JUDGMENT - R.K. BATTA, J.:---The appellant was tried for the murder of his wife under section 302 of I.P.C. The appellant was married with deceased Yashoda in May 1992 and according to the prosecution case the appellant was ill-treating the deceased Yashoda. On 16-10-92 the appellants picked up quarrel with the deceased and assaulted her. In the after noon at about 4.00 p.m the appellant gave her a matchbox and told the deceased that if she came from really a good family, she should die. Then the appellant asked the deceased to prepare parched rice (Alupoha). When she was burning the stove for preparing tea and Aluphoa, appellant poured kerosene form a tin on her as a result of which flames of the stove erupted and the person of the deceased caught fire. The deceased suffered 86% burns. Her dying declaration was recorded by P.W. 9 Special Judicial Magistrate on 18-10-92 at 9.15 p.m. after the Medical Officer certified that the deceased was fit to make statement. The deceased died on 21-10-92. 2.The prosecution in all examined 15 witnesses in support of the charge. The trial Judge accepted the Dying Declaration as well as oral statement made by the deceased as to her cause of death to her brother P.W. 3 Ajay and her mother P.W. 5 Antobai. The appellant was convicted for murder under section 302 of I.P.C and was sentenced to imprisonment for life as also fine of Rs. 1000/- in default R.I for one month. The appellant challenges his conviction and sentence in this appeal. 3.The prosecution case mainly rests upon the Dying Declaration recorded by Special Judicial Magistrate P.W. 9, oral declaration of the deceased to her brother Ajay and mother Antobai as also the findings of the Chemical Analyser in relation to the clothes of the appellant and the deceased. 4.The admissibility of the Dying Declaration rests on the principle that sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The Dying Declaration is a substantive piece of evidence which requires conscious scrutiny, since it is not subjected to cross-examination. It is based on the principle Nemo moriturus praesumuntur mentiri. It means that a man will not meet his maker with a like in his mouth. The Dying Declaration is a substantive piece of evidence which requires conscious scrutiny, since it is not subjected to cross-examination. It is based on the principle Nemo moriturus praesumuntur mentiri. It means that a man will not meet his maker with a like in his mouth. The law relating to Dying Declaration is now well settled and is found in catena of the judgement of the Apex Court starting from the case of (Khushalrao v. State of Bombay)1, A.I.R. 1958 S.C. 22. (State of U.P. v. Ramsagar Yadao)2, A.I.R 1985 S.C. 416, (Padmaben Shamalbhai Patel v. State of Gujrath)3, 1991(1) J.T. 205, (Paniben v. State of Gujrath)4, A.I.R 1992 S.C. 1817, (State of Orissa v. Bansidharsing)5, 1996(2) S.C.C. 1994. It would suffice to note down the principles summarised by the Apex Court on the subject in the case of Paniben v. State of Gujrat (supra): (i)It is neither a rule of law nor of prudence that a Dying Declaration cannot be acted upon without corroboration (Mannu Raja v. State of M.P.)6, 1976(2) S.C.R. 764 (ii)If the Court is satisfied that the Dying Declaration is true and voluntary it can base a conviction on it, without corroboration State of U.P v. Ram Sagar Yadav, A.I.R. 1985 S.C. 416 (Ramavati Devi v. State of Bihar)7, A.I.R. 1983 S.C. 164 ; (Ajit Singh v. State of Punjab)8, 1998 Cri.L.J. 3460 (P. H). (iii)The Court has to scrutinise the Dying Declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assistants and was in a fit state to make the declaration (Rama Chandra Reddy v. Public Prosecutor)9, A.I.R. 1976 S.C. 1994 . (iv)Where a Dying Declaration is suspicious it should not be acted upon without corroborative evidence (Rasheed Beg. (iv)Where a Dying Declaration is suspicious it should not be acted upon without corroborative evidence (Rasheed Beg. v. State of M.P.)10, 1974(4) S.C.C. 264 (v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected (Kake Singh v. State of M.P.)11, A.I.R. 1982 S.C. 1021 (vi)A Dying Declaration which suffers from infirmity cannot form the basis of a conviction (Ram Manorath v. State of U.P.)12, 1981 S.C.C. (Cri.) 281 (vii)Merely because a Dying Declaration does not contain the details as to the occurrence, it is not to be rejected (State of Maharashtra v. Krishnamurthi Laxmipati Naidu)13, A.I.R. 1981 S.C. 617 (viii)Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (Surajdeo Oza v. State of Bihar)14, A.I.R. 1979 S.C. 1505 (ix)Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration took up the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail (Nanahau Ram v. State)15, A.I.R. 1988 S.C. 912. (x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P v. Madan Mohan)16, A.I.R. 1989 S.C. 1519 5.As we have already pointed out that the dying declaration requires close scrutiny, and as such we shall first deal with the dying declaration made by the deceased before the Special Judicial Magistrate (P.W. 9). The Special Judicial Magistrate (P.W. 9) stated that he had received a copy of an order of C.J.M. Nagpur for recording dying declaration of the deceased and he accordingly went to the Medical College on 18-10-92 and given requisition to the house officer of the ward to ascertain whether the patient was in fit condition to give statement. This requisition was made by the Special Judicial Magistrate at 9.00 p.m. and Dr. Kulkarni P.W. 13 certified at 9.15 that patient was fit to give statement. P.W. 13 Dr. This requisition was made by the Special Judicial Magistrate at 9.00 p.m. and Dr. Kulkarni P.W. 13 certified at 9.15 that patient was fit to give statement. P.W. 13 Dr. Kulkarni has stated that she had received the said requisition Exhibit 39 at 9.00 p.m after which she had examined the patient and found that Yashoda (deceased) was fit to give statement and as such she had made endorsement on requisition Exhibit 39. She has had further deposed that she examined the patient thoroughly and besides examined the level of consciousness of the patient, as well as recorded the vital signs of the patients. Then she found that the patient was fully conscious and well oriented regarding time and also that the vital signs by the pulse of the patient, respiration etc., were found to be in order. She certified Yashoda as fit to give statement. Thereafter, Special Judicial Magistrate P.W. 9 recorded statement of Yashoda. The recording of the dying declaration started at 9.15 p.m and was completed at 9.50 p.m. The statement of Yashoda has been exhibited as Exhibit 40. In her statement, she has stated that in the morning her husband namely the appellant picked up quarrel on the pretext that she was peeping at everybody, that all sewing knowing girls are of bad characters upon which the deceased asked the appellant to give training of tailoring (sewing) to his sister. The appellant thereupon assaulted her. She has further stated that at about 4.00 p.m. the appellant gave her a match box and told her that if she came from really good family she should die. This was an act of incitement on the part of the appellant to the deceased to drive her to commit suicide. The appellant then asked her to prepare tea and Alupoha. As she was burning the stove for preparing the same, the appellant came from behind and poured kerosene over her, as a result the flames of stove erupted and the deceased caught fire. She has further stated that later the appellant has placed quilt on her person. The account given by the deceased in her dying declaration is not only found to be trustworthy, but inspires confidence and she has even truthfully stated that after she caught fire, her husband had placed a quilt over her. She has further stated that later the appellant has placed quilt on her person. The account given by the deceased in her dying declaration is not only found to be trustworthy, but inspires confidence and she has even truthfully stated that after she caught fire, her husband had placed a quilt over her. 6.Learned Advocate for the appellant challenged the dying declaration on the ground that the doctor had not certified at the end of the certificate that the deceased was fit to make a statement. Dr. Kulkarni P.W. 13 had after careful examination recorded her finding before the dying declaration was recorded. She found that the patient was conscious and well oriented and her vital signs were functioning normally. The Special Judicial Magistrate P.W. 9 has also categorically stated that the deceased was fully conscious. He also stated that she was badly burnt and as such her thumb impression could not be taken on the dying declaration. The Special Judicial Magistrate stated in the dying declaration, that the deceased was fully conscious during the recording of her statement. In view of the above, we do not find any reason whatsoever to discard the dying declaration made by the deceased. 7.Learned Advocate for the appellant urged before us that in the requisition Exhibit 38 made by police to the Chief Judicial Magistrate, it was stated that when she was preparing breakfast, she stood up for taking turmeric tin and at that time, her lap of saree fell on the stove as a result of which she sustained burn injury. Source of this information, has not been disclosed in the said requisition. It appears that the requisition has been made on the strength of information given to him by the appellant and his relation, which would be natural for covering up the incident. Therefore, it is not possible to disbelieve the dying declaration on the basis of the said requisition. 8.The learned Advocate for the appellants tried to challenge the Dying Declaration on the ground that the deceased was tutored by her brother and mother and that they had not reported of oral Dying Declaration made to them to the police. It is but natural that when somebody's sister or daughter is admitted in the hospital with burn injuries that, they would not only call on her, but also try to find what has exactly happened. It is but natural that when somebody's sister or daughter is admitted in the hospital with burn injuries that, they would not only call on her, but also try to find what has exactly happened. Therefore, the conduct of the close relations in talking to the deceased on this count can not be used against them, who are naturally interested in bringing to the book the real culprit. The trial Court was conscious of all this and also that the Dying Declaration requires close scrutiny. The trial Court has believed the Dying Declaration and we have no reason whatsoever to take a different view of the matter. 9.The learned Advocate for the appellant tried to urge that the Dying Declaration can be falsified by the spot panchanama. He pointed out that there is only one door in the kitchen and there is no possibility of the appellant coming from behind and pouring kerosene. In this respect he sought to place reliance on the testimony of panch P.W. 8. However, we find that the statement or the panchanama does not in any manner support the conclusion sought to be urged by the learned Advocate for the appellant before this Court and we do not find any merit in this submission. 10.It is also pertinent to note that admittedly only the appellant and the deceased were present at the time of incident. When two persons are alone, it is the duty of the person who has survived and more so, when the said person is husband of the deceased, to explain as to how the deceased caught fire. In the statement under section 313 of Criminal Procedure Code, the appellant has given no explanation whatsoever as to how the deceased caught fire, though various theories have been put up during the arguments that the deceased caught fire while she was preparing breakfast on the stove. It is sought to be contended that it was a case of accidental fire, but the evidence on record, especially the Dying Declaration as well as the other circumstances on record established beyond any doubt that the death of the deceased was homicidal in nature. The clothes of the accused and the deceased had been attached and sent to Chemical Analyser. The clothes of the accused and the deceased had been attached and sent to Chemical Analyser. The report of the Chemical Analyser Exhibit 8 shows that on (Exhibit 3) partly burnt clothes pieces and also bed sheet (Exhibit 4) there were positive for kerosene residue. Likewise the report of Chemical Analyser Exhibit 10 shows that the torn bengali shirt and torn full-pant of the appellant had shown positive results for the detection of kerosene. These reports are not consistent with the accidental theory put forward by the appellant, but rather consistent only with the story put forward by the prosecution that the appellant had poured kerosene on the deceased and that is why the residues of kerosene were found in the clothes of the deceased and in the partly burnt clothes of the deceased, bed sheets, as also the clothes of the appellant accused. The report of the Chemical Analyser, therefore, completely supports the prosecution version. 11.In addition, there are oral declarations made by the deceased to her brother and her mother. It is but natural that the deceased would disclose as to how incident took place to her near relations. P.W. 3 Ajay who is the brother of the deceased has narrated how the deceased was ill-treated prior to the incident and when he met her in the hospital, she told him that while she was preparing Alupoha, the appellant poured kerosene on her, as a result of which she was burnt. In cross-examination, he stated that he told the police that the deceased told him that when she was preparing Alupoha, accused came from backside and poured kerosene on her. He was confronted with his police statement, but the confrontation has not been properly put; nor the Magistrate has properly recorded the confrontation. P.W. 3 Ajay had categorically stated in his statement before the police which is on record that Yashoda had categorically stated that she was burnt. Therefore, the misleading confrontation with which this witness was confronted can not ensure to the benefit of the appellant. 12.P.W. 5 Antobi, the mother of the deceased has also stated that the deceased had told her that the accused asked her to prepare Tea and something for breakfast and when she was preparing the same accused poured kerosene on her and as a result of which she caught fire and burnt. 12.P.W. 5 Antobi, the mother of the deceased has also stated that the deceased had told her that the accused asked her to prepare Tea and something for breakfast and when she was preparing the same accused poured kerosene on her and as a result of which she caught fire and burnt. To her also confrontations were not properly put; nor the trial Court took care while recording confrontation in her police statement. Before the police she had categorically stated that her daughter had told that when she was preparing breakfast, the appellant came from behind and poured kerosene oil on her person as a result of which the flames erupted and she caught fire. The defence also tried to confront this witness with her statement before the Special Judicial Magistrate. Once again, confrontation was not put properly by the defence nor the trial Judge took care to record the confrontation properly. P.W. 5 had categorically stated before the Special Judicial Magistrate that her younger daughter Yashoda had told her that her husband namely Ashok set her on fire and that he had poured kerosene on her person. Inspite of that the confrontation was not properly put and advantage was tried to be taken by putting a compound statement, part of which was stated by her and part of which was not stated by her. This method of confrontation by the defence as also the manner in which it has been recorded by the trial Judge has to be condemned, since it does not give correct picture of the statement made by a witness. The trial Court should have exercised proper care and caution in confronting the witnesses regarding their statements before the police/Magistrate and should not have acted in a causal manner in which it has been done in this particular case. 13.The statement of P.W. 3 Ajay and P.W. 3 Antobai had been accepted by the trial Court who had the benefit of seeing demeanor of the witnesses and we have no reason to take a different view of the matter. 14.Lastly, the learned Advocate for the appellant urged before us that the offence at the most may fall under section 304 Part I of I.P.C. and that since the appellant has already undergone 8 1/2 years of imprisonment, he should be released. 14.Lastly, the learned Advocate for the appellant urged before us that the offence at the most may fall under section 304 Part I of I.P.C. and that since the appellant has already undergone 8 1/2 years of imprisonment, he should be released. We do not find any merit in this submission of the learned Advocate for the appellant, as well. Before pouring kerosene the appellant had tried to instigate the deceased to commit suicide on her own; he not only picked up quarrel on the pretext, but he even tried to tell the deceased by giving a match box in her hand that if she came from really a good family, she should die. An intention to kill is thus clear. The fact that the appellant suffered minor burn on the finger rather than supporting the defence case supports the prosecution case about the involvement of the appellant in the crime. The fact that subsequently the appellant put a quilt/bedsheet over the deceased would not also in the circumstance be of any help to the appellant, since the evidence on record is that the deceased had suffered 86% burns. 15.For the aforesaid reasons we do not find any merit in this appeal and the appeal is hereby dismissed. The conviction of the appellant under section 302 of I.P.C. vide judgment dated 30-4-1994 in Sessions Trial No. 161/93 passed by the 2nd Additional Sessions Judge, Nagpur, as well as the sentence imposed on the appellant is hereby confirmed. Appeal dismissed. -----