1 2026:CGHC:7289-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1380 of 2023 Rahul Bisra S/o Late Rajaram Bisra, aged about 24 years R/o Village Savitripur, Police Station Sankra, District - Mahasamund Chhattisgarh. ... Appellant versus State of Chhattisgarh, through SHO, the District Magistrate Mahasamund District - Mahasamund Chhattisgarh. ... Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Anoop Kumar T. Sharma, Advocate For Respondent/State : Mr. Saumya Rai, Dy. Govt. Advocate ---------------------------------------------------------------------------------------------- Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 10 . 02 .202 6 1. Today, though the appeal is listed for disposal of I.A.No.02/2026, which is repeat application for suspension of sentence and grant of bail to the appellant, however, considering the period of detention and with the consent of learned counsel for the parties, we proceed to hear the appeal finally. 2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 29.04.2023 passed by the 1st Additional Sessions Judge, Mahasamund, District Mahasamund ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 in Sessions Trial No. 48/2020, whereby learned trial Court has convicted the appellant for offences under Sections 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo RI for one month. 3. The prosecution case, in brief, is that on 31.03.2020, Sub- Inspector Lal Bahadur Singh of Sankara Police Station received information from Dial 112 that Smt. Sunita Bisra, resident of Savitripur, had been set on fire by her husband, Rahul Bisra, at her home. She was being taken to the Government Hospital, Pithora, for treatment. Upon receiving this information, he arrived at Community Health Centre, Pithora, where the doctor said that the woman was brought in 80% burnt condition. Based on the information given by the doctor, the dying declaration of the deceased Smt. Sunita Bisra was recorded as per Ex.P-16. In the dying declaration, the deceased stated that the accused Rahul Bisra had poured kerosene oil on her body and set it on fire with the intention of killing her on the grounds that she was having an affair with someone. On the said basis, a rural complaint was filed against the accused under Section 307 of the Indian Penal Code, on the basis of which a First Information Report was registered. During treatment Smt. Sunita Bisra died on 03.042020, following which an intimation report was filed at Golbazar Police Station. Based on this information, the Sankara Police Station registered a case number 100/2020, a report of untimely and accidental death. 3 During the investigation, based on the memorandum statement of accused Rahul Bisra, the kerosene oil can, matchbox, burnt matchstick, and bamboo stick used in the murder were seized. He confessed to the crime and was arrested. The seized kerosene oil can, matchbox, burnt matchstick, and bamboo stick were sent to the FSL, Raipur for testing. 4. After the investigation was completed, a charge sheet was filed against accused Rahul Bisra under sections 307 and 302 of the Indian Penal Code before the concerned jurisdictional Criminal Court, wherefrom the case was committed to the Court of Sessions, Mahasamund and subsequently, the case has been transferred to the Court of 1st Additional Sessions Judge, Mahasamund, District Mahasamund for its disposal. 5. When the charges were framed against the accused under Sections 302 of the IPC and were read out and explained to the accused, he denied committing the crime and expressed his desire for trial; hence his plea were recorded. 6. In order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 35 documents Exs.P-1 to P- 35. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, he examined none in his defence. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 29.04.2023 convicted and sentenced the appellant as mentioned in the 2nd paragraph of 4 this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the CrPC by the appellant. 8. Mr. Anoop Kumar T. Sharma, learned counsel for the appellant vehemently argued that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubts. 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 deceased Smt. Sunita Birsa and recorded by Dr. Smt. Tara Agrawal (PW-8) that too not supported by the certification of medical expert as to whether the deceased was in a fit state of mind to give such statement. Merely on the basis of dying declaration and in absence of any direct evidence, conviction of the appellant under Section 302 IPC cannot be sustained. He further submitted that submitted that the deceased sustained burn injuries on 31.03.2020 and admittedly died after nearly three days, on 03.04.2020, while undergoing medical treatment. The prosecution has failed to establish that the injuries allegedly caused by the appellant were the direct and proximate cause of death, excluding all intervening factors such as complications during treatment or infection. No specific medical opinion has been brought on record to conclusively link the injuries sustained 5 on the date of incident with the eventual death after three days. It is further submitted that the conviction is substantially based on the alleged dying declaration (Ex.P-16), which suffers from serious legal infirmities. The dying declaration was recorded by the doctor herself and not by an Executive Magistrate, despite the fact that the deceased survived for three days and sufficient time was available. More importantly, there is no certification by a medical expert that the deceased was in a fit state of mind to make a voluntary statement, although she had suffered 80% burn injuries. The doctor acted as both the recorder and certifier, without any independent endorsement of mental fitness. In these circumstances, the dying declaration does not inspire confidence and cannot be safely relied upon as the sole basis for conviction. In support of his contention, he placed reliance upon the judgment passed by the Hon’ble Supreme Court in Paparambaka Rosamma & Ors. Vs. State of Andhra Pradesh 1 . He lastly submitted that in view of the aforesaid submissions, the impugned judgment of conviction and order of sentence deserves to be set aside being contrary to the material available on record. 9. Per contra, Mr. Saumya Rai, learned Deputy Government Advocate, appearing for the State opposed the aforesaid submissions and submitted that the prosecution has successfully proved its case beyond reasonable doubt. The mere fact that the deceased succumbed to burn injuries after three days of the incident does not weaken the prosecution case in any manner. 1 (1999) 7 SCC 695 6 The medical evidence on record clearly establishes that the deceased had sustained about 80% burn injuries, which are inherently fatal in nature. The post-mortem report and medical testimony conclusively link the burn injuries sustained on 31.03.2020 with the death of the victim on 03.04.2020, thereby establishing a clear and unbroken chain of causation. The delay in death due to medical treatment cannot dilute the offence under Section 302 IPC, particularly when the injuries were sufficient in the ordinary course of nature to cause death. 10. So far as the dying declaration is concerned, it is submitted by learned State counsel that the same has been lawfully recorded by the treating doctor, who is an independent and competent witness. It is well settled that recording of a dying declaration by an Executive Magistrate is not mandatory, and a dying declaration recorded by a doctor is legally admissible. The doctor has deposed that the deceased was conscious and capable of making a statement at the time of recording the dying declaration. Merely because there is no separate written certificate of fitness does not render the dying declaration unreliable, especially when the evidence of the doctor recording the statement clearly establishes the mental fitness of the deceased. The dying declaration is consistent, voluntary, and inspires full confidence, and therefore, the learned trial Court has rightly relied upon it to convict the appellant under Section 302 IPC. 11. We have heard learned counsel for the parties and considered 7 their rival submissions made herein-above and also went through the record with utmost circumspection. 12. The appellant has solely been convicted on the basis of dying declaration Ex.P-16 and there is no other piece of evidence, no legal evidence much less oral and circumstantial evidence to convict the appellants except the aforesaid dying declaration. Therefore, it would be appropriate to consider the dying declaration recorded by Dr. Smt. Tara Agrawal (PW-8). 13. 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 rel- evant.—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 evi- dence,or whose attendance cannot be procured without an amount of delay or expense which, under the cir- cumstances of the case, appears to the Court unrea- sonable, 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 transac- tion 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. 8 xxx xxx xxx” 14. 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 Maharashtra2 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”: “21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:- (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide,provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where 2 (1984) 4 SCC 116 9 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 32does 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 10 the four corners of Section 32 and, therefore,admissible. The distance of time alone in such cases would not make the statement irrelevant.” 15. Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana3, 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 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 3 (2012) 10 SCC 763 11 his death, in cases in which the cause of that person’s death comes into question.” 16. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi)4, principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: - “21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:- 21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court. 21.2.The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 4 (2020) 11 SCC 489 12 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” 17. The question for consideration is, whether the statement of the deceased recorded by Dr. Smt. Tara Agrawal (PW-8) during the course of treatment is relevant under Section 32 of the Evidence Act or not? 18. 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 13 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 Punjab5 reviewing the earlier authorities. 19. The Supreme Court in the matter of Irfan @ Naka v. The State of Uttar Pradesh6 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? (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? 5 AIR 2000 SC 2324 6 2023 SCC OnLine SC 1060 14 (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.” 20. With regard to the absence of separate certificate regarding fit state of mind of victim Priya Deep before making dying declaration, relying on the judgment, the Supreme Court in the matter of Paparambaka Rosamma and others v. State of A.P.7 has held as under:- “9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified “patient is conscious while recording the statement”. It has 7 (1999) 7 SCC 695 15 come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.” 21. Upon reappreciation of the entire evidence on record, this Court finds that the conviction of the appellant is primarily founded upon the alleged dying declaration (Ex.P-16) said to have been recorded by the treating doctor. 16 22. It is not in dispute that the deceased Smt. Sunita Bisra sustained burn injuries on 31.03.2020 and succumbed to those injuries on 03.04.2020, i.e., after a lapse of nearly three days, while undergoing medical treatment. The prosecution has failed to bring on record any cogent medical evidence to conclusively establish that the injuries sustained on the date of the incident were the direct and proximate cause of death, excluding all possible intervening factors during treatment. The mere survival of the deceased for three days casts a serious doubt on the prosecution version in the absence of a clear medical opinion establishing an unbroken causal link. 23. Coming to the dying declaration, this Court finds serious infirmities affecting its reliability. The dying declaration was recorded by the doctor herself and not by an Executive Magistrate, despite the fact that the deceased remained alive for three days after the incident and sufficient opportunity was available to summon a Magistrate. No explanation has been offered by the prosecution for such omission. 24. More importantly, the dying declaration does not bear any certification by a medical expert regarding the mental fitness of the deceased at the time of making the statement. The deceased had sustained approximately 80% burn injuries, and in such a critical condition, strict compliance with safeguards regarding mental fitness becomes imperative. The doctor, who recorded the statement, also acted as the sole authority to assess fitness, 17 without any independent or contemporaneous endorsement. This procedural lapse materially affects the credibility of the dying declaration. 25. It is a settled principle of law that though a dying declaration can form the sole basis of conviction, it must inspire full confidence and be free from doubt. In the present case, considering the manner of recording, absence of medical certification, and lack of corroboration, the dying declaration cannot be held to be wholly reliable. 26. Apart from the dying declaration, there is no direct eyewitness to the occurrence. The alleged recoveries, based on the memorandum statement of the accused, by themselves are insufficient to sustain a conviction for murder in the absence of reliable substantive evidence. 27. Criminal jurisprudence mandates that the prosecution must prove its case beyond reasonable doubt, and where two views are possible, the one favourable to the accused must be adopted. The cumulative effect of the infirm dying declaration, delayed death, and lack of conclusive medical linkage entitles the appellant to the benefit of doubt. 28. For the reasons stated hereinabove, this Court is of the considered opinion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. 29. Accordingly, the criminal appeal is allowed. The judgment of conviction and sentence dated 29.04.2023 passed by the learned 18 1st Additional Sessions Judge, Mahasamund, in Sessions Trial No. 48/2020, convicting the appellant under Section 302 IPC, is hereby set aside. 30. The appellant Rahul Bisra is acquitted of the charge under Section 302 of the Indian Penal Code. He shall be released forthwith, if not required in connection with any other case. 31. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of BNSS), the accused-appellant, namely, Rahul Bisra 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. 32. The lower 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/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra