1

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present :

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Rai Chattopadhyay

CRA 723 of 2015

With

CRAN 3 of 2021

Kader Mia

Vs.

The State of West Bengal

For the Appellant. Mr. Imtiaz Ahmed

Ms. Ghazala Firdaus

Mr. Sk. Saidullah

Mr. Mithun Mondal Mr. Md. Arsalan

For the State Mr. Debasish Roy, Ld. PP,

Mr. Saryati Datta

Judgement reserved on- March 12, 2026

Judgement pronounced on- March 16, 2026

Rajasekhar Mantha, J.:

1. The subject appeal is directed against the judgment of conviction dated

October 8, 2015 and the order of sentence dated October 9, 2015

respectively, passed by the Additional Sessions Judge, Dinhata, in

Sessions Trial No. 12(01)/2015 arising out of Sessions Case No.

30(D)/2014. The appellant was convicted for the offence under section

2

302 of Indian Penal Code and was sentenced to life imprisonment and to

pay a fine of Rs 2,000. In default thereof, to suffer a simple imprisonment

for 2 months.

THE PROSECUTION CASE AND THE EVIDENCE ON RECORD

1. PW 1 was the father of the victim . He lodged the complaint dated

September 1, 2011, with Dinhata PS, Cooch Behar. The complaint was

scribed by PW 8. PW 1 stated that in 2007 his daughter got married to

the appellant. At the time of marriage, he paid Rs 18,000 and other gift

items to the appellant and in-laws of the victim.

2. PW 1 stated in the said complaint that from inception of the marriage,

the appellant and family tortured the victim upon failure of the latter to

bring a further sum of Rs 10, 000 from her paternal home. In 2009, a girl

child was born from the wedlock of the appellant and victim. PW 1 stated

the torture of the appellant and his parents upon the victim increased

after birth of the said girl child.

3. PW 1 mentioned in the said complaint that the victim was not provided

food at her matrimonial home and she was starving thereat. The

appellant and family used to provoke her to commit suicide. On August

30, 2011, at around 3 p.m. the appellant and family set the victim on fire

after pouring kerosene oil on her. They locked the door from the outside.

4. Upon hearing hue and cry of the victim, the neighbors entered the house

and unlocked the door of the room where the victim was locked.

Thereafter, the victim is stated to have run and dived into a pond situated

near the PO. The said neighbors took the victim to Dinhata Hospital on

3

August 31st, 2011. The victim therefore was taken to the said Hospital

one day after the said incident. PW 1 reached the hospital and heard the

entire incident from the victim, and lodged the said complaint after two

days that is on August 1

st September, 2011.

5. PW 25, Dr.Subrata Haldar was the postmortem doctor. He deposed

that it cannot be stated that whether the burn injuries on the person of

the victim were homicidal or suicidal.

6. Investigation was completed and charge sheet was filed against 4 accused

persons. Charges were framed on January 29

th

, 2015 against them under

Sections 498A , 304B and 302 of the IPC.

7. PW 1 was Rafique Mia, the defacto complainant father of the victim. He

has deposed that the victim told him at the Dinhata SD hospital that she

suffered burn injuries while cooking in the kitchen in her matrimonial

house. He was declared hostile by the prosecution. He denied having

stated in the complaint and statement before the IO that the victim was

tortured by the appellant with dowry demands. He also denied the

prosecution suggestion, that the appellant induced the victim to commit

suicide. He also denied that the accused poured kerosene over the victim

and set her on fire at 3 PM on 31

st

July 2011.

8. PW 1 further denied having stated in the complaint that when the victim

was screaming in pain the neighbors opened the door and the victim ran

out of the house and jumped into a pond when the fire on the victim was

doused.

4

9. In cross-examination by the defense, PW 1 deposed that the relations

between his daughter and the appellant was warm. The victim studied up

to class VII -VIII. The appellant and his brother lived separately. To the

Court, he answered that his daughter told him 7-8 days after the incident

that she was burnt while cooking. He further stated to Court that he did

not tell the same to the police.

10. PW-2 was Nur Hussain brother of the victim. He was declared hostile

after he stated that the victim died out of burn injuries sustained while

cooking. His sister had a happy conjugal life. He denied the entire

prosecution case in cross-examination by them. In cross examination by

the defense he stated that the victim and the appellant visited their house

with their child. He also deposed that he went to the hospital every day

after the incident.

11. PW 3 Najrul Mia, was the uncle of the victim. He deposed that he is

not aware of the case against the appellant. He deposed that he was not

examined by the police. He was also declared hostile by the prosecution.

He denied his entire statement to the police.

12. PW-4 was Smriti Parihar a staff nurse at the Dinhata SD Hospital.

She deposed that she witnessed and signed on the dying declaration of

the victim at the Hospital at the request of the doctor. She stated that the

doctor recorded the declaration without any relative of the family or police

being present and without any request for the same from the superiors of

the doctor. Her mother tongue was Nepali. She did not depose that she

knew or understood Bengali. She admitted that she was not examined by

the police.

5

13. PW 5, Fazle Haque, was the brother-in-law of the victim. He deposed

that upon returning home from work, he came to learn from his wife that

the victim died of burn injuries while cooking. He deposed that the victim

had good relations with the appellant. PW 5, however, was not declared

hostile by the prosecution.

14. PW 6, Nur Banu Bibi, was a neighbor of the victim. She deposed that

she had come to learn that the victim caught fire while cooking in the

kitchen. She was declared hostile by the prosecution. During her cross-

examination, PW 6 deposed that she did not tell the police that there was

a quarrel between the appellant and the victim in the morning of August

31st 2011, when the victim was admitted to the hospital. She deposed

that she did not tell the police that she heard any hue and cry of the

victim and then saw the victim diving into the pond near the PO. She

deposed that the appellant had good relations with the victim. She denied

the entire case of the prosecution.

15. PW 7, Ali Hossain, used to address the victim as sister-in-law by local

courtesy. He deposed that he heard that the victim suffered burn injuries

while cooking in the kitchen. He deposed that the police have not

examined him. The prosecution declared him hostile. PW 9, 10, 11, 12,

16, 17 were also the neighbors of the victim. They deposed along the

lines of PW 7. They were declared hostile by the prosecution.

16. PW 13 was another neighbor of the victim . He deposed that he is

unaware of the case against the appellant.

6

17. PW 14 was the neighbor of the victim . He deposed that he heard

that the victim has suffered burn injuries while cooking rice in the

kitchen. He deposed that upon hearing a hue and cry, he rushed to the

house of the victim and found her lying unconscious. The police did not

examine him. The prosecution declared him hostile.

18. In cross-examination, PW 14 deposed that he has not told the police

that the relationship between the victim and the appellant was sour. He

deposed that he had not told the police that the appellant and his parents

used to provoke the victim to commit suicide.

19. PW 18 was the police constable who transferred the body of the

victim to the Maharaja Jitendra Narayan Medical College and Hospital,

Coochbehar for postmortem.

20. PW 19 was the imam of the local mosque. He deposed that he

solemnized the marriage of the victim with the appellant. He, however,

deposed that he does not know the appellant. He deposed that he heard

that the victim has died from burn injuries. He deposed that the father of

the victim, PW1, has never confided in him about the condition of the

marital life of the victim. He was declared hostile by the prosecution. He

denied the prosecution's case.

21. PW 15 has deposed that he referred the victim to Maharaja Jitendra

Narayan Medical College and Hospital, Coochbehar for advanced

treatment. The victim, however, chose to stay at the Dinhata SD hospital.

He confirmed that the victim was fully conscious on September 1st, 2011.

The dying declaration of the victim was recorded on September 1st, 2011.

7

PW 15 however was not a witness to the said dying declaration of the

victim. The victim died on August 11

th, 2011 at 4:20 p.m.

22. During his cross-examination, PW 15 deposed that the admission

sheet of the said Hospital has recorded the case history of the victim as

one of burn injury caused by suicide. He, however, deposed that he is

unable to recognize the signature of the doctor on the admission sheet.

Thus, there is an irreconcilable inconsistency between the case history

recorded in the bed head ticket and that recorded in the said admission

sheet.

23. PW 20, was Dr Mrinal Kanti Biswas . He was another doctor at the

said Dinahata SD hospital. He recorded the dying declaration of the

victim. The same was witnessed by a nurse of the said Hospital, namely

Smriti Parihar PW 4.

24. PW 20 has deposed that the victim was fully conscious at the time of

making the said dying declaration. PW 4, the witness to the said dying

declaration, has confirmed that the victim was conscious. PW 4 has

deposed that she was on duty on September 1, 2011, at the female

surgical ward of the said Dinhata Hospital. The dying declaration of the

victim was recorded on September 1, 2011. The said dying declaration is

set out below:-

DYING DECLARATION

Taken on 01.08.2011 at 2.30 p.m.

Name of the Patient: ROFIKA BIBI

Age: 26 years

Sex: F

W/O-Kader Mia

Ward – FSW

Date of Admission-31.07.2011

Admission R/N-15280

8

Sd/-illegible

01.08.11

My name is Rafika Bibi. The name of my husband is Kader Mia. My House

is situated at Petla. My husband used to assault me almost everyday. The

family members of my matrimonial house never obstructed my husband

while he assaulted me. Yesterday afternoon at about 2.30-3.00 p.m. my

husband assaulted me. Then he poured kerosene oil upon myself and set

fire on me by using match sticks. After that he flew away. I was yelling with

intolerable pain. Then the neighbors rushed to the spot and tried to save

me.

(L.T.I of patient)

Witness:-

1 Mrinal kanti Biswas (On duty E.M.O)

2.Smriti Pariyar (Gr-II staff nurse)

Sd/-illegible

01.08.2011

Medical Officer

Dinhata S.D. Hospital

Dinhata, Cooch Behar

Exbt-2/1 in c/w Sess.-30(D)/14

Sd/-illegible

Additional Sessions Judge

Dinhata

27.04.15

Exbt-2

c/w Sess.-30(D)/14

Sd/-illegible

Additional Sessions Judge

Dinhata, 30/07/15

25. During his cross-examination, PW 20 deposed that the victim has put

her thumb impression on the said dying declaration. Initially, PW 20 was

unable to state as to why the victim did not put her signature on the said

dying declaration. It, however, appears that on a question put by the trial

court, PW 20 stated that though the victim was fully mentally conscious,

she was not physically fit to use her hand and sign on the said dying

9

declaration. PW 20 has deposed that he is unable to recall whether he has

read out and explained the contents of the said dying declaration to the

victim.

26. PW 20 further deposed that he did not inform the police about the

said dying declaration. He did not record the blood pressure of the victim

or her heart and pulse rate. The treatment by the previous doctors is not

recorded in the declaration. He admitted that no one was there to identify

the victim. He admitted that he was not fully conversant with the dialect

spoken by the victim. He further deposed that he did not obtain the prior

permission of the police for recording the said dying declaration.

27. An inquest was conducted by the PW 21, the ASI of Dinhata PS and

the Executive Magistrate, Mr Sabyasachi Roy (WBCS) on August 12,

2011. The inquest was scheduled to be conducted on August 11, 2011

when the victim died. However, due to bad light the inquest could not be

conducted.

28. The inquest report stated that the victim had suffered burn injuries.

PW 20, the ASI of police, and the Executive Magistrate both found that

the back of the body of the victim had received the maximum injury. The

body of the victim was thereafter sent for post mortem.

29. PW 22 was the investigating officer of the case. He has deposed

that he sent a written request of EMO of the Dinhata SD hospital to

record the dying declaration of the victim. There is no evidence on record

to suggest that EMO of the said hospital directed PW 20 to record the

dying declaration of the victim.

10

30. PW 22 was the Investigating Officer of the case. He deposed that he

has written to the Emergency Medical Officer (EMO) of the said Dinhata

SD hospital for recording a dying declaration of the victim. During the

examination in chief of PW 22, the prosecution drew this attention to the

statements made by several prosecution witness, who turned hostile,

under section 161 of the CrPC.

31. PW 23 was a seizure witness. He deposed in the cross examination

that he has lent his signature on the seizure list without being informed

about the contents thereof by the police. PW 24 was another seizure

witness. He deposed that he knew the victim.

32. PW 25 was the post mortem doctor . He found burn injuries on the

person of the victim. He deposed that he found the following burn injuries

on the body of the victim. He however could not state whether the said

burn injuries were homicidal or suicidal. He found the following injuries

on the person of the victim:_

Partial and full thickness burn injuries were noted at following

regions:-

1) both arms and forearms and hands.

2) whole anterior chest wall and both breasts,

3) upper half of anterior abdominal wall,

4) right thigh,

5) right leg.

6) left leg and

7) whole back.

On careful examination a zone of redness was noted in

between normal and burnt skin. Time since death is 20 to 22

11

hours. In my opinion the cause of death was due to shock

following above mentioned burn injuries and which was ante

mortem in nature.

ANALYSIS OF THIS COURT:-

33. The prosecution witnesses have negated the entire case of the

prosecution. Significantly, in addition to the relatives of the victim

turning hostile, the neighbors of the victim have also turned hostile.

34. The prosecution witnesses during the trial have deposed that the

victim died by accident. She succumbed to burn injuries caused to her

while cooking. The said witnesses however have stated before the Police

that the victim was set on fire by the appellant and family. They have

stated to the police that they have unlocked the room of the victim

where she was detained and set on fire. They have rescued her. They

stated that thereafter the victim dived into the pond near the PO.

35. This Court is of the view that in the present facts of the case, it was

incumbent upon the investigating officer, PW 22 to have the statement

of the said prosecution witnesses recorded before a magistrate, under

Section 164 of the CRPC. He ought to have confronted the said

statements of the witnesses under Section 161 of the CrPC, to each of

them, in terms of Section 162 of the CrPC. The reason is that it is

extremely unnatural that during the trial, each of the prosecution

witnesses both family and neighbors would resile from their statements

made under section 161 of the CrPC unless they were compelled or

made statement to the police under duress. Such is the only possible

inference in the facts of the case. Admittedly none of the statements of

12

the family of the victim or the neighbors was recorded before a

Magistrate under Section 164 of the CrPC.

36. It appears from the evidence of PW 22, the IO, that the prosecution

had made a last ditch attempt to overcome the hostility of the

prosecution witnesses by referring to the 161 statements of the said

prosecution witnesses to the IO during the latter's examination-in-chief.

The investigating officer however under the law cannot depose on behalf

of the other prosecution witnesses, who have allegedly tendered the said

161 statements. In such a case, the evidence of IO would be rendered

hearsay.

37. The evidence of the neighbors of the victim was direct evidence as

regards events which took place after the victim was allegedly set on fire.

The neighbors stated under Section 161, CrPC that upon hearing the

hue and cry of the victim, they rushed to the house of the victim and

unlocked the door where the victim was burning on fire. They further

stated in their 161 statement that they have seen the victim to have

dove in the pond to save her life. PW 22 therefore ought to have such

statements recorded under Sec. 164, CrPC before a magistrate.

38. Thus in the present case, the non-recording of the statement of the

prosecution witnesses, both family and neighbors, before the Magistrate

is a vital lapse in the investigation. This is not a mere defect in the

investigation. It has left a substantial doubt in the mind of this Court

that the IO may have compelled the PWs to make statements under

section 161 of the CRPC.

13

39. The case of the prosecution was that the victim was set on fire by

pouring kerosene oil on her and she was locked in a room. The

neighbors of the victim are stated to have unlocked the door. There is no

evidence on record to suggest that the said door was broken open by the

neighbors. As to how the neighbors had unlocked the said door without

the keys thereof has remained unexplained.

40. The seizure witnesses, PW 23 and 24, have feigned ignorance of the

seized materials. They have deposed that the police have not made them

aware of what is actually seized. The case of the prosecution therefore

cannot stand on the evidence of the aforesaid witnesses.

41. The prosecution case falls flat on its back in view of the clear and

unequivocal evidence of PW-1, 2 and 3 that the victim led a happy

conjugal life with the appellant. The prosecution on one hand led alleged

the victim was murdered by her husband by pouring kerosene oil and

setting her on fire. On the other hand in cross examination of the PW-1

tried to lead a case of suicide by the victim. This contradiction should

have been noticed by the Trial Court.

42. The learned trial judge has convicted the appellant on the basis of the

dying declaration. The dying declaration of the victim was recorded by

PW 20. He was a doctor at Dinhata SD hospital. The victim was

admitted thereat. PW 15, another doctor at the said Dinhata SD Hospital

has deposed that he initially treated the victim and referred her to

Maharaja Jitendra Narayan Medical College and Hospital, Coochbehar

for better treatment. The victim however was not shifted to the said

Hospital. As to why the victim was not shifted to the said Hospital

14

remains unexplained. It appears that the recording of the dying

declaration of the victim at the Dinhata SD Hospital was more of a

priority over the better treatment of the victim.

43. Significantly, the dying declaration of the victim does not allude to the

participation of her in-laws in the torture committed upon her. It merely

states that the in-laws of the victim did not stop the appellant when the

latter used to torture her. The dying declaration of the victim has only

accused the husband of the victim of setting her on fire. The

surrounding circumstances involved in the recording of the said dying

declaration are thus suspicious. In Paniben (Smt.) v. State of Gujarat

Reported in (1992) 2 SCC 474, it was held as follows:-

18. (iv) Where dying declaration is suspicious it should not be

acted upon without corroborative evidence.

44. PW 22, the IO, has deposed that he has sent a written request to the

emergency medical officer of the Dinhata SD hospital to record the dying

declaration of the victim. The victim died 9 days after the purported dying

declaration was recorded by PW-20. As to why PW 22 did not get the dying

declaration of the victim recorded before a magistrate remains unexplained.

45. PW 20, who recorded the dying declaration of the victim, has deposed

that he recorded the same on his own volition. Surprisingly, PW 20 has

deposed that he did not inform the police authority about the dying

declaration of the victim. The police also did not record the statement of

PW-4 the nurse who witnessed the purported dying declaration. The

conduct of the PW 20 in recording the dying declaration of the victim

without informing the police is suspicious. It is also against common

15

sense, since the IO PW 22, had sent a written request to the Emergency

Medical Officer of the Dinhata SD hospital to record the dying declaration

of the victim.

46. The dying declaration was given out by the victim on September 1,

2011. The victim survived for 10 days thereafter. She died on September

11, 2011. PW 20 and PW 4, a nurse at the said Dinhata SD Hospital who

was attending the victim, have deposed that the victim was fully conscious

at the time of making the said dying declaration. Therefore it may be

inferred that the victim was conscious even after making of the said dying

declaration. Ordinary prudence required the investigating officer to get the

dying declaration of the victim recorded before a magistrate.

47. It is now, however, well settled that a dying declaration can form the

sole basis of conviction. A truthful and voluntary dying declaration need

not be corroborated. Such situation obtains when a dying declaration is

beyond doubt, not surrounded by suspicious circumstances. In this regard,

it may be noted that PW 20 who recorded the dying declaration has

deposed that he has not recorded the procedure of treatment given to the

victim during her admission at the said Dinhata Hospital. It therefore

appears that PW 20 was over enthusiastic in recording the dying

declaration of the victim than her treatment. There therefore appears an

unwanted activism on the part of the PW 20 to record the dying declaration

of the victim.

16

48. The victim survived for another 10 days from the date of making the

said dying declaration. Thus there was no tearing hurry to record the dying

declaration following the due process of recording the same in a question

and answer form.

49. PW 22, the investigating officer has deposed that he made a written

request to the Emergency Medical Officer of the said Dinhata SD hospital to

record the dying declaration of the victim. Therefore, it can be reasonably

inferred that PW 20, who recorded the dying declaration of the victim, was

informed by someone to record the dying declaration of the victim. PW-20

therefore knew that he needs to submit the said dying declaration to the

police. It is therefore surprising that PW 20 did not inform the police about

the recording of the said dying declaration. There is no evidence on record

to suggest that the PW 20 was acting as per the instruction of the said

EMO.

50. It is equally surprising and unexplained that PW 20 did not wait for

the police to be present while recording the said purported dying

declaration. The victim survived for 10 days from the date of the recording

of the said dying declaration. The said dying declaration was recorded in

haste without any rhyme or reason.

51. A dying declaration can be recorded by any respectable officer of the

state. A doctor of a government hospital is indeed respectable officer of the

state. PW 20, however, does not appear to be a responsible officer in view of

that he has deposed during the trial that he has not read over and

explained the contents of the said dying declaration to the victim. In

17

Khushal Rao v. State of Bombay reported in AIR 1958 SC 22 , it was

held as follows:-

“16…..(1) that 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;

(2) that each case must be determined on its own facts keeping

in view the circumstances in which the dying declaration was

made;

(3) that it cannot be laid down as a general proposition that a

dying declaration is a weaker kind of evidence than other pieces

of evidence;

(4) that a dying declaration stands on the same footing as

another piece of evidence and has to be judged in the light of

surrounding circumstances and with reference to the principles

governing the weighing of evidence;

(5) that a dying declaration which has been recorded by a

competent Magistrate in the proper manner, that is to say,

in the form of questions and answers, and, as far as

practicable, in the words of the maker of the declaration,

stands 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 ,

and

(6) that in order to test the reliability of a dying declaration, the

Court has to keep in view, the circumstances like the

opportunity of the dying man for observation, for example,

whether there was sufficient light if the crime was committed at

night; whether the capacity of the man to remember the facts

stated, had not been impaired at the time he was making the

statement, by circumstances beyond his control; that the

statement has been consistent throughout if he had several

opportunities of making a dying declaration apart from

the official record of it; and that the statement had been

made at the earliest opportunity and was not the result of

tutoring by interested parties.”

Emphasis applied

52. A dying declaration recorded by a magistrate therefore stands on a

higher pedestal. Therefore, when a dying declaration is recorded by an

officer of the state, other than the Magistrate, it should be carefully

scrutinized and examined by a Court. The said dying declaration, recorded

by PW 20, does not sustain this scrutiny.

18

53. PW 20 did not read over and explain the contents of the said dying

declaration to the victim. He did not inform the police about the said dying

declaration. He was not aware that a written request was made by the IO to

the EMO, Dinhata SD hospital to record the dying declaration of the victim.

He was unable to state as to why the victim put her thumb impression. PW

20 has deposed that the victim was mentally conscious but was not

physically fit. As to how therefore the victim put her thumb impression on

the said declaration which requires some strength and pressure of the hand

is suspect.

54. The contents of the purported dying declaration are all the more

suspect as the PW-2 deposed in cross-examination that he and his father,

PW-1, visited his sister, the victim, in the hospital every day. It is therefore

surprising if not suspicious as to why the dying declaration was not

recorded in the presence of PW-1 and PW-2, and the latter did not know

about it at all.

55. Further, the IO of the case had ample time to record the dying

declaration before a magistrate. In fact, the inquest was conducted by an

executive magistrate in view of Section 174(3) read with Sec. 176, CrPC,

which mandates that an inquest must be conducted by an executive

magistrate when the woman dies within 7 years in her matrimonial home.

The investigation in the matter was rather callous and perfunctory.

56. The dying declaration is further rendered suspicious when the

evidence of PW 4 and PW 15 is compared. PW 4 has deposed that she has

seen the victim conscious at the time of making the said dying declaration.

19

She has signed on the said dying declaration as a witness. PW 15, who

initially treated the victim at the said hospital upon her admission threat,

has equally deposed that the victim was conscious on September 1, 2011,

when the victim made the said dying declaration. PW 15 however did not

sign on it. The signature of PW-15 was equally important on the said

declaration, which is not there. There is therefore some doubt as to whether

the victim was a proper state of mind when the purported dying declaration

was recorded.

57. The said declaration has not been recorded by a magistrate and hence

not in a question and answer form and therefore ought to have been read

out to the victim and confirmed before obtaining her LTI thereon. This

omission by PW-20 is yet another ground to discredit the same.

58. Admittedly the charge under Section 498A was not established by the

prosecution. The charge of murder of the victim for dowry, consequently

also gets diluted

CONCLUSION:-

59. Having regard to the aforesaid discussions, the finding of guilt by the

trial court solely based on the dying declaration is not sustainable and is

liable to be set aside and is hereby set aside.

60. The instant appeal CRA 723 of 2015 is allowed. Consequently, all

connected applications shall stand disposed off in terms of this judgement

20

61. The appellant shall be set at liberty subject to his not being wanted in

connection with any other case and subject to execution of a bond under

Section 437 of the CRPC corresponding to Section 480 of the BNSS.

62. There shall be no order as to costs.

(Rajasekhar Mantha J)

I agree,

( Rai Chattopadyay J)