The prosecution failed to establish the accused's guilt beyond a reasonable doubt, emphasizing the necessity for corroborative evidence alongside a dying declaration.

JUDGMENT

Bhaskar Raj Pradhan, J. - Udai Pratap Verma (P.W.2) - father of Pankaj Verma (the deceased), has filed the present appeal against the acquittal of respondent nos. 2, 3 and 4 (the private respondents) in Sessions Trial Case No.02 of 2016 passed by the learned Sessions Judge, Special Division-I, East Sikkim at Gangtok (learned Sessions Judge). The respondents were acquitted of the charges against them under Section 302 /34 of the INDIAN PENAL CODE , 1860 (IPC) by the judgment dated 31.08.2018 (the impugned judgment). The State (respondent no.1) has not preferred any appeal.

2. Heard Ms Gita Bista, learned Counsel for the appellant. Also heard Mr. Sudesh Joshi, learned Public Prosecutor for the respondent no.1 and Mr. Rahul Rathi, learned Counsel for the private respondents.

3. Ms Gita Bista submitted that she would challenge the impugned judgment on two points.

4. Firstly, it is submitted that although the dying declaration was unquestionable, the learned Sessions Judge disbelieved it without any valid or cogent reason. She submitted that there is no evidence in support of the learned Sessions Judge's conclusion that the dying declaration was tainted with malice. She pointed out that the respondents who were accused persons had decided to enter the witness box as defence witnesses and therefore, it was incumbent upon them to explain how the deceased had died. It was submitted that although it was the case of the respondents that the deceased had poured kerosene on them and burnt them, strangely the deceased sustained more burn injuries and the respondents less. The defence story is not a plausible one. She relied upon two judgments of the Supreme Court in support of her contentions. They are:- Ranjit Kumar Haldar v. State of Sikkim AIR 2019 SC 3542 and Jayamma & Anr. v. State of Karnataka with Lachma s/o Chandyanaika & Anr. v. State of Karnataka (2021) 6 SCC 213. In Ranjit Haldar (supra), the appellants had argued that since the FIR which is the foundation of the case was itself shaky, the entire prosecution story is doubtful. The Supreme Court examined Section 106 of the Indian EVIDENCE ACT , 1872 and various judgments rendered by it from time to time. The Supreme Court held that the general rule is that the burden of proof is on the prosecution. Section 106 of the Indian EVIDENCE ACT , 1872 was introduced not to relieve the prosecution of their duty but it is designed to meet the situation in which it would be impossible or difficult for the prosecution to establish facts which are especially within the knowledge of the accused. In Jayamma (supra), the Supreme Court held that when a dying declaration has been recorded in accordance with law and it gives a cogent and plausible explanation of the occurrence, the court can rely upon it as the solitary piece of evidence to convict the accused. It is for such reason that Section 32 of the Indian EVIDENCE ACT , 1872 is an exception to the general rule against the admissibility of hearsay evidence and its clause (1) makes the statement of the deceased admissible. Such statement, classified as 'dying declaration' is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which the injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the sole basis of conviction. The Supreme Court examined the dying declaration with the thumb impression of the deceased as well as the signature of the police officer who recorded the dying d