JUDGMENT : Goutam Bhaduri, J. Heard. 1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 07/12/2019 passed by the learned 1st Upper Sessions Judge, Surajpur, District Surajpur, C.G. in Sessions Case No.02/2017, whereby the appellant has been convicted for commission of offence under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay fine of Rs.2000/-, in default of payment of fine amount to undergo additional S.I. for 6 months. 2. The prosecution case in brief, is that on 27/10/2016 the deceased Sankunwar in a burnt state was admitted to the Government District Hospital, Ambikapur in the emergency department and at that time she was talking and conscious. Since the condition of the injured was serious, Dr. P.R. Shivhare (PW-21) referred her to Bilaspur Burn and Plastic Surgery Department. Thereafter, the relative of the injured Sankunwar took her from the District Hospital, Ambikapur to Holy Cross Hospital, Ambikapur, District Surguja on 27/10/2016 at about 12.00 pm but during such treatment at about 2.00 pm she died. The merg was registered and the dead body was subjected to postmortem. In the postmortem report it was opined that the death was due to burn injures and from the place of incident the burn Lungi was recovered and certain articles i.e. half burn match box in the scattered state, utensil which was having smell of Kerosene, hairs of the deceased, half burn blouse & petticoat and another match box and the accused who was wearing a half burn full shirt etc. were seized. At the time of the incident, the deceased was pregnant by 7 months. According to the prosecution on 26/10/2016 on certain dispute the appellant, who is the husband of the deceased, poured kerosene on her and set her ablaze. 3. Thereafter, after recording of the statement of the witnesses, the chargesheet was filed. The accused/appellant abjured his guilt and claimed to be tried. The prosecution on its behalf examined as many as 22 witnesses and exhibited 30 documents and Articles from A1 to A5 i.e. the Indoor Patient Registration Slip, Admit Card, O.P.D. Slip, Refer Letter and Bed Heard Ticket. The learned Sessions Judge after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal. 4. The prosecution on its behalf examined as many as 22 witnesses and exhibited 30 documents and Articles from A1 to A5 i.e. the Indoor Patient Registration Slip, Admit Card, O.P.D. Slip, Refer Letter and Bed Heard Ticket. The learned Sessions Judge after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal. 4. Learned counsel for the appellant would submit that at the time of incident when the deceased suffered a burn, the appellant was out of the house. He would further submit that the statement of Fuleshwari (PW- 3), who is the sister-in-law (Jethani), Basanti (PW-6), who is the mother-in-law, would show that the accused was out of the house and while the deceased was cooking food, the fire caught to her clothes and she suffered the burn injuries. He would further submit that the statement of the inmates of the house would show that the burn took place inside the room and the room was locked from inside and the accused came from outside, therefore, his presence is completely eliminated from the scene. Referring to the statement of Basanti (PW- 6), the mother-in-law, he would submit that one Shiromani (PW-4) and Hari Prasad (PW-11) opened the door by way of a crowbar (Sabbal) and the prosecution only relied only on the statement of doctors i.e. Dr. P.R. Shivhare (PW-21) & Dr. Madhu (PW-22). He would further submit that the said dying declaration cannot be relied upon as the state of mind of the deceased was not fit and she was not in a fit state of condition to depose. He would further submit that under these circumstances even if it is admitted that the appellant was the author of the crime it was under sudden provocation and he placed reliance in the law laid down by the Supreme Court in the matter of Dattatraya Versus State of Maharashtra {MANU/SC/0165/2024=Criminal Appeal No.666/2012} and submits that the case would fall under Section 304-II of the IPC and accordingly the order may be passed. 5. 5. Per contra, learned State counsel vehemently opposed the arguments advanced by learned counsel for the appellant and would submit that the statement of the mother & father of the deceased i.e. Ramprasad (PW-1) & Ram Bai (PW-8) was divulged with the the oral dying declaration of the deceased in the hospital and she was in a fit state of mind which would be evident from the statement of Dr. P.R. Shivhare (PW-21) and Dr. Madhu (PW-22). There is no reason as to why such oral dying declaration should not be believed. He placed his reliance in the law laid down by the Supreme Court in the matter of Parbin Ali and another Vs. State of Assam { (2013) 2 SCC 81 } and would submit that the oral dying declaration can be relied upon. 6. We have heard learned counsel for the parties and perused the evidence. 7. The place of incident as per Ex. P/7, which is a map, is the house of the appellant. As per Ex. P/7 it would show that the incident happened inside the room. According to the prosecution, the appellant came and asked to prepare fish to his wife, when she denied, the appellant poured kerosene on her and set her ablaze and at that time she was pregnant by 7 months. The postmortem report (Ex. P/17) which is proved by Dr. Yogendra Agrawal (PW-16) would show that the death was because of the shock caused by extensive burn leading to cardiopulmonary arrest. This is not in dispute that the cause of death was not natural but was due to burn injuries. Whether the burn injuries were caused by the appellant or it was due to an incident while preparing the food is required to be examined in this case. 8. According to the relative of the deceased i.e. Fuleshwari (PW-3), who is sister-in-law (Jethani) and Basanti (PW-6), who is the mother-in-law, at the time of incident the appellant was not in his house and he came back after the incident happened. 9. Perusal of the statement of Fuleshwari (PW-3), who was inmate, would show that the room wherein the burn happened was closed from inside and her mother-in-law opened the door by kicking the same and at that time the deceased Sankuwar, the deceased was in a burning state and they poured water on her. 9. Perusal of the statement of Fuleshwari (PW-3), who was inmate, would show that the room wherein the burn happened was closed from inside and her mother-in-law opened the door by kicking the same and at that time the deceased Sankuwar, the deceased was in a burning state and they poured water on her. Fuleshwari (PW-3), in her examination in chief stated that when the room was opened the accused was inside and she was declared hostile. In the cross-examination further she stated that at the time of incident it is incorrect to say that the accused was not in the house at the time of incident. It is further stated that the relation in between them were cordial. 10. Shiromani (PW-4), who is the neighbour, states that when she heard the screaming and noise, she rushed to the house of the accused wherein she saw that the deceased was in a burnt state and at that time the accused/appellant was present in his house. Thereafter she was taken to the Government Hospital, however, the deceased did not disclose anything. In the cross-examination when it was asked that she reached late to the house of the accused, she denied those suggestions. Meaning thereby at the relevant time of incident when she heard the screaming and noise she rushed to the house. 11. Basanti (PW-6), mother-in-law, she states and eliminates the presence of his son i.e. the appellant. She states that the accused came and asked to prepare fish to his wife and thereafter went away and subsequently what happened she does not know. After one hour when she saw the fire inside, the neighbours namely Shiromani (PW-4) & Hari Prasad (PW-11) came and they opened the door with a crowbar. The statement of Shiromani (PW-4) would show that at the time of incident when they reached there, the appellant was very much present there and Basanti (PW-6), mother-in-law, further states that the deceased was able to speak. Basanti (PW-6) was declared hostile. Statement of Basanti (PW-6) further would show that her daughter-in-law screamed for help to save her from inside the room. 12. Ganesh (PW-5), brother-in-law of the deceased, stated that he reached when the incident already happened. Nothing more has been stated by him. 13. Basanti (PW-6) was declared hostile. Statement of Basanti (PW-6) further would show that her daughter-in-law screamed for help to save her from inside the room. 12. Ganesh (PW-5), brother-in-law of the deceased, stated that he reached when the incident already happened. Nothing more has been stated by him. 13. Ramprasad (PW-1) & Ram Bai (PW-8) who are the father and mother of the deceased they reached when the injured was admitted in the hospital. Statement of Ramprasad (PW-1) would show that on the first day he met with the daughter and initially she was not in a position to talk and subsequently in the night she asked for water, he gave her water and next day in the morning when he wanted to enquire there appellant, his mother and brother were present and they were saying to the deceased that while cooking food she sustained burn injuries and thereafter on being asked from his daughter to disclose the correct fact so that he can tell the police and doctor, the deceased replied she will state after half an hour. Subsequently, she stated that in the night of incident the appellant came with fish and asked her to prepare but she objected to same as she has already taken her meals and would not prepare meal again. Thereafter, the appellant went out and came after sometime and asked whether the fish has been prepared or not, the deceased stated that she was not feeling well as such she could not cook. Thereafter, the appellant took out the kerosene oil tin and poured it on the deceased and set her ablaze by a match box. The deceased could not come out as the door was locked. She was pregnant at the relevant time of 7 months. 14. Ram Bai (PW-8), the mother of the deceased, states that when she asked Sankuwar, the daughter, how she got the burn injury, she stated that after consuming liquor the appellant quarreled with her and thereafter took out a kerosene tin from the almirah and poured kerosene oil on her and set her ablaze. She further states that after the kerosene was poured on her she tried to run away but the accused threw a burning match on her, whereby she sustained injuries. Her statement is also corroborated by the statement given to the police under Section 161 Cr.P.C., which was marked as Ex. D/2. She further states that after the kerosene was poured on her she tried to run away but the accused threw a burning match on her, whereby she sustained injuries. Her statement is also corroborated by the statement given to the police under Section 161 Cr.P.C., which was marked as Ex. D/2. Both the statements would show that the dying declaration was made in the hospital. 15. This takes us to the statement of Dr. P.R. Shivhare (PW-21), wherein the deceased was first taken for treatment. According to his statement on 27/10/2016 in a burn state Sankuwar, R/o Village Tulsi was brought by Ramprasad and thereafter she was admitted in the emergency department. Dr. P.R. Shivhare (PW-21) states that the injured was talking at the relevant time and she was in conscious state. Having asked how she got the burn injury, she stated that her husband has burnt her and also stated that she has eight months pregnancy. Thereafter, considering the state of affairs she was referred to the Bilaspur Burn and Plastic Surgery department. The bed head ticket was marked as Ex. A/2. Perusal of Ex. A/2 would show that in the history it was written that burnt by the husband and got burnt all over the body and the reference was made for a higher center it was on 27/10/2016 and the burn was to the extent of 100% and the pregnancy was also shown. Articles A2 to A4 are the medical documents. According to the doctor she was in a conscious state. In the cross-examination though the statement of the doctor was tried to be attacked by projecting that she was in the 95% burnt state but the doctor opined that it was obtained in the state of burn injuries, however, at the relevant time the deceased was talking and was in conscious state. 16. On reference, the deceased was taken to the Holy Cross Hospital, Ambikapur from Government Hospital. In Holy Cross Hospital she was examined by Dr. Madhu (PW-22). The bed head ticket would show that she was brought by Basanti (PW-6) and Ganesh (PW-5). Article A5 would show that she was in conscious state. She was admitted at 12.00 pm and expired at 2.00 pm. In Holy Cross Hospital she was examined by Dr. Madhu (PW-22). The bed head ticket would show that she was brought by Basanti (PW-6) and Ganesh (PW-5). Article A5 would show that she was in conscious state. She was admitted at 12.00 pm and expired at 2.00 pm. Article A5 further records that the history given by patient is that the husband set her ablaze after pouring kerosene oil on her body at 7.00 pm on 26/10/2016 it was also stated that the burn was in the entire body and she was 8 months pregnant. Dr. Madhu (PW-22) further shows that the Sankuwar was brought at about 12 o’ clock and she was in a conscious state and was able to talk. She was having breathing problem and was having a superficial and deep burn. Having asked about her injury victim stated that on 26/10/2016 the husband has poured kerosene and set her ablaze. The suggestion given to her that she was not in a state of affair to talk the same was denied by this witness. 17. According to the evidence which has come it is the oral dying declaration. In respect of the oral dying declaration the Supreme Court in the matter of Laxman Vs. State of Maharashtra { (2002) 6 SCC 710 } has laid down that the oral dying declaration can be acted upon. Further the Supreme Court in the matter of Atbir Vs. Government of NCT of Delhi { (2010) 9 SCC 1 } has laid down the summary to test the dying declaration at para 22 which is reproduced hereinbelow :- 22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. 18. Now examining the statement of the witnesses in view of the principle laid down above it would show that though the witnesses Fuleshwari (PW-3) & Basanti (PW-6) tried to eliminate the presence of the accused but statement of Fuleshwari (PW-3) would show that the accused was very much present when the doors were opened which is also corroborated by the statement of Shiromani (PW-4), the neighbour who reached immediately to the spot. The injured was admitted initially in the Government Hospital wherein the history shows that the burn injuries were sustained by her because of the fact that she was burnt by the husband followed by the fact that Ramprasad (PW-1) & Ram Bai (PW-8), who are the father & mother of the deceased, when they enquired from the deceased at hospital as to how the incident happened, the deceased categorically made oral dying declaration that the husband poured kerosene oil on her and set her ablaze. These witnesses are corroborated by the independent witnesses Dr. These witnesses are corroborated by the independent witnesses Dr. P.R. Shivhare (PW-21), who is the doctor in the Government Hospital, who stated that while the deceased was brought, she was in a conscious state and was able to talk and had disclosed that the husband poured kerosene on her and set her ablaze. Similar statement has been given by Dr. Madhu (PW-22) that when she was referred to the higher hospital i.e. Holy Cross Hospital, wherein having asked as to how it happened to the patient, she disclosed the same fact. Therefore, the said statement appears to be without any ambiguity and corroborated by each other as the bed head ticket and the history sheet also fortifies the same. 19. The accused in the statement under Section 313 Cr.P.C. the plea of alibi is completely absent. The presence of accused at the time of incident as after the wife was set at ablaze she tried to save her and in such process when she tried to throw the burning clothes out of her body, which is a natural human behaviour one of the part of burning cloth fell to the body of appellant husband whereby he also sustained burn injuries which is proved by Dr. Prashant Kumar Singh (PW-17) and MLC of appellant Ex. P/18. It shows that the accused had burn injuries on right forearm and burn injuries on side of abdomen. Therefore, if according to the mother of accused Basanti (PW-6) and Fuleshwari (PW-3) the sister-in-law, if the accused came after the fire was eliminated over deceased and the accused came thereafter, the burn injuries sustained by accused remained unexplained. Apart from the fact that the reliance is placed by the learned counsel for the appellant to convert the case from 302 IPC to 304-II IPC, we are not inclined to appreciate those facts since in the instant case the witnesses have stated that after pouring kerosene oil, the deceased tried to fled away but the doors were locked and the accused threw the burning match on her and it is not a case where in an incident she caught fire by a stove or any other incident happened. Therefore, the state of mind of the appellant would show that he was conscious of the fact while the deceased wanted to save her and ran away the accused committed the act with all knowledge and intention because first the kerosene was taken out from the almirah and poured the same on the deceased and thereafter when the deceased wanted to run away, threw a burning match on her. Considering the entire facts & circumstances, we are not inclined to interfere the conviction imposed by the trial Court. 20. Accordingly, the appeal is dismissed.