JUDGMENT : ANIRUDDHA BOSE, J. 1. This appeal is against a judgment of conviction and sentence of the appellants, Panjatan Sk. and his wife Bulu Bibi under Sections 304 and 498A read with Section 34 of the Indian Penal Code, 1860. The charge against them is subjecting Firoja Bibi, the first wife of Panjatan Sk. to cruelty and killing her by pouring kerosene oil over her body and thereafter igniting her kerosene drenched body. The incident occurred at approximately 1.30 P.M. on 24th November 2003 in the residential home of the appellants as also the victim at Goze para village under Islampur police station in the district of Murshidabad. The victim was brought to Islampur hospital with almost 100% burn injury on 24th November 2003, at about 2.40 P.M., from where she was referred to Berhampur New General Hospital for better treatment. The victim however died at that hospital. Primarily on the basis of her dying declaration given before one Humayun Kabir, the medical officer of Islampur rural hospital at the material point of time, the Trial Court found the appellants guilty. Said Humayun Kabir has deposed as Prosecution Witness (P.W.) No. 8, and the statement of the victim recorded in the form of a certificate by the P.W.8 has been made ‘Exhibit – 2’. The victim died on the same day at the hospital at Berhampur. 2. The First Information Report, as per records was registered on the same date at about 15.45 hours on the basis of a written complaint of one Babu Sk., son of the first appellant Panjatan Sk. and the victim, Firoja Bibi. The written complaint carries the left thumb impression of Babu Sk. and the scribe of the complaint is one Md. Sanuar Ali. The appellant no.1 had also sustained some injury, and in the written complaint it has been stated that such injury was suffered in the process of igniting the victim. The written complaint, however, has not been specifically proved and marked as an Exhibit. The endorsement on the same by one G. Biswas has been proved by the Investigating Officer to be the signature of sub-inspector Gobinda Chandra Biswas, Officer-in-charge of the Islampur police station at the material point of time, and this has been marked exhibit 4/1. The formal First Information Report, however, has been marked ‘Exhibit 5’. The endorsement on the same by one G. Biswas has been proved by the Investigating Officer to be the signature of sub-inspector Gobinda Chandra Biswas, Officer-in-charge of the Islampur police station at the material point of time, and this has been marked exhibit 4/1. The formal First Information Report, however, has been marked ‘Exhibit 5’. Post-mortem examination of the victim was conducted by one Amiya Kumar Bera, a doctor attached to the General Hospital, Berhampur. The post-mortem report has been marked ‘Exhibit – 3’ and has been proved by said Amiya Kumar Bera who deposed as P.W. 10. He found the cause of death to be cardio-respiratory failure in a case of superficial burn. The death was anti-mortem and in course of his examination he stated such death “may be homicidal in nature”. Autopsy was conducted on 25th November 2003, and the report records the injuries to be “superficial burn injury whole body except perinal area and sole (>, 90%).” 3. This certificate of P.W. 8 recording the statement of the victim has been treated to be recorded of dying declaration in substance by the First Court. This certificate reads:- “A patient named Firaja bibi w/o Panjatan Sk. came to Islampur Hospital on 24/11/03 at 2.40 pm with almost 100% burn and she gave the statement on asking that she was burnt after pouring kerosene oil by her husband Panjatan Sk and Buluara bibi, pt was referred to NG Hospital at Berhampur.” The exact date on which the certificate was issued is not clearly legible from this document. But this bears the signature of the P.W. 8. 4. We find from materials availables that one Dulal Sarkar, a sub-inspector of police at the posted at Islampur police station at the time of occurrence of the incident was entrusted with the task of investigation of the case after the Officer-in-charge of the said police station received the written complaint and registered the F.I.R. on the basis of which Islampur P.S. Case No. 138/03 was started. He has deposed as the prosecution witness no.11. This case was initially started under the provisions of Sections 498A/326/307/34 of the 1860 Code. Chargesheet was submitted under the aforesaid provisions. Charges were framed, however, under the provisions of Sections 498A/304/34 of the Code, to which the two accused appellants pleaded not guilty. 5. He has deposed as the prosecution witness no.11. This case was initially started under the provisions of Sections 498A/326/307/34 of the 1860 Code. Chargesheet was submitted under the aforesaid provisions. Charges were framed, however, under the provisions of Sections 498A/304/34 of the Code, to which the two accused appellants pleaded not guilty. 5. Altogether eleven witnesses were examined on behalf of the prosecution, of whom six were declared hostile. They are P.W. 1 (Babu Sk.) on whose complaint the case was started, P.W. 3 (Anjere Bibi), P.W. 4 (Lalu Biswas), P.W. 5 (Md. Netajul), P.W. 7 (Sujabul Sk.) and P.W. 9 (Md. Mursalim). These witnesses were all meant to be witnesses of fact P.W. 1 is the son of the victim as also the appellant no. 1. The rest five appears to be co-villagers, all known to the appellants and the victim. As per the deposition of the Investigating Officer I.O. the P.W. 3, P.W. 7 and P.W. 9 were examined by him and their statements were recorded under Section 161 of the Code of Criminal Procedure, 1973. But all of them denied having been examined or interrogated by the police. P.W. 4 had admitted being examined by the I.O. but denied having been an eyewitness to the incident. The P.W. 1, being the son of the victim and the appellant no. 1 in his examination-in-chief stated that he could not remember if he had lodged any complaint or not. It was at that stage he was declared hostile on the prayer of the learned Public Prosecutor in charge. In course of his examination-in-chief, however, he had stated:- “Firoja Bibi was my mother. She died two years back. At the time of her death my mother was living in the house of accused persons. There was altercation between my father, mother and my step mother. My mother died of burnt. I came to Islampur PS after the death of my mother.” In course of his cross-examination by the defence, he deposed that he had lodged the case under instruction from his maternal uncle. 6. There was altercation between my father, mother and my step mother. My mother died of burnt. I came to Islampur PS after the death of my mother.” In course of his cross-examination by the defence, he deposed that he had lodged the case under instruction from his maternal uncle. 6. The P.W. 2 Mujibar Rahaman is a witness of seizure made by the Investigating Officer from the place of occurence of the following items:- “(i) striped lungi, (ii) half burnt, (iii) one portion of burnt polythin jar, (iv) one burnt piece of blue coloured under pant, (v) one burnt portion of printed ganji, (vi) one green coloured jerry-can with smell of kerosene under a seizure list.” 7. The P.W. 6 Jillar Rahaman was the brother of the victim. From his deposition it transpires that apart from the victim and Bulu Bibi, the appellant Panjatan Sk. had married another woman also. P.W. 6 in his examination-in-chief stated that he had reached the place of occurence after receiving the news of death of his sister. He has further stated that for about five years, the victim was being tortured by Panjatan Sk. The other witnesses who were examined by the prosecution were Humayun Kabir (P.W. 8), the autopsy surgeon, Amiya Kumar Bera (P.W. 10) and the Investigating Officer, being P.W. 11. We have briefly referred to the key features of their depositions earlier in this judgment. The defence did not examine any witness on their behalf. The appellants, however, have sought to make out a case that the victim had ‘Mrigi’ (Epilepsy), hinting that death was accidental, with the victim catching fire while she was having seizure. The is the stand taken by Panjatan Sk. appellant no. 1 in his examination under Section 313 of the Code of Criminal Procedure, 1973. He also stated that he got injured in the process of saving her. His overall response, as also the response of the other appellant, Bulu Bibi to their examinations under Section 313 of the 1973 Code have been that of general denial. Another witness, being P.W. 9, in his cross-examination by defence has stated:- “Firoja was cooking food and then she caught fire out of epileptic state. Nobody intimidated me to depose in this case.” 8. On behalf of the appellants, Mr. Another witness, being P.W. 9, in his cross-examination by defence has stated:- “Firoja was cooking food and then she caught fire out of epileptic state. Nobody intimidated me to depose in this case.” 8. On behalf of the appellants, Mr. Bhattacharjee has prayed for setting aside the impugned judgment on the ground of there being several flaws in the prosecution case. He has brought to our notice that the complaint was never proved, and as a consequence the First Information Report also becomes a suspect. There was no independent witness to support the prosecution case and P.W. 1, being the son of the victim himself who was declared hostile in his deposition stated, as per the transcribed version, in course of cross-examination by the prosecution : “I cannot recollect whether I filed a complaint against my father and step mother for killing my mother by burnt. I cannot remember whether I stated in the written complaint that on 24.11.03 at about 1:30 p.m. my father and step mother assaulted my mother Firoja Bibi and pushed her into a room and thereafter poured K. Oil in her person and burnt her for which she died. I want my father and step mother to be released from this case. I.O. investigated this case. It is not a fact that to save my step mother and my father from conviction I am concealing the truth.” 9. In course of his cross-examination by defence he deposed:- “There was a fight between my father and step mother and mother on 23.11.03. Throughout during her life time she had altercation and dispute with my father and step mother. I have not seen the mother to pour K. Oil on her body. I was not present at the time of mother’s death. have lodged this case under the instruction of my maternal uncle.” 10. The other flaws in the investigation, as pointed out by Mr. Bhattacharjee are that the Officer making inquest was not examined and no inquest report has been produced by the prosecution. The immediate neighbours of the family were not examined. The medical reports of either of the two hospitals have also not been made exhibits. The other flaws in the investigation, as pointed out by Mr. Bhattacharjee are that the Officer making inquest was not examined and no inquest report has been produced by the prosecution. The immediate neighbours of the family were not examined. The medical reports of either of the two hospitals have also not been made exhibits. He has also argued extensively on the point as to why the statement of the victim projected as her dying declaration ought to be disbelieved, and we shall deal with that aspect of the appellants’ case later in this judgment. 11. We shall first deal with the question as to whether we can take notice of the investigation in the absence of the written complaint having been formally proved. The P.W. 1 has really not denied lodging the complaint. We have produced substantial part of the transcript of his deposition in the earlier paragraphs. There is indirect acknowledgment on the part of the P.W. 1 of having filed the complaint in course of his cross-examination by the defence. He has stated that he had lodged the case under the instruction of his maternal uncle. The formal registration of the F.I.R has been proved by the I.O. There is no suggestion by the defence to the Investigating Officer that the written complaint was never lodged. On this point the First Court rejected the defence argument that since lodging of the F.I.R was not proved and marked exhibit the prosecution case would become weak. The First Court found the scribe of the written complaint, Sanuar Ali was dead at the time of trial, on the basis of deposition of P.W. 2 Majibar Rehman, who is the second seizure witness. One Sanowar Ali was also a seizure witness. P.W. 2, in course of his deposition stated that the said seizure witness was dead. The First Court has proceeded on the basis that the seizure witness Sanowar Ali and the scribe Sanuar Ali to be the same person. In course of hearing of the appeal no question has been raised on this finding on behalf of the appellants. P.W. 2, in course of his deposition stated that the said seizure witness was dead. The First Court has proceeded on the basis that the seizure witness Sanowar Ali and the scribe Sanuar Ali to be the same person. In course of hearing of the appeal no question has been raised on this finding on behalf of the appellants. The First Court came to the conclusion from the tenor of deposition of P.W. 1 that there was sufficient indication that he lodged the F.I.R. The First Court also considered the fact that investigation on the basis of F.I.R was carried out and such act of investigation was proved from the materials on the record as well as from the depositions of the prosecution witnesses including those who had turned hostile. The First Court in substance proceeded on the basis that not proving the written complaint and marking the same as exhibit was not fatal to the prosecution case. We do not find any reason to take a different view. 12. Next comes the question as to how the victim died. The fact that she died from burn injury covering almost her entire body stands established from the post mortem report (Exhibit-3) as also the depositions of the autopsy surgeon (PW-10) and the medical Officer at Islampur Rural Hospital (PW-8). But did the burn injury result from pouring of kerosene oil on her body by the accused appellants and setting fire on her by them or was it a case of accidental fire caught when cooking because of her epilepsy. The appellant no.1 in course of his examination under U/s 313 of the 1973 Code stated that the victim had “mrigi” disease and she caught fire while cooking. He also stated that he himself got burnt while trying to save her. Barring his own statement that he was burnt trying to save his wife, Firoja Bibi, P.W. 4 and P.W. 5 also stated that the first appellant had sustained burn injuries. Some of the burnt clothes seized also give indication that the one who wore them could have had received burn injuries, but there is no further material which could lead to the conclusion that it was the first appellant who had worn these clothes and the burn marks reflected on these wearing apparels were the result of appellant suffering injuries while trying to save Firoja Bibi, the victim. The P.W. 3, Anjera Bibi, who was also declared hostile, in course of her cross-examination by the prosecution and defence stated, as per the transcribed version of her deposition, quoted verbatim :- “It is not a fact that on 24.11.03 I stated to the I.O. that Panjatan and Bulu Bibi jointly assaulted Firoja Bibi and pushed her inside the room and poured K.Oil in her body to set fire. Firoja Bibi in her burning condition embressed her husband Panjantan, as a result of which different parts of Panjatan’s body was burnt out. I did not state to the IO that Panjantan and Bulu Bibi sometime used to assault Firoja Bibi. I have no enmity with the I.O. Neither Bulu Bibi nor Panjatan are my relative. It is not a fact to save Bulu Bibi and Panjatan, I am deposing falsely.” XXn (Defence) “Panjatan used to love Firoja Bibi and he has a cordial relation with his first wife. Such quarrel between Firoja and Bulu often took place in the family. There was nothing took place between Firoja and Bulu Bibi. I am not seen the incident. I have heard that Panjatan sustained burnt injury in order to save Bulu Bibi. I have deposed truth to-day in Court.” 13. Before we examine the cause of burn injury of the victim we shall deal with the question as to whether she had epilepsy or not. Two of her close relations, being her son and brother Jillar Rahaman (P.W.6) have deposed as prosecution witnesses and none of them has stated that the victim suffered from epilepsy. Barring the P.W.9, no other witness has supported the defence stand that she had epilepsy. No medical evidence has been produced to demonstrate that the victim used to suffer from epilepsy. In such circumstances, we do not think we can accept the defence that the appellant had received the burn injury because of or under epileptic condition. The defence story on this count has to be disbelieved. There is no other evidence as regards occurrence of any accident which could have subjected the victim to almost 100% burn injury. It is established from evidence that the victim suffered injury at her own home. This has been proved by P.W.1. He has also proved that at the time of her death, the victim was living in the house of the accused persons. It is established from evidence that the victim suffered injury at her own home. This has been proved by P.W.1. He has also proved that at the time of her death, the victim was living in the house of the accused persons. He has also stated in his deposition that there was altercation between her father (appellant no. 1), his mother (the victim) and her stepmother. The P.W.3 has also corroborated this fact in her examination-in-chief. P.W.4 has added that he had heard that the victim poured kerosene oil on her body and set herself on fire and died. But that part of evidence is hearsay in nature. The P.W.1 in course of cross-examination by defence has stated that he has not seen his mother pour kerosene oil on her body. This is a second line of defence, that is death by suicide, attempted by the appellants to explain death of the victim. But we do not find any firsthand material or corroborative evidence to sustain this defence. In response to their examination under Section 313 of the 1973 Code this stand was not taken by the appellants. We are however inclined to believe the part of the depositions of the hostile witnesses which are consistent and reliable, that the incident took place in the house of the appellants. This course is permissible in view of the settled position of law, reaffirmed by the Supreme Court in the case of KHUJJI@SURENDRA TIWARI Vs. STATE OF MADHYA PRADESH [(1991)3 Supreme Court Cases 627]. In this decision it has been held:- “It seems to be well settled by the decisions of this Court-Bhagwan Singh V. State of Hayana, Rabindra Kumar Dey V. State of Orissa and Syad Akbar V. State of Karnataka – that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.” 14. We have disbelieved that the victim had epilepsy. Accidental burn on account of injury suffered in epileptic condition thus would have to be ruled out as the cause of injury of the victim, resulting in her death. We have disbelieved that the victim had epilepsy. Accidental burn on account of injury suffered in epileptic condition thus would have to be ruled out as the cause of injury of the victim, resulting in her death. Moreover in the sketch map prepared by the Investigating Officer which has been marked ‘Exhibit 6’, the place of occurence has been described to be the “dwelling room” of the victim, which has been identified with the letter A. This has not been challenged during cross-examination of the Investigating Officer. We have believed the part of the evidence of the prosecution witnesses referred to above that the victim used to stay in the same house as that of the appellants. There are indications in depositions of the prosecution witnesses, being the P.W. 1, P.W. 4 and P.W. 6 that there was altercation or quarrel between the appellants and the victim. In this perspective, in our opinion the appellants had duty to explain how the victim had caught fire, which ultimately led to her death. This duty remains undischarged as we have disbelieved that the victim suffered from epilepsy. 15. On the question of dying declaration, the certificate of the P.W.8 does not explain in detail the date on which he had issued it. There is no witness to recordal of statement of the victim. P.W.8 has not given detail as to who brought the patient to the hospital and who had identified Firoja Bibi at the hospital. It has also been brought to our notice by the learned counsel for the appellants that in his deposition, the P.W. 8 had stated that his certificate was not a dying declaration as per law. On the same point learned Counsel for the appellants has also brought to our notice that the statement of the autopsy surgeon that generally in such type of 90% burn case the patient would have no sense. We shall now test the legality of the dying declaration from two perspectives. First, as to whether the victim was capable of making such declaration as in the certificate itself, there is no specific endorsement that the victim was in fit condition to narrate the truth as regards her cause of death. We shall now test the legality of the dying declaration from two perspectives. First, as to whether the victim was capable of making such declaration as in the certificate itself, there is no specific endorsement that the victim was in fit condition to narrate the truth as regards her cause of death. Secondly, we shall examine as to whether the certificate and the deposition of the P.W.8 could constitute dying declaration, and be admissible in evidence in terms of Section 32 of the Evidence Act, 1872. P.W.8 had stated that he examined Firoja Bibi at 2:40 P.M. with almost 100% burn injury and that she gave the statement on asking that she was burnt after pouring of kerosene oil by her husband Panjatan Sk. and one Buluara Bibi. Though the name of the second assailant has been referred to as Buluara Bibi in the certificate of the P.W.8 as also in his deposition, learned counsel for the prosecution and defence has proceeded on the basis that the person referred to by the P.W.8 as Buluara Bibi is Bula Bibi only. Learned Counsel for the appellants has also not raised any dispute on this point. P.W.8 in his cross-examination stated, as per transcribed version of his deposition, quoted verbatim:- “If any unnatural burn case patient is admitted in our Rural hospital we inform police. We try to get the dying declarations if death of patient is eminent (?). My certificate is not a dying declaration as per law. In case of almost 100% burn injury We accept that the patient would die. Consciousness way be there if the patient soon comes to hospital in 100% burn injury even.” 16. Thus, if we analyze the evidence of P.W.8 and P.W.10 in a composite manner, it would be apparent that in their opinion, it would not be impossible for a patient suffering from almost 100% burn injury also to remain conscious for a short period of time after sustaining such injury. The victim in this case was brought to the hospital within an hour of occurrence of the incident and the medical officer of the hospital deposed that consciousness could be there if the patient was even suffering from 100% burn. The victim in this case was brought to the hospital within an hour of occurrence of the incident and the medical officer of the hospital deposed that consciousness could be there if the patient was even suffering from 100% burn. Moreover, there is no suggestion to the P.W. 8 on the part of the defence that the victim was not mentally alert for making dying declaration as certified by P.W. 8 and also stated by him facing cross-examination. 17. Is there any other reason for disbelieving the P.W.8? Though there is no specification in the certificate that the patient was in a fit mental state, we can infer from deposition of P.W.8 that she was in a position to give such a statement. The date on which the certificate was issued is not clear, but the P.W.11 has stated in his evidence that he had collected the medical certificate of Dr. Humayun Kabir (P.W.8). The P.W.8 had also proved the certificate. We do not find any contradiction in his deposition which would persuade us to disbelieve him so far his recordal of the statement is concerned. The fact that Firoja Bibi was taken to the Islampur rural hospital has not been disputed on behalf of the appellants.P.W.8 has also deposed that he was examined by the I.O. (P.W. 11) and he gave him the facts he knew. His statement in his deposition that the dying declaration was not as per law is not of material significance so far this appeal is concerned, as no legally mandatory format is stipulated for recording dying declaration by a medical practitioner. This is not a case where recordal of the statement is by a magistrate, well-versed in law of evidence. This aspect has been elaborately dealt with by the First Court in the impugned judgement. The P.W.8 is not an expert in law, and whether the statement recorded by him would constitute legally admissible or not would be for the Court to determine. The First Court found him to be neutral and impartial witness and opined that there was no reason to disbelieve him. We do not find any reason to come to a different finding. The First Court found him to be neutral and impartial witness and opined that there was no reason to disbelieve him. We do not find any reason to come to a different finding. The fact that he could not specify as per whose requisition he issued the certificate and that he did not note to whom he gave the certificate does not render his certificate invalid, particularly since he has confirmed the statement of the victim recorded in the certificate in his deposition. 18. While going back to the aspect of discharge of duty on the part of the appellants to explain the cause of death of the victim, we find something unusual in the conduct of the appellants after the victim suffered burn injuries. As it appears from the deposition of P.W.11, the victim was taken to the hospital with the help of her neighbours. The investigating Officer had come to the place of occurrence after lodging of the complaint on 24th November, 2003 and arrested the second appellant Bulu Bibi. At that time, the first appellant Panjatan Sk was absconding. From deposition of the P.W. 11, we also find that the appellant no.1 had later surrendered before the learned Court below. No attempt is evident on the part of the appellants to have the victim treated, which would have been the normal course, if a family member suffered such injury. Learned Counsel for the appellants has submitted that mere fact that the appellant no.1, Panjatan Sk. was absconding does not establish his guilt. We accept this as a position of law, but such conduct weakens his case so far as the question of duty to explain the burn injury of the victim is concerned. 19. Under these circumstances, the deficiencies in investigation pointed out by the appellants’ counsel become of little significance. Mr. Banerjee, learned Additional Public Prosecutor has submitted that the chain of circumstances leading to the guilt of the accused-appellants had been proved as bad relation between the appellants and the victim, death by burn injury has been clearly established. We find the appellants guilty primarily on the basis of dying declaration proved by the P.W.8. We have rejected the defence of accidental death of the victim. Flaws in investigation to which Mr. Bhattacharjee has cannot demolish the case of the prosecution founded on these factors. 20. We find the appellants guilty primarily on the basis of dying declaration proved by the P.W.8. We have rejected the defence of accidental death of the victim. Flaws in investigation to which Mr. Bhattacharjee has cannot demolish the case of the prosecution founded on these factors. 20. We accordingly do not find any reason to interfere with the judgment of the First Court finding the appellants guilty. Finding of guilt of the appellants under the aforesaid provisions of law is confirmed. The appellants however have not been convicted of offence under Section 302 of the I.P.C, but as per Sections 304 and 498 A of the Code. The appellant no.1 has claimed that he also suffered injury at the time of occurrence of the incident. We have been informed by the learned Counsel for the parties in response to our query that the appellants have been suffering imprisonment since inception of the case and they were not enlarged on bail at any point of time. There is no adverse report from the Correctional Home against their conduct. Taking these factors into consideration, and also taking into consideration that the second appellant is a lady, we modify the sentence and direct them to suffer imprisonment for a period of 12 years, commuting it from life sentence awarded by the First Court. We also do not interfere with the decision of the First Court that the sentences under Sections 304 and 498A shall run concurrently. We further modify the sentence of rigorous imprisonment prescribed in default of payment of fine to fifteen days so far as sentence under Section 304 is concerned, and seven days, so far as sentence under Section 498A is concerned. In the event the appellants have completed undergoing the modified sentence computing their the pre-trial detention period as per the provisions of Section 428 of the 1973 Code, they shall be released forthwith from custody if their detention is not wanted in any other case. The appeal stands disposed of in the above terms. 21. Let the Lower Court Records be sent back immediately with a copy of this judgment. 22. Urgent Photostat certified copy of this judgment and order be given to the parties expeditiously, if applied for.