JUDGMENT : Deepak Kumar Tiwari, J. 1. The present appeal is against the judgment of conviction and order of sentence dated 14-1-2020 passed by the Sixth Additional Sessions Judge, Bilaspur, in ST No.46/2019 whereby the trial Court sentenced the accused to undergo life imprisonment with fine of Rs. 100/- for the offence under Section 302 of the Indian Penal Code (for short ‘the IPC’). The trial Court also imposed default sentence in case of failure to pay the fine. 2. (i) Case of the prosecution, in brief, is that on 3-11-2018 Neha Dhritlahre (since deceased) was brought by the appellant to the Burn & Trauma Research Center, Bilaspur, wherein she was admitted up till 10-11-2018. Thereafter, she left against the medical advise. However, subsequently, on the same day, she was hospitalised at CIMS, Bilaspur, at 9.45 pm. Father of the deceased namely; Devanand (PW-3) has made a written complaint (Ex.P/5) at Police Chowki, Malhar, alleging that his daughter was married to the appellant in the year 2016 and there was no issue from such wedlock. After three months of the marriage, the appellant started harassing the deceased for bringing less dowry and demanded motorcycle & household articles. The appellant also used to assault the deceased. On 2-11-2018 at about 6.00 pm the appellant poured kerosene oil and set her ablaze, as a result of which she sustained burn injuries. The deceased was admitted in Burn & Trauma Research Center, Bilaspur, wherein the deceased had informed that the appellant poured kerosene oil and thereafter, set her ablaze. (ii) On the basis of said information, PW-8 Avdhesh Singh, ASI, Police Chowki, Malhar, has registered FIR No.0/18 (Ex.P/4 pg 51 of paper book) and regular FIR No.562/2018 was registered vide Ex.P/34 at Police Station Masturi by PW-15 Top Singh. After registering the FIR, PW-8 Avdhesh Singh, ASI, recorded the statement of the deceased vide Ex.P/9 (pg 58 of paper book) in presence of PW-5 Jagdish Nirmalkar and PW-12 Ramesh Soni wherein the deceased disclosed that on the date of incident, the appellant assaulted her by hand and thereafter poured kerosene oil and set her ablaze. She also stated that the appellant tried to extinguish the fire. The incident was witnessed by many persons of the locality. She also stated that the appellant tried to extinguish the fire. The incident was witnessed by many persons of the locality. On 11-11-2018 the Executive Magistrate-cum-Naib Tahsildar Shweta Yadav (PW-14) has recorded the dying declaration of the deceased vide Ex.P/4 (page 53 of paper book) wherein also the deceased narrated the same version. Nazari Naksha (Ex.P/6) was prepared by PW-8 Avdhesh Singh, ASI and the Patwari P.S. Thakur (PW-9) has prepared the spot map vide Ex.P/25. Statements of the witnesses were recorded and photographs of the scene of crime have been taken for which a panchnama has been prepared vide Ex.P/16. From the place of incident match box, half burnt saree, magalsutra, broken bangles, plain soil, kerosene mixed soil, plastic container, toe rings and one jio mobile were seized vide Ex.P/10. As per the FSL report (Ex.P/35) kerosene oil was found on the clothes of the deceased (Article ‘B’); mangalsutra (Article ‘C’); and soil (Article ‘F’). 3. After due investigation, the appellant was charge sheeted before the jurisdictional criminal Court and charge sheet was filed against the appellant under Sections 302, 304-B and 498-A of the IPC and under Section 4 of the Dowry Prohibition Act, 1961. Thereafter, the case was committed to the Court of Sessions from where the learned Sixth Additional Sessions Judge, Bilaspur, received the case on transfer for trial. 4. During trial the appellant/accused abjured his guilt and claimed to be tried. In order to prove its case the prosecution examined as many as 15 witnesses and exhibited 35 documents. Appellant in his examination under Section 313 CrPC has stated that he has been falsely implicated and examined two defence witnesses. 5. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned supra and acquitted from other charges under Sections 498-A and 304-B of the IPC and under Section 4 of the Dowry Prohibition Act, 1961. Thus, this appeal. 6. (i) Learned counsel appearing for the appellant would submit that though the father of the deceased namely; Devanand (PW-3) has specifically stated that on the date of incident he has made a complaint at Police Chowki, Malhar, but during investigation the said first information has not been filed and supressed the same by the prosecution. Thus, this appeal. 6. (i) Learned counsel appearing for the appellant would submit that though the father of the deceased namely; Devanand (PW-3) has specifically stated that on the date of incident he has made a complaint at Police Chowki, Malhar, but during investigation the said first information has not been filed and supressed the same by the prosecution. He would further submit that in the initial medico legal report (Ex.P/11) it has been categorically mentioned that it is a case of accidental thermal burn and thereafter, the deceased was hospitalized at Burn & Trauma Research Center, Bilaspur from 3-11-2018 to 10-11-2018. Though the Executive Magistrate has recorded the dying declaration, but no Doctor has been examined to prove the fact that on the said date the deceased was in fit state of mind. Learned counsel would also submit that though the parents of the deceased were present in the hospital on the date of incident itself, but the FIR has been registered belatedly on 8-11-2018. He would submit that during the life time of the deceased there is no complaint about demand of dowry. (ii) According to the learned counsel, the appellant and the parents of the deceased are poor persons and there might be some dispute in respect of hospital expenditure and hence given the colour of dowry. He would next submit that immediately after the incident the appellant himself took the deceased to hospital to save her life. The defence witnesses categorically supported the said version. Learned counsel would submit that at the time of incident the appellant was not present in the house. The trial Court discarded the version of the defence witnesses and not appreciated the evidence in its true perspective that both the dying declaration are doubtful. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. To buttress his contention, learned counsel would place reliance upon the judgment rendered by this Court in the matter of Tejram Yadu & Another v State of Chhattisgarh, CRA No.976 of 2013 (decided on 2-2-2023). 7. Learned counsel appearing for the State, per contra, would submit that there is consistent dying declaration in which the deceased categorically stated that the appellant is perpetrator of the crime. There is no animosity of the Executive Magistrate and the Police Officers to falsely implicate the appellant in the crime. 7. Learned counsel appearing for the State, per contra, would submit that there is consistent dying declaration in which the deceased categorically stated that the appellant is perpetrator of the crime. There is no animosity of the Executive Magistrate and the Police Officers to falsely implicate the appellant in the crime. Father of the deceased and other witnesses have categorically stated that on the date of recording dying declaration of the deceased, she was capable to depose. Thus, accepting the dying declaration of the deceased, the trial Court has rightly convicted the appellant. Learned counsel would also submit that in the FSL report presence of kerosene oil was found on the clothes and mangalsutra of the deceased that rule out the case of accidental burn. She would submit that the impugned judgment is well merited, which do not call for any interference of this Court. 8. We have heard learned counsel appearing for the parties and perused the record. 9. Dr. S.N. Gole (PW-2) has conducted postmortem on the body of the deceased and proved the report (Ex.P/3). He opined that cause of death is cardio respiratory arrest due to burn injury and its complication. The said fact was also not disputed by the appellant that on the date of incident the deceased sustained injuries due to fire. Now only the question remains is whether the appellant is perpetrator of the crime. 10. PW-3 Devanand, father of the deceased, stated that the marriage of his daughter was solemnised with the appellant prior to three years from the date of incident and there was no issue out of such wedlock. After 2-3 months of marriage the appellant started harassing the deceased by bringing less dowry and made the demand of motorcycle and household articles and also used to assault her. He further stated that on 2-11-2018 at about 6.00 pm he came to know that the appellant poured kerosene oil on the body of the deceased and her treatment is going on at Burn & Trauma Research Center, Bilaspur, therefore, he came to that hospital where his daughter informed him that the appellant has committed such wrong with her. At para 5 of his cross-examination, this witness stated that on the date of incident itself he had given such information to the police and it is not known for what reason the said report has not been filed by the prosecution. At para 5 of his cross-examination, this witness stated that on the date of incident itself he had given such information to the police and it is not known for what reason the said report has not been filed by the prosecution. There is no such report available on the record. On the basis of complaint (Ex.P/5) made by the father of the deceased, ‘0’ FIR has been registered by PW-8 Avdhesh Singh, ASI. 11. It is significant that vide Ex.P/26 on 2-11-2018 at 7.45 pm immediately after the incident, the Medical Officer of CIMS, Bilaspur, informed the police that the deceased was brought by her husband in a burnt condition. Despite such information by the Medical Officer, the police has not proceeded further immediately and only after registering the FIR on 8-11-2018 both the dying declarations were recorded. From 2-11-2018 to 8-11-2018 there was a sufficient time and there is no material whether during such period the deceased was able to depose or not. Though the father of the deceased stated that immediately after the incident he reached to the hospital and given information to the police then why the police has registered the FIR on 8-11-2018 is not explained. PW-8 Avdhesh Singh, ASI, after registering the FIR, recorded the statement of the deceased on the same day vide Ex.P/8 in presence of Jagdish Nirmalkar (PW-5), who is a labour and resident of village Mendra, Sakri. In cross-examination, this witness stated that he could not say that the deceased has deposed such statement in Ex.P/8 after tutoring by her parents. 12. PW-12 Ramesh Soni has turned hostile and not supported the proceeding of recording dying declaration in his presence by PW-8 Avdhesh Singh, ASI and stated that when the police came he was standing outside the room, therefore, one of the witnesses dying declaration (Ex.P/8) was not thereby he creates a doubt of such categorically stated that the recorded in his presence and submission. 13. PW-14 Shewta Yadav, Executive Magistrate-cum-Naib Tahsildar, has recorded another dying declaration on 11-11-2018 at about 14.00 hours and in the said dying declaration and prior to recording of such statement vide Ex.P/28 an opinion was sought from the Doctor about the fitness of the deceased, but during trial such endorsement was not proved. 14. 13. PW-14 Shewta Yadav, Executive Magistrate-cum-Naib Tahsildar, has recorded another dying declaration on 11-11-2018 at about 14.00 hours and in the said dying declaration and prior to recording of such statement vide Ex.P/28 an opinion was sought from the Doctor about the fitness of the deceased, but during trial such endorsement was not proved. 14. In the matter of Purshottam Chopra and another v State (Government of NCT of Delhi), (2020) 11 SCC 489 , principles relating to recording of dying declaration and its admissibility and reliability were summed up in para 21 as under : 21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under :- 21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. 21.2. The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. 21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. 21.4. When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. 21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. 21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. 21.8. If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration. 15. Reverting back to the facts of the present case though the incident happened on 2-11-2018 at about 6.30 pm and thereafter, the deceased was brought to the CIMS, Bilaspur, on the same day at about 7.45 pm by the appellant vide Ex.P/26 and the Medical Officer of the CIMS has given a said medico legal opinion to the police. Further the deceased was also medically examined by Dr. Shashikant (PW-7) and proved the initial MLC (Ex.P/11) wherein it has been mentioned that the deceased sustained 99% burn injuries and the same was accidental thermal burn. 16. Father of the deceased Devanand (PW-3) though stated that he had given the information on the date of incident itself to the police in writing but no such report has been proved and thereafter, a belated FIR has been registered on 8-11-2018 on the basis of a further complaint made by the father of the deceased vide Ex.P/5. 17. Chandra Kumari (DW-1) and Pradeep Banjare (DW-2), who are the neighbours of the appellant and the deceased, categorically stated that at the time of incident the appellant was not present in the house and at the time when he was returning from market after purchasing vegetables he came to know about such incident and made hue & cry and thereafter, the appellant took the deceased to hospital. Thus, it is manifest that these witnesses have also reached to the spot at the time of incident. 18. Prosecution also failed to explain as to why no action has been taken from the date of incident i.e. 2-11-2018 up till 8-11-2018. Thus, it is manifest that these witnesses have also reached to the spot at the time of incident. 18. Prosecution also failed to explain as to why no action has been taken from the date of incident i.e. 2-11-2018 up till 8-11-2018. Thus, considering all the facts and circumstances and also considering the fact that the dying declaration (Ex.P/8), which was recorded by PW-8 Avdhesh Singh, ASI, one of the witness has not supported it and another dying declaration (Ex.P/4 page 53 of paper book) the certificate of the doctor was not proved, we are of the considered view that both the dying declaration in such circumstances cannot be acted safely. 19. It is also noteworthy to mention here that as per spot map (Ex.P/25) place of incident is kitchen and in the initial MLC (Ex.P/11) the nature of injuries described as ‘accidental thermal burn’. In a text book of Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Modi at Chapter IX related to death from burns, etc. it has been mentioned that “accidental cases are very common, especially among women and children, on account of their loose garments catching fire, while sitting near an angethi, chula, Primus stove or an open lamp. Lately, cases of accidental deaths by burns sustained from Primus stoves have become so frequent among the Gujarati women of Bombay that the Coroner has, on several occasions, passed strong strictures against their husbands or parents and warned them not to allow the use of these stoves in their houses.” 20. According to Modi, A Textbook of Medical Jurisprudence and Toxicology, 24th Edition 2011, at page 486, under Chapter 21 – Injuries from Burns, Scalds, Lighting and Electricity, while dealing with Classification of Burns, it has been stated that “Third degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it having been charred and shrivelled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all the elements of the true skin. 21. Admittedly, in the present case, the deceased suffered 99% burn injuries and the husband took her to the hospital on the date of incident itself. Neighbours of the appellant have not supported the case of prosecution. This leaves a scar, but no contraction, as the scar contains all the elements of the true skin. 21. Admittedly, in the present case, the deceased suffered 99% burn injuries and the husband took her to the hospital on the date of incident itself. Neighbours of the appellant have not supported the case of prosecution. Only on the ground that the neighbours were examined from defence side, their evidence cannot be discarded. 22. In view of the foregoing, we are of the view that the guilt of the accused/appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality while convicting the appellant herein. 23. Accordingly, the conviction and sentence imposed upon the appellant under Sections 302 of the IPC are hereby set aside and he is acquitted of the said charge leveled against him. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.10,000/- to the satisfaction of the trial Court. The bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed. 24. In the result, the instant appeal is allowed.