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2013 DIGILAW 206 (GAU)

Debasish Saha v. State of Tripura

2013-03-19

SUBHASIS TALAPATRA

body2013
JUDGMENT Subhasis Talapatra, J. 1. Both the appeals have been filed under Section 374(2) of the Code of Criminal Procedure against the order of conviction and sentence dated 24-8-2004 as passed by the Sessions Judge, West Tripura, Agartala in Case No. S.T. 125/(WT/A)/2002, convicting the appellant namely, Debasish Saha (the appellant in Cri. A. (J) No. 60/2004) to undergo rigorous imprisonment for 10 years for commission of offence under Section 304(B) of the Indian Penal Code and also to undergo further imprisonment for three years along with fine of Rs. 2,000/- for commission of offence punishable under Section 498(A) of I.P.C., in default of payment of fine, the convict appellant shall undergo further imprisonment for two months and both the sentences are directed to run concurrently and also convicting the appellant, Smt. Hirani Saha alias Hiran Bala Saha (the appellant in Cri. A. (J) No. 65/2004) to undergo rigorous imprisonment for one year along with a fine of Rs. 2,000/- for commission of offence punishable under Section 498(A) of I.P.C. and in default of payment thereof, to undergo further rigorous imprisonment for two months. As the appeals are emerging out of the same proceeding and from the judgment and order dated 24-8-2004, those are tied up together for disposal by a common judgment and order. 2. The essential facts are required to be introduced at the threshold. By a written ejahar, one Umesh Chandra Saha (the PW 11) informed the Officer-in-charge, Airport P.S. that he had given marriage (sic) of her daughter namely, Vedamitra Saha (Sabitri) to Sri Debasish Saha (the appellant in Cri. A. (J) No. 60/2004) three years prior to the occurrence and they were living as tenants in the house of one Shiblal Saha. In the ejahar it has been alleged that the mother-in-law namely, Smt. Hirani Saha (the appellant in Cri. A. (J) No. 65/2004), brother-in-law namely, Sri Prabir Saha and her husband namely, Sri Debasish Saha (the appellant in Cri. A. (J) No. 60/2004) used to torture very often. They would tell her to bring more money from her father's house even though her husband had handsome job. On 27-8-2011 at about 4.00 p.m., the said Debasish Saha informed him over telephone that at about 11.00 a.m. his daughter was engulfed by fire from a stove and she was being treated at the G.B.P. Hospital, Agartala. They would tell her to bring more money from her father's house even though her husband had handsome job. On 27-8-2011 at about 4.00 p.m., the said Debasish Saha informed him over telephone that at about 11.00 a.m. his daughter was engulfed by fire from a stove and she was being treated at the G.B.P. Hospital, Agartala. The complainant rushed to the G.B.P. Hospital, as stated in the FIR immediately thereafter, where her daughter told him that she had set herself ablaze by pouring kerosene over her body being unable to bear the torture. 3. Having received the said complaint dated 28-8-2001 (Exbt.-P/6), the Airport P.S. Case No. 48/2001 under Section 498(A) of I.P.C. was registered and was taken up for investigation. When the daughter of the complainant died on 2-9-2001, Section 304(B) of I.P.C. was added in the said case. On completion of the investigation, the charge-sheet was filed under Sections 498(A) and 304(B) of I.P.C. against the appellants and one Prabir Saha. All the accused persons pleaded not guilty and claimed to be tried. 4. The prosecution, to substantiate the case has framed the charge on 6-3-2003, examined as many as 13 witnesses and admitted into evidence some documents, Exbt.-P/1 to Exbt.-P/12. 5. On appreciation of the evidence, the Sessions Judge, West Tripura, Agartala returned the judgment of conviction against the appellants and acquitted Sri Prabir Saha from the charge holding that, In view of the decision of the Hon'ble Apex Court and in view of the evidence on record it is clear that continuous mental torture committed on her on the demand of dowry, Beda Mitra was compelled to commit suicide and as such in view of Section 113-B of the Evidence Act such death of Beda Mitra shall be presumed that her husband had caused to dowry death. It has been further held that, However, from the evidence on record including dying declaration (Exhibit-3) it is established that accused Hirani Saha by committing mental torture upon Beda Mitra on the demand of dowry has committed offence punishable under Section 498-A of the Indian Penal Code. The evidence on record also clearly establish that it is Debasish Saha who behaved cruelly and mentally tortured Beda Mitra soon after the marriage on the demand of dowry of Rs. The evidence on record also clearly establish that it is Debasish Saha who behaved cruelly and mentally tortured Beda Mitra soon after the marriage on the demand of dowry of Rs. 35,000/- and that soon before her setting on fire Beda Mitra was scolded and abused by accused Debasish for one hour, which led Beda Mitra to commit suicide and as such in my, opinion guilt of Debasish punishable under Sections 498(A) and 304(B) of Indian Penal Code for commission of offence punishable under Sections 498(A) and 304(B) of the Indian Penal Code has been established. Later on, it has been also observed that, However, accused Debasish Saha and Hirani Saha alias Hiran Bala Saha are convicted for commission of offence punishable under Section 498-A of the Indian Penal Code. Debasish Saha is further convicted for commission of offence punishable under Section 304-B of the Indian Penal Code. 6. Mr. P.K. Biswas, learned counsel appearing for the appellant Debasish Saha in Cri. A. (J) No. 60/2001 submitted that there is no corroboration available in the evidence for establishing the charge under Sections 498(A) and 304(B) of I.P.C. Even the trial Court did not consider the relevant fact that has been acceded to by the prosecution that the convict-appellant namely, Debasish Saha and his deceased wife Bedamitra Saha was residing at Nutannagar separately from their parents and the parents were living separately at Bhati Abhoynagar and they did not visit their parents house. Further, it has been contended that Exbt.-P/3, the dying declaration of the deceased since does not contain any thumb impression or signature of the declarant the said dying declaration cannot be admitted in the evidence and also that the said dying declaration was misread by the Sessions Judge. Apart that, Mr. Biswas, learned counsel seriously contended that the way the examination under Section 313 of Cr. P.C. has been carried out by the Sessions Judge has caused serious prejudice to the convict appellant inasmuch as by way of composite questions the convict appellant was deprived by giving answers with the required clarity. Moreover, Mr. Biswas ultimately contended that the material witness namely, Saibal Chandra Deb had been withheld by the prosecution else seizure of Exbts. P/7 and P/8 would have been disproved. Moreover, Mr. Biswas ultimately contended that the material witness namely, Saibal Chandra Deb had been withheld by the prosecution else seizure of Exbts. P/7 and P/8 would have been disproved. Apart that, he also contended that the appellant namely, Debasish Saha had done everything to save the life of the deceased as would be evident from the statements of the PW 3 as well as from the statement of the P.W. 8 Mr. Biswas, learned counsel for the convict-appellant namely, Debasish Saha severely criticized the Sessions Judge for relying on the improved version of the PWs. 5, 8 and 11 where they stated that when they went to see Bedamitra in the hospital, she told them that on previous day of the incident she was kept in starvation by her husband i.e. Debasish. She also stated to the said witnesses that in the morning on 27-8-2001, the day of incident she was assaulted by her husband and to get rid of that, she set herself ablaze. Mr. Biswas, learned counsel for the convict-appellant namely, Debasish Saha also pointed out that in the FIR, the amount of dowry has not been narrated. He further submitted that the FIR is hit under Section 162 of Cr. P.C. inasmuch as it appears from the Exbt. P/12 that the police visited the place of occurrence on the right of occurrence i.e. on 27-8-2001, as corroborated by the PW 2, whereas the FIR was filed on 28-8-2001. 7. Mr. P. Saha, learned counsel appearing for the convict-appellant namely, Smt. Hirani Shah alias Hiran Bala Saha (appellant in Cri. A. No. 65/2004), as the Amicus Curiae engaged by this Court, submitted that in the impugned judgment and order there is no description or analysis how the conviction has been returned against the convict-appellant namely, Hirani Saha. All of a sudden, the Sessions Judge jumped on a conclusion that she is guilty of offence punishable under Section 498(A) of I.P.C. He stated that there is no legal evidence against the convict-appellant he is representing and as such this Court should interfere the judgment of conviction as returned by the Sessions Judge, West Tripura, Agartala. 8. While refuting the submissions of Mr. P.K. Biswas and Mr. P. Saha, learned counsel appearing for the convict-appellant in both the appeals, Mr. R.C. Debnath, learned Addl. 8. While refuting the submissions of Mr. P.K. Biswas and Mr. P. Saha, learned counsel appearing for the convict-appellant in both the appeals, Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the State categorically contended that in the impugned judgment the Sessions Judge had provided sufficient analysis. Apart that, the dying declaration (Exbt. P/3) was recorded by the Investigating Officer under Section 161 or Cr. P.C. (Exbt. P/11) have been considered by the trial Court in the perspective of the case and found sufficient and substantial corroboration to hold the charge as established under Sections 498(A) and 304(B) of I.P.C. against the appellant in Cri. A. (J) No. 60/2004 and under Section 498(A) against the convict-appellant in Cri. A. No. 65/2004. He severally critised the proposition as advanced by the counsel for the appellants that there is no legal evidence. The Addl. Public Prosecutor further projected that if the statements of PWs. 4, 5, 6, 7 and 11 if properly read it would irresistibly appear that both the convict-appellants have rightly been convicted. He further submitted that a little bit of variations in the statements as are appearing are significant in the overwhelming nature of their corroboration vis-a-vis the dying declaration. According to Mr. Debnath, learned Addl. Public Prosecutor for the State, the Exbt. P/11 also is a dying declaration in view of the decision as rendered by the Apex Court in Betal Singh v. State of M.P., as reported in (1996) 4 SCC 203 , where it has been held as under:- 14. It is true that in Munnu Raja v. State of M.P. (1976) 3 SCC 104 : 1976 Cri LJ 1718 this Court has struck a note of caution that investigation officers, who are naturally interested in the success of the investigation, ought to be discouraged in recording dying declarations, during the course of investigation. However, in Dalip Singh and others v. State of Punjab (1979) 4 SCC 332 : AIR 1979 SC 1173 , this Court noticed the above observation and pointed out that it is not meant to suggest that such dying declarations are always untrustworthy. However, in Dalip Singh and others v. State of Punjab (1979) 4 SCC 332 : AIR 1979 SC 1173 , this Court noticed the above observation and pointed out that it is not meant to suggest that such dying declarations are always untrustworthy. Their Lordships observed: We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. 15. Legal position remains unaltered that dying declaration should be scrutinized very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free, from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding the conviction on it. (Kusa v. State of Orissa (1980) 2 SCC 207 : ( AIR 1980 SC 559 ). The position does not change even if such a dying declaration is put forward in a bridge burning case whether or not it has been recorded by the police officer during investigation. (State of Punjab v. Amarjeet Singh, 1988 Supp SCC 704: AIR 1988 SC 2013 ), Paniben v. State of Gujarat AIR 1992 SC 1817 , Charipalli Shankararao v. Public Prosecutor. High Court of A.P., 1955 Supp (4) SCC 24: ( AIR 1995 SC 777 ). 9. Mr. Debnath, learned Addl. Public Prosecutor for the State, to buttress further his contention, submitted that to attract the provision of Section 32 of the Evidence Act, the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without any amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Evidence Act. For further invigorating the contention the decision of the Apex Court in Gulam Hussain and another v. State of Delhi, as reported in (2000) 7 SCC 254 : ( AIR 2000 SC 2480 ) has been referred to by Mr. R.C. Debnath, learned Addl. Public Prosecutor for the State, where it has been held as under:- 8. Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsay evidence and the statement made by a person written or verbal of relevant facts after his death is admissible in evidence if it refers to the cause of his death or any circumstances of the transactions which resulted in his death. To attract the provisions of Section 32, the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without any amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Evidence Act. It cannot be disputed that Islamuddin who made a statement PW 22/B has died and in his deposition he has referred to the circumstances which ultimately proved to be the cause of his death. Nothing has been pointed out by the defence side which could create any doubt in our mind regarding the making or admissibility in evidence of the statement Exhibit PW 22/B. 10. For appreciation of the rival contentions as projected by the learned counsel for the parties, it would be appropriate to re-appreciate the documentary evidence as led by the prosecution inasmuch as the defence did not lead any evidence to either disprove the prosecution case or to prove their own case. 11. The PW 1 namely, Smt. Gita Rani Sana depose that since Debasish Sana and his wife Bedamitra Saha were their tenants they were known to her. On 27-8-2001 at about 10.30 a.m. when she was returning from her duty she heard a cry 'bachao, bachao' (save me, save me). She immediately coming out of her house and found Bedamitra burning. She then poured a bucket of water on her body. On 27-8-2001 at about 10.30 a.m. when she was returning from her duty she heard a cry 'bachao, bachao' (save me, save me). She immediately coming out of her house and found Bedamitra burning. She then poured a bucket of water on her body. She categorically stated that Debasish also tried to extinguish the fire by putting 'katha' and thereafter Debasish brought an Auto Rickshaw and shifted her to the G.B.P. hospital and after five days she died. In the cross-examination, she categorically stated that the deceased did not go to her father's house or her father-in-law's house nor did any member of her father-in-law's house ever visited her while they were staying in her (PW 1) house. 12. Sri Shiblal Saha, husband of the PW 1, was examined as the PW 2. He stated that at the time of occurrence he was not in the house and after his return he heard the said incident. He stated that one plastic drum, two pieces of burnt match sticks and one burnt saree was seized by the police officer in his presence and he put his signature in the seizure list (Exbt. P/1) and he was also identified the said articles marked Exbt. M.O. 1 series in the Court. The PW 2 however stated that he noticed that the relation between the husband and wife was cordial. 13. One Anil Chandra Sarkar, Habildar of Police in the Airport P.S. at the relevant point of time was examined as the PW 3 as he was one of the seizure witnesses to the seizure list (Exbt. P/1). 14. Smt. Tulshi Rani Sana, the mother of the deceased was examined as the PW 4. She stated that her daughter was married to Sri Debasish Saha three years back from the date of recording the deposition and the incident took place two years from the said date. Her husband (the complainant) received the information that their daughter had been taken in the G.B. hospital with burn injuries. She stated that her daughter died for the torture she was subjected to, in the house of her husband. Her husband, mother-in-law and brother-in-law used to torture her for bringing Rs. 35,000/- from them. One month before the incident when her daughter came to her house and stayed there for 3/4 days, she narrated the tale of her torture for not paying the demand. Her husband, mother-in-law and brother-in-law used to torture her for bringing Rs. 35,000/- from them. One month before the incident when her daughter came to her house and stayed there for 3/4 days, she narrated the tale of her torture for not paying the demand. Her husband took her daughter to the husband's place. In the cross-examination she stated that her daughter and her husband stayed earlier in the house of one Madan Paul as tenant and from there they shifted to the rented house of one Shib Lal Saha, the address of both the owners are at Nutan Nagar. The PW 4 also stated that after 15-20 days of their marriage they shifted to the rented house. She however denied the suggestion that her daughter was not tortured on demand of Rs. 35,000/-. 15. The PW. 5 namely, Sri Uttam Saha is the brother of the deceased, who stated that when he visited the G.B. hospital, his sister was in a condition to speak. She told that for Rs. 35,000/- her husband, brother-in-law and mother-in-law used to torture her physically and on the day of occurrence, in the morning she was beaten by her husband. His sister and her husband with the minor son was staying in the house of one Madan Paul at Nutan Nagar. Her mother-in-law and brother-in-law used to stay at Bhati Abhoynagar, but they used to visit Nutan Nagar very frequently. About one month back of the incident her sister came to their house as she was unable to bear the torture of her husband and other inmates. She stayed in their house for 3/4 days and told him that as they were unable to give Rs. 35,000/- as per demand, she had been physically tortured by the accused persons. He also identified one letter as the handwriting of his sister. In the cross-examination, the PW. 5 asserted that he stated to the Investigating Officer that the mother-in-law and the brother-in-law of his sister used to visit the rented house of her sister at Nutan Nagar, but those statements are not admittedly found in his statement recorded under Section 161 of Cr. P.C. Even no such statement as he asserted that he stated to the Investigating Officer for his sister coming to their house and narrated that she has been tortured for Rs. P.C. Even no such statement as he asserted that he stated to the Investigating Officer for his sister coming to their house and narrated that she has been tortured for Rs. 35,000/- was also not found in the previous statement as recorded under Section 161 of Cr. P.C. However, he denied all those suggestions put to him. The PW. 5 was also the witness to the inquest report as prepared by the police officer (Exbt. P/2). When he was confronted in the re-cross examination, he asserted that he stated to the Investigating Officer that Debasish Saha and his mother and brother used to torture her sister for Rs. 35,000/-, but it is found that in the statement recorded under Section 161 of Cr. P.C. the statement is only directed against Sri Debasish Saha but not against any other person. 16. One of the Medical Officers namely, Sri Ashish Kumar Nath, who recorded the dying declaration (Exbt. P/3) was examined by the prosecution as the PW. 6. He stated that the patient gave a statement in presence of Dr. Damodar Chatterjee, Dr. S.K. Das, and Dr. P. Sarkar, the Unit in-charge and he recorded the statement. He categorically stated that the patient was fully conscious, oriented and alert. He recorded the statement of the deceased on 30-8-2001 at 1510 hours and, thereafter, he read over the statement to the deceased. The PW. 6 identified his signature and the signatures of the other doctors as Exbts. P/3/1, P/3/2, P/3/3 and P/3/4. The PW 6 however stated that he did not obtain any signature of the patient and also admitted that he has not given any endorsement that the patient gave the statement voluntarily. 17. One Asstt. Sub-Inspector of Police namely, Sri Kalipada Saha of the G.B.T.O.P. at the relevant point of time was examined as the PW. 7 as he prepared the Surathal report on the dead body. 18. Smt. Bedamati Saha, who is the elder sister of the deceased, was examined by the prosecution as the PW. 8. She stated that after 3/4 months of the marriage of her sister with Debasish Saha, she was subjected to torture by her husband, mother-in-law and brother-in-law for bringing Rs. 35,000/- from her father and the same was narrated to her by the deceased whenever she visited her place. 8. She stated that after 3/4 months of the marriage of her sister with Debasish Saha, she was subjected to torture by her husband, mother-in-law and brother-in-law for bringing Rs. 35,000/- from her father and the same was narrated to her by the deceased whenever she visited her place. She further stated that in the hospital she disclosed that before 2/3 days of the occurrence she was not given food by her husband. About three months prior to the date of occurrence Bedamitra (the deceased) wrote a letter to her narrating the torture which was being committed upon her. The PW. 8 stated that she handed over the said letter to her father, but at the same breadth she stated that she did not show the letter to her father because her father was also ill. She identified her signature in the inquest report, but not the handwriting of the deceased appearing on the letter. In the examination-in-chief she stated that in presence of all of them, meaning her father and younger brother, the deceased narrated the occurrence. The PW. 8 also admitted that her statement was recorded by the Officer-in-charge after eleven days from the death of the deceased, however, she denied that the handwriting appearing in the letters was not of the deceased. While admitting that the letters so produced before the police was sent by post but no such statement was found available in her previous statement. 19. The PW. 9, Dr. Mridul Das is the Medical Officer who conducted the post-mortem examination of the dead body of the deceased. He stated that the cause of death was toxemia from the infected burn injuries. 20. The PW. 10, the Constable of the East Agartala police station namely, Sri Arun Das stated that he escorted the dead body to the G.B. hospital for purpose of the post-mortem examination. 21. The complainant i.e. the father of the deceased namely, Sri Umesh Chandra Saha was examined by the prosecution as the PW. 11. He stated that the occurrence took place on 27-8-2001 and his daughter died in the hospital on 2-9-2001. At the relevant point of time his daughter and her husband was residing in the house of one Shib Lal Saha at Nutan Nagar. He also stated that after the marriage she was subjected to torture by her mother-in-law, husband and brother-in-law for bringing money amounting to Rs. 35,000/-. At the relevant point of time his daughter and her husband was residing in the house of one Shib Lal Saha at Nutan Nagar. He also stated that after the marriage she was subjected to torture by her mother-in-law, husband and brother-in-law for bringing money amounting to Rs. 35,000/-. One month back from the date of occurrence she visited his house. He heard the news from Debasish Saha over phone that his daughter sustained burn injury and he rushed to the G.B. hospital, where he found that his daughter in burn injuries from leg to neck. Her hands and fingers were also burnt. She told her that she was unable to bear the torture of her husband and other family members and that was why she set her ablaze. She also stated that in the morning of the previous day of the occurrence, she was physically tortured by her husband and she was not provided meal also. The PW. 11 explained that his daughter could not put the signature on any statement because her fingers were burnt and on 28-8-2001 he lodged the First Information Report in the Airport police station by filing a written ejahar (Exbt. P/6). He also identified the ejahar. The PW. 11 also stated that a letter was also found under her bed and he informed about the said letter to the police station on 5-9-2001. Then the police went to the rented house of Debasish Saha and opening the door of the room in presence of the house owner Shib Lal Saha detected the said letter. He further stated that earlier he also handed over two letters written by his deceased daughter to her elder daughter, which were also handed over to the Investigating Officer. The PW 11 identified the seizure list (Exbt. P/7) and the letters marked as Exbt. P/8 series. He stated that the letters contained the handwriting of her deceased daughter. He also admitted that after half a month from the day of marriage they were separated from the father-in-laws house and the husband of her deceased daughter started staying in a separate rented house in Nutan Nagar, but he denied the other suggestions as made regarding the demand of money, torture etc. He also admitted that after half a month from the day of marriage they were separated from the father-in-laws house and the husband of her deceased daughter started staying in a separate rented house in Nutan Nagar, but he denied the other suggestions as made regarding the demand of money, torture etc. When he was categorically confronted that whether he stated to the Investigating Officer that his daughter told him that the torture committed by the accused was unbearable and she poured kerosene on her body and set her ablaze, he asserted in the affirmative but when the statement was shown he admitted that there was no such statement. He also denied the suggestion that such statement was not made by his daughter or the writings in the letters were not the handwriting of his daughter. 22. The PW. 12, Sri Apan Jamatia, the then S.D.P.O., Sadar, took over the charge of the investigation when the investigation was almost completed and he submitted the charge-sheet on the basis of the materials so collected by the previous Investigating Officer. 23. The Investigating Officer namely, Sri Gopal Sarkar was examined by the prosecution as the PW. 13. He stated apart other things that on 28-8-2001 when he was posted as the Sub-Inspector of Police in the Airport police station, the Officer-in-charge of the said police station endorsed the Airport P.S. Case No. 48/2001 for its investigation and accordingly he took up the investigation and he stated how he carried out the investigation, preparation of the site map with index, recording of the statement of the relevant witnesses, prepared the seizure list and also identified the seizure list. He also stated that he recorded the statement of the deceased namely, Bedamitra Sana under Section 161 of Cr. P.C., which he identified as Exbt. P/11. He also stated that when such statement was recorded she was in a condition of speaking but her medical condition was serious. He submitted a petition to the Ward Master, requesting for arranging recording of the dying declaration. The dying declaration was recorded by the Medical Officer on the intervening night of 28-8-2001 and 29-8-2001 and he initially failed to arrest the accused persons. He submitted a petition to the Ward Master, requesting for arranging recording of the dying declaration. The dying declaration was recorded by the Medical Officer on the intervening night of 28-8-2001 and 29-8-2001 and he initially failed to arrest the accused persons. He also narrated how the prayer for taking the inquest report with the case records and for altering the charging sections and on 4-9-2001 he collected the dying declaration of the deceased as recorded by the Medical Officer of the G.B. hospital. On 5-9-2001, the PW. 11 stated to him that prior to her death, Bedamitra disclosed to him that she kept a suicide note under her bed in the rented house. He entered the said information in the G.D. No. 124 dated 5-9-2001, subject to objection as raised by the defence and he stated that the said room was found under lock and key which was lying with the landlord and the landlord opened the said lock of the room and on search a suicide note was found under the bed, which he seized by preparing a seizure list (Exbt.-P/7). Therefore, he stated how he recorded the statement of the several witnesses. In the cross-examination, he denied the suggestions of the defence but the defence did not project any question relating to their visiting the place of occurrence on 27-8-2001, as stated by the PW. 2 that on the night of occurrence the police visited the house. In the cross-examination, the Investigating Officer categorically stated that the PW. 5 did not state to him that the mother-in-law and the brother-in-law of her sister used to visit their rented house at Nutan Nagar. He further asserted that the PW. 5 did not state to him that on the day of occurrence in the morning she was beaten by her husband. He further stated that Uttam Sana (the PW. 5) told him that the mother-in-law, brother-in-law of the deceased also assaulted his sister. He further stated that the PW. 11 did not state to him that his daughter told him that as the torture committed on her by the accused persons was unbearable she poured kerosene oil on her body and set her ablaze. 24. The Sessions Judge for returning the conviction relied extensively the Dying Declaration (Exbt.-3) as recorded and written by the PW. 11 did not state to him that his daughter told him that as the torture committed on her by the accused persons was unbearable she poured kerosene oil on her body and set her ablaze. 24. The Sessions Judge for returning the conviction relied extensively the Dying Declaration (Exbt.-3) as recorded and written by the PW. 6, the part of the statement is reproduced hereunder for appreciation:- I Smt. Bedamitra Sana, W/o Sri Debasish Saha of Nutan Nagar, in full presence of mind, do state that on 27-8-2000 A.D., at 11.30 a.m. I poured kerosene oil on my body from a stove and set myself ablaze. Nobody else had set fire on me. But my mother-in-law and sister-in-law used to torture me verbally in different ways. Some days earlier my husband tried to set me ablaze but as I fled away, he could not do so. I was never tortured physically. 25. The 161 statement as recorded by the Investigating Officer at the G.B.P. Hospital on 29-8-2001 (Exbt.-P/11) is also of relevance and, therefore, the contents thereof are extracted for appreciation:- On being asked by you, I, with full presence of mind, do state that, about 3 years ago, I was socially married to Debasis Sana of Bhati Abhoynagar. A few days after the marriage, my husband kept on telling me to bring Rs. 35,000/- (Rupees thirty-five thousand) from my father's house. At first I took the matter lightly. But as days passed my husband kept pressing me more and more for bringing money from my father's house. As his act of pressurizing became excessive, I informed my father about the money. But my father was not financially solvent and as such he could not give the money. Since then he kept on abusing me even more. Being unable to tolerate the abuses any further I came to my father's house about a month ago. My father persuaded me and brought me back to my husband. He remained good for some days but again started abusing and pressurizing me for money. Yesterday, dated 27-8-2001 A.D. my husband kept on abusing me from about 10 a.m. I myself poured kerosene oil on my body and set myself ablaze. Even at that time my husband kept on abusing me. There is a stand for keeping clothes (aalna) in the middle of our rented house. Yesterday, dated 27-8-2001 A.D. my husband kept on abusing me from about 10 a.m. I myself poured kerosene oil on my body and set myself ablaze. Even at that time my husband kept on abusing me. There is a stand for keeping clothes (aalna) in the middle of our rented house. I poured kerosene oil on my body and set myself ablaze on the western side of the stand for keeping clothes (aalna). My husband was on the eastern portion. He did not see me because the rack for keeping clothes (aalna) was there. On setting myself ablaze when I called out save-save-(bachao, bachao) and came to the courtyard through the door at the front side, my husband brought a cotton wrapper (kantha) and by pressing hold with the cotton wrapper he extinguished the fire. By that time my body was burnt. The owner of the house poured water with a view to extinguishing the fire 26. This Court has also scrutinized the so called letters as written by the deceased, which are appearing at Exbt.-8, series. This Court has very categorically scrutinized the said statements as recorded under Section 313 of Cr. P.C. of both the appellants for purpose of appreciating the legal objection as resorted to by Mr. P.K. Biswas, learned counsel appearing for the appellant in Crl. A. (J) No. 60/2004. 27. As regards the submission as made by Mr. P.K. Biswas, learned counsel for the appellant in Crl. A. (J) No. 60/2004 that the Exbt. P/3 (the dying declaration) since does not contain any thumb impression or signature of the deceased or the declaration, the said dying declaration ought not have been admitted in the evidence. In this regard, Mr. Biswas, learned counsel referred a decision of the Apex Court in Kanaksingh Raisingh Rav, as reported in (2003) 1 SCC 73 : ( AIR 2003 SC 691 ), where the Apex Court held thus:- 5. We notice that the prosecution witnesses though have not fully supported the prosecution case, have substantially supported the same, but since on certain material facts they have deviated from their previous statement, the learned Sessions Judge at the instance of the prosecution has considered it proper to treat them hostile. Therefore, we do not intend to place any reliance on their evidence. Question then is, can a conviction be based primarily on the dying declaration of the deceased in this case? Therefore, we do not intend to place any reliance on their evidence. Question then is, can a conviction be based primarily on the dying declaration of the deceased in this case? In this regard we do not think it is necessary for us to discuss the cases cited by the learned counsel which is noted herein above because, in our opinion, the law is well settled, i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW. 5 the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross-examination. The (sic) being so it should be held that the deceased was in a fit state of mind to make a declaration as held by the Courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relative who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW. 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted. 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted. The only defence put forth by the appellant is that at the time of the incident he was not present and he was outside the house taking bath near a well and it is only when he came to know of the incident, he came to the house and tried to save the wife by putting off the fire. This part of the evidence has not been accepted by the Courts below and we find no reason to differ from the same. 28. It has been further considered in Kanaksingh Rajsingh Ray (supra) that:- The said document (the Ext. 20) was attested by the doctor but, no thumb impression of the deceased was taken since the same could not be done because of the excessive burns on her body. In her dying declaration, she has stated that her husband was quarrelling with her and had beaten her the previous night and on the date of the incident at about 11 O'clock when she was cooking chapattis, he poured kerosene and burnt her with a matchstick and her clothes started burning and her body got burnt. She has also stated that she started shouting and later became unconscious. She further stated that she regained consciousness at Sankheda Hospital, and was making a statement while conscious. The Apex Court did not interfere with the said dying declaration in the said case as excepted above. 29. In this case also, the PW. 11, the father of the deceased has categorically stated in his deposition that "his daughter could not put her signature in her statement as her hands, fingers were burnt". Another question that has surfaced during deliberation is that whether such statement as recorded by the Investigating Officer under Section 161 of Cr. P.C. can be stated as the 'dying declaration'. This issue has been clinched long back. In Gulam Hussain (supra) the Apex Court dwelled upon this point and held that such statement can be treated as the 'dying declaration'. The following passage from Gulam Hussain (supra) would be relevant: 7. P.C. can be stated as the 'dying declaration'. This issue has been clinched long back. In Gulam Hussain (supra) the Apex Court dwelled upon this point and held that such statement can be treated as the 'dying declaration'. The following passage from Gulam Hussain (supra) would be relevant: 7. Exhibit PW 22/B was recorded by PW-22 ASI Balwan Singh in the hospital on 14-10-1989 at about 6.30 a.m. after getting an opinion from the doctor that the injured was fit for statement. The endorsement of the doctor is recorded as Exhibit PW 22/A. Learned Counsel appearing for the appellants submitted that as the statement was recorded by the investigating officer which was treated as FIR, the same could not be treated as dying declaration and was inadmissible in evidence. The submission has no substance because at the time of recording the statement PW-22 Balwan Singh did not possess the capacity of an investigating officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. After critically scanning the statement of PW-22 ASI Balwan Singh and details of Exhibit PW-22/B, we have no hesitation to hold that the aforesaid statement was voluntarily made by the deceased which was reduced to writing and have rightly been treated as dying declaration after the death of the maker. 30. In this case, however, the statement that has been recorded by the Investigating Officer was recorded during the investigation and there was no certification of the Medical Officer. It is settled law that a dying declaration must be dealt with caution for the reason that the maker of the statement cannot be subjected to cross-examination. There is no rule of law or rule of prudence that a dying declaration cannot be accepted unless it is corroborated. The following decisions of the Apex Court may be referred in this context: (1) Khushal Rao v. State of Bombay, as reported in AIR 1958 SC 22 : (1958 Cri LJ 106) (2) Munnu Raja v. State of M.P., as reported in (1976) 3 SCC 104 : ( AIR 1976 SC 2199 ) 31. From the statement of the PW. 13, it is also apparent that "The Medical Officer under whom Bedamitra was treated was not available in the hospital. From the statement of the PW. 13, it is also apparent that "The Medical Officer under whom Bedamitra was treated was not available in the hospital. So I talked with the attending nurse and enquired about the condition of Bedamitra Saha. The attending nurse informed me that condition of Bedamitra is serious. I therefore submitted a petition to the Ward Master requesting for arranging recording of dying declaration of Bedamitra Saha. Accordingly on the basis of my prayer dying declaration of Bedamitra Saha was recorded by Medical Officer". Further, the PW-13 stated that "I have visited G.B. Hospital about 12.20 a.m. I have found the victim Bedamitra Saha admitted in F.S.I. I talked with the victim and wanted to know whether she is in a position to make her statement and she replied in affirmative. Accordingly I have recorded the statement of Bedamitra Saha u/S. 161, Cr. P.C. This is the statement of Bedamitra Saha recorded by me. On identification it is marked as Exbt. P-11". Thereafter, the Investigating Officer (the PW. 13) stated that he filed the application for recording the dying declaration. 32. Mr. P.K. Biswas, learned counsel has submitted that since the PW. 2 stated that the police visited his house on the night of the occurrence i.e. on 27-8-2001 therefore, the First Information Report is hit under Section 162 of Cr. P.C. This cannot be accepted by this Court as even the Investigating Officer was not asked by the defence whether any police officer or a contingent of police had visited the house of the PW. 2 on the night of the occurrence or not. The PW. 2 did not divulge anything as to why the police visited his house. Even the defence did not make any reference to any General Diary Entry of having received of any information regarding any cognizable offence to the police officer or definite information to the police officer in the manner as suggested. 33. In Muthu Kutty & another v. State of Tamil Nadu, as reported in (2005) 9 SCC 113 : ( AIR 2005 SC 1473 ), the Apex Court held quite substantively as regards the evidentiary status of the dying declaration as under:- 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat: (1992) 2 SCC 474 : ( AIR 1992 SC 1817 ). (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of Madhya Pradesh (1976) 3 SCC 104 : ( AIR 1976 SC 2199 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav (1985) 1 SCC 552 : ( AIR 1985 SC 416 ) and Ramawati Devi v. State of Bihar (1983) 1 SCC 211 : ( AIR 1983 SC 164 ). (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618 : ( AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618 : ( AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264 : ( AIR 1974 SC 332 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. 1981 Supp SCC 25: ( AIR 1982 SC 1021 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. (1981) 2 SCC 654 ). (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu 1980 Supp SCC 455): ( AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar 1980 Supp SCC 769). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of Madhya Pradesh 1988 Supp SCC 152: ( AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan (1989) 3 SCC 390 : ( AIR 1989 SC 1519 ). (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700 : ( AIR 1982 SC 839 ). 34. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700 : ( AIR 1982 SC 839 ). 34. In the light of the above principles the acceptability of the alleged dying declaration has to be considered. The dying declaration is only a piece of untested evidence and like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. The Apex Court has accordingly decided in Gangotri Singh v. State of U.P. 1993 Supp (1) SCC 327: ( AIR 1992 SC 948 ), Goverdhan Raoji Chyare v. State of Maharashtra 1993 Supp (4) SCC 316: (1993 Cri LJ 3414), Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182 : 1994 AIR SCW 1978 and State of Rajasthan v. Kishore (1996) 8 SCC 217 : ( AIR 1996 SC 3035 ). 35. There is no material in this case to show that the dying declaration was result or product of imagination, tutoring or prompting. Save and except, one statement of the PW. 11 that when the medical officers were recording the dying declaration, he was standing outside the ward and he had seen the episode. However, it is admitted that the Medical Officer did not affix any certificate as to the state of mind of the declarant, but the Doctor who recorded the dying declaration has given the testimony in this regard stating that the declarant was in a fit medical condition to make the dying declaration. As such, such dying declaration will not be invalid solely on the ground that the doctor has not given any certificate as to the condition of the declarant to make the dying declaration. 36. In this case, it has surfaced that the incident occurred within seven years from their marriage and may be within one year of the marriage as this Court has derived from the oral testimonies of the PW. 4. The PWs. 36. In this case, it has surfaced that the incident occurred within seven years from their marriage and may be within one year of the marriage as this Court has derived from the oral testimonies of the PW. 4. The PWs. 4, 5, 6 and 11 have categorically stated that the deceased was being tortured for bringing Rs. 35,000/- from her parents by the appellants and her brother-in-law namely, Prabir Saha. About one month preceding to the fateful occurrence the deceased once left the matrimonial home as she was annoyed by the conduct of the appellant and her brother-in-law and 3/4 days prior to the fateful episode the PW. 11 took her to the matrimonial home. If the statements as recorded under Section 161 of Cr. P.C., the Exbt. P/11 as well as the Exbt.-P/3 are treated as the dying declaration, it would be apparent that in Exbt. P/11 no allegation has been made against the mother-in-law, the appellant in Crl. A. No. 65/2004, but the allegation has been made against her husband, the appellant in Crl. A. (J) No. 60/2004. The Exbt. P/11 was recorded on 29-8-2011, at the first instance, but the Exbt. P/3 was recorded thereafter, where the deceased stated that the mother-in-law of the deceased used to torture her verbally in different ways, but there is no allegation for any unlawful demand against the mother-in-law, the appellant in Crl. A. No. 65/2004. However, in Exbt. P/3 no such allegation is also available against the appellant in Crl. A. (J) No. 65/2004, but a serious allegation has been made by the deceased in the said statement that "some days earlier my husband tried to set me ablaze but I fled away and he could not do so". This episode however was not corroborated by any of the witnesses as produced by the prosecution as this statement was recorded subsequently on 3-8-2001. This Court cannot but hold that the said statement is free from tutoring or influence by the relatives, but the deceased made the declaration very categorical that she was never tortured physically. 37. Moreover, it has been admitted both by the PWs. 4 and 11 that the deceased and the appellant in Crl. A. (J) No. 60/2004, immediately after their marriage was living separately in the rented house of the PWs. 1 and 2. The PW. 37. Moreover, it has been admitted both by the PWs. 4 and 11 that the deceased and the appellant in Crl. A. (J) No. 60/2004, immediately after their marriage was living separately in the rented house of the PWs. 1 and 2. The PW. 2 categorically stated that he noticed that the relationship between the husband and wife was cordial whereas the PW. 1 has categorically stated that the deceased did not go to the parental house of Debasish Saha, the appellant in Crl. A. (J) No. 60/2004 or to her parental house and none from the parental house visited their house when they were staying in their house as the tenant. This categorical statement has created a serious doubt regarding the statements of the PWs. 4, 5, 6 and 11. Moreover, regarding recovery of a letter from the rented house of the deceased, the prosecution case was not supported by the PW. 2. Even he did not say that the police ever seized any letter by opening the lock of the rented house of the appellant in Crl. A. (J) No. 60/2004. 38. Most curiously, this Court has found that the PW. 5 has stated in tune with the PW. 4 that the deceased told him that for Rs. 35,000/- her husband, mother-in-law and brother-in-law used to torture her physically and on the day of occurrence in the morning she was beaten by her husband. He further stated that the deceased's mother-in-law and brother-in-law visited Nutan Nagar though they used to live at Bhati Abhoynagar. He also stated that unable to bear the torture of her husband and other inmates she came to the parental home and stayed there 3/4 days, but such statement has been proved to have been improved by the PW. 5 as those were not found in the statement as recorded under Section 161 of Cr. P.C. Admittedly, the PW. 8, who is the married daughter of the PWs. 4 and 11, has stated a different story altogether by extension of what the other witnesses like the PWs. 4, 5 and 11 stated that in the hospital the deceased disclosed to her that before 2/3 days of the occurrence she was not given food by her husband and on the date of occurrence she was also scolded very badly by her husband. 4, 5 and 11 stated that in the hospital the deceased disclosed to her that before 2/3 days of the occurrence she was not given food by her husband and on the date of occurrence she was also scolded very badly by her husband. She has referred a letter which was written by her sister, but that was not brought into evidence by her. 39. The PW. 11, who is the informant, has stated that he received the phone-call from his son-in-law that his daughter sustained burn injuries due to burst of the stove. Her hands, fingers were also burnt and she received the burn injuries from leg to neck. What he stated that the deceased being unable to bear the torture of her husband and other family members she poured kerosene oil on her body and set fire. He categorically stated that "She also told me that in the previous morning she was physically tortured by her husband. She also told me that she was not provided meal on the previous day of the occurrence". According to him, the same story was narrated to the Medical Officer as well as to his elder daughter and son. But no such statement was found in his previous statement as recorded under Section 161 of Cr. P.C. that his daughter told him that the torture committed by the accused was unbearable and she poured k. oil on her body and set fire. The statement of physical torture in the morning of the previous day of the occurrence as well as the matter of being unfed was also not found in his previous statement as recorded by the police. 40. The Investigating Officer (the PW. 13) had confirmed that no such statement was made by the witnesses as recorded. This Court is not inclined to take any notice of the purported letters of the deceased for any purpose inasmuch as admissions of those letters were made completely in contrast to the provisions of law. Even under Section 73 of the Evidence Act no compensation with the admitted handwriting of the deceased was made by the Court nor any opinion of the expert was obtained by the Court or by the Investigating Officer. Apart that, the seizure of one of the letters from beneath the bedroll of the deceased is also shrouded by serious doubt. Even under Section 73 of the Evidence Act no compensation with the admitted handwriting of the deceased was made by the Court nor any opinion of the expert was obtained by the Court or by the Investigating Officer. Apart that, the seizure of one of the letters from beneath the bedroll of the deceased is also shrouded by serious doubt. Therefore, their contents should not be considered in the evidence as a rule of caution. 41. Now, this Court has to decide the two aspects of the matter which are vital for appreciating the evidence-(i) whether the statement as recorded under Section 161 of Cr. P.C. of the deceased (the Exbt. P/11) can be treated as the dying declaration or not? (ii) whether the PWs. 3, 4, 8 and 11 can be relied on vis-a-vis the statements so made in the dying declaration (the Exbt. P.3) and in absence of any explanation having been offered by the appellant in Crl. A. (J) No. 60/2004 whether the presumption has to be drawn under Section 113-B of the Evidence Act for purpose of holding the judgment of conviction good or not? 42. In the event the Exbt. P/11 is accepted as a dying declaration there would be a case of multiple dying declarations and in that case a question would therefore surface, which one of the dying declaration would be relied on by this Court, if it is found that there are material variance in the statements appearing in both the dying declarations. In this case there are no material contradictions so far the two dying declarations are concerned. In the event of the multiple dying declarations there would be no difficulty if it is found that the dying declarations if juxtaposed do not create a penumbra by diversity on the material particulars as relevant to the core issue of determination. 43. In this case there are no statements which are mutually destructive to each other or mutually devaluing its evidentiary coherence. In the considered opinion of this Court, the statements so recorded by the Investigating Officer under Section 161 of Cr. P.C. cannot be discarded for not being the dying declaration. 43. In this case there are no statements which are mutually destructive to each other or mutually devaluing its evidentiary coherence. In the considered opinion of this Court, the statements so recorded by the Investigating Officer under Section 161 of Cr. P.C. cannot be discarded for not being the dying declaration. In the circumstances of the case as after recording such statement on 29-8-2001 the victim died, there is no legal impediment to treat the same as the dying declaration, but since it is recorded by the Investigating Officer, this Court should not arrive at a finding solely relying the said declaration rather the Court should search for corroboration of the said dying declaration. Apart from some embellishment as made by the PWs. 4, 5, 8 and 11, their statements do corroborate the declaration at Exbt.-P/11. 44. In Dalbir Singh v. State of U.P., as reported in (2004) 5 SCC 334 : AIR 2004 SC 1990 , the Apex Court held and approved the decision in Gurbachan Singh v. State of Punjab, as reported in AIR 1957 SC 623 : 1957 Cri LJ 1009, where the law has been enunciated thus:- In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 45. So far the objection as raised by Mr. P.K. Biswas, learned counsel that the appellant in Crl. A. (J) No. 60/2004 had suffered prejudice inasmuch as the relevant questions were put in a composite manner, upon scrutiny this Court finds that even though it is advisable that as far as practicable these questions be segmented for enabling the accused to respond directly, but in this case the way the questions were put to the accused person, no prejudice whatsoever has been caused. Apart that, it would be evident after reading Section 313 of Cr. P.C. that the appellant in Crl. A. (J) No. 60/2004 nowhere stated why the deceased died of unnatural death by setting her on fire, which the said appellant had admitted. Apart that, it would be evident after reading Section 313 of Cr. P.C. that the appellant in Crl. A. (J) No. 60/2004 nowhere stated why the deceased died of unnatural death by setting her on fire, which the said appellant had admitted. In response to the question No. 12, the accused has categorically denied the fact that he stated that the deceased died due to burst of stove to his father-in-law (the PW. 11). Nowhere the said appellant has explained why the deceased set herself on blaze which fact was within the special knowledge of the said appellant and he was under obligation to disclose the same to rebut the presumption as could be drawn against him under Section 113B of the Evidence Act, but he has not stated anything for that matter, even when he was asked to say anything more by the court at question No. 18. 46. On cumulative reading of the evidence it would show that the appellant in Crl. A. No. 65/2004 have been residing in a separate residence far away from the place where the deceased and the appellant in Crl. A. (J) No. 60/2004 were residing and from the statement of the PW. 1 it has come to surface that the parents of the deceased's husband never visited their place during their stay in the rented house. On the face of such statement from an independent witness, this Court is bound to hold that the said appellant in Crl. A. No. 65/2004 namely, Smt. Hirani Sana alias Hiran Bala Sana is entitled to benefit of doubt. Moreover, the incriminating materials as available from the oral testimonies of the PWs. 4, 5, 8 and 11 those are laced with passion to secure the conviction for obvious reasons. Therefore, this Court as a matter of caution further finds that the conviction so returned against the appellant in Crl. A. No. 65/2004 namely, Smt. Hirani Saha alias Hiran Bala Sana is liable to be interfered with. Accordingly, the same is interfered with. But taking a strong presumption in view of the Exbt. P/11 document and the corroborating evidence of the PWs. 4, 5, 8 and 11, this Court is not persuaded to interfere with the judgment of conviction so returned by the trial Court so far the appellant in Crl. A. (J) No. 60/2004 namely, Sri Debasish Sana is concerned. But taking a strong presumption in view of the Exbt. P/11 document and the corroborating evidence of the PWs. 4, 5, 8 and 11, this Court is not persuaded to interfere with the judgment of conviction so returned by the trial Court so far the appellant in Crl. A. (J) No. 60/2004 namely, Sri Debasish Sana is concerned. In view of this, the appeal filed by the appellant in Crl A. No. 65/2004 namely, Smt. Hirani Sana alias Hiran Bala Sana is allowed. She is set at liberty and her sureties are discharged from the obligation. But, for the reasons as stated above, the appeal as filed by the appellant in Crl. A. (J) No. 60/2004 namely, Sri Debasish Sana must fail and accordingly the same is dismissed. Send down the LCRs forthwith.