The main legal point established in the judgment is the requirement for corroboration and reliability of witness testimonies, especially in cases relying on dying declarations and child witnesses.

JUDGMENT :

Joymalya Bagchi, J.

1. In the night of 17.09.2010, Hasina Khatun suffered burn injuries at her matrimonial home. Five years prior to the incident, she was married to the appellant Piyarul. They had fallen in love and married. Initially, Nurjaman Ali (P.W. 1), father of Hasina did not approve the match. Subsequently, he accepted Piyarul as his son-in-law. A son, namely, Hasan was born to the couple. He was around 3½ years at the time of incident. Aruna Bibi (P.W. 10), sister of Hasina informed her parents about the incident. They came to the matrimonial home of Hasina and heard she had been shifted to Berhampore General Hospital. On the next day, i.e. 18.09.2010 they went to Berhampore General Hospital where it is claimed Hasina told them an altercation had cropped up between Piyarul and herself as she had received a phone call in the mobile phone of Piyarul from a lady. Piyarul became angry and set her on fire. In the morning of 20.09.2010, Hasina expired. On 21.09.2010, Nurjaman Ali (P.W. 1) lodged written complaint resulting in Daulatabad P.S. Case No. 149/10 dated 21.09.2010 under sections 498A and 302 of the Indian Penal Code. In the course of investigation, appellant was arrested and charge-sheet was filed against him. Charges were framed under sections 498A and 302 of I.P.C. against the appellant. Appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. It was the specific defence of the appellant that the incident occurred around 10:00 p.m. and he was not present at his residence. Hasina’s saree accidentally caught fire from a lamp and she suffered burn injuries. Appellant and others removed her to hospital. After the death of Hasina, appellant was falsely implicated in the case.

2. After considering the evidence, the learned trial Judge by the impugned judgment and order dated 26.04.2016 and 28.04.2016 convicted the appellant for commission of offence punishable under section 302 of I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for six months more with a further direction that a sum of Rs. 3,000/- out of the fine, if deposited, be awarded to Hasan Ali, son of the deceased and the remainder be paid to the State to defray the expenses incurred in the prosecution.

3. Mr. Bibaswan Bhattacharyya as Amicus Curiae submits there are two sets of dying declarations made by the deceased. While P.Ws. 4 and 5 stated the victim told them she had suffered accidental burns, P.Ws. 1, 7 to 10 (relations of the deceased) stated the victim told them appellant had set her on fire. Trial Judge disbelieved both sets of dying declarations but relied on Hasan Ali, son of the deceased, to record a finding of guilt against the appellant. Hasan was six years of age at the time of his deposition in 2014 and would have been barely above two years at the time of the incident in 2010. Trial Judge erred in law in relying on a child witness who was barely three years of age at the time of occurrence and unable to appreciate the manner in which the incident occurred. He also disbelieved the alibi of the appellant as transpiring from P.W. 3, a tea stall owner, who stated that the appellant was present in his tea stall at the time of occurrence. There is no legally admissible evidence connecting the appellant with the murder. Hence, the appeal is liable to be allowed.

4. Learned Counsel for the appellant adopts the submission of Mr. Bibaswan Bhattacharyya.

5. Learned Counsel for the State argues Aruna Bibi, sister of the deceased arrived at the spot on the fateful night and the victim made a dying declaration incriminating her husband. Aruna informed her parents and on the next day when they went to the hospital, the victim told them her husband had set her on fire. Trial Judge erroneously disbelieved their versions. No reliance ought to be placed on P.Ws. 4 and 5 as their