1 2025:CGHC:44205-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 07.08.2025 Judgment Delivered on : 01.09.2025 CRA No. 384 of 2018 Bharat Bhushan Sinha S/o Budhram Aged About 24 Years R/o Village Kharjhiti, P. S. Ghumka, Distt. Rajnandgaon Chhattisgarh ... Appellant versus State of Chhattisgarh Through P. S. Ghumka, Distt. Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh --- Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Abhishek Sinha, Senior Advocate assisted by Mr. Ghanshyam Patel, Advocate For Respondent/State : Mr. Ashutosh Shukla, Panel Lawyer Hon'ble Smt. Rajani Dubey, Judge Hon'ble Shri Amitendra Kishore Prasad , Judge C A V Judgment Per Amitendra Kishore Prasad, J. 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 08.11.2017 passed by learned First Additional Sessions Judge, YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.09.02 18:37:05 +0530 2 Rajnandgaon, District – Rajnandgaon (C.G.) in Sessions Trial No.43/2016, whereby the learned trial Court has convicted the appellant under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life and fine of Rs.10,000/-, in default of payment of fine amount, additional rigorous imprisonment for one year. 2. The prosecution case, as unfolded during the investigation and trial, is that on 02.02.2016, at about 11:30 p.m., in Village Khairjhiti under the jurisdiction of Police Station Ghumka, District Rajnandgaon, the accused Bharat Bhushan Sinha, being the husband of the deceased Tukeshwari Sinha, allegedly subjected her to cruelty and harassment for or in connection with the demand of dowry. It was alleged that he caused her death by pouring kerosene oil on her and setting her on fire, otherwise than under normal circumstances, within seven years of marriage. In the alternative, it was alleged that the accused intentionally burnt the deceased by pouring kerosene oil, knowing that such an act was likely to cause death, or that it was so imminently dangerous that it would, in all probability, cause death, or instigated her to commit suicide, resulting in her setting herself ablaze. 3. Further, the prosecution case was that the deceased, aged about 19 years, had been married to the accused about one year prior to the incident. Since the marriage, the accused allegedly used to beat her, and a village meeting was held on 28.01.2016 where the 3 accused admitted his fault and apologised. On 29.01.2016, under suspicious circumstances, the deceased sustained burn injuries and was admitted to the District Hospital, Rajnandgaon, from where she was referred to Mekahara, Raipur. She succumbed to her injuries on 02.02.2016. Thereafter, wheels of investigation start running, and in this regard, Panchnama was prepared vide Ex.P/1 and Nazari Naksha was prepared vide Ex.P/2. Merg intimation was recorded vide Exs.P/8 and P/8A as well as P/9. Crime details from was prepared vide Ex.P/10 and First Information Report was registered vide Ex.P/11. The postmortem of the dead body was conducted by Dr. S.K. Bagh (PW-14) and the postmortem revealed the cause of death as cardiac arrest due to burn injury vide Ex.P/13 and Ex.P/14. On the basis of the inquest, a case under Section 304-B IPC was registered as Crime No.19/2016 against the accused. During the investigation, the Investigating Officer prepared the site map, recorded statements of witnesses, conducted seizure proceedings, and arrested the accused. 4. After completion of investigation, a charge sheet was filed before the Judicial Magistrate First Class, Rajnandgaon, from where it was committed to the Court of Sessions Judge and subsequently transferred to the Court of First Additional Sessions Judge, Rajnandgaon for hearing and disposal in accordance with law. The charges under Section 304-B IPC, in the alternative Section 302 IPC, and in the alternative Section 306 IPC, were framed 4 against the accused. 5. In support of its case, the prosecution has examined as may as 20 witnesses as PW-1 to PW-20 and exhibited 25 documents as Ex.P/1 to Ex.P/25, whereas in defence, appellant/accused has not examined any witness but exhibited four documents i.e. Ex.D/1 to Ex.D/4. 6. When the accused was examined under Section 313 Cr.P.C., he denied having not produced any witness in their defence, claiming that he was innocent and that he had been falsely implicated. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 08.11.2017, convicted and sentenced the accused/appellant as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/appellant under Section 374(2) of Cr.P.C. 8. Mr. Abhishek Sinha, learned Senior Counsel, assisted by Mr. Ghanshyam Patel, learned counsel for the appellant, submitted that the judgment of conviction and sentence passed by the learned trial Court is bad both on facts and in law. It was argued that the trial Court, while passing the impugned judgment, failed to appreciate that the prosecution had not proved its case beyond reasonable doubt. The essential ingredients of motive and intention, required to establish an offence under Section 302 IPC, were neither proved nor established. It is further submitted that 5 there was no direct evidence against the appellant and the entire prosecution case rested solely on the oral dying declaration allegedly made by the deceased, Tukeshwari Sinha, to Laxman Sinha (PW-3), her brother-in-law. Conviction solely on the basis of such an oral dying declaration, without any corroborative evidence, cannot be sustained, particularly when the said declaration is highly suspicious and unreliable. It was pointed out that the deceased did not make any such statement to her mother but allegedly disclosed the facts only to her brother-in-law, which casts serious doubt on its credibility. It is contended that for an oral dying declaration to be accepted, it must be voluntary, blemish-free, and trustworthy. In the present case, there was no certification by the attending doctor regarding the mental fitness of the deceased at the time of making the alleged statement. In these circumstances, the impugned judgment of conviction and the sentence imposed deserve to be set aside as being contrary to the evidence and material available on record. 9. Learned Senior Counsel placed reliance upon several judicial pronouncements to contend that the prosecution version regarding the dying declaration was unreliable. He referred to Balbir v. Vazir and others and analogous cases, (2014) 12 SCC 670; Ramsai and others v. State of M.P., 1994 Cr.L.J. 138; Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310; and Ramesh Prasad v. State of Bihar, (1999) 9 SCC 433, to emphasise that unexplained delay in the disclosure of the fact of a 6 dying declaration affects its credibility. 10. He further relied on State of Rajasthan v. Sharvan Ram and another, (2013) 12 SCC 255, and Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 255, to submit that a dying declaration, when made to an interested witness, requires corroboration before it can be safely relied upon. 11. On the issue of the necessity of medical certification to prove the fit mental condition of the deceased at the time of making a dying declaration, reliance was placed upon Arjun Singh Rajput v. State of C.G., 2025 SCC OnLine Chh 2039, and Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458. 12. To contend that a dying declaration is a weak piece of evidence and must inspire the confidence of the Court in its correctness, learned Senior Counsel referred to Irfan alias Naka v. State of Uttar Pradesh, 2023 SCC OnLine SC 1060; Sitaram Ravi v. State of C.G. (CRA No.499/2025, decided on 07.08.2025); Waikhom Yaima Singh v. State of Manipur, (2011) 13 SCC 125; Darshana Devi v. State of Punjab, 1995 Supp (4) SCC 126; and Janmajay @ Dhodo v. State of C.G. (CRA No.589/2018, decided on 07.02.2023). 13. 13. He also relied upon State of Rajasthan v. Prithivbi Raj, 1995 Supp (3) SCC 410, to contend that the benefit of doubt ought to be extended to the accused, and on Sujit Biswas v. State of Assam, (2013) 12 SCC 406, as well as Irfan alias Naka (supra), 7 to submit that suspicion, however grave, cannot take the place of proof, in support of his contentions. 14. Mr. Ashutosh Shukla, learned Panel Lawyer appearing for the State/respondent, supported the impugned judgment and submitted that the learned trial Court had rightly appreciated the evidence on record and convicted the appellant. He contended that the prosecution had successfully proved its case beyond reasonable doubt through cogent and reliable evidence. The oral dying declaration made by the deceased to Laxman Sinha (PW-3) was consistent, voluntary, and trustworthy, and there was no reason for the witness to falsely implicate the appellant. It was further argued that minor omissions or contradictions, if any, did not go to the root of the prosecution case. The absence of a formal medical certification regarding the mental fitness of the deceased at the time of making the statement was not fatal, as the evidence of the witness and the surrounding circumstances clearly established that she was in a fit state to speak. Therefore, the conviction and sentence awarded by the trial Court warranted no interference. 15. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 16. The appellant has solely been convicted on the basis of oral dying declaration and there is no other piece of evidence, no legal 8 evidence much less oral and circumstantial evidence to convict the appellant except the aforesaid dying declaration. 17. At this stage, it would be appropriate to notice Section 32 (1) of the Evidence Act which states as under: - “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence,or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— (1) when it relates to cause of death.— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. xxx xxx xxx” 9 18. Section 32(1) of the Evidence Act is famously referred to as the“dying declaration” section, although the said phrase itself does not find mention under the Evidence Act. Their Lordships of the Supreme Court have considered the scope and ambit of Section 32of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”: “21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:- (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide,provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal 10 application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the 11 statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore,admissible. The distance of time alone in such cases would not make the statement irrelevant.” 19. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana, (2012) 10 SCC 763, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the Supreme Court held that statement of the deceased recorded by the doctor is relevant under Section 32 of the Evidence Act and observed as under: - “14. In the facts of the present case, we find that PW 7, the Medical Officer of the Civil Hospital, examined the case of the deceased on 6-8-1992 at 6.30 a.m. and he has clearly stated in his evidence that on examination she was conscious and that there were 12 superficial to deep burns all over the body except some areas on feet,face and perineum and there was smell of kerosene on her body. He also stated in his evidence that the deceased was brought to the hospital by her husband Kala Ram (Appellant 1). He has proved the bed-head ticket pertaining to the deceased in the hospital (Ext. DD) as well as his endorsement at Point ‘A’ on Ext. DD, from which it is clear that he was told by the patient herself that she sustained burns while cooking meals on a stove. This statement of the deceased recorded by PW 7 is relevant under Section 32 of the Evidence Act, 1872 which provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.” 20. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi), (2020) 11 SCC 489, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: - “21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and 13 reliability could be usefully summed up as under:- 21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court. 21.2.The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying 14 declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” 21. Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, is made by a person as to the cause of her death, or as to any of the circumstances of the transaction which resulted in her death, in cases in which the cause of that person's death comes into question, such statement is relevant. The Supreme Court in Sharad Birdhichand Sarda (supra) clearly held that Section 32 is an exception to the rule of hearsay and makes admissible, the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to the death. The decision of the Supreme Court in Sharad Birdhichand Sarda (supra) has further been 15 followed by the Supreme Court in the matter of Kans Raj v. State of Punjab, AIR 2000 SC 2324 reviewing the earlier authorities. 22. Recently, the Supreme Court in the matter of Irfan alias Naka (supra) has considered certain parameters to trust whether a dying declaration could be acted upon solely for securing conviction or not. It was observed as under:- :- “60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricta sensu accepted, rather the general course of action has been that Judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is doing the duty of the court to see the extent to which the dying declaration is entitled to credit. 61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone. 16 62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:- (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity" (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? 17 (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself manifestation/fiction of the dying person's imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been Impossible for the deceased to make a dying declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant. 64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the 18 dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful. 65. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" in para 13 has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance 19 between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "mav be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense." 66. It may be true as said by this Court, speaking through Justice Krishna Iyer in Dharm Das Wadhwani v. State of Uttar Pradesh, (1974) 4 SCC 267, that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff 20 and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct. Even applying this principle, we have a doubt as regards the complicity of the appellant- convict in the crime.” 23. Now, the question would be, whether the oral dying declaration given by the deceased was true and voluntary and conviction can be based upon it without corroboration? 24. The Supreme Court in the matter of Jayamma and another v. State of Karnataka, (2021) 6 SCC 213, has considered the case of Chacko v. State of Kerala, (2003) 1 SCC 112 and held as under: - “14.2. In Chacko, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in 21 the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded “patient conscious, talking” in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.” 25. Laxman Sinha (PW-3) has deposed in his evidence that he knew the accused Bharat Bhushan, who was present in court, as well as the deceased Tukeshwari, who was his sister-in-law. About 7–8 months prior to the incident, Tukeshwari had been married to Bharat Bhushan. He stated that he came to know about the incident when he received a telephone call from village Ghorda. Arjun Sinha informed him that Rani alias Tukeshwari had been admitted to Mekahara Hospital, Raipur, due to burn injuries. Thereafter, he went to his maternal uncle Yashwant Sinha’s house at Diwanbhedi. Along with Yashwant Sinha, his other maternal uncle Arjun Sinha, brother-in-law Shivnandan, and Arjun Sinha’s son (whose name he did not remember), they travelled by train to Raipur and reached Mekahara Hospital. Upon reaching, Yashwant Sinha telephoned Rajkumari, the mother-in-law of the deceased, to ascertain the ward in which Tukeshwari was admitted. As they 22 approached the ward, they saw Bharat Bhushan coming out, holding a small vial of blood in his hand. They were permitted to meet the deceased one by one. When his turn came, the ward was being cleaned, so he came out. Later, he saw Bharat Bhushan looking for a place to get the blood tested, and he accompanied him for that purpose. On returning to the ward, Bharat Bhushan again went out. At that time, PW-3 remained near the deceased and asked her how she had sustained burn injuries. According to PW-3, Tukeshwari remained silent for about 5–7 minutes. He then remarked to her that she had been so beautiful, and after such burns, her husband might not like her. On hearing this, Tukeshwari narrated the incident to him. She told him that after returning home from Rajnandgaon, Bharat Bhushan had asked her for kerosene oil. She brought one capful, but Bharat Bhushan told her to bring the whole gallon, stating that his brother had beaten him a lot because of her and that he did not wish to live. Saying this, he slightly opened the cap of the gallon and began sprinkling kerosene oil on himself. When she tried to snatch the gallon away, Bharat Bhushan poured the kerosene over her head. She began wiping her face, her eyes were closed at the time, and there was a fire burning in a nearby stove. Bharat Bhushan took the fire from the stove and set her on fire. He then turned on the sound system and left the room. As she cried for help, Bharat Bhushan returned and poured a pot of water over her. After this, they changed her sari and took her to a village 23 doctor. The deceased further told PW-3 that when the village doctor said that no treatment was available there, Bharat Bhushan started taking her to Rajnandgaon Hospital, and on the way, he called his brother Chhanbu Sinha and told him that “the work is done.” PW-3 stated that they returned to Diwanbhedi from Raipur the same day. At about 10:00 p.m., he called his mother-in-law Rajkumari to enquire about Rani and was told that she was sleeping. Around 11:00–11:30 p.m., Rajkumari called Yashwant Sinha and informed him that Rani had died. The next morning, they went to Khairjhiti, arriving at about 10:00 a.m. In Khairjhiti, they called the Kotwar and Patel and went with them to Ghumka Police Station to lodge a report. When the police did not register the report, they wrote out an application. They then returned to Khairjhiti, where PW-3 narrated to Omprakash Sinha, Yashwant Sinha, Arjun Sinha, and his brother-in-law Sukhnandan whatever the deceased had told him. He further stated that after the cremation, on receiving a call from Ghumka Police Station, they all went there and his statement was recorded. 26. In cross-examination, he has stated that he came to know about Tukeshwari’s burning incident only three days later, on 1.2.2016, through Arjun and Yashwant Sinha, and not from the persons who were with her at the time of the occurrence. He admitted that she survived for four days after the burn injuries and was continuously treated by her in-laws, who made genuine efforts to save her, 24 including shifting her from Rajnandgaon to Raipur for better treatment. He agreed that the accused and his family members were arranging blood, tests, and other medical requirements during this period. The witness admitted that although Tukeshwari allegedly told him that Bharat Bhushan burnt her, he neither informed the police post at the hospital nor lodged any report at the police station, explaining that he thought she might recover. He further acknowledged that prior to the incident, in the two meetings he had with her after her marriage, she never complained of assault, abuse, or disputes with her husband. He confirmed that the accused’s family performed her funeral rites. He denied the defence suggestion that Tukeshwari had committed suicide or that his testimony was motivated by affection for her and animosity towards the accused, maintaining that she disclosed the incident to him in the hospital. 27. It is well-settled law that oral dying declaration is a weak kind of evidence. In the matter of Darshana Devi (supra) with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. 28. Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh (supra) has held that there can be no dispute that the dying declaration can be the sole basis for conviction, 25 however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence. 29. Very recently, the Hon’ble Supreme Court in the matter of Uttam v. State of Maharashtra, (2022) 8 SCC 576, while dealing with the issue of oral dying declaration, has observed as under :- “11. Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872 (for short, “the Evidence Act”) states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that ‘hearsay evidence is 26 inadmissible’ and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy. 12. In Kundula Bala Subrahmanyam and Another v. State of Andhra Pradesh, (1993) 2 SCC 684, this Court had highlighted the significance of a dying declaration in the following words : “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross- examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the 27 causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.” 13. In Shudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569, this Court had opined that once a dying declaration is found to be reliable, it can form the basis of conviction and made the following observations : 20. The “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then 28 the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.” 14. In Paniben (Smt.) v. State of Gujarat, (1992) 2 SCC 474, on examining the entire conspectus of the law on the principles governing dying declaration, this Court had concluded thus : “18. …….. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P., (1976) 3 SCC 104) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav,(1985) 1 SCC 552 ; Ramawati Devi v. State of Bihar, (1983) 1 SCC 211). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618). 29 (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P., (1974) 4 SCC 264) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P., 1981 SCC (Cri) 645) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., (1981) 2 SCC 654) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1981 SCC (Cri) 364) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1979 SCC (Cri) 519). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P., 1988 SCC (Cri) 342). 30 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, (1989) 3 SCC 390).” 18. In Sher Singh and Another v. State of Punjab, (2008) 4 SCC 265, this Court has held thus : “16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross- examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the 31 deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.” 22. However, if a dying declaration suffers from some infirmity, it cannot be the sole basis for convicting the accused. In those circumstances, the court must step back and consider whether the cumulative factors in a case make it difficult to rely upon the said dying declaration. In this context, it would be profitable to refer to Nallapati Sivaiah v. SDO, (2007) 15 SCC 465, wherein this Court held as under : “46. It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the 32 accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of the Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement. It is for that reason non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the dying declarations attains some significance. It is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a dying declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case. xxxx xxxx xxxx 52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration—be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper 33 conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.” 23. In Arvind Singh v. State of Bihar, (2001) 6 SCC 407, this Court has held that dying declaration should be dealt with care and caution and corroboration thereof, though not essential, is expedient in order to strengthen the evidentiary value of the declaration. Even where independent witnesses may not be available, all the precautions should be taken when it comes to acceptance of such a statement as trustworthy evidence. In other words, even though direct evidence may not be available, circumstantial evident without a break in the chain of events, would add weight to the evidentiary value of the dying declaration. 24. The principles governing the circumstances where the courts can accept a dying declaration without corroboration, have been dealt with extensively in Khushal Rao v. State of Bombay, AIR 1958 SC 22 and for ready reference, reproduced as under : “16. On a review of the relevant provisions of the Evidence Act and of the decided 34 cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of 35 the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” 25. The credibility of a dying declaration recorded by the Magistrate has also come up for consideration in several cases and it has been held that a Magistrate being an uninterested witness and a respected officer and there being no circumstances or material to suspect that he would have any animus against the accused or would in any way be interested for fabricating a dying declaration, such a declaration recorded by the Magistrate, ought not be doubted. Absence of corroborative evidence for convicting an accused based on a dying declaration has been a matter of discussion in several cases [Ref.: Munnu Raja (supra), Paniben (Smt.) (supra), Ram Sagar Yadav (supra), Ramawati Devi (supra) and Veerpal (supra)]. 36. In Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 232, cited by 36 learned counsel for the appellant, this Court had declined to accept the testimony of an interested witness who happened to be the mother of the victim, in the absence of any corroboration from an independent witness including the Medical Officer who was attending to the victim, to prove that the victim had regained consciousness when the mother had met him in the hospital and had named the accused as the assailant along with two other associates. An additional factor that weighed with the court for rejecting the testimony of the mother was that she had not stated so in her statement recorded by the Police under Section 161 Cr.P.C. and it was for the first time before the Court that she had made such a statement. Holding that the oral dying declaration made by the deceased ought to be treated with care and caution, since the maker of the statement cannot be subjected to any cross-examination, the Court found fault with the High Court and trial Court for having accepted the said oral dying declaration allegedly made by the deceased to her mother, an interested witness, when there was nothing to show that the deceased was in a fit condition to make an oral declaration to his mother. 37. In Poonam Bai v. State of Chhattisgarh, (2019) 6 SCC 145, a similar view was taken by this Court and it was held thus: “16. As far as the oral dying declaration is concerned, the evidence on record is very 37 shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (PW 2), Pilaram Sahu (PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of PWs 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.” 30. Reverting to the facts of the present case, in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above stated judgments (supra) with regard to the evidentiary value of oral dying declaration as the basis for conviction, it is quite vivid that in the instant case, the deceased is said to have given oral dying declaration to his brother-in-law 38 Laxman Sinha (PW-3) and upon careful perusal of the statement of Laxman Sinha (PW-3), it becomes evident that his testimony, when examined in the light of the surrounding circumstances and legal requirements, does not inspire the degree of confidence necessary to uphold the conviction of the appellant because Firstly, Laxman Sinha (PW-3) himself admitted that he came to know about the incident only three days after it had occurred, that too through persons who were not eyewitnesses to the occurrence, namely Arjun and Yashwant Sinha. This delay in receiving information, without any reasonable explanation, inherently weakens the probative value of his statement; Secondly, the witness concedes that the deceased, Tukeshwari, survived for four days after the incident and was consistently provided medical treatment by her in-laws. He admits that Bharat Bhushan, the appellant, made efforts to save the deceased by pouring water on her at the time of the incident, taking her first to Rajnandgaon hospital, and subsequently shifting her to Raipur hospital when higher medical attention was required. He also acknowledged that the appellant and his family were actively arranging blood and tests during her treatment. This conduct is inconsistent with that of a person who intended to cause her death and instead suggests attempts to preserve her life; and Thirdly, though PW-3 claims that the deceased implicated the appellant, he admittedly did not inform the police present in the hospital, nor did he lodge a report at the nearest police post or 39 station, despite admitting in cross-examination that it was necessary to do so. His voluntary explanation that he refrained from lodging a complaint as he thought the deceased would recover, is highly improbable and casts serious doubt on the spontaneity and truthfulness of the alleged disclosure. 31. Moreover, Laxman Sinha (PW-3) further admitted that in the two occasions he met the deceased after her marriage and before the incident, she never complained of harassment, cruelty, or ill- treatment at the hands of the appellant. Such silence, when contrasted with the gravity of the later allegation, creates a gap that weakens the prosecution case. 32. Additionally, a critical legal deficiency emerges from the fact that his version is not supported by any medical evidence certifying the fitness of the deceased to make a dying declaration. It is settled law, as laid down in Heikrujam Chaoba Singh (supra) and reaffirmed in Irfan alias Naka (supra) that when the mental and physical condition of the declarant is in question, certification by a medical practitioner is vital to ensure reliability. In the present case, the absence of such certification further erodes the evidentiary worth of PW-3’s testimony. 33. In view of the above omissions, contradictions, unexplained delays, and lack of medical corroboration, the evidence of Laxman Sinha (PW-3) cannot be accepted as trustworthy beyond 40 reasonable doubt. The law is equally well-settled, as held in Sujit Biswas (supra) that suspicion, however grave, cannot take the place of proof. 34. From the aforesaid facts and circumstances, it is clear that there exists no corroborative evidence to support the alleged oral dying declaration. Laxman Sinha (PW-3) brother-in-law of the deceased despite admitting in cross-examination that police personnel were present in the hospital. His omission to disclose such a serious statement of the deceased at the earliest available opportunity, either to the treating doctors or to the police authorities, seriously dents the credibility of his testimony. The explanation offered by him that he thought the deceased might recover, does not appear convincing. 35. It is a settled principle that oral dying declaration is a weak type of evidence and, unless it is wholly reliable, voluntary, and free from suspicion, it would be unsafe to act upon it as the sole basis for conviction. In the present case, the delay in disclosure, the absence of any corroborative evidence, and the surrounding conduct of the appellant and his family members; such as arranging treatment, shifting the deceased from one hospital to another for better medical facilities, arranging blood, and performing the last rites are wholly inconsistent with the conduct of a person guilty of committing murder. 41 36. In view of the above discussion, this Court is of the considered opinion that the prosecution has failed to establish the charge under Section 302 IPC against the appellant beyond all reasonable doubt. The oral dying declaration alleged to have been made by the deceased to PW-3 Laxman Sinha does not inspire confidence and is insufficient, in the absence of any corroboration, to sustain the conviction. 37. It is trite law that suspicion, however grave, cannot take the place of proof. The benefit of reasonable doubt must go to the accused. Accordingly, the conviction and sentence of the appellant recorded by the learned trial Court under Section 302 IPC cannot be sustained in law. 38. Upon applying the settled principles laid down by the Hon’ble Supreme Court regarding the evidentiary value of dying declarations, and after duly testing the authenticity of the statement in the present case on the touchstone of those parameters, we are of the considered opinion that the learned trial Court committed a grave legal error in convicting the appellant for the offence under Section 302 IPC. The prosecution has failed to prove its case beyond reasonable doubt, and hence the appellant is entitled to the benefit of doubt. 39. In the result, the appeal is, accordingly, allowed and conviction and sentence of the appellant for the offence under Section 302 of 42 the IPC is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail since 18.03.2016. He shall be set at liberty forthwith if no longer required in any other criminal case. 40. Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the accused-appellant, namely, Bharat Bhushan Sinha is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 41. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Yogesh 43 Head Note “A dying declaration, if recorded in accordance with law and inspiring confidence, can form the sole basis for conviction.