JUDGMENT 1. - This appeal of Mushtaq is directed against the judgement of learned Additional Session Judge No. 2, Jaipur City, dated 30th July, 1972, whereby the accused was found guilty of committing murder of his wife by setting her to fire. The accused was convicted under section 302 Indian Penal Code and was sentenced to life imprisonment. He was also found guilty for offence under section 342 for keeping his wife in the unlawful confinement during the time when she was burnt, and awarded rigorous imprisonment for six months. However, he was acquitted of the charge under section 287 Indian Penal Code. 2. The prosecution case against the appellant was that he was married to Jubeda deceased about three years before the incident. It appears that the relations between Jubeda and the accused was in the habit of having drinks in excess. On the night between October 29 and 30, 1972 accused Mushtaq returned late at night to his house. When he did not find food ready for him he gave Rs. 3/- to Jubeda to procure the food material. It is said that Mst. Jubeda purchased necessary ration and fuel but she returned from the market a bit late and therefore the accused levelled a charge against her that she had gone out to meet her lover and on this pretext gave beating to her. As the result of this beating swelling on her breast and hand and therefore, she could not cook the food. According to the prosecution story the beating of the wife went on till late in the night. Then the accused threatened Jubeda with dire consequences and it is said that he poured a bottle of kerosene oil on the clothes of Jubeda and brought a chimney near her and set her clothes to fire. Before doing so the accused bolted the room from inside. When Jubeda cried out of anguish and and the people of the locality collected to help her, accused did not open the room from inside and when she lost her senses the room was opened and the neighbours helped the injured to be taken to the S.M.S. Hospital, Jaipur. The condition of Jubeda became critical. She remained in an unconscious state upto 31.10.72. The condition of Jubeda became critical. She remained in an unconscious state upto 31.10.72. It is said that she regained her senses at about 7.45 a.m. on 31.10.72 and thereafter Magistrate Indra Vijay Singh was brought by PW.4 Lajja Ram to get her dying declaration recorded. 3. Shri Indra Vijay Singh recorded dying declaration of Mst. Jubeda at 4 p.m. The dying declaration is Ex. P6. According to this dying declaration accused had given a severe beating to deceased when she brought the provisions for cooking the meals from the market, on account of a pretext that she had gone out to meet her paramour resulting in serious injuries on her breast and hand which made her unable to cook the food. Then the quarrel went on between the husband and wife till 12.00 in the night. The husband used sometime kicks or sometime beat her with fists and slaps. She entreated her husband that she had a little child and she therefore, should not be beaten like this. But the accused brought a bottle of kerosene oil and sprinkled on her clothes and brought a chimney near her. Her clothes caught fire. She raised a cry for help but Mushtaq bolted the room from inside and did not allow the neighbours to come in to extinguish the fire. Mushtaq remained standing through out inside the room rill she lost her senses. It is also stated in this dying declaration that Mushtaq was in a drunken state at that time. Mst. Chhote PW.2 mother of the deceased when came to know that the deceased had received burns, went to see the deceased in the hospital on 31.10.72. Mst. Jubeda made a dying declaration to Mst. Chhotye to the effect that she was burnt by her husband. Late at night on 31.10.72 Mst. Jubeda died of burns. Post mortem examination of her body was conducted by Dr. P.N. De PW.7. His opinion was that she died of burns. 4. Accused was challaned under sections 302, 342 and 285 Indian Penal Code and he was tried by the Additional Sessions Judge No. 2, Jaipur City. Before Indra Vijay Singh, who had recorded the dying declaration to Mst. Jubeda could be examined by the trial Court he died and therefore his statement could not be recorded. 4. Accused was challaned under sections 302, 342 and 285 Indian Penal Code and he was tried by the Additional Sessions Judge No. 2, Jaipur City. Before Indra Vijay Singh, who had recorded the dying declaration to Mst. Jubeda could be examined by the trial Court he died and therefore his statement could not be recorded. However, the dying declaration has been proved by Lijja Ram Head Constable PW.4 in whose presence the statement of Mst. Jubeda was recorded by Magistrate Indra Vijay Singh. The3 plea taken by the accused was that he had gone out for the call of nature but when he returned he heard the cries of Jubeda and when he went to the room he found Jubeda burning. The fire was extinguished by him and then she was removed to the hospital. Thus he denied the charge. One Rehmat Khan DW.1 was produced as a defence witness by the accused. 5. The learned trial Judge after weighing the evidence of the prosecution, taking into consideration the plea of the accused and dying declaration recorded by the Magistrate Indra Vijay Singh and the dying declaration made before Mst. Chhote PW.2, held that the accused was responsible for setting the clothes of Mst. Jubeda to fire and thus causing serious injuries. It is in these circumstances that an order of conviction was recorded by him. Mr. Bhargava appearing on behalf of the accused appellant urged that in the absence of direct evidence regarding the dying declaration Ex. P.6 it cannot be taken into consideration and on that basis conviction cannot be ordered, specially when the prosecution has failed to produce such witnesses who could have thrown light on the point of recording of dying declaration and therefore, the conviction should not be sustained on such feeble evidence of dying declaration. As regards dying declaration made before Mst. Chhote PW.2 it is contended that there is difference between the two statements of the deceased, made before the Magistrate and made before Mst. Chhote PW.2 and therefore the oral dying declaration loses all its credibility. 6. Head Constable Lajja Ram PW.4 who was interested in the investigation, was responsible for bringing Indra Vijay Singh Magistrate in the hospital for recording the dying declaration of Mst. Jubeda. He states that he was all through present when the document Ex. Chhote PW.2 and therefore the oral dying declaration loses all its credibility. 6. Head Constable Lajja Ram PW.4 who was interested in the investigation, was responsible for bringing Indra Vijay Singh Magistrate in the hospital for recording the dying declaration of Mst. Jubeda. He states that he was all through present when the document Ex. P6 was prepared by the Magistrate Indra Vijay Singh, who died about three weeks before he was to be examined by the Court. From his memory he tried to reproduce the words uttered by Mst. Jubeda before the Magistrate which were recorded by him. Lajja Ram had identified the signatures of the Magistrate as well as the thumb impression of Mst. Jubeda on document Ex. P6. It is true that no employee of the hospital had been produced by the prosecution to prove the dying declaration recorded by the Magistrate but there is nothing on record to suggest that any employee of the medical department posted in the S.M.S. hospital was all through present in the room when the dying declaration was recorded by Magistrate Indra Vijay Singh. It is there in the document Ex. P6 that Mst. Jubeda was identified by a nurse on duty but no question was asked from Lajja Ram that the nurse was present when Mst. Jubeda was examined by Indra Vijay Singh and therefore we do not find any force in the arguments put forward by Mr. Bhargava that the independent witness of the employee of the medical department was purposely and deliberately withheld by the prosecution. 7. Mr. Bhargave threw doubt on this fact also whether Mst. Jubeda was in a fit condition to make deposition before the Magistrate. His argument in this connection is that the doctor who certified the fitness of state of mind to make the statement has not been produced. But we find a mention in the endorsement of the Magistrate in the document Ex. P6 that he had satisfied himself about the fitness whether Mst. Jubeda was in a condition to make a statement before him. It is unfortunate that the Magistrate died before he could be brought in the witness box to prove the dying declaration. But we find a mention in the endorsement of the Magistrate in the document Ex. P6 that he had satisfied himself about the fitness whether Mst. Jubeda was in a condition to make a statement before him. It is unfortunate that the Magistrate died before he could be brought in the witness box to prove the dying declaration. But we do not find anything to disbelieve the endorsement made by the Magistrate that he had satisfied himself about the mental condition of the patient whether she was in a fit state of mind to make the statement or not. 8. It is next contended that the document Ex. P6 does not mention as to how the Magistrate satisfied himself about the fitness of the deponents mental condition. But the lacuna by itself would not render the document inadmissible in evidence. In our opinion the statement of Mst. Jubeda leaves hardly any room for doubt about her mental condition that she was not not in a fit state of mind to make deposition before the Magistrate. The statement contains every detail and the story given therein is quite coherent to show that the mental condition of the witness whose statement was recorded by the Magistrate was quite sound. 9. It was next urged by Mr. Bhargava that is not safe to convict a person on the strength of the dying declaration alone which has not been properly established by the person who had recorded the statement and unless such a statement finds corroboration from the other source it will be unsafe to convict a person for heinous crime like murder. We do not find any life in this argument before we see that before the statement Ex. P6 was recorded Mst. Chhote PW.2 met her daughter Jubeda in hospital at about 12.00 noon when she was mentally fit to talk. Before Mst. Chhote the declaration was made by the dying person that she was burnt by her husband. This statement of Mst. Chhote lends support to the dying declaration recorded by the Magistrate. No room for doubt is left in our mind that the statement Ex. P6 recorded by the Magistrate was statement of Mst. Jubeda and that it was recorded at the time when she was in a fit state of mind, to make deposition before the Magistrate. Chhote lends support to the dying declaration recorded by the Magistrate. No room for doubt is left in our mind that the statement Ex. P6 recorded by the Magistrate was statement of Mst. Jubeda and that it was recorded at the time when she was in a fit state of mind, to make deposition before the Magistrate. The way in which the story has been described through out convinces us that the statement was true and voluntary. We therefore, find no reason to disbelieve this statement. 10. Our attention has been drawn to the statement of witness PW.3 Ismail who used to reside in the same house in which the accused lived. He has no doubt stated that he did not see any quarrel between the husband and the wife namely Mushtaq and Jubeda. The arguments of Mr. Bhargava is that the prosecution is bound by his own witness's statement and therefore the entire story revealed by the statement of PW.3 demolished the prosecution case. We regret we cannot accept this contention of Mr. Bhargava because it is not necessary that the quarrels between the husband and the wife should be known to other neighbourers or the inmates of the same house. Even if Ismail's statement is given any credence it does not go to demolish the prosecution story. 11. In her statement Ex. P6 Mst. Jubeda while describing the episode stated that at about 11 or 12 in the night she was given a beating by her husband. Sometimes he kicked her and sometimes he beat her with fists. She entered that she should not be beaten like that because she had a child in her lap. It is at this stage that the accused brought a bottle of kerosene oil and sprinkled the oil on her clothes. Then he brought a chimney to put her clothes to fire and said "TOO LAG A LE" meaning thereby that he asked the deceased to set her clothes to fire "Paloo" caught fire. From these two sentences it is urged that the accused himself did not set the clothes of Mst. Jubeda to fire but the clothes caught fire because the accused had brought the chimney near her which created condition under which her clothes could catch fire. In these circumstances it is vehemently urged that accused cannot be held responsible for putting fire to the clothes of the deceased. Jubeda to fire but the clothes caught fire because the accused had brought the chimney near her which created condition under which her clothes could catch fire. In these circumstances it is vehemently urged that accused cannot be held responsible for putting fire to the clothes of the deceased. If we read the entire statement as a whole then we find that it was not Mst. Jubeda who set her clothes to fire but it was on account of the bringing of the chimney so close to the victim by the accused that her 'Paloo' caught the fire, which was already soaked with kerosene oil. One full bottle kerosene oil was sprinkled on her clothes, and then the burning chimney was brought so near to her that the 'Paloo' caught the fire. In these circumstances it is difficult for us to accept this argument that the responsibility for this fire could not be fastened on the shoulders of the accused because the clothes of Mst. Jubeda caught fire on account of his negligence. 12. It may also be mentioned here that this fact finds corroboration from the recovery of empty bottle of kerosene and a chimney from the room that kerosene oil was actually sprinkled on Mst. Jubeda. The way in which the murder has been committed, is undoubtedly brutal one because it is clear that the accused had bolted the room from inside when his wife was burning and he did not allow the neighbourers to enter the room to lend assistance to her to get the fire extinguished. These call for a severe punishment circumstances to the accused but as the learned Judge has already exercised a discretion in favour of the accused by awarding him lenient sentence of life imprisonment we do not think it proper to issue a notice for enhancement of sentence. We are convinced that the accused was responsible for the death of Mst. Jubeda. The conviction therefore, does not call for interference at our hands. The appeal fails and it is hereby dismissed. 13. The learned counsel prays for the grant of leave to appeal to the Supreme Court. We regret we cannot certify it to be a fit case for taking the appeal to the Supreme Court under Article 134 of the Constitution. The prayer is therefore, rejected. *******