JUDGMENT Tej Shanker, J. 1. Appellant Smt. Kashibai has preferred this appeal against the order of conviction and sentence dated 16.9.1986 passed against her by Shri N.P. Mehar, Sessions Judge, Vidisha, whereby he convicted and sentenced her to a term of five years under Section 304 (Part I) of the Indian Penal Code. 2. The prosecution story unfolded from the material on record, runs as follows: Deceased Smt. Loomabai was daughter-in-law of appellant Smt. Kashibai. She alongwith her husband lived with the appellant at Durganagar, Vidisha. Appellant's son Udhamsingh was said to be a thief. On the date of occurrence at about 7 or 8 a.m., Smt. Loomabai came out running from the house shouting for help. Shakoor Mohammed (PW 5), her neighbour, went to her rescue. Her clothes had caught fire. When an inquiry was made from her, she disclosed that her mother-in-law i.e. the accused had poured kerosene oil and set her on fire and escaped. Thereafter, other persons of the neighbourhood assembled and Smt. Loomabai narrated the same story to them as well. Shakoor Mohammad (PW 5) brought some clothes to cover her, as she had become naked. He took her to hospital on a cot alongwith others. He also went to the Police Station and lodged report Ex. P-6. Accused was also taken to the Police Station. On 23.11.81, PW 11 Randhir Singh, who was then Head-Constable had conducted initially investigation and had recorded statements of Man Singh, Shakoor Mohammad, Awadh Narain and Loomabai. Smt. Loomabai had 91% burn injuries. A report was made for recording her dying declaration and her dying declaration was recorded by T.R. Uke (PW 6), who was Naib Tehsildar and Executive Magistrate at that time. On the basis of the FIR (Ex. P 6), a case under Section 307 IPC was registered by D.R. Malviya (PW 10), the then Town Inspector. He proceeded to the spot and on the pointing out of Shakoor Mohammad prepared spot-map (Ex. P. 4). He recovered a Tin having about 1/8th kg. kerosene oil, one match-box Anand Chhap, and one burnt match-stick from inside the room. He also recovered pieces of burnt clothes of Loomabai and burnt pieces of skin before witnesses Man Singh and Shakoor Mohammad, vide Ex. P.-7. He was thereafter transferred and the investigation was taken over by M.L. Ahiriwar (PW 7). kerosene oil, one match-box Anand Chhap, and one burnt match-stick from inside the room. He also recovered pieces of burnt clothes of Loomabai and burnt pieces of skin before witnesses Man Singh and Shakoor Mohammad, vide Ex. P.-7. He was thereafter transferred and the investigation was taken over by M.L. Ahiriwar (PW 7). After the death of Smt. Loomabai, case was converted under Section 302 IPC and Shri Ahiriwar (PW 7) prepared Panchanama (Ex. P. 1) and handed over the dead body of Smt. Loomabai to Constable Gaya Prasad for post-mortem on 24.11.84. On the same day, he prepared seizure memo of two sealed packets brought by Constable Gaya Prasad from the hospital containing viscera and burnt hair of the deceased, vide Ex. P. 2. He also took into custody, a quilt brought by Smt. Loomabai's father and which was spread on the cot in the hospital from which smell of kerosene was coming, vide Ex. P. 5. He arrested accused on the same day at 8 p.m. and prepared Panchanama (Ex. P. 11). Mr. Anil Kumar Shukla (PW 9) conducted post-mortem of the dead body of the deceased Loomabai and found the following anti-mortem injuries on her person vide Ex. P. 13. (i) Superficial burnt over both legs over front of abdomen and chest over whole of the back and neck. Burn was approximately 91%. Scalp hair were also burnt partially. Rest of the organs were found to be healthy and normal. After completing' investigation, the accused and her daughter Jamnabai were charge-sheeted. Accused Jamnabai was however discharged by the Court and accused-appellant was tried under Section 302 IPC. 3. Accused denied the charge. She however admitted that Smt. Loomabai was her son Udham's wife and they lived together in the same house at Durga- nagar. Witness Shakoor Mohammad also resided in the same Mohalla. On the date of occurrence at about 7 or 8 a.m. flames of fire came out from her house, but she claimed that she was not at her house at that time but was in the house of Awadh. The fact that persons of the neighbourhood had assembled too was admitted by her. She claimed that the Sari was given to Chandra Deep Master by her and in that Sari Loomabai was taken to Hospital. She was arrested the same day when she was taken from the hospital to. The fact that persons of the neighbourhood had assembled too was admitted by her. She claimed that the Sari was given to Chandra Deep Master by her and in that Sari Loomabai was taken to Hospital. She was arrested the same day when she was taken from the hospital to. lodge the report in the Police Station. About 4 or 5 years back, her son Malkhan Singh was got involved in a case by Shakoor and hence she was not on talking terms with him. She was falsely implicated. 4. Prosecution examined Man Singh (PW 3), Shakoor Mohammad'(PW 5) as witnesses of fact. PW 1 Kalyan Singh is the witness of Panchanama. Chholelal (PW 2) is the witness with respect to recover of Barni etc. Barelal (PW 4) is witness of recovery of quilt. T.R. Uke was Naib Tehsildar and Executive Magistrate at that time and he recorded the dying declaration of the deceased. M.L. Ahiriwar (PW 7), PW 11 Randhir Singh and D.R. Malviya (PW 10), conducted investigation, whereas Dr. S.G.S. Khare (PW 8) had medically examined Smt. Loomabai when she was admitted in the hospital, and before him dying declaration was recorded. Dr. A.K. Shukla (PW 9) conducted post-mortem. Besides this, prosecution also relied on documents Ex. P. 1 to Ex. P. 13 in support of its case. 5. The accused also entered upon her defence and examined Dr. S.C. Lahari (DW 1), Dr. M.S. Rajpoot (D.W. 2), Chandra Deep (DW 3) and Arun Khemariya (DW 5). 6. The learned Trial Court after considering the entire evidence on record and hearing the parties, accepted the prosecution story and convicted and sentenced the accused-appellant under Section 304 (Part I) IPC as aforesaid. 7. Learned Counsel for the appellant contended that there is no direct evidence in the case and the prosecution has relied upon dying declaration, which is not trustworthy, Shakoor Mohammad (PW 5) is inimical to the accused-appellant. Learned Counsel contended that the appellant is a lady of about 70 years and is a patient. The occurrence took place in 1981. She was in jail from 16.9.86 to 18.10.86. Looking to the facts and circumstances it will not be desirable in the interest of justice to send her to jail again after such a long period. He therefore urged that the sentence be reduced to the period already undergone. The occurrence took place in 1981. She was in jail from 16.9.86 to 18.10.86. Looking to the facts and circumstances it will not be desirable in the interest of justice to send her to jail again after such a long period. He therefore urged that the sentence be reduced to the period already undergone. Learned Counsel for the State, on the other hand intended that there is no infirmity in the dying declaration, which is an important piece of evidence. Once it is found that it is reliable and trustworthy, it does not require any corroboration. The accused burnt her own daughter-in-law by pouring kerosene oil and she does not deserve any leniency. 8. I may mention in the very beginning the special features ofthecase. It has not been denied that the deceased received burn injuries and at the time of incident, when flames of fire came out, the persons of the neighbourhood had assembled. It is also not denied that the accused lived with the deceased. There is, however, no direct evidence in the case and the entire case rests upon the dying declaration of the deceased. First dying declaration is the statement given by the deceased to the witnesses. Second dying declaration was made before the Naib Tehsildar vide Ex. P. 11. 9. Before realising the value of the dying declaration in question, it is necessary to mention law relating to dying declaration. Under Section 32(1) of the Evidence Act, dying declarations are relevant. Dying declaration is a statement given by the person as to the cause of his death or as to any of the circumstances of the transactions which resulted in his death. It cannot be doubted that it is not a deposition made in Court nor made on oath in the presence of the accused. It is also not tested by cross-examination. It has, however, great evidentiary value provided it is proved to be genuine and not as a result of promoting. Dying declaration may be oral or reduced into writing by a Magistrate or any other person but in either case it must be proved. The law is settled that once it is proved convincingly that the dying declaration is made by a dying person, it has to be given due weight. Conviction can be based upon such a dying declaration. It does not require any further corroboration. The law is settled that once it is proved convincingly that the dying declaration is made by a dying person, it has to be given due weight. Conviction can be based upon such a dying declaration. It does not require any further corroboration. Dying declaration properly recorded by a Magistrate is evidence within the meaning of Section 3 of the Evidence Act and has to be admitted in evidence under Section 80 of the Act without any further proof. 10. In the aforesaid background of the legal position, we have to find out from the material on record, as to whether there is a dying declaration worth reliance in the case in hand. The first dying declaration claimed by the prosecution to have been made was allegedly made to Shakoor Mohammad (PW 5) and to other persons present at the time of occurrence. Shakoor Mohammad (PW 5) is a very important witness. He has stated that the accused resided behind his house. On 23.11.81, he was standing on the backside of his house. He saw that flames of fire came up from the house of accused Kashibai. Daughter-in-law of the accused came running and was crying "Bachao-Bachao". She thereafter fell down in the Bagad, where there was pump in creaper. He rushed and went in the Bagad. He extinguished the fire. On his inquiry, Loomabai told him that her mother-in-law sprinkled kerosene oil, put her on fire and ran way. At that time, Man Singh, Chandra Deep, A wadhnarain Master, Chhotelal and ladies of the neighbourhood also reached there. Awadhnarayan witness died. When they made inquiry, Loomabai also told them similarly. Nothing material could be extracted from his statement. He is admittedly neighbour of the accused. The enmity alleged by the accused in her statement against him is that about 4 or 6 years back he got her son involved in a case. It can hardly be said to be sufficient to falsely implicate her, because" several persons had assembled at the time of occurrence and the lady Loomabai died of burning. 11. Man Singh (PW 3) has also been examined by the prosecution. He has stated one thing, which is important. He deposed that Loomabai lived with her husband Udham Singh and the accused. There had been occasionally quarrels in the family between Loomabai, Udham Singh, Loomabai's mother-in-law Nanad and Dewar. 11. Man Singh (PW 3) has also been examined by the prosecution. He has stated one thing, which is important. He deposed that Loomabai lived with her husband Udham Singh and the accused. There had been occasionally quarrels in the family between Loomabai, Udham Singh, Loomabai's mother-in-law Nanad and Dewar. He also stated that he heard the noise that Loomabai had herself put her to fire. He then went to the house of the accused. The doors were closed from inside Efforts were made to get it opened by him. It could not be opened. He then went from behind. He saw that Loomabai was lying burnt. He did not hear Loomabai speaking as she was not in a position to speak. He has been declared hostile by the prosecution. His statement that Loomabai was not in a position to speak is falsified from the fact that Loomabai has also given a statement before the Magistrate and in presence of a Doctor, as shall be seen hereinafter. Thus, the fact that Loomabai was not in a position to speak cannot be accepted. In this view of the matter, there is reliable testimony of Shakoor Mohammad, who has specifically stated that the deceased had told him that her Sans (mother-in-law) sprinkled kerosene oil and put her to fire. He has also stated, as stated above that she had also told this fact to all the persons assembled there. There is no reason to discredit his statement. 12. Apart from the statement of Shakoor Mohammad (PW 5), there is written dying declaration (Ex. P. 11) on record, which corroborates the statement of Shakoor Mohammad. This dying declaration was recorded by T.R. Uke. (PW 6) in presence of Dr. S.G.S. Khare (PW 8). A perusal of the statement of Shri Uke and Dr. S.G.S. there goes to show that at the time when the dying declaration was recorded, lady was in sound state of mind to give the statement. Dr. S.G.S. Khare stated that on 23.11.91, Loomabai went to the hospital with extensive bums on her body. The burns were 80%. He informed S.O. Kotwali Vidisha to take necessary steps for recording her dying declaration. This report is Ex. P-12 on record. At 9.45 a.m. on the same day, Executive Magistrate visited hospital for recording the dying declaration. Dr. S.G.S. Khare stated that on 23.11.91, Loomabai went to the hospital with extensive bums on her body. The burns were 80%. He informed S.O. Kotwali Vidisha to take necessary steps for recording her dying declaration. This report is Ex. P-12 on record. At 9.45 a.m. on the same day, Executive Magistrate visited hospital for recording the dying declaration. He examined the patient and gave a certificate that Loomabai was in a fit state to give statement and her dying declaration was recorded. He examined the patient again and found that she was fully conscious even after giving her statement. Shri Uke (PW 6) also stated that he obtained a certificate from the Doctor on that date that Loomabai was in a fit state to give statement. Dr. Khare had examined her and had given the certificate. He also stated that at the time when the statement was recorded there no outsider person present. If we pursue Ex. P. 8, we find that there is mention that at the time of recording of the statement no other person or employee was present. At that time no relation was also present. Dying declaration (Ex. P. 8) specifically shows that it has been written in question and answer form and the lady specifically stated that her mother-in-law had sprinkled kerosene oil on her and put her on fire. She also gave the name of her mother-in-law as Kashi. At that time her mother-in-law and sister-in-law are present in the house. As the doors had been closed, she could not escape. Later on with difficulty she could open the doors and ran away. Then Mohalla people had assembled. She was brought to the hospital by Mohalla people. Thus this statement of the lady Loomabai is very clear and specific. There does not appear any infirmity in this statement. It was recorded by a Competent Magistrate in proper manner in question-answer form in the words of the maker of the dying declaration and is free from all infirmities. It also corroborates the statement made by Shakoor Mohammad, as shown above. The occurrence took place on 23.11.81 and the statement was recorded at 9.45 a.m. on the same day. Thus it is a prompt statement. Primary duty of the Court is to find out as to whether the dying declaration is true. It also corroborates the statement made by Shakoor Mohammad, as shown above. The occurrence took place on 23.11.81 and the statement was recorded at 9.45 a.m. on the same day. Thus it is a prompt statement. Primary duty of the Court is to find out as to whether the dying declaration is true. As said earlier, this dying declaration is free from all infirmities and there is nothing on record to show that it is untrue. Once it is found that the dying declaration is true, there is no question of corroboration. Under the law, corroboration is required in those cases where there are circumstances which go to show that the dying declaration is not clear or convincing. In the present case, dying declaration is perfectly correct and does not smell of any infirmity. There is, therefore, no justification in not relying upon this dying declaration. The learned Trial Court has also accepted this dying declaration correctly. 13. It is, therefore, established that it was the accused who put kerosene oil and burnt the lady Loomabai. The learned Trial Court appears to have taken lenient view by convicting the accused-appellant under Section 304 (Part I) IPC instead of Section 302. The State has not preferred any appeal and as such it does not appear desirable to reopen that question. I, therefore, confirm the conviction of the appellant passed by the learned Trial Court. 14. So far as the question of sentence is concerned, it is one of those cases in which the Court must take serious view of the matter. Bride burning has now become common affair and the Apex Court has also shown serious concern in such matters. As said earlier the learned Trial Court has taken a lenient view in not convicting the accused-appellant under Section 302 IPC and has convicted only under Section 304 (Part I) IPC. I, therefore, find no justification in reducing the sentence to period already undergone and the ground that the accused- appellant is a lady and has now become old. Consequently, I repel the contention of the learned Counsel for the appellant that accused be sentenced to period already undergone. The order of conviction and sentence passed by the learned Trial Court deserves to be confirmed. 15. In the result, the appeal is dismissed. Conviction and sentence of the appellant is confirmed. The accused-appellant is on bail. Consequently, I repel the contention of the learned Counsel for the appellant that accused be sentenced to period already undergone. The order of conviction and sentence passed by the learned Trial Court deserves to be confirmed. 15. In the result, the appeal is dismissed. Conviction and sentence of the appellant is confirmed. The accused-appellant is on bail. She should surrender to custody for serving out the remaining sentence.