreciation of dying declaration is well settled. Before a conviction can be made on a dying declaration the Court must be fully satisfied that the declaration is reliable in the sense that it was actually made by the deceased when fully possessed of the power to understand the implication of his/her statement and the same was made without any exterior influence or ulterior motive. It has further to be proved that the dying declaration reflects a true version. 24. The Supreme Court in the case of Rambitiari Yadav v. State of Bihar, reported in (1998) 4 SCC 519 has held that though dying declaration is indirect evidence being a species of hearsay, yet it an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused, But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused, But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case. In the case of G.S. Walia v. State of Punjab and others, reported in (1998) 5 SCC 150 is almost a similar case where the deceased involved his brothers and nephew in the commission of the murder was relied by the Court as the accused persons failed to advance any cogent explanation in their statements under Section 313 of CrPC The Apex Court has held thus "as pointed out earlier Balwanth Singh's statement could not recorded earlier because he was not in a fit condition to make a statement. Moreover, this case was not a case where the victim was trying to involve persons with whom he was on inimical terms. Two of the accused were his brothers, one was his nephew and two others were closely related to him. Therefore, there was no reason for Balwanth Singh to involve any of them falsely. The accused did not like the deceased owing away to Canada but the deceased had no grievance whatsoever against the accused. It was not even stated by the accused in their statements under Section 313 of CrPC that the deceased had any reason to falsely involve them. Under these circumstances the delay in recording his complaint which was later on treated as his dying declaration is of no consequence. In the case of Babulal and others v. State of Madhya Pradesh, reported in (2003) 12 SCC 490 the Supreme Court has held thus "A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is it a man will not meet his maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). The maxim is it a man will not meet his maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice". In the case of Kundula Bala Subrahmanyam and another v. State, reported in (1993) 2 SCC 684 the Apex Court has held that a dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts; it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. 25. In support of their contention defence relied on the case laws, reported in 1992 Supp (3) SCC 13, (1997) 7 SCC 695 and AIR 2004 SC 503 . We have gone through the decisions referred by the learned defence counsel. We find no relevance to apply the ratio laid down by the Apex Court in those reported decisions in the facts and circumstances of this case. In the case of Rajindar Singh alias Kada, reported in 1992 Supp (3) See 13 the dying declaration was disbelieved since it was not certified by the medical officer about fitness of the deceased to make the statement. But in our case in hand the evidence of PWs 13 and 17 corroborated each other and has not been shaken in any manner. PW 17 has not only proved the certificate but stated that he was present at the time of recording the statement. So the ratio of that decision is not applicable in the case in hand. But in our case in hand the evidence of PWs 13 and 17 corroborated each other and has not been shaken in any manner. PW 17 has not only proved the certificate but stated that he was present at the time of recording the statement. So the ratio of that decision is not applicable in the case in hand. In the case of Paparambaka Rosamma and others, reported in (1999) 7 SCC 695 the dying declaration was disbelieved on the ground that the doctor's certificate attached to dying declaration did not disclose that the person was conscious and was in a fit state of mind to make the statement. In the case in hand the Doctor (PW 17) certified that the patient was fully conscious to make a statement as to the cause of her injuries. The particular words that she was in a fit state of mind' though was not recorded but the evidence of doctor has not been shaken in cross examination to arrive at a conclusion that the deceased was not in a fit state of mind to make such statement. Furthermore, the deceased made statement to her husband and other witnesses and as already discussed, the child witness has also corroborated the fact/and under such circumstances, the totality of the evidence adduced before Court makes us to distinguish the present case to that of the case of Paparambaka Rosamma. In the facts and circumstances of this case we place reliance on the observation of the Apex Court in the case of Sundar Singh v. State of Uttaranchal, reported in (2010) 10 SCC 611 , where the Court in Para-30 of the judgment has held 1130. There can be no dispute that the dying declaration can be made a basis of conviction. There again can be no dispute that for basing the conviction on the dying declaration, the dying declaration must pass all the tests of voluntariness, the fit condition of mind of the maker of the dying declaration and the witness not being influenced by any other factors and the truthfulness of the declaration. The law is settled by this Court in the decision of Laxman v. State of Maharashtra, (2002) 6 SCC 710 . There, of course, the Court has discussed the implication of the doctors statement. The law is settled by this Court in the decision of Laxman v. State of Maharashtra, (2002) 6 SCC 710 . There, of course, the Court has discussed the implication of the doctors statement. The Court has further considered the subject in Shanmugam v. State of Tamil Nadu, (2002) 10 SCC 4 as also in P. V. Radtiakrishana v. State of Karnataka, (2003) 6 SCC 443 . We hasten to add that we do not want to understate, the importance of the evidence of doctors. However there could be cases where though there is no certification by the doctor, still the dying declaration can be accepted and in our opinion present is such a case. In Laxman's case the Court in Para-3. "3. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since mere is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable". The facts and circumstances of Kamalakar Nadram Bhavsar and other, reported in AIR 2004 SC 503 which corresponds to (2004) 10 SCC 192 is clearly distinguishable for the facts and circumstances of this case and the ratio of that decision can in no way be matched to apply in this case. 26. Defence drawn our attention that the statement was recorded at 16.45 hours, where as, the Doctor signed the certificate at 18.30 hours (6.30 p.m.) and such time gap makes it totally improbable about certificate given by the Doctor. This time controversy has not been clarified while the witnesses were in the witness Box though referred by the defence. Both the Magistrate and the Doctor made specific statements before Court that the deceased Anjana was in a fit state to make the statement. PW 14, the Staff Nurse of the hospital also supported the statement. We have put our anxious consideration to the point raised by the defence and on that ground alone while the dying declaration was not shaken in any manner, we are not inclined to attach much importance. PW 14, the Staff Nurse of the hospital also supported the statement. We have put our anxious consideration to the point raised by the defence and on that ground alone while the dying declaration was not shaken in any manner, we are not inclined to attach much importance. It might happen that the Doctor has given the certificate after the statement was recorded and the Magistrate given the time while he started recording of the statement and as a result, a time gap of about 1 (one) hour 15 minutes has occurred affording the defence to point out it to assail the dying declaration. 27. The deceased Anjana received 80% burn injuries, on 03.06.2005 and she was hospitalized immediately thereafter. It was proved with overwhelming evidence that she was in a position to speak when she was taken to hospital. The evidence of PW 9 which remains unrebutted shows that she was in a position to speak and has spoken to the witness. PW 19, the I.O. of the case visited the victim in the hospital, on 04.06.2005 and recorded her statement. Doctors recorded in the "bad head-ticket" that her condition was very poor. I.O. made a prayer before the Court and accordingly dying declaration was recorded by the Magistrate, on 07.06.2005. Anjana succumbed to the injuries, on 09.06.2005, in the morning. The trial Court discussing the evidence on record has observed that there was no evidence that Anjana was tutored or : prompted by anybody for making the statement. We find that PW 4 was present when the statement was recorded by the Magistrate but there is no whisper in the deposition of the Magistrate that when the statement was recorded the deceased was prompted or tutored by PW 4 or anybody else. 28. A dying declaration properly recorded by a competent Magistrate as far as practicable in the words of the maker stands on a much higher footing then a dying declaration which depends on oral testimony. In the case in hand,/the dying declaration both oral recorded by Magistrate has been proved to the satisfaction of the Court and there is no reason at all to discard it. 29. In view of the discussions made above, we find no reason at all to interfere in the judgment and order of conviction and sentence passed by the Court below. 29. In view of the discussions made above, we find no reason at all to interfere in the judgment and order of conviction and sentence passed by the Court below. The dying declaration of the deceased coupled with the evidence of child witness and the circumstances brought on record makes us confident to arrive at a conclusion of guilt of the accused appellants and, therefore, we have no hesitation to dismiss the appeal. The appeal accordingly stands dismissed. The judgment & Order of conviction and sentence passed by the Court below is affirmed. Appeal dismissed