ORDER : B.L. Hansaria, J. 1. Appellant Rammoo is the husband of deceased Devka. The allegation against him is that on 13-2-1977, he had caused the death of Devka by putting her on fire in broad daylight in front of his house. What had led to this burning was the effort of Devka to go to her parents' house despite refusal by Rammoo to do so. Realising that this might invite trouble, Devka was advised by her father Daya Ram (PW 1) who had come to fetch her to go back to her husband's house from midway. Devka did so. Daya Ram stayed in a nearby house of PW 3. Soon thereafter shouts were heard, which brought PWs 1 and 3 to the house of the appellant to find Devka in flames. She told both these witnesses that she had been burnt by kerosene being poured on her by her husband, Rammoo. She was put in a bullock-cart. On the way was the police station and a first information report was lodged there. This was at the dictation of the deceased as per PW 1, whereas PW 3 states that it was he who had lodged the report. Devka was then brought to the hospital. There, she was examined by PWs 6 and 8, Dr Patel and Dr Verma, respectively. Finding her conscious and in a position to speak, her dying declaration was recorded by the Naib Tehsildar, PW 7, which document was put on record as Exh. P-9. This recording was between 5.10 p.m. to 5.20 p.m. ? the occurrence being around 11.00 a.m. 2. Despite the aforesaid material having been brought on record by the prosecution, the trial court acquitted Rammoo which led the State to prefer an appeal before the High Court. A Bench of the High Court, however, felt satisfied about the guilt of the appellant under Section 302 Indian Penal Code and he was found guilty accordingly. He was sentenced to imprisonment for life. Hence this appeal. 3. Shri Dua, who has appeared as amicus curiae, has assisted us well. He has taken pains to bring to our notice all the relevant materials on record and has submitted that the three dying declarations on which alone conviction is based, are not confidence-inspiring and the High Court committed error in setting aside the acquittal by relying on them. 4. Shri Dua, who has appeared as amicus curiae, has assisted us well. He has taken pains to bring to our notice all the relevant materials on record and has submitted that the three dying declarations on which alone conviction is based, are not confidence-inspiring and the High Court committed error in setting aside the acquittal by relying on them. 4. As to the first dying declaration about which evidence has been given by PWs 1 and 3, the submission of Shri Dua is that though PW 1 in his evidence stated that on his asking Devka as to how she caught fire, the reply was that it was Rammoo who put her on fire, to which it was added that on Rammoo being asked, he stated: "Dadda, I touch your feet, kindly save me." As against this, PW 3 stated in cross-examination that PW 1 Daya Ram had not talked with Devka in his presence. As to the statement of Rammoo that he should be saved, our attention is invited to the cross-examination of PW 1 where he admitted that he did not mention about this in his police statement. Even if some concession is made about what was deposed by PW 1 regarding his asking Devka and about Rammoo seeking pardon, there is nothing to doubt the testimony of the independent witness, PW 3, who was a Kotwar by occupation, that on his asking Devka, she had told that Rammoo had put her on fire. There is nothing to either disbelieve the evidence of PW 3 or to discard the same for any reason. 5. Of course, insofar as the reliance by the High Court on what was stated in the FIR which was put on record as Exh. P-10, we would accept the submission of Shri Dua that what found place in the FIR cannot be taken as a dying declaration inasmuch as the contents of the FIR do not come from the mouth of the deceased, as, according to PW 3, it was he who had lodged the report. Not only this, Shri Dua has brought to our notice that as per PW 1 himself, Devka was unconscious when she was at the police station. Not only this, Shri Dua has brought to our notice that as per PW 1 himself, Devka was unconscious when she was at the police station. This state of unconsciousness must have continued when Devka was brought to the hospital and was in the hospital, contends Shri Dua, because of which we should disbelieve the recorded dying declaration also. 6. We find it difficult to accept this submission on the face of sworn testimony of two doctors, PWs 6 and 8. Both of them clearly deposed that Devka was in a conscious state when the dying declaration was recorded. A very pertinent question was asked of Devka by PW 8 to test whether she was fully conscious to make any statement ? the same being "Where are you at present?" and the answer was "in the hospital". This answer has satisfied our mind as well that Devka was in a conscious state while her dying declaration was recorded by the Naib Tehsildar. Shri Dua has, however, urged that as no testing for judging sense of touch of Devka had been done, as admitted by PW 6 and which is the reason for the trial court not accepting the dying declaration, we should agree with the view taken by the trial court. We are afraid this submission cannot be accepted because though PW 6 stated that he had not tested Devka for her sense of touch, the immediate next statement is that he gave Devka an injection and thus her sense of touch was tested. We are, therefore, satisfied that when the dying declaration of Devka was recorded by PW 7, the Naib Tehsildar, she was in a conscious state despite the burns on her person being to the extent of 70%, as deposed by PW 6. Shri Dua submits that the burns were not to the extent of 70% but were up to 80% as was found by the autopsy surgeon, PW 10. The further evidence of PW 10 which is pressed into service is that Devka must have been capable of speaking for about 1-2 hours after the incident. Since the incident was around 11.00 a.m. and recording was around 5.00 p.m., the submission is that Devka was not capable of speaking at that hour of time. 7. The further evidence of PW 10 which is pressed into service is that Devka must have been capable of speaking for about 1-2 hours after the incident. Since the incident was around 11.00 a.m. and recording was around 5.00 p.m., the submission is that Devka was not capable of speaking at that hour of time. 7. As to the above piece of evidence pressed into service by Shri Dua, we would observe that the aforesaid is in the opinion of PW 10, which cannot override the evidence of PWs 6 and 8 who deposed about the factual condition of Devka as found by them, and not what it should have been as is the purport of the evidence of PW 10. We may point out that there is absolutely nothing to suggest that PWs 6 and 8 would have gone out of their way to give false evidence about the state of mind of Devka at the relevant time. 8. This being the position, we have to uphold the conviction as awarded to the appellant which we hereby do by dismissing the appeal. 9. We record our appreciation for the assistance rendered by Shri Dua, who would be paid his fee @ Rs 700.