JUDGMENT : ANIRUDDHA BOSE, J. 1. The appellant has been convicted of offences under the provisions of Sections 302 and 498A of the Indian Penal Code, 1860 and sentenced by the Trial Court to suffer rigorous imprisonment for life for the former offence and imprisonment of similar character for three years in respect of the latter. Sentence of the appellant includes direction to pay fine of Rs.4,000/- as punishment for each of the offences of which he has been convicted. In default thereof, further rigorous imprisonment for six months has been prescribed for his conviction under Section 302 of the 1860 Code and for forty days in relation to the other offence. Charge against the accused is having committed murder of his wife, Sabita Bhowmick as well as treating the victim after their marriage with cruelty by torturing her both physically and mentally. 2. Case of the prosecution, which was sustained by the Trial Court, is that while accompanying his wife to a “Jatra” (a form of indigenous theatre) at “Haripat” on the night of 2nd January, 2002, the appellant had attacked her on the way and injured her head and several other parts of the body with bricks. Their matrimonial home was at mouza Uttar Lou Chapra under Dinhati Police Station in the district of Cooch Behar. Subsequently he took the injured victim to their matrimonial home and there she was confined in a room locked from outside. The victim’s groaning sound in agony had alerted other relatives who used to reside close by. The lock was broken and the injured victim was initially taken to the nearby primary health centre at Bamanhat, from where she was transferred to Dinhata sub-divisional hospital on 3rd January, 2002 on being referred by the attending doctor at that primary health centre. The victim succumbed to her injuries in the sub-divisional hospital after brief treatment at 11.35 A.M. on the same day. The attending doctors at both the clinical establishments have given evidence that the victim had told them that she was assaulted by the appellant. The autopsy surgeon, Dr. D.K. Khara (P.W. 13) in the post-mortem report opined hemmorrhagic necrogenic shock, ante-mortem in nature to be the cause of death of the victim. There was no observation by the autopsy surgeon as to whether the victim’s death was homicidal or accidental nature. The autopsy surgeon, Dr. D.K. Khara (P.W. 13) in the post-mortem report opined hemmorrhagic necrogenic shock, ante-mortem in nature to be the cause of death of the victim. There was no observation by the autopsy surgeon as to whether the victim’s death was homicidal or accidental nature. Another doctor, Ratan Barman (P.W. 26) who had examined the patient at the sub-divisional hospital, stated in his deposition, after explaining the nature of injuries suffered by the victim that such types of injuries might be inflicted by hard instruments. In cross-examination, however, he also stated that “such injury might be inflicted by sudden falling on bed....” The case was started on the basis of a written complaint of one Kanak Ranjan Roy (P.W. 2) on 3rd January, 2002 itself. In the written complaint he described himself as Upa pradhan of the local gram panchayat. The complaint was received at 22.35 hours on the night of 3rd January 2002 and in this complaint the appellant was named as the assailant. 3. There was no eye-witness to the actual act of assault. Finding of guilt and conviction by the Trial Court is based on circumstantial evidence. The Trial Court has primarily relied on statements of the victim narrated by two medical practitioners treating her, by which she attributed her injuries to assault by her husband, the appellant. Such statements of the victim were in the nature of dying declarations. These two medical practitioners were Dr. Amitava Barman (P.W. 23), who at the material point of time was attached to the Bamanhat primary health centre and Dr. S. Mandal (P.W. 25). The latter treated the victim at the sub-divisional hospital. The defence stand before the Trial Court was his innocence and it was emphasised that he was absent from the place of occurrence at the material time. In his reply to examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant took a stand that he had been implicated in a false case and that he was not at home. Altogether 31 witnesses were examined by the prosecution, of whom 12 were witnesses of fact. We shall deal in this judgment the evidences of those witnesses only which we find relevant and necessary for adjudication of this appeal. There were several routine witnesses and also witnesses whose depositions are inconsequential and we shall avoid referring to their depositions in this judgment. We shall deal in this judgment the evidences of those witnesses only which we find relevant and necessary for adjudication of this appeal. There were several routine witnesses and also witnesses whose depositions are inconsequential and we shall avoid referring to their depositions in this judgment. The father of the appellant Kishtish Chandra Bhowmick (P.W. 3) and a brother of the appellant Gourango Bhowmick (P.W. 4) had made statements which were recorded under Section 164 of the 1973 Code and in such statements (exhibits 2/3 and 3/6), as recorded they sought to implicate the appellant by stating that both of them had heard the victim saying that she was assaulted by her husband. Both of these witnesses, however, were declared hostile. The P.W. 3 denied giving any statement before the Magistratewhereas the P.W. 4 in his examination-in-chief proved his signatures made on the statement but he deposed that the statement was given to him before the Magistrate. None of them repeated making such statements in their depositions in course of trial. Tamal, the son of the appellant and the victim also deposed as prosecution witness (P.W. 1) but again was declared hostile. Altogether seven witnesses were declared hostile, being P.W. 1, P.W. 3, P.W. 4, P.W. 5 – Basana Bhowmick (wife of another brother of the appellant), P.W. 7 – Paresh Chandra Bhowmick (an uncle of the appellant) and P.W. 8 - Tapan Paul (owner of a grocery shop near the location where the act of assault was meant to have had taken place). 4. Among the other witnesses of fact, P.W. 6 (Dipak Basak) was the brother of the victim. The other witnesses of fact are residents of the same or nearby localities and we do not find much significance in relation to their evidence. Three seizure lists were made exhibits, of which exhibit12/3 being notings and the bed-head ticket at the sub-divisional hospital is of importance so far as this appeal is concerned. A document purporting to be “terms of settlement”, which was seized on 4th January, 2002 seeking to lay down compromise terms in marital dispute between the appellant and the victim has also been referred to by the learned counsel for the State. A document purporting to be “terms of settlement”, which was seized on 4th January, 2002 seeking to lay down compromise terms in marital dispute between the appellant and the victim has also been referred to by the learned counsel for the State. This document does not bear any date of execution and in our view has little impact on this appeal, except that the same points to certain past disputes between the appellant and the victim. The other items seized were two pieces of broken bricks and three pieces of broken red coral bangle. The broken bricks and pieces of coral bangle were seized from the place of initial occurrence on 4th January 2002, and the seizure list records Uttar Lowchapra (Bamanhat) as the place of seizure. In his deposition, Probin Pradhan (P.W. 27), who at the material time was the investigating officer described the place of seizure of these bricks and broken bangles to be “near Bamanhat Railway Station.” Wearing apparels and broken pieces of shell bangles formed subject-matters of another seizure list. But these materials again are of not much significance so far as present appeal is concerned. Two inquests were made at the sub-divisional hospital on 3rd January, 2002 by the Executive Magistrate Amit Roychowdhury (P.W. 28) and Dipak Kumar Panja an A.S.I of police at the S.D. Hospital and these inquest reports were also made exhibits. 5. The Trial Court primarily relied on evidence of the two medical practitioners, which included narration of the victim on the aspect of cause of her injury to them as well as the depositions of P.W. 1, P.W. 3 in coming to the finding of guilt of the appellant. The Trial Court opined that it was only the accused/appellant who had the opportunity to be with the victim and it was he alone who could assault her on the night of occurrence. Broadly, the last seen together principle was applied. 6. Mr. Partha Sarthi Bhattacharyya, learned counsel for the appellant has assailed the judgment of conviction and the order of sentence on the ground that none of the charges were proved beyond reasonable doubt. He has submitted that the entire case is based on hearsay evidence and the F.I.R. maker (P.W. 2) has also not disclosed from whom he heard of the incidence. He has submitted that the entire case is based on hearsay evidence and the F.I.R. maker (P.W. 2) has also not disclosed from whom he heard of the incidence. Next, his submission is that there is also no evidence as to who took the victim to the hospital. According to Mr. Bhattacharyya, the appellant was not present at the place of occurrence and he pointed out various flaws in the factual narrative of the prosecution witnesses through which the case against the appellant was constructed by the prosecution before the Trial court. He also wants us to disbelieve the two doctors, P.W. 23 and P.W. 25 on the aspect of deposing on dying declaration of the victim, having regard to the state of her physical and mental condition. The State, however, defended the judgment and Mr. Subir Banerjee, learned additional public prosecutor appearing for the State has argued that there was sufficient evidence before the Trial Court to implicate the appellant in the two offences with which he was charged. 7. We shall first examine the question as to whether the appellant was present or not at the place of occurrence as his absence is the main defence of the appellant. P.W. 3, his father and P.W. 4, his brother deposed that the appellant was at Dhubri at the material point of time. But the F.I.R. maker, P.W. 2 in his deposition stated that he had seen the couple that is the appellant and the victim going to see the jatra at Haripat. No contrary suggestion was given to him in his cross-examination. He is a neutral witness and we do not find any reason to disbelieve him on this count. Moreover P.W. 3, being the father of the appellant in his cross-examination by the defence also stated that his four sons including the accused Tapu Bhowmick were at the cremation ghat. There is no independent evidence adduced by the appellant to sustain his alibi of being at Dhubri. The appellant has failed to establish that he was in Dhubri on the night of occurrence. On the other hand, a neutral witness has given evidence that he had seen the appellant was present with the victim on the night on which the assault had initially been made. The appellant has failed to establish that he was in Dhubri on the night of occurrence. On the other hand, a neutral witness has given evidence that he had seen the appellant was present with the victim on the night on which the assault had initially been made. The sequence of events, in terms of their importance next is discovery of the injured victim in a locked room in her matrimonial home. P.W. 1, has stated that at about 7 A.M. on 3rd January 2002 (referred to by him as “the day of incident”) he rushed to his home along with P.W. 3 upon hearing “cry of my mother” and on reaching there his “dadu” (grandfather) broke the door and rescued his mother. Though this witness was declared hostile, his evidence cannot be discarded altogether on this aspect and there is no contrary suggestion to him on this part of his deposition. He has also stated that the victim was taken to Bamanhat hospital. P.W. 1 was declared hostile when he deposed that he did not state to the police about any incident relating to his mother. But his deposition on the door being locked from outside and being broken open has not been contradicted. The part of the evidence, relating to breaking open of the lock stands corroborated by the examination-in-chief of P.W. 3. Another brother of the appellant P.W. 4 has also corroborated the factum of breaking open of the door. 8. Now we shall turn to the evidence available as to what transpired at the Bamanhat primary health centre. There is a single sheet (Exhibit-12/9) with a stamp of the said health centre showing reference of the patient with very poor general condition to the sub-divisional hospital. There is also indication of the injuries on this sheet and basic treatment given to the patient. At the health centre the victim was first attended by the P.W. 23, (Dr. Amitava Burman) and he has proved exhibit 12/9. He was declared hostile at the instance of the prosecution when in course of his examination-in-chief, he stated that he could not recollect whether he was examined by police or not. At the health centre the victim was first attended by the P.W. 23, (Dr. Amitava Burman) and he has proved exhibit 12/9. He was declared hostile at the instance of the prosecution when in course of his examination-in-chief, he stated that he could not recollect whether he was examined by police or not. After referring to the nature of injuries suffered by the victim, he, inter alia, stated in course of his cross-examination by the prosecution after being declared hostile:- “It is a fact the Rinku Bhowmick, the patient on her appearance before the BPHC stated to me as her history of assault that she has assaulted by her husband I cannot recollect whether on examination by the I.O. of case I stated to police that Rinku stated to me that she was assaulted by her husband.” 9. In cross-examination of P.W. 23 by the defence there is no suggestion that such a statement attributed to the victim was false. What he was cross-examined on was that such statement of the victim did not appear in the treatment sheet and time of examination of the patient and time of reference of the patient to the sub-divisional hospital was also not reflected in the treatment sheet being exhibit 12/9. P.W. 25 is Dr. S. Mondal, who had treated the victim at thefirst instance at Dinhata sub-divisional hospital. The exhibited documents pertaining to treatment of the victim at the sub-divisional hospital comprise of several sheets or pages. The first two pages are printed forms carrying the heading “RECORD OF IN-PATIENT”, which has been marked exhibit 12/1. The next one is exhibit 12/2, which include notings on patient condition and treatment advice on a single sheet, which has been proved by P.W. 26, Ratan Barman, who had made those notes. This has been referred to by P.W. 26 as bed-head ticket. The next part of the bed-head ticket on the reverse sheet of exhibit 12/2 has been made exhibit 12/3 and has been proved by P.W. 25, who has stated that the same was prepared and signed by him. This sheet carries a hand written sentence on top of the page:- “H/o Physical assault by Husband (as stated by the wife pt.)” Rest of exhibit 12/3 again records condition of the patient and treatment advise. This sheet carries a hand written sentence on top of the page:- “H/o Physical assault by Husband (as stated by the wife pt.)” Rest of exhibit 12/3 again records condition of the patient and treatment advise. The said notings also carry a request for the ward-master to arrange for dying declaration and endorsement of the ward-master of having taken note thereof has also been proved by him, being exhibit 12/5. 10. As regards the said recordal, in his cross-examination by the defence, P.W. 25 stated:- “Not a fact that the history as stated by the patient about assault done by her husband is not correct. I also do not find any name of witness in the report in whose present the statement of history of assault was stated by the patient to me.” 11. On behalf of the appellant question was raised on the cause of death of the victim, referring to the evidence of the autopsy surgeon, post-mortem report and evidence of P.W. 26 to the effect that the injuries suffered by the victim could be caused by sudden falling on bed. The other flaws in the prosecution case pointed out by Mr. Bhattacharyya are that the treatment sheet of the primary health centre did not carry any endorsement by the attending doctor about assault on the victim by her husband. So far as endorsements made on the bed-head ticket of the sub-divisional hospital are concerned, his submission is that mere recordal of a statement attributed to the victim ought not to be made the basis of conviction as there is no proper disclosure on maker of such statement. Mr. Bhattacharyya has emphasised on failure to have formal recordal of dying declaration in spite of advise of the attending doctor. He has relied on a decision of the Hon’ble Supreme Court in the case of Mayur Panabhai Shah Vs. State of Gujarat [ (1982)2 SCC 396 ]. In this authority, it has been held by the Hon’ble Supreme Court that even where a doctor has deposed in Court, his evidence has to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth. 12. We have disbelieved the defence story that the appellant was not present at the time of occurrence of the incident. We have already given our reasoning for doing so. 12. We have disbelieved the defence story that the appellant was not present at the time of occurrence of the incident. We have already given our reasoning for doing so. After the couple (appellant and the victim) was seen together by the P.W. 2, we find that there is direct evidence of the victim found alone in a locked room with grave injuries. No evidence has come forth from the defence to explain how the victim was found locked from outside in a room in her matrimonial home. 13. What are the circumstances which implicate the appellant/accused in the offence he was charged with? We have to ignore the statements of P.W. 3 and P.W. 4 recorded under Section 164 of the 1973 Code. In their depositions these two witnesses did not confirm their statements and in fact in substance denied having made them. We have earlier dealt with the nature of their denial. The first medical practitioner to attend the victim was P.W. 23, who at the material point of time was attached to the aforesaid primary health centre. He, after being declared hostile, in cross-examination by the prosecution stated that it was the victim on her appearance before the health centre had told him the history of assault by her husband. In the treatment sheet, however, this was not recorded. Though the treatment sheet or bed-head ticket at the sub-divisional hospital does not record who had stated about physical assault upon the victim but this lacuna has been explained by the P.W. 25. At the said sub-divisional hospital, however, in spite of advise or request, the dying declaration of the patient was not recorded in a formalized manner. There is no explanation from the prosecution as to why it was not done. We, however, find that the victim was admitted on 3rd January 2002 at 9.55 hours and she had expired at 11.35 A.M. on the same day. In the sub-divisional hospital, she survived only for one and half hours. For these reasons, we do not think we shall reject the statements of two medical practitioners from two clinical establishments narrating the same statement of the victim by which the victim attributed the assault to her husband. In the sub-divisional hospital, she survived only for one and half hours. For these reasons, we do not think we shall reject the statements of two medical practitioners from two clinical establishments narrating the same statement of the victim by which the victim attributed the assault to her husband. Both these witnesses stuck to their statements in their cross-examination and we do not find any reason to disbelieve them, even if we treat them as ordinary witnesses, as has been mandated by the Hon’ble Supreme Court in the case of Mayur Panbhai Shah (supra). They are neutral witnesses and there is no evidence of any enmity of these witnesses to the appellant/accused. The autopsy surgeon did not specifically state that the injuries were homicidal in nature. But there is sufficient evidence that the injuries suffered by the victim could be inflicted by hard instrument and the patient had died due to such injuries. This transpires from the deposition of P.W. 26 Dr. Ratan Barman, who had also attended the victim at the sub-divisional hospital. In his cross-examination he stated that such injury could be inflicted by sudden falling on bed. But this possibility does not rule out the other part of his evidence about the possibility of the injury being inflicted by hard substances. The autopsy surgeon (P.W. 13) had also stated that the types of injuries suffered by the victim could be inflicted by the hit of “hard substance” but was inconclusive in his opinion as to whether death of the victim was homicidal or accidental. But as we have believed the depositions of P.W. 23 and P.W. 25 that the victim herself stated to both of them in two different hospitals that she was assaulted by her husband, we have to rule out the cause of death being accidental in nature. There is no explanation as to why the victim was locked in alone in her matrimonial home. All these circumstances, in our opinion, prove beyond reasonable doubt that it was the appellant who had assaulted the victim and the death of the victim was caused by the appellant intentionally. We do not find any reason to interfere with the findings of the Trial court on this count. 14. All these circumstances, in our opinion, prove beyond reasonable doubt that it was the appellant who had assaulted the victim and the death of the victim was caused by the appellant intentionally. We do not find any reason to interfere with the findings of the Trial court on this count. 14. In relation to the charge against the appellant under Section 498A of the 1860 Code, the Trial Court has relied on the depositions of P.W. 1, P.W. 2 and P.W. 6. The Trial Court held:- “Now with regard to the charge U/S 498(A) I.P.C., I find in the deposition of Tamal Bhowmick (P.W. 1) and (P.W. 2) Kanank Ranjan Roy and (P.W. 6) Dipak Basak that the accused was in the habit of doing usual torture and beating towards his wife and the accused was found doing mercilessly and without care and request of neighbouring people and the same torture was admittedly found to be done since after her marriage till the incident of murder committed by the accused at his place.” 15. We have gone through the depositions of the respective witnesses and find no error in the judgment of the Trial Court in convicting the appellant under the aforesaid provisions. We accordingly dismiss the appeal. 16. Let Lower Court records with a copy of this judgment be sent down to the learned Court below immediately by the department. 17. Urgent Photostat certified copy of this order be given to the parties, if applied for, on priority basis on compliance of all formalities. Asha Arora, J. - I agree