JUDGMENT : Aniruddha Bose, J. 1. Minati Bhaskar, a 26 years old housewife died from burn injuries on 13th July, 1999. She suffered the injuries on 28th June, 1999 in her matrimonial home at Buraburitala village under the jurisdiction of English Bazar police station in the district of Malda. She was subsequently taken to Malda Sadar Hospital. Written complaint was made on 29th June, 1999 by the mother of the victim, Asha Ghosh who has deposed as P.W.2, implicating the husband of Minati, Tapan as the perpetrator of the offence. Allegation was also made in the written complaint against the mother-in-law of the victim, Ramala Bhaskar for disturbing peace of the deceased, but she was ultimately acquitted in the trial. On the basis of this written complaint, an F.I.R. was registered as English Bazar P.S. Case No. 23 of 1999 dated 29th June 1999 under Sections 498A and 326 of the Indian Penal Code, 1860. When she succumbed to her burn injuries, Section 302 of the 1860 Code was added. The Trial court found the accused-husband Tapan Bhaskar guilty of offence punishable under Section 302 of the I.P.C. and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.1000/-. It was further directed in the order of sentence that in default in payment of fine, he was to further suffer simple imprisonment for six months. The appellant however was found not guilty in respect of offences under Sections 498A/326 of the Indian Penal Code. 2. Charges were framed against the accused by the Trial Court under Sections 498A, 326 and 302 of the 1860 Code after charge-sheet was submitted by the Investigating Officer. Against the mother-in-law, Ramala, charge was framed only under Section 498A of the 1860 Code. Altogether 12 witnesses were examined by the prosecution whereas defence did not examine any witness. In this judgment, we shall primarily deal with the depositions of P.W.1 (Bharati Ghosh – sister of the victim), P.W.2, P.W.7 Dr. M.A. Mabood (the medical practitioner who attended the victim at the Hospital), P.W.6 (Smt. Chhabi Chakraborty, Senior Nurse of the Hospital) as also P.W.12, Atreyi Sen, who was the Investigating Officer of the case. In this judgment, we shall primarily deal with the depositions of P.W.1 (Bharati Ghosh – sister of the victim), P.W.2, P.W.7 Dr. M.A. Mabood (the medical practitioner who attended the victim at the Hospital), P.W.6 (Smt. Chhabi Chakraborty, Senior Nurse of the Hospital) as also P.W.12, Atreyi Sen, who was the Investigating Officer of the case. The other witnesses who deposed for the prosecution were Shyama Prosad Sarkar, (P.W.3), the Officer of the English Bazar Police Station who had received the complaint and registered the F.I.R. P.W.4, Manju Ghosh was another sister of victim, whereas P.W.5, Khokan Ghosh was her brother. P.W.8 Tapan Kumar Joardar was an employee of Malda Sadar Hospital, attached to the Hospital as Record Supplier and P.W.9 Niranjan Sarkar was the General Duty Attendant of the said Hospital. Dr. M.L. Das, P.W.10 was the Autopsy Surgeon and Nitish Chandra Das, P.W.11 was a police witness who had conducted inquest. 3. So far as cause of death is concerned, there is no dispute that she died of burn injuries. There is also not much dispute as regards the place of occurrence of offence. The prosecution case is that on 28th June, 1999, the victim was set on fire by the appellant at about 11 p.m. P.W.1 has deposed that the victim was taken to the Hospital by Jyotsna, her ‘nanad’ (husband’s sister) and Jyotsna’s husband. The information to her was given by Pinky, daughter of Jyotsna. There is no eye-witness to the incident and conviction by the First Court is primarily founded on circumstantial evidence, in particular the dying declaration of the victim. In this case, our attention has been drawn by the prosecution counsel to successive dying declarations of the victim forming part of evidence, though on behalf of the appellant, their authenticity has been questioned. We shall examine that aspect of the controversy later in this judgment. P.W.1 and 2 in course of their examination-in-chief both stated that the victim disclosed to them that the appellant-accused had poured kerosene oil on her and set fire on her and it was the victim’s sister-in-law, who doused the fire by pouring water. These two witnesses however, in their cross-examination, retracted this part of their deposition and attributed such implication to tutoring by the “para people” meaning people of the locality. These two witnesses however, in their cross-examination, retracted this part of their deposition and attributed such implication to tutoring by the “para people” meaning people of the locality. P.W.2 in her cross-examination stated that it was “para people, tutored Minati there in the Hospital to disclose everywhere that her husband poured kerosene on her and took her to fire. That the fire was accidental and therefore no F.I.R was lodged before the P.S on that very day. Next day the para people brought an F.I.R. written and told me to sign it…” There is recordal of declaration made by the victim before the attending doctor, which has been reduced into writing by the attending doctor being P.W.7 and made Exhibit.5. The statement recorded by him is in question and answer form. In response of the question as to how the incident had happened, the victim in vernacular is meant to have stated that she was not given money for shopping so she could not cook the whole day. When her husband returned home at night finding no food, out of anger he had poured kerosene oil on her and set her on fire by lighting a match stick. In exhibit “5” there is signature of a witness, being P.W.6, senior nurse of the said Hospital. The I.O, P.W.12 had also recorded a statement of the victim in which the same story has been narrated in vernacular. This statement was recorded on 29th June, 1999 under Section 161 of the Code of Criminal Procedure, 1973. This was made exhibit in the trial and the prosecution placed reliance on this statement also as dying declaration by the victim. This has been made Exhibit.13. 4. Mr. Partha Sarathi Bhattacharyya, learned counsel appearing on behalf of the appellant sought to persuade us not to take notice of the aforesaid two recorded statements on the ground that these were unreliable. Referring to Exhibit “13” he argued that the same was an imaginary work of the Investigating Officer who was interested in success of the investigation. He also pointed out that no permission was obtained from the Superintendent of the Hospital for recording the statement, which as per the I.O. was recorded in presence of mother of the victim. But in her deposition, the mother of the victim (i.e. P.W.2) did not indicate recordal of any such statement. He also pointed out that no permission was obtained from the Superintendent of the Hospital for recording the statement, which as per the I.O. was recorded in presence of mother of the victim. But in her deposition, the mother of the victim (i.e. P.W.2) did not indicate recordal of any such statement. As regards Exhibit “5” being the statement recorded by the P.W.7, he submitted that this was also an unreliable piece of evidence, not having been recorded in Hospital stationary but on a loose sheet of paper. He referred to Exhibit “7” being a note originating from the same doctor, i.e., P.W.7 in which he had requested the Superintendent of the Hospital to arrange for recording dying declaration of the patient by competent authority. It is recorded in this note that the patient was fully conscious “to depose dying declaration.” No further step admittedly had been taken on the basis of that note dated 30th June, 1999 and the victim was not examined by a Magistrate or any other Executive Officer like a Sub-Divisional Officer. Mr. Bhattacharyya has further submitted that in Exhibit.5, there is nothing to show that the victim was in conscious and fit state to give dying declaration. 5. Among the prosecution witnesses, a sister of the victim, Manju Ghosh (P.W.4) and the victim’s brother Khokan Ghosh (P.W.5) were declared hostile. None of them implicated the appellant in the crime to support the prosecution case. We shall analyse first the depositions of these four prosecution witnesses who were near relatives of the victim, while testing the appellant’s case. P.W.1 had inter-alia stated in her examination-in-chief, which was recorded by the Trial Court on 21st November, 2003:- “2. Last of all, one day, at about 8:30 p.m., Tapan, the accd. Person poured kerosene oil on my aforesaid sister and set fire to her. Her ‘nanad’ namely Jyotsna poured water upon my sister to douse the fire. Then Jyotsna and her husband took my sister to Malda Sadar Hospital and got her admitted thereto. Thereafter Pinki, daughter of Jyotsna reported the incident to us. Having got the report we rushed to the Hospital at about 11:30 p.m. My sister requested me to help her save his life. The doctor at that time disclosed that it was very difficult to save her life as she sustained 80% burn injury. Thereafter Pinki, daughter of Jyotsna reported the incident to us. Having got the report we rushed to the Hospital at about 11:30 p.m. My sister requested me to help her save his life. The doctor at that time disclosed that it was very difficult to save her life as she sustained 80% burn injury. I asked my sister as to who set fire on her. She then disclosed before me that her husband poured kerosene on her and set her to fire. She has a ten-month-old child and she requested me to take the charge of that child. The mother of the accd. Person, that is, Tapan also tormented my sister. The accd. person used to act as per instruction of his mother and accordingly tortured my sister. About 15 days after she was put to fire, she died. For this 15 days she was admitted to the Hospital and all the cost of treatment were borne by us. On the first day of admission of my sister to the Hospital, her husband went to see her; but she brought nothing for her. Next day also he went to the Hospital to see my sister and there he was arrested by the police. I was interrogated by the Police. xxn. by defence 3. Deferred on the petition of defence.” Similarly, P.W.2, in her examination-in-chief, which was recorded on 25th November, 2003 stated:- “I am now living at Gangarampur in the Dist. South Dinajpur. About more than two years before, my daughter Minati Bhaskar caught fire. She was married with accd. Tapan Bhaskar (identified). About 10 years ago her marriage was held. After marriage, my daughter lived in the house of her husband. For some days, they were living in happiness. Thereafter, I can not say what happened with them. One day I got the news that my daughter was admitted to Hospital sustaining the burn injury and having got the news I along with my eldest daughter Bharati Ghosh went to the Hospital to see my daughter namely Minati Ghosh. I saw her sustain burn injuries on her person. I asked my daughter how she sustained injuries. When asked, she disclosed before me that her husband poured oil on her and put her to fire. I can not say what my said daughter disclosed before the doctor. I saw her sustain burn injuries on her person. I asked my daughter how she sustained injuries. When asked, she disclosed before me that her husband poured oil on her and put her to fire. I can not say what my said daughter disclosed before the doctor. For 15 days, she was alive and thereafter she died to the injury sustained by her.” 6. Both of them were cross-examined on 13th January, 2004 after about seven weeks of their examination-in-chief. P.W.1 in her cross-examination deposed: xxn. by defence 5. We are 3 sisters – myself, Minati and Manju. I am eldest of my sisters., Minati is second and Manju, the youngest of all. Minati marriage with accd. Tapan was held about 8 years before her death. She has left behind a child also and that child is brought up by his father now. Tapan has 2 brothers including himself and 4 sisters. Swapan Bhaskar is the elder brother of Tapan. They live separately. I can not say whether Tapan’s mother live with Swapan. After marriage there was good relation between Tapan and his wife. Minati never complained of any kind of ill-treatment by Tapan to me at any point of time. Having rushed to the Hospital, I saw that the neighbouring people got my sister admitted to the Hospital. Accd. Tapan had no congenial relation with the neighbouring people. When asked Minati about the injury sustained by her, she disclosed before me that she caught fire while she was cooking in the kitchen. Then para people tried to tutor Minati that she would have to disclose everywhere that it is Tapan who burnt her by pouring kerosene oil on her. They also prohibited Minati to disclose that she caught fire while cooking. Then I suggested Minati to do whatever she liked as she would have to live with para people. Accd. Tapan did never render any ill-treatment to Minati. Minati’s mother-in-law also never misbehaved with Minati. Through Court 6. What I deposed on the previous day was all false and what I deposed today are all true. (Witness is warned by the Court that she should depose before the Court as to what is actually true). Question Did you depose on the previous day as to the false version as given in your statement before the Court? What I deposed on the previous day was all false and what I deposed today are all true. (Witness is warned by the Court that she should depose before the Court as to what is actually true). Question Did you depose on the previous day as to the false version as given in your statement before the Court? Answer:- What I depose today is true and what I deposed the previous day is false.” 7. Cross-examination of P.W.2 was also conducted on 13th January, 2004 and her evidence was recorded as: “P.W.2 cross examined by defence 4. Minati was my daughter. After her marriage with accd. Tapan, she was living peacefully with her husband. No ill-treatment by her husband or mother-in-law was ever reported to by Minati. At the time of occurrence I was at the house of my another daughter. Having got the news of Minati being burnt, I along with Bharati went to the Hospital to see. At first Minati disclosed there in the Hospital that she caught fire whilst she was cooking. Para people got her admitted to the Hospital. Para people tutored Minati there in the Hospital to disclose everywhere that her husband poured kerosene on her and took her to fire. That the fire was accidental and therefore no F.I.R. was lodged before the P.S. on that very day. Next day para people brought an F.I.R. written and told me to sign it and accordingly I signed it. Tapan and his mother live separately. Through Court 5. It is fact that we do not want that Tapan be punished by law as we have entered into a compromise with accd. Tapan. As Minati left behind a minor child, we have got the case compromised thinking about the future of that child.” 8. As we have already indicated, P.W.4 (Manju Ghosh – one of the sisters of the victim) and the victim’s brother Khokan Ghosh were declared hostile. We find both of them unreliable. P.W.4 in her cross-examination stated that she was not interrogated by the police, and narrated different incidents and events relating to the marriage of the victim with the appellant. P.W.5 also did not implicate the appellant in the offence. Both of them stated that the victim herself caught fire, implying an accident. P.W.5, after being declared hostile in response to Court’s query also stated:- “Through Court 3. P.W.5 also did not implicate the appellant in the offence. Both of them stated that the victim herself caught fire, implying an accident. P.W.5, after being declared hostile in response to Court’s query also stated:- “Through Court 3. It is fact that we have entered into a compromise with the accd. person for the fact that my two other sisters will have to live at Buraburitala and the child left behind by Minati will also have to live at Buraburitala.” 9. Mr. Bhattacharyya emphasised on the answers given by P.W.1 and P.W.2 in cross-examination and submitted that what they had stated in examination-in-chief was contradicted in full in their cross-examination and the Court had to accept their depositions in whole. If such an approach was adopted, Mr. Bhattacharya argued that they would have to be treated as unreliable witnesses and no credence could be given to their statements made in examination-in-chief on what they heard from the victim. In this case, thus, almost all near relatives of the victim have sought to exonerate the appellant, evidence against whom is circumstantial in nature. In support of his submissions Mr. Bhattacharyya has referred to two decisions of the Supreme Court of India to contend that dying declaration as the sole evidence to support conviction ought to be avoided. These decisions are:- (i) State of Gujarat vs. Jayrajbhai Punjabhai Varu, 2016 (4) AICLR 284 (SC) (ii) Raju Devade vs. State of Maharashtra, 2016 (3) AICLR 738 (SC) 10. We accept as proposition of law that the quality of dying declaration as evidence ought to be outstanding if conviction is to be anchored solely on that basis. We shall proceed in this matter to test if the dying declaration of the victim was voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives or other persons present or by the investigating agency who may be interested in the success of investigation. 11. Mrs. Kakali Chatterjee, learned counsel led by Mr. Subir Banerjee, learned Additional Public Prosecutor defended the judgment of conviction of the appellant and submitted that there was no flaw in the reasoning of the First Court in accepting the dying declaration made before the attending doctor that is P.W.7 and the Investigating Officer. She also brought to our notice the examination of the accused recorded under Section 313 of the 1973 Code. She also brought to our notice the examination of the accused recorded under Section 313 of the 1973 Code. The question No. 7 in the First Court’s examination and reply of the appellant under the aforesaid provision of the Code were:- “It is found from the evidences that on the day of the incident you after pouring kerosene oil on Minati set her fire by igniting with Match Stick. What is your say? Answer:- I was not at house. I do not know. (quoted verbatim).” The appellant-accused however did not spell out where he was at the time of occurrence of the incident. The incident also admittedly took place in the matrimonial home of the victim. The defence case is that the cause of fire was accidental, while the victim was cooking. In this perspective we shall examine the deposition of P.W.7, being the attending doctor who recorded the declaration, which has been marked Exhibit “5.” In Exhibit “5” there is no specific recordal that the victim was in a fit and conscious state of mind when she gave the declaration. P.W.7 however has stated in his examination-in-chief:- “Since 29-6-1999 I started to treat the patient and the patient was in severe shock and was unable to speak properly at the time of my first examination. I found almost whole body burnt except a part back of the trunk and buttock. I continued the treatment as given by Dr. Bose and added some other medicine also and also informed the party about the serious condition of the patient through the ward master. I again examined her on the same day and found her conscious and fit for deposition of dying declaration, at 12-30 p.m. I recorded the preliminary dying declaration given by the patient, Minati Bhaskar. This is that dying declaration recorded by me by my own hand in presence of Stuff Nurse Chaabi Chakraborty. It bears my signature. He also bears the signature of Chaabi Chakraborty. L.T.I. of the patient was also taken upon this dying declaration by me. This is the L.T.I. of the patient upon the dying declaration. This paper is containing the dying declaration.” 12. We do not find the factum of correct recordal of statement of the victim has really been challenged in cross-examination of the P.W.7. L.T.I. of the patient was also taken upon this dying declaration by me. This is the L.T.I. of the patient upon the dying declaration. This paper is containing the dying declaration.” 12. We do not find the factum of correct recordal of statement of the victim has really been challenged in cross-examination of the P.W.7. The defence has not questioned the fact that the victim had made such statement to the P.W.7 while cross-examining him. The appellant’s case is that it was tutored statement. P.W.1 and P.W.2 also in their examination-in-chief have narrated declarations made by the victim to be similar in nature, that is pouring on her kerosene oil by her husband, and thereafter being set on fire by lighting up of match stick. But in their cross-examination, they came forward with a contrary version of the case. So far as evidence of P.W.7 is concerned, we do not find any material on records to disbelieve him. The Senior Nurse, P.W.6, who has signed as a witness in Exhibit “5” has also corroborated that declaration was given by victim in her presence. Though the declaration was not recorded in any Hospital stationary, we do not think solely for that reason the we ought to reject or disbelieve such recordal as we find that there is no proper challenge to the content of the note being Exhibit.5 on the part of the appellant-accused. Point was also taken on behalf of the appellant that in Exhibit “5”, there was no certification to the effect that the victim was in a fit and conscious state of mind. But in his deposition, the P.W.7 has confirmed the fit and conscious state of mind of the victim at the time her statement was recorded and on that count recordal of the declaration cannot be flawed. As regards the statement of the victim recorded under Section 161 of the 1973 Code by the I.O., in isolation we might not have had accepted that as evidence for convicting the appellant. This statement was recorded at 9 P.M. on 29th June 1999, the same date on which P.W.7 had recorded the declaration in Exhibit “5”. In this case the statement recorded by the I.O. in late evening on that date however largely corroborates the content of Exhibit “5”. 13. This statement was recorded at 9 P.M. on 29th June 1999, the same date on which P.W.7 had recorded the declaration in Exhibit “5”. In this case the statement recorded by the I.O. in late evening on that date however largely corroborates the content of Exhibit “5”. 13. In this appeal, we are being urged by the prosecution to disbelieve near relatives of the victim who, in their evidence, have sought to exonerate the appellant. Law does not require discarding of evidence of near relatives of a victim for convicting an accused. Same way, we do not think just because evidence of near relatives of the victim are exculpatory so far the accused is concerned, we should accept their evidence to acquit the accused, if there are materials available to prove the contrary. 14. In this case, unnatural death of the victim stands established. The postmortem report shows cause of death as antemortem burn. The written complaint and evidence of the P.W.7, being the attending doctor goes overwhelmingly against the accused. P.W.1 and 2 had in their depositions initially stated that the victim had attributed her death to deliberate act of setting fire to the accused, but in cross-examination they stated that the victim was tutored by “parapeople” and attributed a contrary statement to the victim, that she caught fire accidentally while cooking. Another sister and a brother of the victim were declared hostile, being P.W.4 and P.W.5, and both of them referred to declaration by the victim that it was a case accidental fire. Some of the prosecution witnesses who were near relatives of the victim expressed their desire for setting the appellant-accused free. P.W.2 stated that “we do not want that Tapan be punished by law as we have entered into a compromise with accused Tapan.” By employing the pronoun “we” she seems to indicate that this was the desire of the members of the parental family of the victim. We have reproduced that part of her evidence earlier in this judgment. P.W.5 also referred to compromise with the appellant in his deposition. While it is not for us to speculate on what basis such compromise was reached and what were the conditions thereof, what emerges from the evidence of these witnesses is that there was some form of negotiation, which is an inbuilt element in any process for compromise. P.W.5 also referred to compromise with the appellant in his deposition. While it is not for us to speculate on what basis such compromise was reached and what were the conditions thereof, what emerges from the evidence of these witnesses is that there was some form of negotiation, which is an inbuilt element in any process for compromise. The reason why the members of the parental family of the victim want the appellant not to be punished also has been spelt out in her deposition by the P.W.2. Minati, the victim had left behind a minor child, and future of the child was the factor on which compromise was reached. Some of these witnesses of facts, though near relatives of the victim, have betrayed their desire and interest to see that the appellant-accused goes unpunished. The depositions of the P.W.1 and P.W.2 are in particular inconsistent. Evidence of P.W.1, P.W.2, P.W.4 and P.W.5 do not inspire the confidence of this Court for their acceptance by us. 15. We also do not find any reason to believe what was stated by the victim to the P.W.7, her attending doctor, was tutored by “para people.” There is no evidence who were the local people who had tutored her. There is no evidence of enmity between the local people and the appellant which would have prompted the former to tutor the victim to give a false declaration or make false statement to implicate her husband. In the event we are to believe the evidence of near relatives that victim and the appellant accused had happy matrimonial relationship, it does not appear to us reasonable or logical that in the last stage of her life and at the instance of outsiders the victim would falsely accuse her husband for causing fatal injuries to her. On behalf of the appellant, the case of Raju Devade (supra) was cited to contend that conviction ought not to be based solely on dying declaration. But this case is not an authority for the proposition that no conviction can be founded on dying declaration alone. In this case, there were inconsistent dying declarations, but the one in which the accused was implicated was accepted by the Trial Court, the High Court and the judgment of conviction was ultimately sustained by the Supreme Court. But this case is not an authority for the proposition that no conviction can be founded on dying declaration alone. In this case, there were inconsistent dying declarations, but the one in which the accused was implicated was accepted by the Trial Court, the High Court and the judgment of conviction was ultimately sustained by the Supreme Court. In the case of State of Gujarat vs. Jayrajbhai Punjabhai Varu (supra), a note of caution has been sounded by the Supreme Court on accepting a dying declaration by which the accused is implicated. In this case, it has been observed by the Supreme Court:- “The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration….” 16. So far as the case against the accused is concerned in this appeal, we are satisfied that the dying declaration recorded by the medical practitioner (P.W.7) was voluntary, truthful, made in a conscious state of mind without being influenced by any person. We have rejected the defence case that such declaration was made on being tutored by the local people. The mere fact that as per the P.W.7’s request no competent authority like an Executive Magistrate was called by the Hospital authorities to record the declaration does not dilute the evidentiary value or quality of the statements recorded by the P.W.7. We do not believe the evidence of P.W.4 and P.W.5 who were declared hostile. P.W.5 specifically stated that they had entered into a compromise with the accused person. As regards evidence of P.W.4 that the victim disclosed to her that she herself caught fire, there is no witness corroborating this fact. On the other hand, both P.W.1 and P.W.2 in their examination-in-chief have stated that the victim had told both of them that her husband had set her on fire. As regards evidence of P.W.4 that the victim disclosed to her that she herself caught fire, there is no witness corroborating this fact. On the other hand, both P.W.1 and P.W.2 in their examination-in-chief have stated that the victim had told both of them that her husband had set her on fire. In their cross-examination, contrary statement was made. We have found both these witnesses unreliable. 17. We were also urged to disbelieve the declaration recorded by the medical practitioner, i.e., P.W.7 in view of inconsistent and contradictory stand taken by the mother (P.W.2) and sister (P.W.1). Both of them had changed their stance. While considering their depositions, it would not be impermissible for us to consider the reasons given by the P.W.2 and P.W.5 in their depositions as to why they do not want the appellant-accused to be convicted. If we accept such reasoning, then they can be treated as relatives interested to see the acquittal of the accused, for the welfare of the child of the victim. Their inconsistent evidence can be ground for rejecting their depositions as the basis for convicting the accused-appellant. But even if we reject what they have stated in their examination-in-chief, that does not negate the evidence of the medical practitioner. Welfare of a child can be a factor for the near and dear ones of the deceased victim to camouflage the truth but that cannot be a factor for the Court to come to a decision contrary to evidence. In such circumstances, we sustain the judgment under appeal. 18. The appeal is accordingly dismissed.