- (1.) This appeal is directed against a judgement and order dated 22nd August, 1990 passed by the learned 4th Additional Sessions Judge, Burdwan, in Sessions Trial No. 14/1989 arising out of Sessions Case No.62/1989 convicting the appellant, Kanailal Sarkar, and his wife Jyostna Rani Sarkar for the offence punishable under section 302 read with Section 34 of the Indian Penal Code. Both the convicts have been sentenced to suffer imprisonment for life. The convicts have come up in appeal. The facts and circumstances of the case briefly stated are as follows :
(2.) Smt. Laxmi Rani Sarkar, aged about 14 years, was married to Dilip Kumar Sarkar, the son of the appellants. Within three years of marriage on 10th October, 1986, at about 10-50 am. the said Laxmi Rani Sarkar was admitted to the hospital by the appellant, Kanailal Sarkar, with burn injuries. She died on 13th October, 1986. A written complaint dated 10th October, 1986 was recorded on the basis of the statement made by the victim herself in the hospital. P.W.6, S.I., Sri. A.K. Banerjee, recorded the statement of the victim at about 14-45 hours on 10th October, 1986 and it is on that basis, a case under section 326/307/498A of the Indian Penal Code was started against the appellants. The appellants were ultimately charged under section 498A of the Indian Penal Code and 302 of the Indian Penal Code read with Section 34 thereof. The leaned Trial Judge acquitted the appellants of the charge under section 498A of the Indian Penal Code. They were however convicted under section 302 of the Indian Penal Code.
(3.) Miss Arati Ghosh, the learned Advocate appearing in support of the appeal assailed the judgement. She contended that the dying declaration on the basis whereof the case has been decided is altogether untrue. The victim has in fact committed suicide. There is no independent evidence to show that the appellants set the victim on fire or even attempted to do that. She submitted that the appellants are innocent. The learned Trial Judge, grossly erred in convicting the appellants without any independent evidence before him. Her second submission was that even on the basis of the dying declaration, no case can be made out as against Smt. Jyostna Rani Sarkar. She has been convicted by the learned Trial Judge for the offence punishable under section 302 with the aid of Section 34 of the Indian Penal Code. She contended that in order to make Section 34 operative there must be evidence to show that she entertained common Intention which is altogether lacking. She, therefore, contended that the conviction of Situ. Jyostna Rani Sarkar, is altogether bad even on the basis of the dying declaration.;