JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 18.10.2004 passed by the learned Sessions Judge Karimganj, in Sessions Case No. 07 of 2004. By the aforesaid judgment and order the three accused/appellants have been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life. Fine of Rs. 10,000 each, in default, to suffer simple imprisonment for one year more has also been imposed on the accused/appellants. 2. The case of the prosecution, in short, is that PW 2, Rahima Begum, mother of the deceased Wahida, had lodged a F.I.R. before the Karimganj Police Station alleging that the accused/appellants and two others had caused the death of her daughter. In the F.I.R. it was mentioned that the accused/appellant Mainul had married the first informant's daughter Wahida after a love affair and that at about 12/1.00 A.M. of 24.12.2001 her daughter was put to death by the accused/appellants after committing torture. In the F.I.R. filed it was specifically mentioned that death of the daughter of the first informant was caused by setting her body on fire. 3. The aforesaid F.I.R. which was lodged with the Kaligaon Police Outpost was forwarded to the Karimganj Police Station after entering the information in the General Diary of the Kaligaon Police Outpost. On receipt of the F.I.R. by the Karimganj Police Station, Karimganj P.S. Case No. 451/2001 under Sections 498A and 304B, IPC was registered. Inquest was held on the dead body which was sent for post mortem examination. Statements of a large number of persons acquainted with the offence were recorded by the Investigating Officer. At the close of investigation charge sheet under Section 304B, IPC was submitted against the accused/appellants. As the offence alleged was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Karimganj by order dated 27.1.2004 committed the case for trial by the Court of Sessions at Karimganj. In the Sessions Court charge under Section 302, IPC was framed against the three accused/appellants who pleaded not guilty and wanted to be tried. In the course of the trial 13 witnesses were examined on behalf of the prosecution. Statements of the accused were also recorded under Section 313, Cr.PC. In the Sessions Court charge under Section 302, IPC was framed against the three accused/appellants who pleaded not guilty and wanted to be tried. In the course of the trial 13 witnesses were examined on behalf of the prosecution. Statements of the accused were also recorded under Section 313, Cr.PC. Two defence witnesses including the accused/appellant Mainul Haque were examined; Thereafter, at the conclusion of the trial the learned Sessions Judge has convicted and sentenced the accused/appellants, as aforesaid, giving rise to the present appeal. 4. We have heard Sri M. H. Rajbarbhuiya, learned Counsel for the accused/appellants and Sri K.C. Mahanta, learned Public Prosecutor, Assam. 5. A brief narration of the relevant part of the evidence tendered by the prosecution witnesses may be made at this stage. PW 1, Dr. Kinkor Paul, was working in the Karimganj Civil Hospital at the relevant point of time. In his deposition PW 1 has stated that he had examined the deceased Wahida in the emergency ward of the Civil Hospital and found 80% burn injuries on her body. According to PW 1, at that time, the patient, i.e., Wahida (deceased) was not in a position to speak. PW 2, Mustt. Rohima Begum, is the mother of the deceased Wahida. According to PW 2, Wahida was married to the accused/appellant Mainul on 15th of August, 2001. According to PW 2 at about 1/1.30 A.M. of 24.12.2001 accused/appellant Mainul and one Kadir had come and told her that Wahida had been suffering from stomach pain. Accordingly, PW 2 alongwith her son Imran (PW 4) went with accused Mainul to their house. PW 2 has deposed that just before entering their house accused Mainul informed her that Wahida had been burnt. According to PW 2, on going to Mainul's house she found Wahida lying on plantain leaves on the bed. PW 2 did not see any burn injury in her hands and hair. According to PW 2 she had noticed burn injuries on other parts of the body of her daughter. Thereafter, according to PW 2 she along with Mainul and his mother (accused/appellant Laila Begum) took Wahida to Karimganj Civil Hospital. PW 2 has deposed that at that point of time Wahida had lost her voice. According to PW 2 when she had gone to Mainul's house she had asked her daughter how she had suffered the burn injuries. Thereafter, according to PW 2 she along with Mainul and his mother (accused/appellant Laila Begum) took Wahida to Karimganj Civil Hospital. PW 2 has deposed that at that point of time Wahida had lost her voice. According to PW 2 when she had gone to Mainul's house she had asked her daughter how she had suffered the burn injuries. PW 2 has deposed that initially her daughter wanted to drink some water and thereafter told her (PW 2) that she would narrate later how she had been burnt. PW 2 has further deposed that her daughter informed her that she would narrate later how she had been tied and set on fire. According to PW 2, Wahida passed away on the same day, i.e., 25th December, 2001. PW 2 had also deposed that after marriage her daughter Wahida was not allowed to visit their house as the appellants believed that they belong to a lower caste. PW 3, Md. Abdul Rana, is a neighbour. According to this witness, on the night of occurrence at about 11.30/12 when he was sleeping he heard wailing and hue and cry. Coming out he went westward and thereafter hearing a scream from the north he went to the house of accused persons. PW 3 has deposed that on reaching the verandah of the house of Mainul he saw accused/appellant Mainul and his mother wailing and that Mainul and his mother were holding the deceased. PW 3 has further deposed that the deceased (Wahida) told him that she should be taken to the hospital. PW 3, at that stage, was declared hostile and cross-examined by the prosecution as well as by the defence. PW 4, Imran Ahmed, is the son of PW 2 and the brother of the deceased. He has corroborated PW 2 with regard to the information received about his sister and going to the house of accused Mainul along with PW 2. According to PW 4, his mother had asked Mainul's mother as to how the deceased had caught fire to which there was no reply. PW 4 has also deposed that while he was in the house of accused Mainul he had heard PW 3 telling the accused/appellant Asaddar Ali (father of accused Mainul) that if Wahida is to die they will be in difficulty. PW 5, Dr. PW 4 has also deposed that while he was in the house of accused Mainul he had heard PW 3 telling the accused/appellant Asaddar Ali (father of accused Mainul) that if Wahida is to die they will be in difficulty. PW 5, Dr. Muslim Uddin Ahmed, had attended to the deceased Wahida in the Kaliganj Mini PHC. According to this witness, as the condition of the patient was very serious he referred her to the Karimganj Civil Hospital for better management. In cross-examination, PW 5 has stated that the victim may have been in a position to make a statement. PW 6, Nazmul Islam, is a cousin of the deceased Wahida. According to this witness, accused Mainul and Kadir came and informed PW 2 that the deceased had been suffering from stomach pain. On getting the said information, PW 2, according to this witness, went to see her daughter along with accused Mainul. PW 6 has deposed that he followed them in a bi cycle. According to this witness, on reaching the house of accused Mainul he saw Wahida suffering from almost 90% burn injuries. This witness has also deposed that on being asked accused Mainul told him that while he was sleeping all of a sudden on feeling heat he woke up and saw Wahida on fire. PW 7, Abdul Manaf; PW 9. Azizul Haque and PW12, Shalikur Rahman were examined by the prosecution with regard to the inquest held on the dead body of the deceased and the investigation carried out by the police. All the three witnesses have been declared hostile by the prosecution. PW 8, Dr. Swapan Kumar Sen, performed the autopsy on the dead body of Wahida on 26.12.2001. The findings of post mortem may be extracted below: On external appearance An average built Muslim female aged about 19 years whose rigor mortis is present eyes closed mouth half open. There is one 1/2" x 1/4" x semi round depression on the dorsum of the left wrist and also with ventral aspect of the right wrist which is round in shape. There is extensive burn on the face. Scalp on the forehead, anterior chest both arms and hands, both legs, posterior trunk of the body, buttock area except perineum and hair of head. Burn is about 80%. Burn is black in colour. There is extensive burn on the face. Scalp on the forehead, anterior chest both arms and hands, both legs, posterior trunk of the body, buttock area except perineum and hair of head. Burn is about 80%. Burn is black in colour. Cranium and Spinal Canal Scalp, Skull, vertebrae - as in 1, membrane - contested, Bran and Spinal cord - congested. Thorax Walls, ribs and cartilages - as in 1. Pleurae - congested. Larynx and trachea - Congested and contain carbon particles, Right lung, left lung, pericardium - congested, Heart - congested and chamber contain death blood. Vessels - contained blood. Abdomen Walls - as in 1, peritoneum - congested, mouth, pharynx - oesophagus - congested and carbon particles present, stomach and its contents - congested and empty. Small intestine and its contents - congested and empty. Liver, spleen and kidney - congested, Bladder congested and empty, organs of generation, external and internal - pale uterus is having about two months pregnancy. Muscles, Bones and Joints As in 1. Burn was ante mortem. In my opinion death was due to burn shock caused by ante mortem burn. Ext-4 is the post mortem report and Ext-4(1) is my signature. The evidence of PW 8 tendered on the basis of the post mortem report (Ext-4) may be specifically noticed with reference to the injuries found on the left and right wrists of the deceased which are mentioned above. PW 10, Sri Sushen Chandra Das, was working as the Bench Assistant to the Additional Chief Judicial Magistrate, Karimganj at the relevant point of time. He has proved, inter alia, the statements of PW 2 and PW 4 recorded under the provisions of Section 164, Cr.PC which has been exhibited as Exts-5 and 7 in the case. PW 11, Sri Shasanka Nath, ASI, of police had carried out the main part of the investigation of the cases. In his deposition he has narrated what was stated to him by the persons examined in the course of investigation including the statements made by PW 2. PW 11, Sri Shasanka Nath, ASI, of police had carried out the main part of the investigation of the cases. In his deposition he has narrated what was stated to him by the persons examined in the course of investigation including the statements made by PW 2. A reading of the evidence of the said witness, i.e., PW 11 as well as the statement of PW 2 recorded under Section 161, Cr.PC, in original, would go to show that PW 2 did narrate to the police that her daughter had told her that she would narrate to her later as to how she had been tied assaulted and burnt. PW 13, Sri M.H. Borlaskar, had conducted the initial part of the investigation. 6. In their statements recorded under Section 313, Cr.PC the accused persons had plainly denied their involvement in the occurrence. 7. DW 1 is the accused Mainul himself. A reading of his evidence indicates that on the night of the occurrence while he was sleeping he woke up feeling heat and saw Wahida on fire. According to this witness, he went to Kaliganj to inform his father who was in the shop. DW 1 has also deposed that after marriage Wahida had repeatedly asked her mother and other family members to come and visit her but such visits were not forthcoming. 8. DW 2, Abdul Noor, is a neighbour and the brother of PW 3, Abdul Rana. In his deposition he has stated that on the night of occurrence hearing Mainul wailing he went to his house and saw that the deceased had suffered extensive burn injuries. According to DW 2, on being asked, the deceased informed him that she had burnt herself since her parents had not visited her after marriage. 9. From the evidence tendered by the prosecution witnesses the following circumstances stand proved and established and it is on the basis of the said circumstances that the culpability of the accused/appellants will have to be judged. The incident had taken place at mid night in the house of the accused at a time when, at least, the accused/appellant Mainul and his mother Laila Begam were present. From the deposition of PW 2 it appears that the deceased had informed PW 2 that she would narrate, later, as to how she was tied and burnt. The incident had taken place at mid night in the house of the accused at a time when, at least, the accused/appellant Mainul and his mother Laila Begam were present. From the deposition of PW 2 it appears that the deceased had informed PW 2 that she would narrate, later, as to how she was tied and burnt. However, before the said information could be parted with Wahida had died. The post mortem examination had shown that there were marks of depression on the left as well as right wrists of the deceased. Further from the deposition of PW 3 it is clear that the accused Mainul and his mother had been holding the deceased when he had reached the verandah of the house of accused Mainul. That apart, the evidence of the prosecution witnesses clearly indicate that the accused/appellants had not immediately taken Wahida to the hospital though she had suffered extensive burn injuries and instead had gone to the house of PW 2 to inform her of the incident. 10. It has been argued by Sri Rajbarbhuiya, learned Counsel for the appellants that the version unfolded by PW 2 with regard to what was stated by the deceased to her does not find corroboration from the evidence of PW 4 who had gone to Mainul's house along with her. That apart, according to learned Counsel, the fact that the accused had taken Wahida to the hospital and the accused Mainul had informed PW 2 of the incident clearly points to their innocence which facts must be duly taken note of by the court in determining the culpability of the accused. The learned Counsel has also pointed out that the family of the victim must be understood to have some kind of enmity with the family of the accused inasmuch as from the deposition of PW 2 it is clear that the family of the accused had treated the victim and her family to as belonging to a lower caste. 11. We have considered the entire evidence on record as well as the submissions advanced on behalf of the accused/appellants. We have also heard the learned Public Prosecutor who has contended that the circumstances proved by the evidence on record are sufficient to implicate the accused/appellants as the persons responsible for the offence. 11. We have considered the entire evidence on record as well as the submissions advanced on behalf of the accused/appellants. We have also heard the learned Public Prosecutor who has contended that the circumstances proved by the evidence on record are sufficient to implicate the accused/appellants as the persons responsible for the offence. We have also considered the versions unfolded by the defence witnesses which is to the effect that the deceased had set fire to herself as she had been depressed on account the fact that her parents did not visit her after her marriage. 12. The evidence of PW 2 to the effect that her daughter had told her that she was tied and burnt and that she would reveal the details later is consistent with the statement made by the aforesaid witnesses under Section 164, Cr.PC which has been exhibited as Ext-5 in the case. Our reading of the statement of PW 2 as recorded in the course of investigation also confirms the aforesaid fact. In other words, the above version of PW 2 had been consistent all along. If that be so, there is no reason why the statement made by the victim to PW 2 that she was tied and burnt cannot be treated as a dying declaration. The solemnity that is attached to a dying declaration would make the same more credible than the defence version that the deceased had set fire to herself. The fact that the deceased was tied as narrated by her in her dying declaration to her mother (PW 2) finds support from the report of the post mortem examination which indicates depressed wounds on the left as well as right wrists. The fact that the incident took place at midnight in the house of the accused and nobody else was present at that time in the house is another strong piece of evidence against the accused. The conduct of the accused in not taking the victim to the hospital straight-away is another fact that cannot escape the court's notice. Taking all the aforesaid facts together we are of the firm view that the prosecution in the present case had succeeded in establishing the charge against accused Mainul and his mother Laila Begam. At the same time, we do not find sufficient material showing the involvement of the father of the accused Mainul, i.e., accused/appellant Asaddar Ali. Taking all the aforesaid facts together we are of the firm view that the prosecution in the present case had succeeded in establishing the charge against accused Mainul and his mother Laila Begam. At the same time, we do not find sufficient material showing the involvement of the father of the accused Mainul, i.e., accused/appellant Asaddar Ali. His presence at the place of the occurrence at the time when the incident had occurred has not, been established by the evidence on record. We are, therefore, of the view that his conviction, as ordered by the learned trial court, should not be sustained. 13. Before parting with the record, we would like to observe that in the present case no charge under Section 34, IPC was framed against the accused persons. Section 34, however, does not create any specific offence and merely deals with a case of joint or common liability. Taking into account the evidence on record and the decision of the Apex Court in Garib Sing v. State of Punjab (1972) 3 SCC 418 , we are of the view that the accused/appellants Mainul Haque and Laila Begam should have been convicted under Section 302/34, IPC. We accordingly convict the accused/appellants Mainul Haque and Laila Begam, as aforesaid, while acquitting the accused/appellant Asaddar Ali. 14. In the result, the appeal is partly allowed to the extent indicated above. The accused/appellant Laila Begum who is on bail shall surrender forthwith to serve out the remaining part of the sentence. The bail bond of accused/appellant Asaddar Ali is discharged. 15. Send down the LCR.