1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 887 of 2019 Judgment Reserved on 04.08.2025 Judgment Delivered on 28.08.2025 1 - Ajay Thakur S/o Dhaneshwar Singh Thakur Aged About 32 Years R/o Nayak Bandha, Police Station Abhanpur, Presently R/o House No. 126, Atal Awas, Sarkhi Road, Abhanpur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ...Appellant versus 1 - State Of Chhattisgarh Through Police Station Abhanpur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent For Appellant : Mr. Pawan Shrivastava, Advocate For Respondent/State : Mr. Afroz Khan, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. 1. In this criminal appeal filed under Section 374(2) of Cr.P.C., the accused-appellant is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 sentence dated 30.04.2019 passed in Sessions Case No.217/2018 by the 1st Additional Judge to the Court of 1st Additional Sessions Judge, Raipur, (C.G.), whereby appellant has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month. 2. Case of the prosecution, in brief, is that on 24.07.2018 at about 10:30 a.m., PW-1 Rajkumar Soni was present in his house bearing No. 115, Sarakhi Road, Atal Awas. At that time, he noticed a commotion outside house No. 126, Block No. 3, located behind his house, where a group of women had gathered and were shouting that the house had caught fire. On hearing the cries, he rushed to the spot and upon entering house No. 126, he found appellant- Ajay Thakur present inside and his wife- Smt. Sujata Thakur lying in a severely burnt condition. On being inquired, the victim disclosed that her husband/appellant- Ajay Thakur had poured kerosene on her and set her ablaze with the intention to kill her, due to his illicit relationship with another woman, while she was cooking. Thereafter, he immediately informed Police Station Abhanpur through his mobile phone. After that, the police reached the spot along with their staff and arranged the Ambulance for the injured- Sujata to be taken to the Government Hospital, Abhanpur. At the scene of the incident, the smell of kerosene was emanating from the room. Based on the 3 complaint of PW-1, an FIR (Ex.P.-1) was registered and the matter was taken up for investigation. The injured- Sujata Thakur was admitted to the Community Health Centre (CHC), Abhanpur, where Dr. Sumitra Uraon (PW-7) examined her and found that approximately 85-90% of her body had been burnt. Considering the severity of her condition, she was referred to Dr. B.R. Ambedkar Memorial Hospital (Mekahara), Raipur, where she succumbed to her injuries on 28.07.2018 during treatment. During her treatment at CHC Abhanpur, the dying declaration of the victim was recorded by the Executive Magistrate, Ms. Mamta Tavari (PW-6). After her death, merg intimation was registered and the inquest proceedings (Ex.P.-18) were conducted and dead body of the deceased was sent for post-mortem and it was conducted (Ex.P.-12) where Dr. PW-8 Dr. M. Nirala conducted the postmoretem of the deceased and found that the death of the deceased was due to cardio-respiratory failure as a result of burn injuries and their complications and gave her report vide Ex.P-18. From the spot, kerosene oil cans, matchboxes and a burnt piece of sari were seized vide seizure memo (Ex.P.-3). Vide Ex.P-4 full shirt of the appellant with colour particles and kerosene oil stains on it was seized. The seized articles were sent to the Forensic Science Laboratory, from where the FSL report (Ex.P.-22) was received, confirming the presence of kerosene in the can and traces of kerosene and carbon particles on other materials. Thereafter, statements of witnesses were recorded and, after due 4 investigation, the police filed charge-sheet against the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that he is innocent and have been falsely implicated. 3. The prosecution in order to prove its case examined as many as 09 witnesses and exhibited 24 documents. However, in his defence, appellant has examined none and not exhibited any document. 4. The learned trial Court, after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which, this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. 5. Learned counsel appearing for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He would further submit that there is no evidence available on record against the appellant to connect him with the crime in question except the dying declaration (Ex.P-9). Though the dying declaration (Ex.P-9) has been made basis to convict the 5 appellant herein, however, a bare perusal of the said dying declaration would show that neither the treating doctor nor any other medical officer has clearly certified the deceased to be in fit mental and physical condition to give said dying declaration. Even, Executive Magistrate, namely, Mamta Tavari, who has recorded the dying declaration of the deceased (Ex.P-9) has not proved the same. As such, the dying declaration (Ex.P-9) is not trustworthy, as it does not inspire confidence and cannot be relied upon to convict the appellant for the offence in question. Hence, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellant deserves to be acquitted from the said charge on the basis of benefit of doubt. 6. Per-contra, learned State counsel would support the impugned judgment of conviction and order of sentence and submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He would further submit that in view of dying declaration (Ex.P-9), wherein the deceased has clearly stated the name of the appellant herein to be author of the crime coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against appellant is well merited and, therefore, present appeal deserves to be dismissed. 6 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. Now the question for consideration before us would be whether appellant is the author of the crime in question or not? 9. In the instant case, the case of the prosecution is solely based on dying declaration (Ex.P-9) recorded by Executive Magistrate, namely, Mamta Tavari (PW-6), therefore, it would be appropriate to notice the principles governing the dying declaration. 10. At this stage, it is relevant to notice Section 32(1) of the Indian Evidence Act, 1872 [hereinafter to be referred as ‘The Act’], which reads thus: “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 7 nature of the proceeding in which the cause of his death comes into question. xxx xxx xxx”. 11. The general ground of admissibility of the evidence mentioned in Section 32(1) of the Act is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) of the Act constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60 of the Act). The eight clauses of Section 32 of the Actmay be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., nemo moriturus praesumitur mentire which means a man will not meet his Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance of this very fact, is an exception to the rule of hearsay evidence. 8 12. 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 32 of the Evidence Act, particularly, Section 32(1) of the Act on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra reported in (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 ourpeople, 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 application so as to be confined in a straitjacket. Distance of 9 time would depend or vary with the circumstances of each case. Forinstance, where death is a logical culmination of acontinuous drama long in process and is, as it were, afinale 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 10 statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does 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.” 13. 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 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 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 11 deals with circumstances leading to the death. The decision of the Supreme Court in Sharad Birdhichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab reported in AIR 2000 SC 2324 reviewing the earlier authorities. 14. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana reported in (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 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 12 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.” 15. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) reported in (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 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. 13 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 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.” 16. Further, in the matter of Irfan @ Naka v. State of Uttar Pradesh reported in the matter of 2023 SCC OnLine SC 1060, the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on provided it is proved 14 that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under:- “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.” 17. Recently, the Supreme Court in the matter of Rajendra v. State of Maharashtra reported in 2024 SCC OnLine SC 941 has clearly held that once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration and observed in Para-25 as under: “25. The law relating to dying declaration is now well settled. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is 15 reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.” 18. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above-mentioned judgments, it is quite vivid that in the instant case as the prosecution’s case is projected totally on dying declaration (Ex.P- 9), which is recorded by Executive Magistrate, namely, Mamta Tavari (PW-6), wherein the deceased has clearly narrated the incident and implicated the appellant herein to be the author of the crime in question by stating that appellant had illicit relationship with another woman and for this reason, he used to quarrel with her and on the date of incident, appellant poured kerosene oil over her body and set her ablaze, due to which, she suffered burn injuries. The authenticity of said statement of the deceased can be adjudged vide Ex.P/10, whereby before recording the said dying declaration (Ex.P-9), the doctor (PW-7) Sumitra Uraon has duly certified the deceased to be conscious oriented and in a fit state of mind to give statement. Further, Executive Magistrate, namely, Mamta Tavari (PW-6), who has recorded the said dying declaration has also recorded his satisfaction in it that the doctors have certified the deceased to be in fit state of mind to give statement before recording the dying declaration. Executive Magistrate, namely, Mamta Tavari (PW-6) in her statement before the Court has also duly proved and 16 supported the dying declaration/statement of the deceased whereby she implicated the appellant herein to be the author of the crime in question and has also proved the factum of fitness of the deceased while recording her statement. PW-6 also affirmed that no one else was preCandidates who apply for the post will not be allowed to withdraw their candidature subsequentlysent and the deceased, on her own volition, made the statement/dying declaration. Moreover, as per MLC report (Ex.P/10) of the deceased, Dr. Sumitra Uraon (PW-7), who firstly medically examined the deceased has also opined that though the deceased suffered 85 to 90% burn injuries but she was in conscious state. This apart, PW-1 Raj Kumar Soni has stated that when he asked the deceased, she told him that appellant had poured kersone oil on her and set her ablaze and at that time, deceased was conscious and able to speak. Likewise, corroborating the evidence of PW-1 (Rajkumar Soni), PW-2 (Seema Sahu) and PW-3 (Bablu) have stated that in their statements that upon hearing cries, they rushed to the deceased’s house and found her engulfed in flames and when they asked the deceased, she unequivocally stated that the appellant had set her on fire. Moreover, PW-4 Rahul Vishwakarma, step-son of the deceased, has stated that the appellant was unemployed, addicted to alcohol and used to quarrel with the deceased after drinking. He has also stated that 17 appellant used to quarrel with the deceased and also commit marpeet with her, therefore, one Chanbau had got vacated in house and they came to live in Atal Awas. He has also stated that appellant did not do any work so he used to go to work. He has also stated that household expenses were met from his income and appellant used to abused her mother/deceased filthily. As such, on the basis of aforesaid evidence/material available on record, it is quite established beyond reasonable doubt that the deceased was in fit state of mind at the time of recording of dying declaration (Ex.P-9), which was necessary in light of the decision of the Supreme Court in the matter of Irfan @ Naka (supra). Therefore, it cannot be said that the dying declaration (Ex.P/19) is not true and voluntary and, consequently, argument putforth in this regard is liable to be and is hereby rejected. 19. Accordingly, in view of afore-mentioned reasons, since the dying declaration (Ex.P-9) inspires confidence as the same is voluntary and trustworthy, therefore, the learned trial Court has rightly convicted and sentenced appellant for offence under Section 302 of IPC, which needs no interference by this Court. 20. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. Appellant is in jail. He shall serve out the sentence as awarded by the trial Court. 18 21. The Registry of this Court is directed to sent a copy of this judgment to the concerned Superintendent of Jail where appellant is languishing, informing him that he is at liberty to assail this judgment before the Supreme Court by preferring an appeal under Article 136 of the Constitution of India with the aid and assistance of the Chhattisgarh High Court Legal Services Committee or that of the Supreme Court Legal Services Committee. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha