IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:- HON’BLE JUSTICE ARIJIT BANERJEE & HON’BLE JUSTICE CHAITALI CHATTERJEEE DAS CRA 39 Of 2021 PRASANTA BARMAN @ BAPI VS THE STATE OF WEST BENGAL For the Appellant/Petitioner : Ms. Rima Sarkar, Adv. For the State : Mr. Jagriti Mishra, Ld. AAAG Mr. Tapas Prasad, Adv. Reserved On : 14.08.2026 Judgement On : 21.08.2026 Uploaded On : 21.08.2026 CHAITALI CHATTERJEEE DAS:- 1. This Appeal has been filed for setting aside the impugned judgement and order of conviction dated February 27, 2020 and February 28, 2020 passed by the learned Additional Session Judge, Dinhata, Cooch Behar in connection with ST No. 04(06) of 2018, under Sections 498A/302 of the Indian Penal Code arising out of Dinhata Police Station case no.350 of 2017 dated April 6, 2017, under Sections 498A/326/307 of Indian Penal Code and thereby sentencing him to suffer regiorous imprisonment for life and also to pay fine of ₹10,000 in default to suffer simple imprisonment for 6 months for committing offence punishable under section 302 of Indian Penal Code. Brief Fact 2. The case was started on the basis of a complaint lodged by one Patani Burman to the Dinhata Police Station on April 6, 2017 intimating that her daughter got married about 9 years ago with the appellant and an amount of Rs. 20,000 in cash, gold ornaments and other gift materials were given and after marriage, her daughter went to the matrimonial house and started leading family life. However, later she was subjected to physical and mental torture by her husband, and despite that, she continued to lead the conjugal life and delivered two male child. However, after birth of the younger son, the extent of torture increased day by day which compelled the de facto complainant to bring her daughter to her house along with the son-in-law. During their stay in their house on March 29, 2017 at about 7 to 7.30 PM at night, there was a quarrel between her daughter and the present appellant and that at about 9 to 9.30 P.M. he with an intention to kill her daughter, set her on fire by pouring kerosin oil . When her daughter came out of the room in burnt condition and was tossing on the courtyard, the accused fled away from that place. The victim was taken to hospital by the de facto complainant where the doctor admitted her, and she sustained 60% burn injury from the lower part of the navel to the throat. After the day of incident, the accused went to his parent’s house. The de fecto complainant came to learn the entire incident from her daughter after she recovered a little and since she was busy with her treatment, there was delay in lodging written complaint. After completion of investigation, the charge-sheet was submitted subsequently, the victim died on July 8, 2017, and hence the charge-sheet was submitted under Sections 498/302 of the Indian Penal Code, 1860 against the appellant and his mother. 3. The learned session court framed the charge considering the materials on record and the contents were read over and explained to the respective accused persons to which they pleaded not guilty and claimed to be tried. After analyzing the evidence the Learned Trial Court passed the order of conviction against the husband/appellant and acquitted his mother, the co-accused. Being aggrieved, the instant appeal has been filed. Submissions 4. The learned advocate representing the appellant argued that the prosecution has miserably failed to prove the case beyond the shadow of all reasonable doubts, which is a cardinal principle of criminal jurisprudence. The stand taken by the learned advocate is that the de facto complainant being the mother, the father and elder sister of the victim as well as the neighbors, did not support the case of prosecution and the consistent testimony which can be found evident is that the accident took place while cooking. It is further submitted that the deceased died on July 8, 2017, when the incident happened on March 29, 2017, and the medical officer, prepared the injury report on March 29, 2017 followed by a statement recorded by a second medical officer but even though the victim was admitted in the hospital and subsequently brought to the house of the de facto complainant, the investigating officer never recorded her statement under Section 161 of the Code of Criminal Procedure. Exhibit 6, the injury report does not show that the deceased, who sustained burn injuries to the extent of 70% was in a proper state of mind to give such statement before the doctor. The injury report further states that the time of inflicting injury was 11 PM when inquest report reveals the incident occurred at 7 to 7:30 P.M. at night and the time is mentioned as 9 to 9:30 P.M in the FIR. There are glaring inconsistencies in the alleged statement given by the deceased/victim as she never had any female child, so question of cuddling her daughter as recorded does not arise. Secondly, the doctor himself in his cross- examination deviated from his own testimony when he said that the statement recorded ‘narkel tel’ (that is coconut oil) but he said kerosin . The recording of such statement is highly doubtful from a rustic villager and such sort of statement using words like ‘Dainik’, ‘ manasik’ ‘atyachar’ is highly doubtful. The learned advocate placed reliance on the decision of Smt. Lakshmi versus Om Prakash and others1, paragraph 21, 23, 29 and 30. He further relied 1 2001 AIR SC 2383 upon the decision of Irfan @ Naka versus State of Uttar Pradesh2, where it was held that the judge needs to decide whether the essentials of a dying declaration are met and if it can be admissible, once done, it is a duty upon the court to see to what extent the dying declaration is entitled to credit. 5. In the decision of Suresh versus State represented by Inspector of Police criminal appeal number 540 of 2013, it was held that a dying declaration is an important piece of evidence and a conviction can be made relying solely on a dying declaration, but such reliance should be placed after ascertaining the quality of the dying declaration and considering the entire facts of the given case. It is his further contention that in the instant case, the declaration was not given in a fit state of mind and the nature of declaration cannot be expected from a victim being a rustic villager and there is no medical evidence on record to show the fitness of mind, specially when the other witnesses did not support the prosecution case and none of them was declared hostile. He put reliance on the decision of Vimlabai Manohar Doballiwar versus State of Maharashtra3. Accordingly he prayed for setting aside the order of conviction. 6. The prosecution on the other hand, opposed the contention of the learned advocate of the appellant and specifically submitted that 19 witnesses were examined and the dying declarations were exhibited after two doctors were examined. The unimpeachable and independent testimony of Dr. Indrajit Das who recorded the Dying Declaration and categorically testified on oath that the 2 2023 live law (SC) 698 3 2018 SC online BOM 6956 patient was mentally and physically alert at the time of making the statement further corroborated by Dr. Santanu Pathak coupled with the cause of death as mentioned in the Post Mortem Report well established the case .Furthermore the acquittal of the mother in law actually strengthens the prosecution case against the husband. The discrepancy in mentioning the nature of oil actually demonstrates the doctor’s honesty and integrity in recording exactly what patient stated without embellishment and this is duly corroborated in injury report of P.W. 3.The Learned Court rightly placed reliance on the dying declaration as being true ,voluntary and trustworthy and held that minor discrepancies do not detract from its evidentiary value especially when the declarant was in a fit state of mind and corroborated by independent Medical evidence. Accordingly the prosecution prayed for dismissal of the appeal. Analysis 7. Heard the submissions of both the learned counsel representing the appellant as well as the prosecution. On careful consideration of the materials on record the moot question that falls for consideration before this court is that whether there is any reason to interfere with the judgment of conviction passed by the learned trial court solely relying upon the dying declaration. 8. In order to bring home the charges the prosecution has examined as many as 19 witnesses and proved the documents, including the postmortem report and dying declarations. In trial, while adducing evidence the mother/ de facto complainant completely changed her version and said that on the day, her daughter caught fire when she was cooking in her kitchen, and after shouting, she rushed to the spot and shifted her to the hospital. She was hospitalized for 10/12 days and her daughter was brought to her house where she died. She further deposed that she only put signature on the written complaint and she was not cross-examined and was also not declared as hostile. The father of the deceased and husband of de facto Complainant also deposed that after marriage, his daughter went to the matrimonial house and led happy conjugal life and they have two male children. Her daughter caught fire when she was cooking in his kitchen and was hospitalized for 12 days. Thereafter she was brought to his house where she died. The cross-examination of this witness was declined. Ratan Mandal who knew that the de facto complaint had lodged a complaint deposed as P.W.8 and he is a hearsay witness who heard that the victim died due to burn injury, but could not say how it happened. 9. The P.W.3 is the priest who solemnized the marriage of the deceased and P.W.4, is the barber and hence their evidence has got not much relevance in the instant case. P.W. 5 conducted Police inquest over the dead body who only said he did not have any personal knowledge. P.W.6 is a constable who put his signature on the dead body challan. 10. The autopsy surgeon, Dr Manoj Kumar Sinha deposed as P.W.7 who conducted the post-mortem of the body brought by Constable Ilias Rahman. The cause of death to the best of his knowledge and belief was shock due to septicemia in a case of old burn injury, and the Viscera report was pending. In his cross-examination, he only denied the suggestion put to him that in case of 40% burn injury, the patient may or may not recover and it depends upon the condition of the patient. P.W.9, who also knew the complainant being a neighbour and that De-facto Complainant lodged the written complaint against the appellant said his mother. She heard that the diceased died due to burn injury and her husband used to reside in his in-laws’ house at the time of the incident. He could not say the date of death of the deceased. Chumki Mondal, P.W. 10 is a neighbour, and she could not say about the date of death of the deceased which occurred due to burn injury. From her cross examination only, it can be found that the deceased lived at her parental house along with the children for last 3 to 4 years and she could not say how she sustained burn injury. Similarly, P.Ws`. 11, 12 also did not depose anything to support the prosecution case. 11. In this case one of the most vital witnesses is Dr. Shantanu Pathak PW 13 who was posted as medical officer on March 29, 2017 and prepared injury report of the deceased. He recorded the version of the patient at the time of admission that her husband tried to kill her by pouring kerosene and setting her on fire. The patient was admitted and referred to a surgeon for proper management. He further recorded that the patient was complaining of burning sensation and pain. The nature of injury found was blisters and loosening of skin over face and both hands and legs and it was severe/grievous being 70% burn injury. He proved the report prepared by him. In his cross- examination, this witness stated that with 70% burn injury, the patient may be unconscious. Patient was brought by Pattani Burman. Page 9 of 16 12. The other vital witness is Dr. Indrajit Das, P.W. 14 who was posted on March 29, 2017 at Dinhata SD Hospital as Medical Officer when he recorded the statement of the deceased at 11.40 p.m. when the patient was identified by staff nurse Nuresa Pravin of the hospital. He deposed that the patient was ‘mentally and physically alert’ at the time of recording the statement. He recorded the statement as “amar swami amake Dainik Daihik ebong manasik atyachar kare .Amar chele meyeder adar kore na ,amake mardhor kore ,amar gaye kerosin tel dhele agoon lagiye diyeche amar swami’. He obtained LTI of the deceased and the signature of above staff nurses. He proved his signature with official seal in the dying declaration. During cross, it was stated that it was mentioned in the dying declaration as “ narkel tel dhale gaye agoon lagiye diyeche amar swami. 13. P.W. 15 is Anjali Burman, who is the elder sister of the deceased and from her testimony it transpires that about 10 years ago her elder sister got married with the accused, and they went to the matrimonial house and led conjugal life. After birth of the children, dispute cropped up between them for which she came to her parental house. However, this witness appears to be hearsay witness to the alleged incident since she heard that her sister caught fire while she was cooking, and she was shifted to hospital. Four months later, she died at her parental house. The cross-examination of this witness was declined. 14. P.W. 16 is the investigating officer who after being entrusted with the investigation collected the dying declaration, recorded the statements, prepared rough sketch map and also made prayer for adding section 302 of the Indian Penal Code since the victim died in between. Thereafter, he handed over the case docket to then I/C of Dinhata P.S due to his transfer. The law clerk attached to the Dinhata Court being the scribe deposed as P.W. 17 and said that he wrote the written complaint as per instruction of the Defacto Complainant and read over and explained contents of the same to her, and then she put signature on it in his presence. 15. In this case, the appellant was examined under Section 313 of Cr.P.C, where he pleaded to be innocent and did not want to adduce any evidence on his behalf. The above testimonies of the prosecution witnesses clearly manifest, excepting the dying declaration which has been proved by the doctors, that no evidence is forthcoming to support the prosecution case. 16. It is admitted that section 32 of the Evidence Act is an exception to the general rule of exclusion to the hearsay evidence and to attract the provisions, the prosecution must prove that the statement is of a person dead or cannot be found or cannot be procured without any amount of delay or expense is incapable of giving evidence. The principles governing dying declaration have been laid down in Atbir Vs Government (NCT of Delhi)4, which are 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. 4 (2010) 9 SCC 1 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. V) The rule requiring corroboration is merely a rule of prudence. Where the 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. 17. In the present case, the learned advocate representing the appellant tried to impress that the dying declaration is suspicious and should not be acted upon without corroborative evidence. 18. In the case of Irrfan @ Nakka (Supra) it was held that great caution must be exercised while placing reliance on dying declaration, even as the law attaches a presumption of truthfulness to such statement. There is hard and fast rule for determining when a dying declaration should be accepted, but it is the duty of the court to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the declaration. 19. In the aforesaid case, the declaration of the deceased was recorded by the A.S.I at the hospital on August 7, 2014, when Irshad passed away on August 9,, 2014. In the same way dying declaration of another deceased was recorded on August 7, 2014, who passed away on August 18, 2014. No dying declaration could be recorded in respect of the third deceased who also passed away on August 18, 2014. The two dying declarations were videographed in the mobile of A.S.I. The manner of recording dying declaration was challenged as nothing regarding the conditions of the injured persons was mentioned by the investigating officer. Hon’ble Supreme Court put reliance upon the principles as decided by the Hon’ble Supreme Court in Mst. Dalbir Kaur & Ors vs State of Punjab and other5 a judicial pronouncement which lays down what factors are to be considered to determine the truthfulness of the dying declaration, which will only affect the weight of the dying declaration and not its admissibility. 20. It was further held that it is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided, it is proved that the same was voluntary and truthful, and the victim was in a fit state of mind. 21. In the instant case, the injury report contains the L.T.I of the patient who was admitted on March 29, 2017 and was examined at 11:30 PM with a short history as stated by the patient having approximately 70% burn injury as assessed by the doctor and was referred to a surgeon for proper management, that her husband tried to kill her by burning her with kerosene oil. The patient was brought by Patani Burman who in her complain stated that she came to know about the incident from her daughter when she recovered a little. The mother never said that at the time of admission, her daughter disclosed before the doctor the above fact. Condition of victim can be found to be reflected from 5 (1976) 4 SCC 1588 the injury report, which manifests blisters and losening of skin on her face, hands and leg at the time of admission. 22. The statement of the deceased was recorded by Dr Indrajit Das on the same day 10 minutes after admission of the patient. The Doctor specifically recorded that the patient was mentally and physically alert. The pertinent question raised by the learned counsel representing the appellant is as to how a patient who suffered 70% burn injuries could have remained mentally alert and capable of making such a statement. However the mere extent of burn injuries, by itself, cannot lead to an inference that the patient was necessarily incapable of making a conscious and coherent statement but the doctor did not record the percentage of burn injury. After having recorded such serious allegation, he did not inform the police about the incident. In the admission paper, only found about an attempt to kill her with kerosene oil, which has been developed within 10 minutes when the patient could say about the daily torture upon her by her husband and to her son and daughter when she had no daughter. Even assuming that the nature of oil, as described by the doctor was incorrectly stated while adducing evidence, the surrounding circumstances that is non- examination of the two witnesses, of the alleged declaration of the deceased, non description of the nature or quantum of burn injury in the said statement and non-intimation of the fact to the police officer as well as that the deceased who survived thereafter for a period of approximately four months but the police made no attempt to record her statement under Section 161 Cr.P.C. raises serious doubts. The postmortem report reveals 40% old burn injury, more than one month old involving both upper limbs, neck, front of chest abdomen and right knee. The cause of death mentioned was septicemia in old burn injury, but the manner of causation of injuries cannot be ascertained. 23. The complaint was lodged about 7 to 8 days after the incident and the delay was explained on the ground that the mother was preoccupied with the treatment of her daughter .It is significant that, at the time when the complaint was lodged the victim was still alive ,though her condition was admittedly critical .The doctor had also intimated the mother that the victim could succumb to her injuries at any time .This unimpeached version of the mother of the victim assumes considerable significance as it clearly manifests the precarious condition of the victim even after her admission to the hospital . In such circumstances, a serious doubt arises regarding credibility of the evidence of the doctors and in particular the recording of statement attributed to the victim. It is also evident that the mother was not present when the statement was recorded. Neither the de facto complainant nor any other material witness appears to have specially challenged this aspect nor was any suggestion put to the Medical Officer as to whether the contents were intimated to the de facto complainant. 24. There are inconsistencies in recording the percentage of the burn injury in the injury report and the complaint and the post mortem report however, it is undisputed that the victim suffered severe burn injury and died due to septicemia on account of burn injury and she was not there in the hospital despite having such serious injury. Absence of any substantial material to support the prosecution case and the inconsistencies as described above in recording, such statement of the deceased suddenly creates cloud of suspicion in the mind of the court. 25. The learned trial court after considering the medical evidence corroborated by the dying declaration and weighing the materials on record, was of the view that the prosecution has been able to substantiate the case against the present accused beyond all shadow of reasonable doubt and acquitted the other accused on the ground of benefit of doubt. The involvement of the mother of the appellant was absolutely not substantiated, and it clearly manifests that she was implicated falsely as at the time of the incident, the mother-in-law of the deceased was nowhere in the scene since the incident took place in the house of the de facto complainant. No prior complaint was lodged by any of the family members against the appellant when for last two and half years the victim along with her husband were living in her mother’s house. 26. In this case, there are two dying declarations recorded by two different medical officers one at the time of admission when patient was brought with a history of 70% burn injury by her mother and within 10 minutes by another medical officer and nowhere the signature of the mother as a witness can be found who came to know about the attempt of killing her daughter, only after the daughter recovered a little. In addition, the de facto complainant was not declared hostile when she described the incident as an accident while cooking, and this version is found to be corroborated by the father and elder sister and other witnesses and none of them was declared hostile. It is settled principle of law that once a witness is not declared as hostile with the permission of court, the prosecution later cannot disown its witness. 27. In view of the foregoing discussion, there remains no room for holding that the prosecution has failed to establish the case beyond the shadow of reasonable doubt, and there is enough suspicion regarding the order of conviction passed solely on the basis of the dying declaration and hence the judgement of the trial court warrants interference. Conclusion 28. The criminal appeal stands allowed. The judgement and order of conviction passed by the learned Sessions court on February 27, 2020 and February 28, 2020 against the appellant is here by set aside. 29. The appellant is acquitted and hereby discharged from the bail bond forthwith, unless suffering incarceration in connection with any other case. 30. The copy of this Judgement along with the Trial court record be forwarded to the concerned court forthwith for intimation and taking necessary steps. 31. Urgent certified copy if applied by any of the parties to be supplied subject to observance of all formalities. I agree (ARIJIT BANERJEE,J.) (CHAITALI CHATTERJEE DAS, J.)