JUDGMENT :

M. Zothankhuma, J.

Heard, Ms. B Sharma, learned Amicus Curiae and Ms. S Jahan, learned Addl. Public Prosecutor. Also heard Mr. S Dutta for the respondent (Informant).

2. This appeal has been filed against the Judgment & Order dated 22.07.2019 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 289/2017, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to undergo Simple Imprisonment for 6 (six) months.

3. The learned Amicus Curiae submits that there was no eye witness to the incident and that the statement of the daughter of the deceased, recorded under Section 164 Cr.P.C cannot be admissible as evidence, as the daughter of the deceased was not examined by the learned Trial Court. The learned Amicus Curiae also submits that the neighbours of the appellant have also adduced evidence, to the effect that, they did not know as to how the deceased got burnt. Further, as the husband (appellant) had taken the deceased to the Hospital, the same would imply that the appellant was, in fact trying to save the deceased from the injuries sustained by the deceased. She accordingly prays that the impugned judgment & order should be set aside.

4. Ms. S. Jahan, learned Addl. Public Prosecutor submits that she does not have any quarrel with the submission made by the learned Amicus Curiae, that the statement given by the daughter of the deceased under Section 164 Cr.P.C cannot be admissible as evidence, in view of the fact that the daughter of the deceased was not examined by the learned Trial Court and neither was the statement under Section 164 Cr.P.C exhibited by the Ld. Magistrate, who recorded the statement. She however submits that the dying declaration of the deceased was recorded by the Doctor Somser Ali (PW-7) on 20.04.2011 and witnessed by a male-nurse (PW-11), which states that the appellant had burnt his deceased wife, by pouring kerosene over her and setting her ablaze. The learned Addl. Public Prosecutor also submits that the deceased had told PW-2, 3 & 10 that that she had been burnt by the appellant (her husband), who had poured kerosene over her. She also submits that the evidence of the I.O (PW-12)and the evidence of the Doctor Dipak Kr. Sarma (PW-8), who conducted the post-mortem on the deceased on 21.04.2011, clearly shows that the death of the deceased was caused due to the burn injuries suffered by the deceased. As the ingredients of 302 IPC were present in the case, there was no infirmity with the impugned judgment & order. Accordingly, the appeal should be dismissed.

5. Mr. S. Dutta, learned counsel for the respondent No. 2 reiterates the same submissions made by the learned Addl. Public Prosecutor.

6. We have heard the learned counsels for the parties.

7. The prosecution story of the case is that the father of the deceased submitted an FIR dated 20.04.2011 before the Officer-in-Charge, Goalpara Police Station, stating that the informant’s daughter was set on fire by her husband after pouring kerosene oil on her. The informant’s daughter was then taken to the Goalpara Civil Hospital. As the condition of the victim was critical, she was referred to the Gauhati Medial College & Hospital. However, on the way to Gauhati Medial College & Hospital from Goalpara Civil Hospital, the victim passed away in Bako. The deceased was then brought back to Goalpara Civil Hospital, where Post Mortem was done.

8. On the basis of the FIR submitted by the informant, Goalpara P.S. Case No.145/2011 under Sections 302/304B/34 of IPC was registered. The Investigating Officer investigated the matter and on finding that a prima-facie case was found against the appellant under Sections 304B IPC and 302 IPC, charge-sheet was filed.

9. The learned Sessions Court/Trial Court framed 2 (two) charges against the appellant under Sections 304B IPC and 302 IPC, to which the appellant pleaded “not guilty” and claimed trial. Thereafter