JUDGMENT 1. - This appeal is directed against the judgment dated 1.8.94 passed by the learned Additional Sessions Judge No. 3, Kota, by which he convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine, to further undergo two months simple imprisonment. 2. The appellant with his father Moolchand, mother Mangi Bai was tried by the learned Additional Sessions Judge for the offence under Section 302, 304-B IPC for committing murder of Smt. Anar Bai wife of appellant. After trial, Moolchand and Mangi Bai were acquitted for the offence under Section 304-B IPC, but the appellant was held guilty under Section 302 IPC. 3. In short, the facts of the case are that Anar Bai deceased was married about five year back with the appellant before her death. She was residing with her husband at the time of her death. On 3.3.93-at about 11.00 P.M. Smt. Anar Bai was admitted in the M.B.S. Hospital, Kota in burnt condition having 90% burns. The Police Station, Gumanpura, Kota was informed. After receiving the information ASI, Deen Dayal along with other police officials rushed to the hospital, where Parcha-bayan Ex.P 6 of Anar Bai was recorded. She stated that she is living with her husband. At about 8.30 P.M. when she was cooking food accused appellant was also present in the room. Her husband Prabhu Lal accused-appellant poured kerosene oil on her from a tin and set fire her Sari from the burning stove. She do not know who brought her in the hospital. On the basis of the parcha bayan a case Crime No. 114/93 under Sections 307, 498-A IPC was registered at Police Station, Gumanpura. As the condition of Anar Bai was critical, her statement under Section 164 Cr.PC. Ex.P 8 was also recorded by the Judicial Magistrate. She narrated to him the same facts. 4. The Investigating Officer inspected the site and prepared site plan Ex.P 3, he seized stove, tin of kerosene oil, burnt pieces of clothes from the place of occurrence. He also notice the smell of kerosene from the floor, it was also noticed by him that stove was full with kerosene oil whereas the tin of kerosene which was lying In a shelf was empty. He also notice the smell of kerosene from the floor, it was also noticed by him that stove was full with kerosene oil whereas the tin of kerosene which was lying In a shelf was empty. Smt. Anar Bai expired due to extensive burns on 5.3.95 in the morning, panchayatnama was prepared and post-mortem was conducted, the dead body was handed over to Amar Lal, father of the deceased for funeral. Appellant, his father and mother were arrested and a charge sheet was filed against all the three under Sections 302, 304-B and 498-A in the court of Judicial Magistrate who committed the case for trial to the court of Sessions Judge No. 3, Kota. Charge under Sections 302, 304-B against the appellant and under Section 304-B IPC against Mool Chand and Mangi Bai were framed. Accused pleaded not guilty and claimed trial. 5. The prosecution had examined as many as 13 witnesses, Statement under Section 313 Cr.P.C. was recorded. Two witnesses in defence were examined. 6. The learned counsel submitted that the prosecution case is based upon circumstantial evidence and there is no direct or eye witness about the incident. The trial Court has placed reliance upon two dying declarations i.e. (i) Ex. P 6 Parcha Bayan of the deceased recorded by ASI and (ii) Ex.P 8, the statement of deceased recorded by the Judicial Magistrate. According to learned counsel, Ex.P 6 and Ex.P 8 both cannot be considered as dying declarations. The learned counsel has pointed out that when Ex.P 6 was recorded, certificate from the doctor was not obtained whether Anar Bai was in a fit condition to give the statement. He has pointed out that PW 1 Gora Bai, mother of the deceased has stated that, just after receiving the information, she reached the hospital and found Anar Bai in unconscious condition and she regained consciousness after about half an hour. Therefore, Anar Bai was not conscious, and as such she was incapable of giving statement. It was not recorded in the presence of independent witnesses and in accordance with rule 6.22 of the Rajasthan Police Rules. Moreover, recording of the dying declaration by a police official Should not be encouraged. Therefore, Anar Bai was not conscious, and as such she was incapable of giving statement. It was not recorded in the presence of independent witnesses and in accordance with rule 6.22 of the Rajasthan Police Rules. Moreover, recording of the dying declaration by a police official Should not be encouraged. Anar bai was admitted in the hospital with extensive burns all over the body, according to the medical officer she was having about 90% burns over the body, as such, she was not in a position to affix her thumb impression whereas both Ex.P 6 and Ex.P 8 bears the thumb impression of the deceased. It shows that these documents were prepared afterwards. According to Ex.P 6, she has stated that her mother in law and father in law were demanding dowry. But the trial Court has held that it was not a case of dowry death. Similarly, her statement Ex.P 8 was not recorded by the Magistrate in question-answer form. The Magistrate has not taken certificate from the medical officer about the fitness of Anar Bai. According to the learned counsel Anar Bai was residing with her husband happily, there was no dispute between them as stated by PW 1 Gora Bai, mother of the deceased, then why accused would have killed her wife. Therefore, Ex.P 6 and Ex.P 8 are not reliable documents, accused appellant should not have been held guilty on the basis of these two dying declarations, except the dying declarations there is no other evidence to connect the accused with the crime. 7. There is no doubt that this case is based on circumstantial evidence and there is no direct evidence about the incident. The learned Additional Sessions Judge has placed reliance upon the dying declarations Ex.P6 of the deceased recorded by ASI Deen Dayal (PW 12) and Ex.P 8 recorded by Shri Govind Prasad Goyal. Judicial Magistrate (PW 9). The case was registered on the basis of Ex.P 6, Parcha Bayan. Before examining the prosecution case it would be better to refer the law developed about the dying declaration. For this purpose we would like to refer the judgment of this Court in the case of Rajendra Singh v. State of Rajasthan, RLR 1995(1) 325 . 8. Coincidentally, the facts of the present case are very much similar to that of Rajendra Singhs case (supra). For this purpose we would like to refer the judgment of this Court in the case of Rajendra Singh v. State of Rajasthan, RLR 1995(1) 325 . 8. Coincidentally, the facts of the present case are very much similar to that of Rajendra Singhs case (supra). In that case the accused was tried for the offence under Section 302 IPC. The allegation was that, he has sprinkled kerosene on his wife and set her on fire. Before her death her statement in the form of Parcha Bayan was recorded by ASI. Thereafter her statement was recorded by the Judicial Magistrate. Almost all the grounds on which the learned counsel has assailed the judgment of the trial court in this case were taken on behalf of Rajendra Singh in that case, but were negatived by the court and it was observed as under: "The law on dying declarations is well settled by now. Under clause (1) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question, is a relevant fact and is admissible in evidence. Thus, Section 32(1) of the Evidence Act is an exception to the general rule that here-say evidence is not admissible or that unless evidence is tested by cross-examination, it is not credit-worthy. The Section further makes it clear that such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death and whatever may be the nature of proceedings in which the cause of death comes into question. However, the reliability of such statement/declaration should be subjected to a close scrutiny, considering that it was made in absence of the accused who has no opportunity to test its veracity by cross-examination. If there are more than one dying declarations, then the court has also to scrutiniser all the dying declarations to find out if each one of them passes the test of being trustworthy. The court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. If there are more than one dying declarations, then the court has also to scrutiniser all the dying declarations to find out if each one of them passes the test of being trustworthy. The court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same if found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration." 9. The above observations are based upon the judgments of Supreme Court i.e. (1) AIR 1958 SC 22 Khushal Rao v. State of Bombay ; (2) AIR 1972 SC 1776 Lalubhai Devechand Shah v. State of Gujarat and (3) AIR 1983 SC 274 State of Assam v. Mafijuddin Ahmed . 10. Similarly, it has been held in Rajendra Singh's case that Provision of Rule 6.22 of Rajasthan Police Rules, 1965 has no application where the statement of deceased (parcha bayan) is recorded by a police official because the statement is not recorded as dying declaration but is recorded as an information or by way of first information report. An FIR can be given by the victim orally to a police official therefore, the statement is recorded becomes admissible in evidence under Section 32(1) of the Evidence Act as a dying declaration is a statement which relates to the cause of her death. 11. It is an admitted fact that at the time of incident Anar Bai was living with her husband in the ground floor, her in-laws were living in the first floor of the house. She was shifted to the hospital immediately after the incident, information was given to the Police Station, Gumanpura by Control Room, which was received by PW 7 Harphool Singh, Head Constable. Thereafter, PW 12 Deen Dayal, A.S.I., was deputed to record the statement, he rushed to the hospital, at that time Anar Bai was admitted in female surgical ward of the hospital. According to Deen Dayal, he recorded the Parcha Bayan (Ex.P6) of Anar Bai. In the presence of Dr. Thereafter, PW 12 Deen Dayal, A.S.I., was deputed to record the statement, he rushed to the hospital, at that time Anar Bai was admitted in female surgical ward of the hospital. According to Deen Dayal, he recorded the Parcha Bayan (Ex.P6) of Anar Bai. In the presence of Dr. K.N. Gupta, two witnesses; Amar Lal and Nand Singh were also present. He has also stated that Anar Bai was conscious, she was in a fit condition to give statement, he has also obtained the certificate from Dr. Gupta on Ex. P6. Dr. Gupta (PW6) has stated that in midnight of 3rd/4th March, 1993 he was on night duty in the hospital, in his presence Ex.P 6, the Parcha Bayan of Anar Bai was recorded by Police and thumb impression of Anar Bai was taken on Ex.P 6. He verified the statement and attested the thumb impression of Anar Bai. 12. The learned counsel has submitted that certificate about the mentally fit condition to give statement by Anar Bai was not given by Dr. Gupta. He has also drawn our attention towards the statement of PW 1 Gora Bai, mother of the deceased, who has deposed that when she reached the hospital after getting the information about her daughter, she found Anar Bai in unconscious condition. She regained consciousness after about half an hour, it shows that Anar Bai was not in fit mental condition at that time. Therefore, no reliance can be placed on Ex. P 6. 13. We have considered the statement of Deen Dayal, ASI, Dr. Gupta and Ex. P 6 the Parcha-bayan. In our opinion, the arguments advanced by the learned counsel are devoid of any force, because Deen Dayal has specifically stated that at the time of recording Parcha Bayan Ex.P 6. Anar Bai was conscious and was in fit condition to give statement. Shri Deen Dayal had no motive to implicate the appellant falsely. PW 6, Dr. Gupta has also stated that at that time he was on night duty, in his presence statement of Anar Bai was recorded. He verified it and attested the thumb impression. Dr. Gupta has made the following endorsement on Ex.P 6:- "At 12.30 midnight statement verified in my presence. Left thumb impression of Smt. Anr Bai attested." S.D. Dr. K.N. Gupta 4.3.93 14. No specific questions were asked from Dr. Gupta about the mental fit condition of Anar Bai. He verified it and attested the thumb impression. Dr. Gupta has made the following endorsement on Ex.P 6:- "At 12.30 midnight statement verified in my presence. Left thumb impression of Smt. Anr Bai attested." S.D. Dr. K.N. Gupta 4.3.93 14. No specific questions were asked from Dr. Gupta about the mental fit condition of Anar Bai. There is no reason to disbelieve the statement of Deen Dayal and Dr. Gupta. Similarly, the statement of Gora Bai is of no help to the appellant. She has stated as, under: " vukjckbZ ls] esjs gksLihVy igqapus ds vk/k&iksus ?k.Vs ds nkSjku iqfyl }kjk mlls iwNrkN dh xbZ Fkh] mlds ckn fQj csgks'k gks xbZA ;g xyr gS fd tc vukjckbZ ds c;ku fy;s tk jgs Fks rks oks chp&chp esa csgks'k gks tkrh gS ------vukjckbZ ds c;ku fdlh iqfyl okys us fy, Fks] ;g eq>s ekywe ugha gS] tc vukjckbZ gks'k esa Fkh rFkk mlds c;ku fy;s tk jgs Fks] ml oDr MkWDVj o ulZ Hkh ekStwn FksA " 15. Gara Bai has also deposed that Anar Bai narrated the whole incident to her looking to it, in our opinion, the Parcha Bayan Ex.P 6 of Anar Bai was recorded by Deen Dayal ASI in the presence of Dr. K.N. Gupta the duty doctor is reliable, and admissible in evidence under Section 32(1) of the Evidence Act as the statement of deceased relating to cause of her death. 16. The second statement of deceased Anar Bai is Ex. P 8 which was recorded by Shri Govind Prasad Goyal (PW 9), Judicial Magistrate, Kota on 4.3.93 at 1.00 A.M. (midnight) at MBS hospital, Kota. Shri Lal Chand, S.I., Police Station Gumanpura is the investigating officer of this case. He submitted application Ex.P 7 to the Chief Judicial Magistrate, Kota for authorising the Judicial magistrate for recording the dying declaration of Anar bai on 4.3.93 at 12.45 a.m. after obtaining the certificate from the Duty Doctor about the condition of Anar Bai. The CJM authorised Shri Govind Pd. Goyal, Special Judicial Magistrate (C.A.D.) Kota. Shri Goyal. In compliance of the order of CJM recorded the statement of Anar Bai (Ex.P 8). Smt. Anar Bai was identified by Shri Lal Chand. S.I. Ex.P 8 bears the thumb Impression of Anar bai at two places. The trial Court has placed reliance on It. 17. The CJM authorised Shri Govind Pd. Goyal, Special Judicial Magistrate (C.A.D.) Kota. Shri Goyal. In compliance of the order of CJM recorded the statement of Anar Bai (Ex.P 8). Smt. Anar Bai was identified by Shri Lal Chand. S.I. Ex.P 8 bears the thumb Impression of Anar bai at two places. The trial Court has placed reliance on It. 17. The learned counsel for Ex.P8 has raised almost the same objections as were raised for Ex,P6. According to him, before recording the statement the Judicial Magistrate has not taken the certificate from the doctor about the mental condition of Smt. Anar Bai. It is true that Shri Goyal did not obtain the certificate from the duty doctor himself before recording the Ex.P 8, but on the basis of the statements of Lal Chand S.I., Dr. Abbas Hussain (PW 13) and Shri Goyal (PW9), the objection taken by the learned counsel cannot be accepted. Shri Lal Chand, before submitting the application Ex.P7 to CJm for taking orders, has taken the certificate from PW 13 Dr. Abbas Hussain at 12.20 midnight, which is marked as K to L. It reads as follows:- "4.3.93-12.20 a.m. admitted in F.S.W.C. due to burns 80% Pt. Anar Bai w/o Shri Prabhu Lal at present is fit to give statement." S.D. Duty Doctor 12.20 a.m. 4.3.93 18. Dr. Abbas Hussain has stated that On the request of Police Station Gumanpura, he examined Anar Bai and found her fit to give statement, certificate to this effect was given by him on Ex.P 7 marked K to L which bears his signature. After authorisation, Shri Govind Pd. Goyal, Judicial Magistrate recorded the statement Ex. P8. Shri Goyal has stated that Anar Bai was admitted in the female surgical ward of the hospital, he recorded her statement, whatever stated by her was reduced in writing by him, thereafter the thumb impression of Anar Bai was taken at two places. About the condition of Anar Bai Shri Goyal has stated as under:- " tc eSaus c;ku ysuk 'kq: fd;k ml oDr Xywykst dh cksry p<+ jgh FkhA vkWDlhtu ugha nh jgh FkhA vukjckbZ nnZ ls rks djkg jgh Fkh ysfdu og chp&chp esa csgks'k ugha gks jgh FkhA ;g dguk xyr gS fd ftl oDr eSaus vukjckbZ dk c;ku ysuk vkjEHk fd;k rks mldh ekufld ,oa 'kkjhfjd fLFkfr c;ku nsus dh ugha FkhA " 19. Shri Goyal himself has not take the certificate from the duty doctor but he has given its explanation that Doctor had already given the certificate on Ex. P7. We see no reason to disbelieve the statement of Dr. Abbas Hussain and Shri Goyal. 20. The learned counsel has contended that when Anar Bai was admitted in the hospital she was having 90% burns, therefore, it was not possible for her to affix her thumb impression, It suggests that thumb Impression on Ex. P6 and Ex. P7 are not of Anar bai, therefore, no reliance can be placed on these documents. For this purpose, the statement of Dr. K.N. Gupta is Important. He has stated that thumb Impression of Anar Bai was taken in his presence on Ex. P6, he attested it. In cross-examination he has stated that: " mldk ck;ka gkFk dk vWaxwBk tyk gqvk ugha FkkA "Therefore, the argument of learned counsel cannot be accepted. 21. The learned counsel has further submitted that in Ex. P6 and Ex. P8 Anar Bai has levelled allegation on her father in law, and mother in law about the demand of dowry but it was not accepted by the trial Court, Mool Chand and Mangi Bai were acquitted, no reliance should be placed on these statements for accused appellant also. We have considered this aspect of the matter. It is true that on the basis of allegation made by Anar Bai in Ex. P 6, and Ex.P8 charge for the offence under Section 304-B IPC was framed against Mool Chand and Mangi Bai but after trial both were acquitted; the main reason was the statement of PW 1 Gora Bai who has stated that Mool Chand and Mangi lal have never demanded dowry directly from her (Gora Bai) but her daughter used to make the complaint about it. They were living separately, were not present at the time of incident. Therefore, due to insufficiency of evidence acquittal was recorded by the trial Court. If a part of dying declaration was not found proved, can be entire dying declaration be discarded? The Supreme Court in AIR 1974 SC 2188 has laid down that it is not correct to hold that if part of a dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The Supreme Court in AIR 1974 SC 2188 has laid down that it is not correct to hold that if part of a dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. Therefore, we are of the view that Ex. P6 and Ex. P8 cannot be discarded on this ground. 22. The learned counsel has contended that Ex. P8 was not recorded by the Magistrate in question and answer form, therefore, it is not reliable. Shri Goyal Judicial Magistrate has stated that whatever was said in reply to question put to Anar Bai was reduced in writing by him. Moreover, it cannot be a ground for rejection of the dying declaration, as held by Supreme Court in 1991 Cr.LR (SC) 162 Padmaben Shamabhai Patel v. State of Gujarat that failure to record dying declaration in question and answer form does not reduce its probative value. 23. The learned counsel has further submitted that deceased was living happily with her husband. At the time of occurrence, appellant was not present in the house, when he returned from the market he found that Anar Bai was lying in burnt condition and neighbours have already assembled there. The first version of the incident was given by Anar Bai to DW 1 Babu Khan and according to that it was an accidental fire. But the trial Court has discarded the defence version without any cogent reasons. In the circumstances possibility of accidental fire cannot be ruled out. It appears that afterwards under the influence of other persons including her mother, accused has been falsely implicated by Anar Bai. He has also drawn our attention towards the statement of DW2 Bhola Ram. 24. The appellant has said nothing about the incident in his statement recorded under Section 323 Cr.P.C. by the trial Court, except that he was not present in the house that the time of incident. He was in the market. We have considered the statement of DW 1 Babu Khan and DW 2 Bhola Ram. Bhola Ram has said nothing about the incident. He was in the market. We have considered the statement of DW 1 Babu Khan and DW 2 Bhola Ram. Bhola Ram has said nothing about the incident. The statement of Babu Khan cannot be accepted because according to him when he reached at the place of occurrence (room) he found that people were trying to extinguish fire, he saw Pump Pressure Stove in the room whereas; on 4.3.93 when the site was Inspected by the Investigating officer, a lick stove was found which was seized as mentioned in Ex. P3. It has also come in evidence that stove was full with kerosene oil. An empty tin was lying on a shelf of the room. He also found smell of the kerosene oil on the floor of the room, the above facts are sufficient to discard the statement of Babu Khan. Similarly, we are of the opinion that Ex.P 6 and Ex.P 8 are not tutored statement particularly in the light of the statement of Gora Bai, she has said nothing about the conduct, behaviour of the accused. The presence of any other relative of the deceased is not proved, moreover, Manga Bai was present in the hospital when Gora Bai reached there. Therefore, we are unable to accept that under the influence of some person, Anar Bai has falsely implicated her husband. In our opinion, statements of Anar Bai Exs. P6 and P8 are her natural statements, there is no inconsistency or infirmity and the statements are reliable. 25. We are satisfied that the dying declaration presents truthfulness of the occurrence in which the deceased received extensive burns when the accused after pouring kerosene oil set fire her Sari from the burning stove. The cause of her death was extensive burns all over the body which were sufficient in the ordinary course of nature to cause death. 26. The next question is with regard to what offence is made out. Smt. Anar Bai, has stated in her Parcha Bayan and in the statement recorded by the Judicial Magistrate (Ex. P6 and Ex. P8) respectively that she was cooking, food in the room, Prabhu Lal came, poured kerosene oil and set her Sari on fire from stove. 26. The next question is with regard to what offence is made out. Smt. Anar Bai, has stated in her Parcha Bayan and in the statement recorded by the Judicial Magistrate (Ex. P6 and Ex. P8) respectively that she was cooking, food in the room, Prabhu Lal came, poured kerosene oil and set her Sari on fire from stove. It has been held by Hon'ble the Supreme Court in B. Venkateshwarlu v. State of A.P that "when one of the accused poured kerosene on the boy after which the appellant lighted a match and set fire to his clothes, the intention was to cause death of that boy and there was no doubt about that intention." 27. Accordingly, we dismiss the appeal. The conviction and sentence recorded by the learned Additional Sessions Judge No. 3, Kota in Sessions Case No. 94/93 are confirmed. *******