The dying declaration was crucial in establishing the guilt of the appellants and determining the offense under Section 326 IPC.

A.K. Goswami, J.

Heard Mr. HRA Choudhury, learned senior counsel, assisted by Ms. S.K. Nargis, learned counsel, appearing for appellants as well as Mr. H Sarma, learned Additional Public Prosecutor, Assam, appearing for respondent No.1. Mr. A.K. Azad, learned counsel for the informant/respondent No. 2 is also heard.

2. This appeal is directed against the judgment and order dated 25.6.2015, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 85/2014, whereby the accused appellants were convicted under Section 302 IPC and sentenced to suffer rigorous imprisonment for life and to pay fine for Rs.10,000/- each and, in default, to undergo rigorous imprisonment for a further period of 6 months each. The appellants were charged under Section 302/304-B/34 IPC. However, the learned Trial Court observed that the prosecution had failed to prove the allegation regarding demand of dowry and subjecting the deceased to cruelty to fulfill the demand of dowry and, accordingly, had acquitted them of the charge under Section 304-B IPC.

3. The appellant No.1 is the mother of the appellant No. 2. The deceased, namely, Idnahar Begum, wife of appellant No. 2, was aged about 14 years.

4. The ejahar was lodged by the father of the deceased, PW-3, on 11.11.2013 before the Officer-in-Charge, Jaluguti Police Post, stating, amongst others, that on 14.8.2013, at about 3:00 P.M., the present appellants along with Md. Bharalu Ali (Bharalu Ali was not sent up for trial. He is the husband of the appellant No.1) poured kerosene oil on his daughter, who was married to appellant No. 2, while she was alone at her room and, thereafter, had set fire on her body with the intention to kill her. Because of intervention of the neighbouring people, the fire was put out but, by that time, the left leg of his daughter was severely burnt. It was also indicated that she was taken to the Morigaon Civil Hospital and that her condition was serious. Based on the ejahar, GD Entry No.164, dated 11.11.2013, was recorded and, subsequently, based on the GD Entry, Mikirbheta P.S. Case No. 255/2013, under Section 498(A)/326/307/34 IPC, read with Section 4 of the Dowry Prohibition Act, 1961 was registered.

5. After the case was committed to the Court of learned Sessions Judge, Morigaon, Sessions Case No. 85/2014 was registered. During trial, prosecution examined 6 witnesses while the defence adduced no evidence.

6. PW-1 is a Doctor of Morigaon Civil Hospital, who had recorded the dying declaration of the deceased. PW-2 is the grandmother of the deceased. As noted earlier, PW-3 is the father of the deceased. PW-4 conducted the post-mortem examination and PW-5 is a witness from the neighbourhood of the appellants, who had come to the place of occurrence and had seen the victim with burn injury. The Investigating Officer was examined as PW-6. None of the witnesses is an eye-witness.

7. Learned Trial Court, on consideration of the evidence on record, had come to the conclusion that the appellants had set fire on the body of the deceased after pouring kerosene oil as the deceased had talked with a boy from her parent’s side.

8. That the deceased had suffered burn injury is not in dispute. According to the prosecution case, after the occurrence on 14.8.2013, she was admitted to hospital and, after undergoing treatment for about 25 days as an indoor patient, she was discharged from the hospital. Once again, the deceased was admitted to the Morigaon Civil Hospital on 18.11.2013 and, after such admission, dying declaration was recorded by PW-1 on that day itself. The deceased died on 21.11.2013 and post-mortem examination was conducted on that day itself.

9. Mr. H.R.A. Choudhury, learned Senior counsel for the appellants has submitted that in the post-mortem report the cause of death of the deceased was recorded as natural death due to severe emaciation and, therefore, the conviction of the accused appellants under Section 302 IPC is perverse and the same cannot be susta