DEBI PROSAD DEY, J. - (1.) Challenge in this appeal is the order of conviction and sentence passed by learned Additional Sessions Judge, 17th Court, Alipore, South 24 Parganas on the ground that learned trial Court could not appreciate the evidence on record and that the charge was not properly framed and the dying declaration of the victim was not even corroborated by any other witness. The case of the prosecution is that the wife of the appellant sustained burn injuries on her person and she was taken to Bangur Hospital at the outset and thereafter to Chittaranjan Hospital, Park Circus. The appellant even misbehaved with the family members of his wife and others and accordingly Jadavpur Police Station Case no. 653 of 2008 dated 3rd November, 2008 under Section 498A/326/307 of the Indian Penal Code was started against the appellant and other family members. However, charge sheet was submitted under Section 498A/306 of the Indian Penal Code since the wife of the appellant expired during the pendency of the case. Charge under Section 498A/34 of the Indian Penal Code and 306/34 of the Indian Penal Code was framed against the present appellant. On scrutiny of the contents of the charge I find that learned trial Court has properly framed a charge giving in detail about the occurrence and the involvement of the present appellant. Prosecution witness no. 1 Afjal Hossain came to know about the occurrence and he is not an eye witness of the occurrence. However, it transpires from the evidence of prosecution witness no. 1 that another criminal case is pending against the appellant. Prosecution witness no. 2 Sk. Afsar alias Manoj also did not state anything and he has been declared hostile by the prosecution. Prosecution witness no. 3 Amina Bibi is the full sister of the deceased and she came to know from the deceased that at the behest of her husband, the deceased sustained such burn injuries on her person. She has proved her signature on some paper vide exhibit 1. Except suggestion there is nothing on record to show that witness no. 2 was deposing falsely. It transpires from her cross examination that Sk. Muslim another accused used to reside in a separate mess. Prosecution witness no. 4 Guria Khatun specifically stated that she came to know from the deceased during her stay in Chittaranjan Hospital that her husband had doused her with kerosin and had put her on fire and thereby the deceased sustained such burn injury. Curiously enough except some suggestions there is nothing in the cross examination of prosecution witness no. 4 to disbelieve her. This witness has also proved the written complaint vide exhibit 4. Prosecution witness no. 5 Halima Bewa has supported the case of prosecution in minute details and she has proved the marriage certificate of the appellant vide exhibit 2. The entire examination of chief of the witness virtually remains unshaken and nothing has been elicited in the cross examination of this witness. Prosecution witness no. 6 lady Sub Inspector of police Sukla Karmakar could not say anything about the occurrence and her evidence may safely be discarded. Prosecution witness no. 7 Dr. Amitava Das held post mortem examination over the dead body of victim and as per his opinion death was caused due to the effects of septic absorption from infected ulcers resulting from burn injuries as noted in the post mortem examination report vide exhibit 3. The cause of death also remains unchallenged. Dr. Dhananjoy Dhara prosecution witness no. 8 was posted in National Medical College on 3rd November, 2008 and on that date he recorded dying declaration of Sakila Bibi in presence of A.S.I. Anathbandhu Biswas of Beniyapukur police station, Pranati Saha, S.I. of Jadavpur police station, S.I. Sudhunshu Biswas of Jadavpur police station. The doctor has specifically stated that at the time of recording such statement the patent was mentally alert and was competent enough to give her statement. The dying declaration has been marked exhibit 4. The cross examination of this witness does not reveal any doubt about the autheticity and veracity of such dying declaration of the deceased. Prosecution witness no. 9 exhibited the documents collected during investigation and submitted charge sheet against the accused persons. She is a formal witness. There is nothing in the evidence of prosecution witness no. 9 to raise any sort of suspicion with regard to the manner and mode of investigation. The appellant has simply denied the occurrence and the dying declaration of the deceased during his examination under Section 313 of the Code of Criminal Procedure and had not adduced any evidence.
(2.) Learned Advocate appearing on behalf of the appellant contended that the framing of charge has not been properly conducted by learned trial Court and as such the entire case of the prosecution ought to be viewed with suspicion. It is further submitted that the dying declaration has not been properly recorded by the doctor and learned trial Court ought to have discarded such dying declaration.
(3.) Learned Advocate for the appellant drew the attention of the Court with regard to the evidence on record and contended that the witnesses were not present at the time of alleged occurrence and they should not be relied on. Learned Advocate for the State contended that the examination in chief of the principal witnesses remain unshaken and except giving some suggestions, there is nothing in such evidence to show that the witnesses were deposing falsely. Secondly, the dying declaration has been properly recorded by the doctor and the doctor has specifically given a certificate that the victim was competent enough to make such statement before the doctor.;