K.S. SIDHU, J.—This judgment will deal with a Reference (No. 3 of 1982) for confirmation of a sentence of death, D.B. Criminal Appeal No. 112 of 1982, and D.B. Criminal (Jail) Appeal No. 113 of 1982, all thereof which arise from a judgment and order, dated February 25, 1982, by the Sessions Judge, Jhunjhunu, convicting Geega Ram and Bajranglal under Sec. ion 302 IPC and sentencing the former to death and the latter to imprisonment for life and a fine of Rs 100/- and, in default, to further rigorous imprisonment for one month. 2. The case of the prosecution may be shortly stated here. Chanda Devi deceased, who is said to have been killed by her father-in-law Geega Ram, and his nephew Bajrang Lal, was a widow, residing with her father-in-law at Jhunjhunu at the time of her murder. Her husband Chhaju Ram Kumhar, who was working abroad in United Arab Emirates, has died there of an accident on September 20, 1980. He had taken an insurance policy with accident benefit from the Life Insurance Corporation of India in August, 1979. Chanda Devi, who was the nominee, specified as such in the documents of insurance, by her deceased husband, was entitled to receive payment of a sum of about Rs. 30,000/- from the insurer. It is alleged that Geega Ram and Bajrang Lal Sprinkled Kerosene on her in her sleep during the night on September 27, 1981, set her ablaze and thus killed her so that Geega Ram could realize payment of the amount of insurance as the surviving legal heir of his deceased son. 3. The prosecution story goes that on September 27, 1981, at about 2 A.M., Geega Rams neighbours heard the cries of his daughter-in-law, rushed to his house, and saw Chanda ablaze in Mala Rams Dhara (open enclosure) infront of Geega Rams house. They saw her desperately convulsing in sand in trying to extinguish the fire. They heard cursing her father-in-law (Geega Ram) and Jeth (Bajrang Lal) saying they had set her ablaze. They saw that Geega Ram and Bajrang Lal were present there. They heard Geega Ram saying that it would be good riddance if she is burnt to death. The neighbours extinguished the fire, lifted Chanda from the ground and put her in a cot. She requested them to take her to a hospital. They immediately took her to B.D.K. Hospital Jhunjhunu. Dr. They heard Geega Ram saying that it would be good riddance if she is burnt to death. The neighbours extinguished the fire, lifted Chanda from the ground and put her in a cot. She requested them to take her to a hospital. They immediately took her to B.D.K. Hospital Jhunjhunu. Dr. K.K. Sharma (PW5) who was on night duty admitted her and found her whole body, except the scalp of the head, having extensive burn injuries. He started the necessary treatment and informed the police about her admission and condition. He also called a medical jurist who examined her and prepared the injury report at 2.45 A.M. The medical jurist described the injuries to be grievous and fresh. ASI Rang Lal (PW 11) of police station Jhunjhunu rushed to the hospital after recording a report (Ex. P 23) in the roznamcha at 2.14 A M. He recorded the statement, Ex. P. 5, of Chanda in the presence of Dr. K.K. Sharma. She told Rang Lal,inter alia, that her father-in-law and Jeth had sprinkled kero-sene on and set fire to her while she was asleep in her room, that she had run out crying and had fallen on the ground trying to extinguish the fire, that the residents of the mohalla had reached there on hearing her cries and that they had brought her to the hospital. Dr. K.K. Sharma also signed this statement in token of its correctness. ASI Rang Lal went back to the police station and recorded the F.I.R :Ex. P. 24) on the basis of Ex. P. 5 at 3.15 A.M. that very night. Chanda succumbed to her injuries at 8.20 A.M. in the morning. Dr. N. Hussain PW6) conducted the post mortem and prepared the post mortem report (Ex.P7) at 10.55 A.M. stating that she had died on shock as a result of extensive burns on her body. 4. ASI Rang Lal took up investigation and arrested both Geega Ram and Bajrang Lal on September 27, 1981, itself. He inspected the scene of crime in house of Geega Ram accused and prepared the rough sketck plan Ex. P/14. He took into possession from the spot partially burnt matrass, pillow, cot, kerosene tin containing some oil and a match box and prepared the recovery memo Ex. P/15. He recorded the statements of the witnesses under section 161 Cr.P.C. 5. He inspected the scene of crime in house of Geega Ram accused and prepared the rough sketck plan Ex. P/14. He took into possession from the spot partially burnt matrass, pillow, cot, kerosene tin containing some oil and a match box and prepared the recovery memo Ex. P/15. He recorded the statements of the witnesses under section 161 Cr.P.C. 5. On completion of the investigation Geega Ram and Bajrang Lal were forwarded to the court for proceedings for their commitment for trial under section 302 I.P.C. They were committed to the Court of Sessions in due course. They were tried by the Sessions Judge, Jhunjhunu on the charge of murder of Chanda Devi punishable under section 302 I.P.C. They denied the charge. 6. During the trial, the prosecution examined, among others, Girdhari, Shanker, Sagar, Sanwal Ram, Dr. K.K. Sharma, Dr. N. Hussain, A.N. Jaitely, Mahavir, Mohanlal and Rang Lal as witnesses in support of its case. PW Gir-dhari deposed that he was one of the neighbours who had gone to the house of Geega Ram on the fateful night after hearing the cries of Chanda Devi and that he had seen her burn injuries. He however denied that Chanda Devi had told them as to who had set fire on her. He even denied that he had seen Geega Ram and Bajrang Lal around them. Similarly PW Shanker, a neighbour and nephew of Geega Ram, also turned hostile to the prosecution and denied that Chanda had said anything in criminatory of Geega Ram and Bajrang Lal. He went so far as to deny that Chanda was crying at that time. He would have us believe that on seeing Chanda burning he was so frightened that he immediately turned back and ran away. PW Sagar admitted this much that he had heard cries of Chanda and that on reaching there he had seen her burning and heard her uttering the words baal dia re bal dia." He too denied that she had named her father-in-law Geega Ram and Jeth Bajrang Lal as the culprits who had set fire to her. PW Mahavir Prasad also admitted that Chanda was burning and imploring them to take her to hospital. He stated that, they had extinguished the fire and removed Chanda to the hospital. PW Mahavir Prasad also admitted that Chanda was burning and imploring them to take her to hospital. He stated that, they had extinguished the fire and removed Chanda to the hospital. All the four witnesses, namely, Girdhari, Shanker, Sagar and Mahavir Prasad were declared hostile at the instance of the Public Prosecutor and allowed to be cross-examined by him. Each of them was confronted with his statement recorded under section 161 Cr.P.C. They had fully supported the prosecution case during the investigation, but resiled from those statements during the trial. They do not appear to be reliable witnesses. Their evidence must therefore be ignored. 7. PW Sanwal Ram is the only witness from among the neighbours of Geega Ram who rose above his sympathies as a neighbour and made bold to tell truth. He recalled that he had heard the cries of Chanda Devi on the fateful night and gone to the house of her father-in-law to see what had happened. He deposed that Chanda was convulsing on the ground and cursing that she had been set ablaze by her father-in-law and Jeth. He added in this context that both Geega Ram and Bajranglal, father-in-law and Jeth, respectively, of the deceased were present there at the time when she was, in a manner of a speak-ing, pointing her accusing finger to them. 8. ASl Rang Lal (PW 11) deposed that he had recorded the dying decl-aration,Ex. P.5 of deceased truly and faithfully and that the deceased had named both Geega Ram and Bajrang Lal as the culprits who had sprinkled kerosene on her and set fire to her in her sleep. 9. PW A.N. Jaitely of L.I.C. deposed with reference to documents of insurance that the husband of Chanda deceased had taken out an insurance policy giving the name of Chanda Devi as his nominee in August 1979 and that since he had died of an accident. Chanda was entitled to receive an amount of over Rs. 30,000/- from the L.I.C. Mohanlal (PW 10) the unfortunate father of Chanda deceased testified that Geega Ram and Bajrang Lal were having an eye on the insurance money payable to Chanda Devi and which would have become payable to Geega Ram on her death. He recalled the mistreatment of his daughter at the hands of Geega Ram and his wife. The application, Ex. He recalled the mistreatment of his daughter at the hands of Geega Ram and his wife. The application, Ex. P/22, made by Geega Rams wife before the District Judge for a succession certificate in respect of the insurance amount would show that notwithstanding the deceased having been specified by her husband as the only nominee entitled to receive the amount, Geega Rams wife was claiming an equal share from that amount as one of the heirs of her deceased son. 10. The evidence produced by the prosecution against the accused thus consists of:- (i) Dying declaration, Ex.P/5, made by the deceased in the presence of ASI Rang Lal and Dr. K.K. Sharma. (ii) Cries of the deceased, while she was burning like "baal dia re baal dia" and her curses that her father-in-law and Jeth had set her ablaze as res gestae evidence under section 6, Evidence Act; (iii) Opportunity for the accused; (iv) Conduct of the accused; (v) Motive. 11. On the above evidence being put to the accused to enable them to explain it, each of them denied the allegations made against him. In his statement under section 3l3 Cr.P.C., Geega Ram admitted that he had been present on the fateful night in his house where the deceased was sleeping in her room. He however cast a suspicion on the moral character of the deceased inasmuch as he stated that her sisters husband, accompanied by a few strangers, visited her earlier that night and stayed on in her room. He further stated that he had heard noise after mid-night, woke up and seen that Chanda was lying with burn injuries. In an effort to explain his conduct as to why he did not immediately rush his dangerously burnt daughter-in-law to the hospital, Geega Ram stated that he had requested the neighbourers to go to the police station to lodge a report, but since none of them agreed to go, he and Bajrang Lal had to go to the police station, instructing the neighboured to take her to the hospital. Bajrang Lal also admitted his presence in Geegas house immediately after the occurrence. He stated that he had reached there from his house on hearing the noise. Bajrang Lal also admitted his presence in Geegas house immediately after the occurrence. He stated that he had reached there from his house on hearing the noise. He further stated that he and Geega Ram had gone to the police station leaving behind other neighbours to take Chanda to the hospital and that there at the police station the S.H.O, refused to register their report and instead detained them there. 12. The accused did not produce any evidence in defence. 13. Now, it will be seen from,the evidence referred to above that it is established beyond any reasonable doubt that Chanda Devi died of shock on September 27,1981,at 8.20 a.m, as a result of the extensive burn injuries sufferred by her earlier that night at about 2 a. m. Several persons including PW Sanwal Ram witnessed her conclusions in sand in the Dhara of Mala Ram in front of accused Geega Rams house. Geega Ram admitted that both he and Chanda had been in his house that night and that Chanda had retired to bed in her own room in that house. He also admitted that Chanda had raised hue and cry. In fact he would have us believe that he woke up from his sleep only on hearing her cries and that thereafter he saw her lying with extensive burn injuries. He stated in this context that earlier that night the brother-in law of the deceased along with a few strangers had visited her and stayed on in her room for the night. He was thus trying to suggest that the crime of murder might have been committed by the strangers. The story regarding the visit of the strangers is obviously a fib and the suggestion that the murder was committed by strangers is preposterous. The evidence that Geega Ram and Bajrang Lal were present in the house at the time when the deceased was seen burning was too compelling for the accused to deny their presence there, not withstanding the fact that some of the prosecution witnesses, who were declared hostile over-zealously denied the presence of the accused at the time of occurrence. The accused had thus ample opportunity to commit this crime. Geega had a definite motive. The accused had thus ample opportunity to commit this crime. Geega had a definite motive. PW Sanwal Ram, who is certainly an independent and a reliable witness, deposed that while Chanda was burning Geega was heard venting his spleen and uttering the remarks that it was good riddance, The conduct of the accused at that time also points to their guilt. They did not try to help Chanda at all. Instead, they stood by when she was burning and struggling between life and death. They did not take her to the hospital. She was taken to the hospital admittedly by neighbours and not by them. The cries and curses of Chanda which are so connected with the criminal act of setting her clothes and body on fire as to form part of the same transaction are also relevant under section 6, Evidence Act. Sanwal Ram PW says that she was burning, crying and saying that she had been burnt by her father-in-law and jeth. He further says that both the accused were present there when she was accusing them in her agony. Even Sagar PW, who resiled from his statement under section 161 Cr.P.C. in many material particulars stated, rather unwittingly, that the deceased was heard by him crying "Baal dia re baal dia". These words clearly rule out the theory of suicide. 14. All the circumstances discussed above definitely point to the guilt of the accused. In any case, these circumstances provide ample corroboration to the dying declaration, Ex. P 5, made by the deceased in B.K. D. Hospital Jhunjhunu a little later after the occurrence in the presence of ASI Ranglal and and Dr. K. K. Sharma. In that declaration, she implicated both Geega Ram and Bajrang Lal as the culprits who had thrown kerosene on her in her sleep and set her clothes and body ablaze. Earlier, she had spontaneously uttered incriminating words against the accused at the time when she was convulsing on the ground in Mala Rains Dhara. It will be recalled that Sanwal Ram PW heard her at that time cursing her father in-law (Geega Ram) and jeth (Bajranglal) as the persons who had burnt her. Even Sagar PW admitted that she was crying "baal dia are bal". 15. We have therefore no hesitation in placing reliance on the testimony of PWs Sanwal Ram. ASI Ranglal and Dr. Even Sagar PW admitted that she was crying "baal dia are bal". 15. We have therefore no hesitation in placing reliance on the testimony of PWs Sanwal Ram. ASI Ranglal and Dr. K,K. Sharma and holding that Chanda made an oral dying declaration immediately after she came out of her room burning and crying, and another declaration which was reduced into writing as Ex. P/5 in the B. K. D. Hospital Jhunjhunu. 16. Mr. Tibrewal, learned counsel for the appellants, attacked the genuineness of the dying declaration Ex. P/5 on the ground that it was recorded by the Investigating Officer and not by a Magistrate and that in any case, the provisions of rule 6. 22 of the Rajasthan Police Rules had not been complied with in recording this statement. In our opinion, there is no valid ground to doubt the genuineness of the statement Ex. P/5. It is true that it was recorded by ASI Ranglal and not by a Magistrate. It has however to be borne in mind that Chanda was in such a precarious condition that no prudent investigator could afford to take chance till the arrival of a Magistrate in the hospital. We cannot lose sight of the fact that it would have been -well high impossible to get a Magistrate promptly gat that time. The dying declaration was recorded at 2.45 A.M. Chanda died soon after at 8.20 A. M. Thus, time was the essence of the matter, & ASI Rang Lal was justified in recording the statement instead of going in search of a magistrate at that odd hour of the night. He however took the precaution of recording this statement in the presence of Dr. K.K. Sharma who attested it on the spot. 17. In a similar situation, the Supreme Court held in Jaswant Singh v. State, (1) that "the dying declaration recorded by the Sub-Inspector in the presence of the duty Doctor who also verified its genuineness was truthful and convincing and it could not be brushed aside merely on the ground that it was not recorded by a Magistrate". The ratio of this authority fully applies to the facts of the instant case. 18. As for compliance by ASI Rang Lal with rule 6, 22 of the Rajasthan Police Rules. We find in the facts of this case that since the dying declaration was recorded in the presence of Dr. The ratio of this authority fully applies to the facts of the instant case. 18. As for compliance by ASI Rang Lal with rule 6, 22 of the Rajasthan Police Rules. We find in the facts of this case that since the dying declaration was recorded in the presence of Dr. K.K. Sharma who attested and signed the same, the provisions of rule 6.22 were substantially complied with. After all, this is a rule in the nature of the instructions for the guidance of police official At best, it is of a directory nature. It bears repetition that in the situation in which ASI Ranglal was placed, he did ail he was required to do to inspire confidence that the statement recorded by him is genuine and true. 19. For all these reasons, we are fully satisfied that the statement Ex P./5 is the dying declaration of Chanda deceased and that it can be safely acted upon, It finds added assurance from the fact that Chanda had spontaneously cried out, immediately after she was set ablaze, and in the hearing of the accused and the neighbours including Sanwal Ram PW , that the accused had burnt her. The evidence regarding motive, opportunity to commit the crime and conduct of the accused after the occurrence corroborates the dying declaration of the deceased We therefore affirm the findings of the learned Sessions Judge that the charge of the murder of Chanda. punishable under section 302 I.P.C. is proved beyond any doubt against both the appellants. Their appeal against their conviction under section 302 I. P. C. must therefore fail. 20. This brings us to the question of sentence. Bajrang Lal has been sentenced to imprisonment for life and a fine of Rs. 100/- or in default further rigorous imprisonment for one month. This sentence does not call for any interference. We do not however find any special reason why Geega Ram should be awarded the extreme penalty of death. This in our opinion, is not one of those "rarest of rare cases" which in the language of the Supreme Court would warrant the sentence of death. We would therefore quash the sentence of death and instead sentence Geega Ram to imprisonment for life and a fine of Rs. 1000/- and in default, further rigorous imprisonment for sis months. 21. This in our opinion, is not one of those "rarest of rare cases" which in the language of the Supreme Court would warrant the sentence of death. We would therefore quash the sentence of death and instead sentence Geega Ram to imprisonment for life and a fine of Rs. 1000/- and in default, further rigorous imprisonment for sis months. 21. In conclusion, we confirm the conviction and sentence of Bajrang Lal under section 302 I.P.C., as ordered by the learned Sessions Judge. We also confirm the conviction of Geega Ram under Section 302 IPC, but reduce his sentence from death to imprisonment for life and a fine of Rs. 1000/-, and in default, further rigorous imprisonment for six months. The two appeals and the reference are decided accordingly.