Page No.# 1/23 GAHC010054462024 2025:GAU- AS:16232-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./76/2024 MD. TAHER ALI @ TAHER ALI AND 2 ORS. S/O MD. PANDIT ALI, VILL.- DHULABARI, P.O.- DEULKUCHI, P.S.- TAMULPUR, DIST.- TAMULPUR (EARLIER BAKSA), PIN- 781354. 2: MD. PANDIT ALI S/O LT. NAJIBAR ROHMAN VILL.- DHULABARI P.O.- DEULKUCHI P.S.- TAMULPUR DIST.- TAMULPUR (EARLIER BAKSA) PIN- 781354. 3: MUSSTT. HASINA BIBI @ BHANU BIBI W/O MD. PANDIT ALI VILL.- DHULABARI P.O.- DEULKUCHI P.S.- TAMULPUR DIST.- TAMULPUR (EARLIER BAKSA) PIN- 781354 VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:NUR ISLAM S/O LATE NUR BAX Page No.# 2/23 VILL.- DHEPARGAON P.S.- TAMULPUR DIST.- TAMULPUR (EARLIER BAKSA) PIN- 781367 For the appellants : Mr. H.R.A. Choudhury. ….Sr. Advocate Mr. A. Mobaraque. …... Advocate. For the respondents : Mr. R.R. Kaushik. Addl. P.P. :::BEFORE::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MRS. JUSTICE MITALI THAKURIA Date on which judgment is reserved : 29.10.2025 Date of pronouncement of judgment : 28/11/2025. Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) (M. Zothankhuma, J) 1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellants assisted by Mr. A. Mobaraque, learned counsel. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam for the State respondent. 2. This is an appeal against the impugned judgment dated 12.02.2024 passed by the Sessions Judge, Baksa, Mushalpur in Sessions Case No.218/2018, convicting the appellants under Section 302/34 IPC and 304B/34 IPC. The learned Trial Court convicted the appellants on the ground that they Page No.# 3/23 had burnt the deceased by pouring kerosene on her and sentenced them to undergo rigorous imprisonment for life with a fine of Rs.2,000/- each, in default simple imprisonment for 6 months under Section 302/34. They were also sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs.2,000/- each, in default simple imprisonment for 3 months under Section 304B/34 IPC. Both the sentences were to run concurrently. 3. The Prosecution case in brief is that an FIR dated 28.07.2016 was submitted by Prosecution Witness (PW) No.1, who was the father of the deceased to the Officer-in-Charge, Kaurbaha Patrol Post, stating that his daughter, who was married to the appellant no.1 Md. Taher Ali had been set on fire by pouring kerosene oil on her. The act of pouring kerosene on the informant’s daughter had been done by the appellant no.1 (husband of deceased), appellant no.2 (father-in-law of the deceased) and appellant no.3 (mother-in-law of the deceased), which led to the deceased suffering 90% burns, that eventually led to her death. The victim was burnt at around 7:30 p.m on 27.07.2016 and died in the GMCH at around 3:50 a.m on 28.07.2016. In pursuant to the FIR dated 28.07.2016, Kaurbaha P.P. GDE No.395 dated 28.07.2016 was registered and thereafter Tamulpur P.S. Case No.226/2016 under Section 304(B)/34 IPC was registered. 4. After investigation of the case by the Investigating Officer (PW-10), charge-sheet was submitted against the appellant nos.1, 2 & 3, as the Investigating Officer found a prima facie case under Section 302/34 IPC and 304(B)/34 IPC against them. Appellant no.4 (brother-in-law of deceased) was discharged, as no evidence was found against him. 5. The learned Trial Court framed charges under Section 302/34 and 304B/34 IPC against the appellant nos.1 to 3, to which they all claimed to be “not guilty” and claimed to be tried. The learned Trial Court then examined 10 Prosecution Witnesses (PWs) and after examining the appellants under Section 313 Cr.P.C, it came to a finding that the appellants were guilty of having murdered the victim by burning her, after demands for dowry. Consequently, the appellants were convicted under Section 302/34 and 304(B)/34 IPC and sentenced accordingly. 6. The learned Senior Counsel for the appellants submits that the conviction of the appellants has been made solely on the basis of the alleged oral dying declaration made by the deceased to PW-1, PW- 6 to PW-9. However, the said dying declaration has not been made or recorded before any Magistrate or any Medical Officer, so that the same can be admissible in Court as evidence. He also submits that the evidence of PWs are not reliable, inasmuch as, there is discrepancy as to the place where the deceased was found by the PWs in the Gauhati Medical College & Hospital (GMCH). While PW-1 had Page No.# 4/23 stated that he had found his daughter inside the toilet of the GMCH, the evidence of PW-6 and PW-7 showed that the victim was not in the toilet of the GMCH, at the time when they first saw the victim. Further, while the evidence of PW-6 is to the effect that he had gone to the GMCH with PW-1 in a car, PW-7, who is the grandfather of the victim, had not made any mention of PW-6 as one of the persons, who had gone with him to the GMCH, to see the victim along with PW-1. 7. The learned Senior Counsel for the appellants submits that the PWs being related to the victim, the evidence of the relatives of the victim cannot be the sole basis for convicting the appellants, as they were interested witnesses. 8. The learned Senior Counsel for the appellants also submits that the evidence of PW-1 is to the effect that one Raj Ali had apparently informed his co-villager Idris Ali, with regard to the informant’s daughter suffering from burn injuries. However, the said Raj Ali and Idris Ali have not been made PWs by the police and neither were they examined during the trial. 9. The learned counsel for the appellants submits in the alternative, that the appellant No. 1 can at best be convicted under Section 304B of the IPC and not under Section 302 of the IPC. He submits that there is nothing to indicate the presence of the appellant No. 2, father-in-law at the scene of the crime, keeping in view his explanation given during his examination under Section 313 Cr.PC., where the appellant No. 2 had stated that after getting information that there was an uproar in his house, he had run home to his house, where he saw his daughter-in-law burning. Thereafter, the appellant No. 2 had arranged for a vehicle and the appellant No. 2 along with his son and two others had taken his daughter-in-law to the GMCH. He also submits that when the deceased had suffered 90-95% burn injuries, she would not be in a position to speak. He also submits that the conviction of an accused under Section 304B of the IPC would be sustainable, only if the ingredients required for attracting Section 304B of the IPC is found in the present case, as has been enumerated by the Hon’ble Supreme Court in the case of Paranagouda and another vs. State of Karnataka and another (2023 7 Supreme 193). 10. He thus submits that the appellants should be acquitted of the charges framed against them, as the appellants had not been able to prove the charges framed against them. 11. Mr. R.R. Kaushik, learned Additional Public Prosecutor, on the other hand submits that the oral dying declaration of the victim was voluntary and reliable. Further, the appellants have not explained as to how the victim was burnt and how she died, inasmuch as, it was their responsibility to explain as to how the victim was found to be on fire. As such, in terms of the inference that could be made under Page No.# 5/23 Section 313 of Cr.P.C, on account of the appellants not giving any proper explanation as to how the deceased was on fire, the same implied that the appellants were the perpetrators of the crime. Further, the demand for dowry by the appellants from the deceased, has also been stated by the PWs and as such, there is no infirmity with the conviction of the appellants under Section 304(B)/34 IPC. He also submits that PW-6 is not an interested witness and his evidence showed that there was trouble in the marriage between the deceased and the appellant no.1, due to which a village sitting (bichar) had also been held. He also submits that even though some of the witnesses were relatives of the deceased, the same does not bar the learned Trial Court or this Court from relying upon the evidence of the interested witnesses. In support of his submission that the oral dying declaration of the victim could be the sole basis for conviction, the learned Additional Public Prosecutor has relied upon the decision of the Supreme Court in the case of Parbin Ali & Another vs. State of Assam, reported in (2013) 2 SCC 81. 12. In support of his submission that it was the duty of the appellants to explain the reason for the victim being on fire and her consequential death, as the incident had occurred in their house, he has relied upon the Division Bench common judgment of the Bombay High Court in Criminal Appeal No.271/2014 (Achyut vs. The State of Maharashtra) and Criminal Appeal No.325/2014 (The State of Maharashtra vs. Achyut Bhaskar Kale & Others). The learned Additional Public Prosecutor also submits that the fact that the mental state of the victim was stable at the time of making the oral dying declaration, was proved by the fact that the victim had asked for water from PW-1 in the GMCH. 13. The learned Addl. PP, on the other hand, submits that there is no proposition in law that relatives are to be treated as untruthful witnesses and on the contrary, reasons have to be shown when a plea of partiality is raised by the defense. In the present case, the appellants have not been able to show that the evidence of the witnesses was untruthful. In this respect, the learned Addl. PP has relied upon the judgment of the Supreme Court in the case of Karulal and others vs. State of Madhya Pradesh (Crl. Appl. No. 316/2011). 14. We have heard the learned counsels for the parties. 15. On a perusal of the explanations given by all the three appellants in their examination under Sections 313 Cr.PC, we find that the appellant Nos. 1, 2 & 3 have given their explanations in respect of the evidence adduced against them, only to the extent, as is reproduced below:- Appellant No.1 (husband) :- Page No.# 6/23 “Ans. On the relevant evening, while I was talking with my two colleague Md. Sahjamal Ali and Kurban Ali in the house of my parents and at that time, my mother offered betel nuts to my aforesaid colleague and while we were discussing to attend a village meeting then we noticed fire in my room. Thereafter, I tried to enter my room but the door was hooked from inside and I kicked the door and entered into the room and saw that my wife was burning. Thereafter, I brought her to our courtyard and extinguished the fire and I got burn injury on my right hand. At that moment, my father was not at home and he returned from the shop and thereafter we shifted my wife to GMCH. my mother also sustained burn injury. I am innocent.” Appellant No.2 (father-in-law) :- “Ans. At the time of incident, while I was at chowk in a shop then one child informed me that he heard uproar at my house. After getting the said information, I immediately ran to my house and saw that my daughter in law was burning. Thereafter, I arranged for a vehicle and I along with my son and other two persons namely Sadhu Ali and Munjura Begum shifted my daughter in law to GMCH. My son and wife sustained burn injuries while they were trying to save my daughter in law. While I was returning to my house from the shop then one Ramjan accompanied me but he already died. He also helped me to arrange vehicle for shifting my daughter in law to GMCH. I am innocent.” Appellant No.3 (mother-in-law) :- Ans. On the relevant evening, while I was cooking food and my son was talking with his two colleague Md. Sahjamal Ali and Kurban All in my house and at that time, I offered betel nuts to my son and his aforesaid colleague and while we were discussing to attend a village meeting then we noticed fire in the room of my daughter in law. Thereafter, I along with my son tried to enter the room but the door was hooked from inside and my son kicked the door Judgend entered into the room and saw that my daughter in law was burning. Thereafter. I along with my son brought her to our courtyard and extinguished the fire and I got burn injury on my right hand. At that moment, my husband was not at home and he returned from the shop and thereafter we shifted my daughter in law to Page No.# 7/23 GMCH. I am innocent. 16. The evidence of PW-1, who is the father of the deceased, is to the effect that the occurrence took place on 28.07.2016. He submits that his daughter, the deceased married the appellant no.1 about 9 months prior to the date of the incident. He also stated that 3/4 months after the marriage, his daughter was subjected to physical and mental torture by the appellants, as they demanded a motorcycle and cash from her. However, as she was tortured by the appellants, she went her parents’ house and reported the incident to PW-1. Thereafter, the appellants accompanied by their relatives, villagers came to the house of PW-1 and took back his daughter. One Raj Ali, who was in the same village as the appellants informed Idris Ali, who was in the same village as PW-1 that his daughter had suffered burn injuries and was laid on banana leafs. On getting the information from Idris Ali, PW-1 straightway went to GMCH accompanied by four other villagers. At around 1 a.m. on the relevant night, PW-1 found his daughter inside the toilet of GMCH. Her whole body was wrapped with white cloth covering her burn injuries. They brought the daughter to the bed and laid her there on the bed. She then asked for water. On being asked as to what happened, PW-1’s daughter told him that the appellant nos.1, 2, 3 and the younger brother of her husband had set her on fire. The medical staff of the GMCH then lifted her on the table for conducting ultrasound. However she died at around 3 a.m, before the ultrasound examination could be done. He stated that the Post-Mortem examination of his daughter was conducted at GMCH. After taking her body home, last rites were conducted on her. Thereafter he made a telephone call to the police at Kaulbaha OP soon after the expiry of his daughter and lodged an FIR on the same day. Police recorded his statement. He also stated that the FIR was written by a scribe under his instruction and he put his thumb impression in the FIR, as he was an illiterate person. In the cross-examination of PW-1, no question was put to him suggesting that his daughter did not give any dying declaration to him or that his daughter could not speak. 17. The evidence of PW-2 is the effect that he knew the informant and all the informants, as they were his relatives. PW-2 states that after the marriage of the daughter of PW-1 to the appellant no.1, a quarrel had erupted and he heard that the daughter of PW-1 went to her father’s house, due to which the appellant no.1 and his relatives brought her back. He also stated that deceased died within a year of her marriage due to burn injuries. He also stated that PW-1 lodged an FIR and that the police seized half burnt saree, one half burnt blouse, one plastic container of kerosene oil in his presence by preparing a seizure list, where he gave his signature. 18. PW-3 stated that he was posted as a Demonstrator of Forensic Medicine GMHC, Guwahati. On Page No.# 8/23 28.07.2016, he conducted a Post-Mortem examination on the deceased in connection with Bhangaghar P.S. GDE No.546 dated 28.07.2016, wherein the deceased was identified by HG Siddheswar Kalita and Md. Amzad Ali (uncle of the deceased) In his evidence, PW-3 stated that the burn injuries present over the body of the deceased, were as follows : “Portion of the head, neck and face. Entire front of chest and abdominal wall. Entire back of chest and abdominal wall. Both upper limbs. Both lower limbs (sparing soles). Epidermics of the burn areas peeled off at places. The burn areas are congested. A line of redness present between the healthy and the burn areas. The burn injuries are epidermal to dermo epidermal in nature covering 90 to 95 per cent of the total body surface areas. All the other organs are found to be congested. The uterus is healthy and enlarges. On dissection, product of conceptus present.” PW-3 further stated in his opinion – “Death was due to shock as a result of ante mortem burn injuries sustained over the body as described. All the burn injuries were epidermal to dermo epidermal in nature covering 90-95 cm of the total body surface area. Time since death is 6 to 2 hours approximately.” 19. The evidence of PW-4 is that he knew the informant and all the appellants standing in the dock, as they were his co-villagers. He also stated that he did not know the deceased. On the relevant morning, while going to Chowk of his village, he came to know that fire had engulfed the house of the appellant no.2. Police showed him one half burnt frame where clothes were hung, one chair and clothes. He put his signature on the seizure list. PW-4 was thereafter declared hostile. 20. The evidence of PW-5 is to the effect that he knew all the appellants standing in the dock, as they were his co-villagers. He did not know the informant or the deceased. PW-5 was also declared hostile. 21. The evidence of PW-6 is to the effect that he knew the complainant and the deceased. He also knew the appellants. PW-6 stated that after about one month of the marriage of the deceased, the appellant no.1 and appellant no.2 demanded cash and articles from the deceased and harassed her. Thereafter a Bichar was held, where he was present. The matter was settled in the Bichar. On the night of the occurrence, PW-1, who was the father of the deceased came to his house about 10 p.m. and Page No.# 9/23 requested him to accompany him with his motorcycle to Kaurbaha Police Outpost. On asking PW-1 as to what has happened, PW-1 informed him that appellant no.1 had set his daughter on fire. PW-6 stated that PW-1 told the In-charge of Kaurbaha OP about the incident. Thereafter they went to the GMCH by hiring a car. PW-6 then stated that he saw the daughter of PW-1 wrapped with a white cloth in the emergency ward and her body was burnt. While she was going to the toilet near the emergency ward, PW-6 asked her as to what had happened. The deceased then told PW-6 that the appellant no.1 had set her on fire by pouring kerosene oil, on the direction of his father (appellant no.2). After 15 minutes of waiting on the ground floor, he heard that the deceased had been shifted to upper floor of GMCH for her examination. On the same night at around 3-4 a.m., the deceased succumbed to her injuries. PW-6 also stated that at the time of the incident the deceased disclosed to him that she was pregnant. In his cross-examination, PW-6 denied the suggestion that he did not tell the police that the appellant no.1 and appellant no.2 harassed the deceased by demanding cash and other articles. He also denied the suggestion that he did not tell the police that a Bichar had been held due to the demand and harassment of the deceased by the accused. He also denied the suggestion that he had not asked the deceased as to what had happened while she was going to the toilet from the emergency ward. He also denied the suggestion that in his previous statement before the police, he had not stated that the deceased had told him that the appellant no.1 had set her on fire by pouring kerosene oil, under the direction of appellant no.2. He also denied the suggestion that he did not tell the police that the deceased told him that she was pregnant. 22. The evidence of PW-7, who is the grandfather of the deceased, is to the effect that he knew PW- 1 and the deceased. He also knew the appellant no.1. PW-7 stated that one night in the year 2016 at about 9/10 p.m., PW-1 called him to his house and asked him to go with him to Guwahati. Accordingly, PW-7, PW-1, elder sister of PW-1 and nephew of PW-1 went to GMCH, where they saw PW-1’s daughter being brought from the bathroom of the hospital. PW-1’s daughter then told him that appellant nos.1, 2 & 3 had set her on fire. PW-7 further stated that the body of PW-1’s daughter was wrapped in white cloth and that he waited in a corner of the hospital. PW-1’s daughter died late in the night. Thereafter the dead body of PW-1’s daughter was brought to the house of PW-1. PW-7 further stated that 8/9 months prior to the incident, PW-1’s daughter had married the appellant no.1. Prior to the incident, he had met the deceased on the road, wherein she told him that she was going to her parental house, as her in-laws were torturing her and demanding motorcycle, money etc. 23. The evidence of PW-8, who is aunty of the deceased, is to the effect that she knew PW-1 and his Page No.# 10/23 daughter. She also knew the appellant no.1. PW-8 stated that she had heard that the appellant no.1 and his family members demanded motorcycle, cash etc from the deceased and had assaulted her. 9 months after the marriage of PW-1’s daughter, she heard that the appellant no.1 and his family members had poured kerosene oil on the body of the deceased and set her on fire. Thereafter she was brought to the GMCH, Guwahati for treatment. After getting to know of the said information about PW-1’s daughter being burnt, PW-8 also went to the GMCH. In the hospital PW-1’s daughter told PW-8 and others that the appellant nos.1, 2 & 3 had poured kerosene oil on her body and set her on fire. PW-8 further stated that PW-1’s daughter told them that she was 2 months’ pregnant. She further stated that the deceased died about 3 a.m. In her cross-examination, PW-8 stated that on arriving in GMCH, she found PW-1’s daughter in the latrine of the hospital. PW-8 further stated that the emergency ward and the latrine of the hospital were adjacent to each and that they were not allowed to enter the emergency ward. PW-8 denied the suggestion that the deceased had not told her that the appellants had poured kerosene oil on her body and set her on fire. PW-8 stated that she knew the family members of the accused persons and that there was a total 6 family members in the house of the appellants. She denied the suggestion that she did not meet the deceased in the hospital. She also denied the suggestion that she did not tell the police that she heard that the appellant no.1 and his family members had poured kerosene oil on the body of the deceased and set her on fire. She also denied the suggestion that she did not hear the allegation that the appellant no.1 and his family members had demanded motorcycle, cash etc. from the deceased. 24. The evidence of PW-9, who is a labourer, is to the effect that he knew the PW-1, the deceased and the appellants. PW-9 stated that after the marriage of the deceased, the appellants used to torture her and demanded dowry. Due to this reason, she often visited her parental home and the villagers used to settle the matter and had her sent back to her matrimonial home on 2/3 occasions. PW-9 stated that one night in the year 2016, he had heard that the appellants had set the deceased on fire and that PW-1’s daughter was rushed to the GMCH for treatment. PW-9 stated that when he went to the GMCH, he saw PW-1’s daughter lying there with burn injuries. PW-9 stated that at that time, PW-1’s daughter was 3 months pregnant and when she was brought for ultrasound examination, she died. PW-9 also stated that the daughter of PW-1 told him that the appellants had set her on fire. In his cross-examination, PW-9 denied the suggestion that he did not tell the police that the appellants used to torture PW-1’s daughter on demand of dowry, for which she used to visit her parental home. PW-9 denied the suggestion that he had given false evidence regarding the demand of dowry and that Page No.# 11/23 the villagers had tried to settle the matter and sent her back to her matrimonial home on 2/3 occasions. PW-9 denied the suggestion that the deceased had not told him that the appellants had set her on fire. 25. The evidence of PW-10, who is the Investigating Officer, is to the effect that while he was working as In-charge, Kaurbaha Police Outpost under Tamulpur P.S on 27.07.2016, PW-1 appeared in the Outpost at about 11:30 p.m. and verbally informed him that his daughter had been subjected to mental and physical cruelty, as the appellant no.1 and his family members had been demanding dowry. Further, PW-10 stated that on that day at about 8 p.m. the appellant no.1 and his family members set his daughter on fire. On getting the information, PW-10 entered the same in the General Diary of the Outpost vide GD Entry No.380 dated 27.07.2016. PW-10 stated that then he proceeded to the place of occurrence at 12 midnight, after informing his superior officer over the phone about the incident. PW- 10 visited the place of occurrence and drew the sketch map. He recorded the statement of witnesses. He also seized one burnt yellow colour sari, one burnt blouse and one plastic bottle containing kerosene oil. PW-10 further stated that before he reached the place of occurrence, the victim had already been taken to the GMCH by the villagers. On 28.07.2016, PW-1 lodged an FIR, which was again entered in General Diary, vide Kaurbaha P.P. GDE No.395 dated 28.07.2016 and he forwarded the same to the O.C., Tamulpur P.S for registering a case. Accordingly Tamulpur P.S. registered a case, vide Tamulpur P.S. Case No.226/2016 under Section 304(B)/34 of IPC, where he was entrusted to complete the investigation. After taking the statements of the witnesses and completing the investigation, he submitted the charge-sheet, as he had collected sufficient materials against the appellants. 26. As stated earlier, the examination of the appellants under Section 313 Cr.P.C was met with explanations by the appellants, as provided in paragraph-15 of this judgment and order. 27. The issues that have been raised by the parties requires the following questions to be decided by this Court. Firstly, whether a person with 90% burn injury has the capacity to speak i.e. whether she was in a position to speak. Secondly, whether an oral dying declaration can be the basis for conviction, inasmuch as, the same was not a recorded dying declaration. Thirdly, if the oral dying declaration can be the basis of conviction, whether the same was true, voluntary and inspired the confidence of the Court. Fourthly, whether in view of section 32(1) of the Evidence Act and the deeming fiction in section 304B IPC, a case under section 304B/34 IPC had been made out. 28. In the case of Vijay Pal Vs. State (NCT of Delhi) [2015(4)SCC 749], the Supreme Court has referred to another of its decision in the case of Mafabhai Nagarbhai Raval Vs. State of Gujarat [(1992) 4 SCC 69], wherein it had been held that a person suffering 99% burn injuries could be deemed Page No.# 12/23 capable enough for the purpose of making a dying declaration . It further held that the same could be relied upon. 29. In Vijay Pal (Supra) also relied upon the decision passed in State of M.P. Vs. Dal Singh [(2013) 14 SCC 159], the Supreme Court placed reliance on the dying declaration of the deceased, who had suffered 100% burn injuries, on the ground that the dying declaration was found to be credible. 30. The Supreme Court in Vijay Pal (Supra) thus held that the mere fact that the patient suffered 92% burn injuries would not stand in the way of the patient giving a dying declaration, which otherwise inspires the confidence of the Court, is free from tutoring and was found to be reliable. 31. In the case of Bhagwan Vs. State of Maharasahtra through Secretary Home, Mumbai, Maharashtra [Criminal Appeal No. 385/2010), which was disposed of on 07/08/2019, the Supreme Court referred to the decision in Vijay Pal (Supra) and dismissed the appeal filed by the appellant against his conviction, based on the dying declaration of the person who suffered 92% burn injuries. In the above case of Bhagwan (Supra), the Supreme Court also relied upon “Burn-Brittanica Online Encyclopedia” regarding the understanding of second-degree and third-degree burns. It held in para 22 that once the dermis is completely affected when there is third-degree burns, there would be no pain, for the reason that the pain receptor found in the dermis would die. It however held that what was important to note was whether, despite the extensive burns, the patient was conscious was mentally and physically in a condition to understand the questions put to her and to give answers to the same. 32. In the case of Purshottam Chopra & Anr. Vs. State (Govt. of NCT of Delhi) [Crl. Appeal Nos. 194-195 of 2012], which was disposed of on 07/01/2020, the Supreme Court in para 21 of the said judgement, summed up some of the principles relating to recording of a dying declaration, its admissibility and its reliability, which are as follows :- “i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want Page No.# 13/23 of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” 33. A reading of the judgements of the Supreme Court in Vijay Pal (Supra), Bhagwan (Supra) and Purshottam Chopra (Supra), make it quite clear that a person with 90% burns can be in a position to speak. The only conditions that are required to be satisfied is that the declarant should be in a fit state of mind at the time of making the dying declaration, which should be voluntary and not the result of any tutoring or imagination. In the present case, we are of the view that the deceased was in a position to speak as the Doctor’s evidence does not show that victim’s voice box had been damaged. The victim Page No.# 14/23 also appeared to be lucid, as she asked for water to drink. There is also nothing to suggest that the victim had been tutored. Her dying declaration appears to be truthful and voluntary. 34. The next issue to be decided is whether the oral dying declaration can be the basis of a conviction, even though the same had not been recorded by either the Magistrate, Doctor or the Police. In fact, it had not been put down in writing. 35. In the case of Parbin Ali and another Vs. State of Assam [(2013) 2 SCC 81], the Supreme Court has held that the constitution Bench of the Supreme Court in the case of Laxman Vs. State of Maharashtra [(2002) 6 SCC 710] had held that a dying declaration can be oral. In the case of Laxman (Supra), the Supreme Court held that a dying declaration can be oral or in writing and any adequate method of communication, whether by words or by sign or otherwise will suffice, provided the indication is positive and definite. The Supreme Court in Laxman (Supra) further held that the acceptability of a dying declaration is that the same is made in extremity, when the party is at the point of death and when every hope of the world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. It further held that notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence, on account of the existence of many circumstances which may affect their truth. 36. In the case of Rajendra S/o, Ramdas Kolhe Vs. State of Maharashtra reported in 2024 INSC 422, the Supreme Court reiterated the principles governing the acceptance of a dying declaration, as laid down in the case of Kushal Rao vs. State of Bombay reported in AIR 1958 SC 22, which is as follows:- “(i) it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. (ii) each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made. (iii) it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. (iv) a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence. (v) a dying declaration which has been recorded by a competent Magistrate in the proper manner stands Page No.# 15/23 on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character (vi) in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.” 37. In the case of Kamal Khudal Vs. State of Assam reported in (2022) 20 SCC 654, the Supreme Court has held that a dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross-examination, to test its genuineness or veracity. The court has, therefore, to subject it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises. 38. In the case of Irfan @ Naka Vs. State of Uttar Pradesh reported in 2023 INSC 758, the Supreme Court held that there is no hard and fast rule for determining when a dying declaration should be accepted. The duty of the Court is to decide this question in the facts and the surrounding circumstances of the case and be fully convinced of the truthfulness of the same. The Court thus laid down certain factors to be considered for determining the truthfulness of dying declaration, which are as follows :- “(i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity" (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? Page No.# 16/23 (viii) Whether, the dying declaration in itself is a manifestation/ fiction of the dying persons imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?” 39. The above judgements thus show that an oral dying declaration can also be the basis of conviction, unless there are inconsistencies and the same does not appear to be truthful or voluntary. An oral dying declaration is no doubt a weak piece of evidence, especially when it is not recorded and when there is nothing to prove that the maker of the oral dying declaration was conscious and had the capacity to give a rational statement. The capacity to make a statement by the maker of a dying declaration, would have to be seen from the evidence recorded by the learned Trial Court. While looking at the sequence of events and the timeline between the setting on fire of the deceased and her death, it is seen that the events occurred roughly between 7-30 p.m. to 3-00 a.m. The time taken from village Dhulabari, Tamulpur, Baksa District to GMCH, which is approximately 58 Kms away, leads us to believe that there was not much time to record the oral evidence of the deceased. She gave her oral dying declaration around 1-00 a.m. as per the evidence of PW-1 and died around 3.00 a.m. Thus, it appears that there was no time to record the oral dying declaration in the early morning hours of 28/07/2016. 40. The above being said, section 32 of the Evidence Act provides that in certain cases, statement made by persons who could not be called as witness are relevant. Dying declarations can be made relevant under section 32(1) of the Evidence Act, as the same are made under expectation of death and due to the fact that the maker has expired. In the present case, we would have to see whether the oral dying declaration, given by the maker to the prosecution witness No. 1, 6, 8 & 9, can be the basis for conviction of the appellant. Whether the same was true and voluntary and whether it inspires the confidence of the Court. Further, the evidentiary value of related witness would also have to be gone into and whether there was any enmity between the persons/families. 41. In the present case, the deceased had apparently died due to burn injuries within one year of her Page No.# 17/23 marriage to the appellant no.1. The demands for dowry made by the appellant, which led to her leaving the matrimonial home and going to her parent’s house is proved. The deceased was also made to return back to her matrimonial home on the basis of bichar (village sitting) is also proved. Thus, the above facts attracts the provision of section 304B IPC. 42. With respect to the evidentiary value of related witness, the Supreme Court in the case of Karulal & Ors. Vs. The State of Madhya Pradesh [Criminal Appeal No. 316 of 2011], has held that the testimony of related witnesses, if found to be truthful, can be the basis for conviction. It also held that if the witnesses are otherwise trustworthy, past enmity by itself will not discredit their testimony. In fact, the history of harassment (dowry demand) gives a clear motive for the crime. Though enmity can be a double-edged sword, as the same can be a reason for filing a false case, we do not doubt that the present case is not a false case, keeping in view the fact that the deceased died due to 90% burn injuries and her oral dying declaration. 43. In the case of Khurshid Ahmed Vs. State of Jammu and Kashmir reported in (2018) 7 SCC 429, the Supreme Court has held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised, to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. 44. Section 304B IPC states as follows :- “304B. Dowry death. -- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation. For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” 45. The essential ingredients for attracting section 304B IPC, as laid down by the Supreme Court in the case of Preet Pal Singh Vs. State of Uttar Pradesh reported in 2021 4 Mh LJ Crl. 509, are as Page No.# 18/23 follows :- “(i) the death of woman must have been caused in unnatural circumstances. (ii) the death should have occurred within 7 years of marriage (iii) Soon before her death the woman must have been subjected to cruelty or harassment by her husband or his relatives and such cruelty or harassment must be for or in connection with the demand for dowry, and such cruelty or harassment is shown to have been meted out to the woman soon before her death.” In the case of Achyut S/o. Bhaskar Kale (Supra), the Bombay High Court held at para 58 as follows :- “58. Having regard to the recent citation of the Hon’ble Supreme Court in case of Preet Pal Singh Vs. State of U.P. and Anr. (supra),wherein it is held that where the ingredients of section 304B of I.P.C. are satisfied, the deeming fiction of section of 304B would be attracted and the husband or the relatives shall be deemed to have caused the death of the bride/married woman.” 46. The legislative intent for incorporation of section 304B was to curb the menace of dowry death with a firm hand. In the present case, the evidence of the witnesses show that there had been dowry demands, for which the deceased had gone back to her parent’s house. However, on the basis of a village sitting where the issue was apparently settled, the deceased was taken back to her matrimonial home. The death of the victim by burning, which has happened within one year of her marriage, clearly attracts the deeming fiction under section 304B IPC, wherein the appellants have to be deemed to have caused the death of the deceased. 47. In the case of Paranagouda and another (Supra), the Supreme Court has held that the incidental question that would arise for consideration would be as to whether conviction under section 304B would be sustainable. The Supreme Court in the above case held that the ingredients to be satisfied for convicting an accused for an offence punishable under Section 304B are :- "(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her Page No.# 19/23 husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death." 48. In the case of Bansilal Vs. State of Haryana [(2011) 11 SCC 359], the Supreme Court held that to attract section 304B IPC, one of the main ingredients of the offence which is required to be established is that soon before her death, she was subjected to cruelty and harassment in connection with the demand of dowry. In the present case, all the ingredients for attracting the provisions of section 304B are present. 49. In view of the fact that the deceased had been found burning inside the four walls of her matrimonial home where the appellants had the opportunity to plan and commit the offence, it was the duty of the appellants to discharge their burden by giving cogent explanations, to show that they were not the perpetrators of the crime and explain as to how the incident had been committed. In the present case, the foundational facts having been proved by the prosecution, keeping in view the circumstantial evidence and the oral dying declaration of the deceased, the explanation given by the appellants in their examination under section 313 Cr.P.C. is not found satisfactory by us, as they have failed to discharge the burden of proving the facts that are within their special knowledge in terms of section 106 of the Evidence Act. 50. The explanation given by the appellant No. 1 & 3 in their 313 Cr.P.C. examination, is to the effect that the deceased was seen burning in her/appellant no.1’s room. The deceased was not seen burning in the kitchen. This is clear from the explanation of the appellant no. 3 (mother-in-law), who stated that she was cooking, while her son was talking with Md. Sahjamal Ali and Kurban Ali, to whom she offered betel nuts. They then noticed fire in the room of the deceased. Thereafter, the door was kicked open and the injured daughter-in-law taken to courtyard. The deceased burning in her locked room, would imply attempt to suicide. Funnily enough, Md. Sahjamal Ali and Kurban Ali have not been made defense witnesses. The appellants have also not taken the stand that the deceased burnt herself, by attempting suicide. It is thus highly unlikely that the victim burnt herself in her own room. Though the appellant nos. 1 & 3 have stated that they also got burn injuries while extinguishing the fire on the deceased, there is no doctor’s evidence in support of their statement to that effect. As such, we are not at all convinced by the explanation given by the appellants that they had nothing to do with the deceased burning, inasmuch as, there is no evidence to the effect that the deceased attempted suicide by Page No.# 20/23 burning herself in her room. 51. In the present case, the oral dying declaration made by the victim satisfies the conditions laid down in section 32(1) of the Evidence Act and keeping in view the deeming fiction under section 304B IPC and the fact that there is nothing to doubt the veracity and voluntariness of the dying declaration, the oral dying declaration made by the deceased inspires our confidence. The fact that the deceased had asked for water prior to her death, leads us to believe that she had the capacity to speak rationally. Further, PWs-1, 6, 7, 8 & 9 had heard her oral dying declaration. Though PWs-1, 7, 8 & 9 have stated that the deceased had stated that all the appellants had set her on fire, PW-6 stated that the deceased stated that the appellant no.1 set her on fire, under the direction of appellant no. 2 (father-in-law). The above discrepancy appears to imply that the appellant no. 3 (mother-in-law) had nothing to do with the burning of the deceased. However, as the appellant no. 3 was in the house cooking at the relevant time, gives rise to an inference to the fact that she was aware of what was going on. Further, she was involved in the demand for dowry. Thus, though she is not mentioned in the evidence of PW-6, she is mentioned as a perpetrator of the crime by PW-1, 7, 8 & 9. Accordingly, in our view, she is jointly liable for the act done in furtherance of a common intention. 52. It is also settled law that minor discrepancies not touching upon the core of the matter does not vitiate the trial. Further, in the case of Thoti Manohar Vs. State of Andhra Pradesh [(2012) 7 SCC 723], the Supreme Court held that no evidence can ever be perfect, for man is not perfect and man lives in an imperfect world. It has held in para 39 as follows :- “39. No evidence can ever be perfect for man is not perfect and man lives in an Imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the b substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh [(1974) 3 SCC 277], wherein H.R. Khanna, J., speaking for the Court, observed thus: (SCC pp. 285-86, para 23) "23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the c question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own Page No.# 21/23 facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." 53. In the case of Virendra Singh Vs. State of Madhya Pradesh reported in (2010) 8 SCC 407, the Supreme Court has held that vicarious or constructive liability under section 34 IPC can arise only when two conditions are fulfilled l.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. The common intention postulates the existence of a pre-arranged plan implying a prior meeting of the minds. It further held that the dominant feature of section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. It also held that common intention may develop on the spot where the crime is committed and it is not necessary that the prosecution must prove that the act was done by a particular or specified person. It held that section 34 IPC is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons, who acted together, actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34 IPC. 54. In the case of Krishnamurthy alias Gunodu and others Vs. State of Karnataka reported in (2022) 7 SCC 521, the Supreme Court held that by section 33 IPC, a criminal act in section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was omitted, may be liable for the offence. It thus held that common intention or crime sharing may be by a overt or covert act, by active presence or at distant location, there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention. It further held that in a case of offence involving physical violence, physical presence in the place of actual commission may be considered to be safe for conviction, it may not be mandatory when pre- arranged plan is proved and established beyond doubt. It thus held that a co-perpetrator who had participated in the offence is actually liable on the principle of joint liability. For section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before it actually happened. Page No.# 22/23 It is a psychological fact, as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts, from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC is established. It thus held that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. 55. Though PW-1, 7, 8 & 9 are related witnesses, these is nothing to show that their testimonies are not truthful. Further, the evidence of PW-6, who is not an interested witness, corroborates the prosecution case. In the case of Abhishek Sharma Vs. State (Govt. of NCT of Delhi) reported in 2023 SCC OnLine SC 1358, the Supreme Court has held that the evidence of witness cannot be discarded merely on the ground that he is either partisan or interested or a close relative to the deceased, if otherwise he is found to be trustworthy and credible. It has further held that a dying declaration, if it is free of tutoring, prompting, etc. can form the sole basis of conviction. 56. On considering all the facts and circumstances of the case and the evidence adduced by the prosecution witnesses, we find the oral dying declaration of the deceased to be true and voluntary. She also appear to have the capacity to speak, inasmuch as, she had asked for water from her father. As can be seen form the evidence given by the Doctor, there is nothing to show that the vocal cords of the deceased have been damaged, which would have prevented her from giving an oral dying declaration, which was given at around 1-00 a.m. The victim having expired at around 3-00 a.m. in the early morning hours, leads us to believe that there was no time to have the dying declaration recorded by a Magistrate, Police or the Doctor, inasmuch as, she has been immediately thereafter taken for Ultrasound examination. The evidence shown that soon after her marriage, the appellant had been subjected her to dowry demands, for which she had gone back to her parents’ house on a few occasions. It is also in evidence that she was taken back to her matrimonial home on one occasion through a ‘bichar (village sitting)’ where PW-6 was present. Thus, we are of the view that there has been no infirmity with the conviction and sentence of the appellants under sections 302/343 IPC and section 304B/34 IPC. Page No.# 23/23 57. In view of the above reasons, we do not find any ground to interfere with the impugned judgement dated 12/02/2024 passed in Sessions Case No. 218/2018, passed by the learned Sessions Court, Baksa, Mushalpur. The appeal is accordingly dismissed. 58. Send back the TCR. JUDGE JUDGE Comparing Assistant Sukham ay Dey Digitally signed by Sukhamay Dey Date: 2025.11.28 11:30:15 +05'30'