NARAYAN, J. ( 1 ) THESE two Appeals are directed against the Judgment dated 08. 05. 1998 passed in S. C. No. 63/1994 passed by the Additional sessions Judge, Mandya, convicting A. 1 and 2 for the offences punishable under Section 302 read with Section 34 I. P. C. , and acquitting A. 3 of the offence punishable under Section 302 I. P. C. While the first Appeal is filed by accused 1 and 2 against the judgment of conviction and sentence, the second Appeal is filed by the state against the Order of acquittal of A. 3 of the alleged offence. ( 2 ) A few facts, which are necessary for disposal of these twoappeals, are as follows: a. 1 is the daughter of A. 2. it is alleged that A. 3 is the paramour of A. 1. Deceased Mahadeshwara was the husband of A. 1. They were all stone cutters residing in a hut built on a rock near Kaveripura village in Pandavapura Taluk. It is the case of the Prosecution that a. 3 used to visit the hut of A. 1 and A. 2 and they used to feed him. This was objected by the deceased. In fact, this was intimated to his community people suspecting illicit relationship of his wife with a. 3. His community people advised both A. 1 and A. 3 not to continue this practice. In this background, it is alleged that on 01. 12. 1993 at about 6. 00 P. M. , when the deceased was sleeping in his hut, A. 1 to a. 3 poured Kerosene upon him and set fire to him with the common intention of killing him. Deceased, who sustained burn injuries came out of the hut. Neighbours, including P. Ws. 3, 6, 10, 11 and others, put oft the fire with the help of Gunny Bag and shifted him in a lorry to the K. R. Hospital, Mysore. P. W. 5 - Dr. Indumathi, was the casualty Medical Officer at K. R. Hospital. At 9. 30 PM. , the injured mahadeshwara was brought by one Shivappa and others with the history of burn injuries. The injured was conscious and was talking and he gave the history of burns which he had sustained and he told the Doctor that his wife Angathamma-A. 1, and his mother-in- law Ayyathamma- A. 2, burnt him when he was sleeping at 6. , the injured mahadeshwara was brought by one Shivappa and others with the history of burn injuries. The injured was conscious and was talking and he gave the history of burns which he had sustained and he told the Doctor that his wife Angathamma-A. 1, and his mother-in- law Ayyathamma- A. 2, burnt him when he was sleeping at 6. 00 PM. , in his hut. His statement was reduced to writing in the Accident register-Ex. P. 4, and the relevant entry is found at Ex. P. 4 (a ). P. W. 5 then sent a Memo-Ex. P. 3 to the K. R. Hospital Police. A wireless message was sent to the jurisdictional Police, i. e. , to the K. R. Sagar police Station, Mysore P. W. 12- Sub-Inspector of Police of K. R. Sagar police Station, deputed a Police Constable to go to the Hospital, and to collect that Memo and the said constable brought the Memo at 10 A. M. Thereafter, PW. 12 deputed the Head Constable-P. W. 4, to record the statement of the injured, who accordingly recorded the statement as per Ex. P. 1. P. W. 12 registered a criminal case in Crime no. 137/1993 on the basis of Ex. P. 1 and submitted the F. I. R. to the jurisdictional Court. On the same night, he received the intimation of the death of the injured. He, therefore, issued an altered F. I. R. He then deputed Puttaswamy - P. W. 13 to conduct the inquest proceedings, who held inquest over the dead body of Mahadeshwara as per Ex. P. 7. Thereafter, P. W. 12 visited the place of incident- hut of the deceased and drew up a spot Mahazar in the presence of panchas as per Ex. P. 6. He also recorded the statement of some witnesses. Further investigation was taken over by P. W. 12, who after completing the formalities of the investigation, laid a charge sheet against the accused persons. ( 3 ) THE accused were charged and tried for the offence punishableunder Sections 302 read with 34 I. P. C. The charge against all the three accused was that with the common intention of committing murder of Mahadeshwara, on 1. 12. 1993, at about 6. 00 P. M. , in the hut of the deceased, poured Kerosene upon the deceased who was sleeping and set fire to him and caused 95% burns. 12. 1993, at about 6. 00 P. M. , in the hut of the deceased, poured Kerosene upon the deceased who was sleeping and set fire to him and caused 95% burns. In proof of the charge against the accused, the prosecution has examined 14 witnesses and got marked the documents and material objects, which are fully listed in the Annexure to the impugned Judgment. ( 4 ) ALL the accused were examined under Section 313 of the Codeof Criminal Procedure. They have disputed the truth of the prosecution's evidence. They have not chosen to examine any witness on their behalf. The learned Sessions Judge, who heard the arguments, mainly relied upon the history of the incident recorded by P. W. 5-Dr. Indumathi, coupled with other evidence, and found the evidence sufficient and satisfactory to convict A. I and A. 2. Since he disbelieved the dying declaration-Ex. P. 1, and the statement recorded by Dr. Indumathi in the Accident Register do not find the participation of A,3, he acquitted A. 3 of the charges framed against him. Aggrieved by the said Judgment, A. 1 and A. 2 have filed the first Appeal, while the State has questioned the correctness of acquittal of A. 3 by the learned Sessions Judge, in the second Appeal. ( 5 ) LEARNED Counsel for the appellants has contended that Ex. P. 4 was produced for the first time by the Prosecution before the Trial court at the time of examining P. W. 5 and that Ex. P. 3: the Memo issued by P. W. 5 is silent about the history of incident given by the deceased and that the dying declaration is not trustworthy; and the conviction based upon the entry in accident register is not sustainable in law. It is also submitted that the person who sustained 95% burns would not have been in a position to make a statement. Therefore, the entire case of the prosecution suffered from improbabilities and conviction cannot be based upon such improbable material. ( 6 ) LEARNED S. P. P. however contended that the Trial Judge is right in relying upon the recitals of Ex. P. 4 and the statement of P. W. 5 coupled with other circumstances placed by the prosecution. But, the learned Sessions Judge erred in acquitting A. 3, disbelieving the dying declaration of the deceased made before P. W. 4-Shivaraju. P. 4 and the statement of P. W. 5 coupled with other circumstances placed by the prosecution. But, the learned Sessions Judge erred in acquitting A. 3, disbelieving the dying declaration of the deceased made before P. W. 4-Shivaraju. ( 7 ) THE death of Mahadeshwara as a result of burns is not in dispute. He sustained burns at about 6. 00 P. M. , on 1. 12. 1993, in his hut in Kaveripura Village of Pandavapura Taluk, is also not in dispute. The fact that he was shifted with these burn injuries to the K. R. Hospital is spoken to by P. Ws. 6, 10 and 11. None of these witnesses are eye-witnesses to the incident. They had not chosen to complain to the Police. It is relevant to note that it is these neighbours who shifted the deceased in a Lorry to the K. R. Hospital and A. 1 and a. 2 wife and mother-in-law of the deceased did not accompany him, nor they were found anywhere in the vicinity of K. R. Hospital, Mysore, till his death and thereafter too. They were arrested by P. W. 12 on 8. 12. 1993 at Mogarahalli Village. The abscondance of A. 1 and A. 2 in the background of this incident, where husband of A. 1 died as a result of burns, is a circumstance, which goes against these two accused persons. ( 8 ) WE propose to dispose of the two contentions canvassed for consideration by Sri Murari Mouni, learned Counsel for the appellants accused. The first contention is that Ex. P. 4 - the accident register was summoned by the prosecution before the Court at the time of trial when P. W. 5 was in the witness box and the accused had no opportunity of seeing the document. In support of this contention, learned Counsel for the appellants has relied upon a Judgment of this Court in CHONARY AHMED KUTTY vs SPECIAL POLICE establishment. The question which came up for consideration before the Single Judge of, this Court in that case was that: whether the non-production of sanction order by the competent authority in a case arising under the provisions of the PASS PORTS ACT, will be open for production at a belated stage? It is held that the relevant documents, which were not produced along with the final report under section 173 (5) of Cr. It is held that the relevant documents, which were not produced along with the final report under section 173 (5) of Cr. P. C. , cannot be produced at a belated stage. We do not like to comment upon the said Judgment as that is not the relevant question, which is raised before this Court. Whether a relevant document could be produced before the Magistrate or the sessions Judge, at the time of filing the charge sheet or at the time of trial? - is a subject matter of catena of decisions of the Apex court. Here, we are asked to decide: whether it is open to the prosecution to summon or produce a document at the trial stage? ( 9 ) SECTION 173 (5) of the Code of Criminal Procedure contemplates the mode of submitting or forwarding a final report by a Police Officer. According to Section 173 (5) (a) of the Code, all documents or relevant extracts thereof on which the Prosecution proposes to rely other than those already sent to the Magistrate during investigation; and according to Section 173 (5) (b) of the Code, the statements recorded under Section 161 of all the persons whom the Prosecution proposes to examine as its witnesses; shall be forwarded to the Magistrate along with the report by the Police Officer. The Investigating Officer can also request the Magistrate to exclude disclosure of certain material. But, there is no prohibition in the Code to summon or produce any relevant Witness or record at the trial. Section 311 Cr. P. C. , empowers the Court to summon witness or examine any person present or to recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. If the Court has ample power to summon and examine or re-examine any witness, the Court has also the power to summon relevant document, which is not produced before the Court by the prosecution. Failure on the part of the Prosecution does not abdicate the duty of the Court to summon a witness or a document, as the object of holding a trial is to know the truth. Failure on the part of the Prosecution does not abdicate the duty of the Court to summon a witness or a document, as the object of holding a trial is to know the truth. What is required under circumstances is to notify the accused and provide him ample opportunity to challenge the same, after furnishing all relevant materials to him. In this context, certain observations made by the Apex Court in RAJ DEO SHARMA vs state OF BIHAR, are worthy to note. At para-9 of the said judgment, it is held as follows: "we may observe that the power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the Seven - judge Bench in A. R Antulay's case 1992, AIR SCW 1872; AIR 1992 SC 1701 ; (1992 Cri. LJ. 2717) nor in Kartar Singh's case (1994 Cri. LJ. 3139), such power has been restricted for achieving speedy trial, in other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the Court to , summon and examine or recall and re-examine any such person," ( 10 ) THEREFORE, when the document-Ex. P. 4 was summoned by the prosecution, and when P. W. 5 was examined to speak about the recitals in Ex. P. 4, no objection was taken by the accused on any ground. The entry made in the Medico-legal Case Register, i. e. , accident register, is not disputed. There is not even a suggestion to the witness that no such statement was marie by the deceased and that the entries are made at the behest of the prosecution to favour them and those are concocted entries. There is absolutely no relevant cross-examination to this witness. The evidence of P. W. 5-Doctor, is not tested at all. There is not even a suggestion to the witness that no such statement was marie by the deceased and that the entries are made at the behest of the prosecution to favour them and those are concocted entries. There is absolutely no relevant cross-examination to this witness. The evidence of P. W. 5-Doctor, is not tested at all. In this background, we find no force in the contention of the learned Counsel for the appellants that the Court is precluded from looking to the document only on the ground that it was advertently or inadvertently not produced by the prosecution before the Court. The laches of the Investigating Officer cannot go to the benefit of the accused, if the evidence placed by the prosecution is otherwise sufficient and satisfies the conscience of the Court in proof of the charge. ( 11 ) THE second contention raised by the learned Counsel for the appellants is that in Ex. P. 3, P. W. 5 has not stated that she has recorded the statement of the injured. Ex. P. 3 is only a memo issued by P. W. 5 to the Police intimating them that a patient was admitted with the history of burn injuries. It was not necessary for the Duty doctor to intimate to the police about the history of the incident recorded by her. Therefore, we do not find any merit in this contention also. ( 12 ) THE learned Sessions Judge has rightly rejected the dying declaration-Ex. P. 1, as it raises a strong suspicion as to its genuineness. According to the prosecution, it was recorded in the presence of P. W. 9 - Dr. Sathyanarayana who was treating the injured mahadeshwara. Instead of certifying after recording the statement of the injured, he made an endorsement as an insertion in the vacant space in Ex. P. 1. The possibility of obtaining this endorsement by the police is not ruled out. The Doctors who certify such statement must make such certificates consciously, without giving raise to any doubt in the mind of the Court. P. W. 4 obtained the L. T. M. of the brother and mother of the deceased on the dying declaration, on the ground that the injured Mahadeshwara was not in a position to put his L. T. M, because of the burns. Therefore, Ex. P. W. 4 obtained the L. T. M. of the brother and mother of the deceased on the dying declaration, on the ground that the injured Mahadeshwara was not in a position to put his L. T. M, because of the burns. Therefore, Ex. P. 1 cannot be termed as a dying declaration at all and no reliance can be placed upon such material. This is the only material relied upon by the prosecution in proof of the involvement of A. 3 in the commission of the offence. Therefore, the learned Sessions Judge is right in acquitting A. 3. ( 13 ) THE dying declaration - Ex. P. 1 is recorded by P. W. 4 -M. D. Shivaraju, who was deputed by P. W. 12. The casualness shown by a Sub-Inspector of Police in charge of the Police Station, deputing his deputy for purpose of recording a dying declaration, specially when a report is received by him that the patient with burns was admitted to the Hospital and it was a Medico-Legal Case is apparent. P. W. 4 in this respect followed his superiors by giving the dictation to his Constable while recording the statement of the injured. We have come across any number of criminal cases where the accused are involved in heinous offences and the Police Officers who are in charge of investigation of such cases adopted this mode of deputing their subordinates in the investigation of heinous crimes and instead of recording the statement themselves, which would be more authenticated and reliable, instead they direct their Constables to record the statement in their presence. We strongly deprecate this tendency of the Investigating Officers. It is one thing where a Police officer does not know the vernacular language in recording the statement of the witness. But, the Officers serving in the State of karnataka know their language well and the official language for ail purposes is 'kannada' in this State. ( 14 ) THE motive for the offence is that there was illicit relationship between A. 1 and A,3 and that the deceased was objecting for the same. Therefore, A. 1 to A. 3 hatched a plan to kill him. Hence, on the date of the incident, when the deceased was sleeping in his hut at 6. 00 P. M. , they poured Kerosene and set fire to him. Therefore, A. 1 to A. 3 hatched a plan to kill him. Hence, on the date of the incident, when the deceased was sleeping in his hut at 6. 00 P. M. , they poured Kerosene and set fire to him. The fact that they set fire to him after pouring Kerosene, is found from the post-Mortem Report. The Doctor who conducted Post-Mortem examination has stated that there was soot on the hair and other parts of the body of the deceased. P. W. 6 Krishnamurthy, first saw the injured-Mahadeshwara with flames on his person and attempted to extinguish the same with the help of gunny bag and P. W. 1q and p. W. 11 came later. It is the case of the prosecution that P. W. 1, P. W. 6, p. W. 10 and P. W. 11 visited the K. R. Hospital, Mysore, on the next day, i. e. , on 2. 12. 1993 around 10. 00 AM, and according to them mahadeshwara was still in a position to speak and he narrated them the whole story. Certain omissions were elicited in the evidence of p. Ws. 10 and 11 that they have not made such statement before the police. However, the evidence of Dr, Sathyanarayana clearly shows that the injured was conscious and he was in a position to make a statement. P. W. 1-mother of the deceased, has in fact, narrated these facts. This corroborates the history of incident recorded by P. W. 5- dr. Indumathi. P. Ws. 6, 10 and 11 have also spoken to the fact that the deceased himself complained to them that A. 3 developed illegal intimacy with his wife and that he used to visit the house and he objected for his visit. Hence, the Prosecution has also placed some material to show that A. 1 and A. 2 had some motive to kill the deceased. The Spot Mahazar-Ex. P. 6 also shows that the incident occurred in front of the hut of the deceased. The Investigating Officer collected enough material to show that the incident occurred in front of the hut of the deceased. In fact, P. Ws. 6, 10 and 11 have also spoken to this fact. We have no reason to doubt this material. Now the question, which arises for consideration is: whether this material is sufficient to convict the accused for an offence of murder? In fact, P. Ws. 6, 10 and 11 have also spoken to this fact. We have no reason to doubt this material. Now the question, which arises for consideration is: whether this material is sufficient to convict the accused for an offence of murder? if a declaration made by the injured before a Doctor, the veracity of which is not seriously questioned by the accused in cross- examination, there is no reason as to why the Court should not rely upon such material. Apart from this evidence, there are other circumstances indicating the complicity of the accused in the commission of the alleged offence. We have no doubt in our mind, from the careful reading of the evidence let in by the prosecution that, A1 and A2 have set fire to the deceased after pouring Kerosene upon him when he was sleeping in front of his hut. in our opinion, the charge is established beyond reasonable doubt against A. 1 and a. 2. The learned Sessions Judge has, in fact, rejected the doubtful material placed by the prosecution. He has scrutinised the evidence properly and reached the correct conclusion. We have no good reason to interfere with his Judgment. Therefore, in our opinion, there is no merit in these two Appeals. ( 15 ) THESE two Appeals are accordingly dismissed. --- *** --- .