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2018 DIGILAW 522 (CAL)

Pannalal Ash v. State of West Bengal

2018-07-26

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

body2018
JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 18/20.08.2014 passed by the learned Additional Sessions Judge cum Judge, Special Court (E.C Act), Hooghly in Sessions case no. 111/2002 (Sessions Trial No. 17 of 2002) convicting the appellants for commission of offence punishable under Sections 498A/304B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for one month for the offence punishable under section 498A IPC and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/- each, in default to suffer rigorous imprisonment for six months for the offence punishable under section 304B IPC. Both the sentences shall run concurrently. 2. The prosecution case, as alleged, against the appellants and one Annapurna Nandi (since deceased) is to the effect that the victim Sipra Ash (nei Sar) was married to Pannalal Ash on 5th February 1999 according to Hindu rites and customs. At the time of marriage dowry to the tune of Rs. 30,000/- in cash, gold ornaments weighing about 11 bhori, almirah etc. were given to the appellants. After few days the appellants subjected Sipra to mental and physical torture on further demands of money. Tarini Charan Sar, P.W. 1, father of the victim and others tried to settle the matter but failed. Victim was subjected to continuous torture at the matrimonial home but she continued to stay there on the expectation that things would improve in future. On 24.10.1999 at around 8 am P.W. 1 received information that his daughter had been admitted with Bijoy Chand Hospital in serious condition. Thereupon he and others went to the hospital and found his daughter was admitted with burn injuries all over her body. His daughter told him that the appellants along with Annapurna had poured kerosene oil on her body and set her on fire. Local people had admitted his daughter to the hospital. Over such issue, Tarini Charan lodged written complaint with Dhaniakhali P.S resulting in registration of Dhaniakhali P.S Case no.165 dated 24.10.99 under sections 498A/326/307 IPC against the appellants and one Annapurna Nandi. On the next day the victim died. In conclusion of investigation, charge sheet was filed under sections 498A/304B/34 IPC. Local people had admitted his daughter to the hospital. Over such issue, Tarini Charan lodged written complaint with Dhaniakhali P.S resulting in registration of Dhaniakhali P.S Case no.165 dated 24.10.99 under sections 498A/326/307 IPC against the appellants and one Annapurna Nandi. On the next day the victim died. In conclusion of investigation, charge sheet was filed under sections 498A/304B/34 IPC. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Hooghly for trial and disposal. In the meantime, Annapurna died and charges were framed against the appellants under sections 498A/34 IPC and under sections 304B/34 IPC. The appellants pleaded not guilty and claimed to be tried. 3. In the course of trial, prosecution examined as many as ten witnesses and exhibited a number of documents. 4. Subsequently, charge was altered and sections 302/34 IPC was also added to the array of charges. Upon alteration of charge, the prosecution witnesses were cross-examined. In course of trial prosecution made a prayer for examination of one Dr. Robert Gregry Lakra and Sri Nazimuddin Mallick, executive magistrate who had recorded the dying declaration of the victim. Such prayer was allowed by the trial court on 26.11.2005. Thereafter repeated summons were issued upon the said witnesses to appear and depose before the court. However, both the witnesses could not be traced. Under such circumstances, the summons were sought to be served through the Principal Secretary, P & AR Government of West Bengal, Director of Health Services and even through the Chief Secretary, Government of West Bengal. Such herculean efforts were taken by the trial judge to ensure attendance of the aforesaid public servants whose examination were necessary for a just decision of the case (as they were involved in recording the dying declaration of the victim) bore some fruit. Presence of N.M. Majumder, executive magistrate could be ensured and the dying declaration was proved from the said witnesses. However, in spite of such efforts, attendance of Dr. G. Lakra could not be ensured and his endorsement on the dying declaration was proved through the deposition of P.W. 10, the Executive Magistrate. 5. In conclusion of trial, learned trial judge by judgment and order dated 18/20.08.2014 convicted and sentenced the appellants, as aforesaid. 6. Hence, the present appeal. 7. Mr. G. Lakra could not be ensured and his endorsement on the dying declaration was proved through the deposition of P.W. 10, the Executive Magistrate. 5. In conclusion of trial, learned trial judge by judgment and order dated 18/20.08.2014 convicted and sentenced the appellants, as aforesaid. 6. Hence, the present appeal. 7. Mr. Bhattacharya, learned counsel appearing for the appellants submitted that the dying declaration in the instant case has not been proved in accordance with law. Dr. Lakra has not been examined in the instant case and there is no evidence on record to show that the victim was in a fit state of mind to make the declaration. It is also argued that the time of recording dying declaration is unclear and circumstances in which the said dying declaration came to be recorded are most suspicious rendering it unreliable. He also submitted that dying declaration was not read over and explained to the victim by the magistrate, P.W. 10. He also argued that the treatment-sheet etc. of the hospital where the victim was admitted has not been produced in the instant case. With regard to the evidence of the relations it is submitted that the oral dying declaration purportedly made to them are contradictory to one another and does not inspire confidence. He also submitted that Pannalal, husband of the victim had brought her to hospital along with local people but none of the local people have been examined in this case. Hence, the prosecution case is liable to be dismissed and the appellants ought to be acquitted. He relied on various authorities in support of his contentions. 8. On the other hand, Mr. Maity, learned counsel appearing for the State argued that the evidence of the prosecution witnesses clearly show that the victim was subjected to torture on further demands of dowry. On the fateful day the appellants had set the victim on fire. No explanation is forthcoming from the appellants as to the circumstances in which the victim suffered the burn injuries at the matrimonial home. The oral dying declaration of the victim as transpiring from the evidence of the prosecution witnesses is bolstered by the written dying declaration (Ext. 5). The said dying declaration bears the certificate of the doctor marked as Ext. 5/2 showing that the victim is capable for making the statement. The oral dying declaration of the victim as transpiring from the evidence of the prosecution witnesses is bolstered by the written dying declaration (Ext. 5). The said dying declaration bears the certificate of the doctor marked as Ext. 5/2 showing that the victim is capable for making the statement. The said certificate was duly proved by P.W. 10 in whose presence Dr. Robert Gregry Lakra had written the said certificate. That apart, postmortem doctor, P.W. 8 also stated that in spite of the injuries suffered by her, the victim would be able speak. The narration in the dying declaration is a detailed one and is corroborated by other attending facts and circumstances in the instant case rendering it an unimpeachable piece of evidence. Hence, the appeal is liable to be dismissed. 9. Let me examine the rival versions in the light of the evidence on record. 10. P.W. 1, Tarini Charan Sar is the father of the victim. He deposed that the victim was married to Pannalal Ash through negotiations. At the time of marriage 11 bharis of gold, Rs.30,000/- cash, steel almirah, cot, beddings etc. were given as per their demands. At the time of marriage family of Pannalal consisted of himself, his two elder brothers, Manik Ch. Ash and Jahar Ash and their wives, Manju Das and Putul Ash. After the marriage the victim started residing at the matrimonial home. Sometimes she used to visit his residence. At that time she informed him that the accused persons were demanding more ornaments and was also criticizing her for her dark complexion. He was unable to gift ornaments as per the demands of the accused persons. Accordingly, the victim was subjected to torture and even driven out of the matrimonial home. On 23.10.1999 the victim was set on fire by the accused persons by pouring kerosene oil on her person. 11. Upon getting information he rushed to the hospital. His daughter told him that Pannalal had caught hold of the victim while Pannalal, Manju, Putul and Annapurna poured kerosene oil on her person. The victim died on the same day in the hospital. He also lodged written complainant with the police at Dhaniakhali P.S. at 8.25 a.m. Raj Kr. Sen wrote the written complaint on his instruction. Hesigned on the complaint and proved his signature Ext. 1/1. After the death inquest was held twice. The victim died on the same day in the hospital. He also lodged written complainant with the police at Dhaniakhali P.S. at 8.25 a.m. Raj Kr. Sen wrote the written complaint on his instruction. Hesigned on the complaint and proved his signature Ext. 1/1. After the death inquest was held twice. First inquest was done by police in his presence and he signed marked as Ext. 2/1. A Magistrate also conducted another inquest on the dead body of the victim and he signed on the inquest marked as Ext. 2(a)/1. In cross-examination he stated that he reached Burdwan Hospital around 2 p.m. He found burn injuries on the abdomen, chest, both hands, face and back of the head. His brother-in-law and his wife accompanied him to the hospital. His daughter was brought to the Hospital by Pannalal. He did not see Pannalal in the Hospital. When his daughter informed him of the incident he found Harendranath Sen, Rajkumar Sen, Tarun Kr. Sen and a doctor were also present. 12. P.W. 3, Smt. Debashree Sar is the mother of the victim. She deposed that the victim was married on 05.02.1999. Her daughter died on 24.10.1999. The accused persons did not behave properly with her as they were not happy with the dowry items and they made further demands through her daughter. At the hospital her daughter told her that her husband and two ‘jas’ caught hold of her and her ‘nanad’ poured kerosene oil on her person. In cross-examination, she stated that her daughter was set on fire while she was changing wearing apparels after offering prayers to God. She was set on fire at the dalan. Her daughter identified her by her voice at the hospital. Her husband and brothers were in the hospital. 13. P.W. 2 Dalim Kr. Sen and P.W. 4 Tarun Kr. Sen are the maternal uncles of the victim. 14. P.W. 2 stated that the victim was married on 05.02.1999. After marriage she was ill-treated at her matrimonial home on further demands of dowry. The victim was also abused because of her dark complexion. He advised her to bear the torture and live at her matrimonial home. In the night of 23.10.1999 the appellants poured kerosene oil on the victim and set her on fire. She died at Burdwan Hospital on 24.10.1999. He went to the hospital. The victim was also abused because of her dark complexion. He advised her to bear the torture and live at her matrimonial home. In the night of 23.10.1999 the appellants poured kerosene oil on the victim and set her on fire. She died at Burdwan Hospital on 24.10.1999. He went to the hospital. The victim was talking and told him that the accused persons after pouring kerosene oil set her on fire. In cross-examination he stated that he had never visited the house of the accused persons. When Sipra informed him of the incident her parents, Tarun Sen, Haren Sen, Arup Sen, Rajkumar Sen and some other relations were present. 15. P.W. 4 also deposed that the victim had been set on fire on 23.10.1999 by the accused persons. While she was in the hospital she narrated the incident to him. During her lifetime the accused persons had misbehaved with her on further demands of dowry and other articles. 16. P.W. 5, Abdul Raquib was an ASI posted at Chittaranjan P.S. at the time of occurrence. On 25.10.199 he held inquest over the dead body of the victim in connection with U.D. Case No. 889/99 dated 25.10.99. He proved the inquest report. 17. P.W. 9, Raj Kumar Sen is the scribe of the first information report. He proved the written complaint marked as Ext. 1. 18. P.W.6, Tarakeswar Mukherjee received the written complaint from Tarini Charan Sen. S.I. Uday Sankar Chatterjee filled up the formal FIR marked as Ext. 4. S.I. Paresh Nath is dead. He knew the handwriting of Paresh Nath. Paresh Nathseized articles under a seizure list marked as Ext. 3. 19. P.W. 8, Dr. Bhupal Chandra Majumder, conducted the postmortem over the dead body of the victim. He found the following injuries: First and 2nd degree burn injuries over the vault of the head, forehead, face, neck, chest, abdomen, back of the body, and other both the superior extremity. No other burn was found on the dead body even after careful dissection and examination. 20. He deposed that the death was due to the effects of the burn injuries ante mortem in nature. He proved the postmortem report as Ext. 6. He deposed that patient could talk in spite of injuries as found on the dead body. In cross-examination he stated that maximum burn injuries were found on head, face, neck, abdomen and chest of the victim. He proved the postmortem report as Ext. 6. He deposed that patient could talk in spite of injuries as found on the dead body. In cross-examination he stated that maximum burn injuries were found on head, face, neck, abdomen and chest of the victim. 21. P.W. 7, S.I. Vidya Sagar Tewary and P.W. 10, Nazimuddin Mallick, an Executive Magistrate are the witnesses who proved the dying declaration of the victim recorded at the hospital. P.W. 7 deposed that on 24.10.1999 he was posted at Burdwan P.S. On that date Executive Magistrate N. Mallick recorded the dying declaration of Sipra Ash at Bardhaman Medical College, C.B.S. Female Ward. He signed on the dying declaration as a witness. The declarant put her thumb impression. Executive Magistrate also signed the said dying declaration. He proved his signature marked as Ext. 5/1. In cross-examination he stated that dying declaration was recorded after 2.30 p.m. He could not remember the name of the medical officer who was present at the time of dying declaration. The patient put her right thumb impression in his presence on the dying declaration. He deposed that the Magistrate stood as Bakalamdar. 22. P.W. 10 was the Executive Magistrate who recorded the dying declaration of the victim. He deposed that on 24.10.1999 before recording dying declaration he obtained certificate from Dr. Robert Gregry Lakra. He certified that the patient was capable of making the dying declaration. He recorded the dying declaration of the patient in vernacular language. After recording dying declaration he appended the certificate regarding voluntariness of the victim. He proved the dying declaration Ext. 5. Dr. Robert Gregry Lakra wrote the certificate in his presence and he also signed in his presence. He proved the certificates/ signatures affixed by Dr. Robert Gregry Lakra Ext. 5/2. Patient gave RTI on the dying declaration. In cross-examination he stated that the doctor gave a certificate to the effect that the patient has been identified by him and she was capable of making the declaration. He deposed that the dying declaration was written by him as per dictation of the patient. He could not say at the time when the patient made the dying declaration under the treatment of which doctor, however, Dr. Gregry Lakra introduced himself as the attending doctor. At the time of recording the dying declaration no other witness was present. 23. He deposed that the dying declaration was written by him as per dictation of the patient. He could not say at the time when the patient made the dying declaration under the treatment of which doctor, however, Dr. Gregry Lakra introduced himself as the attending doctor. At the time of recording the dying declaration no other witness was present. 23. From the aforesaid evidence, it appears that the victim who was married to Pannanal Ash on 05.02.1999 suffered a brutal end due to burn injuries within nine months of her marriage. 24. From the evidence of her parents (P.Ws.1 and 3) it appears that at the time of marriage, cash, gold ornaments and other articles were given as dowry as per demand of the appellants. Appellants were not happy with the dowry items and made further demands which could not be met by P.W.1. The victim was subjected to torture which she narrated to her parents when she came to their house. She was also taunted for her dark complexion. 25. In this backdrop, on 24.10.1999 P.W.1 received information that the victim was admitted to hospital in serious condition. He along with his wife (P.W.3) and other relations, namely, P.Ws. 2 and 4 rushed to the hospital in the afternoon. At that stage, they found the victim conscious and she informed them that the appellants had poured kerosene oil on her body and set her on fire. It appears that a General Diary was lodged by the father of the victim being Burdwan P.S. G.D. Entry 1998 Dated 24.10.99 prior to the registration of the first information report. In connection with this information, P.W.10 Executive Magistrate recorded the dying declaration of the victim in writing. Prior to recording such dying declaration the fit state of the patient was certified by one Dr. Lakra (Ext. 5/2). The said dying declaration was recorded in the presence of one Vidyasagar Tewary (P.W. 7), a Police Officer attached to Burdwan Police Station. The aforesaid oral and written dying declarations have been severely criticised by learned lawyer for the appellants on the score that Dr. Lakra has not been examined in the instant case and that the said dying declarations are not reliable in the attending facts and circumstances of the case. 26. The aforesaid oral and written dying declarations have been severely criticised by learned lawyer for the appellants on the score that Dr. Lakra has not been examined in the instant case and that the said dying declarations are not reliable in the attending facts and circumstances of the case. 26. He argued that it is unnatural that Pannalal would admit his wife to the hospital if he and the other appellants had set her on fire. He further submitted as the injuries suffered by the victim were grave as would appear from the deposition of P.W.8, post mortem doctor, it is improbable that the victim would be in a position to make such declaration. There was no endorsement in the dying declaration when it was recorded or whether it was read over and explained to the victim. There is also controversy whether the victim had affixed her right or left thumb impression on the dying declaration. He further argued that the dying declarations suffered from various contradictions and, therefore, the same ought to be discarded. 27. Dying declaration, if otherwise reliable, can be the sole basis of conviction. Coming from the lips of a morbid man, a dying declaration is ordinarily treated with that degree of solemnity and reverence which it deserves. In English law, a dying declaration made in contemplation of death is treated as admissible (though its maker cannot be cross-examined) on the ecclesiastical premise that a man shall not meet his Maker with a lie on his lips. In contrast to the traditional religious connotation as to its admissibility in English law, in our country a declaration of the deceased as to the circumstances of the transaction leading to his death (whether made in contemplation of death or not) are relevant by operation of section 32(1) of the Evidence Act [S. 32(1). When it relates to cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When it relates to cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.] and may be proved in accordance with law. However, as the maker of such statement is not available for cross examination, it is the duty of the court to examine the quality of the dying declaration from all aspects including the capacity of the deceased to make such statement as well as its intrinsic truthfulness and reliability in the anvil of other relevant factors of the case. If the Court is satisfied on the aforesaid parameters, the dying declaration may be relied upon as the sole basis to convict the accused. The law in this regard is enunciated by the Apex Court in Atbir Vs. Government of NCT of Delhi, (2010) 9 SCC 1 (para 22) as follows: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) 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. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) 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.” 28. With regard to the fit state of mind of the victim to make a dying declaration it is not necessary that the declaration must invariably be certified by a Medical Officer. Consciousness and mental state of the victim to make such a dying declaration may be derived from ocular evidence of reliable witnesses and other attending facts and circumstances of the case (see Laxman Vs State of Maharasthra, (2002) 6 SCC 710 ). 29. Let me analyse the dying declarations in the present case in the light of the law, as aforesaid. 30. The written dying declaration (Ext. 5) in the instant case was recorded by P.W.10. He had categorically stated that the victim made the statement to him in vernacular and he recorded the same. He affixed his certificate as well as his signature on the said dying declaration. His evidence is corroborated by P.W.7, the Police Officer who was present at the time of dying declaration. He has also proved his signature on the said document. 31. With regard to the fit state of the victim to make the dying declaration, P.W.10 deposed that Dr. Lakra was present at the time when the dying declaration was recorded and prior to its recording, the doctor had endorsed a certificate to that effect by his hand in the presence of P.W.10. The latter has proved the said certificate as Ext. 5/1. 32. It has been argued that as Dr. Lakra was not examined, it would be unsafe to rely on such certificate. The latter has proved the said certificate as Ext. 5/1. 32. It has been argued that as Dr. Lakra was not examined, it would be unsafe to rely on such certificate. In spite of repeated and most earnest efforts on the part of the prosecution as well as the Court, attendance of Dr. Lakra could not be ensured. He is a public servant and the summons was sought to be served upon him by the court not only personally but also through the highest civil servant of the State, namely, Chief Secretary. In spite of earnest efforts to ensure the attendance of the government doctor, he remained untraceable. Such state of affairs speak of a step-motherly approach on the part of the administration in ensuring attendance of public servants as vital witnesses in the course of trial even in serious and sensitive cases involving bride burning as in the present one. I note with great pain and concern the immense efforts taken by the Trial Judge to ensure the attendance of Dr. Lakra by effecting service not only through his superior officer, that is, Director of Health Services but also through the highest civil servant in the State, namely, Chief Secretary. None of these superior officers responded to those summons and ensured the presence of Dr. Lakra before the Court. These facts as transpiring from the records of the case compel me to hold that all earnest efforts were taken to ensure the attendance of the witness and as his attendance could not be ensured notwithstanding such efforts, the certificate issued by Dr. Lakra in discharge of his professional duties was rightly proved by P.W.10 in whose presence the said certification was made in terms of Section 32(2) read with illustration (b) of the Evidence Act [S. 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- ……. (2) or is made in course of business.- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. Illustration (b) - The question is as to the date of A’s birth. An entry in the diary of the deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact. 33. A plain reading of the aforesaid provision would show that if a witness cannot be brought in spite of reasonable efforts, entry made by him in the discharge of his professional duties is relevant and may be proved by a person in whose presence such entry was made. Dr. Lakra had endorsed the certificate in the dying declaration in his handwriting in the presence of P.W. 10. Hence, P.W. 10 was a witness acquainted with the writing of Dr. Lakra in terms of the explanation to section 47 of the Evidence Act [S. 47. Opinion as to handwriting, when relevant- when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation. - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.] and was competent to prove such certificate. 34. 34. For the aforesaid reasons, I am of the opinion that the certificate of Dr. Lakra was duly proved by P.W. 10. That apart, the ocular evidence of P.Ws. 7 and 10 also establishes the fact that the patient was conscious and in a fit state of mind to make the statement. P.W. 12, the postmortem doctor, also deposed that the victim could speak in spite of the injuries suffered by her. In the light of the aforesaid evidence on record, I am of the opinion that the prosecution has been able to prove that the victim was conscious and in a fit state of mind to make the dying declaration which was recorded by P.W. 10, as aforesaid. 35. Coming to the voluntariness and truthfulness of the said dying declaration, I find that the dying declaration was recorded by P.W. 10 in the presence of the doctor and P.W. 7, a police officer in the language of the victim. The victim vividly narrated the torture and agony suffered by her during her short matrimonial life which met its brutal end at the hands of the appellants who set her on fire on the fateful day. The contents of the declaration are lucid and do not militate against the facts and circumstances as deposed by the prosecution witnesses. The written dying declaration was preceded by oral dying declaration made by the victim to her parents and relations when they came to hospital. Their versions are substantially in consonance with the contents of the written dying declaration which was subsequently recorded by P.W. 10. Minor contradictions in the oral evidence of P.Ws.1, 2, 3 and 4 with regard to the exact roles played by the appellants while dousing the victim in Kerosene oil and setting her on fire cannot be a ground to throw out the dying declarations which are substantially corroborative of one another. There is also nothing on record to show that the P.W. 10 is a biased or interested witness. I find from the endorsement in Ext. 6that the victim gave her right thumb impression on the document which is corroborated by P.W. 7 and the minor discrepancy in the deposition of P.W. 10 in that regard cannot be a ground to render the dying declaration invalid. I find from the endorsement in Ext. 6that the victim gave her right thumb impression on the document which is corroborated by P.W. 7 and the minor discrepancy in the deposition of P.W. 10 in that regard cannot be a ground to render the dying declaration invalid. The dying declaration was recorded promptly after the admission of the patient and nothing has come on record that within that short span of time the victim had been subjected to any tutoring or prompting to render such declaration invalid. 36. The victim made the declaration in her language which was duly written and certified by P.W. 10, an Executive Magistrate. P.W. 7, a police officer who was present at the time of such declaration, has corroborated the evidence of P.W. 10 and deposed that the statement of the victim was recorded at 2.30 p.m. In view of the aforesaid facts, failure to endorse the time of recording the statement in Ext. 6 would not militate against its authenticity. The oral and written dying declarations implicate all the appellants including the husband. It appears from evidence on record although the husband came to the hospital with the neighbours when the victim was admitted but he could not be seen when P.W. 1 came to meet his daughter. Hence, it is clear that the husband immediately after admission had fled away from the spot and such conduct cannot be said to be a circumstance which erodes the truthfulness of the dying declaration in any manner whatsoever. 37. Authorities relied on by the learned Counsel on behalf of the appellants are factually distinguishable. 38. In Uka Ram vs. State of Rajasthan, 2001 (5) SCC 254 the victim was a mental patient and there was no certificate to show that the victim was in a fit state of mind when the dying declaration was made. 39. Similarly in Kanti Lal vs. State of Rajasthan, 2009 (12) SCC 498 no certificate had been appended to the dying declaration that the victim was in a fit state of mind to make such declaration. On the other hand, in the present case certificate rendered by the attending doctor has been proved through P.W. 10. That apart, evidence of postmortem doctor P.W. 12 and the ocular version of other witnesses also probabilize the fact that the victim was conscious and in a fit condition to make such statement. 40. On the other hand, in the present case certificate rendered by the attending doctor has been proved through P.W. 10. That apart, evidence of postmortem doctor P.W. 12 and the ocular version of other witnesses also probabilize the fact that the victim was conscious and in a fit condition to make such statement. 40. In State of Gujarat vs. Jayantibhai Punjabhai Varu the oral dying declaration was disbelieved as it was contrary to the written dying declaration which was exonerative in nature. The oral and written dying declarations in the instant case substantially corroborate each other and implicate all the appellants. 41. It has been argued that the general diary being Burdwan P.S. G.D. No. 1998 dated 24.10.1999 preceding the FIR has not been produced. It is true the diary was registered at police station prior to lodging of FIR. However, FIR was promptly registered thereafter and P.W. 1 did not suppress the fact that he had diarized the incident earlier. Under such circumstances, failure to produce the prior general diary cannot be said to be an inherent lacunae which affects the credibility of the prosecution case. 42. For the aforesaid reasons, I am of the opinion that the dying declarations relied on by the prosecution in the instant case have been duly proved and are voluntary, truthful and not vitiated by any extraneous factor like tutoring or prompting and can be relied on to bring home the guilt of the appellants. 43. In addition thereto, it is important to note that none of the appellants were able to explain how the victim housewife suffered such grave burn injuries at the matrimonial home on 23.10.1999 when all of them were present at the matrimonial home on that fateful night. Apart from making a vague suggestion that she may have suffered an accidental burn during offering prayers to god, no cogent material was adduced by the appellants to probabilizes the case of accidental burn of the victim. Significantly the appellants were silent with regard to circumstances leading to the death of the housewife which were certainly in their special knowledge even during their examination under section 313 Criminal Procedure Code. In view of the aforesaid facts, I have no doubt in my mind that the conviction and sentence recorded in the instant case against the appellants were rightly recorded and are liable to be upheld. 44. The appeal is accordingly dismissed. In view of the aforesaid facts, I have no doubt in my mind that the conviction and sentence recorded in the instant case against the appellants were rightly recorded and are liable to be upheld. 44. The appeal is accordingly dismissed. 45. The period of detention suffered by appellants during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure. 46. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 47. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree. - Ravi Krishan Kapur, J.