JUDGMENT : Heard Mr. Indrajit Sinha, learned counsel for the appellant and Mrs. Vandana Bharti, learned A.P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 16.01.2018 and order of sentence dated 27.01.2018 passed by Sri Shiv Sharan Dubey, learned Principal District & Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 150 of 2013, whereby and whereunder the appellant has been convicted for the offences punishable u/s 452, 376, 326 and 302 of the IPC and has been sentenced to undergo R.I. for life along with a fine of Rs. 20,000/-for the offence punishable u/s 302 of the IPC and in default of payment of fine to further undergo S.I. for six months. He has been sentenced to undergo R.I. for 08 years along with a fine of Rs. 8000/-for the offence punishable u/s 376 of the IPC and in default in payment of fine to further undergo S.I. for four months. The appellant has also been sentenced to undergo R.I. for 10 years for the offence punishable u/s 326 of the IPC along with a fine of Rs. 8000/-and in default in payment of fine to further undergo S.I. for four months as also R.I. for 05 years along with a fine of Rs. 5000/-for the offence punishable u/s 452 of the IPC and in default in payment of fine to further undergo S.I. for three months. 3. The fardbeyan of Bisunath Das was recorded on 09.03.2013 in which it has been stated that he works as a Welder in D.U. Computer Glass and Engineering factory. He stays on rent in the house of Mahato Ji along with his wife Rani Das and his six year old son. On 08.03.2013 at 8:00 P.M. he had left for his duty. It has been alleged that at 12:00 A.M. his neighbour Chaitan informed him on mobile that Vicky Pandey (appellant) had committed rape upon his wife and had set her ablaze. At this information he immediately rushed to his house and saw his wife in a badly burnt condition. When he asked his wife about the incident she has disclosed that she had gone to sleep when at about 4:30 P.M. somebody knocked on the door and when she opened it her neighbour Vicky Pandey had forcibly entered her room and committed rape upon her. When he asked his wife about the incident she has disclosed that she had gone to sleep when at about 4:30 P.M. somebody knocked on the door and when she opened it her neighbour Vicky Pandey had forcibly entered her room and committed rape upon her. When she threatened to disclose about the incident to her husband Vicky Pandey had sprinkled kerosene oil upon her and set her ablaze and thereafter had fled away. The informant had brought his wife to T.M.H. for treatment with the help of the locals. He has given his fardbeyan since his wife was in an unconscious state. Based on the aforesaid allegations Adityapur P.S. Case No. 49/2013 was instituted against Vicky Pandey for the offences punishable u/s 452, 376, 307 and 326 of the IPC. On completion of investigation charge-sheet was submitted against the accused and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 150 of 2013. Charge was framed against the accused for the offences punishable u/s 452, 376, 326 and 302 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as seven witnesses in support of its case. 5. P.W.1 (Hari Mardi) has stated that the incident is of 15 months back at around 11:30 P.M. when he was in his house and he had heard the cry of alarm from the house of Bisunath Das. When he rushed to the house of Bisunath Das he found the wife of Bisunath Das badly burnt and she was disclosing to her husband that Vicky Pandey had committed rape upon her and had sprinkled kerosene oil upon her and set her ablaze. In cross-examination, he has deposed that his house is at a distance of 200 Meters from the house of Bisunath Das. When he reached the place of occurrence there were other persons already present. They were talking to each other and after hearing their conversation he had left the place of occurrence. 6. P.W.2 (Deepak Das) has stated that when his brother-in-law had informed him he and his father went to the place of occurrence where he saw his sister Rani Das badly burnt. They were talking to each other and after hearing their conversation he had left the place of occurrence. 6. P.W.2 (Deepak Das) has stated that when his brother-in-law had informed him he and his father went to the place of occurrence where he saw his sister Rani Das badly burnt. She had disclosed to them that Vicky Pandey had committed rape upon her and thereafter set her ablaze. In cross-examination, he has deposed that when he had reached the place of occurrence several persons had already assembled by then. He got nervous on seeing the condition of his sister who was in an unconscious state. She was taken on a Tempo to the hospital where the Doctors had declared her dead. 7. P.W.3 (Chaitan Mahato) did not support the case of the prosecution and was declared hostile by the prosecution. 8. P.W.4 (Dr. Amit Kumar Sinha) was posted as a Senior Medical Officer, T.M.H. and on 09.03.2013 he had examined the patient Rani Das. He had brought the original case file of the patient Rani Das in which the history given by the informant and the deceased have been noted. It was an Alleged History of Homicidal Flame Burns by pouring Kerosene Oil on her and set on fire by matchbox on 08.03.2013 at 11:30 P.M. by her neighbour Vicky after sexual assault on her and the history was noted by him and bears his signature which has been marked as Exhibit-1. He had examined the patient and diagnosis was 94% charring deep flame burns with severe smoke inhalation injury. On 09.03.2013 the patient was examined by a Gynaecologist and on examination it was written that external genitalia extensively charred. She was again examined by Gynaecologist Dr. Vishakha Verma and after she had noted the perineal area (Burnt/Charred totally) so evidence of injury/tear cannot be made out. The patient had expired on 09.03.2013 at 9:20 P.M. He has proved Page No. 6, 7, 8, 10, 14 of original case file recorded and written by him and marked as Exhibit-1/1. Page No. 9 and 10 was written by Dr. Poonam Sinha which has been marked as Exhibit-1/2. Page No. 11 & 12 has been marked as Exhibit-1/3. Page No. 12, 13 and 14 marked as Exhibit-1/4 while page no. 13 is the report on examination of the patient by Dr. Vishakha Verma which has been marked as Exhibit-1/5. Page No. 9 and 10 was written by Dr. Poonam Sinha which has been marked as Exhibit-1/2. Page No. 11 & 12 has been marked as Exhibit-1/3. Page No. 12, 13 and 14 marked as Exhibit-1/4 while page no. 13 is the report on examination of the patient by Dr. Vishakha Verma which has been marked as Exhibit-1/5. In cross-examination, he has deposed that he was not present when the patient was admitted. He does not know the Doctor who had examined the patient at the first instance. On 09.03.2013 she was examined in emergency at 1:50 A.M. and at 2:00 A.M. he had examined and treated her. He has stated that 94% of the body was burnt. In his presence the Gynaecologist had examined the patient. The private part of the patient was burnt and charred. She was in her sense at 2:00 A.M. when he had examined her. Due to critical condition she had lost her sense. 9. P.W.5 (Bisunath Das) is the informant and husband of the deceased who has stated that the incident is of 08.03.2013 at 11:30 P.M. at which point of time he was working in Glass Engineering company and at midnight a person named Chaitan had called him up and told him to rush home as his wife has suffered burn injuries. When he came back home he found his wife in a burnt condition lying on the floor. On being asked, she disclosed that at 11:30 P.M. Vicky Pandey had knocked at the door and when she opened the door Vicky Pandey entered and committed rape upon her. When his wife threatened to disclose about the incident to her husband Vicky Pandey took out kerosene oil from a container, sprinkled it upon her and set her ablaze. He had thereafter admitted her in T.M.H. When the Doctor had asked how the incident had happened she has disclosed that Vicky Pandey had committed rape upon her and thereafter set her ablaze. She was conscious at the time of giving her statement. He had also disclosed about the said fact. Thereafter the Police came and his fardbeyan was recorded. His wife was unconscious, therefore, her statement could not be recorded. He has proved the fardbeyan which has been marked as Exhibit-2. In course of treatment his wife died. He has proved the inquest report which has been marked as Exhibit-3. He had also disclosed about the said fact. Thereafter the Police came and his fardbeyan was recorded. His wife was unconscious, therefore, her statement could not be recorded. He has proved the fardbeyan which has been marked as Exhibit-2. In course of treatment his wife died. He has proved the inquest report which has been marked as Exhibit-3. In cross-examination, he has deposed that he was not present in his house when the incident had occurred. When he got the information it was about 11:50 P.M. About 7-8 persons accompanied him to his house and he knows one Bhim amongst them. He remained in his house for 30 minutes and during the said period none of his neighbours had came. His wife was taken to T.M.H. by Police Jeep and he also accompanied her. She was conscious. He has deposed that the statement however was not recorded by the Police. After his wife was admitted to the hospital the Police had left. He does not know till when his wife was conscious. The Police had not seized any articles from his house. He does not have any acquaintance with Vicky Pandey. None of the neighbours had stated about seeing Vicky Pandey fleeing away. 10. P.W.6 (Dr. J. Srinivas Rao) was posted as a Tutor in the Department of Forensic Medicine, MGM Medical College, Jamshedpur and on 10.03.2013 he had conducted autopsy on the dead body of Rani Das and had found the following: (a) The built was average, complexion not recognized due to extensive burn. Both eyes were closed. Mouth was open. Front, middle and sides scalp hair, axillary hair, pubic hairs were singed. Rigormortis was present. External genitalia was burnt. Stitch wound present over right ankle. (b) Dermo epidermal deep burn of whole body except outer aspect of the right forearm and right hand and both soles were present. Percentage of burn above 94 per cent. (c) Line of redness present, blacking of the body present. (d) External genitalia was completely burnt, both sides of labia majora were swellen, pubic hairs were singed, vaginal swab taken and preserved for examination of spermatozoa and spermaticfliud. He has stated that the burn was antemortem. It was opined that death was due to shock as a result of extensive burns. He has proved the postmortem report which has been marked as Exhibit-4. 11. He has stated that the burn was antemortem. It was opined that death was due to shock as a result of extensive burns. He has proved the postmortem report which has been marked as Exhibit-4. 11. P.W.7 (Laldeb Singh) was posted as a Sub-Inspector of Police in Adityapur P.S. and on 09.03.2013 at 1:00 P.M. he was given a telephonic information that a women has been raped and has been set on fire by sprinkling kerosene oil upon her and she is admitted in T.M.H. He proceeded for T.M.H. and on reaching found Rani Das in a burnt condition lying unconscious. He had recorded the fardbeyan of Bisunath Das. He has identified his handwriting and signature on the fardbeyan which has been marked as Exhibit-2/1. He has proved the endorsement in the fardbeyan which has been marked as Exhibit-2/2. On the basis of the fardbeyan a formal First Information Report was drawn up. He has stated that on the orders of the Officer-in-Charge he had taken over investigation of the case. The place of occurrence is Sai Nagar at Gamharia Station Road in the house of Mahato Ji. On the northern side of the house is a room in which the deceased was staying as a tenant. In course of investigation it came to light that at 11:30 P.M. the deceased was sleeping along with her six year old child when the accused had entered into her room on the door being opened by the deceased, committed rape upon her and when she threatened of informing her husband he sprinkled kerosene oil on her and set her ablaze. The accused had fled away and he was seen by Chaitan Mahato. When her husband came the deceased had intimated him about the entire incident. In course of investigation the re-statement of the informant was recorded by him. He had recorded the statement of Hari Mardi. The accused was arrested and his confessional statement recorded. On the disclosure of the accused the container containing kerosene oil and matches used in the offence were recovered from the house of the accused. He has proved the seizure list which has been marked as Exhibit-5. He has also proved the confessional statement of the accused which has been marked as Exhibit-6. On 10.03.2013 information was received that Rani Das had died during treatment. He has proved the inquest report which has been marked as Exhibit-3/1. He has proved the seizure list which has been marked as Exhibit-5. He has also proved the confessional statement of the accused which has been marked as Exhibit-6. On 10.03.2013 information was received that Rani Das had died during treatment. He has proved the inquest report which has been marked as Exhibit-3/1. In course of investigation he had recorded the statements of Chaitan Mahato and Deepak Das. He had obtained the postmortem report and on completion of investigation charge-sheet was submitted by him. Chaitan Mahato had stated that at the time of occurrence he was in his house and on hearing the cry of alarm when he went towards the house of Bisunath Das he found Vicky Pandey coming out from the house who fled away on seeing him. Several persons had assembled who had helped in dousing the fire. In cross-examination, he has deposed that at the place of occurrence he did not find any container of kerosene oil and matches. None of the witnesses had stated before him that they had seen the accused fleeing away with the kerosene oil container and matches. 12. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his role in the incident. 13. It has been submitted by Mr. Indrajit Sinha, learned counsel for the appellant that there is no iota of evidence against the appellant save and except the noting of P.W.4 in Exhibit-1 which is the history sheet of the patient (deceased). It has been submitted that the deceased had suffered 94% burn injuries and was in an extremely critical state which rules out the possibility of her rendering any statement depicting the incident with precision. Mr. Sinha, also submitted that though there is an allegation of rape but no examination could be carried out as her private parts were also charred. The first information about the incident was given to the informant by Chaitan Mahato but he has been declared hostile by the prosecution. Though it is said that the container having kerosene oil and matches used in the occurrence were recovered from the house of the appellant but as per P.W.7 no witness had stated before him that they had seen the appellant fleeing away with a kerosene oil container and matches. According to Mr. Though it is said that the container having kerosene oil and matches used in the occurrence were recovered from the house of the appellant but as per P.W.7 no witness had stated before him that they had seen the appellant fleeing away with a kerosene oil container and matches. According to Mr. Sinha, there being no credible evidence on record the appellant deserves to be acquitted from the charges levelled against him. 14. Mrs. Vandana Bharti, learned A.P.P. has submitted that the evidence of P.W.4 and the statement of the deceased recorded in the hospital can be considered to be a dying declaration of the deceased. The said statement was given before P.W.4 and its authenticity and reliability cannot be doubted. In her dying declaration the deceased had categorically stated about the appellant committing rape upon her and thereafter setting her ablaze by pouring kerosene oil over her and lighting a matchstick. 15. We have heard the rival submissions and have also perused the Lower Court Records. 16. The allegations in short reveal that the appellant had entered into the house of the deceased at night, when her husband was on duty in the factory, committed rape upon her and when she threatened to disclose the incident to her husband, had poured kerosene oil upon her and had set her ablaze which ultimately resulted in her death during treatment. The information about the incident was given by Chaitan Mahato but he has been declared hostile by the prosecution. 17. The most incriminating material against the appellant as per the prosecution case is the dying declaration of the deceased recorded by P.W.4. The history of the patient (deceased) has been recorded by P.W.4 in the history sheet which has been marked as Exhibit-1. Exhibit-1 therefore has assumed utmost significance as the purported dying declaration and the state of the deceased has been recorded in the same. 18. As per Exhibit-1 she was examined by the Doctor (P.W.4) on 09.03.2013 at 2:00 A.M. in the ward and what has been noted is quoted hereinunder: “patient brought by husband & stated as, History given by patient also Alleged history of Homicidal Flame Burns by pouring Kerosene Oil on her and set a fire by matchbox on 8.03.2013 at about 11:30 p.m. at home by neighbour (name Vicky) after sexual assault with her” (rape) 19. On general examination the doctor had found the patient to be extremely critical, she was drowsy and her voice was hoarse. It was also noted that there was 94% charring deep flame burns and severe inhalation injury. 20. The aforesaid finding would, therefore, reveal that the patient was virtually on death bed and she finally succumbed to her burn injuries on 09.03.2013 itself at 9:20 P.M. 21. Based on the condition of the deceased at the time of her admission and treatment in the ward we have to assess as to whether she was in a conscious and fit state of mind to give her statement as recorded in Exhibit-1. The statement recorded by P.W.4 appears to be ambiguous as it opens up plurality of interpretation. It is to be noted that the husband of the deceased was with her when her statement was recorded. The statement, “patient brought by husband & stated as History given by patient also” cannot be interpreted to suggest that the deceased had unilaterally and voluntarily given her statement but would advocate that the husband was having the dominant voice, perhaps interspersed by the deceased, though the same seems highly unlikely considering the extremely critical condition the deceased was in. This finding of ours gains support from an incidental issue which is the fardbeyan of the informant in which he has stated that his wife was in an unconscious state and that was the reason why he had given his fardbeyan. The evidence of the Investigating Officer also reveals that when he had reached T.M.H. he had found the deceased in a burnt condition lying unconscious. The purported statement of the deceased as we have noted above has opened up various possibilities and it would be dangerous to base the conviction of the appellant solely on the basis of such statement. 22. To bolster the case of the prosecution some other factors have also been brought to the notice of this Court. The primary amongst them being the recovery of the kerosene oil container and matches from the house of the appellant and the appellant having been seen running away from the place of occurrence. 22. To bolster the case of the prosecution some other factors have also been brought to the notice of this Court. The primary amongst them being the recovery of the kerosene oil container and matches from the house of the appellant and the appellant having been seen running away from the place of occurrence. However, this issue would hardly spruce up the case of the prosecution since as per P.W.7, P.W.3 had seen the appellant coming out from the house of the deceased but P.W.3 did not support the case of the prosecution and was declared hostile by the prosecution. P.W.7 has deposed that none of the witnesses had stated about seeing the appellant fleeing away with the kerosene oil container and matches. The evidence of P.W.1, P.W.2 and P.W.5 does not acknowledge the presence of the appellant anywhere near the place of occurrence. In fact P.W.2 who happens to be the brother of the deceased has also stated about his sister being in an unconscious state when P.W.2 had arrived at the place of occurrence. Moreover, P.W.7 has failed to ascertain by any scientific evidence or otherwise that the kerosene oil container and the matches seized from the house of the appellant were actually used in the incident. 23. Mr. Indrajit Sinha, learned counsel for the appellant, in course of his submission has referred to the case of “Jayamma and Another versus State of Karnataka” reported in (2021) 6 SCC 213 . The fulcrum of the said case was the reliability or otherwise of the dying declaration rendered by the deceased before a Police officer and though the learned trial court had acquitted the accused persons but the said decision was reversed in appeal by the High Court and the matter traveled up to the Hon'ble Supreme Court where the findings of the learned trial court were endorsed and the accused persons were acquitted from the charges levelled against them. The reasons for discarding the dying declaration has been enumerated at para 22 of the judgment and some of the said reasons are as under: “22.1. Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. The reasons for discarding the dying declaration has been enumerated at para 22 of the judgment and some of the said reasons are as under: “22.1. Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. Although it is stated that the deceased was questioned by the police officer, the purported dying declaration is not in a questions and answers format. The direct or indirect dominance of the police officer appears to have influenced the answers only in one direction. 22.3. Thirdly, there is sufficient evidence on record that the victim had been administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. We say so at the cost of repetition that the doctor (PW 16) made the endorsement that the victim was in a fit state of mind to make the statement “after” the statement was recorded and not “before” thereto — being the normal practice. It further appears to us that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the police officer (PW 11) intended to. True it is that the police officer (PW 11) had no axe to grind or a motive to implicate the appellants, but his overenthusiasm to solve a criminal case within no time seems to have swayed the police officer (PW 11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself.” 24. We have referred to the aforesaid paragraphs as the perplexities in the dying declaration of the deceased seems to gain strength from the said findings. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself.” 24. We have referred to the aforesaid paragraphs as the perplexities in the dying declaration of the deceased seems to gain strength from the said findings. The dominance of the husband of the deceased at the time of recording such statement, the mental status of the deceased as would appear from the diagnosis of the Doctor as at Exhibit-1 all adds up to the fact that the said dying declaration cannot form the basis of conviction of the appellant. The learned trial court has overtly relied upon the purported dying declaration of the deceased without considering the complexities it has thrown up when the same is considered in the background of the ocular evidence as well as the diagnosis of the patient (deceased) at the time of her admission in T.M.H. and therefore in view of the aforesaid discussions we come to the conclusion that the learned trial court had erred in passing the judgment of conviction dated 16.01.2018 and order of sentence dated 27.01.2018 in Sessions Trial No. 150 of 2013 and as a consequence thereof the same are hereby set aside. 25. This appeal is allowed. 26. Since the appellant is in custody he is directed to be released immediately and forthwith, if not, wanted in any other case.