IMPORTANT POINT
The admissibility and reliability of oral dying declarations as evidence in criminal cases, and the principles outlined in Laxman Vs. State of Maharashtra and Atbir Vs. Government of NCT of Delhi.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 07/12/2019 passed by the learned 1st Upper Sessions Judge, Surajpur, District Surajpur, C.G. in Sessions Case No.02/2017, whereby the appellant has been convicted for commission of offence under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay fine of Rs.2000/-, in default of payment of fine amount to undergo additional S.I. for 6 months.

2. The prosecution case in brief, is that on 27/10/2016 the deceased Sankunwar in a burnt state was admitted to the Government District Hospital, Ambikapur in the emergency department and at that time she was talking and conscious. Since the condition of the injured was serious, Dr. P.R. Shivhare (PW-21) referred her to Bilaspur Burn and Plastic Surgery Department. Thereafter, the relative of the injured Sankunwar took her from the District Hospital, Ambikapur to Holy Cross Hospital, Ambikapur, District Surguja on 27/10/2016 at about 12.00 pm but during such treatment at about 2.00 pm she died. The merg was registered and the dead body was subjected to postmortem. In the postmortem report it was opined that the death was due to burn injures and from the place of incident the burn Lungi was recovered and certain articles i.e. half burn match box in the scattered state, utensil which was having smell of Kerosene, hairs of the deceased, half burn blouse & petticoat and another match box and the accused who was wearing a half burn full shirt etc. were seized. At the time of the incident, the deceased was pregnant by 7 months. According to the prosecution on 26/10/2016 on certain dispute the appellant, who is the husband of the deceased, poured kerosene on her and set her ablaze.

3. Thereafter, after recording of the statement of the witnesses, the chargesheet was filed. The accused/appellant abjured his guilt and claimed to be tried. The prosecution on its behalf examined as many as 22 witnesses and exhibited 30 documents and Articles from A1 to A5 i.e. the Indoor Patient Registration Slip, Admit Card, O.P.D. Slip, Refer Letter and Bed Heard Ticket. The learned Sessions Judge after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal.

4. Learned counsel for the appellant would submit that at the time of incident when the deceased suffered a burn, the appellant was out of the house. He would further submit that the statement of Fuleshwari (PW- 3), who is the sister-in-law (Jethani), Basanti (PW-6), who is the mother-in-law, would show that the accused was out of the house and while the deceased was cooking food, the fire caught to her clothes and she suffered the burn injuries. He would further submit that the statement of the inmates of the house would show that the burn took place inside the room and the room was locked from inside and the accused came from outside, therefore, his presence is completely eliminated from the scene. Referring to the statement of Basanti (PW- 6), the mother-in-law, he would submit that one Shiromani (PW-4) and Hari Prasad (PW-11) opened the door by way of a crowbar (Sabbal) and the prosecution only relied only on the statement of doctors i.e. Dr. P.R. Shivhare (PW-21) & Dr. Madhu (PW-22). He would further submit that the said dying declaration cannot be relied upon as the state of mind of the deceased was not fit and she was not in a fit state of condition to depose. He would further submit that under these circumstances even if it is admitted that the appellant was the author of the crime it was under sudden provocation and he placed reliance in the law laid down by the Supreme Court in the matter of Dattatraya Versus State of Maharashtra {MANU/SC/0165/2024=Criminal Appeal No.666/2012} and submits that the case would fall under Section 304-II of the IPC and accordingly the order may be passed.

5. Per contra, learned State couns