Page No.1 of 23 IN CRA-607-2015 2025:CGHC:54096-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 607 of 2015 [Arising out of judgment dated 15.04.2015, passed in Sessions Trial No.81 of 2012 (State of Chhattisgarh v. Deepak Shukla) by the 2nd Addl. Sessions Judge, Raigarh (CG)] Deepak Shukla. S/o Late Nand Kumar Shukla, aged about 34 years, R/o Baikunthpur, Raigarh, Police Station City Kotwali, Raigarh District Civil and Revenue Raigarh (CG) ... Appellant Versus 1. State of Chhattisgarh S/o Through The Station House Officer, Police Station City Kotwali, Raigarh, District Raigarh (CG) 2. Objector - Parmanand Mishra, died through LR- Narmada Devi Mishra, W/o Parmanand Mishra, R/o Qt. No.5-A, Road No.31, Sector-7, Bhilai Nagar, District Durg (CG) ... Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------------ For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent-State : Mr. Ajay Kumar Pandey, Panel Lawyer For Objector : Mr. M.K. Sinha, Advocate ------------------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06.11.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of the Code of Criminal Procedure (for short the “CrPC”), the accused-appellant is calling in question the legality, SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 23 IN CRA-607-2015 validity and correctness of the impugned judgment of conviction and order of sentence dated 15.04.2015, passed in Sessions Trial No.81 of 2012 (State of Chhattisgarh v. Deepak Shukla) by the 2nd Addl. Sessions Judge, Raigarh (CG), whereby he has been convicted for offence under Section 302/34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.3,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 01 year. (2) The case of the prosecution, in short, is that on 19.03.2012, at about 10:30 AM, in their own house, situated at Baikunthpur, District Raigarh (CG), the accused-appellant herein firstly shared common intention with his mother, namely, Ahilaya Bai and, in furtherance thereof, poured kerosene oil over the body of his wife, namely, Savita Shukla (hereinafter referred to as the “deceased”) and set her ablaze, due to which, the deceased suffered burn injuries and died later on during the course of her treatment in the hospital on the same day i.e. 19.03.2012 at about 10:10 PM and, thereby, the appellant is said to have committed the aforesaid offence. (3) It is further case of the prosecution that immediately after the incident at about 11:02 AM, the deceased was escorted to Kirodimal Government Hospital, Raigarh for treatment and, thereafter, at about 11:10 AM, information with regard to the same was given by Dr. S. Lakra (PW-01) to the police vide Ex.P/01. Similarly, at about Page No.3 of 23 IN CRA-607-2015 11:15 AM, information with regard to admission of injured person, namely, Ahilya Devi, Deepak Shukla (appellant herein) and Anchal Shukla, in the same incident was also given by Dr. S. Lakra (PW-01) to the police vide Ex.P/02. Thereafter, from the place of incident, 20 ltrs. Tarpin, 1 red color & 1 green color burnt chhintdar sadis were seized vide Ex.P/08. At about 12:10 PM, on the same day, dying declaration of the deceased was recorded by Executive Magistrate- Neelam Toppo (PW-10). At about 02:10 PM, MLC of the deceased was prepared by Dr. S. Lakda (PW-01) vide Ex.P/03, wherein it has been opined that the deceased has suffered burn injuries to the extent of 95-100%. FIR (Ex.P/16) was registered by the IO- Albert Tirkey against the appellant and further site map/crime details form was also prepared vide Ex.P/17. Meanwhile, on the same day, at about 10:10 PM, the deceased succumbed to the injuries and died in the hospital, upon which, merg intimation was recorded vide Ex.P/04 and inquest proceedings were also conducted vide Ex.P/05. Thereafter,the dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. RN Mandawi (PW-06) and Dr. Usha Kiran (PW-07) and, according to the PM report (Ex.P/07) of the deceased, her cause of death has been opined to be periphery circulatory failure due to 95% burn injuries. The appellant was arrested vide Ex.P/18. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent Court of criminal jurisdiction Page No.4 of 23 IN CRA-607-2015 and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 21 documents, whereas the appellant- accused in support of his defence, examined 02 witnesses and exhibited 06 documents apart from Article-A/1 to Article-A/16. (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant herein for offence under Section 302/34 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Rishi Rahul Soni, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302/34 of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that the learned trial Court committed grave legal error in holding that Dr. S. Lakra (PW- 01), who has admitted the deceased in the hospital and before whom the deceased has given oral dying declaration is not reliable, as no Page No.5 of 23 IN CRA-607-2015 re-examination was conducted by the prosecution to explain his statement made in the cross-examination, which runs contrary to the decision of the Supreme Court in the matter of Mir Mustafa Ali Hasmi v. State of Andhra Pradesh 1 (Para-62) and, therefore, the learned trial Court ought to have relied upon the statement of Dr. S. Lakra (PW-01), who has admitted the deceased in the hospital and before whom the deceased has made oral dying declaration. The identity of the doctor who has certified the deceased to be in fit state of mind to give statement while recording the dying declaration (Ex.P/10) has neither been cited as a witness nor brought to the witness-box to be examined before the Court and, in view of statement of Dr. S. Lakra (PW-01) and in light of the decision of the Supreme Court rendered in Kanchy Komuramma v. State of Andra Pradesh 2 and Uttam v. State of Maharashtra 3 , the examination of said doctor was very much necessary. Additionally, learned counsel also relied upon Laxman v. State of Maharashtra 4 , to state that Executive Magistrate, namely, Neelam Toppo (PW-10) who has recorded dying declaration of the deceased, has not made any statement to the effect that while recording the dying declaration of the deceased, she was in fit state of find to give statement. Even, witness to the said dying declaration (Ex.P/10), namely, Ashok Sethi 1 (2024) 10 SCC 489 2 1995 Supp. (4) SCC 118 3 (2022) 8 SCC 576 4 (2002) 6 SCC 710 Page No.6 of 23 IN CRA-607-2015 has neither been cited as witness nor brought to the witness-box to be examined before the Court for the reasons best known to the prosecution. Lastly, learned counsel for the appellant submits that the factum of deceased giving oral dying declaration to her parents, namely, Parmanand Mishra (PW-03) and Narmada Devi Mishra (PW-04) is not admissible in evidence in absence of any further corroboration and even the testimony of Parmanand Mishra (PW-03) and Narmada Devi Mishra (PW-04) cannot be held reliable as they are highly interested witnesses being parents of the deceased. He also relied upon the decision of Irfan @ Naka v. State of Uttar Pradesh 5 wherein it is 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 while recording the same. Hence, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellant deserves to be acquitted from the said charge on the basis of benefit of doubt. (7) Per-contra, learned State counsel and learned counsel appearing for the objector 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/10) coupled with other evidence available on 5 2023 SCC Online SC 1060 Page No.7 of 23 IN CRA-607-2015 record, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) Now the question for consideration before us would be whether the appellant herein is the author of the crime in question and, whether under the facts and circumstances of the present case, the learned trial Court has rightly convicted the appellant for offence under Section 302/34 of IPC ? (10) In the case at hand, the conviction of the appellant is premised on: (i) the dying declaration (Ex.P/10) recorded by Executive Magistrate- Neelam Toppo (PW-09); (ii) while recording the said dying declaration the learned trial Court has rejected the testimony of Dr. S Lakra (PW-01), who has admitted the deceased in the hospital and treated her and (iii) oral dying declaration given by the deceased to Parmanand Mishra (PW-03) and Narmada Devi Mishra (PW-04). (11) 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.— Page No.8 of 23 IN CRA-607-2015 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” (12) 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 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 Page No.9 of 23 IN CRA-607-2015 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. (13) 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 v. State of Maharashtra6 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 6 (1984) 4 SCC 116 Page No.10 of 23 IN CRA-607-2015 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. (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 Page No.11 of 23 IN CRA-607-2015 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.” (14) 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 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 Punjab7 reviewing the earlier authorities. (15) In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)8, principles relating to recording of dying declaration and its admissibility and reliability were summed 7 AIR 2000 SC 2324 8 (2020) 11 SCC 489 Page No.12 of 23 IN CRA-607-2015 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 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. Page No.13 of 23 IN CRA-607-2015 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” (16) A Constitution Bench of the Supreme Court in the matter of Laxman v. State of Maharashtra9 has clearly held that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. Their Lordships held in paragraph 5 of the report as under: - “5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab10 wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.11 (at SCC p. 701, para 8) to the effect that 9 (2002) 6 SCC 710 10 (1999) 6 SCC 545 11 (1999) 7 SCC 695 Page No.14 of 23 IN CRA-607-2015 "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma v. State of A.P.8 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat12. (17) The Constitution Bench of the Supreme Court in Laxman (supra) has held that what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Their Lordships further held that where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. (18) Further, in the matter of Irfan @ Naka v. State of Uttar 12 (1999) 9 SCC 562 Page No.15 of 23 IN CRA-607-2015 Pradesh 13 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 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.” (19) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in aforesaid judgments, it is quite vivid that the prosecution was required to prove that the deceased has given dying declaration (Ex.P/10), which is true and voluntary and further she was in fit state of mind while recording the same. In the present case, the dying declaration of the deceased was recorded by Executive Magistrate, namely, Neelam Toppo (PW- 09) on the date of incident at about 12:10 PM, which reads as under: “EkjuklUu c;ku LFkku & ftyk fpfdRlky; jk;x<+] cuZ ;wfuV fnukad&19@03@12 le;& 12%10 pm Jherh lfork ’kqDyk c;ku nsus ;ksX; gSaA 13 2023 SCC Online SC 1060 Page No.16 of 23 IN CRA-607-2015 uke& Jherh lfork ’kqDyk ifr nhid ’kqDyk] mez& 30 o"kZ] fuoklh& cSdq.Biqj] jk;x<+] rglhy o ftyk& jk;x<+ ¼N-x-½ iz’u& dSls tyh vki\ mRrj& esjk ifr vkSj lkl] nksuksa feydj esjs dks tyk fn,A esjk ifr esjs dks jkst ekjrk FkkA iz’u& ifr D;ksa ekjrk Fkk\ mRrj& esjk ifr jkst ekjrk Fkk vkSj ?kj ls fudkyrk FkkA og nwljh ’kknh djuk pkgrk FkkA iz’u& D;ksa nwljh ’kknh djuk Fkk\ mRrj& mldks ukSdjh okyh iRuh pkfg, FkhA iz’u& dSls tyk, vkidks\ mRrj& feV~Vh rsy MkydjA iz’u& fdlus feV~Vh dk rsy Mkyk vkSj fdlus vkx yxkbZ\ mRRkj& nksuksa feydjA iz’u& lkl us D;ksa yxkbZ vkx\ mRrj& lkl ls esjk iVrk ugha FkkA c;ku Ik<+dj lquk;k] lgh gksuk Lohdkj ¼nksuksa gkFk vkSj maxfy;k¡] vaxwBk tys gksus ds dkj.k gLrk{kj vFkok vaxwBk fu’kku ugha fy;k tk ldk½ xokg& 19&03&12 1- v’kksd vk- fot; lsBh] ,u- VksIiks mez&27 o"kZ] fuoklh] fdjksM+heyuxj] rglhynkj ,oa dk;Zikyd jk;x<+ n.Mkf/kdkjh] jk;x<+” (20) A bare perusal of the above dying declaration would show that, on the top of it, it has been certified by the doctor that the deceased is in fit state of mind to record the dying declaration, but surprisingly, neither the said doctor, who has certified the deceased to be in fit state of mind to give statement, has been examined nor cited as witness and, even, the Executive Magistrate- Neelam Toppo (PW-09), who has recorded the same, did not record his satisfaction that at the time of recording of dying declaration the deceased was in fit state of mind to give statement. Even, in his statement before the Court, Executive Magistrate- Neelam Toppo (PW-09) has only proved Page No.17 of 23 IN CRA-607-2015 the factum of recording of dying declaration, and did not prove the fact that the deceased was in fit physical & mental condition at the time of making dying declaration. Moreover, in Para-10, he has clearly stated that the he could not identify the doctor who has certified the deceased to be in fit condition to give statement. As such, there is no evidence at all to show whether at the time of recording of dying declaration of the deceased, she was in fit state of mind to give statement. However, Dr. S. Lakra (PW-01), who has admitted the deceased in the hospital and treated her before her death, in Para-05 has clearly stated that when the deceased was brought to the hospital she was not in the condition to speak properly and in para-06 he has further stated that on being asked the deceased has informed that she herself and by her own came into the contact of fire and suffered burn injuries. He further stated that he has given medicine to the deceased and other three injured persons to remain unconscious and the effect of said medicine in body continues for 03 hours and, after which, there was lunch break in the hospital and, after which when he saw the deceased, he found her unconscious on account of administration of medicine. However, the testimony of Dr. S. Lakra (PW-01) has been rejected by the learned trial Court on the ground that the factum of the deceased giving oral dying delectation to him has not been mentioned in his MLC report (Ex.P/03). (21) True it is that the factum of the deceased giving oral dying Page No.18 of 23 IN CRA-607-2015 delectation to Dr. S. Lakra (PW-01) has not been mentioned in his MLC report (Ex.P/03), but once in cross-examination, this witness has deviated from the case setup by the prosecution, the prosecution was obliged to re-examine him to explain the matter referred to in the cross-examination, as provided under Sections 137 & 138 of the Indian Evidence Act, 1872, which states as under: “137. Examination-in-chief. –– The examination of witness by the party who calls him shall be called his examination-in-chief. Cross-examination. –– The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. ––The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 138. Order of examinations. Witnesses shall be first examined-in-chief then (if the advere party so desires) cross-examined, then (if the party calling him so desires) re-examined.The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. - The re-examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” (22) The Supreme Court in the matter of Rammi @ Rameshwar v. State of Madhya Pradesh 14 held that the very purpose of re- examination is to explain matters which have been brought down in cross-examination. It has also been held that if the party who called the witness feels that explanation is required for any mnatter 14 AIR 1999 SC 3544 Page No.19 of 23 IN CRA-607-2015 referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation and observed in Para-16 to 19 as under: “16. The very purpose of re-examination is to explain matters which have been brought down in cross- examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: Direction of re-examination.- The re- examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 17. There is an erroneous impression that re- examination should be confined to clarification of ambiguities which have been brought down in cross- examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination. 18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions. Page No.20 of 23 IN CRA-607-2015 19. A Public Prosecutor who is attentive during cross- examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross- examination and formulate necessary questions to be put in re-examination. There is no warrant that re- examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination. ” (23) Similarly, the Supreme Court in the matter of Mir Mustafa Ali Hasmi (supra) held as under: “62. As we have observed above that the entire case seems to have been planned at the behest of M. Ashok, it is clear that the complainant (PW 1) was simply used as a tool to get the appellant (AO-1) trapped on made-up allegations. The High Court while discussing the case, brushed aside the said part of the evidence of the complainant (PW 1) by observing that the same was an afterthought. However, the fact remains that these vital facts were elicited during the cross-examination of the complainant (PW 1) and hence, the benefit thereof would have to be given to the appellant (AO-1) more particularly as the prosecution did not make any effort to clarify this anomaly by way of re-examination. If at all, the prosecution felt that the captioned admission extracted above as appearing in the cross-examination of the complainant (PW 1) was a material deviation from the case set up by the prosecution, then, the Public Prosecutor was under an obligation to re-examine the witness to remove the anomaly. Having failed to do so, the prosecution cannot be permitted to cry foul that the decoy complainant (PW 1) modulated his testimony in the cross-examination so as to favour the accused…….” (24) As such, in the present case, the public prosecutor failed to re- examine the facts stated by the witness i.e. Dr. S. Lakra (PW-01) in cross-examination and did not took advantage of his right of re- Page No.21 of 23 IN CRA-607-2015 examination of the material witness i.e. Dr. S. Lakra (PW-01), who not only examined the deceased but have also admitted her into the hospital and treated her, administered her painkiller and other medicines. Therefore, the learned trial Court is absolutely justified in rejecting the testimony of Dr. S. Lakra (PW-01). As such, the admission of Dr. S. Lakra (PW-01) that he has given painkiller and other medicine to the deceased at that the time of her admission to the hospital and, due to which, she became unconscious and, further, in absence of examination of the doctor who has certified the deceased to be in fit state of mind to give statement and further Executive Magistrate- Neelam Toppo (PW-09) has also not stated that at the time of recording of the dying declaration the deceased was in fit state of mind, we hereby hold that the prosecution has failed to prove the dying declaration to be true and voluntary and the deceased was in fit physical and mental condition to make dying declaration in light of decision of Irfan @ Naka (supra). (25) So far as the factum of deceased giving oral dying declaration to her parents is concerned, the same is also not free from doubt and cannot be relied upon that too when they are close relatives of the deceased being father and mother respectively. The law with regard to oral dying declaration is well settled. It has been held by their Lordships of the Supreme Court that the oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court Page No.22 of 23 IN CRA-607-2015 is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration (See: Darshana Devi v. State of Punjab 15 ; Arun Bhanudas Pawar v. State of Maharashtra 16 and Walkom Yaima Singh v. State of Manipur 17 ). Hence, in light of the above, the oral dying declaration given by the deceased to her parents cannot be said to be reliable piece of evidence. (26) In view of foregoing analysis, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant for the offence in question. Accordingly the conviction of the appellant for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment alongwith the fine and default stipulation, as imposed upon him by the learned trial Court, is hereby set aside. The appellant is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 15 1995 Supp. (4) SCC 126 16 (2008) 11 SCC 232 17 (2011) 13 SCC 125 Page No.23 of 23 IN CRA-607-2015 (27) Consequently, this criminal appeal is allowed to the extent indicated hereinabove. However, it is made clear that the observations and finding recorded by us in this judgment only relates to the appellant herein and same shall not be treated as an opinion on the merits of the case for the co-accused persons. (28) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any. sd/- sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if