Honble B.R. ARORA, J – This appeal is directed against the judgment dated 5.12.92 passed by the District and Sessions Judge Merta, by which the learned Sessions Judge Merta, by which the learned Sessions Judge convicted the accused-appellant for the offence under Sec.302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months rigorous imprisonment. (2) Appellant Satya Narain was tried by the learned Sessions Judge, Merta for committing the murder of his wife Smt. Kamla on 31-7-89 at 9.00 a.m. in the Nohra of Ram Lal Jat situated in village Arniyala. The facts of the prosecution case as disclosed in the FIR lodged by Sukhdeo Ram, the father of the deceased, at police Station, Padu Kallan on 31-7-89 at 11.45 a.m., which led to the prosecution and conviction of the accused-appellant in the present case, are that his daughter Kamla was married to accused-appellant Satya Narain. The relations between the accused- appellant and the deceased were strained and litigations were going on between them but ultimately the matter was compromised between the accused and the deceased. At about 9.00 a.m. on the day of the incident,his daughter Smt. Kamla went to fetch water from the water-pond in village Arniyala and was returning from the water- pond. When she was returning from the water-pond,the accused- appellant inflicted injuries to Smt. Kamla by a Kulhari in the Nohra of Ram Lal and she was lying injured in the Nohra of Ram Lal.The information of the inci- dent was given to him by Arjun Ram Jat of village Arniyala. The police registered the report and thereafter went to the place of the incident. The accused, by that time, had run away. (3) The prosecution, in support if its case,examined sixteen witnesses. The accused pleaded alibi and examined two witnesses, viz., DW.1 Girraj and DW. 2 Chhotu Ram to show that on the day of the incident, the accused was not in the village and was working as labourer with DW. 1 Girraj Prasad on his work on Chardiya Bandh in village Sagoda (district Jhalawar).The learned trial court did not believe the defence version and relied-upon the evidence produced by the prosecution and after trial, convicted and sentenced the accused- appellant as stated above. 1 Girraj Prasad on his work on Chardiya Bandh in village Sagoda (district Jhalawar).The learned trial court did not believe the defence version and relied-upon the evidence produced by the prosecution and after trial, convicted and sentenced the accused- appellant as stated above. It is against this judgment dated 5.12.92 passed by the learned Sessions Judge, Merta, convicting and sentencing the appellant that the appellant has filed this appeal. (4) The nature of the evidence produced by the prosecution consists of the statement of three eye witnesses, viz, PW.4 Munni, PW.5 Kamla and PW6 Yasoda, which is sought to be corroborated by the evidence of PW.1 Sukhdeo the maker of the FIR and a witness of the dying declaration; PW.2 Arjun Ram the Motbir witness before whom the dying declaration was made and that of PW 8 Bhanwara Ram and PW. 9 Hari Ram the other Motbir witnesses. PW.3 Gokul Ram and PW. 7 Ram Ni was were, also, the eye witnesses of the occurrence but they have not supported the prosecution case and were declared hostile. PW.15 Cr. S.S. Diwakar was the Medical Officer, Primary Health Centre, Riyan who conducted the autopsy on the deabody of the deceased. PW 10 Srawan Ram, ASI, PW 11, Bhopal Singh,PW. 12 Bhanwar Singh, PW.13 Hanuman Singh, PW 14 Ramdeo and PW16. Loon Singh are the police witnesses who were connected with the investigation of the case at one stage or the other. The prosecution has, also, relied-upon the dying declaration Ex. P.16 recorded by PW.13 Hanuman Singh, the investigating officer, in the presence of PW 10 Srawan Ram, ASI. (5) The prosecution case, therefore, mainly rests upon (i) the statement of the eye witnesses, viz., PW 4 Munni, PW 5 Kamal and PW.6 Yasoda; (ii) the dying dec- laration made by deceased Smt. Kamla before her father PW.1 Sukhdeo Ram; (iii) the second dying declaration made by deceased Smt. Kamla before PW. 2 Arjun Ram and other villagers, and (iv) the dying declaration Ex. P.16 made by the deceased and recorded by PW.13 Hanuman Ram. We would like to consider these evidence relied-upon by the prosecution. (6) Now, we first take-up the evidence of the three eye witnesses relied-upon by the prosecution. PW. 2 Arjun Ram and other villagers, and (iv) the dying declaration Ex. P.16 made by the deceased and recorded by PW.13 Hanuman Ram. We would like to consider these evidence relied-upon by the prosecution. (6) Now, we first take-up the evidence of the three eye witnesses relied-upon by the prosecution. PW. 6 Smt. Jasoda aged ten years is the daughter of Ram Lal, in whose code(Bara) the murder of Smt. Kamla took place.She has stated that on the day of the incident she was in the Bara as their cow had given birth to a calf. She was cutting a lock on the door of the Bara. By that time, Satya Narains wife came running, who was being followed by her husband Satya Narain. Satya Narain was armed with a Kulhari. Satya Narain inflicted injury by the kulhari on the back of Smt. Kamla. She raised an alarm and ran towards the water-pond where her mother had gone to fetch water. When she was running towards the water-pond Kamla and Munni met her and on their asking she informed them that Satya Narain cut off Smt. Kamla. Thereafter she went to the water-pond but her mother was not there and she was informed that she had gone to the field. Then she went to field where her mother and father were working and she narrated the whole incident to her parents.She also, identified the accused-appellant in the Court. In the cross examination she has admitted that inspite of her raising the cries, nobody came from the adjoining cotes (Baras).She has, also, admitted that after narration of the incident to her father, her, father came to the village but she did not go to the village alongwith her father and returned from the field in the evening.She has, also, admitted that after she came out from the Bara, she does not know where the accused had gone. She has, also, admitted that in her statement recorded under Sec. 161 CrPC there is no mention of stating of the incident by her to Kamla and Munni but she had stated as to the police. She has also, stated that when Satya Narains wife running to her cote (Bara) she was being following by Satya Narain from the distance of only one pace. She has also, stated that when Satya Narains wife running to her cote (Bara) she was being following by Satya Narain from the distance of only one pace. (7) The evidence of this witness has been challenged on the ground that she is a child-witness and is not a reliable witness as she is interested in the prosecution case and has been made an eye witness to save her father. The evidence of a child witness can be accepted provided the witness is intelligent enough to give evidence and is nature of intellects. The trial Court, in the present case, has put certain questions to this witness to ascertain her competence to give evidence. The ques- tions put to this witness and the reply given by her clearly shows that the witness was competent to testify and is intelligent enough to give evidence and only after that, the learned trial Court recorded her statement. After going through her evidence, we are, also, of the view that the witness is intelligent enough to give evidence. In this view of the matter we are of the opinion that the evidence of PW. 6 Yasoda can be relied- upon and cannot be thrown-away merely because she is a child -witness. (8) The presence of PW.6 Yasoda in her own house was most natural. The deceased came running, who was being followed by her husband the appellant. This witness saw deceased Smt. Kamla entering her cote (Bara) and followed by her husband (the appellant) who was armed with the kulhari and on entering into the Bara, the accused-appellant inflicted injuries to Smt. Kamla, which were witnesse by PW.6 Yasoda. Yasoda thereafter ran away. If is true that she has stated that while running from the place of the occurrence towards the water-pond, PW.4 Munni and PW.5 Ku. Kamla met her and though she stated that she narrated the incident to them but this fact does not find mention in her earlier version. Her narrating the incident of PW.4 Munni and PW.5 Ku. Kamla, therefore, does not inspire confidence. Thereafter she went to her field and narrated the incident to her father and the other, which can be believed. Her narrating the incident of PW.4 Munni and PW.5 Ku. Kamla, therefore, does not inspire confidence. Thereafter she went to her field and narrated the incident to her father and the other, which can be believed. The evidence of this witness, there- fore, can be believed to this extent that she saw the incident of inflicting injuries by the accused -appellant with the kulhari to Smt. Kamla and thereafter running from the place of the incident to wards water-pond, and thereafter reaching to her field and narrating the incident to her parents. The evidence of this witness clearly shows that she is not a tutored witness and has stated what she had actually seen. (9) The second alleged eye witness produced by the prosecution is PW 4 Miss Munni.She has stated that on the day of the incident she was going to the water-pond alongwith her cattle. After covering some distance from the Bara, her niece Yasoda came running and was proceeding towards the water-pond. On enquiry, she informed that Sattu has killed his wife. Ku. Kamli was , also, coming behind her. She informed kamla what Yasoda told her. She and Kamli thereafter went to wards the place of the incident and saw accused Satya Narain armed with the kulhari and coming out of the Baraof Ram Lal and running. This witness, in her earlier statement, has not stated that Yasoda narrated the incident to her and disclosed that Sattu killed his wife and, therefore, this part of her statement cannot be believed. She has not stated that she had seen the occurrence and, therefore, she cannot be said to be an eye witness.She can be believed only to this extent that she, alongwith her cattle, was proceeding towards the water-pond, Yasoda met her and she saw the accused armed with the Kulhari coming out and running from the Bara of Ram Lal. (10) PW.5 Ku. Kamla, the other eye witness according to the prosecution, has stated that she was going alongwith her cattle and was proceeding towards Champa. Jassu came-out from Ram Lals house and she was weeping. On enquiry why she was weeping,Yasoda informed her that Sattu had killed his wife. At that time Munni was, also, with her. Thereafter she and Munni went inside the Bara of Ram Lal and saw the accused inflicting injuries to his wife by the kulhari. Jassu came-out from Ram Lals house and she was weeping. On enquiry why she was weeping,Yasoda informed her that Sattu had killed his wife. At that time Munni was, also, with her. Thereafter she and Munni went inside the Bara of Ram Lal and saw the accused inflicting injuries to his wife by the kulhari. Thereafter they went to the village and narrated to incident to Arjun, Narain and Bhanwru. In the cross-examination she has stated that Jassu (Yasoda) met them near the Bara.She has, also, admitted that the fact that she saw the accused inflicting injury by the Kulhari to his wife was disclosed by her to the police but she does not know why it does not find mention in her statement Ex. D.4. She has, also, made an improvement from her earlier statement that she has witnessed the occurrence, which does not inspire confidence. She can be believed only to this extent that she had seen the accused-appellant armed with Kulhari running from the Bara of Ram Lal immediately after the occurrence but has not seen the accused inflicting inju- ries by kulhari to his wife Smt. Kamla. She, also, cannot be said to be an eye witness of the occurrence and she had only seen the accused armed with the kulhari coming out from the Bara of Ram Lal. (11) From the evidence of these three witnesses it, therefore, fully stands established that PW.6 Kumari Yasoda is an eye witness of the occurrence who had seen decased Smt. Kamla coming running to the Bara, who was followed by her husband Satya Narain (the accused-appellant), who over-took wife and inflicted injuries by the Kulhari to Smt. Kamla. PW.6 Yasoda,after seeing the accused inflic- cting injuries to Kamla, ran out-side the Bara and met PW4 Munni and PW 5. Ku. Kamla and then went to her field and narrated the incident to her parents. The accused-appellant, after inflicting injuries to his wife Smt. Kamla came out from the Bara having kulhari in his hand and at that time he was seen by PW. 4 Munni and PW. 5 Ku. Ku. Kamla and then went to her field and narrated the incident to her parents. The accused-appellant, after inflicting injuries to his wife Smt. Kamla came out from the Bara having kulhari in his hand and at that time he was seen by PW. 4 Munni and PW. 5 Ku. Kamla.From the evidence of three witnesses, it stands established that it was the accused- appellant who committed the murder of his wife Smt. Kamla by inflicting injuries with the Kulhari and the incident was witnessed by PW.6 Yasoda and the accused was seen running alongwith kulhari after the occurrence by PW. 4 Munni and PW. 5 Ku. Kamla. (12) The next evidence relied-upon by the prosecution is the dying declara- tions allegedly made by the deceased.The two dying declarations were made by the deceased before PW. 1 Sukhdeo Ram and PW 2 Arjun Ram and the third dying declaration (Ex. P.16) was recorded by PW 13 Hanuman Singh,SHO, the investigating officer. The principle on which the dying declarations are admitted in evidence is based on the legal maxim``memo moriturus proseumitur mentiria, i.e. a man will not meet his maker with a lie in his mouth. Sec. 32 of the Evidence Act is an exception to the admissibility of the hear-say evidence. It makes admissible the statement of a person who dies provides the statement is related to the cause of his death or as to any of the circumstance of the transaction which resulted in his death, in the cases in which the cause of that persons death comes into question. Before admitting the dying declaration into evidence, it must be ascertained that it is true and voluntary and is not the result of tutoring, prompting or a product of imagination. (13) Now, in the present case, we have to see whether the three dying declarations made by the deceased answer these tests which are required to be applied for such acceptance? According to the prosecution, the first dying declaration was made by the deceased before PW2 Arjun Ram. PW2 Arjun Ram has stated that when they reached near Smt. Kamla in the Bara of Ram Lal and enquired from her what had happened, she replied that her husband has cut her. According to the prosecution, the first dying declaration was made by the deceased before PW2 Arjun Ram. PW2 Arjun Ram has stated that when they reached near Smt. Kamla in the Bara of Ram Lal and enquired from her what had happened, she replied that her husband has cut her. This part of the statement neither finds place in his earlier statement nor he disclosed this fact to any other person prior to recording of his statement by the Court. Even in the examination-in -chief he did not make any statement regarding making of dying declaration by the deceased.The evidence of this witness regarding making of dying declaration by deceased Smt. Kamla before him, therefore,does not inspire confidence. (14) The second dying declaration allegedly made by deceased Smt. Kamla before her father PW.1 Sukhdeo Ram, also, suffers from the same infirmity. PW.1 Sukhdeo Ram has stated that he, alogwith the police personnel, went to the Bara where Smt. Kamla was lying injured. On enquiry,she told that she was cut by her husband.This part of his statement does not find place in his earlier statements given during the investigation, i.e.,the statement Ex. D.1 recorded under Sec. 161 Cr.PC nor it finds mention in the FIR lodged by him at the Police Station. When he was confronted with this position, he stated that he did not disclose this fact to the police because at that time his daughter Kamla was alive. He has, also, admitted that the dying declaration was made by the deceased in the presence of twenty to twenty five villagers; but none of the villagers ,except PW.2 Arjun Ram, has supported him on this point.After considering the statement of this witness we are of the opinion that fact of making a dying declaration by the deceased before PW.1 Sukhdeo Ram, also, does not inspire confidence. He has made an improvement in his statement regarding making of such dying declaration by the deceased. If such dying declaration would have been made by the deceased before this witness then he would have disclosed this fact at the time of lodging the FIR and thereafter during the investigation when his statement under Sec. 161 Cr.PC was recorded.He also, did not narrate the fact of making dying declaration by the deceased before him to any other person.The evidence of making dying declaration by tne deceased before this witness, therefore,does not inspire confidence. (15) The third dying declaration is Ex. P. 16 which is alleged to have been recorded by PW.13 Hanuman Singh SHO, the investigating officer in the Block Primary Health Centre, Riyan Badi. PW. 13 Hanuman Singh,SHO, who recorded the dying declaration Ex. P. 16,has stated that he recorded the dying declaration Ex.P. 16 which bears his signatures E. to F and the signatures G to H are of Dr. S.S. Diwakar. He has further stated that he recorded the dying declaration of the deceased in the presence of the doctor. In the cross-examination he has admitted that he did not mention the time in Ex. P.16. He recorded the dying declaration of the deceased but the doctor has mentioned the time in Ex. P. 16. He has also, stated that when he was recording the dying declaration Ex.P. 16, at that time no independent witness was available and, therefore, he did not consider it proper to keep any Motbir witness present while recording the dying declaration. The statement of this witness is contrary to the statement given by the other witnesses. PW. 15 Dr. S.S. Diwakar has specifically stated that the dying declaration Ex. P. 16 was not recorded in his presence. He has,also, stated that the deceased was in a semi-conscious condition when she was brought to the hospital.She was not admitted to the hospital and after giring first aid she was referred to Ajmer Hospital. He has, also, stated that several relatives of the deceased were with her when she was brought to the hospital. He has, also, stated that he did not ask the Station House Officer to record the dying declaration and Ex.P. 16 was not recorded by the Thanedar before him and he appended his signatures on the dying declaration Ex.P. 16 only to attest the thumb impression of the deceased. The relevant portion of the statement made by the doctor reads as under :– ^^esjs dks Fkkusnkj esa et:uk ds e`R;qdkyhu C;ku ysus dk ugha dgkA bZDl ih 16 esa th lp esjs nLr[kr gSA bZDl ih 16 c;ku esjs lkeus Fkkusnkj us ugha fy;sA Fkkusnkj us esjs ls et:uk dk vaxwBk fukkuh lR;kfir djus ds nLRk[kr djk;s FksA** (16) PW 10 Srawan Ram, ASI of Police Station, Padu Kallan was with PW. 13 Hanuman Singh at Riyan Hospital when the dying declaration Ex. 13 Hanuman Singh at Riyan Hospital when the dying declaration Ex. P. 16 was alleged to have been made by the deceased.He has stated that Hanuman Singh recorded the dying declaration Ex. P. 16 as stated by Smt. Kamla which bears his signatures as well as the signatures of Hanuman Singh, SHO. He has, also, stated that Dr. S.S. Diwakar was present when the statement Ex.P. 16 was recorded and it bears his signatures G to H .He has, also, stated that the dying declaration Ex.P. 16 was recorded at 2.15 p.m. He has, also admitted that Smt. Kamla was admitted in the hospital, her relatives were, also, with her. (17) Though there is no bar for acceptance of the dying declaration recorded by the investigating officer and it is admissible under Sec. 32 of the Evidence Act, but in view of the exception provided in Sub-sec.(2) of Sec.162 Cr.PC, the court may not take into consideration such dying declaration unless the prosecution satisfies why it was not recorded by the Doctor or a Magistrate. PW.15 Dr. S.S. Diwakar was available even according to PW.13 Hanuman Singh, SHO and PW.10 Srawan Ram, ASI and, therefore, there was no justification for the investigating officer to record the dying declaration Ex. P. 16 himself. He, before the Court, was unable to give any justification or explanation why he did not ask the doctor to record the dying declaration. He even did not care to get the opinion of the doctor whether Smt. Kamla was in a fit condition to make statement. Even he did not record the statement of the deceased in the presence of the doctor.The dying declaration Ex.P. 16 recorded by PW 13 Hanuman Singh has not been actually made by the deceased but has been prepared by PW.13 Hanuman Singh and the same does not inspire confidence. He has prepared Ex.P.16 falsely for the success of his investigation. While recording the dying declaration Ex.P. 16 he has even given a go-bye to all the formalities required for recording a dying declaration.The dying declaration Ex. P.16, therefore, appears tous as a fabricated piece of evidence made by PW.13 Hanuman Singh for the success of his investigation and the same does not inspire confidence. While recording the dying declaration Ex.P. 16 he has even given a go-bye to all the formalities required for recording a dying declaration.The dying declaration Ex. P.16, therefore, appears tous as a fabricated piece of evidence made by PW.13 Hanuman Singh for the success of his investigation and the same does not inspire confidence. (18) Though the evidence of the three dying declarations produced by the prosecution does not inspire confidence but since the prosecution has been able to prove the case against the accused- appellant by the evidence of PW.6 Yasoda an eye witness of the occurrence which is corroborated by the evidence of PW.4 Munni and PW.5 Ku.Kamla who had seen the accused-appellant armed with the kulhari coming out from the Bara of Ram Lal. The judgment passed by the learned Sessions Judge, convicting and sentencing the appellant for the offence under Sec. 302 IPC, therefore, does not require any interference. (19) In the result, we do not find any merit in this appeal and the same is hereby dismissed.