1 2025:CGHC:48167-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1030 of 2021 1 - Pawan Rathore S/o Late Nanki Rathore Aged About 42 Years 2 - Smt. Chandrika Rathore W/o Pawan Kumar Rathore Aged About 40 Years 3 - Ku. Arti Rathore D/o Pawan Kumar Rathore Aged About 19 Years All are R/o Village Sukli, P.S. Janjgir, District Janjgir - Champa (Chhattisgarh) ... Appellants versus State Of Chhattisgarh Through - Police Station Janjgir, District Janjgir- Champa (Chhattisgarh) ... Respondent For Appellants : Mr.Sushobhit Singh, Advocate For Respondent : Ms.Soumya Sharma, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 18 . 09 .202 5 1. In this criminal appeal filed under Section 374(2) of Cr.P.C., the BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR 2 accused-appellants are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 01.09.2021 passed in Sessions Case No.74 of 2019 by the Sessions Judge, Janjgir, District Janjgir Champa, whereby they all have been convicted for offence under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.200/-, in default of payment of fine to further undergo RI for 10 days. 2. The case of the prosecution, in a nutshell, is that on 20.09.2019, appellants Pawan Rathore, Chandrika Rathore, and Aarti Rathore had an altercation with deceased Durga Rathore over the issue of discharging water into a drain, which was settled. However, again at around 7:30 P.M., regarding the construction of the same drain, the three appellants went to the house of deceased Durga Bai Rathore, quarreled with her, caught hold of her and Pawan Rathore poured kerosene oil on her and set her on fire with a matchstick. As a result, deceased Durga was completely burnt. She was taken to the District Hospital, Janjgir for treatment, but due to her critical condition, she was admitted to CIMS Bilaspur for further treatment. Regarding this incident, an FIR was registered at Janjgir Police Station based on the complainant's report under Section 307 read with Section 34 of the Indian Penal Code (hereinafter called as ‘IPC’). Deceased Durga Bai Rathore, aged 20 years, was brought to the Forensic Medicine Department of CIMS, Bilaspur in a burnt condition under the supervision of 3 Medical Officer Dr.R.K.Markam (PW-12) . Upon examination, she was found severely injured and a medical report (Ex.P-28) was prepared. Based on the information provided by Dr. R.K. Markam (PW-12), Assistant Sub-Inspector B.D. Sidar (PW-9) registered the First Information Report (FIR) on 24.09.2019 as Ex.P-8 and sent a copy to the concerned Magistrate, whose receipt is marked as Ex.P-22. The police visited the crime scene and prepared a site plan (Ex.P-3). In the presence of the witnesses, the police seized burnt items from the scene, including a Lehlon saree (off- white with black spots), a burnt red-colored bra, a burnt green- colored petticoat emitting the smell of kerosene oil, a burnt matchstick, a burnt black hair strand, broken green glass bangles, a pink market-bought bracelet, and two containers containing kerosene oil mixed with soil, cement, and sand, all seized as per seizure memo Ex.P-15. 3. On 06.05.2016, Assistant Sub-Inspector Yogesh Gupta received information that victim Durga Bai Rathore had been admitted to CIMS Hospital, Bilaspur. He wrote an application (Ex.P-39) to the Executive Magistrate, Bilaspur to record the dying declaration of the victim. The Tahsildar of Bilaspur, Mrs.Prakriti Dhruv (PW-13) visited CIMS Hospital, Bilaspur where a medical certificate was issued confirming that the victim was capable of giving a statement. On 21.09.2019, at 1:20 P.M., the dying declaration of the victim was recorded in question-answer form (Ex.P-6). In her statement, Durga Bai Rathore stated that at around 7:30 P.M. on 4 20.09.2019, Chandrika Bai Rathore, Pawan Rathore (uncle-in- law) and Aarti Rathore (sister-in-law) forcibly abused her, assaulted her, and collectively poured kerosene oil on her from behind and set her on fire using a matchstick. She also informed Mrs.Prakriti Dhruv (PW-13) that her father-in-law, Indragopal, witnessed the incident and tried to extinguish the fire with water. Subsequently, on 26.09.2019, at 3:40 A.M., Durga Bai Rathore died due to 62% burn injuries. 4. On 26.09.2019, the ward boy of the CIMS Hospital, Bilaspur, submitted a police memo reporting the sudden death of the victim. Upon receiving this information, a murder case was registered at zero hour (Ex.P-9). After the death, a site plan and panchnama were prepared (Ex.P-10). The victim’s body was sent for postmortem through Assistant Sub-Inspector Yogesh Gupta. The medical officer Dr. R.K. Markam (PW-12) conducted the postmortem and submitted the body examination report (Ex.P-28). The doctor has opined that cause of death is due to burn injury & its complication. 5. Assistant Sub-Inspector Yogesh Gupta forwarded the murder intimation to Janjgir Police Station, which has jurisdiction over the area. The report was presented to Janjgir Police Station, where Head Constable Dilip Kumar Shukla registered the murder case with serial number (Ex.P-27). Inspector Vinod Mandavi received the murder intimation and the victim’s dying declaration (Ex.P-6). 5 On 18.10.2019, Vinod Mandavi arrested the appellants as per Exs.P-17, P-18, and P-19. On 25.09.2019, Inspector Vinod Mandavi submitted an application (Ex.P-25) to the Tahsildar, Janjgir for preparing a site plan. The Patwari of village Sukli, J.R. Rathore (PW-1), reached the crime scene and prepared the site plan (Ex.P-3) and panchnama (Ex.P-4). On 31.10.2019, constable Ramkumar Jagat submitted a sealed packet containing the victim’s scalp hair and skin, which was sealed by the doctor. After submission in Bilaspur, the seized scalp hair and skin were forwarded for forensic examination as per seizure memo Ex.P-24 through the Superintendent of Police to the Regional Science Laboratory. During the investigation, witness statements were recorded, and a charge sheet was submitted against the appellants before the Chief Judicial Magistrate, Janjgir on 16.12.2019 and the case was committed to the Court of Sessions, Janjgir, District Janjgir Champa for hearing and disposal in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated in the alleged offence. 6. The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 34 documents, whereas the appellants-accused in support of their defence have not examined any witness nor exhibited any document. 7. The learned trial Court after appreciating oral and documentary 6 evidence available on record, proceeded to convict all the appellants herein for offence under Section 302/34 of the IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. 8. Mr.Shushobhit Singh, learned counsel appearing for the appellants submits that learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of the IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that there is no evidence available on record against the appellants to connect them with the crime in question except the dying declaration (Ex.P-6). Though the dying declaration (Ex.P-6) has been made basis to convict the appellants 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 a fit mental and physical condition to give said dying declaration. Even, Executive Magistrate, namely, Mrs.Prakriti Dhruv (PW-13), who has recorded the dying declaration of the deceased (Ex.P-6) has not proved the same. As such, the dying declaration (Ex.P-6) is not trustworthy, as it does not inspire confidence and cannot be relied upon to convict the appellants for the offence in question. He also submits that learned trial Court ought to have appreciated the testimony of Rewaram Rathore 7 (PW-2) who has stated that at the time of recording of dying declaration, Executive Magistrate Mrs.Prakriti Dhruv (PW-13) is not present. Learned trial Court ought to have appreciated the evidence of Sanjay Rathore (PW-3) who has admitted that he has not submitted written report of the incident at the police station. He contended that learned trial Court ought to have appreciated that the case of the prosecution suffers from suppressio veri. Learned counsel relied upon the decision of the Supreme Court in the matter of Naresh Kumar v. Kalawati and others1, to bolster his submissions. Hence, the impugned judgment of conviction and order of sentence passed by learned trial Court is liable to be set aside and the appellants deserves to be acquitted from the said charge. 9. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of dying declaration (Ex.P-6), wherein the deceased has clearly stated the names of the appellants herein to be authors of the crime coupled with other evidence available on record, the conviction and sentence passed by learned trial Court against the appellants is well merited and, therefore, present appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their 1 AIR 2021 SC 1605 8 rival submissions made herein-above and went through the records with utmost circumspection. 11. Now the question for consideration before us would be whether the appellants are the authors of the crime in question or not ? 12. In the instant case, the case of the prosecution is solely based on dying declaration (Ex.P-6) recorded by Executive Magistrate, namely, Mrs.Prakriti Dhruv (PW-13), which states as under:- e`R;q iwoZdFku LFkku flEl cuZ ;qfuV csM u- & 18 Ukke nqxkZ ckbZ jkBkSj fcykliqj ¼N-x-½ ifr lat; jkBkSj fnukad & 21@09@19 ds le; 1%20 cts mez 28 o”kZ R/o & lqdyh P/S & Tkkatxhj ftyk & Tkkatxhj iz’u%& tks eS iwN jgk gwa lqukbZ o le> ik jgh gS \ mRrj%& gkaA iz’u%& dgka vkSj dc tys gks \ mRrj%&llqjky ?kj lqdyh esa fnukad 20@09@19 ds djhc jkf= 7%30 cts fnu ‘kqdzokj dks ty x;k gwaA iz’Uk%& fdles tys gks \ mRrj%& feV~Vh rsy ls tyh gwaA iz’Uk%& dSls tys gks \ mRrj%& fnukad 20@09@19 ds jkf= djhc 7%30 cts tcju 1- panzhdk ckbZ jkBkSj 2- iou jkBkSj 3- uun vkjrh jkBkSj ;s rhuksa us tcju xkyh nsdj ekjihV fd;k vkSj rhuksa feydj ihNs ls feV~Vh rsy dks esjs Åij Mkyh vkSj ekfpl ls vkx tyk dj eq>s rhuksa yksx fey dj tyk;s gS ftlls tyh gwaA Ikz’u%& vkx dkSu dkSu cq>k;s \ mRrj%& tc fpYykbZ rc esjs vokt dks lqudj llqj bUnzxksiky us esjs ikl vk;s vkSj tyrk ns[k dj ikuh ls esjs vkx dks cq>k;sA iz’u%& dksbZ tyk;s rks ugh \ mRrj%& gka 1- pkph lkl panzhdk 2- pkpk llqj iou jkBkSj 3- uun vkjrh jkBkSj rhuks yksx fey dj tyk;s gSA iz’u%& [kqn rks ugh tyh gS \ mRrj%& ugha iz’u%& fdlh ds ncko esa rks ugh cksy jgh \ mRrj%& ugha iz’u%& ‘kknh dc gqvk fdrus cPps gS \ mRrj%& djhc 9&10 o”kZ ‘kknh gqvk vkSj nks cPps gS iz’u%& vkSj dqN dguk pkgrs gks \ lgh@& mRrj%& ughA Prakriti 9 iz’u%& nLr[kr djksxs \ 21@9@19 mRrj% nqxkZ ckbZ nkfguk iSj dk vaxqBk dk;Zikfyd naMkf/kdkjh fcykliqj ¼N-x-½ xokg HkkbZ jsokjke jkBkSj 13. At this stage, it is relevant to notice Section 32(1) of the Indian Evidence Act, 1872, 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 nature of the proceeding in which the cause of his death comes into question. xxx xxx xxx” 14. The general ground of admissibility of the evidence mentioned in Section 32(1) is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further 10 exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60). The eight clauses of Section 32 may 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. 15. 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) on various occasions including in the matter of Sharad Birdhichand Sarda 11 v. State of Maharashtra2 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 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. 2 (1984) 4 SCC 116 12 (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 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.” 16. 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 deals with 13 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 Punjab3 reviewing the earlier authorities. 17. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana4, 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 7 is relevant under Section 32 of the Evidence Act, 1872 which provides that statements, written or verbal, of relevant facts made by 3 AIR 2000 SC 2324 4 (2012) 10 SCC 763 14 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.” 18. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)5, 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. 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 5 (2020) 11 SCC 489 15 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.” 19. Further, in the matter of Irfan @ Naka v. State of Uttar Pradesh6 the Supreme Court has held that the 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 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 6 2023 SCC Online SC 1060 16 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.” 20. Recently, the Supreme Court in the matter of Rajendra v. State of Maharashtra7 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 reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.” 21. 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-6), which is recorded by Executive Magistrate, namely, Mrs.Prakriti Dhruv (PW-13), wherein the deceased has clearly narrated the incident and implicated the appellants herein to be 7 2024 SCC Online SC 941 17 the authors of the crime in question by stating that on the night of 20.09.2019 at around 7.30 P.M., Chandrika (chachi saas) , Pawan Rathore (uncle-in-law) and sister-in-law Aarti Rathore forcibly abused and beat her. All three of them poured kerosene on her from behind and lit a fire with a matchstick and burnt her, due to which she got burnt. The deceased also told that she did not burn herself, all three of them burnt her together. The authenticity of said statement of the deceased can be adjudged vide Ex.P-29, whereby before recording the said dying declaration (Ex.P-6), Dr.Brajesh Patel (CW-1) has duly certified the deceased to be fit for statement. Executive Magistrate, namely, Mrs.Prakriti Dhruv (PW-13), in her statement before the Court has also duly proved and supported the dying declaration/statement of the deceased whereby she implicated the appellants herein to be the authors of the crime in question and has also proved the factum of fitness of the deceased while recording her statement. 22. This Court by order dated 19.08.2025 passed the following order: “Heard Mr.Sushobhit Singh, learned counsel for the appellants as well as Ms. Soumya Sharma, learned Panel Lawyer, appearing for the State/respondent. During the course of argument, learned counsel for the appellants submitted that Dr.Brajesh Patel, Assistant Professor, Dept. of Surgery, CIMS, Bilaspur, who gave fitness certificate vide Ex.P-29 to the effect that ‘patient fit for statement’ before 18 recording dying declaration of the deceased on 21.09.2019 at 10.20 a.m., was not made witness in the charge sheet nor the prosecution had made any effort to summon him as a prosecution witness and further, the Trial Court has also not examined the said Doctor as a Court witness. The Tehsildar (PW-13) who has recorded the dying declaration of the deceased on 21.09.2019 at 1.20 p.m. has also deposed in his evidence that the Doctor has given fitness certificate at 10.20 a.m. and at the time of recording dying declaration, the doctor was not present and in the dying declaration, the victim (deceased) has specifically stated that all the three appellants have poured kerosene over her and set her ablaze. The Trial Court has failed in its duty to summon the said witness, who gave the fitness certificate that the patient i.e. deceased was in a fit state of mind to give the said statement. In that view of the matter and in the interest of justice for proper adjudication of the case to arrive at just decision and in exercise of power under Section 391 of CrPC, we deem it proper that evidence of Dr.Brajesh Patel, the then Assistant Professor, Dept. of Surgery, CIMS, Bilaspur be recorded as a Court witness by the concerned trial Court. Accordingly, the concerned trial Court is directed to record the evidence of Dr. Brajesh Patel on 25.08.2025 and further it is directed that the circumstances which have been relied upon by the prosecution in the evidence of said Doctor be also put to the appellants in their statements under 19 Section 313 CrPC by trial Court. The said exercise should be completed before the next date of hearing. The Director, Medical Health, Raipur shall ensure presence of Dr. Brajesh Patel, the then Assistant Professor, Dept. of Surgery, CIMS, Bilaspur before the concerned trial Court for recording his statement on 25.08.2025. Learned State counsel is directed communicate this order to the Director, Medical Health, Raipur for necessary information and compliance forthwith. Registrar (Judicial) is directed to transmit the original records of the case to the concerned trial Court for the aforesaid purpose along with a copy of this order for necessary information and compliance forthwith with a direction that after completion of aforesaid exercise, the original records of the case be sent to this Court before the next date of hearing. The matter be listed for further hearing on 08.09.2025.” 23. In compliance of the Court’s order dated 19.08.2025, Dr.Brajesh Patel has been examined as Court witness (CW-1). 24. Dr.Brajesh Patel (CW-1) has stated in para 2 of his evidence that on 21.09.2019, Assistant Sub-Inspector Yogesh Gupta from Police Station City Kotwali, Outpost CIMS, wrote a letter to the Executive Magistrate, Bilaspur, requesting to record the dying declaration of victim Durga Rathore, wife of Sanjay Rathore, resident of Sukli, Police Station Janjgir, who had been admitted to the burn ward of 20 CIMS for treatment due to burn injuries. In that letter, he examined victim Durga Rathore on 21.09.2019 at 10:20 A.M. and found her fit to give a statement. Accordingly, he gave a note stating "patient fit for statement" on part ‘B’ of Ex.P-29. Below this note, in part ‘C’, his signature and official seal are affixed. In para 3 of his evidence, he has stated that the aforementioned victim Durga Rathore was admitted to CIMS hospital on 20.09.2019 at around 11:30 P.M. The police were informed about her admission via police memo Ex.P-30, which bears the signature of Dr. Neeraj in part ‘A’. Dr. Neeraj was working under his supervision, and he can identify his signature. During treatment, victim Durga Rathore passed away on 26.09.2019. In para 4 of his evidence, he has stated that the treatment related documents and continuation sheet have been submitted in the case. After her admission on 20.09.2019, as per the medical notes dated 24.09.2019, when her condition slightly improved, she was advised to take water, although initially, she was not given any fluids. These notes are recorded in Ex.P-31, bearing his signature in part ‘A’ and his notes from part ‘B’ to ‘B’. Her death related notes are documented in Ex.P-32, which were provided by his subordinate Dr. Neeraj Kanwar. His signature is in part ‘A’, which he can recognize. Other documents from CIMS Hospital are in Ex.P-33, bearing his signature in part ‘A’. In para 6 of his cross-examination, he has stated that he issued a certificate on 21.09.2019 at 10:20 A.M. stating that patient Durga Rathore was mentally fit to give a 21 statement. He admitted that the Executive Magistrate recorded her statement on 21.09.2019 at 1:20 P.M. He further admitted that he was not present when the Executive Magistrate was recording her statement. He also admitted that he did not assess her fitness either immediately before or after the recording of her statement by the Executive Magistrate. In para 7 of his cross-examination, he admitted that Durga Rathore had deep and extensive burn injuries. He further admitted that in such cases, due to the evaporation of fluids from the burned areas, the patient may go into a state of shock. In para 9 of his cross-examination, he admitted that on 21.09.2019 he has written “poor prognosis” from part ‘B’ to ‘B’ in Ex.P-33 regarding the condition of the patient. He further admitted that he has not mentioned physical and mental fitness in the report at Ex.P-29. 25. Rajkumar Rathore (PW-2) (brother of the deceased) has stated in his evidence that on the date of the incident, i.e., 20.09.2019, at around 8:55 P.M., his brother-in-law Sanjay Rathore called him on the phone and informed him that the accused persons had set his sister Durga (the deceased) on fire. He asked him where he was at that moment, and he told him that they were taking her to the District Hospital in Janjgir and asked him to come there. While he was on his way to Janjgir, Sanjay called again and informed him that from the District Hospital, Janjgir, she had been referred to Bilaspur, so they were heading there, and asked him to reach Bilaspur. When he reached Bilaspur, he saw in the hospital that 22 his sister Durga was severely burned. At the hospital, Durga told him that her aunt-in-law Chandrika, sister-in-law Aarti, and uncle- in-law Pawan together beat her, poured kerosene on her, and set her on fire. The police had questioned him, and he gave this statement to them. Before her death, his sister Durga gave a statement to the Tehsildar, Bilaspur. He was present at that time. His sister’s dying declaration is Ex.P-6, and his signature is on the part marked 'A'. In his presence, his sister Durga told the Tehsildar the same thing that her aunt-in-law Chandrika, sister-in- law Aarti, and uncle-in-law Pawan together poured kerosene on her and set her on fire. 26. As such, on the basis of aforesaid evidence/material available on record, it is quite established beyond reasonable doubt that the deceased was in a fit state of mind at the time of recording of dying declaration (Ex.P-6), which was necessary in light of the decision of the Supreme Court in the matter of Irfan @ Naka (supra). 27. Upon meticulous examination of the entire evidence on record, both oral and documentary, and having due regard to the principles governing admissibility and reliability of dying declaration as laid down by the Hon’ble Supreme Court, this Court records the following findings: i. The prosecution’s case hinges primarily upon the dying declaration (Ex.P-6) of deceased Durga Bai 23 Rathore, which was recorded by Executive Magistrate Mrs. Prakriti Dhruv (PW-13), and duly supported by medical evidence and postmortem report. ii. The authenticity and voluntariness of dying declaration (Ex.P-6) have been proved beyond reasonable doubt. The dying declaration was made in a fit state of mind, as evidenced by the medical certification of fitness (Ex.P-29), which has subsequently been corroborated by the court witness, Dr. Brajesh Patel (CW-1), who confirmed that the deceased was mentally fit to give a statement at the relevant time. iii. The deceased clearly stated about all three appellants namely Pawan Rathore, Chandrika Rathore, and Aarti Rathore as the perpetrators of the offence, attributing specific overt acts to each, including pouring kerosene and setting her on fire, which directly resulted in her death due to burn injuries and related complications (Ex.P-28). iv. The trial Court’s reliance on the sole dying declaration for conviction is legally sound and consistent with settled legal principles, as the declaration is found to be consistent, voluntary and 24 credible satisfying the test laid down by the Hon’ble Supreme Court in Sharad Birdhichand Sarda (supra) and Rajendra (supra) and other binding precedents. 28.The argument advanced by learned counsel for the appellants regarding alleged procedural lapses, including the absence of the certifying doctor during the actual recording of the dying declaration, does not dent the core reliability and admissibility of the statement, especially when the Court has subsequently examined the certifying doctor as a court witness under Section 391 CrPC to cure any such procedural deficiency. 29.The dying declaration stands sufficiently corroborated by the seizure of burnt articles, forensic evidence, medical records, and postmortem report, further lending assurance to its reliability. 30.The case law cited by learned counsel for the appellants i.e., Naresh Kumar (supra) is clearly distinguishable, as it pertained to inconsistencies across multiple dying declarations. In the present case, there is only one consistent and voluntary dying declaration, which squarely meets the evidentiary standard required for sustaining a conviction. 31. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. The appellants are in jail. They shall serve out the sentence as awarded by the trial Court. 25 32. 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. 33. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail term, to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu