JUDGMENT DHARMADHIKARI J.- The accused Bandu alias Ashok son of Pandurang Gore was prosecuted for an offence punishable under section 302 of the Indian Penal Code for causing the murder of his mistress Smt. Malan alias Malati by burning on 27th of September 1974. 2. According to the prosecution the accused Dandu and his kept mistress deceased Malan alias Malati shifted from Yeotmal to Vithalwadi, which is about 18 Kilometers away from Yeotmal, about 4 years back. The accused owned land at Nilona near Yeotmal, but as his lands got submerged in the water of the tank constructed by the Government he was allotted three plots of 5 acres each at Vithalwadi. The accused and the deceased Malan were cultivating this piece of land. 3. According to the prosecution, the accused was addicted to liquor and under the influence of liquor he used to beat his wife. On the date of the incident i. e. on Friday the 27th of September 1974, there was a weeklly market at Jodmoha which is about 6 miles from Vithalwadi. The deceased Malan had been to the said market for making household purchases. On returning home she swept the floor of the house, lighted the chulha and kept a pot on it for cooking rice. At that time the accused was little intoxicated. He asked the deceased to call his neighbour Sadhu (P. W. 2). Malan went at the backside of the house and shouted for Sadhu. Vatsala wife of Sadhu told her that Sadhu was not at home. Thexeupon she returned and informed her husband that Sadhu was not in his house. The accused got annoyed and filthily abused Malan and also started beating hex. He also said that he did not require Malan and that he would burn her. So saying he went into another room, brought a can containing kesosene and poured the kerosene on Malan. He then took out a burning Tur stump from the hearth and applied it to the sari of Malan. As a result of this her clothes started burning. She shouted for help, opened the door' with a bang and went outside the house. 4. At the relevant time she had on her person a sari a petticoat and a blouse and they were all in flames. As a result of this her clothes started burning. She shouted for help, opened the door' with a bang and went outside the house. 4. At the relevant time she had on her person a sari a petticoat and a blouse and they were all in flames. On hearing her shrieks and shouts Awadhut (P. W. 1) rushed to her and picked up a gona from the house of the accused and wrapped Malan with that gona. Thus the fire was extinguished, but due to that fire Malan's sari, petticoat and blouse had completely burnt and she practically became naked, Sadhu (P. W. 2), Narmadabai (P. W. 4), Matadin (P. W. 6), Girjabai (P. W. 7), Bhaskar Parate (P. W. 3), Ramsevak (Po W. 5), Ramesh Pali (P. W. 16) and many others came to the spot of the incident. Awadhut and Sadhu brought milk and the said milk was sprinkled on the burnt portion of the body of Malan. S. According to the prosecution, in presence of these witnesses Malan told Bhaskar that she was burnt by her husband by pouring kerosene oil on her person. According to the prosecution at that time also the accused was abusing everybody and tried to drive away the persons who had collected in his Court-yard. He also said 'let Malan die' and they should go away from there. Ultimately Malan was wrapped in another sari. She was then taken to the Main Hospital at Yeotmal on the same day. The accused took no part in extinguishing the fire nor he took any part in removing her to the hospital. 6. The Medical Officer who admitted Malan at the Main Hospital. Yeotmal sent the admission report Exhibit-39 to the police station. By this memorandum the police was directed to arrange to record a dying declaration immediately. This requisition was received in the police station at about 8.45 p. m. Police Sub-Inspector Nagare immediately proceeded to the Main Hospital and issued a memo to the Taluka Magistrate for recording a dying declaration of Malan at the Main Hospital, Yeotmal After reaching the Main Hospital Police Sub-Inspector Nagare ascertained from Dr. Kasmani Whether Malan was in a position to make her statement and ultimately recorded her statement vide Exhibit-54. He also seized half burnt blouse (Art. 1), cord of the petticoat etc. 7. Kasmani Whether Malan was in a position to make her statement and ultimately recorded her statement vide Exhibit-54. He also seized half burnt blouse (Art. 1), cord of the petticoat etc. 7. On the basis of this, he also registered an offence under section 307 of the Indian Penal Code. In the meanwhile the Taluka Magistrate Shri Mahallye (P. W. 10) also came to the main hospital for recording the dying declaration. He contacted Dr. Kasmani and after ascertaining from him whether Malan was in a fit mental and physical condition to make a statement, he recorded her dying declaration. He started recording her statement at 9.30 p. m. and completed recording thereof by 9.35 p. m. This statement was recorded in question and answer form. The statement recorded by the Magistrate is Exh. 28. 8. Inspite of the treatment Malan died on 1st of October 1974 at 4.45 p. m. Then a death report was submitted by the Medical Officer in charge vide Exh·4I. The offence was then converted into one under section 302 of the Indian Penal Code. 'The Investigating Officer Shri Gawande conducted inquest over the dead body of the deceased. Dr. Kale conducted the post mortem examination and recorded post mortem notes Exh. 41. He found that there were extensive burns i.e. about 80 per cent, all Over the body except face and front of chest and in his opinion the cause of her death was shock due to extensive burns. The Investigating Officer Gawande after completing the investigation, filed a charge-sheet before the Court. As already observed, on the basis of these allegations the accused was prosecuted, for an offence under -section 302 of the Indian Penal Code. 9. The defence of the accused is one of denial. According to him, he was in his field and he arrived at his house in the evening after his wife got burns. Even before he arrived at the house, Awadhut had wrapped his wife with a gona and Sadhu had gone to bring milk. He further stated that he had .accompanied Malan when she was carried on a cot to the bus stop. He also gave Rs. 10 to Awadhut for meeting the travelling expenses. He told Awadhut (P. W. 1) that at his house Urid and Barbali crops were lying and, therefore, he will be coming to Yeotmal the next day morning. He further stated that he had .accompanied Malan when she was carried on a cot to the bus stop. He also gave Rs. 10 to Awadhut for meeting the travelling expenses. He told Awadhut (P. W. 1) that at his house Urid and Barbali crops were lying and, therefore, he will be coming to Yeotmal the next day morning. He denied that he set his wife Malan on fire. 10. In support of its case the prosecution examined as many as 18 witnesses. There is no eye witness to the incident. The prosecution is mainly relying upon the various dying declarations, both written and oral. P. W. 1 Awadhut, P. W. 2 Sadhu, P. W. 3 Bhaskar, P. W. 4 Narmadabai, P. W. 6 Matadin, P. 7 Girjabai, P. W. 11 Dadarao and others did not support the prosecution case and were, therefore, ultimately declared hostile by the prosecution. Therefore, so far as the oral dying declarations are concerned, the prosecution is relying on the evidence of P. W. 5 Ramsewak, P.W. 8 Sitabai and P. W. 9 Tulsabai. So far as the, written dying declarations are concerned, the prosecution is relying upon the dying declaration recorded by P. W. 16 Nagare vide Exhibit-54 as well as the dying declaration recorded by the Taluka Magistrate P. W. 10 S. P. Mahallye vide Exhibit-28. 11. After appreciating all the evidence on record, the learned Sessions Judge accepted the evidence of the prosecution and convicted the accused for an offence punishable under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life. As already observed, it is this order of conviction and sentence which is challenged in the present appeal. 12. Shri Pendse, learned counsel for the appellant-accused, contended before us that the learned Sessions Judge committed an error in relying upon the dying declaration recorded by the Taluka Magistrate. According to Shri Pendse, the said dying declaration is wholly inadmissible in evidence as the Taluka Magistrate Shri Mahalley was not competent to record dying declaration in view of the provisions of section 164 of the Code of Criminal Procedure. According to Shri Pendse, the said dying declaration is wholly inadmissible in evidence as the Taluka Magistrate Shri Mahalley was not competent to record dying declaration in view of the provisions of section 164 of the Code of Criminal Procedure. He further contended that the learned Sessions Judge also committed an error in relying upon the dying declaration recorded by Police SubInspector Nagare vide Exhibit·54 because according to Shri Pendse, Police SubInspector Nagare being an Investigating Officer was obviously interested in the success of his investigation and, therefore, it will be unsafe to rely upon such a dying declaration recorded by an Investigating Officer and that too in the absence of Panchas. Shri Pendse further contended that so far as the oral dying declarations deposed to by P. W. 5 Ramsewak, P. W. 8 Sitabai and P. W. 9 Tulsabai are concerned, they are not only discrepant, but their evidence in that half is wholly artificial. According to him, the statement of Ramsewak before the police was recorded on 30th of September 1974, whereas the statement of Sitabai and Tulsabai were recorded on 9th of October 1974. This delay in itself indicates that no dying declaration was made by the deceased to these witnesses. 13. It is not possible for us to accept these contentions. So far as the dying declaration recorded by the Taluka Magistrate Shri Maballye is concerned, in our opinion, the said dying declaration can safely be accepted. The conteation of Shri Pendse that the said dying declaration is wholly inadmissible in view of the provisions of section 164 of the Code of Criminal Procedure is wholly unwarranted. Section 164 of the Code of Criminal Procedure deals with recording of confessions and statements. The confessions and statements contemplated by section 164 of the Code of Criminal Procedure are to be recorded during the course of the investigation. From the bare reading of the whole scheme of Chapter on of the Code it is quite clear that the statements contemplated by section 164 of the Code relate to the statement by any person including an accused and witnesses. From the bare reading of the whole scheme of Chapter on of the Code it is quite clear that the statements contemplated by section 164 of the Code relate to the statement by any person including an accused and witnesses. The dying declaration which is admissible under section 32 (1) of the Indian Evidence Act is an exception to these statement sand in substance it is not a statement of a witness who is ultimately examined before the Court and, therefore, in our opinion the provisions of section 164 of the Code are not applicable to the declarations contemplated by section 32 (1) of the Evidence Act. 14. In this context a reference could usefully be made to a decision of the Lahore High Court in Rahman v. Emperor1. While dealing with a similar contention, the Lahore High Court observed as under: "The learned Sessions Judge has considered that these statements are not relevant as the Magistrate in question was not empowered under the provisions of section 164. Criminal Procedure Code, to record statements of witnesses. Here however the learned Sessions Judge has clearly misconceived the law. It does not matter who records such statements; for under section 32 (1). Evidence Act statements written or verbal of relevant facts, made by persons who are dead are themselves relevant facts when the statement is made by a person as to the cause of his death and as to the nature and circumstances of the transaction which resulted in his death in cases in which the cause of his death comes into question. But though those statements are relevant they are not statements of witnesses. Witnesses are persons who are examined in Court before the Presiding Judge. Section 32 provides an exception to the general rule that evidence must be given in Court by witnesses. Clearly the statements recorded by the Magistrate of the Second Class are also relevant though it makes no difference in the present case. The matter is only important as the learned Sessions Judge has taken a wrong view of the law. I would also refer him to a decision of another Division Bench of this Court on this question where the law has been clearly laid down namely, Chandigi v. Emperor2. There should be no excuse now for this Sessions Judge again refusing to treat such statements as relevant or to allow them to be proved." 15. I would also refer him to a decision of another Division Bench of this Court on this question where the law has been clearly laid down namely, Chandigi v. Emperor2. There should be no excuse now for this Sessions Judge again refusing to treat such statements as relevant or to allow them to be proved." 15. A similar view was taken by the Rangoon High Court in Sulaiman v. The King3. which is to the following effect : "The learned Judge was correct in saying that the statement to the Magistrate was not inadmissible because the Magistrate was not empowered under section 164. Criminal Procedure Code to record the statement for it was not made in the Course of an investigation under Chapter 14, Criminal Procedure Code. But even had the statement been made in the- course of such an investigation the statement, in my opinion, would have been admissible in evidence as a statement made by a person as to the cause of his death. Section 32 (2), Evidence Act. I agree with what was said in Chandgi v. Emperor4, by a Bench of the Lahore High Court that where a statement is relevant under the provisions of section 32 (1), Evidence Act, it is not inadmissible by reason of the fact that the Magistrate who recorded it was not competent to record a statement of a witness under section 164, Criminal Procedure Code. This was followed by the same Court in Rahman v. Emperor. Proceedings under section 164, Criminal Procedure Code are not mentioned in either section 529 or section 530 as proceedings which are not to be set aside on the ground of a Magistrate not being empowered or as void owing to that lack of power." Similar view is also taken by the Division Bench of Travancore-Cochin High Court in State v. Kuruvilla6. While dealing with such a contention in para 5 of the said judgment, the Travancore-Cochin High Court observed as under: "The Sessions Judge discarded Ext. E (1) on the grounds that it was recorded by a Magistrate who was not empowered to record statement under section 164, Criminal Procedure Code and that there were discrepancies between the statement in it and Ext. B. For discarding Ext. E (1) on the grounds that it was recorded by a Magistrate who was not empowered to record statement under section 164, Criminal Procedure Code and that there were discrepancies between the statement in it and Ext. B. For discarding Ext. 1 on the ground that it was recorded by a Magistrate who was not empowered to record statements under section 164, the learned Judge has relied upon the Privy Council decision in Nazir Ahamed v. King Emperor6. The statement excluded from consideration in Nazir Ahamed v. King Emperor, was a confession recorded from the accused during the course of the investigation by a Magistrate who was not specially empowered to take statements under section 164. The statement was sought to be made use of in that case as a confession; and since before recording the confession the Magistrate had to warn the accused and also to be satisfied that the confession he was going to make would be made voluntarily, it was held in that case that the statement recorded by a Magistrate not empowered to take statement under section 164, Criminal Procedure Code could not be accepted and acted upon. In the present case, Ext. E (1) is sought to be made use of not as a statement under section 164, Criminal Procedure Code, but purely as a dying declaration coming under section 32 (1), Evidence Act. No particular procedure has been prescribed by any provision of law for recording such a declaration, and it is also not necessary to give any warning before a dying declaration is recorded. Even a layman is competent to record a dying declaration and prove the same in the usual manner like other facts and documents. When a Magistrate not specially empowered to record statements under section 164, Criminal Procedure Code takes down a statement which Subsequently turns out to be a dying declaration, there is nothing in law to prohibit the Magistrate from proving in the ordinary manner the statement made to him by the deceased person. In this case, after recording the statement made to him by the deceased Chacko, P. W. 13 read over the statement to him and Chacko admitted it to be correct and also signed the same. The Magistrate has proved both Chacko's statement and the fact that the statement made by Chacko had been correctly recorded by him in Ext. (E) (1). The Magistrate has proved both Chacko's statement and the fact that the statement made by Chacko had been correctly recorded by him in Ext. (E) (1). We therefore consider that Ext. (E) (1) is admissible in evidence and can be taken due note of as a dying declaration under section 32 (1), Evidence Act. Our view is also fortified by the opinion expressed by a Bench of the Lahore High Court in Muhammed Sarfraz Khan v. Crown7. In that case it has been said: 'The case before the Privy Council was one of an improperly recorded confession. Now the law itself provides that when a confession has to be recorded by a Magistrate in the course of police investigation the Magistrate, before he proceeds to record the confession, must warn the prisoner that he is not under any obligation to make a confession and that the confession, if made, may be used as evidence against him and it is only after he has given this warning that he can proceed to record the confession, and that too if after questioning the prisoner he is satisfied that the confession he is going to make would be made voluntarily. The classes of Magistrates who are competent to record confession are specified and the lowest class declared competent for the purpose is class 2nd if specially empowered for the purpose. No such procedure however has been prescribed by law where the statement to be recorded is not a confession but a statement of a witness. It is true that under section l64, Criminal Procedure Code the only Magistrate who is competent to record the statement of a witness is a 1st Class Magistrate or a specially empowered 2nd Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. It is true that under section l64, Criminal Procedure Code the only Magistrate who is competent to record the statement of a witness is a 1st Class Magistrate or a specially empowered 2nd Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. But a Magistrate recording a statement under that section is not required to give any warning as is necessary in the case of a confession, and it is this difference in the recording of the confession of an accused and the statement of a witness that Courts subsequently to the Privy Council decision in Nazir Ahmed v. King Emperor have held that even where the statement of a dying man is recorded by an incompetent Magistrate in the course of police investigation, the case is not governed by the principle of that authority, and that the statements of the deceased persons though recorded by incompetent Magistrates are admissible as dying declarations. In our opinion, the learned Sessions Judge has committed a mistake of law in excluding Ext. E (1) from consideration as that statement has been properly proved by the Magistrate who recorded it. It should have been taken into consideration as a dying declaration under section 32 (1), Evidence Act even though the Magistrate who recorded it, was not empowered to record a statement under section 164, Criminal Procedure Code." 16. In our opinion, the contention of Shri Pendse that only because the Taluka Magistrate Shri Mahallye was not specially empowered to record confessions or statements as contemplated by section 164, Criminal Procedure Code, he had no authority to record the dying declaration is, therefore, wholly unfounded. Under section 32 (1) of the Evidence Act, a statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is admissible in cases in which the cause of that person's death comes into question. These statements may be written or verbal. No form or procedure is prescribed for recording these statements. However, normally and ordinarily these' dying declarations are recorded by the Magistrates. In this context, we may make a reference to paragraph l71 (2) of the Bombay Police Manual. These statements may be written or verbal. No form or procedure is prescribed for recording these statements. However, normally and ordinarily these' dying declarations are recorded by the Magistrates. In this context, we may make a reference to paragraph l71 (2) of the Bombay Police Manual. 1959, which reads as under: "In the normal course dying declarations should ordinarily be got recorded by the Executive Magistrates and if possible· in the presence of the accused, and the Judicial Magistrate should be approached only when the Executive Magistrates are not available. In case, it is not practicable to get the declaration recorded either by an Executive Magistrate or a Judicial Magistrate in time, an Investigating Officer should record it preferably in the presence of the Panch. Even if it has been made orally in the presence of any person, it may be proved in Court by the oral evidence of that person. The declaration becomes admissible, if the declarant subsequently dies. If he survives, it will be useful, if made, before a Magistrate, only to corroborate his oral evidence as a witness in Court. If it was made before a Police Officer, it will be treated only as a statement covered by section 162, Criminal Procedure Code." 17. In this context a reference could usefully be made to the law laid down by the Full Bench of this Court in State v. Parsottam Bhikhabhai8. While interpreting the provisions of section 32 (1) of the Evidence Act, the Full Bench observed as under: "Now, the question that really arises is as to the proper interpretation of section 32 (1). Section 32 constitutes an exception to the general rule that hearsay evidence is not admissible and section 32 refers to different statements which have been made relevant and therefore admissible although they are hearsay evidence. Section 32 is divided into eight sub-clauses and these sub-clauses deal with the nature of the statements referred to in this section. Section 32 constitutes an exception to the general rule that hearsay evidence is not admissible and section 32 refers to different statements which have been made relevant and therefore admissible although they are hearsay evidence. Section 32 is divided into eight sub-clauses and these sub-clauses deal with the nature of the statements referred to in this section. Sub-clause (1) makes a statement relevant which is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, and when we turn to the operative part of section 32 it provides: "Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:" Therefore, it is clear that a statement, if it falls under any of the eight sub-clauses of section 32, is relevant whether the statement is written or verbal, and what is contended on behalf of the accused who is represented by Mr. Shastri, who has urged before us all the relevant considerations, is that the only statement made relevant is a statement wl1ich consists of the verba ipsissima of a person making a statement. It is urged that in order that the statement should be relevant the actual words used by the person making the statement should be proved. If the actual words are not proved, the statement is not relevant and, therefore, not admissible. Now, in applying any canon of construction for construing section 32 it must be borne in mind that the same canon of construction must apply not only to sub-clause (1) but to the other sub-clauses in section 32 and if we accept the contention of Mr. Shastri, the inevitable result must be that in everyone of the cases referred to in section 32 a statement must be ruled out, unless the Court is satisfied that the statement consists of the verba ipsissima of the person making the statement. Shastri, the inevitable result must be that in everyone of the cases referred to in section 32 a statement must be ruled out, unless the Court is satisfied that the statement consists of the verba ipsissima of the person making the statement. It is true that section 32 (1) in a majority of cases comes into operation in criminal cases, but the other sub-clauses are clauses which are constantly requisitioned in civil cases. Take for instance the case of sub-clause (5) which relates to the existence of relationship and the statement is made by a person who has special means of knowledge with regard to the relationship. What the law requires is that the statement which is relevant must fall wit bin one of the cases set out in sub· clauses (1) to (8). Whether that statement should be acted upon, whether that statement has evidentiary value, whether that statement is reliable, are all considerations which do not go to the question of admissibility but to probative value. The statement may be a written statement, in which case writing constitutes the evidence, the statement may be oral, in which case it may be proved by a witness who heard it or it may be proved by a person who reduced it to writing and he may produce the writing as the evidence of the statement he has taken down. But whether the statement is correctly reproduced, whether the statement is the result of questions unfairly put or questions which were considered as leading questions, these are all circumstances which any Court admitting the statement must take into consideration. A statement may be so taken down that it may be worthless as evidence and no criminal Court would be justified in placing the slightest reliance upon it. But even so, the statement as falling under section 32 is relevant and admissible. It is only after we have passed the stage of admissibility that the question arises which the Court has to decide, viz., what is the evidentiary value of that statement. How good or how bad the statement is must depend upon various circumstances: who is the person who recorded it what is the nature of the evidence he gives, under what circumstances and by what means he got the person to make the statement. But to suggest, as Mr. How good or how bad the statement is must depend upon various circumstances: who is the person who recorded it what is the nature of the evidence he gives, under what circumstances and by what means he got the person to make the statement. But to suggest, as Mr. Shastri suggests, that unless we have the actual words of the person making the statement, the statement cannot be admitted into evidence, is to make a suggestion which would make section 32 (1) in a majority of cases a dead letter. Take one or two instances. A man has been seriously stabbed and it is a question of a few minutes before he departs from this world and he wants to make a statement. According to Mr. Shastri, the person who takes j down the statement must reduce to writing the questions that he has put and the exact answers which he has got from the injured person. But unfortunately death does not wait for the convenience of anyone and not even to see that the provisions of the Evidence Act are complied with. Therefore, in these circumstances, according to Mr. Shastri, if the person taking down the statement takes down the gist of it or takes down as much as is possible realising that life is ebbing away, the statement would become inadmissible. Take another case where a man is making a statement in a language which cannot be taken down by a person who is taking down the statement. He may take it down in English though he may understand the language spoken by the person who is making the statement. In this case also, according to Mr. Shastri, the statement will be inadmissible because the statement does not contain the actual words used by the person making the statement. Therefore, in our opinion, apart from authority, it is not possible to put a construction upon section 32 which in its very nature is a strained construction and which construction becomes, even more difficult to put when one realises that section 32 (1) does not stand by itself but it is part of a section which contains other cases where statements may be made and proved in a Court of law." 18. In the present case, it is not disputed before us that Shri Mahallye was an Executive Magistrate being a Taluka Magistrate. In the present case, it is not disputed before us that Shri Mahallye was an Executive Magistrate being a Taluka Magistrate. Therefore, it is not the case of the defence nor it is contended before us by Shri Pendse that Shri Mahallye was specially chosen in his individual capacity to record the dying declaration. A requisition was sent to him in his capacity as an Executive Magistrate to record the dying declaration. These dying declarations are normally recorded by the Magistrates because the Magistrates are not interested in success of investigation and are independent persons. This recording of the dying declaration by the Magistrate had also found favour with the Courts of law because these Magistrates being independent persons the declarations recorded by them are normally free from doubt. A dying declaration which has been recorded· by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers and-as far as practicable in the words of the maker of declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony of witnesses, which may suffer from all infirmities of human memory and human character. The object of recording dying declaration is to get from the person making statement the cause of death or the circumstances of the transaction which resulted in death. No provision of law has been pointed out by Shri Pendse to show that these dying declarations should be recorded only by a Magistrate who is specially empowered under section 164 of the Code of Criminal Procedure. As a matter of fact, section 32 (1) of the Evidence Act clearly indicates that the dying declaration which is admissible in evidence could not only be written but could be a verbal one also. If this is so, then it is not possible for us to hold that the dying declaration recorded by Shri Mahallye who is a Taluka Magistrate is wholly inadmissible in evidence only because it is not shown by the prosecution that he was specially empowered to record the confessions or statements under section 164, Code of Criminal Procedure. 19. This dying declaration was recorded by Shri Mahallye (P. W. 10) on 27th of September 1974 itself. Shri Mahallye was working as a Taluka Magistrate at Yeotmal for about a period of 3 years. 19. This dying declaration was recorded by Shri Mahallye (P. W. 10) on 27th of September 1974 itself. Shri Mahallye was working as a Taluka Magistrate at Yeotmal for about a period of 3 years. On 27.9.1974 at a bout 9 or 9.30 he got an intimation from the Yeotmal police that he was required at Main Hospital, Yeotmal for recording dying declaration. In response to this intimation he immediately' went to the Main Hospital. He contacted Dr. Kasmani and with him he went to the patient Malan Bandu Gore. He noticed burns on her body. According to Shri Mahallye, Dr. Kasmani and the patient were the only persons present there when he started recording the statement of Malan. Before recording this statement he ascertained from Dr. Kasmani as to whether Malan was in a fit mental and physical condition to make a statement and Dr. Kasmani answered in the affirmative. Dr. Kasmani has also given a certificate in that behalf which is Exhibit-27. On the same paper below the aforesaid certificate Shri Mahallye recorded the statement of Malan. According to him he started recording her statement at 9.30 p.m. He asked her name, age, residence place and then recorded all these things. He also asked her as to how she got burnt. He recorded the answer given by Malan and that too in her own words. After recording her statement, Shri Mahallye, Taluka Magistrate, put his signature on it. The statement was read over to Malan alia's Malti and she admitted it to be correct. thereafter he obtained the certificate from Dr. Kasmani. The said certificate is at Exhibit-29. 20. Shri Pendse has adversely commented upon this dying declaration and contended that it could not be accepted. According to Shri Pendse, there is no endorsement on this dying declaration to the effect that this statement recorded by the Taluka Magistrate was read over to the patient and she admitted it to be correct. Such a statement is made by the Magistrate before the Court on, the basis of his memory. He further contended that in this statement the details about the place of the incident, the previous quarrel which, took place between the deceased and the accused is not referred to. Such a statement is made by the Magistrate before the Court on, the basis of his memory. He further contended that in this statement the details about the place of the incident, the previous quarrel which, took place between the deceased and the accused is not referred to. The statement is a cryptic one and, therefore, according to Shri Pendse, it is quite clear that when this statement was recorded by the Taluka Magistrate the memory of the patient was faling. In these circumstances, it will not be safe to accept the testimony of the Taluka Magistrate Shri Mahallye as well as the dying declaration recorded by him vide exhibit-28. It is not possible for us to accept these contentions for the obvious reasons. 21. It is pertinent to note in this case that even before this dying declaration was recorded by Shri Mahallye the Taluka Magistrate, PSI Nagare had already recorded a dying declaration in detail vide Exhibit-54. The extent of the burn injuries on the person of Malan was about 80 percent. Obviously, therefore, she was in severe bodily pain and agony. The patient also knew that her statement in detail is already recorded by the PSI Nagare and that too in the presence of Dr. Kasmani. In these circumstances, the natural impulse would be to ten the Magistrate, without wasting any time on details as to who had burnt her. The very brevity of the dying declaration in the circumstances of the present case, far from being a suspicious circumstance, is an index of its being true and free from a taint of tutoring. This is more so in view of the evidence of Dr. Kasmani (P. W. 15). 22. P. W. 15 Dr. Kasmani has stated on oath that on 27-9-1974 Smt. Malan was admitted as an indoor patient at about 8.30 p.m. It was a case of 80 percent burns. As the patient was serious Dr. Tawade advised recording of the dying declaration. He also stated that there is a separate Ward at the Main Hospital for burn cases. According to Dr. Kasmani at 9 p.m., on 27-9-1974 he was on duty as Casualty Medical Officer. He examined Malan Bandu Gore and he found her fit to give her statement. Initially at 9 p.m. PSI recorded her statement in his presence and at that time also there was no relative of the patient present. According to Dr. Kasmani at 9 p.m., on 27-9-1974 he was on duty as Casualty Medical Officer. He examined Malan Bandu Gore and he found her fit to give her statement. Initially at 9 p.m. PSI recorded her statement in his presence and at that time also there was no relative of the patient present. He further stated that he was present throughout when her statement was recorded. Then according to Dr. Kasmani, the Taluka Magistrate came for recording the dying declaration. The Taluka Magistrate saw him at the Hospital and asked him whether Malan Bandu Gore was fit to give her statement. He examined her and found fit to give her statement and accordingly he gave a certificate vide Exhibit-27 at 9.28 p.m. 23. Thereafter the Taluka Magistrate recorded the statement of Malan below the certificate and that too in his presence. At that time none of the relatives of the petient was present near her. The witness Dr. Kasmani and the'Taluka Magistrate alone were present by the side of the bed of Malan when her statement was recorded by the Taluka Magistrate. According to Dr. Kasmani, the statement incorporated in Exhibit-28 was recorded by the Taluka Magistrate in his presence. The Taluka Magistrate asked questions and recorded the answers given by the lady. After completion of recording the statement of Malan, Dr. Kasmani certified that during her statement she was fit to give her statement. Practically there is no cross-examination of Dr. Kasmani so far as this part of his evidence is concerned. From the evidence of Dr. Kasmani therefore, it is quite clear that when the dying declaration was recorded by the Taluka Magistrate except for Dr. Kasmani and the Taluka Magistrate, none-else was present. The patient was in a fit condition to give a statement. The said statement was recorded in the presence of Dr. Kasmani. Taluka Magistrate asked questions to the patient and recorded the answers given by the Lady. This all happened in the presence of the doctor. Therefore, the evidence of the Taluka Magistrate P. W. 10 Mahallye is wholly corroborated by the testimony of Dr. Kasmani (P. W. 15). If the dying declaration incorporated in Exhibit-28 is read with this evidence on record, then it is quite obvious that the statement was recorded by the Taluka Magistrate in the words of the patient faithfully and correctly. Therefore, the evidence of the Taluka Magistrate P. W. 10 Mahallye is wholly corroborated by the testimony of Dr. Kasmani (P. W. 15). If the dying declaration incorporated in Exhibit-28 is read with this evidence on record, then it is quite obvious that the statement was recorded by the Taluka Magistrate in the words of the patient faithfully and correctly. If this is so, then in our opinion, the learned Sessions Judge was right in relying upon the said dying declaration. 24. As to how the evidence relating to the dying declaration should be accepted has been laid down by the Supreme Court in a recent decision reported in K. Ramchandra Reddy v. Public Prosecutor9. In this context, the Supreme Court has observed as under: " ... The dying declaration is undoubtedly admissible under section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated by this Court in Khushal Rao v. State of Bombay10." 25. In the present case it is neither suggested nor argued that the deceased had no opportunity of seeing the person who had set fire to her clothes. Practically the dying declaration was recorded immediately after the incident. The dying declaration was also recorded in the hospital and that too within a short time after the patient was admitted. In the present case it is neither suggested nor argued that the deceased had no opportunity of seeing the person who had set fire to her clothes. Practically the dying declaration was recorded immediately after the incident. The dying declaration was also recorded in the hospital and that too within a short time after the patient was admitted. It is neither argued nor it is suggested that the said statement was a result of tutoring or prompting. The dying declaration was recorded in the presence of a doctor who certified that the patient was in a fit condition both mentally and physically to make a statement. The statement was recorded by a Taluka Magistrate Shri Mahallye in a proper manner, that is to say, in the form of question and answer and as far possible in the words of the maker of the declaration. Obviously therefore such a declaration stands on a much higher footing then a dying declaration which depends upon the oral testimony which may suffer from other infirmities such as want of memory or want of care. In our opinion, therefore, as a matter of fact the conviction of the accused can be based on this dying declaration alone which was duly recorded by the Taluka Magistrate (P. W. 15) Shri Mahallye vide Exhibit 28. 26. Apart from this, we have on record another dying declaration recorded by Police Sub-Inspector Nagare P. W. 16. On 27·9-1974 at about 8.45 p.m. Nagare was on duty at the police station, Yeotmal. Exhibit-39, the report was shown to Nagare which was received from the Main Hospital, Yeotmal. In response to this report, he immediately went to the Main Hospital, Yeotmal. He also issued a memo to the Taluka Magistrate and sent it with another police constable. This main hospital is at a distance of 500 to 600 feet from the Police Station, Yeotmal. At the hospital he saw the patient and gave a memo to Dr. Kasmani to certify whether the lady was in a position to give her statement. Dr. Kasmani certified on the reverse of the memo that the lady was in a fit condition to give her statement. According to this witness he himself and Dr. Kasmani were the only persons present near Malan when he recorded her statement which is incorporated in Exhibit-54 It was recorded in his hand writing and bears his signature. Dr. Kasmani certified on the reverse of the memo that the lady was in a fit condition to give her statement. According to this witness he himself and Dr. Kasmani were the only persons present near Malan when he recorded her statement which is incorporated in Exhibit-54 It was recorded in his hand writing and bears his signature. He started recording her statement at 9 p. m. and recorded it as per the narration of Malan. It was read out to her and she admitted it to be correct. The witness further explained that as her fingures were burnt neither her signature nor her thumb mark could be obtained. The witness made an endorsement to this effect on this statement itself. After recording her statement he again obtained the certificate of Dr. Kasmani vide Exh· 53. The witness further stated that during the course of recording this dying declaration Malan was fully conscious and was able to talk. This witness has recorded this dying declaration immediately because according to him till then the Taluka Magistrate had not turned up. 27. The testimony of this witness is fully corroborated by the evidence of P. W. 15 Dr. Kasmani to which we have already made a reference. From the evidence of doctor it is quite clear that this statement was recorded by the Police Sub· Inspector in his presence. At that time also no relative of the patient was present. The doctor was present throughout when the statement was being recorded. He has certified both prior to the recording of the statement as well as after the recordings of the statement that the patient was full conscious ·and was in a position to make the statement. Both these certificates duty signed by the doctor are produced before the Court. The doctor also stated that the fingers of Malan were burnt and therefore she could not sign. Not only this but the Doctor further stated that the statement incorporated in Exhibit-54 is the same statement recorded by the Police Sub-Inspector Nagare in his presence. Therefore in Our opinion, even this statement recorded by Police Sub Inspector Nagare in the presence of the doctor could safely be relied upon. 28. Not only this but the Doctor further stated that the statement incorporated in Exhibit-54 is the same statement recorded by the Police Sub-Inspector Nagare in his presence. Therefore in Our opinion, even this statement recorded by Police Sub Inspector Nagare in the presence of the doctor could safely be relied upon. 28. Shri Pendse, learned counsel for the accused contended before us that it will not be prudent to accept this dying declaration recorded by the Police Sub-Inspector Nagare because obviously he being an Investigating Officer, he is interested in the success of his investigation and, therefore, is an interested witness. This dying declaration was recorded in the absence of Panchas and this is contrary to the instructions incorporated in the Police Manual. This dying declaration is not in a question and answer form. In Support of it is contentions Shri Pendse has relied Upon two decisions of the Supreme Court, namely, Balak Ram v. State of U.P.11 and Munnu Raja v. State of M.P.12. It is no doubt true that in these two cases it is observed by the Supreme Court that, the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigation Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. However, in our opinion, the observations made by the Supreme Court in, these two decisions are obviously distinguishable. 29. In Munnu Raja v. State of M. P. (supra) the police had not requisitioned the services of the Magistrate at all for recording the dying declaration and without doing so, had proceeded to record the dying declaration, whereas in Balak Ram v. State of U. P. the Supreme Court was considering the question as to whether it will be safe to base a conviction or an accused only' on the basis of a dying declaration recorded by the Investigating Officer. In the present case we are not concerned with such a. controversy. In the case before us a requisition was duly sent to the Taluka Magistrate for recording a dying declaration and in fact the Taluka Magistrate has recorded the dying declaration immediately after the dying declaration was recorded by the PSI Nagate vide Exhibit-54. The dying declaration, record by the PSI Nagare- was recorded in the presence of Dr. Kasmani. The doctor has stated so in his deposition in the clearest terms. The dying declaration, record by the PSI Nagare- was recorded in the presence of Dr. Kasmani. The doctor has stated so in his deposition in the clearest terms. So far as the· recording of the dying declaration is concerned, practically there is no cross-examination of PSL-Nagare. If this, dying declaration is read as a whole it sounds true. In this case, the conviction of the accused is not being based solely on the dying declaration recorded by the PSI Nagare. On the other band in our opinion the dying declaration recorded by PSI Nagare vide Exhibit-54 renders substantial corroboration to the dying declaration duly recorded by the Taluka Magistrate vide Exhibit-28. 30. Apart from these two dying declarations, we have on record the evidence of P. W. 5 Ramsevaki, P. W. 8 Sitabai and P. W. 9 Tulsabai who speak about the oral dying declarations made by the deceased. So far as P. W. 5 Ramsewak is concerned, obviously he came to the spot immediately and heard the dying declaration made by the deceased Malan to Bhaskar (P. W. 3). It is no doubt true that P. W. 3 Bhaskar has not supported the prosecution case, but it is clear from the evidence on record that P. W. 5 Ramsevak had come to the spot immediately after the incident. If this is so, then in the ordinary course he must have heard the declaration made by Malan to P. W. 3 Bhaskar or other persons present on the spot. It is no doubt true that his statement was recorded by the police on 30th of September 1974, but at the same time it cannot be forgotten that this witness is not resident of the village proper, nor he was an eye witness. In these circumstances, no importance could be attached to this delay by the police in recording his statement during the investigation. 31. P. W. 8 Sitabai and P. W. 9 Tulsabai were present by the side of the deceased in the hospital. Their presence in the hospital was but natural. Having regard to the relations of the deceased with these two ladies it is but natural that the deceased may have told them about the burn injuries sustained by her. 31. P. W. 8 Sitabai and P. W. 9 Tulsabai were present by the side of the deceased in the hospital. Their presence in the hospital was but natural. Having regard to the relations of the deceased with these two ladies it is but natural that the deceased may have told them about the burn injuries sustained by her. The evidence of these three witnesses is discussed in detail by the learned Sessions Judge and as we are in general agreement with the appreciation of the evidence as well as the findings recorded in that behalf, it is not necessary to re-state the whole evidence or the reasons for 'the finding over again. To say the least, the evidence of these three witnesses also renders substantial corroboration to the dying declarations recorded by the PSI Nagare vide Exhibit-54 and the Taluka Magistrate Shri Mahallye vide Exhibit 28. 32. Apart from this, the subsequent conduct of the accused himself was also eloquent. In paragraph 26 of his judgment, the learned Sessions Judge has made a detailed reference to the conduct of the accused. To say the least, the said conduct was not consistent with his innocence. Therefore, if a cumulative view of the whole evidence is taken it can safely be concluded that the accused poured kerosene oil on the person of the deceased and then had set fire to her clothes on 27-9-1974. 33. Once this finding is recorded then obviously the accused is liable to be convicted for an offence punishable under section 302 of the Indian Penal Code. We have on record the post mortem report by Dr. Kale Exhibit-74. This report was duly admitted by the accused. Such a statement of admission was made by the counsel for the accused in response to a notice given by the prosecution under section 294 of the Code of Criminal Procedure. From this post mortem report, it is quite clear that the deceased had sustained extensive burn injuries to the extent of 80 percent. In the opinion of Dr. Kale the cause of death was shock due to extensive burns. No special knowledge is required to know that one may cause death by burning if he sets fire to the clothes of a person. In any case the accused must have known that he was running the risk of causing the death of victim. In the opinion of Dr. Kale the cause of death was shock due to extensive burns. No special knowledge is required to know that one may cause death by burning if he sets fire to the clothes of a person. In any case the accused must have known that he was running the risk of causing the death of victim. See State of Madhya Pradesh v. Ramprasad13. In these circumstances, it can safely be inferred that the accused either intended to cause death or very well knew that by his act he was likely to cause the death of Malan and, therefore, in our opinion, the accused was rightly convicted for an offence punishable under section 302 of the Indian Penal Code. 34. In the view which we have taken, there is no substance in this appeal. The appeal fails and is dismissed. Appeal dismissed.