JUDGMENT 1. - Accused- appellant Uka Ram was charged by learned Sessions Judge u /ss. 302 & 498-A IPC for committing murder of his wife Smt. Pravina and his 16 months old daughter Kumari Dharmista by sprinkling kerosene oil and getting both of them on fire by throwing lighted match sticks on their persons because his wife failed to meet his unlawful dowry demands. 2. The prosecution story according to the written report Ex. P/1 lodged by Nanji, PW 1 which was reduced into writing at Police Station Bhinmal under sections 307, 324 & 498-A IPC as Ex. 17 was that on 6.5.1994 he was working with Tara Ram PW 2 at his 'Chakki'. In the night between 11.30 p.m. to 12.00 p.m. they heard commotion from the side of house of accused-appellant Uka Ram to the effect "Mary Re, Mary'Re" which means being killed, being killed. After hearing the aforesaid commotion both the abovenamed witnesses came out from their work place and saw that Smt. Pravina wife of Uka Ram was coming out from the house of Uka Ram in blaze of fire. First informant Nanji, PW 1 shouted to call Patwariji, Lal Singh PW 3, in the meantime deceased Smt. Pravina threw away her clothes which she was wearing and sat naked on Lamachohta. Meanwhile accused-appellant Uka Ram also came out from his house abusing his wife. First-informant PW 1 asked from deceased Smt. Pravina as to who set her on fire upon which she told him in presence of witnesses that her husband Uka Ram has set on fire after sprinkling kerosene oil on her. 3. During the course of investigation Smt. Pravina died on 8.6.1994 and Kumari Dharmista died on 2.7.1994 in hospital. 4. On the basis of aforesaid information, investigation commenced and the accused-appellant was challenged before Additional Chief Judicial Magistrate, Bhinmal who committed the case for trial before learned Sessions Judge, Jalore under sections 302, 326 & 498-A IPC. 5. The learned Sessions Judge framed charges against accused- appellant under sections 302 & 498-A of IPC. The accused-appellant denied aforesaid charges and claimed trial. 6. 5. The learned Sessions Judge framed charges against accused- appellant under sections 302 & 498-A of IPC. The accused-appellant denied aforesaid charges and claimed trial. 6. The prosecution examined PW 1 Nanji, PW 2 Tara Ram, PW 3 Lal Singh, PW 4 Smt. Pabu, PW 5 Kangararam, PW 6 Masra Son of Tikma, PW 7 Jagdish, PW 8 Ramesh, PW 9 Talka Q Tilokchand, PW 10 Masra, father of deceased, PW 11 Prabhu, PW 12 Manohar Lal, PW 13 Madan Singh, PW 14 Sawaram, PW 15 Medical Jurist Dr. Gopal Chand Gandhi, PW 16 Dr. Pramod Saxena, PW 17 Bhanwra, PW 18 Ram Lal, PW 19 Bhanwar Singh, PW 20 Dr. K.C. Dube, PW 21 Jamnadas Thanvi and produced Ex. P/1 to Ex. P/27 in support of the prosecution story. 7. The accused-appellant in his statement u /s. 313 Cr.P.C. pleaded that on 6.5.1994 between 11.30 p.m. to 12.00 p.m. he was sleeping outside of his house in Varanda (Otla) whereas his wife and his daughter Kumari Dharmista were sleeping inside the house, After hearing weeping of his daughter, he went inside his house and saw his daughter in state of burning. He made an attempt to save the life of his daughter. He thought that his wife deceased Pravina had burnt his daughter hence he started to abuse her upon which she went outside the house on 'Chabutra'. She was also burning. He brought his mother on the scene of occurrence who was living separately. He further stated that he also went to hospital. It is alleged by accused-appellant that his wife Smt. Pravina was insane. Accused-appellant also stated that he had gone several times to Palampur for treatment of her insanity. 8. It is true that in his statement under section 313 Cr.P.C. the accused- appellant has neither disclosed the name of the Doctor nor he produced the doctor who is alleged to have medically treated deceased Pravina for her insanity. In support of aforesaid allegation even prescriptions have not been produced. 9. It is pertinent to mention here that accused-appellant in his statement under section 313 Cr.P.C. has admitted the correctness of statements of PW 15 Dr. Gopal Chand Gandhi, PW 16 Dr. Pramod Saxena, PW 20 Dr. K.C. Dube and injury reports Ex. P/13 & P/14 together with post-mortem report Ex. P/12 and Ex. P/15 of deceased Pravina and deceased Dharmista. 10. Gopal Chand Gandhi, PW 16 Dr. Pramod Saxena, PW 20 Dr. K.C. Dube and injury reports Ex. P/13 & P/14 together with post-mortem report Ex. P/12 and Ex. P/15 of deceased Pravina and deceased Dharmista. 10. Although accused-appellant in his statement under section 313 Cr.P.C. expressed his desire to adduce evidence in support of his defence but inspite of sufficient opportunity given to him, he did not adduce any defence witness. 11. The learned trial Court by its impugned judgment after hearing learned Public Prosecutor and defence counsel convicted and sentenced accused-appellant Uka Ram under section 302 IPC for imprisonment to life and a fine'of Rs. 500/- in default of payment of fine to further undergo simple imprisonment for three months and under section 498-A IPC for one year rigorours imprisonment and a fine of Rs. 200/- and in default of payment of fine to further undergo 45 days simple imprisonment. 12. Feeling aggrieved against the aforesaid impugned judgment dated 6.12.1995 passed by learned Sessions Judge, accused- appellant appeals before this Court through Superintendent, Central Jail, Jodhpur. 13. Main thrust of argument of learned atnicus curiae is on the point of dying declaration recorded by Magistrate PW 21 Shri Jamnadas Thanvi. In this connection he submitted firstly, that the learned Sessions Judge has committed serious error of law in convicting accused-appellant on the basis of dying declaration Ex. P/27 alone recorded by PW 21 Jamnadas Thanvi, ACJM, Bhinmal. Secondly, that the dying declaration Ex. P/27 cannot be acted upon without corroboration and thirdly that there is no medical fitness certificate issued by a Doctor to the effect that the injured Smt. Pravina was physically and mentally in possession of her reasons to make a lucid statement and lastly the.dying declaration is not recorded in question answer form. 14. The learned Public Prosecutor Mrs. Chandralekha vehemently opposed the aforesaid argument advanced on behalf of learned amicus curiae. It is urged by her that accused-appellant is not convicted on the basis of dying declaration Ex. P/27 alone but finding of guilt recorded by learned Sessions Judge in the present case is corroborated by overwhelming eye-witnesses account, circumstantial evidence as well as documentary evidence on record. The learned Public Prosecutor invited our attention towards Ex. P/25 FIR No. 77/94 lodged by deceased Pravina under sections 498-A & 323 IPC against accused-appellant and his mother PW 4 Smt. Pabu at Police Station Bhinmal, Dist. The learned Public Prosecutor invited our attention towards Ex. P/25 FIR No. 77/94 lodged by deceased Pravina under sections 498-A & 323 IPC against accused-appellant and his mother PW 4 Smt. Pabu at Police Station Bhinmal, Dist. Jalore on 17.4.1994 at 6.00 p.m. for assaulting her and confining her in a room after tying her with rope. It is submitted by learned Public Prosecutor that it is evident from the aforesaid FIR Ex. P/25 that at the instigation of his mother the accused-appellant under influence of liquor used to beat her mercilessly for bringing more dowry. Learned Public Prosecutor in support of her submission also invited our attention towards statements of PW 10 Masra, father of deceased and PW 11 brother of deceased Prabhu which lead towards an irresistible conclusion that prior to the incident on 6.5.1994, the accused-appellant used to beat his wife deceased Pravina mercilessly for bringing more dowry. 15. According to learned Public Prosecutor, conviction can be based on dying declaration alone provided the Court is satisfied that it is true and voluntary. In the present case, PW 21 lamina Das Thanvi, ACJM Bhinmal who recorded the dying declaration has categorically deposed before the learned trial Court that prior to recording the dying declaration of deceased he has obtained mental and physical certificate of deceased Pravina from PW 16 Dr. Pramod Saxena according to which the deceased was in fit state of mind to give the statement. In support of her aforesaid submission she placed reliance on Ex. P/26 letter from S.H.O., P.S. Bhinmal to ACJM, Bhinmal requesting him to record the dying declaration of deceased Pravina. It is evident from Ex. P/26 that before recording the dying declaration of deceased Pravina, the Magistrate PW 21 named above has obtained medical certificate from PW 16 Dr. Pramod Saxena to the effect that deceased was in fit state of mind to give her statement which is popularly known as dying declaration. 16. Before entering into 'the merit of the case and before making analytical discussion of oral, circumstantial and documentary evidence on record, we think that it would be expedient in the interest of justice to begin with the proposition of law regarding dying declaration as laid down by their Lordships of the Supreme Court as well as of our own High Court. 17. 17. In the case of Khushal Rao v. State of Bombay reported in AIR 1958 SC 22 in para 17 their Lordships have held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once the Court has come to the conclusion that the dying declaration was a truthful version as to the circumstances of the death and the assailants of the victim, then there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects and testing its veracity comes to the conclusion that it suffers from an infirmity, then, without corroboration, it cannot form the basis of conviction. 18. In the case of Munna Raja & Anr. v. State of M.P. reported in AIR 1976 SC 2199 their Lordships of the Supreme Court specifically ruled in para 11, which reads as under:- "We, might, however, mention before we close that the High Court ought not to have placed reliance on the third dying declaration Ex. P/2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded the statement had undoubtedly taken the precaution of keeping a doctor present and it also appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating Officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have, therefore, excluded from our consideration the dying declaration Ex. P/2 recorded in the hospital." 19. In the case of Navratan Mal Alias Babu v. State of Raj. We have, therefore, excluded from our consideration the dying declaration Ex. P/2 recorded in the hospital." 19. In the case of Navratan Mal Alias Babu v. State of Raj. reported in 1985 Cr.L.R. (Raj.) 644 it is ruled by Division Bench of this is Court that the statement recorded after seeking information that the injured was in a fit state of mind to make statement in narration instead of question and answer form cannot be discarded. In case of Navratan Mal alias Babu (supra) it is further ruled that if the dying declaration is found to be truthful then it is sufficient to base conviction on such dying declaration. In the aforesaid case after analytical discussion the Division Bench of this Court arrived at a conclusion that three dying declarations made to different witnesses to be trustworthy and as such, appeal against the conviction was dismissed and judgment of conviction and sentence passed by the trial Court was affirmed. 20. The aforesaid question again came up for consideration before Division Bench of this Court in case of Bashir Shah & Ors. v. State of Raj. reported in 1994 RCC 553 in which one of us was a member. In case of Bashir Shah & Ors. (supra) the Division Bench after surveying some of the decisions of the Supreme Court and some of the decisions of Division Bench of this Court summarised the law on the point of dying declaration in para 26 which is reproduced here in below for ready reference:- "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx. (A) Ordinarily, whenever an injured is in a precarious condition, the investigating officer should requisition the services of a Magistrate for recording the dying declaration. In fact, the investigating officers are naturally interested in the success of investigation and practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. [ AIR 1976 SC 2199 ] (B) There is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration. [ AIR 1976 SC 2199 ] (C) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (V.S. Mour v. State of Maharashtra, AIR 1978 SC 519 ). [ AIR 1976 SC 2199 ] (C) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (V.S. Mour v. State of Maharashtra, AIR 1978 SC 519 ). (D) For this purpose, the Court has to apply strictest scrutiny and has to be on guard to ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had opportunity to observe and identify the assailant and was in fit state of mind to make declaration. [AIR 1976 SC 2194] (E) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [AIR 1974 SC 3321 (F) In a criminal case, much less a murder case, the investigation should be conducted in such a manner that there is no room for entertaining a doubt about a fair investigation. The fair investigation is a fundamental principle which may enhance the reliability of a dying declaration and may reduce its reliability if Court is not satisfied about its fairness. (G) Suspicion about truthfulness should never be substituted as evidence in case of dying declaration keeping in view the fact that the statement of the deceased made in the precarious condition of his health is made in the absence of the accused- appellant, who had no opportunity of testing the veracity of the statement called in legal terminology as "dying declaration by cross-examination." (H) While making the dying declaration, the sole basis of conviction and sentence by the Courts of law, it must be kept in view that the prosecution story may not only be true but it must be true and between may be true and must be true, there is a large gap, which is to be travelled by the prosecuting agency by adducing unimpeachable and reliable evidence. (I) The Rajasthan Police Rules, 1965 are quite elaborate in laying down the procedure for recording the FIR and consequent investigation. Under these Rules, Chapter V of the Rules of 1965 prescribes for recording of the FIR. Chapter VI deals with investigation. Chapter VII deals with arrest, escape and custody. Chapter VII deals with prosecution and Court duties. Similarly, in Chapter VI of the Rules of 1965, a complete procedure is given as to how the dying declaration is to be recorded." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx_xxx. 21. Chapter VI deals with investigation. Chapter VII deals with arrest, escape and custody. Chapter VII deals with prosecution and Court duties. Similarly, in Chapter VI of the Rules of 1965, a complete procedure is given as to how the dying declaration is to be recorded." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx_xxx. 21. Now, keeping in view the aforesaid test of reliability we propose to critically examine the testimonial value of statement of PW 21 Jamnadas Thanvi, ACJM Bhinmal, who has recorded the dying declaration of deceased Smt. Pravina Ex. P/27. The dying declaration recorded by PW 21 is reproduced here in below:- " esjk ifr Hkhueky vk;k gqvk Fkk tgka ls 'kjkc ysdj o ihdj vk;kA 'kke dks N% cts vk;k] fQj jksVh [kkbZ o FkksM+h nsj cSBk jgk] fQj eq>s ekjh] cgqr ekjhA esjs gkFk esa Nksjh Fkh o ?kklysV fNM+dh fn;k Nksjh tyh] mlus cq>kus yxh o eSa Hkkx dj ckgj vkbZA eSa Hkkx dj diM+s Qsad dj ckgj vkbZA fQj lkjs xkWao okyksa dks xkfy;ka cksyus yxk esjk ifrA ?kj esa vkSj ml le; esjs ifr ds vykok dksbZ ugha FkkA nk: ihdj esjs ifr us eq>s tyk;k gSA vkidks fdlh vksj ds fy, dqN dguk gS\ ' ugha ' A " 22. Below the aforesaid dying declaration given by deceased there is signature of PW 21 Jamnadas Thanvi. The dying declaration also bears the thumb impression of deceased. Although it is not written below the thumb impression to whom it belongs but in his statement PW 21 Jamnadas Thanvi has categorically stated on oath that this thumb impression was affixed by deceased Smt. Pravina. We see no reason to disbelieve the sworn testimony of PW 21. From the aforesaid dying declaration it is cEystal clear that the deceased Smt. Pravina has clearly stated in her dying declaration that her husband Uka Ram has caused burn injuries on her person and on the person of her daughter Kumari Dharmista by sprinkling kerosene oil on them. 23. The aforesaid dying declaration Ex. P/27 is also supported by the utterances of deceased Pravina soon after the incident. From perusal of Ex. P/1, written report lodged by Nanji PW 1 which was reduced into writing at Police Station Bhinmal Ex. P/17 it is evident that Smt. Pravina was crying "Mary Re, Mary Re" which means she is being killed while she was coming out from house of accused-appellant. From perusal of Ex. P/1, written report lodged by Nanji PW 1 which was reduced into writing at Police Station Bhinmal Ex. P/17 it is evident that Smt. Pravina was crying "Mary Re, Mary Re" which means she is being killed while she was coming out from house of accused-appellant. From the statement of accused-appellant under section 313 Cr.P.C. and from the statement of PW 4 his mother Smt. Pabu it is further evident that father of accused-appellant had already wired and his widowed mother was living separately at the time of occurrence. It is also established from the statement of accused-appellant and from the statement of his mother PW 4 that at the time of incident in the house of accused-appellant there were only three members i.e. one his 16 months deceased daughter Kumari Dharmista, his wife Smt. Pravina deceased and accused- appellant. The aforesaid spontaneous utterances of deceased 'Smt. Pravina are admissible in evidence as envisaged u /s. 6 of the Indian Evidence Act. According to Section 6 of the Indian Evidence Act, a transaction consistent of physical acts and words accompanying such physical acts whether spoken by the person during such act, the person to whom they are done or any other person present, such utterances are admissible in evidence if that forms part of the transaction. In the present case, the utterances 'Mary Re, Mary Re' which means she is being killed uttered by deceased Pravina while coming out from the house of accused-appellant is admissible as a part of res gestae within the meaning of Section 6 of the Evidence Act. 24. It is stated by prosecution witnesses.c1 oath that while coming out from the house of accused-appellant Smt. Pravina was in burnt condition and Uka Ram accused-appellant also came out from the house abusing her. It is shocking to note that accused-appellant instead of extinguishing the fire from the person of deceased Pravina started to abuse her. The aforesaid conduct of accused-appellant points out towards his guilt. He has given explanation in his statement under section 313 Cr.P.C. that he started to abuse his wife as he thought that it is she who had set on fire his daughter Kumari Dharmista. The aforesaid conduct of accused-appellant points out towards his guilt. He has given explanation in his statement under section 313 Cr.P.C. that he started to abuse his wife as he thought that it is she who had set on fire his daughter Kumari Dharmista. The aforesaid explanation given by accused-appellant is not acceptable to us for the simple reason that if he made an attempt to save the life of his daughter then why he did not make an attempt to save the life of his wife deceased Smt. Pravina ? 25. In view of the aforesaid facts and circumstances, we have no hesitation to hold that the aforesaid utterances made by deceased Smt. Pravina were spontaneous utteran-ces, pointing out that it was accused-appellant who set her on fire because except him there was no other person in the house at the time of incident. We are also satisfied that in order to save her life from accused- appellant helpless deceased ran away from the house to the open and an argument contrary to it is not acceptable. 26. We have gone through all the relevant statements circumstantial evidence and documents on record with the assistance of 16/ ;led counsel for both the sides. We are in full agreement with the learned Sessionsinige in appreciating the witnesses examined by prosecution evaluating the circumstantial evidence and testimonial, documents produced by it in support of prosecution story including dying declaration Ex. P/27. The learned Sessions Judge has given cogent and convincing reasons for believing the statement given on oath by PW 21 Jamnadas Thanvi, ACJM, Bhinmal and PW 3 Lal Singh who is eye-witness in the case. 27. The argument of learned arnicus curaie to the effect that prosecution has failed to prove that deceased Pravina was fit physically and mentally to give dying declaration Ex. P/27, is not acceptable. The argument of learned amices curiae that in the present case there is no medical fitness certificate issued by the doctor to the effect that injured Smt. Pravina was physically and mentally in possession of her reasons to make a lucid statement has no leg to stand in view of medical certificate Ex. P/26 produced by the prosecution and duly proved by PW 21 Jamnadas Thanvi. The learned Sessions Judge has given cogent and convincing reasons in believing Ex. P/27, Ex. P/26 produced by the prosecution and duly proved by PW 21 Jamnadas Thanvi. The learned Sessions Judge has given cogent and convincing reasons in believing Ex. P/27, Ex. P/26 and deposition made by Magistrate PW 21 with which we are at one. 28. The bottom line argument of learned amicus curiae that the dying declaration Ex. P/27 is not admissible as it is not recorded in question answer form, is not acceptable to us in view of the decision rendered by Division Bench of this Court in case of Navratan Mal alias Babu (supra). 29. In our considered opinion, the dying declaration Ex. P/27 given by deceased Smt. Pravina before PW 21 is a truthful version as to the circumstances of the death and about author of the burn injuries of the victims and as such Ex. 27 alone is sufficient in the present case to base conviction without corroboration. In the present case, the dying declaration Ex. P/27 is also corroborated by independent eye-witness Lal Singh PW 3. The circumstantial evidence discussed here in above also leads towards an irresistible conclusion that it was accused-appellant who has set on fire deceased Smt. Pravina and Kumari Dharmista after sprinkling kerosene oil on them leading to their homicidal death amounting to murder and an arguinent contrary to it is not acceptable to us. 30. In the present case finding of guilt recorded by learned Sessions Judge against accused-appellant is based on analytical discussion of eye-witnesses account, circumstantial evidence and documentary evidence and also dying declaration Ex. P/27 with which we are at one. The sentence awarded by the learned Sessions Judge is also just and proper and as such we decline to interfere with the same.As a result of aforementioned discussion, the instant appeal lacks merits and it is hereby dismissed. The finding of guilt recorded by learned Sessions Judge and sentence awarded to accused-appellant by his impugned judgment dated 6.12.1995 is hereby affirmed. Accused-appellant is in jail and he is directed to serve out his remaining sentence awarded by learned Sessions Judge.Appeal dismissed. *******