Devinder Gupta ( 1 ) THIS is an appeal arising out of the judgment ofconviction and sentence passed by Shri J. D. Kapur, Additional District Judge on22. 10. 1988 convicting the appellant-accused for an offence under Section 302 of theindian Penal Code (for short the Code) and sentencing him to undergo lifeimprisonment and to pay a fine of Rs. 1,000. 00 and in default 6 months R. I. ( 2 ) THE appellant-accused was charged for having committed murder of hiswife Smt. Veena on 26. 1. 1985 by sprinkling kerosene oil on her and then setting heron fire. ( 3 ) THE judgment of conviction is based upon three dying declarationsalleged to have been made by Smt. Veena-the first given to Dr. P. S. Bhandari, PW8, which has been recorded by him in the Medico-Legal Certificate, Ext. Public Witness 8/a;the second is. the statement, Ext. Public Witness I/b, made to S. I. Ajit Singh, Public Witness 21, on thebasis of which FIR for an offence under Section 307 of the Code was registered;and the third is Public Witness 18/c the statement recorded by Public Witness 18, Shri M. K. Gupta,metorpolitan Magistrate. All the statements are of the same date, namely,26. 1. 1985. ( 4 ) THE case of the prosecution is that on the fateful day, the appellant-accusedcame home drunk and started quarrelling with his wife Veena. There was somealtercation and thereafter the accused is said to have poured kerosene oil on herand lit fire to her clothes. Public Witness 5 Kishore Lal took her to the hospital in a Rickshawwhere Public Witness 8 Dr. P. S. Bhandari attended upon her and recorded Medico-Legalreport, Ext. PW 8/a. On examination he found deep burns over the whole bodyexcept some part of chest and small area in the lower abdomen. According to himgeneral condition was very critical but the patient was conscious oriented,responding to oral commands. The incident is stated to be of about 4. 30 to 5. 00p. m. She was examined in the hospital at about 7. 10 p. m. on her arrival there. ( 5 ) AT about 5. 53 p. m. on 26th Jan. , 1985 the basis of information received vided. D. 15, Ext. The incident is stated to be of about 4. 30 to 5. 00p. m. She was examined in the hospital at about 7. 10 p. m. on her arrival there. ( 5 ) AT about 5. 53 p. m. on 26th Jan. , 1985 the basis of information received vided. D. 15, Ext. PW 17/a, that one woman has been burnt in C-17, Janta Jeevancamp, Tigri near Madangir, HC Vikram Singh and Prakash Chand, constableswere sent to the place of occurrence who on their way met PW 21 SI Ajit Singh. Onreaching spot they found that Veena had been shifted to the hospital. They thenproceeded towards the hospital. After getting certified from the Doctor thatveena was fit, f making statement, her statement, PW I/a, was recorded andon that basis of Ruqa was sent for registration of FIR for an offence undersection307 of the Code. The Inspector thereafter again came to the spot. Aftercompleting some formalities he approached the Metropolitan Magistrate withaprayer to record the statement of Veena. The Metropolitan Magistrate recordedher statement at about 10. 05 p. m. Veena succumbed to her injuries on 29. 1. 1985. Thereafter the FIR was converted for an offence under Section 302 of the Code. The petitioner was arrested on 13. 2. 1985 and was tried for the aforementionedoffence. ( 6 ) LEARNED Counsel for the appellant has vehemently contended that noneof the statements which have been recorded by Dr. P. S. Bhandari, S. I. Ajit Singh andthe Metropolitan Magistrate can besaid to be voluntary in nature and on theseconviction order cannot besustained. He also contended that the defence set upby the accused was cogent and plausible to which due weight has not been given. It has come in the evidence that Veena was suffering from Tuberculosis and hadon so many occasions expressed her anguish over the ailment and wanted to finishher life. In order to get rid of the ailment she appears to have committed suicideand the appellant was wrongly implicated. It is contended that this version of theaccused is duly supported by the prosecution witnesses. ( 7 ) WE have given our conisderable thoughts to the submissions made at thebar but are not persuaded to accept the same. ( 8 ) THE time of occurrence is, as noticed above about 5. 00 p. m. , as is recordedin Ext. It is contended that this version of theaccused is duly supported by the prosecution witnesses. ( 7 ) WE have given our conisderable thoughts to the submissions made at thebar but are not persuaded to accept the same. ( 8 ) THE time of occurrence is, as noticed above about 5. 00 p. m. , as is recordedin Ext. PW 8/a and as it finds place in the statement of PW 5 Kishore Lal, whotaok Veena to the hospital. Information was also received by the concerned Policestation through P. C. R. and D. D. 15 was recorded at 5. 53 p. m. about the incident. She was medically examined at 7. 10 p. m. by PW 8 Dr. P. S. Bhandari who recordedin Medico-Legal Report the history of the patient as follows:- "as stated by the patient, her husband came back to his house in the eveningin a drunken state and poured kerosene oil over her. After that he lit herclothes, her clothes caught fire and she got the burn injuries. "as regards consciousness, the Dr. recorded "patient oriented responding to oralcommands general condition is critical. ( 9 ) MEDICO-LEGAL report was duly proved by Dr. P. S. Bhandari, PW 8, in hisstatement by staring that the patient had narrated the version which was recordedby him in the Certificate. According to him, thetonguewasdehydrated,pulsewas162 per minutes, feeble. Cardiovascular system showed tachy cardia and lungswere clear but the patient was responding to oral commands. ( 10 ) AFTER receipt of information from the Police Station on the basis of D. D. 15, Ajit Singh reached hospital at about 7. 15 p. m. and remained there till 8. 20 p. m. He moved application Ext. PW 21/a seeking permission to record the statementof the patient upon which Dr. Bhandari gave his certificate that the patient was fitfor making statement. Statement PW I/a was then recorded by S. I. Ajit Singh inwhich Veena stated that: "today evening my husband came drunk and he started beating me. Hethen took the container of Kerosene oil and poured Kerosene oil on me. Heset me on fire by lighting a match-stick and fled away. Hence I was burnt. " ( 11 ) ACCORDING to PW 8 when he gave certificate to S. I. Ajit Singh, he hadexamined the patient and found her to be fit for making statement. Hethen took the container of Kerosene oil and poured Kerosene oil on me. Heset me on fire by lighting a match-stick and fled away. Hence I was burnt. " ( 11 ) ACCORDING to PW 8 when he gave certificate to S. I. Ajit Singh, he hadexamined the patient and found her to be fit for making statement. Even accordingto PW 21 Veena voluntarily made the statement by narrating the incident to him. He also read over and explained the statement to her and then she put her thumbimpression. PW 21 further states that he approached the Metropolitan Magistratewith a written application, Ext. PW 18/a, praying for recording the statement ofveena. ( 12 ) SHRI M. K. Gupta, PW 18, stated that on. receipt of the application hemade an endorsement on the same and proceeded to the hospital for recordingher statement. Veena was found admitted in general ward. There was a curtainpartition. She was identified by S. I. Ajit Singh and after ensuring that nobodyincluding the police was nearabout, he satisfied himself that she was in a fit stateto make statement. Dr. Guru Prasad had also recorded Certificate Ext. PW 19/aat 10. 05 p. m. that the patientwas fit for making statement. Veena was thereafterquestioned and her statement was recorded in question and answer form. Aspecific question was put to her as to whether she was making statementvoluntarily to which she responded in the affirmative. ( 13 ) IN her statement, PW 18/c, Veena has narrated almost the same versionas that which was been reproduced above except with some more details as to themanner in which incident had taken place and the same may be reproducedhereunder:- "today evening, I do not know the time, when I was preparing potato dishin my Jhuggi my husband came there drunk after having picked a quarrelwith some one and asked me as to what I was preparing while calling meharamzadi (An abuse ). I replied that I was preparing pota to dish. Both of mysons aged 6 years and 4 years respectively were with me at my house. Aftera short while abusing me as Haramzadi as they were my paramours (actualwords being Yaar ). I did not say any thing. Thereafter my husband pouredkerosene oil from the Can on me and set me on fire and fled away. I criedand one of my neighbours removed me to hospital in rikshaw and scooter. Aftera short while abusing me as Haramzadi as they were my paramours (actualwords being Yaar ). I did not say any thing. Thereafter my husband pouredkerosene oil from the Can on me and set me on fire and fled away. I criedand one of my neighbours removed me to hospital in rikshaw and scooter. My husband used to pick quarrels with me. He had quarrelled with me alot even on the day of Sakrant. " ( 14 ) AS regards the certificate of fitness at the time when Ext. PW 18 recordedthe statement of Veena, the same has been proved in the statement of PW 19 Pyarelal, since Dr. Guru Prasad at this stage was not available and his whereaboutswere also not known. ( 15 ) LOOKING at the three statements what can be noticed is that there isabsolutely no change in the version of Veena. She is assertive of two facts thather husband had, after giving beating, poured kerosene oil on her and set heron fire by lighting a match stick and thereafter fled away. ( 16 ) PRESENCE of accused appellant on the spot is proved in the statement ofkishore Lal, PW 5, who admittedly took Veena to hospital. According to thiswitness accused was sitting with him. Thus, so far as presence of the accused onthe spot is concerned, the same stands established. At this stage, conduct of theappellant also deserves to be noticed. Despite the fact that he was present on thespot, no effort was made by him either to extinguish the fire or to take care of hiswife or to accompany Kishore Lal to the hospital. He in fact in his statement hastaken up a stand that he was not present on the site but was away. His versionis that he had all love and affection for his wife who was suffering from T. B. andused to say that she would finish her life since she was desparate from her life. Shewas got treated in the hospital and treatment was also given in the Safdarjanghospital. In view of this version of the accused, his conduct becomes all the morerelevant. In case he had so much liking for his wife there is no reason for him notto have taken care of his wife who was in a critical condition. ( 17 ) DR. In view of this version of the accused, his conduct becomes all the morerelevant. In case he had so much liking for his wife there is no reason for him notto have taken care of his wife who was in a critical condition. ( 17 ) DR. P. S. Bhandari, PW 8, stated that when Veena was brought to hospitalhe had made the hospital staff to remove her clothes and from clothes he hadnoticed smell of kerosene oil. ( 18 ) THE contention that the statement of Veena is not voluntary and is amanipulated one, cannot be accepted. There is no reason why the Doctor whileexamining the patient and asking cause for the injuries would be telling lie whenhe at the first available opportunity happened to enquire from the patient himselfthe cause of burn injuries. There is no reason to disbelieve the version of PW 18shri M. K. Gupta, Metorpolitan Magistrate when he recorded the statement ofveena. There is no material difference in the two versions - one recorded by thedoctor and the other by the Metropolitan Magistrate. Statement of Veena recordedby S. I. Ajit Singh is also same. PW 18 categorically denied the suggestion madeto him that before he recorded the statement he had already come to the know ofthe statement recorded by the Investigation Officer. Statements of Veena, asreproduced above, in the facts and circumstances has rightly been held to benatural and voluntary and without any pressure. ( 19 ) THE defence set up by the accused is nothing but an after thought thatveena was suffering from T. B. or that she herself wanted to finish her life but thiswill not be in consonance with the circumstances of the case. Kishore Lal who hadtaken Veena in a rickshaw to the hospital was declared hostile. Moreover, thereis apparent contradiction in his statement and that of PW 3 Rattan Lal, who alsostates that he was present on the spot when he noticed found Veena coming out ofjhuggi in a burnt condition. According to him, the accused was not present on thespot. PW 2 Sham Lal is another witness who saw Veena coming out of Jhuggi inflames and testified that the accused was present on the spot and helped oilierpersons in extinguishing the fire. In view of this contradictory version of threewitnesses, the fact that Veena herself tried to finish her life cannot be accepted. PW 2 Sham Lal is another witness who saw Veena coming out of Jhuggi inflames and testified that the accused was present on the spot and helped oilierpersons in extinguishing the fire. In view of this contradictory version of threewitnesses, the fact that Veena herself tried to finish her life cannot be accepted. May be that Veena was suffering from T. B. but that is no reason to discard thestatement made by her in a situation like this when she was about to die having90% burn injuries. Conviction can be based solely on dying declaration providedit is voluntary. Dying declarations made by Veena in this case is most naturaland voluntary and there is no ground to discard the same more especially inview of the statements recorded by the Doctor and the Metropolitan Magistrate. Cogent reasons have been assigned by the Additional Sessions Judge in havingconvicted the appellant and no interference is called for in this appeal.