A dying declaration must be supported by evidence of the declarant's mental fitness; absence of such certification undermines its reliability as a basis for conviction.

JUDGMENT :

Ramesh Sinha, C.J.

1.This criminal appeal is directed against the judgment of conviction and order of sentence dated 09.06.2022 passed by the the learned 1^st Additional Sessions Judge, Balod, District Balod, in Sessions Trial No. 36/2019, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, the IPC) and sentenced to undergo rigorous imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 1 month.

2. The application for suspension of sentence and grant of bail of the appellant was rejected by this Court way back on 20.07.2023, and today the matter is listed for further orders, however, with the consent of learned counsel appearing for the parties, the matter is being heard finally.

3. The appellant/convict was charged for the offence under Section 302 of the IPC alleging that on 24.04.2019 at about 11-12.00 in the night, at village Barahi under the jurisdiction of Police Station Balod, District- Balod, he intentionally poured kerosene on his wife Laxmibai (hereinafter referred to as ‘the deceased’) and set her on fire, due to which she died on 05.05.2019 due to burn injuries. Thus, the accused caused the death of deceased and murdered her.

4. The case of the prosecution, in brief, is that on receiving information from DKS Superspeciality Hospital, Raipur about the death of deceased Laxmibai due to burning, constable Puranlal Chandravanshi, No. 865 of Golbazar Police Station registered an unnumbered merg intimation. The police prepared the inquest of the dead body of deceased after giving notice to the witnesses, got the post-mortem done of the dead body and on receiving the merg intimation alongwith the dying declaration given by deceased, the Police of Police Station, Balod, registered a case against the appellant/accused after registering numbered merg intimation, an FIR bearing Crime No. 36/19 under Section 302 of the Indian Penal Code. During the investigation, the statements of witnesses namely Milap Chaure, Santosh Hathile, Vinod Hathile, Chandrashekhar, Kaushalya Chaure, Lomesh Vishwakarma, Domar Sinha, Tiharuram Baghel, Smt. Rambha, Ashok Binjhekar were recorded as stated by them. After inspecting the spot, a map was prepared, and a spot panchnama was also prepared and the memorandum of the appellant was recorded in presence of the witnesses and on his instance, a plastic container of kerosene and a matchbox were seized from the accused in presence of the witnesses and after conducting the remaining investigation, the charge sheet was presented before the learned Chief Judicial Magistrate, Balod, who committed the case to the Court of Sessions which was registered as Sessions Trial No. 36/2019.

5. Charges were framed against the appellant for the offence under Section 302 of the IPC. The appellant abjured the guilt and prayed for trial. In support of his contentions, he exhibited the police statement given by Milap Choure (PW-2) and Santosh Hathile (PW-6) as Exhibits D/1 and D/2, respectively.

6. To prove the offence alleged against the appellant, the prosecution examined the witnesses namely; Domar Singh Sinha (PW-1), Milap Singh Choure (PW-2), Rakesh Kumar Dewangan (PW-3), Lomas Vishwkarma (PW-4), Dr. Abhishek Banjare (PW-5), Santosh Hathile (PW-6), Dr. Shivnarayan Manjhi (PW-7), Gajendra Kumar Mandavi (PW- 8), Smt. Narmada Kothari (PW-9) and Ramkinkar Yadav (PW-10) and exhibited as many as 22 exhibits.

7. On examination of the appellant/accused under Section 313 Cr.P.C, he stated that he was innocent and that he had been falsely implicated. In his defence, he stated that on the date of the incident, his wife was drinking alcohol and there was no electricity in the house for which they had lit a candle by which fire caught the saree of the deceased and as such, the incident occurred.

8. The learned trial Judge, after considering the evidence on record, convicted and sentenced t