JUDGMENT :

Suman Shyam, J.

1. Heard Mr. A. Ahmed, learned counsel appearing for the appellants. We have also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam, appearing for the respondent no. 1. Mr. P.K. Deka, learned counsel has appeared for the respondent no. 2.

2. By the impugned judgement and order dated 21/11/2017 passed by the learned Additional District and Sessions Judge, Sivasagar, in connection with Sessions case No. 276(S-C)/2013, the four appellants herein, have been convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of deceased Kohinoor Bibi and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each.

3. The prosecution case, in brief, is that on 20/10/2013, at about 7-30 a.m., the accused persons had poured Kerosene oil on the victim Kohinoor Bibi and set her on fire, thereby causing serious burn injuries resulting to her death.

4. On 20/10/2013, an ejahar was lodged with the Gauripur Police Station by the uncle of the deceased, viz. Md. Ahad Ali, reporting the incident to the Police. Based on the ejahar dated 20/10/2013, Gauripur P.S. case No. 520/2013 was registered under Section 147/148/149/447/323/342/436 of the Indian Penal Code (IPC) against Md. Zahidur Islam, Jalil Sheikh, Golap Uddin, Jamal Sheikh, Sarifa Bibi and Sapia Bibi. During the course of investigation, the police had recorded the statements of several witnesses. According to the I.O. he had also recorded the statement of the injured Kohinoor Bibi under Section 161 of the Cr.P.C., before she had succumbed to her burn injuries. On completion of investigation, the Police had drawn up charge sheet against four accused persons viz., Zahidur Islam, Jalil Sheikh, Jamal Sheikh and Sarifa Bibi under Section 120(B)/304(B)/34 IPC. The other two accused viz., Golap Uddin and Sapia Bibi were not charge sheeted due to want of evidence against them. The accused persons had pleaded innocence, as a result of which, trial had commenced in Sessions Case No. 166/2015 before the court of learned Sessions Judge, Dhubri.

5. In order to bring home the charge, the prosecution side had examined as many as 10 (ten) witnesses. The accused persons did not lead any evidence. However, during the course of examination of the accused persons under Section 313 Cr.P.C., they have denied the prosecution case and have taken a stand that the allegation brought against them is completely false and baseless.

6. Based on the evidence brought on record, the learned trial Court had found all the appellants/accused persons guilty of having committed an offence punishable under Section 302 of the IPC and accordingly, sentenced them to life imprisonment and also directed to pay fine of Rs. 10,000/- each with default clause.

7. From a careful scrutiny of the materials available on record, we find that the conviction of the appellants is entirely based on the statement of the deceased marked as Ext-7 recorded by the I.O on 21/10/2013 in the burn unit of the Dhubri Civil Hospital, which was treated as her "dying declaration". The English translation of the relevant extract of Ext-7 is reproduced herein below for ready reference:-

"The name and address as mentioned above are correct. Around 7-30/8-00 a.m. on 20-10-13, my husband Jahidul Islam grabbed me inside my room and Sharifa Bibi, the wife of my husband's paternal uncle poured kerosene on my person and then my father-in-law Md. Jalil Sheikh lighted a match stick and set fire to me. My brother-in-law Jamal Sheikh kept the door closed by pressing it. After they had set fire to me and when fire engulfed me, the said persons fled the place. Finding no way out, I jumped into the water in the ditch in front of the house."

8. PW-1 Smt. Deepa Roy is the nurse who had attended to the injured victim in the Dhubri Civil Hospital. PW-1 had deposed before the Court that she had stated before the I.O. that Police had recorded the statement of the burn injury patient Kohinoor Bi