[2025:RJ-JP:26811-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Leave To Appeal No. 591/2024 State Of Rajasthan, Through Public Prosecutor ----Appellant Versus 1. Omprakash Alias Prakash Son Of Ramnath, Resident Of Jeetawala, Kua Harsora Road, Bansur Ps Bansur District Alwar 2. Ramnath Son Of Thanchand @ Thanaram, Resident Of Jeetawala, Kua Harsora Road, Bansur Ps Bansur District Alwar 3. Hariram @ Harisingh Son Of Ramnath, Resident Of Jeetawala, Kua Harsora Road, Bansur Ps Bansur District Alwar 4. Smt. Murtidevi Wife Of Ramnath, Resident Of Jeetawala, Kua Harsora Road, Bansur Ps Bansur District Alwar 5. Smt. Aarti Devi Wife Of Hariram, Resident Of Jeetawala, Kua Harsora Road, Bansur Ps Bansur District Alwar ----Respondents For Appellant(s) : Mr. Sudesh Saini, P.P. For Respondent(s) : Ms. Vaishnavi on behalf of Mr. Ashwin Garg HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment 17/07/2025 (PER BHUWAN GOYAL J.) 1. The appellant – State of Rajasthan has preferred instant leave to appeal under Section 419(i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 challenging the Judgment and Order dated 12.09.2023 passed by the Additional Sessions Judge, Bansur (Alwar) in Sessions Case No.23/2012 (State of Rajasthan [2025:RJ-JP:26811-DB] (2 of 12) [CRLLA-591/2024] vs. Omprakash @ Prakash & ors.), whereby accused-respondents were acquitted for the offences under Sections 302 or 302/34 of the Indian Penal Code by extending benefit of doubt. 2. Brief facts relevant for disposal of present appeal are that on 08.07.2012 at 3.00 a.m., deceased Smt. Madhu wife of Omprakash while undergoing treatment at C.H.C. Bansur gave parcha bayan (Ex.P/11) to the Tarachand, ASI, Police Station Bansur (Alwar) (P.W. 11) to the effect that tonight around 10.00 – 11.00 p.m., she was sleeping in her house, then her mother-in- law Murti, father-in-law Ramnath Saini, sister-in-law Aarti and her brother-in-law Hariram Saini poured thinner on her and set her on fire due to which, her whole body caught fire. Now her condition was bad. This incident was done with intention to kill her due to previous enmity etc. 3. On the basis of said parcha bayan (Ex.P/11), an F.I.R. No.280/2012 dated 08.07.2012 (Ex.P/12) came to be registered at the Police Station Bansur, District Alwar for the offence under Section 307 of I.P.C. and investigation was commenced. During course of investigation, injured Smt. Madhu died, therefore, police added Section 306 of I.P.C. in the matter. After conclusion of investigation, police submitted charge-sheet against accused- respondents for the offence under Section 306 of I.P.C. before the court of concerned Magistrate, who took cognizance of aforesaid offence against accused-respondents and committed the case to the court of Sessions, from where it was transferred to the court of Additional Sessions Judge, Bansur, District Alwar (for short ‘learned trial court’ hereinafter). [2025:RJ-JP:26811-DB] (3 of 12) [CRLLA-591/2024] 4. After hearing arguments on the point of charges, trial court framed charges against accused-respondents for the offences under Sections 302 or 302/34 of I.P.C. The accused-respondents did not plead guilty and claimed trial. The prosecution examined as many as 18 witnesses and got documents exhibited from Ex.P/1 to Ex.P/15 and Ex.C/1 to prove its case. After conclusion of the prosecution evidence, accused-respondents were examined under Section 313 of Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution case, which they denied and stated that prosecution witnesses gave false evidence; they were innocent and had been falsely implicated in the case. The accused-respondents did not produce any oral evidence but exhibited Ex.D/1 – Police Station of Mahaveer in their defence. 5. Learned trial court, thereafter, proceeded to hear arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered impugned judgment dated 12.09.2023, acquitting accused-respondents for the alleged offence, as stated above. Aggrieved with the same, present leave to appeal has been filed by the appellant – State before this Court. 6. Heard learned counsel for the parties. 7. Learned Public Prosecutor appearing for the appellant – State of Rajasthan has submitted that prosecution has produced cogent evidence on record including parcha bayan of the deceased and established commission of murder of deceased Smt. Madhu by the accused-respondents but the trial Court has erred in not believing testimony deposed by the prosecution witnesses and wrongly [2025:RJ-JP:26811-DB] (4 of 12) [CRLLA-591/2024] acquitted accused-respondents for alleged offence without any cogent reason. He has, therefore, prayed that this leave to appeal filed by the appellant-State may be allowed and the judgment passed by the trial court be set aside. 8. On the other hand, learned counsel appearing for the accused-respondents has opposed appeal and submitted that prosecution utterly failed to establish its case against accused- respondents beyond all reasonable doubts. The trial court after appreciating entire material as well as evidence available on record has rightly passed the judgment impugned herein, which does not warrant any interference by this Court. 9. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and have minutely sifted through the evidence available on record. 10. In the present case, it is an admitted position that entire prosecution case rests upon the parcha bayan (Ex.P/11) and testimony of so-called eye-witnesses viz P.W. 1 – Rahul and P.W. 2 - Vikas. 11. In the case of Irfan vs. State of Uttar Pradesh reported in AIR 2023 SC 4129 has observed in Para 50, 51, 52,, 53, 57, 62, 63 & 64 as under :- “50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned for great care to be adopted. 51. It is significant to note the observations made by Taylor that "Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to [2025:RJ-JP:26811-DB] (5 of 12) [CRLLA-591/2024] great weight, if precisely identified, it should always be recollected that the accused has not the power of cross examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may effect the accuracy of his statements and give a false colouring to the whole transaction. …". [See: Taylor on “Treatise on the Law of Evidence”, 1931, 12th Edition Pg. 462] 52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that: "In weighing dying declarations, the jury may consider the circumstances under which they were made, as, whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross- examine him, and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled." 53. In India in the relevant provision of Section 32 of the Act 1872, the first exception to the rule against admissibility of hearsay evidence, is as under: “32(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.” 57. This Court in Muthu Kutty & Anr. v. State by Inspector of Police, T.N. reported in (2005) 9 SCC 113, while discussing the decision in Woodcock [2025:RJ-JP:26811-DB] (6 of 12) [CRLLA-591/2024] (supra) referred to above had cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations: - “13. … The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcck ((1789) 1 Leah 500 : 168 ER 352). Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain: “Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?” (See King John, Act V, Scene IV) The principle on which dying declaration is admitted in evidence is indicated in the legal maxim “nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth”. 14. … The situation in which a person is on the deathbed is so solemn and serene when he is [2025:RJ-JP:26811-DB] (7 of 12) [CRLLA-591/2024] dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. …” (Emphasis supplied) 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? [2025:RJ-JP:26811-DB] (8 of 12) [CRLLA-591/2024] (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? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a 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 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 [2025:RJ-JP:26811-DB] (9 of 12) [CRLLA-591/2024] 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.” 12. In the light of these guiding principles, let us examine the facts in the present case. 13. In the case in hand, the F.I.R. was launched on the basis of the parcha bayan (Ex.P/11) given by the deceased Smt. Madhu. As per prosecution story, incident in the present case was witnessed by sons of the deceased, namely, Rahul and Vikas. A perusal of said parcha bayan reveals that though, deceased Smt. Madhu named Murti (mother-in-law), Ramnath Saini (father-in- law), Aarti (sister-in-law) and Hariram Saini (brother-in-law) as the persons who poured thinner on her and set her on fire. However, she did not name her husband Omprakash alias Prakash in her parcha bayan. On perusal of the statement of P.W. 1 – Rahul reveals that he in his examination-in-chief has stated that he and his brother were sleeping inside the room and his father was sleeping outside near the cooler. Both of the brothers came outside and saw his father was trying to extinguish the fire with the help of Gudari (blanket) and at that time, his mother was sitting squatting. He has also stated that no quarrel had taken place between his mother and father before this incident. In his cross-examination, he has stated that his grandfather, grandmother, uncle, aunt and father never beaten his mother and nor raised any demand of dowry and nor harassed and tortured [2025:RJ-JP:26811-DB] (10 of 12) [CRLLA-591/2024] her. He has admitted that on the date of incident, all of them took meal and went to sleep happily. He has also admitted that on the date of incident, there was nobody present except his mother, father and both of them brothers; his mother used to harass and torture his grandfather, grandmother, uncle, aunt and father; his mother was angry with his grandfather, grandmother, uncle, aunt and father, therefore, she poured thinner over herself and set her on fire. P.W. 2 – Vikas has admitted in his cross-examination that since after his birth, mental condition of his mother was not good. He has also admitted that his father, uncle, aunt, grandfather and grandmother never harassed and tortured his mother for demand of dowry. He has also admitted that when his mother was burnt on 07.07.2012, his grandfather, grandmother, uncle and aunt were not present in their house; they woke up after their father shouted when their mother caught fire; his father tried to extinguish the fire with Gudari (blanket); while his father was trying to extinguish the fire with Gudari (blanket), their mother did not tell them as to who set her on fire and nor they asked; his father immediately called the police and ambulance. In his re-examination, he has admitted that when his mother caught fire, they were sleeping inside and on shouting of his father, they came out. Thus, from the testimony deposed by both these witnesses, it has been established that they did not see the incident in the present case and except these two witnesses, there is no other eye-witness of the incident and entire prosecution case now rests upon circumstantial evidence. 14. So far as another prosecution witness viz. P.W. 12 – Ramotar [2025:RJ-JP:26811-DB] (11 of 12) [CRLLA-591/2024] Meena is concerned, he was neighbour of the deceased and has not supported the prosecution story and turned hostile. 15. Now if we peruse parcha bayan of the deceased (Ex.P/11), it reveals that firstly, there is no certificate of treating doctor with regard to fit state of the deceased to give statement, rather, said parcha bayan bears signature of the treating doctor only. On perusal of the statement of P.W. 11 – Tarachand, who recorded parcha bayan of the deceased, it reveals that he has admitted in his cross-examination that when he reached the hospital, many persons were standing near Madhu. He did not ask for certificate from the doctor before recording the statement but when he was recording the statement, doctor was present there. When he recorded the statement, crowd was present in the hospital. He has admitted that he did not record parcha bayan in question- answer form. P.W. 14 – Dr. Dayaram has stated in his examination-in-chief that Smt. Madhu gave her parcha bayan in his presence, which is available on record as Ex.P/11 and bear his signature from C to D. In his cross-examination, he has stated that when said woman came in front of him, she was very burnt. According to him, she was around 80 to 90 percent burnt. Thus, from the evidence on record, it has been established that condition of the deceased was serious but yet no certificate regarding her fit state to give statement was obtained by P.W. 11 and in absence thereof, the prosecution has not proved this fact beyond reasonable doubt that at the time of recording of parcha bayan, the deceased was in a position to give the statement. Besides, as per statement of P.W. 11 – Tarachand, many persons [2025:RJ-JP:26811-DB] (12 of 12) [CRLLA-591/2024] were present near Madhu and they were in contact with her and in these circumstances, the possibility of tutoring her cannot be ruled out. Thus, from the evidence available on record, the prosecution has not been able to prove its case against accused-respondents beyond all reasonable doubt. 16. In view of the above discussion, this Court finds no ground to interfere in the judgment impugned passed by the trial court. 17. Accordingly, present criminal leave to appeal is dismissed. The Judgment dated 12.09.2023 passed by the trial court is affirmed. 18. A copy of this judgment along with original record be remitted to the trial court forthwith. (BHUWAN GOYAL),J (AVNEESH JHINGAN),J INDER/18