IN THE CIRCUIT BENCH OF CALCUTTA HIGH COURT AT JALPAIGURI CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE CRA (SB) 10 of 2022 Jagasehwas Sarkar @ Joggeswar Sarkar and Anr. Vs. The State of West Bengal Before: The Hon’ble Justice Apurba Sinha Ray For the appellants : Mr. Jaydeep Kanta Bhowmik, Adv. Mr. Sayantan Bhowmik, Adv. Ms. Jasmin Haque, Adv. For the State : Mr. Avrojyoti Das, Ld. APP Mr. Bijay Bikram Das, Adv. Mr. Nigam Mittal, Adv. CAV on : 18.08.2026 Judgment on : 10.09.2026 Apurba Sinha Ray, J. :- 1. Being aggrieved by and dissatisfied with the judgment and order dated 17.05.2022 and 18.05.2022 passed by the learned Additional Sessions Judge, Fast Track Court, Sadar, Coochbehar in connection with Sessions Case No. 82 of 2014 and Sessions Trial No. 02(10) 2014 arising out of Dinhata Police Station Case No. 314 of 2013 dated 01.04.2013 under Section 498A/306 of Indian Penal Code, the appellants preferred this appeal on the grounds, inter alia, that the learned Trial Judge did not appreciate the evidence on record in its proper perspective and further the learned Trial Court committed serious mistakes in convicting the appellants only on the basis of alleged dying declaration of the victim lady. 2. Mr. Bhowmik, the learned Counsel appearing for the appellants, has submitted that from the materials on record it is revealed that at the time of recording of alleged dying declaration the relatives of the victim namely Anjali Das and Sudha Mohanta were present and, therefore, it cannot be ruled out that the said dying declaration was not tutored by those relatives of the victim and, therefore, the evidentiary value of the said dying declaration is doubtful. In support of his contention the learned Counsel has relied upon the judgment of Hon’ble MP High Court reported in 2008 (4) crimes 166 (MP) (State of MP& ors Vs. Rajbahadur & ors). The learned Counsel has further submitted that there was no evidence to the effect that any demand of dowry was made from the side of the appellants and, therefore, there was no mens rea on the part of the appellant to commit such crime as alleged. Although the victim was taken to two hospitals, no dying declaration of the victim was recorded. The case, according to Mr. Page 3 of 16 Bhowmik, does not come under Section 107 of IPC since the ingredients of the offence of abetment are not available in this case. During her lifetime neither the de-facto complainant nor the victim herself reported the factum of alleged torture upon the victim at the instance of the appellants, to the law enforcing authority or to the local people. The evidence shows that the victim poured kerosene and burned herself on fire. It is a case of suicide but the appellants had no role to abet the commission of such suicide by the victim. On the contrary from the deposition of Prosecution witnesses it transpires that the appellant no.1 tried to save his wife and as a result he also suffered burn injuries and he was hospitalized for 47 days. The deposition of the Investigating Officer shows that the prosecution witnesses improved the version of the prosecution case during trial. 3. Learned Counsel appearing for the State, Mr. Bijay Bikram Das, has vehemently argued that the learned Trial Judge has considered all pros and cons of the case and, thereafter, has come to a definite finding that the present appellants are responsible for the untimely death of the victim. The dying declaration of the victim was recorded by the concerned doctor in the hospital in presence of two of the staff nurses who supported the prosecution case during trial. The said doctor was examined as PW 14 whereas the staff nurses were examined as PW 11 and 12. The dying declaration was marked as Exhibit 7. The doctor recorded in the said dying declaration that the victim was alert and conscious. The doctor being PW 14 has stated that due to precarious health conditions, the signature or the mark of the victim could not be taken on the dying declaration. Mr. Das has further argued that the dying declaration shows that the victim was compelled to end her life by setting herself on fire after pouring kerosene oil on her body since she was unable to bear with the inhumane torture inflicted upon her by the appellants. The close relatives of the victim being PWs 1, 5 and 6 have categorically deposed that they were informed by the victim in the hospital that she set herself on fire after pouring kerosene oil. There is no reason to disbelieve such statements since they corroborate the statement of the victim which was recorded as her dying declaration. Learned counsel has further argued that there is evidence to the effect that the victim was tortured by her in-laws. Learned counsel has further drawn the attention of this Court to the provisions under Section 498A explanation (a) of Indian Penal Code and also Section 113-A of the Indian Evidence Act in support of his contention that as unnatural death of the victim lady took place due to ‘cruelty’ of the appellants within one year of her marriage, the presumption of abatement to commit suicide must be drawn against the appellants since, the appellants have failed to rebut such statutory presumption. Moreover, there was no evidence from the side of the defence that the appellant no.1 suffered severe burn injuries for his failed attempt to save the victim and was hospitalized for 47 days. As the learned Trial Judge has considered all aspects of the matter before pronouncing the judgment of conviction and order of sentence, there is no scope for this Court to interfere with the conclusion arrived at by the learned Trial Judge. Court’s view:- 4. From the rival submissions of the parties, it appears that the appellant has challenged the judgment of conviction and sentence on several grounds, inter alia: i) the dying declaration of the victim is unreliable because she was surrounded by her relatives when it was recorded. ii) there was no medical certificate from the doctor who recorded the dying declaration certifying that the victim was conscious and mentally alert to make such a statement. iii) there was no certificate from the doctor indicating that the contents of the dying declaration were read over and explained to the victim. iv) the prosecution failed to prove mens rea on the part of the appellants, as no witness testified to any demand for dowry. v) Appellant No. 1 (the husband of the victim) was hospitalized for 47 days due to burn injuries sustained while attempting to save the victim from the fire. vi) the prosecution witnesses improved upon their initial case during the trial. vii) the learned Trial Judge failed to appreciate the evidence in its proper perspective. In support of these submissions, learned counsel for the appellants relied upon the judgment in State of Madhya Pradesh v. Rajbahadur & Ors. (Supra). 5. In the cited decision, the Hon’ble High Court of Madhya Pradesh examined the truthfulness of four separate dying declarations and found them to be contradictory and unreliable. In the present case, however, there is only a single dying declaration recorded by PW-14 (Dr. Indrajit Das). Consequently, the question of inconsistency with any other dying declaration does not arise. 6. Regarding the contention that the presence of two relatives created a possibility of tutoring, the learned Trial Judge noted that had the victim been tutored, she would have supported the allegations in the FIR, which claimed that the appellants set her on fire. The observation of the learned Trial Judge cannot be termed perverse, as the victim herself did not allege in her statement that she was set on fire by the appellants, despite the de- facto complainant making such an assertion in the FIR. There is no rule of law prohibiting the presence of relatives when a dying declaration is recorded. On the contrary, the presence of one or two family members does not automatically arouse suspicion and can ensure that the victim’s version is correctly recorded by the officer. 7. According to PW-14, the dying declaration was recorded in the presence of two staff nurses—Purnima Barman (PW-12) and Mamata Sarkar (PW-11)—as well as two relatives, Anjali Das (PW-6) and Sudha Mahanta (who was not examined). During cross-examination, no suggestion was put to PW-14 or the staff nurses that the victim’s statement was tutored by her relatives. Similarly, a perusal of the deposition of PW-6 (Anjali Das) shows that the defence never suggested she or Sudha Mahanta tutored the victim. Mere presence of relatives cannot be a ground to disbelieve a dying declaration. Thus, the decision in the State of M.P. v. Rajbahadur (supra) is inapplicable, as it involved four conflicting dying declarations. 8. The dying declaration was further challenged on the ground that the recording doctor did not issue a certificate attesting that the victim was alert, conscious, and capable of speech at the relevant time. While PW-14 admitted in cross-examination that he did not execute a separate certificate regarding her physical and mental fitness, he specifically recorded at the beginning of the statement (marked as Ext. 7) that the victim was mentally and physically alert. 9. The learned Trial Judge examined the dying declaration in detail and found that the victim vividly narrated the incident with specific dates, demonstrating full mental alertness. The declaration was recorded on 01.04.2013, whereas the incident occurred on 24.03.2013 around midnight. The victim categorically stated that she set herself on fire between 11:30 PM and 12:00 AM on a Sunday night. Calendar records confirm that March 24, 2013, was indeed a Sunday. The learned Trial Judge rightly concluded that the victim was mentally alert and conscious; otherwise, she could not have recollected specific dates and days with such accuracy. Page 8 of 16 10. Although it would have been prudent for the doctor to record clinical metrics such as pulse rate within the declaration itself, the bed head tickets (Ext. 10) explicitly note on 01.04.2013 that the patient was "conscious and oriented," and at 5:00 PM on the same day that she was "mentally and physically alert." She remained conscious through 02.04.2013 and 03.04.2013, only becoming drowsy on 04.04.2013. When the dying declaration is read together with the bed head tickets, it is evident that the patient was conscious and oriented at the time PW-14 recorded her statement. 11. PW-14 categorically testified that the victim was mentally and physically fit to make the declaration, a stance supported by the staff nurses and corroborated by the testimonies of PW-1, PW-5, and PW-6. The dying declaration exhibits no ambiguity or incongruity. It is settled law that a truthful and voluntary dying declaration that inspires confidence can form the sole basis of conviction. In her declaration, the victim detailed the mental and physical cruelty inflicted upon her, which drove her to commit suicide within one year of her marriage. Therefore, the findings of the learned Trial Judge in this regard suffer from no infirmity. 12. I have read the original dying declaration from the TCR. The learned judge in her judgment at para 33 has recorded the translated version of the dying declaration as follows: “that her husband used to torture her very much. Her mother- in-law also used to torture her. So she set fire on herself. Everyday her husband quarreled with her by coming to home in drunken condition and that one week ago she was beaten vehemently. She was kicked and assaulted violently by falling her down on the ground by her husband/ accused and her lips were split due to such assault. The accused stated to her that she was not his wife and that she was the wife of other persons and uttered such abusive languages towards her. Her mother-in-law used to tell that why couldn't her son marry again, because they don't have any dearth of grains. Her mother-in-law used to say that she would not take her daughter-in-law's baby in lap if the baby is born with a dark complexion. The deceased stated that when the accused persons went to see her before marriage, they saw that the deceased was of dark complexion, even then her mother-in- law used to abuse her in such a manner. Her mother-in-law used to say that if she does not earn, then there is no improvement by giving this marriage used to say that the cows and goats had died and there was no income. Her mother-in- law used to accuse her for sending money to her parental home as well as to her elder sister but according to her she used to bring money and give the same at her matrimonial home. In spite of that, her mother-in-law used to say that the deceased used to give money at her parental home. She stated that she used to get abused in such a manner everyday. She further stated that her husband had a love affair with her cousin sister. According to her she set fire on herself between 11.30 and 12 last Sunday” 13. In Khushal Rao vs. State of Bombay reported in (1957) 2 SCC 787 the Hon’ble Apex Court was pleased to hold that there is no absolute rule that a dying declaration cannot form the sole basis of conviction unless it is corroborated. It is further laid down in the above case that it cannot be said as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. 14. In Atbir vs. Government of NCT of Delhi reported in (2010) 9 SCC 1 the Hon’ble Apex Court has been pleased to hold that following principles can be deduced from earlier decisions as hereinbelow:- “(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 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. (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 eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. Page 11 of 16 (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 the basis of conviction, even if there is no corroboration.” 15. In Naeem vs. State of Uttar Pradesh reported in (2024) 17 SCC 735 the Hon’ble Supreme Court has been pleased to hold that the dying declaration can be the sole basis of the conviction if it inspires the full confidence of the court. The Court is required to satisfy itself 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. It has further been held that, where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. It has further been held that there cannot be an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. It has been held that the rule requiring corroboration is merely a rule of prudence. 16. In Neeraj Kumar alias Neeraj Yadav vs. State of U.P. and Others reported in 2025 SCC OnLine SC 2639 the Hon’ble Apex Court has relied upon para 66 of one judgment of Koli Chunnilal Savji vs. State of Gujarat reported in (1999) 9 SCC 562. The Paragraph No. 66 is hereunder:- “66. As regards the assessment of mental fitness of the person making a dying declaration, it is indubitably the responsibility of the court to ensure that the declarant was in a sound state of mind. This is because there are no rigid procedures mandated for recording a dying declaration. If an eyewitness asserts that the deceased was conscious and capable of making the declaration, the medical opinion cannot override such affirmation, nor can the dying declaration be disregarded solely for want of a doctor's fitness certification. The requirement for a dying declaration to be recorded in the presence of a doctor, following certification of the declarant's mental fitness, is merely a matter of prudence.” 17. Therefore, from the above case law, it transpires that there is no hard-and-fast rule that a conviction cannot be based solely on a dying declaration. It is alleged that there is no certificate from the doctor (PW 14) to the effect that, after recording the dying declaration, he read over its contents to the victim and that she admitted they had been correctly recorded; therefore, it is argued that the dying declaration cannot be relied upon. While it is true that the statement was not read over to the victim, but considering the fact that it was recorded in the presence of two staff nurses as well as two of her relatives, the mere failure to certify that the contents were read over and explained to her cannot deal a fatal blow to the prosecution’s case. Furthermore, this dying declaration is unique: the victim did not support the FIR—which alleged that she was set on fire by the appellants—but instead stated that she herself poured kerosene oil and set herself on fire. This key contradiction underscores the sanctity and truthfulness of the dying declaration beyond all reasonable doubt. Page 13 of 16 18. Section 498A reads as follows: - “498A. Husband or relative of the husband of a woman subjecting her to cruelty. — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.— For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 19. Section 113(A) of Indian Evidence Act is quoted hereinbelow:- “113-A. Presumption as to abetment of suicide by a married woman. [Inserted by Act 46 of 1983, Section 7.]- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).]” 20. It is true that the appellants contend there was no demand for dowry on their part, and consequently, that the prosecution failed to prove mens rea. Needless to mention, to establish culpability for a criminal act, the prosecution is not strictly required to prove mens rea in every instance. Page 14 of 16 However, PW-6 (Anjali Das), the elder sister of the victim, testified that dowry was indeed demanded by the appellants. Furthermore, the dying declaration reveals that the victim regularly brought money from her parents to hand over to the appellants. Therefore, it cannot be said that there was no demand for dowry from their side. 21. Regarding Explanation (a) to Section 498A of the Indian Penal Code (IPC), the evidence on record, specifically the dying declaration, demonstrates that severe cruelty was inflicted upon the victim, driving her to commit suicide by setting herself on fire. Furthermore, the statutory presumption under Section 113A of the Evidence Act directly applies, as there were clear allegations of cruelty and the victim committed suicide within one year of her marriage. Consequently, the presumption of abetment of suicide stands against the appellants, who failed to rebut it in accordance with law. 22. The learned Trial Judge rightly concluded that no reliable evidence was produced by Appellant No. 1 to prove his claim of being hospitalized for 47 days. In this regard, the defence relied upon the deposition of his uncle (PW-2) and the testimony of PW-8 (Binoy Barman), a fire brigade official who transported the victim and her husband (Appellant No. 1, Jaggeswar Sarkar) from the scene of the occurrence to Dinhata SD Hospital. Beyond this, no evidence exists to establish that Appellant No. 1 suffered burn injuries or was hospitalized for 47 days. Had a person been hospitalized for 47 days due to burn injuries, medical records documenting the severity of those injuries would inevitably exist. Yet, not a single document was produced by the defence to show that Appellant No. 1 sustained such injuries in an attempt to save his wife. Furthermore, PW-2, being the uncle of Appellant No. 1, did not support the prosecution case, and the learned Trial Judge rightly disbelieved his testimony. 23. In view of the above, I find no infirmity in the dying declaration of the victim. The learned Trial Judge adequately considered all aspects of the matter and arrived at a proper finding. Accordingly, there is no reason to interfere with the judgment of the learned Trial Judge. 24. Consequently, the impugned judgment and order dated 17.05.2022 and 18.05.2022—passed by the learned Additional Sessions Judge, Fast Track Court, Sadar, Cooch Behar in Sessions Case No. 82 of 2014 / Sessions Trial No. 02(10) 2014 (arising out of Dinhata Police Station Case No. 314 of 2013 dated 01.04.2013 under Sections 498A/306 of the Indian Penal Code)—are hereby affirmed. 25. The order of conviction and sentence is affirmed, and the appellants' bail bonds stand cancelled. The appellants, who are currently on bail, are directed to surrender before the learned Trial Judge within 30 days from the date of this order. Upon their surrender, the learned Trial Judge shall take them into custody and commit them to prison under a proper jail warrant to serve out the remainder of their sentence. Should they fail to surrender, the learned Trial Judge shall issue warrants of arrest for their apprehension and proceed in accordance with law. Page 16 of 16 26. Accordingly, CRA (SB) 10 of 2022 is, thus, dismissed. 27. The Trial Court Records shall be returned to the learned Trial Court immediately, along with a copy of this judgment, through the Office of the learned Registrar, Circuit Bench of Calcutta High Court at Jalpaiguri. 28. All parties shall act on the basis of the server copy of this order downloaded from the official website of this Court. 29. Urgent photostat certified copies of this judgment, if applied for, shall be supplied to the parties upon compliance with all necessary formalities. [Apurba Sinha Ray, J.]