JUDGMENT 1. - The appellant was the accused in Sessions case No. 124 of 1989 on the file of the Sessions Judge, Ajmer. He was found guilty under Section 302 IPC, convicted thereunder and sentenced to imprisonment for life. 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. Brief facts are : (i) On 3rd March, 1989 at 11.30 a.m. one Samanddin went to police station passenger and informed that his daughter Abida has been burnt by her husband Shabbir at 10.00 or 11.00 in the night. No treatment was given to her and she was kept at Govindgarh by her husband and the family members. (ii) On receipt of the aforesaid information, the Head Constable Mr. Shravan Singh proceeded to Govindgarh. On the way he met Mahaveer Singh and Constables Ram Gopal and Maniram who were taking Smt. Abida in a burnt condition to the hospital. (iii) Parcha Bayan of Smt. Abida was recorded by Head Constable Shrwan Singh in the presence of Smt. Vinita Srivastava,. Block Development Officer and Dr. K.L. Jain and a case under Section 307 and 201 IPC was registered. (iv) Dr. K.L. Jain of Primary Health Centre, Peessangan examined Smt. Abida and found multiple burns on her person, most of the burns were of II degree. Blisters were also present on hands. Base of the ruptured blisters was of reddish colour Inflammatory reaction was not so marked. It was not toxic, on 16.3.1989, Judicial Magistrate Sushma Dangi also recorded the statement of Smt. Abida. Smt. Abida succumbed to the burn-injuries on 20th March, 1989 at 2.10 a.m. and post-mortem of dead body was conducted. (v) After her death the case was altered to one Under section 302 IPC. A charge-sheet was submitted by Police Station Peesangam against as many as seven persons in the court of Munsif and Judicial Magistrate, Nasirabad. All the seven accused were committed to the court of sessions. (vi) Charges for offence Under section 302 read with Section 120-B IPC were read over to Shabbir Mohd. while charges for offences Under section 302 read with Section 114 of 120-B IPC were read over to Kalu, Anwar, Iqbal, Mawab Ali, Smt. Jannat and Smt. Moor Jahan. At trial the prosecution examined 11 witnesses in support of its case and the accused none. while charges for offences Under section 302 read with Section 114 of 120-B IPC were read over to Kalu, Anwar, Iqbal, Mawab Ali, Smt. Jannat and Smt. Moor Jahan. At trial the prosecution examined 11 witnesses in support of its case and the accused none. The learned trial court relying on dying declaration convicted and sentenced the accused appellant as indicated above. 4. A look at the record of the trial court reveals that three sets of evidence were available to the prosecution. The first set was the medical evidence of Dr. K.L. Jain and post-mortem report (Ex.R 10 admitted by the counsel of the appellant on 18.7.90 Under section 294 Cr.PC). The second set was the evidence of Noor Mohd. (PW 1), Khursheed (PW 2), Farookh (PW 3), Anwar (PW 4) , Mahaveer Singh (PW 6) and Ram Gopal (PW 9) and third set was the evidence of two declarations, One was recorded on 3.3.1989 at 2.00 p.m. (Ex.P 9) by H.C. Shran Singh in the presence of Dr. K.L. Jain and B.D.O. Smt. Vinita Srivastava and another on 16.3.89 at 5.45 p.m. recorded by Smt. Sushma Dangi Judicial Magistrate No. 4, Ajmer. 5. So far as first set of evidence is concerned, Smt. Abida died on account of septicaemic shock due to ante- mortem burns. Sh. O.S. Lakhawant, Learned counsel for the appellant admitted the post-mortem report (Ex.P 10) under the provisions of Section 294 Cr.PC. The Division Bench (consisting of V.S. Dave & F. Hasan JJ.) of this court referred following question to Larger Bench. 'Can an injury report filed by the prosecution which has been admitted to be genuine by the accused be read as a substantive evidence Under section 294(3) of the Code of Criminal Procedure ?' Full Bench of this court (consisting of N.C. Kochar J, M.P Singh J. and PK. 'Can an injury report filed by the prosecution which has been admitted to be genuine by the accused be read as a substantive evidence Under section 294(3) of the Code of Criminal Procedure ?' Full Bench of this court (consisting of N.C. Kochar J, M.P Singh J. and PK. Tewari J.) vide order dated 5.9.95 answered the reference as under `for the reasons mentioned above, we hold that if the genuineness of any document produced by the prosecution or the accused is admitted by the opposite party, when called upon to do so under sub-section (1) of section 294 of the Code, in view of sub-section (3) of section 294 of the Code, it can be read by the court as a substantive piece of evidence for deciding the issue pending before it with its probative value being the same as it would have had if it had been proved by the party concerned on its genuineness having been disputed by the opposite party when called upon to do so under sub-section (1) of section 294 of the Code. The reference is answered accordingly. 6. With regard to second set of evidence it may be observed that the learned trial court after a careful analysis of all the facts and circumstances as disclosed by the evidence adduced in the case, came to the conclusion that the testimony of Noor Mohd. (PW 1), Khursheed (PW 2), Farookh (PW 3), Anwar (PW 4), Mahaveer Singh (PW 6) and Ram Gopal (PW 9) who were examined by the prosecution to prove the occurrence could not be safely accepted and acted upon as true. The trial Judge set out in his judgment detailed and cogent grounds for arriving at the said conclusion. According to him witnesses Nor Mohd. (PW 1), Khursheed (PW 2) and Farookh (PW 3) were declared hostile by the prosecution and they did not say anything against the accused. Anwar (PW 4) brother in law of Smt. Abida, was dis-believed on the ground that he was not in a position to see the incident from his roof. Statements of Mahaveer Singh (PW 6) and Ram Gopal (PW 9) were self contradictory and they were also not believed by the trial Judge. 7. Now remains the third set, the evidence of two dying declaration. Statements of Mahaveer Singh (PW 6) and Ram Gopal (PW 9) were self contradictory and they were also not believed by the trial Judge. 7. Now remains the third set, the evidence of two dying declaration. In the first dying declaration (Ex.P 9) recorded on 3.3.1989 at 2.10 p.m. Smt. Abida State as under:- "Meri Maa Ka Naam Jaitoon Aur Pita Ka Naam Samanddin Hai. Mera Peehar Govindgarh Mein Hai Aur Aaj Se 6-7 Saal Pahle Mere Maata Pita Ne Meri Shadi Shabbir Mohd., Putra Kalu Ji Musalmaan Govindgarh Wale Ke Saath Ki Thi Mere Ek Ladki Aur Do Ladke Huyen Jinme Bachchi Mar Gai Kewal Do Bachche Jinde Hai. Aj Ke Ek Saal Pahle Parivaar Niyojan Camp Main Maine Apna Operation Apni Marji Se Karaya Tha Us Samay To . Mera Pati Mere Se Khush Tha Operation Karake Ghar Aayi Ajmer Se Usi Din Se Mera Pati Mere Se Naraaj Ho Gaya. Us Din Bhi Mere Ko Peetne Lag Gaya Aur Woh Mere Se Ladne lg Gaya Tab Bhi Main Sasural Main He Rahti Hun. Operation Karane Ke 10 Din Baad Mere Pati Ne Mujhe Ghar Se Nikaal Diya Tha Tab Main Pihar Walo Ke Paas Chali Gai Thi Tab Main 12 Mahine Pihar Mein He Rahi Thi Aaj Ke 14 Din Pahle Mera Pati Shabbir Mujen Sasural Le Aaya. In 14 Dino Me Shabbir Mere Se Naaraj Hi Rahata Tha Aur Kahata Tha Kl Tune Operation Kyo Karaya Hai Kal Din Ke 10-11 Baje Mere Jeth Anwar Ke Ghar Thi Tab Mere Pati Ne Mere Saath Maar Peet Ki Aur Main Apne Ghar Wapis Aa Gay). Raat Ke 10-11 Baje Main Kamre Mein So Gai Jaha Per Meri Saas, Sasur Aur Dewar Nawab Bhi Soya Hua Tha. Mera Pati Doosre Kamre Mein So Raha Tha Jo Ki 14 Dino Se Usi Kamre Mein Hi Sota Tha, Maine Socha Ki Peshab Kar Ke So Lei Main Peshab Karne Gai Aur Kar Ke Wapis Ghus Rahi Thi Tab Darwage Ke Paas Hi Mera Pati Shabbir Ek Dam Kamre Se Nikalkar Aaya Aur Mujhe Pakadkar Jalti Hui Chimny Mere Uper Daal Di Chimny Jali Hui Laya Tha Chimny Lekar Ghaslet Chimny Ka Hi Dalkar Mere Par Dalkar Mujhe Jala Diya. Mai Chillai Tab Mere Saas, Sasur And Dewar Bhi Bahar Aaye Aur Dewar Nawab Ne Paani Ka Matka Mere Uper Daal Diya, Mai Chillai Tab Noor Mohammad Master Aur Farookh Master Aur Khurshid Master Aaye Tatha Baad Main Pdosi Bhi Aa Gaye The. Aaye Hue Logo Ko Saas, Sasur Aur Dewar Keh Rahe The Kl Yeh To Aapne Aap Hi Jal Gai. Mea Pati Mere Jeth Ke Ghar Bhaag Gaya Phir Mere Ko Mere Saas Sasur Aur Dewar. Ne Ghar Hi Sula Diya. Maine Unse Kaha Tha Kl Mere Ko Saphakhana Le Chalo Per Wo Nahi Le Gaye Mere Pihar Wale Bhai, Maa, Baap Sab Aa Gaye The Per Unko Bhi In Logo Ne Bhaga Diya Aur Mere Ko Saphakhane Bhi Nahi Le Gaye Aur Aur Waise Hi Ghar Per Patke Rakha Tha. Aaj Abhi Police Ghar Per Aayi Tab Police Hi Mujhe Ghar Se Nikarkar Ilaaz Ke Liye Yaha Saphakhana Pessangan Per Lekar Aayi Hai. Mere Ko Mere Pati Ne Jaan Se Maarne Ke Liye Jalaya Hai. Mere Ko Mera Dewar Iqbal Aur Jeth Anwar Bai Gaaliya Dete The Aur Mere Pati Ko Yeh Kahate The Kl Isko Ghar Me Mat Rakh Mere Saas, Sasur Mere Ko Kuch Nahi Kahate The Aur Na Hi Ye Mere Se Ladte The. Main Mere Saas Sasur Ke Khilaf To Kuch Nahi Kahana Chahati Hu Per Mere Pati, Dewr, Jeth Se Main Pareshan Thi. Mere Saas, Sasur Ne Mere Ko Jal Jaane Ke Baad Safakhane Me Bharti Nahi Karaye Hai Jo Unki Galti Nahi Hai. Mera Pura Sharir Jagah-Jagah Se Hi Jal Gaya Hai." [The name of my mother is jaitoon and my father's is Samanddin. My maternal house is at Govindgarh. About six or seven years back I was married to Shabbir Mohd. S/o Kalu Businessman of Govindgarh. Out of our wedlock one daughter and two sons were born, at present only two sons are alive. I was operated upon a year back, in a family planning camp of my own will. At that time my husband was happy with me but when after operation I came back from Ajmer, my husband had shown anger from the first day. He used to beat me and quarrel with me but I used to live with him in my in laws house. At that time my husband was happy with me but when after operation I came back from Ajmer, my husband had shown anger from the first day. He used to beat me and quarrel with me but I used to live with him in my in laws house. Ten days after I got operated, my husband ousted me from his house and I lived with my parents in their house for a period of about twelve months. My husband Shabbir took me to my in laws house again as many 14 days back from today. During these 14 days Shabbir has shown his anger by saying as to why I opted for operation. Yesterday at about 10.11 a.m. when I happened to be in the house of Anwar (elder brother of Shabbir) I was beaten by my husband and I came back to my house. At about 10.11 in the night I slept in the room where my mother-in-law, father-in-law and brother-in-law Nawab, were sleeping. My husband was sleeping in another room where he used to sleep in the last 14 days. I decided to go to toilet before sleep. When I was returning after easing myself and was in the process of entering the room, I found my husband Shabbir suddenly coming out of the room. He was having an ignited Kerosene Chimney. He pushed chimney upon me and poured Kerosine oil and burnt me. After hearing my cries, my father in-law, mother-in-law and brother-in-law Nawab came out. Nawab emitted `Matka' of water upon me. Noor Mohd. Farookh Master and Khursheed and neighbours also rushed there. My father-in-law, mother-in-law and brother-in-law were saying that I myself had got burnt. My husband ran out to the house of his elder brother. Thereafter my father-in-law and brother-in-law made me sleep in their house. I requested them for admitting me in the hospital but they declined. My mother, father and brother all from my maternal house came over there but they were asked to go back. I was not taken to the hospital. By the police intervention I am being taken to the hospital for my treatment. My husband burnt me as he wanted to kill me. My brother-in-laws Iqbal (Devar) and Anwar (Jeth) also used to abuse me and pursuaded my husband to oust me from the house. I was not taken to the hospital. By the police intervention I am being taken to the hospital for my treatment. My husband burnt me as he wanted to kill me. My brother-in-laws Iqbal (Devar) and Anwar (Jeth) also used to abuse me and pursuaded my husband to oust me from the house. My father-in-law and mother-in-law, neither said anything to me nor, had quarrelled with me. I do not want to depose anything against my father-in-law and mother in law, but I was harassed by my husband, Devar and Jeth. My father-in-law and mother-in-law though committed a mistake in not admitting me in the hospital. My whole body has been burnt from several places). 7. In the second dying declaration (Ex.P. 14) recorded on 16.3.89 at 5.45 p.m. by Smt. Sushma Dangi, Judicial Magistrate No. 4, Ajmer, Smt. Abida stated as under "Main Apne Pati Aur Teen Chachiyon Ke Saath Parivaar Niyojan Ka Operation Karane Gayi Thi. Operation Karane Ke Baad Mere Pati Ne Kaha Kl Rs. 2700 Lekar Aa Nahi To Tujhen Ghar Par Nahi Rakhoonga. Maine Kaha K Sarkaar Ne Diye Nahi To Kaha Se Laaon Is Aat Per Roj Maar Pet Karta Rahta Tha. Is Kaaran Se Hi Main Kaam Dhandha Kar Ke Din Me Soi Thi. Saas Meri Jannat Hai Aur Nanat Ka Naar Noor Jahan Hai Vo Boli Aapas Me Kl Agar Yeh Rupye Nahi Laati To Ghar Me Nahi Rakhna. Mera Dewar Nawab Doosra Dewar Iqbal, Jeth Anwar, Sasoor Kalu Jl Ye Log Kamren Ke Bahar Baatain Kar Rahe The. Ye Sabhi Bahar Mujehn Jalane Kl Baatain Kar Rahe The. Main Socha Ye Log Mujhen Jallakar Maar Dainge To Apne Kamren Se Bahar Nikar Jaaon Is Per Meri Saas Aur Nanad Ne Aapko Hat Se Pakad Liya Is Per Maine Shor Machaya To Saas Ne Mere Muhn Pakad Liya Aur Kaha Chup Rah Kaha Jayangi Mere Pati Ghaslate Ka Peepa Meri Saadi Jal Gai To Ek Balti Pani Mere Pati Ne Mere Upper Daal Diya Aur Ghar Ke Ander Le Jaaker Patak Diya Aur Nashe Ki Do Goliyan De Di Aur Kaha Ki Isse Yeh Mer Jayangi. Main Behosh Ho Gai Waha Mere Sab Ghar Ke Log The Jo Ghar Ke Bahar Baith Gayen Paas Pados Ke Logo Ne Jaaker Mere Bhai A Maa Baap Ko Suchit Kiya Is Per Mera Bhai Aaya Aur Mujhe Yaha Laya Peesangan Le Jaker Peesanges Main Mujhko Hosh Aaya Mera Sara Shareer Jal Gaya. Gawah Poori TARAHA SE JALI HUI HAIN AUR USKI HAALAT BAHUT KHARAB HAI." (I had gone with my husband and three maternal aunts about 12 months ago for operation of family planning. After I got operated I was told by my husband to bring Rs. 27.00 if I wanted to live with him in his house. I told him that when I was not paid money by the Government how could I bring the same. But he was not satisfied and started beating me. After usual house hold work I had slept in the day. Name of my mother is jannat and name of Nanad is Noor Jahan. They were chatting together that I will not be allowed to live in the house in case I do not bring the money. My brother in law (Dewar) Nawab, another Dewar Iqbal, Jeth Anwar and father-in-law Kalu Ji were chatting outside the room. They were planning to burn me. I thought to go out from the room in order to save myself. At this my mother in law and Nand caught hold of my hands when I made hue and cry I was kept mum by my mother-in-law. My husband took tin of kerosene and burnt me by igniting a match when my sari was burnt my husband emptied a bucket of water on me and pushed me inside the house and administered two tablets in order to intoxicate me by saying that she would die from it I became unconscious. All other persons were outside the house. Neighbours had informed my parents. My brother came and took me to Peesangan where I regained consciousness. My whole body has been burnt The witness has been totally burnt and his condition is very bad). 8. Mr Lakhawat, the learned counsel for the appellant, vehementaly assailed, on various grounds the dying declarations Ex.R 9 and Ex.R 14. The contention of Mr. My brother came and took me to Peesangan where I regained consciousness. My whole body has been burnt The witness has been totally burnt and his condition is very bad). 8. Mr Lakhawat, the learned counsel for the appellant, vehementaly assailed, on various grounds the dying declarations Ex.R 9 and Ex.R 14. The contention of Mr. Lakhawat is that there are material contradictions in the dying declarations and as these dying declaration have not been corroborated by independent witnesses the conviction of the appellant could not have been recorded by the trial court. Mr. Lakhawat, the learned counsel for the appellant has laid stress that conduct of the appellant in empting water bucket over burning Abida was an important circumstance which creates a doubt about the prosecution version. The prosecution has not proved beyond reasonable doubt that this was a case of homicide and not suicide. Mr. Lakhawat, The learned counsel has substantiated his argument by stating that the culprit who had decided to put an end to the life of the deceased would never go to the extent of extinguish the fire by throwing a bucket of water of her. In support of his contention Mr. Lakhawat, the learned counsel has placed reliance in State of Gujarat v. Mohan Bhai and another, 1990 Criminal Law Reporter (SC) 313) . "The conduct of the accused in throwing the mattress over the burning woman is an important circumstance which creates a doubt about the prosecution version. Having regard to these circumstances the High Court has given the benefit of doubt to the accused. We have also gone through the details of the dying declaration recorded by the Police Officer. We are unable to persuit overselves to decide with the findings of the High Court particularly when this is an appeal against acquittal." 9. Mr. R.S. Agrawal, learned PR for the State Mr. Arjun Karnani, learned counsel for the complainant have supported the judgment of the trial court. They have placed reliance on a recent decision of this Court in Rajendra Singh v. State of Rajasthan, 1995(1) RLR Page 325 in which Division Bench of this Court maintained the conviction recorded by the trial Judge on the basis of the dying declarations of the deceased. They have placed reliance on a recent decision of this Court in Rajendra Singh v. State of Rajasthan, 1995(1) RLR Page 325 in which Division Bench of this Court maintained the conviction recorded by the trial Judge on the basis of the dying declarations of the deceased. They have also placed reliance on a Supreme Court Judgment in Smt. Pani Ben v. State of Gujrat, 1992 (1) Supreme views and Law Reporter (criminal) Page 133, AIR 1992 Supreme Court 1817) . 10. We have given our anxious consideration to the arguments advanced by the learned counsels and perused the record minutely.This is a case where the basis of conviction of the accused appellant is a dying declaration only. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:- "Nemo moriturus prosemitur mentiri" (A man will not meet his maker with a lie in his mouth) The situation in which a man is on death bad is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded It will result in mis-carriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 11. It is well settled that the court has to be on guard that the statement of deceased was not as a result of either tutoring, promoting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It can not be laid down as an absolute rule of law that the dying declaration cannot from the sole basis of conviction unless it is corroborated. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It can not be laid down as an absolute rule of law that the dying declaration cannot from the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.The Apex Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under (i) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration ( State of H.P. v. Ram Sagar Yadav, ( AIR 1985 SC 416 ) Ramvati Devi v. State of Bihar, AIR 1983 SC 164 ) . (ii) There is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration ( Mannu Raja v. The State of M.P, 1976 (2) SCR 764 , State of Assam v. Mafiyuddin Ahmed, AIR 1983 SC 274 ). (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting of imagination. The deceased has opportunity to observe and identify the assailants and was in a fit sate to make the declaration ( Ram Chjandra Reddy v. Public Prosecutor AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroboration ( Rasheed Beg v. The State of M.P 1974(4) SCC 264 ) . (v) A dying declaration must be closely scrutinised as to its truthfulness, bearing in mind on the one hand, that the statement is by a person who has not been examined in courts on oath and on the other hand that the dying man is normally not likely to implicate innocent person falsely ( Lalubhai Devchand Shah v. The State of Gujrat (AIR 192 SC 1776) . (vi) Dying declaration to a police officer containing full account of an incident can be made basis for conviction if the same is found reliable and truthworthy ( Surinder Kumar v. Delhi Administration 1987 CrLR (SC) 567 ) (vii) Merely because some frineds or relatives happened to be present with the deceased before his statement was recorded, the statement can not be thrown out as tutored ( Habib Usman v. State of Gujrat ( AIR 1979 SC 1181 ). (viii) Failure to record dying declaration in question and answer form does not reduce its probative value ( Padmaben Shamabhai Patel v. State of Gujrat 1991 Cr.LR (SC) 162 . (ix) Dying declaration was short and creptic and there were no proper questions to elicit full information In this back ground it was. observed that if Magistrate records a dying declaration, preferably it should be in a question and answer form. ( Rabi Chandra Pradhan arid others v. State of Orrisa AIR 1980 SC 1738 ). (x) A dying declaration which suffers from infirmity can not form the basis of conviction (Ram Manorath v. The State of U.P, 1981 SCC (Cr.) 531) (xi) Merely because a dying declaration does not contain the details as the occurrence it is not to be rejected (State of Maharasthra v. Krishnamurthi Laxmi Pati Naidu AIR 1981 SC 617 ) . (xii) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look upto the medical opinion, but where the eyewitness has said that the deceased was in a fit and conscious state of making dying declaration the medical opinion can not prevail (Nanehau Ram and another v. State AIR 1988 SC 912 ) (xiii) Where the prosecution version differs from the version as given in the dying declaration it can not be acted upon (State of UP v. Madan Mohan, AIR 1989 SC 1519 ) . (xiv) Where there are more than one statements in the nature oi dying declarations, one first in point of tune must be preferred ( Mohan Lal v. The State of Maharashtra, AIR 1982 SC 839 ) (xv) It will be unsafe to convict the accused on the basis of the inconsistent dying declaration made by the deceased (Smt. Kamal v. State of Punjab (1993) Cr.LR (SC) , Govind Narain and another v. The State of Rajasthan, 1993 Cr.LJ (SC) 589) . 12. In the light of the above principles, we will ascertain the truth with reference to two dying declarations made by the deceased Abida.The first dying declaration (Ex.R 9) was recorded by Head Constable Shrawan Singh in the presence of Dr. K.L. Jain and Block Development Officer Smt. Vinita Srivastava on 3.3.89 at 2.10 p.m. He wrote down her statement as deposed by her. In the said dying declaration Abida stated "(i) A day before the incident at about 10-11 a.m. when she happened to be in the house of Anwar (elder brother of Shabbir) she was beaten by her husband. At 10-11 in the night the slept in the room where her mother-in-law, father-in-law and brother-in-law Nawab were sleeping. Her Husband was sleeping in another room where he use to sleep since last 14 days. (ii) She decided to go to toilet before sleep and when she was returning after easing herself and was in the process of entering in the room, shabbir suddenly came out from the room having an ignited Kerosene Chimney, he pushed chimney upon her and poured kerosene oil and burnt her. (iii) Thereafter her father-in-law, mother-in-law and brother- in-law made her to sleep in their house. She requested them for admitting her in the hospital but they declined." 13. In second dying declaration Ex.P 14 recorded by Magistrate Smt. Sushma Dangi on 16.3.89 at 5.45 p.m. in Jawahar Lal Nehru Hospital, Ajmer, Smt. Abida made following improvements:- "(i) Her husband threatened her not to keep her in the house in case she did not bring Rs. 2700 received by her in lieu of operation. (ii) Her mother in law, nanad, jeth and dewar used to pursuade her husband not to keep her in the house. Her Devar Nawab, Iqbal, Jeth Anwar and father-in-law Kaluji were chanting outside the room. They were planning to burn her. 2700 received by her in lieu of operation. (ii) Her mother in law, nanad, jeth and dewar used to pursuade her husband not to keep her in the house. Her Devar Nawab, Iqbal, Jeth Anwar and father-in-law Kaluji were chanting outside the room. They were planning to burn her. (iii) She thought to go out from the house. When she came out from the house her mother-in-law and nanad caught hold of her and threatened her to keep mum. (iv) Her husband came with a tin of kerosene and ignited her, by lighting a match. When her sari was burnt, her husband emptied a bucket of water over her and kept her inside the house where she became unconsicious." 14. The Learned Trial Judge has observed that in dying declaration (Ex.P 14) recorded by the Magistrate Smt. Abida had made improvements in order to implicate other co-accused persons, The trial Judge has further observed that in case certain improvements were made by the deceased in the second dying declaration, it does not mean that the earlier dying declaration recorded on 3.3.89 in the Peesangan Hospital in the presence of PW 7 Dr. K.L. Jain by Head Constable Shrawan Singh, has become untrustwortny. According to Learned Trial Judge, deceased Abida in the first dying declaration had given truthful version of the circumstances under which she was burnt. This finds support from the injury report (Ex.R 8) and post-mortem report (Ex.R 10) and according to the Trial Judge no further corroboration was necessary. The trial Judge also discussed FIR (Ex.P 13) in which Summandin (father of the deceased) informed that her daughter Abida was burnt by her husband Shabir. The Trial Judge while acquitting other co-accused persons Kalu, Anwar, Iqbal, Nawab Ali, Smt. Jannat and Smt. Moor Jahan, convicted the appellant Under section 302 of the IPC. 15. We ourselves have closely scrutinised both the dying declarations made by Smt. Abida before her death. There is nothing on the record to suggest that deceased Smt. Abida was not in a fit mental condition to make the first dying declaration. She was neither tutored nor prompted before making it. It was recorded by Head Constable Shrawan Singh.A Look at the statement of Shrawan Singh (PW 10) reveals following facts (i) He reached at the Govt. There is nothing on the record to suggest that deceased Smt. Abida was not in a fit mental condition to make the first dying declaration. She was neither tutored nor prompted before making it. It was recorded by Head Constable Shrawan Singh.A Look at the statement of Shrawan Singh (PW 10) reveals following facts (i) He reached at the Govt. Hospital Peesangan at 1.20 p.m. He made contact with the doctor and called Smt. Vinita Srivastava B.D.O. (ii) He recorded the statement of Smt. Abida at 2.10 p.m., word to word as deposed by her in the presence of Doctor and B.D.O. The statement was read over and explained to Smt. Abida who put her signatures on it. Dr. K.L. Jain and Smt. Vinita Srivastava also put their signatures. (iii) Abida was speaking in Marwari (local dilect of Rajasthan) language and he was recording in Hindi after translating it as he was acquainted with Marwari language. (iv) He had asked question and Smt. Abida replied them. Though the statement was not recorded in question and answer form. (v) Family members were turned out when her statement was recorded. A perusal of statement of Dr. K.L. Jain (PW 7) goes to show that (i) He examined Smt. Abida at 1.20 p.m. (ii) She was conscious. (iii) In his presence her statement was recorded by Sharwan Singh. Mrs. Srivastava was also present there. Abida was in a fit mental state. (iv) Questions were asked and Smt. Abida replied the questions in Marwari language. The answers were recorded in Hindi. (v) He was standing silently and the answers were translated in Hindi by Shrawan Singh. The statement of Shrawan Singh and Dr. K.L. Jain are consistent. No doubt that the statement was not recorded in question and answer form and in Marwari language but Shrawan Singh has deposed that he knew Marwari language and recorded the statement word to word as deposed by Smt. Abida. The testimony of Shrawan Singh could not be shattered in the cross-examination and it has been corroborated by Dr. K.L. Jain.In Padmaben's case (supra) it was held that failure to record dying declaration in question and answer form does not reduce its probative value.Smt. Abida was mentally fit to make her statement. She has categorically stated that she was set on fire by the appellant by ignited Chimney. The motive is also there. K.L. Jain.In Padmaben's case (supra) it was held that failure to record dying declaration in question and answer form does not reduce its probative value.Smt. Abida was mentally fit to make her statement. She has categorically stated that she was set on fire by the appellant by ignited Chimney. The motive is also there. The statement appears to be quite natural and voluntary and there is hardly any reason to doubt that it was not properly recorded.According to Rule 6.22 of the Rajasthan Police Rules, 1965, the dying declaration whenever possible should be recorded by a Magistrate. The maker if possible be examined by a Medical Officer. If Magistrate is not available and gazetted police officer is not present, the declaration be recorded in the presence of two or more reliable witnesses unconnected with the police department and it should be signed by the person making it. 16. In the case before us Smt. Abida was examined by Dr. K.L. Jain and was medically fit to make her statement. Two independent witnesses Vinita Srivastava, B.D.O. and Dr. K.L. Jain had signed over it as it was recorded in their presence and Smt. Abida put her thumb impression over it. So we hold that statement of Smt. Abida (Ex.R 9) was recorded in conformity of Rule 6.22 of the Rajasthan Police Rules, 1965. It has become admissible in evidence under Section 32(1) of the Evidence Act as a dying declaration after the death of Smt. Abida as the same relates to the cause of her death. In Surinder Kumar's case (supra) it has been held that dying declaration to a police officer containing full account of incident can be made basis for conviction if the same is found reliable and trustworthy. 17. Now we deal with the arguments of Mr. Lakhawat, the learned counsel that there are inconsistencies in the two dying declarations of Smt. Abida. We have critically examined the statement (Ex.R 14) of Smt. Abida recorded by Smt. Sushma Dangi, Judicial Magistrate No. 4, Ajmer on 16.3.1989 at 5.45 p.m. This statement was recorded in the following circumstances (i) SHO Bhanwar Lal on 16.3.1989 submitted application before the Chief Judicial Magistrate for recording the statement of Smt. Abida. (ii) Smt. Sushma Dangi was directed by the CJM to record the statement. (ii) Smt. Sushma Dangi was directed by the CJM to record the statement. Smt. Sushma Dangi, on the back of the application made following endorsement at 4.30 p.m. "I waited continuously for 15 minutes but no doctor is available to verify as to whether the injured is in a fit condition for making her statement. Under such circumstances It is not possible for me to record the statement now." (iii) At 4.50 p.m., the Chief Judicial Magistrate passed the following order "The matter is urgent. Do not delay. The Doctor is not necessary to be present. You yourself can find out whether she can give statement. More-ever if you think it necessary, you call the Doctor by order." (iv) Smt. Sushma Dangi recorded the statement at 6.50 p.m. (v) Certificate of doctor was not obtained before her examination. 18. In the statement Exp. 14 Smt. Abida had attempted to magnify the incident in order to implicate other Co- accused persons. Though she again stated' that appellant had burnt her but here she had given Kerosene tin in the hands of the appellant in place of chimney.Smt Sushma Dangi was not examined by the prosecution and her signatures were proved by Thanwar Das (PW 11) reader, who worked with her from 1988 till 1990.This second statement of Smt. Abida was recorded very late and it has not been explained by the investigating officer as to why he got recorded this statement after so many days of the incident. This statement (Ex.R 14) seems to be prompted and tutored one and was got recorded only to implicate Kalu, Anwar, Iqbal. Nawab Ali, Smt. Jannat and Smt. Noor, the other relatives of the appellant who were made co-accused before the trial Court. The trial Judge has rightly rejected the second statement (Ex.R 14) and acquitted the co-accused persons. It has rightly been observed by the trial Judge that if certain improvements were made by the deceased in the second dying declaration, it does not mean that earlier dying declaration recorded promptly in the presence of Doctor and B.D.O., has become untrustworthy. In Mohan Lal v. State of Maharashtra (supra) it has been observed that where there are more than one statement in the nature of dying declaration one first in point of time must be preferred.The cause of death of Smt. Abida. In Mohan Lal v. State of Maharashtra (supra) it has been observed that where there are more than one statement in the nature of dying declaration one first in point of time must be preferred.The cause of death of Smt. Abida. according to post mortem report (Ex.P 10) was septicaemlc shock due to sntimortem burn. This was the opinion of medical board comprising of Dr. Mr. N. Gupta and Dr. B.D. Kaviya. Post mortem report (Ex.R 10) was admitted by the counsel of the appellant under the prevision of Section 294 Cr.PC and was admitted in evidence. After examining the post mortem report (Ex.R 10) we are of the view that death of Smt. Abida was caused by the burn injuries attributed to the appellant. The act of pushing ignited chimney on the person of Smt. Abida and setting her on fire implies an intention on the part of the accused, appellant to cause her death.The Apex Court in State of M.P. v. Ram Prasad, (1968 Criminal Law Journal 1026) has held that act of accused in pouring Kerosene oil on his wife and then set her clothes on fire could even be covered under clause forthly of Section 300 of the IPC i.e. offence of culpable homicide amounting to murder. 19. The ratio of State of Gujrat v. Mohan Lal (supra) cited by Sh. Lakhawat the learned counsel is not applicable In the Instant case. In the said case the accused was given benefit of doubt on the ground of his conduct in throwing the mattress over the burning woman. It was held that culprit who had decided to put an end to the life of the deceased would never go to the extent of extinguish the fire after throwing a mattress on her. 20. But in the Instant case no such attempt made by the appellant. A perusel of dying declaration (Ex.P. 9) goes to show that it was Nawab (Co-accused, acquitted by the trial court) who emptied `matka' of water upon Smt. Abida, The appellant had gone to the extent that he had not even admitted her in the Hospital. He had burnt her as he wanted to kill her. She was admitted in the Hospital only after police intervention. 21. The second dying declaration (Ex.R 14) was recorded on 16.3.89 I.e. after 14 days of the incident. He had burnt her as he wanted to kill her. She was admitted in the Hospital only after police intervention. 21. The second dying declaration (Ex.R 14) was recorded on 16.3.89 I.e. after 14 days of the incident. In this declaration though she stated that her husband emptied bucket of water on her after she sustained burns, but as already stated we rely on her earlier version given by her promptly In the first dying declaration and her second statement seems to be tutored one and because of it, her first statement can not become unreliable. 22. Lastly Sh. Lakhewat, the learned counsel, has submitted that the trial court has flouted the mandatory provision of Section 232 of the Code of Criminal Procedure 1973 and no opportunity was afforded to the accused appellant under Section 233 of the said code. After recording his statement under Section 313 of the code, no chance was given to him to adduce his defence evidence. As such the defence of the appellant was adeversrly affected.We have gone through the order sheets of the file of the trial court. In our opinion provisions of Section 232 and 233 are compiled with in letter and spirit. On 28.8.91 the evidence of the prosecution was closed and case was posted for recording the statement of the accused under Section 313 Cr.PC. On 17.9.91 the statements of the accused were recorded and the case was adjourned for recording evidence in support of defence and for hearing the arguments. On 24.9.91, opportunity was again afforded to the accused to produce defence evidence. On 30.9.91 the counsel for the accused declined to produce defence evidence and closed it. The case was then posted for final arguments. On 15.10.91 each of the accused persons (including appellant) were asked one more question under Section 313 Cr.PC opportunity to produce defence evidence was again afforded to the accused but they did not choose to produce witnesses. Moreover, in our opinion the objections raised by the counsel for the appellant are technical in nature. The appellant had ample time and opportunity to raise this objections before the trial Court. The appellant was given opportunity to produce defence witnesses after recording statements under the provisions of Section 313 of the code of Criminal Procedure but he did not opt to produce any witness in support of his defence. The appellant had ample time and opportunity to raise this objections before the trial Court. The appellant was given opportunity to produce defence witnesses after recording statements under the provisions of Section 313 of the code of Criminal Procedure but he did not opt to produce any witness in support of his defence. The appellant is in custody for more than seven years .and no useful purpose will be served in remanding the case on technical grounds"Consequently, the appeal must fail and is dismissed accordingly. The conviction and sentence recorded by the learned Session Judge Ajmer, in Session Case No. 124 of 1989, are maintained.Appeal dismissed. *******