1 CGHC010029242023 2026:CGHC:41562 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 31 of 2023 Judgment Reserved on : 23.07.2026 Judgment Delivered on : 24.09.2026 • State Of Chhattisgarh Through The Station House Officer, Police Station Charama District North Bastar Kanker Chhattisgarh. ... Appellant(s) versus • Dilip Kosariya S/o Late Shrawan Kumar Kosariya Aged About 26 Years R/o Village And Police Station Charama, District North Bastar Kanker Chhattisgarh. (Accused) ... Respondent(s) For Appellant(s)/ State : Mr. Rishi Raj Pithawa, Dy. Government Advocate For Respondent(s) : Mr. Parag Kotecha, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. The appellant State has filed the present acquittal appeal under Section 378(1) of the Code of Criminal Procedure, 1973 against the judgment dated 06.10.2017 (Annexure A/1) passed by the learned Additional Sessions Judge (FTC), North Bastar Kanker (C.G.) in Sessions Trial No. 58/2014 by which the learned trial Court has acquitted the accused from commission of charges under Section 306 of IPC. 2. Prosecution case, in brief, is that on 13.05.2014, the victim was MANISH YADAV Digitally signed by MANISH YADAV Date: 2026.09.25 11:01:51 +0530 2 brought to the Community Health Centre in Charama in a burnt condition where primary treatment was given. On 13.05.2014, the Executive Magistrate recorded her dying declaration in accordance with the prescribed procedure (Ex. P/26) wherein she has stated that she herself burnt after pouring kerosene oil on her body due to quarrel with her husband on account of illicit relationship of her husband with another woman. She has also stated that for last one year, her husband is assaulting her. Subsequently, she was referred to a higher medical center for further treatment, before she was transported to the higher medical center, she succumbed to death. On account of unnatural death merg intimation (Ex. P/13) under Section 174 of Cr.P.C. was registered by the Police Station Charama. On the basis of merg, investigation was carried out and thereafter, an FIR bearing Crime No. 160/2014 (Ex. P/20) was registered against the respondent for commission of offence under Section 306 of IPC. 3. After usual investigation and collection of evidence, the prosecution has submitted charge-sheet for commission of offence under Section 306 of IPC before the learned Chief Judicial Magistrate, Kanker (C.G.) who has committed the trial for disposal in accordance with law vide its order dated 23.07.2014 to the learned Sessions Judge, Bemetara, District - Bemetara (C.G.) and registered as Sessions Trial No. 58/2014. The accused was arrested on 03.06.2014 and was released on bail on 07.08.2014. 4. On the basis of evidence and material on record, the learned trial Court has recorded its finding that the prosecution is unable to 3 prove the offence against the accused beyond reasonable doubt accordingly it has acquitted the accused. Being aggrieved with the order of acquittal, the State has filed this acquittal appeal. 5. The learned counsel for the appellant would submit that the impugned judgment of acquittal dated 06.10.2017 is bad in law, perverse and contrary to the material evidence available on record. The learned trial Court has failed to appreciate that the statement of Kerful (PW-2) who has categorically stated that the accused used to assault the victim on account of her character and there was continues quarrel between the deceased and the accused, as such, there is sufficient material to record that the accused has instigated the victim to commit suicide. He would further submit that the learned trial Court has further failed to appreciate the statement of Shakuntala (PW-3), who has categorically stated about the cruelty done by the accused with the victim which has instigated her to commit suicide. He would further submit that the extreme cruelty was done by the accused with the deceased, as such, she has no option but to commit suicide, thus all the ingredients to attract the offence under Section 306 of IPC has been proved, still the trial Court erred in acquitting the accused and would pray for quashing of the impugned judgment of acquittal. 6. Per contra, learned counsel for the respondent would submit that the learned trial Court on appreciation of evidence and material on record, particularly, Ex. P/26 which is the dying declaration of the deceased and statement of the Dr. Seema Singh (PW-11) who has admitted in the cross-examination that the victim was not able to 4 record her statement and similarly, the Awadhsingh Rana (PW-14) who has recorded the dying declaration has clearly deposed that the victim in her evidence has not stated anything about instigation or compulsion to commit suicide, has acquitted the accused. Thus, the learned trial Court has rightly not relied upon the dying declaration and would submit that the finding recorded by the learned trial Court that the prosecution is unable to prove the case against the respondent beyond reasonable doubt neither suffers from perversity nor illegality which warrants interference by this Court and would pray for dismissal of the acquittal appeal. To substantiate his submission he hes referred to the judgment of the Hon’ble Supreme Court in case of M. Mohan vs. the State represented by The Deputy Superintendent of Police, reported in MANU/SC/0161/2011, K.V. Prakash Babu vs. State of Karnataka, reported in MANU/SC/1524/2016, Ramesh Kumar vs. State of Chhattisgarh, reported in MANU/SC/0654/2001. 7. I have heard learned counsel for the parties and perused the record. 8. Considering the rival submissions of the parties, the point emerged for determination by this Court is: “Whether the judgment of acquittal passed by the learned trial Court suffers from perversity or illegality warranting interference by this Court and while acquitting the accused the trial Court was justified in not relying upon the dying declaration of the deceased (Ex. P/26)?” 9. To appreciate the point of determination, this Court has to consider 5 the evidence and material placed as well Section 32 of the Indian Evidence Act which deals with the dying declaration. Section 32 of the Evidence Act reads as under: “32(1). When it relates to cause of death.— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 10. From the evidence of Kerful (PW-2) mother of the deceased, it is quite vivid that the said witness has admitted in her cross- examination that deceased and the accused had love affair, therefore, they have solemnized the marriage and also admitted that since the deceased has eloped with the accused, therefore, they do not like the accused. She has also admitted that the deceased for last 5-6 years of her marriage has never informed her that she was so much harassed with the family members of the accused, as such she does not want to live and has committed suicide. She has also admitted that quarrel on account alleged bad character between the deceased and the accused was not intimated to her by her daughter. As such, there was no material on record to prove the essential ingredients to attract offence under Section 306 of IPC or the accused has abetted the victim to commit suicide. 11. Further from the evidence of Dr. Seema Singh (PW-11), who has examined the victim on 13.05.2014 has admitted in the cross- examination that no certificate regarding the mental status of the 6 deceased was given and also admitted that in Ex. P/14, which is her report she has not inquired about the manner in which the victim was burnt. She has also admitted that in Ex. P/16 which is Post Mortem report, it has not been mentioned how the victim died and voluntarily stated that whether the deceased has burnt herself or she was burnt by others cannot be said and also admitted that victim was 91% burnt which is of second degree, all the burnt are before the death. Thus, it is quite vivid that from the evidence of PW-11 that the victim was not capable of recording her dying declaration. 12. Awadh Singh Rana, Tehsildar (PW-14), who has written the dying declaration of the deceased (Ex. P/26), in his cross-examination has admitted in paragraph 7 that he has not mentioned in Ex. P/26 whether the deceased was capable of speaking or understanding the questionnaire or she was capable to understand physically or mentally, also admitted that in Ex. P/26 he has not mentioned whether he has obtained any opinion of the doctor regarding the victim’s capability to record her statement. He has also admitted that in the Ex. P/26, it has not been mentioned that after recording the dying declaration, the same has been read over and explained to her and also admitted that no medical officer was present at the time of recording of dying declaration. 13. From the appreciation of evidence, it is quite vivid that the dying declaration (Ex. P/26) was not such a nature which inspires confidence of the Court regarding its truthness, correctness and the statement of the deceased is a result of either torturing or 7 prompting or product of imagination. From the evidence of PW-14 also, it is quite vivid that mode and manner in which the dying declaration came to be recorded is also something which creates a doubt regarding its trustworthiness. From the overall assessment of the material and evidence of PW-14, perusal of the Ex. P/26 this Court can reach to conclusion that the dying declaration does not inspire any confidence nor the oral evidence of PW-14 which on consideration by this Court give rise to reverse the well reasoned finding of acquittal recorded by the trial Court. 14. The Hon’ble Supreme Court while examining the provisions of Section 32 of the Evidence Act has considered under which circumstances the dying declaration can be relied upon and on the basis of dying declaration of deceased the accused can be convicted in case of Irfan @ Naka vs. State of Uttar Pradesh reported in 2023 SCC Online 1060 and has held in paragraph 58 and 60 to 62 as under: “58. This Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465 and Bhajju alias Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327 had explained the meaning and principles of dying declarations upon which its admissibility is founded, with the following observations:— “20. There is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life and Death of King John, Shakespeare had made Lord Melun utter “Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, … lose the use of all deceit” and asked, “Why should I then be false, since it is true that I must die here and live hence by truth?” William Shakespeare, The Life and Death of King John, Act 5, Scene 4, lines 22-29. 22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis 8 for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. 23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator. 24. There is a legal maxim “nemo moriturus praesumitur mentire” meaning, that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act state: “when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross- examination are dispensed with”. 25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.” 60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit. 61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a 9 presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone. 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? (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?” 15. Considering the facts of the present case and evidence, it is quite vivid that dying declaration which is a substantive piece of evidence can be relied upon if found to be genuine and reliable to prove the case and same was voluntarily, truthful and the victim was in a fit state of mind to give dying declaration. Considering the well settled 10 position of law that it 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. As such, it is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised regarding the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. In the present case, even the PW-2 mother of deceased has categorically stated in paragraph 12 of her evidence, that the deceased has never told her regarding ill treatment or cruelty done by the accused or his family members and she does not want to live. As such, the circumstances rendering statement of the declarants is very doubtful. Therefore, learned trial Court is justified in recording its finding in paragraph 19 of the judgment that dying declaration is not reliable and the prosecution is unable to prove the case against the respondent/accused beyond reasonable doubt that he has instigated his wife/deceased to commit suicide to attract the offence under Section 306 of IPC. 16. Further considering the law that if one view has been taken by the trial Court which is in favour of the accused, normally the appellate Court should not interfere in the case of acquittal, unless the finding is so perverse that only one view of conviction is possible for the appellate Court. The Hon’ble Supreme Court in case of Constable 11 907 Surendra Singh and Anr vs. State of Uttarakhand {2025 INSC 114} dealt with the issue when an appellate Court can interfere in the order of acquittal passed by the trial Court and held in paragraph 12 as under:- “12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 17. In the present case, as observed by the learned trial Court, the prosecution has failed to place on record any evidence to show that the respondent has instigated the deceased to commit suicide by burning herself to attract the offence under Section 306 of the IPC, therefore, I am of the view that the learned trial Court has not committed any illegality or perversity in acquitting the respondent from the charges punishable under Section 306 of the IPC which warrants interference by this Court. 18. Consequently, the point of determination is answered against the appellant and in favour of respondent by dismissing the appeal. 19. In the result, following order is passed:- (i) The acquittal appeal is dismissed. (ii) The judgment of acquittal passed by the learned trial Court dated 06.10.2017 in Sessions Trial No. 58/2014 is affirmed. Sd/- (Narendra Kumar Vyas) Judge Manish