IMPORTANT POINT
The court emphasized the necessity for rigorous scrutiny of dying declarations, particularly when inconsistencies exist and the declarant cannot be cross-examined.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Present appeal is against the judgment dated 13/03/2013 passed by the Second Additional Sessions Judge, Baloda Bazar, District Raipur in Sessions Case No.61/12 whereby the respondent who was charged under Section 302 of IPC was acquitted. Complainant/father of the deceased is in appeal before this Court.

2. Case of the prosecution, in brief, is that the respondent Goutam Dhritlahre was married to the deceased Dulaurin Bai one year back from the date of the incident. The date of the incident was 20/03/2012. The allegation is that by pouring kerosene over the deceased, the respondent set her ablaze whereby she succumbed to the injuries. As per the prosecution, the dying declaration was recorded on the same date on 20/03/2012 by the Naib Tehsildar PW-14 by Ex.P-5. As per the dying declaration, it was stated that the respondent poured kerosene on her over a trivial dispute and set her ablaze. The mother, father and sister of the deceased also corroborated the same as the deceased initially was taken to Government Hospital, Baloda Bazar. Thereafter, she was shifted for better treatment to Medical College at Raipur wherein they interacted and it was stated that the respondent has burnt her alive. She died on 24/03/2012 and the cause of death according to the postmortem was homicidal due to severe burn injury. Mother and sister of the deceased namely Kamla Bai (PW-13) and Sunita (PW-15) also levelled allegation that the deceased was subjected to torture for demand of dowry. On these set of statement and the dying declaration, the charge sheet was filed.

3. The respondent abjured his guilt during the trial and claimed to be tried. On behalf of the prosecution, 19 witnesses were examined and 26 documents were exhibited. Learned Sessions court did not believe the solitary dying declaration and gave benefit of doubt to the respondent/accused resulting into acquittal, therefore the present appeal is by the complainant/father of the deceased.

4. Learned counsel for the appellant would submit that the learned Sessions Court completely failed to understand the contents of Ex.P-5 as the said dying declaration was given in the conscious state of mind by the deceased and is proved by PW-14 Naib Tehsildar Sunderlal Hirwani. He further submits that the incident happened at 11 am and the dying declaration was recorded at 1 pm that was immediately after the incident, therefore there was no ambiguity left to rely upon such dying declaration which also finds support from the statement of mother Kamla Bai (PW-13) and sister Sunita (PW-15). He would further submit that PW-14 being the independent witness, the said dying declaration could not have been discarded. To buttress his submission learned counsel places reliance in a case reported in (2002) AIR (SCW) 3479 in between Laxman Vs. State of Maharashtra and would submit that absence of certification from the doctor as to fitness of mind of declarant would not render the dying declaration unacceptable and what is essentially required was a person recording dying declaration must be satisfied that deceased was in a fit state of mind and certification by doctor is a rule of caution. Voluntary and truthful nature of dying declaration can be established otherwise. Therefore, learned counsel prayed that instant appeal may be allowed and the acquittal deserves to be set aside.

5. Per contra, learned counsel for the respondent/accused would submit that the dying declaration is not beyond the reasonable doubt as the MLC first which was recorded by Ex.P-1 and proved by Dr. Bhupendra Sahu (PW-1), the deceased was not in proper state of mind to depose. He would further submit that in absence of any certificate from the doctor, the dying declaration could not have been relied upon specially when as per Dr. Shivnarayan Manjhi (PW-2) and Dr. Ashutosh Sharma (PW-19) the fingers were completely burnt but dying declaration finds a thumb impression. He would further submit that the dyin