Soma vs State
2026 Latest Caselaw 1851 Raj

Rajasthan High Court - Jodhpur

Soma vs State on 6 February, 2026

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2026:RJ-JD:6293-DB]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
                 D.B. Criminal Appeal (DB) No. 181/2018
Soma S/o Sh. Dungar, Aged About 25 Years, B/c Meena, R/o
Gamdi, P.s. Jhallara, Dist. Udaipur (Presently Incarcerated In
Central Jail, Udaipur)
                                                                       ----Appellant
                                          Versus
State, Through PP
                                                                     ----Respondent


For Appellant(s)                :    Mr. Jayant Joshi for
                                     Mr. Vinod Sharma.
For Respondent(s)               :    Mr. Rajesh Bhati, PP


            HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
          HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
                            Judgment

BY THE COURT: (PER HON'BLE MR. JUSTICE VINIT KUMAR MATHUR)

1. Date of conclusion of argument 30.01.2026

2. Date on which the judgment was 30.01.2026 reserved

3. Whether the full judgment or only Full Judgment operative part is pronounced

4. Date of Pronouncement 06.02.2026

1. The present Criminal Appeal has been filed under Section

374(2) Cr.P.C. by the accused-appellant Soma son of Shri Dungar,

assailing the legality and validity of the judgment dated

06.06.2018 passed by learned Additional Sessions Judge,

Salumber, District Udaipur (hereinafter referred to as 'learned trial

Court), in Sessions Case No. 122/2015 (State v. Soma), whereby

the accused-appellant has been convicted for the offence under

Section 302 of the Indian Penal Code and sentenced to undergo

life imprisonment along with a fine of Rs.25,000/-, and in default

of payment of fine, to further undergo three months' simple

imprisonment.

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (2 of 36) [CRLAD-181/2018]

2. As per the prosecution case, on 14.09.2015, the Police

Station, Salumber, received an intimation from the General

Hospital, Salumber, vide report Ex.P-15, to the effect that one

Smt. Kanku devi, wife of Soma Meena, resident of Naya Gaon

Gavdi, within the jurisdiction of Police Station Jhallara, had been

brought to the hospital for treatment in burnt condition. Upon

receipt of the said information, ASI Abdul Razzaq was deputed to

go to the hospital to record the statement of the injured-victim. In

view of the seriousness of her condition, the injured was

thereafter, referred to Udaipur for advanced medical treatment

and was accordingly shifted.

3. Dying declaration (Ex.P-1) of Smt. Kanku devi was

recorded on the same day i.e. on 14.09.2015 at about 4:20 PM, in

the presence of the attending doctor. In her statement, the injured

disclosed that "she was married about 5-6 years prior to the

incident, had one child from the wedlock, and was residing with

her in-laws. She stated that on the date of occurrence, at around

3:00 PM, her husband Soma poured kerosene oil upon her and set

her ablaze. According to her, the accused had demanded money

for purchasing liquor, and upon her refusal on the ground that she

had no money, he committed the aforesaid act. She further stated

that at the time of the incident no other family member was

present in the house and that upon her raising alarm, her brother-

in-law Narayan took her to the hospital at Salumber. She also

alleged that her husband was in addiction of alcohol and used to

subject her physical cruelty." The dying declaration of the victim

was forwarded along with the intimation letter Ex.P-15 issued by

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (3 of 36) [CRLAD-181/2018]

the Police Station, Salumber, through Constable Kamal Kishore to

Police Station Jhallara for necessary action, as the place of

occurrence falling within its territorial jurisdiction i.e. Jhallara.

4. On the basis of the dying declaration of the injured

(Ex.P-1), a formal First Information Report bearing No. 152/2015

(Ex.P-16) came to be registered at Police Station Jhallara, District

Udaipur, against the accused-appellant for the offence under

Section 307 of the Indian Penal Code. Subsequently, during the

course of treatment, Smt. Kanku Devi succumbed to her injuries,

having sustained approximately 90% burn injuries and therefore,

the offence under Section 302 IPC was added.

5. After completion of investigation, Police filed a charge-

sheet against the accused-appellant for the offences under Section

302 IPC.

6. Learned Trial Court framed, read over and explained the

charges under Section 302 of IPC to the accused-appellant, who

denied the charges and sought trial.

7. During the trial, the prosecution examined as many as 18

witnesses. In support of its case, the prosecution also produced

documentary evidence, Exhibits P-01 to P-25.

8. The accused-appellant was examined under Section 313

Cr.P.C., wherein he denied the prosecution case and claimed false

implication. He stated that Smt. Kanku Devi had not made any

statement as she was unconscious and that he sustained burn

injuries while attempting to extinguish the fire on her body. He

accepted the testimonies of Dr. Nitin Shah and ASI Abdul Razzaq,

as well as those of witnesses Narayan, Dungar, Nathu, Manohar

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (4 of 36) [CRLAD-181/2018]

and Mahendra Singh, but denied the statements of witnesses

Kanji, Shankar, Gautam, Vela and others, alleging false deposition.

He admitted that the post-mortem of the victim was conducted

and expressed his ignorance regarding the testimony of the

Investigating Officer. The accused further stated that the

prosecution witnesses had demanded compensation (Mautana)

and, upon refusal thereof, he has been falsely implicated in the

present case. He claimed that at the time of the incident he was

attending a community feast (Ram Rasoi Bhandara) in the village

and, upon hearing noise from his house, rushed there with family

members and found his wife in flames. He asserted that he tried

to save her by pouring water and using a blanket, in the process

of which he also suffered burn injuries. He stated that Smt. Kanku

Devi was taken to Salumber Hospital and thereafter, referred to

Udaipur, where she died during treatment. He also claimed that

she was suffering from mental illness and reiterated his innocence.

The accused-appellant produced documentary evidence as

Exhibit- D-1.

9. Learned Trial Court, after hearing the arguments

advanced on behalf of both sides, upon appreciation of the oral

and documentary evidence brought on record, convicted and

sentenced the accused-appellant as aforesaid vide its judgment

dated 06.06.2018.

10. Hence the present appeal.

Submissions/arguments advanced on behalf of the accused-appellant:

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (5 of 36) [CRLAD-181/2018]

11. Learned counsel for the accused-appellant submitted that

the impugned judgment dated 06.06.2018, whereby the appellant

has been convicted and sentenced, is illegal, erroneous and

contrary to the material available on record and, therefore, liable

to be quashed and set aside. He submitted that the learned trial

Court failed to properly appreciate the material contradictions

and material improvements in the statements of the

prosecution witnesses recorded under Section 161 Cr.P.C.

and under Section 164 Cr.P.C., which strike at the very root of

the prosecution case and render the conviction unsustainable in

the eyes of law.

12. Learned counsel for the accused-appellant submitted that

the sole basis of conviction is the alleged dying declaration

(Ex.P-1), which is wholly unreliable, inasmuch as neither an

Executive Magistrate nor a Judicial Magistrate was called for

recording her statement, despite the fact that their offices were

situated hardly about 500 feet away from the General Hospital,

Salumber where the victim was admitted. Learned counsel further

submitted that there is no other cogent evidence available on

record to establish that the deceased was in a fit physical or

mental condition to give a statement. Moreover, a serious

contradiction exists in the prosecution story inasmuch as that in

Ex.P-1 it has been mentioned that the statement of the

victim was recorded at Police Station Salumber, whereas

during trial, PW-2 ASI Abdul Razzaq and PW-12, the doctor,

stated that the statement was recorded at the General

Hospital, Salumber. This glaring inconsistency between the

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (6 of 36) [CRLAD-181/2018]

documentary evidence and oral testimony, according to learned

counsel, renders (Ex.P-1) highly doubtful, yet the learned trial

Court overlooked this vital aspect of the matter.

13. Learned counsel submitted that the deceased was not

mentally stable/fit and, in fact, committed suicide by pouring

kerosene upon herself and setting herself ablaze. He further

submitted that the acused-appellant made all possible efforts to

save her, during which he himself sustained burn injuries, as

reflected from arrest memo (Ex.P-17). However, this crucial

defence evidence has neither been discussed nor appreciated by

the learned trial Court. He also submitted that although the

prosecution alleged that the accused-appellant was a habitual

drinker and demanded money for liquor and, upon refusal, set the

deceased on fire, but there is no iota of evidence available on

record to establish either the alleged habitual alcoholism of the

accused-appellant or the alleged act is the cause for committing

the offence alleged against the accused-appellant.

14. Lastly, learned counsel for the accused-appellant

submitted that the prosecution case is not supported by any

eyewitness and is based solely on weak and fragile circumstantial

evidence. All the witnesses examined are interested witnesses,

and no independent witness has been produced. In such

circumstances, it was submitted that the finding of guilt recorded

against the accused-appellant is wholly unsustainable and

deserves to be interfered with.

15. In view of the cumulative inconsistencies, contradictions

and improvements in the evidence of prosecution witnesses,

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (7 of 36) [CRLAD-181/2018]

coupled with serious infirmities in the manner of investigation, the

sole foundation of conviction rests upon the alleged dying

declaration (Ex.P-1). The reliability whereof is rendered doubtful in

the absence of proof regarding the mental and physical fitness of

the deceased, as well as due to glaring discrepancies concerning

the place and manner of its recording. The defence version,

supported by material on record indicating burn injuries on the

accused himself and the alleged mental condition of the deceased,

has not been adequately considered by the learned trial Court

while passing the impugned judgment. Further, the prosecution

has failed to adduce any independent or cogent medical and

ocular evidence to conclusively establish the charge levelled

against the accused-appellant. In the cumulative effect of these

circumstances, the prosecution has not succeeded in proving the

guilt against the accused-appellant beyond reasonable doubt.

Consequently, the appeal deserves to be allowed and the accused-

appellant is entitled to the benefit of doubt and acquittal.

Submissions on behalf of the learned Public Proseuctor:

16. Per contra, Learned Public Prosecutor submitted that the

deceased, in her dying declaration (Ex.P-1) had categorically

stated that on the relevant date her husband, accused-appellant

Soma, demanded money for consumption of alcohol and, upon her

refusal, poured kerosene upon her and set her ablaze. It was

contended that the said statement was clear, consistent and

directly discloses the cause of her death. Learned Public

Prosecutor further submitted that the dying declaration was

recorded in the presence of a doctor and stands duly corroborated

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (8 of 36) [CRLAD-181/2018]

by the testimonies of the Investigating Officer, ASI Abdul Razzaq,

as well as the medical witness, Dr. Nitin Shah, who supported the

prosecution version during trial. It was argued that the deceased

succumbed to her injuries later the same night while undergoing

treatment in the Burn Ward at Udaipur, thereby establishing that

her condition was critical at the time of making the statement and

that the statement, having a direct nexus with the cause of death,

squarely falls within the ambit of a dying declaration.

17. Learned Public Prosecutor further submitted that, apart

from the dying declaration (Ex.P-1), the prosecution case also

stands proved by the testimonies of witnesses Kanji (PW-4) and

Shankar (PW-11), before whom the deceased Kanku Devi narrated

the entire incident at the Salumber Hospital. Their statements are

in complete consonance with the contents of Ex.P-1 and,

therefore, not only lend corroboration to the dying declaration, but

also, independently qualify as dying declarations made by the

deceased. On this basis, he submitted that the prosecution has

successfully established that Smt. Kanku Devi died as a result of

the accused-appellant Soma pouring kerosene on her and setting

her ablaze.

18. He further submitted that the presence of the accused-

appellant at the place of occurrence stands established from the

burn injuries found on his hands and other parts of the body, as

recorded in Ex.P-2. Learned Public Prosecutor further submitted

that an act of setting a person on fire after pouring kerosene is

imminently dangerous and, in the ordinary course of nature, is

likely to cause death, of which the accused was fully aware.

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (9 of 36) [CRLAD-181/2018]

Therefore, it was submitted that the learned trial Court has rightly

convicted and sentenced the accused-appellant for the offence

under Section 302 of the Indian Penal Code and that no

interference is warranted in the impugned judgment.

Assessment of the rival arguments and/or record of the

case:

19. We have considered the submissions made before this

Court and have carefully examined the relevant record of the case,

including the impugned judgment dated 06.06.2018.

20. A close scrutiny of the record reveals that the material

witnesses in the present case are (PW-2) Abdul Razzaq and

(PW-1) Dr. Nitin Shah. (PW-2) Abdul Razzaq deposed that on

14.09.2015, while he was posted as ASI at Police Station

Salumber, he received telephonic information from the Medical

Officer, Salumber, regarding admission of a burn victim. He stated

that upon reaching the hospital, he found the victim Smt. Kanku

Devi in a burnt condition and recorded her statement. Considering

her critical condition, he got the statement verified by the doctor

and immediately referred her to Udaipur for further treatment. As

the incident fell within the jurisdiction of Police Station Jhallara, he

informed the Station House Officer thereof and subsequently,

handed over the written statement of the deceased to Police

Station Jhallara, which has been exhibited as Ex.P-1. He identified

his own signature, the signature of the doctor and that of the

deceased on the said document and stated that the contents of

part "E" to "F" of Ex.P-1 were recorded as per the dictation of the

deceased Kanku Devi by his Munshi - Rajesh. In his cross-

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (10 of 36) [CRLAD-181/2018]

examination, PW-2 Abdul Razzaq, admitted that he neither

obtained any written endorsement from the doctor

certifying that the deceased was in a fit state of mind to

give a statement nor furnished any written requisition to

the doctor in this regard, claiming that he had only made a

verbal inquiry. He further admitted that there is no document on

record authored by the medical officer indicating the pulse rate,

blood pressure or the percentage of burns suffered by the

deceased at the relevant time. He also admitted that parts "E" to

"F" of Ex.P-1 were written by his Munshi Rajesh, though he

asserted that the same was dictated by him as per the version of

the deceased. It was further admitted that Ex.P-1 does not bear

any endorsement to indicate that it was written by the said

Munshi. Significantly, PW-2 admitted that the offices of the Sub-

Divisional Magistrate, Tehsildar and Judicial Officer were situated

at a distance of about 500 feet away from the General Hospital,

Salumber, yet none of them were contacted for recording the

dying declaration of the deceased. He further conceded that

Ex.P-1 does not contain any specific endorsement either by

him or by the doctor certifying that Smt. Kanku devi was

conscious and in a fit state of mind at the time of giving the

statement.

21. From the testimony of PW-1 Dr. Nitin Shah, it emerges

that he was the medical officer in whose presence the statement

of the deceased was recorded and who had examined both the

deceased as well as the accused-appellant. He deposed that on

14.09.2015, while posted as Medical Officer at the Government

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (11 of 36) [CRLAD-181/2018]

Hospital, Salumber, Smt. Kanku Devi, wife of Soma, was brought

to the hospital in a burnt condition by her family members. He

stated that after commencing medical treatment, he informed the

police and an ASI from Police Station Salumber arrived, who

recorded the statement of the deceased in his presence as

dictated by her. He identified his signatures on the dying

declaration (Ex.P-1) and also identified the signatures of the

deceased, stating that the same were affixed in his presence. He

further stated that the portion containing the statement of the

deceased was written by the ASI. However, in his cross-

examination, PW-1 admitted that he did not make any

endorsement or verification on Ex.P-1 regarding the mental

or physical fitness of the deceased to give a statement,

explaining that he was busy in attending the other patients.

He further admitted that no written requisition was made by the

police to him seeking an opinion on the fitness of the deceased,

and that there is no document on record indicating the

pulse rate, blood pressure or percentage of burn injuries of

the deceased at the relevant time. He stated that after

examining her condition, he referred the deceased to Udaipur for

further treatment. He also categorically stated that he did not go

to Police Station, Salumber on that day and that no statement of

the deceased was recorded in his presence at the police station.

22. With regard to the injuries sustained by the accused, PW-

1 referred to Ex.P-2 and stated that the burn injuries found on

the accused Soma could be sustained while attempting to

save a person, who was on fire and such a possibility could

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (12 of 36) [CRLAD-181/2018]

not be ruled out. The testimony of PW-1, when read in its

entirety, thus does not conclusively establish that the deceased

was in a fit mental and physical condition to make a statement.

23. PW-12 Dr. Akhilesh Sharma, a medical jurist, deposed

that on 15.09.2015 he was a member of the medical board, which

conducted the post-mortem examination on the body of deceased

Smt. Kanku Devi. He referred to the order constituting the medical

board as Ex.P-13 and stated that the deceased had been admitted

in the burn ward and was under treatment since 14.09.2015 prior

to her death. He stated that upon external examination, about

90% of the body surface was found burnt and the skin over the

burnt areas had peeled off. On internal examination, soot particles

were found present in the trachea and both lungs were reddish,

while the remaining internal organs were found to be in normal

condition. PW-12 further stated that the medical board opined that

the cause of death was burn shock and that the extent of burn

injuries sustained by the deceased was sufficient in the ordinary

course of nature to cause death. He proved the post-mortem

report (Ex.P-12) and identified his signatures as well as the

signatures of the other members of the medical board thereon,

stating that he was acquainted with them through official work. In

his cross-examination, he admitted that burns to the extent

of 90% are severe in nature and that such burn injuries can

also occur accidentally.

24. PW-4 Kanji and PW-11 Shankar are closely related to the

deceased from her maternal side. PW-11 Shankar, the father of

the deceased, deposed that Smt. Kanku Devi was his daughter

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (13 of 36) [CRLAD-181/2018]

and that her marriage had been solemnised with the accused

Soma resident of village Gamdi about 3-4 years prior to the

incident. He stated that on the date of occurrence, at around 3:00

PM, he received a telephonic message informing him that his

daughter had sustained burn injuries, whereupon he, along with

his wife, proceeded to the Salumber Hospital, accompanied by

PW-4 Kanji, the Sarpanch of the village and his brother. He stated

that in the hospital, his daughter told Kanji to administer more

injections so that she might feel better and further disclosed to

him and his wife that her husband had demanded money for

consumption of liquor and, upon her refusal, poured kerosene

upon her, set her on fire and bolted the door. He further stated

that the deceased was thereafter shifted from Salumber to

Udaipur Hospital, where she was administered intravenous fluids,

and that she succumbed to her injuries at about 9:00 PM. In his

cross-examination, PW-11 Shankar stated that they first went to

Salumber and thereafter to Udaipur. He initially stated that the

police did not record his statement and must have written it on

their own, but subsequently stated that his statement was

recorded after the death of his daughter. When confronted with his

police statement from portion 'A to B', he admitted the same to be

correct. However, he denied the portion from 'C to D', wherein it

was recorded that he and Kanji had gone directly to the burn ward

at Udaipur, and asserted that they had first gone to the Salumber

Hospital. He further stated that he did not speak to his daughter in

the burn ward at Udaipur, but had spoken to her at Salumber

Hospital. He denied the suggestions that the deceased was under

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (14 of 36) [CRLAD-181/2018]

any emotional distress, that she had already been referred to

Udaipur before his arrival at Salumber, or that he had not spoken

to her at the Salumber Hospital.

25. PW-4 Kanji deposed that the deceased Smt. Kanku Devi

was the daughter of his brother PW-11 Shankar and that her

marriage had been solemnised with the accused Soma, resident of

village Gamdi. He stated that on 14.09.2015, at about 4:30 PM,

his brother Shankar informed him that his daughter Kanku Devi

had been set on fire by her husband after pouring kerosene upon

her and that she was being taken to the hospital, whereupon he

accompanied him. He further stated that they went to the hospital

where Smt. Kanku Devi was admitted and, upon being asked as to

how the incident had occurred, she disclosed that earlier in the

day her husband had demanded money for consumption of liquor

and, upon her refusal; he poured kerosene upon her and set her

ablaze. PW-3 Kanji further stated that the deceased was

subsequently shifted from Salumber Hospital to a hospital at

Udaipur for further treatment, where she ultimately succumbed to

her burn injuries.

26. PW-6 Gautam and PW-9 Nathu, son of Bhimji, were

examined as attesting witnesses to the memorandum (Ex.P-7)

relating to the recovery of kerosene-soaked soil, the site plan and

the memorandum of verification of the place of occurrence, which

were prepared at the instance of the accused-appellant Soma.

Both the witnesses supported preparation of the said documents

and admitted their signatures/thumb impressions thereon.

However, in their cross-examination, PW-6 Gautam stated

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (15 of 36) [CRLAD-181/2018]

that at the time of the incident the accused Soma, along

with other villagers, was taking the Parsadi at Ram Devra

Ki Parsadi, and that the entire village was assembled there.

Upon receiving information that the clothes of Soma's wife had

caught fire, he, along with the accused-appellant and other

villagers, rushed to the house, where Soma extinguished the fire

and in that process he also sustained burn injuries on his hands.

Thereafter, they took the injured to Salumber Hospital for

treatment, accompanied by Soma's brother Narayan (PW-3). He

further stated that the injured had stopped speaking even before

reaching Salumber Hospital and that no statement was recorded

from her there. He also stated that from Salumber she was taken

to Udaipur Hospital, where she died during treatment. PW-6

further deposed that the deceased used to suffer from fits

and was mentally ill, and that she was taken for treatment

to Gwaliya Bhairav and also to traditional healers. He

stated that on several occasions at Gwaliya Bhairav, she

would throw burning lamps and incense sticks upon

herself, as a result of which her clothes were used to

caught fire.

27. PW-9 Nathu, son of Bhimji, in his cross-examination, also

stated that the deceased Kanku Devi used to suffer from fits and

was mentally ill. He stated that she was being treated through

exorcism and other traditional methods and further stated that on

the date of the incident, the accused Soma was present with

them at the place where prasad was being distributed.

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (16 of 36) [CRLAD-181/2018]

28. PW-3 Narayan, PW-7 Dungar and PW-10 Smt. Punji are

closely related to the accused, being the brother, father and the

wife of the accused's brother, respectively. PW-3 Narayan deposed

that on the date of the incident a religious ceremony was being

organised near their house and food was being prepared. Upon

hearing screams, he rushed to the spot and saw his brother's wife

Kanku Devi coming out of the house engulfed in flames. He

stated that the accused Soma, who was present with them

at the ceremony, also reached the spot and extinguished

the fire by pouring water upon her. In the process of saving

Kanku Devi, Soma himself sustained burn injuries. He further

stated that Jagdish's wife and other villagers also arrived at the

scene and thereafter, Kanku Devi, along with Soma, was taken to

Salumber Hospital. According to this witness, Kanku Devi was

not in a condition to speak at that time and was referred to

Udaipur for further treatment. He categorically stated that

Kanku Devi did not make any statement to the police or the doctor

in his presence and identified his signature on the inquest report

of the deceased.

29. PW-3 Narayan specifically denied that any statement of

Kanku Devi was recorded in his presence or that the accused

Soma had set her on fire. In his cross-examination by the

defence, he stated that Kanku Devi was suffering from mental

illness and was taken to various places for treatment, including

exorcism by traditional healers. He reiterated that the accused

Soma was present with them at the religious ceremony and

that upon hearing the screams of his younger brother's

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (17 of 36) [CRLAD-181/2018]

wife Punji, he, along with Soma and others, rushed to the

spot and found Kanku Devi burning. He stated that Kanku

Devi had poured kerosene upon herself and set herself on fire, and

that he and Soma made attempts to extinguish the fire, during

which Soma sustained burn injuries. He further stated that

from the time Kanku Devi was taken from the village, she

was unable to speak and did not speak even at Salumber

Hospital, and therefore no statement was given by her to

the police or the doctor. He also stated that he remained

present at the hospital until she was referred to Udaipur.

30. PW-7 Dungar deposed that on the date of the

incident a religious ceremony was being organised near

their house and that he, along with his son Soma, was

present there. Upon hearing screams coming from the direction

of his house, they rushed back and saw Smt. Kanku Devi coming

out of the house engulfed in flames. He stated that his son Soma

made efforts to save her by pouring water upon her, during which

his hands also sustained burn injuries. He further stated that

Jagdish's wife and other persons of the village were also present

at the spot and thereafter all of them took Kanku Devi and Soma

to the hospital, where Kanku Devi later died. He stated that

beyond this, he had no further knowledge of the incident and that

he affixed his thumb impression on the seizure memo relating to

the jerrycan and kerosene-soaked soil as well as on the site plan,

which were prepared on the basis of his statement at the place of

occurrence. He also stated that the police did not recover any

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (18 of 36) [CRLAD-181/2018]

jerrycan from them and that their thumb impressions were

obtained on blank papers.

31. PW-10 Smt. Punji, wife of the accused's brother Jagdish,

deposed that at the time of the incident she was present at the

place where Ram Rasoda (community kitchen) was being

organised. She stated that the deceased Kanku Devi was alone at

home and that the accused Soma was also present with them at

Ram Rasoda. Upon hearing noise from the house, they rushed to

the spot and found Kanku Devi in a burning condition. She stated

that Soma poured water on Kanku Devi and extinguished the fire,

during which his hands also sustained burn injuries. She further

stated that when they reached the house, Kanku Devi was not in a

condition to speak. Thereafter, she along with her brother-in-law

Narayan took Kanku Devi to Salumber Hospital, where she did not

make any statement either on the way or at the hospital. From

Salumber, Kanku Devi was referred to Udaipur Hospital, where she

later succumbed to her injuries. PW-10 further stated that

although the deceased's father Shankar and Kanji were informed,

they did not come to Salumber Hospital. She stated that the

deceased's father and mother reached Udaipur, but by that time

Kanku Devi had already expired. She also stated that the

deceased was suffering from mental illness and used to behave

abnormally at times.

32. PW-16 Mohan Singh and PW-17 Shaitan Singh are the

Investigating Officers of the case, PW-16 being the first

Investigating Officer. PW-16 deposed that on 14.09.2015, while

posted as ASI and In-charge of Police Station Jhallara, he received

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (19 of 36) [CRLAD-181/2018]

letter Ex.P-15 from Police Station Salumber along with the

statement of Smt. Kanku Devi. He registered FIR No.152/2015

under Section 307 IPC (Ex.P-16) and commenced investigation.

During investigation, he prepared the site plan, seized a jerrycan

(Ex.P-6), kerosene-soaked and plain soil (Ex.P-7), prepared the

inquest report (Ex.P-3), obtained the post-mortem report and

handed over the dead body to the heirs (Ex.P-5). He stated that

on finding a prima facie case under Section 302 IPC, the accused

Soma was arrested. He further stated that at the instance of the

accused, verification memos (Ex.P-18) and (Ex.P-19) were

prepared and the shirt worn by the accused was seized vide Ex.P-

13, after which further investigation was handed over to PW-17.

In cross-examination, PW-16 admitted that he neither recorded

the statements of the doctor or ASI Abdul Razzaq to verify the

condition of the deceased at the time of recording Ex.P-1, nor

ascertained whose handwriting Ex.P-1 was in. He admitted that

Ex.P-1 does not contain any endorsement regarding the

fitness of the deceased and that no request was made to

any Executive or Judicial Magistrate. He further admitted

that no evidence was collected to show that the accused

was a habitual drunkard, had demanded money for liquor,

or had assaulted the deceased. He also admitted that a

community kitchen was being run near the place of occurrence

and that he specifically admitted that Kanji (PW-4) uncle of

deceased and Shankar (PW-11) father of deceased reached

directly to Udaipur Hospital, without any conversation with

the deceased.

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (20 of 36) [CRLAD-181/2018]

33. PW-17 Shaitan Singh deposed that upon receipt of

Ex.P-15, a case under Section 307 IPC was registered and, after

the death of the victim, converted to Section 302 IPC, where after

investigation was assigned to him. He stated that he recorded

statements of certain witnesses, sent the seized articles to the FSL

through proper channel, received the FSL reports and filed the

charge-sheet under Section 302 IPC against the accused. In his

cross-examination, PW-17 admitted that he did not record

the statement of ASI Abdul Razzaq under Section 161

Cr.P.C. and that Ex.P-1 neither mentions who identified the

deceased nor bears any endorsement regarding her fitness

or the identity of the scribe. He further admitted that the

accused had sustained burn injuries while attempting to save the

deceased, as reflected in medical report Ex.P-2, and that no

evidence was found to establish demand of money for

liquor or physical cruelty by the accused. He stated that PW-4

Kanji and PW-11 Shankar departed from Ratakhet and proceeded

directly to the Burn Ward of the Udaipur Hospital, where Smt.

Kanku Devi had been admitted. He also admitted that PW-4

Kanji and PW-11 Shankar did not go to the Salumber

Hospital and went straight to the Udaipur Burn Ward.

34. Ex.P-3 is the Fard Panchayatnama of the deceased.

The same also assumes importance while appreciating the

credibility of witnesses PW-4 Kanji and PW-11 Shankar. The said

document, when read conjointly with the testimonies of

PW-16 Mohan Singh and PW-17 Shaitan Singh (both

Investigating Officers) it clearly reflects that PW-4 Kanji

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (21 of 36) [CRLAD-181/2018]

and PW-11 Shankar had directly reached at the burn ward,

Udaipur and were not present at Salumber Hospital at the

time when the alleged dying declaration was allegedly

recorded. This contemporaneous official document materially

contradicts their claim of having met and conversed with the

deceased at Salumber Hospital. Such contradiction goes to the

root of their testimony and renders the alleged oral dying

declarations attributed to them unreliable. This inconsistency

further weakens the prosecution case.

35. Similarly, in view of the above assessment of the

prosecution evidence the explanation furnished by the accused-

appellant in his statement under Section 313 Cr.P.C. is also a

relevant factor. The said statement is not only consistent but

seems to be plausible and cannot be brushed aside as a mere

denial. The accused has categorically stated that he was present

at a community religious gathering (Ram rasoda) and, upon

hearing cries, rushed to the house, found his wife engulfed in

flames and attempted to save her, during which he sustained burn

injuries. This explanation is in consonance with normal human

conduct and finds substantial corroboration from the medical

evidence as well as the testimonies of PW-1 Dr. Nitin Shah, PW-2

Abdul Razzaq, PW-3 Narayan, PW-6 Gautam, PW-7 Dungar, PW-9

Nathu, PW-10 Punji as discussed above. PW-17 Shaitan Singh

admitted that accused-appellant also sustained burn injuries while

attempting to save the deceased.

36. PW-13 Manohar Lal and PW-15 Mahendra Singh are the

attesting witnesses to Ex.P-13, the seizure memo pertaining to

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (22 of 36) [CRLAD-181/2018]

the recovery of burnt shirt produced by the accused. Both the

witnesses have deposed in support of the seizure and have

identified their signatures thereon. It has come in their evidence

that the accused stated that while attempting to save his wife,

Smt. Kanku Devi, he himself sustained burn injuries. Ex.P-13

reveals that the seized shirt was found burnt on the right-hand

side and had a hole therein, which, according to the witnesses,

could have been caused during the process of rescuing his wife

from the fire. Though a statement under Section 313 Cr.P.C. is not

substantive piece of evidence, it can be considered to test the

veracity of the prosecution case. In the present case, the defence

version articulated in the Section 313 statement successfully

introduces a reasonable and credible alternative hypothesis, which

the prosecution has failed to dislodge through cogent evidence.

The failure of the prosecution to negate this explanation

further strengthens the doubt surrounding its case.

37. Upon an anxious, meticulous and holistic re-appraisal of

the entire evidence on record, this Court is unable to persuade

itself to concur with the conclusion arrived at by the learned trial

Court. The prosecution case, when tested on the anvil of settled

principles of criminal jurisprudence, suffers from serious

infirmities, which go to the very root of the matter and render the

finding of guilt wholly unsustainable.

38. At the heart of the prosecution case lies the alleged dying

declaration Ex.P-1. It is well settled that a dying declaration,

if found to be voluntary, truthful and recorded in a fit state

of mind, can form the sole basis of conviction. However, the

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (23 of 36) [CRLAD-181/2018]

converse is equally true: where the dying declaration is

surrounded by suspicious circumstances, lacks procedural

safeguards and is not free from doubt, it would be unsafe to place

implicit reliance upon it. In the present case, the evidence of PW-2

Abdul Razzaq and PW-1 Dr. Nitin Shah, far from inspiring

confidence, exposes grave procedural lapses. There is a

complete absence of any contemporaneous medical

endorsement certifying that the deceased was conscious,

oriented and mentally fit to make a statement. No record of

pulse rate, blood pressure or extent of burns at the

relevant time has been produced. The prosecution witnesses

themselves admitted that no written opinion regarding fitness was

obtained and that the dying declaration was neither recorded nor

certified by any Executive or Judicial Magistrate, despite their

offices being located in close proximity to the hospital. The

identity of the scribe, the manner of recording and even the place

of recording the statement remain clouded by contradictions,

thereby striking at the authenticity of Ex.P-1.

39. The alleged dying declaration Ex.P-1, which constitutes

the principal foundation of the prosecution case, does not inspire

confidence when examined in the light of the evidence of PW-2

Abdul Razzaq and PW-1 Dr. Nitin Shah and the law laid down by

the Hon'ble Supreme Court in the case of Manjunath and others

v. State of Karnataka (2023) 14 SCR 727. The Supreme Court

in para 29.1 has observed that:

29.1. "the dying declaration, although undoubtedly a substantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (24 of 36) [CRLAD-181/2018]

the person who took down such declaration was not examined, nor did the police officer endorse the said document with details of who took down the declaration. It is also not clear as to in front of which of the relatives of deceased was the same taken down."

40. In the present case, PW-2 Abdul Razzaq has admitted that

the statement was reduced into writing by his Munshi-Rajesh, who

was never examined, and Ex.P-1 does not disclose the identity of

the scribe. PW-1 has further admitted that no endorsement was

made certifying the mental or physical fitness of the deceased at

the time of recording the statement. There is also no material on

record to show the presence of any relative at the time of

recording Ex.P-1. These infirmities are strikingly similar to

those noticed by the Supreme Court in Manjunath (supra)

and, applying the said ratio, the dying declaration Ex.P-1

cannot be treated as a reliable piece of evidence.

Consequently, the prosecution case, resting substantially

on such a tainted dying declaration, fails to inspire

confidence.

41. The medical evidence, though establishing the cause of

death as "burn shock" due to extensive burns, does not

unequivocally support the prosecution version regarding the

manner in which the burns were caused. PW-12 Dr. Akhilesh

Sharma has categorically admitted that burns to the extent of

90% can occur accidentally. The presence of soot particles in the

trachea merely establishes that the deceased was alive when the

burns were sustained; it does not, by itself, establish homicidal

death. Equally significant is the uncontroverted medical

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (25 of 36) [CRLAD-181/2018]

evidence of burn injuries on the hands of the accused,

which PW-1 Dr. Nitin Shah admitted could be sustained

while attempting to save a person on fire. This circumstance

lends substantial support to the defence version and materially

weakens the prosecution narrative.

42. The oral testimonies of the relatives of the deceased and

those of the accused consistently testified that the accused-

appellant was not present at the time when the deceased poured

kerosene and lit fire. While PW-4 Kanji and PW-11 Shankar claim

that the deceased made oral statements implicating the accused,

their testimonies are marred by material contradictions regarding

the place, timing and circumstances in which such statements

were allegedly made. Their own admissions in cross-examination,

particularly with respect to their movement directly to Udaipur and

absence from Salumber hospital, seriously undermine their

version. On the other hand, a consistent line of defence evidence

emerges from PW-6 Gautam, PW-9 Nathu, PW-3 Narayan, PW-7

Dungar and PW-10 Punji, all of whom speak of a religious

ceremony being held at the relevant time, the accused's presence

there, his immediate response on hearing the screams, and his

efforts to extinguish the fire, resulting in injuries to himself. Their

testimony also brings on record the mental illness of the deceased

and her past erratic behaviour, a circumstance which cannot be

brushed aside lightly, particularly when corroborated by multiple

witnesses.

43. The investigation conducted in the present case is replete

with glaring lapses. The Investigating Officers PW-16 Mohan Singh

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (26 of 36) [CRLAD-181/2018]

and PW-17 Shaitan Singh have admitted that they neither

examined nor recorded the statements of the most crucial

witnesses to the dying declaration, nor did they verify the

handwriting or authorship of Ex.P-1. No effort was made to collect

evidence regarding the alleged motive, namely habitual

alcoholism, repeated demands for money or prior acts of cruelty.

The so-called recoveries and verification memos do not disclose

any new or incriminating fact and, therefore, do not advance the

prosecution case. Such perfunctory and selective investigation

casts a serious shadow on the fairness of the prosecution.

44. A conjoint and careful reading and considering the

recovery memo (Ex.P-06), prepared by PW-16 ASI Mohan Singh of

Police Station Jhallara, and the testimonies of the recovery

witnesses PW-6 Gautam (Gola) and PW-9 Nathu with the evidence

of PW-7 Dungar, who has been projected as an eyewitness, certain

significant circumstances emerge, which materially dent the

prosecution version. As per Ex.P-06, a kerosene tin, a

matchbox and as many as three burnt matchsticks were

found lying at the place of occurrence. The presence of these

articles, particularly three used matchsticks, unmistakably

suggests that more than one attempt was made to ignite the fire.

This circumstance assumes importance, for if the deceased was

allegedly overpowered and forcibly set ablaze by the accused, the

natural human conduct would not reasonably permit repeated

attempts at striking matches without resistance or an opportunity

for the victim to raise alarm. The recovery thus probabilises the

defence version that the deceased had sufficient time and

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (27 of 36) [CRLAD-181/2018]

opportunity, and that the act was not sudden or instantaneous. It

lends credence to the inference that the incident was not the

result of a unilateral and abrupt act by the accused, but one where

the deceased had the ability to react, cry for help or resist, which

militates against the prosecution theory of homicidal burning. This

recovery evidence, therefore, when appreciated in the backdrop of

the ocular testimony of PW-7 Dungar and other defence

witnesses, introduces a serious doubt regarding the manner of

occurrence and materially weakens the prosecution case.

45. The invocation of Section 106 of the Indian Evidence Act

is wholly unwarranted in the facts of the present case. The

evidence on record, particularly the testimonies of PW-3 Narayan,

PW-6 Gautam, PW-7 Dungar and PW-10 Smt. Punji, consistently

establishes that at the relevant time the accused was present at a

community religious gathering (Ram rasoda) and not inside the

house where the incident occurred. Once the prosecution evidence

itself suggests that the accused was not present at the place of

occurrence, the burden cannot be shifted upon him to explain the

incident by resort to Section 106 of the Evidence Act. The

foundational facts necessary to attract Section 106 having not

been proved by the prosecution, the said provision cannot be used

to cure the inherent weaknesses in the prosecution case. The

burden to prove the presence and culpability of the accused

squarely lay upon the prosecution, which it has failed to

discharge.

46. It is well settled that the principle underlying Section 106

of the Indian Evidence Act can be invoked only where the

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (28 of 36) [CRLAD-181/2018]

prosecution has first succeeded in establishing the foundational

facts, namely, the presence of the accused at the place of

occurrence at the relevant time and the existence of

circumstances pointing towards his exclusive knowledge of the

incident. Only thereafter can the burden shift upon the accused to

explain such facts in his statement under Section 313 Cr.P.C. In

the absence of proof of such foundational circumstances beyond

reasonable doubt, the onus cannot be reversed and fastened upon

the accused. Applying the aforesaid principle to the facts of the

present case, the invocation of Section 106 of the Evidence Act is

wholly misconceived. The prosecution evidence itself, particularly

the testimonies of PW-3 Narayan, PW-6 Gautam, PW-7 Dungar

and PW-10 Smt. Punji, consistently establishes that at the

relevant time the accused Soma was present at a community

religious gathering (Ram Rasoda) and not inside the house when

the incident occurred. Both the Investigating Officers PW-16

Mohan Singh and PW-17 Shaitan Singh have also brought on

record that a Prasadi ceremony was being held in the vicinity and

that upon hearing the commotion, family members rushed to the

spot. In such circumstances, where the prosecution's own

witnesses negate the presence of the accused inside the house at

the crucial time, no adverse inference can be drawn against him

by shifting the burden under Section 106 of the Evidence Act.

47. The Hon'ble Supreme Court in Gargi v. State of

Haryana (AIR 2019 SC 4864) has categorically held that

Section 106 of the Evidence Act cannot be pressed into service to

fill up lacunae in the prosecution case and that the burden of

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (29 of 36) [CRLAD-181/2018]

proving the guilt of the accused always rests upon the

prosecution. In the present case, the prosecution has failed to

prove beyond reasonable doubt the presence of the accused at the

place of occurrence immediately prior to the incident or any

circumstance suggesting his exclusive knowledge of the incident.

Consequently, the foundational facts necessary to attract Section

106 of the Evidence Act are conspicuously absent. The burden to

establish the presence and culpability of the accused squarely lay

upon the prosecution, which it has failed to discharge.

"28.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused......"

48. The Hon'ble Supreme Court in the case of Jayamma and

Ors. vs. State of Karnataka reported in AIR 2021 SC 2399 in

para No.14 has held as under:-

"Before we advert to the actual admissibility and credibility of the dying declaration (Ex. P-5), it will be beneficial to brace

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (30 of 36) [CRLAD-181/2018]

ourselves of the case-law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.

A. In P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443 para 16, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast Rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor.

B. In Chacko v. State of Kerala (2003) 1 SCC 112 para. 3 & 4, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (31 of 36) [CRLAD-181/2018]

the court for the first time, in any manner improve the prosecution case.

C. In Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165 para. 10 & 11, it was re-stated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat (1992) 2 SCC 474 para.18 wherein this Court summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (Supra) reiterated::

(i) There is neither Rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104);

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar (1983 1 SCC 211)

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v.

Public Prosecutor (1976) 3 SCC 618);

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. (1974) 4 SCC 264);

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (32 of 36) [CRLAD-181/2018]

(Kake Singh v. State of M.P. 1981 Supp SCC 25);

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC 654);

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v.

Krishnamurti Laxmipati Naidu 1980 Supp SCC 455);

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar 1980 Supp SCC 769);

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. 1988 Supp SCC 152);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(State of U.P. v. Madan Mohan (1989) 3 SCC 390);

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (Mohanlal Gangaram Gehani v.

State of Maharashtra (1982) 1 SCC 700)."

17. Consistent with the cited principles, this Court refused to uphold the conviction in the case of Sampat Babso

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (33 of 36) [CRLAD-181/2018]

Kale and Anr. v. State of Maharashtra 2019 (4) SCC 739 para. 14 & 16. The dying declaration in that case was made by a victim who had suffered 98 percent burn injuries, and the statement was recorded after the victim was injected with painkillers. This Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that "the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."

49. The Hon'ble Supreme Court in the case of State of

Madhya Pradesh Vs. Ramveer Singh reported in 2025 INSC

952 while observing when there are circumstances surrounding

the recording of the dying declaration create a grave doubt, and

where there are two views possible, the view favourable to the

accused-appellant is required to be taken, held in para Nos.17 and

21 as under:-

"17. We are in full agreement with the aforesaid observations and findings of the High Court and are of the firm view that the circumstances surrounding the recording of the dying declaration create a grave doubt making the said evidence unworthy of credence. On a perusal of the testimony of Dr. A.K. Gupta (PW-13), we are convinced that the victim was in such a precarious physical condition that it would have been virtually impossible for her to have narrated the story in the manner claimed by the prosecution. It may be noted that the Doctor admitted that neither the pulse nor the blood pressure of the victim were recordable. The Naib Tehsildar (PW-8) admitted that the victim's voice was barely audible when he was trying to record the dying declaration (Ex. P-13). Thus, the very factum of

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (34 of 36) [CRLAD-181/2018]

recording of the dying declaration (Ex. P-13) comes under a grave doubt making it totally unreliable.

21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that in an appeal against acquittal unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the Accused only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible i.e., one consistent with the acquittal and the other holding the Accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka (2024) 8 SCC 149; H.D. Sundara and Ors. Vs. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad Vs. State of Bihar and Anr. (2022) 3 SCC 471."

50. In the light of the foregoing discussions and the factual

matrix emerging from the evidence on record, we find ourselves in

agreement with the settled principles governing appreciation of

dying declarations. In the present case, the circumstances

attendant to the recording of the alleged dying declaration

(Ex.P-1) creates a serious and substantial doubt as to its

genuineness and reliability. The evidence of the medical witnesses

unequivocally establishes that the deceased had sustained about

90% burn injuries and was in a critically precarious condition. The

absence of any contemporaneous medical certification regarding

her mental and physical fitness, non-recording of vital parameters

such as pulse rate and blood pressure, uncertainty regarding the

authorship of the document, and contradictions as to the place

and manner of recording the statement, collectively render the

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (35 of 36) [CRLAD-181/2018]

very factum of recording of the dying declaration doubtful. In such

circumstances, it would be wholly unsafe to rely upon the said

dying declaration as the foundation for conviction, as it does not

inspire confidence and cannot be said to be free from suspicion.

51. It is equally well-settled that where the evidence on

record is capable of giving rise to two plausible views--one

pointing towards the guilt of the accused and the other consistent

with his innocence--the view favourable to the accused must

prevail. Though the present case arises from an appeal against

conviction, the underlying principle remains that criminal liability

must be established beyond reasonable doubt. The cumulative

effect of the infirm dying declaration, lack of medical corroboration

regarding the fitness of the deceased, consistent defence evidence

suggesting an alternative hypothesis, and serious lapses in

investigation, clearly give rise to a reasonable doubt. The

prosecution has failed to exclude the possibility consistent with the

innocence of the accused too. Applying the settled canon of

criminal jurisprudence that suspicion, however grave, cannot take

the place of proof, we hold that the evidence on record does not

meet the standard required for sustaining a conviction.

Consequently, the accused-appellant is entitled to the benefit of

doubt. Criminal law mandates proof beyond reasonable doubt.

Suspicion, however strong, cannot take the place of proof.

52. The learned trial Court, in convicting the accused-

appellant, failed to appreciate these vital aspects in their proper

legal perspective and proceeded on assumptions not borne out by

the evidence on record. The impugned judgment dated

(Uploaded on 06/02/2026 at 04:32:23 PM)

[2026:RJ-JD:6293-DB] (36 of 36) [CRLAD-181/2018]

06.06.2018, therefore, suffers from manifest errors of law and

appreciation of evidence.

53. Accordingly, this Court holds that the prosecution has

failed to prove the charge against the accused-appellant Soma

under Section 302 of the Indian Penal Code beyond reasonable

doubt. The benefit of such doubt must necessarily ensure to the

accused-appellant.

54. Consequently, the appeal is allowed. The judgment of

conviction and sentence dated 06.06.2018 passed by the learned

trial Court is hereby set aside. The accused-appellant Soma is

acquitted of all the charges. He shall be released forthwith, if not

required to be detained in any other case.

55. Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant is directed to forthwith furnish a

personal bond in the sum of Rs.50,000/- and a surety bond in the

like amount, before the learned trial court, which shall be effective

for a period of six months to the effect that in the event of filing of

Special Leave Petition against the judgment or for grant of leave,

the appellant, on receipt of notice thereof, shall appear before

Hon'ble the Supreme Court.

56. Office is directed to send the record of the trial court

forthwith.

(CHANDRA SHEKHAR SHARMA),J (VINIT KUMAR MATHUR),J

67-Kartik Dave/C.P. Goyal/-

(Uploaded on 06/02/2026 at 04:32:23 PM)

Powered by TCPDF (www.tcpdf.org)