Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the four appellants herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 7-8-2014 passed by the 1st Additional Sessions Judge, Durg, in Sessions Trial No.170/2013, by which while acquitting them under Section 498A of the IPC, the trial Court has convicted them under Section 302 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life & pay a fine of 1,000/- each, in default, to further undergo additional rigorous imprisonment for six months.

2. It is admitted position on record that appellant No.1 is husband of the deceased, whereas, appellants No.2 & 4 are father-inlaw & mother-in-law of the deceased, respectively, and appellant No.3 is sister-in-law of the deceased

3. Case of the prosecution, in a nutshell, is that on 27-4-2013, the appellants herein poured kerosene oil on the body of deceased Shashi and set her ablaze, thereby she suffered serious burn injuries and died on 8-5-2013 while undergoing treatment at JNM Hospital, Bhilai. Further case of the prosecution, in brief, is that deceased Shashi was married to appellant No.1 Ramesh Kumar Morya (A-1) in the year 2010 as per the Hindu rites and rituals. It is also the case of the prosecution that immediately after marriage, the appellants started treating deceased Shashi with cruelty and on 27-4- 2013, appellant No.1 came and quarrelled with her and after some time, he came along with the three other appellants A-2, A-3 & A-4 and caught hold of her and A-4 i.e. mother-in-law poured kerosene oil on her body and A-3 i.e. sister-in-law set her ablaze by matchstick by which she cried and thereafter, some how, she went to her room and poured water on her body and thereafter, the appellants took her to Government Hospital, Utai where she was examined by Dr. M.K. Singh (PW-1) who found burn injuries on her body and referred her to District Hospital, Durg vide Ex.P-2. In District Hospital, Durg, Dr. (Smt.) Sarita Minj (PW-12) extended primary treatment to deceased Shashi and found 60% deep burn injuries and referred her to Medical College Hospital, Raipur for further treatment, however, her family members took her to Sector-9 Hospital, Bhilai where she was treated by Dr. Anirudh Mene (PW-11) before whom she has stated, on being asked, that her in-laws have got her burnt which finds place in bedhead ticket Ex.P-41 and during her treatment, her dehati nalishi Ex.P-20 was recorded at the instance of deceased Shashi in which she has implicated the appellants herein (A-1 to A-4). FIR was registered vide Ex.P-19 and dying declaration of deceased Shashi was recorded by Executive Magistrate R.B. Dewangan (PW-15) on 28-4-2013 at 5.15 p.m. vide Ex.P-45. Other necessary statements of the victim was recorded and the accused persons were arrested on 29-4- 2013. Deceased Shashi died on 8-5-2013 at 3.15 p.m. while undergoing treatment at JNM Hospital, Bhilai which was informed to police vide Ex.P-15. Inquest was prepared vide Ex.P-44 and dead body was subjected to postmortem vide Ex.P-46 which was conducted and proved by Dr. R.K. Nayak (PW-16) who opined that cause of death was shock due to extensive burn injuries with septicemia. Seized articles were sent for chemical examination to the FSL, Raipur, from where report Ex.P-47 was received in which presence of kerosene oil was found of the articles. Statements of the witnesses were recorded under Section 161 of the CrPC.

4. After due investigation, the appellants were charge-sheeted before the jurisdictional criminal court and charges were framed against them under Sections 498A read with Section 34 & 302 read with Section 34 of the IPC and the case was committed to the Court of Sessions, Durg from where the learned 1st Additional Sessions Judge, Durg, received the case on transfer for trial and for hearing and disposal in accordance with law.

5. The prosecution in order to bring home the offence, examined as many as 16 witnesses PW-1 to PW-16 in support of its case and exhibited 47 documents Exs.P-1 to P-47. Defence has not examined any witness in support of its case and exhibited no document. Statements of the accused / appellants were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence and false implication.

6. The trial Court after completion of trial and upon appreciation of oral and documentary evidence on record, by its impugned judgment, while acquitting the appellants under Section 498-A of the IPC, convicted and sentenced them 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 CrPC by the appellants.

7. Mr. Rahil Arun Kochar, learned counsel appearing for the appellants, would submit that conviction of the appellants is based on the dying declaration Ex.P-45 recorded by R.B. Dewangan (PW-15), Tahsildar-cum-Executive Magistrate, Durg, but there is no satisfaction recorded either by the doctor or by the Executive Magistrate himself that the deceased was in fit state of mind to make dying declaration and secondly, though Ex.P-20 – dehati nalishi is not admissible in evidence in view of the fact that it was recorded by a police officer I.A. Kherani (PW-10), who has clearly stated in his statement that he has obtained medical certificate of the deceased in respect of her fitness, but it has not been produced on record. The dying declaration recorded by Dr. Anirudh Mene (PW-11), who has treated the deceased in Sector-9 Hospital, Bhilai, states that the deceased has stated before him that sasuralwale (inlaws) have set her ablaze, as such, it is full of uncertainty and it is as vague as it could be. Lastly, Mr. Kochar, learned counsel, would submit that mother of the deceased Bhagwati Morya (PW-4), brother of the deceased Ramratan Morya (PW8), Fattelal (PW-2), Tomanlal Patel (PW-5) & police officer I.A. Kherani (PW-10) have not supported the case of the prosecution, as such, the prosecution has failed to bring home the offence against the appellants beyond reasonable doubt and therefore the appeal deserves to be allowed and the appellants deserve to be acquitted by setting aside the impugned judgment of conviction and order of sentence.

8. Per contra, Mr. Sameer Oraon, learned State counsel, would support the impugned judgment and submit that the trial Court is absolutely justified in convicting the appellants for the aforesaid offences as the prosecution has proved the offences against the appellants beyond reasonable doubt and legal evidence in shape of dying declaration was recorded and moreover, dying declaration recorded by Dr. Anirudh Mene (PW-11) has been proved in accordance with law, as such, the appeal deserves to be dismissed. 

9. 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.

10.At this stage, it is appropriate 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.—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 themselvesrelevant 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”

11. The general ground of admissibility of the evidence mentioned in Section 32(1) of the Evidence Act 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 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 or this very fact, is an exception to the rule of hearsay evidence.

12. 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 Maharashtra (1984) 4 SCC 116 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”, which are as under: -

“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 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 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.”

13. In the matter of Purshottam Chopra and another v. State (Government of NCT of Delhi) (2020) 11 SCC 489 , 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 personrecording 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.

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. Where several dying declarations are made the test is whether the version of the deceased is proved to be false in respect of the integral part of the case. A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declarations they should be consistent particularly in material particulars [See: Kamla v. State of Punjab (1993) 1 SCC 1 .]

15. In the matter of Mohanlal Gangaram Gehani v. State of Maharashtra AIR 1982 SC 839 , their Lordships of the Supreme Court held that where there are more than one statement in the nature of dying declaration made by the accused, one first in time must be preferred.

16. In a recent judgment rendered by their Lordships of the Supreme Court in the matter of Makhan Singh v. State of Haryana AIR 2022 SC 3793 : 2022 SCC Online SC 1019 while considering the issue of multiple dying declarations, their Lordships have held as under:

“9. It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/ duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.

*** *** ***

20. We therefore find that in the facts and circumstances of the present case, the first dying declaration (Ex. DO/C) will have to be considered to be more reliable and trustworthy as against the second one (Ex. PE). In any case, the benefit of doubt which has been given to the other accused by the trial court, ought to have been equally given to the present appellant when the evidence was totally identical against all the three accused.”

17. In addition to this, a Constitution Bench of the Supreme Court in the matter of Laxman v. State of Maharashtra (2002) 6 SCC 710 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 Punjab (1999) 6 SCC 545 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.(1999) 7 SCC 695  (at SCC p. 701, para 8) to the effect that

"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. (1999) 7 SCC 695 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 Gujarat (1999) 9 SCC 562 .

18. At this stage, it would be beneficial to take note of the decision of the Supreme Court in the matter of Dalip Singh and others v. State of Punjab (1979) 4 SCC 332 in which their Lordships of the Supreme Court have dealt with the admissibility of dying declaration recorded by police officer during investigation and held as under: -

“Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor.

The practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.”

19. Reverting to the facts of the case in hand in the light of the law laid down by their Lordships of the Supreme Court, it is quite vivid that the trial Court has firstly relied upon the dying declaration of the deceased which she made before R.B. Dewangan (PW-15), Tahsildar-cum-Executive Magistrate, Durg, on the next day of her admission in the hospital i.e. on 28-4-2013. A careful perusal of the dying declaration Ex.P-45 would show that it has not been certified by the doctor that the deceased was in fit state of mind to make dying declaration on the date of which it was recorded. Executive Magistrate R.B. Dewangan (PW-15) has not stated that he has consulted any doctor on duty before recording the dying declaration and the doctor has informed that the deceased was in fit state of mind and thereafter he has proceeded to record the dying declaration of the deceased. Even otherwise, Executive Magistrate R.B. Dewangan (PW-15) has not even stated in his statement before the Court that before recording dying declaration he was satisfied that the deceased was in fit state of mind to make dying declaration.

20. 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.

21. Here, in the present case, neither it has been certified by the doctor that the deceased was in fit state of mind to make declaration nor Executive Magistrate R.B. Dewangan (PW-15) has recorded his satisfaction that the deceased was in fit state of mind to make dying declaration even without examination by the doctor. Not only this, mother of the deceased Bhagwati Morya (PW-4), who immediately reached to the hospital, has stated that her daughter i.e. the deceased herein, was fully burnt and she could not enter into any dialogue with her daughter and her daughter did not tell about the reason for her burns, though she has asked her specifically. Similarly, brother of the deceased Ramratan Morya (PW-8) has also reached to the hospital and inquired with his sister about the cause of burns, but according to him, his sister did not answer. As such, the fact of dying declaration which Executive Magistrate R.B. Dewangan (PW-15) has recorded, has also not been supported by the close relatives of the deceased i.e. mother and brother

22. Apart from the dying declaration Ex.P-45, dying declaration in shape of dehati nalishi has also been recorded vide Ex.P-20 by police officer I.A. Kherani (PW-10) on 27-4-2013. I.A. Kherani (PW-10) – Inspector, in his cross-examination has admitted that the place of recording dehati nalishi is not mentioned in the dehati nalishi Ex.P-20. Furthermore, before recording dehati nalishi, since it was a case of burn, I.A. Kherani (PW-10) has obtained certificate from the doctor which has admittedly not brought on record and admitted the fact that appellants No.2, 3 & 4 herein (A-2, A-3 & A-4) are residing separately from the deceased and appellant No.1 (A1). It is well settled law that once dying declaration is recorded by the Magistrate, it stands first. Here, in the present case, I.A. Kherani (PW-10) has recorded dying declaration in shape of dehati nalishi and the place of recording such dying declaration has not been stated in the said dehati nalishi Ex.P20, though before dehati nalishi, fitness of the injured person i.e. certificate of fitness from doctor is not required, but I.A. Kherani (PW-10) has taken medical certificate from the doctor, but it has not been brought on record for the reasons best known to the prosecution. Furthermore, once dying declaration has been recorded by the Executive Magistrate, another dying declaration by the police officer would not be of much relevance as the competent authority had already recorded dying declaration and further, the dying declaration in the instant case recorded by the Executive Magistrate vide Ex.P-45 and the dying declaration recorded by I.A. Kherani (PW-10) vide Ex.P-20 in shape of dehati nalishi are in similar words and we have already rejected the dying declaration Ex.P-45 recorded by the Executive Magistrate finding no certification either from the doctor or satisfaction by the Executive Magistrate himself recording dying declaration. More particularly, mother of the deceased Bhagwati Morya (PW-4) and brother of the deceased Ramratan Morya (PW-8) have not supported the case of the prosecution. As such, we are unable to accept the dying declaration in shape of dehati nalishi recorded by I.A. Kherani (PW-10) – investigating officer vide Ex.P-20.

23. What next remains to be considered is the oral dying declaration made by the deceased before Dr. Anirudh Mene (PW-11) who has inquired the deceased as to how she has suffered injury in which she has named ‘sasuralwale’ her inlaws i.e. the appellants herein, but in the statement of Dr. Anirudh Mene (PW-11), none of the appellants have been named; merely because, the word sasuralwale has been allegedly used by the deceased, the appellants cannot be convicted for offence under Section 302 of the IPC in absence of specifically mentioning full name, father’s name and address of the accused. More particularly, it is the case of the appellants that it is proved by Dr. R.K. Nayak (PW-16) and Dr. M.K. Singh (PW-1) that the deceased has suffered deep burn injuries on both hands.

24. In that view of the matter, we are unable to hold that the prosecution has been able to bring home the offence against the appellants beyond reasonable doubt and as such, the appellants are entitled to be acquitted on the ground of benefit of doubt.

25. In view of the aforesaid discussion, we are unable to sustain the conviction of the appellants under Section 302 read with Section 34 of the IPC, as the conviction is not well merited. As such, conviction and sentences imposed upon the appellants under Section 302 read with Section 34 of the IPC are liable to be set-aside and are hereby set-aside. The appellants are acquitted of the said charge. Since they are in jail, we direct that they be set at liberty forthwith if not required to be detained under any other process of law.

26. The appeal is allowed accordingly.