JUDGMENT & ORDER : 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. 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 sustained. It is submitted by him that there is no reasonable explanation as to why the ejahar came to be lodged after a lapse of almost 3 months. He has submitted that the deceased had eloped with the appellant No. 2 and the informant was not happy with their marriage and, therefore, the ejahar came to be lodged falsely implicating the appellants. He has relied on the judgment of the Hon’ble Supreme Court in the case of Puran Chand Vs. State of Haryana, reported in (2010) 6 SCC 566 , Pulicherla Nagaraju alias Nagaraja Reddy Vs. He has relied on the judgment of the Hon’ble Supreme Court in the case of Puran Chand Vs. State of Haryana, reported in (2010) 6 SCC 566 , Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of AP, reported in (2006) 11 SCC 444 , Chenda alias Chanda Ram Vs. State of Chhattisgarh, reported in (2013) 12 SCC 110 and Bhajan Singh Vs. State of Haryana, reported in (2011) 7 SCC 421 . 10. Mr. H. Sarma, on the other hand, has submitted that a perusal of the post-mortem report will indicate that the deceased had suffered severe burn injury and the death had occurred on account of the same. He submits that there was muscle wasting over the left lower limb and, therefore, it must be understood that death had occasioned as a result of progression of the burn injury. It is contended by him that the dying declaration was voluntary and free from any blemish or infirmity and, therefore, on the basis of such dying declaration, conviction can be sustained. The burn incident had taken place in the matrimonial house of the deceased and the presence of the appellants having been established at the relevant time, the appellants ought to have explained the circumstances in which such burn injury was sustained by the deceased. However, no such explanation was forthcoming and the appellants merely feigned ignorance as demonstrated by their responses in the examination under Section 313 CrPC. Such failure to give explanation is inconsistent with the plea of innocence put forward by Mr. H.R.A. Choudhury. Accordingly, it is contended that it is well established on the evidence on record that the appellants were the perpetrators of causing burn injury on the deceased. With regard to the delay in lodging the ejahar, he has submitted that as the informant was busy with the treatment of the deceased, there was some delay, which is inconsequential, inasmuch as the allegations were not after-thoughts and the lodging of the ejahar was not with an intention to wreck vengeance on the appellants. He has relied upon a judgment in the case of the Supreme Court in the case of Trimukh Maroti Kirkan Vs. He has relied upon a judgment in the case of the Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681 , to contend that when the offence of murder of wife takes place in the dwelling house of the husband, if the husband does not offer any explanation as to how the wife received injuries, or, offers an explanation which is false, it is a strong circumstance which indicates that he is responsible for commission of the crime. 11. Mr. Azad, learned counsel for the informant adopted the submission of Mr. H. Sarma. 12. We have considered the submission of learned counsel for the parties and have perused the materials on record. 13. It will be appropriate to first consider as to whether the delay in lodging the ejahar has vitiated the trial as contended by Mr. Choudhury. 14. In Bhajan Singh (supra), the Hon’ble Supreme Court held that prompt and early reporting of the occurrence by the informant with all vivid details gives an assurance regarding its true version and that in case there is some delay in filing the ejahar, the informant must give explanation for the same. Delay in lodging the ejahar does not make the informant’s case improbable when such delay is properly explained. 15. In the instant case, the delay in lodging the ejahar was stated to be on account of the fact that the informant was busy with the treatment of the deceased. Materials on record demonstrate that the deceased had suffered deep burn injury and, therefore, we are not inclined to jettison the prosecution case only on the ground of delay in lodging the ejahar. 16. In Chenda (supra), the Hon’ble Supreme Court had the occasion to consider clause ‘thirdly’ of Section 300 IPC as well as Exception to Section 300 IPC to determine whether conduct of the appellant in inflicting the fatal blow was intentional and with knowledge or with knowledge only. 17. In Pulicherla Nagaraju (supra), the Hon’ble Supreme Court emphasized that the question of intention should be considered with care and caution as that will decide whether the case falls under Section 302 or 304 Part I or 302 Part II of IPC. The judgments are not applicable to the facts of this case. 18. 17. In Pulicherla Nagaraju (supra), the Hon’ble Supreme Court emphasized that the question of intention should be considered with care and caution as that will decide whether the case falls under Section 302 or 304 Part I or 302 Part II of IPC. The judgments are not applicable to the facts of this case. 18. PW-1, before recording the dying declaration on 18.11.2013, had issued a certificate, Exhibite-2, which is styled as Mental Status Certificate. He had certified that the patient (meaning thereby the deceased) was mentally in healthy condition. The dying declaration of the deceased, as recorded by the PW-1, reads as follows: “About three months ago perhaps it was Wednesday at about mid-day one known boy of my parents came to our house. He asked me jokingly on the courtyard that now-adays, I did not call him. In reply I told him that after getting married with another person how can I talk to you. After conversation with him for some time he left. So, my husband and mother-in-law suspected me. I was pulled inside our house and they tried to assault me. They did not believe me in spite of my reply that he was known to me. After that my mother-in-law poured kerosene oil on my body and set fire. After that they assaulted me. Then, I came out from the house and ran away. Then, the neighbourers arrived and put off fire from my body. They along with my husband brought me to the Civil Hospital. My mother-in-law caused me burning by setting fire on me.” 19. Though the defence sought to discredit the dying declaration recorded by PW-1 on the ground that in the said certificate, the physical condition of the victim was not elaborated, we do not see much force in such contention. Mental status of a person takes within its fold many facets including the capacity of a person to make a statement. Therefore, specifically not making a reference with regard to physical condition will not vitiate the dying declaration that was recorded. Perusal of the said statement would go to show that the appellant No.1 had poured kerosene oil on the body of the deceased and had set fire on her and, thereafter, both the appellants assaulted her. Therefore, specifically not making a reference with regard to physical condition will not vitiate the dying declaration that was recorded. Perusal of the said statement would go to show that the appellant No.1 had poured kerosene oil on the body of the deceased and had set fire on her and, thereafter, both the appellants assaulted her. The deceased ran out for dear life and, in the process, hearing her hue and cry, the neighbours had gathered, who, along with appellant No. 2, eventually, took her to the hospital. The proximate cause for the assault, as stated by the deceased, was that she had a conversation with a boy which aroused suspicion in the minds of the appellants. 20. In Puran Chand (supra), the Hon’ble Supreme Court had laid down that the Court has to examine a dying declaration scrupulously to find out whether the same is voluntary, truthful and made with a conscious state of mind. Having regard to the fact that the dying declaration was recorded by a doctor, against whom no animus is attributed and further, no family member being present, we are of the opinion that the dying declaration was voluntary and truthful and can safely be relied on. 21. PWs-2 and 3 in their evidence had stated that after discharge from the hospital, the condition of the deceased had deteriorated for which she was again taken to Morigaon Civil Hospital. The prosecution had not produced the discharge certificate and has also not submitted the Admission Slip when she was taken to the hospital on 18.11.2013. The prosecution is silent as to what had happened during the intervening period of nearly 2½ months from the discharge from the hospital. It, however, appears from the materials on record that bed sores had developed, which suggests that the deceased might have been bed-ridden. She was also emaciated as indicated in the post-mortem report. It also came out from the evidence of PW-4 that the burn wounds were healed up and that there were no signs of any other injury. The prosecution has not been able to establish that the cause of death was the burn injury sustained by the deceased. Prosecution has not led any evidence regarding what led to admission of the deceased for the second time in the Morigaon Civil Hospital on 18.11.2013. The prosecution has not been able to establish that the cause of death was the burn injury sustained by the deceased. Prosecution has not led any evidence regarding what led to admission of the deceased for the second time in the Morigaon Civil Hospital on 18.11.2013. In the above background, the evidence of PW-4 that the cause of death was natural cannot simply be brushed aside. In the circumstances, the prosecution case that the burn injury resulted in the death of the deceased is not established and, thus, it is difficult to hold that the appellants had caused death of the deceased. 22. In that view of the matter, we are unable to accept the finding recorded by the learned Trial Court that the accused appellants are guilty of committing offence under Section 302 IPC. 23. However, the matter does not rest as that. 24. As already noticed, charge was also framed under Section 326 IPC against the appellants. 25. Any hurt, which endangers life or which causes the sufferer to be, during the space of twenty days, in severe bodily pain or unable to follow his ordinary pursuits, under clause ‘eighthly’ of Section 320 IPC, comes under the ambit of definition of grievous hurt. Section 326 IPC provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of, amongst others, fire, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 26. We have accepted the dying declaration of the victim and therefore, there is no escape from the conclusion that the appellants had committed grievous hurt as the deceased was in hospital for 25 days as a result of which she was unable to follow her ordinary pursuits. Taking that view, we hold that the appellants are guilty of offence under Section 326/34 IPC. 27. The appellants are in custody from 25.6.2015. In the facts and circumstances of the case, we are of the opinion that ends of justice will be sub-served if the appellants are sentenced to suffer rigorous imprisonment for 5 years along with fine of Rs.10,000/- each, in default, simple imprisonment for 6 months. Ordered accordingly. The period of imprisonment undergone already shall be set off. 28. In the facts and circumstances of the case, we are of the opinion that ends of justice will be sub-served if the appellants are sentenced to suffer rigorous imprisonment for 5 years along with fine of Rs.10,000/- each, in default, simple imprisonment for 6 months. Ordered accordingly. The period of imprisonment undergone already shall be set off. 28. The judgment of the Trial Court is, accordingly, modified as indicated above. 29. Registry will send back the records.