JUDGMENT : Goutam Bhaduri, J. Heard. 1. Present appeal is against the judgment dated 13/03/2013 passed by the Second Additional Sessions Judge, Baloda Bazar, District Raipur in Sessions Case No.61/12 whereby the respondent who was charged under Section 302 of IPC was acquitted. Complainant/father of the deceased is in appeal before this Court. 2. Case of the prosecution, in brief, is that the respondent Goutam Dhritlahre was married to the deceased Dulaurin Bai one year back from the date of the incident. The date of the incident was 20/03/2012. The allegation is that by pouring kerosene over the deceased, the respondent set her ablaze whereby she succumbed to the injuries. As per the prosecution, the dying declaration was recorded on the same date on 20/03/2012 by the Naib Tehsildar PW-14 by Ex.P-5. As per the dying declaration, it was stated that the respondent poured kerosene on her over a trivial dispute and set her ablaze. The mother, father and sister of the deceased also corroborated the same as the deceased initially was taken to Government Hospital, Baloda Bazar. Thereafter, she was shifted for better treatment to Medical College at Raipur wherein they interacted and it was stated that the respondent has burnt her alive. She died on 24/03/2012 and the cause of death according to the postmortem was homicidal due to severe burn injury. Mother and sister of the deceased namely Kamla Bai (PW-13) and Sunita (PW-15) also levelled allegation that the deceased was subjected to torture for demand of dowry. On these set of statement and the dying declaration, the charge sheet was filed. 3. The respondent abjured his guilt during the trial and claimed to be tried. On behalf of the prosecution, 19 witnesses were examined and 26 documents were exhibited. Learned Sessions court did not believe the solitary dying declaration and gave benefit of doubt to the respondent/accused resulting into acquittal, therefore the present appeal is by the complainant/father of the deceased. 4. Learned counsel for the appellant would submit that the learned Sessions Court completely failed to understand the contents of Ex.P-5 as the said dying declaration was given in the conscious state of mind by the deceased and is proved by PW-14 Naib Tehsildar Sunderlal Hirwani. 4. Learned counsel for the appellant would submit that the learned Sessions Court completely failed to understand the contents of Ex.P-5 as the said dying declaration was given in the conscious state of mind by the deceased and is proved by PW-14 Naib Tehsildar Sunderlal Hirwani. He further submits that the incident happened at 11 am and the dying declaration was recorded at 1 pm that was immediately after the incident, therefore there was no ambiguity left to rely upon such dying declaration which also finds support from the statement of mother Kamla Bai (PW-13) and sister Sunita (PW-15). He would further submit that PW-14 being the independent witness, the said dying declaration could not have been discarded. To buttress his submission learned counsel places reliance in a case reported in (2002) AIR (SCW) 3479 in between Laxman Vs. State of Maharashtra and would submit that absence of certification from the doctor as to fitness of mind of declarant would not render the dying declaration unacceptable and what is essentially required was a person recording dying declaration must be satisfied that deceased was in a fit state of mind and certification by doctor is a rule of caution. Voluntary and truthful nature of dying declaration can be established otherwise. Therefore, learned counsel prayed that instant appeal may be allowed and the acquittal deserves to be set aside. 5. Per contra, learned counsel for the respondent/accused would submit that the dying declaration is not beyond the reasonable doubt as the MLC first which was recorded by Ex.P-1 and proved by Dr. Bhupendra Sahu (PW-1), the deceased was not in proper state of mind to depose. He would further submit that in absence of any certificate from the doctor, the dying declaration could not have been relied upon specially when as per Dr. Shivnarayan Manjhi (PW-2) and Dr. Ashutosh Sharma (PW-19) the fingers were completely burnt but dying declaration finds a thumb impression. He would further submit that the dying declaration was not in a questionnaire form which is normally being done though the question was put to the deceased by Sunderlal Hirwani (PW-14). He would further submit that because of the fact that the deceased was not in a state of mind to depose, the certificate from the doctor was not obtained, in a result, benefit of doubt leaned in favour of the respondent, which resulted into acquittal. He would further submit that because of the fact that the deceased was not in a state of mind to depose, the certificate from the doctor was not obtained, in a result, benefit of doubt leaned in favour of the respondent, which resulted into acquittal. He submits that the judgment passed by the Sessions Court is well merited, which do not call for any interference. 6. We have heard the learned counsel for the parties at length and perused the evidence on record. 7. The prosecution story as has been narrated that over a dispute in between the deceased/wife Dulaurin Bai and the accused Goutam Dhritlahre, as the wife wanted to go to her parental place, it was objected by the husband/accused, the dispute flared up and in a consequence, the deceased was dragged inside the house, the respondent poured kerosene oil on her and set her ablaze whereby she sustained injury of 98%. First when she was brought to the hospital at Baloda Bazar is proved by MLC Ex.P-1 which shows that she sustained 98% burn injury all over the body except right feet and was referred to Raipur Medical College. Said requisition form is Ex.P-14. Perusal of it also show that no allegation were levelled against the respondent in such initial requisition form. Doctor PW-1 Bhupendra Sahu has stated that on a call of one constable Sohan Ratre, he examined the injured and found the burn to be 98%. In cross-examination it was stated that the examination was done at 1 pm and both the hands including the fingers were burnt. Initial medicine were administered, thereafter she was taken to Raipur. Dr. Ashutosh Sharma (PW-19) proved the admission documents of deceased Dulaurin Bai at Raipur hospital. The registration form is Ex.P-25. The burn unit of the department Medical College, Raipur document Ex.P-28 shows that she had 100% deep burn over her body. This doctor further stated that on 20/03/2012 at 4 pm he had examined the deceased first. He asked the patient how it happened but she was not able to speak as she was mentally and physically not in fare state of affair and she was not able to speak. Doctor further stated the entire skin had come out and both the hands were completely burnt and turned like a charcoal black and she died on 24/03/2012. He asked the patient how it happened but she was not able to speak as she was mentally and physically not in fare state of affair and she was not able to speak. Doctor further stated the entire skin had come out and both the hands were completely burnt and turned like a charcoal black and she died on 24/03/2012. He further stated that from 20/03/2012 uptill her death on 24/03/2012 she was not in a mental state to speak. 8. The Naib Tehsildar who recorded the dying declaration Ex.P-5 was examined as PW-14. Perusal of Ex.P-5 the dying declaration on 20/03/2012 shows that it was stated that on a trivial dispute to go to her parental place which aggravated, she was taken into the room and the respondent poured kerosene on her and set her ablaze. Thereafter, water was poured on her by the father-in-law and she was taken to the Baloda Hospital. It also contains the right hand thumb impression of the deceased. Three witnesses have also signed the said dying declaration. One is Premlal Bhardwaj (PW-5). Initially he stated in chief that he saw a ambulance of 108 in the village. Thereafter, the sister-in-law of the deceased came running and shouting that the house has caught fire. Thereafter, they went to the house of the deceased, they saw the door closed it was broke open and she was taken to Baloda Bazar Hospital and he followed the same in motorcycle. Subsequently, when he reached at Baloda Bazar Hospital, he saw that she was in the process of shifting to Raipur. With respect to the dying declaration Ex.P-5, he stated that while he put his signature it was blank and all efforts were made by the accused and their family members to treat the deceased Dulaurin Bai. He further stated that after he heard that house of the respondent/accused has caught fire, he went there to eliminate the fire with other villagers. Likewise, PW-6 Kotwar Ratanlal of the village Risda has deposed that before him no statement was recorded by any officer from the deceased Dulaurin Bai and having confronted with the dying declaration Ex.P-5, he admitted the same and further in the cross-examination stated that before him no statement of Dulaurin Bai was recorded by the Naib Tehsildar PW-14. He further stated that Dulaurin Bai was in complete burnt state and was not able to speak. He further stated that Dulaurin Bai was in complete burnt state and was not able to speak. PW-7 Dulichand Gendle whose signature also appears in Ex.P-5 the dying declaration denies the fact that before him any statement of the like nature was recorded. He further states that before him Dulaurin Bai the injured never narrated that she was burnt by the respondent. Thereby the dying declaration was denied. 9. This leaves us with the statement of Sunderlal Hirwani (PW-14) Naib Tehsildar. He had stated that on an instruction of the Tehsildar, Baloda Bazar he recorded the statement of Dulaurin Bai at 1.05 pm at Baloda Bazar Hospital. He stated that Dulaurin Bai was in a burnt state of 80-85 % and narrated the story which is scribed as in Ex.P-5 that on a dispute when the deceased wanted to go to her parental place, it was objected by the respondent and on such issue when the dispute aggravated, the deceased was taken inside the room and kerosene was poured on her and burnt her. In the cross-examination of the witness, he stated that deceased used to speak in Chhattisgarhi language and when he reached to the hospital the other doctors were also present but they were at a distance and they were in the campus of the hospital in their respective rooms. He further stated that when he asked the doctor that whether the injured was able to speak to give statement, the doctor stated that she was able to speak. In Ex.P-5 those endorsement are not recorded about the state of mind and condition of patient. He further stated that question were made to the injured and it was in questionnaire form but when we see Ex.P-5 such questionnaire form are missing. He admits the fact that entire hands and the paws were completely burnt. He further states that she was illiterate and she was not able to speak Hindi and whenever the question was being asked, she used to answer in Chhattisgarhi. As against this the dying declaration Ex.P-5 shows that it was recorded in Hindi dialect not in Chhattisgarhi language. 10. The other statement which comes to fore of Janak Bai (PW-9) and Kaushalya Bai (PW-10). As against this the dying declaration Ex.P-5 shows that it was recorded in Hindi dialect not in Chhattisgarhi language. 10. The other statement which comes to fore of Janak Bai (PW-9) and Kaushalya Bai (PW-10). Janak Bai (PW-9) stated that Dulaurin Bai used to speak in Chhattisgarhi language and at the time when the fire caught, the accused was in the some shop and he immediately reached to the spot and saw that smoke was coming out from the room of Dulaurin Bai and subsequently the respondent/accused came there and the room of the Dulaurin Bai was locked from inside. Thereafter, with the help of the villagers, the door was broke open and water was poured on her. She was not able to speak. 11. Likewise, the statement of Kaushaliya Bai (PW-10) is in similar line. She also stated that at the time of the incident, the respondent was not in the house, he was called from a shop and she was not able to speak and the room wherein they saw the smoke, it was locked from inside which was broke open. 12. Apart from the aforesaid statement, the father of the deceased Dharam Das is examined as PW-12. He states that when they heard the news that his daughter sustained burn injuries, they enquired and having came to know that she was shifted to Raipur, he visited Raipur along with his wife Kamla Bai (PW-13) and another daughter Sunita (PW-15). The statement of father would show that when he met his daughter, she stated that they may see her face for the last time, thereafter, she became unconscious. In respect of demand or any torture, he stated that both the accused and the deceased were living happily and there is no demand was ever made. He further stated that from his side he did not made any report. PW-13 Kamla Bai the mother stated at para 1 that her daughter was subjected to torture for demand of dowry, however, in the cross-examination she denies. As contrary to the statement of PW-12, her husband, she stated that Daularin Bai disclosed that she was burnt by the respondent and likewise PW-15 sister also stated that when she asked her sister how she got the injury she stated that she was burnt by her husband. As contrary to the statement of PW-12, her husband, she stated that Daularin Bai disclosed that she was burnt by the respondent and likewise PW-15 sister also stated that when she asked her sister how she got the injury she stated that she was burnt by her husband. She further stated that her father PW-12 i.e. father of the deceased too had enquired to Daularin Bai as to how she sustained burn injury wherein she stated that she was burnt by her husband. Therefore, there is a contradiction appears as PW-12 father says that after narrating certain fact the deceased said that they may see her face for the last time and she became unconscious. Statement of PW-13 and PW-15 would show that it was exaggerated and new facts were added. 13. All the state of cumulative evidence raises a doubt on the voluntary and truthful nature of dying declaration as the Dr. Bhupendra Sahu (PW-1) wherein the deceased was first taken stated that the entire body was burnt to the extent of 98% and at 1 pm he examined. Thereafter, the dying declaration comes to fore at 1.02 pm. The doctor in the MLC has not recorded any cause in Ex.P-1. Thereafter, the dying declaration would show that though the questionnaire form was posed to the deceased but it was not recorded in such form and it was recorded in the Hindi dialect whereas the deceased had answered as per PW-14 the Naib Tehsildar in Chhattisgarhi language. How such translation would be relevant at the behest of PW-14 is not clear. Further the statement of Dr. Shivnarayan Manhji (PW-2) who is from the medical college and conducted the postmortem by Ex.P-3 stated that in both the hands the fingers were completely burnt and the skin had also come out. Likewise, the Dr. Ashutosh Sharma (PW-19) stated that the injured was not able to speak and during her admission which took place at Raipur Medical College at 4 pm on the same day, the hands were burnt and was not able to speak and it was 100% burn injury. The relative mother Kamla Bai (PW-13) and sister Sunita (PW-15) though tried to corroborate the dying declaration but such dying declaration do not find support as inconsistent statement is made by father Dharam Das (PW-12) and the doctor who stated that the entire finger were burnt. 14. The relative mother Kamla Bai (PW-13) and sister Sunita (PW-15) though tried to corroborate the dying declaration but such dying declaration do not find support as inconsistent statement is made by father Dharam Das (PW-12) and the doctor who stated that the entire finger were burnt. 14. Supreme Court in the matter of State of Gujarat vs. Jayrajbhai Punjabhai Varu reported in AIR 2016 SC 3218 laid down that the Courts have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it would be extremely dangerous and the Court has to examine the dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording dying declaration. 15. The Court further has held that the Court has to weigh all the attendant circumstances and come to independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. 16. Likewise, in the case of Rajendra S/o Ramdas Kolhe vs. State of Maharashtra reported in (2024) 6 S.C.R. 740 the Court observed that when the reliability of dying declaration which is significant is in question and there are inconsistencies between the statement i.e. one dying declaration and other, the Court has to examine the nature of inconsistencies. 17. In the case in hand, as has been stated above, there are inconsistencies in the statement of Premlal Bhardwaj (PW-5), Ratanlal (PW-6) & Dulichand Gendle (PW-7) who are signatory to the dying declaration and Sunderlal Hirwani (PW-14) Naib Tehsildar has only supported dying declaration Ex.P-5 and another oral dying declaration which is said to be before Kamla Bai (PW-13) the mother and Sunita (PW-15) the sister is not corroborated by the father Dharam Das (PW-12) who was also there with them. Considering those inconsistencies, the dying declaration cannot be given a precedent and though the dying declaration is not been certified by a doctor about the state of mind, the inconsistency between the statement of witnesses are interwoven which would lead to create a doubt to cause a head wind to accept the same. 18. Accordingly, we are of the view that the judgment dated 13/03/2013 passed by the Second Additional Sessions Judge, Baloda Bazar, District Raipur in Sessions Case No.61/12 do not call for any interference. 19. Accordingly, the appeal is dismissed.