1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2009 of 2019 Judgment Reserved on 31.07.2025 Judgment Delivered on 06.08.2025  Rajesh Thakur @ Chhotu @ Rajendra Thakur S/o Shambhu Thakur Aged About 21 Years R/o Attharahgudi, Police Station Pithora, District Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh ... Appellant versus  State Of Chhattisgarh Through The Station House Officer, Police Station Pithora, District Mahasamund Chhattisgarh, District : Mahasamund, Chhattisgarh ... Respondent For Appellant : Mr. Akshat Tiwari, Advocate For Respondent/State : Mr. Ashish Shukla, Addl. A.G. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 09.05.2019 passed by the Sessions Judge, Mahasamund, District Mahasamund, C.G. in Sessions Trial No.29/2018, whereby learned Special Judge has convicted and sentenced the appellant as follows:- Conviction Sentence Under Section 302 of Indian Penal Code (for short, ‘IPC’ Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for six months 2. Case of the prosecution is that about three years prior to the date of the incident i.e. 23.03.2018, the deceased namely Smt. Sushila Bariha had performed a love marriage with one Rajkumar Thakur of Village Attharahaguri. On account of matrimonial disputes with her husband, the deceased was residing with her parents at her parental house in Village Sindhupali. On 23.03.2018, in the afternoon hours, when the deceased was alone in her parental house, the accused- Rajesh Thakur, who is her brother-in-law, came there along with one unknown person. It is alleged that the accused/appellant poured kerosene oil over the body of the deceased, set her ablaze and thereafter fled away from the spot. On hearing her cries, PW-2 Rasiya, his wife and the middle sister of the deceased, rushed to the spot and found the deceased engulfed in flames. Then, he (PW-2) tried to extinguish the fire with his hands and upon failing, he fetched water from his house 3 and doused the flames. In the process, PW-2 Rasiya also sustained burn injuries on the fingers of his right hand. By that time, several villagers had gathered at the spot and the deceased disclosed before them that her brother-in-law/accused had come with an unknown man, poured kerosene on her, set her on fire and fled away. After that, the persons present there called Ambulance 108, in which, the deceased was taken to the Government Hospital, Pithora. In the meantime, PW-2 Rasiya informed Police Station Pithora regarding the incident. Based on this information, merg intimations were recorded vide Exs.P-23 & 24 and FIR (Ex.P-06) was registered at Crime No. 40/2018 under Section 307 read with Section 34 IPC against the accused-Rajesh Thakur and an unknown person. During initial treatment at Government Hospital, Pithora, the dying declaration (Ex.P-5) of the deceased was recorded by PW-1 Dr. S.N. Dadsena and found that deceased had sustained 100% burn injuries, smell of kerosene was emanating from her body and she was burnt from first degree to third degree. Thereafter, the deceased was referred to Mekahara Hospital, Raipur, for better treatment, but she succumbed to her injuries during treatment at Mekahara Hospital, Raipur. Thereafter, inquest proceedings were conducted vide Ex.P-31 and dead body of deceased was sent for postmortem examination where PW-12 Dr. M. Nirala conducted the postmortem of the deceased and opined that deceased died due 4 to burn injuries and its complications and gave his report vide Ex.P-29. 3. During investigation, matchsticks, burnt clothes, soil and a 5 litre jerrycan were seized from the spot vide Ex.P-08. A spot map was prepared vide Ex.P-15 and the seized articles were sent for forensic examination. Upon completion of investigation and other formalities, the charge sheet was filed before the Court of Judicial Magistrate First Class, Pithora, District Mahasamund under Section 302 IPC against the accused- Rajesh Thakur. 4. In order to bring home the offence, the prosecution examined as many as 15 witnesses i.e. PW-1 to PW-15 and exhibited 32 documents i.e. Exs.P/1 to P/32. Statement of the accused / appellant was recorded under Section 313 of the Cr.P.C., in which, he denied the allegations levelled against him and abjured the guilt and pleaded innocence and false implication and also claimed to be tried. In his defence, appellant has examined none, but exhibited two documents i.e. Exs.D-1 & D-2. 5. The trial Court, after appreciating oral and documentary evidence available on record, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the Cr.P.C. by the appellant. 5 6. Learned counsel for the appellant would submit that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubt. The motive and intention which is the essential ingredient to prove an offence under Section 302 IPC has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on the dying declaration given by the deceased before PW-1 Dr. S.N. Dadsena. He would further submit that the entire case is based on circumstantial evidence, however, the circumstances relied upon by the learned Trial Court have not been duly proved. Except for the so-called dying declaration before PW-1 Dr. S.N. Dadsena, there is no material evidence against the appellant. The dying declaration (Ex.P-5) itself is highly doubtful, as it was recorded by a doctor and was neither duly proved nor corroborated by any memorandum or supporting evidence. He would also submit that the seizure proceedings have not been established in accordance with law. He would also submit that most of the prosecution witnesses, including material witnesses, have turned hostile and not supported the case as presented by the prosecution. As such, conviction solely on the ground of dying declaration cannot be sustained that too when the dying declaration suffers from infirmity and is inconclusive. Therefore, the judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the 6 charge leveled against him. Reliance has been placed upon the decision of Supreme Court in the matters of Irfan @ Naka v. The State of Uttar Pradesh1 & Sampat Babso Kale and Anr. vs. the State of Maharashtra 2 . 7. Learned counsel for the State / respondent would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant and there is sufficient evidence available on record to hold him guilt and he has rightly been convicted and sentenced by the trial Court. He would further submit that the dying declaration of deceased (Ex.P/5) is true and voluntary and it was given by deceased in a fit mental state, therefore, it is a reliable document and the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The appellant has solely been convicted on the basis of dying declaration of deceased Ex.P/5 and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellant except the aforesaid dying declaration. Therefore, it would be appropriate to consider the 1 2023 SCC OnLine SC 1060 2 2019 Supreme (SC) 415 7 dying declaration of deceased recorded by PW-1 Dr. S. N. Dadsena. 10. 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” 8 11. 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 Maharashtra3 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- 3 (1984) 4 SCC 116 9 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. (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.” 12. 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 32of 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 4 (2012) 10 SCC 763 11 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.” 13. 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:- 5 (2020) 11 SCC 489 12 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 declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 13 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.” 14. The question for consideration is, whether the statement of the deceased recorded by PW-1 Dr. S.D. Dadsena during the course of treatment is relevant under Section 32 of the Evidence Act or not? 15. 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 14 Court in Sharad Birdhichand Sarda (supra) has further been followed by the Supreme Court in the matter of Kans Raj v. State of Punjab6 reviewing the earlier authorities. 16. Before considering the submission raised on behalf of the appellant, it would be appropriate to notice few facts which are apparent on the face of record. 17. The dying declaration (Ex.P/5) of deceased was recorded on 23.03.2018 by PW-1 S.N. Dadsena. Deceased suffered burn injuries on 23.03.2018 and she was immediately taken to CHC, Pithora where she was examined by Dr. S.N. Dadsena (PW-1), who found that deceased sustained 100% burn injuries, smell of kerosene was emanating from her body and she was burnt from first degree to third degree. He has further stated that based on his examination, he issued a certificate declaring that the deceased was in a fit state of mind to give a dying declaration. Thereafter, on the same day at about 3:45 pm, he recorded the dying declaration of deceased vide Ex.P-5. 18. A careful perusal of the dying declaration (Ex. P-5) reveals that the deceased stated that on the date of the incident, two individuals came to her house, one of them was her brother-in-law / accused-Rajesh and she did not know the other person. According to her, the unknown person caught hold of her hands while the accused/appellant poured kerosene over her body, set 6 AIR 2000 SC 2324 15 her ablaze and then both of them fled from the spot. Hearing her cries, her neighbours and village people came there and extinguished the fire. 19. Now, the question would be, whether the dying declaration given by her was true and voluntary and conviction can be based upon it without corroboration? 20. The Supreme Court in the matter of Jayamma and another v. State of Karnataka 7 has considered the case of Chacko v. State of Kerala 8 and held as under: - “14.2. In Chacko v. State of Kerala , 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 the dying declaration created grave doubts to the genuineness of the document. The Court 7 (2021) 6 SCC 213 8 (2003) 1 SCC 112, paras 3 and 4 16 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.” 21. Recently, the Supreme Court in the matter of Irfan (supra)9 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:- “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? 9 2023 SCC OnLine SC 1060 17 (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.” 18 22. Likewise, the Supreme Court in the matter of Sampat Babso (supra) has held in paras 14 & 15 which read as under:- 14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. We need not refer to the entire law but it would be apposite to refer to the judgment of this Court in the case of Sham Shankar Kankaria v. State of Maharashtra, [(2006) 13 SCC 165] held as follows:- “11. 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 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 19 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………….” 15. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and (2006) 13 SCC 165 therefore, there is a need to look for corroborative evidence in the present case.” 23. The next question for consideration is whether the dying declaration (Ex.P/5) which is alleged to be given by deceased before (PW-1) Dr. S.N. Dadsena is true and voluntary and it was given by the deceased in a fit mental state. 24. PW-1 Dr. S.N. Dadsena has stated that on 23.03.2018 at about 3:35 p.m., the deceased was brought to the hospital in a burnt condition and upon examination, he found that deceased had sustained 100% burn injuries, there was a smell of kerosene emanating from her body and her burns ranged from first-degree to third-degree. He has further stated that upon medical 20 examination, he found the deceased to be in a fit mental state to give a dying declaration and accordingly issued a certificate to that effect. He has also stated that due to the unavailability of an Executive Magistrate at that time and considering the urgency of the situation, he himself proceeded to record the dying declaration of the deceased in the presence of a staff nurse and a dresser. After recording the statement of deceased, he took the thumb impression of the deceased and obtained the signatures of the witnesses present there. This witness was subjected to cross- examination and in cross-examination, he admitted that the deceased had sustained burns over her entire body, including her palms and face, which were completely burnt. When question was asked about the condition of her thumb, he stated that the skin of the thumb was only slightly burnt and therefore, a symbolic thumb impression was taken. He further admitted that burn injuries can affect the mental condition of a patient. He also admitted that he did not know whether any relatives of the deceased were present at the hospital at the time. Additionally, he admitted that while recording the deceased’s statement, he instructed the Sub- Inspector to wait outside and the dying declaration was recorded inside the dressing room. In paragraph 15 of his statement, he reiterated that the deceased was not in a position to provide a proper thumb impression due to the burn injuries and that only a symbolic thumb impression was taken. 21 25. This apart, PW-12, Dr. M. Nirala has stated that on 30.03.2018, at about 1:30 p.m., he conducted the postmortem examination of the deceased's body. Upon external examination, it was observed that white bandages were tied around the entire body, except for the head, face and pubic region. The body was cold to the touch, rigor-mortis was present and both the eyes and mouth were closed, with the tongue positioned inside the mouth. Details of Injuries:- Burns with dermo-epidermal infection were found on the following parts of the body:- 1. Face and neck – 5% 2. Chest and abdomen – 12% 3. Right upper limb – 9% 4. Left upper limb (excluding palm) – 8.5% 5. Back – 18% 6. Right lower limb (excluding foot) – 17% 7. Left lower limb (excluding foot) – 17% 8. Genitals – 1% According to PW-12 Dr. Nirala, the total percentage of burn injuries was calculated to be 87.5%. Additionally, white slough and green pus sacs were present on both sides of the back, including the buttocks and both thighs. He further stated that upon internal examination, the skull, membranes, brain, and spinal cord were found to be intact and healthy. The diaphragm, ribs, larynx, and trachea were also intact and healthy. Both lungs were intact but congested, with fluid present in the chest cavity. The pericardium, heart, and large blood vessels were intact, with 22 the right ventricle filled with blood. The diaphragm, intestinal mesentery, mouth, and pharynx were intact and healthy. The stomach contained approximately 100 ml of dark-coloured fluid. The small intestine contained digested food, while the large intestine was distended with gas and contained faecal matter. The liver, spleen, and both kidneys were intact and congested. The urinary bladder was intact and empty. Both the internal and external genitalia were found to be intact and normal. According to Dr. Nirala’s opinion, the cause of death was cardiac and respiratory arrest resulting from burn injuries and their complications. 26. Thus, from a perusal of the above medical evidence in the light of aforesaid decisions of Supreme Court, it becomes highly questionable how PW-1 Dr. S.N. Dadsena could have concluded that the deceased was in a fit state of mind to give a coherent and voluntary dying declaration, especially considering that the deceased's body was extensively burnt. The declaration was recorded without the presence of a Magistrate, despite the fact that the case involved a dying declaration by a burn victim in critical condition, a circumstance that normally mandates the presence of an Executive Magistrate to ensure impartiality and procedural fairness. The explanation offered by PW-1 Dr. S.N. Dadsena for the Magistrate’s absence that three Executive Magistrates were unavailable is unsubstantiated by any official record. Additionally, 23 there is no indication that efforts were made to call any relatives of the deceased to witness the dying declaration or confirm the condition of the deceased. Moreover, the method of taking a symbolic thumb impression from a burn-injured palm lacks evidentiary integrity. There is no clarity or documentary support regarding how the symbolic impression was created, nor any photographic or video evidence to confirm the process, which further undermines the credibility of the statement. In the absence of a proper medical fitness certificate clearly stating that the deceased was conscious, oriented and mentally fit to give a statement and in view of the serious admissions made by the doctor himself, the voluntariness and reliability of the dying declaration become deeply doubtful. Besides above, PW-2 Rasiya, PW-3 father of the deceased and PW-4 mother of the deceased have turned hostile and did not support the prosecution case by stating that deceased did not tell them that appellant had poured kerosene over his body, set her ablaze and ran away from the spot. Moreover, PW-9 sister of the deceased has categorically stated that in the hospital, her sister/deceased deceased was not responding anything and she did not know who set her sister/deceased ablaze. That apart, PW-13 Smt. Novita Sinha, Naib Teshildar, has stated that she visited the hospital after the death of deceased and admitted that the hands and palms of deceased were covered with bandages. Apart from this, PW-1 Dr. S.N. Dadsena in the dying declaration certificate has not stated 24 regarding the capability of deceased to give dying declaration, however, on the contrary, in document (Ex.P-3A), he has mentioned that the deceased is capable of recording dying declaration and that both the documents bear the same date and time. This inconsistency between the two documents further casts doubt on the credibility of the declaration. 27. After careful consideration of the entire evidence on record, it becomes clear that the prosecution has failed to establish its case beyond reasonable doubt. There is no direct evidence implicating the appellant and the prosecution’s case solely hinges on the dying declaration (Ex. P/5), however, looking to the nature and extent of the injuries sustained by the deceased, it appears that the deceased was not in a fit state of mind while giving the dying declaration to PW-1, Dr. S.N. Dadsena and the said dying declaration also does not appear to be either true or voluntary. Other important aspects of the case, such as motive, memorandum and seizure, have also not been established by the prosecution in accordance with law. Although the law permits a doctor to record a dying declaration, but such recording must be accompanied by a clear explanation as to why it was not recorded by the concerned Executive Magistrate. In the present case, the Investigating Officer merely stated that three Executive Magistrates were unavailable, but no supporting documents or evidence of efforts in that regard have been produced. Furthermore, the mental and physical fitness 25 of the deceased to give a voluntary statement is highly doubtful. Multiple prosecution witnesses have admitted that the deceased did not make any statement to them alleging that the appellant had poured kerosene oil over her body and set her ablaze and that her physical condition was such that she was not in a position to speak. The doctor (PW-1 S.N. Dadsena), who recorded the dying declaration, himself admitted that both palms of the deceased were bandaged and yet no clear explanation has been offered as to how the thumb impression was obtained. This casts serious doubt on the authenticity and procedural correctness of the dying declaration. It is also pertinent to mention that the dying declaration (Ex.P-5), inquest report (Ex.P-31) and FIR (Ex.P-6) refer to the involvement of two unknown persons, however, the prosecution has failed to clarify the role of the second person or to explain why no charge was brought against them. This unexplained discrepancy further weakens the prosecution’s case. In view of these serious doubts surrounding the voluntariness, authenticity and procedural compliance of the dying declaration, the Court finds it unsafe to rely solely on this piece of evidence. Since the entire case revolves around this doubtful dying declaration and no other cogent or admissible evidence has been presented, the conviction recorded by the Trial Court cannot be sustained. As reiterated by the settled principle of law, suspicion, however grave, cannot take the place of legal proof. 26 28. From the aforementioned facts and circumstances of the case, we are of the opinion that there is no corroborative evidence to the dying declaration and there is no other evidence led by the prosecution to connect the appellant with the offence in question. Therefore, it would be unsafe to convict the appellant on the basis of dying declaration. 29. In view of the aforesaid analysis, we are of the opinion that the conviction recorded by the trial Court on the basis of dying declaration (Ex.P/5) cannot be sustained. As such, conviction and sentence imposed upon the appellant under Section 302 is liable to be quashed and is hereby quashed. 30. Considering the facts relating to recording of dying declaration and after duly testing the authenticity on the basis of parameters laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned trial Court while convicting the appellant-accused for offence under Section 302 of IPC has committed grave legal error as the prosecution has failed to prove its case its beyond reasonable doubt. 31. For the foregoing reasons, criminal appeal filed on behalf of appellant- Rajesh Thakur @ Chhotu @ Rajendra Thakur is allowed and his conviction & sentence under Section 302 of IPC is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is reported to be in jail since 27 24.03.2018, therefore, he shall be released forthwith if no longer required in any other criminal case. 32. 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, Rajesh Thakur @ Chhotu @ Rajendra Thakur 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. 33. 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 Vishakha