J. M. PANCHAL, K. J. VAIDYA, J. ( 1 ) THE appellant - Anwar Noormohmad Saicha by this Criminal Appeal has challenged the impugned judgment and order dated 29-10-1991 rendered in Sessions Case No. 37/91 by the learned Additional Sessions Judge Jamnagar wherein he on being tried for the alleged offence of murdering his wife Mariam came to be convicted for the same and sentenced to suffer RI for life and to pay a fine of Rs. 500. 00 in default to undergo further RI for six months etc. ( 2 ) FEW Relevant Facts : According to the prosecution the incident in question wherein Bai Mariam aged 20 was burnt to death by her husband (present appellant) took place on 1-3-1991 at about 15-00 hours at her matrimonial residence situated at Jodia Bhunga Jamnagar. It appears that the appellant married to Mariam around two years prior to the date of the incident and had one daughter out of the said wedlock. It further appears that at the initial stage the relations between the appellant and his wife were quite sweet and cordial but thereafter since last about four months prior to the date of the incident the appellant has started suspecting the character of Mariam as having illicit affairs with other persons. Because of this reason bitterness between the spouses increased recurring quarrels ensued and the married life started drifting towards the devastating end. It further appears that due to these quarrels down and dejected Mariam often used to go away to her parents house where her brothers viz. Ilias Issa and Jaffar Issa consoling her pursuaded to return to her matrimonial home. Unfortunately as it would have been on 1-3-1991 at 15-00 hours a quarrel once again erupted between the spouses wherein the appellant gave a stick blow on the leg of Mariam and on she falling down he poured kerosene over her and set her at fire. On hearing the screams some neighbours rushed to the place where Mariam was found lying in a burnt condition. Thereafter she was removed by the appellant to Irvin Hospital Jamnagar where she came to be admitted and examined by Dr. Bharatbhai Tolaram Shangtani (PW-25 Ex. 61 ). In case papers (Ex. 62) prepared at 15-20 hours it has been stated by Dr. Shangtani to quote - History given by the patient herself. Thereafter she was removed by the appellant to Irvin Hospital Jamnagar where she came to be admitted and examined by Dr. Bharatbhai Tolaram Shangtani (PW-25 Ex. 61 ). In case papers (Ex. 62) prepared at 15-20 hours it has been stated by Dr. Shangtani to quote - History given by the patient herself. H/o. burnt with kerosene and was aflamed at 3-00 p. m. Brought by her husband. This Dr. Shangtani further while giving evidence before the court has deposed to quote - I on seeing the case papers say that she (Mariam) has given history that at about 3-00 p. m. she was set at fire by kerosene and that her husband had brought her to the hospital. Not only that but the Head Constable Lilavatibehn Bhimji (PW-31 Ex. 84) who was on duty at Irvin Hospital when she saw Mariam she was found burnt all over her body and she was conscious and was able to speak. On making inquiry by the said Lilavatibehn as to how she got burns Mariam informed that her husband had set her at fire. This particular information was also reduced into writing and entered into MCL case Register which is produced at Ex. 85. It further appears that Lilavatibehn informed the concerned PSI that Mariam has been admitted in the hospital in the burnt condition alleging that she was set to fire by her husband (appellant herein) by pouring kerosene over her. The said report is produced at Ex. 66. Pursuant to the said report Ex. 66 PSI V. D. Vyas (PW-28 Ex. 70) went to the hospital and recorded the FIR Ex. 71 given by Mariam at 17-00 hours. In the said FIR Ex. 71 Mariam in terms has alleged that kerosene was poured over her and thereafter she was set at fire by the appellant. It further appears that Lilavatibehn had also sent Yadi to the Executive Magistrate for recording the dying declaration. The said Yadi is produced at Ex. 24. Thereafter the Executive Magistrate Dharmendra S. Shukla (PW-4 Ex. 23) recorded the dying declaration of Mariam on the very day at 18-00 hours. According to Mr. Shukla he on reaching Irvin Hospital contacted Dr. Shangtani and obtained the certificate as to whether Mariam was conscious and in a fit state of mind to give her dying declaration. It was Dr. Shangtani who introduced Mariam to him. 23) recorded the dying declaration of Mariam on the very day at 18-00 hours. According to Mr. Shukla he on reaching Irvin Hospital contacted Dr. Shangtani and obtained the certificate as to whether Mariam was conscious and in a fit state of mind to give her dying declaration. It was Dr. Shangtani who introduced Mariam to him. At that time Mariam was lying in the bed and on making inquiry regarding her name etc. she gave her name as well as the names of her husband and father her age her occupation etc. Whatever questions were asked to Mariam were replied and were accordingly taken down by the Executive Magistrate Mr. Shukla in his own handwriting. Mr. Shukla has further stated that in the dying declaration Ex. 25 Mariam had stated before him that because of the suspicion her husband had beaten her and thereafter pouring kerosene over her match-stick was applied setting her at fire. Below this dying declaration Ex. 25 there is right hand thumb impression of Mariam which has been duly identified by the Executive Magistrate by placing his signature. ( 3 ) AT the Trial the appellant pleaded not guilty and claimed to be tried. The defence of the appellant was that of total denial alleging that he was falsely implicated. The Trial Court after duly appreciating the prosecution evidence brought on the record and mainly accepting and relying upon the oral as well as the written dying declaration convicted and sentenced the appellant as stated above in Para-1 of this order giving rise to the present appeal. ( 4 ) MR. H. N. Jhala the learned Advocate appearing for the appellant while challenging the impugned order of conviction and sentence has vehemently challenged the oral as well written dying declarations alleged to have been made by Mariam before the Head Constable Lilavatibehn Bhimji Executive Magistrate Mr. Shukla as well as in her complaint before the PSI Vyas. Mr. Jhala vehemently submitted that Mariam succumbed to her burns injuries at 7-10 p. m. and looking to her serious burns and the sinking condition she certainly would not have been conscious or at any rate in that fit state of mind to give any dying declaration as alleged to have been made and produced at Ex. 25. This contention of Mr. Jhala will have to be appreciated in the light of the evidence of Dr. 25. This contention of Mr. Jhala will have to be appreciated in the light of the evidence of Dr. Shangtani who in unmistakable terms has deposed before the court that he had put certain questions to Mariam which were replied by her and that she was found to be conscious and in a fit state of mind to give statement. Mr. Jhala submitted that merely because Dr. Shangtani asserted before the court that she was in a fit state of mind that by itself is not sufficient to warrant that in fact Mariam was conscious and in a fit state of mind to give statement. Mr. Jhala submitted that looking to the case papers the above evidence of the doctor loses all its credibility as Mariam could not have been in a position to make any such statement and therefore the evidence of Dr. Shangtani being that of the lier the same deserves to be discarded out right. It is indeed difficult to agree with this submission of Mr. Jhala for the simple reason that Dr. Shangtani has no personal axe to grind in this matter either way that is to say - he has neither any personal interest in siding with the prosecution to falsely implicate the accused in the serious charge of murder nor had he any personal enmity against the accused to depose against him. Thus he is an independent witness. Secondly Dr. Shangtani being a medical expert he is the best person in the field to tell us whether in fact Mariam was in a fit state of mind to give the statement before the Executive Magistrate or not. When such an expert states that he has put certain questions to Mariam and she was found to be conscious then in that case it is not possible to disbelieve him more particularly when his evidence on the point has not been challenged in his cross-examination. As a matter of fact the view we are taking regarding the aforesaid contentions raised by Mr. As a matter of fact the view we are taking regarding the aforesaid contentions raised by Mr. Jhala is squarely supported by three decisions of the Supreme Court reported in (1) AIR 1978 S. C. 1530 in the case of State of Haryana v. Harpal Singh and Others; (2) AIR 1987 S. C. 860 in the case of Suresh v. State of Madhya Pradesh; and (3) 1991 Supreme Court Cases (Cri.) 275 (in the case of Padmabehn Shamalbhai Patel v. State of Gujarat ). In the case of State of Haryana v. Harpal Singh (supra) the Supreme Court in para-18 has held as under :"the High Court was of the view that a person in the state of health as depicted in the Bed Head Ticket could not have possibly made a coherent and detailed statement as contained in Ex. P. L. We are unable to share the view of the High Court. The doctor was fully aware of the condition and certified that the patient was in a fit condition to give a dying declaration and had deposed that she was conscious and was in a fit condition to give the dying declaration. The fact that the pulse was not palpable and blood pressure unrecordable and the patient was in a gasping condition would not necessarily show that the patients condition was such that no dying declaration could be recorded. We see no reason for rejecting the testimony of the doctor". In the case of Suresh v. State of Madhya Pradesh the Supreme Court in paras 7 and 8 has held as under :"7 We are unable to accept the contention. Dr. Bhargava had examined Lachhibai. According to her Lachhibai was in a fit state of health to make a declaration. Indeed her evidence is that when she recorded the dying declaration of Lachhibai she was capable of deposing and was in her senses. She further stated that when she was recording her dying declaration `she had started going into coma". "8 The learned First Additional Sessions Judge and the High Court have believed the evidence of Dr. Bhargava and have placed reliance upon the dying declaration in convicting the appellant. We do not find any reason not to believe the evidence of Dr. Bhargava. In the circumstances we are of the view that the Courts below were justified in convicting the appellant under Section 302 of IPC". Bhargava and have placed reliance upon the dying declaration in convicting the appellant. We do not find any reason not to believe the evidence of Dr. Bhargava. In the circumstances we are of the view that the Courts below were justified in convicting the appellant under Section 302 of IPC". In the case of Padmabehn Shamalbhai Patel the Supreme Court in para 10 has held as under :"10 Mr. Mehta then submitted that having regard to the fact that the victim had 90 per cent burns and her general condition was poor it would be hazardous to hold that her statements to the two medical men were true. He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk. We do not think there is any merit in this submission. In Suresh v. State of M. P. this Court was required to deal with a more or less similar situation. In that case the victim had sustained 100 per cent burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhargava had deposed that the victim was in a fit state of health. The evidence however disclosed that while Dr. Bhargava was recording her statement the victim had started going into a coma. Yet this court accepted the dying declaration made by the victim of Dr. Bhargava. Therefore the mere fact that she had suffered 90 per cent burns and her general condition was poor is not reason to discard the testimony of both the medical men when they say that she was in a fit state of mind and was able to make the dying declaration in question". ( 5 ) IN sum and substance it may be stated that right from the time Mariam came to be admitted to Irvin Hospital i. e. from 15-20 hours on 1-3-1991 when she came into contact with Dr. Shangtani thereafter with the Head Constable Lilavatibehn thereafter PSI Vyas and the regular dying declaration before the Executive Magistrate she has consistently and in unmistakable terms maintained that and it was her husband (appellant) who after pouring kerosene over her set her ablaze. Further the very brevity of the dying declaration Ex. Shangtani thereafter with the Head Constable Lilavatibehn thereafter PSI Vyas and the regular dying declaration before the Executive Magistrate she has consistently and in unmistakable terms maintained that and it was her husband (appellant) who after pouring kerosene over her set her ablaze. Further the very brevity of the dying declaration Ex. 25 produced on the record lends intrinsic and additional strength to the ring of truth to her say that her husband had set her at fire. Thus having carefully persued the record and having given our anxious consideration to the submission of Mr. Jhala we are fully satisfied that the oral as well as written dying declaration given by Mariam is quite voluntary truthful and genuine one leaving no trace of doubt whatsoever. When such is the situation it is indeed not possible for us to take any exception to the view taken by the Trial Court convicting the appellant for the alleged offence of murder of his wife Mariam under Section 302 of IPC and sentencing him to life. It may be stated that while hearing this Appeal we had called for R and P of the case which was extensively made use by the learned Advocate for the appellant as well as the learned APP. ( 6 ) IN the result there being no substance this appeal fails at the admission stage and is dismissed accordingly. (NVA) Appeal dismissed. .