JUDGMENT P.K. Musahary, J. 1. Heard Miss P. Talukdar, learned Amicus Curiae appearing for the Appellant and Smt. B. Saikia, learned Addl. P.P. Assam. 2. This appeal is directed against the judgment and order dated 14.8.2006 passed by the learned Sessions Judge, Sibsagar in Sessions Case No. 117(S-S)/2004 convicting the Appellant under Section306 of the IPC to undergo RI for 5 years and to pay fine of Rs.2,000/-, in default RI for another 3 months. 3. The story projected by the prosecution is that the accused Appellant married the deceased Rita Mali in the year 1992 and they had been living at Sibsagar in a rented house of one Sofia Khatun. The Appellant has been torturing his wife physically and mentally by consuming liquor. On 3.6.2000 at about 11.00 p.m. the Appellant had a quarrel with his wife and tortured her as usual. Losing patience at such torture his wife committed suicide by pouring Kerosene oil over her body and setting fire on herself. She was removed to Assam Medical College Hospital for treatment but the succumb to her injuries on the next date i.e. 4.6.2000 at about 9.45 p.m. An FIR was lodged by the father of the deceased Sri Hirendra Nath Rajkhowa and it was registered as Sibsagar Rs.Case No. 135/2000 under Section 498(A)/306, IPC. After completion of investigation charge-sheet was laid and the case, being exclusively triable by the Court of Sessions, was committed by the Judicial Magistrate 1st Class, Sibsagar to the Court of Sessions, Sibsagar and charges under Section 306, IPC was framed against the Appellant. The accused Appellant pleaded not guilty and claimed to stand trial. 4. The prosecution adduced as many as 7 witnesses including one Doctor and the Investigating Officer. The Appellant adduced no evidence in his defence. Amongst the said prosecution witnesses PW 3 Sri Nayanjit Mali is the eye-witness to the occurrence. He is the son of the Appellant and the deceased. This PW was aged about 7 years at the time of occurrence and 12 years at the time of deposition. According to his evidence the occurrence took place after they had their dinner and while he was lying on the bed. His father, the accused Appellant, returned home from his duty consuming liquor outside. His father used to come home in a drunken state and used to rebuke and torture his mother. According to his evidence the occurrence took place after they had their dinner and while he was lying on the bed. His father, the accused Appellant, returned home from his duty consuming liquor outside. His father used to come home in a drunken state and used to rebuke and torture his mother. On the date of occurrence also he returned home in a drunken state and had an altercation with her mother. His mother got impatient and locked herself in the bath room and thereafter she poured kerosene oil over her body and set fire with a match stick. When the fire engulfed her she could not bear it and came out by opening the door herself. His father came running and wrapped his mother's body with a blanket. On hearing the hue and cry the neighbouring people gathered in their house and his mother was taken to Assam Medical College Hospital, Dibrugarh in an Ambassador Car and she died in the said Hospital. 5. PW 6 Dr. Tayabur Rahman was the Senior Medical and Health Officer in the Sibsagar Civil Hospital. He stated that on 4.6.2000 he was performing his duty and he recorded the dying declaration of the deceased Rita Mali. According to him the victim was hospitalized with 80% burn injury in the surgical ward. While the victim was at Sibsagar Civil Hospital she made dying declaration before him to the effect that her husband used to torture her both physically and mentally. Her husband was addicted to drinks and in the night of the occurrence (3.6.2000) her husband came home at about 11 p.m. and under the influence of liquor tortured her physically and mentally as usual. The torture given by her accused husband become intolerable and to get relief from the torture she poured kerosene oil on her body and set fire by herself. Ext. 3 is the dying declaration which was recorded by the Doctor PW 6 in presence of witness Rajib Bora, Anil Gogoi and Papul Phukan. After recording her statement and seeing her condition critical, the said Doctor referred her to Assam Medical College Hospital at Dibrugarh for better treatment but on way she expired. The Ext. 3, dying declaration, was made by the deceased in her own language i.e. in Assamese and it was recorded in English by him (the Doctor). PW 7 Sri Sukmal Gogoi is the Investigating Officer. The Ext. 3, dying declaration, was made by the deceased in her own language i.e. in Assamese and it was recorded in English by him (the Doctor). PW 7 Sri Sukmal Gogoi is the Investigating Officer. He visited the place of occurrence i.e. the rented house of the accused Appellant at 1.30 a.m. of 4.6.2000 after receiving information over phone from one Sankar Basumatary and as directed by the duty officer i.e. S.I. of Police Shri Section Gogoi, S.I. of Police of Sibsagar PS. He could come to know that the accused Appellant Arunjyoti Mali and neighbouring people had taken the deceased to hospital in injured condition to Sharma Nursing Home, Sibsagar. Thereafter in order to inspect the place of occurrence during the day time he looked into the room and took the accused with him. Then he proceeded to Assam Nursing Home in order to take note of the condition of the deceased. On going there he found Rita Mali in serious condition and she was still alive. He requested the doctor of Sharma Nursing Home to render treatment and to record the dying declaration. Accordingly the Doctor recorded the dying declaration of the deceased which is exhibited as Ext. 6 which bears the signature of Doctor Sharma. Thereafter the deceased was taken to Sibsagar Civil Hospital and there also he requested the Doctor to record her dying declaration. The dying declaration was recorded by Doctor T. Rahman, Medical and Health Officer of the said Civil Hospital, Sibsagar which is exhibited as Ext. 3. When the condition of the deceased was worsen she was shifted to Assam Medical College Hospital, Dibrugarh. But she expired before reaching the said Assam Medical College Hospital, Dibrugarh. 6. After the evidence of the prosecution witnesses was completed the Appellant was examined under Section 313 of the Cr PC. He made no statement on the evidence of mental and physical torture committed by him on his deceased wife before the occurrence of the said incident and stated that he was not responsible for her death. He also declined to adduce any evidence to his defense. 7. Mrs. He made no statement on the evidence of mental and physical torture committed by him on his deceased wife before the occurrence of the said incident and stated that he was not responsible for her death. He also declined to adduce any evidence to his defense. 7. Mrs. Talukdar, learned Counsel appearing as amicus curiae for the Appellant submits that the conviction and sentence is entirely based on the evidence of PW 3 who was a minor boy of 7 years at the time of occurrence and 12 years at the time of deposition of statement and as such there is a chance of tutoring by interested person against the Appellant. According to Mrs. Talukdar, the evidence of minor boy can not be a piece of legal evidence and no conviction can be recorded on the basis of such evidence of a minor boy. The prosecution adduced evidence of PW 2 and 4. PW 2 Md. Muzibur Rahman and PW 4 Sri Hiren Das are the neighbours of the accused Appellant but they did not support the story of the prosecution and he was declared hostile. There is no other reliable evidence corroborating the evidence of PW 3 who claims to be an eye-witness but a minor boy of 7 years who was not in a position to understand what was happening at the time of alleged occurrence. This being the position, according to Mrs. Talukdar, learned Amicus Curiae, the prosecution miserably failed to prove its came beyond reasonable doubt to bring home the charge of abatement of suicide by the Appellant and as such the conviction so awarded is liable to be interfered and set aside. 8. On the other hand Smt. Saikia, Addl. P.P. submits that the evidence of PW 3 is consistent and reliable inasmuch as, although he is a minor boy, gave the details of the occurrence and normally stated that he saw the incident with his own eyes. It is also deposed by him that his Appellant father used to come in the night in drunken condition and used to misbehave and torture his mother. On the date of occurrence also his father did the same thing and his mother committed suicide as the mental and physical torture became unbearable for her. 9. Further, Mrs. It is also deposed by him that his Appellant father used to come in the night in drunken condition and used to misbehave and torture his mother. On the date of occurrence also his father did the same thing and his mother committed suicide as the mental and physical torture became unbearable for her. 9. Further, Mrs. Saikia submits that the evidence of other witnesses namely PW 2 and PW 4, although they have been declared as hostile, are not material inasmuch as they are not the eyewitnesses and their statements/deposition against the prosecution would not affect the prosecution case. Moreover, Mrs. Saikia submits that there are dying declarations duly recorded by the doctors in the hospitals. One of such dying declarations has been proved by PW 6, Dr. Tayabur Rahman, who has stated that he recorded the dying declaration as stated by the deceased in the hospital. The prosecution, according to Mrs. Saikia, has been able to prove its case beyond reasonable doubt and as such the learned Sessions Judge rightly passed the impugned judgment and order which requires no interference by this Court. 10. I have perused the case records and the evidence on record produced before this Court. I have also heard and considered the submissions made by the learned Counsel for the Appellant and also the learned Addl. P.P. It is no doubt a case which is solely based on solitary eye-witness of PW 3, a minor boy of 7 years at the time of occurrence. He was present at home and he saw the entire incident, at least to the stage when his mother was going inside the bath room and set fire by herself by pouring kerosene oil on her body. The minor boy has been witnessing his father coming home in the night and torturing her mother after drink. It has affected the mind of the young boy and he could not forget such happenings and therefore the theory is naturally unbelievable. The PW 3, a minor boy had no motive to depose against his father because he has been witnessing the conduct of his father who has been torturing his mother regularly and she become impatient for which she had to take the extreme step of committing suicide. The PW 3, a minor boy had no motive to depose against his father because he has been witnessing the conduct of his father who has been torturing his mother regularly and she become impatient for which she had to take the extreme step of committing suicide. There are decisions rendered by the Apex Court on various occasions that the evidence of child witness can not be brushed aside simply on the ground of his tenderness in age. The conviction can be recorded solely on the basis of the evidence of minor/child witness provided he/she can withstand the cross-examination and if his/her testimony inspires confidence of the Court. In this case, the PW 3 is found to be consistent and withstanding the cross-examination of the defense counsel and inspiring confidence of this Court. Reading the deposition of this witness, I find no suggestion from the defense counsel that this witness could not follow the questions put by the counsel in the Court or he was tutored by some interested elements or witness of the prosecution against the Appellant. There is no suggestion to the effect that he never saw his father (Appellant) used to come home in the night after consuming liquor or in drunken condition and used to torture his mother physically and mentally. 11. Regarding conviction on the basis of witness of a child witness I would refer to the case of Suryanarayana v. State of Kerala as an appropriate case reported in (2001) 9 SCC 129 in which the Apex Court held that if the child withstands the cross-examination and if his testimony inspires confidence so as to rule out possibility of tutoring, it can be relied upon as the sole basis for convicting the accused. In the said case a girl of 4 years at the time of occurrence and 6 years at the time of her deposition was examined by the prosecution was that too without administering oath, and yet the conviction and recorded on the basis of such evidence of a child witness. 12. This being the position, the evidence of PW 3 although minor can not be regarded as tutored one and unreliable. In the case of PW 6, Dr. 12. This being the position, the evidence of PW 3 although minor can not be regarded as tutored one and unreliable. In the case of PW 6, Dr. T. Rahman, no suggestion was put to him by the defence counsel that the deceased never made any dying declaration in the hospital before him or that he did not record the dying declaration. This being the position it can be said that the evidence of PW 6 as regards the dying declaration' has become uncontroverted and it has become a piece of reliable evidence for conviction of the Appellant. 13. The evidence on record has made it is clear that the Appellant gave mental and physical torture to his deceased wife since long before the occurrence and also at the time of occurrence and these are the direct causes of commission of suicide by the deceased. However the Appellant, after the incident tried to save his wife by dousing the flame and taking her to hospital. But this is not enough to reverse the conviction and acquit him. Of course, his normal conduct after the occurrence to save his wife deserves consideration for showing leniency to him in the matter of sentence. In that view of the matter there is no justified ground to reverse the conviction as awarded by the trial Court. Accordingly I am inclined to reduce the sentence from 5 years to 3 years. Accordingly the conviction awarded vide impugned judgment and order dated 14.8.2006 is upheld reducing the sentence to 3 years. 14. This appeal stands rejected with modification in the sentence only as indicated above. The accused Appellant is to serve remaining part of the sentence to complete 3 (three) years term. 15. Before parting with the records I would put in my words of appreciation for Mrs. Talukdar, Amicus Curiae for the service/assistance rendered by her in disposing of this appeal and I direct the State to pay her Rs.5,000/- as her legal fee. 16. Send down the LCR. Appeal dismissed.